Case: Padmakumari  Vs. Dasayyan

2. The concurrent finding of fact recorded by the High Court of Madras, Bench at Madurai, in Appeal Suit No. 646 of 1994 affirming the judgment and decree dated 15.06.1994 passed in O.S. No. 63 of 1993 on the file of Sub Court, Kuzhithurai District is under challenge in this appeal by defendant Nos.12 to 15 urging various legal grounds3. For the sake of convenience, the ranks of the parties assigned in the plaint filed before the trial court is adverted to in this judgment4. Defendant Nos. 1 to 11 entered into an agreement of sale on 19.04.1992 in favour of the plaintiff and executed an unregistered agreement agreeing to sell the suit schedule property measuring 2.08 acres of land belonging to them. The total sale consideration amount is Rs. 65,000/-. Advance amount of Rs. 2,000/- was agreed to be paid for execution of sale and the remaining balance consideration is agreed to be paid within nine months from the date of agreement of saleUndisputedly, the remaining balance sale consideration is not paid on or before 18.04.1993. On 3.02.1993, defendant Nos. 12 to 15 entered into an unregistered agreement (marked as Exhibit B-1) with defendant Nos. 1 to 11 to purchase a part of the suit schedule property. As per the said unregistered agreement, the property is agreed to be sold for Rs. 80,000/-. Advance amount of Rs. 10,000/- was also paid to defendant Nos.1 to 11. On 19.04.1993, out of the suit schedule property Sale Deed No. 75 of 1993 (marked as Exhibit B-3) for 1.70 acres was executed by defendant Nos. 1 to 11 in favour of defendant Nos.12 to 15. Out of the sale consideration of Rs. 80,000/- a sum of Rs. 10,000/- is paid as advance amount, a further sum of Rs. 30,000/- is paid at the time of execution of the sale deed, remaining Rs. 40,000/- is retained to be paid in favour of defendant Nos. 1 to 11, free of interest, within one month from the date of disposal of I.A. No. 208 of 1990 in A.S. No. 95 of 1990 pending on the file of District Court Nagarcoil. The appeal was filed challenging the decree for partition in O.S. No. 11 of 19785. The plaintiff got issued the legal notice (Exhibit A-3) on 29.04.1993 to defendant Nos. 1 to 15 demanding execution of the sale deed as per the agreement (Exhibit A-1). Defendant Nos. 12 to 15 replied vide Exhibit B-7. The other defendants did not reply to the demand made by the plaintiff, therefore, he was constrained to institute original suit on 14.06.1993 before the Sub Court Kuzhithurai. The written statements were filed by all the defendants denying the claim of the plaintiff inter alia contending that the time is the essence of the contract as per unregistered agreement of sale (Exhibit A-1). As the plaintiff had agreed to pay remaining sale consideration of Rs. 63,000/- within nine months from the date of agreement, the same has not been paid. Since there is breach of contract on the part of the plaintiff and, therefore, he is not entitled for decree of specific performance in respect of the suit schedule property. Further, it is pleaded that the plaintiff has not shown his readyness and willingness to perform his part of the contract, as required under Section 16(c) of the Specific Relief Act, therefore, defendant Nos. 1 to 11 contended that the plaintiff is not entitled for a decree of specific performance of the suit schedule property. Defendant Nos. 12 to 15 denied the plaint averments, however, specifically pleaded that they are the bona fide purchasers of the part of the suit schedule property and they are protected under Section 19(b) of the Specific Relief Act. On the basis of the said pleadings the case went for trial. Before the trial court the plaintiff and defendants were examined in support of their respective claim and counter claim. The trial court on the basis of the pleadings and evidence adduced on record has formulated the following four issues:(i) Whether specific performance of the contract as sought by plaintiff is allowable?(ii) Is sale deed dated 19.04.1993 valid?(iii) Have D12 to D15 purchased the suit property in good faith?(iv) What are the reliefs plaintiff is entitled?6. The trial court on the basis of pleadings and the evidence produced on record has appreciated and answered the Issue Nos. 1 and 2 in favour of the plaintiff. Issue No. 3 was answered against defendant Nos. 12 to 15 and, accordingly, answered Issue No. 4 and passed the decree of specific performance in favour of the plaintiff in respect of the suit schedule property with certain directions to him7. Aggrieved of the said judgment and decree of the learned trial judge, defendant Nos. 12 to 15 preferred an appeal before the High Court raising certain grounds inter alia urging that findings and reasons recorded on the contentious issue Nos. 1 to 3 are erroneous in law and are liable to be set aside and prayed to set aside the judgment and decree of the trial court and disposal of the appeal suit instituted by them. On the basis of the rival legal contentions, the High Court has formulated certain points and the same have been answered in favour of the plaintiff by assigning reasons, rejecting the legal contentions urged in the Appeal Suit on behalf of defendant Nos. 1 to 15. The concurrent finding recorded in the impugned judgment of the High Court is under challenge in this appeal urging certain grounds and prayed to set aside the impugned judgment and decreeThe concurrent finding of fact recorded by the High Court of Madras, Bench at Madurai, in Appeal Suit No. 646 of 1994 affirming the judgment and decree dated 15.06.1994 passed in O.S. No. 63 of 1993 on the file of Sub Court, Kuzhithurai District is under challenge in this appeal by defendant Nos.12 to 15 urging various legal

Reasoning: 16. The said legal contention urged on behalf of defendant Nos. 12 to 15 has been strongly rebutted by learned counsel on behalf of the plaintiff contending that the question of payment of balance consideration amount of Rs. 63,000/- within nine months would have arisen after the terms and conditions of the contract agreed upon by defendant Nos. 1 to 11 if they had measured the suit schedule property. They have not discharged their part of the contract stipulated in the agreement to sell, therefore, it is urged by him that time was not the essence of the contract as defendant Nos. 1 to 11 themselves have failed to perform their part of the agreement17.The said contention urged on behalf of the plaintiff is unacceptable to us that the question of taking measurement would not arise before the plaintiff perform his part of the contract regarding the balance consideration within the period stipulated in the agreement. Undisputedly, that had not been done by the plaintiff in the instant case within the stipulated time and the notice was issued by the plaintiff only after one year, therefore, the plaintiff has not adhered to the time which is stipulated to pay the balance consideration amount to defendant Nos. 1 to 11 which is very important legal aspect which was required to be considered by the Courts below at the time of determining rights of the parties and pass the impugned judgment. The Courts below have ignored this important aspect of the matter while answering the contentious Issue Nos. 1 and 2 in favour of the plaintiff and granted decree of specific performance in respect of the suit schedule property. The said finding of fact is contrary to the terms and conditions of the agreement, pleadings and the evidence on record. Accordingly, we answer the said issues in favour of defendant Nos. 12 to 15 after setting aside the concurrent finding of fact recorded by the High Court18. The second important legal contention raised by defendant Nos. 12 to 15 is that the pleadings of the plaintiff is not in conformity with Order 6 Rule 3 CPC, clause 3 of Form No. 47 in Appendix A, extracted hereinabove. By a careful reading of paragraph 6 of the plaint makes it very clear that the averment as provided under clause 3 is not in stricto sensu complied with by the plaintiff19. Upon a careful reading of the abovesaid paragraph we have to hold that the plaintiff has not complied with the legal requirement which is mandatory as provided under Section 16 (c) of the Specific Relief Act. Section 16(c) fell for consideration and has been interpreted by this Court in a number of cases, referred to supra, upon which reliance has rightly been placed and the said decisions are applicable to the fact situation in support of defendant Nos. 12 to 15 and, therefore, we have to hold that the concurrent finding of fact recorded by the High Court on Issue No. 1 is erroneous in law and is liable to be set aside20. The last contention urged is whether defendant Nos. 12 to 15 (the appellants herein) are protected under Section 19(b) of the Specific Relief Act as they being the bona fide purchasers. Learned counsel for defendant Nos. 12 to 15 has rightly invited our attention that the non-compliance of the contract regarding payment of balance consideration to defendant Nos. 1 to 11 on the part of the plaintiff within nine months is an undisputed fact and further the agreement of sale is not registered, as is evidenced from the encumbrance certificate obtained by defendant Nos. 12 to 15 before they entered into an agreement (Exhibit B-1). Both the Courts below have erroneously recorded an erroneous finding on the non existent fact holding that the agreement of sale in favour of the plaintiff is a registered document which, in fact, is not true. The same is evidenced from the encumbrance certificate. More so, defendant Nos. 12 to 15 before entering into the agreement with defendant Nos. 1 to 11 have made proper verification from the competent authority to purchase the part of the suit schedule property and got the agreement of sale (Exhibit B-1) executed in their favour, from defendant Nos. 1 to 11 and thereafter, they got the sale deed registered by paying sale consideration amount. As could be seen from the agreement of sale and registered sale deed, which is marked as Exhibit B-3, it is very clear that defendant Nos. 12 to 15 have paid the sale consideration amount of the property, therefore, the reliance placed upon Section 19(b) of the Specific Relief Act as they being the bona fide purchasers, the specific performance of contract cannot be enforced against the transferees. Defendant Nos. 12 to 15 being the transferee as they have purchased the suit schedule property for value and have paid the money in good faith and without notice of the original contract21. In view of the aforesaid facts, the purchase of the part of the suit schedule property by defendant Nos. 12 to 15 for a valuable consideration is established by the above defendants by adducing evidence on their behalf before the trial court. Both the Courts below have omitted to consider this important piece of pleadings as also the material evidence on record thereby the concurrent finding recorded on the contentious issues has been rendered erroneous in law and is liable to be set aside. Accordingly, we answer the said issues in favour of defendant Nos. 12 to 15.