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2010 Supreme(Mad) 1819
Madurai Bench of Madras High Court
THE HONOURABLE MR. JUSTICE R.S.RAMANATHAN
Kochukunjan Pillai
Versus
Sathiadhas
C.R.P(PD)(MD)No.1155 of 2009 & M.P(MD)No.1 2009
Decided on : 20-04-2010
For the Petitioners:A. Arumugam for M. Ajmalkhan, Advocates.
For the Respondent:K. Sreekumaran Nair, Advocate.
The main legal point established in the judgment is the significance of continuous readiness and willingness to perform the contract in specific performance cases, and the consequences of electing remedies in case of breach.
Headnote:
specific performance - agreement of sale - Specific Relief Act, Section 22 - 2003(4) LW 797, 96 LW 560, 2001(3) MLJ 322, AIR 1982 SC 818, AIR 1968 SC 1355, AIR 1989 SC 606, AIR 1965 Mad 85 - The court discussed the provisions of Section 22 of the Specific Relief Act and the legal principles established by various judgments related to specific performance. The court emphasized the importance of continuous readiness and willingness to perform the contract and the consequences of electing remedies in case of breach.
Fact of the Case:
The plaintiff filed a suit for recovery of advance amount paid for an agreement of sale, while the defendant contended readiness to perform the contract. The plaintiff later sought to amend the prayer for specific performance, which was allowed by the lower court. The revision petitioner challenged the amendment.
Finding of the Court:
The court held that the plaintiff's claim for specific performance was not admissible due to the election of remedies and the relief sought for return of advance amount. The lower court's order allowing the amendment was set aside, and the civil revision petition was allowed.
Issues: The issues revolved around the admissibility of the amendment to include the prayer for specific performance in a suit initially filed for the return of advance amount, and the legal principles related to continuous readiness and willingness to perform the contract.
Ratio Decidendi: The court emphasized the legal principles established by various judgments related to specific performance, including the importance of continuous readiness and willingness to perform the contract and the consequences of electing remedies in case of breach.
Final Decision: The court set aside the lower court's order allowing the amendment and allowed the civil revision petition. No costs were awarded.
1. Heard both sides
2. The defendant in O.S.No.12 of 2006, on the file of the District Court, Nagercoil, is the revision petitioner herein.
.3. The respondent/plaintiff filed the suit for recovery of Rs.6,30,200/-from the revision petitioner, on the basis of the agreement of sale entered into between the parties. It is the specific case of the respondent/plaintiff that the respondent and the revision petitioner entered into an agreement of sale for a total consideration of R.36,36,875/- at the rate of Rs.57/-per Cent on 010. 20005 and the revision petitioner received a sum of Rs.6,00,000/-from the respondent and agreed to execute a sale deed in favour of the respondent/plaintiff. In the agreement of sale, the revision petitioner undertook to pay all the debts and all encumbrance in respect of the suit property and agreed to convey the absolute title and possession to the respondent/plaintiff on or before 15.01.2006 free from all encumbrances. But the revision petitioner/defendant did not clear the encumbrance and was also not ready to execute the sale deed free from all encumbrances to the respondent/plaintiff. The respondent/plaintiff was ready and willing to perform his part of contract provided the revision petitioner conveyed free and absolute right over the possession to the plaintiff and as the revision petitioner/defendant was delaying the matter and was not able to perform his part of contract, the plaintiff issued notice, dated 09.01.2006 to the defendant and the revision petitioner/defendant sent a reply notice, dated 20.01.2006 and re-joinder was also sent by the revision petitioner/defendant on 31.01.2006. As the revision petitioner/defendant was not having free and impeachable right over the possession of the suit property and is having defective title, the plaintiff filed a suit for recovery of Rs.6 lakhs being the advance amount paid with interest and claimed Rs.6,30,200/-.
4. The revision petitioner filed a statement denying the allegations and also contended that he was ready and willing to perform his part of contract. It is the plaintiff, who was not prepared to pay the balance amount and also stated that the property is free from Court attachment and there is no encumbrance over the property. Thereafter, the plaintiff filed I.A.No.942 of 2008 for the amendment of the plaint stating that as per the written statement, the defendant has cleared all the dues payable to the Bank and the property is free from all encumbrances and therefore, the plaintiff is entitled to get the sale deed executed in his favour by the defendant on the payment of balance sale consideration and he is ready and willing to pay the balance sale consideration and get the sale deed executed in his favour and for adding the prayer of decree for specific performance of agreement of sale, dated 010. 2005 for the the sale consideration of Rs.36,36,875/-filed the aforesaid amendment application to make necessary amendment in the plaint as well as in the prayer and that was objected by the revision petitioner. The lower Court allowed the application holding that the amendment does not bring any change in the basic character or introducing a new cause of action. Further, the amendment sought for is also not barred by limitation and no prejudice or injustice will be caused to the revision petitioner/defendant. Aggrieved by the same, this civil revision petition is filed by the revision petitioner/defendant.
5. Mr.A.Arumugam, the learned counsel appearing for the revision petitioner submitted that in a suit for specific performance, the party must be ever willing and ready to perform his part of contract and in this case, the party namely the plaintiff has repudiated the contract on the ground that the revision petitioner was not in a position to convey the clear title free from all encumbrances and was satisfied with the return of the advance amount and hence, it is not open to him to file the amendment petition praying for the rel
