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IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. JAYACHANDRAN, J.
T. Palanisamy – Appellant
Versus
M. Varadarajan – Respondent
Appeal Suit No. 870 of 2014
Decided On : 24-02-2022
Civil Procedure Code,1908 – Section 96 - Limitation Act – Article 54 – Property - Contract - Sale agreement - According to plaintiff, he entered into a sale agreement with defendant in respect of suit property for a total sale consideration and advanced - As per unregistered written sale agreement, parties have agreed to complete sale transaction within a period of three months from date of the agreement - Time was not essence of contract - When the plaintiff expressed his readiness to complete contract and sought for original documents and encumbrance certificate, defendant delayed and denied production of original documents and encumbrance certificate - He was postponing registration under some pretext or another - Plaintiff issued a notice before expiry of the three months period - Calling upon to honor agreement, defendant receive notice but gave a belated reply with false averments and suit was filed for specific performance to enforce terms of contract - Whether he has propensity to purchase the property by paying the sale consideration – Held, In view of principles laid down by Hon’ble Supreme Court and total lack of evidence on side of plaintiff regarding readiness and willingness on his part soon after cause of action to institute suit for specific performance arose and unexplained delay in filing the suit, court constrained to hold that appellant is not entitled to relief of specific performance and trial Court has rightly declined to entertain his prayer - On equity, though trial Court has declined to give alternate relief, plaintiff has not prayed for that and said view of trial Court is supported by law and pronouncement of Hon’ble Supreme Court, subsequent view of Hon’ble Apex Court to grant lesser relief than, what prayed for to meet the ends of justice prompts this Court to grant alternate relief of refunding money advanced without any interest, within a period of two months from date of this judgment - Any delay beyond two months shall carry on interest of 12% p.a. - Said relief is granted to the plaintiff to avoid unjust enrichment and on principle of equity - Accordingly, this Appeal Suit is partly allowed.
JUDGMENT :
G. JAYACHANDRAN, J.
Prayer: Appeal Suit has been filed under Section 96 of the Civil Procedure Code against the judgment and decree dated 16.07.2014 passed in O.S. No. 587 of 2011 by the learned III Additional District and Sessions Judge, Coimbatore.
1. Appeal suit is preferred by the unsuccessful plaintiff who laid the suit for specific performance.
2. According to the plaintiff, he entered into a sale agreement with the defendant in respect of the suit property on 25.09.2008 for a total sale consideration of Rs. 16,00,000/- and advanced Rs. 2,00,000/-. As per the unregistered written sale agreement, the parties have agreed to complete the sale transaction within a period of three months from the date of the agreement. However, time was not essence of the contract. When the plaintiff expressed his readiness to complete the contract and sought for the original documents and encumbrance certificate, the defendant delayed and denied the production of the original documents and the encumbrance certificate. He was postponing the registration under some pretext or another. Therefore, the plaintiff issued a notice on 18.12.2008 before the expiry of the three months period. Calling upon to honour the agreement, the defendant receive the notice but gave a belated reply on 23.12.2008 with false averments and therefore, the suit was filed for specific performance to enforce the terms of the contract dated 25.09.2008.
3. The plaintiff had specifically contended that he has always been ready and willing to perform his part of contract and breach is caused only by the defendant, who has not come forward to execute the sale deed receiving the balance sale consideration.
4. The suit was contested by the defendant by filing a written statement wherein he has denied the averments made in the plaint. According to the defendant, the sale agreement dated 25.09.2008 was entered with the plaintiff with a specific understanding that the time will be the essence of the contract. While so, the plaintiff, who was not ready with the sale consideration, was postponing the payment of the balance consideration on the pretext that he is making arrangement for loan to complete the transaction. Ultimately, his attempt to get loan did not materialise and therefore, he could not complete the contract within the time prescribed. However, one week before expiry of the period prescribed, the plaintiff caused notice with the false claim that he is ready and willing to perform the contract and pay the balance consideration. The defendant sent a suitable reply dated 23.12.2008 refuting all the allegations and enclosing the xerox copies of all the title deeds pertaining to the suit property to the plaintiff and called him to pay the balance sale consideration on or before 25.12.2008 and get the sale deed executed in his favour, failing which he will loose advance amount.
5. On receipt of the reply notice, the plaintiff did not come forward to pay the balance consideration and get the sale deed registered. After abandoning the contract and lapse of nearly three years, the plaintiff had instituted the suit on 19.09.2011 just before expiry of three years limitation, as if the suit is filed within the limitation. Despite time was the essence of the contract and three months was fixed for performing the contract.
6. Based on the pleadings, the trial Court framed the following Issues:
(ii) Whether the plaintiff is entitled for the relief of permanent injunction as prayed for?
(iii) To what other relief?
7. Before the trial Court, on behalf of the plaintiff, the plaintiff and two other witnesses were examined and 13 exhibits were marked. On behalf of the defendant, one witness was examined and 3 exhibits were marked.
8. After considering the pleadings and evidence, the trial Court dismissed the suit on the ground that the plaintiff has advanced only a small amount and further, there is no e
Proof of continuous readiness and willingness is essential for specific performance; failure to demonstrate such readiness undermines entitlement to equitable relief.
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(1) Specific performance of agreement of sale –Alternative plea of refund of earnest amount and damage could not be bar to claiming decree for specific Performance of contract.(2) Specific performanc....
(1) Specific performance – Ordinary rule is that specific performance should be granted – It ought to be denied only when equitable considerations point to its refusal and circumstances show that dam....
Time is of the essence of a contract if the parties have agreed that it is or if the circumstances of the case show that it is.
Time is not automatically the essence of a contract unless expressly stated; the plaintiff's readiness and willingness to perform must be established.
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