2011 Supreme(Mad) 432

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 :Decided on : 28-01-2011

In a suit for specific performance of contract, the plaintiff must plead and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. (Section 16(c) of the Specific Relief Act)

Headnote:

FIRST APPEAL - SPECIFIC PERFORMANCE OF CONTRACT - SALE AGREEMENT - EXECUTION OF SALE DEED - READY AND WILLINGNESS TO PERFORM THE CONTRACT - DISCRETIONARY RELIEF - CONDUCT OF THE PARTIES - LIMITATION ACT, ARTICLE 54 - SPECIFIC RELIEF ACT, SECTION 16(C) - INDIAN EVIDENCE ACT, SECTION 92 - SALE AGREEMENT - EXECUTION - INTENTION OF THE PARTIES - ONUS OF PROOF - ORAL AGREEMENT - ADMISSIBILITY - EVIDENCE - BURDEN OF PROOF - SPECIFIC PERFORMANCE - RELIEF - GRANT OR DENIAL - FACTORS TO BE CONSIDERED - DELAY - WAIVER - EQUITABLE RELIEF - DAMAGES - ALTERNATIVE RELIEF - SPECIFIC PERFORMANCE SUIT - PLEADINGS - READINESS AND WILLINGNESS - AVERMENTS - INTERPRETATION - DELAY - RUNNING OF LIMITATION PERIOD - TIME AS ESSENCE OF CONTRACT - INTENTION OF THE PARTIES - UNILATERAL INTENTION - INFERENCE FROM NATURE OF PROPERTY, CONDUCT OF PARTIES, AND SURROUNDING CIRCUMSTANCES - NOTICE TO COMPLETE TRANSACTION - REASONABLE TIME - FACTORS TO BE CONSIDERED - TENDER OF MONEY - NECESSITY - DISCRETIONARY RELIEF - CONDUCT OF THE DEFENDANT - RELEVANCE - FALSE PLEA - LIMITATION - ARTICLE 54 OF THE LIMITATION ACT - APPLICABILITY - THREE-YEAR PERIOD - NOTICE OF REFUSAL OF PERFORMANCE - STARTING POINT OF LIMITATION PERIOD - DISCRETIONARY DECREE OF SPECIFIC PERFORMANCE - ENTITLEMENT.

Fact of the Case:

The plaintiff, a tenant under the defendants, entered into a sale agreement with them for the purchase of the suit properties. The plaintiff paid an advance of Rs.1,50,000/- and the balance sale consideration was fixed at Rs.1,75,000/-. The defendants, due to their monetary crisis, demanded Rs.1,00,000/- from the plaintiff, which was adjusted towards the remaining part of the sale consideration. The plaintiff issued a 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. The defendants replied with a false allegation that the amount of Rs.1,50,000/- received from the plaintiff earlier was only a tenancy-advance amount, denying the receipt of Rs.1,00,000/- on 20.12.2001. Hence, the plaintiff filed 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.

Finding of the Court:

1. Ex.A-1 is a sale agreement and not executed as the security for the amount received, i.e. Rs,1,50,000/-as "Bokkiam" (nghf;fpak;) (usufructuary mortgage). 2. The appellant/plaintiff was always ready and willing to perform his part of the contract. 3. The judgment and decree of the trial Court are not sustainable.

Issues: 1. Whether Ex.A-1 is the sale agreement and not executed as the security for the amount received, i.e. Rs,1,50,000/-as "Bokkiam" (nghf;fpak;) (usufructuary mortgage), is correct ? 2. Whether the trial Court is correct in holding that the appellant/plaintiff was not 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. Section 16(c) of the Specific Relief Act casts a duty upon the plaintiff to show that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. 3. 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. 4. 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.

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.