The court affirmed that time is an essential term in contracts for specific performance, and failure to perform on the stipulated date justifies termination of the contract.

JUDGMENT :

N. SESHASAYEE. J.

PRAYER: Appeal filed under Section 96 of the Civil Procedure Code r/w Order 41 Rules 1 and 2 of C.P.C., against the judgment and decree dated 19.01.2016 in O.S.No. 6 of 2011 on the file of the Principal District Judge, Karur.

1. Challenging a decree dismissing their suit for specific performance in O.S.No. 6 of 2011 on the file of the Principal District Court, Karur, the plaintiffs therein have preferred the present appeal. Instead of granting a decree for specific performance, the learned District Judge has directed the first defendant to pay the plaintiffs the advance amount of Rs.50.0 lakhs which the plaintiffs had paid, with interest at 6% p.a. There is neither any cross objection, nor any cross appeal by the first defendant. For narrative convenience, parties would be referred to by their rank before the trial court.

2. A brief statement on the case of the plaintiffs may now be stated:

(a) The suit property is described as a block of land measuring 48.26 acres (19.53.0 h) and is comprised in Sy.Nos.1241, 1243, 1244, 1274 to 1276, 1277/1 and 1277/2 and 1279/1 of Pavithram Village, Aravakurichi Taluk. This property belonged to defendants 2 to 11.

(b) On 06.07.2009, vide Ext.A.1, defendants 2 to 11 had executed a General Power of Attorney authorising the first defendant to deal with the property. On the strength of this Power of Attorney, on 23.01.2010, under Ext.A.2, the first defendant had received Rs.1.0 lakh from the first plaintiff and had executed a receipt for the said sum. Ext.A2 evidences that the sale consideration for the purchase of 48.18 acres was fixed at Rs.3,02,500/- per acre.

(c) Subsequently on 24.02.2010, the first plaintiff had executed Ext.A3 document where in he had stated that on 03.03.2010, he undertook to pay Rs.49.0 lakhs as additional advance, upon which a formal sale agreement should be executed on that very day, and that the sale deed itself should be executed on 05.04.2010. Ext.A3 also reflects two additional facts: (i) that the first defendant had demanded an additional sum of Rs.7,00,000/- over and above the sale price, something the first plaintiff had agreed to pay; and (ii) that other than the documents which the first defendant had in his possession, first plaintiff would obtain the rest at his expenses.

(d) On 02.03.2010, the first plaintiff paid another sum of Rs.49.0 lakhs (in all Rs.50.0 lakhs including Rs.1.0 lakh paid under Ext.A.2). This brought into existence Ext.A.4 sale agreement dated 03.03.2010 as was contemplated in Ext.A3.

(e) Ext.A4 sale agreement (on which the cause of action would be found later), inter alia provided:

(i) that the first defendant had to survey and measure the suit properties to ascertain the actual extent available based upon which the total sale consideration payable might have to be ascertained;

(ii) that the plaintiffs should pay the balance sale consideration on 05.04.2010 and upon receiving the same, the first defendant would execute the sale deed, and if the plaintiffs default in performing their part of the contractual obligations, then they are liable to forfeit the entire advance amount;

(iii) that the first defendant should deliver the notarised copies of the documents available with him to the first plaintiff which would include a notarised copy of the receipt for payment of sale consideration to the owners of the property, the defendants 2 to 11; and

(iv) that the first defendant would execute the sale deed free of encumbrance and would also deliver the original title deeds of the property then.

(f) On 28.03.2010, the first defendant made arrangements to survey the property in the presence of the first plaintiff. However, when survey commenced, a third party objected to measure the property and claimed some share in the property, as a result of which the the survey operation aborted. It is in this backdrop, the plaintiffs issued Ext.A.5-paper publication, informing the public about Ext.A.4 sale agreement to the effect that if any