Specific performance of a land-sale agreement was upheld. The Court held that time was not the essence, the purchaser proved readiness and willingness, and the vendors failed to perform their contractual obligations. The vendors’ appeal was dismissed without costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
A.S.No.745 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON JUDGMENT PRONOUNCED ON
02.08.2022
23.09.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI and THE HONOURABLE MR.JUSTICE S.SOUNTHAR
A.S.No.745 of 2010 and C.M.P.No.17276 of 2016
1.K.Sampathkumar 2.S.Vanaja @ Alamelu
... Appellants
Vs.
K.Sekar
... Respondent
Prayer : This First Appeal is filed under Section 96 of Code of Civil Procedure against the judgment and decree dated 21/06/2010 made in O.S.No.30 of 2007 on the file of the III Additional District Court, Pondicherry.
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For Appellants : Mr.G.B.Jeyakumar for M/s.S.A.Anandakumar
For Respondent : Mr.N.L.Raja, Senior Counsel for M/s.N.Murali
J U D G M E N T
[Judgment of the Court was delivered by V.M.VELUMANI,J.]
This Appeal Suit is filed against the judgment and decree dated 21/06/2010 made in O.S.No.30 of 2007 on the file of the III Additional District Court, Pondicherry.
2.The appellants are the defendants and the respondent is the plaintiff
in O.S.No.30 of 2007 on the file of III Additional District Court, Pondicherry. The respondent filed the said suit for specific performance of agreement of sale dated 25.09.2006 and consequently directing the appellants to execute the sale deed in favour of the respondent in respect of the suit properties, after receiving the balance sale consideration of Rs.35,95,000/- and in case the appellants fail to execute the sale deed, praying the Court to execute the sale deed in favour of the respondent in respect of the suit properties on deposit of
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balance sale consideration into court by the respondent and to direct the appellants to deliver possession of the suit properties to the respondent. The said suit was decreed as prayed for by the judgment and decree dated 21.06.2010.
Case of the respondent/plaintiff :
owners of the suit properties by virtue of three settlement deeds dated 24.02.1987, 26.02.1987 & 27.02.1987, two sale deeds dated 21.10.1992 &
22.10.1992 and three rectification deeds, all dated 19.10.1992. The appellants offered to sell the suit properties. The respondent agreed to purchase the same. After negotiation, the sale price was fixed at Rs.39,95,000/- including cost of Rs.1,10,000/- for motor pumpset. The terms and conditions was reduced in writing by agreement of sale dated 25.09.2006.
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As per the said terms, the total sale consideration was fixed at Rs.38,85,000/and Rs.1,10,000/- for motor pumpset. The respondent paid a sum of Rs.1,00,000/- as advance and balance sale consideration has to be paid within three months from the date of agreement of sale and get the sale deed executed in his favour. The appellants has to produce the original title deeds with regard to suit properties, no due land tax payment certificates, patta and encumbrance certificate, measure the suit properties with the help of Government surveyor, receive the balance sale consideration and execute the sale deed in favour of the respondent.
4.1. When the respondent approached the appellants to produce the original documents of title and survey the properties, the appellants requested some time to produce the documents and survey the suit properties. They also requested further advance and the respondent paid a sum of Rs.3,00,000/- on 04.10.2006 as further advance and obtained an endorsement on the backside of the agreement of sale dated 25.09.2006. After some time, when the respondent approached the appellants for completing the sale transaction, the appellants sought further time and informed the respondent
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that they will definitely comply with the terms of agreement of sale and there is no need for the agreement extending the time. While so, the appellants sent a notice dated 14.05.2007 revoking the agreement of sale dated 25.09.2006 alleging that the respondent failed to perform his part of contract within three months as per the agreement of sale dated 25.09.2006. The respondent met the appellants in person who informed him that the said notice dt.14.05.2007 is a formal notice and asked the respondent to send a formal reply. The respondent sent a reply dated 16.05.2007. The respondent also effected a paper publication on 18.05.2007 in Dinamalar Daily Newspaper requesting the public not to deal with the suit properties as the respondent came to know that the appellants are trying to sell the suit properties for higher price to third parties. The appellants sent a rejoinder notice dated 19.05.2007 with false allegations. The appellants filed O.S.No.16 of 2007 before the vacation court (subsequently transferred to Principal District Munsif Court and re-numbered as O.S.No.691 of 2007) for permanent injunction restraining the respondent not to interfere with the peaceful possession and enjoyment of properties by the appellants. The respondent was always ready and willing to pay the balance sale
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consideration and get the sale deed executed in his favour. For sale of immovable properties, time is not the essence of contract. The respondent filed the present suit for specific performance and consequential relief. The respondent has stated that he is willing to deposit the balance sale consideration if the court so directs and prayed for allowing the suit.
Case of the appellants / defendants :-
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on expiry of three months, the contract is automatically revoked and there is
no necessity for the appellants to issue any notice for revocation. It is not correct to state that notice dated 14.05.2007 was only a formal notice. The appellants offered to sell the suit properties to the respondent as they wanted to purchase 12 acres of land in Palur Village in a single block and informed the respondent about the same, even though it was not mentioned in the agreement of sale. Due to the failure on the part of the respondent to pay the balance sale consideration and get the sale deed executed, the appellants could not purchase the said properties at Palur Village and some third parties have already purchased the same. Now there is no necessity for the appellants to sell the suit properties. The respondent, without paying the balance sale consideration, tried to interfere with the possession of the appellants and hence they filed O.S.No.16 of 2007 before the vacation court (subsequently transferred to Principal District Munsif Court and re-numbered as O.S.No.691 of 2007) and interim injunction was granted in the said suit. The respondent did not file written statement and he was set exparte. Subsequently, the respondent filed application to set aside the exparte order when the suit was posted for filing proof affidavit. The respondent was not ready and wiling to
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perform his part of contract for long period. The right of respondent for specific performance is extinguished and the respondent is not entitled to equitable relief of specific performance and prayed for dismissal of the suit.
issues.
one A.M.Krishnamurthy was examined as P.W.2 and marked 12 documents as Exs.A1 to A12. The 1st appellant examined himself as D.W.1 and marked 16 documents as Exs.B1 to B16.
8.The learned Judge considering the pleadings, oral and documentary evidence, decreed the suit as prayed for holding that the respondent possessed sufficient means to pay balance sale consideration and he was ready and willing to perform his part of contract but the appellants failed to perform their part of contract and directed the respondent to deposit the balance sale consideration of Rs.35,95,000/- on or before 24.06.2010 alongwith interest @
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7.5% per annum from the date of plaint till the date of deposit.
9.Against the said judgment and decree dated 21.06.2010 made in O.S.No.30 of 2007, the appellants have come out with the present Appeal Suit.
10.The learned counsel appearing for the appellants contended that the learned Judge erred in holding that time is not the essence of contract. In the Agreement of sale, three months time has been fixed to pay the balance sale consideration and execute the sale deed. As per the agreement of sale, if the respondent fails to pay the balance sale consideration, advance amount would be forfeited. The production of original documents is not necessary for the respondent to complete the sale agreement. The learned Judge erred in holding that the appellants in the notice dated 14.05.2007, marked as Ex.A2 was not specific about what they want. The appellants, in the said notice has stated about non-performance of the contract by the respondent. The learned Judge erred in holding that the Revenue Department released Exs.B7 & B8 on 22.02.2007 and failed to consider the fact that non-release of Exs.B7 & B8 by
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Revenue Department was informed well in advance to the respondent. The respondent has not produced any material to show that he approached the appellants between 22.02.2007 to 14.05.2007 for executing the sale deed. The learned Judge erred in holding that the respondent had sufficient means to pay the balance sale consideration. Having sufficient means, does not amount to readiness and willingness of the respondent to perform his part of contract.
10.1 The learned counsel appearing for the appellants further submitted that the respondent, in his cross examination admitted that only after verifying the xerox copies of the documents of tile and being satisfied with the title of the appellant, he entered into an Agreement of Sale, Ex.A1. The respondent, admitted in his cross examination that the appellants informed him that all the documents are available and respondent agreed for registration of sale deed but he did not ask for the document. The appellants filed O.S.No.16 of 2007 before the vacation court (subsequently transferred to Principal District Munsif Court and re-numbered as O.S.No.691 of 2007). The learned Judge, taking note of the fact that the respondent failed to
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perform his part of contract, granted interim injunction. The same was brought to the notice of the respondent. The respondent, without appearing before the Court in O.S.No.16 of 2007, filed the present suit for specific performance of agreement of sale on the file of III Additional District Court, Pondicherry suppressing the suit filed by the appellants. When the appellants initiated legal proceedings, Agreement of Sale, Ex.A1 was automatically cancelled. As per Section 16 of the Specific Performance Act, the respondent is not entitled to equitable relief of specific performance. When time is fixed in the agreement, it can be extended only by specifically mentioning the extension so made in writing. The respondent effected paper publication dated 18.05.2007 making false allegations that appellants did not produce copies of documents and are delaying completion of agreement of sale. The respondent has verified the xerox copies of documents of title and only after being satisfied with the title of the appellants, entered into an agreement of sale, Ex.A1. The production of original documents will arise only after the respondent pays the balance sale consideration and at the time of execution of sale deed. The appellants agreed to sell the suit properties only with a view to purchase 12 acres of agricultural land at Palur village. In view of the delay
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on the part of the respondent, the appellants could not purchase the said agricultural land as the respondent did not pay the balance sale consideration and get the sale deed executed in his favour as per Agreement of sale dated 25.09.2006, Ex.A1. The said 12 acres of agricultural land was sold to third parties and hence the appellants are not interested in selling the suit properties to the respondent. In Ex.A1 it is specifically mentioned that the respondent has to pay the balance sale consideration within three months and complete the sale agreement. The respondent cannot let in any oral evidence contrary to the agreement. The respondent is not entitled for equitable relief of specific performance and relied on Paras 38, 39, 40 & 46 of the judgment of the Hon'ble Apex Court reported in Civil Appeal No.4703 of 2022
[U.N.Krishnamurthy (since deceased) thro'LRs. vs. A.M.Krishnamurthy]
dated 12.07.2022. The said paragraphs are extracted hereunder -
38. In this case, we cannot overlook the fact that the suit property is located in the industrial town of Hosur located about 30/40 kms. from Bengaluru. The Court is obliged to take judicial notice of the phenomenal rise in the price of real estate in Hosur. The proposition finds support from case reported in K.S. Vidyanadam v. Vairavan (supra). To quote this Court “we cannot be oblivious to reality and the reality is constant and continuous rise in the values of urban properties -fuelled by large scale migration of people from rural areas
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to urban centres and by inflation”.
39. Mr. Venugopal argued that the Plaintiff had only paid an insignificant amount of Rs.10,001/- as advance when the consideration was Rs.15,10,000/-. Having paid an insignificant amount the Plaintiff was not entitled to discretionary equitable relief of Specific Performance, as observed by this Court in Saradamani Kandappan v. S. Rajalakshmi14. The relevant paragraph of the judgment of this Court is set out herein below:-
37. The reality arising from this economic change cannot continue to be ignored in deciding cases relating to specific performance. The steep increase in prices is a circumstance which makes it inequitable to grant the relief of specific performance where the purchaser does not take steps to complete the sale within the agreed period, and the vendor has not been responsible for any delay or non-performance. A purchaser can no longer take shelter under the principle that time is not of essence in performance of contracts relating to immovable property, to cover his delays, laches, breaches and 14 (2011) 12 SCC 18 nonreadiness. The precedents from an era, when high inflation was unknown, holding that time is not of the essence of the contract in regard to immovable properties, may no longer apply, not because the principle laid down therein is unsound or erroneous, but the circumstances that existed when the said principle was evolved, no longer exist. In these days of galloping increases in prices of immovable properties, to hold that a vendor who took an earnest money of say about 10% of the sale price and agreed for three months or four months as the period for performance, did not intend that time should be the essence, will be a cruel joke on him, and will result in injustice. Adding to the misery is the delay in disposal of cases relating to specific performance, as suits and appeals therefrom routinely take two to three decades to attain finality. As a result, an owner agreeing to sell a property for rupees one lakh and receiving rupees ten thousand as advance may be required to execute a sale deed a quarter century later by receiving the remaining rupees ninety thousand, when the property value has risen to a crore of rupees.
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40. As argued by Mr. Venugopal, the fact that the suit had been filed after three years, just before expiry of the period of limitation, was also a ground to decline the Respondent Plaintiff the equitable relief of Specific Performance for purchase of immovable property. Mr. Venugopals argument finds support from the judgments of this Court in P.R. Deb and Associates v. Sunanda Roy15; K.S. Vidyanadam v. Vairavan16; Manjunath Anandappa v. Tammanasa 17 , Azhar Sultana v. B. Rajamani18; Saradamani Kandappan v. S. Rajalakshmi 19 .
46. It is settled law that for relief of specific performance, the Plaintiff has to prove that all along and till the final decision of the suit, he was ready and willing to perform his part of the contract. It is the bounden duty of the Plaintiff to prove his readiness and willingness by adducing evidence. This crucial facet has to be determined by considering all circumstances including availability of funds and mere statement or averment in plaint of readiness and willingness, would not suffice.
and prayed for allowing the appeal.
that as per the Agreement of Sale, Ex.A1, the appellants have to produce original documents of title for verification and also to survey the suit property with the help of Government surveyor. The appellants were not in a position
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to perform their part of contract, requested extension of time and further advance. At the request of the appellants, the respondent, on 04.10.2006 paid a sum of Rs.3,00,000/- as further advance. The appellants endorsed the same on the backside of the agreement of sale, Ex.A1 dated 25.09.2006. In view of the payment of further advance, at the request of the appellants, the time fixed in the agreement of sale has been automatically extended. In the agreement of sale of immovable properties, time is not the essence of contract unless it is specifically mentioned in the agreement itself. The appellants also have to produce no due land tax payment certificates, patta and encumbrance certificate. In Ex.A1, three months time has been fixed for completing the sale. The appellants were not in possession of original documents Exs.B7 & B8. Even after receipt of Exs.B7 & B8, the appellants did not inform about the same and did not offer for verification of the same by the respondent and also to survey the land. The appellants did not inform the respondent about the availability of documents even after the receipt of Exs.B7 & B8 from the Revenue Department. Only on 14.05.2007, the appellants sent notice to the respondent alleging that agreement of sale had been revoked. The appellants without informing the availability of original documents and calling upon the
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respondent to pay the balance sale consideration and get the sale deed executed in his favour, revoked the agreement of sale on the ground that the respondent did not pay the balance sale consideration for six months. The reason given in Ex.A2 notice is invalid and illegal. The respondent sent suitable reply on 16.05.2007, marked as Ex.A3 requesting the learned counsel for the appellants to advise the appellants to receive the balance sale consideration within one week and execute the sale deed. The respondent also informed that if the appellants failed to receive the balance sale consideration, he will be constrained to file suit for specific performance. The appellants sent rejoinder dated 19.05.2007 stating that agreement of sale was already revoked. In such circumstances, on receipt of rejoinder dated 19.05.2007, the respondent filed suit for specific performance on 14.06.2007. There is no delay on the part of the respondent in approaching the court for the relief of specific performance. The respondent reliably came to know that the appellants were making arrangements to sell the property for higher price. The respondent issued a paper publication in Dinamalar Newspaper informing the general public about the agreement of sale in his favour and not to deal with the appellants with regard to suit properties. The appellants after
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issuing a rejoinder notice dated 19.05.2007, also filed O.S.No.16 of 2007 before the vacation court (subsequently transferred to Principal District Munsif Court and re-numbered as O.S.No.691 of 2007) and obtained an exparte interim injunction against the respondent. In view of appellants unwillingness to perform their part of contract, issuing notice dated 14.05.2007, Ex.A2 and rejoinder dated 19.05.2007, Ex.A4 containing false allegations, the respondent filed the present suit for specific performance of agreement of sale. There is no delay on the part of the respondent in approaching the court for the relief of specific performance. The respondent has proved by oral and documentary evidence his capacity to pay the balance sale consideration and his readiness and willingness to pay the balance sale consideration and get the sale deed executed in his favour The appellants have failed to perform their part of contract and the respondent is entitled to discretionary relief of specific performance and he has proved his entitlement for the same. The learned Judge, considering the oral and documentary evidence, decreed the suit. There is no error in the judgment of the learned Judge and prayed for dismissing the appeal.
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11.1 The learned Senior Counsel appearing for the respondent, in
support of his contention, relied on the following judgments.
(i) 2019 (8) SCC 62-[R.Lakshmikantham vs Devaraji]
“(7) Mr.Lakshmaiah cited a long catena of English decisions to define the scope of a Court’s discretion. Before referring to them, it is necessary to know the fundamental difference between the two systems-English and Indian-qua the relief of specific performance. In England the relief of specific performance pertains to the domain of equity; in India, to that of statutory law. In England there is no period of limitation for instituting a suit for the said relief and, therefore, mere delay – the time lag depending upon circumstances – may itself be sufficient to refuse the relief; but, in India mere
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delay cannot be a ground for refusing the said relief, for the statute prescribes the period of limitation. If the suit is in time, delay is sanctioned by law; if it is beyond time, the suit will be dismissed as barred by time;in either case, no question of equity arises.”
(ii) 2017 (4) CTC 734 [ S. Deivanai and others vs . V.M. Kothandaraman]
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relevance to Clause 6 of the Sale Agreement.
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virtue of the said clauses, there are duties cast upon the defendants namely— i) measurement of the land covered under Ex.A.1 on or before 10.02.2007 to be taken and on such measurement a total amount payable by the purchaser to be calculated and informed and thereafter, the Plaintiff has to pay the balance consideration after deducting the advance amount of Rs. 10 lakhs. ii) the defendants have to produce the receipt for redemption of the mortgage iii) the defendants have to show the original title documents pertaining to the suit property and hand over the copies of the same on or before 10.02.2007.
(iii) 2017 4 SCC 654 [A.Kanthamani vs Nasreen Ahmed]
19. The filing of the suit for specific performance of an agreement/contract is governed by Section 16(c) of the Specific Relief Act, 1963 read with Article 54 of the Schedule to the Limitation Act, 1963. Form Nos. 47 and 48 of Appendix‘A’ to Code of Civil Procedure, 1908 prescribe the format of the plaint for such suit.
20. The Specific Relief Act, 1877 which stood repealed by the Act of 1963 did not contain provision analogues to Section 16(c). Yet in the absence of any such provision, its requirements used to be considered mandatory in the suits for specific performance by virtue of law laid down by the Privy Counsel in a celebrated case of Ardeshir H. Mama vs Flora Sasoon, AIR 1928 PC 208. It is in this Case which went to Privy Council from Indian Courts, Their Lordships laid down the following
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principle: “In a suit for specific performance on the other hand, he treated and was required by the Court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness, from the date of the contract to the time of the hearing, to perform the contract on his part. Failure to make good that averment brought with it the inevitable dismissal of his suit. Thus it was that the commencement of an action for damages being, on the principle of such cases as Clough v. London and North Western Railway Co. (1871) L.R. 7 Ex. 26 and Law v. Law (1905) 1 Ch. 140 a definite election to treat the contract as at an end, no suit for specific, performance, whatever happened to the action, could thereafter be maintained by the aggrieved plaintiff. He had by his election precluded himself even from making the averment just referred to proof of which was essential to the success of his suit. The effect upon an action for damages for breach of a previous suit for specific performance will be apparent after the question of the competence of the Court itself to award damages in such a suit has been touched upon.”
21.T he Act of 1963 then made the aforesaid requirement a statutory one by enacting Section 16 (c), which reads as under: -
“16. Personal bars to relief- Specific performance of a contract cannot be enforced in favour of a person-
(a)-(b)
(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than
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terms the performance of which has been prevented or waived by the defendant.
Explanation – For the purposes of clause(c)-
a) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;
b) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.”
25. The following observations of the Privy Council are apposite: “21…………..Their Lordships agree with this conclusion and the grounds on which it was based. It is true that the plaintiff 1 stated that he was buying for himself, that he had not sufficient ready money to meet the price and that no definite arrangements had been made for finding it at the time of repudiation. But in order to prove himself ready and willing a purchaser has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction. The question is one of fact, and in the present case the Appellate Court had ample material on which to found the view it reached. Their Lordships would only add in this connection that they fully concur with Chagla A.C.J. when he says:
"In my opinion, on the evidence already on record it was sufficient for the court to come to the conclusion ' that plaintiff 1 was ready and willing to perform his part of the contract. It was not necessary for him to ' work out actual figures and satisfy the court what specific amount a bank would have advanced on the mortgage of his property and the pledge of these shares. I do not think that any jury--if the matter was left to the jury in England--would have come to the conclusion that
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a man, " in the position in which the plaintiff was, was not ready and willing to pay the purchase price of the shares which he had bought from defendants 1 and 2."For the foregoing reasons, their Lordships answer question(4) in the affirmative.”
(iv) 2004 (8)SCC 689 [Swarnam Ramachandran vs Aravacode
Chakungaljayapalan]
12. That time is presumed not to be of essence of the contract relating to immovable property, but it is of essence in contracts of reconveyance or renewal of lease. The onus to plead and prove that time was the essence of the contract was on the person alleging it, thus giving an opportunity to the other side to adduce rebuttal evidence that time was not of essence. That when the plaintiff pleads that time was not of essence and the defendant does not deny it by evidence, the Court is bound to accept the plea of the plaintiff. In cases where notice is given making time of the essence, it is duty of the Court to examine the real intention of the party giving such notice by looking at the facts and circumstances of each case. That a vendor has no right to make time of the essence, unless he is ready and willing to proceed to completion and secondly, when the vendor purports to make time of the essence, the purchaser must be guilty of such gross default as to entitle the vendor to rescind the contract.
13. Applying the above principles to the facts of the present case, we find that there was no justification in claiming, in the circumstances, to treat time as of the essence. At the outset, referring to the original agreement dated 18.2.1981, there is nothing in the express stipulation between the parties to show that the intention was to make the rights of the partiesdependant upon the observance of the time limits. Prima facie, equity treats the importance of such time limits as being
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subordinate to the main purpose of the parties. [See: JamshedKhodaramIrani v. BurjorjiDhunjibhai reported in [AIR 1915 PC 83].
(v) 1993 (1) SCC 519 [ Chand Rani Vs Kamal Rani]
19. It is a well-accepted principle that in the case of sale of immovable property, time is never regarded as the essence of the contract. In fact, there is presumption against time being the essence of the contract.This principle is not in any way different from that obtainable in England. Under the law of equity which governs the rights of the parties in the case of specific performance of contract to sell real estate, law looks not at the letter but at the substance of the agreement. It has to be ascertained whether under the terms of the contract the parties named a specific time within which completion was to take place, really and in substance it was intended that it should be completed within a reasonable time. An intention to make time the essence of the contract must be expressed in unequivocal language.
the learned Senior counsel appearing for the respondent and perused the entire materials available on record.
13. Points for consideration arisen in this appeal are -
(i) Whether time is essence of contract ?
(ii) Whether the respondent was ready and willing to perform his part
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of contract and entitled to decree of specific performance ?
Point Nos.1 to 3 :-
14.1 From the materials on record, it is seen that as per Agreement of Sale, Ex.A1, the appellants have to produce original documents of title of the suit property of appellants, Encumbrance certificate, patta, no due certificate for payment of land tax and to survey the land with the help of Government surveyor. According to the respondent, the appellants were not having original title deeds and requested time to produce the same and requested payment of
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further advance. On such request, the respondent paid a sum of Rs.3,00,000/- on 04.10.2006 as further advance and got endorsement on the backside of the Agreement of Sale dated 25.09.2006. It is well settled that in Agreement of Sale involving immovable properties, time is not the essence of contract unless wordings found in contract, attending circumstances and conduct of parties make time as essence of contract.
14.2. In the present Agreement of Sale, Ex.A1, there is no mention that time is essence of contract. The appellants have taken a stand that they agreed to sell the suit properties only to purchase 12 acres of agricultural land in Palur Village. There is no such clause in the Agreement of Sale, Ex.A1. In the absence of any specific clause in the Agreement of Sale, the contention of the learned counsel for the appellants that time is essence of contract and the failure on the part of the respondent to pay the balance sale consideration even after six months, agreement is revoked, is without merits. This is further fortified by the facts that further advance of Rs.3,00,000/- was paid to the appellants on 04.10.2006. Secondly, the appellants received original sale deeds Exs.B7 & B8 from the Revenue Department only on
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22.02.2007. These facts clearly show that time of three months fixed in Ex.A1 was extended when the respondent paid Rs.3,00,000- as further advance to the appellants. The appellants did not deny that they received Exs.B7 & B8 from the Revenue Department only on 22.02.2007. The appellants have also not informed the respondent about receipt of Exs.B7 & B8 on 22.02.2007 or on any subsequent date. When the appellants were not in possession of original documents and have not made any arrangements to survey the land with the help of Government surveyor, it is not open to the appellants to contend that the respondent has committed breach and terms of Agreement of Sale. The appellants have not offered to produce the documents of title alongwith Encumbrance certificate, patta, no due certificate for payment of land tax, to the respondent for verification. The contention of the learned counsel for the appellants that respondent admitted that he verified xerox copies of the documents and entered into Agreement of Sale, Ex.A1 only after being satisfied with the title of document and therefore nonproduction of original documents of title cannot be said that appellants did not comply with the terms of Agreement of Sale is contrary to the Agreement of Sale, Ex.A1. The said clause in Ex.A1 in vernacular language is extracted
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for easy reference.
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14.3. As per the above clause, the appellants agreed to produce the
original document of title alongwith Encumbrance certificate, no due land tax payment certificate, patta and survey the land with the help of Government surveyor. The appellants have not proved that they informed the availability of original document of title of the appellants and other documents to the 30/37
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respondent and also have not made any arrangements to survey the land with the help of Government surveyor. When the appellants agreed to perform certain acts for completion of sale agreement they have to perform the same in full. In view of the above facts, the contention of the appellants that in the notice dated 14.05.2007, Ex.A2, the Agreement of Sale is revoked as the respondent failed to pay the balance sale consideration even after six months is invalid and illegal. When the appellants have failed to perform their part of contract, it cannot be said that respondent committed breach of terms of Agreement of Sale as he did not pay the balance sale consideration within three months as fixed in the Agreement of Sale, Ex.A1.
14.4. As far as readiness and willingness of the respondent to perform his part of contract is concerned, according to the learned Senior Counsel appearing for the respondent, when the respondent offered to pay balance sale consideration and requested the appellants to produce the original document of title, the appellants sought time for production of documents and at the request of the appellants, the respondent paid further advance of Rs.3,00,000/- to the appellants. The payment of Rs.3,00,000/- by the
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respondent to the appellants on 04.10.2006 is admitted by the appellants. The respondent, before the trial court produced Exs.A6 to A9, sale deeds dated 29.11.2006, 28.06.2007 & 03.01.2007 and Exs.A10 to A.12, Form 32 of Permit to Distilleries Pvt. Ltd., Income Tax Returns for the year 2007 – 2008 by the respondent through Premier Distelleries and Receipts of payment of Income Tax and proved that he had sufficient means to pay the balance sale consideration. Ex.A6 dated 08.01.2008 shows that the respondent purchased the said property on 29.11.2006, within two months from the date of Agreement of Sale, Ex.A1. The other purchases made by the respondent, Exs.A7 to A.9 – sale deeds, all dated 08.01.2008 also were within a short time from the date of Agreement of Sale, Ex.A1. The payment of Rs.3,00,000/- as further advance on 04.10.2006 will clearly show that the respondent offered to pay the balance sale consideration and only the appellants requested further time.
14.5 In view of the same and materials on record in its entirety, it is
proved that the respondent was having sufficient means to perform his part of contract and he was always ready and willing to perform his part of contract
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but only the appellants did not perform their part of contract. The appellants, after issuing notice, Ex.A2 and rejoinder notice dated 19.05.2007, Ex.A.4 to the reply of notice issued by the respondent dated 16.05.2007, Ex.A3 filed O.S.No.16 of 2007 before the vacation court (subsequently transferred to Principal District Munsif Court and re-numbered as O.S.No.691 of 2007) and obtained interim injunction. The learned Senior Counsel for the respondent further submitted that appellants were making arrangements to sell the suit properties for a higher price to third parties and therefore the respondent issued paper publication informing the general public that he is the agreement holder in respect of the suit properties and requested the general public not to deal with the appellants. The respondent has filed the present suit on 14.06.2007 and there is no delay on the part of the respondent in approaching the court for the relief of specific performance. The appellants have, for the first time vide Ex.A2 notice dated 14.05.2007 informed the respondent that Agreement of Sale is revoked. The appellants also filed O.S.No.16 of 2007 before the vacation court (subsequently transferred to Principal District Munsif Court and re-numbered as O.S.No.691 of 2007) and obtained interim injunction. The respondent has approached the court within one month from
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the date the appellants have informed the respondent that Agreement of Sale
is revoked and are not willing to sell the suit properties to the respondent.
14.6 The judgment relied on by the learned counsel for the appellants does not apply to the facts of the present case. In the said judgment, it is seen that the purchaser failed to plead and prove that he was having sufficient funds to pay the balance sale consideration and was always ready and wiling to perform his part of contract. Further, the purchaser in the said case filed the suit just before expiry of period of limitation. In the present case, the respondent had pleaded and proved that he had sufficient funds to pay the balance sale consideration and was always ready and willing to perform his part of contract by pleading in the plaint and letting in oral and documentary evidence. The respondent also proved that appellants only committed breach of terms of suit agreement of sale Ex.A1. The respondent approached the Court for relief of specific performance without any delay from the date of refusal of appellants and appellants filing suit for injunction.
14.7 From the materials on record, it is clear that there is no delay on
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the part of the respondent. The relief of specific performance is a discretionary relief. As per Section 16 (c) of Specific Relief Act, the Courts have power to reject the said relief to the purchaser. The court has to exercise such a discretion judicially and only based on the facts and circumstances of the case, the discretionary relief of specific performance can be denied. In the facts and circumstances of the present case, there is no reason for denying the relief of specific performance to the respondent. The learned Judge has considered entire materials on record and decreed the suit by giving cogent and valid reasons.
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(V.M.V., J) (S.S., J) 23.09.2022
Index : Yes / No rgr To 1.The III Additional District Court, Pondicherry. ,
2.The Section Officer, VR Section, High Court, Madras.
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V.M.VELUMANI,J. and S.SOUNTHAR,J.
(rgr)
Judgment in A.S.No.745 of 2010
23.09.2022
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3 issues framed by the court
Was time the essence of the agreement for sale?
Was the purchaser ready and willing to perform his obligations and entitled to specific performance?
Had the vendors performed their contractual obligations to produce title documents and arrange a government survey?
Colour shows how this judgement treated each authority
U.N.Krishnamurthy (since deceased) thro'LRs. vs. A.M.KrishnamurthyDistinguished¶226
Civil Appeal No.4703 of 2022
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A.Kanthamani vs Nasreen AhmedApplied¶232
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Swarnam Ramachandran vs Aravacode ChakungaljayapalanApplied¶232
2004 (8)SCC 689 · Who else cites this
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1993 (1) SCC 519 [ Chand Rani Vs Kamal Rani] · Who else cites this
1 provisions across 1 enactments
K.Sampathkumar
S.Vanaja @ Alamelu
K.Sekar
V.M.VELUMANI
S.SOUNTHAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
