The court affirmed that a plaintiff can seek part performance of a contract under Section 12 of the Specific Relief Act, even when part of the property is disputed, provided the plaintiff is ready and willing to perform.

JUDGMENT :

R.SUBRAMANIAN, J.

Prayer: Appeal filed under Section 96 read with Order 41 Rule 11 of the Code of Civil Procedure, 1908, praying to set aside the judgment and decree of the Principal District Judge, Krishnagiri, dated 03.04.2009 in O.S.No.57 of 2006.

For the sake of convenience, the parties are referred to as per their rank in the suit.

2. The instant appeal has been filed by the defendants in O.S.No.57 of 2006, a suit for specific performance.

3. According to the plaintiff, the defendants have entered into an agreement of sale on 05.10.2005 agreeing to convey an extent of 17.31 acres, which was described as Item Nos.1 to 8 in the agreement, for a total consideration of Rs.31,61,000/-. On the date of agreement, a sum of Rs.10,00,000/- was paid as advance. A period of one month was fixed for performance. The time fixed for performance ended on 04.11.2005. In the interregnum, the plaintiff paid a further advance of Rs.2,00,000/- and after 04.11.2005, the plaintiff paid a further advance of Rs.5,00,000/- on 06.11.2005 and another sum of Rs.1,00,000/- on 28.11.2005. Thus, the total sum of Rs.18,00,000/- was paid as advance.

4. On 10.12.2005 the plaintiff issued a notice demanding performance of the contract, claiming that he has been ready and willing to perform his part of the contract. A notice was sent by the defendants on 01.04.2006 without reference to the notice issued by the plaintiff on 10.12.2005 admitting the agreement and claiming that they have come to know that the power of attorney holder M.M.Suresh Kumar, who had executed the sale deed in respect of 7.39 acres out of 17.31 acres of land subject matter of the agreement had forged the signature of the owner Ms.Vijayalakshmi in the power of attorney on 04.12.1997 and therefore their title have become defective and hence they cannot convey the entire property. On the said ground the defendants wanted the plaintiff to cancel the agreement and take back the advance.

5. The plaintiff sent a reply to the said notice on 13.04.2006 seeking execution of the sale deed in respect of the remaining lands excluding the 7.39 acres of land which is in controversy. To this a re-joinder was issued by the learned counsel for the defendants, wherein, this request was not acceded to. Another notice was sent by the learned counsel for the defendants upon instruction of the defendants on 30.08.2006 requiring the plaintiff to take back the advance.

6. Thereafter, the plaintiff came up with the suit seeking specific performance in respect of the total extent of 9.90 acres out of the extent of 17.31 acres, excluding the land which, according to the defendants, was in dispute. The plaintiff in the plaint itself had pleaded that in view of the stand taken by the defendants that the property which is described as Item Nos.1 to 4 in the schedule to the sale agreement purchased from Vijayalakshmi through her power of attorney M.M.Suresh Kumar is in dispute and therefore the said land is excluded and he is ready and willing to pay the balance of sale consideration proportionate to the extent to which he is seeking conveyance.

7. This suit was resisted by the defendants contending that time is the essence of the contract. The plaintiff was not ready and willing to perform his part of the contract. Fortunately for the plaintiff, the defendants admitted the agreement and receipt of Rs.18,00,000/- as advance as claimed by the plaintiff. The dispute was only with reference to 7.39 acres of land which was purchased by the defendants from one Ms.Vijayalakshmi. It was also claimed that the defendants were not ready to sell the land in piecemeal and therefore the suit itself has to be dismissed. It will be pertinent to point out that the 2nd defendant did not file a written statement separately and she adopted the written statement filed by the 1st defendant admitting the execution of agreement.

8. On the above pleadings, the learned trial Judge framed the following issues :-

1. Whether the plaintiff is alwa