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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE BELLIE & THE HONOURABLE MR. JUSTICE THANIKKACHALAM
R. Velammal - Appellant
Versus
R. Daivasigamani and Others - Respondents
A.S.No.711 of 1985
Decided On : 21 April 1992
SPECIFIC PERFORMANCE - SALE AGREEMENT - CONTINGENT CONTRACT - INTERPRETATION - OPTION TO CONCLUDE SALE DEED - ENCUMBRANCE - ABANDONMENT OF CONTRACT - DELAY IN SENDING REJOINDER - WAIVER - JUDICIAL DISCRETION - SECTION 20, SPECIFIC RELIEF ACT, 1963.
Fact of the Case:
Plaintiffs filed a suit for specific performance of a sale agreement dated 13-7-1980, wherein the defendant agreed to sell her property to the plaintiffs for a sum of Rs. 2,35,000/-. A sum of Rs. 1 lakh was paid as advance on the date of execution of the agreement. The sale transaction was to be completed within one year, but due to a pending suit against the defendant, the period was extended by six months. The defendant received another Rs. 10,000/- for discharging a prior mortgage. The sale agreement included a clause stating that if the defendant was unable to execute the sale deed for the A-Schedule property, she would execute the sale deed for the B-Schedule property by treating the advance amount of Rs. 1 lakh as sale consideration.
Finding of the Court:
The court held that the option to conclude that the sale deed could not be executed with regard to the A-Schedule property was given to the plaintiffs only and not to the defendant. The plaintiffs were willing to purchase the A-Schedule property along with the encumbrance, and the defendant could not refuse to sell the property on the ground of encumbrance. The court also held that the delay in sending the rejoinder by the plaintiffs did not amount to abandonment of the contract, as the first notice itself constituted the basis for the suit. The court further held that the contingent contract pleaded by the defendant was not raised in the written statement or argued before the trial court, and therefore could not be considered by the appellate court. The court also noted that the exercise of discretion in granting or refusing decrees for specific performance under Section 20 of the Specific Relief Act, 1963 should be judicious and not arbitrary or unreasonable.
Issues: 1. Whether the option to conclude that the sale deed could not be executed with regard to the A-Schedule property was given to the plaintiffs or the defendant. 2. Whether the plaintiffs were willing to purchase the A-Schedule property along with the encumbrance. 3. Whether the delay in sending the rejoinder by the plaintiffs amounted to abandonment of the contract. 4. Whether the contingent contract pleaded by the defendant was raised in the written statement or argued before the trial court. 5. Whether the exercise of discretion in granting or refusing decrees for specific performance under Section 20 of the Specific Relief Act, 1963 should be judicious and not arbitrary or unreasonable.
Ratio Decidendi: 1. The court interpreted the sale agreement to hold that the option to conclude that the sale deed could not be executed with regard to the A-Schedule property was given to the plaintiffs only and not to the defendant. 2. The court found that the plaintiffs were willing to purchase the A-Schedule property along with the encumbrance, and therefore the defendant could not refuse to sell the property on the ground of encumbrance. 3. The court held that the delay in sending the rejoinder by the plaintiffs did not amount to abandonment of the contract, as the first notice itself constituted the basis for the suit. 4. The court held that the contingent contract pleaded by the defendant was not raised in the written statement or argued before the trial court, and therefore could not be considered by the appellate court. 5. The court noted that the exercise of discretion in granting or refusing decrees for specific performance under Section 20 of the Specific Relief Act, 1963 should be judicious and not arbitrary or unreasonable.
Final Decision: The court dismissed the appeal and confirmed the judgment and decree of the trial court, which had decreed specific performance of the sale agreement.
THANIKKACHALAM, J.
The defendant is the appellant herein. The first plaintiff is the brother-in-law of the second plaintiff. The third plaintiff is the co-brother of the first plaintiff. The plaintiffs filed O.S. 118 of 1983 for specific performance of the sale agreement dated 13-7-1980. The case of the plaintiffs is as under :- The defendant agreed to sell her property to the plaintiffs under a sale agreement dated 13-7-1980 for a sum of Rs. 2, 35, 000/-. On the date of the execution of the sale agreement a sum of Rs. 1 lakh was paid by way of advance by the plaintiffs to the defendant. Among the plaintiffs the first plaintiff agreed to purchase half of the suit property and plaintiffs 2 and 3 agreed to purchase 1/4th share each in the suit property. In pursuance of the above said agreement possession of the property was handed over to the plaintiffs. According to the sale agreement dated 13-7-1980 the sale transaction should be completed within one year from the date of the agreement. Since a suit filed by one Mehaboob Bivi against the defendant was pending, the sale transaction could not be completed within the period stipulated in the agreement. Hence, the parties agreed to extend the period by another six months for completing the transaction. An endorsement was made to that effect on 11-7-1981, on the sale agreement. The defendant also received another sum of Rs. 10, 000/- for the purpose of discharging a prior mortgage. An endorsement was made in the sale agreement on 15-12-1981 to the effect that the defendant received Rs. 10, 000/- from the plaintiffs. In the sale agreement dated 13-7-1980 there is a clause stating that if the defendant was unable to execute the sale deed with regard to the A-Schedule property, she agreed to execute the sale deed with regard to the B-Schedule property by treating the advance amount of Rs. 1 lakh as sale consideration. The plaintiffs were ready and willing to perform their part of the contract, but the defendant refused to execute the sale deed on the ground that the suit filed by the said Mahaboob Bivi is still pending. Thereafter; the plaintiffs sent a notice dated 10-1-1982 calling upon the defendant to execute the sale deed after receiving the balance of sale consideration, since the defendant refused to execute the sale deed, the plaintiffs came forward with this suit.
2. The case of the defendant is as under :-
The defendant executed the sale agreement in favour of the plaintiffs for the purpose of obtaining money to perform the marriage of her daughter. The fact that Mehaboob Bivi filed the suit O. S. No. 20 of 1981 against the defendant was already known to the plaintiffs. The possession was not handed over to the plaintiffs as alleged. Since the said Mehaboob Bivi filed the above suit with regard to the A-Schedule property, the defendant was not in a position to execute the sale deed in favour of the plaintiffs. The said Mehaboob Bivi filed an appeal before the High Court and obtained an order of interim injunction restraining the defendant from interfering with her possession and enjoyment of the suit property. Therefore, according to the defendant she was unable to perform her part of the contract. There was a Panchayat in which the plaintiffs agreed to take back their advance amount paid to the defendant. The B-Schedule property was not agreed to be sold to the plaintiffs. It was shown only as security for the advance amount received by the defendant. The defendant obtained the amount from the plaintiff only as a loan and the amount was not received as advance for the sale of the suit properties. Since the defendant was unable to execute the sale deed without encumbrance, the sale agreement has become infructuous. Therefore, the suit is liable to be dismissed.
3. The plaintiffs filed seven documents. The defendant filed four documents. The first plaintiff examined himself as PW 1. The husband of the defendant examined himself as DW 1. One Govindasamy was examined as
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