This appeal has been filed by the defendants 1 to 3 in OS.No.280 of 1998, against the judgment and decree, dated 05.06.2003 passed by the Sub Judge, Kovilpatti.
2. The suit in O.S.No.280 of 1998 had been filed by the first respondent in this appeal, seeking specific performance of the agreement of sale dated 19.02.1996 entered into between the first respondent and the father of the present appellants. The subject matter of the suit is land and building and three commercial shops bearing door Nos.16B, 16C and 17M in Mathan Kovil Street, Old ward No.17, New ward No.19, Kovilpatti.
3. The suit has been filed by Thiruneelapandian the first respondent in his capacity as the plaintiff, for specific performance of the agreement of sale entered into between him and one Late Ramasamy Naicker. The suit had been instituted against the legal heirs of Ramasamy Naicker, namely, his sons Subbiah, Kandasamy and Balakrishnan as the first, second and third defendants and his daughters namely, Baby Ammal and Rukmani Ammal as the fourth and fifth defendants.
4. According to the plaintiff, an agreement of sale was entered into between him and Late Ramasamy Naicker on 19.02.1996 for purchase and sale of land and building and three commercial shops in Mathan Kovil Street, Kovilpatti for a total consideration of Rs.3,45,000/- (Rupees Three Lakhs and Forty Five Thousand only) and at the time of the agreement, an advance of Rs.50,000/- (Rupees Fifty Thousand only) had been paid. In the sale agreement, the period fixed for performance was one year, namely, on or before 19.02.1997. The plaintiff stated that he was ready and willing to perform his part of the agreement. On the very next day, on 20.02.1996, Ramasamy Naicker demanded an additional advance of Rs.1 lakh. The plaintiff agreed to pay the same and asked Ramasamy Naicker to come to the Sub Registrar Office on 21.02.1996. It has been stated that though the plaintiff was waiting in Sub Registrar Office, Ramasamy Naicker did not come. However, an endorsement was made on the back page of the agreement with respect to the demand for additional advance but it was not signed by any of the parties. Thereafter, Ramasamy Naicker disappeared. Subsequently, the first, second and third defendants issued an advocate notice on 16.03.1996 and stated that Ramasamy Naicker was a person of unsound mind and taking advantage of that situation, the plaintiff had obtained signatures in blank stamp papers. The plaintiff had replied to the said notice, denying the allegations.
5. It had been further stated in the plaint that the first, second and third defendants had kept Ramasamy Naicker in their custody. The plaintiff gave a petition to the Collector on 28.01.1997 and also marked a copy to the police station. However, Ramasamy Naicker could not be found. Subsequently, the plaintiff filed a suit in OS.No.178 of 1996, on the file of the District Munsif Court, Kovilpatti, seeking permanent injunction, restraining Ramasamy Naicker from alienating the properties to third parties. That suit was still pending on the date of the present suit, against which this appeal has been filed. Subsequently, Ramasamy Naicker died, leaving behind him as his legal representatives, his three sons and two daughters, who have been named as defendants and who have also been impleaded in the other suit in O.S.No.178 of 1996 which was pending on the file of the District Munsif Court, Kovilpatti. Claiming that the defendants as legal representatives are bound by the agreement dated 19.02.1996 and further claiming that he is ready and willing to pay the balance sale consideration, the suit had been filed for the relief of specific performance.
6. The first and second defendants, Subbiah and Kandasamy filed a written statement. In the written statement, they denied the allegations that Ramasamy Naicker had entered into an agreement of sale; that the plaintiff was ready and willing to perform his part of the agreement and that the suit has to be decreed. In fact, they denied the existence of the agreement itself. They stated that Ramasmy Naicker did not have any right or title to enter into an agreement of sale in respect of the suit properties. They further denied that Ramasamy Naicker received an advance of Rs.50,000/- and that he demanded further advance of Rs.1 lakh. It had been stated that the plaintiff had prepared the agreement fraudulently and that the said agreement has to be rejected by the Court. They also denied that Ramasamy Naicker was under their custody.
7. It had been further stated in the written statement that originally the plaintiff filed O.S.No.178 of1996 on the file of the District Munsif Court, Kovilpatti and the defendants had also filed a written statement in the said suit. It had been stated that the suit properties were joint family properties. The properties had been purchased by the grand father viz. Kondusamy Naicker, from the income of the business, which he was running in the name of his son Ramasamy Naicker. It had been further stated that the first, second and third defendants had filed a suit for partition with respect to the suit property against their father in O.S.No.315 of 1994 before the Sub-Court, Thoothukudi, which had been transferred to the Sub- Court, Kovilpatti and renumbered as O.S.No.103 of 1998. It had been further stated that any agreement entered into Ramasamy Naicker would not bind the first and second defendants.
8. The third and fourth defendants did not file any written statement. The fifth defendant filed a written statement, denying the agreement dated 19.02.1996, stated to have been entered into by Ramasamy Naicker in favour of the plaintiff. He had further claimed that the properties are joint family properties. It had been further stated that agreement had been brought fraudulently. The fifth defendant claimed that the suit should be dismissed.
9. During the trial, the plaintiff filed a reply statement, claiming that the suit properties were the self-acquired properties of Ramasamy Naicker and denying that the suit properties were joint family properties. It had been further stated that Ramasamy Naicker had purchased the property by a sale deed dated 26.03.1973.
10. Since the third and fourth defendants did not file a written statement and the fifth defendant did not participate during the trial, they were set exparte.
11. On the basis of the rival pleadings, the Sub Judge, Kovilpatti had framed the following issues and an additional issue for trial:-
1.Whether the plaintiff is entitled for relief of specific performance?
2.To what relief is the plaintiff entitled?
Additional Issue:-
3.Whether the suit property is joint family property??
12. The parties went to trial. On the side of the plaintiff, three witness were examined, namely, the plaintiff as PW1 and two independent witnesses namely Rathinasamy and Balasubramanian as PW2 and PW3. On the side of the defendants, the first defendant, Subbiah examined himself as DW.1 On the side of the plaintiff, the Exhibits A1 to A9 were marked. Ex.A1 dated 19.02.1996 is the agreement of sale. Ex.A2 dated 24.03.1973 is the sale deed in the name of Ramasamy Naicker and Ex.A3 is the receipt of payment of Municipal Tax. Ex.A4 is the advocate notice dated 14.03.1996 and Ex.A5 dated 19.03.1996 is the reply notice and Ex.A6 dated 19.03.1996 is another notice sent by the plaintiff. Ex.A8 is the complaint given by the plaintiff to the police station and Ex.A9 is the reply issued by the first defendant. On the side of the defendants, Ex.B1 to B5 were marked. Ex.B1 is the certified copy of the Judgment in O.S.No.178 of 1999. Ex.B2 and Ex.B3 are the certified copies of the sale deeds dated 18.06.1954 and 30.7.1959. Ex.B4 is the copy of the paper publication in Dinamalar, dated 03.11.1995 and Ex.B5 dated 03.05.1994 is the copy of the notice sent by the first and second defendants.
13. On consideration of the oral and documentary evidence, the learned Sub Judge found that even prior to the institution of the suit, Ramasamy Naicker. He had sold a portion of the property to one Mohan. The learned Judge also found that Ex.A9 advocate notice showed that the property is not a joint family property and that the agreement dated 19.02.1996 is true and valid. The learned Judge also found that the plaintiff was ready and willing to pay the balance sale consideration. Finally, the learned Judge, decreed the suit, granting specific performance in favour of the plaintiff. Challenging the said judgment and decree, the first, second and third defendants had filed this appeal.
14. The fourth and fifth defendants had not filed any appeal. Pending the appeal, the first appellant Subbiah who was the first defendant in the suit and who had also given evidence as DW1, died and his legal representatives were brought on record as the fourth and fifth appellants.
15.The main point to be decided in this appeal is whether the agreement dated 19.02.1996 had been validly executed by Ramasamy Naicker in favour of the first respondent Thiruneelapandian and whether the said agreement is binding on the present appellants, who are the sons of the Ramasamy Naicker. It is also to be decided whether the first respondent Thiruneelapandian was ready and willing to perform his part of the agreement. It is to be remembered that the trial Court had not framed any issue with respect to readiness and willingness but had given a finding for the same in favour of the first respondent herein. It is also to be determined in this appeal whether the earlier suit instituted by the first respondent in O.S.No.178 of 1996 before the District Munsif Court, Kovilpatti, would act as a bar to institute the present suit in O.S.No.280 of 1998 in view of the provisions under Order 2 Rule 2 C.P.C.
16. The first, second and third defendants namely, Subbiah, Kandasamy and Balakrishnan, are the appellants herein. The suit in O.S.No.280 of 1998 had been instituted against them and their two sisters, namely, Baby Ammal and Rukmani Ammal. The first respondent herein Thirnuneelapandian was the plaintiff in the suit. He instituted the suit, seeking specific performance of an agreement of sale dated 19.02.1996, entered into by him with the father of the appellants and the second and third respondents. The agreement was entered into for purchase and sale of land and building and three commercial shops bearing door Nos.16B, 16C, 17M in Madhankovil Street, old Ward No.17, New Ward No. 19, Kovilpatti.
17. As stated above, this agreement had been entered into by Ramsamy Naicker who had died even prior to the institution of the suit. During the trial, the first respondent, Thiruneelapandian had examined himself as PW.1. He also examined two other witnesses. Rathinasamy and Balasubramanian as PW.2 and PW.3. They had signed as witnesses to the agreement of sale. The agreement of sale dated 19.02.1996 was marked as Ex.A1. This agreement had been prepared in three stamp papers. It contains the signatures of Ramsamy Naicker and Thiruneelapandian in the first, second and third pages. It also contains the signatures of the two witnesses Rathinasamy and Balasubramanian who were examined as PW.1 and PW.2. The age of both Ramsamy Naicker and Thiruneelapandian were not given in the agreement sale. As would transpire later, this was significant. The said agreement of sale, as stated above, was dated 19.02.1996 and had been produced and marked as Ex.A1.
18. During the trial, it had been stated that the properties mentioned therein being the land and building and three commercial shops bearing door Nos.16B, 16C and 17M in Madhankovil Street, old Ward No.17, New Ward No. 19, Kovilpatti, had been agreed to be sold for a total consideration of Rs.3,45,000/- (Rupees Three Lakhs and Forty Five Thousand only) and an advance of Rs.50,000/- (Rupees Fifty Thousand only) had been paid. The time fixed for performance of the agreement of sale was one year. Default clauses were not given in the agreement. On the reverse side of the first page there is an endorsement dated 21.02.1996 for a sum of Rs.1,00,000/- (Rupees One Lakh only), thereby increasing the advance amount to Rs.1,50,000/- (Rupees One Lakh and Fifty Thousand only) and in this endorsement there was a default clause that if Ramasamy Naicker fails to convey the property, then he would be obliged to return back a total sum of Rs.3,00,000/- (Rupees Three Lakhs only), which is twice the advance amount. There is no signature in the said endorsement. It is an admitted fact that the further advance of Rs.1,00,000/- (Rupees One Lakh only) was not paid or received.
19. As a matter of fact, the word 'witnesses' was written in the middle of the endorsement and struck off and it was written at the end. There are no signatures in the column 'witnesses'. This is the agreement, which the first respondent has sought to enforce and for which, the decree had been given. Ex.A4 is the notice issued on 14.03.1996 to the first respondent and issued on behalf of the appellants. On that date, Ramasamy Naicker was alive. In the Advocate notice, it was sated that the property was a joint family property. It had been further stated that Ramasamy Naicker was aged 85 years. It is significant to note that the age of Ramasamy Naicker was not given in Ex.A1. Even on the date of Ex.A1, he was a very old man aged 85 years. It had been further stated in Ex.A4 advocate notice issued on behalf of the present appellants that taking advantage of the old age of Ramasamy Naicker and also his mental incapacities and with an intention to grab this property, the first respondent had forcefully taken away Ramasamy Naicker and forced him to sign in blank stamp papers. The schedule of property was also given in the advocate notice.
20. It is again to be pointed out that it was the appellants herein, who refuted the genuineness of the agreement at the earliest stage within two months from the date of the agreement. Ex.B4 is the paper publication which is dated 1.11.1995, much prior to Ex.A1, agreement, through which the general public were informed that the appellants herein namely, R.Subbiah, R.Kandasamy and R.Balakrishnan had filed a suit for partition and separate possession with respect to the property now under lis against their father Ramasamy Naicker in O.S.No.315 of 1995 on the file of the Sub Court, Thoothukudi. This establishes two facts, namely (1) the appellants herein had claimed much prior to the agreement, that the property which subsequently became the subject matter of the agreement was a joint family property and consequently, Ramasamy Naickar did not have exclusive right to enter into any agreement and (2) the general public was also informed about the pendency of the partition suit and any agreement to purchase the properties from Ramasamy Naicker would be the subject to pre existing litigation in O.S.No.315 of 1995 pending on the file of the Sub Court, Thoothukudi. These facts do not find a place in Ex.A1 agreement. Existence of these facts, particularly challenge ina Court of law to exclusive title of Ramasamy Naicker throws a ring of suspicion over the free Will and consent of Ramasamy Naicker when he is said to have signed in Ex.A1 agreement.
21. It is also to be kept in mind that the first respondent was purchasing a property, over which litigation existed and consequently there was a cloud over the title of Ramasamy Naicker to exclusively convey the property. It is also to be mentioned again that Ramasamy Naicker was a man of aged about 85 years at the time of Ex.A1. He did not think it fit to include any one of the three appellants, who were his sons either as witnesses or as co-signatories to Ex.A1. Ex.B5 is yet another notice issued by an Advocate R.Venkatesh on behalf of the appellants to Ramasamy Naicker and M.Mohan, who had purchased a portion of the property. In the notice it had been stated that the property was a joint family property and Ramasamy Naicker did not have exclusive right to sell the property and that the said M.Mohan can never get absolute title to the property purchased by him without including the appellants herein as vendors. These documents clearly shows that the appellants have been resisting any act done by Ramasamy Naicker to deal with the property. They issued publication in a newspaper in Ex.B4 and they issued a advocate notice in Ex.B5. They also filed a suit seeking partition and separate possession in O.S.No.315 of 1995 on the file of the Sub Court, Thoothukudi. Once they came to know about the Ex.A1 agreement, they immediately issued Ex.A4 notice, claiming that the agreement had been brought about by forcing Ramasamy Naickar to sign in blank papers. They have specifically mentioned that the age of Ramasamy Naickar was 85 years at the time of execution of Ex.A1. They have even claimed that he was mentally unsound. They have further claimed that the first respondent had taken advantage of the physical and mental infirmities of Ramasamy Naicker and had exercised influence to obtain Ex.A.1, agreement. All these facts clearly show that the appellants herein had been exercising their rights as the sons of Ramasamy Naickar and have further exercised their rights and title over the property and have claimed that the property is a joint family property and could not be dealt with exclusively by Ramasamy Naickar.
22. Unfortunately, in the judgment under appeal, while referring to Ex.B5 notice, the Learned Trial Judge stated that the appellants herein had admitted that the property was an individual property of Ramasamy Naickar. However, a careful reading reveals otherwise. They have not admitted so and they have clearly claimed that the property is a joint family property of Ramasamy Naickar, in which he has only an undivided share.
23. Even though the above factors throw a ring of suspicion with respect to Ex.A1, on that single basis, Ex.A1 cannot be rejected by this Court. As stated above, the first respondent had also examined as PW.2 and PW3 the witnesses to Ex.A1. Their evidences will have to be analysed to determine whether Ex.A.1 has been proved in manner acceptable in law. The first respondent who was examined as PW.1 had stated that Ex.A1 was written at 11.00 A.M in his house. It took one hour for preparation of Ex.A1. He further stated that the witnesses were brought by Ramasamy Naickar. He denied that Ex.A1 had been prepared on the previous day. However, with respect to this aspect, PW.3 Balakrishnan stated that the agreement was entered into in the evening at 4.30. P.M. He stated that he alone went with Ramasamy Naickar in an auto. This is in contrast to the evidence of PW.1, who claimed that the agreement was entered into at 11:00 A.M. There is a glaring difference in the time period mentioned. Morning 11.00 A.M. can never be mistaken for evening 4.30 P.M. or vice versa. PW.1 in his cross-examination, stated that he did not knew whether there was a kitchen in the suit property; that he had never entered into the suit property; whether Ramasamy Naicker resided in the suit property; that he never knew who are the tenants in the three shops and whether the earlier purchaser Mohan had led out his shop for rent. All these aspects show that the first respondent had entered into an agreement of sale with an aged person aged 85 years. It is strange that he did not take the assistance of his three grown up sons and had actually excluded the sons. This is all the more strange and improbable since in respect of the property the sons had issued a public notice that it was joint family property and over which they had actually instituted a suit in O.S.No.315 of 1995 before the Sub Court, Thoothukudi. The first respondent had also been described by PW.2, his own witness, as a money lender. This further strengthens the fact that he was a speculative purchaser indulging in purchasing a property which had litigation in built in it and for which there were rival claimants publicly challenging the exclusive title of Ramasamy Naicker. All these aspects show that the agreement is not bonafide and is a speculative agreement.
24. It is also to be seen that on the date of agreement, it is the case of the first respondent that he had paid an advance of Rs.50,000/- (Rupees Fifty Thousand only). There is an endorsement on the reverse of the first page of the agreement, which, quite strangely had not been independently marked as an exhibit during the trial. In the endorsement which has not been signed, there is a default clause stating that Ramasamy Naickar would repay twice the advance amount and the word 'witnesses' had been struck off in the middle and re-written at the end. These factors create a deep doubt over the genuineness of Ex.A1.
25. Even if it is to be assumed that the said agreement is true and valid agreement, this Court has to examine the readiness and willingness of the first respondent to purchase the property. The agreement is dated 19.02.1996. The time fixed for performance was one year namely, on or before 19.02.1997. The total consideration was Rs.3,45,000/- (Rupees Three Lakhs and Forty Five Thousand only). The advance paid was Rs.50,000/- (Rupees Fifty Thousand only). The balance amount payable was Rs.2,95,000/- (Rupees Two Lakhs and Ninety Five Thousand only). There is an endorsement, which has not been marked independently during trial regarding an additional advance amount of Rs.1,00,000/- (Rupees One Lakhs only). It has not been signed by anybody. It has not been signed by any witness. The endorsement is rejected by me.
26. On the date of the agreement, a suit for partition was already pending and a public notice had been issued that the suit for partition was pending. From 19.02.1996, the next event which took place was Ex.A4 dated 14.03.1996 which is a notice issued on behalf of the appellants stating that their father Ramasamy Naickar was an aged man of 85 years and that very specifically, the first respondent had forcefully obtained signatures in blank stamp papers. Under normal circumstances, such a notice should have forced the first respondent to deny the same and to immediately institute a suit seeking specific performance to show his bona fide. However, he had issued a reply in Ex.A5, stating that the property is not a joint family property and that Ramasamy Naicker had right to execute an agreement. But, the fact remains that the issue whether it is a joint family property was under determination in O.S.No.315 of 1995 pending before the Sub Court, Thoothukudi. After March 1996, the first respondent did not file any suit for specific performance.
27. It had been pointed out earlier that the first respondent had filed O.S.No.178 of 1996 before the District Munsif Court, Kovilpatti, seeking the relief of permanent injunction against alienation of the suit property. O.S.No.178 of 1996 had been dismissed as not pressed on 10.10.2001. On that date, the present suit against which the present appeal, has been filed in O.S.NO.288 of 1998 was still pending. O.S.No.178 of 1996 had been filed on 24.06.1996. The cause of action given was on 19.02.1996, the date of agreement of sale and the suit was filed restraining the defendants Ramasamy Naickar from alienating the suit property. The basis of the claim seeking such relief was that the plaintiff there, who is the first respondent herein Thiruneelapandian, had an subsisting agreement of sale with Ramasamy Naicker dated 19.02.1996. In the said suit, the plaintiff did not seek any leave to institute another suit on the same cause of action. He did not file any application seeking to reserve any right to institute a fresh suit seeking further reliefs. The Court did not grant permission to institute another suit on the same cause of action. However without obtaining such permission, Thiruneelapandian filed the present suit on 24.08.1998. On 24.08.1998, the period of one year fixed in the agreement had lapsed. It had lapsed on 19.12.1997 itself. The plaint was returned and represented only on 27.10.1998. The cause of action given was again on 19.02.1996 which is the date of agreement of sale. A second suit on the same cause of action is barred under Order 2 Rule 2 of Civil Procedure Code
28. Order 2 Rule of Civil Procedure Code reads as follows:
2. Suit to include the whole claim.
(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim?Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs?A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation?For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.
It is clear that O.S.No.288 of 1988 was barred by operation of law.
29. Even otherwise, readiness and willingness was not at all explained or proved by the first respondent. He had been put on notice that there was a challenge on the title of the property. He thereafter instituted a suit seeking permanent injunction and had paid the court fee of Rs.3.50. I hold that the said suit had been instituted only speculatively. The larger and actual relief seeking specific performance was not sought at the earliest point of time but sought two years later, without, any permission from a Court of law. The agreement itself is speculative. Readiness and willingness had not been pleaded or proved. The suit itself is also barred under Order 2 Rule 2 of Civil Procedure Code.
30. In 2005 (3) CTC 545-N.V.Srinivasa Murthy, Vs. V.Mariyamma(Dead) by Proposed Legal representatives, the Hon'ble Supreme Court, held that when the suit is barred by law, the plaint itself should be rejected. In the said case, the plaintiff had borrowed money and by way of security, sale deed was registered. The loan was returned and receipt obtained and the original sale deed was also returned back to the plaintiff with promise to execute reconveyance deed. A suit was filed seeking permanent injunction from interference with the possession. Subsequently, another suit was filed for declaration of title. The Honourable Supreme Court held that the order of the Trial Court rejecting the plaint was correct since it was barred under Order 2, rule 2 C.P.C. It had been held in Paragraph No.16 had held as follows:-
?16.The High Court does not seem to be right in rejecting the plaint on the ground that it does not disclose any 'cause of action'. In our view, the trial Court was right in coming to the conclusion that accepting all averments in the plaint, the suit seems to be barred by limitation. On critical examination of the plaint as discussed by us above, the suit seems to be clearly barred on the facts stated in the plaint itself. The suit was framed is prima facie barred by the law of limitation, provisions of Specific Relief Act as also under Order 2, Rule 2 of the Code of Civil Procedure.?
In this case also, the subsequent suit was barred under Order 2 Rule 2 of Code of Civil Procedure since the cause of action of both O.S.No.178 of 1996 and O.S.No.288 of 1998 was the agreement of sale dated 19.02.1996.
31. Readiness and willingness has to be pleaded in accordance with Form 47, Appendix 'A' CPC as prescribed under Order 6 Rule 3 CPC. In 2016 (1) L.W.9 (Padmakumari & Ors. Vs. Dasayyan & Ors), the honourable Supreme Court held in paragraphs 18 and 19 as follows:- ?18.The second important legal contention raised by defendant Nos. 12 to 15 is that the pleadings of the plaintiff is not in conformity with Order 6 Rule 3 CPC, clause 3 of Form No.47 in Appendix 'A', extracted hereinabove. By a careful reading of paragraph 6 of the plaint makes it very clear that the averments as provided under clause 3 is not in stricto sensu complied with by the plaintiff. The same is evidenced from the averments made at paragraph 6 of the plaint which reads thus:
?6.The plaintiff is ready and willing to perform his part of the contract by paying the balance of sale consideration of Rs.63,000/- and take the sale deed in accordance with the provisions of the agreement deed dated 19.04.1992?.
19.Upon a careful reading of the above said paragraph we have to hold that the plaintiff has not complied with the legal requirement which is mandatory as provided under
Section 16(c) of the Specific Relief Act.
Section 16(c) fell for consideration and has been interpreted by this Court in a number of cases, referred to supra, upon which reliance has rightly been placed and the said decisions are applicable to the fact situation in support of defendant Nos.12 to 15 and, therefore, we have to hold that the concurrent finding of fact recorded by the High Court on Issue No.1 is erroneous in law and is liable to be set aside.?
In this case readiness and willingness has been pleaded more as a formality. It has not been proved during evidence.
32. In this case, the first respondent has come to court after a considerable delay. The agreement was dated 19.02.1996. The genuineness of the agreement itself is under cloud of suspicion. The age of the agreement holder was also 85 years. His mental stability was also suspect. The property was under litigation and the exclusive title of the agreement holder was also under challenge. Still, the first appellant thought it fit to enter into the agreement. This court has held that it was speculative in nature. Even otherwise, there was an attempt to seek specific performance by instituting the present suit. The suit was instituted only on 24.08.1998 nearly 2 + years after the date of agreement. The suit papers were also returned and represented only on 27.10.1998 after more than two months. I have already held that the suit is barred under Order 2 Rule 2 CPC in view of the earlier suit in O.S.No.178 of 1996 which was pending on the file of the District Munsif Court, Kovilpatti. With respect to delay, if the delay had not been properly explained, then the delay would go to show that the agreement holder was not ready and not willing to perform his part of the agreement
33. In 1993 (1) MLJ-618 (The Kancheepuram Kamakshi Amman Silk Handloom Weavers' Co-operative Production and Sale Society Limited Vs. Yamuna Bai & Ors.) a Division Bench of this Court in Paragraph Nos.8 and 9 had held as follows:
?9. We have already referred to the notices issued by the society once a year. There is no explanation as to why the society waited for nearly a year after issuing every notice. Once it was made clear to the society that the defendants would not execute a sale deed as claimed by them, they should have proceeded to enforce specific performance. But, they did not do so. They issued a notice again after a year and filed a suit after expiry of a further year. In the absence of any explanation for this inordinate delay in approaching the court, it can be inferred that the society has waived the performanee of contract and abandoned the same. This is a case of unexplained silence and wanton delay and the society cannot escape the consequence of the same by saying that mere delay in seeking specific performance would not disentitle them to get the relief. See:kantilal Sahah Vs. A.C.Devarajuly Reddiar, (1977) 2 M.L.J. 484 Division Bench.
10. Reliance is placed on the judgment in Easwari Amma Vs. M.K.Korah, (1972)1 M.L.J.-218. A Division Bench of this Court has held that mere delay will not preclude the plaintiff for obtaining specific performance if the suit is otherwise in time. It has also been pointed out by the Bench that the delay must not be such from which it may be properly inferred that the plaintiff has abandoned his right or on account of the delay there must have been such a change of circumstances that the grant of specific performance would prejudice the defendant. The Bench has referred to a judgment of the Supreme Court in Satyanarayana Vs. Vellohi Rao, (1965) 2 M.L.J.(S.C.) 145 (1965) 2 An.W.R.(S.C.) 145: (1965) 2 S C.J. 678: A.I.R. 1965 S.C.1405. The Apex Court has pointed out that the grant of relief of specific performance is discretionary though not arbitrary and it should be guided by judicial Principles. Reference has also been made to an earlier judgment of another Bench in Subbarayalu Vs. Tatayya, 1937 M.W.N.1158. In the earlier case, the Division Bench of this Court refused specific performance on two grounds, (1) the plaintiff had given false testimony in the witness box and (2) granting specific performance would be doing injustice to the respondent. In the present case, it is clear from a reading of the evidence of P.Ws.1 and 2 that they are not willing to speak the truth before the Court. It is obvious that they are concealing the facts from the Court and their evidence is false. Even that is sufficient to refuse the relief to the plaintiff. In addition to it, the delay on the part of the plaintiff is not explained at all.?
This Court held that when evidence is unbelievable that itself sufficient to refuse relief to the plaintiff. The Division Bench further held that if there is a delay on the part of the plaintiff which is not explained, then relief cannot be granted.
34. In 2000 (3) M.L.J.106-Indravanthi Vs. Kamala the Principal Bench of this Court, in Paragraph Nos.36 and 37 had held as follows: ?36.With regard to the delay in filing of the suit, the conduct of the respondent leaves much to be desired. It is stated in Ex.A.2 there is an apprehension on the part of the respondent that the appellant might be avoiding the transaction this is supported by the evidence of P.W.1 which is extracted above that the learned Counsel Mr.Nandalal said that the owner is not willing to sell the property. Not only did the respondent not pay the instalments on the stipulated dates but even after coming to know that the appellant might resile from the agreement waits for two years thereafter and has filed the suit on 08.11.1982. No person who is genuinely interested in purchasing a property and is ready with the funds will procrastinate the matter this long. There is no reason given as to why there should be a delay of two years and ten months from the date of the suit notice in filing the suit. A person, who seeks an equitable remedy ought to demonstrate conduct which is fair and above board. As held by this Hon'ble Court in Periabillai Vs. Somayan, (1993) 2 M.L.J. 272 and The Kancheepuram Kamakshi Amman Silk Handloom Weavers Co-Operative Production and Sale Society Ltd. Vs. Yamuna Bai, (1993) 1 M.L.J. 618, this delay itself is sufficient to deny the respondent the relief of specific performance.?
?37.As held in Vasantha Vs. M.senguttuvan, (1997) 2 M.L.J. 576: (1997) 2 L.W.820, referred to above ?even if for a single day, the plaintiff is not ready to take the sale deed specific performance cannot be ordered.? Readiness and willingness should be there continuously from the date of agreement till date of suit. No acceptable reason has been given by the respondent as to why the second instalment and the third instalment were not properly paid on the stipulated dates and why the balance of Rs.60,000 was not offered on 31.01.1980. Time was clearly agreed to be the essence of the contract and the P.W.1 also admits it to be so. The respondent who has failed to prove readiness and willingness cannot claim specific performance.?
Again it was held by this Court that when there was an unexplained delay, seeking to grant specific performance should be refused.
35. In 2007 (1) C.T.C.243 ? G.Ramalingam Vs. T.Vijayarangam the High Court in Paragraph No.12 had held as follows:
?12. To decide the first point it will be useful to refer to the decision relied upon by the learned counsel for the appellant in Smt. Chand Rani Vs. Smt. Kamal Rani, AIR 1993 SC 1742. In Paragraph 24 of the decision it is laid down as follows:
"24. From an analysis of the above case law it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract the Court may infer that it is to be performed in a reasonable time if the conditions are:
1. from the express terms of the contract;
2.from the nature of the property; and
3.from the surrounding circumstances, for example: the object of making the contract."
In the above legal background, if we look at the terms of Ex.A-1-sale agreement it could be seen that there is no clause in the agreement which leads to the inference that the parties wanted to treat time as the essence of the contract. Therefore we have to see whether there are surrounding circumstances like the object of making the contract to come to the conclusion as to whether the time is of the essence of the contract. As rightly contended by the learned counsel for the appellant though it was the case of the defendant before the Trial Court that Ex.A-1-sale agreement was entered into mainly for the purpose of raising finds for performing the marriage of his son, such a plea has not been put forth either in Ex.A-4- reply notice or in the plaint and it is also conceded that in Ex.A-12 also it is not stated so. Though it is stated in Ex.A-4-reply notice that the defendant entered into the agreement for the reason to solve the financial problems within three months, from that it cannot be inferred that the defendant executed the sale agreement only to raise the funds to perform the marriage of his son. From the evidence adduced in the case it could be seen that no compelling circumstances have been established to draw an inference from those circumstances that the parties intended to treat time as the essence of the contract. The facts of the case in Indravathi v.Kamala, AIR 2001 Mad. 127, are totally different and hence the same is not applicable to the facts of the instant case. Similarly in AIR 2003 AP 535 (DB)(referred to supra) considering the specific terms contained in the agreement entered into between the parties to the Suit the Division Bench held that time is the essence of the contract. The terms and conditions contained in the agreement pertaining to that case are totally different from the terms and conditions contained in Ex.A-1 in this case and hence the said decision is not applicable to the facts of this case. Therefore in the considered view of this Court, the Courts below are not right in holding that time is of the essence of the contract in the instant case.?
Again on the aspect of readiness and willingness this Court had held that the readiness and willingness from must be from the date of the agreement till date of execution petition.
36. In 2016 -3 -L.W.52 (M.Johnson Vs. E.Pushpavalli), the High Court of Madras, in Paragraph No.8 and 9 had held as follows: ?8.In a suit for specific performance of an agreement of sale, the following are the necessary factors to be pleaded and proved by the plaintiff.
(a) that there is a valid agreement entered into between the parties in respect of the suit property; (b) that the plaintiff is always ready and willing to perform his part of the contract, whereas the defendant is not doing so within the time prescribed for completion of the transaction; (c) that the suit is filed within the period of limitation; and (d) that there is no inordinate or unexplained delay in filing the suit from the date of expiry of the time prescribed under the agreement for the purpose of completion of contract, even though, the suit is filed within the period of limitation. The inordinate or unexplained delay referred to above, though may not be relevant for the purpose of deciding the question of limitation in filing the suit, however, the same would be very much relevant for the purpose of deciding the issue as to whether the plaintiff is always ready and willing to perform his part of the contract from the date of the agreement till the date of filing the suit.?
9. In this case, it is true that the suit ws filed within the period of limitation. At the same time, the undisputed fact is that six months time was shown as the maximum time limit in the agreement for the parties o perform their respective obligation under the contract and thus, it is evident that time is the essence of the contract. It is not the case of the plaintiff that the defendant by his own conduct altered the terms of the contract to presume that the time was not the essence of contract. On the other hand, it is contended that the defendant was evasive. Even though an attempt is made by the plaintiff to contend that though a draft sale deed was sent in the month of September 2003 to the defendant, it is seen that such contention was not proved before the Courts below by adducing any evidence available to show the readiness and willingness by the plaintiff is the suit notice dated 06.07.2004 which was admittedly sent after one year from the date of the agreement. Therefore, nothing is there on record or evidence to show that the plaintiff' was ready and willing to perform his part of the contract not only within the stipulated period and also thereafter. In fact, the notice sent by the defendant under Ex.A5 on 16.07.2004, denying his liability. Therefore, the very filing of the suit on 15.12.2006 I.e., after 2 + years from the date receipt of the said reply notice would show that the plaintiff' was not at all ready and willing to perform his part of the contract and on the other hand, he slept over the matter beyond the time limit fixed in the agreement. At this juncture, it is to be noted that the readiness and willingness on the part of the plaintiff' in performing his part of the contract would consist of several actions at different point of time commencing from the date of the agreement. One of such action showing such readiness and willingness would be the filing of the suit itself within the shortest time immediately after the denial by the other side. In other words, the bonafide or readiness and willingness must be evident apparently from every action of the plaintiff after the agreement. At the same time, it should not be mistaken as if this Court holds that not filing the suit immediately after the denial even though limitation period has not expired, has to be construed as fatal to the case of the plaintiff. If there is a long time gap between such denial and filing of the suit and same is properly explained with convincing reasons, the Court can always decide such issue based on the facts and circumstances of each case, It is well settled that in a suit for specific performance, the bounden duty of the plaintiff is to prove that he is ready and willing to perform his part of the contract all throughout the proceedings commencing from the date of agreement till the date of the decree and such readiness and willingness must be specifically pleaded and established by adducing evidence and not by making mere pleading the plaintiff has not stated as to why there was a delay of one year in issuing the suit notice and further delay of 2 + years in filing the suit. Therefore, I find that the courts below have rightly rejected the case of the plaintiff and dismissed the suit, more particularly, when the relief of specific performance is the discretionary one. At this juncture, it is relevant to note the decision of this Court reported in 2007-3-L.W. 554 = 2007 (1) CTC 243 (Ramalingam.G Vs. T.Vijayarangam) wherein at paragraph Nos.19 and 20, it has been observed as follows:
19. .... Even assuming that the plaintiff had enough means to complete the sale transaction that itself is not sufficient unless the plaintiff established that he was ready and willing to pay the balance sale consideration and complete the sale transaction right from the date of the execution till the date of decree. As laid down by the Apex Court, the plaintiff has not proved his continuous readiness and willingness at all stages from the date of agreement till the date of hearing of the suit.
20. The learned counsel for the appellant is unable to point out any infirmity in the reasonings of the Courts below in arriving at the finding that the plaintiff has not proved his continuous readiness and willingness at all stages i.e., from the date of agreement till the date of hearing of the Suit as laid down in the case of Thimmaiah and Others v. Ningamma and another 2000(7) SCC 409 and M.Nagar Kesavan Nadar v. Narayanan Nadar Kunjan Nadar, 2000 (10) SCC 244. When the findings of the Courts below are based on evidence available on record and when the findings are not perverse, this Court while exercising power under Section 100 of the Code of Civil Procedure cannot interfere with the concurrent findings of the Courts below. As rightly pointed out by the learned counsel for the respondent no substantial question of law stands raised. Accordingly, since no substantial question of law has arisen for consideration in the above Second Appeal and the same is dismissed. But however considering the relationship of the parties there will be no order as to costs.
Thus, considering all these facts and circumstances, I do not find any question of law, much less substantial one arises for consideration even to entertain this Appeal. Accordingly, the Second Appeal fails and the same is dismissed. No costs.
37. In the instant case, the agreement itself is under a cloud of suspicion. Consequently, further reliefs cannot be granted in favour of the first respondent based on the suspicious agreement.
38. The learned Counsel for the respondents urged this Court to held that the suit is not barred by limitation under Order 2 Rule 2 C.P.C. He relied on the decision of the Hon'ble Supreme Court reported in 2014 (6) CTC 333 ? Rathnavathi and another Vs. Kavita Ganashamdas, wherein the Hon'ble Supreme Court had found that Order 2 Rule 2 would not be attracted when cause of action was founded on different factors. In this case, the cause of action in both suits in O.S.No.178 of 1996 and the present suit, is the agreement of sale which is dated 19.02.1996. The suit seeking injunction from alienation is based on the said agreement and the present suit seeking performance is also based on the same agreement and The cause of action in both the suits is the agreement. Consequently, under Order 2 Rule 2 C.P.C, the subsequent suit is barred.
39. For all the reasons stated above, I am not in agreement with the reasons given by the Learned Sub-Judge, Kovilpatti and I have to reverse the judgement and decree granted by him in O.S.No.280 of 1998 dated 05.06.2003.
40. In the result, this appeal suit is allowed with costs as against the first respondent. The judgment and decree in O.S.No.280 of 1998 dated 05.06.2003 is set aside.
To
1. The Subordinate Judge, Kovilpatti.
2. The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.
.