In the High Court of Judicature at Madras Dated 06.06.2011 Coram The Honourable Mr.Justice R.SUBBIAH Second Appeal No.484 of 1998 Mariammal ..Appellant/Respondent ..vs.. Sellavel ..Respondent/Appellant Second Appeal filed under section 100 of the Code of Civil Procedure, against the judgment and decree dated 19.02.1998 made in A.S.No.168 of 1997 on the file of Principal District Court, Erode, reversing the judgment and decree dated 03.03.1997 made in O.S.No.340 of 1996 on the file of Sub Court, Bhavani. For Appellant : Mr.T.Murugamanickam For Respondent : Mr.S.Mukunth for M/s.Sarvabhauman Assocites JUDGMENT This second appeal is directed against the judgment and decree dated 19.02.1998 passed by the learned Principal District Judge, Erode, in A.S.No.168 of 1997, whereby the judgment and decree passed by the learned Subordinate Judge, Bhavani, dated 03.03.1997 in O.S.No.340 of 1996 were set aside. 2. The appellant is the defendant and the respondent is the plaintiff, who filed the suit for specific performance of the contract entered into between the parties with regard to the sale of suit property. To avoid confusion, the parties are hereafter described as they were arrayed in the suit. According to the plaintiff, the defendant agreed to sell the suit property to the plaintiff for a sale consideration of Rs.4,500/- by a sale agreement dated 30.03.1977 and she received an advance of Rs.10/- and agreed to execute a sale deed on payment of the balance amount within a period of seven years i.e.till 30.03.1984. Before the completion of seven years, at the request of the plaintiff, time was extended for another ten years from 30.03.1984 to complete the sale under a sale agreement entered into between the parties on 11.07.1983. Though the plaintiff https://hcservices.ecourts.gov.in/hcservices/ has been ready and willing to pay the balance amount, the defendant has been postponing the execution of the sale deed for one reason or other and as such, he issued a legal notice to the defendant on 03.06.1989 calling upon her to receive the balance sale price and execute the sale deed. On receipt of the notice, the defendant did not give any reply nor execute the sale deed in favour of the plaintiff. Hence, the suit. 3. The defendant filed a written statement denying the averments made in the plaint and stated that after the sale agreement dated 30.03.1977, though she demanded the plaintiff to pay the balance amount, he was only postponing the execution of the sale deed. During October, 1983, the plaintiff approached the defendant for further extension of time for execution of the sale deed; but the defendant refused to do the same. Hence, the plaintiff along with his relatives, threatened the defendant to do away with her life and her property and the defendant was forced to execute another sale agreement dated 11.07.1983 without any consideration and hence, it is void and unenforceable in law. 4. On the said pleadings, the trial court framed necessary issues and on the side of the plaintiff, he examined himself as P.W.1 besides examining two other witnesses as P.Ws.2 and 3 and marked Exs.A-1 to A-9 and on the side of the defendant, she examined herself as D.W.1 and marked Exs.B-1 to B-3. The trial court, after considering the entire evidence on record both oral and documentary, had dismissed the suit. Challenging the same, the plaintiff filed A.S.No.168 of 1997 on the file of Principal District Court, Erode, wherein the appeal was allowed and the judgment and decree of the trial court were set aside. Being aggrieved, the defendant has filed the present second appeal. 5. At the time of admission of the second appeal, this Court has formulated the following substantial questions of law for consideration: (1) When the plaintiff is not a signatory to Ex.A-2, Agreement of Sale and no consideration was passed, whether it can be considered to be a completed contract capable of being enforced ? (2) When the plaintiff has not let in any evidence to prove his readiness and willingness for a period of 20 years from the date of agreement till date of decree, whether the relief of specific performance could have been granted ? When the matter was taken up on 07.04.2011, the following additional substantial question of law has been framed for consideration in the presence of both parties: Whether the discretionary relief of specific performance can be granted when there is an inordinate delay in seeking to enforce an agreement of sale ? https://hcservices.ecourts.gov.in/hcservices/ 6. Heard the learned counsel for both sides and perused the materials available on record. 7. Before the courts below, the defendant (the appellant herein) had taken a defence that Ex.A-2, the sale agreement dated 11.07.1983 was unenforceable in law because it was executed under threat and coercion and also without any consideration and the plaintiff was never ready and willing to perform his part of the contract. Considering the case of the plaintiff, the trial court has dismissed the suit on a finding that the plaintiff has not proved his case that he was ready and willing to perform his part of the contract on the following reasons: (i) originally the suit was decreed ex parte on 09.07.1991; (ii) while passing ex parte decree, the trial court has granted one month time for the plaintiff to pay the balance sale consideration; (iii) though one month time was granted, the plaintiff has not deposited the amount within a period of 30 days i.e.on or before 09.08.1991. But the lower appellate court has held that on 09.08.1991, the plaintiff has filed lodgment schedule to pay the balance sale amount and since the lodgment schedule was filed on 09.08.1991 i.e.the last day for the deposit of the sale amount as per ex parte decree, it cannot be said that the plaintiff was not ready and willing to perform his contract and thus, set aside the judgment and decree of the trial court and allowed the appeal. That apart, the lower appellate court has disbelieved the case of the defendant that Ex.A-2 was obtained by the plaintiff under coercion and threat and decreed the suit. That apart, the lower appellate court has come to the conclusion that since already Rs.10/- was paid under Ex.A-1 agreement dated 30.03.1977, there is no need to pay further consideration when the sale agreement under Ex.A-2 entered into between the parties on 11.07.1983. 8. Attacking the said finding of the lower appellate court, the learned counsel for the defendant (appellant) submitted that the conduct of the party with regard to the readiness and willingness has to be seen only prior to the filing of the suit and not subsequent to the suit. But in the instant case, the lower appellate court, by considering the conduct of the plaintiff in depositing the amount pursuant to the ex parte decree, has rendered the finding. In this regard, it is the further submission of the defendant that the ex parte decree passed by the court was set aside and subsequently the suit was decided on merits. Under such circumstances, the finding with regard to the readiness and willingness based on the direction given in the ex parte decree, is not correct. But, on the other hand, the conduct of the party would show that from the date of first sale agreement, he has not taken any efforts to pay the balance sale https://hcservices.ecourts.gov.in/hcservices/ consideration and under such circumstances, the finding of the lower appellate court is liable to be set aside. In support of his submissions, the learned counsel has relied on the decisions reported in THIRUGNANAM, N.P.ETC. .vs. DR.R.JAGAN MOHAN RAO AND OTHERS (1996- 1-L.W.239), K.S.VIDYANADAM AND OTHERS .vs. VAIRAVAN (1997(I) CTC 628) and SHANTHI KAWARBAI AND OTHERS .vs. SUSHILA (2009(4) CTC 842). 9. Resisting the submissions made on behalf of the defendant, the learned counsel appearing for the plaintiff (respondent herein) would submit that the lower appellate court, by considering the conduct of the plaintiff in depositing the sale amount pursuant to the ex parte decree as one of the attending circumstances, had come to the conclusion that the plaintiff was always ready and willing to perform his part of the contract and, as such, no infirmity could be found in the said finding and he is entitled to the equitable relief of specific performance. Therefore, the judgment and decree of the lower appellate court are based on well founded finding and the same need not be interfered with. 10. It is, no doubt, a perusal of the records would show that the plaintiff has not only in the plaint averments but also in his evidence as P.W.1, had categorically stated that he made attempts to pay the balance sale amount and it is the defendant, who was avoiding to receive the same, and as such, he filed the suit; but, in my considered opinion, absolutely no document was filed by the plaintiff to show that he was ready and willing to perform his part of the contract. Though the first agreement was entered in the year 1977 and the second agreement was subsequently executed in 1983, the plaintiff had sent the legal notice dated 03.06.1989, marked as Ex.A-3, which was issued just 15 days prior to the filing of the suit. Therefore, in my considered opinion, the plaintiff has miserably failed to prove his case that he was ready and willing to perform his part of the contract. 11. As contended by the learned counsel for the defendant (appellant), the readiness and willingness of a party has to be decided from his conduct only prior to the filing of the suit. But, the lower appellate court has not pointed out any valid reasons in support of his finding that the plaintiff was always ready and willing to perform his part of the contract subsequent to the second agreement dated 11.07.1983. On the other hand, based on the lodgment schedule filed for the deposit of the sale price pursuant to the ex parte decree, it has come to the conclusion that the plaintiff has established his readiness and willingness in performance of the contract. In my considered opinion, when once the ex parte decree had been set aside, no significance could be attached to the lodgment schedule filed by the plaintiff to take the same as a proof for showing the conduct of the plaintiff that he was ready and willing to perform his part of the contract. Therefore, the finding of the lower https://hcservices.ecourts.gov.in/hcservices/ appellate court that the plaintiff was always ready and willing to perform his part of the contract is liable to be set aside. 12. It is pertinent to point out that under Ex.A-1 sale agreement, seven years' period has been fixed to execute the sale deed and by way of extension another period of ten years was granted to the plaintiff to pay the sale consideration and get the sale deed executed. In this regard, a reference could be placed upon the judgment relied on by the plaintiff in 1996-1-L.W.239 (supra), wherein the Hon'ble Supreme Court has held as follows: "5. It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under Section 20 of the Specific Relief Act, 1963 (for short “the Act”). Under Section 20, the court is not bound to grant the relief just because there was a valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of contract". In the instant case, the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances would show that he was not ready and willing to perform his part of the contract. https://hcservices.ecourts.gov.in/hcservices/ 13. As the fitting answer to the additional substantial question of law, namely, whether the discretionary relief of specific performance can be granted when there is an inordinate delay in seeking to enforce an agreement of sale, the learned counsel for the defendant relied on S.20)2)(a) of the Specific Relief Act, which reads as follows: 20. Discretion as to decreeing specific performance: (2) The following are cases in which the Court may properly exercise discretion not to decree specific performance-- (a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or.... and submitted that if the contract gives the plaintiff unfair advantage over the defendant, the court need not exercise discretion in granting equitable relief of specific performance. In the instant case, it is the submission of the learned counsel for the defendant that by paying only Rs.10/- and by getting a longer period of seven years and another period of ten years under two agreements respectively, the plaintiff has taken an unfair advantage over the defendant. On the contrary, it is the reply of the learned counsel for the plaintiff that since the defendant had also agreed for the extension of ten years' period, now it cannot be said that the plaintiff had taken an unfair advantage over the defendant in getting the sale deed executed. In this regard, an useful reference could be placed in some of the judgments relied on by the learned counsel for the plaintiff. In 2009(4) CTC 842 (supra), a Division Bench of this Court as follows: "29. In the instant case, the total inaction and laches on the part of the plaintiff was for a period of three years. The suit was filed just one day prior to the completion of three years and that too with false averments. In such circumstances, it is not a fit case where the Court can exercise the discretionary powers to grant the relief of specific performance. ...". 14. The Hon'ble Supreme Court in 1997(1) CTC 628 (supra) has held as follows: "13. In the case before us, it is not mere delay. It is a case of total inaction on the part of the plaintiff for 2½ years in clear violation of the terms of agreement which required him to pay the balance, purchase the stamp papers and then ask for execution of sale deed within six months. Further, the delay is coupled with substantial rise in prices – according to the defendants, three times-between the date of agreement and the date of suit notice, the delay has brought https://hcservices.ecourts.gov.in/hcservices/ about a situation where it would be inequitable to give the relief of specific performance to the plaintiff". 15. A reading of the above judgments would show that if there are laches on the part of the plaintiff, the court need not exercise the discretionary powers to grant the relief of specific performance. In the instant case, only a paltry sum of Rs.10/- was given under the original sale agreement of the year 1977 and subsequent agreement was entered in the year 1983 for a longer period of ten years and the suit was filed in the year 1989 and all these cumulative facts would show that the plaintiff is not entitled for equitable relief of specific performance. Though the learned counsel for the plaintiff has relied upon a judgment reported in GURDEV KAUR .vs. KAKI (AIR 2006 SC 1975) that under section 100 C.P.C., even if the findings are wrong, the same cannot be interfered with, I am of the opinion that so far as this case is concerned, the finding arrived at by the lower appellate court is perverse and contrary to the evidence available on record. Therefore, this court feels that there are compelling circumstances to make an interference in the finding arrived at by the lower appellate court and hence, the substantial questions of law are answered in favour of the defendant. For the reasons stated above, the second appeal is allowed and the judgment and decree of the lower appellate court are set aside and the judgment and decree of the trial court are confirmed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gl To 1. The Principal District Judge, Erode. 2. The Subordinate Judge, Bhavani. +1 CC to M/s.Sarvabhauman Associates, S.R.No.32191 +1 CC to Mr.T.Murugamanickam, Advocate, S.R.No.31984 Copy to: The Section Officer, VR Section,High Court, Madras. Appeal No.484 of 1998 RSY(CO) SRA(6/7/2011) https://hcservices.ecourts.gov.in/hcservices/