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burdon of proof in a suit for specific performance

Posted on 29 December 2009 by ravidevaraj

Court

Chennai High Court



Brief

I hold that in a suit for specific performance, it is for plaintiff to establish his/her readiness and willingness from the date of agreement till the date of sale. In the instant case, the plaintiff has not established that she was ready and willing to perform her part of the contract. The plaintiff has also not established that she was running a handicraft business:she has not even stated the place of the business and what was the turnover from the business. It is relevant to notice that she has not examined any of the employees, nor did she produce any document to show that she was carrying on the handicraft business. Except her evidence, there is no independent evidence to show that her husband was an income-tax assessee and the plaintiff has not produced any document to show that her husband was an income-tax assessee



Citation



Judgement

Bench: N Balasubramanian
Pankajam Parthasarathy And Five Others vs Kasturi Guna Singh on 27/9/2000

ORDER
1. This appeal is directed against the judgment and decree dated 26.7.1984 in O.S.No.2066 of 1961 on the file of the City Civil Court, Chennai. The suit is for specific performance. The defendants in the suit are the first and the second appellants and the plaintiff in the suit is the respondent. During the pendency of the appeal, the second appellant died and his legal representatives are impleaded as appellants 3 to 6 in the appeal.
2. The plaint averments are that the mother of the defendants, by name, late R.K. Chengammal, was the owner of the house property bearing door no.28 (New No.47), Ganga Nagar, Chennai−24 (hereinafter referred to as "the suit property") and when the owner expressed her intention to sell the suit property, the plaintiff agreed to purchase the same. In pursuance of the negotiations between
the parties, late R.K. Chengammal entered into an agreement of sale dated 26.1.1977 with the plaintiff agreeing to sell the suit property to the plaintiff for a consideration of Rs. 51,000 (Rupees Fifty One Thousand only), without any
encumbrance and the plaintiff has paid an advance amount of Rs.5,000 to late R.K. Chengammal at the time of execution of the agreement of sale. The first defendant is the attesting witness to the agreement. As per the plaint
allegations, the terms of the agreement provide that the execution and registration of sale deed should be completed within three months from the date of the agreement and R.K. Chengammal should also produce encumbrance certificate
and other documents relating to the suit property to the plaintiff. It is stated that R.K. Chengammal did not comply with the terms and postponed the registration. It is also stated that a sum of Rs.20,000 was paid by the plaintiff to R.K. Chengammal on 23.1.1978 in the presence of the defendants and the receipt of the same was also endorsed on the last page of the agreement of sale and the defendants have signed the receipt as witnesses along with one M.A.
Abbas who acted as a mediator. It is stated that the amount was paid on the assurance given by R.K. Chengammal and the defendants that the sale would be completed within a short time.
3. Further, it is stated that R.K. Chengammal died and after her death, the plaintiff has demanded the defendants that the deed of sale should be executed in her favour informing them that she was always ready and willing to pay the balance of sale consideration. According to her, though the defendants promised several times to complete the sale deed, they failed and neglected to do so. It is stated that the first defendant for herself and as the Power of Attorney
Agent of the second defendant sent a lawyer’s notice dated 28.12.1980 to the plaintiff demanding payment of rent from February, 1980 onwards and informing the plaintiff that she has committed wilful default in payment of rent and she
was liable to be evicted from the suit property for which the plaintiff sent a reply on 7.1.1981 denying the allegations and demanding the defendants to
execute the sale deed as per the agreement of sale. In the notice, the plaintiff has also stated that she would approach Civil Court if her request is not complied with. The plaintiff thereafter filed the suit on 12.1.1981 alleging that the attitude and the conduct of the defendants as well as R.K. Chengammal are unreasonable and unwarranted and the defendants as legal heirs of late R.K.
Chengammal, are bound to execute the deed of sale in favour of the plaintiff. She has stated that she is always ready and willing to perform her pan of the agreement for sale and accordingly, she filed the suit for specific performance.
4. The first defendant has filed a written statement stating that she is not disputing the agreement entered into by her mother with the plaintiff for the
sale of the suit property. According to the first defendant, the sale should have been completed within a period of three months from the date of the
agreement and the plaintiff had no funds to complete the sale and therefore, she has been evading the transaction. The first defendant has stated that all
relevant title deeds were handed over to the plaintiff. It is the case of the first defendant that the plaintiff has been postponing the execution and registration of sale deed and it is not correct to state that the mother of the
defendants was postponing the execution and registration of sale deed. The case of the first defendant is that the plaintiff was not ready and willing to pay the balance of the sale consideration and complete the sale. The first defendant has admitted the receipt of Rs.20,000 by her mother in the year 1978. It is stated that the plaintiff did not perform her part of the contract, but
requested extension of time for the completion of the sale. The first defendant has stated that that no assurance was given either by the mother Chengammal or by any of the defendants that after the advance amount is received, the sale would be completed within a short time. It is stated that the plaintiff is a tenant and after the death of the first defendant’s mother in 1979, the first
defendant and her mother were demanding the plaintiff to complete the sale transaction, but the plaintiff was evading to complete the sale transaction,
requesting extension of time for the completion of the sale.
5. It is the case of the first defendant that the claim of the plaintiff that she is ready and willing to pay the balance amount and complete the sale is not
correct and the plaintiff has not even paid the rent regularly and when the first defendant issued a notice calling upon the plaintiff to pay the rent, the
plaintiff issued a reply. The case of the first defendant is that the sale agreement is not valid and enforceable and the plaintiff had abandoned her rights under the agreement. It is also stated that the previous conduct of the
plaintiff cannot be countenanced for granting the relief of specific performance as the plaintiff was not ready and willing to perform her part of the contract.
After referring to the exchange of notices between the parties, it is stated that the first defendant was ready to execute sale deed, both in her capacity as legal heir of Chengammal and as power of Attorney Agent for the second
defendant. The case of the first defendant is that the plaintiff had abandoned her rights and the plaintiff had no funds and she has sworn to a false affidavit filed along with the petition seeking for extension of time for deposit of balance of sale consideration and the conduct of the plaintiff prior to the suit as well as after she approached the Court is a proof to show that she was not ready and willing to perform her part of the agreement. According to the first defendant, the agreement cannot be enforced against her as well as against the second defendant.
6. The trial Court, on the above pleadings, has framed as many as five issues for consideration and the trial Court, after considering the evidence, oral and documentary, held that the suit filed is within the lime and there is no
evidence of waiver or abandonment of right by the plaintiff. The trial Court also held that it cannot be held that because of the delay, the plaintiff is not
entitled to the relief of specific performance. The trial Court came to the conclusion that time is not the essence of the contract and the subsequent rise
in price cannot be taken as a reason for refusing the relief of specific performance of the agreement. In so far as the conduct of the plaintiff during
the course of litigation is concerned, the trial Court held that the order passed by the trial Court was with reference to the grant of temporary injunction and under the provisions of Section 28(1) of the Specific Relief Act,
the Court has the power to extend time for making deposit. According to the trial Court, the Court has the power in a suit for specific performance to extend the time for deposit and the failure of plaintiff to deposit money in the
Court before the decree or even after the decree cannot be a reason to deny the relief of specific performance. The trial Court also held that it was the first
defendant who was not willing and ready to complete the sale. The trial Court held that the plaintiff was in a position to pay the balance of sale consideration and in such circumstances, the trial Court was of the view that
the plaintiff was ready and willing to complete the sale and consequently, decreed the suit as prayed for. It is against the judgment and decree, the present appeal has been preferred.
7. It is also necessary to notice that during the pendency of the appeal, the second appellant Raghavachari died on 13.1.1998 and an affidavit was filed by one Srinivasan, Power Agent of the legal representatives of the deceased
Raghavachari who are residing in United Kingdom, and accordingly, the legal representatives of the deceased Raghavachari were brought on record. Further, it
is necessary to mention here that before the trial Court, the first defendant acted as the Power of Attorney Agent for the second defendant and now, after the death of the second appellant, a third party, one Srinivasan is acting a Power Agent for the legal representatives of the deceased second defendant.
8. Mr.T.R. Rajagopalan, learned senior counsel appearing for the appellants submitted that the agreement for sale was entered into on 26.1.1977 and under the agreement, the execution and registration of sale deed should be completed
within three months from the date of the agreement subject to satisfaction of certain conditions and the suit was instituted on 12.1.1981 and hence, the suit
is barred by time in view of the Article 54 of the Limitation Act. Learned senior counsel submitted that though there was a further advance of Rs.20,000 on
23.1.1978, that would not extend the period of limitation. He referred toArticle 54 of the Limitation Act, and submitted that when date has been fixed
for the performance of the contract, three year period referred to in Article 54 of the Limitation Act commenced and began to run from 26.4.1977 and the
limitation cannot be extended by any further payment.
9. Learned senior counsel also submitted that it is not the case of the plaintiff either in the notice issued prior to the institution of the suit or in the plaint that because of want of consent from the competent authority, sale
could not be effected. Learned senior counsel referred to Ex.A−4 and submitted that there was no demand for no objection certificate and the grounds urged in
the notice (Ex.A−4) do not show that it is due to want of such consent of the competent authority that the sale was getting postponed. Therefore he submitted
that limitation for the institution of the suit commenced on 26.4.1977 and the time began to run from 26.4.1977, and the suit should have been instituted within 3 years from 26.4.1977.
10. Learned senior counsel also submitted that the plaintiff was never willing and ready to perform her port of the contract and she was not possessed
of funds to pay the balance of sale consideration at any time. He referred to the pleadings and also the order passed by the trial Court in I.A.No.5370 of
1981 wherein the plaintiff has prayed for an interim injunction restraining the defendants from alienating the suit property and the trial Court has granted
interim injunction, by order dated 31.3.1981, on condition that the plaintiff should deposit the balance of sale consideration of Rs.26,000 into Court on or
before 22.4.1981 (Ex.B−3). Learned Senior Counsel also referred to the petition
in I.A.No.6983 of 1981 (Ex.B−4) in I.A.No.5370 of 1981 wherein the plaintiff has
prayed for extension of time by seven days from 22.4.1981 for the deposit of the
balance of sale consideration. He referred to the order passed in I.A.No.6983 of
1981 wherein the trial Court held that there were no merits in the petition
seeking extension of time and the reasons given for extension of time are not
bona fide, and on those grounds, the petition was dismissed. Learned senior
counsel also referred to the affidavit filed along with I.A.No.6983 of 1981 seeking extension of time wherein the plaintiff has stated that she had left the
amount of Rs.26,000 with her parents who were residing at their native place, Mysore and her parents, in turn, lent the amount to one of their relatives and
after the conditional order was passed by the Court, she asked her parents to make arrangements to collect the money and send the same. Learned senior counsel
also referred to the statement of the plaintiff in the affidavit that she was laid up with fever for 10 days, and he also referred to the deposition of the plaintiff as P.W.1 wherein she has stated that the money was kept in her house and since the Court has not extended the time, she could not deposit the money.
Learned senior counsel therefore submitted that the plaintiff has come forward
with a false case and rendered false evidence in the matter of deposit of the balance of sale consideration into Court. Learned senior counsel therefore submitted that the trial Court was not correct in proceeding on the basis that
the Court has the power to grant extension of time under Section 28(1) of the Specific Relief Act. He submitted that the trial Court has overlooked the conflicting stand taken by the plaintiff which would establish that the
plaintiff has not come forward with clean hands and hence, the plaintiff is not entitled to the equitable relief of specific performance.

11. Learned senior counsel also referred to Ex.A−5 and submitted that bank account was opened only on May 14, 1981 with a sum of Rs.6,201 as opening
balance and in February, 1983 only, the balance was Rs.26,142,45. He referred to the affidavit and also the evidence of the plaintiff and submitted that three
versions were given by the plaintiff as regards deposit of money. Learned senior counsel submitted that there is no evidence to show that she has taken any step
to perform her part of the contract and according to the learned senior counsel, she has come to the Court with a false case. Learned senior counsel submitted
that the mere statement that she is ready and willing is not sufficient and the minimum requirement that she was possessed of funds should be established.
Learned senior counsel also submitted that it is not equitable to grant the relief of specific performance considering the long passage of time from the
date of agreement, in view of the spiraling price of the property. Learned senior counsel submitted that the plaintiff has come with a false case as
regards the possession of money and therefore the trial Court was not correct in granting decree for specific performance in favour of the laintiff. In support
of his submissions, learned senior counsel relied on the following decisions:
1. Mahaboob Pasha v. Syed Zakeeruddin, ; 2. Ramzan
v. Hussaini, ; 3. M/s. Craft Centre v. Koncherry
Coir Factories, Cherthala, ; 4. Special Land
Acquisition Officer v. Gurappa Channabasappa Paramaj, ; 5. Thakamma Mathew
v. M. Azamathulla Khan,
; 6. K.S. Vidyanadam v. Vairavan.
; 7. Koothapadayachi and another v. Arjuna Pillai
and two others, 1998 (1) LW 301; 8. Vyapuri Gounder v. (Minor) Vijayan and
others, 1978 TLNI 62; 9. Gurswami Gounder v. Kesava Reddiar and another, ; 10.
Sankaran, S. and others
v. N.G. Radhakrishnan, 1994 (2) LW 642; 11. Lourdu Mart David v. Louis
Chinnaya Arogiaswamy, ; 12. Ramaswamy Gounder
v. Venkatachalam, 1976 (I) MLJ 243; 13. Pachaiappan and others v. S.P. Koon
Man, 1996 (2) LW 1; 14. Pitchan Ambalam v. Kasi Pitchan Ambatam, 1996 (2) LW
577; 15. Syed Dastagir v. T.R. Gopalakrishna Setty, 1999 (7) Supreme 175; 16.
Vasantha v. M. Senguttuvan, ; 17. His Holiness Acharya Swami Ganesh Dassji v.
Sita Ram Thapar, ; 18. K. Narendra v. Riviera
Apartments (P) Ltd., ; 19. V.S. Palanichamy
Chettiar Firm v. C. Alagappan, ; 20. Gowrammal @
Gowri v. V. Pechimuthu, 1996 (2) LW 417; 21. K. Kallaiah v. Ningegowda, .
12. Mr.N.S. Varadhachari, learned counsel appearing for the respondent referred to Ex.A−2 and submitted that there is no dispute that Ex.A−2 was attested by the first defendant. His submission was that the parties never intended to put an end to the agreement and if the intention of the parties was to put an end to the agreement, the endorsement and receipt under Ex.A−2 would not have taken place. His submission was that time is not ssence of the
contract. He referred to the written statement and submitted that as per the written statement even after the death of Chengammal, the plaintiff was demanding that the sale should be completed. He submitted that prior to the
death of Chengammal, there was no question of abandonment of the contract and the payment under Ex.A−2 was made prior to the death of Chengammal. He submitted that both the parties kept the agreement alive and hence, the first part of Article 54 of the Limitation Act does not apply. He referred to the agreement and submitted that under clause−7, sanction of the competent authority is
required to be obtained. He referred to the provisions of Section 26 of the Act 34 of 1976 and submitted that since consent was neither obtained from the competent authority, nor is there any evidence to show that any application was
filed before the competent authority to obtain consent, the fault is on the part of the vendor and the second part of Article 54 of the Limitation Act alone would apply.
13. Learned counsel further submitted that to keep the contract alive, the plaintiff has paid money and after Chengammal death, the plaintiff has been
demanding that the sale should be completed and the plaintiff has established that she is capable of raising the money. Learned Counsel submitted that the
fact that the plaintiff has filed an application for extension of time to deposit the balance of sale consideration, as ordered by the Court is not a
ground to state that the plaintiff was not ready and willing to pay the money. Learned counsel also submitted that as regards hardship to the plaintiff, all the relevant facts should be taken into account.
14. Learned counsel also submitted that the second defendant, Raghavachari died during the pendency of the appeal and the legal representatives of the
second defendants, who are appellants 3 to 6 herein, are residing in the United Kingdom and they have given power of attorney agent to a third party whereas the
first defendant was the power of attorney agent of the second defendant since deceased and there is no explanation for the change of power of attorney from
the first appellant to a third party. Learned counsel submitted that all the aspects of the matter should be taken into account. He submitted that hardship
should be viewed both from the point of view of the plaintiff and that of the
defendants. His further submission was that the plaintiff has not come with false case which would disentitle the plaintiff from claiming the relief of
specific performance. He submitted that the stand of the plaintiff taken in I.A. proceedings is not relevant in considering the question whether the plaintiff is
entitled to the relief of specific performance. Learned counsel relied upon the following decisions in support of his submissions:
1. Lakshminarayana v. Singaravelu, ; 2. K. Venkoji
Rao v. M. Abdul Khuddur Kureshi, ; 3. Saraswatfii
Ammal v. Jayarama Rao and others, 1999 (1) LW 683; 4. Guruswami Gounder v.
Kesave Reddiar, .
15. I have carefully considered the submissions of the learned counsel for the parties. The points that arise for consideration are (1) whether the suit
filed is barred by limitation;(2) whether the plaintiff was ready and willing to perform her part of the agreement; and (3) whether the plaintiff is entitled to the relief of specific performance.
16. Point No.1 The suit was filed on 12.1.1981 to enforce the agreement dated 24.1.1977. Under clause−7 of the agreement, the execution and registration of
sale deed should be completed within three months from the date of agreement subject to certain conditions. That apart, there was a subsequent payment
towards sale consideration on 23.1.1978 which was acknowledged by the deceased Chengammal. The relevant Article of the Limitation Act is Article 54 and the
said Article reads as under:−
"For specific performance of a contract −− three years −− The date fixed for the performance, or if no such dated is fixed, when the plaintiff has notice that performance is refused."
17. Under the above Article, the period of limitation for specific performance of a contract is three years and under the said Article, there are
two alternative points of time which would be starting point for limitation −One from the date fixed for the performance of the contract; and another, if date is
not fixed, when the plaintiff had noticed that the performance was refused by the other party. I agree with Mr.T.R. Rajagopalan, learned senior counsel that
the subsequent payment made on 23.1.1978 does not have the effect of extending the period of limitation from which the time for institution of the suit begin
to run. In my view, learned trial Judge was not correct in holding that the time
limit for institution of the suit should be computed from the date of subsequent payment. I hold that it is not a money suit, but it is a suit for specific
performance of contract and the subsequent payment has no effect while computing the period of limitation.
18. However, I am of the view that the subsequent payment has relevance in considering the question whether the parties intended that time is essence of
the contract. I hold that the conduct of Chengammal in receiving money on 26.1.1978 shows that the parties never intended that time is essence of the contract. The written statement of the first defendant shows that till the time
of death of Chengammal, the parties never intended that time is the essence of the contract. The averment in paragraph−8 of the written statement shows that
after the death of Chengammal in 1979, the second defendant was demanding the plaintiff to complete the sale transaction which shows that the parties never
intended that time is the essence of the contract.
19. The next question that arises is whether the first part or the second part of Article 54 of the Limitation Act would apply to the transaction in question. A careful reading of the various decisions reveals that if the date
for the performance of agreement is fixed or can be inferred from the surrounding circumstances, then the first part of Article 54 of the Limitation
Act would apply and if no date has been fixed or inferred, then the second part of Article 54 of the Limitation Act would apply. Under Clause−7 of the
agreement, the execution and registration shall be completed within three months from the date of agreement subject to sanction by the competent authority. The
agreement also provides that the sale is subject to sanction by the competent authority. It is no doubt true that the plaintiff, neither in the notice dated
7.1.1981, nor in the plaint, has stated about the failure on the part of the defendants to obtain sanction from the competent authority under the provisions
of the Urban Land Ceiling Act, 1976. In the evidence also, the plaintiff has not deposed anything about the requirement of obtaining the sanction from the
competent authority. I hold that notwithstanding the fact that the plaintiff has not stated either in the notice or in the plaint or in his evidence about the
requirement of obtaining the sanction from the competent authority, in considering the questions whether the suit is barred by limitation or not, and
whether any date has been fixed for the performance of the contract, all the
clauses in the agreement have to be taken into account.
20. The agreement was entered into on 26.1.1977 and at the time when the agreement was entered into, the provisions of the Tamil Nadu Urban Land (Ceiling
and Regulation) Act, 1976, enacted by the President of India by virtue of the power conferred by Section 3 of the Tamil Nadu State Legislative (Delegation of
Powers) Act, 1976 was holding the field. Section 26 of the said Act imposed an embargo on transfer of any urban property or urbanisable land with a building
(whether constructed before or after the commencement of the Act) by way of sale, mortgage, gift or lease for a period exceeding ten years of commencement
of the Act or from the date on which the building is constructed, whichever is later, except with the previous permission in writing from the competent
authority. Section 27 of the said Act also imposed the ban on the registering authority to register any transfer by way of sale, mortgage, gift, lease or otherwise of any urban immovable property with building thereon, if necessary
certificate was not produced. Section 26 regulated the procedure for obtaining permission from the competent authority under the Urban Land Ceiling Act, 1976.
21. Admittedly, the agreement was entered into for the sale of an urban property with building thereon. The Urban Land Ceiling Act, 1976 was in force in
the State of Tamil Nadu till the Tamil Nadu Urban Land (Ceiling & Regulation) Act, 1976 was enacted by the State Legislature and the State Act was published
in Tamil Nadu Gazette on 17.5.1978. Therefore, during the currency of the operation of the Urban Land Ceiling Act, 1976 (President’s Act), there was a
prohibition against transfer of any urban property with building thereon without prior permission in writing from the competent authority. It is not the case of
the defendants that they have applied for permission for the transfer of the land with building thereon, but such permission was either granted or was deemed
to have been granted under Section 26(5) of the Urban Land Ceiling Act, 1976. It is also significant to notice that a sum of Rs.20,000 was received by Chengammal
in January, 1978 when the Urban Land Ceiling Act, 1976 was in force and therefore, the limitation for filing the suit would commence on 17.5.1978 when
the Tamil Nadu Urban Land Ceiling Act, 1978 came into force repealing the Urban Land Ceiling Act, 1976 (President’s Act).
22. In so far as the decision of the Karnataka High Court in Mahaboob Pasha v. Syed Zaheeruddin, is concerned, it is an authority for the proposition that where time for performance of contract is
fixed, the limitation begins to run from the date fixed for performance irrespective of the fact whether time is essence of the contract or not. Applying the ratio of the Karnataka High Court, since the agreement in the
instant case is subject to sanction from the competent authority under the Urban Land Ceiling Act, 1976, it is not possible to hold that without the sanction
from the competent authority, the time to institute the suit would begin to run from the date fixed for the performance of the agreement. I am unable to accept
the submission of Mr.T.R. Rajagopalan, learned senior counsel that limitation would begin to run on the expiry of three months from the date of the agreement.
When there is a specific clause in the agreement that the sale is subject to the sanction of the competitive authority under the Urban Land Ceiling Act, 1976,
the limitation would not begin to run from the dated fixed for performance unless there is evidence to show that the consent of the competent authority was obtained.
23. In so far as the decision of the Supreme Court in Ramzan v. Hussaini, is concerned, the Supreme Court held that though a specific date has not been mentioned for the seller to execute the deed of sale, but there is a reference
to happening of certain event, immediately after happening of that particular event, the period of limitation would begin to run. I hold that the decision of the Supreme Court in Ramzan’s case, is not of much help to the learned senior
counsel for the appellants for the same reasons stated supra while distinguishing the decision of the Karnataka High Court in Mahaboob Pasha’s case, .
24. The decision of the Kerala High Court in M/s.Craft Centre v. Koncherry Coir Factories, Cherthala, is of general in nature wherein the Court held that
the provisions of the Limitation Act, particularly Section 5, are mandatory and
where the suit is barred by time on the face of it, the Court is duty bound to dismiss the same even at appellate stage without a question of limitation is not
of much help to the appellants. The other decisions relied upon by the learned senior counsel for the appellants, viz., 0) Special Land Acquisition Officer v.
Gurappa Channabasappa Paramaj, ; and (ii) Thakamma Mathew v. M. Azamathulla Khan, are not
applicable to the facts of the case as the question whether the suit is barred by limitation would depend upon the facts of each case and hence, the decisions of the Supreme Court and the Karnataka High Court are not helpful to
the learned senior counsel for the appellants,
25. As for the decision in K. Kallaiah v. Ningegowda, the Karnataka High Court has held that when date is fixed for the performance of contract, the suit
should be regulated by the former part of the Article 54 of the Limitation Act, and not by the latter part of the said Article. The Karnataka High Court also
held that the doctrine, time is not the essence of contract has nothing to do with the period of limitation. As already held by me, the question regarding the
fixation of time for the performance of contract would depend upon the facts of
each case and since the sale is subject to the sanction from the competent authority under the Urban Land Ceiling Act, 1976, for the purpose of limitation
under Article 54 of the Limitation Act, it is open to the plaintiffs to take into account the period of operation of the Urban Land Ceiling Act, 1976.
26. The decision of this Court in Koothapadayachi and another v. Arjuna
Pillai and two others, 1998 (1) LW 301 was rendered with reference to the facts
of that case. In that case, learned Judge held that limitation for specific
performance of contract was three years from the date fixed for the performance
or if no date is fixed, from the date when the plaintiff refused to receive the
balance of sale consideration. In Koothapadayachi’s case, 1998 (1) LW 301 it was
found, the time fixed for performance was at any time before 15.6.1976 and this
Court held that the suit ought to have been fixed within three years from that
date. I hold, on the facts of the present case, the date for performance of the
contract is to be ascertained from the date of sanction of the competent
authority under the Urban Land Ceiling Act, 1976 and it is not possible to hold
that limitation would begin to run on the expiry of three months fixed from the
date of agreement. As already observed by me, there is a condition superadded in
the agreement that sanction of the competent authority is to be obtained.
Therefore, the grant of sanction from the competent authority is a pre−condition for the sale and it is not possible to hold that limitation would begin to run
before the repeal of the Urban Land Ceiling Act, 1976 (President’s Act) as the
sanction under the said Act for the transfer of the property was not obtained during the currency of the said Act and after its repeal, the condition imposed
in the agreement for sale to obtain the sanction for transfer is automatically lifted.
27. On the other hand, the decisions relied upon by the learned counsel for
the respondent support the case of the respondent. This Court in Lakshminarayana
v. Singaravelu, held that the dated fixed for performance must be not only a date which can be identified without any doubt as a particular point of time but
it should also be a date which the parties intended to be the date when the contract could be performed. Applying the said decision, the limitation would
begin to run after obtaining sanction from the competent authority. In K. Venkoji Rao v. M. Abdul Khuddur Kureshi, , the
Karnataka High Court has referred to the earlier decision in Mahaboob Pasha’s
case, and held that where the time is
extended, then the latter part of Article 54 of the Limitation Act would apply. In Saraswathi Ammal v. Jayarama Rao and others, 1999(1) LW 683, a learned
Judge of this Court has held that when time limit is extended and the rigor of
the time limit is given a go−by and the agreement did not consider time to be
the essence of the contract; the first part of Article 54 of Limitation Act
would not apply and only the. latter part of Article 54 would apply.
28. Following the ratio of the decision of this Court as well as the decision
of the Karnataka High Court, I hold that time limit is not essence of the contract in the instant case. The fact that Chengammal received the money in
January, 1978 after expiry of three months period fixed for performance of the
contract shows that the time is not essence of the contract. The agreement is
also subject to the condition of obtaining prior sanction from the competent
authority. Considering the above facts, I hold that the time is not essence of
the contract and since approval of the competent authority was not obtained
before the repeal of the Urban Land Ceiling Act, 1976, I hold that the second
time of Article 54 of the Limitation Act would apply and the suit filed on
12.1.1981 is not barred by limitation, either taking into account the date of
payment in Ex.A−2 or the date of repeal of the Urban Land Ceiling Act, 1976
(President’s Act).
29. Point No. 2 and 3: I am of the view that both the points can be
considered together. The question whether the plaintiff was ready and willing to
perform her part of the agreement has to be decided with reference to the
conduct of the parties and attending circumstances. The Supreme Court in the
case of His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar, points out
the distinction between readiness and willingness of plaintiff to perform his
part of the contract as under:−
"By readiness may be meant the capacity of the plaintiff to perform the
contract which includes his financial position to pay the purchase price. For
determining his willingness to perform his part of the contract, the conduct has
to be properly scrutinised."
30. In Syed Dastagir v. T.R. Gopalakrishna Setty, 1999 (7) Supreme 175, the
Supreme Court again reiterated that compliance of readiness and willingness has
to be in spirit and substance, and not in letter and form. The Supreme Court
after referring to Section 16(c) of the Specific Relief Act, 1963, held as
under:−
"It is significant that this explanation carves out contract which involves
payment of money as a separate class from Section 16(c). Explanation (i) uses
the words "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.
This speaks in negative term what is not essential for plaintiff to do. This
more in support of plaintiff that he need not tender to the defendant or deposit
in Court any money but the plaintiff must (as per explanation ii) at least aver
his performance or readiness and willingness to perform his part to the
contract."
31. In Koothapadayachi’s case, 1998 (1) LW 301, this Court has held that
factum of readiness and willingness of the plaintiff to perform his part of the
contract has to be ascertained with reference to the contract of the party and
the attending circumstances, and readiness and willingness from the date of
agreement till the date of sale deed should be pleaded and proved and this Court
held as under:−
"Under Section 16 of the Specific Relief Act, readiness and willingness
from the date of agreement till the date of sale deed should be pleaded and
proved. By the plaintiff making a statement in the plaint that he was ready from
the beginning of the year 1976, an inference has to be drawn that he was never
ready and wilting to lake a sale deed before that time."
32. The above decision was reiterated by a learned Judge of this Court in
Vasantha v. M. Senguttuvan, and after noticing the decision of the Supreme Court
in Gomatkinayagam Pillai and others v. Palaniswami Nadar, AIR 1967 (II) SCWR
147, this Court held as under: −
"In Gomathinayagam Pillai and others v. Palaniswami Nadar, AIR 1967 (II)
SCWR 147, the Supreme Court held that in a suit for specific performance,
plaintiff must prove readiness and willingness. The relevant portion of the said decision reads thus:−
"The respondent has claimed a decree for specific performance and it is for
him to establish that he was, since the date of the contract, continuously ready
and willing to perform his part of the contract. If he fails to do so, his claim
for specific performance must fail. As observed by the Judicial Committee of the
Privy Council in Ardeshir Mama v. Flora Season". 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 transversed, 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. The respondent must in a suit for specific
performance of an agreement plead and prove that he was ready and willing to
perform his part of the contract continuously between the date of the contract
and the date of hearing of the suit."
Even if for single day, plaintiff−agreement holder is not ready to take the
sale deed, the equitable remedy should not be granted. Readiness and willingness
must be there continuously from the date of agreement upto the date of hearing."
33. In P.G, Tanawade v. G.B. Kadam, , the Supreme
Court has held that where there is an averment in the plaint that purchaser
sent registered notices to seller to execute sale deed and where there is a
further averment by buyer that as per agreement he was willing to pay the fees
required for sale deed, costs of registration and balance amount of sale deed
and where buyer has also deposed before the Court that he was willing to pay
fees and also the balance sale amount, it was held that buyer has not only
averred but also proved that he was ready and willing to perform his part of the
contract. The Supreme Court has held as under−
"Apart from the said averments in the plaint, we find that the appellant,
in his deposition before the Court, has stated:−
I issued notice to heirs of Janabal to execute the sale deed. I was ready
to pay remaining amount and act as per agreement. The defendants did not execute
the sale deed as per notice. They replied my notice (Exh.50). As defendanis are
not willing to execute the sale deed I have filed this suit. I am ready to pay
remaining amount immediately. I am ready to pay costs as per agreement.
7. Respondent No.l, also in his deposition before the Court, has stated:−It
is true that plaintiff was ready for sale−deed, but I was not ready.
8. In view of the aforesaid statements of the appellant and respondent No.l
as well as the averments contained in, paragraphs 6 and 10 of the plaint, it
must be held (hat the appellant has not only averred, but has also proved that
he was ready and willing to perform his part of the contract under the agreement
for sale. The appellate Court and the High Court were, therefore, in error in
holding that the appellant had failed to comply with the requirements of Section
16(c) of the Specific Relief Act and the appellant must be held entitled to a
decree for specific performance of the contract in the suit filed by him."
34. In Ramakrishnan v. Subbiah, 1999 (II) MLJ 404, a Division Bench of this
Court held that purchaser need not produce the money, but must fulfil the
conditions, and this Court held as under:−
"There are catena of decisions of this Court and the Apex Court to the
effect that readiness and willingness do not imply that the purchaser must
produce money and the conditions to be fulfilled are that purchaser had done
some act in furtherance of the contract and the act performed by him was with
certainty."
There is no dispute that during the life time of Chengammal, on 23.1.1978, a
sum of Rs.20,000 was paid and after adjusting the advance money already paid the
plaintiff was obliged to pay the balance of Rs.26,000 only. In the plaint, the
plaintiff has averred that she was always ready and willing to pay balance sale
price and complete the transaction. In the letter issued on 7.1.1981 (Ex.A−4),
the plaintiff has also stated that she was ready and willing to pay the balance
sale amount and complete the transaction. She has produced passbook Ex.A−5 to
prove her capacity to raise money to pay the balance of Rs.26,000.
35..I hold that it is not essential that purchaser should produce money in
cash before the Court, but it is necessary that the purchaser should act in
furtherance of the contract and the act performed by the purchaser should be
with a view to get the deed of sale. In so far as the decision of the Supreme
Court in P.G. Tanawade’s case, is concerned, not only the purchaser therein has
made a statement about his readiness and willingness to perform him part of the
contract, but also the owner of the property has admitted that the plaintiff was
ready to get the deed of sale executed. In view of the statement of the
purchaser as well as the seller coupled with the averments contained in the
plaint, the Supreme Court held that −the plaintiff was ready and willing to
perform his part of the agreement for sale.
36. The Supreme Court in Syed Dastagir’s case, 1997 (7) Supreme 175 held that
compliance of readiness and willingness has to be in spirit and substance and
not in letter and form and the mechanical reproduction of exact words of Section
cannot be insisted upon and the averment in the plaint that major portion of
amount had already been paid and balance sale consideration was deposited on the
date of filing suit would establish readiness and willingness of the plaintiff
as required in Section 16(c) of the Specific Relief Act. As already observed by
me, this Court in Koothapadayachi’s case, 1998 (1) LW 301 and in Vasantha’s
case, has held that the agreement− holder should prove his readiness and
willingness continuously from the date of agreement till the date of hearing.
37. As already observed, the agreement was entered into on 26.1.1977 and the
agreement stipulates that the balance sale amount should be paid within a period
of three months. A part of sale consideration of Rs.20,000 was paid on
23.1.1978. There is no evidence to show as to what happened subsequent to the
part payment made on 23.1.1978 till the notice was issued by the defendants
through their advocates on 28.12.1980 (Ex.A−3) calling upon the plaintiff to pay
arrears of rent of the property for the months from February, 1980 to December,
1980. Meanwhile, Chengammal passed away in 1978. The plaintiff issued a lawyer’s
notice dated 7.1.1981 (Ex.A−4) stating that she is willing to pay balance of
sale consideration, and she instituted the suit on 12.1.1981. The trial Court,
while granting interim injunction, imposed a condition that the plaintiff should
deposit the balance of sale consideration of Rs.26,000 in the Court on or before
22.4.1981 and the said order was passed on 31.3.1981. The plaintiff did not
deposit the money within the time stipulated by the Court. The plaintiff
approached the trial Court for extension of time to deposit the balance of sale
consideration by seven days on the score that she has handed over the amount of
Rs.26,000 to her parents residing at their native place, Mysore, who in turn,
lent the amount to their relatives. In the petition, she has also stated that
she wrote to her parents to send back the money and they made arrangements to
collect and send the money. She has also stated that since she was laid up with
fever taking treatment, she could not go to the native place personally to
collect the money and hence, she made arrangements to collect the money and to
deposit the same in the Court. The trial Court refused to extend the time for
deposit of the balance of sale consideration.
38. Therefore, it is clear that from the year 1978 till the institution of
the suit, the plaintiff was not ready and willing to perform her part of the
contract. She has not established that she was willing to perform her part of
the contract within a reasonable time from the stipulated period. She has not
established that she was ready to pay or tender the balance of sale
consideration and complete deed of sale after 1978. It is also relevant to
mention here that she fell in arrears in payment of rent. Another important
aspect is that though the plaintiff need not produce the money in cash, when the
Court has directed that the plaintiff should deposit the balance of sale
consideration in Court on or before a particular period, she should have
deposited the amount as per the direction of the Court. The fact that she has
not deposited the balance of sale consideration within the period directed by
the Court clearly shows that she was not ready and willing to perform her part
of the contract.
39. In so far as Ex.A−5 is concerned, the account was opened only in May,
1981 with initial deposit of Rs.6,201 and except the deposit of small amounts
ranging from Rs.100 to Rs.400, substantial amount was deposited only on February
23, 1983. On the date of her examination in February, 1984, she had a sum of
Rs.6,013 only in the bank account. Though the sum of Rs.26,000 may not loom
large now due to inflation in the value of money, the said amount was the
substantial amount in early 80s. If the amount of Rs.26,000 is not the
substantial amount, there is no explanation from the plaintiff why she did not
deposit or pay the said sum after the last payment was made in the year 1978 or
even after the orders of the Court directing her to deposit the said money. The
plaintiff has also admitted that she has not written any letter from 1977 till
the date of suit either to Chengammal or to the defendants with reference to the
agreement for sale.
40. I am unable to accept the submission of Mr.N.S. Varadhachari, learned
counsel for the respondent that the failure on the part of the plaintiff to
deposit the balance of sale consideration in compliance of the order of the
Court for granting interim injunction should be overlooked as such failure would
result only in not securing the interim injunction as prayed for and that would
not be a relevant circumstance to establish her readiness and willingness to
perform her part of the contract. It is no doubt true that the trial Court has
directed the plaintiff to deposit a sum of Rs.26,000 being the balance of sale
consideration as a condition for grant of interim injunction and when the Court
has directed the deposit of the balance of sale consideration, the plaintiff
should have complied with the directions of the Court and the inference to be
drawn from her failure to do so is that the plaintiff was not possessed of funds
and she was not ready and willing to perform her part of the contract.
41. This Court in Vasantha v. M. Senguttuvan, held
that even if for a single day, plaintiff/agreement holder is not ready to
take the sale deed, the equitable remedy should not be granted. Applying the
ratio of the case, the plaintiff has not shown her readiness and willingness
from 1978 to 1981 and even after the filing of the suit, when the Court, at the
stage of granting interim injunction, directed her to deposit the balance of
sale within the time granted which she failed and it clearly shows that the
plaintiff did not have the necessary money to comply with the direction of the
Court and she was not ready and willing to perform her part of the contract. The
order of the trial Court refusing to extend the time for deposit has become
final. Further there is no evidence from the plaintiff that she was ready and
willing to perform her part of agreement after the death of Chengammal till the
date of the suit notice in the year 1981. However, in the plaint, the plaintiff
has stated that she has demanded the defendants for the execution of sale deed
informing that she was ready and willing to pay the balance of sale
consideration and complete the sale transaction. The plaintiff has also not
proved her statement that the defendants had promised her several times to
complete the transaction but failed for the reasons best known to them. On the
other hand, it is the case of the defendants that even after the death of
Chengammal, the second defendant was demanding the plaintiff to complete the
transaction, but the plaintiff was not ready to pay the balance of sale
consideration and she requested extension of time for payment. I hold that in a
suit for specific performance, it is for plaintiff to establish his/her
readiness and willingness from the date of agreement till the date of sale. In
the instant case, the plaintiff has not established that she was ready and
willing to perform her part of the contract. The plaintiff has also not
established that she was running a handicraft business:she has not even stated
the place of the business and what was the turnover from the business. It is
relevant to notice that she has not examined any of the employees, nor did she
produce any document to show that she was carrying on the handicraft business.
Except her evidence, there is no independent evidence to show that her husband
was an income−tax assessee and the plaintiff has not produced any document to
show that her husband was an income−tax assessee. I hold that from the date the
last payment of Rs.20,000 was made till the date of the suit, nearly for a
period of three years, the plaintiff has not established that she was ready and
willing to perform her part of the contract and she was also not able to
establish her readiness and willingness even after the institution of the suit.
The fact that she gave different versions regarding her failure to deposit the
money ordered to be deposited clearly shows that she has not come out with true
facts.
42. The trial Court proceeded on the basis that the mere delay would not
prevent the plaintiff from obtaining decree for specific performance. The trial
Court relied upon the decision of this Court in S.V. Sankaralinga Nadar v,
P.T.S. Ratnaswami Nadar,
wherein this Court held that mere rise in price is not a ground for denying
the specific performance. However, the Supreme Court took a different view in
the case of K.S. Vidyanadam v. Vairavan, wherein the Supreme Court, after
noticing the
decision in Sankaralinga Nadar’s case, held as under:−
"With great respect, we are unable to agree if the said decision is
understood as saying that the said factor is, not at all to be taken into
account while exercising the discretion vested in the Court by law. We cannot be
oblivious to the 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 of urban centres and by inflation. Take this very case, the
plaintiff had agreed to pay the balance consideration, purchase the stamp papers
and ask for the execution of sale deed and delivery of possession within six
months. He did nothing of the sort. The agreement expressly provides that if the
plaintiff fails in performing his part of the contract, the defendants are
entitled to forfeit the earnest money of Rs.5,000 and that if the defendants
fail to perform their part of the contract, they are liable to pay double the
said amount. Except paying the small amount of Rs.5,000 (as against the total
consideration of Rs.60,000) the plaintiff did nothing until he issued the suit
notice 2 1/2 years after the agreement. Indeed, we are inclined to think that
the rigor of the rule evolved by courts that time is not of the essence of the
contract in the case of immovable properties−evolved in times when prices and
values were stable and inflation was unknown requires to be relaxed, if not
modified, particularly in the case of urban immovable properties. It is high
time, we do so. The learned counsel for the plaintiff says that when the parties
entered into the contract, they knew that prices are rising hence, he says, rise
in prices cannot be a ground for denying specific performance. May be, the
parties knew of the said circumstance but they have also specified six months as
the period within which the transaction should be completed. The said time−limit
may not amount to making time the essence of the contract but it must yet have
some meaning. Not for nothing could such time− limit would have been prescribed.
Can it be stated as a rule of law or rule of prudence that where time is not
made the essence of the contract, all stipulations of time provided in the
contract have no significance or meaning or that they are as good as non−
existent ? All this only means that while exercising its discretion, the Court
should also bear in mind that when the parties prescribe certain time−limit(s)

for taking steps by one or the other party, it must have some significance and
that the said time−limit(s) cannot be ignored altogether on the ground that time
has not been made the essence of the contract (relating to immovable
properties)."
43. I am of the view that the complete inaction on the part of the plaintiff
for a period of nearly three years coupled with the rise in the value of the
property should be taken into account in considering the question whether the
relief of specific performance should be granted in favour of the plaintiff or
not. The trial Court completely ignored to take into account the effect of
failure on the part of the plaintiff to comply with the orders of the Court to
deposit the balance of sale consideration on the ground, the Court, under
Section 28(1) of the Specific Relief Act, after decreeing the suit for specific
performance, has the power to permit the purchaser to deposit the balance of
sale consideration within a stipulated time and also to extend the time
subsequently. In my view, the power available under Section 28 of the Specific
Relief Act is far different from considering the question whether the plaintiff
was ready and willing to perform her part of the contract.
44. In my view, the mere assertion that she was ready and willing to perform
her part of the contract is not sufficient when the averment was denied. As
observed by the Supreme Court, the mere compliance of the form is not sufficient
and the spirit behind the section should be taken into account. I hold that on
the facts of the case, there was a specific direction by the Court to deposit
the balance of sale consideration, though ordered for some other purpose, the
failure to deposit the balance of sale consideration as ordered by the Court
within the time stipulated is a relevant circumstance that should be taken into
account in deciding the question whether the plaintiff was ready and willing to
perform her part of the contract.
45. Further, the plaintiff, in the petition for extension of time, has stated
that money was left with her parents residing in the native place, Mysore.
However, in the evidence, she has stated that she kept the money in the house
and since there was no order of the Court to deposit the amount, she could not
deposit the money. During the course of cross−examination, she has also stated
that she had a sum of Rs.20,000 in cash and she gave the money to her father and
she had kept the money in cash during December, 1981. In her chief−examination,
she has stated that she was directed to pay a sum of Rs.26,000 on or before
22.4.1981 and she filed a petition for extension of time by seven days, and due
to her ill−health, she was not able to deposit the money. At that point of time,
at the request of the counsel for the plaintiff, the case was adjourned to next
week. Next week, the plaintiff was examined and she has stated that she was
keeping the money in her house and since there was no order of the Court, she
could not deposit the money. In cross− examination, she has stated that when the
suit was filed on 12.1.1981, she took along with her the agreement and the bank
passbook also. She has also admitted that she has only one bank account, viz.,
Ex.A−5. It is seen from Ex.A−5 that the bank account was opened in May, 1981 and
therefore, in my view, the statement of the plaintiff that the plaint was
prepared on the basis of the bank passbook is not correct, because the account
was opened in May, 1981, subsequent to the filing of the suit. A careful reading
of the evidence of P.W.1 clearly shows that she has given different versions and
changed her version even during the course of her examination.
46. The trial Court was of the view that the seller has not produced the
documents of title to the purchaser and hence, the plaintiff was unable to
perform her part of the contract. A careful reading of the agreement shows that
the vendor was required to produce encumbrance certificate for one year. The
plaint and evidence of the plaintiff, on the other hand, show that as per the
agreement the seller was required not only to produce encumbrance certificate,
but also title deeds relating to the suit property. However, I find that there
is no such clause regarding handing over documents of title to the plaintiff.
The trial Court has proceeded on the basis that the vendor was required to hand

over the documents of title to the purchaser. The evidence of the plaintiff also
shows that she has not written any letter to the defendants or their mother
demanding production of encumbrance certificate or documents of title. As a
matter of fact, in the lawyer’s notice, Ex.A−4, there is no allegation regarding
non−furnishing of documents of title or encumbrance certificate. The only point
that was raised in the notice was that the first defendant has not produced the
power of attorney executed by the second defendant in favour of the first
defendant empowering her to collect the rent. Though such a stand was taken in
the notice dated 7.1.1981 (Ex.A−4), the plaintiff filed the suit against
defendants 1 and 2 alone on the ground that they are legal heirs of Chengammal.
Further, it is also evident that even after the death of Chengammal, the
plaintiff has been paying rent till January, 1980 to the first defendant and at
no point of time, she has raised a plea that the defendants are not legal
representatives of late Chengammal or there are other legal representatives
besides the defendants. It is also relevant to notice that the plaintiff has
admitted that she knew who are the legal heirs of the deceased Chengammal and in
spite of that, she has not taken any steps to enforce the agreement.
47. The trial Court was chiefly influenced by the statement of D.W.1 that in
January, 1980, the plaintiff had stated that she was ready to complete the sale.
The trial Court relied upon that statement of D.W.1, but it is relevant to
notice that the first defendant has also stated that the plaintiff was not ready
with money in January, 1980 and the plaintiff has not paid arrears of rent or
balance of sale consideration. On the other hand, the plaintiff has not let in
any further evidence to show that she was ready to complete the sale transaction
even in the month of January, 1980. The trial Court proceeded on the basis that
there is default on the part of the defendants to produce documents of title and
encumbrance certificate as per agreement for sale. As already observed by me,
there is no requirement under the agreement for sale that the vendor should hand
over title deeds to the purchaser. There was no demand by the plaintiff for the
inspection of title deeds.
48. In so far as encumbrance certificate is concerned, the vendor was
required to produce encumbrance certificate for a period of one year from
September, 1976 on the date of execution of sale and that period also expired in
September, 1977. I am of the view, the plaintiff has kept quiet, because she was
in possession of the suit property by paying rent for some time. After the death
of Chengammal in 1978, the plaintiff fall in arrears in payment of rent from
January, 1980. Taking into account the overall view of the matter, I hold that
the plaintiff was not ready and willing to perform her part of the contract
after the payment of Rs.20,000 in January, 1978. Though the said payment has
indicated that she was ready at that time, her subsequent conduct shows that she
was not ready and willing to perform her part of the contract. Further, she has
also come forward with conflicting versions both in the affidavit (Ex.B−4) and
in the evidence regarding the availability of money of Rs.26,000. It is well
settled by various decisions of this Court that where the plaintiff has set up a
false case, she is not entitled to the relief of specific performance. I hold
that on the vital and important aspect with reference to the deposit of balance
of sale consideration, the plaintiff has not given true facts which disentitle
the plaintiff from claiming the relief of specific performance. The various
decisions relied upon by the learned counsel for the appellants on this aspect
do support the case of the appellants.
49. In so far as the decision of this Court in Guruswami Gounder v. Kesave
Reddiar, wherein it was held that it is not
every incorrect case pleaded by plaintiff that would disentitle her to claim
the relief is distinguishable as in that case there was an alternative plea
expressing readiness and willingness to deposit entire sale consideration if
earlier plea of part payment was not accepted and this Court held that it would
depend upon the facts of each case and there is no uniform standard or formula
dealing with all matters. The above decision in Guruswami Gounder’s case was

approved by a Division Bench of this Court in Pachaiappan and others v. S.P.
Koon Mari, 1996 (2) LW 1.
50. However, on the facts of the present case, the false case set up by the
plaintiff as on the material aspect and affects the main case on the question
whether the plaintiff was ready and willing to perform her part of the contract.
Ultimately, it would depend upon the facts of each case whether false case is
material or immaterial and I hold that the plea put forward regarding the
availability of the amount of balance of sale consideration is a material
consideration and hence, the ratio of the Division Bench of this− Court in
Pachaiappan’s case, 1996 (2) LW 1 is not applicable. I hold that the statement
of the plaintiff in the plaint that she was ready and willing to pay the balance
of sale consideration and complete the sale transaction cannot be stated to be
true in view of her inability to comply with the orders of the Court to deposit
the balance of sale consideration. She has also not established that she was
ready and willing to perform her part of agreement by paying the balance of sale
consideration to the defendants from 1978 to 1981 when the suit was instituted.
51. In the circumstances, I hold that the plaintiff has set up a false
regarding her readiness and willingness and it is a material consideration to
consider the question whether the plaintiff is entitled to the relief of
specific performance. I also hold that the fact that there is a change in the
power of attorney holder does not make any difference. Even assuming and for
which there is no evidence that the defendants have subsequently entered into an
agreement for sale with the power of attorney holder of the legal heirs of K.
Raghavachari, that will not entitle the plaintiff to the relief of specific
performance when there was a complete inaction on her part from 1978 to 1981 and
during that period, she had not shown her readiness and willingness to perform
her part of the agreement.
52. I hold that the trial Court has exercised its discretion in granting the
equitable relief not properly and erred in granting the relief which is not
warranted on the facts of the case. I hold that the plaintiff is not entitled to
the relief of specific performance. The points 2 and 3 are answered in favour of
the appellants.
53. The result is the appeal is allowed and the judgment and decree of the
trial Court are set aside and the suit shall stand dismissed. The respondent
will be entitled to the money paid by her. Since the money has been paid in the
years 1977 and 1978, the appellants are directed to return the amount received
with 12% interest from the date of receipt till the date of payment. The
appellant is entitled to costs herein.




Tags :- burdon proof suit specific performance




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