Point of law: fixation of period within which the contract has to be performed, does not make the stipulation as to time the essence of the contract. Where the contract relates to sale of immovable property, it will normally be presumed that the time is not the essence of the contract. Normally, in regard to contracts relating to sale of immovable properties, time is not considered to be the essence of the contract, unless such an intention can be gathered either from the express terms of the contract or impliedly from the intention of the parties as expressed by the terms of the contract.

JUDGMENT :

(Prayer: Appeal Suit has been filed under Section 96 of the Civil Procedure Code r/w Order 41, Rule 1 of the Civil Procedure Code against the judgment and decree of the learned Principal District Judge at Vellore, O.S.No.66 of 2015, dated 10.07.2017.)

(The case has been heard through Video Conferencing)

1. The appellant herein is the third defendant in the suit filed for specific performance. Aggrieved by the judgment and decree passed by the trial Court, the present appeal is filed.

2. Brief facts of the case is that, the plaintiff Panneerselvam entered into an agreement with the 1st defendant Baskaran, his minor sons Yogesh and Yuvasuriya in respect of the suit property for a sale consideration of Rs.11,00,000/-. The first defendant received a sum of Rs.10,00,000/- towards advance and part of the sale price from the plaintiff and acknowledged the receipt of the same. The property belonged to the first defendant and the other two defendants were added as formal parties to the agreement by way of caution by the first defendant. The part of the sale consideration was received by the first defendant in three instalments viz., Rs.5,00,000/- on 15.12.2012; Rs.1,00,000/- on 12.02.2013 and Rs.4,00,000/- on the date of agreement i.e. on 30.01.2014. The balance of Rs.1,00,000/- was agreed to be paid by the plaintiff within a period of 15 months from the date of agreement. The sale agreement was duly registered on the file of the Sub Registrar, Vellore.

3. The original settlement deed executed by the mother of the first defendant in favour of the first defendant handed over to the plaintiff. The plaintiff was ready and willing to pay the balance sale consideration and get the sale deed executed at his cost and expressed the same to the first defendant during the last week of April 2015. The defendant gave evasive reply. Again on 29.04.2015, the plaintiff called upon the defendants and requested them to receive the balance sale consideration and execute the sale deed. The first defendant sought one week time to perform his part of contract expressing some personal reasons. But, the plaintiff came to know that the first defendant was negotiating with the third parties to sell the suit property for higher price. Hence, legal notice dated 04.05.2015 was issued to the defendants calling upon them to receive the balance sale consideration and execute the sale deed on his behalf and on behalf of defendants 2 and 3. The first defendant received the notice on 05.05.2015. But, he failed to reply the notice. Hence, suit for specific performance of the contract of sale dated 30.01.2014 and injunction restraining the defendants or their agent from alienating the suit property to any third party thereby creating any encumbrance over the suit property.

4. Defendants 1 and 2 though received notice, remained ex parte. The minor third defendant through his Court guardian filed written statement denying his obligation to perform the contract. In the written statement, he pleaded complete ignorance about the agreement for sale executed by the first defendant on his behalf as natural guardian. Both defendants 2 and 3 were minors at the time of contract and therefore, the due execution of the agreement by the first defendant has to be proved by the plaintiff. No pre-suit notice was received by him from the plaintiff and the sale agreement was not for the benefit of the family and the said agreement for sale will not bind on him.

5. The Trial Court, based on the pleadings, framed the following issues:-

(1) Whether the allegation that the sale agreement is not for the benefit of the family?

(2) Whether the allegation that the sale agreement is binding upon the third defendant is true?

(3) Whether the plaintiff is to a decree of specific performance of contract?

(4) Whether the plaintiff is entitled to a decree of permanent injunction?

(5) To what other rel