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2020 Supreme(Mad) 2070
MADRAS HIGH COURT
SINGLE BENCH
S.M. Subramaniam, J.
MR.GOPALAKRISHNAN — Appellant
Vs.
K.LOGANATHAN — Respondent
A.S. No. 672 of 2014 and M.P.No.1 of 2014
Decided on : 17-02-2020
Counsel for Appearing Parties
K.Raja, for the Appellant; Mr.G.Sankaran, for the Respondent
A person seeking specific performance must establish sufficient means to settle the entire sale consideration to prove readiness and willingness. The Court can grant the alternate relief of refund of advance as a consequential relief, even without a specific prayer for it in the plaint.
Headnote:
specific performance - sale agreement - O.S.No.661 of 2011 - The Transfer of Property Act, 1882, Section 16(c) - The Code of Civil Procedure, Order VII, Rule 7 - The Code of Civil Procedure, Order XLI, Rule 33
Fact of the Case:
The plaintiff filed a suit for specific performance, claiming that the defendant evaded performing his part of the sale agreement. The Trial Court found that the plaintiff failed to establish readiness and willingness to settle the balance sale consideration, leading to the dismissal of the specific performance claim. The Court also considered the grant of alternate relief of refund of advance, despite no prayer for it in the plaint.
Finding of the Court:
The Trial Court found that the plaintiff did not possess sufficient funds to settle the balance sale consideration, leading to the dismissal of the specific performance claim. The Court also held that the alternate relief of refund of advance could be granted, despite no specific prayer for it in the plaint.
Issues: 1. Whether the plaintiff established readiness and willingness to perform the sale agreement. 2. Whether the Court can grant the alternate relief of refund of advance without a specific prayer for it in the plaint.
Ratio Decidendi: The Court emphasized that a person seeking specific performance must establish sufficient means to settle the entire sale consideration to prove readiness and willingness. Additionally, the Court held that the alternate relief of refund of advance can be granted as a consequential relief, even without a specific prayer for it in the plaint.
Final Decision: The Court confirmed the Trial Court's decision to dismiss the specific performance claim and directed the defendant to refund the advance amount with interest to the plaintiff.
JUDGMENT
1. The Appeal Suit is directed against the Judgement and Decree dated 18.02.2014 passed in O.S.No.661 of 2011. The plaintiff is the appellant in the appeal suit, who instituted a suit for specific performance, stating that the defendant is the absolute owner of the suit mentioned property and he acquired right through the sale deed dated 31.01.2007.
2.The plaintiff and the defendant had entered into a sale agreement regarding the sale of the suit mentioned property for a total sale consideration of Rs.20,00,000/-. It is contended by the plaintiff that he had paid an advance amount of Rs.1,00,000/- on the date of agreement and further agreed to settle the balance sale consideration, within a period of 30 days. Thereafter, the defendant has to execute a sale deed in favour of the plaintiff.
3.The plaintiff states that he is always ready and willing to perform his part of the contract, as per the terms and conditions of the suit sale agreement dated 09.06.2010. The plaintiff approached the defendant on many occasions and the defendant evaded to perform his part of the contract and therefore, the plaintiff was constrained to file a suit for specific performance by issuing a notice.
4.The defendant filed a written statement denying the averments as well as the allegations set out in the plaint. The defendant admitted the fact regarding the suit sale agreement, which was entered into between the plaintiff and the defendant on 09.06.2010, with reference to the suit mentioned property. The contention of the defendant is that the plaintiff was not ready and willing to perform his part of the contract, as per the suit sale agreement, and in fact, the time fixed for completion of sale was 30 days and the plaintiff was not ready to settle the balance sale consideration of Rs.19,00,000/-, within 30 days. The defendant further contended that the plaintiff had not expressed his readiness and willingness, so as to execute the sale deed and also regarding the payment of balance sale consideration.
5.The Trial Court considered the pleadings and framed the issues, as to whether the plaintiff is entitled for the decree of specific performance as prayed for and to what other relief, if any. The plaintiff was examined as PWl and he examined three other witnesses PW2 to PW5 and eight documents were marked as Ex.Al to Ex.A8. On the side of the defendant, he was examined as DW1 and he examined another witness DW2 and filed one document as Ex.Bl.
6.With reference to the issues, the Trial Court considered the admitted facts regarding the execution of suit sale agreement and payment of advance and proceeded further by stating that the plaintiff could not be able to establish his readiness and willingness in this regard. The Trial Court made a finding, which is extracted hereunder.
7. The perusal of the above finding, it is unambiguous that the plaintiff could not be able to establish that he was possessing sufficient money to settle the balance sale consideration in favour of the defendant. The bank account during the relevant point of time reveals that he was possessing a sum of Rs.800/- alone. With reference to the other deposits, the Trial Court found that those deposits were made available during the year 2013 and as per the suit sale agreement, the time granted to settle the balance was 30 days from the date of agreement. The Trial Court considered the documents as well as the evidences and arrived a conclusion that the plaintiff had not proved his readiness and willingness and therefore, he is not entitled for the relief of specific performance.
8.This Court is of the considered opinion, the relief of specific performance being discretionary, a person who instituted a suit for specific performance should establish that he had sufficient means to settle the entire sale consideration, so as to arrive a conclusion that he was ready and willing to perform his part of the contract. In the event of not establishing the fact that the plaintiff was not po
