A plaintiff may seek specific performance of contracts if time is not of the essence and valid amendments to pleadings do not alter the original cause of action established in a suit.

JUDGMENT :

K. GOVINDARAJAN THILAKAVADI, J.

1. O.S.A. No. 379 of 2018 is filed to set aside the judgment and decree dated 23.04.2018 passed by the learned Single Judge of this Court in C.S. No. 1059/1990.

2. O.S.A. No.55 of 2019 is filed to set aside the part of the judgment and decree passed in the same suit with regard to dismissal of the suit in respect of Item No.2 of the plaint schedule properties comprised in Survey No.212, Ramapuram Village, Saidapet Taluk, Kancheepuram District.

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

4. The above suit was originally filed by the appellant in O.S.A. No.55 of 2019/plaintiff for specific performance seeking direction to the appellant in O.S.A. No.379/2018/defendant to perform the agreement, dated 29.11.1987 and in default of compliance, seeking direction for execution of the sale deed through Court. During the pendency of the suit, a memo of compromise dated 16.02.1997 was filed and therefore, the plaint was amended as per the order of this Court. As per the amended plaint, the plaintiff seeks direction to the defendant to perform the agreement, dated 29.11.1987 and subsequent memo of compromise, dated 16.02.1997 and in default of compliance for execution of sale deed through Court.

5. The sum and substance of the case of the plaintiff is that, the plaintiff society entered into an agreement of sale with the defendant for sale of land to an extent of 0.06 acres in S.No.233 and 0.58 acres in S.F. No.234/3, totally an extent of 0.64 acres, in Ramavaram village at Rs.3,400/- per cent and paid Rs.1,000/- as advance; the land was under acquisition. The defendant executed a power of attorney on 26.11.1987 enabling the plaintiff to pursue denotification, and also consented to withdraw writ proceedings, following which the Government issued a draft withdrawal order on 03.01.1989 subject to the land being conveyed to the plaintiff. Time was not treated as the essence of the contract.

5.1. After exchange of notices in 1990 and the defendant’s failure to perform, the plaintiff filed the suit. During the pendency of the suit, the defendant in the said suit and other defendants in another suit in C.S. No.783 of 1991 and the plaintiff agreed to settle disputes through a compromise dated 16.02.1997. As per the said term, the price was fixed at Rs.12,000/- per cent and the extent in this suit increased to 3.37 acres (in lieu of 0.64 acres), while the land in the connected suit was reduced from 13.50 acres to about 2.35 acres. The defendant agreed to convey the increased extent both in his capacity as owner and as power of attorney for partners of M/s. New Rathna Brick Industries. Although a compromise decree was passed in the connected suit, the defendant failed to honour the compromise in this suit, despite receiving Rs.15,00,000/- on 16.02.1997 and Rs.5,00,000/- lakhs on 25.02.1997. The plaintiff obtained amendment of the plaint in 2002 to include additional lands as per the compromise, remained ready and willing to perform, and even sent a pay order for Rs.20,44,000/-, which was returned undelivered due to the defendant’s refusal. Hence, the plaintiff seeks specific performance.

5.2. The defendant, while admitting execution of the 1987 agreement and power of attorney, contends that the suit is false, fraudulent, and barred by limitation; that the agreement lacked enforceability and authority since the land belonged to M/s. New Rathna Brick Industries, a partnership firm of four partners, and was executed without consent of the others; and that it stood automatically cancelled due to the plaintiff’s failure to pay 20% advance by 15.01.1988 as required. The defendant further argues that since