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IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. SATHISHKUMAR, J.
R. Shanmugam - Appellant
Vs.
P. Govindaraju (deceased) & Ors. - Respondents
Appeal Suit No.31 of 2012 and M.P.No.1 of 2012
Decided On : 13-04-2017
specific performance - agreement for sale of property - 1. Whether the plaintiff is always ready and willing to perform his part of contract? 2. To what relief? - The suit has been laid to enforce the contract dated 05.01.2007 entered into between the plaintiff and the defendants agreeing to sell the suit property in favour of the plaintiff at the rate of Rs.650/- per square feet. The plaintiff has not established his readiness and willingness from the very beginning. The conduct of the plaintiff sending telegram and legal notice just one day prior to the alleged date of going to the Sub-Registrar's Office itself show that this notice itself issued only for the purpose of creating some evidence to show as if he was ready and willing to purchase the property. The readiness and willingness is a continuous process and should be exhibited from the very beginning to end. Therefore, this Court is of the view that though the agreement is proved, the plaintiff has not established his readiness and willingness from the very beginning.
Fact of the Case:
The plaintiff entered into an agreement with the defendants to sell a property at a specific rate per square feet. The plaintiff alleged that he was always ready and willing to perform his part of the contract, but the defendants failed to perform their part, leading to the filing of the suit.
Finding of the Court:
The court found that the plaintiff did not establish his readiness and willingness from the beginning, and his conduct in sending a legal notice and telegram just one day prior to the alleged date of going to the Sub-Registrar's Office was deemed as an attempt to create evidence of readiness and willingness. The court also noted that the plaintiff's conduct in filing the suit against a deceased defendant showed lack of clean hands.
Issues: The issues included whether the agreement of sale was fabricated, whether the plaintiff was entitled to specific performance of the contract, whether the plaintiff was ready and willing to perform his contract, and what relief the plaintiff was entitled to and costs.
Ratio Decidendi: The readiness and willingness of the plaintiff is a continuous process and should be exhibited from the very beginning to the end. The court found that the plaintiff did not establish his readiness and willingness from the beginning, and his conduct in sending a legal notice and telegram just one day prior to the alleged date of going to the Sub-Registrar's Office was deemed as an attempt to create evidence of readiness and willingness.
Final Decision: The appeal was dismissed, and the judgment and decree of the trial court were confirmed.
Aggrieved over the dismissal of the suit filed for specific performance and decreed the suit for refund of advance amount of Rs.5.00/- lakhs to the plaintiff with interest at 6% per annum, the present appeal came to be filed by the Plaintiff. The parties are arrayed as per their own ranking before the trial Court for the sake of convenience.
2. Brief facts of the plaintiff's case is as follows:- The first defendant is the absolute owner of the suit property and the defendants 2 to 5 are sons and daughter of the first defendant. All the defendants have entered into an agreement with the plaintiff on 05.01.2007 agreeing to sell the suit property to the plaintiff at the rate of Rs.650/- per square feet and received a sum of Rs.1.00 lakh towards advance sale consideration and agreed to execute the sale deed on or before 14.06.2007 and receive the balance sale consideration at the time of registration of the sale deed. The plaintiff was always ready and willing to perform his part of contract to pay the balance sale consideration. When the matter stood thus, the defendants have received a sum of Rs.4.00 lakhs towards part of the balance sale consideration on 08.01.2007 and it was mutually agreed between both plaintiff and defendants to extend the time for performance of the agreement till 31.12.2007. In spite of several requests and demands the defendants failed to perform their part of contract and postponing the performance by some pretext or other. Therefore, the plaintiff issued a legal notice on 04.12.2007 and sent a telegram to the defendants on 05.12.2007 calling upon the defendants to come to the Sub-Registrar Office of Salem East on 06.12.2007, receive the balance sale consideration and execute the sale deed. However, the defendants did not come to the Sub-Registrar's Office as requested by the plaintiff. Hence suit.
3. It is the case of the defendants that they never intended to sell the property in favour of the plaintiff. In fact they were in dire need of money and so they approached the plaintiff who is a money lender and requested him to give a loan of Rs.1.00 lakh. At that time the defendants were asked to sign on blank stamp papers and some other papers. Since the defendants were in great difficulty and in dire need of money they signed on some blank stamp papers and some other papers and thereafter only the plaintiff has advanced a sum of Rs.90,000/- to the defendants towards loan amount of Rs.1.00 lakh deducting a sum Rs.10,000/- towards three months interest and documentation charges. After that, on 04.04.2007 the defendants have discharged the loan amount and requested the plaintiff to hand over all the signed stamp papers and other papers. However, the plaintiff was protracted to return the same on the ground that the papers have been given to his Auditors for submitting the accounts to the income tax department. It is further contention of the defendants that they never received further sale consideration of Rs.4.00 lakhs as alleged by the plaintiff and they never made an endorsement to extend the time to perform the contract till 31.12.2007. The suit agreement is fabricated one forging the signature and thumb impression of the defendants. There was no demand whatsoever made by the plaintiff except issuing the legal notice on 04.12.2007. The defendants also sent a reply denying the agreement. The first defendant after receipt of notice issued by the plaintiff fell ill and bedridden and died on 1.3.2008. Even without verifying the death of the first defendant, the suit has been filed against the first defendant also. There is no cause of action for the suit. Hence prayed for dismissal of the suit.
4. Based on the pleadings, the learned trial Judge has framed the following issues:-
1. Whether the agreement of sale is created and fabricated document?
2. Whether the Plaintiff is entitled to specific performance of contract of sale?
3. Whether the Plaintiff is ready and willing to perform his contract of sale?
4
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