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High Court of Judicature at Madras
PUSHPA SATHYANARAYANA, J.
Nanjachary
Versus
P. Chennaveerachari & Others
Second Appeal No. 966 of 2006
Decided on : 09-09-2014
Specific Relief Act, 1963 - Section 16(c) - Agreement of sale - Deed of conveyance - Sale of immovable properties - Case of plaintiff is that defendants 1 and 2 had jointly agreed to sell suit property which is a house site measuring East West and North South with tiled house in Village and accordingly entered into an agreement of sale - It is stated that at time of agreement plaintiff paid a sum towards advance for sale consideration - Agreement was reduced to writing fixing time for performance of agreement as six months - It is alleged by plaintiff that defendants 1 and 2 received a sum from him and put him in possession of suit property and executed as per which plaintiff will be in possession of suit property for a period of three years within which time defendants have to repay sum borrowed and take back possession - It is further alleged that defendants had not taken any steps to repay amount and take back possession - In meanwhile after agreeing to sell property to plaintiff defendants had with an intention to defraud plaintiff wanted to sell suit property in favour of third defendant – Therefore plaintiff was constrained to give a representation to Sub-Registrar not to register any sale deed with respect to suit property - Further allegation of plaintiff is that inspite of his several attempts calling upon defendants 1 and 2 to execute sale deed in his favour they had not heeded to his request and that though he was ready and willing to perform his part of agreement defendants were evading same – Held, Further relief of specific performance being an equitable relief it is discretion of Court in light of facts and circumstances of case either to refuse or grant relief of specific performance - At same time it could not be lost sight of that discretion exercised by Court should not be arbitrary but should be based on sound judicial principles coupled with intention of parties - In instant case plaintiff has taken unfair advantage of his position to compel defendants 1 and 2 to sell suit property to him - When time is essence of agreement insofar as sale price is concerned as held above delay on part of plaintiff in not performing his part of contract and taking advantage of his own wrong cannot be permitted - Plaintiff has not established that he was ready and willing to perform his part of contract within time stipulated - It was not case of plaintiff that he was ready with money and that defendants were evading same – Plaintiff who comes to Court for grant of equitable relief of specific performance has to establish his readiness and willingness throughout from date of agreement till date of filing of suit - Plaintiff also had not taken steps to deposit remaining sale consideration in to Court at time of filing of suit - When defendants were in dire need of money they had proposed to sell property - In such circumstances plaintiff ought to have offered money at earliest or else purpose is lost - In these circumstances it is safe to conclude that in light of Section 16(c) of Specific Relief Act, 1963 plaintiff had not established his case that he was ready and willing to perform his part of contract even on date of suit - Further conduct of plaintiff by giving an objection before Sub-Registrar instead of issuing a suit notice reveals attitude of plaintiff - Though order of Sub-Registrar was directing him to resort to Court of law suit has been filed months thereafter and suit was taken to file only in end - Having delayed beyond period of limitation and having failed to establish his readiness and willingness throughout plaintiff cannot be entitled to a decree of specific performance – Appeal dismissed
1. This second appeal is filed by the plaintiff inveighing the judgement and decree dated 27.9.2005 passed by the Principal District Judge, Dharmapuri at Krishnagiri, in A.S. No. 66 of 2004 wherein and by which the judgment and decree dated 31.12.2003 recorded in O.S. No. 173 of 1998 on the file of the Subordinate Judge, Hosur, were reversed allowing the First Appeal at the instance of the defendants.
2. The plaintiff has filed the suit for direction to the defendants to execute the deed of conveyance regarding the suit property as per the agreement of sale dated 23.02.1993 within a specified time.
3. The case of the plaintiff is that the defendants 1 and 2 had jointly agreed to sell the suit property, which is a house site measuring 80' East “West and 40' North” South with Mangalore tiled house in Andevanapalli Village and accordingly, entered into an agreement of sale on 23.02.1993 for a sum of Rs. 32,000/-. It is stated that at the time of agreement, the plaintiff paid a sum of Rs. 5,000/- towards advance for sale consideration. The agreement was reduced to writing fixing the time for performance of the agreement as six months. It is alleged by the plaintiff that on 16.02.1983, the defendants 1 and 2 received a sum of Rs. 1,250/- from him and put him in possession of the suit property and executed a Muchalika as per which, the plaintiff will be in possession of the suit property for a period of three years within which time, the defendants have to repay the sum borrowed and take back the possession. It is further alleged that the defendants had not taken any steps to repay the amount and take back possession. In the meanwhile, after agreeing to sell the property to the plaintiff, the defendants had with an intention to defraud the plaintiff, wanted to sell the suit property in favour of the third defendant. Therefore, the plaintiff was constrained to give a representation to the Sub-Registrar, Denkanikotta, not to register any sale deed with respect to the suit property. The further allegation of the plaintiff is that inspite of his several attempts calling upon the defendants 1 and 2 to execute the sale deed in his favour, they had not heeded to his request and that though he was ready and willing to perform his part of the agreement, the defendants were evading the same. It is stated that the third defendant, who is the daughter of the first defendant, had trespassed into the suit property when the plaintiff was away from his house one year prior to the filing of the suit. Hence, the plaintiff filed the suit for specific performance.
4. Resisting the suit, the first defendant filed written statement adopted by the defendants 2 and 3. The statement of the plaintiff that the defendants 1 and 2 agreed to sell the suit property for a sum of Rs.32,000/- and execution of sale agreement on 23.02.1993 as well as receipt of Rs.5,000/- as advance were all accepted by the defendants. According to the defendants, the sale agreement specifically mentions that time is the essence of the contract and as they were in dire need of money, they agreed to sell the property to the plaintiff and fixed the time of six months to receive the balance of sale consideration. It was also agreed in the agreement that if the plaintiff failed to pay the balance of amount and get the sale executed, the advance amount would be forfeited. The allegation made by the plaintiff that the suit property was given in his possession was specifically denied by the defendants. The defendants also denied the alleged Muchalika dated 16.02.1983 executed in favour of the plaintiff after receiving a sum of Rs. 1,250/-. The other allegations, viz., objection given before the Sub-Registrar and that the defendants were making attempts to alienate the property, were all denied by them. As time was the essence of the contract, which was not kept up by the plaintiff, the defendants prayed for dismissal of the suit.
5. Before the trial Court, the plaintiff besides ex
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