IN THE HIGH COURT OF JUDICATURE AT MADRAS

ORDERS RESERVED ON 16.02.2022

PRONOUNCING ORDERS ON 18.02.2022

CORAM

THE HONOURABLE JUSTICE MR.N.ANAND VENKATESH

SA No.441 of 2016

in CMP No.7531 of 2016

Prabakaran

..Appellant/Defendant

Vs.

Geetha

...Respondent/Plaintiff

Prayer : Second Appeal filed under section 100 of the Code of

Civil Procedure against the judgment and decree of Sub Court,

Kallakurichi dated 30.11.2012 made in A.S.No.14 of 2012

confirming the judgement and decree of Principal District

Munsif, Kallakurichi dated 23.11.2011 made in O.S.No.393 / 2009.

For Appellant

: Mr.S.Sounthar

For Respondent : Mr.V.Manohar

JUDGMENT

The defendant is the appellant in this Second Appeal.

2.The respondent/plaintiff filed a suit for specific

performance based on the agreement of sale dated 18.5.2007.

3. The case of the plaintiff is that the defendant is the

owner of the suit property and she entered into an agreement of

sale with the defendant on 18.5.2007. A sum of Rs.60,000/- was

fixed as the sale consideration and the plaintiff paid an

advance amount of Rs.50,000/- on the date of the agreement. The

further case of the plaintiff is that the balance sale

consideration of Rs.10,000/- must be paid to the defendant

within a period of 2 years and on receipt of the same, the

defendant has to execute a sale deed in favour of the plaintiff.

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4. It is stated that the plaintiff started approaching

the family manager of the defendant one month prior to the

expiry of 2 years as fixed in the agreement and was informing

that she is ready and willing to pay the balance sale

consideration. The defendant was not coming forward to execute

the sale deed after receiving the balance sale consideration.

Hence, a legal notice was issued on 4.7.2009 to the defendant,

calling upon the defendant to receive the balance sale

consideration and execute the sale deed in favour of the

plaintiff. Since the defendant did not act upon the legal

notice, the suit came to be filed on 15.7.2009 seeking for the

relief of specific performance.

5.The defendant filed a written statement and took a

stand that the plaintiff did not come forward to pay the balance

sale consideration within 2 years that was fixed in the sale

agreement and hence, the plaintiff is not entitled for the

relief of specific performance. The defendant also volunteered

to repay back the advance amount of Rs.50,000/- received from

the plaintiff.

6.Both the Courts below on appreciation of oral and

documentary evidence, found that the plaintiff has made out a

case and granted the relief of specific performance in favour of

the plaintiff. The defendant aggrieved by the same, has

preferred this Second Appeal.

7.This Court framed the following substantial questions

of law:

a) Whether the Courts below committed a Legal

error in construing that the time fixed in the suit

agreement is not essence of the contract over looking

the availability of forfeiture clause ?

b) Whether the plaintiff who failed to prove

her readiness and willingness to pay the balance sale

consideration before expiry of time stipulated in the

agreement is entitled to specific performance of this

contract?

8.

The learned counsel for the appellant submitted

that the time was the essence of the contract since the

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agreement itself fixed a time limit of 2 years for the plaintiff

to pay the balance sale consideration and get the sale deed

executed in her favour. This time limit expired on 17.5.2009.

Only after the expiry of the period, the plaintiff took the

first step of issuing a notice on 4.7.2009 and even without

waiting for a reply from the defendant, rushed to the Court and

filed the suit on 15.7.2009. Therefore according to the learned