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2022 Supreme(Mad) 2812
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
P. VELMURUGAN, J.
John Bau - Appellant
Versus
F.M. Antony & Another - Respondent
Cross. Objection(MD)No. 17 of 2006 In A.S. No. 10 of 2004
Decided On : 10-08-2022
For the Cross Objector:V.M. Balamohan Thampi, Advocate. For the Respondents:R. Murali, M/s. V.J. Latha, Advocates.
The plaintiff must prove readiness and willingness to perform the contract from the date of the agreement till the date of filing the suit, as required by Section 16(c) of the Specific Relief Act.
Headnote:
Specific Performance - Sale Agreement - Civil Procedure Code - Order 42 Rule 22 - R.S.No.516 - Vezhimalai Village - Sale consideration of Rs.6 lakhs for 20 acres and 12 cents - Possession handed over to plaintiff - Dispute over extent of land - Legal notices sent - Suit for specific performance filed - Trial Court dismissed specific performance but granted refund of advance amount - Cross-objection filed seeking specific performance - Cross-objection dismissed by Court
Fact of the Case:
Plaintiff entered into a sale agreement with defendants for a property in R.S.No.516, Vezhimalai Village. Dispute arose over the extent of land mentioned in the agreement. Plaintiff sent legal notices and filed a suit for specific performance. Trial Court dismissed specific performance but granted refund of advance amount. Cross-objection seeking specific performance was filed and dismissed by the Court.
Finding of the Court:
The Court found that the plaintiff failed to prove readiness and willingness to perform the contract from the date of the sale agreement till the date of filing the suit. The Court concluded that the cross-objection was devoid of merits and deserved dismissal.
Issues: 1. Validity of sale agreement and proper sale consideration 2. Entitlement of plaintiff to specific performance 3. Other relief entitled to by the plaintiff 4. Whether the suit is barred by the principle of limitation
Ratio Decidendi: The plaintiff failed to prove readiness and willingness to perform the contract, as required by Section 16(c) of the Specific Relief Act. The Court found that the plaintiff did not approach the Court or take steps to measure the property within a reasonable time, indicating unclean hands.
Final Decision: The cross-objection seeking specific performance was dismissed by the Court.
JUDGMENT
(Prayer: Cross-Objection filed under Order 42 Rule 22 of Civil Procedure Code praying this Court to dismiss A.S.No.10 of 2004 with costs and to modify the decree of the Lower Court for Specific Performance of sale of 10 acres out of 20 acres 12 cents of the suit schedule property and to direct the first appellant/defendant to execute the sale deed and on his failure, to execute the sale through the process of Court.)
1. The Cross-Objection is filed seeking to dismiss A.S.No.10 of 2004 with costs and to modify the decree of the Lower Court for Specific Performance of sale of 10 acres out of 20 acres 12 cents of the suit schedule property and to direct the first appellant/defendant to execute the sale deed and on his failure, to execute the sale through the process of Court.
2. Since the appeal suit is dismissed, Cross-Objection filed by the Cross-Objector is treated as an appeal.
3. The Plaintiff is the Cross-Objector and the defendants are the respondents in the present Cross-Objection. The defendants have filed the appeal suit in A.S.No.10 of 2004 and the same was dismissed on 28.07.2017 along with the same,the present Cross-objection is filed. The appellant as plaintiff has filed O.S.No.148 of 1998, on the file of the trial Court and after trial, the trial Court has dismissed the relief of specific performance, however, granting the alternative relief of refund of advance amount, against which, the defendants in the suit filed the appeal suit in A.S.No.10 of 2004. Seeking dismissal of the appeal suit and by claiming consequential prayer the appellant, the plaintiff as Cross-Objector, has filed the present Cross-Objection.
4. The brief facts of the plaint reads as follows:
The property in R.S.No.516 situated in Vezhimalai Village belongs to the defendants. On 3.6.1995, the respondents/defendants agreed to sell the suit property for a total sale consideration of Rs.6 lakhs and has also executed a sale agreement on receipt of Rs.3 lakhs towards advance amount. The suit property is measuring to an extent of 20 acres and 12 cents. Both the parties have agreed to conclude the sale as per the sale agreement on or before 10.12.1995 by receiving the balance sale consideration and to execute the sale deed in favour of the plaintiff. On the date of sale agreement, the possession of the suit property was handed over to the plaintiff. The defendants/respondents have agreed to measure the suit property before executing the sale deed and according to the extent of land had agreed to modify the sale consideration. When the plaintiff measured the suit property, there was only 10 acres and not 20.12 acres as mentioned by the defendants. When the same was revealed to the defendants and asked them to measure the suit property, they refused for the same. Hence the plaintiff has sent a legal notice to the defendants to satisfy the contract as per the agreement. The defendants refused to accept the same and it was returned to the plaintiff. The Plaintiff is always ready and willing to perform his part of contract, but the defendants have evaded for the same. Even though the possession was with the plaintiff, since there is a clause in the sale agreement to execute the sale deed within three months from the date of sale agreement, the plaintiff has again sent a legal notice on 11.6.1997 to the defendants to perform their part of contract. In the said legal notice, the plaintiff has requested the defendants to mention the date for execution of the sale deed and to get the sale consideration as per the extent of land available in the suit property. The defendants failed to reply for the same and hence it is necessary to appoint an Advocate Commissioner to measure and to find out the exact extent of the suit property. Hence the plaintiff has filed this suit for the relief of specific performance and the suit has to be decreed as prayed for.
5. The averments in the written statement filed by the first defendant, which was adopted by the second defend
