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2013 Supreme(Mad) 135
In the High Court of Madras
M. Duraiswamy, J.
P. Ananthakrishnan and others - Appellants;
Versus
P. Shanbagavalli - Respondent.
A.S. No. 1246 of 2003 and C.M.P. Nos. 482 & 483 of 2011
Decided on : January 7, 2013
R. Thiagarajan, Advocate for Appellant.
M. Balasubramanian, Advocate for Respondent.
The Plaintiff waived her right to file the Suit for Specific Performance by invoking Section 69 of the Transfer of Property Act and there was laches on the part of the Plaintiff in filing the Suit. The Plaintiff failed to prove readiness and willingness to perform her part of the contract.
Headnote:
Specific Performance - Sale Agreement - Section 69 of the Transfer of Property Act - [FACT OF THE CASE] The Plaintiff filed a Suit for Specific Performance alternatively, to pay a sum of Rs. 2,18,000/- being the amount paid and liquidated damages with interest at 24% per annum. The Defendants denied readiness and willingness to perform the contract and sought dismissal of the Suit. The Trial Court decreed the Suit for Specific Performance. [FINDING OF THE COURT] The Court found that the Plaintiff had waived her right to file the Suit for Specific Performance by invoking Section 69 of the Transfer of Property Act to bring the Defendants' mortgaged property for private sale. The Court also found that there was laches on the part of the Plaintiff in filing the Suit. The Court held that the Plaintiff was not ready and willing to perform her part of the contract. The Court dismissed the Suit for Specific Performance and decreed the return of the advance amount of Rs. 1,18,000/- with interest at 12% per annum. [ISSUES] Whether the Plaintiff waived her right to file the Suit for Specific Performance? Whether there was laches on the part of the Plaintiff in filing the Suit? Whether the Plaintiff proved readiness and willingness to perform her part of the contract? Whether the Plaintiff is entitled to the alternative relief of refund of a sum of Rs. 2,18,000/- together with interest at 24% per annum? [RATIO DECIDENDI] The Plaintiff waived her right to file the Suit for Specific Performance by invoking Section 69 of the Transfer of Property Act. There was laches on the part of the Plaintiff in filing the Suit. The Plaintiff failed to prove readiness and willingness to perform her part of the contract. The Plaintiff is entitled to the return of the advance amount of Rs. 1,18,000/- with interest at 12% per annum. [FINAL DECISION] The Suit for Specific Performance was dismissed and there was a decree for the return of the advance amount of Rs. 1,18,000/- with interest at 12% per annum.
1. The above Appeal arises against the Judgment and Decree in O.S. No. 8294 of 1996 on the file of VII Additional City Civil Court, Chennai.
2. The Appellants 1 to 4 were the Defendants 2, 3, 6 & 7, Appellants 5 to 7 are the Legal Representatives of the deceased-Second Appellant and the Respondent was the Plaintiff in the Suit.
3. The Plaintiff filed the Suit in O.S. No. 8294 of 1996 for Specific Performance alternatively, to pay a sum of Rs. 2,18,000/- being the amount paid and liquidated damages with interest at 24% per annum.
4. The brief case of the Plaintiff in the Suit is as follows:
(i) According to the Plaintiff, the First Defendant was having life interest in the suit property and the Defendants 2 to 4 are having vested remainder in the said property. The Defendants 1 to 4 along with one Swarnambal, who is the mother of the First Defendant and paternal grand mother of Defendants 2 to 4, jointly mortgaged the suit property with the Plaintiff for securing the loan of Rs. 50,000/- borrowed by them on 6.6.1986 under a registered Mortgaged Deed. The Defendants have not discharged the debt amount and a sum of Rs. 1,81,944/- was due as on the date of filing of the Suit. The said Swarnambal died on 10.6.1990.
(ii) According to the Plaintiff, the Defendants 1 to 4 approached him in December 1990 and represented that they are in urgent need of funds to meet their family necessities and the income derived form the suit property was meagre. The Defendants 1 to 4 offered to sell the suit property to the Plaintiff for a sale consideration of Rs. 5,10,000/-. Even though the suit property is an old building requiring extensive repairs, yet the Plaintiff has advanced money on mortgage to the Defendants. The Plaintiff also agreed to purchase the suit property for a sum of Rs. 5,10,000/-. An Agreement of Sale was entered on 30.12.1990 between the Plaintiff and the Defendants 1 to 4. A sum of Rs. 1,00,000/- was paid as advance by the Plaintiff to the Defendants 1 to 4. As per the Agreement, the sale should be completed within six months and the Defendants 1 to 4 have to produce the Encumbrance Certificate and the Income Tax Clearance Certificate at their cost and the mortgage dues and all the tax dues to be deducted from the sale consideration. The option was also given to the Plaintiff to ask for the return of the advance amount of Rs. 1,00,000/- and also in addition to it, Rs. 1,00,000/- as liquidated damages. In the event of the Plaintiff committing default it was provided that advance amount of Rs. 1,00,000/- stand forfeited.
(iii) According to the Plaintiff, the Defendants 1 to 4 wanted a sum of Rs. 10,000/- for marriage expenses of the Third Defendant and the Plaintiff paid the said sum of Rs. 10,000/- on 29.5.1991 and obtained endorsement on the back of the Sale Agreement. The Defendants 1 to 4 wanted a further sum of Rs. 8,000/- which was also paid by the Plaintiff on 27.6.1991. The Plaintiff and the Defendants 1 to 4 mutually agreed that the time for completing the sale was extended up to 15th July 1991. The same has been endorsed in the Sale Agreement on 27.6.1991.
(iv) According to the Plaintiff, he was always ready and willing to perform her part of the contract. The Plaintiff prepared the draft Sale Deed by her Counsel and handed over the copy of the same to the Third Defendant on 1.7.1991 and obtained endorsement from him. The draft Sale Deed was handed over to the Defendants for obtaining Income Tax Clearance Certificate. Even though the Defendants were furnished with the copy of the draft Sale Deed, they failed to obtain Income Tax Clearance Certificate. The Defendants 1 to 4 wanted the Sale Deed to be prepared for a sum of Rs. 4,00,000/-. The Plaintiff also purchased the Stamp papers on 12.7.1991 engrossed the Sale Deed on the Stamp papers and kept the Sale Deed ready for registration. The Plaintiff called upon the Defendants 1 to 4 on 12.7.1991 and asked them to get Income Tax Clearance Certificate ready and reg
