The requirement of consensus ad idem and the equitable discretion to grant specific performance.

JUDGMENT :

Prayer: Appeal Suit has been filed under Section 96 of the Civil Procedure Code, 1908, against the judgment and decree dated 09.10.2014 made in O.S.No.11 of 2009 on the file of the II Additional District and Sessions Judge, Vellore at Ranipet, Vellore District.

1. This Appeal suit filed by the defendant challenging the judgment and decree passed by the Trial Court in the suit filed for Specific Performance.

2. The sum and substance of the case is that the suit property belongs to the appellant herein. She entered into a sale agreement with the respondent on 30.08.2007 for sale consideration of Rs.14,00,000/- and advance of Rs.10,000/- was paid and it was agreed by the parties that the contract should conclude within six months. The respondent was ready and willing to perform his part of contract and called upon the appellant herein to produce the original title deed and the encumbrance certificate. To the legal notice dated 18.09.2007, there was no response from the appellant. Hence, the suit for specific performance was filed on 31.10.2008. The appellant herein inspite of receiving the suit summon failed to appear and contest the suit. Hence, he was called absent and set exparte. Exparte decree was passed on 15.06.2009 allowing the suit for specific performance.

3. The respondent herein, pursuant to the said exparte decree, deposited the balance sale consideration of Rs.13,90,000/- and sought for execution of sale deed. The appellant herein, thereafter filed an application to setaside the exparte decree. Her application filed under Order 9, Rule 13 of C.P.C., with delay was allowed by the trial Court on 20.06.2011. The said order was challenged by the respondent herein before the High Court in C.R.P.(PD)No.2873 and 2874 of 2011. The said revision petition was dismissed on 27.09.2011 with the following observations:-

“3. It is unfortunate that the defendant engaged three layers one after another, but no one protected and safeguarded the interest of the old lady. It was only after she came to know about the exparte decree, moved applications under Order 9, Rule 13 of C.P.C., along with petition for condoning the delay that has been allowed by the Court below. On these facts, I do not find any error in the impugned order passed by the Court below. These Civil Revision Petitions are dismissed.”

4. The appellant herein thereafter filed written statement in which she contended that the property belonged to her husband Ganesan and after his demise, she and other legal heirs of deceased Ganesan succeeded the suit property and she resides in the suit property. However, she does not have exclusive right or title over it. The respondent approached her to rent out a portion of the property for his clinic. She agreed and fixed a monthly rent of Rs.1,000/-. The respondent herein paid Rs.10,000/- as advance. Her signature was obtained in the document by misrepresentation it as a rental agreement. The respondent did not occupy the rented portion, but sought time to start his clinic. Suddenly, the appellant received a notice from the respondent demanding particulars of the title deed of the suit property. Only then, she realised that the respondent has fabricated the document perpetrated to be a sale agreement executed by her. She never had intention to sell the suit property nor signed the document with the intention to sell it.

5. The Trial Court framed relevant issues and tried the suit.

6. The respondent and one A.K. Baseer, the attester of the sale agreement were examined as PW-1 and PW-2. In support of the plaintiff, six exhibits were marked. The defendant was examined as DW1.

7. The Trial Court held that the respondent was ready and willing to perform his part of contract. The contract was not completed only due to the fault and delay committed by the appellant. Having agreed to execute the sale deed as per the terms of the contract in the execution proceedings, the appellant is estopped from refuting the terms of the contract.

8. Th