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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K.K. SASIDHARAN
R. Rajaram & Another
Versus
T.R. Maheswaran
A.S. No.1157 of 1995
Decided On : 13-11-2009
B. SPECIFIC PERFORMANCE - Discretionary remedy for - HELD, Remedy of specific performance is an equitable remedy - In order to obtain Remedy of specific performance is an equitable remedy - In Order to obtain such discretionary relief, plaintiff has to come to the Court with clean hands - Entire facts of the case have to be pleaded - There should be no attempt on the part of the plaintiff to conceal the facts - As a condition precedent for obtaining a decree of specific performance, the plaintiff should comply with all the mandatory conditions as incorporated in the sale agreement. When the sale agreement stipulates a pre-condition so as to enable the plaintiff to obtain a decree of specific performance, the said condition has to be complied with in its letter and spirit. There should be no attempt on the part of the plaintiff to mislead the Court. Whether it be favourable or unfavourable, plaintiff was expected to disclose the entire details of the transaction. The conduct of the plaintiff should be trustworthy. The course of conduct adopted by the plaintiff should be fair and any suppression of material particulars would be treated as unfair, which would dis-entitle him from obtaining the equitable remedy of specific performance.
C. SPECIFIC PERFORMANCE - Readiness and willingness on the part of the plaintiff to perform his part of the contract has to be ascertained from the totality of circumstances. Mere reproduction of the wordings in Section 16(c) of the Specific Relief Act is not enough. It is true that the plaintiff was not expected to maintain liquid cash with him through out the agreement period to discharge the obligation cast on him as per the agreement of sale. However, in cases wherein the very financial capacity of the plaintiff to pay the balance sale consideration was under challenge, he was expected to produce some materials to show his financial position and the availability of funds to honour the commitments made in the agreement of sale.
D. SPECIFIC PERFORMANCE - Duty of court when the issue to be decided relates to the exercise of discretionary and equitable jurisdiction, the terms of contract voluntarily agreed to between the parties had to be respected. The Court cannot rewrite the terms of contract for the parties. Plaintiff was given liberty to file a suit for specific performance subject to the condition of paying the balance sale consideration. Though the agreement provides that deposit has to be made before instituting the suit for specific performance, the deposit must at least be simultaneous with the institution of the suit. Non compliance of the mandatory condition itself dis-entitles the plaintiff from obtaining an equitable remedy of specific performance.
E. SPECIFIC PERFORMANCE ACT, 1963 - SECTION 16 - Bar under - Where there was a specific recital in Ex.A-1 and Ex.A-2 to the effect that for obtaining the relief of specific performance, the plaintiff has to deposit the balance sale consideration before the trial Court along with the suit. The said condition was an essential term of contract. The plaintiff was well aware of the said condition which made him to make a statement in the plaint to the effect that he has applied for lodgment schedule to deposit the amount. The plaintiff has also obtained a challan for depositing the amount as per the Order passed by the trial Court on 27.06.1991. However, the amount was not deposited for reasons best known to the plaintiff. Therefore, he has violated the essential term of contract which would dis-entitle him from obtaining a decree of specific performance. Therefore, the bar, as contained under Section 16 is attracted in the present case.
Result : AS allowed.
K.K Sasidharan, J.
Introduction:
Whether a plaintiff who failed to deposit the balance sale consideration for a period of four years after obtaining lodgment schedule from the trial Court to deposit the amount, which was a pre-condition for instituting a suit for specific performance as per the Agreement entered into between the parties, and made the trial Court to believe that such deposit was in fact made, can be said to be a person who was always ready and willing to perform his part of the contract and entitled for an equitable remedy of specific performance, is the core question to be decided in this first appeal.
2. Challenge in this first appeal is to the Judgment and Decree dated 4. 1995 in O.S. No. 116 of 1991 on the file of the learned Subordinate Judge, Tindivanam, whereby and whereunder a Decree for specific performance was granted in favour of the respondent/plaintiff.
3. The parties to this appeal are hereinafter referred to as plaintiff and Defendants as per their status before the trial Court.
Background facts:
The Plaint:
4. The suit in O.S. No. 116 of 1991 was instituted by the plaintiff against the Defendants praying for a Decree of specific performance on the basis of the sale Agreement dated 26. 1990 or in the alternative, directing the Defendants to refund the advance consideration of Rs.1,60,000/- with interest @ 18% termed as damages.
5. In the plaint in O.S. No. 116 of 1991, plaintiff has inter alia contended thus:
.(a) The property described in the schedule to the plaint absolutely belongs to the defendants. They have decided to sell the property to raise funds for their business. The plaintiff was ready and willing to purchase the property and accordingly, after negotiation, defendants offered to sell the property for a sum of Rs.1,75,000/-. The said offer was accepted by the plaintiff and an agreement was entered into on 26. 1990. As per the said agreement, the plaintiff agreed to purchase the suit property for a total consideration of Rs.1,75,000/- and a sum of Rs.1,50,000/-was paid as advance, the receipt of which was duly acknowledged by the defendants. As per the terms and conditions of the agreement, the balance amount of Rs.25,000/-has to be paid within one year and the plaintiff has to get the document executed. It was further stipulated that in case the plaintiff fail to pay the balance sale consideration and get the conveyance executed and registered within one year from the date of agreement, plaintiff would lose the advance and in case of failure on the part of the defendants to perform their part of the contract, the plaintiff is at liberty to sue the defendants for specific performance of the agreement after depositing the balance sale consideration and get the conveyance executed and recover possession of the suit property through Court.
(b) Since the defendants were hard pressed for money, a further sum of Rs.10,000/-was paid on 17. 1990 and in token of acceptance of the said amount, the defendants also issued a receipt cum acknowledgment date 17. 1990. In the said receipt also, they have reiterated the terms and conditions of sale. According to the plaintiff, he was ready and willing to perform his part of the contract at all point of time. He was having sufficient funds to pay the balance sale consideration of Rs.15,000/-. Though repeated requests were made to the defendants to receive the balance consideration and to execute the deed of conveyance, they were not prepared for the same. Therefore, plaintiff was constrained to issue notice to the defendants through his lawyer on 4. 1991. The said notice was returned unserved which made the plaintiff to send a telegram on 24. 1991 calling upon the defendants to execute the sale deed after receiving the balance sale consideration. Though the telegram was received by the defendants, there was no follow up action to register the sale deed. The plaintiff was ready and willing to pay the balance consideration of Rs.15,000/-
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