Time is not the essence of a contract unless expressly stated; failure to perform within the stipulated time bars claims for specific performance.

JUDGEMENT

AHSANUDDIN AMANULLAH, J. Heard learned counsel for the parties.

Digitally signed by POOJA SHARMA Date: 2024.01.10 15:42:58 IST Reason:

Signature Not Verified

2. The present appeal is directed against the Final Judgment dated 28.04.2009 (hereinafter referred to as the “Impugned Judgment”) passed by the Madurai Bench, Madras High Court (hereinafter referred to as “the High Court”) dismissing a Second Appeal [S.A. (MD) No.1127 of 2008] filed by the appellants/original defendants.

BRIEF FACTS:

3. The appellants no.1, 2 and 3 entered into a registered Agreement of Sale (hereinafter referred to as the “Agreement”) with the respondents on 22.11.1990 to sell the suit property for a consideration of Rs.21,000/-, against which Rs.3000/- had been received in advance. Further, six months’ time was fixed for completion of the transaction. The appellants No.1, 2 & 3, in the meantime, had executed a Sale Deed with regard to the property in question with appellant no.7 on 05.11.1997 for a consideration of Rs.22,000/-. On 18.11.1997, the respondents sent a Notice to the appellants calling upon them to execute the Agreement. This led to the respondents filing of Original Suit No.165 of 1998 before the Munsif, District Court, Dindigul against the appellants for specific performance of the Agreement, damages and for recovery of money with interest. The suit stood dismissed by the Principal District Munsif Judge, Dindigul by order dated 10.09.2000. An appeal bearing A.S. No.258 of 2008 filed by the respondents was allowed by the First Appellate Court, and the same has been upheld by the High Court by the Impugned Judgment dated 28.04.2009. SUBMISSIONS BY THE APPELLANTS:

4. Learned counsel for the appellants submitted that as per the Agreement, the balance consideration amount of Rs. 18,000/- was to be paid within six months which was admittedly not done. He submitted that the so-called subsequent payments on 16.12.1990 of Rs.1,000/-;

on 15.04.1991 of Rs.3,000/-, and; on 17.09.1991 of Rs.2,500/- though were not actually paid to the appellants and even without admitting the same and accepting it for the sake of argument, the same is incorrect as the fingerprint expert has found the thumb-impression of the appellant no.1 as not matching the admitted actual sample thumb- impression of the appellant no.1. and, thus, the very basis of holding that time was not the essence of the agreement gets washed away. It was submitted that the Agreement stipulated that if there was default on the part of the respondents, the advance paid would be forfeited, and the entitlement to obtain the Sale Deed and get possession free from all encumbrances would also end.

5. It was submitted that once the fingerprint has been disapproved of by an expert and such report has been brought before the First Appellate Court, the claim based on such a document on which forgery has been committed itself renders the whole transaction inadmissible in law on the well- settled principle that the respondents did not come before the Court with clean hands as the entire claim was based on a forged document.

6. It was submitted that the claim of the respondents to have paid Rs.3,000/- on 18.09.1992; Rs.1,800/- on 24.07.1996; Rs.1,300/- on 25.07.1996 and Rs.1,000/- on 29.07.1996 i.e., a total of Rs.20,425/- and ultimately Rs.1,000/- on 21.04.1997 i.e., an excess of Rs. 425/- over the amount indicated in the Agreement, was false.

7. Learned counsel submitted that the endorsement(s) made not having been proved, it cannot be assumed that the respondents were ready and willing, or that they had, in fact, paid the excess amount.

8. It was contended that the Legal Notice sent on behalf of the respondents dated 18.11.1997 was clearly to get over the fatal lapses on their part and to give life to a dead cause i.e., revive the Agreement, which already stood incapable of being executed through Court due to efflux of time. On this issue, the contention was that readiness and willingness