Time is of the essence in contracts for immovable property; failure to prove readiness and willingness to perform the contract precludes specific performance.

JUDGMENT :

ANITA SUMANTH, J.

PRAYER: Appeal Suit - filed under Section 96 with Order 41 Rule 1 of CPC, to set aside the judgement and decree dated 30.08.2010 made in O.S.No. 53 of 2009 on the file of the Additional District Judge (Fast Track Court), Dindigul and allow this first appeal.

1. The appellant is the unsuccessful plaintiff and has challenged judgment and decree dated 30.08.2010 passed in O.S.No. 53 of 2009 by the Additional District Court (Fast Track Court), Dindigul. The submissions of Mrs.N.Krishnaveni, learned Senior Counsel on behalf of Mr.P.Thiagarajan, learned counsel on record on behalf of the appellant are set out below.

2. The parties had entered into an agreement for sale of the property at (suit property). The suit property ad-measured 1.12.0 acres 2.75 cent and housed a building thereupon. Possession of the suit property had earlier been with the Appellant as he had been running a Teacher’s Training Institute therein.

3. The parties had executed an agreement of sale on 21.06.2006 (marked as Ex.A1 by the Appellant) agreeing upon sale consideration of Rs.50 lakhs towards the sale. Rs.10 lakhs had been paid upfront as advance and the balance consideration of a sum of Rs.40 lakhs was to be paid within six months and the sale registered thereafter without demur.

4. The sale agreement records that there were no encumbrances over the suit property and if there were to be any such encumbrances, the vendor would clear the same at his cost and responsibility. The parties agreed to be legally bound by the clauses in the agreement which includes the timelines set out as well.

5. On 27.01.2007, the parties had entered into an agreement for extension of time and enhancement of consideration, marked as Ex.A2 by the appellant, and the relevant clauses provide as follows:

(Translation of the operative portion is as follows:)

‘Whereas, with the consent of parties 1 and 2, the expiration of this deed of sale agreement, entered into on 21st June 2006, since this set to expire by 22nd December (22.12.2006), having been extended for 6 months further from this day, on an agreement to get the document registered by 30th June (30.06.2007), the total sale consideration amount having been fixed at Rs.65 Lakhs, which is inclusive of Rs.50 Lakhs, being the total amount already arrived at, and Rs.15 Lakhs (including the articles), on this day, out of this balance amount of Rs.45 Lakhs, by taking into account, the total advance amount of Rs.20 Lakhs, which included Rs.10,50,000/- (Ten Lakhs and Fifty Thousand), already paid in cash on 21.06.2006 as an advance and Rs.4,50,000/- (Four Lakhs and Fifty Thousand) paid through ICICI Bank Cheque No. 67497 and Rs.5,00,000/- (Five Lakhs) paid through ICICI Bank Cheque No. 867498, a sum of Rs.15 Lakhs, are covenanted to be paid by the 1st party to the 2nd party to be kept in credit and the 1st party shall get the sale executed by and within 13th June forthcoming on payment of the balance amount of Rs.30 Lakhs to the 2nd party. The 2nd party covenants to make good and discharge any bank loan, personal loan or Government loan, chargeable to the property, if there is any, at his own costs. The consideration thus stood enhanced by a sum of Rs.65 lakhs.

6. Before the lower Court as well as in the preliminary stages of hearing of the appeal suit, the Appellant had contended that the amounts stipulated as advance had been paid to the respondent by way of cash and two cheques that had not been presented by the respondent. The respondent had countered, for his part, that the cheques had been presented, but dishonored. At the hearing on 22.09.2022, the respondent had been directed to produce the dishonored cheques along with the return slips from the bank.

7. Learned counsel for the Respondent/R2, Mr.Shangar Murali confirms today that the cheques are not available. As regards the component of the consideration stated to have been paid in cash, no receipt of acknowledgement has also been produced by the Appellant, t