In A.S.No.1071 of 2019-MAD HC- Readiness and willingness of plaintiff in purchasing property within agreed time limit should be proved to get relief of specific performance: Madras HC
Justice R.N.Manjula [17-08-2022]

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Read Order: C.JAYANTHI V. M.SARAVANAN 

Mansimran Kaur

Chennai, August 18, 2022: The Madras High Court has held that the rule of equity has to be applied equally to both the parties based on their respective conduct.

The Bench of Justice R.N.Manjula partly allowed the Appeal which  was preferred by the defendant/ appellant assailing the judgment and decree passed by the District Judge. The Single Judge Bench was of the view that the present case was  fit case wherein  the Trial Judge ought to have granted  the plaintiff the alternate relief of refund of the advance money.

Facts relevant for the adjudication of the present appeal were that the defendant, her husband and her father-in-law Mr.N.S Subramanian were the tenants and the defendant purchased the suit property under a registered sale deed with the money arranged by her father in-law.The defendant was in possession of the vacant site from the date of purchase. Since the defendant’s father-in-law incurred various debts, he issued two post dated cheques to third parties including one Mr.S.Shankara Vadevelu (Ex-counsellor), for a sum of Rs 6,50,000 each.

 Since the cheques were dishonoured, the defendant’s father-in-law was forced to face criminal action. In order to escape from the pressure, the defendant and her husband offered to sell the suit property to the plaintiff for a sum of Rs.15,00,000 and a sale agreement was entered into between the plaintiff and the defendant. As per the sale agreement, the sale price was fixed at Rs.15 lakhs. 

 The plaintiff paid Rs.14, 00,000 on the date of the sale agreement and that was also acknowledged by the defendant in the agreement itself. The plaintiff agreed to pay the balance sale consideration of Rs 1 lakh within a period of one year.  Whenever the plaintiff insisted on the defendant, she said that the original title deeds were in the bank locker and the key was in the custody of her husband, who was in the States. As the defendant did not perform her part of the contract, the plaintiff had come forward with the suit for specific performance. The Trial Judge decreed the suit as prayed for and aggrieved by the same, the defendant had preferred this Appeal.

After hearing the submissions of the parties, the Court noted that the two issues primarily that came up for consideration were whether the plaintiff was ready and willing to perform his part of contract and whether the decree for specific performance passed by the trial Judge was fair, proper and legal. 

To deal with the aforesaid issues, the Court noted that the fact that the suit property was the property that belonged to the defendant couldnot be gainsaid. The plaintiff claimed that on July 3, 2007 the defendant had entered a sale agreement with him in order to sell the suit property for a sum of Rs.15,00,000 and also received the advance amount of Rs.14,00,000.

It was further noted by the Court that relief of specific performance is an equitable remedy. Hence, the plaintiff had a duty to prove that he was all along ready and willing to perform his part of the contract even within the one year time and only because of the lapse on the part of the defendant, the contract could not be completed. 

In order to substantiate the readiness and willingness on the part of the plaintiff, no document or no evidence was produced. The one and only statement of the plaintiff was that he was making oral demands to the defendant and her father-in-law to receive the balance sale consideration and execute the sale deed in his favour. 

He had not chosen to send any legal notice before filing the suit. Having waited for the whole of the year, the plaintiff filed the suit on the expiry of the time limit. The conduct of the plaintiff would not show that he was always ready and willing to perform the contract. Thus the first issue was answered accordingly. 

It was further note by the Court that even though the sale agreement was proved to be true and a major part of the sale consideration as stated in the sale agreement  was  also proved to have been received by the defendant and the capability of the plaintiff to pay the balance also was not denied,  still the  plaintiff had failed to prove his willingness. 

However, at the same time, the Court also noted that the same will not preclude the plaintiff from getting the alternate remedy of refund of advance money paid by him. It was a fit case where the Trial Judge ought to have granted him the alternate relief of refund of the advance money. “Though time is not the essence of the contract, the readiness and willingness of the plaintiff in purchasing the property within the agreed time limit should be proved to get the relief of specific performance”, the Bench said.

The Trial Judge failed to do that exercise before granting the relief of specific performance. Hence, the judgment and decree of the trial Court was liable to be modified, the Court further remarked.  The second issue was answered accordingly.  In light of the above stated observations, the appeal was partly allowed. 

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