IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.02.2011 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Appeal Suit No.190 of 2007 & M.P.No.2 of 2010 1. P.Natarajan 2. S.Natarajan .. Appellants /Defendant Vs. D.Lawrence .. Respondent/Plaintiff Appeal Suit (First Appeal) against the judgment decree dated 19.12.2006 in O.S.No.53 of 2005 on the file of the District Court, Nilgiris at Udhagamandalam. For appellants : Mr.AR.L.Sundaresan, Senior Counsel for Mrs.AR.L.Gandhimathi For Respondent : Mr.Srinath Sridevan JUDGMENT Appeal Suit (First Appeal) against the judgment decree dated 19.12.2006 in O.S.No.53 of 2005 on the file of the District Court, Nilgiris at Udhagamandalam. 2. The averments made in the plaint are as follows: (i) The suit properties stand in the name of both the defendants. Though they have purchased the same under different sale deeds, the entire extent of 3.75 acres forms single plot with common boundaries. (ii) The plaintiff entered into a sale agreement with the defendants on 04.05.2005 for Rs.10,37,500/- and the plaintiffs paid as an advance amount of Rs.2,00,000/- to the defendants. They agreed to receive the balance sum of Rs.8,37,500/- within two months from the date of the said sale agreement. They also agreed to produce the original title deed, survey sketch, chitta extract and annual rental value certificate in respect of the suit properties. (iii) In spite of the plaintiff's repeated demands, the defendants have produced only the chitta extract and then produced https://hcservices.ecourts.gov.in/hcservices/ the Encumbrance Certificate in the month of September 2005. The plaintiff was always ready and willing to perform his part of contract. But the defendants failed to produce the relevant documents. (iv) There is a specific clause in the agreement that the possession of 2.00 acres out of 3.75 acres will be delivered after seven months from the date of the said sale agreement, as plantain crops was to be harvested. So, the defendants represented that the sale deed could be registered after harvesting the plantain crops. But the defendants with the mala-fide intention, avoided to execute the sale deed. (v) Hence, the plaintiff was constrained to issue a legal notice on 23.11.2005. In the meantime, he also received a legal notice dated 22.11.2005 from the defendants and a suitable reply was also given by the plaintiff. The defendant's Advocate also sent a reply dated 29.11.2005. (vi) The plaintiff was constrained to file the suit for specific performance, directing the defendants to execute and register the necessary registered sale deed in favour of the plaintiff as per the terms of the sale agreement dated 4.5.2005 and also to direct the defendants to hand over all the title deeds, survey sketch and annual rental value certificate in respect of the properties, failing which, the Court may be pleased to execute the sale deed and to deliver vacant possession of the suit properties, and for costs of the suit. 3. The gist and essence of the written statement filed by the second defendant, adopted by the first defendant, are as follows:- (i) The plaintiff was always not ready and willing to perform his part of contract. Whenever the defendants demanded the balance sale consideration, the plaintiff was procrastinating under some false pretext. (ii) The defendants entered into sale agreement in order to raise funds to purchase a property in their native place, for which the defendants advanced money to their vendor and since the plaintiff had committed a breach of the terms of contract, the defendants suffered loss to the tune of Rs.3,00,000/-. (iii) The defendants on 22.11.2005 issued a legal notice, which was received by the plaintiff on 23.11.2005. On the very same day, the plaintiff has issued a legal notice to the defendants claiming that the plaintiff was ready with the balance sale consideration. (iv) From the exchange of the notices between the plaintiff and the defendants, the conduct of the plaintiff is that he was not ready with balance sale consideration. https://hcservices.ecourts.gov.in/hcservices/ (v) The defendants have performed their part of contract and the plaintiff on his part has committed a breach of the terms of the contract. If really the plaintiff was ready to perform his part of the contract under the agreement, the plaintiff ought to have deposited the balance sale consideration while filing the suit to show his bona-fides and in the absence of the same, it has to be construed that the plaintiff does not have sufficient funds to purchase the property. (vi) The plaintiff has not approached the Court with clean hands and is not entitled for the equitable relief of specific performance. Hence the defendants prayed for dismissal of the suit. 4. The trial Court, after considering the averments both in the plaint and the written statement and arguments of both the counsel, framed five issues and considering the oral evidence of P.W.1 and D.W.1 and documentary evidence of Exs.A1 to A5 and B1 to B13, decreed the suit as prayed for with costs and two months' time was granted for execution and registration of the sale deed, against which, the defendants have come forward with this First Appeal. M.P.No.2 of 2010 in A.S.No.190 of 2007: 5. The plaintiff in the suit has filed this petition for reception of the document as an additional evidence. 6. The averments in the affidavit filed in support of this petition are that the respondent/plaintiff has filed the suit for specific performance, which was decreed and to prove that the plaintiff was always ready and willing to pay the balance sale consideration within the stipulated time in the agreement of sale, at the time of trial, he failed to file the document; that he is having an account in IOB, Ooty, and during the arguments, the appellants/defendants have specifically mentioned that the respondent/plaintiff has not proved his readiness and willingness by marking some documents to show that the respondent/plaintiff has enough balance in his account and so, to prove the same, it is necessary to him to file the document as an additional evidence, and hence, he prayed that the document in question in this petition may be received as an additional evidence. 7. The sum and substance of the counter affidavit filed by the appellants/defendants are that the document which is sought to be filed as an additional evidence is dated 23.1.2006 and the same ought to have been filed even at the time of trial; the respondent/plaintiff has not furnished sufficient reason for receiving this document as an additional evidence. The additional document does not in any manner improve the case of the petitioner/plaintiff. This petition has been filed after the https://hcservices.ecourts.gov.in/hcservices/ arguments in the main appeal was over and the orders were reserved. Hence, the appellants/defendants prayed for dismissal of this petition. 8. After considering the arguments of both counsel, the following points arise for consideration in the appeal: (i) Whether M.P.No.2 of 2010 is liable to be allowed and the plaintiff is entitled to mark the document as an additional evidence on his side ? (ii) Whether time is the essence of the contract ? (iii) Whether the trial Court is correct in holding that the respondent/plaintiff was always ready and willing to perform his part of the contract ? (iv) Whether the judgment and decree of the trial Court are sustainable ? and (v) To what relief the appellants/defendants are entitled to ? 9. Point (i) : The respondent as plaintiff has filed the suit for specific performance on the basis of Ex.A-1 sale agreement dated 4.5.2005 and the sale price was fixed at Rs.10,37,500/- and the advance was received by the defendants at Rs.2 lakhs and for paying the balance Rs.8,37,500/-, two months' time was granted. After issuance of notice under Ex.A-2, the plaintiff has filed the suit. The trial Court after considering the defence raised by the appellants/defendants, decreed the suit for specific performance, against which, the present First Appeal has been preferred by the appellants/defendants. 10. After the arguments in the main appeal were over, the respondent/plaintiff has come forward with the petition for reception of additional document under Order 41 Rule 27 CPC. 11. Now, this Court has to consider the arguments advanced by both sides. 12. Learned counsel for the respondent/plaintiff submitted that to prove that the plaintiff was ready and willing to perform his part of the contract, and has sufficient means to pay the balance sale consideration, the plaintiff wanted to file the document to be received as an additional evidence, and so, he was forced to file this petition on the ground that the document sought to be received is necessary for the disposal of the main appeal. https://hcservices.ecourts.gov.in/hcservices/ 13. Repudiating the said contentions, learned Senior Counsel for the appellants/defendants submitted that the document is of the year 2006, the date of judgment of the trial Court is 19.12.2006 and so, the plaintiff would have very well filed this petition before the trial Court; he has not averred as to why he did not file the document before the trial Court, and therefore, the ingredients of Order 41 Rule 27 CPC, have not been fulfilled. Furthermore, this document is not necessary for adjudication of the appeal, and hence, learned counsel prayed for dismissal of this petition. 14. Considering the rival submissions made by both sides, after judgment was reserved in the appeal, the plaintiff filed M.P.No.1 of 2010 for reopening the case and M.P.No.2 of 2010 has been filed for reception of document as an additional evidence under Order 41 Rule 27 CPC. 15. Order 41 Rule 27 CPC reads as follows: "Order 41 : Appeals from original decrees: Rule 27. Production of additional evidence in Appellate Court:--(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if— (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission." 16. So, the person who comes to the Court for letting in additional evidence, ought to have proved the ingredients as per Order 41 Rule 27 CPC. The document should have been tendered before the trial Court and if the trial Court refuses to receive or rejected the same, then only, the party is entitled to file application under Order 41 Rule 27 CPC. Admittedly, there is no averment or argument that the document proposed as an additional evidence, was tendered before the trial Court when the trial was in progress. Admittedly, the additional document is dated 23.12.2006 and the judgment in the suit was pronounced on 19.12.2006 and this shows that the document https://hcservices.ecourts.gov.in/hcservices/ would have been available with the respondent/plaintiff, but he has not assigned any reason as to why he did not file the same before the trial Court. Since the additional document/additional evidence was available with the respondent/plaintiff during the course of trial, the ingredient in Order 41 Rule 27 CPC regarding due diligence to trace out the document, does not arise for consideration. 17. Now, this Court has to decide as to whether the document is necessary for the disposal of the main appeal. It is pertinent to note that in Order 41 Rule 27(b) CPC, it was specifically mentioned that if the appellate Court requests any document to be produced or any witness to be examined to enable it to pronounce the jdugment or for any other substantial cause, the appellate Court may allow such evidence or document to be produced, or witness to be examined. 18. In the present case, the suit was filed for specific performance and it is the duty of the respondent/plaintiff to prove that he was always ready and willing to perform his part of the contract. Even though the appellants/defendants raised a defence that the plaintiff was not ready and willing to perform his part of the contract, the trial Court, after considering the oral and documentary evidence, came to the conclusion that the respondent/plaintiff was always ready and willing to perform his part of the contract, and granted the decree of specific performance. 19. The plaintiff wanted to file the additional document as additional evidence stating that the certificate issued by the IOB, Ooty, proves the financial status. 20. It is well settled principle of law that jingling of coins is not mandatory and deposit of balance consideration is not mandatory and if the Court directs, they ought to have deposited the same within the stipulated time granted by the Court. 21. Admittedly, in this case, during the pendency of the suit, the entire sale consideration has been deposited. In such circumstances, the filing of the additional document is one certificate issued by IOB, Ooty, which is not necessary for pronouncement of the judgment in the First Appeal. So, there is no substantial cause to entertain and receive the additional evidence. 22. Admittedly, the plaintiff has not filed pass book of the Bank. Hence, I am of the view that even though the document was in his possession, the plaintiff has not proved as to why he has not filed the same before the trial Court. Furthermore, he has not proved how the additional document is necessary for the disposal of the appeal. In such circumstances, I am of the considered view that the additional document is not necessary for the disposal of the main appeal, and hence, M.P.No.2 of 2010 deserves to be dismissed, which is accordingly dismissed. Point (i) is answered accordingly. https://hcservices.ecourts.gov.in/hcservices/ 23. Point (ii): Learned Senior Counsel appearing for the appellants/defendants submitted that the respondent/plaintiff was not always ready and willing to perform his part of the contract; two months' time was granted in the sale agreement and certain documents have been given to him, but he was not ready with the money and perform his part of the contract. As per Clause 8 of the Ex.A-1 sale agreement, time is the essence of the contract. He further submitted that the plaintiff kept quiet all along till the appellant/defendant issued notice under Ex.A-3 and then only, he issued notice to the appellants/defendants. So, as per Section 16(c) of the Specific Relief Act, the respondent/plaintiff was not always ready and willing to perform his part of the contract. Hence, the respondent/plaintiff is not entitled to any relief. To substantiate his contentions, learned Senior Counsel relied on the decisions of the Supreme Court and this Court. 24. Repudiating the said contentions, learned counsel for the respondent/plaintiff submitted that it is true that Ex.A-1 sale agreement was executed and two months' time was granted for execution of the sale deed. But as per Clauses 4 and 5 of Ex.A-1 sale agreement, the defendants ought to have produced the chitta, annual rental value certificate and the encumbrance certificate and so, the appellants/defendants ought to have performed their part of the obligation and then only, the respondent/plaintiff is entitled to get the sale deed executed. He further stated that the defendants obtained encumbrance certificate only on 12.9.2005 in Ex.B-3, patta Ex.B-11 on 11.7.2005 and patta Ex.B-9 on 19.7.2005 and also the chitta, which shows that the appellants/defendants were not always ready and willing to perform their part of the contract. The appellants/defendants did not obtain the annual rental value certificate, which is necessary for the execution of the sale deed. He further submitted that the conduct and attitude of the appellants/defendants have clearly proved that the time is not the essence of the contract. The respondent/plaintiff was always ready and willing to perform his part of the contract. The said aspect has been considered by the trial Court, and a decree has been granted. Hence, the judgment and decree of the trial Court do not warrant any interference by this Court and he prayed for dismissal of the First Appeal. 25. The execution of Ex.A-1 and receipt of advance amount of the plaintiff, are admitted. It is also admitted that even though the appellants/first and second defendants are the brother-in-laws, they are the owners of the properties and they have purchased the properties under Exs.B-4 and B-5, and the suit properties form part of one block and the adjacent owner of the properties, is the respondent/plaintiff. https://hcservices.ecourts.gov.in/hcservices/ 26. It is also an admitted fact that the first defendant is the brother-in-law of second defendant/D.W.1. One P.Subramaniam who is the brother-in-law of D.W.1/second defendant, owns lands adjacent to the suit properties and also adjacent to the properties of the respondent/plaintiff. It is also admitted that the said Subramaniam has sold his adjacent properties to the respondent/plaintiff. 27. It is also an admitted fact that even though the total extent is 3 acres and 75 cents, as per clause 6 of the contract, the delivery of possession of 2 acres of the said property, will be effected within seven months from the date of execution of Ex.A-1, since they have raised the plantain crops in the properties. But as per the agreement, the appellants/defendants are to produce the original sale deed and the annual rental value certificate, encumbrance certificate, chitta etc. Admittedly, the chitta and encumbrance certificate have been handed over to the respondent/plaintiff even on 22.9.2005 as per the evidence of D.W.1, who is the second appellant/second defendant. But in Ex.A-1, two months' time has been given. He has handed over the encumbrance certificate, and chitta on 22.9.2005, which shows that time is not the essence of the contract and so, admittedly, in the suit for specific performance, the conduct of the parties has to be looked into before deciding as to whether the time is the essence of the contract. 28. At this juncture, it is appropriate to consider the decisions relied on by the learned counsel on both sides. Learned Senior Counsel appearing for the appellants/defendants relied upon the following decisions: (a) 2008 (8) MLJ 873 (Ramnath Publications Pvt. Ltd., Vs. A.R.Madana Gopal) (Division Bench of Madras High Court): "30. In the instant case, the agreements were entered into in the year 1991, wherein the time stipulated for execution of the sale deed was 4 months, but in view of the acquisition proceedings and the writ petition till September, 1998, the sale deed could not be executed. Needless to say, the value of the property found in the agreement, in the city of Madras would have risen many times in these 9 or 10 years. In the case Swarnam Ramachandran and Another Vs. Aravacode Chakungal Jayapalan (supra), the Apex Court has held thus: "12. That time is presumed not to be of essence of the contract relating to immovable property, but it is of essence in contracts of reconveyance or renewal of lease. The onus to plead and prove that time was the essence of the contract is on the person alleging it, thus giving an opportunity to https://hcservices.ecourts.gov.in/hcservices/ the other side to adduce rebuttal evidence that time was not of essence. That when the plaintiff pleads that time was not of essence and the defendant does not deny it by evidence, the Court is bound to accept the plea of the plaintiff. In cases where notice is given making time of the essence, it is duty of the Court to examine the real intention of the party giving such notice by looking at the facts and circumstances of each case. That a vendor has no right to make time of the essence, unless he is ready and willing to proceed to completion and secondly, when the vendor purports to make time of the essence, the purchaser must be guilty of such gross default as to entitle the vendor to rescind the contract." 31. From the very reading of the above decision, it would be quite clear that in a case where time was the essence of the contract, the burden of proof was upon the person alleging it, by giving an opportunity to the other side to rebut such a presumption. On application of the above decision to the present facts of the case, it would be quite clear that the burden was on the defendants to show that the time was the essence of the contract which, in the opinion of this Court, has been proved by the appellants under the above circumstances, but that presumption is rebuttable. Despite the availability of the opportunity, the plaintiffs have miserably failed to rebut that presumption." (b) 2010 (3) CTC 297 (Jugraj Vs. P.Sankaran) (Madras High Court): "31. The learned counsel appearing for the appellant relied upon the judgment reported in Chand Rani Vs. Kamal Rani (1993 (1) SC 579), wherein the Apex Court held as follows: "As a general proposition of law, in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it if not of the contract the Court may infer that it is to be performed in a reasonable time if the conditions are evident: i. from the express terms of the contract; ii. from the nature of the property; and https://hcservices.ecourts.gov.in/hcservices/ iii. from the surrounding circumstances, for example, the object of making the contract." 32. Even if time is not the essence of the contract, the contract is to be performed in a reasonable time. It is also settled principle that even though time is not the essence of the contract, the parties under such agreement have to perform their obligations within a reasonable time, if certain conditions are existing. As per Ex.A-1 agreement, the sale deed shall be executed within 15 days from the date on which the vendor informed the purchaser that the said premises is vacant and ready for delivery. Though no time limit was fixed for the respondents to keep the premises ready for vacant possession, but, on the other hand, 15 days time was fixed for the vendors to inform the purchaser with regard to the execution of the sale deed after getting the vacant possession. Though the terms of the contract does not indicate that the time was the essence of the contract, but the sale deed should be executed within the fair and reasonable time for the simple reason that the respondents 1 to 7 were in distress and suffering from paucity of funds. Since the respondents 1 to 7 entered into Ex.A-1 agreement only to wipe out the debts, the appellant should have performed his part of the contract within a reasonable time. 33. Therefore, applying the principles laid down in the above judgment, it is clear that the delay in filing the Suit, it would operate either as acquiescence or as waiver or as abandonment or atleast make it inequitable, to grant the relief of specific performance to the appellant-plaintiff." 29. It is pertinent to note that in the decision of this Court reported in 1997 (1) CTC 360 (Seeni Ammal Vs. Veerayee Ammal), it was held as follows: "11. In the light of the above position, the learned counsel for the appellant relied upon a decision of the Division Bench of this Court reported in Chokkalingam, S.S. Vs. R.B.S.Mani & 5 others 1994 (1) LW 321. In similar circumstances the Division Bench in the above judgment has held as follows: "It is contended that time is not the essence of the contract and the mere fact that the appellant has not been able to pay the entire amount within a particular time will not disentitle him to the relief of specific performance. No doubt, ordinarily in