G. Rajasuria, J.@mdashThis appeal is focussed at the instance of the defendant as against the judgment and decree dated 31.07.2006 passed by the learned II Additional Judge, City Civil Court, Chennai in O.S. No. 5300 of 2005, which was filed by the plaintiff seeking specific performance of an agreement to sell. The parties, for convenience sake, are referred to here under according to their litigative status and ranking before the trial Court.
2. A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of this appeal would run thus:
a] The respondent/plaintiff herein filed the suit seeking the following reliefs:
- to direct the defendant to specifically perform the agreement of sale dated 26.10.1993 entered between the plaintiff and the defendant in respect of the suit property, by receiving the balance sale consideration from the plaintiff and direct the defendant to execute the sale deed in favour of the plaintiff or his nominee and to do all acts necessary to complete the sale and in case of his failure to execute the sale deed this court may execute the sale deed in favour of the plaintiff.
- for a permanent injunction against the defendant or his men or agents from alienating the suit properties to any third parties.
- for costs (extracted as such)
on the main ground that Ex. A1 the agreement to sell emerged between the plaintiff and the defendant, whereby the latter agreed to sell in favour of the former, a total extent of 1.37 acres of land in two survey Nos., viz., 40 and 53 and an advance amount of Rs. 50,000/- was paid by the plaintiff to the defendant. The period of performance was 11 months. Subsequently, the defendant made several endorsements on Ex. A1 on the plaintiff making part payments ranging between 19.03.1995 and 11.03.2001. The defendant also made additionally one endorsement clandestinely on 11.03.2001 itself conveying the fact that his brothers had filed a suit for partition covering the suit property as well as other joint family properties and also expressing his inability in this regard to proceed further as per Ex. A1. Thereafter there were exchange of notices between the plaintiff and the defendant. Ultimately the plaintiff filed the suit for specific performance seeking the aforesaid reliefs.
b] Challenging and impugning the averments/allegations in the plaint, the defendant filed the written statement, the pith and marrow of it would run thus:
- The suit was barred by limitation.
- The prayer for partial specific performance of the agreement to sell was not tenable.
- The plaint itself was not properly framed and filed and there is prevarication between the original plaint and the clean copy of the plaint.
- There were laches on the part of the plaintiff in seeking specific performance, which connote and denote that the plaintiff was not ready and willing to perform his part of the contract.
Accordingly, the defendant prayed for the dismissal of the suit.
c] The trial court framed the relevant issues.
d] During trial, the plaintiff, examined himself as P.W. 1 and marked Exs. A1 to A9. The defendant, examined himself as DW 1 along with D.W. 2 and marked Exs. B1 to B13.
e] Ultimately, the trial court decreed the suit granting specific performance.
3. Being aggrieved by and dissatisfied with the judgment and decree of the trial court, the defendant has preferred this appeal on various grounds.
4. The learned senior counsel for the appellant/defendant placing reliance on the grounds of appeal, would put forth and set forth her arguments, which could pithily and precisely be set out thus:
(i) A mere comparison of the original plaint with the clean copy of it would display and demonstrate that the original suit was for getting specific performance of the agreement to sell relating to an extent of 58 cents only in Survey No. 53, even though Ex. A1 did not refer to any two separate extents. Unilaterally the plaintiff did choose to seek specific performance of a part of the agreement to sell Ex. A1, which is not tenable under law.
(ii) The plaintiff even after knowing that the defendant made endorsement on 11.03.2001 on the back of the third sheet of Ex. A1 to the effect that in view of the suit in C.S. No. 545 of 1994 filed by his brother covering the suit property along with the other properties for partition, he could not do anything in the matter, the plaintiff kept quite for more than three years and mere exchange of notices would not in any way enure to the benefit of the plaintiff to plead that the suit was within the limitation period.
(iii) The decree is not in consonance with the judgment of the trial court; without getting the decree corrected unilaterally the plaintiff did choose to proportionately calculate the sale amount in commensurate with the share of the defendant and deposit it, which is not permissible under law and it is also indicative of the fact that the plaintiff was not ready and willing to perform his part of the contract, not only before the filing of the suit, but also even after passing of the decree.
(iv) The plaintiff was not justified in suo motu pick and choose only one item measuring an extent of 58 cents in Survey No. 53 for getting specific performance leaving the rest on the alleged ground that there was encroachment in Survey No. 40 measuring an extent of 79 cents. In fact, in the agreement to sell, the property concerned was not specified as two separate items measuring an extent of 79 cents and 58 cents respectively.
(v) Even after knowing that the brother of the defendant initiated the suit for partition covering the suit property along with the other properties, the plaintiff had not chosen to file the suit to the extent of the share that would be allotted to the defendant in the partition suit.
(vi) The trial court without citing any valid reason simply decreed the suit for specific performance.
(vii) Even though the defendant filed objection to the memo filed by the plaintiff for calculating proportionately the sale price after the decree there is nothing to show that the trial court passed any order enabling the plaintiff to pay only the proportionate value of the share of the defendant, which was allotted in the partition decree in O.S. No. 2074 of 1996 [C.S. No. 545 of 1994].
(viii) The plea of the plaintiff that the defendant handed over possession of the suit property in favour of the plaintiff was negatived by the trial court, as against which, no appeal was filed.
(ix) The very fact that the plaintiff did choose to take such false plea would disentitle him from claiming specific performance as per the well settled proposition of law.
Accordingly, she would pray for setting aside the judgment and decree of the trial court and consequently for dismissing the original suit.
6. In a bid to make mincemeat and torpedo the arguments as put forth and set forth on the side of the appellant/defendant, the learned counsel for the respondent/plaintiff would advance his arguments, the pith and marrow of them would run thus:
(a) Repeatedly, the defendant without any reservation whatsoever expressed his consent to keep alive Ex. A1, the agreement to sell and only with that undertaking, he made the aforesaid endorsements till 11.03.2001; however, on the same day, clandestinely, he on the back of the third sheet of Ex. A1 made an endorsement as though the partition suit was pending at the instance of his brother covering the suit property and other properties also and that he could not do anything further in the matter. The defendant in his reply notice as well as in his deposition candidly and categorically admitted that only in the year 2005 he expressed his desire to cancel the agreement to sell; whereupon the plaintiff, in the same year 2005, the suit was filed and in such a case, even by phantasmagorical thoughts, it cannot be labelled or dubbed as the one barred by limitation.
(b) The catena of decisions u/s 12 (3) of the Specific Relief Act would highlight and spotlight the fact that a prospective purchaser can seek specific performance of only a part of the property contemplated in the agreement to sell in the event of the proposed seller being unable to perform his part of the contract in respect of the remaining extent of the property.
(c) The law also is clear on the point that even proportionate reduction in the price as agreed to in the agreement to sell could be resorted to in commensurate with the extent left out. Accordingly, the plaintiff after the decree separately calculated the proportionate sale price and deposited the same in the court, which the court accepted. There is no prevarication stands between the original plaint and the clean copy. Of course out of oversight certain corrections were not carried out in the clean copy in commensurate with the original plaint.
Accordingly, he would pray for the dismissal of the appeal.
6. The points for consideration are as under:
1. Whether the trial court was justified in finding that the plaintiff was ready and willing to perform his part of the contract?
2. Whether the trial court was correct in passing the decree, which is not apparently in commensurate with the judgment?
3. Whether the trial court was just in holding that the suit was not barred by limitation, despite the endorsement found on the back of the third sheet of Ex. A1?
4. Whether the trial court, was proper in permitting the plaintiff to deposit only the proportionate sale price relating to the share of the defendant in court, even though the said decree, did not contemplate so?
5. Whether there is any perversity or illegality in the judgment and decree of the trial court?
7. All these points are taken together for discussion as they are inter-linked and inter-woven, inter-connected and entwined with one another.
8. On juxtaposing the original plaint and the clean copy of it, one could axiomatically and glaringly note that the original plaint as on date refers to the schedule of property containing only one Survey No. 53 measuring an extent of 58 cents, and the one other Survey No. 40 and its extent 79 cents, are found struck off. As such, the original plaint would unambiguously and unequivocally highlight and convey the point that the suit itself was one for getting specific performance of the agreement to sell in respect of an extent of 58 cents of lands in Survey No. 53 and not in respect of one other survey number. However, in the clean copy, it is found that both the survey numbers measuring a total extent of 1.37 acres are found referred to as the subject matter of the suit. The trial court proceeded on the footing as though the suit itself was for both the survey numbers, which is totally incorrect.
9. At this juncture, I would like to refer to the relevant portion of the judgment as well as the decree as under:
11. Issue No. 6:
In the foregoing reasons the plaintiff is entitled to the specific performance in respect of the survey No. 53 and 40 to which the defendant has entitled to have share in the property.
In the result, the plaintiff is entitled specific performance in respect of Survey No. 53 and 40 to which the defendant has entitled to have share in that suit properties. The plaintiff is directed to deposit the balance sale consideration within the period of two months and the suit is decreed accordingly with costs.
(emphasis supplied)
Decree:
...this court doth order and decree as follows:
1. that on depositing the entire balance sale amount by the plaintiff in respect of Survey No. 53 and 40 on or before 30.9.2006 and the defendant do convey and execute and register at the costs of the plaintiff a deed of sale conveying the property described in the schedule here under.
2. that the defendant/s do also pay plaintiff/s a sum of Rs. 90875/- (Rupees ninety thousand eight hundred and seventy five only) to wards the costs of this suit taxed and noted below...
(emphasis supplied)
It is quite obvious and axiomatic that the decree is not in commensurate with the judgment.
10. The learned counsel for the plaintiff would try to explain and expound that even though no steps were taken to get the decree amended, he proportionately worked out the share of the defendant, which was allotted in the suit in O.S. No. 2074 of 1996 [C.S. No. 545 of 1994] and accordingly, deposited it in court, which was accepted.
11. I am at a loss to understand as to how the trial court and that too after passing of the decree and without correcting or amending the decree could accept such a memo filed by the plaintiff and permit him to deposit in that manner. No order of the trial court granting such permission also has been produced by the plaintiff justifying his action in depositing only the proportionate sale price concerning the share of the defendant. As such, the very frame of the suit and the method and manner in which the trial court dealt with the matter, to say the least, are far from satisfactory.
12. At this juncture, it is just and necessary to refer to Section 12 (3) of the Specific Relief Act.
12. Specific Performance of part of contract -
(1)...
(2)...
(3) Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed either -
(a) forms a considerable part of the whole, though admitting of compensation in money; or
(b) does not admit of compensation in money;
he is not entitled to obtain a decree for specific performance; but the court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party -(i) in a case falling under clause (a), pays or has paid the agreed consideration for the whole of the contact reduced by the consideration for the part which must be left unperformed and in a case falling under clause (b), [pays or has paid] the consideration for the whole of the contract without any abatement; and (ii) in either case, relinquishes all claims to the performance of the remaining part of the contract and all right to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant.
13. Both sides cited decisions in this regard.
Decisions cited on the side of the appellant/defendant:
(i) 2012 (1) LW 231 (SC) [Shanker Singh vs. Narinder Singh and others]
(ii) 2009 1 CTC 803 (Madras High Court) [K.R. Venugopal vs. K.R. Srinivasan and 4 others]
(iii)
(iv)
(v)
Decisions cited on the side of the respondent/plaintiff:
1. 2005 AIR SCW 5447 = 2006-1-L.W. 614 [S. Brahmanand and others vs. K.R. Muthugopal (D) and others]
2. 2001 AIR SCW 2361 [A. Abdul Rashid Khan (dead) and others vs. P.A.K.A. Shahul Hamid and others]
3.
4. 1993-1-L.W. 599 [P. Alagesan & 5 others vs. A. Mariadas and 6 others]
5. 2005 AIR SCW 5622=2006-1-L.W. 588 [P.C. Varghese vs. Devaki Amma Balambika Devi and others]
6.
7. 1995-2-L.W. 50 [Vairavan vs. K.S. Vidyanandam and 3 others]
8. AIR 2011 SC 113 = 2011-1-L.W. 104 [Kammana Sambamurthy (deceased by L. Rs.) vs. Kalipatnapu Atchutamma (deceased by L.R) and others]
9. (1921) 2 MLJ 129 =
10. AIR 1973 Madras 393 [Subramani vs. Kannappa Reddiar and others]
11. Unreported judgment dated 08.02.2011 passed in S.A. No. 1150 of 1997 [Govindasamy Gounder vs. Annamalai and another]
12.
A mere poring over and perusal of those precedents would unambiguously and unequivocally, clarify and spotlight the fact that several circumstances are contemplated u/s 12 (3) of the Specific Relief Act relating to partial enforcement of the agreement to sell.
14. In the trial court judgment, absolutely, there is no iota or shred, miniscule or scintilla of discussion on this aspect. It is quite obvious and axiomatic that in this case, the plaintiff did choose to give up the survey No. 40 measuring an extent of 79 kuzhis and sought for specific performance of the agreement to sell with regard to Survey No. 53 measuring an extent of 58 cents, which is a smaller extent out of the total extent of 1.37 acres contemplated in Ex. A1. Wherefore, it is clear that the case of the plaintiff is coming under the last category found in Section 12 (3) of the Act, which mandates that the agreement holder like the plaintiff, who is bent upon getting specific performance of even a smaller extent contemplated in the agreement to sell should pay the entire sale consideration for the whole of the extent contemplated in the agreement to sell without any abatement or proportionate reduction and he should also forego his right to claim compensation or damages.
15. It is beyond comprehension as to how the plaintiff can of his own accord, choose to simply pay proportionately the sale price in commensurate with the defendant''s share adjudged in the partition suit O.S. No. 2074 of 1996. As such, throwing to winds, the punctilious of legal procedures the plaintiff suo motu calculated the price and deposited in court and the lower court after passing of the decree appears to have received the deposit of such proportionate amount without any legal backup.
16. The learned senior counsel for the appellant/defendant placing reliance on the decision of the Hon''ble Apex Court reported in
2. The plaintiff thereafter filed an appeal before the first appellate court. Before the first appellate court for the first time it was stated by defendant 1 that he has not title in respect of Plot B land and the same belonged to his wife and she has refused to assign the said land in his favour. Under such circumstances, the plaintiff moved an application for amendment of the plaint to the effect that the plaintiff is ready and willing to purchase Ac. 2 acres of land in Plot A by paying the entire sale consideration of Rs. 17,900 and further he is relinquishing his claim in respect of the land contained in Plot B and that he would not claim any compensation. The said amendment was allowed by the appellate court. The first appellate court having found that Defendant 1 has no title in respect of land comprising in Plot B, and the plaintiff is ready and willing to pay up the whole of the agreed consideration amount, after relinquishing his claim in respect of Plot B land and the compensation, the plaintiff is entitled to a decree for specific performance. In that view of the matter, the appeal was allowed and the suit was decree in respect of land comprised in Plot A measuring two acres of patta land.
10. We are in agreement with the statement of law expressed in the aforesaid decisions. In the present case what we find is that it was for the first time at the appellate stage, the defendant no. 1 stated that he had no title in respect of Plot B Sivaijama land which belonged to his first wife and his wife has refused to assign the said plot of land in his favour. It is on account of the said statement the plaintiff filed an application for amendment of the plaint relinquishing his claim in respect of B plot of land as well as compensation for the loss he sustained for non-performance of part of the contract while agreeing to pay the entire contracted amount. An appeal is a continuation of the suit. When an appellate Court hears an appeal, the whole matter is at large. The appellate Court can go into any question relating to rights of the parties which a trial Court was entitled to dispose of provided the plaintiff possesses that right on the date of filing of the suit. Defendant no. 1 prior to filing of appeal by the plaintiff never informed the plaintiff that his wife has refused to assign B plot of land in his favour and he having no title over the said plot of land is incapable to perform the whole part of the contract. Under such'' circumstances it was open to the plaintiff to move for amendment of the plaint pleading therein the ingredients for part performance of the contract as provided under sub-section (3) of Section 12 of the Act. It is not disputed that the plaintiff had deposited the entire contracted amount in the trial Court. He further relinquished his claim in respect of B plot of land as well as claim for compensation. Under such circumstances the first appellate Court was justified in allowing the amendment of the plaint and thereafter decreeing the suit of the plaintiff. We, therefore, find that view taken by the High Court in holding that the plea taken by the plaintiff at the appellate stage having been not taken at the time of filing of suit, the suit would fail, is erroneous. For the aforesaid reasons appeal deserves to be allowed, would develop her argument to the effect that there should have been amendment of the plaint at the instance of the plaintiff on coming to know of the fact that the defendant was entitled to only a share in the property covered in Ex. A1, but that was not done so. She would further proceed to argue that even at the time of filing the suit itself, the plaintiff should have prayed only for specific performance of the share that would be allotted in favour of the defendant and not in the manner that the plaintiff had filed the suit. The other co-sharers who were not parties to Ex. A1, were not added in this suit. Had they been added, at least they would be in a position also to have their own say; and there would have been the possibility of attracting Section 28 of the Specific Relief Act also.
17. Indubitably and indisputably, unarguably and unassailably, it is quite obvious and axiomatic that even before the filing of the suit, the plaintiff was fully aware of the pendency of the partition suit. In such a case; the plaintiff should have framed the suit in such a manner seeking specific performance of the agreement to sell only in respect of the share of the defendant, which would be allotted to him in the partition suit. But, that was not done so. As such, it is crystal clear that the framing of the suit and the conduct of the plaintiff are all fraught with inconsistencies, which cannot be countenanced and uphold. The learned counsel for the plaintiff would argue unconvincingly that the plaintiff herein would get impleaded in the final decree proceedings in the said partition suit and get his remedy worked out. Such a course is a far fetched one fraught with discomfitures and imponderables.
18. The trial court itself negatived the plea based on Section 53-A of the Specific Relief Act and as against which, no appeal was filed by the plaintiff.
19. My mind is reminiscent and redolent of the recent decision of the Hon''ble Apex Court reported in
24. It is a settled principle of law that before the first appellate court, the party may be able to support the decree but cannot challenge the findings without filing the cross-objections.
Hardly need I observe that if there is any finding as against a party, then it is for the party to file an appeal or cross-appeal as against it, as otherwise as a respondent in the appeal filed by the opposite party he cannot argue against the finding of the trial court as against him.
20. I hark back to the following decisions of the Hon''ble Apex Court:
(i)
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. l lakh was paid and the vendor wrongly refuses to execute the sale deed unless the purchaser is ready to pay Rs. 15 lakhs. In such a case there is a clear breach by the defendant. But in that case, if the plaintiff did not have the balance Rs. 9 lakhs (and the money required for stamp duty and registration) or the capacity to arrange and pay such money, when the contract has to be performed, the plaintiff will not be entitled to specific performance, even if he proves breach by the defendant, as he was not "ready and willing" to perform his obligations.
(ii)
27. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the Court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. "Readiness and willingness" to perform the part of the contract has to be determined/ascertained from the conduct of the parties.
21. A mere running of the eye over those decisions would clearly demonstrate and display that in a suit for specific performance, the plaintiff is expected to approach the court with clean hands and not even a bit of false hood or mendacity should be there. But, in this case, as per the finding of the trial court itself, the plaintiffs plea of he having been put in possession of the suit property by the defendant under Ex. A1 was negatived. It is the case of the defendant that he at no point of time had put the plaintiff in possession of the suit property and in such a case, in view of the untenable and false pleas taken by the plaintiff, he is not entitled to the relief of specific performance, which fact was not at all taken note of by the trial court, warranting interference in this appeal.
In re Limitation:
22. The learned senior counsel for the defendant/appellant would by inviting the attention of this court to the endorsements found on the back of the third sheet on Ex. A1, would develop her argument to the effect that the said endorsement unambiguously and unequivocally highlighted the fact that the defendant could not perform his part of the contract because of circumstances beyond his control as one of his brothers instituted the suit for partition covering the suit property and also other properties and accordingly, if the three years'' period of limitation is calculated, the suit filed on 04.07.2005 should be held to have been barred by limitation as per Article 54 of the Indian Limitation Act.
23. In order to get over this obstacle, the learned counsel for the plaintiff would implore and entreat by pointing out that the said endorsement, which the defendant now relies on for canvassing her point on limitation was made clandestinely and without the knowledge of the plaintiff.
24. The learned senior counsel for the defendant would convincingly and acceptably point out that the aforesaid narration of facts in the plaint would portray and convey that as on the date of making such alleged clandestine endorsement on Ex. A1, the plaintiff was aware of it and therefore, the three years'' limitation period as contemplated under Article 54 of the Indian Limitation Act should have been calculated from that date of such endorsement and consequently, the suit should have been held to be one barred by limitation.
25. At one point of time, the learned counsel for the plaintiff tried his best to convince this court by submitting that the plaintiff came to know of such clandestine endorsement in Ex. A1, only on the defendant issuing the notice dated 28.07.2005 in Ex. B7, during the year 2005, so to say, shortly after the filing of the suit. But, such explanation fails to carry conviction with this court for several reasons.
26. In this regard, it is just and necessary to refer to para No. 5 of the plaint, which is extracted here under for ready reference:
10. The plaintiff submits that on 11.03.2001, the defendant through his son, received a further advance money of Rs. 20,000/-. The plaintiff approached the defendant at latter''s house to get the acknowledgement for the said payment in the sale agreement. The defendant took away the original sale agreement from the custody of the plaintiff for endorsement and all of a sudden the defendant rushed to his room inside and in the absence of the plaintiff and without the knowledge of the plaintiff, the defendant secretly endorsed the back-side of the 3rd page in the said sale agreement as if a partition is pending before the Hon''ble High Court, Madras in C.S. No. 545/94 filed by his brother Mr. A.S.M. Radhakrishnan and put the defendant''s signature below the said endorsement. When the plaintiff questioned his unlawful acts of such endorsement, the defendant requested the plaintiff to wait some more time, so as to enable him to come to an understanding with his brothers and gave assurance for the compliance of the sale agreement.
11. The plaintiff submits that the said partition suit was filed by the defendant''s brother in the year 1994 itself, the defendant with some ill motive suppressed the said fact to the plaintiff and kept the plaintiff in dark through out the agreement period.
(emphasis supplied)
27. In the plaint itself, there is nothing to indicate that he came to know about that alleged clandestine endorsement in Ex. A1, which had all along been in his custody. It is to be indicated and spotlighted here that in Ex. A1, at the back of the second sheet, the last endorsement bespeaks that it was made on 11.03.2001. There are also certain corrections therein, which both sides could not explain and expound. However, that endorsement would convey the idea that a sum of Rs. 20,000/- was paid on 11.03.2001 by the plaintiff to the defendant; whereupon the latter made such endorsement. It is the specific contention of the plaintiff that on the same day of such last endorsement on 11.03.2001, the alleged clandestine endorsement at the back of the third page of Ex. A1 was made by the defendant. If that be so, the plaint averments would not be to the effect that on the same day itself, the plaintiff came to know of it and he questioned the defendant as to why he should make such clandestine endorsement. I am at a loss to understand as to how the plaintiff could contend that he came to know of such alleged clandestine endorsement only during the year 2005 and that too after receipt of the reply notice dated 02.12.2002 in Ex. A3 from the defendant in response to the plaintiffs notice dated 10.10.2002 & 25.11.2002 (Ex. A2) when indubitably and incontrovertibly he had been in possession of Ex. A3 till the filing of the suit.
28. It is therefore pellucidly and palpably clear that even as early as on 11.03.2001, the defendant expressed his inability to perform his part of the contract to the defendant and from that date so to say, 11.03.2001, the limitation period should be calculated and if it is calculated so, it is quite obvious that the suit filed on 04.07.2005 was beyond the three years'' limitation period in view of Article 54 of the Indian Limitation Act. Wherefore, I hold that the trial court failed to take note of the same.
29. The learned counsel for the plaintiff would try to convince this court unsuccessfully by pointing out that the defendant made the plaintiff to believe that at any rate, the defendant would execute the sale deed in favour of the plaintiff by making not one or two endorsements, But making as many as 11 endorsements ranging between 19.03.1995 to 11.03.2001 and in such a case, the defendant should not be allowed to simply wriggle out of his liability to execute the sale deed at least to the extent of his share, which was allotted to him in the partition suit.
30. At this juncture, I hark back to the following decisions:
(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
(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 u/s 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 u/s 20 of the Specific Relief Act should not have been exercised and, instead, monetary compensation could be granted.
(Emphasis supplied)
(iii)
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)
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 = 2008-4-L.W. 781 [Periyaya v. M. Rajagopal and another]
"18. In
"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. A2 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=2007-3-L.W. 554 [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
"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)
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)
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)
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.
A mere running of the eye over those precedents would exemplify and demonstrate that the plaintiff should always be ready and willing to perform his part of the contract and he should not show any hesitation in getting the sale deed executed in his favour.
31. Accordingly, if viewed, the core question arises as to what compelled or propelled or galvanized or necessitated the plaintiff to keep quite for almost 12 long years to get the agreement to sell enforced in his favour. The very fact that the plaintiff took nearly 12 years to file the suit after getting endorsement after endorsement from the defendant bespeaks and betokens that the plaintiff was not ready and willing to perform his part of the contract and these aspects have not been taken note of by the trial court at all.
32. The precedents referred to supra would unambiguously and unequivocally indicate and connote that the agreement holder should with all due diligence approach the court within the shortest possible time, so to say, even without availing the full limitation period contemplated under Article 54 of the Indian Limitation Act. The agreement holder cannot be heard to contend that inasmuch as he had three years'' limitation period to file the suit, he waited till the last date of limitation to file the suit.
33. As such, considering the pro et contra, I am of the considered view that the conduct of the plaintiff in approaching the court for specific performance was far from satisfactory. While holding so, this court cannot but observe that the defendant also succumbed to the request of the plaintiff time and again and he was going on making as many as 11 endorsements after receiving part payments, which the defendant could have avoided by expressing his inability even long prior to 11.03.2001.
34. In a suit for specific performance the conduct of the plaintiff should be seen and the plaintiff cannot try to achieve success in the litigation process by raising his accusative finger as against the defendant.
35. My discussion supra would convey and indicate that the conduct of the plaintiff in taking 12 years'' time to approach the court for specific performance and that too with lot of mistakes and inconsistencies as set out supra, is far from satisfactory.
36. The trial court ignoring all these aspects simply in its cryptic judgment ordered specific performance.
37. A mere poring over and perusal of the judgment of the trial court would proclaim and convey that the trial court after narrating the facts in extenso, simply without assigning any reason whatsoever held as though the plaintiff was entitled to specific performance. In fact, the judgment of the trial court runs to as many as 24 pages and in that one could see barely the narration of facts as well as the citations referred to by the parties. The ratiocination adhered to by the trial court cannot be seen at all in the judgment; scarcely could I find therein any reason much less valid reason for granting specific performance.
38. At the last para in deciding issue no. 2, the learned judge stated thus and it is extracted here under for ready reference:
...Even though there is clause for the compensation in the breach, the parties have specifically agreed to specific performance of the contract in the agreement itself. Therefore the contention of the learned counsel for the defendant that the plaintiff is not entitled to relief of the specific performance, but only entitled to claim compensation cannot be tenable in view of the specific clause in the agreement itself. Further the counsel for the defendant contended after the issuance of the notice and exchange of notice the plaintiff kept silent till 4.7.2005. This itself indicates that the plaintiff is not ready and willing to perform his part of the contract. As already discussed in Issue No. 2 in supra there were negotiations between parties even after exchange of letters. Therefore this contention of the defendant also not tenable. The issue is answered accordingly.
To say the least, no head or tail could be made out of it.
39. I do not know, how the trial court could simply in the concluding para state that the plaintiff was not ready and willing to perform his part of the contract and even then, decree the suit for specific performance. He would simply observe that there were negotiations between parties and even exchange of letters, but absolutely, there is no clinching evidence in that regard.
40. The depositions of the parties concerned are mostly their ipse dixit. However, the learned counsel for the plaintiff would try to point out certain favourable points in the deposition of D.W. 1 in favour of the plaintiff, those excerpts from the deposition of DW 1 would run thus:
The aforesaid excerpts would in no way enure to the benefit of the plaintiff, in view of the fact that the plaintiff was expected to approach the court at the earliest point of time seeking specific performance, which he did not do so. Hence, in view of the laches on the part of the plaintiff, he is not entitled to specific performance.
41. The plaintiff also cannot of his own accord simply in the original plaint give up the remaining part of the agreement to sell. As such, the entire process turned out to be a big mess having no clarity at all, even then, the trial court blindly decreed the suit, warranting interference in appeal.
42. Accordingly, the aforesaid points are decided in favour of the appellant/defendant and as against the plaintiff/respondent.
43. Point No. 1 is decided to the effect that the trial court was not justified in giving a finding that the plaintiff was ready and willing to perform his part of the contract.
Point No. 2 is decided to the effect that the trial court was not correct in passing the decree, which is not apparently in commensurate with the judgment.
Point No. 3 is decided to the effect that the trial court was not just in holding that the suit was not barred by limitation, despite the endorsement found on the back of the third sheet of Ex. A1.
Point No. 4 is decided to the effect that the trial court was not proper in permitting the plaintiff to deposit only the proportionate sale price relating to the share of the defendant in court, even though the said decree, did not contemplate so.
On balance, the judgment and decree of the trial court are set aside; the original suit is dismissed and the appeal is allowed. However, in the circumstances, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.
