THE HONOURABLE MR.JUSTICE M.GOVINDARAJ S.A.NO.816 OF 2009
1.P.N.Anandaraman 2.Radha Lakshmi 3.Jayalakshmi 4.Gopalakrishnan 5.Seetharaman ... Appellants / Defendants Vs.
1.K.Ramakrishna Naidu (Deceased) 2.Saraswathi (R2 brought on record as LR of the deceased sole defendant vide order dated 07.03.2016 made in M.P.No.1/2014 in S.A.No.816/2009) ... Respondent/ Plaintiff
PRAYER: Second Appeal filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 14.12.2007 made in A.S.No.145 of 2005 on the file of the learned Principal District Judge, Coimbatore, confirming the judgment and decree dated 08.09.2004 made in O.S.No.1109 of 1999 on the file of the learned Principal Subordinate Judge, Coimbatore.
For Appellants : Mr.T.R.Rajagopal Senior Counsel for Mr.S.Saravanan For Respondent : Mr.K.V.Babu
J U D G M E N T
The unsuccessful defendants are the appellants herein. The respondent/plaintiff filed the suit for specific performance of an agreement dated 01.07.1997.
2. The case of the respondent/plaintiff was that the appellants/defendants executed the agreement of sale dated 01.07.1997, agreeing to sell the property for a total consideration of Rs.4,83,750/- and received a sum of Rs.3,80,000/- as advance on the date of agreement and the sale price was fixed at the rate of Rs.2,15,000/- per acre, but thereafter, the appellants did not come forward to execute the sale deed. Therefore, a letter dated 15.09.1998 was sent by the respondent/plaintiff, calling upon the appellants/defendants to execute the sale deed in his favour. The appellants / defendants received the said notice and sent a reply stating that the sale price fixed in the agreement of sale viz., Rs.2,15,000/- per acre was too low and guideline value for the property was at Rs.4,75,000/- per acre. Therefore, the appellants/defendants replied that they had no objection to execute the sale deed, if the respondent/ plaintiff agrees to purchase for the revised price. That reply was dated 18.09.1998 and thereafter, another notice was sent by the respondent / plaintiff on 27.01.1999, calling upon the appellants / defendants to execute the sale deed as per the terms of agreement of sale dated 01.07.1997 and that was also replied by the appellants / defendants reiterating the stand taken by them in the earlier letter dated 18.09.1998 and the reply notice sent by the appellants / defendants was dated 06.02.1999. Thereafter, on 13.08.1999, the suit was filed by the respondent / plaintiff.
3. The appellants / defendants contested the suit stating that the respondent / plaintiff was not ready and willing to perform his part of the contract and though they agreed to sell the property at the rate of Rs.2,15,000/- per acre; they were not aware of the market price of the property at the time of agreement and time was the essence of the contract and as per the agreement of sale, the sale has to be completed within a period of one year and therefore, the respondent was not ready and willing to perform his part of the contract. Hence, the respondent is not entitled to the relief prayed for.
4. The Trial Court held that time was not essence of the contract as the same was also specifically mentioned in clause (3) of the sale agreement and the respondent / plaintiff has sent a letter Ex.A2, even on 15.09.1998, calling upon the appellants / defendants to execute the sale deed after receiving the balance sale consideration and the appellants / defendants sent a reply containing false allegations and claimed exorbitant amount and thereafter, the respondent / plaintiff sent a legal notice - Ex.A4, on 27.01.1999 and even to Ex.A4, the legal notice, the appellants / defendants have reiterated the allegations made in the reply letter - Ex.A3, and informed the respondent / plaintiff that if the respondent pays a sum of Rs.4,75,000/- per acre, they are willing to execute the sale deed. Therefore, the respondent / plaintiff proved his readiness and willingness to perform his part of the contract and the appellants / defendants deliberately delayed the execution of the sale deed and demanded higher amount and hence, the respondent / plaintiff is entitled to the relief of specific performance of the agreement of sale and decreed the suit.
5. The Lower Appellate Court also confirmed the judgment and decree of the Trial Court and held that Ex.A1 - agreement of sale was admitted by the appellants / defendants in their reply notice - Ex.A3 and therefore, they are bound by the sale agreement and the respondent has proved his readiness and willingness to perform his part of the contract by sending notice dated 15.09.1998 viz., Ex.A2. Moreover, the legal notice - Ex.A4, sent by the respondent / plaintiff would also prove his readiness and willingness and therefore, the respondent / plaintiff is entitled to the relief of specific performance of the agreement of sale and dismissed the appeal filed by the appellants / defendants. Hence, this Second Appeal.
6. This Court, while admitting the second appeal on 07.08.2009, has framed the following substantial question of law:
" Have not the Courts below committed an error of law in not framing an issue as to the real 'lis' to be decided upon between the parties to the action as envisaged under the provisions of Order XIV Rule 3 of C.P.C.? "
7. In the previous round of litigation, at the time of final disposal, this Court framed an additional substantial question of law that "whether the Courts below were right in holding that the respondent was ready and willing to perform his part of the contract and the respondent is entitled to the discretionary relief of specific performance" and decided the Second Appeal.
8. Aggrieved over the judgment passed by this Court, the respondent/plaintiff filed an appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court, by its order in Civil Appeal No.1372 of 2013 dated 15.02.2013 set aside the judgment of the learned Single Judge of this Court and remitted the matter for fresh disposal of the second appeal filed by the respondents keeping in view of the provisions of Section 100 of the Code of Civil Procedure and the observations made in the order of the Hon'ble Supreme Court, reads as under:-
"The impugned judgment does not show consideration by the learned Single Judge of the substantial question of law framed at the time of admission of the second appeal or on the basis of the submissions made by the parties.
Therefore, the conclusion recorded by him is legally unsustainable.
In the result, the appeal is allowed, the impugned judgment is set aside and the matter is remitted to the High Court for fresh disposal of the second appeal filed by the respondents keeping in view of the provisions of Section 100 CPC and the observations made in this order."
9. Since both the sides were put on notice of the substantial questions of law in the present Second Appeal that "(i) Have not the Courts below committed an error of law in not framing an issue as to the real 'lis' to be decided upon between the parties to the action as envisaged under the provisions of Order XIV Rule 3 of C.P.C.?; and (ii) Whether the Courts below were right in holding that the respondent was ready and willing to perform his part of the contract and the respondent is entitled to the discretionary relief of specific performance? "
opportunity is given to argue on both the substantial questions of law.
10. The learned Senior Counsel appearing for the appellants would submit that the concurrent findings of the Courts below are contrary to law. Time is the essence of the contract and as per the sale agreement dated 01.07.1997, time limit for executing the agreement was fixed as one year. Whereas, the respondent / plaintiff had kept quiet, without taking any steps to get the sale executed within the time limit stipulated in the agreement. After a period of one year and three months, he sent a letter to the appellants / defendants that he was always ready and willing to execute the sale deed. It was suitably replied by the respondent / plaintiff on 18.09.1998. In spite of the same, the respondent / plaintiff has filed the suit only on 13.08.1999. There is a delay of two years and two months, which was not explained by the respondent / plaintiff. Even assuming that he had pursued his rights, he should have filed the suit immediately after the reply sent by the appellants / defendants on 18.09.1998. Whereas there is a delay of eight months in filing the suit, even after notice. Therefore, the unexplained delay will dis-entitle the specific performance in favour of respondent / plaintiff. The second limb of the argument was that those who seek equity, should do equity. The respondent / plaintiff throughout the plaint has suppressed the fact that he is a tenant under the appellants / defendants. He supposed to pay arrears of rent to the tune of Rs.78,000/- as on 18.09.1998. Further, he has denied in his evidence that he is neither a tenant nor liable to pay any rental arrears to the appellants / defendants. These facts are clearly suppressed with an ulterior motive to defeat the rights of the appellants / defendants. When a person approached the Court with unclean hands, suppressing the facts, he is not entitled to the discretionary relief from the Court of law.
11. He would further submit that even though the respondent / plaintiff had pleaded that he was always ready and willing, he never proved that he was ready and willing to get the sale executed within the time limit. After a period of one year and three months of the date of the agreement, he had sent a letter with untenable statements to get the sale executed. The appellants / defendants have replied the same that the time stipulated in the agreement had lapsed and therefore, they were ready to execute the sale deed provided the respondent / plaintiff pays the market value of the property that is @ Rs.4,75,000/- per acre. Even then, the respondent / plaintiff was dodging and protracted the issue for the reasons best known to him. From the conduct of the respondent / plaintiff, it can be easily inferred that he was not ready and willing to get the sale executed.
12. A reliance is made on Order XIV Rule 3 of the Code of Civil Procedure that the Trial Court has failed to frame the issues on the materials filed before it that is whether the suit is barred by limitation or not? ; whether the plaintiff is entitled to any relief or the discretionary relief on account of suppression of facts, etc. On the above aspects, the learned Senior Counsel would draw the attention of this Court on the findings rendered by the Courts below.
(i) NALLAYA GOUNDER AND ANOTHER VS. P.RAMASWAMI GOUNDER AND ANOTHER [AIR 1993 MAD 275]
(ii) LOURDU MARI DAVID AND OTHERS VS. LOUIS CHINNAYA AROGIASWAMY AND OTHERS [1996 (5) SCC 589]
(iii) ARUNACHALA MUDALIAR VS. JAYALAKSHMI AMMAL AND ANOTHER [AIR 2004 MAD 180]
(iv) SARADAMANI KANDAPPAN VS. S.RAJALAKSHMI AND OTHERS [2011 (4) LW 97]
(v) BALAKRISHNAN AND OTHERS VS. B.VENI AND OTHERS [2017 (5) CTC 249]
(vi) K.S.VIDYANADAM VS. VAIRAVAN [AIR 1997 SC 1751]
(vii) MAN KAUR (DEAD) BY LRS. VS. HARTAR SINGH SANGHA [2011 (1) LW 301]
(viii) MANJUNATH ANANDAPPA VS. TAMMANASA [AIR 2003 SC 1391]
13. Per contra, the learned counsel appearing for the respondent/plaintiff would submit that the sale agreement dated 01.07.1997 would clearly specify that the balance sale consideration shall be paid on the basis of the decree passed by a Competent Court for completion of sale agreement or one year from the date of the agreement. It is also clearly mentioned that time is not the essence of the contract. In the absence of any time limit, the respondent / plaintiff is always entitled to file a suit within three years. Therefore, the suit as filed is very much within time.
14. The respondent / plaintiff had already paid a sum of Rs.3,80,000/- out of the agreed sale consideration of Rs.4,83,750/-, that is, almost 85% of the sale consideration. Having paid the major sale consideration, there is no reason for the respondent / plaintiff to protract the proceedings. He was always ready and willing and insisting on the execution of the sale deed on receipt of the balance sale consideration. But the defendants delayed it deliberately. From the evidence of D.W.1, and from the written statement, it can be easily elicited that there were negotiations between the parties till January 1999. Therefore only, he filed the suit in August 1999. There is no delay on his part, but the delay was caused due to the negotiations between the parties.
15. The learned counsel appearing for the respondent / plaintiff would also submit that the issue involved in this case is as to whether the respondent / plaintiff is entitled to discretionary relief of specific performance in his favour or not. Having paid 85% of the sale agreement amount, the respondent / plaintiff is entitled to the discretionary relief of specific performance. In order to show his bonafides, he has already deposited the balance sale consideration pursuant to the decree passed by the Trial Court in the suit. After having paid the entire sale consideration, the respondent / plaintiff is entitled to the discretionary relief. Further, it was contended that the discretionary relief cannot be denied on the factum that he was a tenant under the appellants / defendants, for, the very agreement itself would reveal that he was in possession of the property in the capacity of the lessee of the suit property for the past fifty years. In the plaint also he has clearly stated that the possession was handed over long ago. Therefore, it is an admitted fact that the respondent / plaintiff was a lessee under him. Therefore, the issue on tenancy is immaterial for execution of the sale deed, for which he has already paid 85% of the sale consideration to the appellants / defendants. In fact, the appellants had only delayed the execution of sale with an ulterior motive to extract higher amount than what was accepted at the time of agreement. Therefore, there is no suppression of fact and the respondent / plaintiff is entitled to the discretionary relief. Based on the materials available before the Court, the Court has taken up the issue as to whether the plaintiff is entitled to specific performance or not, which includes all the issues. The Trial Court had elaborately discussed the pleadings / oral and documentary evidences for arriving at a decision on the issues. The judgment and decree passed by both the Courts are well reasoned and based on evidence. Therefore, the second appeal is liable to be dismissed.
16. I have heard the rival contentions.
17. The second appeal has to be decided by this Court on the following questions of law:-
" (i) Have not the Courts below committed an error of law in not framing an issue as to the real 'lis' to be decided upon between the parties to the action as envisaged under the provisions of Order XIV Rule 3 of C.P.C.?
(ii) Whether the Courts below were right in holding that the respondent was ready and willing to perform his part of the contract and the respondent is entitled to the discretionary relief of specific performance? "
18. Pursuant to the judgments of the Courts below, it could be seen that a specific issue as to whether the respondent/plaintiff is entitled to the relief of specific performance had been framed. The relief of specific performance in respect of sale of immovable property includes the readiness and willingness, law of limitation and bonafide conduct of the parties. Even though there is no specific issue with regard to the readiness and willingness on the part of the respondent / plaintiff has been framed, sufficient evidence was let in and recorded on this aspect and the Court has also discussed the issue of readiness and willingness as well as the point of delay raised by the appellants/defendants. After elaborate discussions, all these points were answered in favour of the respondent/plaintiff and the suit was decreed.
19. The learned Senior Counsel for the appellants / defendants would rely on a judgment of the Division Bench of this Court in NALLAYA GOUNDER AND ANOTHER VS. P.RAMASWAMI GOUNDER [AIR 1993 MADRAS 275] wherein it has been held that the plaint shall specifically aver that the plaintiff was ready and willing to perform his part of the contract. If such pleading is not made, the relief of specific performance can be negatived. In so far as the present case is concerned, from the reading of the plaint, it could be seen that the respondent/plaintiff has specifically pleaded that he was ready and willing to perform his part of contract. He has also paid Rs.3,80,000/- as advance on the date of agreement towards sale price, which was fixed at Rs.4,83,750/-. This amount is more than 85% on the sale consideration. In such circumstances, it can be construed that the respondent/plaintiff has complied on Forms 47 & 48 of Appendix "A" of CPC.
20. The learned Senior Counsel for the appellants / defendants would rely on a judgment of the Hon'ble Supreme Court in LOURDU MARI DAVID AND OTHERS VS. LOUIS CHINNAYA AROGIASWAMY AND OTHERS [1996 (5) SCC 589] wherein it has been held that the discretionary power of the Court to grant decree of specific performance, shall be based on legal principle. Those who seek equitable relief should come before this Court with clean hands. If the plaintiff's case was based on certain false and incorrect facts, he is not entitled to equitable relief.
21. According to the learned Senior Counsel for the appellants/defendants, on the date of agreement, the plaintiff was not put in possession of the property. On the other hand, he continued to be the lessee. Therefore, the appellants/defendants demanded the lease amount treating the plaintiff as tenant. In so far as the possession was not entrusted, pursuant to the agreement, the plaintiff cannot claim that he was put in possession on the date of agreement. This crucial fact has been suppressed by the plaintiff.
22. But, a reading of the sale agreement, which is marked as Ex.A1, it is clearly noted that the plaintiff was continuing in possession as a lessee and thereafter, paid advance amount of Rs.3,80,000/-, out of the sale consideration of Rs.4,83,750/- at the rate of Rs.2,15,000/- per acre. It is expressly said in the said agreement itself that the plaintiff continues to be in possession, it cannot be construed as suppression. As long as the agreement holder is in possession and he paid more than 50% of the amount towards sale consideration, the issue of equity shifts in his favour. He could not be considered as a lessee from the date of sale agreement, who is an agreement holder put in possession by way of part performance. The relevant portion of the agreement reads as under:
"fPnH tpthpffg;gl;oUf;Fk; tptrha g{kpia ehk; 1tJ kw;Wk; 2tJ ghhl;ofs; nrh;eJ fpiuak; ngrp ek;kpy; 1tJ ghh;;of;nfh mth;
nfhUk; egh;fSf;nfh 2tJ ghhl ;oahhf s; fpiuak bra;JbfhLg;gjhf xg;g[f;bfhz;L fPHffz;l epge;jidfSf;F cl;gl;L ,ej; xg;ge;jj;ij ehk; vGjpitjJ fpiua f;bfhz;L ,Uf;fpnwhk;/ brhjJ tpgujj py; fzl;
brhj;jhdJ flej ghh;oapd; RthjdP 50 MzL;
j;jpy; Fjj fhykhf 1tJ ifjhuh; vd;w ncwhjhtpy; ,Ue;J tUfpwJ/
(1) brhj;jpd; fpiuaj;bjhif Vff h; xdW f;F U:/2.15.000- (U:gha; ,uz;L yl;rjJ gjpide;jhapuk; kl;Lk;) tjP k; fzf;fplntz;oaJ/
(2) fpiua bkhjjj; bjhifapy; Xh; ghfk U:/3.80.000-(U:gha; K:dW yl;rjJ vz;gjhapuk;
kl;Lk;) 1tJ ghhl;oahy; brYjjg;gl;L 2tJ ghh;loahh;fs; rhlrpfs; Kd;dpiyapy; ,diwa njjpapy; bgwg;gl;Ls;sJ/ mjwF MFk;/"
,Jnt urJP
23. The learned Senior Counsel for the appellants/defendants would rely on a judgment of the Division Bench of this Court in ARUNACHALA MUDALIAR VS. JAYALAKSHMI AMMAL AND ANOTHER [AIR 2004 MADRAS 180] wherein it has been held that no evidence to show that the plaintiff was put in possession pursuant to the agreement as claimed by her, the plaintiff, was not entitled to grant of decree. But in the instant case, it is an admitted case of both the parties that the plaintiff continues to be in possession and an agreement was also entered recording the possession. As discussed earlier, it is an admitted fact that the plaintiff was put in possession as an agreement holder even though the possession existed even before the agreement.
24. In so far as the limitation is concerned, the learned Senior Counsel for the appellants/defendants would rely on the judgment of the Hon'ble Supreme Court in SARADAMANI KANDAPPAN VS. S.RAJALAKSHMI AND OTHERS [2011 (4) LW 97] wherein it has been held as under:
"27. A correct perspective relating to the question whether time is not of the essence of the contract in contracts relating to immovable property, is given by this court in K.S. Vidyanadam and Others vs. Vairavan - (1997) 3 SCC 1 (by Jeevan Reddy J. who incidentally was a member of the Constitution Bench in Chand Rani). This Court observed:
"It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect.
In the case of urban properties in India, it is well- known that their prices have been going up sharply over the last few decades - particularly after 1973. .........We cannot be oblivious to the reality and the reality is constant and continuous rise in the values of urban properties - fuelled by large scale migration of people from rural areas to urban centres and by inflation.
Indeed, we are inclined to think that the rigor of the rule evolved by courts that time is not of the essence of the contract in the case of immovable properties - evolved in times when prices and values were stable and inflation was unknown - requires to be relaxed, if not modified, particularly in the case of urban immovable properties. It is high time, we do so." (emphasis supplied) Therefore there is an urgent need to revisit the principle that time is not of the essence in contracts relating to immovable properties and also explain the current position of law with regard to contracts relating to immovable property made after 1975, in view of the changed circumstances arising from inflation and steep increase in prices. We do not propose to undertake that exercise in this case, nor referring the matter to larger bench as we have held on facts in this case that time is the essence of the contract, even with reference to the principles in Chand Rani and other cases. Be that as it may.
28. Till the issue is considered in an appropriate case, we can only reiterate what has been suggested in K.S. Vidyanadam (supra) :
(i) Courts, while exercising discretion in suits for specific performance, should bear in mind that when the parties prescribe a time/period, for taking certain steps or for completion of the transaction, that must have some significance and therefore time/period prescribed cannot be ignored.
(ii) Courts will apply greater scrutiny and strictness when considering whether the purchaser was `ready and willing' to perform his part of the contract.
(iii) Every suit for specific performance need not be decreed merely because it is filed within the period of limitation by ignoring the time-limits stipulated in the agreement. Courts will also `frown' upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean a purchaser can wait for 1 or 2 years to file a suit and obtain specific performance. The three year period is intended to assist purchasers in special cases, as for example, where the major part of the consideration has been paid to the vendor and possession has been delivered in part performance, where equity shifts in favour of the purchaser."
25. A careful reading of paragraph no.28 (iii) of the judgment cited supra would show that in special cases where the major part of the consideration has been paid to the vendor and possession has been delivered in part performance, where equity shifts in favour of the purchaser. Whereas in this case, as rightly contended by the learned counsel for the respondent that 85% of the sale consideration was paid to the vendor on the date of agreement. The plaintiff is also continuing to be in possession of the property. In such circumstances, as held by the Hon'ble Supreme Court, it should be construed that the plaintiff is entitled to take advantage of it. The Courts below have also categorically found that the plaintiff was ready and willing to perform his part of contract and that the defendants have deliberately delayed it for getting higher price for the same. It is also categorically observed that in the very same sale agreement, it is specifically mentioned that time is not the essence of the contract.
"(3) ,e;j fpiuak; xg;ge;jg;go Kog;gjwF fhyf;bfL vd;gJ 1tJ ghhl;oahh; nfhhl;L K:ykhf brhj;Jhpik nfhhp mjpy; 2tJ ghh;l;oahh;fs; M$huhfp jPh;g;ghid gpwg;gpf;Fk;
nghJ ghf;fpa[ss; ghh;l;oahh;fs; bgwW fpiuajb; f;bfhss jhifia 2tJ ntz;oaJ.
(my;yJ) xU tUlk; vdW ehk; ,Ughhl;ofSk;
xg;g[f;bfhz;Ls;nshk;/ nkw;go fhyf;bfL ,e;j xg;ge;jj;jpw;F Kff pa mk;rk; my;y/"
A reading of the sale agreement puts the predominant condition that on the plaintiff obtaining decree for specific performance, the defendants shall execute the sale deed on receipt of the balance sale consideration or within a period of one year. Following the condition, it is specifically mentioned that time is not the essence of the contract. In such circumstances, we do not subscribe to the contention that the specific performance shall be denied on account of the delay caused.
26. The Hon'ble Supreme Court, in the case of MADAMSETTY SATYANARAYANA VS G. YELLOGI RAO AND TWO OTHERS [AIR 1965 SC 1405] had categorically held that mere delay was not sufficient to empower a Court to refuse the relief of specific performance. In this regard, paragraph no.18 of the said judgment is extracted hereunder:
thus:
"18. Seshagiri Aiyar, J., said much to the same effect, "There is nothing in the Specific Relief Act which says that laches in bringing a suit will by itself be a ground for refusing specific performance............ Having regard to the fact that a special period of limitation has been fixed for bringing a suit for specific performance, I think the legislature has not intended that mere laches should be one of the grounds for refusing specific performance."
27. Further, it is held that mere raise in the price subsequent to the date of contract or inadequacy to the price cannot be treated as a ground which would entitle the plaintiff to seek for decree for specific performance of contract. This finding is squarely applies to this case. In the instant case, the appellants admits the execution of sale agreement; receipt of the sale consideration; and possession of the plaintiff in respect of the suit property. It is also clearly proved by the evidence of D.W.1 that the appellants had no objection to sell and not refused to perform their part of contract, but wanted to sell the property for a higher prize. The relevant portion from the reply notice reads as under:
"....jw;nghJ murpdhy; ephz apffg;gl;Lss tpiyahdJ Vff h; xdW f;F U:/4.75.000- vd mwpfpnwhk; Mfnt. 01/06/97y; Vw;gl;l xg;ge;jj;jpy; fz;Lss brhjj piz j'f Sf;F murpdhy; eph;zapf;fg;gl;Lss Vf;fh; xd;Wf;F U:/4.75.000- tjP tpiyahfpa k; fpuak; bra;J bfhLg;gjw;F v'fSf;F Ml;nrgiz ,yiy vd;gij ,jd; K:yk; bjhptpjJ f; bfhsf pnwhk;/ mt;thW jh';fs; fpuak; bra;J bfhs;s tpUk;gpdhy; ,ffojk; fpilffg; bgw;w 15 ehl;fSf;Fs; kPjpj; bjhifapid murpdhy; eph;zapf;fg;gl;l tpiyapy; mog;gilapy;
v';fSf;F bfhLjJk;. nkYk; Fjjif bjhifa[k; v';fSfF mspjJ k; fpuak; bra;J bfhs;s ntz;oaJ/ jtwpdhy;. eh'fs j';fs; kJ jFej eltof;if vLff ntz;oa eph;ge;jk; Vw;gLk; vd;gij bjhptpjJf;
bfhs;fpnwhk;/ nkYk;. Mjdhy; Vw;gLk; fc;&l ec;&l';fs; bryt[ bjhif tifawhtf;F jh';fns KGg; bghWg;ngwf; vd;gija[k; bjhptpj;Jf; bfhsf ntz;o tUk; pnwhk;/"
In the reply notice, they have categorically stated that they are willing to perform their part provided the market value of the property is paid to them. By seeking higher price, it can be inferred that the performance of contract is merely sought to be postponed and it cannot be construed that defendants denied the request of the plaintiff to perform the contract or refused to execute the sale deed as the agreement lapsed by efflux of time. Since it is evidence from the conduct of the defendants that they are willing to accede to the request of the plaintiff and the plaintiff was also ready and willing to get the contract performed but on certain conditions. Therefore, the questions of law that the plaintiff was not ready and willing and there is a delay in filing the suit are not tenable and answered in the negative.
28. Further, on the aspect of the rise in price, the Hon'ble Supreme Court in A.PRAKASH VS. B.R.SAMPATHKUMAR [AIR 2015 SC 9] has held as follows:
"16. Indisputably, remedy for specific performance is an equitable remedy. The Court while granting relief for specific performance exercise discretionary jurisdiction. Section 20 of the Act specifically provides that the court’s jurisdiction to grant decree of specific performance is discretionary but not arbitrary. Discretion must be exercised in accordance with the sound and reasonable judicial principles.
17. The King’s Bench in Rookey’s Case [77 ER 209;
(1597) 5 Co.Rep.99] it is said :
“Discretion is a science, not to act arbitrarily according to men’s will and private affection: so the discretion which is exercised here, is to be governed by rules of law and equity, which are to oppose, but each, in its turn, to be subservient to the other. This discretion, in some cases follows the law implicitly, in others or allays the rigour of it, but in no case does it contradict or overturn the grounds or principles thereof, as has been sometimes ignorantly imputed to this Court. That is a discretionary power, which neither this nor any other Court, not even the highest, acting in a judicial capacity is by the constitution entrusted with”
.....
20. Subsequent rise in price will not be treated as a hardship entailing refusal of the decree for specific performance. Rise in price is a normal change of circumstances and, therefore, on that ground a decree for specific performance cannot be reversed. "
29. A person offered to sell the property shall anticipate the change of circumstances and raise of market value day by day. In the instant case, there is no abnormal delay, but the delay was caused due to the continuous negotiation between the parties. The fifth defendant who deposed as D.W.1 would state that they were holding discussions and met the plaintiff quite often only for the purpose of demanding their rentals. Therefore, it is clear that due to the intervening circumstances and by the conduct of the defendants, the plaintiff was precluded from filing the suit. The delay caused on the ground of raise in price cannot be a ground for refusal of decree of specific performance.
30. The learned Senior Counsel for the appellants/defendants would also rely on the failure of the Trial Court in framing this specific issue as prescribed under Order 14 Rule 3 CPC. As discussed earlier, he would rely on the judgment of this Court in BALAKRISHNAN AND OTHERS VS. B.VENI AND OTHERS [2017 (5) CTC 249] wherein it has been held as follows:
"....... inordinate and unexplained delay in issuing suit notice and filing suit could dis-entitle the plaintiff seeking equitable relief of specific performance. If it causes serious prejudice to the defendant and also created rights in third parties, such delay cannot be ignored."
31. As discussed earlier, in the instant case, there is no prejudice caused to the defendants as 85% of the sale consideration had already been paid by the plaintiff. The raise in market value cannot be construed as a prejudice or hardship as it is due to the normal change of circumstances. However, in the instant case, as found by the Courts below, the issue of readiness and willingness and delay of laches had already been considered and sufficient evidence had been let in in taking decision on that. When there is sufficient evidence with respect to the issues and the evidence with respect to these issues are discussed and the matter is decided concurrently by both the Courts below, this Court is not entitled to render a different finding on that point.
32. From the above discussions, it can be clearly inferred that the parties have entered into a sale agreement and 85% of the sale consideration was paid to the vendor. The plaintiff continues to be in possession. The fact remains that possession has been handed over to the plaintiff. In such circumstances, it amounts to part performance. The equity lies in favour of the plaintiff as having paid the major portion of the sale consideration. The sale agreement also clearly specify that time is not the essence of the contract. Further, the plaintiff has proved his readiness and willingness by paying 85% of the sale consideration and also explained the delay occasioned on account of the defendants. It is also categorically admitted by D.W.1 that he was frequently meeting the plaintiff and that they have no objection to sell the land at a higher market value. In such circumstances, the discretionary relief of specific performance granted in favour of the plaintiff by the Courts below cannot be found fault with. Hence, the questions of law raised in the Second Appeal are answered against the appellants and accordingly, the Second Appeal stands dismissed. No costs.
15.11.2017
Index : Yes/No Internet : Yes/No TK To
1. The Principal District Judge Coimbatore.
2. The Principal Subordinate Judge Coimbatore.
M.GOVINDARAJ, J.
TK
S.A.NO.816 OF 2009
15.11.2017