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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S. PALANIVELU
S. Gananatha Perumal
Versus
S. Valliappan
A.S.No.485 of 1999 & CMP.Nos.9892 & 4201 of 2006
Decided on: 09-07-2010
(B)Specific Relief Act, 1963(47 of 1963)-Sec.10, 20-Immovable property-Sale-Agreement-Default-Suit-Specific performance-Delay-Readiness-Mere filing of the suit for specific performance within the period of limitation as provided under the Limitation Act is not enough for the buyer to claim specific performance of an agreement regarding immovable property-The buyer of an immovable property should, immediately on knowing the reluctance or unwillingness of the owner to sell the property, file the suit for specific performance and any delay in this regard would be a factor that would weigh against him.
In order to find out the element of readiness and willingness on his part, there shall be some materials which show that he was conscious enough about his part and whether he was acting to get the sale deed executed positively. If there had been absence of convincing explanation on his part for the delay, he has to be non-suited for the relief of specific performance and he has to face legal consequences for his laches. Even though the delay in filing the suit has been specifically pleaded in the additional written statement of the appellant, the respondent has not rendered any satisfactory explanations for the undue delay. Para 19
(C)Code of Civil Procedure, 1908(5 of 1908)-O.2 R.2-Suit-Filing-Res judicata-Cause of action-Another suit-Bar-When the cause of action for filing a particular suit or claiming a particular relief is available to a party, instead of claiming that relief or filing that suit, if he files a suit for a different or lesser relief, any subsequent suit for the larger relief or different relief on the same cause of action would be barred under O.2 R.2 CPC.
It is apparent that the cause of action for filing the fresh suit was existing even at the time of filing of the earlier suit. Even though the reliefs claimed in both the suits are different, the causes of action for filing of both the suits are identical, that is to say, the issuance of telegraphic notice, on 19.09.1990 and notice dated 20.09.1980. Two statutory requirements as per order 2 Rule 2 CPC that the existence of causes of action for the subsequent suit at the time of filing of the earlier suit and the presence of identical causes of action in both the suits, are very much available in this case. In this case, the legal position enunciated in N.V.Srinivasa Murthy’s case cited supra is applicable. Hence, there is no legal impediment to reach a conclusion that the present suit is barred by the provision Order 2 Rule 2 CPC. I answer this point in affirmative. Para 35
1. This appeal has been preferred by the unsuccessful defendant against the judgment and decree dated 15.04.1998 made in O.S.No.2265 of 1997 on the file of the IV Additional Judge, City Civil Court, Chennai.
2. Thefollowing are the averments in the plaint succinctly stated:
2.1. On 07.07.1980, the defendant entered into a sale agreement with the plaintiff in respect of the property in question for a sum of Rs.4,50,000/-. The defendant agreed to execute the sale deed in favour of the plaintiff after completing all the formalities, besides producing encumbrance certificate for 15 years and to hand over the title deeds. Pursuant to the agreement, a sum of Rs.3,000/-was paid as advance by the plaintiff. While so, in spite of repeated demands, the defendant failed to produce the original title deeds and also patta pertaining to the property in question.
2.2. Under such circumstances, the plaintiff gave a telegram to the defendant calling upon him to produce and deposit all original title deeds, but his efforts went in vain, as a result of which, he filed a suit in O.S.No.6145 of 1980 on the file of the Civil Court Court, Chennai, for a permanent injunction restraining the defendant from selling the property in question and he also obtained interim order of status quo till the disposal of the above-said suit.
2.3. Due to the inaction on the part of the defendant, the plaintiff filed a suit for specific performance of the sale agreement, dated 07.07.1980. There are no laches on the part of the plaintiff. Since the plaintiff had 45 days time after the defendant submitted all the required documents to execute the sale deed, the plaintiff is always ready and willing to perform his obligations. Since the defendant has failed to execute the sale deed, the plaintiff has filed the above-said suit for a direction to the defendant to execute and register the sale deed in favour of the plaintiff or his nominee as per the sale agreement dated 07.07.1980 in respect of the schedule mentioned property.
3. In the written statement filed by the defendant, the allegations are as follows:
3.1. Theplaintiff entered into an agreement with the defendant for the sale of the suit property in question. However, since he was not interested to execute the sale deed, as per the agreement agreed upon between the parties, the defendant caused a notice dated 28.08.1990. However, the said notice was returned back to the defendant's counsel and thereafter, the defendant sent a demand draft for Rs.3,001/- by way of refunding the advance paid by the plaintiff. The same was also returned with a remark that the party is out of station and the arrival date is not known, so also, in the case of Certificate of posting. Under such circumstances, the plaintiff has committed breach of contract in not pursuing the agreement agreed upon between the parties and therefore, the plaintiff is not entitled for the relief of specific performance of the suit agreement except the refund of Rs.3,001/- being the advance paid to the defendant.
4. In the additional written statement, the following are the allegations:-
4.1. The suit for specific performance is belated one and the delay in filing the suit is fatal to the suit and that it is inequitable for the plaintiff to seek specific performance, after a considerable delay of 14 months after knowing the stand taken by the defendant and that in the suit agreement itself, an alternative provision for damages is provided for and the plaintiff is not entitled to sue for specific performance, particularly, when he has himself committed default in the performance of his own obligations under the agreement.
5. After analysing the pleadings and evidence on record, the learned IV Additional Judge, City Civil Court, Chennai, decreed the suit directing specific performance of contract by execution of sale deed by the defendant on his depositing of Rs.4,46,999/-by the plaintiff, in default, the sale deed be executed by the Court. Aggri
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