Point of Law: Specific performance of Agreement of Sale – Time essence of Contract - Time is not the essence of the contract especially when parties have extended the period by executing the sale-deed for a portion and thereafter receiving payments.

JUDGMENT :

Prayer: Appeal filed against the Judgment and Decree dated 07.11.20214 in O.S. No. 4523 of 2013 by the XIX Additional Judge, City Civil Court, Chennai.

1. The unsuccessful plaintiff in a suit for specific performance is the appellant before this Court. The facts in brief are as follows and parties are referred to in the same array as in the suit.

2. Plaintiff's Case:

(a) The plaintiff and the defendant had entered into an agreement of sale dated 14.12.2004, in and by which, the defendant had agreed to sell an extent of 3,670 sq. ft. in the premises bearing Survey No. 98/2A3, Thiruyvanmiyur, Channai-41. The agreement of sale was executed on 14.12.2004. Under the said agreement, the total sale consideration fixed was a sum of Rs. 13,00,000/- and a sum of Rs. 8,50,000/- was received on various dates as advance.

(b) It is the case of the plaintiff that despite her best efforts, the defendant was refusing to come forward to execute the sale-deed and ultimately she had to threaten the defendant that she would be approaching the Court for specific performance.

(c) In the year 2005, the defendant had informed the plaintiff and her father that his siblings and he had certain disputes, in respect to a Partition Deed dated 25.09.2001 executed between the defendant and his brother Ramachandran. The defendant had informed the plaintiff that he will not be in a position to sell the entire extent of 3,670 sq. ft. Thereafter, when the plaintiff had threatened to file a suit for specific performance, the defendant had agreed to sell 50 per cent of the agreed property, that is; an extent of 1820 sq. ft. on the southern side and agreed to complete the registration in respect of the balance extent of 1850 sq. ft. within one year.

(d) The plaintiff would contend that trusting this assurance, the plaintiff had registered the sale in respect of an extent of 1820 sq. ft. in favour of her mother. In the sale-deed executed in favour of plaintiff's mother, the sale consideration was shown as Rs. 8,50,000/- which was the total amount received by the defendant.

(e) After the registration of the sale in favour of the plaintiff's mother, the defendant, on various dates had received over a sum of Rs. 4,25,000/- towards the balance sale consideration for the remaining extent of 1850 sq. ft. Although the plaintiff had wanted to enter into a fresh agreement, the defendant had assured the plaintiff that it was not required.

(f) While so, it appears that the defendant and his siblings, in collusion, had filed C.S. No. 122 of 2008 on the file of this Court for partition in respect of the properties listed therein. One of the items of property included the property which was the subject matter of sale between the plaintiff and the defendant. The plaintiffs in the suit C.S. No. 122 of 2008 had also obtained interim orders restraining alienation. In the said suit, the plaintiff's mother had been arrayed as the 14th defendant.

(g) The defendant's mother who had entered appearance in that suit had filed a written statement stating that the plaintiffs therein had no right to the property. However, it appears that the plaintiff and his siblings had compromised the dispute and entered into a partition whereby each of the parties were allotted their respective shares. The plaintiff's mother was however not made a party to this compromise. Therefore, the plaintiff would submit that this compromise is not binding on her. In fact, steps have also been taken by her mother to set aside the compromise.

(h) The plaintiff would submit that out of the total sale consideration of Rs. 13,50,000/- the defendant had received a sum of Rs. 13,25,000/- and only a sum of Rs. 25,000/- was payable to the defendant and the plaintiff was ready and willing to pay the same. Since the defendant did not come forward to complete the sale, the plaintiff had issued a legal notice dated 23.05.2013 calling upon the defendant to execute and register the sale-deed. Though the same was received, there was