IMPORTANT POINT
Agreement to sell – Suit seeking relief of specific performance cannot be allowed where Plaintiff was not ready and willing to perform his part of contract.

JUDGMENT

Feeling aggrieved by the Judgment and Decree dated January 3, 2017 passed in O.S. No.11 of 2014 by ‘the Principal District Court, Thiruvarur’ [‘Trial Court’ for brevity], the defendant therein has filed this Appeal Suit under Section 96 read with Order XLI Rule 1 of ‘the Code of Civil Procedure, 1908’ [‘CPC’ for short].

2. For the sake of convenience, hereinafter, the parties will be referred to as per their array in the Original Suit.

Plaintiff’s Case

3. The Suit Properties belong to the defendant. He had purchased the Suit Properties on different dates from different owners through Registered Sale Deeds in Documents Nos.342 of 2007, 345 of 2007, 430 of 2007, 547 of 2007 and 3461 of 2007. The defendant offered to sell the Suit Properties to the plaintiff. On December 20, 2010, the sale price was fixed as Rs.13,00,000/-(Rupees Thirteen Lakhs only) and on the same day the defendant had received Rs.4,00,000/- (Rupees Four Lacs only) from the plaintiff as advance and executed an un-registered Sale Agreement. As per the terms of Sale Agreement, the plaintiff has to pay Rs.3,00,000/- (Rupees Three Lakhs only) on or before April 30, 2011 to the defendant and further, the plaintiff shall pay the balance sale price of Rs.6,00,000/- on or before April 30, 2012. The plaintiff was always ready and willing to pay the balance sale price and perform his part of contract. Several times, the plaintiff called upon the defendant to execute Sale Deed. But the defendant failed to do so. Time was not the essence of the contract. From the date of Sale Agreement, the plaintiff has been in possession and enjoyment of the Suit Properties.

3.1. Further case of the plaintiff is that, while the matter stood thus, the defendant has filed a Suit in O.S. No.85 of 2012 on the file of Principal District Munsif, Thiruvarur, seeking permanent injunction against the plaintiff in respect of the Suit Properties and the same is pending till now. Therefore, the plaintiff has no other option except to file the present Suit seeking the relief of specific performance in favour of the plaintiff.

Defendant’s Case

4. The defendant filed written statement denying the allegations made by the plaintiff in the plaint. The defendant admitted the execution of Suit Sale Agreement as well as the receipt Rs.4,00,000/- as advance on the date of agreement. His case is that the plaintiff was not ready and willing to perform his part of the contract and also did not make the agreed payments on time as per the agreement. Hence, the plaintiff is not entitled for the relief of Specific Performance. The plaintiff has not deposited the balance amount of Rs.6,00,000/- in the present Suit as well as in the previous Suit in O.S. No.85 of 2012 filed by the defendant against the plaintiff for permanent injunction. Further, the Suit is clearly barred by limitation. The Suit is liable to be dismissed. However, on moral grounds, the defendant is ready to return Rs.7,00,000/- received from the plaintiff. Stating so, the defendant prayed to dismiss the Suit.

Trial Court

5. Based on the above pleadings, the Trial Court framed the following issues:—

‘1. Whether the plaintiff is entitled to the relief of Specific Performance against the defendant?

2. Whether the Suit is barred by limitation?

3. To what other relief?’

6. At trial, on the side of the plaintiff, plaintiff was examined as P.W.1 and one Balasubramanian was examined as P.W.2 and Ex-A.1 to Ex-A.4 were marked. On the side of the defendant, defendant was examined as D.W.1 and Ex-B.1 to Ex-B.6 were marked.

7. After full-fledged trial, the Trial Court concluded that the plaintiff was always ready and willing perform his part of the Sale Agreement. But the defendant refused to come forward to execute the Sale Agreement. The plaintiff proved that he paid a sum of Rs.7,00,000/- to the defendant and deposited the balance sale consideration of Rs.6,00,000/- into Court pending Suit. Upon arriving at these findings, the Trial Court decree