IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.06.2011 THE HONOURABLE MR.JUSTICE S.PALANIVELU CORAM C.S.No.646 of 2007 N.Balasubramaniam ... Plaintiff vs. Mrs.D.Rajeswari ... Defendant Plaint under Order IV Rules 1 of O.S. Rules r/w Order VII Rule 1 of C.P.C. to direct the defendant to execute and register a sale deed either in favour of the plaintiff or his nominee in respect of the schedule mentioned property being the landed property in S.No.44/2A admeasuring 16 cents; on receipt of balance sale consideration of Rs.24,60,000/- from the plaintiff or to execute and register the sale deed either in favour of the plaintiff or his nominee in respect of the suit property on the plaintiff depositing the aforesaid balance sale consideration into the credit of the above suit. For Plaintiff : Mr.M.Balasubramanian For Defendant : Mr.P.M.Sozhendran JUDGMENT This is a suit for specific performance. 2. The following are the allegations in brief contained in the plaint - 2 [A] The defendant entered into an agreement with the plaintiff agreeing to sell her land to an extent of 16 cents situated in Survey No.44/2A of Perumbakkam Village, Saidapet Taluk for a total sale consideration of Rs.25,60,000/- on 25.09.2006. Based on the said agreement, the plaintiff had paid a sum of Rs.1,00,000/- towards advance-cum-part sale consideration in respect of the suit property and on receipt of the said advance amount, the defendant had agreed to execute the sale deed either in favour of the plaintiff or his nominee within the stipulated time, i.e. 31.10.2006. 2 [B] The sale price had been finalised by fixing a sum of Rs.1,60,000/- per cent. Though the earlier documents show 17 cents, as per the patta issued in favour of the defendant, she is entitled only to an extent of 16 cents of land. In view of the discrepancy in the extent in the document and the patta, the defendant had requested the plaintiff to postpone the execution of sale deed for some time subsequent to receipt of advance amount from the plaintiff to enable her rectify the defect in the extent as shown in the Patta. Since the stand taken by the defendant was prudent and reasonable, the plaintiff did not want to deprive her to any extent. 2 [C] The plaintiff has sent a lawyers notice on 14.1.2007 to the defendant expressing his readiness and willingness to have the sale deed executed and registered in his favour by remitting the balance price of Rs.24,60,000/- within a week. The defendant has duly acknowledged the notice on 16.01.2007 and sent a reply dated 20.01.2007 with unteanable contentions which are false. After the issuance of notice and the reply notice, the defendant had demanded a sum of Rs.3,20,000/- per cent. Having no other alternative to redress his grievance in this regard, the present suit is filed. 3. The following are the allegations contained in brief in the written statement filed by the defendant - 3 [A] The defendant denies all the allegations and averments stated in the plaint and that the suit is not maintainable against her since the suit has been filed based upon an alleged receipt dated 25.9.2006 and not based upon any sale agreement as alleged by the plaintiff in the plaint. This defendant had issued a receipt dated 25.09.2006 for Rs.1,00,000/- as token advance from the plaintiff and the plaintiff promised to pay the entire sale consideration on or before 31.10.2006 failing which the entire transaction shall stand cancelled and the token advance amount shall be forfeited. The plaintiff had not come forward to pay the balance consideration amount of Rs.24,60,000/- on or before 31.10.2006 and not performed his obligation on his part. This shows that the plaintiff is not ready and willing to purchase the property at any point of time and hence the plaintiff is not entitled for any relies as stated in the plaint for specific performance and hence the suit is liable to be dismissed. 4. Following are the issues framed in the suit - 1. Whether the agreement to sell dated 25.9.2006 emerged between the plaintiff and the defendant, as averred in the plaint, relating to the suit property ? 2. Whether the plaintiff has been ready and willing to perform his part of the contract throughout ? 3. Whether the plaintiff is entitled for specific performance of the agreement to sell ? 4. To what relief is the plaintiff entitled ? Issue No.1 : 5. As far as the plaintiff's case, Ex.A1 is the agreement for sale dated 25.09.2006 by means of which the defendant agreed to sell her property to an extent of 16 cents situated in Survey No.44/2A in Perumbakkam Village, Saidapet Taluk, Chengai Anna District @ Rs.1,60,000/- per cent totalling to Rs.25,60,000/-. Ex.P1 further proceeds that the land is free of encumbrance and the defendant agreed to register the land in favour of the plaintiff or his nominee on receiving the balance amount of Rs.24,60,000/- on or before 31.10.2006. On the date of the document, the defendant received a sum of Rs.1,00,000/- being advance towards the finalisation of the sale by means of a cheque dated 27.09.2006 from the plaintiff. It is not executed on a stamp paper but it has been written and the signature of the defendant is found over the revenue stamp to the value of Re.1/- affixed underneath the contents of the document. It is admitted that she has executed Ex.P1. It is her strenuous contention that it is not an agreement for sale but it is only a receipt evidencing receipt of token advance of Rs.1,00,000/-. 6. Excepting the nature of the document, as aforestated, the defendant has not objected anything with regard to Ex.P1. If it is a receipt alone as pleaded by the defendant, the contents should be restricted to receipt of Rs.1,00,000/- alone towards the advance for the total consideration but the other contents as narrated above would clearly indicate that it is a classical agreement for sale and nothing but a sale agreement. To reiterate, the document contains unequivocal consent of the defendant to receive the balance sale consideration of Rs.24,60,000/- on or before 31.10.2006 and to execute and register the sale deed in favour of the plaintiff. In these circumstances, it is held that Ex.P1 is an agreement for sale and not a receipt as per the pleading of the defendant. Issue No.2 & 3 7. Much was said about the readiness and willingness on the part of the plaintiff to perform his part of contract by the defendant's counsel. The learned counsel for the plaintiff Mr.M.Balasubramanian contend that the circumstance for the plaintiff to issue notice after 2= months from the date of expiry of the period in Ex.P1 was for the reason that the defendant represented that actually the extent of land owned by her is 17 cents but in Ex.P1, it was mentioned as 16 cents and she also told that she has to rectify the same by getting patta for 17 cents from the Revenue Department so that she can gain Rs.1,60,000/- more, but she did not keep up her words and hence there was a delay in issuing the notice. 8. Per contra, the learned counsel for the defendant Mr.P.M.Sozhendran submit that the plaintiff has miserably failed to establish that he had been ready and willing to perform his part of contract by keeping quiet for the period between the expiry date as stipulated in Ex.P1 and the date of issue of Ex.P2 notice and further even after the reply by the defendant, the plaintiff had been waiting without any reasonable cause till the date of filing of the suit and hence these events would indicate that he was not at all ready and willing to perform his part of contract. 9. The plaintiff issued a lawyer's notice on 14.01.2007 to the defendant calling her upon to execute and register sale deed in his favour after receiving the balance sale price of Rs.24,60,000/- setting out the circumstances which had prevented him to issue notice immediately after the expiry of the stipulated time in Ex.P1. Ex.P4 is the registration copy of the settlement dated 06.06.1990 in favour of the defendant with respect to the suit property wherein the extent of the suit property has been mentioned as 17 cents. DW1 is the husband of the defendant who would say that he did not hand over Ex.P4 to the plaintiff. Ex.P4 contains two documents, one is the xerox copy of the original gift deed dated 06.06.1990 in favour of the defendant with respect to the suit property and the other is the certified copy of the said settlement deed. Ex.P4 has been produced from the custody of the plaintiff. The crucial point to be noted is, when the defendant got settlement with respect to 17 cents, she has executed Ex.P1 sale agreement for an extent of 16 cents. Without the information by the defendant, the plaintiff would not have the knowledge of the fact that the suit property is sprawling to an extent of 17 cents. 10. Even though the allegation by the plaintiff that the defendant told him that she had to approach the Revenue Department to get the extent rectified in patta for which some time was needed was denied by her in the reply notice. Ex.P3 and in the written statement, her husband DW1 has come out with true state of affairs. In his cross examination, he has consciously admitted that his wife gave an application to Tahsildar to re-survey the land in order to ascertain the exact extent of the suit property and issue patta accordingly, that she had applied to Tahsildar for re-survey in view of the fact that the gift settlement deed mentions 17 cents but the patta was only for 16 cents and no survey had taken place so far. Even though he denies the suggestion that himself and his wife requested the plaintiff to postpone the sale transaction so that the defendant can get Rs.1,60,000/- more, if revised patta for 17 cents is received, the fact remains that only on their representation to the plaintiff, the plaintiff had been waiting for about 2= months after the expiry of the date in Exhibit.P1, namely 31.10.2006 to issue Ex.P2 notice. The oral evidence adduced by DW1 aforementioned would crucify the defence raised by the defendant in the reply notice and written statement. 11. It is also stated by the defendant that even after the issue of reply notice on 20.01.2007, the plaintiff had been waiting till 05.06.2007 for filing the suit and this shows that he was not ready and willing to perform his part of contract. It is to be borne in mind that only after the dispute with regard to the extent to be conveyed is settled, a complete sale could take place. The defendant had not succeeded in getting the revised patta after she gave request to the Tahsildar for re-survey till the date of filing of the suit. What transpired after the suit with regard to the revised patta, is not known. The inaction on the part of the defendant to get a rectified patta from the Tahsildar has made the plaintiff to wait for some time even after the reply was received by him. Hence, some delay occurred on the two occasions, as explained above would not disentitle the plaintiff from getting relief on specific performance of contract. The circumstances which have been discussed earlier would establish that the plaintiff had always been ready and willing to perform his part of contract and the defendant had not gone by her words in getting the rectified patta and she did not keep the circumstances feasible to execute the sale deed. 12. The learned counsel for the defendant placed reliance upon a Division Bench decision of this Court reported in 2010 (3) CTC 411 [Manoharakumari v. Anitha & another] wherein the learned Judges have enlisted the circumstances under which the Court would exercise its discretion to pass a decree for specific performance of contract. The operative portion of the judgment is as under - As per Section 20 of the Specific Relief Act, discretion as to decreeing Specific Performance, grant of decree for Specific Performance of contract is not automatic and is one of the discretion of the Court and the Court has to consider whether it would be fair, just and equitable. But the discretion of the Court is not arbitrary. But the one of the sound and reasonable and discretion guided by the Principles of Justice, equity and good conscience. In Section 20(2) of the Act, certain circumstances have been mentioned as to under what circumstances, the Court shall exercise such discretion. If under the term of the contract the plaintiff gets an unfair advantage over the defendant, the Court may not exercise its discretion in favour of the Plaintiff. So, also specific relief may not be granted if the Defendant would be put to undue hardship which he did not foresee at the time of agreement, if it is inequitable to grant specific relief, then also the Court would desist from granting a decree to the Plaintiff. In exercising discretion, Court is obliged to take into consideration circumstances of the case, conduct of the parties and respective interests under the contracts. 13. In the case on hand, the defendant has not shown that the plaintiff gets an unfair advantage over the defendant and she would be put to undue hardship which she did not foresee at the time of agreement. By considering the circumstances of this case and the conduct of the parties, this Court is of the considered view that a decree for specific performance has to be granted in favour of the plaintiff. These issues are answered accordingly. Issue No.4: 14. A depth study of the material evidence on record, this Court has concluded that the plaintiff is entitled for specific performance of contract. The plaintiff has established his readiness and willingness to perform his part of contract. The delay occurred in sending the suit notice and filing of the suit have been properly explained and they are on bonafide belief. The suit has to be decreed as prayed for. This issue is answered as above. 15. In the result, the suit is decreed as prayed for without costs for the specific performance of contract. The defendant is directed to deposit the balance sale consideration of Rs.24,60,000/- into the Court within three months and the defendant shall execute and register the sale deed in favour of the plaintiff within three months from the date of deposit. The amount deposited in to the Court shall be kept in fixed deposit for a period of three years in Indian Bank, High Court Branch, Chennai  600 104. rgr