The plaintiff filed the suit in OS No.22 of 2009 for specific performance and it was decreed in part granting the alternative relief of refund of advance.
2.According to the plaintiff the defendants entered into an agreement with him agreeing to sell the suit property for a consideration of Rs.10,76,000/- at the rate of Rs.2,00,000/- per acre. On the date of agreement i.e., on 17.05.2006, the plaintiff paid an advance of Rs.1,00,000/-, on 20.09.2006 and 09.10.2006 the plaintiff paid further advance of Rs.1,00,000/- and Rs.1,50,000/- respectively, leaving a balance of Rs.7,26,000/-. It is also seen from the agreement that the period of 5 months was fixed for performance of the contract. The plaintiff sent a notice demanding performance on 17.02.2009 and followed it up with the filing of the suit on 27.02.2009.
3. The defendants 1 and 3 would resist the suit contending that the partition dated 21.05.1993 said to have been entered into between the defendants is nominal one and same was not acted upon. It was also stated that because of the said reason the defendants 2 to 4 also joined the execution of the agreement. The execution of an agreement was admitted and the receipt an advance amount of Rs.3,50,000/- as claimed by the plaintiff is also admitted. The defendants would further contend that the suit is belated and the plaintiff was not ready and willing to perform his part of contract. It was also claimed that the suit is barred by limitation. On the above pleadings the defendants sought for dismissal of the suit. The defendants 2 and 4 filed a separate but identical written statement.
4. The learned Trial Judge framed the following issues for determination in the suit.
1.Whether the 1st defendant alone is the absolute owner of the suit property?
2.Whether the partition deed dated 21.05.1993 is a nominal one and not acted upon?
3.Whether the plaintiff is estopped from stating that the 1st defendant alone is the absolute owner of the suit property?
4.Whether the plaintiff was ready and willing specifically to perform the suit agreement on his part?
5.Whether time is not essence of the suit agreement?
6.Whether the plaintiff is entitled to get a sum of Rs.3,50,000/- together with interest at the rate of 18% per annum from the date of suit?
7.Whether the plaintiff is entitled to the relief of Specific performance as per suit agreement?
8.Whether there is cause of action for the suit?
9.To what relief the plaintiff is entitled to?
5. On the side of the plaintiff, three witnesses were examined and Exhibits A1 to A8 were marked. On the side of the defendants, the 1st defendant was examined as D.W.1 but no documents were marked
6. The trial Court on consideration of the oral and documentary evidence concluded that Ex.A2 partition dated 21.05.1993 is not a nominal one and it was acted upon. However, the learned Trial Judge went on to hold that the plaintiff is not right in claiming the first defendant alone as the absolute owner of the property, in view of the fact that he has entered into an agreement with all the sons of the first defendant.
7. As regards the issue as to whether the plaintiff was ready and willing to perform his part of contract, the learned Trial Judge found that the plaintiff is guilty of breach of contract. The learned Trial Judge has concluded that the plaintiff has not even demanded for performance within the period fixed. Therefore, the learned Trial Judge concluded that the plaintiff was not ready and willing to perform his part of the contract. The learned Trial Judge also accepted the plea of the defendants that they agreed to sell the property for their urgent need of money and since the plaintiff failed to complete the transaction within the period agreed upon, the defendants have incurred loss. Therefore the learned Trial Judge concluded that plaintiff is not entitled to specific performance of the contract. However considering the fact that defendants have admitted the receipt of the advance amount decreed the suit for refund of advance with interest at 9% per annum from the date of the sale agreement till the date of the decree and subsequently 6% per annum till realization
8. Aggrieved by the said judgment and decree the plaintiff is on appeal.
9. I have heard Ms.R.Sripriya, learned counsel for Mr.V.Raghavachari, learned counsel appearing for the appellants and Mr.J.Hariharan, learned counsel for M/s.V.Nicholas, learned counsel appearing for the respondents.
10. The learned counsel for the appellants would contend that the trial Court erred in holding that the plaintiff has not ready and willing to perform his part of the contract. She would draw my attention to the fact that the plaintiff has been parting with money as and when required by the defendants and the last of such payments have been made on 09.10.2006, which is almost at the end of the 5 months period fixed under the agreement. Such payments would imply that the time was extended for performance of the contract. The learned counsel would also invite me to the evidence of P.W.1, who has stated that the defendants did not come forward to measure the suit property. Therefore, according to her, since the defendants have failed to perform the essential part of the contract namely measuring the suit property, the plaintiff cannot be blamed for the delay and hence the question of absence of readiness and willingness on the part of the plaintiff does not arise.
11. Per contra, Mr.J.Hariharan, learned counsel appearing for the respondents would contend that the plaintiff as P.W.1, in his evidence had categorically admitted that the defendants agreed to sell the property because of their urgent need for money. The learned counsel would lay considerable thrust on the following evidence of the plaintiff:
gpupjpthjpfs; jhth nrhj;Jf;fis mth;fs; mtruj; Njitf;fhf tpw;f Kd;te;jhh;fs; vd;why; rhpjhd;. 2 Kjy; 4 gpujpthjpfSf;F jhth nrhj;jpy; ghfk; ,y;iynad;W ehd; nrhy;ypapUf;fpNwd; vd;why; rhpjhd;. mt;thW ghj;jpak; ,y;yhj egh;fs; kPJ ehd; ghpfhuk; Nfhu KbahJ vd;why; rhpjhd; .........5khj fhyf; nfLTf;Fs; ehd; msT Nghl eltbf;if vLf;ftpy;iy> fhuzk; gpujpthjpfs; jhd; mse;JnfhLg;gjhf nrhd;dhh;fs;. 1>2>3 gpujpthjpfs; kPjpj; njhifia 26.9.2006 md;W mtruk; vd;W Nfl;lhh;fs; vd;why; Njh;jypy; epw;gjw;fhf U.1>00>000/- 1k; gpujpthjp Nfl;lhh;. mjw;F 26.9.2006 md;W kPjpj; njhifia Nfl;ftpy;iy vd;why; rhpay;y> mse;J nfhLj;Jtpl;L gzk; ngw;Wf;nfhs;Sk;gb nrhy;ypAk;> Njh;jypy; epw;f gzk; Ntz;Lk; vd;gjhy; xU ,yl;rk; nfhLj;Njd;> Mdhy; mth;fs; mse;JnfhLf;ftpy;iy. .......
and contend that the plaintiff was never ready and willing to perform his part of the contract. He also invited my attention to the recent pronouncements of the Hon'ble Supreme Court in Saradamani Kandappan v. Rajalakshmi and others, [2011 (4) LW 97] and Padmakumari and ors. v. Dasayyan and others in [2015 (6) CTC 545], wherein the Hon'ble Apex Court has pointed out that the plaintiff in a suit for specific performance has to perform his part of contract within a reasonable time. Even though time cannot be said to the essence of the contract with reference to immovable property unless the plaintiff shows that he was always ready and willing to perform his part of the contract in terms of under
Section 16(c) of Specific Relief Act, the plaintiff cannot be favoured with a decree for the plea of the specific performance.
12. On the above arguments the following points arisess for determination in this appeal:
1. Whether the plaintiff is ready and willing to perform his part of the contract?
2. Whether the trial Court was right in granting refund of advance with interest at 9% from the date of the decree and 6% thereafter.
Point No.1:
13. The agreement is dated 17.05.2006 and it is not in dispute that the agreement fixed a period of 5 months for the completion of the contract. The plaintiff who was bound to pay a balance of sale consideration of Rs.7,26,000/- had waited for nearly 2 years 4 months till 17.02.2009 to issue a legal notice and another 2 months there from to file the suit for specific performance on 27.04.2009. In Saradamani Kandappan v. Rajalakshmi and others, [2011 (4) LW 97] referred to supra, the Hon'ble Supreme Court has pointed out that even though time is not essence of the contract in respect of the agreement for sale of immovable property, the plaintiff must exhibit and readiness and willingness and approach the Court within a reasonable time. The period of 3 years prescribed under
Article 54 of the Limitation Act is only a outer time limit and the plaintiff ought not to wait till the expiry of 3 years period to file the suit almost at the end of the term claiming that he is ready and willing to perform his part of the contract.
14. As rightly contended by the learned counsel for the respondents the portion of evidence of the plaintiff extracted above would show that the plaintiff was not ready and willing to perform his part of the contract as required under
Section 16(c) of the Specific Relief Act. He had in fact admitted that he did not take any steps in furtherance of the agreement within the period fixed under agreement. No doubt he has proved that he parted with Rs.3,50,000/- out of Rs.10,76,000/- but at the same time he is expected to show that he was ready to pay the balance consideration within a period fixed under the contract or soon thereafter. The absence of such evidence to show his readiness and willingness would disentitle him to seek the equitable relief. I do not see any scope for interference with the said exercise of discretion. Therefore the conclusion of the trial Court in rejecting the relief of Specific Performance is confirmed.
Point No.2:
15. The Trial Court has granted interest at 9% per annum from the date of the agreement till the date of decree thereafter the rate of interest will be reduced at 6%. Ms.R.Sripriya appearing for the appellants would vehemently contend that the grant of interest at 6% is on the lower side and the trial Court should have granted interest at 18% as claimed by the plaintiff from the date of agreement till the date of realization. Mr.J.Hariharan, learned counsel appearing for the respondents would contend that considering the rate of interest prevalent the trial Court was right in granting interest at 6% after the decree.
16. The receipt of the sum of Rs.3,50,000/- is admitted by the defendants and the suit was decreed for refund of advance on 28.02.2011. Aggrieved by which the plaintiff has come forward with this appeal. It should be noted that the defendants have not come forward to repay the advance amount received by them, even though the relief for specific performance sought by plaintiff was negatived. If only the respondents had been fair, to show their bona fides they should have atleast deposited the decree amount to the credit of the suit.
17. There is no doubt that though they had benefit of the money. They are bound to repay the same with appropriate interest. The suit is not one for payment of money, to go by the statute and award interest at 6% per annum. In a suit for specific performance the Court is vested with a discretion to do justice. Therefore this Court feels this is a fit case for awarding appropriate interest while directing to refund the advance. While decreeing refund, the trial Court rightly granted interest at 9% per annum from the date of agreement till the date of decree but it choose to reduce the interest to 6% per annum from the date of decree. May be the Trial Court thought that the defendants would be fair and they would repay the money at the earliest point of time. But the defendants have not chosen to take advantage of the judgment of the trial Court and repay the advance amount till date.
18. Therefore I am of the considered opinion that the portion of the decree of the Trial Court granting interest needs modification. It will be in the fitness of things to direct the defendant/respondents to pay the interest of 9% per annum on the advance of Rs.3,50,000/- from the date of the agreement till the date of payment, instead of 9% per annum from the date of agreement till date of decree and at 6% thereafter. In view of the above conclusion the appeal is partly allowed and the judgment and decree of the trial Court refusing the relief of specific performance is confirmed. So far as the refund of advance amount the same is modified as follows:
The plaintiff is entitled to a decree for refund of advance of Rs.3,50,000/- with interest at the rate of 9% per annum from the date of the sale agreement till the date of realization.
19. With the above modification the judgment and decree of the trial Court will stand confirmed. Considering the facts and circumstances I make no order as to costs. The cost ordered by the trial Court against the defendants have to be paid by them. Consequently, the connected miscellaneous petition is closed.
26.07.2017 Index : No Internet: Yes Speaking Order jv To The Principal District Judge, Krishnagiri, R.SUBRAMANIAN,J.
Jv A.S.No.395 of 2011 and M.P.No.1 of 2011 26.07.2017