IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.07.2008 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN A.S.NO.130 of 1998 T.E.Varadharajan .. Appellant/Defendant -vs- 1. A.Sirajuddin (died) 2. Noorjahan 3. Nasar Ali 4. Jarina Begum 5. Nawsath Ali 6. Samsud Begum 7. Amjad Ali 8. Fathima Begum 9. Saddiq Ali 10.Feroj Begum 11.Abudahir 12.Megarajuparveen 13.Sameem Banu .. Respondents/Plaintiffs R2 to R13 brought on record as L.Rs of the deceased sole respondent vide order of Court dated 14.9.2004 made in C.M.P.Nos.14183 to 14185/2004 This appeal is filed under Section 96 of C.P.C. against the Judgment and decree passed in O.S.No.54 of 1997 on the file of Subordinate Judge, Panruti, dt.24.12.97. For appellant : Mr.R.Gururaj, Advocate For respondents: : Mr.K.Kannan,Senior Counsel for Mr.R.Sunilkumar RR 2,3,5,7,9 and 11 No appearance-RR 4,6,8,10,12,and 13 JUDGMENT This appeal has been directed against the decree and Judgment in O.S.No.54 of 1997 on the file of the Subordinate Judge, Panruti, South Arcot District. https://hcservices.ecourts.gov.in/hcservices/ 2. The plaintiff has filed a suit for Specific Performance of Contract on the basis of an agreement of sale entered into between the plaintiff and the defendant dated 17.5.1993 which was renewed by another agreement of sale dated 12.8.1993 in respect of the plaint schedule property a building in T.S.No.1752 Block No.45, Ward No.5 of Thirupapuli Village. 3. The brief facts of the case of the plaintiff in the plaint relevant for the purpose of deciding this appeal are as follows: The defendant had agreed to sell the plaint schedule property for a sale consideration of Rs.4,50,000/- to the plaintiff and entered into an agreement of sale on 17.5.1993 thereunder, the defendant had agreed to sell the superstructure in the plaint schedule land and in pursuance of the said agreement of sale, had received an advance of Rs.2,00,000/- and the time stipulated for execution of the sale deed under the sale agreement was three months ie., on or before 17.8.1993, after receiving the balance of sale consideration of Rs.2,50,000/-. The penal clause was also taged in the said agreement of sale as to the effect that the party who commits default is liable to pay a sum of Rs.50,000/- to the other party to the agreement. The plaintiff was always ready and willing to perform his part of the contract i.e, payment of the sale consideration of Rs.2,50,000/- and getting the sale deed executed at his cost. The defendant had agreed to hand over the letter of consent given by the temple for the construction of the building, the municipal approved plan for the construction and the rent receipt given by the temple for payment of rent by the defendant. Since the defendant could not hand over the said documents, he had executed a hand letter dated 17.5.1993 to the effect that he will hand over the consent letter of the temple, the Municipal approved plan for the construction of the building and also the rent receipts issued by the temple in favour of the defendant in respect of the land on which the superstructure stands. The defendant had received a sum of Rs.25,000/- out of the balance of sale consideration on 1.6.1993 and executed a hand letter in his letter head , totalling the plaintiff had paid a sum of Rs.2,25,000/- in terms of the agreement of sale and he is liable to pay only a sum of Rs.2,25,000/- towards balance of sale consideration. Under pretext of non-availability of the consent letter given by the temple for the construction of the building, which is the subject matter in the sale agreement and the Municipal approved plan for the construction and the rent receipts issued by the temple authorities in favour of the defendant, the defendant is taking time to perform his part of the contract and that the period of execution of the sale deed was also extended by three months upto 12.11.1993 and he undertook to execute the sale deed on or before 12.11.1993. Since the earlier sale of agreement dated 17.5.1993 was retyped with correction of dates only the payment of Rs.25,000/- on 1.6.1993 was omitted to be mentioned in the agreement dated 12.8.1993 by mistake and the plaintiff also overlooked the same. The balance payable is only Rs.2,25,000/-, if for any reason, the Court does not agree with the payment of Rs.25,000/- on 1.6.1993 towards the balance https://hcservices.ecourts.gov.in/hcservices/ of sale consideration, the plaintiff is prepared to pay Rs.25,000/- if the Court so directs towards the balance of sale consideration. The plaintiff was always ready and willing to perform his part of the contract. The plaintiff sent a notice to the defendant on 22.6.1996 demanding the defendant to perform his part of the contract as per the agreement within ten days. The defendant, knowing the contents, evaded to receive the same. The said notice was returned as"not claimed". The plaintiff is already in possession of the property and is doing business under the name an style of "Noor Fancy Stores" and there is no dispute about the plaintiff's possession. Without prejudice to the claim of specific performance, the plaintiff alternatively submits that the defendant is liable to refund a sum of Rs.2.25 Lakhs, the amount received from him with interest at the rate of 12% p.a from 12.11.1993. Hence the suit. 4. The defendant in his written statement would contend that the suit is not maintainable and the defendant had executed an agreement of sale on 12.5.1993 for a sum of Rs.4,50,000/-, but he had not received an advance of Rs.2,00,000/- as stated in the plaint. The plaintiff has paid a sum of Rs.50,000/- only and not Rs.2,00,000/- towards advance under the agreement of sale. The plaintiff and the defendant had entered into "Varthamanam Patram" on 7.2.1992 in respect of the running of the shop belonging to the defendant and then an advance of Rs.1,50,000/- was paid. The period mentioned in the Varthamanam is over. The said amount of Rs.1,50,000/- advanced for the Varthamanam had been included and shown as Rs.2,00,000/- for the document which is wrong on the face of it. The period mentioned in the Varthamanam is already over and the advance amount of Rs.1,50,000/0 has to be adjusted towards the amounts due to this defendant under the terms of the Varthamanam and for the balance amount due by the plaintiff. The advance amount of Rs.1,50,000/- has been repeated in the agreement and really a sum of Rs.50,000/- alone was paid as advance. It is false to state that the advance amount of Rs.2,00,000/- was paid for the suit document. The construction put up by the plaintiff in respect of penalty clause is wrong and illegal. The penalty clause has been introduced for the purpose of securing performance of the contract and not for the purpose of giving the party in default an option of paying money in lieu of specific performance. There was no intention for the defendant to sell the plaint schedule property building to the plaintiff. The letter dated 17.5.1993 was executed by this defendant gave a lot of pressure and great amount of exertion. The defendant had received a sum of Rs.25,000/- on 1.6.1993 and issued the letter. The total amount received by this defendant is only a sum of Rs.75,000/- and not Rs.2,25,000/-. The plaintiff himself came up with another agreement mentioning the date as 12.8.1993 and asked the defendant to sign it. The other allegation in respect of omission of the figure of Rs.25,000/- is not correct. The plaintiff was never ready and willing to perform his part of the contract. The defendant has not received any suit notice from the plaintiff. This defendant never evaded to receive the notice. As per the terms of Varthamanam, the plaintiff ought to have handed over the possession of the plaint https://hcservices.ecourts.gov.in/hcservices/ schedule building long back to the defendant. As per the terms of the agreement, the contract had to be performed before 17.5.1993 and as per the terms of the second agreement, the sale deed ought to have been executed on or before 12.8.1993. The said time was construed as essence of contract. The plaintiff has failed to perform his part of the contract within the time stipulated under the sale agreement and hence the advance amount paid by him is liable to be forfeited. There is no provision made in the agreement for the plaintiff to enforce the specific performance of contract. The plaintiff is not also entitled to ask for refund of the amount or any penalty since he has defaulted in part performance of the contract within the stipulated time. Due to his lapse , the advance amount stands forfeited and as such the plaintiff is not entitled to ask for refund of amount of advance paid under the agreement of sale. The suit as framed is not maintainable. Hence the suit is liable to be dismissed. 4. In the additional written statement, the defendant would submit that site in which the superstructure which is the subject matter in the agreement of sale belongs to Sri Pataleeswarar Temple, Cuddalore. The defendant is a tenant of the temple in respect of the site and the building alone belongs to the defendant. The tenancy has not yet been transferred in the name of the plaintiff who is in occupation of the property under a Varthamanam agreement. The temple has not yet recognised the plaintiff as its tenant. The temple comes within the purview of Hindu Religious Charitable Endowment Act (hereinafter referred to as"HR & CE Act). Unless the plaintiff's possession is proved and the department grants permission, the plaintiff cannot execute the said sale deed. The said transaction is prohibited by law and is in any event against public policy. Without the permission of the Hindu Religious Charitable Endowment Board, the transaction between the plaintiff and the defendant cannot be enforced through the Court. In this case, the time was essence of contract even after the subject matter of the suit is construed as immovable property. The suit is barred by time and the right of the plaintiff under the document stands extinguised. 5. The plaintiff has filed a reply statement contending that there is no question of waiver or abandonment of the right of the plaintiff and the plaintiff was insisting the defendant to perform his part of the contract but the defendant alone was evading to perform his part of the contract. The site scheduled to the plaint is not the subject matter of the suit, even though, it belongs to Arulmighu Padaleeswarar Temple, Cuddalore. The plaintiff's possession in respect of the superstructure of the plaint schedule property has been approved by the Department concerned. It is not correct to say that without permission of the Board by its competent authority, the transaction cannot be enforced through the Court,the subject matter of the suit, viz., the building belongs to the defendant. After agreeing the defendant's right and title in respect of the superstructure of the plaint schedule property only , the plaintiff has come forward to enter into an agreement of sale with the defendant in respect of the building in the suit property. A sum https://hcservices.ecourts.gov.in/hcservices/ of Rs.1,50,000/- mentioned in the varthamanam letter was never adjusted with the suit transaction. The defendant never agreed for adjustment of the amount advanced on the varthamanam agreement towards the advance for the sale agreement. It was agreed that the amount due under Varthamanam agreement has to be deducted at the time of sale. The plaintiff was not pressurised the defendant to issue letter dated 17.5.1993. The defendant is not entitled to approbate and reprobate. The defendant has never ready and willing to perform his part of the contract. 6. On the above pleadings, the learned trial Judge had framed two issues and three additional issues on 8.7.1993 and three more additional issues subsequently for trial. On the side of the plaintiff, the plaintiff was examined as P.W.1 and exhibited Exs A1 to A6. On the side of the defendant, the defendant has examined himself as D.W.1 and Exs B1 to B11 were marked. After meticulously scanning the evidence both oral and documentary, the learned trial Judge has come to a conclusion that the plaintiff is entitled to a decree for specific performance of contract on payment of balance of sale consideration of Rs.2,25,000/- and accordingly decreed the suit granting the relief for specific performance of contract with costs. Aggrieved by the findings of the learned trial Judge, the defendant has preferred this appeal. 7. Heard the learned counsel appearing for the appellant and also learned senior counsel appearing for the respondents and considered their respective submissions. 8. The points that arose for determination in this appeals are 1) Whether there was any valid agreement of sale entered into between the plaintiff and the defendant in respect of the plaint schedule property? 2)Whether the parties have agreed to perform their contract within the stipulated time? 3) Whether the decree and Judgment in O.S.No.54 of 1997 on the file of the Subordinate Judge, Panruti is liable to be set aside for the reasons stated in the memorandum of appeal? 9. Point Nos.1 and 2: Admittedly, the site on which the superstructure is situate in the plaint schedule survey number property belonged to Sri Pataleeswarar Temple and that the defendant is a lessee of the site alone of the plaint schedule property under the said temple. It is the case of the parties that after becoming lessee of the said temple, the defendant had put up a superstructure, which is the subject matter of the suit and had entered into an agreement of sale with the plaintiff under Ex A1 dated 17.5.1993 which is an unregistered one. The time stipulated for performance of the contract under Ex A1 is 17.8.1993 ie., three months from the date of Ex A1 agreement of sale. The sale consideration for the superstructure was Rs.4,50,000/- and as https://hcservices.ecourts.gov.in/hcservices/ per the recitals in Ex A1, a sum of Rs.2,00,000/- was paid by the plaintiff to the defendant on the date of execution of Ex A1 sale agreement towards part of the sale consideration. There is a penal clause attached to Ex A1 which reads that in case, the defendant failed to execute the sale deed in favour of the plaintiff before 17.8.1993, he is liable to pay over and above the sale consideration Rs.20,000/- towards damages and in case of failure of the plaintiff to get the sale deed executed after paying the balance of sale consideration to the defendant, the plaintiff has to forego Rs.50,000/- out of Rs.2,00,000/- paid towards advance. Admittedly, the sale deed could not be executed before 17.8.1993, the time stipulated under Ex A1. Five days before the expiry of the time stipulated under Ex A1, ie., on 12.8.1993, both the parties have entered into another agreement of sale under Ex A4 . Ex A4 is nothing but a replica of Ex A1. Under Ex A4 , the time for performance of contract alone has been extended to another three months from 12.8.1993 ie., the date of execution of Ex A4 agreement. Under Ex A2, the defendant had admitted that under the sale agreement dated 17.5.1993, Ex A1 , he had received a sum of Rs.2,00,000/- towards advance for executing the sale deed in terms of Ex A1 sale agreement. But he would further add that as agreed by him, he could not furnish the documents relating to the permission given by the Thirupapuliyur Sri Pataleeswarar Temple Devasthanam permitting him to put up construction in the land leased out to him by the temple, the approved plan for the construction of the building, the rent receipts and also tax receipts to the plaintiff. He has further categorically stated in Ex A2 that if he could not furnish those document within 15 days from 17.5.1993, the sale agreement shall be treated as cancelled and that he is prepared to pay the damages. Ex A3 is an acknowedgment(receipt) for having received Rs.25,000/- from the plaintiff on 1.6.1993 in lieu of the sale agreement Ex A1. Admittedly, the defendant had not executed the sale deed within 12.11.1993, the time stipulated by the parties under Ex A4 sale agreement. So it goes without saying that even though the time has been stipulated under Ex A4, the parties have failed to act upon in terms of the agreement within the time stipulated under Ex A4 agreement. So it cannot be said that the parties considered the time as essence of contract. 9a) After a long duration of 34 months, the plaintiff in order to enforce the sale agreement entered into between the plaintiff and the defendant under Ex A4, had issued notice under the original of Ex A5 demanding the defendant to perform his part of the contract by executing the sale deed at his cost within ten days from the date of receipt of original of Ex A5 Notice. Ex A5 is dated 22.6.1996. The defendant has not received the notice and the same was returned by the postal department, as seen from Ex A6 returned postal cover. 9b) The defendant while deposing before the trial Court as D.W.1 would give a lame excuse for the non receipt of Ex A6 notice. According to him, at the time of Ex A6 notice, he was out of station in connection with a marriage of an Advocate at Tirunelveli by name https://hcservices.ecourts.gov.in/hcservices/ Thiru R.Ayyamperumal, who is practising at Supreme Court. To substantiate this, he has produced Ex B6 wedding invitation for Thiru R.Ayyamperumal, Advocate. But apart from his Ipse Dixit, there is no other evidence like bus ticket or railway ticket or flight ticket to show that on 22.6.1996 the defendant had attended the marriage of Thiru R.Ayyamperumal, at Tirunelveli. The defendant while pleading alibi for non service of Ex A6 notice, is bound to prove that during the relevant point of time, ie., at the time of Ex A6 notice, he was out of station. The endorsement in Ex A6 by the postal department would go to show that inspite of intimation given to the defendant, the notice was not claimed by the defendant hence returned to the sendor. In a suit for specific performance, it is the bounden duty of the plaintiff as well as the defendant to prove that they are always ready and willing to perform their respective part of the contract. If we take the plaintiff in this case, he had issued Ex A6 notice, 34 months after expiry of the time for performance of contract under Ex A4 ie., 12.11.1993. If we take the conduct of the defendant, he had never cared to demand the plaintiff to perform his part of the contract by way of issuing any notice. Whereas, under Ex A2 , hand letter, he will furnish the relevant document within 15 days from 17.5.1993, in case of failure to produce those documents to the plaintiff, the plaintiff can treat the agreement of sale as cancelled and that he is prepared to pay the damages for the same as agreed under Ex A1 sale deed dated 17.5.1993. 9c) D.W.1 himself would admit in the chief examination that the site on which the superstructure , the subject matter of the suit belongs to Sri Padaleeswarar Temple, Cuddalore and that the said temple is under the control of HR & CE Department. But he would claim that the superstructure , the subject matter of the suit alone belongs to him . But to our dismay, there is absolutely no materials produced by the defendant to show that the superstructure , the subject matter of the suit belongs to him and that after getting necessary permission from the HR & CE Department/temple authorities, the defendant had put up the superstructure over the suit site. 9d) At this juncture, it is pertinent to note that the temple is also not a party to the suit. The learned counsel appearing for the respondent/plaintiff would contend that the temple is not a necessary party because the suit for specific performance of contract was filed under Ex A4, sale agreement entered into between the plaintiff and the defendant in respect of the building which belongs to the defendant and that the site in which the said building is situate alone belongs to Pataleeswarar temple. If it is so, then it is the bounden duty of the parties to the agreement under Ex A4 to show that the subject matter of the agreement under Ex A4 ie., the superstructure belongs to the defendant and that the Pataleeswarar temple had permitted the defendant to put up the building on the site which was leased out by the temple to the defendant. I am of the considered view that if a decree for specific performance is passed in favour of the plaintiff, then it will indirectly affect the interest of the temple over the suit property. In this connection, Section 34C of HR & CE Act has got some relevance to be referred. Section 34 C of HR & CE Act runs as follows: https://hcservices.ecourts.gov.in/hcservices/ "Alienation of immovable trust property:- (1) Any exchange, sale or mortgage and any lease for a term exceeding five years of any immovable property, belonging to, or given or endowed for the purposes of, any religious institution shall be null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution. Provided that before such sanction is accorded, the particulars relating to the proposed sanction shall be published in such manner as may be prescribed, inviting objections and suggestions with respect thereto; and all objections and suggestions received from the trustee or other persons having interest shall be duly considered by the Commissioner. Provided further that the Commissioner shall not accord such sanction without the previous approval of the Government. Explanation: Any lease of the property above mentioned though for a term not exceeding five years shall, if it contains a provision for renewal for a further term(so as to exceed five years in the aggregate) whether subject to any condition or not, be deemed to be a lease for a period exceeding five years. (2) When according such sanction, the Commissioner may impose such conditions and give such direction, as (he) may deem necessary regarding the utilisation of the amount raised by the transaction, the investment thereof and in the case of a mortgage, regarding the discharge of the same within a reasonable period. (3) A copy of the order made by the Commissioner under this Section shall be communicated to the Government and to the trustee and shall be published in such manner as may be prescribed. (4) The trustee may, within three months from the date of his receipt of a copy of the order, and any person having interest may, within three months from the date of the publication of the order, appeal to the Court to modify the order or set it aside. (4-A) The Government may issue such directions to the Commissioner as in their opinion are necessary, in respect of any exchange, sale, mortgage or lease of any immovable property, belonging to, or given or endowed for the purpose of, any religious institution and the Commissioner shall give effect to all such directions. (5) Nothing contained in this Section shall apply to the inams referred to in Section 41." https://hcservices.ecourts.gov.in/hcservices/ The above Section 34 has subsequently been amended under Act 25/2003 and Section 34 A to 34 D were taged down to Section 34. As per Section 34 B of the amended HR & CE Act(Tamil Nadu Act 25 of 2003),on the termination of the lease , the trustee or the Executive Officer, the Trustee or the Chairman of the Board of Trustees have every power to take possession of the property leased out building including building superstructure and trees. Section 34B runs as follows: "Termination of lease of immovable property:- 1) The lease of immovable property belonging to, or given or endowed for the purpose of, any religious institution shall be liable to be terminated on the non-payment