Appeal against a decree for specific performance. Court held the plaintiff failed to prove readiness and willingness by not demonstrating possession of funds for the balance consideration, annulling the trial court's order.
Set aside the judgment and decree dated 30.08.2013 made in O.S.No.64 of 2010. No order as to costs. Connected miscellaneous petitions closed.
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.(MD).No.142 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 06.11.2023 Delivered on: 22 .11.2023
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
AND
THE HONOURABLE MR.JUSTICE P.B.BALAJI
A.S.(MD).No.142 of 2013
and
C.M.P.(MD)Nos.286 of 2017 & 3876 of 2018
1.K.S.Abdul Rajak
2.K.S.Amanulla .. Appellants / Defendants 2 & 3 Vs. 1.Shanmugam .. 1st Respondent / Plaintiff
2.Jamruth Beevi (Died) .. 2nd Respondent /1st Defendant
3.Ahmed Bagha
4.Maboo Basha
(R3 to R5 are brought on record as LRs of deceased R2, vide Court order, dated 04.07.2017,made in CMP(MD)No.10909/2016)
Prayer:- Appeal filed under Section 96 of the Code of Civil Procedure, against the judgment and decree, dated 30.08.2013, made in O.S.No.64 of 2010, on the file of the First Additional District Judge (PCR), Tiruchirappalli.
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For Appellants : Mr.V.Vijaya Shankar for Mr.N.Bala Murali Krishnan
For Respondents : Mrs.Hema Sampath, Senior Counsel for Mr.A.Thiyagarajan for R1 : R2 - Died : Ms.J.Anandhavalli for R3 to R5
JUDGMENT
(Judgment of the Court was made by P.B.BALAJI,J.)
The defendants 2 and 3, who are the subsequent purchasers in a
suit for specific performance of an agreement of sale, are the appellants before us.
their rank before the trial Court.
64 of 2010, seeking a decree to declare the sale deed No. 1751 of 2010, dated 13.03.2010, executed by the first defendant in favour of the
defendants 2 and 3 as null and void and non-est in law and for a decree of
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specific performance of the agreement of sale dated 22.08.2008 and registered extension deed dated 16.07.2009.
know about the unregistered mortgage executed by the first defendant in favour of one Deepa, which factum had been suppressed from the plaintiff. The first defendant, on being confronted by the plaintiff, represented that he would take steps to recover the possession of the property from the said Deepa – mortgagee and thereafter execute the sale deed in favour of the plaintiff. The plaintiff, believing the words of the first defendant, waited till December - 2008 and thereafter, chose to issue a lawyer's notice on 19.01.2008, calling upon the 1st defendant to clear the mortgage and also to execute the sale deed in favour of the plaintiff.
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6.(a). The first defendant replied to the said notice on 03.02.2009
and thereafter, the first defendant sought for time till 15.07.2009, for execution of the sale deed. However, the first defendant did not fulfil her part of the agreement of sale and demanded a further advance of Rs.3,00,000/- to settle the mortgagee's account. The plaintiff and the first defendant therefore, entered into an extension agreement on 16.07.2009, which was also duly registered with the Sub Registrar and under such extension agreement, the plaintiff paid a further advance of Rs.3,00,000/and a one year time period was fixed for completion of the sale transaction, that is, one year from 16.07.2009. It is the further case of the plaintiff that the first defendant orally assured the plaintiff that she would complete the transaction in six months time.
6.(b). As the first defendant was acting indifferently, the plaintiff
was forced to issue another notice on 12.02.2010. To the said notice, the first defendant sent a reply dated 04.03.2010, asking the plaintiff to appear before the Registration Office on 11.03.2010. It is the specific case of the plaintiff that on 11.03.2010, the plaintiff waited at the office of the Sub Registrar, Manapparai, from 10.30 am, to 5.20 pm . However, the first defendant did not appear.
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6.(c). The plaintiff, therefore, made a telephone call to the first defendant on her mobile phone and the first defendant gave some lame excuses. The very next day, the plaintiff send a telegraphic notice to the first defendant. The first defendant sent a telegraphic notice on 24.03.2010 stating that she was in urgent need of money for medical treatment and she will wait before the Sub Registrar Office, on 26.03.2010.
6.(d). According to the plaintiff, even on 26.03.2010, though the plaintiff waited at the Sub Registrar's office, the first defendant did not appear. The plaintiff came to know that on 30.03.2010, the first defendant had fraudulently sold the property to the defendants 2 and 3. According to the plaintiff, the plaintiff had arranged for the entire sale consideration and kept it ready in and in view of the sale of the property by the first defendant to the defendants 2 and 3, the plaintiff suffered loss and mental agony. The plaintiff also contended that the defendants 2 and 3 were trying to alter the physical features of the suit property in order to complicate the matters to the plaintiff. On the strength of such pleadings, the suit for declaration and specific performance was instituted.
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agreement as well as the extension of time. However, it is the case of the
first defendant that the plaintiff was not ready and willing to pay the amount due to the first defendant despite the plaintiff and the first defendant also renewing the sale agreement on payment of further advance of Rs.3,00,000/- and also extending the period by one more year. Though the first defendant was not agreeable to a one year extension, as he did not want to prolong the transaction, he agreed. The exchange of notices is admitted by the first defendant and according to the first defendant, the allegation that the plaintiff was waiting at the Sub Registrar's Office on 11.03.2010 and again on 26.03.2010 was false and the same were denied. The first defendant also admitted that she sold the property to the defendants 2 and 3, as the plaintiff was not ready and willing to fulfil his contractual obligations and also in view of immediate necessity of funds to meet her medical expenses. The first defendant therefore sought for dismissal of the suit.
the same was adopted by the third defendant. It is their case that they had
purchased the suit property from the first defendant for valuable sale consideration and there was no fraud as alleged by the plaintiff. It is
further stated that the defendants 2 and 3 had been put in possession and https://www.mhc.tn.gov.in/judis
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they had also mutated the revenue records. The plaintiff was therefore not
entitled for a relief of specific performance.
and 11 documents were marked as Ex.A1 to Ex.A11. On the side of the defendants, husband of the first defendant was examined as D.W.1 and two other witnesses viz., Vijayakumar and Abdul Rajak were examined as D.W.2 and D.W.3 and 16 documents were marked as Ex.B1 to Ex.B16. Ex.X1 was marked as a Court exhibit, viz., a certified xerox copy of the statement produced by the State Bank of India with regard to D.D. taken and cancelled by the first defendant.
“ 1. Whether the plaintiff is entitled for the relief of declaration to declare the sale deed, dated 13.03.2010, under Doc. No.1751/2010, is null and void and non-est?
2. Whether the plaintiff is entitled to the relief of specific performance of contract, dated 16.07.2009”
3. Whether the plaintiff is entitled to get the return of the sale advance amount of Rs.25,000/- as alternative relief?
4. To what relief?”
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appeal and it is only the purchasers, viz., defendants 2 and 3 as appellants, who have challenged the decree and judgment of the trial Court on the following grounds:-
The appellants herein are bonafide purchasers for value without the knowledge of the sale agreement between the plaintiff and the first defendant; The trial Court failed to see that the plaintiff was not ready and willing at any point of time and in fact, the first defendant had cancelled the agreement and also chose to return Rs.1,25,000/- received by way of the first advance and prayed for setting aside the decree.
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and 3 would state that the trial Court has been carried away by the exchange of notices / communications subsequent to the agreement dated 22.08.2008 and before the registered extension agreement dated 16.07.2009 and that no reliance need to be placed on such exhibits as the parties have consciously renewed the terms in the registered agreement Ex.A5. That apart, the learned counsel for the defendants 2 and 3 would submit that except for bald statement that the plaintiff had been ready and willing, the plaintiff has failed to prove or establish that he was always ready and willing to perform his part of the agreement of sale deed, viz., pay the balance consideration of Rs.25,00,000/- and get the sale deed executed and registered. He would also state that the trial Court has erred in not discussing the hardship caused which was mandated under Section
20 (b) of the Specific Relief Act. He would further state that only after the https://www.mhc.tn.gov.in/judis
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decree passed by the trial Court, the plaintiff has chosen to deposit the balance consideration of Rs.1,25,000/- and it would not in any way establish the plaintiff's readiness and willingness, prior to the filing of the suit and till the disposal of the suit. He would also further state that except for putting it on paper that the plaintiff is ready and willing, not a scrap of paper was produced to show that the plaintiff was possessed of sufficient funds to make payment of the balance consideration or at least that he was capable of raising the same. He would also reiterate the grounds of appeal to contend that the defendants 2 and 3 are bonafide purchasers, who paid not only higher sale consideration of Rs.30,50,000/- to the first defendant, but, they have also taken possession of the property and renovated the same and have been doing business in the said suit property for over 13 years as on date.
15 . Mr.Vijaya Shankar, learned counsel for the defendants 2 and
3 would also rely on the judgment of the Hon'ble Supreme Court in Vijay
Kumar V. Om Parkash reported in 2019-17-SC-429 , for the proposition that the plaintiff, in order to obtain the specific performance has to prove readiness and willingness to perform his part of the contract and failure to
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establish readiness and willingness will result in the plaintiff's case being
thrown out.
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Supreme Court in C.S.Venkatesh V. A.S.C.Murthy (Dead) reported in
2020-3-SCC-280 , wherein the Hon'ble Supreme Court held that
(i) the words “ready and willing” imply that the plaintiff was prepared to carry out those parts of contract to their logical end sofar as they depend upon his performance and that continuous “readiness and willingness” is condition precedent to grant relief of performance.
(ii) It is further held that the circumstances are material and if the plaintiff failed to aver or prove “readiness and willingness”, he must fail and bare pleadings in the plaint or in examination-in-chief on his part of the contract by itself would not be sufficient to hold that the plaintiff was ready and willing.
(iii) The Court must take into consideration the conduct of plaintiff prior and subsequent to the filing of the suit along with the other attending circumstances placed before the Court to see whether he was always ready and willing and that the amount which he has to pay the defendants was necessarily available, right from the date of execution of the contract till the date of decree.
appearing for the counsel for the first respondent / plaintiff would submit https://www.mhc.tn.gov.in/judis
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that the first defendant has not chosen to prefer an appeal and it is only the defendants 2 and 3 who have challenged the decree and further, even in the written statement of the defendants, except for a casual denial of readiness and willingness, no specific defence has been set up that the plaintiff did not possess sufficient funds and that he was not ready and willing. The learned Senior Counsel would also state that the first defendant's evidence, on the face of it, renders the suit to be decreed and in a suit for specific performance, not only conduct of the plaintiff, but also the conduct of the defendant would be relevant and when the first defendant has chosen to take false pleas and failed to establish the same, it would automatically render the plaintiff entitled to a decree as prayed for. She would also attack the bonafide of the appellants stating that Ex.A5 - extension agreement was duly registered with the Sub Registrar Office and that the same would reflect in the encumbrance certificate. Therefore, according to the learned Senior Counsel, the defendants 2 and 3 have taken a risk in purchasing the property, despite the knowledge of the agreement of the sale between the plaintiff and the first defendant, and therefore, they cannot seek any shelter under Section 19 of the Specific Relief Act.
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the Hon'ble Supreme Court in Smt.Indira Kaur V. Sheo Lal Kapoor reported in 1988-2-SCC-488 , where, the Hon'ble Supreme Court held that when the defendant was never willing to perform his part of the contract, that he had not gone to the Sub-Registry at all, and that he merely wanted to defeat the claim of the plaintiff by refusing to remain present at the Sub Registry on the day on which deadline for conveying the property was to expire, the plaintiff are to do anything and the suit should have drawn adverse interference against the defendant was decreed the suit for specific performance.
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decision of the Hon'ble Supreme Court in Silvey V. Arun Varghese reported in 2008-11-SCC-45 , where the Hon'ble Supreme Court held that when the plaintiff was always ready and willing, but, the defendants were not ready to perform their obligations in terms of agreement and the conduct of the defendants taking a false plea would have to be taken into account, while decreeing or denying for specific performance.
and the learned Senior Counsel for the plaintiff, we determine the following points to be decided in the present First Appeal:-
“ (I) Whether the plaintiff was ready and willing to perform his part of the agreement of sale, dated 22.08.2010 in Ex.A1 and the extension agreement dated 16.07.2009 – Ex.A5.
(II) Whether the defendants 2 and 3 / appellants are bonafide purchasers for value and whether in the event of the plaintiff succeeding to the relief of specific performance, the defendants 2 and 3 can put forth the defence of being bonafide purchasers and protect their purchase?
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Points I and II:
willingness”, alone, we may have to go into the second question to be determined as set out herein above. However, in the event of ultimately finding that the plaintiff was not ready and willing to perform his part of the sale agreement and the extension agreement, then the necessity to go into the issue of bonafides or otherwise of the defendants 2 and 3 may not even arise. Thus, both points I & II are dealt together.
25.(a). The parties have admitted the agreement as well the extension agreement. The agreement sale Ex.A1 is unregistered. However, extension of agreement - Ex.A5 is a registered document. There is no dispute with regard to the sale consideration or the amount advanced by the plaintiff in Ex.A1 or further advance of Rs.3,00,000/- in Ex.A5. The time period within which the sale agreement was sought to be completed under Ex.A1 was extended by a year from 16.07.2009 in Ex.A5 and this is also an admitted position.
25.(b). However, it is the case of the plaintiff that he was always ready and willing and the first defendant, despite calling upon the plaintiff to appear before the Sub Registrar, it was the first defendant, who did not turn up and instead only gave lame excuse.
25.(c). Therefore, according to the plaintiff, he had exhibited his https://www.mhc.tn.gov.in/judis 16/26
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readiness and willingness having been present in the Sub Registrar Office
viz., on 11.03.2010 and 26.03.2010 and Ex.A10 is also a registered instrument filed by the plaintiff to impress upon the Court that he was in fact present at the Sub Registrar's Office, as contended by him, waiting for the first defendant to come and register the document.
25.(d). From Ex.A10, it is seen that the plaintiff has not only attested Ex.A10, which is a settlement deed, but, also he has signed as an identifying witness of the Sub Registrar's Office. Therefore, the case of the plaintiff is that he was present on 26.03.2010 cannot be disbelieved. At the same time, though the first defendant has contended that she was present at the Sub Registrar's Office, both on 12.03.2010 and again on 26.03.2010, we do not find any evidence in support of such claim. We therefore accept the plaintiff's version that he was present before the Sub Registrar's Office, at least on 26.03.2010.
was present at the Sub Registrar's Office through out and that the first defendant did not turn up. The plaintiff has sent a telegraphic notice in Ex.A8 stating that he was present at the Sub Registrar Office on 11.03.2010. Receipt of the such telegraphic has not been denied by D.W.1 - husband of the first defendant. Though the first defendant has filed
Ex.B2 another telegram sent, stating that she was waiting at Manappatai https://www.mhc.tn.gov.in/judis
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Sub Registrar's Office, the plaintiff did not turn up, the said Ex.B2 telegram has been sent by the first defendant on 12.03.2010 at 14.05 hours.
27.(a). As seen from the ratio laid down by the Hon'ble Supreme court in the above referred cases, the plaintiff has to establish readiness and willingness to perform his part of the agreement of the sale, in order to entitle himself to the equitable and discretionary relief of specific performance.
27.(b). It is one thing to say that the plaintiff has the intention to https://www.mhc.tn.gov.in/judis 18/26
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go ahead and complete the sale consideration and a totally different thing to plead and prove that in order to carry out his intention, the plaintiff was ready to pay the balance sale consideration. In the telegram issued by the first defendant in Ex.A9, the first defendant has clearly stated that the plaintiff has to pay the balance consideration and get the sale deed registered. We have examined the evidence of P.W.1 and we do not find any whisper about the plaintiff being ready with the balance consideration of Rs.25,00,000/-. The balance sale consideration forms a substantial part of the sale consideration and the advance paid is only about Rs.4,25,000/-, which is about roughly 1/7th of the total sale consideration alone.
27.(c). Insofar as the balance sale consideration of Rs. 25,00,000/-, the plaintiff has not been able to demonstrate before the Court
by oral evidence or documentary evidence that he was possessed any sufficient funds to pay the balance sale consideration and get the sale deed registered.
pay the balance sale consideration and get the sale deed executed from the https://www.mhc.tn.gov.in/judis
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first defendant and failing the same, the agreement would stand cancelled.
In Ex.A9 – telegram, the first defendant had reiterated her notice dated 04.03.2010 in Ex.A7 and she has stated that she is waiting for the plaintiff to pay the balance amount to execute the sale deed. This telegram has been sent on 12.03.2010.
27.(e). On above evidence on record, we are also unable to countenance the submission of the Senior Counsel that the issuance of the said telegram on 12.03.2010, is of no avail because on perusal of Ex.A7, we do not find that the first defendant had fixed the date of registration on 11.03.2010. What all is stated in the reply notice is that the plaintiff would pay the balance sale consideration on or before 11.03.2010 and get the sale deed registered. Under such circumstances, we do not find it improper for the first defendant to have gone to the Sub Registrar's Office on 11.03.2010 and issued a telegram stating that he was waiting. Though the language employed in the said telegraphic notice appears to be improper, the intention which can be gathered from the said telegraphic notice in Ex.A9, dated 24.03.2010 is that she was badly in need of money to meet
her medical expenses and therefore, she would be waiting at the Sub Registrar's office on 26.03.2010 at 10.00 am., and the plaintiff was required to pay the balance sale consideration and get the sale deed registered.
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28.(a). We can see that the first defendant has called upon the
plaintiff to pay the balance sale consideration and get the sale deed executed. It only implies that the first defendant had demanded the amount due and payable by the plaintiff as a pre-condition for conclusion of the sale transaction, which is a quite natural conduct of any prudent for vendor. However, except for putting it on paper that the plaintiff is always ready and willing to perform his part of the agreement of sale, the plaintiff has miserably failed to show that he had sufficient funds viz., a sum of Rs. 25,00,000/- at all relevant points of time and therefore he deserved the equitable relief of specific performance.
28.(b). We are conscious of the fact that Section 16 is a bar
appear for special relief. Even if it is accepted that the conduct of the defendant is also material, first and foremost, it is for the plaintiff to establish that he was ready and willing to perform his obligations. Even if the defendant remains exparte , a decree would not follow automatically and the plaintiff has to establish, by the pleadings as well as proof that he has always ready and willing to perform his part of the contract and thereby, he became entitled to the discretionary as well as equitable relief of specific performance.
his readiness and willingness and at no point of time, despite specific https://www.mhc.tn.gov.in/judis
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demand made by the first defendant, he has come with the balance money
and offered / paid the same to the first defendant and get the sale deed registered. There is absolutely no evidence forthcoming on the side of the plaintiff. Mere presence of the plaintiff before the Sub Registrar, as we have found on 11.03.2010 and again on 26.03.2010, would be of no avail because it is not proved that the plaintiff was ready with the money and the pleadings only demonstrate that the plaintiff was only present before the
Sub Registrar and nowhere, the plaintiff says that the balance sale consideration of Rs.25,00,000/- was ready and with him at those times and therefore, the absence of the first defendant on these two occasions cannot be put against the defendants.
communications exchanged between the parties, after the first agreement dated 22.08.2008 and before the extension agreement dated 16.07.2009, we are unable to countenance the approach of the trial Court for the simple reason that by entering into an agreement on 16.07.2009 – Ex.A5, the previous acts and omissions of the parties have been consciously waived and factored at the time of Ex.A5 being entered into, extending the time for executing and registering the sale deed and also acknowledging a further advance payment of Rs.3,00,000/- by the plaintiff. As we have already set
out Section 16 is a personal bar to relief and therefore the burden is only https://www.mhc.tn.gov.in/judis
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on the plaintiff to establish that the plaintiff does not fall under any of the
ingredients thereunder. The plaintiff seeking the relief of specific performance, cannot try to shift the burden on the first defendant and canvass that the first defendant has pleaded a false case and therefore such conduct should be factored and the plaintiff's case thereby automatically accepted and the suit be decreed as prayed for.
he had wherewithal to pay the balance sale consideration and that he was https://www.mhc.tn.gov.in/judis
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willing to go ahead and pay the same and complete the sale transaction. Unless both these ingredients are established, the plaintiff does not become entitled to a decree for specific performance.
and requirement of law, in a suit for specific performance. Point No.I is therefore answered in favour of the appellants.
question of annulling the sale deed executed by the first defendant in favour of the defendants 2 and 3 does not require to be adjudicated upon.
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decree dated 30.08.2013, made in O.S.No.64 of 2010, on the file of the First Additional District Judge (PCR), Tiruchirappalli. is hereby set aside. There shall be no order as to costs. Consequently,connected Miscellaneous Petitions are closed.
(T.K.R.J.) & (P.B.B.J) 22.11.2023
Internet : Yes Index:Yes/No Neutral Citation:Yes/No Ls To
1.The First Additional District Judge (PCR), Tiruchirappalli.
2.The Section Officer, VR Section, Madurai Bench of Madras High Court,
Madurai.
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RMT.TEEKAA RAMAN, J., and P.B.BALAJI,J
Ls
judgment in A.S.(MD).No.142 of 2013 and C.M.P.(MD)Nos.286 of 2017 & 3876 of 2018
22.11.2023
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2 issues framed by the court
Whether the plaintiff was ready and willing to perform his part of the agreement of sale and extension agreement including payment of balance consideration.
Whether the subsequent purchasers are bona fide purchasers for value and can protect their purchase if the plaintiff obtains specific performance.
Colour shows how this judgement treated each authority
Vijay Kumar V. Om Parkash reported in 2019-17-SC-429Referred¶91
Abdullakoya Haji V. Rubis Tharayil reported in 2019-17-SCC-216Referred¶98
Ravi Setia V. Madan Lal reported in 2020-9SCC-381Referred¶104
C.S.Venkatesh V. A.S.C.Murthy (Dead) reported in 2020-3-SCC-280Referred¶103
Smt.Indira Kaur V. Sheo Lal Kapoor reported in 1988-2-SCC-488Referred¶117
Aniglase Yohannan V. Ramlatha reported in 2005-7-SCC-534Referred¶122
Silvey V. Arun Varghese reported in 2008-11-SCC-45Referred¶123
K.S.Abdul Rajak
K.S.Amanulla
Shamumugam
Jamruth Beevi
Ahmed Bagha
Maboo Basha
RMT.TEEKAA RAMAN
P.B.BALAJI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
RMT.TEEKAA RAMAN and P.B.BALAJI
Parties & counsel
