S.A. No. 69 of 2013 and M.P. No. 1 of 2013. Case: Rajendran and Nanjappan Vs S.V. Natarajan, Ponnammal, Prakash and Seeni @ Seenivasan. High Court of Madras (India)
| Case Number | S.A. No. 69 of 2013 and M.P. No. 1 of 2013 |
| Counsel | For Appellant: Mr. R. T. Doraisamy, Adv. |
| Judges | G. Rajasuria, J. |
| Issue | Specific Relief Act 1963 - Sections 10, 16, 16(c), 20 |
| Judgement Date | February 13, 2013 |
| Court | High Court of Madras (India) |
Judgment:
G. Rajasuria, J.
1. This second appeal is focussed by the plaintiffs, inveighing the judgment and decree dated 23.04.2012 passed by the learned Subordinate Judge, Gobichettipalayam in A.S. No. 5 of 2011 confirming the judgment and decree dated 06.01.2011 passed by the learned District Munsif, Gobichettipalayam in O.S. No. 101 of 2008. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court.
2. Heard the learned counsel for the appellant.
3. Niggard and bereft of details, the germane facts absolutely necessary for the disposal of this second appeal would run thus:
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The appellants herein, being the plaintiffs, filed the suit seeking specific performance of an agreement to sell with alternative prayer for refund of the advance amount paid in respect of the suit immovable property. There emerged an agreement to sell between the plaintiffs and the defendants. The total sale consideration agreed was Rs. 36,000/-, out of which, a sum of Rs. 10,000/- was paid as advance by the defendants to the plaintiffs. Three months' time for performance was stipulated therein. However, within the said three months' time nothing transpired. Pre litigation notice was issued by the plaintiffs, on 27.02.2008 and thereafter the suit was filed.
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The suit was resisted by the defendants on the main ground that the plaintiffs were not ready and willing to perform their part of the contract.
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Whereupon issues were framed by the trial court.
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Up went the trial, during which, on the plaintiff's side P.Ws. 1 and 2 were examined and Exs. A1 to A8 were marked. On the defendants' side, D1 examined himself as DW1 and no document was marked.
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Ultimately, the trial court dismissed the suit on the main ground that the plaintiffs were not ready and willing to perform their part of the contract, however in the alternative directed the defendants to repay the advance amount of Rs. 10,000/- with interest at the rate of 12% from the date of the agreement to sell till realisation, to the plaintiffs.
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Being aggrieved by and dissatisfied with the same, the plaintiffs preferred appeal for nothing but to be dismissed by the first appellate court confirming the judgment and decree passed by the trial court.
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Challenging and impugning the judgments and decrees of both the fora below, the plaintiffs have preferred this second appeal by suggesting the following substantial questions of law:
a] Whether the courts below are correct in dismissing the suit holding that the plaintiffs have not deposited the balance sale consideration on the date of filing the suit, hence they are not entitled to the relief without following the provisions under Section 16(c) of the Specific Relief Act?
b] Whether the courts below are correct in holding that the plaintiffs are lethargic and not ready and willing to perform their part of the contract just because they are not depositing the balance amount on the date of filing the suit?
c] Whether the courts below, after having found that the defendants admitted the execution of sale agreement, receipt of advance amount and not cancelling the agreement on the expiry of 3 months period, are correct in dismissing the suit?
(extracted as such)
4. The learned counsel for the appellants/plaintiffs would pyramid his argument, which could succinctly and precisely be set out thus:
(i) Time is not the essence of the contract relating to immovable property. When such is the legal position, both the courts below unnecessarily stuck on to the theory as though within the three months' time, there was no payment of the remaining part of the sale consideration etc., by the plaintiffs.
(ii) There is also nothing to indicate that the defendants took any steps to rescind the contract on the alleged ground that the plaintiffs were not ready and willing to perform their part of the contract.
(iii) The plaintiffs' also to show their bona fides as per Section 16(c) of the Specific Relief Act, deposited the entire remaining sale consideration in court at the institution of the suit itself and this fact also was not taken note of by both the courts below.
As such, both the courts below committed serious error in applying the law in the factual matrix of this case, warranting interference in the second appeal.
5. At the outset itself, I would like to fumigate my mind with the following decisions of the Hon'ble Apex Court:
(i) 2010(10) SCC 512 [Man Kaur (Dead) By L.Rs. v. Hartar Singh Sangha]; certain excerpts from it would run thus:
40. This contention has no merit. There are two distinct issues. The first issue is the breach by the defendant vendor which gives a cause of action to the plaintiff to file a suit for specific performance. The second issue relates to the personal bar to enforcement of a specific performance by persons enumerated in Section 16 of the Act. A person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him (other than the terms the performance of which has been prevented or waived by the defendant) is barred from claiming specific performance. Therefore, even assuming that the defendant had committed breach, if the plaintiff fails to aver in the plaint or prove that he was always ready and willing to perform the essential terms of contract which are required to be performed by him (other than the terms the performance of which has been prevented or waived by the plaintiff), there is a bar to specific performance in his favour. Therefore, the assumption of the respondent that readiness and willingness on the part of the plaintiff is something which need not be proved, if the plaintiff is able to establish that the defendant refused to execute the sale deed and thereby committed breach, is not correct. Let us give an example. Take a case where there is a contract for sale for a consideration of Rs. 10 lakhs and earnest money of Rs. 1 lakh was paid and the vendor wrongly...
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