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IN THE HIGH COURT OF JUDICATURE AT MADRAS
G.K. ILANTHIRAIYAN, J.
S. Saraladevi Surana – Appellant
Versus
G.S. Sundararaj – Respondent
A.S. No. 371 of 2005
Decided On : 01-07-2021
Suit property - Sale consideration - Legal representative - Suit for specific performance - Plaintiff is that first defendant on her behalf and as power of attorney of second defendant executed an agreement for sale dated in favour of the plaintiff, thereby agreeing to sell suit property for a total sale consideration and paid a sum as advance - On date of agreement, plaintiff was put in possession of suit property and balance sale consideration was agreed to be paid on or before - Suit property was an incomplete construction - Plaintiff completed sconstruction by spending and let out to suit property to tenants - Subsequently, on various dates between first and second defendants have received a sum towards part of sale consideration and, totally a sum upto, in which a sum was received by on behalf of defendants 1 and 2 - Time was not essence of contract, since defendants 1 and 2 received balance sale consideration long – Plaintiff is ready and willing to perform his part of contract, defendants 1 and 2 had sent a letter dated stating that agreement was not performed on or before and as such they entered into a sale agreement with a third person - Immediately, reply notice was sent on and also rejoinder was sent onby defendants - As an after thought, another legal notice was sent and then plaintiff filed a suit for specific performance – Held, plaintiff failed to prove his readiness and willingness to perform his part of contract - Though, plaintiff alleged to have made payments to first defendant and other third persons, plaintiff failed to prove same before Court below - That apart, defendants 1 and 2 never authorised any person to receive any amount from plaintiff - Even assuming that plaintiff made some payments after expiry of date fixed in agreement for sale, subsequent payment has no effect while computing period of limitation as stipulated in contract - Judgments relied upon by learned counsel for first respondent were not helpful to case on hand - Defendants 1 and 2 received a sum as advance on date of agreement for sale - In fact, by their letter dated (Ex.A.3), they called upon plaintiff to come and collect advance amount which was paid by plaintiff and thereby revoked agreement for sale - Plaintiff is entitled to get back advance amount from defendants 1 and 2 herein - Suit is dismissed as far as relief of specific performance and suit is partly decreed in favour of plaintiff in respect of repayment of advance amount - Defendants 1 and 2 are directed to repay advance amount - Appeal Suit is partly allowed.
JUDGMENT :
G.K. ILANTHIRAIYAN, J.
1. The Appeal suit is filed against the Judgment and Decree dated 13.10.2004 made in O.S. No. 77 of 2004 on the file of the District Judge, Nilgiris at Uthagamandalam.
2. The third defendant is the appellant herein and respondents 4 to 9 are the legal representatives of the deceased first respondent/plaintiff. The second and third respondents are the defendants 1 and 2. The deceased first respondent filed a suit for specific performance.
3. For the sake of convenience, the parties are referred to as per their ranking in the trial Court.
4. The case of the plaintiff is that the first defendant on her behalf and as power of attorney of the second defendant executed an agreement for sale dated 18.03.1992 in favour of the plaintiff, thereby agreeing to sell the suit property for a total sale consideration of Rs. 5,00,000/- and paid a sum of Rs. 1,05,001/- as advance. On the date of agreement, the plaintiff was put in possession of the suit property and the balance sale consideration was agreed to be paid on or before 18.06.1992. The suit property was an incomplete construction. The plaintiff completed the construction by spending Rs. 1,12,306/- and let out to the suit property to the tenants. Subsequently, on various dates between 16.04.1992 to 03.03.1993, the first and second defendants have received a sum of Rs. 2,35,000/- towards part of the sale consideration and, totally a sum of Rs. 2,95,000/- upto 03.08.1993, in which a sum of Rs. 75,000/- was received by S. Ravishankar, Ramanan and Natarajan on behalf of the defendants 1 and 2. The time was not the essence of the contract, since the defendants 1 and 2 received balance sale consideration long after 18.06.1992.
5. Thereafter, when the plaintiff is ready and willing to perform his part of the contract, the defendants 1 and 2 had sent a letter dated 10.08.1994 stating that the agreement was not performed on or before 18.06.1992 and as such they entered into a sale agreement with a third person. Immediately, reply notice was sent on 14.09.1994 and also rejoinder was sent on 30.09.1994 by the defendants. As an after thought, another legal notice was sent on 21.10.1994, and then the plaintiff filed a suit for specific performance.
6. Resisting the same, the first and second defendants filed their written statement stating that the agreement for sale is admitted, but the time was made out as essence of the contract for completion of the sale. They also denied the subsequent payments which were allegedly made by the plaintiff i.e. a sum of Rs. 2,95,000/- between 15.04.1992 to 03.08.1993. Further, the payments made to Ravishankar and Natarajan were also denied by the defendants 1 and 2. According to them, the plaintiff was not ready and willing to perform his part of the contract within time as stipulated in the agreement for sale. Therefore, they sent a letter dated 19.08.1994, the plaintiff failed to perform his part of the contract, as such they have entered into an agreement for sale with the third person. They have conveyed the suit property in favour of the third defendant on 19.10.1995 and as such, the suit itself is barred by limitation and it is liable to be dismissed.
7. The third defendant filed a separate written statement stating that she purchased the suit property for valid sale consideration by a registered sale deed dated 19.10.1995. The alleged agreement for sale was already cancelled by the defendants 1 and 2 on account of failure of perform his part of the contract and committed default on payment of balance sale consideration. Therefore, prayed for dismissal of the suit.
8. On hearing the rival pleadings, the learned trial Judge framed the following issues for determination of the suit:
2. Whether the plaintiff was placed on possession of the
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