2019 Supreme(Mad) 1410

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
S.S. SUNDAR, C. SARAVANAN, JJ.
R. Gnana Arulmoni - Appellant
Versus
R.S. Maharajan - Respondent
A.S. (MD) No. 118 of 2013 & M.P. (MD) No. 1 of 2014
Decided On : 24-01-2019

Headnote:

Civil Procedure Code,1908 - Section 96 - Specific Relief Act - Section 16(c) - Suit Property - Sale deed – Suit For permanent Injunction - Suit property consists of two items and first item is an extent of acres cents and second item is an extent of acres cents - It is not in dispute that sale agreement was executed by appellant in favour of plaintiff - As per sale agreement sale consideration for first item and sale consideration for second item was fixed - Sale consideration for first item was fixed at the rate per cent and for second item sale consideration was fixed at rate of per cent - It is admitted that entire land shown as item 1 of plaint schedule was developed as Maharaja Nagar with housing plots - Similarly second item of plaint schedule was formed out as a layout - Based on power of attorney deed executed by defendant in respect of first item of property respondent/plaintiff has also sold plots - It is admitted that a sum of was paid as advance and as per agreement a further sum was payable on or before - It was also stated that remaining balance sale consideration shall be paid within a period of one year - Plaintiff came forward with suit to direct appellant to execute sale deed for second item of suit property after receiving balance sale consideration of - In plaint it is alleged that plaintiff had paid a sum of out of total sale consideration of for second item - Plaintiff has given particulars of payment - It is not in dispute that out of a sum of alleged to have been paid by plaintiff to defendant both parties without any dispute agreed that a sum of towards sale consideration of first item of property is admitted - However it is specific case of appellant that plaintiff has paid only a sum of as alleged by plaintiff - Though plaintiff admits that he has to pay a sum of towards balance on assumption that a sum of had already paid main issue in this case is with regard to actual payment made by plaintiff towards sale agreement - As against claim of plaintiff appellant/defendant admitted payment on several occasions to tune of towards sale consideration of item -Trial Court has categorically found that plaintiff though claimed to have paid a sum of he failed to prove some of payments and that as against plaintiffs claim that balance payable was only plaintiff is liable to pay a sum of - Since plaintiff has agreed to pay balance as per statement of defendant suit was decreed by trial Court - Trial Court has specifically found that plaintiff has failed to prove payments that were made according to him - Plaintiff himself has admitted in course of evidence that he has not made some payments which were stated to have been paid by plaintiff in plaint - Despite finding by trial Court that plaintiff has not proved payments by receipt or other evidence to tune of trial Court decreed suit without any explanation from plaintiff as to how plaintiff has proved his readiness and willingness - Plaintiff has filed a suit for following relief Directing defendant to execute sale deed for item of plaint scheduled properties in favour of plaintiff after receiving balance sale amount of from plaintiff and failing which liberty may be given to plaintiff to get sale deed executed to plaintiff through court For a permanent prohibitory injunction restraining defendant his men agents and anybody claiming right under him from making any encumbrance over item plaint schedule properties and from making any disturbance hindrance nuisance etc to plaintiffs possession and enjoyment over plaint schedule item and Awarding Cost - Whether plaintiff has been always ready and willing to perform his part of contract and performed his part of contract - Held, As regards suit for specific performance law is very clear that plaintiff must plead and prove his readiness and willingness to perform his part of contract all through right from date of contract till date of hearing of suit - Hence consistently this Court and Honble Supreme Court has repeatedly that plaintiff who has not pleaded and proved readiness and willingness is not entitled to relief of specific performance - Plaintiff even as per plaint averments is ready and willing to pay only a sum of even though amount payable by him is a sum of - It is to be noted that conduct of plaintiff in a suit for specific performance is most important factor as relief is an equitable relief - Even though this Court found there are other reasons for denying specific relief to plaintiff core fact that plaintiff was not ready to perform his part of contract in terms of agreement when suit was filed is established on admitted facts - Hence plaintiff is not entitled to relief - Hence judgment and decree of trial Court is liable to be set aside on this short ground - Defendant has proved his case that plaintiff is liable to pay a sum of as per agreement and plaintiff was not ready and willing to pay when suit was filed - Though plaintiff has not sought for any alternative relief for refund of money paid towards suit agreement Court of equity is entitled to give appropriate relief to render justice between parties - In course of argument Senior Counsel appearing for appellant agreed for granting a decree for refund of a sum of along with interest at rate of from date of plaint though according to him plaintiff is not entitled to seek any further relief having regard to conduct of plaintiff in this case - It is admitted that a sum of is lying with defendant from date of receipt of payments from April to March - This Court having regard to development of land and other circumstances is inclined to direct appellant to pay a sum - Above appeal is therefore, allowed and decree of trial Court for specific performance in on file of first Additional District Court is set aside - However appellant is directed to pay a sum of within a period of four months from date of receipt of a copy of this judgment either directly to plaintiff or to deposit to credit of suit in file of First Additional District Court Tirunelveli - On such deposit respondent/plaintiff is permitted to withdraw entire amount - Though suit property is stated to have been developed by plaintiff plaintiff shall have no right to claim any right of possession over any portion of suit second item - However, plaintiff is also entitled to have a charge over suit second item to recover amount as directed by this Court - Therefore plaintiff is also entitled to a decree to recover a sum of from defendant as per judgment in this appeal - Parties are directed to bear their respective costs – Appeal Allowed