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IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.R. Shivakumar, J.
K. Nirmala
Versus
Sellamuthu
S.A. No. 1180 of 2008 and M.P. No. 1 of 2008
Decided on: 16 April 2014
specific performance - agreement for sale - Section 16(c) of the Specific Relief Act - The court held that the respondent failed to prove readiness and willingness to perform his part of the agreement under Ex.A1, reversing the finding of the lower courts. The appellant was not entitled to the relief of specific performance as prayed for in the plaint.
Fact of the Case:
The respondent filed a suit for specific performance based on an agreement for sale. The appellant contended that the agreement was intended as security for a loan and not for sale. The Trial Judge decreed the suit, which was confirmed by the lower appellate court. The appellant filed a second appeal challenging the decree of the lower appellate court.
Finding of the Court:
The court found that the respondent failed to prove readiness and willingness to perform his part of the agreement, reversing the finding of the lower courts. The appellant was not entitled to the relief of specific performance as prayed for in the plaint.
Issues: The issues included whether the suit agreement for sale was acted upon, whether the cause of action stated in the plaint is correct, and to what other relief.
Ratio Decidendi: The court held that the respondent failed to prove readiness and willingness to perform his part of the agreement under Ex.A1, reversing the finding of the lower courts. The appellant was not entitled to the relief of specific performance as prayed for in the plaint.
Final Decision: The second appeal succeeded, and the judgment and decree in A.S.No.308 of 2003 and O.S.No.54 of 1996 were set aside. The suit was dismissed with no order as to costs.
1. Defendant in O.S.No.54 of 1996 on the file of the Sub Court, Namakkal is the appellant in the second appeal.
2. Sellamuthu, the respondent herein filed the abovesaid suit for the relief of specific performance based on an agreement for sale dated 23.2.1993 executed by the appellant herein containing recitals to the effect that she had agreed to sell the suit property to the respondent herein for a sum of Rs.1,10,000/= and received Rs.1,00,000/= as advance on the date of agreement and that it was mutually agreed that the sale transaction would be completed within three months from the date of agreement. The respondent herein, in the plaint, contended that though he was ready and willing to perform his part of the contract by making the payment of balance amount of sale consideration and get the sale deed executed and registered in his name, the appellant was not ready within the stipulated period of three months. The respondent sent a telegraphic message to the appellant on 21.5.1993 to come and execute the sale deed which was not responded to by the appellant; that thereafter, when the appellant was contacted by the respondent, the appellant informed that the transaction would be completed within a few days and at last, the appellant informed the respondent that the sale document could be completed on 15.7.1993; that believing the said words of the appellant, the respondent prepared the sale deed with necessary recitals using the stamp papers that had already been purchased by him and waited for the appellant to come and execute the sale deed, but in vain; that thereafter, when the respondent contacted the husband of the appellant, he informed that the document prepared could be registered in four months and that thereafter, subsequently, the appellant showed no inclination to complete the transaction and that therefore, the respondent had to issue a notice through his lawyer on 15.10.1993 for which there was no response though the same was received by the appellant on 18.10.1993. Based on the abovesaid allegations, the respondent had filed the suit praying for the relief of specific performance directing the appellant to execute the sale deed accepting the balance amount of sale consideration to be deposited by the respondent into court in accordance with the directions of the court to get the sale deed registered and for possession of the property.
3. The suit was resisted by the appellant herein contending that the suit sale agreement was not intended to be acted upon and it was intended to be a security for the loan of Rs.1,00,000/= advanced by the respondent herein to the appellant herein. It was also contended by her in her written statement that there was no intention on her part to sell the suit property and likewise, there was no intention on the part of the respondent to purchase that on the other hand, when she approached the respondent for borrowing certain amount for discharge her loans towards other persons, the respondent insisted upon execution of a registered sale agreement as security for the repayment of the loan; that consequently she borrowed a sum of Rs.1,00,000/= from the respondent and executed the suit agreement for sale; that thereafter, the appellant paid a sum of Rs.7000/= towards interest. It is her further contention that subsequently, the respondent pressed for the discharge of loan even by selling the property to other persons; that all along, the respondent was bent upon getting back the amount with interest through the mediators like Chinnusamy son of Karuppannan and that only thereafter, he issued the notice dated 15.10.1993 which was properly replied by the appellant by reply notice dated 21.10.1993. It is her further contention that suppressing the reply also the respondent had approached the court with false and untenable allegations. Besides the abovesaid averments, the appellant also contended that the plaint averments regarding the readiness and willingness and also the telegra
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