IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.09.2009 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL A.S.NO.6 of 2001 And C.M.P.No.897 of 2001 P. Velumani ... Appellant/Defendant Vs. 1.K.A. Noorjahan Son of M.M. Ahmed Hussain 324, P.K. Chetty Street Fort, Coimbatore – 1. 2.M.M. Ahmed Hussain Son of M.V. Meeran, 324, P.K. Chetty Street Fort, Coimbatore – 1. ... Respondents/Plaintiffs Appeal suit filed under Section 96 of the Civil Procedure Code, against the judgment and decree dated 25.09.2000 made in O.S.No.980 of 1995 on the file of IV Additional Sub Judge, Coimbatore. For Appellant : Mr. T.V. Ramanujan Senior Counsel For M/s. Star Associates For Respondents: Mr. M. Aravindan For M/s. C.T.Subbiah J U D G M E N T The appellant/defendant has preferred this appeal as against the Judgment and Decree dated 25.09.2000 in O.S. No.980 of 1995 on the file of Learned IV Additional Sub-Court, Coimbatore. 2. The necessary germane facts of the respondents/plaintiff's case are as follows: "The plaint schedule properties absolutely belongs to the appellant/defendant by virtue of registered settlement deed dated 04.02.1959 bearing document No.165 of 1959. The 5 acres and 39 cents, being the extent of properties is situated in Kuniamuthur https://hcservices.ecourts.gov.in/hcservices/ village, Coimbatore South Taluk in Coimbatore District which runs as follows: 1.S.F.No.212/2 : Dry AC 1.01 2. S.F.No.212/1 : Dry AC 0.50 3. S.F.No.213/1 : Dry AC 0.30 4. S.F.No.213/3 : Dry AC 1.34 5.S.F.No.215/3 : Dry AC 0.45 6. S.F.No.693/2 : Dry AC 1.79 7.S.F.No.214 : 0.90 in this Southern half AC 0.45 ----------- Total AC 5.39 ----------- 3. As the agricultural operations of the defendant was not successful he was proposing to sell the properties which are situated on the periphery of the Coimbatore City and hence potential for laying the respondents/plaintiffs' on 05.02.1992 had entered into an agreement of sale with the appellant/defendant towards the purchase of the total 5 acres and 26 cents of land belonging to the appellant/defendant one in favour of the second respondent/second plaintiff in respect of an extent of 4 acres and 3 cents and another to an extent of 1.26 acres in favour of the first respondent/first plaintiff. An extent of 4 acres and 3 cents by means of an agreement dated 05.02.1992 in favour of the second respondent/second plaintiff is in respect of agricultural lands in entirety. An extent of 1 acre 26 cents in S.F.No.212/2 comprises of a bungalow, wall, motor pumpset, service connection, 7 anganams of crushershed, cow shed, farm shed, coconut trees and all other rights and appurtenances. The dominant intention of the parties was that the entire transactions of the sale agreement is only for the purpose of laying out the entire properties into house sites and resale. Therefore, it was never intended or perceived nor it could ever be intended that the time was the essence of contract. 4. It was further agreed that the second respondent/second plaintiff who initially performed his contract of sale as per first agreement by purchasing the 4.03 acres of lands and after completion of the entire sale only, the first respondent/first plaintiff had the right to claim the execution of the sale of the portion of the property under agreement in respect of S.F.No.212.2 including the bungalow bearing D.No.375-A, Well, Kalam bearing D.No.375 Farm Shed, Crusher Shed, Cow Shed etc., and all other appurtenances with an option to purchase the rest of the agreed properties situated in S.F.No.212 /2 (Western portion, S.F.No.212/1 and 213/1). Hence a Varthamanam agreement was executed on 05.02.1992 itself. The second respondent/second plaintiff was put in possession of the properties proposed to be purchased by him as per his agreement and he had https://hcservices.ecourts.gov.in/hcservices/ developed the same into house sites by spending considerable amount. The appellant/defendant during the negotiation and execution of the agreement had not diverged the hut dwellers on the western sides who were actually an illegal encroachers of the road margin pertaining to the highways department. The respondents/plaintiffs' believed that they were occupying portions of the property under the defendant and the property would be conveyed only after vacating them by the appellant/defendant himself. When the respondents/plaintiffs' commenced development portions in 4 acres and 3 cents, it was understood that the hut dwellers were really encroachers and they could not be evacuated easily exerting strenuous efforts. The second respondent/plaintiff was constrained to spend a sum of Rs.3,50,000/- for evacuating the 15 hut dwellers on the western side border of the properties mentioned in the agreement. In fact, the second respondent/second plaintiff purchased an alternate land near Kovaipudar and the encroachers were shifted to that place and depending upon the size of the hut a compensation of Rs.10,000 – Rs. 25,000/- was given to them. 5. Even though the agreements satisfied the time as 18 months, it was never agreed upon that, time was the essence of contract. The respondents/plaintiff's were always ready and willing to perform their part of the contract as per agreements but the appellant/defendant all of a sudden issued a notice dated 29.07.1993 to them individually purporting to cancel the agreements of sale as if they had failed to fulfill their part of the contract. The respondents/plaintiffs' issued replies dated 03.08.1993 and also send a telegram explaining the facts and the evidence that transpired between the parties inter-alia bringing to the notice of the appellant/defendant that an extent of 1 acre and 89 cents of agricultural land under the agreement had been purchased as per six separate sale deeds and the readiness and willingness to purchase the balance on 05.08.1993. The second respondent/second plaintiff made it clear that he was always ready and willing to perform his part of the contract. The first respondent/first plaintiff also send a reply and issued a telegram expressing her readiness and willingness to perform her part of the contract which was depending upon the completion and performance of the sale agreement between the second respondent/second plaintiff and the appellant/defendant. 6. By means of a telegram the respondents/plaintiffs' had apprised the appellant/defendant that they would be ready with the balance of purchase money payable to the appellant/defendant as per the two agreements fully prepared for obtaining the sales in the Joint Registrar No.2, Raja Street, Coimbatore – 1 from morning 10 am. onwards among other things requesting the appellant/defendant to come to the registrars office to receive the balance of purchase money and to execute the sale deeds and both of them in fact were waiting in the said office on 05.08.1993 from 10 am. to 5.30 pm. in the evening. https://hcservices.ecourts.gov.in/hcservices/ Further, the appellant/defendant was aware that by some means that the respondent/plaintiff were waiting in the registrars office had not appeared before the plaintiffs', but issued a rejoinder dated 07.08.1993 mentioning that the respondents/plaintiffs' were not possessing requisite funds to complete the transactions and that he was waiting at the Sub-Registrars office on 4th and 5th August, 1993 and that the respondents/plaintiffs' had not turned up. The said allegation of the appellant/defendant was a frivolous and concocted. The respondents/plaintiffs' do have ample proof that they were waiting in the Registrars office for the appellant/defendant on 05.03.1993 and they could not be blamed since there was no intimation from appellant/defendant that they should come to Registrars office on 04.03.1993. 7. The respondents/plaintiffs' issued a reply to the rejoinder dated 07.08.1993 repudiating the contentions of appellant/defendant and also denied his right to cancel the agreement which was partly performed. Thereafter, at the mediation of one Babu (being a close relative of appellant), the appellant came forward to execute the remainder of the properties as per agreement dated 05.02.1993 in favour of the second respondent/second plaintiff first, and thus, the agreement in favour of the second respondent/second plaintiff was completed. 8. The second respondent/second plaintiff had purchased the agricultural lands bearing the entire extent of 4 acres and 3 cents by virtue of the agreement and also by means of payment of the entire sale consideration of Rs.22,97,100/- to the appellant/defendant under various sale deeds. However, the appellant/defendant was delaying the execution of the sale deeds pertaining to an extent of 7 cents alone in favour of the second respondent/second plaintiff. 9.Till the performance of sale agreement in favour of second respondent/second plaintiff was completed the first respondent/first plaintiff could not make any demand in regard to the execution of the sale deed of the entire suit property inspite of her readiness and willingness to perform her part of the contract. Inasmuch as the agreement the performance in favour of the second respondent/second plaintiff is completed in full the first respondent/ first plaintiff had no right to demand for the execution of the sale deed of the properties in her favour by the appellant/defendant. 10. The respondent/plaintiffs' had made clear that they were always ready and willing to perform their part of the contract by purchasing the properties as per agreement in favour of the first respondent/plaintiff but the appellant/defendant was endeavoring to wriggle out of the contract and fail to respond whenever demanded and therefore a legal notice dated 04.02.1995 was issued to the appellant/defendant by the first respondent/plaintiff wherein she https://hcservices.ecourts.gov.in/hcservices/ expressed her readiness and willingness and the balance of sale consideration was kept ready but the appellant/defendant send a reply dated 13.02.1995 stating that he was not willing to execute the sale deed for the present. The appellant/defendant was attempting to retain 1 acre and 23 cents of lands together with the house and other appurtenances which form part of the total sale consideration of Rs.22,97,100/- for the 4 acres 3 cents vacant agricultural lands which were agreed to between the parties. 11. The Varthamanam agreement dated 05.02.1992 was therefore operative from 14.12.1994 itself when the second respondent/second plaintiff paid the entire sale consideration to the appellant. Therefore, the appellant/defendant was duty bound to execute the sale of the suit properties in favour of the first respondent/plaintiff upon receiving the remaining sale consideration of Rs.7,18,200/- with her and whenever she was called upon to deposit the said amount into Court she would deposit it. 12. The second respondent/second plaintiff was only a formal party and no relief was claimed separately or jointly in his favour inasmuch as the suit agreement was partially dependent on the completion of an agreement dated 05.02.1992 in his favour. The suit was filed within 3 years from the date of refusal of the appellant/defendant to execute the sale deed. Hence the suit was filed praying for the relief of directing the appellant/defendant to execute the sale deed in respect of the suit properties and register the same in favour of the first respondent/plaintiff and in default the Court was to execute the sale deed and register it. 13. In the written statement filed by the appellant/defendant averments have been made to the effect that at no point of time during the negotiation or at the time of entering into an agreement it has been suggested by the respondents/plaintiffs' or anyone on behalf of them that the properties have been intended to be divided into house sites and further, the time has been the essence of contract and in this regard a legal notice dated 29.07.1993 has been issued by the appellant/defendant to the second respondent/second plaintiff and since he has not been ready and willing to perform his part of the contract by paying the remaining sale consideration he has committed a breach of the agreement and moreover, it is not correct to state that the second respondent/second plaintiff who has performed his part of the contract of sale under his agreement firstly by purchasing 4 acres and 3 cents and only after the completion of the entire sale has the right to claim execution of the sale of the property under the agreement pertaining to S.F.No.212/2 including the bungalow bearing D.No.375-A, Well, Kalam bearing D.No.375 Farm Shed, Crusher Shed, Cow Shed etc., and all the appurtenance. https://hcservices.ecourts.gov.in/hcservices/ 14. The further pleas of the appellant/defendant have been that the Varthamanam letter dated 05.02.1992 stated that the sale deed in respect of the D.No.375-A, Well, Kalam bearing D.No.375 Farm Shed, Crusher Shed, Cow Shed, coconut trees and other appurtenance would be executed after the completion of the sale of the rest of the property including the property covered by the agreement with the first respondent/first plaintiff and the two agreements are separate and they are not connected in anyway except that the house and the appurtenance thereof should be sold last and both the agreements stipulated the period for performance i.e, before 05.08.1993 and based on the Varthamanam letter. The plaintiffs' trying to take umbrage for the defaults and their inability to form their part of contract and moreover, the appellant/defendant has never parted with the possession of the property and that the properties have never been divided into house sites and it continued to be an agricultural property and also that the properties have been agreed to be sold as is where is condition and only after the inspection of the property made by the second respondent/second plaintiff the property has been agreed to be purchased and the second plaintiff never spent even a single pie for vacating the encroachers and in fact the appellant/defendant issued a legal notice on 29.07.1993 calling upon the respondents/plaintiffs to complete the transaction within the stipulated time reminding that time has been the essence of contract and the respondents/plaintiffs' have not been ready with cash to pay the remaining sale consideration and as a matter of fact the appellant/defendant has been to Sub-Registrar office on 05.08.1993 at Raja Street, Chennai, at 09.30 am. and waiting till 5 pm, but the respondentsplaintiffs' never turned up till 5 pm. 15. Apart from the above, the stand of the appellant/defendant is that after the issuance of legal notice on 29.07.1993 the agreement has never been extended and no conveyance has been made in favour of the plaintiffs or their nominees and also that the appellant/defendant has sold the properties to third parties after the expiry of the time in regard to the performance of the agreement and the said sales have been effected with the knowledge of the respondents/plaintiffs' and also that the second respondent/second plaintiff has adduced all the sale deeds besides the plaintiffs' son himself has purchased 32 cents of vacant land from the appellant/defendant and there is absolutely no cause of action for the suit. 16. On the basis of the pleadings mentioned supra the trial Court altogether framed three issues on the side of respondents/plaintiffs' witnesses P.W. 1 to 4 were examined and Exs. A1 to A30 were marked and on the side of appellant/defendant witness D.W.1 was examined and Exs. B1 to B32 were marked. 17. On an appreciation of oral and documentary evidence and upon https://hcservices.ecourts.gov.in/hcservices/ perusing the available material evidence on record the trial Court resultantly directed the first respondent/first plaintiff to deposit the balance sale consideration into Court and upon such deposit being made in favour of the first respondent/first plaintiff the appellant/defendant is to execute the sale deed within a month from the date of passing of the judgment and in default the plaintiffs have been directed to approach the Court in regard to the execution of sale deed by the Court on behalf of the appellant/defendant. 18. The points that arises for determination in this appeal are:- 1.Whether eighteen months time specified in Ex.A2 agreement dater 05.02.1992 entered into between the appellant/defendant and the first respondent/plaintiff is the essence of contract ? 2.Whether possession has been handed over by the appellant/defendant to the second respondent/second plaintiff in pursuance Ex.A1 agreement dated 05.02.1992 ? 3.Whether the appellant/plaintiff is to execute the sale deed of the suit properties in favour of the first respondent/first plaintiff ? 19. Contentions, Discussions and Findings of point Nos.1 to 3: According to the learned counsel for the appellant/defendant the appellant has entered into different agreement on the same date 05.02.1992 and Ex.A1 agreement dated 05.02.1992 has been entered into with the second respondent/second plaintiff in regard to an extent of 4 acres and 3 cents as mentioned in the schedule and present suit has nothing to do with Ex.A1 agreement dated 05.02.1992 and the other agreement Ex.A2 dated 05.02.1992 has been entered into between the appellant/defendant and the first respondent/first plaintiff in respect of an extent of 1 acre and 26 cents being the subject matter of the suit property and the buildings thereon and the stand of the respondents/plaintiff's is that as per Ex.A3 muchilika dated 05.02.1992 the suit agreement can be executed only after fulfillment of the obligations as per Ex.A1 agreement dated 05.02.1992 entered into between the appellant and the second respondent/second plaintiff and this plea is contrary to the averments made in Ex.A3 muchilika and there is no evidence at all in the case in regard to the purported readiness and willingness on the part of the first respondent/first plaintiff (wife of the second respondent/second plaintiff) who has not been examined and as a matter of fact the second respondent/second plaintiff as PW.1 before the trial Court in his evidence has not deposed that the first respondent/first plaintiff has been ready and willing to perform her part of the https://hcservices.ecourts.gov.in/hcservices/ contract and that she has been possessing the money ready for completing the transactions and in this aspect the acceptance of evidence of PW.1 by the trial Court in favour of the first respondent/first plaintiff (wife) is clearly unsustainable and further the respondents/plaintiffs' have not come to Court with clean hands and therefore the grant of relief of specific performance as prayed for in the suit by the trial Court is not correct because of the fact that the relief of specific performance is undoubtedly an equitable and discretionary remedy in law and moreover, Ex.A2 agreement dated 05.02.1992 relates to the first respondent/first plaintiff and Ex.A1 agreement dated 05.02.1992 in favour of the second respondent/second plaintiff is not the subject matter of the suit and that the second respondent/second plaintiff has falsely contended that as if the huts are on the suit property and also that when the first respondent/first plaintiff has come out with the specific plea with the right to issue in respect of Ex.A2 agreement dated 05.02.1992 will arise only after the second respondent/second plaintiff perform his contract in respect of 4 acres and 3 cents covered under Ex.A1 agreement dated 05.02.1992 and on completion of the entire sale of the said extent of 4 acres and 3 cents etc. The present suit filed by the respondent/plaintiff is an unsustainable one even as per the respondents/plaintiffs' own case. 20. Continuing further, the learned counsel for the appellant submits that the second respondent/second plaintiff has only been permitted to measure the lands and prepare the lay out plan etc., by entering into the property, and the possession always continued with the appellant/defendant who has been admittedly cultivating the suit property by raising sugar cane and other crops and that he was also supplying sugar cane to Bannariamman Sugar Company and other adangals also prove that the appellant/defendant has been alone in the possession of the property and this has been considered by PW.1 (second plaintiff) and in commercial transactions of the suit nature it must be construed that time is the essence of contract and in any evidence even whether time is not the essence of the contract it is open to the parties while issuing the notice to make time as the essence and thereafter any plea that time is not the essence of contract cannot be raised and it is not open to the parties to adduce any oral evidence in regard to the construction of a document as per Section 91 of the Indian Evidence Act, and there have been no hut dwellers in the property as per Ex.A1 agreement dated 05.02.1992 and as a matter of fact the hut dwellers have been only on the highways and the amount alleged to have been spend by the second respondent/second plaintiffs' for displacing them cannot be construed as discharging any obligation in respect of the suit agreement Ex.A2 or Ex.A1 agreement dated 05.02.1992 and moreover, in both the agreement Exs.A1 and A2 dated 05.02.1992 there is no reference to the hut dwellers and if really the removal of hut dewellers has been a part of the obligation under the contract then the same might have https://hcservices.ecourts.gov.in/hcservices/ been made mention of in the agreement itself and in the absence of the same the respondents/plaintiffs have been precluded from advancing any contention so as to seek an equity and the reading of the Ex.A3 Varthamanam agreement dated 05.02.1992 shows that the execution of the sale deed and delivery of possession was postponed only in regard to the constructed portion till the completion of the obligation under Ex.A1 as per agreement dated 05.02.1992 and indeed this suit filed by the respondents/plaintiffs' is unsustainable because of the reasons that obligations as per Ex.A1 dated 05.02.1992 have not been completed. 21. Besides the above, expatiating his arguments, the learned counsel for the appellant contends that it is not open to the trial Court to render a finding that a period of 18 months will be available to the first respondent/first plaintiff were 14.12.1994, contrary to the case of the respondents/plaintiffs' and per contra a reading of the plaint will go to show that all the obligations in respect of the suit property as per Ex.A2 agreement dated 05.02.1992 has to be performed on or before 05.08.1993 and that the first respondent/first plaintiff has been ready and willing to purchase the suit property on 05.08.1993 and moreover, a telegram has been send by the first respondent/first plaintiff that the respondents/plaintiffs' have been ready with the balance of purchase sum payable to the appellant/defendant as per the two agreements dated 05.08.1993, and also the fact remains that the second respondent/second plaintiff has purchased only an extent of 1 acres and 89 cents till 01.02.1993 in regard to the properties covered under Ex.A1 agreement and he has failed to purchase the remaining extent of property and there is no explanation for not completing the transactions pertaining to the 7 cents of lands and as a matter of fact, there is no pleading that an extent of 44 cents has been covered by road and as such no sale has taken place and the evidence of appellant/DW.1 is to the effect that the sales have been executed subsequent to 01.02.1983 not in pursuance of Ex.A1 agreement dated 05.02.1992 and they are independent transactions and if the two agreements dated 05.02.1992 are inter-connected really and the respindent/plaintiffs are ready and willing to fulfill their obligations then, they have to prove that they have been possessing a sum of Rs.6,18,000/- available with them on that date inasmuch as only an extent of 1 acre and 89 cents has been sold from and out of the extent covered under Ex.A1 agreement dated 05.02.1992, till 05.08.1993. 22. Added further, the learned counsel for the appellant/defendant submits that the non-examination of the first respondent/first plaintiff as a witness is a fatal one to the case of the respondents/plaintiffs' and as a matter of fact the first respondent/first plaintiff has been present on 05.08.1993 before the authorities of the Registration Department and the non-production of accounts by the respondent/plaintiffs' to substantiate their case https://hcservices.ecourts.gov.in/hcservices/ that entire consideration has been paid in regard to Ex.A1 agreement dated 05.02.1992 transactions, and that cash has been ready to complete the transaction under Ex.A2 agreement will result in drawing of an adverse inference against them and that the agreement has been revoked, then there exists no subsisting right on the date of filing of the suit by the respondents/plaintiffs' and indeed the respondents/plaintiffs' have assigned erroneous reasons in the affidavit extending time for payment of Court fee and the evidence of the stamp vendor will show that stamp have been available and the non-production of receipts by the respondents/plaintiffs in regard to the payments received is very much fatal to their case. 23.