Back
2018 Supreme(Mad) 2122
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
M.V. MURALIDARAN, J.
Padmanabhan Rep. by his Power agent V.Ramakrishnan - Appellant
Versus
I.M.Karthikeyan and Ors - Respondent
C.R.P.(MD)(NPD)No.1771 of 2016 and C.R.P.(MD)(PD)No.1153 of 2017 and CMP(MD)No.8548 of 2016
Decided on : 14-08-2018
Advocate Appeared:
For the Appellant : Mr.V.Sitharanjan Das
For the Respondents: Mr.K.Sudalaiyandi
The discretionary nature of specific performance as a remedy, the requirement for the plaintiff to approach the court with clean hands, and the need for readiness and willingness to perform the contractual obligation.
Headnote:
Limitation Act - Specific Performance - Section 5 - 1258 days - The court discussed the legal provisions of Section 5 of the Limitation Act and the principles of condoning delay. The court emphasized the need for sufficient cause and the absence of negligence or inaction in condoning the delay. The court also highlighted the discretionary nature of the remedy of specific performance and the requirement for the plaintiff to approach the court with clean hands. The court referred to various case laws and emphasized the equitable nature of specific performance as a remedy.
Fact of the Case:
The plaintiff filed a suit for specific performance of a sale agreement. The defendants failed to contest, and an ex-parte decree was passed. The defendants later filed an application to set aside the ex-parte decree after a delay of 1258 days, citing family circumstances and deaths. The plaintiff contested the application, arguing that there was no sufficient cause for the delay.
Finding of the Court:
The court found that the delay was not caused by willful negligence and was due to family circumstances and deaths. The court emphasized the discretionary nature of the remedy of specific performance and the need for the plaintiff to approach the court with clean hands. The court also directed the defendants to pay additional costs to the plaintiff to compensate for the delay.
Issues: The main issue was whether the delay of 1258 days in filing the application to set aside the ex-parte decree could be condoned based on the family circumstances and deaths cited by the defendants.
Ratio Decidendi: The court held that the delay could be condoned considering the family circumstances and deaths, and emphasized the equitable nature of specific performance as a discretionary remedy. The court also highlighted the need for the plaintiff to approach the court with clean hands and the requirement for readiness and willingness to perform the contractual obligation.
Final Decision: The court dismissed the civil revision petitions, confirmed the order and decree made in the application to set aside the ex-parte decree, and directed the defendants to pay additional costs to the plaintiff. The trial judge was also directed to dispose of the suit within a period of 3 months.
1. The plaintiff is before this Court challenging the order passed in the application filed by the respondents herein/defendants 16,18,19,21 and 22 under Section 5 of the Limitation Act for condoning the delay of 1258 days in filing the application to set aside the ex-parte decree dated 22.12.2009 passed against the respondents in the suit for specific performance of the agreement dated 29.12.2004 entered into between the petitioner and the respondents.
2. The case of the petitioner herein is that he filed a suit in O.S.NO.120 of 2006 on the file of the learned IV Additional District Court, Madurai through his power agent V.Ramakrishnan against the respondents herein for the relief of specific performance to execute the sale deed for the suit schedule properties based upon the sale agreement entered into between the petitioner herein and the respondents herein dated 29.12.2004. The petitioner contented that the 1st item of suit property originally belongs to one S.P.Chinnasamy and his family members who are the defendants 1 to 15 in the above said suit. They have jointly executed a registered general power of attorney in respect of the 1st item of the suit property on 18.06.2003 in favour of the 16th defendant of the suit namely the 1st respondent in this civil revision petition. The petitioner further contented that the suit 2nd item of property is absolutely belongs to the defendants 15 to 22 in the above said suit who are the respondents in the civil revision petition. The 1st respondent who is the power agent of defendants 1 to 15 along with the respondents herein have entered into an unregistered sale agreement with the revision petitioner on 29.12.2004 in respect of the suit schedule 1 and 2 item of properties on payment of Rs.5,000/- as advance amount and on the date of agreement itself, the respondents handed over the possession of the suit schedule properties in favour of the petitioner.
3. The petitioner further contented that he executed a registered general power of attorney dated 08.10.2004 in favour of the above said V.Ramakrishnan who originally filed the suit as a power agent of this revision petitioner in respect of all his properties. Since this revision petitioner was working at United States of America and he is not in a position to visit India to manage the properties and he executed the power deed in favour of V.Ramakrishnan. After the sale agreement the petitioner’s power agent V.Ramakrishnan converted the entire suit properties into several house plots and sold some of the plots to the purchasers and he has constructed residential houses. Further it is contented that the revision petitioner paid more than 75% of the sale consideration to the respondents. Even though he is ready and willing to perform the contract, these respondents have not come forward to fulfill the same on their part. Hence the revision petitioner filed the above suit for specific performance to execute the sale deed.
4. The petitioner’s power agent V.Ramakrishnan originally filed the suit on 25.09.2006 before the I Additional District Court, Madurai against the respondents. After receiving summons the respondents entered their appearance in the suit through a counsel on 17.11.2006 and an ex-parte decree was passed on 22.12.2009 against the respondents for non-contesting of the suit. Thereafter, the revision petitioner filed the execution petition in E.P.No.4 of 2012 to execute the sale deed through the Court in pursuance of the above said ex-parte decree. After a long period only the respondents filed the I.A.No.217 of 2015 to condone the delay of 1258 days in filing the application to set aside the ex-parte decree dated 22.12.2009. The revision petitioner vehemently contested the said application filed by the respondents by stating that there is no any sufficient reason shown by the respondents to condone the inordinate delay of 1258 days, but the trial Court mistakenly condoned the said delay on imposing Rs.5,000/- towards cos
