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IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SUBBIAH, C. SARAVANAN, JJ.
V. Indirani - Appellants
Versus
P.R. Balakrishnan - Respondents
A.S.No.36 of 2015 and C.M.P.No.15605 of 2017
Decided On : 13-08-2018
SPECIFIC PERFORMANCE - SALE AGREEMENT - MEASUREMENT OF LAND - OBLIGATION ON DEFENDANTS - READINESS AND WILLINGNESS OF PLAINTIFF - TIME ESSENCE OF CONTRACT - LIMITATION - CONDUCT OF PARTIES - DISCRETION OF COURT. 1. An obligation was fixed on the defendants under the sale agreement to measure the land, obtain NOC, and collect the sale consideration at the rate of Rs.64,000/- per cent after measurement of the land. 2. The plaintiff was ready and willing to perform his part of the contract, as evidenced by his efforts to persuade the defendants to measure the property, his measurement of the property with the help of a Firka Surveyor, and his deposit of the balance sale consideration. 3. Time was not the essence of the contract in this case, as it is normally not the case in contracts relating to the sale of immovable property. 4. The suit was filed within the limitation period prescribed under law, as it was filed within three years from the date of the defendants' reply to the plaintiff's pre-suit notice. 5. The conduct of the defendants, including their failure to perform their obligations under the sale agreement and their suppression of material facts, made the plaintiff entitled to a decree for specific performance in his favor.
Fact of the Case:
The plaintiff and the defendants entered into a sale agreement for the sale of a property. The agreement stipulated that the defendants would measure the land, obtain NOC, and collect the sale consideration at the rate of Rs.64,000/- per cent after measurement of the land. The plaintiff paid an advance amount of Rs.4 lakhs to the defendants. However, the defendants failed to measure the land or obtain NOC. The plaintiff measured the land with the help of a Firka Surveyor and found that the actual extent of the land was only 12.68 cents, as opposed to the 18½ cents mentioned in the sale agreement. The plaintiff issued a pre-suit notice to the defendants calling upon them to measure the land and execute the sale deed. The defendants replied to the notice, denying their obligation to measure the land. The plaintiff filed a suit for specific performance, seeking a decree directing the defendants to execute the sale deed for the 12.68 cents of land.
Finding of the Court:
The court found that the defendants had an obligation under the sale agreement to measure the land and obtain NOC before receiving the sale consideration. The court also found that the plaintiff was ready and willing to perform his part of the contract, as evidenced by his efforts to persuade the defendants to measure the property, his measurement of the property with the help of a Firka Surveyor, and his deposit of the balance sale consideration. The court further found that time was not the essence of the contract in this case, as it is normally not the case in contracts relating to the sale of immovable property. The court also found that the suit was filed within the limitation period prescribed under law, as it was filed within three years from the date of the defendants' reply to the plaintiff's pre-suit notice. Finally, the court found that the conduct of the defendants, including their failure to perform their obligations under the sale agreement and their suppression of material facts, made the plaintiff entitled to a decree for specific performance in his favor.
Issues: 1. Whether an obligation was fixed under the sale agreement on the defendants to measure the land, obtain NOC, and to collect the sale consideration at the rate of Rs.64,000/- per cent after measurement of the land? 2. Whether the plaintiff was ready and willing to perform his part of the contract? 3. Whether the time is essence of the contract in this case? 4. Whether there is lapse on the part of the plaintiff in filing the suit?
Ratio Decidendi: 1. A document has to be read as it is and no interpretation is permissible. 2. Normally, time is not the essence of the contract relating to the sale of an immovable property. 3. The conduct of the parties is very relevant for grant the relief of specific performance.
Final Decision: The court dismissed the appeal and confirmed the judgment and decree of the trial court, which had granted the plaintiff a decree for specific performance.
R. SUBBIAH, J.
1. The appeal has been filed against the judgment and decree dated 31.10.2012 in O.S.No.273 of 2007 passed by the 1st Additional District Court at Erode.
2. The appellants herein are the defendants 1 & 2 in O.S.No.273 of 2007 before the Trial Court. The said suit was filed by the 1st respondent herein/plaintiff for specific performance directing the appellants/defendants 1 & 2 to execute a registered sale deed in respect of the suit schedule property, after measuring and fixing the exact extent of the land as per the terms of the sale agreement dated 22.09.2005, free from all encumbrances, and to deliver possession thereof to him.
3. For the sake of convenience, hereinafter the appellants herein will be referred to as the defendants, the 1st respondent herein will be referred to as the plaintiff and the 2nd respondent herein/3rd defendant viz., the State Bank of India will be referred to as 'SBI'.
4. The facts of the case of the plaintiff inter alia are as follows_
4-1. The 1st defendant is the owner of the suit property by virtue of a registered partition deed dated 20.02.1989 and the 2nd defendant is the son of the 1st defendant. The defendants agreed to sell the suit property to the plaintiff for a sum of Rs.11,84,000/- at the rate of Rs.64,000/- per cent and they executed a sale agreement in favour of the plaintiff on 22.09.2005. On the date of entering into the said agreement, the defendants received a sum of Rs.4 lakhs as advance, as a part of the sale consideration, from the plaintiff. It was further agreed under the sale agreement that the plaintiff should pay further amount of Rs.4 lakhs before the end of Karthigai of Parthiba year and the remaining balance amount of Rs.3,84,000/- before the end of Thai i.e., 15.02.2006 and on receipt of the said amounts, the defendants should execute the sale deed in favour of the plaintiff. Further, it was specifically agreed between the parties under the sale agreement that before the execution of the sale deed, the suit land should be measured and on such measurement, for the available extent of land, sale price has to be calculated at the rate of Rs.64,000/- per cent. It was also agreed between the plaintiff and the defendants that the defendants should obtain NOC from the competent authorities and handover the same to the plaintiff at the time of execution of the sale deed. So, the execution of the sale deed would be completed only after compliance of the above said conditions. According to the plaintiff, time was not intended to be an essential term of the contract.
4-2. The plaintiff was always ready and willing to pay Rs.4 lakhs before 15.12.2005 and the balance amount of Rs.3,84,000/- before the end of Thai i.e., 15.02.2006 and take out the sale deed at his costs from the defendants. He was having sufficient funds with him. When the plaintiff tendered the amount, the defendants represented to the plaintiff that they will inform the plaintiff as soon as a surveyor is arranged to measure the subject land and that they were also taking steps to get NOC from the concerned authorities and that as soon as they get it, they would inform the plaintiff and receive the balance sale consideration and execute the sale deed. Thus, the defendants asked the plaintiff to wait for execution of the sale deed. Therefore, whenever the plaintiff met the defendants, the same representation was repeated by the defendants that they would take steps to measure the land and to get NOC from the concerned authorities.
4-3. While so, the plaintiff came to know from some of the neighbouring landowners that though the area covered under the sale agreement is mentioned as 18 1/2 cents, it would measure only about 12 cents. Hence, the plaintiff insisted the defendants for early measurement of the land. But, the defendants postponed the issue on one pretext or other. Hence, on 10.05.2006, the plaintiff himself measured the land with the assistance of a Firka Surveyor in the presence of the
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