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2020 Supreme(Mad) 950
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
N. Sathish Kumar, J.
K.Rajalakshmi - Appellant
Versus
S.Ganesan - Respondent
A.S.(MD)No.127 of 2017 and C.M.P.(MD)No.7117 of 2017
Decided On : 06-01-2020
Advocate Appeared:
For the Appellant : Mr. V. Meenakshisundaram, For Mr. T. Antony Arul Raj
For the Respondent: Mr. T.V. Sivakumar
Headnote:
Fact leading to file this appeal, reads as follows – Defendant has entered into an agreement of sale of suit property for total sale consideration and time fixed for completion is three months – On the date of agreement, a sum of as advance was paid to the defendant – Plaintiff is always ready to perform his part of the contract and he has approached the defendant for several times and requested to receive the balance sale of consideration – However, the defendant has stated that the property was mortgaged to third party and after redeeming the mortgage, the property will be sold, hence, requested further sum as advance – Accordingly, the plaintiff has paid a sum to the defendant – Despite the plaintiff has requested on several occasions, the defendant has evaded to receive the balance sale consideration and postponed the sale – Further, the plaintiff had paid a sum to the defendant – Held, On perusal of the above judgment, it is seen that the same cannot be applied to the facts of the present case – Readiness and willingness have to be proved from the very inception of the agreement as being not established by the plaintiff – Though time is not the essence of contract as far as the immovable property is concerned, the specific time agreed between the parties cannot be ignored altogether – When the parties agreed certain time within which agreement would be concluded, they have to perform their obligation – When the plaintiffs conduct clearly indicates that the alleged endorsement has been created for the purpose of case, only inference of this Court would be that the plaintiff has not come to the Court with clean hands – All these facts clearly indicate that the plaintiff has not come to the Court with clean hands. Coupled with the above discussion, the delay in approaching the Court even after the defendant rescinded the contract, itself clearly indicate that the plaintiff has not established the readiness and willingness – Accordingly, the suit filed for specific performance has to be dismissed and the judgment of the trial Court in that aspect is interfered and set aside – Appeal Suit is allowed
JUDGMENT :
(PRAYER: This Appeal Suit is filed under Section 96 of Civil Procedure Code, to set aside the judgment and decree dated 23.01.2017 in O.S.No.67 of 2012 on the file of the Additional District Court (Fast Track), Kumbakonam.)
Aggrieved over the judgment and decree of the trial Court, decreeing the suit filed for specific performance, the present appeal came to be filed.
2. The parties are referred to as per their rank before the trial Court.
3. The brief fact leading to file this appeal, reads as follows :-
The defendant has entered into an agreement of sale of suit property dated 27.12.2010 for total sale consideration of Rs.20,00,000/- and time fixed for completion is three months. On the date of agreement, a sum of Rs.1,00,000/- as advance was paid to the defendant. The plaintiff is always ready to perform his part of the contract and he has approached the defendant for several times and requested to receive the balance sale of consideration. However, the defendant has stated that the property was mortgaged to third party and after redeeming the mortgage, the property will be sold, hence, requested further sum of Rs.2,00,000/- as advance. Accordingly, the plaintiff has paid a sum of Rs.2,00,000/- to the defendant on 19.03.2011. Despite the plaintiff has requested on several occasions, the defendant has evaded to receive the balance sale consideration and postponed the sale. Further, on 21.05.2011, the plaintiff had paid a sum of Rs.50,000/- to the defendant. However, the defendant has refused to receive the same and sign in the endorsement made in the back of the sale agreement. The plaintiff has issued legal notice on 07.07.2011, which was replied by the defendant on 12.07.2011 with false allegations. Again the defendant has issued notice on 03.08.2011 with cheque for a sum of Rs. 3,00,000/-. Immediately, the plaintiff has sent reply notice on 10.08.2011 along with cheque. The plaintiff is ready and willing to perform his part of the contract. Hence, the suit has been filed.
4. It is the contention of the defendant that time stipulated in the agreement is three months. Therefore, the sale ought to have been completed on or before 27.03.2011. The plaintiff is not ready and willing to perform his part of the contract at any point of time. The alleged endorsement for Rs.50,000/- was also denied. The defendant has also revoked the contract and issued legal notice along with cheque. However, the same was refused by the plaintiff. Hence, the defendant has prayed for dismissal of the suit.
5. The trial Court, based on the above pleadings, has framed the following issues :-
(i) Whether the plaintiff is ready and willing to perform his part of the contract?;
(ii) Whether the plaintiff is entitled for specific performance as prayed for?;
(iii) Whether the plaintiff is entitled for alternative relief?;
(iv) What relief the plaintiff is entitled for?.
6. On the side of the plaintiff, P.W.1 and P.W.2 were examined and Exs.A.1 to A.9 were marked. On the side of the defendant, D.W.1 to D.W.3 were examined and no document whatsoever has been adduced.
7. The learned counsel appearing for the appellant vehemently contended that admittedly, the agreement entered into between the parties with specific time stipulation. The agreement was expired on 27.03.2011 and the entire sale consideration ought to have been paid by the plaintiff, whereas till 19.03.2011, a sum of Rs.3,00,000/- as advance has been paid. Thereafter, the plaintiff has never shown his readiness to pay the remaining sale consideration, whereas first time, legal notice was issued on 07.07.2011 by the plaintiff. In the above legal notice, there is no whisper whatsoever with regard to the alleged endorsement said to have been made in the back of the agreement dated 21.05.2011 for extending the time. Even in another legal notice dated 10.08.2011, the same is found missing. Only at the first time in the plaint, the alleged endorsement dated 21.05.2011 was pleaded, that itself clearly i
