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2012 Supreme(Mad) 1086
High Court of Judicature at Madras
THE HONOURABLE MRS. JUSTICE R. BANUMATHI & THE HONOURABLE MRS. JUSTICE S. VIMALA
M. Gouriammal
Versus
Soundaraj & Others
A.S.NO.243 OF 2005 AND C.M.P.NO.3980 OF 2005
Decided On : 29-02-2012
For the Appellant :S.V. Jayaraman, Senior Counsel for N. Maninarayanan, Advocate.
For the Respondents:Ms. P.T. Asha, Advocate.
The plaintiff must prove readiness and willingness to perform her part of the contract as a condition precedent for obtaining the relief of specific performance.
Headnote:
Specific Performance - Sale Agreement - Section 16(c) - Section 74 of the Contract Act - [LAND ACQUISITION ACT, 1894, Section 4(1)] - The court held that the plaintiff failed to prove readiness and willingness to perform her part of the contract within the stipulated time, and thus was not entitled to the relief of decree for specific performance. The court also ruled that the defendants were not entitled to forfeit the entire advance amount and directed them to refund the advance amount with interest.
Fact of the Case:
The plaintiff filed a suit for specific performance of a sale agreement after the defendants failed to execute the sale deed. The defendants contended that the plaintiff was not ready and willing to perform her part of the contract and that the time stipulated for performance was mandatory.
Finding of the Court:
The court found that the plaintiff failed to prove readiness and willingness to perform her part of the contract within the stipulated time and was not entitled to the relief of decree for specific performance. The court also ruled that the defendants were not entitled to forfeit the entire advance amount and directed them to refund the advance amount with interest.
Issues: 1. Plaintiff's readiness and willingness to perform her part of the contract within the stipulated time. 2. Entitlement of the plaintiff to the discretionary relief of specific performance. 3. Forfeiture of the advance amount by the defendants.
Ratio Decidendi: The plaintiff must prove readiness and willingness to perform her part of the contract as a condition precedent for obtaining the relief of specific performance. The court also applied Section 74 of the Contract Act to determine the entitlement to forfeit the advance amount.
Final Decision: The plaintiff's suit for specific performance was dismissed, and the defendants were directed to refund the advance amount with interest.
R. BANUMATHI, J.
Challenge in this appeal is the judgment and decree dated 19.1.2004 made in O.S.No.314 of 2004 in and by which Additional District and Sessions Judge Fast Track Court No.1, Coimbatore dismissed the appellant/plaintiff's suit for specific performance.
2. Defendants are the owners of the property measuring an extent of 1.45 acres in S.F.No.11, Krishnarayapuram village, Coimbatore Taluk. The 1st defendant is the father of defendants 2 and 3. Defendants 1 to 3 entered into an agreement of sale (Ex.A.1) with the plaintiff on 14.4.1999 agreeing to sell the suit property at the price of Rs.12,00,000/- per acre i.e., for a total sale consideration of Rs.17,40,000/-. On the date of agreement of sale, the 1st defendant has received an advance of Rs.4,00,000/-, which is incorporated in Ex.A.1.
3. Case of plaintiff is that after entering into sale agreement, the 1st defendant has disclosed that there was land acquisition proceedings in respect of the suit property and challenging the same, the 1st defendant has filed writ petition before the Chennai High Court, the plaintiff was always ready and willing to purchase the suit property and that even after receiving their written consent, defendants have not come forward to execute the sale deed in favour of the plaintiff and the 1st defendant has requested the plaintiff to wait till the court proceedings are over. Further case of plaintiff is that the defendants were evading to execute the sale deed on the pretext of the land acquisition proceedings and on the ground of pendency of case before the High Court, Chennai. The plaintiff believed the words of 1st defendant and waited for disposal of the Court case for completing the contract. But the defendant had issued Ex.B.7 notice (5.9.2002) disclosing the true facts. According to the plaintiff, she was always ready and willing to purchase the suit property, but only the defendants have evaded on the pretext of the court proceedings. Alleging that the defendants have been evading to perform their part of the contract and that the plaintiff was always ready and willing to perform her part of contract, the plaintiff has filed the suit for specific performance.
4. Resisting the suit, the 1st defendant has filed elaborate written statement contending that the plaintiff was never ready and willing to perform her part of the contract. The 1st defendant has referred to the earlier agreements of sale (6.2.1998 and 19.3.1999) entered by the 1st defendant at the instance of plaintiff's husband Marudhachalam, who is doing business in Real Estate. Plaintiff also executed Ex.B.4 -letter dated 19.3.1999 agreeing to take care of the acquisition proceedings at her risk and responsibility. Believing the representation of the plaintiff, the defendant signed and executed an agreement dated 19.3.1999. At the instance of plaintiff's husband, Marudhachalam and S.Lakshmanan, the 1st defendant had also executed a sale deed for 72 cents in the name of S.Sivadoss, the brother of S.Lakshmanan on 5.4.1999. After the sale deed, the 1st defendant had executed a fresh agreement dated 14.4.1999 in the name of plaintiff agreeing to sell 1.45 acres at the rate of Rs.12 lahs per acre. The plaintiff had also executed a fresh Varthamana letter Ex.B.6 dated 14.4.1999. The defendants received the sum of Rs.4,00,000/- only by way of earnest money and subject to the condition that the same would be forfeited in the event of default on the part of the plaintiff. The plaintiff was aware of the land acquisition proceedings even prior to the agreement i.e., 14.4.1999, which is revealed by the Varthamana letter Ex.B.4 dated 19.3.1999. The plaintiff was never ready and willing to perform her part of the contract nor taken care of the land acquisition proceedings. According to the defendants, the land acquisition proceedings were quashed by the High Court on 2.4.2001 . According to the defendants, six months time stipulated in the agreement was mandatory and es
