IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:22.12.2010 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL S.A.No.759 of 1994 1.Rahima (died) ... Defendant/Appellant 2.G.H.Nazeer Basha 3.G.H.Nizamudeen 4.G.H.Samsath Begam 5.G.H.Sheerin Begam 6.G.H.Iqbal 7.G.H.Chan Basha 8.G.H.Shaira Begam 9.G.H.Akbar Basha 10.G.H.Shainaz Begam ... Appellants 2 to 10/ LRs of the sole Defendant (Appellants 2 to 10 brought on record as LRs of the deceased sole appellant vide order of Court dated 30.03.2010 made in C.M.P.No.556 of 2010.) Vs. 1.P.Mangilal (died) ... Plaintiff/Respondent 2.Chandra 3.Gowthami 4.Lalitha 5.Sarita 6.Rekha 7.Santhosh Kumar ... Respondents 2 to 7/ LRs of the sole Plaintiff (Respondents 2 to 7 are brought on record as Legal representatives of the deceased sole respondent vide order of Court dated 04.04.2006 made in C.M.P.No.15819 of 2004.) Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree in A.S.No.66 of 1993 on the file of the learned District Judge, Chengalpattu, dated 24.11.1993, confirming the judgment and decree in O.S.No.155 of 1986 on the file of the learned Sub Judge, Poonamallee, dated 27.04.1993. https://hcservices.ecourts.gov.in/hcservices/ For Appellants : Mr.A.R.Nixon For Respondents : Mr.R.Mukundan for R3 to R7 JUDGMENT The Appellant/Defendant (since deceased) has preferred this second appeal before this Court as against the judgment and decree dated 24.11.1993 in A.S.No.66 of 1993 passed by the learned District Judge, Chengalpattu. 2. The First Appellate Court viz., the learned District Judge, Chengalpattu, in the judgment and decree in A.S.No.66 of 1993, has among other things, observed that the suit is not barred by limitation and further held that the respondent/plaintiff (since deceased) is not entitled to the relief of specific performance and consequently, dismissed the appeal without costs and thereby confirmed the judgment and decree passed by the trial Court namely the learned Sub Judge, Poonamallee, in O.S.No.155 of 1986 dated 27.04.1993. 3. Before the trial Court, two issues have been framed for adjudication in the main case. On behalf of the respondent/plaintiff, witness P.W.1 has been examined and Exs.A.1 to A.4 have been marked. On the side of the Appellant/defendant, witness D.W.1 has been examined and Exs.B.1 to B.16 have been marked. 4. The trial Court on an appreciation of oral and documentary evidence available on record, has come to a consequent conclusion holding that the Appellant/defendant is to receive a sum of Rs.22,000/- (Rupees Twenty Two Thousand only) being the balance sale consideration, along with the interest if any and execute the sale deed in favour of the respondent/plaintiff at the expenses of the respondent/plaintiff and also three months' time has been granted to execute the sale deed, failing which the respondent/plaintiff is permitted to get the sale deed registered in his favour through the Court and decreed the suit without costs. 5. Being dissatisfied with the judgment and decree passed by the trial Court in the main suit, the Appellant/defendant has preferred the first appeal in A.S.No.66 of 1993 on the file of the learned District Judge, Chengalpattu, who confirmed the judgment and decree of the trial Court passed in the main suit and thereby dismissed the appeal. 6. Animadverting upon the judgment and decree passed by the first appellate Court in A.S.No.66 of 1993, the Appellant/defendant (since deceased) has preferred this second appeal before this Court as an aggrieved person. https://hcservices.ecourts.gov.in/hcservices/ 7. During the pendency of this second appeal, both the Appellant/defendant and the respondent/plaintiff have expired and therefore, their respective legal heirs have been impleaded as the Appellants and the respondents respectively. 8. At the time of admitting this second appeal, this Court framed the following substantial questions of law: "1) Whether both the Courts below failed to note that the agreement to sell the property had been revoked by both parties under Ex.B5 and B6 and B7, B8 and B15? 2) Whether both the Courts below failed to note that under Ex.B6 the Appellant had refused to perform her part of the contract and hence the suit ought to have been filed within 3 years from Ex.B6 (21.2.1980) or within 3 years after expiry of one month from 21.02.1980? 3) Whether both Courts below failed to note that the suit is barred by limitation? 4) Whether both Courts below failed to note that the respondent was not willing and ready to perform his part of the contract? 5) Whether both the Courts below erred in believing Ex.A2 and A3 even though the respondent in his evidence admitted as follows: "tHf;Fiuapy; rh.M.2 Bkw;Fwpg;g[ gw;wpa[k; rh.M.3 Bkw;Fwpg;g[ gw;wpa[k; vJt[k; Twtpy;iy." 6) Whether both Courts below erred in decreeing the suit, even though compensation in money is an adequate relief under Section 14(1)(a) of the Specific Relief Act? 7) Whether both Courts below failed to consider the mandatory provision under Section 14(1)(a) and Section 20 (1) of Specific Relief Act?" 9. The contentions, discussions and findings on Substantial Questions of Law Nos.1 to 5: The learned Counsel for the Appellants/defendants submits that both the Courts below have rendered a judgment as against law, evidence and probabilities of the case and further, the respondent/plaintiff (since deceased) has not been ready and willing to perform his part of the sale agreement. 10. It is the contention of the learned Counsel for the Appellants/defendants that Ex.A.3, endorsement dated 28.04.1983, has not been proved as per law, inasmuch as the Appellant/defendant (since deceased) has stated that the signature has been obtained on misrepresentation of fact and indeed, Ex.A.3 ought to have been accepted as per endorsement on Ex.A.1, sale agreement, dated https://hcservices.ecourts.gov.in/hcservices/ 15.11.1979, entered into between the Appellant/defendant and the respondent/plaintiff (since deceased). 11. The learned Counsel for the Appellants/Defendants expatiating his submissions, contends that in Ex.A.3, endorsement dated 28.04.1983, there is no recital to the effect that Rs.1,000/- (Rupees One Thousand only) has been paid and such a plea mentioned in the plaint is a false one and in fact, both the Courts below should have held that the Appellant/defendant (since deceased) has never given consent to execute the sale deed as per Ex.A.3 endorsement dated 28.04.1983. 12. Advancing his arguments, it is the contention of the learned Counsel for the Appellants/defendants that the plaint averment in paragraph 4 pertaining to Ex.A.3, endorsement dated 28.04.1983, is entirely different from what is actually mentioned in Ex.A.3 endorsement dated 28.04.1983 and as a matter of fact, there is no allegation that the Appellant/defendant (since deceased) agreed to renew the agreement or agreed to execute the sale deed. A plea is projected on behalf of the Appellants/defendants that there are series of notices exchanged between the parties out of which Ex.B.3 dated 02.01.1980, the letter issued by the Appellant/defendant (since deceased) through her Counsel to the respondent/plaintiff (since deceased), in and by which it is specifically mentioned that there is no subsisting contract and that the suit ought to have been filed within three years, etc. 13. The learned Counsel for the Appellants/defendants submits that the Appellant/Defendant (since deceased) and the respondent/plaintiff (since deceased) have rescinded the contract and there has been a bilateral revocation of contract and as per Ex.B.6, the reply of the Appellant's lawyer addressed to the respondent's lawyer dated 21.02.1980, one month's time has been given and after the expiry of one month, in reality, there subsists no contract and that the suit has been filed on 17.09.1986 after three years from the date of Ex.B.3, letter dated 02.01.1980 and that the respondent/plaintiff (since deceased) has not been willing and ready to perform his part of the contract and that the suit is barred by limitation. 14. The learned Counsel for the Appellants submits that both the Courts below have not looked into the material factual aspects of the matter in a proper perspective which has resulted in a miscarriage of justice and therefore, prays for allowing this second appeal to promote the substantial cause of justice. 15. The learned Counsel for the Appellants/Defendants relies on the decision of this Court in Kumarasawamy and another v. Appachi Gounder and another reported in 2001-1-L.W.314, at page 324, it is observed as follows: https://hcservices.ecourts.gov.in/hcservices/ "24. Jurisdiction of the courts to decree specific performance is only discretionary. For, it is an equitable relief, such discretion has to be exercised by the Court on sound and reasonable principles, solely guided by judicial precedents. Courts grant the relief of specific performance, not because it is permissible under law, but because it is just and necessary to afford such relief. Section 56 of the Contract Act provides one of the grounds for discharge from the contract. 25. As pointed out by me already, it is not physical or literal impossibility. Here, in this case, on account of the injunction order, the time for performance was extended twice by the parties. Immediately, the defendants have written to say that on account of the injunction order pending and subsisting, they are unable to perform the contract and requested the plaintiffs to treat is as cancelled. Only after that, the plaintiffs choose to rush to court and in doing so, they have committed an act of suppression in not mentioning about the steps taken by the defendants to have the injunction vacated. Therefore, all these circumstances would point out that this is not a fit case, where the plaintiffs can be held to be entitled to the discretionary relief of specific performance of the agreement. They have not come to court with clean hands, but have suppressed the truth. They have themselves contributed for the continuance of the injunction by not filing counter within reasonable time. It is clear from the intention of the parties that the plaintiffs wanted immediate possession, so that they could put up factory in that property. But, it was known to them that even as on the date, when further extension of the period of agreement was made it was not to be. Even within reasonable time, the performance could not be achieved, for which the defendants can never be made responsible. The suggestion of the plaintiffs is that it is a collusive suit. If it was so, the defendants would not have allowed the suit to be dismissed for default. When the intention was to defeat the agreement, the defendants would see to it that the litigation does not end in such a manner, but it is prolonged. Therefore, the suggestion that it is collusive suit, is a suggestion made for the purpose of this case." and resultantly, held that the plaintiff is not entitled to the relief of specific performance as he has not come to the Court with clean hands. 16. He also places reliance on the decision of this Court in Fathima Majeed v. Subhapratha Ravikumar reported in 2008(4) CTC 494, https://hcservices.ecourts.gov.in/hcservices/ wherein it is held that on the ground of equity, an alternative relief in the plaint can be granted in a suit for specific performance and therefore, the defendant has been directed to return the advance together with the interest at the rate of 12% p.a. 17. He further invites the attention of this Court to the decision in M.Rangathan v. M.Thulasi Naicker (Deceased) and either others reported in 2008(5) CTC 428, at page 429, it is observed as follows: "As held by the Supreme Court readiness and willingness has to be determined from the facts and attendant circumstances of the case. In the present case, the Suit was filed nearly after two years, thereby inducing the Defendant to change his position. As held by the Supreme Court in K.S.Vidyanandam v. Vairavan, 1997 (3) SCC 1 "The delay has brought about a situation where it would be inequitable to give the relief of specific performance to the Plaintiff." Taking note of the conduct of the Plaintiff in not tendering the amount, Lower Appellate Court rightly held that the delay in filing the Suit would disentitle to get the discretionary relief of specific performance." 18. Further, the learned Counsel for the Appellants/ defendants draws the attention of this Court to the decision in Senbagasundari v. Kothandapani Pillai reported in (2007) 1 MLJ 479, wherein it is laid down as follows: "... It could be seen that it is a case where the time is stipulated in the contract. The agreement was entered into in the year 1988, and Thai what was referred to in the document, would come in February 1989. While the time is stipulated, it would go to show that if the payment of balance of consideration is not made within February 1989, then at the expenses of the plaintiff he should continue to pay waram as he was paying in the past. It is an admitted position that at the time of the filing of the suit or thereafter, no waram has been paid. ... ... Secondly, in a case like this, where the relief of specific performance on the basis of an agreement for sale is sought for, the law requires that the readiness and willingness on the part of the plaintiff must be specifically pleaded. If not pleaded in the plaint, it could be well termed as lack of pleading, which would be suffice to refuse the relief. ... ... This Court is of the considered opinion that in the instant case, the suit has been filed only in the year 1996, and the time for payment made under the agreement Exhibit A1, is within February 1989; but, the https://hcservices.ecourts.gov.in/hcservices/ suit has been filed after a long lapse of nearly 7 years. The plaintiff's explanation that major part is paid, and hence, he has filed the suit now, cannot be said to be any laches on his part. It can be well stated that it is not a fit case which would warrant for granting the relief of specific performance. ..." 19. Besides the above, the learned Counsel for the Appellants/defendants, cites the following decisions: (a) In Chinnakannu Naidu and another v. Chinnappan reported in (2008) 3 MLJ 1478, it is held as under: "The intention to treat time as essence of the contract may be evidenced by circumstances which are sufficient to displace the normal presumption that time is not essence of a contract for the sale of immovable property. Readiness and willingness to perform the agreement of sale must be shown continuously from the date of the agreement upto the date of hearing of the suit. Where time is not the essence of the contract, the party must perform his part of the contract within a reasonable time to be determined from all the surrounding circumstances including the express terms of the contract and the nature of the property. The jurisdiction to decree specific performance is discretionary depending upon various circumstances. Merely because it is lawful to grant specific relief the Court need not grant the decree. But the discretion shall not be exercised in an arbitrary or unreasonable manner." (b) In Munusamy v. Nava Pillai reported in 2008-3-L.W.252, at page 253, this Court has held among other things that 'granting a relief under the Specific Relief Act under a cloud is totally erroneous one and the Courts below without considering the above aspects accepted the case of the plaintiff and rejected the case of the defendant and even though it is a concurrent finding arrived at by the Courts below, the Court is constrained to interfere in the Second Appeal with such finding.' (c) In Amirtham v. Subbian and three others reported in 1997(II) CTC 417, it is held that 'the relief of specific performance cannot be granted to a party coming with false case and facts and that a party seeking specific performance should come to the Court with clean hands.' (d) In Arulmigu Visweswaraswami v. R.V.E.Venkatachala Gounder reported in 1996 Civ.C.R.155 (Mad.), it is laid down that 'in the absence of the plea, no amount of evidence can be looked into and the https://hcservices.ecourts.gov.in/hcservices/ ground pleaded in the suit had not taken in the notice and there is no justification for giving secondary evidence.' (e) In Gopirathnan, P. v. Ferrodous Estate (Pvt) Ltd., reported in 2007 (2) CTC 618, at pages 630 and 631, it is held as follows: "34. If this contention is accepted it would mean that during duration of the Act, i.e., till 1999, the agreement was not enforceable and such agreement could be specifically performed after 1999, when the Act was repealed. In other words, the Court would be called upon to enforce the agreement after 19 years on the basis of a consideration which was fixed almost two decades back. It is of course true that there are many instances where such matters pending before the Court for a long period and thereafter the Court passes a decree at trial stage or appellate stage for enforcement of the contract. But, such a position cannot be compared to the present case, wherein as per the opinion of the Full Bench such agreement was contrary to the Public Policy under Section 23 of the Indian Contract Act and was not enforceable, if not void. To enforce such an agreement after long lapse of time because of the subsequent event, namely, repeal of the Act, would not be equitable. 35. In this context, it would be more appropriate to indicate that during course of hearing, the learned Senior Counsel on the basis of the specific instructions of and in the presence of counsel on record had submitted that apart from Rs.4,40,000/-, which has been deposited in Court and which has been invested in fixed deposit earning interest, the plaintiff/respondent is prepared to pay a further sum of Rs.1.25 Crore for completing the transaction. On the other hand, the learned Senior Counsel appearing for the defendants/appellants submitted that since the agreement itself contemplated payment of compensation/damages in case of default by the defendants, the Court should instead of specifically enforcing the agreement, direct payment of compensation/damages to the plaintiff. Learned Senior Counsel on the basis of specific instructions and in the presence of counsel on record made a submission that the defendants/appellants are prepared to pay a consolidated compensation/damages of Rs.2 Crores. 36. It may be that the plaintiff, if permitted to purchase the property, it would develop the same and earn more profit than Rs.2 Crores offered by the defendants/appellants. However, keeping in view the fact that the defendants are the original owners and weighing both the option, we feel interest of justice https://hcservices.ecourts.gov.in/hcservices/ would be served by directing the defendants/appellants, on the basis of the concession of the counsels that the defendants/appellants shall be liable to pay a consolidated sum of Rs.2 crores as compensation/damages to the plaintiff, which would discharge their liability in full. 37. In view of the above conclusions, it is not necessary for us to go into other questions raised by the appellants to the effect that the plaintiff was not ready and willing to perform its part of the contract. 38. In the result, the Appeal is allowed in part. The judgment and decree of the learned Single Judge is modified and instead of decree for specific performance of the agreement, we direct that the defendants/appellants shall be liable to pay a sum of Rs.2 crores to the plaintiff, in discharge of their entire liability. Such amount should be paid or deposited in Court on or before 31.03.2007, failing which such amount shall carry interest at the rate of 10% per annum thereafter. The amount deposited by the plaintiff is permitted to be withdrawn by the plaintiff along with the accrued interest. The parties shall bear their own costs throughout." (f) In E.A.Thirugnanam v. V.P.Rajagopal reported in 2006(1) CTC 809, this Court has among other things, held that 'manifold increase in prices of suit property and delay in seeking relief of specific relief creates equity in favour of vendor and it would be inequitable to grant specific performance.' (g) In Amar Singh v. Baliram Singh reported in 2006(2) Civ.C.R. 637(Pat.), it is held that 'inaction of the plaintiff in not taking any remedy provided under Registration Act and failure to take any action for about 12 months tantamount to abandonment of contract and waiver of right to sue for specific performance of contract of sale and the plaintiff is not entitled to discretionary relief of specific performance.' 20. Conversely, it is the contention of the learned Counsel for the respondents that both the trial Court as well as the first appellate Court have considered the entire gamut of the matter and upon appreciation of oral and documentary evidence, has come to the right conclusion that the respondent/plaintiff (since deceased) is entitled to obtain the relief of specific performance and accordingly, passed a decree to that effect which need not be interfered with by this Court at this distant point of time sitting in the second appeal. 21. In support of his contentions, the learned Counsel for the respondents/plaintiffs relies on the following decisions: https://hcservices.ecourts.gov.in/hcservices/ (a) In P.Kathavan Servai and others v. Rahima Beevi and others reported in 1989 (1) MLJ 298, it is held as follows: "The alternative relief includes refund of any earned money or deposit paid or made by the plaintiff. The grant of a alternative relief would arise only in case the plaintiff' claim for specific performance is refused. When the plaintiff asks for the alternative relief, there is no legal presumption or assumption that he gives up the main or primary relief of specific performance of the Contract only in the context of the statute, which confirm them. The decision of the first Court and in so far as it negatives the primary relief of specific performance, is materially adverse to the plaintiff. In other words, he has been denied or deprived of something what according to the plaintiff, he is entitled to viewed in the above light, certainly an appeal, by plaintiff obtained only the alternative relief of refund of the earnest money or advance money, and who has been denied the relief of specific performance is a competent appeal. In so far as the first Court denied him of the relief of specific performance the plaintiff must be held to be an aggrieved person. There could be an exception and that is where the plaintiff has acted on conducted himself in such a manner to approbate the judgment and decree given to him, such as taking the benefit thereunder and in such a case, he cannot be permitted, to reprobate the judgment by appealing against it." (b) In P.D.'Souza v. Shondrilo Naidu, reported in AIR 2004 SUPREME COURT 4472, it is observed as follows: "41.It is not a case where the defendant did not foresee the hardship. It is furthermore not a case that non-performance of the agreement would not cause any hardship to the plaintiff. The defendant was the landlord of the plaintiff. He had accepted part-payments from the plaintiff from time to time without any demur whatsoever. He redeemed the mortgage only upon receipt of requisite payment from the plaintiff. Even in August 1981 i.e. just two months prior to the institution of suit, he had accepted Rs.20,000 from the plaintiff. It is, therefore, too late for the appellant now to suggest that having regard to the escalation in price, the respondent should be denied the benefit of the decree passed in his favour. Explanation I appended to Section 20 clearly stipulates that merely inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature would not constitute an unfair https://hcservices.ecourts.gov.in/hcservices/ advantage within the meaning of sub-section (2) of Section 20. 42. The decision of this Court in Nirmala Anand3 may be considered in the aforementioned context. 43. Raju, J. in the facts and circumstances of the matter obtaining therein held that it would not only be unreasonable but too inequitable for courts to make the appellant the sole beneficiary of the escalation of real estate prices and the enhanced value of the flat in question, preserved all along by Respondents 1 and 2 by keeping alive the issues pending with the authorities of the Government and the municipal body. It was in the facts