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IN THE HIGH COURT OF MADRAS
M.M. SUNDRESH, KRISHNAN RAMASAMY, JJ.
K. Murali - Appellant
Versus
M. Mohamed Shaffir - Respondent
A.S. No. 52 of 2016
Decided On : 10-12-2019
Constitution Of India,1950 - Article 54 - Civil Procedure Code,1908 - Order VII - Rule 11(d) - Indian Contract Act, 1872 – Section, 31 - Claim interest - Payment of balance amount - Appellant and first defendant in suit entered into an agreement for sale with total consideration - A sum as advance was also paid - Four months time has been fixed in said agreement to balance amount agreement further proceeds to state that appellant did not comply with his part contract or delays in making payment beyond specified time he would lose advance amount and agreement would become invalid - On refusal of first defendant or adopting any delaying tactics by him liberty is given to the appellant to work out the remedy before Court - Consequently he can also compel first defendant to perform his part of contract which is inclusive of rectification of mistake dispute arose between the appellant and his brother who has been arrayed as third defendant in suit pursuant to which a complaint was given against him by appellant- To be noted this dispute has arisen after the expiry of period specified in agreement for sale -Held, Court in expressed in slightly different circumstances doctrine of id quod clearly applicable to the case before us which in language of Herbert Broom in his book dealing with legal maxims is that certainty need not be ascertained at time for if fluxion of time a day will arrive which will make it certain that sufficient - A similar question had arisen in Brighton Club and Norfolk Hotel Company relied upon in the Madras case - An agreement plaintiff had supplied some furniture to defendant for which payment was made but after some delay - He claimed interest rule at Common Law did not allow interest in such a case and plaintiff in support of his claim relied upon statutory provision which could come to his aid only if the price was payable at a certain time - Blackburn observed that he did not have the slightest hesitation saying that agreement contemplated a particular day. Judges did not agree with him and that the statute did not require that the document should specify time of payment by mentioning the day of payment - If it specified the event upon which payment was to be made and if the time of event was capable of being ascertained requirements of section were satisfied same is position in the case before us requirement of Article is not that the actual day should necessarily be ascertained upon face of deed but that basis of calculation which was to make certain should be found therein – Court accordingly hold that under the agreement date for defendant to execute sale deed was fixed although not by mentioning a certain date but by reference to happening of a certain event redemption of mortgage; and, immediately after redemption by plaintiff defendant became liable to execute sale deed which the plaintiff was entitled to enforce period of limitation thus started running on that date case therefore covered by first part Article third column and not the second part - Appeal dismissed
JUDGMENT :
M.M. SUNDRESH, J.
1. This appeal is preferred against the judgment and decree of the trial Court in allowing the application filed seeking to invoke Order VII Rule 11(d) of the Code of Civil Procedure on the ground of the suit being barred by limitation.
2. The appellant and the first defendant in the suit entered into an agreement for sale on 10.3.2008 with the total consideration at Rs. 51,43,600/-. A sum of Rs. 5,00,000/- as advance was also paid. Four months time has been fixed in the said agreement to pay the balance amount. The agreement further proceeds to state that if the appellant did not comply with his part of contract or delays in making payment beyond the specified time, he would lose the advance amount and the agreement would become invalid. On the refusal of the first defendant or adopting any delaying tactics by him, liberty is given to the appellant to work out the remedy before the Court. Consequently, he can also compel the first defendant to perform his part of the contract, which is inclusive of rectification of mistake.
3. The dispute arose between the appellant and his brother, who has been arrayed as the third defendant in the suit, pursuant to which a complaint was given on 28.10.2008 against him by the appellant. To be noted, this dispute has arisen after the expiry of the period specified in the agreement for sale dated 10.03.2008.
4. According to the appellant, the second defendant took away the original agreement dated 10.03.2008. It is the further case of the appellant that he approached the first defendant for execution of the sale deed but it was declined on the ground of non-possessing of the original agreement by him. Thereafter, the appellant traced the copy of the agreement dated 10.03.2008 during the first week of December, 2010 and approached the first respondent. On his refusal, a legal notice was issued on 15.12.2010. The following averments in the legal notice would be appropriate:-
......
My client further states that since the said Ramesh Babu took the original agreement dated 10.03.2008 entered with you and my client also not having copy of sale agreement and that my client unable to take effective steps based on the sale agreement and my client orally informed you that as and when the original agreement came to the hands of my client he will make payment of balance amount and get sale deed from you."
5. Thus, on perusal, there is no difficulty in holding that even according to the appellant, his brother, namely, the third defendant created trouble in the month of October 2008 and that was the reason why he was unable to take steps to comply with the terms of the agreement. The averments by themselves would clearly show that till the last date of the performance mandated under agreement-10.07.2008, the appellant was obviously not ready and willing.
6. A reply notice was sent on 09.02.2011 by the first defendant denying the allegations made. A legal notice was also sent to the appellant by second defendant on 22.06.2011. It is alleged by the second defendant that the appellant entered into an agreement with him on 17.4.2008 with respect to the same suit property. Alleging that it was a forged document, a complaint was given by the appellant against defendants 2 and 3 which was also registered in Cr. No. 63 of 2011. A reply was also given to the said effect by the appellant to the second defendant's counsel on 22.07.2011.
7. A suit was filed by the second defendant against the appellant and the first defendant in O.S. No. 61 of 2011 for specific perform
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