Specific performance denied for unexplained 13-year delay despite time not being essence; continuous readiness and willingness must be proven.

JUDGMENT

The unsuccessful plaintiff in a suit in O.S.No.400 of 2007 is the appellant herein.

2. The appellant/ plaintiff filed the above said suit seeking specific performance of the sale agreement dated 26.05.1994 and it was dismissed by the trial court. The findings of the trial court were affirmed by the first appellate court in A.S.No.19 of 2018 filed by the plaintiff. Aggrieved by the concurrent findings of the courts below, the plaintiff has come before this court by filing the present second appeal.

3. According to the appellant/plaintiff, the suit property belonged to the respondents/defendants and he entered into a sale agreement with them on 26.05.1994 to purchase the suit property for a sale consideration of Rs.43,500/- and he paid a sum of Rs.3,500/- as advance on the date of sale agreement itself. As per the terms of the sale agreement, the sale transaction had to be completed within six month time by paying the balance sale consideration amount, however, time was not the essence of the contract. It was stated by the plaintiff that the suit property was delivered to the plaintiff and he has been in possession and enjoyment of the same. It was further pleaded by the plaintiff that the defendants received a sum of Rs.5,000/- from the plaintiff towards part of sale consideration on 14.06.1997. It is the further case of the plaintiff that though he was always ready and willing to perform his part of contract, the defendants attempted to alienate the properties to third parties. Therefore, the plaintiff issued a pre suit notice to the defendants on 22.03.2007, calling upon them to complete the sale transaction. But the defendants refused to perform their part of contract through a reply notice dated 24.03.2007 by sending a demand draft for Rs.8,500/- dated 24.03.2007 to the plaintiff. In such circumstances, the plaintiff was constrained to file the present suit seeking specific performance of the sale agreement against the respondents/defendants.

4. The defendants filed a written statement and contended that time was treated as an essence of the sale agreement and they also denied the readiness and willingness of the plaintiff to perform his part of agreement. It was also contended by the defendants that the sale agreement was time barred and on these pleadings, they sought for dismissal of the suit.

5. Before the trial court, on the side of the plaintiff, he examined himself as PW1 and three other witnesses were examined as PW2 to PW4 and 21 documents were marked as Ex.A1 to Ex.A21. On the side of the defendants, the

2nd defendant was examined as DW1 and three other witnesses were examined as DW2 to DW4 and 19 documents were marked as Ex.B1 to Ex.B19.

6. The Trial Court, on appreciation of oral and documentary evidence available on record, came to the conclusion that the plaintiff failed to prove his readiness and willingness to perform his part of contract and dismissed the suit. Challenging the findings of the trial court, the plaintiff preferred an appeal in A.S.No.19 of 2019 on the file of the Subordinate Judge, Thiruvallur and the same was dismissed. Aggrieved by the concurrent findings of the courts below, the plaintiff has filed the instant second appeal.

7. The learned counsel for the appellant/plaintiff would submit that in the sale agreement, the defendants agreed to receive 8% interest, apart from the balance sale consideration, if the plaintiff failed to pay the balance sale consideration, within the stipulated time. Therefore, the parties never treated the time as essence of contract and in such circumstances, the courts below committed serious error in holding that the plaintiff has not proved his readiness and willingness to perform his part of