IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.08.2011 CORAM: THE HON'BLE MR.JUSTICE T.MATHIVANAN A.S.No.1049 of 2007 R.Manoharan .... Appellant/Defendant Vs. N.Subbiah .... Respondent/Plaintiff Prayer : Appeal filed under Section 96 of the Code of Civil Procedure, against the Judgment and Decree dated 23.01.2007 and made in O.S.No.1433 of 2006, on the file of the learned II Additional Judge, City Civil Court, Chennai. For Appellant : Mr.J.R.K.Bhavanantham For Respondent : Mr.Md.Ibrahim Ali J U D G M E N T Challenge is made in this appeal by the defendant to the Judgment and Decree dated 23.01.2007 and made in O.S.No.1433 of 2006, on the file of the learned II Additional Judge, City Civil Court, Chennai. 2. The facts, which absolutely necessary for the disposal of this appeal are as under: The original legal characters of the parties to the suit may not be changed and be it as it is in the suit. 2.1. The suit is filed by the plaintiff against the defendant to execute the sale deed in respect of the suit schedule property after receiving the balance of sale consideration and in case the defendant fails to execute the sale deed, the Court may execute the sale deed in respect of the suit schedule property in favour of the plaintiff on deposit of balance of sale consideration. 2.2. That on 11.07.2005, the plaintiff had entered into an agreement of sale with the defendant and thereby, the defendant had agreed to sell the suit schedule property for a total sale consideration of Rs.5,55,000/-. On the date of sale agreement, the plaintiff had paid a sum of Rs.1,50,000/- towards advance and it was https://hcservices.ecourts.gov.in/hcservices/ mutually agreed to execute the sale deed in favour of the plaintiff within a period of two months and the plaintiff had also agreed to pay the remaining balance of Rs.4,05,000/- at the time of registration of the sale deed. 2.3. Instead of executing the sale deed, the defendant had demanded a further amount of Rs.50,000/- to meet out the surgery expenses of his mother. Believing the words of the defendant, the plaintiff had parted with a sum of Rs.60,000/- on 15.10.2005 and the defendant had also acknowledged the receipt of the amount in the sale agreement. 2.4. In order to get approval for the suit property, the plaintiff with the consent of the defendant had applied for the approval through one Engineer Balasubramaniam. But, the defendant had given a letter to the concerned authority saying that the approval should not be given. 2.5. That on 21.11.2005 another amount of Rs.10,000/- was given by the plaintiff to the defendant on his request. The receipt of this amount had also been acknowledged in the suit sale agreement. Altogether the plaintiff had paid a sum of Rs.2,20,000/- to the defendant. That on 15.12.2005, the plaintiff had prepared a draft to execute the sale deed. But, once again, the defendant had failed to act upon his promise. 2.6. At the time of execution of sale agreement, the defendant had informed that there was no encumbrance in the suit property. But in fact, the suit schedule property was mortgaged with the Repco Bank and this fact was deliberately suppressed by the defendant. Hence, the plaintiff was constrained to issue a legal notice on 23.12.2005 and thereby, the defendant was called upon to come and execute the sale deed in favour of the plaintiff within one week. On receipt of the notice, the defendant had also given a reply stating that he was ready to return the advance amount. The plaintiff had also once again issued another notice to the defendant on 04.01.2006 calling upon the defendant to come and execute the sale deed. Since there was no response on the other end, the plaintiff was left with no other option excepting to file the suit. The plaintiff was always ready and willing to perform his part of contract and even ready to deposit the balance of sale consideration before the Court. 2.7. The defendant has contended in his written statement that after the payment of Rs.1,50,000/- towards advance at the time of execution of sale agreement, the plaintiff had agreed to pay the balance of sale price on or before 10.09.2005. But he was dilly- dallying in paying the balance of sale consideration and was constantly seeking extension of time and upon such request of the plaintiff, the defendant had extended the time and upon such extension the plaintiff had paid only a piecemeal amount of https://hcservices.ecourts.gov.in/hcservices/ Rs.60,000/- on 15.10.2005. That on 21.11.2005, the plaintiff had approached the defendant and informed about his inability to mobilize necessary funds towards the balance of sale consideration and on that date, he had paid a sum of Rs.10,000/- as further advance and again sought a last and final chance of 30 days to pay the balance of sale consideration and the receipt of this amount was also endorsed on the reverse of the sale agreement. Even so, on such extension of time, he had failed to pay the balance of sale price to the extent of Rs.3,35,000/- within 20.12.2005. He had also failed to prepare the draft sale deed and to purchase the requisite stamp papers. 2.8. There is a clear covenant in the sale agreement that the defendant has to execute the sale deed only on receipt of balance of sale consideration from the plaintiff. In other words, the plaintiff ought to have paid the balance of sale consideration to the defendant before the registration of the sale deed. The sale agreement is also very clear and unambiguous with regard to time for performance of obligations by parties to agreement. 2.9. Although the necessary period for performance of the obligation under the agreement was fixed at two months, it was extended till 20.12.2005 on the specific request made by the plaintiff. From the inception of the sale agreement, the plaintiff was informed that the property was mortgaged with the Repco Bank and when the said fact was about to be incorporated in the sale agreement, the plaintiff had refused to incorporate the same. The plaintiff was well aware about the fact that the suit property was mortgaged with the Repco bank and in order to suppress his inability to mobilize the funds, he has taken such evasive stand. 3. Based on the pleadings of the parties to the suit, the Trial Court has formulated the following five issues for the better adjudication of the suit: i. Whether the defendant did not disclose to the plaintiff the subsisting mortgage of suit property with Repco Bank? ii. Whether agreement of sale could not be concluded due to breach of contract by the plaintiff? iii. Whether the time stipulated is the essence of contract? iv. Whether the plaintiff is entitled to the relief of specific performance? v. To what other relief the plaintiff is entitled? https://hcservices.ecourts.gov.in/hcservices/ 4. In order to substantiate their respective cases, the parties to the suit went for trial. The plaintiff has examined himself as P.W.1 and one Mr.Ramachandran, who is the attestor of the suit sale agreement was examined as P.W.2. During the course of their examination Exs.A1 to A12 were marked. On the other hand, one Mr.Senthilnathan, who is none other than the son of the defendant was examined as D.W.1. No documentary evidence was led on behalf of the defendant. 5. On appraising the evidences both oral and documentary and on considering the submissions made on behalf of both sides, the Trial Court has proceeded to decree the suit directing the defendant to execute the sale deed in respect of the suit property in favour of the plaintiff after receiving the balance of sale consideration and directing the plaintiff to deposit the balance of sale price viz.Rs.3,35,000/- to the Court within a period of one month from the date of Judgment and also directing defendant to execute the sale deed within two months after receiving the balance of sale consideration. 6. While decreeing the suit, the Trial Court has concluded that: (i) the time stipulation incorporated in the sale agreement to conclude the contract within a period of two months cannot be termed as “time is the essence of the contract” as the defendant had accepted the part payments of sale consideration on 15.10.2005 and 22.11.2005 respectively by extending the period for the conclusion of the contract of sale, and (ii)the defendant had not disclosed the mortgage of property with the Repco Bank and it was not specifically agreed between the parties “that time is the essence of the contract”. 7. Being aggrieved by the impugned Judgment and decree, now the defendant has approached this Court by way of this appeal. 8. Heard Mr.J.R.K.Bhavanantham, learned counsel for the defendant and Mr.Md.Ibrahim Ali, learned counsel for the respondent/plaintiff. 9. Mr.J.R.K.Bhavanantham, learned counsel for the appellant/defendant has placed his arguments only on the following two grounds: i. the plaintiff was not ready and willing to perform his part of contract from the date of agreement of sale and even through out the proceedings in https://hcservices.ecourts.gov.in/hcservices/ compliance of the proviso to Section 16(c) of the Specific Relief Act; and ii. the plaintiff should have adhered to the strict terms of the agreement of sale dated 11.07.2005 and paid the balance of sale consideration within two months from the date of agreement of sale. 10. Admitted facts: a. on the date of sale agreement i.e., on 11.07.2005, the plaintiff had paid a sum of Rs.1,50,000/- towards the advance of sale price; b. as evident from Ex.A2, the defendant had received a sum of Rs.60,000/- towards the balance of sale price on 15.10.2005; c. Ex.A3 acknowledges the receipt of another sum of Rs.10,000/- on 22.11.2005 by the defendant from the plaintiff; Ex.A1 11.07.2005 Rs.1,50,000/- Ex.A2 15.10.2005 Rs. 60,000/- Ex.A3 22.11.2005 Rs. 10,000/- ---------------- Rs.2,20,000/- ---------------- Altogether, the defendant had received a sum of Rs.2,20,000/- d. No issue has been framed by the Trial Court in respect of readiness and willingness. e. No objection certificate dated 13.12.2005 was obtained by the defendant from the Repco Bank and given to plaintiff on 20.12.2005. 11. Ground No.i, Readiness and Willingness: Section 16 of the Specific Relief Act, 1963 reads as follows: 16. Personal bars to relief.- Specific performance of a contract cannot be enforced in favour of a person- Clause (c) to Section 16 of the Specific Relief Act reads as follows: (c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential https://hcservices.ecourts.gov.in/hcservices/ terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. Explanation for the purposes of Clause (c): i. where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court; ii. the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. 12. In Manjunath v. Tammanasa, AIR 2003 SC 1391 : 2003 (2) Cur CC 177 : 2003 (10) SCC 390 and Rameshwar Prasad v. Basanti Lal, AIR 2008 SC 2050, in specific terms it is laid down that specific performance of contract cannot be enforced in favour of 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. The requirement of law is two folds: (i) that the plaintiff must aver in the plaint and (ii) that he must prove by evidence that he was always been ready and willing to perform his part of the contract. The plaintiff cannot be allowed to succeed if he fails to fulfil any of the two obligations enjoined by law. 13. In the above context, the plaintiff has embarked to prove by evidence that he was always been ready and willingness to perform his part of the contract. The law is well settled that if he fails to fulfil any of the above stipulated two obligations enjoined by law viz. Section 16(c) of the Specific Relief Act, 1963, the plaintiff cannot be allowed to succeed the suit. 14. It would also be quiet relevant to refer a recent decision of the Supreme Court in Pramod Buildings and Developers Private Limited vs. Shanta Chopra, (2011) 4 SCC 741. In this case it is held that: “In a suit for specific performance, burden lies on plaintiff to prove readiness and willingness to perform his obligations in terms of contract. If plaintiff was not willing to pay balance amount at the time of sale as agreed, he could not claim that he was ready and willing to perform his obligations.” https://hcservices.ecourts.gov.in/hcservices/ 15. At Page No.3 of the sale agreement, nine conditions have been stipulated. In the third condition, it is stated that barring the advance amount of Rs.1,50,000/-, the purchaser (the plaintiff) has agreed to pay the remaining balance of Rs.4,05,000/- within the period of two months. Admittedly the balance of sale price as specified above was not paid by the plaintiff within the period of two months. Ex.A2, (endorsement dated 15.12.2005) reveals that the defendant had, on 15.10.2005, received an additional advance of Rs.60,000/-. In total, he had received a sum of Rs.2,10,000/-. But the endorsement on Ex.A2 does not have any reference to show that the time limit for the payment of balance of sale price was extended. It is significant to note here that the condition Clause No.3 covenants that the remaining balance of Rs.4,05,000/- was agreed to be paid by the plaintiff within two months. But it is seen from Ex.A2 endorsement that he had paid a part of sale consideration of Rs.60,000/- after three months. On a cursory perusal of Ex.A1 and Ex.A2 endorsement, it is crystal clear that the plaintiff had not paid the balance of sale consideration of Rs.4,05,000/-, as agreed by him within the period of two months. But after the expiry of the time stipulated, he was able to pay only Rs.60,000/- after the lapse of three months. 16. Secondly, Ex.A3 endorsement reveals that another amount of Rs.10,000/- was paid by the plaintiff only on 21.11.2005. Though this endorsement is dated as 21.11.2005, the defendant had acknowledged the receipt of this amount only on 22.11.2005. This has not been disputed by the defendant. It also appears from Ex.A3 that he had extended the time by 30 days from 22.11.2005 to pay the remaining balance. It is pertinent to note here that adding this amount of Rs.10,000/- to the amount already paid by the plaintiff, the defendant had received totally a sum of Rs.2,20,000/-. This fact has also not been disputed by the defendant in his written statement as well as in DW-1's evidence. It is apparent that the defendant had not entered the box to give evidence instead his son one Senthil had only entered into the box to depose on behalf of his father. The suit in O.S.No.1433 of 2006 appears to have been filed on 30.01.2006 i.e., more or less after two months from the date of Ex.A3 endorsement. Under these circumstances, the question of 'readiness' and 'willingness' has been raised by Mr.J.R.K.Bhavanantham, learned counsel for the appellant at the time of advancing his arguments. 17. It is manifest that in Paragraph No.5 of the plaint, the plaintiff has pleaded that "the defendant, instead of executing the sale deed in his favour had demanded a further amount of Rs.50,000/- to meet out the surgical expenses of his mother and he had also informed that on account of the operation of his mother he had no time to execute the sale deed and also promised to execute the sale deed after his mother's operation was over". He has also pleaded that believing his words he had parted with a further advance of https://hcservices.ecourts.gov.in/hcservices/ Rs.60,000/- on 15.10.2005. No doubt, the amount of Rs.60,000/- has been acknowledged on 15.10.2005 by the defendant under Ex.A3. But the reasons which are said to have been given by the defendant for the non-execution of the sale deed have to be substantiated by the plaintiff. Having come forward with a definite set of pleadings, it is the burden rests on the plaintiff to establish this fact. But, it has not been proved by the plaintiff. 18. D.W-1 in his proof affidavit in Paragraph No.6 has stated that the plaintiff had paid an advance of Rs.1,50,000/- and though he had agreed to pay the balance of sale consideration, he was constantly seeking extension of time for paying the balance of sale consideration and upon such request and in order to oblige him, he had extended the time and upon such extension, the plaintiff had paid only a piecemeal amount of Rs.60,000/- on 15.10.2005. He has also stated that he had strictly warned the plaintiff to get ready with the balance of sale consideration and also to prepare a draft sale deed so as to enable him to execute the sale deed in favour of the plaintiff. But on 22.11.2005, the plaintiff had come to the defendant and pleaded his inability to mobilize necessary funds towards paying the balance of sale consideration and paid only Rs.10,000/-, a further advance and again sought last and final chance of 30 days to pay the balance of sale consideration and the same was also endorsed on the reverse of the sale agreement, under Ex.A3. 19. From the evidence of D.W-1, it is seen that he had fairly admitted that he had received an amount of Rs.10,000/- and extended a further period of 30 days for the completion of the sale transaction. But, even in spite of this, it appears from the records that the plaintiff had not come forward to pay the balance of sale price. 20. On scrutinization of cross-examination of PW-1, he would state that since the defendant had delayed in getting the approval of the plan and to sub-divide the site which was intended to be purchased he was not able to perform his part of contract within the stipulated time of two months. In this regard, this Court finds that it would be more relevant to place it on record that this fact has not been specifically pleaded by the plaintiff in the plaint. It is settled proposition of law that without specific pleading, no amount of evidence could be considered or allowed to be received. It is also relevant to note here that with regard to the plea taken by the plaintiff that the defendant had demanded a sum of Rs.50,000/- for the surgical expenses of his mother, the defendant would contend that his mother had expired 40 years before and there was no necessity for him to demand a sum of Rs.50,000/- showing the medical grounds of his mother. This Court also wishes to place it on record that as per the case of plaintiff, the defendant had demanded a sum of Rs.50,000/- for his mother's medical expenses. But the plaintiff had parted with a sum of Rs.60,000/-. Though this was confronted by the defendant, the plaintiff had not chosen to give proper explanation as to what https://hcservices.ecourts.gov.in/hcservices/ made him to part with a sum of Rs.60,000/- instead of Rs.50,000/-. 21. In his cross-examination the plaintiff has also stated that on 15.10.2005 he had approached the defendant and informed him that he was ready to pay the remaining balance of consideration and requested him to come and execute the sale deed. He has also stated that the defendant had replied that the suit property was mortgaged with Repco bank. This fact has also been not specifically pleaded in the plaint and the plaintiff has also admitted this fact in his cross-examination. The plaintiff in his cross-examination has continued to depose that after 15.10.1995 he had approached the defendant for about 10 to 15 times and requested him to come and register the sale deed. He has also fairly admitted that no documentary evidence was adduced on his part to prove the fact that he had got the plan approved through one Engineer Balasubramanian. But the said Engineer Balasubramanian has also not been examined in this case. 22. He has also disclosed another fact that the defendant had asked him through his son Senthil to part with a sum of Rs.10,000/- on 20.11.2005 for getting approval of the plan. But this has also not been proved by the plaintiff. Further he has also admitted that on 23.11.2005 he never requested the defendant either through writing or in person to come and register the sale deed. 23. Ex.A10 and A11 are said to be draft sale deeds. In this connection, the plaintiff has deposed in his chief-examination that in the month of September he had prepared a draft sale deed under Ex.A10 and handed it over to the defendant and the defendant had also effected corrections. He has also added that again in the month of October, he had prepared another draft sale deed and given to the defendant but he did not get it back. He would state further that he had prepared another draft sale deed under Ex.A11 in the month of December and given to the defendant and he had also effected corrections and returned the same back to him. In his cross- examination he has stated that the draft sale deed was given in the month of September, but he did not remember the exact date. He has also stated that when he had asked the defendant as to when the registration could be fixed, the defendant had replied that he would convey the date through phone after getting letter from the bank. 24. He would state further that till he was not aware about the mortgage of the property with the Repco bank. With regard to the mortgage of the suit property with Repco bank, the plaintiff had deposed in his cross-examination that the defendant for the first time had disclosed at the time of receipt of money of Rs.60,000/- under Ex.A2. The plaintiff has also admitted in his cross- examination that the disclosure of defendant, on 15.10.2005, about the mortgage of property with Repco bank had not been specifically pleaded in the plaint. Even in his chief examination, the plaintiff https://hcservices.ecourts.gov.in/hcservices/ has stated that the defendant has disclosed that the property was mortgaged with Repco Bank, T.Nagar Branch. But, this mortgage had not been shown in the encumbrance certificate and thereafter the defendant had got a letter from the above said Bank permitting to sell an extent of 600 sq.ft., But, this fact has also not been pleaded in the plaint. 25. It is significant to note here that out of 2698 sq.ft., the defendant had agreed to sell away an extent of 600 sq.ft, viz.20 X 30 sq.ft., The plaintiff has also admitted this fact in his cross- examination. Ex.A12 is the no objection certificate issued by Repco Bank in respect of 600 sq.ft., In this regard, the plaintiff has stated in his evidence that Ex.A12 was obtained from Repco Bank by the defendant and handed it over to him only on 20.12.2005. D.W.1 has also admitted in his cross-examination that Ex.A12 dated 13.12.2005 (no objection to sell 600 sq.ft.,) given by the Repco Bank was obtained by him. But, he has strongly denied the suggestion that the delay in getting no objection from the Repco Bank had caused further delay in the registration of the sale deed. 26. Section 55 of the Transfer of Property Act deals with the rights and liabilities of the buyer and seller. It reads as follows: 55. Rights and liabilities of buyer and seller.- In the absence of a contract to the contrary, the buyer and the seller of immovable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following, or such of them as are applicable to the property sold: (1) Seller is bound-- (a) to