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IN THE HIGH COURT OF MADRAS
M.M. SUNDRESH, KRISHNAN RAMASAMY, JJ.
V. Suresh Kumar – Appellant
Versus
A. Ramasamy and Others – Respondents
A.S. No. 367 of 2014
Decided On : 17-03-2020
Specific Relief Act - Agreement of Sale - Whether time is essence of Suit Sale Agreement - Whether Plaintiff is entitled to decree of Specific Performance - Whether Plaintiff is entitled to get back Advance money - Case of Plaintiff in gist is that there was an Agreement of Sale entered into between himself and First Defendant in respect of Suit property bearing Plot comprised in R.S. part in Village at rate of per sq. ft - At time of entering into said agreement Plaintiff paid a sum to First Defendant as advance - Plaintiff further paid a sum As per Agreement First Defendant has to execute Sale-Deed in respect of aforesaid property within days from date of entering into Sale Agreement – However First Defendant has been postponing execution on grounds that he has to level ground provide culvert and drainage and has to plant trees - Finally when Plaintiff demanded First Defendant to execute Sale-Deed First Defendant demanded more money - Plaintiff issued a Legal Notice Ex.A.2 requesting First Defendant to fix a date for execution of Sale-Deed - First Defendant caused a reply Ex.A.4 raising false allegations – Hence Plaintiff instituted present Suit – Held, In a Suit for Specific - Performance even if both parties agreed it is for Appellant/Plaintiff to prove his readiness and willingness to execute Contract and it should be proved each and every day - While answering Point with regard to Issue court held that Appellant/Plaintiff has not proved his readiness and willingness to execute Contract until filing of Suit – Further moment Appellant/Plaintiff has made part of Sale consideration after expiry of days period that per se would show that Appellant/Plaintiff was not in a position to pay entire Sale consideration as agreed between parties until filing of Suit - Since Appellant/Plaintiff was not ready and willing and was not able to prove his readiness until filing of Suit though Court below has come to conclusion that time is not essence of Contract rightly denied to grant relief of Specific Performance - Court concur with findings of Court below with regard to Second and Third issues - So far as findings of Court below with regard to Fourth issue pertaining to grant of alternative relief for refund of money is concerned as Court below found that Appellant/Plaintiff was not entitled for relief of Specific Performance Court below granted alternative relief of refund of part of Sale consideration paid to First Respondent/First Defendant - Court do not find any perversity in same - In fact court also concurred with findings of Court below and held that Appellant/Plaintiff was not entitled for relief of Specific Performance - Court do not find any infirmity in Judgment and Decree passed by Court below – Accordingly Judgment and Decree passed by Court below to extent that Appellant/Plaintiff is entitled to refund of amount paid by him with interest stands confirmed - Insofar as case laws relied upon by Counsel for Appellant is concerned same are not applicable to facts of case on hand - Appeal dismissed
JUDGMENT :
KRISHNAN RAMASAMY, J.
1. The Plaintiff in O.S. No. 14 of 2010, on the file of the II Additional District Court, Salem, is the Appellant herein.
2. Originally, the Appellant/Plaintiff filed the Suit for Specific Performance of Contract or in the alternative for refund of the advance money of Rs. 20,00,000 with Interest at 18% p.a. and for Costs.
3. The case of the Plaintiff in gist is that, there was an Agreement of Sale entered into between himself and the First Defendant on 23.12.2007 in respect of the Suit property, bearing Plot Nos. 6 to 10, comprised in R.S. No. 43/4A part in Killiyur Village, Yercaud Taluk' at the rate of Rs. 275 per sq. ft. At the time of entering into the said agreement, the Plaintiff paid a sum of Rs. 5,00,000 to the First Defendant as advance. Thereafter, on 20.02.2009, the Plaintiff further paid a sum of Rs. 5,00,000. As per the Agreement, the First Defendant has to execute the Sale-Deed in respect of the aforesaid property within 90 days from the date of entering into the Sale Agreement. However, the First Defendant has been postponing the execution on the grounds that he has to level the ground, provide culvert and drainage and has to plant trees. Finally, when the Plaintiff demanded the First Defendant to execute the Sale-Deed, the First Defendant demanded more money. Therefore, the Plaintiff issued a Legal Notice, Ex.A.2, dated 30.11.2009, requesting the First Defendant to fix a date for the execution of the Sale-Deed. The First Defendant caused a reply, dated 14.12.2009, Ex.A.4 raising false allegations. Hence, the Plaintiff instituted the present Suit.
3.1. During the pendency of the Suit, the Plaintiff also filed an Application for impleading the Second Defendant as well as to incorporate Para No. 4(a) in the Plaint. According to the Plaintiff, the First Defendant entered into a Sale-Deed for Plot Nos. 6 to 10 on 11.09.2009 with the Second Defendant. This sale is subsequent to the Sale-Deed, dated 23.12.2007. Since the Sale-Deed executed by the First Defendant in favour of the Second Defendant is illegal, the Second Defendant is bound to execute the Sale-Deed in favour of the Plaintiff. Hence, the Plaintiff filed Application for impleading the Second Defendant.
4. The First Defendant filed Written Statement admitting the Sale Agreement entered into between himself and the Plaintiff, dated 23.12.2007 and receipt of Advance amount of Rs. 5,00,000 on 23.12.2007, and a sum of Rs. 5,00,000 on 20.2.2009. However, it is the case of the First Defendant that, even-though time limit for executing the Sale-Deed is 90 days as per Ex.A.1 and the Plaintiff paid Advance amount, the Plaintiff was not ready and willing to pay the entire Sale consideration. As per the Sale Agreement, dated 23.12.2007, the total Sale consideration will come around Rs. 33,00,000. Whereas, the Plaintiff has paid Rs. 10,00,000 only.
4.1. Further, it is averred by the First Defendant that even assuming, if the First Defendant is not ready to execute the Sale-Deed, the Plaintiff has to take steps to file the Suit by depositing the entire Sale consideration before the Court for execution of the Sale Agreement. However, the Plaintiff has not complied with the terms stated in the Agreement, as he has not filed any Suit and deposited the entire Court fee. Hence, the Plaintiff has not even proved his readiness and willingness to perform his part of the Contract.
4.2. In fact, the Plaintiff approached the First Defendant for return of the money and expressed his readiness not to proceed further with the Sale Agreement, and therefore, the First Defendant spent lots of money for developing the properties by way of levelling the ground, providing culvert and drainage and planting trees. After making such developments, the Plaintiff issued pre Suit Notice on 30.11.2009 to execute the Sale-Deed. After the Plaintiff expressed his unwillingness to perform the Contract, the First Defendant sold Plot Nos. 6 to 10 to the Second Defendant on 11.09
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