IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on : 30.06.2022 Pronounced on : 01.08.2022 Coram The Hon'ble Mr. Justice C.V.KARTHIKEYAN S.A.No.1766 of 2002 Janaki Ammal (died)

2.T.Shanmugasundaram ... Appellant

2^nd appellant brought on record as legal representative of the deceased sole appellant vide order of Court dated 14.07.2006 made in CMP.No.1850 of 2005.

Vs.

1.Amsaveni

2.Saroja (died)

3.E.Suseela 4.E.Vijaya

5.E.Jayanthi

6.E.Rajan

7.E.Balaji ... Respondents R2 died. Given up vide order of Court dated 06.07.2018 made in S.A.No.1766 of 2002 by (PRMJ). Memo dated 06.07.2018 is recorded.

Memo dated 06.07.2018 filed to given up R2 is hereby withdrawn vide Court order dated 02.08.2019 made in CMP.No.19977 of 2018 in S.A.No.1766 of 2002 (TKRJ).

The Second Appeal filed under Section 100 of CPC, against the judgment and decree made in A.S.No.27 of 1999 on the file of the Principal District Judge, Vellore, confirming the judgment and decree made in O.S.No.137 of 1986 dated 30.11.1998 on the file of the Sub Court, Vellore.

For Appellant : Mr.S.T.Bharath Gowtham For Mr.T.R.Rajaraman For Respondents : Mr.S.Rajendrakumar

JUDGMENT

th The 6 defendant in O.S. No. 137 of 1986 on the file of the Sub Court, Vellore is the appellant herein.

2.O.S. No. 137 of 1986 had been filed by G.R. Ethiraj, whose legal rd th representatives are the 3 to 7 respondents in the second appeal, originally against Padmavathi Ammal, who died pending the suit and whose legal th th representatives had been impleaded as 4 and 5 defendants, Amsaveni and st nd Saroja, the 1 and 2 respondents in the second appeal, and against T.M. Govindasami Mudaliar, who also died pending the suit, without leaving behind any legal representative and against T.M. Thiruvengada Mudaliar, th whose wife was later impleaded as the 6 defendant, the appellant herein, seeking performance of an agreement of sale dated 06.06.1983 with respect to the property described in the ‘A’ Schedule to the plaintiff, namely, 2.56 ¾ acres of land in S. Nos. 714/59, 714/51 and 714./46 in Katpadi, Vellore District.

3.By judgment dated 30.11.1998, the learned Sub Judge, Vellore, decreed the suit, but without costs, and directed specific performance of the agreement by the defendants by executing sale deed in favour of the plaintiff within a period of two months, and further directed the plaintiff to deposit the balance sale consideration within one month.

th

4.The 6 defendant, Janakiammal/appellant in the second appeal, then filed A.S. No. 27 of 1999 before the Principal District Court, Vellore. The plaintiff, G.R. Ethiraj, filed a cross appeal against denial of costs being granted. During the pendency of the appeal suit, the plaintiff, G.R. Ethiraj died and his legal representatives had been brought on record. By judgment dated 21.12.2001, the learned Principal District Judge, Vellore, dismissed the appeal suit with costs, and confirmed the decree passed in O.S. No. 137 of 1986. The cross appeal was also allowed.

th

5.Questioning the said judgment, the 6 defendant Janakiammal then filed the present second appeal. Pending the appeal, she died and her legal nd nd representative had been impleaded as the 2 appellant. The 2 respondent, th Saroja, who was the 5 defendant in the suit also died. By a memo06.07.2018, she was given up, but later by order dated 02.08.2019, that was withdrawn. The second appeal had been admitted on the following substantial questions of law :

“1. When time was stipulated in the original agreement for enforcement of contract, still is the learned Principal District Judge right in holding that time is not the essence of the contract ?

2. Whether the plaintiff was ready and willing to perform his part of the contract when admittedly the agreement came to be executed in 1983 and the payment was made in court in 1998 after the grant of decree ? and

3. When the plaintiff became a power agent of the plaintiff subsequent to the execution of the agreement of sale, is the learned Judge right in holding that the