Back
MADRAS HIGH COURT
Krishnan Ramasamy, J.
Vijayalakshmi – Appellant
versus
A. Ganesan (died) and Ors. – Respondents
S.A.(MD) No.469 of 2009 and M.P.(MD) Nos.2 and 3 of 2009
Decided on 4.9.2023
Specific Relief Act, 1963 – Sections 16 (c), 20 – Indian Evidence Act, 1872 – Section 114 – Specific performance – Entitlement – Duty of Court to see whether at time of entering into Agreement and throughout period of Agreement, parties were ready and willing to perform their part of Agreement –Agreement can be entered into between parties with no intention to execute same but until occurrence of certain event, same has to be reflected in Agreement itself – To avail equitable relief of specific performance, plaintiff has to establish his readiness and willingness to pay balance amount and to execute Sale Deed from date of Agreement till date of its expiry – Time limit provided in Agreement was about two and half years – Deceased first respondent / plaintiff, after period of two years and five months, had sent a telegraphic notice to appellant/defendant – No evidence available to prove readiness and willingness of deceased first respondent/plaintiff from date of Agreement till date of notice – Even subsequent to issuance of telegraphic notice, deceased first respondent / plaintiff did not take any effective step – Act of deceased first respondent / plaintiff would clearly confirm that he was not ready and willing to execute Agreement, but waiting for repayment of loan amount by appellant / defendant or for other reasons –If parties had no intention to execute Agreement at time of entering into Agreement and it was executed as security for loan or for some other purpose, in such case, unless and otherwise real intention of parties have been reflected in Agreement, no equitable relief of specific performance would be granted – Trial Court as well as Appellate Court failed to consider above aspects with proper perspective and committed grave error in decision making progress Impugned order set aside. [Paras 26, 27, 30, 31]
Result: Appeal allowed.
JUDGMENT
The appellant is the defendant in the suit in O.S.No.412 of 2002 on the file of the Subordinate Court, Periyakulam. The deceased first respondent is the plaintiff in the above suit.
2. The first respondent, who is the plaintiff in the suit has passed away and his legal representatives are brought on record as respondents 2 to 8.
3. The suit was filed by the deceased first respondent / plaintiff seeking for equitable relief of specific performance and permanent injunction restraining the appellant / defendant from alienating or encumbering the suit properties.
4. The case of the plaintiff is that the suit properties belong to the defendant. The defendant agreed to sell the properties to the plaintiff for a sale consideration of Rs.2,00,000/- and both parties registered a Sale Agreement dated 21.05.1998. On that day itself, the defendant received a sum of Rs.1,75,000/- as advance. As per the Sale Agreement, the defendant should receive the balance amount of Rs.25,000/- within a period of two and half years i.e., on or before 21.11.2000 from the plaintiff and execute a Sale Deed in favour of the plaintiff or the persons mentioned by the plaintiff at the cost of the plaintiff. The plaintiff sent a telegraphic notice dated 11.11.2000 to the defendant stating that he would wait in the Sub Registrar Office on 21.11.2000 and the defendant should come and execute the Sale Deed as per the Agreement. However, the defendant has not responded to the same. Though the plaintiff waited at the Sub Registrar Office throughout the day on 21.11.2000, the defendant has not come forward to execute the Sale Deed. Thereafter, the defendant had come to the plaintiff and promised orally that she will execute the Sale Deed and therefore, the plaintiff waited even after the expiry of the Agreement. However, since the plaintiff came to know that the defendant is about to execute a Sale Deed in favour of a third party, he has filed this suit for specific performance on 18.11.2000. It is his case that, in the meantime, the defendant and her husband filed a suit in O.S.No.68 of 2002 on the file of the District Munsif Court, Periyakulam against the plaintiff and his son seeking permanent injunction restraining them from interfering with the peaceful possession and enjoyment of the defendant and her family.
5. The case of the defendant is that for the past 14 years, for the purpose of Pickle Business, the defendant and her husband have received money from the plaintiff’s family and they also used to execute Sale Agreement as security. In a similar way, in the year 1995, Sale Agreements were executed along with Power of Attorney and upon Settlement of money, the Sale Agreements were not acted upon and the Power of Attorney was also cancelled. Subsequently, a sum of Rs. 2,00,000/- was borrowed from the plaintiff, for which the Sale Agreement dated 21.05.1998 came to be executed nominally at the Sub Registrar Office, Bodi in favour of the plaintiff. There are two schedules in the suit properties. The first schedule belong to the defendant and she had no intention to sell the same. The second schedule is a poromboke land measuring an extent of 30 cents. The defendant has settled the total sum of Rs.2,00,000/- in the month of August 2001. Since the plaintiff forced the defendant to execute the Sale Deed, the defendant and her husband have filed a suit in O.S.No.68 of 2002 on the file of the District Munsif Court, Periyakulam against the plaintiff and his son seeking for permanent injunction. The readiness and willingness alleged by the plaintiff is false, if so, the plaintiff would have filed the suit once he received summon in O.S.No 68 of 2002. Further, on the date of filing the present suit, the plaintiff has paid only a sum of Rs.1,000/- as stamp fee, which shows that he was not ready and willing to perform his part of contract. The contention that, subsequent to 21.11.2000, the defendant approached the plaintiff and promised to execute the Sale Deed i
Specific performance of contract – To avail equitable relief of specific performance, plaintiff has to establish his readiness and willingness to pay balance amount and to execute Sale Deed from date....
Specific Performance of Contract – Readiness and willingness does not mean readiness and willingness to pay or receive money but intention of parties to execute their part of Agreement from date of A....
The deceased plaintiff's failure to prove readiness and willingness to perform the contract and the lack of evidence to support the claim led to the setting aside of the lower courts' decisions.
The court ruled that a plaintiff must prove readiness and willingness to execute a sale agreement, and failure to do so, along with undue hardship to defendants, can preclude specific performance.
Specific performance – Relief of specific performance is equitable remedy – Plaintiff have to necessarily show their readiness and willingness in performing their part of contract from date of agreem....
To obtain a decree for specific performance, the plaintiff must prove continuous readiness and willingness to perform his part of the contract at all stages from the date of the agreement till the da....
Agreement to Sell – In a suit for specific performance of agreement, it is for Plaintiff to prove his readiness and willingness to perform his obligations under the agreement – Where a certain amount....
Time is of the essence of a contract if the parties have agreed that it is or if the circumstances of the case show that it is.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
