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MADRAS HIGH COURT
T. Mathivanan, J.
R. Manoharan —Appellant
versus
N. Subbiah —Respondent
A.S. No. 1049 of 2007
Decided on 22.8.2011
Counsel for the Parties:
For the Appellant:Mr. J.R.K. Bhavanantham, Advocate.
For the Respondent:Mr. Md. Ibrahim Ali, Advocate.
IMPORTANT POINT
Specific performance of contract cannot be enforced in favour of a person who fails to aver and prove that he has performed or has always been ready and willing to perform essential terms of contract.
Headnote:Civil Procedure Code, 1908—Section 96—Specific Relief Act, 1963—Section 16(c) Appeal—Suit for specific performance of contract—Decreed by trial Court holding that time is not essence of contract—Contention of appellant/defendant that plaintiff was not ready and willing to perform his part of contract in compliance of proviso to Section 16(c) of Act 1963—Readiness and willingness—Held—Circumstances narrated by plaintiff in plaint as well in his evidence not adequate to prove his readiness and willingness to perform his part of contract—Plaintiff failed to prove that he was always ready and willing to perform his part at contract—Plaintiff not entitled to relief of specific performance— Decree granted by trial Court in favour of plaintiff not sustainable—Judgment and decree of trial Court set aside—Appeal allowed. (Paras 43, 47, 50, 53 and 56)
Result: Appeal allowed.
T. Mathivanan, J.— Challenge is made in this appeal by the defendant to the Judgment and Decree, dated 23.01.2007 and made in O.S.No.1433 of 2006, on the file of the learned II Additional Judge, City Civil Court, Chennai.
2. The facts, which absolutely necessary for the disposal of this appeal are as under:
The original legal characters of the parties to the suit may not be changed and be it as it is in the suit.
2.1. The suit is filed by the plaintiff against the defendant to execute the sale deed in respect of the suit schedule property after receiving the balance of sale consideration and in case the defendant fails to execute the sale deed, the Court may execute the sale deed in respect of the suit schedule property in favour of the plaintiff on deposit of balance of sale consideration.
2.2. That on 11.7.2005, the plaintiff had entered into an agreement of sale with the defendant and thereby, the defendant had agreed to sell the suit schedule property for a total sale consideration of Rs.5,55,000. On the date of sale agreement, the plaintiff had paid a sum of Rs.1,50,000 towards advance and it was mutually agreed to execute the sale deed in favour of the plaintiff within a period of two months and the plaintiff had also agreed to pay the remaining balance of Rs.4,05,000 at the time of registration of the sale deed.
2.3. Instead of executing the sale deed, the defendant had demanded a further amount of Rs.50,000 to meet out the surgery expenses of his mother. Believing the words of the defendant, the plaintiff had parted with a sum of Rs.60,000 on 15.10.2005 and the defendant had also acknowledged the receipt of the amount in the sale agreement.
2.4. In order to get approval for the suit property, the plaintiff with the consent of the defendant had applied for the approval through one Engineer Balasubramaniam. But, the defendant had given a letter to the concerned authority saying that the approval should not be given.
2.5. That on 21.11.2005 another amount of Rs.10,000 was given by the plaintiff to the defendant on his request. The receipt of this amount had also been acknowledged in the suit sale agreement. Altogether the plaintiff had paid a sum of Rs.2,20,000 to the defendant. That on 15.12.2005, the plaintiff had prepared a draft to execute the sale deed. But, once again, the defendant had failed to act upon his promise.
2.6. At the time of execution of sale agreement, the defendant had informed that there was no encumbrance in the suit property. But in fact, the suit schedule property was mortgaged with the Repco Bank and this fact was deliberately suppressed by the defendant. Hence, the plaintiff was constrained to issue a legal notice on 23.12.2005 and thereby, the defendant was called upon to come and execute the sale deed in favour of the plaintiff within one week. On receipt of the notice, the defendant had also given a reply stating that he was ready to return the advance amount. The plaintiff had also once again issued another notice to the defendant on 4.1.2006 calling upon the defendant to come and execute the sale deed. Since there was no response on the other end, the plaintiff was left with no other option excepting to file the suit. The plaintiff was always ready and willing to perform his part of contract and even ready to deposit the balance of sale consideration before the Court.
2.7. The defendant has contended in his written statement that after the payment of Rs.1,50,000 towards advance at the time of execution of sale agreement, the plaintiff had agreed to pay the balance of sale price on or before 10.9.2005. But he was dilly-dallying in paying the balance of sale consideration and was constantly seeking extension of time and upon such request of the plaintiff, the defendant had extended the time and upon such extension the plaintiff had paid only a piecemeal amount of Rs.60,000 on 15.10.2005. That on 21.11.2005, the plaintiff had approached the defendant and informed about his inability to mobiliz
