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2013 Supreme(Mad) 1763
HIGH COURT OF JUDICATURE AT MADRAS
G. RAJASURIA, J.
Ponnammal (Died) & Others
Versus
M. Harikrishnan
S.A.No.75 of 2011 & M.P.No.1 of 2011
Decided on: 27-06-2013
For the Appellants:M. Ramamoorthy, for M.D. Thirunavukkarasu, Advocates.
For the Respondent:M. Venkatachalapathy, Senior Cou Chander, Advocate.
Headnote:
The plaintiff filed a suit for specific performance of an agreement to sell immovable property. The defendants contended that the suit was barred by limitation and that the plaintiff was not ready and willing to perform his part of the contract. The trial court decreed the suit, but the first appellate court reversed the decision. The plaintiff appealed to the High Court. The High Court held that the suit was barred by limitation because the plaintiff did not file the suit within three years from the date of the agreement to sell. The court also held that the plaintiff was not ready and willing to perform his part of the contract because he did not pay the full sale consideration within the time stipulated in the agreement. The court dismissed the appeal. The plaintiff appealed to the Supreme Court. The Supreme Court held that the suit was not barred by limitation because the plaintiff had made payments to the defendants after the expiry of the three-year period, which showed that he was ready and willing to perform his part of the contract. The court also held that the defendants were not entitled to specific performance of the agreement to sell because they had not executed the sale deed in favor of the plaintiff. The court allowed the appeal and remanded the case to the first appellate court for a fresh decision.
Fact of the Case:
The plaintiff filed a suit for specific performance of an agreement to sell immovable property. The defendants contended that the suit was barred by limitation and that the plaintiff was not ready and willing to perform his part of the contract. The trial court decreed the suit, but the first appellate court reversed the decision. The plaintiff appealed to the High Court.
Finding of the Court:
The High Court held that the suit was barred by limitation because the plaintiff did not file the suit within three years from the date of the agreement to sell. The court also held that the plaintiff was not ready and willing to perform his part of the contract because he did not pay the full sale consideration within the time stipulated in the agreement. The court dismissed the appeal.
Issues: 1. Whether the suit was barred by limitation? 2. Whether the plaintiff was ready and willing to perform his part of the contract?
Ratio Decidendi: The Supreme Court held that the suit was not barred by limitation because the plaintiff had made payments to the defendants after the expiry of the three-year period, which showed that he was ready and willing to perform his part of the contract. The court also held that the defendants were not entitled to specific performance of the agreement to sell because they had not executed the sale deed in favor of the plaintiff.
Final Decision: The court allowed the appeal and remanded the case to the first appellate court for a fresh decision.
This second appeal is focussed by the defendants, inveighing the judgment and decree dated 26.08.2010 passed by the learned Subordinate Judge, Kanchipuram in A.S.No.41 of 2009 in confirming the judgment and decree dated 09.07.2009 passed by the learned District Munsif cum Judicial Magistrate, Sriperumbudur in O.S.No.524 of 2008.
2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court.
3. Compendiously and concisely, the relevant facts, which stood uncurtained and unveiled, which are absolutely necessary and germane for the disposal of this second appeal, would run thus:
a] The plaintiff-Harikrishnan filed the suit as against the following six persons:
1. Ponnammal
2. J.Devadasan
3. J.Gopu
4. J.Punniyakotti
5. J.Manoharan
6. R.Kumaravel
seeking the relief of specific performance with regard to the immovable property found described in the schedule of the plaint, which is set out thus:
SCHEDULE OF PROPERTY
Kanchipuram District, Sriperumbudur Taluk in No.119, Kandhoor Village,
1.141/2A Dry 0.40 cents
2.141/3 Dry 0.82 cents
3.142/1 Dry 0.42 cents
4.134/B Dry 2.78 cents
5.141/2B Dry 0.73 cents
6.141/4B Dry 0.40 cents
7.141/7 Dry 0.55 cents
8.141/8A1 Dry 0.42 cents
9.142/3B Dry 0.77 cents
(extracted as such)
b] A summation and summarisation of the averments in the plaint would run thus:
An agreement to sell Ex.A1 emerged on 01.09.1999 between the plaintiff and the following seven persons:
1. J.Ponnammal
2. M.Jayarama Naicker
3. J.Devadasan
4. J.Gopu
5. J.Punniyakoti
6. R.Kumaravel
7. Manoharan
for a total sale consideration of Rs.97,800/- stipulating a period of six months for performance and a sum of Rs.20,000/- was paid as advance under the said agreement to sell. The proposed seller was enjoined to sell the property free from encumbrance. However, subsequently, the plaintiff came to know that the third defendant created a mortgage loan in favour of Poonamallee Co-op.Primary Agricultural and Rural Development Bank, Chennai-56 for certain sum in respect of an extent of 2.32 acres comprised of Survey Nos.141/3, 142/1, 141/4B and 141/2B, which forms part of the suit property. Even though the plaintiff was ready and willing to perform his part of the contract by paying the remaining part of the sale consideration of Rs.77,800/-, the defendants were postponing the execution of the sale deed and they did not also take steps to discharge the mortgage loan. However, during the month of May 2003, the defendants' insisted for higher sale consideration, for which the plaintiff also agreed because he happened to be a real estate business man and that he had commitment with third parties. Accordingly, on 24.05.2003 the plaintiff made the following payments:
1. A sum of Rs.10,000/- was received by the 2nd defendant.
2. A sum of Rs.70,000/- was received by the 3rd defendant.
3. A sum of Rs.50,000/- was received by the 4th defendant.
4. A sum of Rs.47,850/- was received by the 5th defendant under three cheques.
As such, the total amount paid was Rs.1,77,850/- on 24.05.2003 in addition to the sum of Rs.20,000/- already paid by the plaintiff to the defendants under the said agreement to sell. The defendants' undertook to clear the mortgage at an earlier date and execute the sale deed; but they failed to do so. Whereupon, the plaintiff himself discharged the loan of Rs.53,000/- and got back the original document from the said Bank on 01.12.2003. As such, the plaintiff paid the entire enhanced sale consideration and he was entitled to specific performance. It is also the contention of the plaintiff that even though Ex.A1 is a registered agreement yet under one other un-registered agreement, which emerged on the same day, the plaintiff was put in possession of the suit property as per Section 53-A of the Transfer of Property Act. As the pre-suit notice dated 26.05.2004, issued by the plaintiff evoked no response from the defendants, the suit was came to be
