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2011 Supreme(Mad) 946
High Court of Judicature at Madras
R. MALA, J.
A. Kaleelur Rahman represented by his Power Agent A. Abdul Hameed
Versus
A. Barkath & Another
Appeal Suit No.400 of 2008 & M.P.No.1 of 2008
Decided on : 23-02-2011
For the Appellant:H. Mohammed Farook, Advocate.
For the Respondents: R1:R. Subramanian, Advocate, R2: Served.
The plaintiff's readiness and willingness to perform the contract within the stipulated time is crucial for specific performance. Non-performance leading to financial burden on the defendant may result in dismissal of the suit for specific performance.
Headnote:
Specific Performance - Sale Agreement - Sections 13(1)(b) and 20 of Specific Relief Act - The appellant/plaintiff is not entitled to equitable relief of specific performance. He is entitled to get refund of an amount of Rs.3,50,000/- with interest at the rate of 9% from the date of filing of the suit till the date of decree and thereafter, 6% till the date of realisation
Fact of the Case:
The plaintiff entered into a sale agreement with the defendant for a property. The plaintiff paid an advance amount and sought specific performance. The defendant alleged non-performance by the plaintiff and sold the property to a third party.
Finding of the Court:
The court found that the plaintiff was not ready and willing to perform his part of the contract within the stipulated time. The court dismissed the suit for specific performance but granted the plaintiff a refund of the advance amount with interest.
Issues: The issues included whether the plaintiff was ready and willing to perform his part of the contract, whether he was entitled to compensation, and the sustainability of the trial court's judgment and decree.
Ratio Decidendi: The court held that the plaintiff failed to prove readiness and willingness to perform the contract within the stipulated time. The court also considered the defendant's financial burden due to the plaintiff's alleged non-performance. Based on these findings, the court dismissed the suit for specific performance but granted a refund of the advance amount with interest.
Final Decision: The suit for specific performance was dismissed, but the plaintiff was entitled to a refund of the advance amount with interest.
1. This First Appeal (Appeal Suit) arises out of the judgment and decree dated 25.09.2007 made in O.S.No. 352 of 2005 on the file of the Additional District Court, Fast Track Court No.1, Chengalpattu.
2. The averments made in the plaint are as follows:
(i) The first defendant's husband, met the plaintiff in June 2003 and offered to sell his wife's property of 1.07 acres in Survey No.471(part) in Mangadu Village for the purpose of meeting the expenses of completing the construction of his "Rahman Kalyana Mandapam" in Balaji Nagar, Pattur. After negotiation, the plaintiff has entered into sale agreement with the first defendant on 08.07.2003 and fixed the sale consideration for Rs.8,50,000/- and he paid an advance amount of Rs.2,00,000/- to the first defendant on 08.07.2003 at the time of execution of the said sale agreement and also six months time is granted for execution of sale deed.
(ii) The plaintiff paid Rs.1,00,000/- on 11.08.2003 and paid Rs.50,000/- on 25.08.2003 and the same were acknowledged by the first defendant by making endorsements in the said sale agreement.
(iii) In the month of December 2003, when the plaintiff expressed his readiness and willingness to pay the entire balance of sale consideration to the first defendant, at the time, the first defendant said that there was some typographical error found in the title deed in respect of the survey number relating to the suit property and that should be rectified before the execution of the sale deed in favour of the plaintiff.
(iv) On 10.01.2004, when the first defendant and her husband demanded a further advance of Rs.1,40,000/-, the plaintiff agreed to pay the same on condition that the possession of the suit property should be given to him for his cultivation in part performance of the contract.
(v) On 12.01.2004, in the presence of the first defendant's brothers Shoukat Ali and Mr.Jaffarullah, the possession of the suit property was handed over to the plaintiff and in turn, he paid a sum of Rs.1,40,000/- to the first defendant's husband on 13.01.2004 in the presence of the first defendant's brother-in-laws Abdul Rahman and Mohamed Hasan. After the said payment, the first defendant's husband represented that he will get the signature from his wife, acknowledging the receipt of Rs.1,40,000/- and for delivery of possession.
(vi) The first defendant and her husband had cunningly going on dodging and delaying to return back the original agreement to the plaintiff, with the endorsement of receipt of Rs.1,40,000/- and delivery of possession. The plaintiff has been placed in possession in part performance of the contract on 12.01.2004 and the plaintiff was always ready and willing to perform his part of contract. In the meantime, the plaintiff's advocate wanted to verify the title deed, patta and the extract of the land register. So the plaintiff requested the first defendant and her husband to furnish all those papers for verification. But they are dodging for the same.
(vii) The plaintiff has issued a notice on 15.09.2005 to the first defendant. He received an evasive reply dated 30.09.2005. So he was forced to sent a rejoinder dated 26.10.2005. Since some typographical errors occurred in the said rejoinder, a corrigendum letter dated 12.11.2005 was issued to the first and second defendant.
(viii) Subsequent to the sale deed dated 02.12.1971, the S.No.471 was subdivided and new subdivided S.No.471/5 was given to the property agreed to be sold.
(ix) Originally, one Palanisamy Pillai is the owner of the entire S.No.471 consisting of 6.07 acres, which was subdivided into S.Nos.471/1, 471/2, 471/3, 471/4, 471/5 and 471/6.
(x) There was no privity of contract between the second defendant and the plaintiff. The second defendant is added as a party to the suit for directing him to execute necessary rectification deed. The plaintiff is, without prejudice to the facts, willing to pay again a sum of Rs.1,40,000/- and he is ready to pay a sum of Rs.5,00,000/- tow
