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IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. MALA, J.
V. Saraswathi – Petitioner
Versus
Daweed Beevi – Respondent
S.A. Nos. 1275 & 1276 of 2007 & M.P. No. 1 of 2007
Decided on : 24-06-2015
Specific Performance - Sale Agreement - Specific Relief Act - Section 16(c), Section 22 - The court discussed the essence of the contract, readiness and willingness to perform the contract, and the entitlement to refund of advance amount under the Specific Relief Act.
Fact of the Case:
The plaintiff filed a suit for specific performance of a sale agreement, while the defendant denied the allegations and sought dismissal of the suit.
Finding of the Court:
The court found that the plaintiff was not always ready and willing to perform the contract, and the time was considered the essence of the contract. The plaintiff's failure to seek alternative relief for the refund of the advance amount and the absence of a prayer for declaratory relief rendered the suit not maintainable.
Issues: The issues revolved around the essence of the contract, readiness and willingness to perform the contract, entitlement to refund of advance amount, and the maintainability of the suit.
Ratio Decidendi: The court held that time was the essence of the contract, the plaintiff was not entitled to the decree of specific performance, and the suit without a prayer for alternative relief and declaratory relief was not maintainable.
Final Decision: The second appeals were dismissed, and the judgment and decree of the lower court were confirmed.
1. These second appeals arise out of the Judgment and Decree made in A.S.No.173 of 2004 and A.S.ANo.96 of 2006 on 18.07.2007 on the file of the Principal District Judge, Chengalpattu and the Judgment and Decree dated 28.11.2003 in O.S.No.734 of 2001 on the file of the Additional Subordinate Judge, Chengalapptu.
2. The averments made in the plaint are as follows:-
The defendant is the absolute owner of the suit property. She entered into a sale agreement dated 31.03.1994 with the plaintiff to sell the suit property for a sale consideration of RS.1,55,000/- and received an advance of Rs.30,000/- on the same date. It is also submitted that even though it is stated the time for completing the contract is fixed as three months in the agreement, time was not intended to be the essence of contract. The plaintiff has always been ready and willing to pay the balance of sale consideration and execute the sale deed at her cost. Even though the plaintiff requested the defendant to produce the document, the defendant has not produced the document by giving some reasonable excuses. The defendant issued a notice dated 05.07.1994 to the plaintiff stating that the time stipulated in the agreement is elapsed and further stated that the advance amount was forfeited. The plaintiff sent a reply to the defendant and requested her to produce the document and also called upon the defendant to execute the sale deed after receiving the balance sale consideration. The plaintiff further submits that the agreement is dated 31.03.1994 and the notice issued by the defendant is dated 05.07.1994 which itself will show that the demand by the defendant in her notice is not a genuine one. It is further submitted that after reply notice by the plaintiff dated 28.07.1994, the defendant is trying to alienate the suit property to some third parties. Therefore, the plaintiff filed a suit for specific performance, directing the defendant to receive the balance sale consideration of Rs.1,25,000/- and execute the sale deed in favour of the plaintiff.
3. The gist and essence of written statement filed by the defendant is as follows:
The defendant submitted that it is true that she is the absolute owner of the suit property and entered into a sale agreement with the plaintiff on 31.03.1994 to sell the suit property for a sale consideration of Rs.1,55,000/- and received an advance amount of Rs.30,000/-. The time fixed for executing the sale deed is fixed as three months. The defendant denied all the allegations made in the plaint that the defendant failed to produce the copy of the documents in spite of several request. The defendant has submitted that in fact she has already handed over the copy of the documents prior to the execution of the sale agreement dated 31.03.1994 and she is always ready and willing to perform the contract. The defendant further states that the amount was required as she had incurred heavy debts and also to celebrate the marriage of her sister-in-law and due to the non-payment of the balance sale consideration by the plaintiff, the defendant's sister-in-law's marriage was also stopped. It is also stated that the plaintiff also aware of this fact and wantonly with a view to harass the defendant, the plaintiff has not fulfil her part of the agreement by paying the balance sale consideration. Therefore the defendant issued a lawyer's notice dated 05.07.1994 noticing that the sale agreement is time barred and the defendant forfeited the advance amount. For which the plaintiff sent a reply dated 28.07.1994. The defendant further submitted that as per the agreement, the defendant is entitled to forfeit the advance amount and the plaintiff is not entitled to specific performance of the contract as the said agreement is barred by limitation. Hence, she prayed for dismissal of the suit.
4. The Learned Trial Judge after considering the averments both in the plaint and written statement and arguments on either side counsel has framed necessary issues a
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