IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 27.10.2006 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN A.S.No.127 of 2000 Mrs.A.Kanthamani(Defendant) .. Appellant vs. Mrs.Nasreen Ahmed(Plaintiff) ..Respondent Prayer: This Appeal has been filed under Section 96 and Order 41 Rule 1 of the CPC against the decree and Judgment dated 30.10.1998, passed in O.S.No.6420 of 1996 on the file of the VIII Additional Judge, City Civil Court, Chennai. For Appellant : Mr. S.Nageswaran for M/s.Nageswaran and Narichania. For Respondent : Mr. R.Karunakaran JUDGMENT This Appeal has been preferred against the Decree and Judgment in O.S.No.135 of 1996 on the file of the VIII Additional Judge, City Civil Court, Chennai. The Defendant, who has lost her defence before the trial Court, is the appellant herein. 2. The averments in the plaint in brief relevant for the purpose of this case are as follows: 2(i) The Defendant is the owner of the plaint schedule property. On 05.03.1989 she entered into an agreement with the plaint for sale in respect of a part of ground floor of the said property described in schedule 'B' to the plaint together with 1/3 undivided share in the property described in schedule 'A' for Rs.3,43,200/-. The original of the agreement has been filed by the plaintiff. The plaintiff paid an advance of Rs.1,30,000/- on 5.3.1989 and a further advance of Rs.20,000 on 3.4.1989. The plaintiff also orally agreed to sell to the Defendant an additional area of 132.25 sq.ft in the ground floor and ½ of undivided share and the plaintiff paid Rs.46,000/- for the sale of the additional property. The plaintiff on 10.11.1989 sent a draft sale deed for 847.25 sq.ft and ½ undivided share. The Defendant went back on her promise to sell the additional area in the ground floor and treating the advance of https://hcservices.ecourts.gov.in/hcservices/ Rs.46,000/- for this additional area as advance under the original written agreement and sent her draft sale deed for approval on 4.12.1989. The plaintiff has accepted this way of treating Rs.46,000/- as advance under the original agreement. 2(ii) Again on 15.12.1989 the Defendant sent another draft sale deed which is the same as the first draft except for deletion of clauses 18 and 27 and minor changes. Since these deleted clauses referred to clauses 17 and 24 of the agreement of sale the plaintiff approved the first draft which contained these clauses. But the Defendant wrote on 27.12.1989 insisting on the approval of her second draft on or before 31.12.1989. 2(iii) The plaintiff on 28.12.1989 sent the second draft sale deed approving it. By her counsel's letter dated 30.12.1989 she gave sufficient time to the Defendant to get the income tax clearance certificate for registering the sale deed. By letter dated 3.1.1990 the Defendant cancelled the agreement and refused to sell the property to the plaintiff. 2(iv) The plaintiff was ever ready and willing to buy the property. She paid advance as demanded and borrowed Rs.1,00,000/- from the Life Insurance Corporation of India to pay the Defendant. She was at all times and now also ready to pay the balance of Rs.1,47,200/- towards the purchase money of the said property to the Defendant. She was ready to get the approved draft engrossed on non-judicial stamp papers. 2(v) The Defendant has not executed any instrument of transfer. The Defendant presumably had second thoughts and took all possible steps to avoid the sale. The defendant's husband even met the official of the Life Insurance Corporation personally and tried in dubious ways to prevent the sanction of the loan to the Plaintiff. Time was not of the essence of the contract. There was a tenant in the portion to be sold to the plaintiff. Vacant possession was to be given at the time of sale. The Defendant did not know when the tenant would vacate but hoped the tenant would vacate by 31.12.1989 and promised possession by that day. If possession could not be granted by that day the Defendant undertook to pay interest at 18% on the advance given. According to her she obtained possession on 03.12.1989 only. The refusal of the Defendant to sell is not legal and valid. Hence the plaintiff has filed the suit for specific performance of the contract. 3. The Defendant in his written statement would contend as follows:- 3(i) In 'B' schedule property to the plaint the extent is wrongly mentioned as 735 sq.ft whereas as per the agreement the extent agreed to be sold is only 715 sq.ft. The plaintiff has paid an advance of Rs.1,30,000/- on 5.3.1989, but he has paid only Rs.10,000/- on 3.4.1989 and another Rs.10,000/- was paid only on 4.5.1989. The Defendant has not orally agreed to sell an additional area of 132.25 sq.ft in the ground floor ad one half undivided share. Absolutely there is no oral agreement of sale as alleged by the plaintiff. This Defendant has not received Rs.46,000/- towards the sale of additional property. A sum of rs.46,000/- was paid by the plaintiff only towards the advance for the https://hcservices.ecourts.gov.in/hcservices/ sale of the suit property and not for the bed room. The amounts were paid on three occasions as follows: i). Rs.15,000/- on 3.7.1989 ii) Rs.15,000/- on 6.7.1989 iii)Rs.16,000/- on 16.8.1989. Even receipt issued by the Defendant reads as follows:- "Received on 3.7.1989, rupees fifteen thousand only from Mrs.Nashreen Ahmed towards payment for ground floor Flat Portion at 193, Loyds Road, Gopalapuram, Madras-86" The receipt given by the Defendant on the second occasion reads as follows:- "Received on 6.7.1989 rupees fifteen thousand only from Mrs.Nashreen Ahmed towards payment for ground floor Flat Portion at No.193, Lloyds Road, Madras-86". On the third occasion only the date and amount were not noted, eventhough a separate receipt was given to the Plaintiff. As stated in Clause 17 of the agreement, the portion in the ground floor retained by the Defendant is the bedroom. The receipt refer to the Flat Portion and not the bedroom. But still the plaintiff concocted a false case of oral agreement in respect of the bedroom and tried to snatch the bedroom portion and extra land share also and that too for the very same price quoted in the agreement of sale for the Flat portion. Further the plaintiff claimed exclusive right to use the portion marked "A' in the plan eventhough she was given only limited right to park her vehicles in the said place. 3(ii) The Defendant denies the averments in the plaint to the effect that she went back on her promise to sell the additional area in the ground floor and treating the advance of Rs.46,000/- to the additional area as advance under the original written agreement and sent her draft sale deed for approval, and that the plaintiff accepted this way of treating Rs.46,000/- as advance under the original agreement. The plaintiff sent a draft sale deed for 847.25 sq.ft and half of the undivided share in the land. On seeing the draft sale deed, the Defendant was shocked due to the totally false averments in the draft sale deed. Solely with a view to grab defendant's property for the very same sale price of Rs.3,43,200/- which was agreed as the price for only 715 sq.ft of plinth area and 1/3 undivided share, under the agreement of sale dated 5.3.1989. If the sum of Rs.46,000/- was given separately as advance for the additional area viz. The bedroom and additional share of land, then the sale price could never be Rs.3,43,200/-. A reading of the draft agreement of sale sent by the Plaintiff to the Defendant would prove beyond doubt that the plaintiff is acting malafide and dishonestly with a view to grab at the defendant's property by deceitful means. Hence the plaintiff who has not come forward with clean hands to seek the equitable remedy of specific performance is not entitled for the said remedy in the circumstacnes of this case. 3(iii) The Defendant states that notwithstanding the above attempted fraud, the plaintiff had also falsely filed up one of the blank printed forms signed by the Defendant to be given to the LIC as if the Defendant had agreed to sell 860 sq.ft. When this Defendant protested, https://hcservices.ecourts.gov.in/hcservices/ she corrected it to 715 sq.ft. By this act, the plaintiff had not only tried to create false records against the Defendant, but also tried to mislead the LIC and to get loan. The sequence of events and the correspondence between her and the plaintiff have not been clearly stated. A perusal of the correspondence would clearly prove that the plaintiff had not approved the drafts sent by the Defendant and had been dragging her feet for more than two weeks. Only at the last minute the plaintiff sent a letter to the Defendant which reached her on 30.12.1989 that she is approving the draft of the Defendant. By that time, the time fixed for the completion of the transaction viz. 31.12.1989, has almost come to an end. In this respect the Defendant submits that it has been agreed that time is the essence of the contract. In fact clause 3 of the agreement specifically states as follows:- "The sale shall be completed not later than 31st December, 1989, and on delivery of vacant possession" The Defendant was keeping the vacant possession of the suit property ready for sale. The plaintiff was never ready and willing to buy the suit property as per the agreement of sale. Instead she laid malicious claim over an extent, which she is not entitled to and it cannot be said that the plaintiff was ever ready to purchase the property as per the agreement of sale. The Defendant was very reasonable and it is the act of the plaintiff which forced the defendant to cancel the agreement. It is false to allege that the defendant's husband met the officials of the LIC and tried to prevent the sanction of loan to the plaintiff. 3(iv) It is false to state that time was not the essence of the contract. As stated above it is specifically agreed between the parties that time is the essence of the contract. In fact only on that basis, long time was fixed (nearly 10 months) for the performance of the contract. Having dragged on the matter till the end, the plaintiff is not entitled to say that time is not the essence of the contract. The Defendant had kept the suit property vacant from 3.12.1989 itself and the plaintiff was also informed by the Defendant about this fact, by her letter dated 15.12.1989. Hence, handing over vacant possession was not an issue at all as is sought to be made out by the plaintiff. The plaintiff is also entitled to get any compensation and for specific performance in law, justice and equity. The plaintiff fraudulently laid claim over an extent of 847.25 sq.ft and ½ share in the land for the very same sale price, totally contrary to the terms of the agreement of sale. She has misrepresented to the LIC as if the Defendant has agreed to sell 847.25 sq.ft. Hence, the plaintiff who has not come forward with clean hands is not entitled to the equitable remedy of specific performance. By claiming a large extent of property, she is not entitled to the relief under the agreement. The plaintiff has violated one of the essential terms of the contract. She has also acted at variance with or in subversion of the relation intended to be established by the contract. Hence under Section 16(b) of the Specific Relief Act, the plaintiff is not entitled for specific performance of the contract. 3(v) The plaintiff at the first instance was not ready and willing to purchase the suit property as per the agreement of sale. The https://hcservices.ecourts.gov.in/hcservices/ agreement relates to a portion in the ground floor and an undivided 1/3 share in the land. The Defendant and her family are residing in the first floor. The defendant's husband is using the ground floor bedroom portion for his office purpose. The plaintiff has acted dishonestly and tried to cheat the Defendant by trying to knock off the bedroom also with an extra share in the land without paying any amount. After this and after the transaction fell through, the relationship between the plaintiff and defendant became strained and not cordial. Hence, if the plaintiff is given the relief of specific performance, and if the plaintiff occupies the ground floor with undivided interest in the 1/3rd share in the land, it will lead to perennial problem for the Defendant. As such the performance of the contract would involve heavy hardship on the Defendant which she did not forsee, whereas its non-performance would involve no such hardship on the plaintiff. In the light of Section 20(b) of the Specific Relief Act, the discretion of this Court may not be exercised in favour of the plaintiff. The suit is vexatious and not maintainable in law and there is no cause of action. Hence the suit is liable to be dismissed. 4. On the above pleading the trial Court has framed five issues and one additional issue and after careful scrutiny of the documentary and oral evidence let in by both the parties, has come to a conclusion that the plaintiff is entitled to a decree for specific performance of contract on the basis of Ex.A.2-sale agreement dated 5.3.1989 in respect of the plaint schedule property, giving two months time to execute the sale deed and further giving one month time for the plaintiff to deposit the balance of sale consideration of Rs.1,47,200/-. Aggrieved by the findings of the learned trial Judge, the Defendant has preferred this appeal. 5. Now the point for determination in this appeal is whether the plaintiff was always ready and willing to perform his part of the contract in terms of Ex.A.2-sale agreement dated 5.3.1989 in respect of the plaint schedule property or whether there is a personal bar for the plaintiff under Section 16(c) of the Specific Relief Act, 1963, to ask for the relief of specific performance since she has deviated from the terms of the contract? 6. The point:- 6(i) The learned counsel appearing for the appellant would attack the Judgment of the learned trial Judge on the following grounds: As against the terms and conditions of Ex.A.2-sale deed the plaintiff has asked for additional extent of 847.25 sq.ft and claimed one half share in the suit property as against the original agreement for sale in respect of 715 sq.ft and 1/3 undivided share in the land. The learned counsel further contend that as per Section 16(b) of the Specific Relief Act, since the plaintiff has deviated and violated the essential terms of the contract and also acted willfully at variance with the terms of the contract, she is not entitled to the relief asked for in the plaint. https://hcservices.ecourts.gov.in/hcservices/ 6(ii) Ex.A.2 is the sale agreement in respect of the plaint schedule property dated 5.3.1989 entered into between the plaintiff and the Defendant in respect of 1/3 undivided share in the land described in 'B' Schedule to Ex.A.2 along with a part of ground floor at an area of 715 sq.ft. The sale consideration under Ex.A.2 is Rs.3,43,200/- and on the date of Ex.A.2 itself an advance of Rs.1,30,000/- was paid by way of cheque drawn in Bank of Baroda bearing No.017979 dated 5.3.1989. Both the parties have agreed to complete the sale not latter than 31.12.1989 and on delivery of vacant possession. The plaintiff in the plaint has averred in paragraph 5 and 6 that there was an oral agreement between the parties to sell an additional area of 132.25 sq.ft in the ground floor and one half undivided share and that on the said basis Rs.46,000/- was paid towards advance. At paragraph 6 of the amended plaint the plaintiff has further stated that a draft sale deed for 847/25 sq.ft (715 sq.ft + 132.25 sq.ft) and one half undivided share was sent to the Defendant on 10.11.1989, but the Defendant went back on her promise to sell the additional area in the ground floor and treating the advance of Rs.46,000/- paid by the plaintiff in respect of the additional area, towards payment for the original written agreement by the Defendant and that the plaintiff has accepted this way of treating Rs.46,000/- as advance under the original agreement. Except this averments in the amended plaint in paragraph 5 & 6 the plaintiff has not claimed any inch of land over and above the agreed area and undivided 1/3 share in the suit property as per the original sale agreement under Ex.A.2-. Even in the relief column at paragraph 17 and also in the plaint schedule the plaintiff has specifically stated that the relief asked for is only in respect of 715 sq.ft and 1/3 undivided share in the plaint schedule property in terms of Ex.A.2-sale agreement. 6(iii) The learned counsel appearing for the appellant relying on 1976(1) MLJ 243 (Ramaswamy Gounder Vs. K.M.Venkatachalam and others), contend that the false allegation in the plaint will not entitle the plaintiff to ask for the relief of specific performance of the contract. The short facts in the above said dictum is that: "The tenth Defendant in O.S.No.93 of 1968 on the file of the Court of the Subordinate Judge of Salem is the appellant herein. Admittedly respondents two to ten herein entered into an agreement for the sale of certain immovable property for Rs.15,500 under Ex.A.1 dated 14th October, 1967 in favour of two individuals. The first respondent herein obtained an assignment of that agreement from those two individuals under Ex.A.2 dated 25th October, 1967. It is on the strength of this assignment that the first respondent instituted the present suit for specific performance of the agreement under Ex.A.1. The appellant herein, who was the tenth Defendant in the suit, was the purchaser of 2/3 of the suit property under Ex.B.9 dated 27th February, 1968 from Defendants 1 and 3. According to the first respondent, the appellant herein was a subsequent transferee with knowledge of the existence of the agreement, Ex.A.1, and therefore the sale in his favour would not be binding on him (first respondent). The first respondent stated in his plaint https://hcservices.ecourts.gov.in/hcservices/ that an advance of Rs.1,500/- was paid on the date of Ex.A.1, that the balance of consideration to be paid was Rs.14,000/- and that under Ex.A.1 five months' time was available for executing and registering the sale deed. According to the first respondent, after the assignemnt dated 25th October, 1967, he had been pressing Defendants 1 to 9 at various times to receive the balance of sale price of Rs.14,00 and to execute the sale deed at his cost, tendered the balance of the sale price of Rs.14,000 to Defendants 1 to 9 on 14th February, 1968 and requested them to execute the sale deed in his name at his cost in respect of the suit properties after receiving the balance of the sale price, but they evaded to execute the sale deed and delayed the matter. His further case was that even prior to 14th February, 1968, he tendered the balance of the sale price on many occasions and requested them to execute the sale deed after receiving the balance of the sale price and that they delayed and evaded to execute the sale deed. His further case in the plaint was that on 16th February, 1968 he and his assignors had issued a notice to Defendants 1,2,3,5 and 6 calling upon them to come to Petanaickanpalayam Sub Registrar's office on 24th February, 1968 with defendants 4 and 7 to 9 and then to execute and register a proper sale deed in favour of the first respondent, after receiving the balance of the sale price of Rs.14,000 at his cot. The Defendants 1 to 3, 5 and 6 had received the said notice. The first respondent went to Pethanickenpalayam Sub-Registrar's Officer on 24th February, 1968 within whose jurisdiction the suit properties were situated for the purpose of registration with necessary stamp papers and with the balance of the purchase money of Rs.14,000/- for payment of Defendants 1 to 9. The first respondent had gone to the sub-Registrar's Office on 24th February, 1968, with one Rama Gounder, his son Perianna Gounder and one Annaswami and Chinna Pillai, Defendant 1, 3 and 6 came to the Sub-REgistrar's office on the said date and they evaded to execute the sale deed in favour of the first respondent. The subsequent request made by the appellant Written Statement also turned down. But the respondents demanded an extra amount of Rs.500/-. Hence the first respondent issued suit notice to Defendants 1 to 3, 5 and 6. In the reply notice, the Defendants made false allegations fixing the very date of 24th February, 1968, fixed by the first respondent at an unreasonable place for the execution of the sale deed with a view to cover up their default and to evade the execution of the sale deed in favour of the first respondent. The sixth Defendant in his reply notice has stated that he was present on 24th February 1968 at the Sub-Registrar's Officer for execution of the sale deed. The appellant's contention was rejected for the following reasons by the trial judge of this Court: A) In the reply notice the defendants stated that they would be waiting at the office of the counsel on https://hcservices.ecourts.gov.in/hcservices/ 24th February, 1968 and asking the first respondent also to come there. In the plaint the first respondent stated that such a notice had been received, but in his evidence he has stated that by 24.2.1968 such a notice was not received and he did not verify his counsel whether such a reply has been received or not. This is a false deposition of the appellant before the trial Court. (B) According to the appellant he had asked the Defendants to come to the Sub-Registrar Office on 24.2.1968, but they evaded to execute the sale deed in favour of the first respondent/appellant. As against this, the case of the first respondent was that after the receipt of the notice under Ex.A.6 they sent reply under Ex.A.9, dated 22.2.1968 through counsel stating that it would be proper to have a draft settled before executing the sale deed, that therefore the first respondent should go to the office of the counsel who sent the notice on behalf of the Defendants, on 24.2.1968, where the Defendants would be waiting from 9 am till 12 noon and that, if the first respondetn wanted, they were prepared to go over to the office of his counsel. According to them, having waited in the office of their counsel and the first respondent not having turned up, they went to the Sub-Registrar's officer at pethanickenpalayam and waited there till 5 p.m. But the first respondent did not turn up at the Sub-Registrar's office. Evidence was produced by both the parties to show that they were present at the Sub- Registrar's office. Exhibit A.8 is a registration copy of a mortgage deed for Rs.7,000/- executed by the first respondent in favour of one Perianna Gounder on 24th February, 1969 and registered on that day, showing that the first respondent went to the Sub-Registrar's office at Pethanaickenpalayam, on 24.2.1968. On the other hand, Ex.B.6 dated 24.2.1968 is the registration copy of a mortgage deed for Rs.300 executed by one Periasami Naicker in favour of Ramaswami, showing that D.W.1 was an attesting witness in that case before the Sub- Registrar. Therefore, the evidence clearly established that both the parties were present at the Sub- Registrar's office, though in the pleadings the first respondent stated that the other Defendant evaded executing the sale deed. In the course of his evidence as P.W.3, the first respondent completely went back on his pleadings in the plaint. He categorically stated in his evidence that Defendants 1, 3 and 6 did not come to the Sub-Registrar's office, but evaded executing the sale deed, he went to the extent of stating that