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2011 Supreme(Mad) 458
2011 (1) MWN(Civil) 819
High Court of Judicature at Madras
R. MALA
A.N. Arunachalam
Versus
T. Sivaprakasam & Another
A.S.No.270 of 2007 & M.P.No.1 of 2007
Decided on : 28-01-2011
For the Appellant:N. Manokaran, Advocate.
For the Respondents:K. Ravichandra Baabu, Advocate.
Headnote:
SALE AGREEMENT - SPECIFIC PERFORMANCE - SECTION 16 OF THE SPECIFIC RELIEF ACT - READINESS AND WILLINGNESS TO PERFORM THE CONTRACT - CONDUCT OF THE PARTIES - DISCRETIONARY RELIEF - LIMITATION ACT, ARTICLE 54.
Fact of the Case:
The appellant/plaintiff filed a suit for specific performance of a sale agreement, Ex.A-1, dated 16.7.2001, entered into between him and the respondents/defendants for the sale of certain properties. The respondents/defendants raised a defence that though the document has been named and styled as a sale agreement, there was no intention of the parties to execute the sale deed and the intention is only "Bookiam" (TAMIL) usufructuary mortgage. The appellant/plaintiff was permitted to reside there without paying any interest. The trial Court, after considering the oral and documentary evidence, came to the conclusion that Ex.A-1 is a sale agreement. However, the trial Court dismissed the suit, stating that the appellant/plaintiff was not always ready and willing to perform his part of the contract.
Finding of the Court:
The First Appellate Court held that Ex.A-1 is a sale agreement and the appellant/plaintiff was always ready and willing to perform his part of the contract and the respondents/defendants neither disputed the readiness and willingness, nor disputed the financial status of the appellant/plaintiff; but however, the appellant/plaintiff proved that he was always ready and willing to perform his part of the contract and therefore, the appellant/plaintiff is entitled to the discretionary decree of specific performance. The trial Court's judgment and decree are not sustainable and liable to be set aside.
Issues: 1. Whether Ex.A-1 is a sale agreement or a "Bokkiam" (TAMIL) usufructuary mortgage? 2. Whether the appellant/plaintiff was always ready and willing to perform his part of the contract? 3. Whether the judgment and decree of the trial Court are sustainable? 4. To what relief the plaintiff is entitled to?
Ratio Decidendi: 1. The onus of proving that the sale agreement was executed only with regard to some money transaction and that there was no intention of selling the suit property, is upon the defendant who made the contention, once the execution of sale agreement, is admitted. 2. Readiness and willingness could not be treated as a straight-jacket formula and that had to be determined from the entirety of facts and circumstances relevant to the intention and the conduct of the party. 3. The conduct of the defendant cannot be ignored while weighing the question of exercise of discretion for decreeing or denying a decree for specific performance. 4. In a suit for specific performance, the plaintiff must allege and prove a continuous "readiness and willingness" to perform the contract on his part from the date of the contract. The onus is on the plaintiff.
Final Decision: The First Appeal is allowed, with costs. The judgment and decree of the trial Court are set aside. The suit is decreed as prayed for in the plaint, with costs. Two months' time is granted for execution of Ex.A-1 sale agreement by the respondents/defendants. The Miscellaneous Petition is closed.
1. The First Appeal has been filed against the judgment and decree dated 19.12.2006 in O.S.No.16 of 2003, on the file of the Additional District Court/Fast Track Court No.IV, Bhavani, Erode District.
2. The averments in the plaint are as follows: (a) The plaintiff is the tenant under the defendants in the suit properties for the past six years. The rent paid finally per month is Rs.1,100/-. The defendants are the owners of the suit properties. The defendants, due to their monetary crisis, entered into a sale agreement on 1.9.1997 with one R.Rangasamy Mudaliar, and the sale price was fixed at Rs.2 lakhs, and the defendants received Rs.1,50,000/- as advance from the said R.Rangasamy Mudaliar. (b) The said Rangasamy Mudaliar died, due to which, his son Madheswaran could not execute the sale agreement. The said Madheswaran demanded the advance amount of Rs.1,50,000/- from the defendants, and hence, the defendants approached the plaintiff-tenant for purchase of the properties. Therefore, the plaintiff and the defendants entered into sale agreement on 16.7.2001 and the sale price fixed was Rs.4,25,000/- and advance of Rs.1,50,000/- was paid and this amount of Rs.1,50,000/- was paid back to the said Madheswaran whose father earlier executed the sale agreement with the defendants. (c) The sale agreement between the plaintiff and the defendants, was duly executed and the previous sale agreement-holder Madheswaran was one of the attestors. The time stipulated for execution of sale deed was six months. Time is not the essence of the contract. The plaintiff was always ready and willing to perform his part of the contract by paying the balance amount and get the sale deed executed. (d) The defendants represented that they were in dire need of money and hence they demanded Rs.1,00,000/- from the plaintiff, which could be adjusted towards the remaining part of sale consideration. Therefore, the plaintiff advanced Rs.1,00,000/- on 20.12.2001, for which, the first defendant issued a cheque without date bearing Cheque No.86697 drawn on Bhavani Koodal Urban Bank Ltd., Bhavani, in favour of the plaintiff, which was promised to be adjusted towards the remaining part of sale consideration. Thus, it could be noticed that the totally, the plaintiff paid Rs,2,50,000/- (Rs.1,50,000 + 1,00,000) to the defendants. Therefore, the balance sale consideration is Rs.1,75,000/- The plaintiff was ready to perform his part of contract with the balance sale consideration. (e) Suddenly, the plaintiff received a legal notice dated 30.1.2002 stating that one P.Shanmugasundaram, son of Palaniappa Mudaliar, obtained a money decree in O.S.No.28 of 1998, on the file of the Sub-Court, Bhavani, on which, the decree amount has to be discharged for sale. The defendants did not disclose the encumbrance of the suit properties, to the plaintiff. The defendants suppressed the encumbrance of the debt and the defendants were advised by the plaintiff to clear the encumbrance and execute the sale deed. (f) As the defendants did not care to clear the encumbrance, the plaintiff issued legal notice to the defendants to clear the encumbrance incurred in O.S.No.28 of 1998 and execute the sale deed as per the earlier agreement of sale, dated 16.7.2001. The defendants issued reply notice dated 22.3.2002 with false allegation that the amount of Rs.1,50,000/- received from the plaintiff earlier, was only a tenancy-advance amount, by denying the receipt of Rs.1,00,000/- on 20.12.2001. Hence, the plaintiff was constrained to file the present suit for specific performance of contract, to direct the defendants to execute the sale deed by receiving the balance sale consideration, and free from any sort of encumbrance and for costs.
3. The sum and substance of the written statement filed by the defendants, are as follows: (a) The suit is not maintainable. The plaintiff has been occupying the suit premises as a tenant under the defendants from July 1996 to 15.7.2001 and the rent is Rs.1
