IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.7.2008 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN A.S.No.795 of 1998 J.Srinivasan .. Appellant/plaintiff -vs- J.Parvathi .. Respondent/defendant This appeal is filed under Order 41 R 1 read with Sec 96 CPC against the Judgment and decree of the learned VII Additional Judge, City Civil Court, Madras dated 19.3.1997 made in O.S.No.12071 of 1996. For appellant : : Mr.R.Mohan, Advocate For respondent : : Mr.P.Narayanamoorthi,Advocate JUDGMENT This appeal has been directed against the decree and Judgment in O.S.No.12071 of 1996 on the file VII Additional Judge, City Civil Court, Chennai. The unsuccessful plaintiff before the trial Court is the appellant herein. 2. The averments in the plaint sans irrelevant particulars are as follows: The defendant is the owner of the property situate at No.40(Old Door No.34).T.S.V.Koil Street, Mylapore, Chennai-4 which is the plaint schedule property. The defendant has agreed to sell the plaint schedule property to the plaintiff for a sum of Rs.3,80,000/-. An agreement of sale was entered into between the plaintiff and the defendant on 28.11.1991. On the date of the agreement, the plaintiff had paid a sum of Rs.1,50,000/- towards advance and subsequently, paid Rs.48,000/- on various dates ie., on 10.2.1992,27.2.1992, 21.3.1992, 23.5.1992, 15.6.1992 etc ., As per the terms and conditions of the agreement of sale, the entire sale consideration should be paid on or before 30th April 1992 subject to the production of Income Tax Clearance Certificate by the defendant besides delivery of vacant possession of the first floor of the property within 15 days from the date of agreement. Even after subsequent part payment towards sale consideration, the defendant has not vacated and handed over the possession of the first floor of the premises as part performance of the agreement of sale. Further he has also failed to furnish income tax clearance certificate to enable the plaintiff to complete the sale transaction. From out of the advance of sale https://hcservices.ecourts.gov.in/hcservices/ consideration paid by the plaintiff to the defendant, the defendant had settled the amounts due to her sister in perfecting her title to the property. Towards part of sale consideration, the plaintiff has paid a sum of Rs.1,98,000/- to the defendant. As per terms of the agreement within fifteen days, the defendant has not vacated and delivered vacant possession of the first floor of the plaint schedule property but she has let out the same to the tenants and has appropriated the rental income. The plaintiff was always ready and willing to perform his part of the contract,as per the terms of the sale agreement. Several demands made by the plaintiff to the defendant to perform her part of the contract as per terms of the sale agreement dated 28.11.1991, fell into deaf ears of the defendant. Finally, the plaintiff has issued a lawyer's notice on 7.3.1994 calling upon the defendant to perform her part of the contract as per the terms of the sale agreement dated 28.11.1991. In the reply notice , the defendant had admitted the receipt of the advance made by the plaintiff except a sum of Rs.4,000/-, there was no valid explanation was given by the defendant for her non performance of the agreement. Subsequent to the reply notice, the plaintiff has sent a draft copy of the sale deed to enable the defendant to apply for income tax clearance certificate dated 25.5.1994. Inspite of such compliance on the part of the plaintiff, the defendant has not come forward to fulfill her obligation in executing and registering the sale deed by delivery of vacant possession of the property. The defendant is now trying to alienate and encumbrance the property to the third parties. Hence the plaintiff has filed the suit for specific performance of contract between the plaintiff and the defendant in terms of the agreement of sale dated 28.11.1991 and also for permanent injunction restraining the defendant and her men from selling, encumbering or letting out or leasing the property to any person till the sale deed is executed and registered and vacant possession of the property is delivered. 3. The defendant in her written statement would contend that the sale deed between the plaintiff and the defendant in respect of the plaint schedule property was executed and that on the date of the agreement itself, a sum of Rs.1,50,000/- was paid towards advance but the plaintiff has subsequently not paid a sum of Rs.48,000/-. On 10.2.1992. The plaintiff has paid a sum of Rs.10,000/-; on 27.2.1992, a sum of Rs.13,000/-; on 27.2.1992, a sum of Rs.7,000/-; on 21.3.1992, a sum of Rs.9,000/- and on 15.6.1992, the plaintiff has paid Rs.5000/-. Thus, the plaintiff has paid only a sum of Rs.1,94,000/- towards part of sale consideration under the sale agreement dated 28.11.1991. As per the terms of the said sale agreement, the time stipulated for registration of the sale deed was 30th April 1992. The plaintiff did not keep up the time schedule and failed to perform his part of the contract. The plaintiff was not possessed sufficient funds till the expiry of the time fixed for the completion of the sale ie., 30.4.1992. Upto 30.4.1992, the plaintiff had paid only a sum of Rs.30,000/- in three instalments. Handing over the possession of the first floor of the suit property to the plaintiff and the production of income tax clearance certificate have been cited as excuse for the plaintiff's failure to perform his part of the contract. The defendant did not evade the delivery of vacant https://hcservices.ecourts.gov.in/hcservices/ possession which will be evident from the fact that he kept the first floor of one building vacant for 11 months requesting the plaintiff to take possession. As he did not come forward to take possession even after 11 months, the defendant was constrained to doubt bonafides of the plaintiff. The defendant had to preserve the property by keeping the same fit for occupation and use, the defendant has spent Rs.27,000/- for preservation. Therefore, after waiting for 11 months, the defendant moved to the first floor and occupied the same and leased out the ground floor on 14.9.1992 to one Krishnakumar. When the said Krishnakumar vacated after five months, the defendant again offered possession but even then he did not come forward to take possession and therefore, on 1.6.1993, the defendant leased out the property to one C.Krishnamurthy. The reasons stated by the plaintiff for not occupying the first floor was that he had some old furniture and heavy granite household articles which he could not carry to the upstairs and that he would take possession after disposing of the unwanted articles. Thus the defendant was not at fault and only the plaintiff failed to take possession. The averment that the defendant has failed to furnish income tax clearance certificate is also not true. The plaintiff had taken from the defendant all the relevant documents including the encumbrance certificate for getting the opinion of his lawyer and to instruct him to draft the sale deed, which he promised to furnish the defendant for obtaining the income tax clearance certificate. But the plaintiff did not want to obtain the clearance certificate until he was able to raise funds for paying the balance of sale consideration since the sale transaction was to be completed within the financial year during which the certificate was issued. This fact was explained in the defendant's reply notice dated 7.4.1994 which the plaintiff has not denied. The payment of balance of sale consideration is false and he has made a false statement that he had paid Rs.4,000/- in excess of what he had actually paid. This has been pointed out in the reply notice sent by the defendant . There is no proper explanation offered by the plaintiff in his rejoinder notice. The defendant was always ready and willing to perform her part of the contract. The very purpose of selling the property at that time was to raise funds for performing the marriage of the defendant's daughter . Because of the plaintiff's failure to keep up his promise to conclude the sale before 30.4.1992, the marriage of the defendant's daughter did not materialise and she remains unmarried even till this date. When the defendant was in such a hurry to conclude the sale for getting the required money, there was no reason for her to postpone the sale. The defendant would have got the money's worth if she had got the money in April 1992, which as on date has gone down considerably. The plaintiff ought to have paid the entire amount before 30.4.1992 and he delayed it nearly for three years. In the mean time, the value of the property has been doubled and the value money has been reduced less than half of its value. Hence the suit is liable to be dismissed. 4. Before the trial Court, the learned trial Judge has framed four issues for trial before the trial Court. The plaintiff was examined himself as P.W1 and defendant's husband has deposed on behalf of the defendant as D.W.1 besides examining one Chandramouli https://hcservices.ecourts.gov.in/hcservices/ as D.W.2. On the side of the plaintiff, Exs A1 to A5 were marked and on the side of the defendant Exs B1 and B2 were marked. After going through the evidence both oral and documentary, the learned trial Judge after arriving at a conclusion that the plaintiff is not entitled to the relief asked for in the plaint, has dismissed the suit . Aggrieved by the findings of the learned trial Judge, the plaintiff has preferred this appeal. 5. The following points arose for determination in this appeal a) Whether the parties to the sale agreement dated 28.11.1991 have treated the time as the essence of contract? b) Whether the Judgment and decree of the learned Trial Judge in O.S.No.12071 of 1996 on the file of VII Additional Judge, City Civil Court, Chennai is liable to be set aside for the reasons stated in the memorandum of appeal? 6. Point No.1 : The learned trial Judge relying on a ratio( could not decipherable) has observed that under Section 16(c) of the Specific Relief Act 1963 even the agreement of sale was entered into between the parties specifically agreeing that the same was entered into in order to cause money to celebrate the vendor's daughter's marriage and if the vendee fails to pay the balance of sale consideration within the time stipulated under the sale agreement, then it is to be construed that the time is essence of contract and that the purchaser is not entitled to a decree for Specific Performance . But in the case on hand, the sale agreement dated 28.11.1991 ie., Ex A1 , there is no recital as to the effect that the sale agreement was entered into between the plaintiff and the defendant for the purpose of raising funds to conduct the marriage of the vendor's daughter. The recitals in Ex A1 reads that as per the common Judgment dated 10.8.1990 passed by the High Court of Judicature at Madras in T.O.S.No.46 of 1987 and O.P.No.468 of 1988 filed by the husband of the Vendor and the sisters of the Vendor, respectively, the Vendor has become the sole and exclusive owner of the schedule mentioned property pursuant to the compromise memo filed before the High Court by the parties concerned therein, on condition that the vendor herein pays a sum of Rs.60,000/- to each of her sisters viz., Tmt. Lakshmi and Tmt.Padmasani within four months from the said date with a penal clause to pay 24% interest thereon for default of such payment within the stipulated time and it further reads that the vendor has failed to comply the Judgment of the High Court of Judicature at Madras dated 10.8.1990 and only to discharge the said liability the vendor had agreed to sell the property scheduled to Ex A1 to the plaintiff for a sum of Rs.3,80,000/- and that on the date of the agreement of sale itself a sum of Rs.1,50,000/- was paid. Even though as per the clause 5 to ExA1, the time stipulated for completing the sale was fixed as 30th April 1992, it is seen from Ex A5 endorsement on Ex A1 itself that the plaintiff had paid a sum of Rs.10,000/- towards balance of sale consideration on 10.2.1992, another sum of Rs.13,000/- towards balance of sale consideration , on 27.2.1992 ; further sum of Rs.7,000/- paid towards part of the sale consideration https://hcservices.ecourts.gov.in/hcservices/ on 21.3.1992; another sum of Rs.9,000/- paid towards the balance of sale consideration on 23.5.1992 a sum of Rs.5,000/- towards balance of sale consideration on 15.6.1992. It is pertinent to note that even after the expiry of the time stipulated under Ex A1 for the performance of the contract ie., 30.4.1992, the subsequent payment of Rs.9,000/- on 23.5.1992 and a sum of Rs.5,000/- on 15.6.1992 were received by the defendant under Ex A5 endorsement. So the above said conduct of the parties will go to show that they never treated the time as essence of contract. As per clause 5 of Ex A1, the defendant/ vendor under Ex A1 is liable to hand over the vacant possession of the first floor of the plaint schedule property within 15 days from the date of agreement. Further he has to produce the income tax clearance certificate also before 30.4.1992 as per Clause 4 of Ex A1. As per clause 6, the plaintiff/vendee is liable to pay further advance of Rs.50,000/- within one month from the date of handing over the vacant possession in respect of the first floor of the plaint schedule property by the defendant/vendor. 6a) The learned counsel appearing for the respondent/defendant would contend that the plaintiff has failed to produce any material to show that he had paid any amount apart from Ex A5 towards balance of sale consideration. Even though the learned counsel appearing for the appellant would contend that he has totally paid a sum of Rs.1,98,000/-, except the payment of Rs.1,50,000/- under Ex A1 on the date of execution of the sale agreement on 28.11.1991 and the payment of Rs.44,000/- on various dates under Ex A5, there is no evidence adduced on the side of the plaintiff/appellant to show that another sum of Rs.4,000/- was also paid towards balance of sale consideration. So the balance of sale consideration comes to Rs.1,86,000/- and not Rs.1,82,000/- as contended by the learned counsel appearing for the plaintiff/appellant. 6b) At this juncture, the evidence of D.W.1 in the cross examination is worth to be mentioned. In the cross examination D.W.1 would state that the sale agreement was entered into between the plaintiff and the defendant only for the purpose of raising funds to celebrate the marriage of the defendant's daughter and that according to D.W.1, there is a recital to that effect in Ex A1 itself. But as I have already referred to earlier there is no recital in Ex A1 as to the effect that Ex A1 agreement of sale was entered into between the plaintiff and the defendant only for the purpose of raising funds for the defendant to celebrate the marriage of her daughter. Even though a suggestion was put to D.W.1 as to the effect that even after the receipt of the draft sale deed, the defendant has failed to produce the income tax clearance certificate, was denied. It is seen from the rejoinder notice Ex A4 that the plaintiff has sent the draft sale deed enclosed along with the original of Ex A4 rejoinder notice. There is no denial in the written statement filed by the defendant as to the effect that she has not received the draft sale deed along with the original of Ex A4 rejoinder notice. Even in the reply notice Ex A3 at paragraph 3 the defendant would admit that the sale agreement was entered into only through one broker by name Thiru Jeeva. But while deposing before the trial Court as D.W.1 in the cross examination, the defendant's husband will go to the extend of https://hcservices.ecourts.gov.in/hcservices/ denying the fact that the agreement of sale was processed through one agent Jeeva and that the balance of sale consideration was received only through the agent Jeeva. D.W.1 would admit in the cross examination that the defendant is residing in the first floor of the plaint schedule property . According to the defendant, the defendant was residing only in the ground floor and since the plaintiff has failed to perform his part of the contract only after a lapse of 11 months from the date of agreement of sale, the defendant had moved to the first floor after letting out the ground floor to one Krishnakumar but there is absolutely no material placed before the trial Court to show that the defendant was always ready and willing to perform her part of the contract demanding the plaintiff to pay the balance of sale consideration and get the sale deed executed from her. Since the defendant has received the balance of sale consideration even after the expiry of the time stipulated under Ex A1 agreement ie., on 27.5.1992, the plaintiff has paid a sum of Rs.9,000/- and on 15.6.1992 a sum of Rs.5000/-, it cannot be said that the parties treated the time as essence of contract. Hence, I hold on point No.1 that both the plaintiff and the defendant have not considered the time as essence of contract under Ex A1. Point No.1 is answered accordingly. 7. Point No.2: In view of my discussion and finding in the earlier paragraphs, I hold on Point No.2 that the decree and Judgment in O.S.No.12071 of 1996 on the file of VII Additional Judge, City Civil Court, Chennai is liable to be set aside for the reasons stated in the memorandum of appeal. Point No.2 is answered accordingly. 8. In fine, the appeal is allowed and the decree and Judgment in O.S.No.12071 of 1996 on the file of VII Additional Judge, City Civil Court, Chennai is hereby set aside and the suit is decreed as prayed for. Time for deposit of the balance of sale consideration of Rs.1,86,000/- is one month. The defendant has to execute the sale deed within one month thereafter failing which the plaintiff is entitled to get the sale deed executed through Court. The plaintiff is entitled to pay interest at 9% p.a , if he fails to deposit the balance of sale consideration of Rs.1,86,000/- within one month from this date before the trial Court. At this juncture, the learned counsel appearing for the appellant would represent that he had paid the cost as per the decree of the trial Court in execution proceeding before the Trial Court. If it is so, the said amount is liable to be adjusted with the balance of sale consideration. The parties are directed to bear their own costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. sg https://hcservices.ecourts.gov.in/hcservices/ To 1. The Registrar, City Civil Court, Chennai 2. The Record Keeper, V.R.Section, High Court, Madras 1 cc to Mr.R. Mohan, Advocate, SR. 40506 1 cc to Mr. Narayanamoorthi, Advocate, SR. 40785 A.S.NO.795/1998 KA (CO) kk 19/8 https://hcservices.ecourts.gov.in/hcservices/