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2012 Supreme(Mad) 1614
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE R.S. RAMANATHAN
S. Thilagavathi & Others
Versus
V. Subaramaniam (Deceased) & Others
S.A.No.504 of 2011 & M.P.No.1 of 2011
Decided On : 30-03-2012
For the Appellants:Mr. N. Raja Vadivelu, Advocate.
For Respondents:Mr. S.V. Jayaraman, Senior Counsel for Mr. N. Sivakumar, Advocates.
The deceased plaintiff was ready and willing to perform his part of the contract, and the first respondent and her husband failed to act as per the terms of the contract. The Lower Appellate Court erred in denying the relief of specific performance and granting the relief of recovery of possession.
Headnote:
specific performance - agreement of sale - Section 20 of the Specific Relief Act - The deceased plaintiff entered into an agreement of sale with the first respondent and her husband. The deceased plaintiff discharged the mortgage amount and paid Rs.2,30,000/- towards the sale consideration. The first respondent and her husband failed to act as per the terms of the contract. The deceased plaintiff was ready and willing to perform his part of the contract. The Lower Appellate Court erred in denying the relief of specific performance and granting the relief of recovery of possession. The judgment and decree of the Lower Appellate Court were set aside and that of the Trial Court was restored. The Second Appeal was allowed.
Fact of the Case:
The deceased plaintiff entered into an agreement of sale with the first respondent and her husband. The deceased plaintiff discharged the mortgage amount and paid Rs.2,30,000/- towards the sale consideration. The first respondent and her husband failed to act as per the terms of the contract. The deceased plaintiff was ready and willing to perform his part of the contract. The Trial Court decreed the suit for specific performance, but the First Appellate Court reversed the judgment and decree, holding that the deceased plaintiff was not ready and willing to perform his part of the contract and he has not proved the execution of a letter dated 14.12.1990, alleged to have been executed by the defendants 1 and 2. The Second Appeal was filed by the legal representatives of the deceased/plaintiff.
Finding of the Court:
The Trial Court decreed the suit for specific performance, but the First Appellate Court reversed the judgment and decree, holding that the deceased plaintiff was not ready and willing to perform his part of the contract and he has not proved the execution of a letter dated 14.12.1990, alleged to have been executed by the defendants 1 and 2. The Second Appeal was allowed, setting aside the judgment and decree of the Lower Appellate Court and restoring that of the Trial Court.
Issues: The issues included whether the agreement of sale was true and valid, whether the deceased plaintiff was ready and willing to perform his part of the contract, and whether the plaintiff was entitled to the relief of specific performance.
Ratio Decidendi: The deceased plaintiff was ready and willing to perform his part of the contract, and the first respondent and her husband failed to act as per the terms of the contract. The Lower Appellate Court erred in denying the relief of specific performance and granting the relief of recovery of possession. The judgment and decree of the Lower Appellate Court were set aside and that of the Trial Court was restored.
Final Decision: The Second Appeal was allowed, setting aside the judgment and decree of the Lower Appellate Court and restoring that of the Trial Court.
1. The legal representatives of the plaintiff, in O.S.No.7399 of 1996 on the file of the learned XI Assistant Judge, City Civil Court, Chennai, are the appellants herein.
2. Originally, Mr.A.Subramania Chettiar, the husband of the first appellant and father of the appellants 2 to 5, filed the above suit, for specific performance of an agreement of sale, dated 2.8.1990.
3. The Trial Court, decreed the suit in favour of the plaintiff.
4. Being aggrieved by the judgment and decree passed by the Trial Court, the first respondent, filed an Appeal in A.S.No.172 of 2005, on the file of the learned Additional District and Sessions Judge ( Fast Track Court No.III) Chennai.
5. The First Appellate Court, allowed the Appeal, reversing the judgment and decree passed by the Trial Court and dismissed the suit.
6. Aggrieved by the judgment and decree, passed by the First Appellate Court, the legal representatives of the deceased/plaintiff have filed present the Second Appeal.
7. The case of the deceased/plaintiff was that, the suit property, originally belonged to the first respondent/first defendant and the second defendant (since deceased) was her husband. On 2.8.1990, the defendants 1 and 2 and the deceased/plaintiff entered into an agreement of sale, by which, the first respondent herein and her husband agreed to sell the suit property to the deceased/plaintiff, for a sale consideration of Rs.4,00,000/- and a sum of Rs.10,000/- was paid by a cheque earlier and Rs.58,000/- was paid by cash on the date of agreement, and the total sum of Rs.68,000/- was treated as advance and towards the balance sale consideration, the purchaser was directed to discharge the simple mortgage, executed by the first respondent, in favour of one A.Subramania Chettiar, within a period of 15 days, from the date of the execution of the agreement and the balance sale consideration shall be paid, within a period of three months. On payment of balance sale consideration, the sale deed to be executed and at the time of execution of the sale deed, possession will be handed over to the deceased/plaintiff.
8. As per the agreement of sale, the deceased/plaintiff discharged the mortgage, created by the first respondent, in favour of the said Mr.A.Subramania Chettiar and the mortgagee further demanded a sum of Rs.60,000/-, payable by the first respondent herein, for delivering documents of title and that amount was also paid, and on 16.8.1990, a sum of Rs.2,000/- was paid to the first respondent, through her son, by name, Mr.K.Rajendran, viz., the sixth respondent herein. Therefore, the deceased/plaintiff had paid a sum of Rs.2,30,000/-, towards sale agreement and he was ready and willing to pay the balance sale consideration of Rs.1,70,000/- as per the agreement of sale, and he was calling upon the first respondent and her husband to execute the sale deed and the deceased/plaintiff also sent a letter, dated 5.12.1990, to the first respondent and her husband, asking them to vacate and handover vacant possession, on receipt of the balance sale consideration and the first respondent and her husband, sent a letter dated 14.12.1990, acknowledging the receipts of Rs.2,30,000/- towards sale consideration and undertook to complete the sale transaction, by 28.2.1991, stating that they were not able to handover vacant possession, as the tenant did not vacate the suit premises. Even thereafter, the first respondent and her husband did not take any steps to receive the balance sale consideration and execute the sale deed and therefore, the deceased/plaintiff sent a letter, dated 28.2.1991, informing the first respondent to handover vacant possession and informing that, he was ready and willing to perform his part of the contract and the time taken by them to hand over possession, expired on 28.2.1991. Thereafter, the first respondent sent a reply, dated 15.3.1991, stating that she received a sum of Rs.2,25,000/- as loan, and the said amount was not received, as part of the sa
