IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED:7.10.2008 CORAM: THE HONOURABLE MR. JUSTICE G.RAJASURIA A.S.No.1031 of 1995 1.Ponnammal 2.R.Krishnaswami 3.R.Palaniswami 4.Pavayee Ammal 5.Lakshmi 6.Valliammal 7.Kamala 8.Krishnaveni ... Appellants / Defendants vs. 1.T.Balasubramaniam(Died) 2.P.N.Periaswamy 3.S.N.Doraiswami 4.Komaraswami 5.Visalakshi 6.R.Vimala ... Respondents/ Plaintiffs R6 and R6 brought on record as LRs of the deceased R1 vide order of Court dated 27.8.2008 made in CMP.1284 to 1286 of 2008 Appeal filed u/s 96 of the CPC against the judgement and decree of the learned I Additional Subordinate Judge, Erode, Periyar District, passed in O.S.No.193 of 1991 dated 24.7.1995. For appellants :: Mr.N.Manokaran For respondents :: Mr.A.Nissar Ahmed JUDGMENT This appeal is focussed as against the judgement and decree dated 24.7.1995 passed in O.S.No.193 of 1991 by the learned I Additional Subordinate Judge, Erode, Periyar District. 2. Narratively but precisely, broadly but briefly the case of the plaintiffs as stood exposited from the plaint could be portrayed thus:- https://hcservices.ecourts.gov.in/hcservices/ (a) The deceased Rangaswami gounder and his wife D1-Ponnammal and their children, namely defendants 2 to 8 entered into the suit agreement to sell with the plaintiffs dated 27.3.1987, whereby the plaintiffs agreed to purchase from the defendants the suit property measuring an extent of 3 acres of land for a sum of Rs.3,48,000/-. The stipulations contained therein are to the effect that the plaintiffs should carve out plots and sell them to various persons and pay the proportionate amounts as and when they receive the sale consideration from the purchasers of the plots, in addition to the condition that the plaintiffs also at their discretion purchase, on outright basis the entire suit property as one lot. The time stipulated for performance was one year. (b) The plaintiffs, in commensurate with the agreement to sell, effected changes in the land, so as to make it fit for being sold as contemplated supra and the plaintiffs have been ready and willing to perform their part of the contract. To their surprise and shock the land owners sent a registered notice dated 24.3.1988 calling upon the plaintiffs to complete the sale transactions on or before 27.3.1988 and they intended to make the time as the essence of the contract. A corrigendum was also sent by them incorporating the schedule of property, which was earlier left out in their notice. (c) The plaintiffs sent a reply narrating as to how the defendants' notices were defective, that the earlier notice reached beyond the date stipulated for performance and that as per the said agreement, time was not the essence of contract. (d) The plaintiffs were put in possession of the suit property under the said agreement to sell by way of part performance. The plaintiffs issued notice dated 22.3.1991 calling upon the defendants to be present at 10.00 a.m on 26.3.1991 at the Sub-Registrar office concerned for executing the sale deed after receiving the remaining part of the sale consideration, however, the defendants did not comply with the request of the plaintiffs. 3. Remonstrating and refuting, gain saying and impugning the allegations/averments in the plaint D3 filed the written statement, which was adopted by the other defendants, the pith and marrow of it would run thus: (i) As per the agreement to sell, the period of performance was one year and it could be extended by six months more for getting approval of lay out for carving out plots and selling the same. (ii) The plaintiffs have not raised their little finger to perform their part of the contract and absolutely no steps were taken in concinnity with the stipulation contained in the agreement to sell. https://hcservices.ecourts.gov.in/hcservices/ (iii) The incessant demands made by the defendants to the plaintiffs to get the sale deed executed from the plaintiffs ended in a fiasco. Time was intended to be the essence of contract. The defendants suitably replied to the plaintiffs' lawyer's notice dated 26.3.1991 highlighting that the plaintiffs' had lost their right to seek for specific performance. However, the defendants also made themselves available at the registrar's office on 26.3.1991, as requested by the plaintiffs in their said notice, but the plaintiffs did not turn up. (iv) The plaintiffs are not ready and willing to perform their part of the contract. Accordingly, the defendants prayed for the dismissal of the suit. 4. The gist and kernal of the additional written statement filed by the defendants would be to the effect that the plaintiffs were in the habit of entering into such agreements and thereafter abandon the same. The plaintiffs, by their own conduct, abandoned and waived the rights under the contract. Accordingly, they prayed for dismissal of the suit. 5. The warp and woof of the reply statement filed by the first plaintiff and adopted by the other plaintiffs is mostly denial in nature as against the averments/allegations in the written statement, as though the plaintiffs drew a plan and submitted the same to the authorities concerned for obtaining sanction of the lay out to the knowledge of the defendants. 6. On 11.6.1987 the plaintiffs entered into an agreement to sell with one Ramayee Ammal, Sathasivam and Murugan to sell plot Nos.59 and 60, but such agreements could not get fructified in view of the non-cooperative attitude of the defendants, as there had emerged already inter se disputes among the defendants; the defendants 2 and 3 were not willing to give the shares of their sisters from out of the sale amount, whereupon the 6th defendant and his sisters requested that the sale amount may be deposited in Court and through the Court the sale deed might be got executed. The plaintiffs therefore had returned back the advance amount to the said Ramayee Ammal, Sathasivam and Murugan. Accordingly, the plaintiffs prayed for dismissing the suit. 7. The trial Court framed the relevant issues. During trial, on the side of the plaintiffs, P.Ws.1 and 2 were examined and Exhibits A.1 to A.15 were marked. On the side of the respondents D.Ws.1 to 3 were examined and Exhibits B.1 to B.35 were marked. 8. Being aggrieved by and dissatisfied with the judgement and https://hcservices.ecourts.gov.in/hcservices/ decree of the trial Court, the defendants filed this appeal on various grounds, the nitty-gritty of them would run thus:- (a) the trial Court fell into error in simply treating the plea of the defendants as against them that they went to sub-registrar's office and waited for the plaintiffs to get the sale deed executed from them; (b) the trial Court ignored the fact that the plaintiffs, who were expected to be ready and willing to perform their part of the contract throughout , failed to do so. (c) for 3½ years the plaintiffs kept quite, which period of quiescent was not considered by the trial Court as against the plaintiffs. (d) the trial Court wrongly construed as though time was not the essence of contract (e) the trial Court wrongly understood as though the plaintiffs could wait till the last day of limitation and file the suit for specific performance (f) the suit is barred by limitation in view of the facts set out in this case, as within three years from the date of Ex.A2, Ex.A14 and Ex.A15, the suit was not filed. (g) the plaintiffs are not entitled to obtain the discretionary relief of specific performance. Accordingly, the defendants prayed for setting aside the judgement and decree of the trial Court and for dismissing the original suit. 9. The points for consideration are as to: (i) Whether the plaintiffs have been ready and willing to perform their part of the contract throughout? or Whether they committed default? (ii) Whether time was essence of the contract? (iii) Whether there is any infirmity in the judgement and decree of the trial Court? 10. The nub and essence of the argument of the learned counsel for the plaintiffs is that the kernel of Ex.A1-the agreement to sell would not contemplate obtainment of approval for lay out from the authorities concerned by the plaintiffs as the sine qua non for carving out plots and selling them; the suit property could have been purchased by the plaintiffs either in their name or in the name of somebody else as one plot or as several plots and in the event of selling the plots to various individuals, the plaintiffs are liberty to pay the sale price proportionately as and when they are in receipt of the sale price from the purchasers of the plot; the very nature of the recitals in Ex.A1 would connote and denote that the time was not the essence of contract as virtually this is not a case where one land owner agreed to sell in favour of a purchaser a property but it is more or less amounting to dealing in real estate https://hcservices.ecourts.gov.in/hcservices/ business; the defendants apparently came forward with false plea as though they were present at the Registrar's Office; the defendants by their very plea that they were present in the Sub-Registrar office, condoned the alleged delay on the part of the plaintiffs. Accordingly, the learned counsel for the plaintiffs prayed for dismissing the appeal, as there is no infirmity in the judgement passed by the trial Court in ordering specific performance. 11. Compendiously and concisely the argument as posited by the learned counsel for the defendants would be to the effect that the plaintiffs did not take any steps inconsonance or in concinnity with the agreement to sell and that they did not perform their part of the contract; the alleged two agreements to sell Exs.A14 and A15 purported to have been emerged between the plaintiffs and some third parties are concocted documents purely brought about so as to buttress their plea; the defendants before the expiry of one year period cautioned the plaintiffs to get the sale fulfilled but they failed to do so and even during the next period of six months, the defendants cautioned the plaintiffs by their notice, for which also the plaintiffs were not responding positively, but on the other hand on both the occasions it was their contention that they were having legally time to perform their part of the contract. 12. In this factual matrix, it is just and necessary to analyse in depth Ex.A.2, the agreement of sale. It does not refer to a mere agreement to sell which emerged between two persons, whereby, one agreed to sell an extent of land in favour of another without any other condition. But here Ex.A1 contemplates carving out of plots in the suit property and selling them to several persons and consequently, paying proportionately the sale price of those plots to the land owners as and when the plaintiffs would be in receipt of the same. Initially, the time contemplated was for one year and it was extendable by six more months under certain circumstances found spelt out in Ex.A1 itself. The pertinent point to be noted here is that in Ex.A1 also, there is a clause enabling the plaintiffs to purchase in one lot the entire suit property either in their own name or in favour of any other person whom they specify. Certain excerpts from Ex.A1 are extracted here under for ready reference: ",d;W Kjy; 1 xU tUl bfLt[f;Fs; ek;kpy; 1 Kjy; 7 tiu yf;fkpl;lth;fsplk; buhf;fkhf brYj;jp fpuaj;ij Koj;Jf; bfhs;tjhft[k; ngrp xg;g[f; bfhz;L ek;kpy; 1 Kjy; 7 tiu yf;fkpl;lth;fSk; rk;kjpj;J ehsJ njjpapy; , jdoapy; fz;l rhl;rpfpspd; Kd;dpiyapy; ek;kpy; 8 Kjy; 11 tiu yf;fkpl;lth;fsplkpUe;J ml;thd;!hf buhf;fk; bgw;Wf; bfhz;lJ U:/1.00.000/00 U:gha; xU yl;rKk; nkny fz;l tPjk; ek;kpy; 1 Kjy; 7 tiu yf;fkpl;lth;fSf;F buhf;fkhf bry;yhfptpl;lgoahy; ,d;W Kjy; ic& 1 xU tUl bfLt [f;Fs; ek;kpy; 8 Kjy; 11 tiu yf;fkpl;lth;fs; kPjk; https://hcservices.ecourts.gov.in/hcservices/ fpuaj; bjhifia brYj;jpdhy; ek;kpy; 1 Kjy; 7 tiu yf;fkpl;lth;fs; mt;tg;bghGJ Vw;gLk; fpua';fSf;Fz;lhd tpfpjhrhuj; bjhifiag; bgw;Wf; bfhz;L xnu fpuakhfnth my;yJ gy fpuakhfnth g{kpahfnth my;yJ kid epy';fshfnth xU jtizapnyh my;yJ gy jtizapnyh ek;kpy; 8 Kjy; 11 tiu yf;fkpl;lth;fs; bgah;fSf;fhtJ my;yJ mth;fs; nfhUk; egh; my;yJ egh;fspd; bgah;fSf;fhtJ rh;t tpy;y';f Rj;jpahf RthjPdj;Jld; Rj;jf;fpuaKk; RthjPdKk; bra;J bfhLf;f ek;kpy; 1 Kjy; 7 tiu yf;fkpl;lth;fs; fl;Lg;gl;lth;fs;/ nkw;go 1 xU tUl bfLt[f;Fs; iv& ml;thd;!hf brYj;jpapUf;Fk; bjhifnghf kPjk; fpuaj; bjhifia ek;kpy; 8 Kjy; 11 tiu yf;fkpl;lth;fs; ek;kpy; 1 Kjy; 7 tiu yf;fkpl;lth;fsplk; nkw;fz;l tPjk; fpua';fis xU fpuakhfnth my;yJ gy fpuakhfnth g{kpahfnth my;yJ kid epy';fshfnth fpuag; gj;jpuk; vGjp buhf;fj;ij brYj;jp fpuaj;ij Koj;Jf; bfhs;s jtwpdhy; nkw;go ml;thd;!hf brYj;jpapUf;Fk; bjhifia ek;kpy; 8 Kjy; 11 tiu yf;fkpl;lth;fs; ,He;J tpl ntz;oaJld; ,e;j vf;hpbkz;od; ghj;jpaj;ija[k; ,He;J tpl ntz;oaJ/ ........... ,jdoapy; fz;l brhj;ij ek;kpy; 8 Kjy; 11 tiu yf;fkpl;lth;fs; kid epy';fshf gphptpid bra;J tpw;gid bra;a[k; fhhpa';fSf;fhf vf;hpbkz;l; bra;jpUg;gjhy; , d;nw ,jdoapy; fz;l g{kpia ek;kpy; 1 Kjy; 7 tiu yf;fkpl;lth;fSila RthjPdj;jpy; ,Ue;J ek;kpy; 8 Kjy; 11 tiu yf;fkpl;lth;fs; RthjPdk; mile;J bfhz;L , Uf;fpwhh;fs;/ ,jdoapy; fz;l g{kpia ek;kpy; 8 Kjy; 11 tiu yf;fkpl;lth;fs; nuhLfs; Vw;gLj;jp. kidepy';fshfg;; gphptpid bra;J gpshd; jahhpj;J. ic& gpshid blg;o iluf;lh; Mg; lg[d; gpshdp'; & fz;l;hp gpshdp';. nfhit- brd;id ,th;fshy; ny mt[l; m';f Pfhuk; bgw tpUk;gpdhy; mitfSf;F Vw;g ic& ny mt[l; rk;ge;jkhd rfy eK:dhf;fspYk;. gpshd;fspYk; ek;kpy; 1 Kjy; 7 tiu yf;fkpl;lth;fs; ifbahg;gk; bra;J bfhLg;gJld; nehpilahf te;J /////////////////////// nkw;go ny mt[l; bra;a[k; rfy rpyt[fs; g{uht[k; ek;kpy; 8 Kjy; 11 tiu yf;fkpl;lth;fisnar; nrh;e;jJ/ ,jdoapy; fz;l g{kpia ic& bfLt[f;Fs; ek;kpy; 8 Kjy; 11 tiu yf;fkpl;lth;fshy; ny mt[l; m';f Pfhuk; bgw fhyjhkjk; Vw;gl;lhy; ic& bfLt[f;F nky; nkw;bfhz;L 6 MW khjk; ePoj;Jf; bfhLf;f ek;kpy; 1 Kjy; 7 tiu https://hcservices.ecourts.gov.in/hcservices/ yf;fkpl;lth;fs; fl;Lg;gl;lth;fs;/@ 13. The above excerpts would unambiguously highlight the fact that the time stipulated for performance is only one year; if there is any difficulty in getting approval for the lay out, purposefully it is extendable by six months more. The learned counsel for the defendants convincingly based on documentary evidence would put forth his plea that absolutely the plaintiffs were dormant and they have not taken any steps to perform their part of the contract, despite issuing legal notice. 14. Ex.A2 is the defendants' lawyer notice dated 24.03.1988 which would exemplify that the defendants called upon the plaintiffs to come forward to get the sale deed executed on or before 29.03.1988, by that time the one year period stipulated in Ex.A1 expired. 15. Ex.A3 is the corrigendum to Ex.A2, as in the earlier notice, there was no reference to the schedule of the property. The learned counsel for the plaintiffs would try to find fault with Exs.A2 and A3 on the ground that the very notice Ex.A2 itself is a belated notice, as the notice was sent in such a manner so as to make the plaintiffs not to be in receipt of the same on or before 28.03.1987. I am at a loss to understand as to how the plaintiffs can be heard to contend that such a notice is bad in law. It is the duty of the plaintiffs to perform their part of the contract of their own accord and they cannot expect the land owners, namely the defendants to call upon the plaintiffs to perform their part of the contract. It is not as though there was a stipulation in Ex.A1 that only on receipt of a notice from the defendants, the plaintiffs were bound to act. By way of adding fuel to the fire, the very stand on the plaintiffs themselves is not to the effect that because of Ex.A2 having been received by them belatedly, they could not perform their part of the contract. But, they have come forward with a specific plea in Ex.A4 dated 11.04.1988 to the effect that the plaintiffs were having enough further time to perform their part of the contract and it was not open for the plaintiffs to insist upon their performance pre-maturely. An excerpt from Ex.A4 would run thus: "5. Your notices under reply seem to proceed on the assumption that the obtaining of lay-out approval by my clients is a condition precedent for the enforceability of the agreement. It is submitted that my clients would be well within their rights to call upon your clients to execute sale deeds in respect of portions of the agreed 3 acres of land, and it is not incumbent on the purchasers to necessarily construct houses alone. Equally, the factual averments in your https://hcservices.ecourts.gov.in/hcservices/ notice that my clients had done nothing whatever in furtherence of the agreement dated 27.3.1987 are hereby denied as false. To the knowledge of your clients, my clients have invested more than Rs.1 lakh in preparing the lands so as to render the same fit to be sold as house and factory sites. 6. It is submitted that the agreement dated 27.3.1987 would remain alive and be legally enforceable till 28.3.1991. My clients further state that at all material times they have been ready and willing to perform their part of the agreement, and that it is not open to your clients to treat my clients as in default, and proceed on that footing. (emphasis supplied) 7. Please therefore advise your clients not to indulge in illegalities on the strength of imaginary rights. If inspite of this reply notices your clients should seek to exercise or assert 'imaginary rights' in respect of the properties in question, they would be doing so at their own risk and peril." 16. As such, in view of the stand as set out supra taken by the plaintiffs, they had no right to raise their acquisitive finger as against the defendants relating to the late despatch of Exs.A2 and A3. It has to be seen as to whether the stand of the plaintiffs in Ex.A4 is tenable at all. One year period is contemplated in Ex.A1 and extension of six months is contemplated only for the purpose of enabling them to get lay out approval, but in paragraph 5 of Ex.A1 itself the plaintiffs clearly and categorically expatiated and conveyed that they were not duty bound to obtain lay out approval for the purpose of purchasing the land either in their own name or in the name of others. When such is the position, it is clear that within a years' time, they should have taken prompt steps either to get the sale deed executed in one lot or in different lots, but they had not taken any steps. However, the plaintiffs would rely on Exs.A14 and A15, the alleged agreements to sell dated 11.06.1987 which they allegedly entered into with the third parties, as though they took effective steps within the expiry of one year period. Just and necessary, it is, to scrutinise as to the genuineness of those exhibits. At this juncture, my mind is reminiscent of the popular legal adage that witnesses might lie, but the circumstances would not do so. 17. The learned counsel for the defendants would promptly and appositely posit that there had been no whisper about Exs.A14 and 15 in Ex.A4 dated 11.04.1988, Ex.A6 dated 12.09.1988, the plaintiffs' legal notices as well in their plaint. Only in the reply statement, https://hcservices.ecourts.gov.in/hcservices/ for the first time, like a bolt from the blew there was reference to Exs.A14 and A15. Absolutely there is no plausible explanation or expounding exposition forthcoming from the side of the plaintiffs for such absence of mentioning of Exs.A14 and 15 at the earliest point of time. Had really Exs.A14 and A15 emerged on 11.06.1987 as claimed by the plaintiffs, certainly those documents would have traced its delineation or citation at the earliest point of time in the plaintiffs' notice or in the plaint averments. Wherefore it is pellucid that as an afterthought, Exs.A14 and A15 emerged at the instance of the plaintiffs so as to buttress and fortify their case. By no stretch of imagination, such absence of reference to Exs.A14 and A15 at the earliest point of time could be construed as one due to oversight. 18. It is the specific case of the plaintiffs during trial that owing to the alleged non - cooperative attitude of the defendants, the sale deeds could not be got executed in favour of the third parties referred to Exs.A14 and A15 and that the defendants were constrained to return the advance amounts received from those third parties. At this juncture, the crucial question arises as to why then the defendant at the first instance itself had not sent any lawyer's notice pointing out the default on the part of the plaintiffs in fulfilling the contract and also the alleged damage caused to the plaintiffs' reputation as Real Estate Operators in not able to fulfil their promise towards the third parties. It is not an ordinary alleged lapse on the part of the defendants as per the plaintiffs, but Himalayan and mammoth one which resulted in the plaintiffs allegedly snapping their contracts with the said third parties. The normal conduct of the parties should be borne in mind. No man having head over shoulder would ever tolerate such sort of conduct on the part of the defendants in making the plaintiffs to suffer damage in view of they having been made to snap their contract with the third parties with whom they allegedly entered into, as per Exs.A14 and A15. Hence, in this factual matrix, it is palpably and apparently clear that P.W.2 can by no stretch of imagination could be taken as a witness who spoke truth. P.W.2 would claim himself as one of the third parties with whom the plaintiffs entered into the agreement to sell. In fact, the deposition of P.Ws.1 and 2 coupled with the endorsements in Exs.A14 and A15 would convey the idea as though on 16.11.1987 the time stipulated in those agreements was extended and thereafter, on 09.08.1988 the plaintiffs were constrained to refund the advance amounts because of the non - cooperative attitude of the defendants. I am at a loss to understand as to how the plaintiffs would have tolerated such non-cooperative attitude of the defendants, if really those events took place as narrated by the plaintiffs. The plaintiffs would try to project the case as though the sisters of D2 and D3 were not happy with their brothers; they suspected that their brothers would not pay them their share of the sale proceeds; https://hcservices.ecourts.gov.in/hcservices/ consequently, there was apple of discard among them inter se and that alone stood in the way of the defendants executing the sale deeds in favour of third parties. The plaintiffs tried to project as though D.W.1 himself admitted that the husband of D6 was not in talking terms with D.W.1 and his brother. An excerpt from the deposition of D.W.1 would run thus: @v';fSf;Fk; 6Mk; gpujpthjpapd; fzth; brhf;fehj ft [z;lUf;Fk; ,ilapy; gzk; bfhLf;fy; th';fypy; jfuhW Vw;gl;lJ/ mth;fSld; ngr;R thh;j;ij ,y;iy/ jhthr; brhj;jpd; kjpg;g[ Kd;g[ tpl ,g;nghJ mjpfkhf cs;sJ/@ 19. Barely because D.W.1 deposed during cross examination that D.W.1 and his brother were not in talking terms with D6's husband, there is no presumption that they wanted to commit breach of the contract of agreement to sell as found spelt out in Ex.A1. However, D.W.1 in the course of his deposition denied all the suggestions put to him as under: @jhthr; brhj;Jf;fs; g{h;tpfr; brhj;Jf;fs;/ vd; jfg;gdhUf;F 2 igad;fs; 5 bgz;fs;/ 5 bgz;fSf;Fk; jpUkzkhfptpl;lJ/ filrpg;bgz;Qqf;Fk; 25-y; jpUkzkhdJ/ ,e;j mf;hpbkz;l; vGJk; nghJ vdJ jfg;gdhUf;F cly; eyk; rhpapy;iy/ vd; jfg;gdhUf;F cly; epiy rhpapy;yhjjhy; thjpfs; nfl;ljhy; 5 bgz;fisa[k; jug;gpduhf mf;hpbkz;oy; nrh;f;fg;gl;lJ/ igad;fs; bgz;fSf;F rhpahd ghfk; bfhLf;fkhl;lhh;fs; vd;W vz;zp bgz;fisa[k; Kd; $hf;fpuijahf bgz;fisa[k; mf;hpbkz;oy; jug;gpdujf vd; jfg;gdhh; jhd; nrh;j;jhh; vd;gJ jtW/@ 20. Wherefore, it is obvious that the plaintiffs in order to camouflage and conceal their fault tried their level best to fob of their fault on the defendants and tried to wriggle out of and extricate themselves from the consequences, which resulted and ensued from their fault. To the risk of repetition without being tautologous, I would like to stress upon the fact that if really events took place in such a manner which are capable of pointing out unerringly towards the default of the defendants, the plaintiffs would have made a mountain out of it and issued notice. The suit itself was admittedly filed only on 27.03.1991, whereas, according to the plaintiffs as per the endorsement dated 16.11.1987 itself, the unwillingness and the non-cooperative attitude on the part of the defendants actuated and accentuated, propelled and impelled the plaintiffs to extend