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2017 Supreme(Mad) 3942
IN THE HIGH COURT OF JUDICATURE AT MADRAS
A. SELVAM, P. KALAIYARASAN, JJ.
Mrs. Ulagambal and Ors. – Appellants
Vs.
Mr. J. Vijaya Raj and Ors. – Respondent
Appeal Suit No.481 of 2011 and M.P.No.1 of 2013
Decided On : 14-12-2017
For the Appellant : Mr. M.V. Krishnan
For the Respondent: Mr. M. Vivekanandan, Mr. R. Murali
Headnote:
Specific Relief Act, 1963 – Section 16 – Decree of specific performance of the sale agreement – Appeal Suit has been directed against the judgment and decree passed in O.S. by the Additional District and Sessions Court (Fast Track Court No.No.3), Chennai – First respondent herein, as plaintiff, has instituted O.S.No.11773 of 2010, on the file of the trial Court, praying to pass a decree of specific performance of the sale agreement, wherein, the present appellants and the second respondent have been arrayed as defendants. – Held, Court can unflinchingly come to a conclusion that from inception of suit sale agreement, the plaintiff has always been ready and willing to perform his part of the contract – But the defendants have adopted various dilatory methods so as to defeat the legal rights of the plaintiff. – Even though in Ex.A1, a specific time has been mentioned, considering the factual circumstances of the present case, the Court can easily come to a conclusion that time is not the essence of contract and further, only due to conduct of the defendants, the delay has been caused in paying balance of sale consideration. – Therefore, viewing from any angle, this Court is of the view that the plaintiff has always shown his readiness and willingness to perform his part of the contract and as per Ex.A1 he is entitled to get equitable relief of specific performance. – Trial Court, after considering the overall evidence available on record, has rightly decreed the suit. – In view of the discussion made earlier, this Court has not found any acceptable force in the contentions put forth on the side of the appellants and altogether the present Appeal Suit deserves to be dismissed. – Appeal Suit Dismissed
A. SELVAM, J.
This Appeal Suit has been directed against the judgment and decree dated 13.05.2011, passed in O.S.No.11773 of 2010, by the Additional District and Sessions Court (Fast Track Court No.No.3), Chennai.
2. The first respondent herein, as plaintiff, has instituted O.S.No.11773 of 2010, on the file of the trial Court, praying to pass a decree of specific performance of the sale agreement dated 09.05.2004, wherein, the present appellants and the second respondent have been arrayed as defendants.
3. The material averments made in the plaint are that the suit property is the absolute property of the defendants. One Nithyanandam has purchased the property and he passed away on 20.03.2001, leaving behind him, the defendants 1 to 5 as his legal heirs. The defendants have approached the plaintiff so as to sell the suit property for a sum of Rs.16,40,000/-. The plaintiff has also agreed to purchase the same. Under such circumstances, an agreement of sale has come into existence between the plaintiff and defendants on 09.05.2004 and on the date of its execution, Rs.2,00,000/- has been given as an advance to the defendants. Further it is agreed that the plaintiff has to pay balance of sale consideration and get a registered sale deed from the defendants within a period of 90 days. Before that period, the defendants are bound to produce original documents of title to the plaintiff for having legal opinion. But, as agreed, the defendants have failed to produce original documents of title to the plaintiff. Under the said circumstances, a legal notice dated 06.08.2004 has been given. Even after receipt of the same, the defendants have not come forward to execute a sale deed in favour of the plaintiff. In the meanwhile, the defendants have lodged a police complaint, wherein forcibly the signature of the plaintiff has been obtained as if he is not willing to claim any right over the suit property and subsequently, various legal notices have been issued to the defendants. But the defendants have not come forward to execute a sale deed in favour of the plaintiff. The plaintiff is always ready and willing to perform his part of the contract. Under such circumstances, the present suit has been instituted for getting the relief sought therein.
4. In the written statement filed on the side of the defendants 1, 2, 4 and 5 it is averred to the effect that both the plaintiff and defendants have entered into the suit sale agreement, wherein total sale consideration has been fixed at Rs.16,40,000/- and on the date of its execution, the plaintiff has paid a sum of Rs.2,00,000/- by way of an advance. It is false to aver that the plaintiff has always been ready and willing to perform his part of the contract. In the suit sale agreement, 90 days period is fixed for execution of registered sale deed and within that period, the plaintiff has failed to give balance of sale consideration. Since the plaintiff has failed to perform his part of the contract, he is not entitled to get equitable relief of specific performance. The present suit is barred by limitation and the same is not legally maintainable, as per sale agreement dated 9.5.2004. There is no merit in the suit and the same deserves to be dismissed.
5. On the basis of the rival pleadings raised on either side, the trial Court has framed necessary issues and after analysing both oral and documentary evidence, has decreed the suit as prayed for. Against the judgment and decree passed by the trial Court, the present Appeal Suit has been preferred at the instance of the defendants 1, 2, 4 and 5.
6. Before contemplating the rival submissions made on either side, the Court has to look into the following admitted facts.
7. It is an admitted fact that on 09.05.2004, the suit sale agreement has come into existence between the plaintiff and defendants, whereby the defendants have agreed to sell the suit property for a sum of Rs.16,40,000/- and on the date of its execution, the plaintiff has paid a su
