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clog to rely on the rule of time was not the essence of cont

ravidevaraj ,
  28 December 2009       Share Bookmark

Court :
IN THE HIGH COURT OF JUDICATURE OF MADRAS
Brief :
There is no hard and fast rule that there cannot be a view that time can never be the essence of contract relating to immovable property, but it all depends upon each and every contract and the intention of the parties as found spelt out and portrayed therein and in the meantime, the cited decision of the Hon'ble Apex Court would clearly indicate and exemplify that the proposed purchaser without expressing any readiness and willingness to purchase the suit property, cannot simply rely on the abstract proposition that time was not the essence of contract relating to immovable property and approach the Court at the fag end of the limitation period by filing a suit for specific performance.
Citation :

IN THE HIGH COURT OF JUDICATURE OF MADRAS

DATED: 07.10.2008

CORAM:

THE HONOURABLE MR. JUSTICE G.RAJASURIA

A.S.No.1031 of 1995
1.Ponnammal
2.R.Krishnaswami
3.R.Palaniswami
4.Pavayee Ammal
5.Lakshmi
6.Valliammal
7.Kamala
8.Krishnaveni ... Appellants

vs.

1.T.Balasubramaniam(Died)
2.P.N.Periaswamy
3.S.N.Doraiswami
4.Komaraswami
5.Visalakshi
6.R.Vimala ... Respondents
R6 and R6 brought on record
as LRs of the deceased R1 vide
order of Court dated 27.8.2008
made in CMP.1284 to 1286 of 2008
Appeal against the judgement and decree of the learned I Additional Subordinate Judge, Erode, Periyar District, passed in O.S.No.193 of 1991 dated 24.7.1995.
For appellants :: Mr.N.Manokaran
For respondents :: Mr.A.Nissar Ahmed


JUDGMENT
This appeal is focussed as against the judgement and decree dated 24.7.1995 passed in O.S.No.193 of 1991 by the learned I Additional Subordinate Judge, Erode, Periyar District.

2. Narratively but precisely, broadly but briefly the case of the plaintiffs as stood exposited from the plaint could be portrayed thus:-
(a) The deceased Rangaswami gounder and his wife D1-Ponnammal and their children, namely defendants 2 to 8 entered into the suit agreement to sell with the plaintiffs dated 27.3.1987, whereby the plaintiffs agreed to purchase from the defendants the suit property measuring an extent of 3 acres of land for a sum of Rs.3,48,000/-. The stipulations contained therein are to the effect that the plaintiffs should carve out plots and sell them to various persons and pay the proportionate amounts as and when they receive the sale consideration from the purchasers of the plots, in addition to the condition that the plaintiffs also at their discretion purchase, on outright basis the entire suit property as one lot. The time stipulated for performance was one year.

(b) The plaintiffs, in commensurate with the agreement to sell, effected changes in the land, so as to make it fit for being sold as contemplated supra and the plaintiffs have been ready and willing to perform their part of the contract. To their surprise and shock the land owners sent a registered notice dated 24.3.1988 calling upon the plaintiffs to complete the sale transactions on or before 27.3.1988 and they intended to make the time as the essence of the contract. A corrigendum was also sent by them incorporating the schedule of property, which was earlier left out in their notice.

(c) The plaintiffs sent a reply narrating as to how the defendants' notices were defective, that the earlier notice reached beyond the date stipulated for performance and that as per the said agreement, time was not the essence of contract.

(d) The plaintiffs were put in possession of the suit property under the said agreement to sell by way of part performance. The plaintiffs issued notice dated 22.3.1991 calling upon the defendants to be present at 10.00 a.m on 26.3.1991 at the Sub-Registrar office concerned for executing the sale deed after receiving the remaining part of the sale consideration, however, the defendants did not comply with the request of the plaintiffs.

3. Remonstrating and refuting, gain saying and impugning the allegations/averments in the plaint D3 filed the written statement, which was adopted by the other defendants, the pith and marrow of it would run thus:
(i) As per the agreement to sell, the period of performance was one year and it could be extended by six months more for getting approval of lay out for carving out plots and selling the same.

(ii) The plaintiffs have not raised their little finger to perform their part of the contract and absolutely no steps were taken in concinnity with the stipulation contained in the agreement to sell.

(iii) The incessant demands made by the defendants to the plaintiffs to get the sale deed executed from the plaintiffs ended in a fiasco. Time was intended to be the essence of contract. The defendants suitably replied to the plaintiffs' lawyer's notice dated 26.3.1991 highlighting that the plaintiffs' had lost their right to seek for specific performance. However, the defendants also made themselves available at the registrar's office on 26.3.1991, as requested by the plaintiffs in their said notice, but the plaintiffs did not turn up.

(iv) The plaintiffs are not ready and willing to perform their part of the contract.
Accordingly, the defendants prayed for the dismissal of the suit.

4. The gist and kernal of the additional written statement filed by the defendants would be to the effect that the plaintiffs were in the habit of entering into such agreements and thereafter abandon the same. The plaintiffs, by their own conduct, abandoned and waived the rights under the contract. Accordingly, they prayed for dismissal of the suit.

5. The warp and woof of the reply statement filed by the first plaintiff and adopted by the other plaintiffs is mostly denial in nature as against the averments/allegations in the written statement, as though the plaintiffs drew a plan and submitted the same to the authorities concerned for obtaining sanction of the lay out to the knowledge of the defendants.

6. On 11.6.1987 the plaintiffs entered into an agreement to sell with one Ramayee Ammal, Sathasivam and Murugan to sell plot Nos.59 and 60, but such agreements could not get fructified in view of the non-cooperative attitude of the defendants, as there had emerged already inter se disputes among the defendants; the defendants 2 and 3 were not willing to give the shares of their sisters from out of the sale amount, whereupon the 6th defendant and his sisters requested that the sale amount may be deposited in Court and through the Court the sale deed might be got executed. The plaintiffs therefore had returned back the advance amount to the said Ramayee Ammal, Sathasivam and Murugan. Accordingly, the plaintiffs prayed for dismissing the suit.

7. The trial Court framed the relevant issues. During trial, on the side of the plaintiffs, P.Ws.1 and 2 were examined and Exhibits A.1 to A.15 were marked. On the side of the respondents D.Ws.1 to 3 were examined and Exhibits B.1 to B.35 were marked.

8. Being aggrieved by and dissatisfied with the judgement and decree of the trial Court, the defendants filed this appeal on various grounds, the nitty-gritty of them would run thus:-
(a) the trial Court fell into error in simply treating the plea of the defendants as against them that they went to sub-registrar's office and waited for the plaintiffs to get the sale deed executed from them;
(b) the trial Court ignored the fact that the plaintiffs, who were expected to be ready and willing to perform their part of the contract throughout , failed to do so.
(c) for 3= years the plaintiffs kept quite, which period of quiescent was not considered by the trial Court as against the plaintiffs.
(d) the trial Court wrongly construed as though time was not the essence of contract
(e) the trial Court wrongly understood as though the plaintiffs could wait till the last day of limitation and file the suit for specific performance
(f) the suit is barred by limitation in view of the facts set out in this case, as within three years from the date of Ex.A2, Ex.A14 and Ex.A15, the suit was not filed.
(g) the plaintiffs are not entitled to obtain the discretionary relief of specific performance.
Accordingly, the defendants prayed for setting aside the judgement and decree of the trial Court and for dismissing the original suit.

9. The points for consideration are as to:
(i) Whether the plaintiffs have been ready and willing to perform their part of the contract throughout? or Whether they committed default?
(ii) Whether time was essence of the contract?
(iii) Whether there is any infirmity in the judgement and decree of the trial Court?

10. The nub and essence of the argument of the learned counsel for the plaintiffs is that the kernel of Ex.A1-the agreement to sell would not contemplate obtainment of approval for lay out from the authorities concerned by the plaintiffs as the sine qua non for carving out plots and selling them; the suit property could have been purchased by the plaintiffs either in their name or in the name of somebody else as one plot or as several plots and in the event of selling the plots to various individuals, the plaintiffs are liberty to pay the sale price proportionately as and when they are in receipt of the sale price from the purchasers of the plot; the very nature of the recitals in Ex.A1 would connote and denote that the time was not the essence of contract as virtually this is not a case where one land owner agreed to sell in favour of a purchaser a property but it is more or less amounting to dealing in real estate business; the defendants apparently came forward with false plea as though they were present at the Registrar's Office; the defendants by their very plea that they were present in the Sub-Registrar office, condoned the alleged delay on the part of the plaintiffs. Accordingly, the learned counsel for the plaintiffs prayed for dismissing the appeal, as there is no infirmity in the judgement passed by the trial Court in ordering specific performance.

11. Compendiously and concisely the argument as posited by the learned counsel for the defendants would be to the effect that the plaintiffs did not take any steps inconsonance or in concinnity with the agreement to sell and that they did not perform their part of the contract; the alleged two agreements to sell Exs.A14 and A15 purported to have been emerged between the plaintiffs and some third parties are concocted documents purely brought about so as to buttress their plea; the defendants before the expiry of one year period cautioned the plaintiffs to get the sale fulfilled but they failed to do so and even during the next period of six months, the defendants cautioned the plaintiffs by their notice, for which also the plaintiffs were not responding positively, but on the other hand on both the occasions it was their contention that they were having legally time to perform their part of the contract.

12. In this factual matrix, it is just and necessary to analyse in depth Ex.A.2, the agreement of sale. It does not refer to a mere agreement to sell which emerged between two persons, whereby, one agreed to sell an extent of land in favour of another without any other condition. But here Ex.A1 contemplates carving out of plots in the suit property and selling them to several persons and consequently, paying proportionately the sale price of those plots to the land owners as and when the plaintiffs would be in receipt of the same. Initially, the time contemplated was for one year and it was extendable by six more months under certain circumstances found spelt out in Ex.A1 itself. The pertinent point to be noted here is that in Ex.A1 also, there is a clause enabling the plaintiffs to purchase in one lot the entire suit property either in their own name or in favour of any other person whom they specify. Certain excerpts from Ex.A1 are extracted here under for ready reference:



Vernacular (Tamil) Portion Deleted




13. The above excerpts would unambiguously highlight the fact that the time stipulated for performance is only one year; if there is any difficulty in getting approval for the lay out, purposefully it is extendable by six months more. The learned counsel for the defendants convincingly based on documentary evidence would put forth his plea that absolutely the plaintiffs were dormant and they have not taken any steps to perform their part of the contract, despite issuing legal notice.

14. Ex.A2 is the defendants' lawyer notice dated 24.03.1988 which would exemplify that the defendants called upon the plaintiffs to come forward to get the sale deed executed on or before 29.03.1988, by that time the one year period stipulated in Ex.A1 expired.

15. Ex.A3 is the corrigendum to Ex.A2, as in the earlier notice, there was no reference to the schedule of the property. The learned counsel for the plaintiffs would try to find fault with Exs.A2 and A3 on the ground that the very notice Ex.A2 itself is a belated notice, as the notice was sent in such a manner so as to make the plaintiffs not to be in receipt of the same on or before 28.03.1987. I am at a loss to understand as to how the plaintiffs can be heard to contend that such a notice is bad in law. It is the duty of the plaintiffs to perform their part of the contract of their own accord and they cannot expect the land owners, namely the defendants to call upon the plaintiffs to perform their part of the contract. It is not as though there was a stipulation in Ex.A1 that only on receipt of a notice from the defendants, the plaintiffs were bound to act. By way of adding fuel to the fire, the very stand on the plaintiffs themselves is not to the effect that because of Ex.A2 having been received by them belatedly, they could not perform their part of the contract. But, they have come forward with a specific plea in Ex.A4 dated 11.04.1988 to the effect that the plaintiffs were having enough further time to perform their part of the contract and it was not open for the plaintiffs to insist upon their performance pre-maturely. An excerpt from Ex.A4 would run thus:

"5. Your notices under reply seem to proceed on the assumption that the obtaining of lay-out approval by my clients is a condition precedent for the enforceability of the agreement. It is submitted that my clients would be well within their rights to call upon your clients to execute sale deeds in respect of portions of the agreed 3 acres of land, and it is not incumbent on the purchasers to necessarily construct houses alone. Equally, the factual averments in your notice that my clients had done nothing whatever in furtherence of the agreement dated 27.3.1987 are hereby denied as false. To the knowledge of your clients, my clients have invested more than Rs.1 lakh in preparing the lands so as to render the same fit to be sold as house and factory sites.

6. It is submitted that the agreement dated 27.3.1987 would remain alive and be legally enforceable till 28.3.1991. My clients further state that at all material times they have been ready and willing to perform their part of the agreement, and that it is not open to your clients to treat my clients as in default, and proceed on that footing.
(emphasis supplied)

7. Please therefore advise your clients not to indulge in illegalities on the strength of imaginary rights. If inspite of this reply notices your clients should seek to exercise or assert 'imaginary rights' in respect of the properties in question, they would be doing so at their own risk and peril."

16. As such, in view of the stand as set out supra taken by the plaintiffs, they had no right to raise their acquisitive finger as against the defendants relating to the late despatch of Exs.A2 and A3. It has to be seen as to whether the stand of the plaintiffs in Ex.A4 is tenable at all. One year period is contemplated in Ex.A1 and extension of six months is contemplated only for the purpose of enabling them to get lay out approval, but in paragraph 5 of Ex.A1 itself the plaintiffs clearly and categorically expatiated and conveyed that they were not duty bound to obtain lay out approval for the purpose of purchasing the land either in their own name or in the name of others. When such is the position, it is clear that within a years' time, they should have taken prompt steps either to get the sale deed executed in one lot or in different lots, but they had not taken any steps. However, the plaintiffs would rely on Exs.A14 and A15, the alleged agreements to sell dated 11.06.1987 which they allegedly entered into with the third parties, as though they took effective steps within the expiry of one year period. Just and necessary, it is, to scrutinise as to the genuineness of those exhibits. At this juncture, my mind is reminiscent of the popular legal adage that witnesses might lie, but the circumstances would not do so.

17. The learned counsel for the defendants would promptly and appositely posit that there had been no whisper about Exs.A14 and 15 in Ex.A4 dated 11.04.1988, Ex.A6 dated 12.09.1988, the plaintiffs' legal notices as well in their plaint. Only in the reply statement, for the first time, like a bolt from the blew there was reference to Exs.A14 and A15. Absolutely there is no plausible explanation or expounding exposition forthcoming from the side of the plaintiffs for such absence of mentioning of Exs.A14 and 15 at the earliest point of time. Had really Exs.A14 and A15 emerged on 11.06.1987 as claimed by the plaintiffs, certainly those documents would have traced its delineation or citation at the earliest point of time in the plaintiffs' notice or in the plaint averments. Wherefore it is pellucid that as an afterthought, Exs.A14 and A15 emerged at the instance of the plaintiffs so as to buttress and fortify their case. By no stretch of imagination, such absence of reference to Exs.A14 and A15 at the earliest point of time could be construed as one due to oversight.

18. It is the specific case of the plaintiffs during trial that owing to the alleged non - cooperative attitude of the defendants, the sale deeds could not be got executed in favour of the third parties referred to Exs.A14 and A15 and that the defendants were constrained to return the advance amounts received from those third parties. At this juncture, the crucial question arises as to why then the defendant at the first instance itself had not sent any lawyer's notice pointing out the default on the part of the plaintiffs in fulfilling the contract and also the alleged damage caused to the plaintiffs' reputation as Real Estate Operators in not able to fulfil their promise towards the third parties. It is not an ordinary alleged lapse on the part of the defendants as per the plaintiffs, but Himalayan and mammoth one which resulted in the plaintiffs allegedly snapping their contracts with the said third parties. The normal conduct of the parties should be borne in mind. No man having head over shoulder would ever tolerate such sort of conduct on the part of the defendants in making the plaintiffs to suffer damage in view of they having been made to snap their contract with the third parties with whom they allegedly entered into, as per Exs.A14 and A15. Hence, in this factual matrix, it is palpably and apparently clear that P.W.2 can by no stretch of imagination could be taken as a witness who spoke truth. P.W.2 would claim himself as one of the third parties with whom the plaintiffs entered into the agreement to sell. In fact, the deposition of P.Ws.1 and 2 coupled with the endorsements in Exs.A14 and A15 would convey the idea as though on 16.11.1987 the time stipulated in those agreements was extended and thereafter, on 09.08.1988 the plaintiffs were constrained to refund the advance amounts because of the non - cooperative attitude of the defendants. I am at a loss to understand as to how the plaintiffs would have tolerated such non-cooperative attitude of the defendants, if really those events took place as narrated by the plaintiffs. The plaintiffs would try to project the case as though the sisters of D2 and D3 were not happy with their brothers; they suspected that their brothers would not pay them their share of the sale proceeds; consequently, there was apple of discard among them inter se and that alone stood in the way of the defendants executing the sale deeds in favour of third parties. The plaintiffs tried to project as though D.W.1 himself admitted that the husband of D6 was not in talking terms with D.W.1 and his brother. An excerpt from the deposition of D.W.1 would run thus:





Vernacular (Tamil) Portion Deleted





19. Barely because D.W.1 deposed during cross examination that D.W.1 and his brother were not in talking terms with D6's husband, there is no presumption that they wanted to commit breach of the contract of agreement to sell as found spelt out in Ex.A1. However, D.W.1 in the course of his deposition denied all the suggestions put to him as under:





Vernacular (Tamil) Portion Deleted




20. Wherefore, it is obvious that the plaintiffs in order to camouflage and conceal their fault tried their level best to fob of their fault on the defendants and tried to wriggle out of and extricate themselves from the consequences, which resulted and ensued from their fault. To the risk of repetition without being tautologous, I would like to stress upon the fact that if really events took place in such a manner which are capable of pointing out unerringly towards the default of the defendants, the plaintiffs would have made a mountain out of it and issued notice. The suit itself was admittedly filed only on 27.03.1991, whereas, according to the plaintiffs as per the endorsement dated 16.11.1987 itself, the unwillingness and the non-cooperative attitude on the part of the defendants actuated and accentuated, propelled and impelled the plaintiffs to extend the period of performance under the alleged agreements between the plaintiffs and the third parties. Over and above that, the endorsement on 09.03.1988 itself on Exs.A14 and A15 would further expose the plaintiffs that they should have in all probabilities understood that by 09.03.1988 itself according to the plaintiffs the defendants refused to perform their part of the contract. The suit could have been filed much earlier and without any rhyme or reason, the plaintiffs simply refrained from instituting the suit, because three years limitation period is contemplated under Article 54 of the Limitation Act. The plaintiff was not justified in filing the suit on the verge of the expiry of limitation period of three years computing from 27.03.1988 after excluding the one year period towards performance from 27.03.1987, the date on which Ex.A1 emerged.

21. However, the learned counsel for the plaintiffs would try to place reliance on Ex.A1 and develop his argument that one year period as contemplated in Ex.A1 dated 27.03.1987 expired by 27.03.1988 and the suit filed on 27.03.1991 was within three years' limitation period and that the suit is not barred by limitation. He would also try to put forth one other farfetched argument that as per Ex.A1, the total period of performance was not one year but one year and six months and accordingly, if calculated, the suit filed could be taken as one filed well before six months anterior to the date of expiry of the limitation period.

22. The learned counsel for the defendants would convincingly torpedo the argument on the side of the plaintiffs by pinpointing that the plaintiffs even though were not ready and willing to perform their part of contract, they wanted to rely upon the three years' limitation period, which according to them was up to 28.03.1991, wrongly presuming as though the entire period of limitation of three years as contemplated under the said Article 54 of the Limitation Act was the period for performing their part of the contract, forgetting for the moment that the period stipulated in Ex.A1 for performance of agreement is different from period prescribed for filing suit for enforcement of the agreement to sell. Paragraph 6 of Ex.A4 dated 11.04.1988, which was already extracted supra would demonstrate and exemplify that ever since the time of emergence of Ex.A4 the plaintiffs lawyer's notice, there had been a misconception on their part as though they were having the right to perform their part of the contract upto 28.03.1991. Such a stand of the plaintiffs is found reflected in Ex.A6 the plaintiffs' lawyer's notice dated 12.09.1988 also. The gist and kernel and more so, the crux of the matter is that in this case, the plaintiffs should be in a position to prove that between 27.03.1987 and 27.03.1988, they performed their part of the contract and it is also a settled proposition of law that the plaintiffs who approached this Court for specific performance should also prove that ever since 27.03.1987, the date on which Ex.A1 - the agreement to sell emerged, they have been ready and willing to perform their part of the contract.

23. As has been highlighted supra, there is no modicum or exiguous extent of evidence to demonstrate and exemplify that they have been ready and willing to perform their part of the contract during the one year period from the date of Ex.A1 and even subsequently. At this juncture, it is worthwhile to point out that the further period of six months over and above one year period was not extendable as a matter of course, but it was subject to the condition that the plaintiffs should have opted for getting lay out approval in respect of the suit property and in that connection, had there been some difficulty in obtaining the same from the authorities concerned, only under such circumstances, the plaintiffs would be entitled to get the period extended by six more months. But, in this case, there is no shred or iota of evidence in that regard.

24. It is pellucid and palpable in the facts and circumstances of the case that the plaintiffs were not ready and willing to perform their part of the contract. Even though the plaintiffs would contend as though they prepared lay out plan and submitted for getting approval, no such plan was exhibited and no evidence in that connection was also placed before the lower Court. In fact, they had volte-face and a somersault in their plea, so to say, as per Ex.A7 they expressed their desire to purchase in one lot the entire suit property just before the filing of the suit and it is nothing but a ruse or ploy to project as though they were ready to perform their part of the contract. The only ratiocination and deduction that would arise is that the plaintiffs had no specific case of their own and before filing the suit at the verge of expiration of the limitation period, they wanted to play safe by sending such name sake Ex.A4. The learned counsel for the defendants is right in his argument that the plaintiffs in their Advocate's notice Ex.A7 dated 22.03.1991 would artificially express their desire to get the sale deed executed in one lot and to that effect, they called upon the defendants to be present at the Registration Office on 25.03.1981 at 10 a.m., for which the defendants suitably replied vide Ex.B6, the reply notice dated 25.03.1991 positing the point that the plaintiffs had already lost their right under Ex.A1 to get the sale deed executed in their favour. Paragraph 4 of Ex.B6 is extracted here under for ready reference.

"4. Since the agreement dated 27.03.1987 has no value now, not in time, your clients have no right to ask my clients to have the sale transaction completed and waiting for that purpose. My clients understand that only for getting unlawful gain from my clients, your clients instructed you to issue the notice on the basis of that already cancelled agreement which has no value at all. My clients understand that the reason for your clients failure to perform that agreement in time is unavailability of amount in time and unable to get lay out approval."

25. From the dates and events as found exemplified from the above discussion, if the matter is analysed it is clear the the plaintiffs without performing anything positively towards implementing the agreement to sell as contemplated in Ex.A1, simply protracted the matter and that too baselessly and unreasonably contending as though the plaintiffs were having time to perform their part of contract up to 27.03.1991; after sensing that the time to file the suit for specific performance was about to expire, they filed it and before such filing, they caused to issue Ex.A7 notice. Once the plaintiffs have lost their right to seek specific performance, the question of issuing Ex.A7 did not arise at all and even in response to Ex.A7, the defendants suitably replied as per Ex.B6.

26. The trial Court, without adhering to these salient features, without au courant with facts, simply applied wrongly the law as though the defendants by their own pleadings in the written statement that they were waiting at the Sub Registrar Office in response to Ex.A7, waived their right to find fault with the default committed by the plaintiffs and also their laches in their being ready and willing to perform their part of the contract. As such, without au fait with law, the lower Court decreed the suit for specific performance forgetting that the plaintiffs being dominus litis should have proved their case without picking holes in the case of the defendants and also by demonstrating that they have been ready and willing to perform their contract throughout from the date of Ex.A1. No doubt, in the written statement at paragraph 10, the defendants averred thus:
"10. The plaintiffs has finally attempted to create a false records on their part sent a false notice dated 22.03.1991 to the defendants to be present at 10.00 a.m. On 26.03.1991 to complete the same transaction at the office of Sub Registrar, Bhavani. For that notice, the defendants had issued a proper reply. It is false to state that none of the defendants did come to sub Registrars office at Bhavani. The defendants were waiting for the plaintiffs on 26.03.1991 at Bhavani registrar s office from 9.45 a.m. Inspite of their reply. But none of the plaintiffs were present on 26.03.1991 at Bhavani Sub Registrar s Office. So the defendants gave a telegram to that effect to the plaintiffs counsel on 26.03.1991 itself. So all these facts are clearly proves that the plaintiffs were not in the position to get the sale deed in time as per the agreement, and they want to get some more time by creating false documents and stating false allegations."

27. Presumably, the lower Court placing reliance on the contention of the defendants that even though they suitably replied to Ex.A7 by sending Ex.B6 disputing the right of the plaintiffs to get the sale deed executed, nonetheless, they appeared before the Sub Registrar on 26.03.1991 and even then the plaintiffs did not turn up. In my opinion, at the time of filing the written statement, the defendants might have over reached themselves under the false notion that by way of buttressing and fortifying their case, they could state as though they even after disputing the plaintiffs' right to get the sale deed, appeared at the Sub Registrar's Office. The crucial question arises as to whether such utterance of a statement, the provability and demonstrability of it is dubious, would enure to the benefit of the plaintiffs to get the Ex.A1 the agreement to sell enforced in their favour and that too when the plaintiffs palpably and miserably failed to prove and establish their case that they were ready and willing to perform their part of the contract. The law is to the effect that the plaintiff who approaches the Court for specific performance should come with clean hands without any embellishment or falsity and demonstrate that he has been ready and willing to perform his part of the contract. On the other hand, the plaintiffs cannot rely upon such embellished statement of the defendants as though all of them were present at the Registrar's Office, even though they denied by their notice Ex.B6, the right of the plaintiffs to get such a sale deed executed.

28. The learned counsel for the plaintiffs would point out that D.W.2 Valliammal (D6) quite antithetical to the case of D.W.1 and the stand of the defendants in the written statement would state that she was not present at the Registrar Office. In fact in my opinion, she had come forward with the truth because the stray sentence in the written statement as set out supra emerged out of the defendants' attempt to over reach themselves and the plaintiffs cannot try to make a mountain out of a mole hill throwing to winds their own responsibility which they should have adhered to in performing their part of the contract.

29. The learned counsel for the plaintiffs invited the attention of this Court to Exs.A12 and A13, to project as though they exemplify that the first plaintiff and the fourth plaintiff respectively, were present at the Registrar Office for getting the sale deed executed in favour of the plaintiffs, forgetting for the moment that the admission of P.W.1, during trial do not speak well of the alleged intention of the plaintiff being present there, meaning business in all sincerity. P.W.1, during cross examination candidly admitted thus:





Vernacular (Tamil) Portion Deleted





30. It is therefore crystal clear from P.W.1's own admission that for the purpose of creating evidence as though he was ready and willing to perform his contract before filing the suit, he stage managed it, which fails to carry conviction with this Court and it is evident that the plaintiffs failed to prove that they were ready and willing to perform their part of the contract throughout. Pragmatically and practically, adhering to a posteriori approach, if the matter is viewed, it is evident that the plaint itself was presented on 27.03.1991 in the Court. If really the plaintiffs had good faith and sincerity in getting the sale deed executed in their favour, then it is not known as to how they fixed the date 26.03.1991, so to say, the penultimate date to the date of expiry of the limitation period as the date on which the sale deed should be executed by the defendants in their favour, It is common knowledge that no litigant after 26.03.1991 late in the evening by approaching his Advocate for filing the suit for specific performance could have prepared the plaint and presented it on 27.03.1991 itself and that itself would exemplify and expose that the plaint was prepared well in advance and such legal notice ex abundanti cautela was issued as though the plaintiffs were ready and willing to perform their part of the contract. There is also one other improbability which could be seen that out of the total stamp papers worth Rs.26,100/- by the plaintiff, the major chunk of the stamp papers was purchased on 26.03.1991 itself. Wherefore, it demonstrates that the fixing of the date 26.03.1991 as the date for getting the sale deed executed was nothing, but a stooge or ploy or stage managed one to project as though the plaintiffs were ready and willing to perform their part of the contract. At this juncture, it is just and necessary to consider the precedents cited on both sides.

31. On the side of the defendants, as many as 12 decisions have been cited and it is therefore just and necessary to consider the same in seriatim.
(i) 2007-2-L.W.481 [M.Meenakshi & Others v. Metadin Agarwal (D) By LRs & others]
"39. Furthermore, Section 20 of the Specific Relief Act confers a discretionary jurisdiction upon the Courts. Undoubtedly such a jurisdiction cannot be refused to be exercised on whims and caprice; but when with passage of time, contract becomes frustrated or in some cases increase in the price of land takes place, the same being relevant factors can be taken into consideration for the said purpose. While refusing to exercise its jurisdiction, the courts are not precluded from taking into consideration the subsequent events. Only because the Plaintiff-Respondents are ready and willing to perform their part of contract and even assuming that the Defendant was not entirely vigilant in protecting their rights in the proceedings before the competent authority under the 1976 Act, the same by itself would not mean that a decree for specific performance of contract would automatically be granted. While considering the question as to whether the discretionary jurisdiction should be exercised or not, the orders of a competent authority must also be taken into consideration. While the court upon passing a decree for specific performance of contract is entitled to direct that the same shall be subject to the grant of sanction by the concerned authority, as was the case in Mrs.Chandnee Vidya Vati Madden v. Dr.C.L.Katial and Others [AIR 1964 SC 978] and Nirmal Anand v. Advent Corporation (P) Ltd. And Others [(2002) 5 SCC 481]; the ratio laid down therein cannot be extended to a case where prayer for such sanction had been prayed for and expressly rejected. On the face of such order, which, as noticed hereinbefore, is required to be set aside by a court in accordance with law, a decree for specific performance of contract could not have been granted."
(Emphasis supplied)

(ii) 2007-4-L.W.36 [Janardhanam Prasad v. Ramdas]

"11. The Court, in applying the period of limitation, would first inquire as to whether any time was fixed for performance of agreement of sale. If it is so fixed, the suit must be filed within the period of three years, failing which the same would be barred by limitation. Here, however, no time for performance was fixed. It was for the Courts to find out the date on which the plaintiff had notice that the performance was refused and on arriving at a finding in that behalf, to see whether the suit was filed within three years thereafter.

14. ...Even if the suit was not barred by limitation on that account, it was a fit case, where the Court should have refused to exercise its discretionary jurisdiction under Section 20 of the Specific Relief Act, 1963.

17. ...In that view of the matter too, in our opinion, it was a fit case where the discretionary jurisdiction of the Court under Section 20 of the Specific Relief Act should not have been exercised and, instead, monetary compensation could be granted."
(Emphasis supplied)


(iii) 2007 (1) CTC 57 [A.Ganapathy v. S.Venkatesan]

"19. In a case of specific performance of a contract, in the judgment reported in Smt.Mayawanti v. Smt.Kaushalya Devi JT 1990 (3) SC 205, the Supreme Court has held as under in paragraphs 8 and 11:

8. ......
"11. .... It is settled law that if a contract is to be made, the intention of the offeree to accept the offer must be expressed without leaving room for doubt as to the fact of acceptance or to the coincidence of the terms of acceptance with those of the offer. The rule is that the acceptance must be absolute, and must correspond with the terms of the offer. If the two minds were not ad idem in respect of the property to be sold, there cannot be said to have been a contract for specific performance. If the parties themselves were not ad idem as to the subject matter of the contract the Court cannot order specific performance...."

(iv) 2003(1) CTC 355 [Arunachala Mudaliar v. Jayalakshmi Ammal and another]

"25. ...The plaintiff has not deposited the amount that she should have deposited as per Ex.A7 before filing the suit for specific performance. The defendant had raised the plea that the deposit was not made and it would show the plaintiff's lack of bona fides. In spite of that the plaintiff not only does not deposit the amount before filing the suit, but P.W.1, the plaintiff's husband glibly says in his evidence that he has deposited the amount. The plaint does not even refer to any readiness or willingness to deposit and the suit notice claimed to have been issued has not been proved to have been issued. In the particular circumstance of the case and in view of the specific recitals regarding the deposit the plaintiff cannot be content with citing the explanation to Section 16(c) of the Act without proving his readiness and willingness clearly and beyond doubt."
(Emphasis supplied)

(v) (2008) 6 MLJ 587 [Periyaya v. M.Rajagopal and another]

"18. In P.V.Joseph's Son Mathew v. N.Kuruvila's Son AIR 1987 SC 2328 : 1987 Supp SCC 340, the Apex Court considered the scope and ambit of Section 20 of the Specific Relief Act and observed thus:
"Section 20 of the Specific Relief Act, 1963 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppressions to have an unfair advantage to the plaintiff."
(Emphasis supplied)

(vi) (2008) 6 MLJ 539 [A.Gunasekaran v. K.Damayanthi]

38. .. The decision in K.S.Vidyanandam v. Vairavan, J.T.1997(2) SC 375 is clearly applicable. Specific performance cannot be ordered merely because they are filed within the period of limitation, especially where time limits have been stipulated in the agreement for performance of certain obligations. To disregard the time stipulation would amount to ignoring the understanding between the parties as though it is of no significance or value."
(Emphasis supplied)

(vii) 2008(2) CTC 382 [P.Sampoornam and others v. L.T.Somasundaram and others]
"19. ... The relief of specific performance is a discretionary relief and the Courts have to exercise their discretion on sound and reasonable reasons. Even if a doubt arises whether it is probable or possible that an agreement of sale would have been executed at all, the discretionary relief shall not be granted. By analysing the matter in issue as referred to above, I am of the opinion that it is doubtful that the defendants would have executed an agreement of sale with an intention to sell the suit property. Further more, there is no reason for execution of Ex.A11 endorsement since it has not been proved that there was a lessee in the suit property. Further more, after the endorsement dated 30.12.1990, the plaintiffs would not have waited till the issuance of notice under Ex.A.2 dated 13.07.1996. The silence for nearly six years by the plaintiffs causes much doubt whether there was a real agreement of sale between the plaintiffs and the defendants. Merely because the defendants have accepted their signatures in the endorsement under Ex.A.11, conclusion could not be reached that the defendants have entered into an agreement of sale with an intention to sell the suit property."

(viii) 2007(1) CTC 243 [G.Ramalingam v. T.Vijayarangam]
"16. ... Even if for a 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 up to the date of hearing. In this case, the concurrent finding is that the appellant was not ready to take the sale deed and that is proved by Ex.A-3"
(Emphasis supplied)
(ix) 2007 (2) L.W.791 [1. Chinnakannu Naidu 2. Saroja v. Chinnappan]

"16. In Sandhyarani v. Sudha Rani, AIR 1978 S.C. 537, it is laid down
"Where there is inordinate delay on the part of the plaintiff to perform his or her part of contract a decree for specific performance can be refused."

(x) (2006) 2 M.L.J.651 [Yesudass (died) and others v. Henry Victor and others]
"15. The factum of readiness and willingness to perform part of the contract is to be adjudged with reference to the conduct of the parties and the attending circumstance. The court must infer from the facts and circumstance whether the plaintiff and third defendant were always ready and willing to perform their part of the contract. The facts of this case would amply demonstrate that the plaintiff and third defendant were not ready nor had the capacity to perform their part of the contract as they have no financial capability to pay the consideration in cash as contracted and intended to bite for the time, which disentitles them as time is the essence of the contract. Continuous readiness and willingness at all stages from the date of agreements till the date of hearing of the suit must be proved."
(Emphasis supplied)

(xi) 2008(1) CTC 86 [Sita Ram and others vs. Radhey Shyam]

"6. .....He had in that Suit to allege, and if the act was traversed, he was required to prove a continuous readiness and willingness from the date of the contract to the time of the hearing, to perform the contract on his part. Failure to make good that averment brings with it and leads to the inevitable dismissal of the Suit."

(Emphasis supplied)


(xii) 2006(4) MLJ 1348 [V.Kanniammal and others v. Anjalakshmiammal (Died) and others]

"28. ..... Therefore, the readiness and willingness pleaded and the attempt made to prove the payment of balance of sale consideration, through P.W.3, fails to satisfy the conscience of the Court and in this view, it should be held that there was slackness on the part of the plaintiff to perform her part of the contract and such being the position, even assuming that there was some contract, the same could not be enforced."

32. A bare perusal of those excerpts including those judgment in entirety would clearly highlight that the burden of proof is on the plaintiffs to prove that they have been ready and willing to perform their part of the contract throughout and they cannot pick holes in the case of the defendants so as to achieve success in the litigative battle. It is also made clear that the discretional relief of specific performance cannot be granted as a matter of course and that too, when the plaintiffs have not approached the Court with clean hands.
33. The defendants also cited one other decision of the Hon'ble Supreme Court reported in AIR 1997 SC 1751 [K.S.Vidyanadam and others v. Vairavan]. An excerpt from it would run thus:
".........The above finding means that from 15-12-1978 till 11-7-1981 i.e., for a period of more than 2= years, the plaintiff was sitting quiet without taking any steps to perform his part of the contract under the agreement though the agreement specified a period of six months within which he was expected to purchase stamp papers, tender the balance amount and call upon the defendants to execute the sale deed and deliver possession of the property. We are inclined to accept the defendant s case that the values of the house property in Madurai town was rising fast and this must have induced the plaintiff to wake up after 2= years and demand specific performance."

The Hon'ble Apex Court in the cited decision supra would posit that for a period of 2-1/2 years, the plaintiff was inactive as in this case. Hence I am of the view that the ratio decidendi of the cited decision of the Hon'ble Apex Court is applicable to the facts and circumstances of this case.

34. On the plaintiffs' side, the learned counsel cited the following decision:
U.J.(S.C.)1988(1)650 [Smt.Indira Kaur and others vs. Shri Sheo Lal Kapoor]. An excerpt from it would run thus:
"6. It is remarkable that the defendant has not even made an assertion in the written statement or in his evidence to the effect that time was of the essence of the contract and yet the Courts below have so concluded. It is not the case of the defendant that time was made the essence of the contract by giving intimation to this effect to the vendee. The law is well settled that in transactions of sale of immovable properties, time is not the essence of the Contract."

12. What emerges from this evidence is that he had in fact received the notice, but he had not replied to the notice. It also emerges that according to him the notice was not received before the stipulated date namely 19.8.77 and he was not prepared to execute the sale deed because he had not been called upon to perform his part of the contract before 16.8.77, the deadline. ....."
The above excerpts are on the point that time is not the essence of contract, but in the case dealt with by the Hon'ble Apex Court, the lower Court erroneously held that time was the essence of contract. I would without any hesitation highlight that in this case also, time cannot be stated to be the essence of contract for the reason that Ex.A1 emerged relating to immovable property and that too the plaintiffs and the defendants wanted to sell the suit property as plots or in one lot. In such a case, time cannot be treated as essence of contract. But, my finding is based on the attitude of the plaintiffs in not ready and willing to perform their part of the contract as discussed supra. On the plaintiffs' side, various other decisions have been cited so as to highlight that relating to immovable property, time was not the essence of contract.

35. The learned counsel for the plaintiffs cited the decision of the Hon'ble Apex reported in AIR 1994 SC 105 [Surya Narain Upadhyaya vs. Ram Roop Pandey and others]. An excerpt from it would run thus:
"3. We are wholly unable to subscribe to the views expressed by the High Court. Section 16 of the Specific Relief Act, 1963 mandates the plaintiff to aver in the plaint and establish as a fact by evidence aliunde that he has always been ready and willing to perform his part of the contract. The failure thereof is fatal to maintain the suit and entails with its dismissal. It is seen that the appellant has specifically pleaded in his plaint that he has been ready and willing to perform his part of the contract. He also further stated that he was ready to deposit the balance consideration of Rs.9,000/- and get the sale deed executed and registered in his favour in terms of the contract. The High Court also found that the appellant had deposited Rs.9,000/- within the time allowed by the trial court and the suit was decreed. That would clearly show that the appellant had the capacity to pay the balance consideration and he was always ready and willing to perform his part of the contract.
4. Though the decree for specific performance is a discretionary power, yet the court is not bound to grant such a relief merely because it is lawful to do so; but the discretion of the court is not arbitrary, but sound and reasonable, guided by judicial principles of law and capable of correction by a court of appeal. Therefore, the discretion should be properly exercised keeping gin view the settled principles of law as envisaged in S.20 of the Act. This case demonstrates that the High Court took irrelevant consideration into account to refuse to grant the decree for specific performance. It also committed manifest illegality in reversing the concurrent finding of facts recorded by the trial court as well as the first appellate court, namely the appellant has always been ready and willing to perform his part of the contract."
(Emphasis supplied)
In my opinion, the aforesaid precedent has been cited out of context. The finding of the Hon'ble Apex Court in the factual scenario of that case, was to the effect that the plaintiff was ready and willing to perform their part of the contract and deposited also the remaining part of the purchase amount in Court. But in this case, it is obvious that the plaintiffs have not shown that after paying the initial advance of Rs.1,00,000/- they were ready with the money to pay the remaining part of the sale consideration.

36. The learned counsel for the defendants would convincingly argue that there is no semblance of evidence to highlight that the plaintiffs ever had the financial ability to purchase the suit property to pay the remaining part of the sale consideration. Admittedly, the total consideration was quantified at Rs.3,48,000/- and out of that only, a sum of Rs.1,00,000/- was paid as advance and the plaintiffs took possession of the suit property for the purpose of carving it into plots and selling them. The plaintiffs have not produced any evidence about their financial ability to purchase the suit property also, despite the defendants challenged that the plaintiffs have not been ready and willing to perform their part of the contract. In order to probablise the case of the plaintiffs, they should have shown some evidence about their financial capacity, but in this case, they have not done so.

37. The precedent of the Hon'ble Apex Court reported in 1995(1) L.W. 716 [K.M.Madhavakrishnan vs. S.R.Swami and another] is to the effect that increase in price of property cannot be a ground for refusing the decree for specific performance. Here, the lack of readiness and willingness on the part of the plaintiffs is writ large and not the escalation which caused obstacle in getting the sale deed executed in their favour.

38. The dictum in the case reported in AIR 1997 SC 463 [Pandurang Ganpat Tanawade vs. Ganpat Bhairu Kadam and others] is relating to one where the Hon'ble Apex Court held that the plaintiffs not only pleaded that they were ready and willing to perform their part of the contract, but they also proved it. But here, absolutely there is no modicum or shred of evidence adduced by the plaintiffs in support of their alleged readiness and willingness to perform their part of the contract.

39. The judgment of the Humble Apex Court reported in AIR 1996 SC 2510 [Sukhbir Singh and others vs. Brij Pal Singh and others] is relating to a set of facts where the plaintiff in a suit for specific performance proved that he had necessary funds to pay the consideration. An excerpt from it would run thus:
"5. Law is not in doubt and it is not a condition that the respondents should have ready cash with them. The fact that they attended the Sub-Registrar's Office to have the sale deed executed and waited for the petitioners to attend the office of the Sub-Registar is a positive fact to prove that they had necessary funds to pass on consideration and had with them the needed money with them for payment at the time of Registration. It is sufficient for the respondents to establish that they had the capacity to pay the sale consideration. It is not necessary that they should always carry the money with them from the date of the suit till date of the decree. It would, therefore, be clear that the courts below have appropriately exercised their discretion for granting the relief of specific performance to the respondents on sound principles of law."
In this case, as discussed by me supra, such evidence is missing and lacking, absent and non-available.

40. The learned counsel for the plaintiffs slobbering over the plea of the plaintiffs would put forth his argument that if specific performance is ordered, the defendants would not be prejudiced in any manner and in support of such a proposition, he cited the decision of the Hon'ble Apex Court reported in AIR 1973 SC 559 [Dr.Jiwan Lal and others vs. Brij Mohan Mehra and another]. There can be no quarrel over such a proposition, but here the defendants clearly pointed out that by virtue of the plaintiffs inaction, the former suffered loss and in support of the same, they also marked documents and adduced evidence and examined D.W.3 also on their side.

41. The decision of this Court reported in AIR 1990 Madras 361 [Annapoorani Ammal (died) and others vs. Ramaswamy Naicker and others] is on the point that the defendants cannot fix a date for performance unilaterally immediately after the time was extended for performance. Here, the facts and figure discussed supra would clearly convey and expatiate, connote and denote, that despite the defendants having given two notices as revealed by Exs.A2 to A5, there was inaction on the part of the plaintiffs in performing their part of the contract. Simply because time is not the essence of contract, it does not mean that the proposed purchaser can take time ad infinitum and he cannot protract by citing one reason or other ad nauseam. A priori approach would not lead the Court to correct conclusion, but it is the A posteriori approach alone would enable the Court to render even handed justice. The trial Court's judgment is far from being labelled as an eminently reasoned judgment as without considering any of the points discussed in this judgment, simply tried to pindown and mulct the defendants in view of one stray sentence in the written statement as set out supra.

42. The decision of this Court reported in 1995 (2) L.W. 50 [Vairavan vs. K.S.Vidyanandam and 3 others] is on the point that time was not the essence of contract; bank balance or cash balance need not be proved; and mere delay in coming to the Court is not fatal to the case of the plaintiffs who seek specific performance.

43. A cumulative reading of the decision of this Court and the precedents and dicta of the Hon'ble Apex Court, cited on the side of the plaintiffs would clearly highlight and spot light the legal proposition to the effect that simply because three years' limitation period is contemplated to file the suit for specific performance, the plaintiffs being the proposed purchasers cannot remain inactive without performing anything towards their part of the contract. But here, certain duties were cast upon the plaintiffs and among such duties, one was that they should develop the land by carving it into plots. But in that regard, admittedly there is no evidence in this case.

44. A bare perusal of the list of documents appended to the judgment of the trial Court would make the point amply clear that the plaintiffs were grossly at fault and in such a case, to say the least, the judgment of the lower Court in ordering specific performance is far from being assessed as a discernible judgment.

45. The decision of this Court reported in 1991 TNLJ 132 [R.Ganesan vs. B.Dinakar Rao and others] is once again on the point that time is not the essence of contract and there is no quarrel over such a proposition. But here, the facts discussed supra are entirely different and no more elaboration in this regard is required.

46. I would like to suo motu cite the following Five Bench decision of the Hon'ble Apex Court reported in 1993(1)SC 519 [Chand Rani (Smt) (Dead) By LRs. v. Kamal Rani (Smt) (dead) By LRs.]. An excerpt from it would run thus:
"25. From an analysis of the above case-law it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract the Court may infer that it is to be performed in a reasonable time if the conditions are :
1. From the express terms of the contract;
2. from the nature of the property; and
3.from the surrounding circumstances, for example: the object of making the contract.

27. Then comes the question as to the payment of Rs.98,000. The question is as to what is the meaning of the words "within a period of 10 days only"? Does it apply to the amount or the time-limit of 10 days from August 26, 1971. The trial court was of the view that the word "only" was meant to stress and qualify the amount of Rs.98,000/- and cannot be read to mean as if payment within 10 days was the essence of the contract. On this aspect, the appellate court takes the contrary view and holds that the amount of Rs.98,000 ought to have been paid on or before September 6, 1971. Failure to do so would constitute a breach committed by the defendant. We are of the considered view that the Division Bench is right in its conclusion. As rightly pointed out in the judgment under appeal, the word "only" has been used twice over
(1) to qualify the amount of Rs.98,000 and
(2) to qualify the period of 10 days.

28. Therefore, having qualified the amount there was no further need to qualify the same unless it be the intention of the parties to make time as the essence of the contract.

29. The analysis of evidence would also point out that the plaintiff was not willing to pay this amount unless vacant delivery of possession of one room on the ground floor was given. In cross-examination it was deposed that since income tax clearance certificate had not been obtained the sum of Rs.98,000 was not paid. Unless the property was redeemed the payment would not be made. If this was the attitude it is clear that the plaintiff was insisting upon delivery of possession as a condition precedent for making this payment. The income tax certificate was necessary only for completion of sale. We are unable to see how these obligations on the part of the defendant could be insisted upon for payment of Rs.98,000. Therefore, we conclude that though as a general proposition of law time is not the essence of the contract in the case of a sale of immovable property yet the parties intended to make time as the essence under clause (1) of the suit agreement. From this point of view, we are unable to see how the case in Nathulal could have any application to the facts of this case.

30. The next question is whether the plaintiff was ready and willing? The notices which were exchanged between the parties have to be looked into in determining readiness and willingness. On September 10, 1971 the plaintiff would say through the registered notice that ready money was available for purchase of the property which was followed up by a telegram. The stand is taken by the defendant that within 10 days from August 26, 1971, the sum of Rs.98,000 was not paid; hence, the sum of Rs.30,000 stood forfeited. The redemption of the mortgage would be done and the income tax clearance also would be obtained after the purchase of stamp paper. Where, therefore, the plaintiff was put on notice as to the stand of the defendant with regard to payment of Rs.98,000 which again was reiterated in the notice dated September 16, 1973, nothing would have been easier for the plaintiff than to pay the said sum. Instead of adopting that course what is stated in the notice dated September 24, 1971 by the plaintiff is as follows:

"5. That as per agreement, your clientess has to pay all taxes, rates, municipal taxes up to the date of registration and that the previous and other documents pertaining to the said plot No.30, Block 'K', sanctioned plan and completion certificates from Municipal Corporation of Delhi in respect of the superstructure built on the said plot shall be handed over along with the vacant possession of first floor by September 30, 1971.
You know that September 30, 1971 is fast approaching and your clientess is still to comply with these requirements besides mentioned in para Nos.2 and 3 of the agreement.

I, therefore, call upon you to advise your clientess to comply with the requirements well before September 30, 1971 or latest by September 30, 1971 and obtain the further part consideration of Rs.98,000 from the my clientess."

31. Therefore, even as late as September 24, 1971 the plaintiff was never willing to make the payment of Rs.98,000. In this connection, we have already seen the oral evidence. It shows there was no readiness and willingness. We are in agreement with the conclusion of the Division Bench."

47. A bare perusal of those decisions would clearly highlight that there is no hard and fast rule that there cannot be a view that time can never be the essence of contract relating to immovable property, but it all depends upon each and every contract and the intention of the parties as found spelt out and portrayed therein and in the meantime, the cited decision of the Hon'ble Apex Court would clearly indicate and exemplify that the proposed purchaser without expressing any readiness and willingness to purchase the suit property, cannot simply rely on the abstract proposition that time was not the essence of contract relating to immovable property and approach the Court at the fag end of the limitation period by filing a suit for specific performance. Here, the conduct of the plaintiffs in filing the suit for specific performance on the verge of limitation and that too, after remaining dormant and tweedling their thumbs and allowing grass to grow under their feet totally for a period of almost four years from Ex.A1, would speak volumes that they are not entitled to the discretional relief of specific performance. This is a peculiar case in which the defendants did not simply act in draconian manner by sticking on to the stipulation in Ex.A1 that the plaintiffs were entitled to one year period as the time for performance, but taken a legalistic and justifiable view of the matter after issuing Exs.A2 and A3. But on the other hand, once again the plaintiffs issued Ex.A5 the legal notice heaving their heart to their mouth that they were willing for executing the sale deed within the extended period of six months. But even then, the plaintiffs have not chosen to respond and made use of the opportunity. An excerpt from Ex.A6 deserves to be extracted here under for ready reference.




Vernacular (Tamil) Portion Deleted





48. It is the duty of the Court to see the mind of the litigant through the exchange of notices which emerged anterior to the filing of the suit. From the above extract, the Court can pellucidly visualize that the defendants were earnest and sincere, fervent and desirous of getting the agreement to sell performed, but on the other hand, the response from the plaintiffs was to say the least most discouraging, capable of cutting at the very root of Ex.A1, the agreement to sell itself as discussed supra. Hence, both the points are decided in favour of the defendants as against the plaintiffs.

49. In view of the ratiocination adhered to in deciding the aforesaid points, the appeal is allowed; the judgment and decree of the trial Court are set aside and the original suit is dismissed. However, there is no order as to costs.





gms

To

The Subordinate Judge,
Udumalpet





[ PRV / 15855 ]


 
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