IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on : 09.02.2022

Pronounced on : 25.02.2022

Coram:

THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN

Appeal Suit No.321 of 2013

& C.M.P.No.2320 of 2020

1. P.Krishnamurthy (Deceased)

2. K.Vasantha,

3. K.Ravi Shankar,

4. K.Ramesh,

... Appellants

Appellants 2 to 4 brought on record as LRs of the deceased 1^st

appellant vide order of Court dated 21.06.2017 by NKKJ made in

M.P.No.1 of 2014 in A.S.No.321 of 2013

/versus/

V.Balasubramaniya Iyer

... Respondent/Plaintiff

Prayer:- This Appeal Suit is filed under Section 96 of the

Code of Civil Procedure, read with order 44 Rule 1 of C.P.C.,

to set aside the decree and Judgment in O.S.No.26 of 2010 on

the file of the Learned District and Sessions Judge,

Thiruvarur, dated 05.12.2012.

For Appellants

: Mr.V.Raghupathi

For Respondent

: Mr.R.Muruga Bharathi

***

J U D G M E N T

This First Appeal is directed against the judgment

and decree of the Trial court passed in the suit for specific

performance. The aggrieved defendant is before this Court as

appellant.

2. The appellant assails the Trial Court judgment on

the ground that though the time was essence of the contract,

the Trial Court erred in allowing the suit for specific

performance in spite of the plaintiff’s failure to prove his

ready and willingness within the time prescribed and latches

in instituting the suit.

3. According to the appellant, in the suit agreement

dated 09/02/2008, the parties agreed to complete the contract

https://hcservices.ecourts.gov.in/hcservices/

within 2 months. The plaintiff/respondent paid only a part

consideration of Rs.6,00,000/- and failed to pay the balance

consideration within two months, hence the defendant/appellant

caused

notice

on

06/10/2008

calling

upon

the

plaintiff/respondent to fulfil his part of contract. The

plaintiff/respondent failed to pay the balance consideration.

After lapse of 2 years and 10 months from the date of

agreement the plaintiff/respondent instituted the suit on

21/12/2010 as if, he was always ready and willing to perform

his part of contract. The Court below without proper

appreciation of law and facts allowed the suit which is an

erroneous conclusion. Hence, the appeal is filed to set aside

the judgment and decree dated 05/12/2012 passed in

O.S.No.26/2010 on the file of District Court, Tiruvarur.

4. The facts relevant for consideration:

The suit agreement dated 09/02/2008 is an

unregistered sale agreement in respect of two pieces of land

one measuring 20-2/3 cents and another 0.01 cent where a

structure with compound wall existed. Under the terms of the

contract, which is marked as Ex.A-1, the parties have agreed

for:-

a). Receipt of Rs.6,00,000/- as advance by the

vendor towards part sale consideration.

b). Within one month from the date of agreement, the

vendor at his costs to demolish the old building in the 1 cent

of land except the compound wall on the southern side and

other amenities like electricity services and bore well.

c) Soon after the demolition of the old building and

levelling the field, the land to be measured with the

assistance of Taluk Surveyor to ascertain the extend for patta

land available and for that extend, the vendee to pay the

balance sale consideration at the rate of Rs.30,000/- per

kuzhi (approximately 576 sq.ft ; 3.02 kuzhi = one cent) within

a period of two months.

5. The vendor, who is the appellant herein, had

caused notice (Ex.A-2) dated 06/10/2008 through his lawyer to

the vendee, who is the respondent herein. In the said notice,

the vendor has alleged that he agreed to sell the property

meet his urgent financial need with specific understanding

that the vendee will pay the balance sale consideration within

two months and get the sale deed registered. The time was

essence of the contract. Though the vendor has completed his

part of contract and rea