LAKSHMI AMMA KAMALAMMA Vs. AYYAPPAN KUNJOONJU

JUDGEMENT

(1.) Defendant is the appellant. Suit was instituted by the respondent - plaintiff for specific performance of contract for sale. Plaintiff schedule property belongs to the defendant and the plaintiff is in possession of the same on the basis of mortgage deed executed by the defendant for an amount of Rs.5,300/-. Ext.A1 agreement was executed between the plaintiff and the defendant on 22.9.1979 agreeing to sell the plaint schedule property fixing land value at the rate of Rs.132/- per cent. A sum of Rs.2,200/- was received as advance on the said date. It was also agreed that out of the total sale consideration plaintiff is entitled to deduct mortgage amount as well as the advance amount paid and to get the document executed on payment of the balance amount of Rs.3,192/- and the time stipulated was one year from the date of the agreement. Plaintiff was willing to perform his part of the contract as per the agreement. Defendant was evading request of the plaintiff for execution of the document. Consequently on 30.9.1980 plaintiff sent a notice to perform the contract by executing the document. There is no response from the defendant. Consequently suit was instituted.

(2.) Defendant resisted the suit and contended that the plaintiff was not ready and willing to perform his part of the agreement. Plaintiff has committed default to perform his part of the agreement. After the expiry of the term stipulated in Ext.A1 agreement plaintiff has attempted to convert the land in question. Defendant issued notice to the plaintiff and two years and three months after the expiry of the time stipulated in Ext.A1, plaintiff has instituted the suit which is liable to be dismissed on the ground of delay. In order to substantiate the contention, plaintiff examined PWs.1 and 2 and marked Exts.A1 to A4(a) documents. One of the sons of the defendant was examined as DW.1 and Ext.B1 postal receipt was marked. Trial Court after considering the oral and documentary evidence came to the conclusion that time was the essence of the contract. Plaintiff had failed to institute the suit within one week of the expiry of the time mentioned in the agreement. Consequently plaintiff is not entitled to get specific performance of the agreement. Trial Court also found that there is no evidence to show that plaintiff was ready and willing to perform his part of the contract before the expiry of the period of time mentioned in Ext.A1. The suit was accordingly dismissed. But the plaintiff was given a decree against the defendant for an amount of Rs.2,200/- with 6% interest on the amount from 22.9.1979 till realisation. Aggrieved by the same plaintiff has filed appeal before this Court. Learned Single Judge of this Court held that the plaintiff has established that he was ready and willing to perform his part of the agreement and thus the judgment and decree of the Trial Court was set aside and the suit was decreed for specific performance of Ext.A1 agreement. Aggrieved by the same this appeal has been preferred.

(3.) Counsel for the appellant submitted that the learned Judge has not adverted to the fact that in Ext.A1 agreement the intention was to treat the time as the essence of contract. Counsel submitted that plaintiff is entitled to institute the suit for specific performance within one week after the expiry of the period mentioned in the agreement making the deposit of the balance amount due. We are of the view Trial Court has erred in holding that time was the essence of the contract. The Apex Court in Gomathinayagam Pillai v. Palaniswami Nadar ( AIR 1967 SC 868 ) held that fixation of the period within which the contract is to be performed does not make the stipulation as to time of the essence of the contract. Intention to make time of the essence of the contract may be evidenced by either express stipulations or by circumstances which are sufficiently strong to displace the ordinary presumption that in a contract of sale of land stipulations as to time are not of the essence. Reference was also made to the decision of the Apex Court in Govind Prasad v. Hari Dutt ( AIR 1977 SC 1005 ). Ext.A1 agreement does not stipulate any default clause. It only says that the sale deed has to be executed within one year from the date of the agreement. In case defendant has not executed the sale deed what are the legal consequences that may follow have not been stipulated in the agreement. The stipulation that plaintiff could file a suit within one week from the date of the expiry of the period of agreement cannot be characterised as a clause which would disentitle him to file the suit forever. One week time stipulated would only emphasis the fact that plaintiff should immediately file the suit. What are the consequences that are to follow in case the period has not been complied with have not been stipulated in the agreement. We have already indicated that fixation of period as such does not make stipulation as to time as the essence of contract. The Apex Court in Dadarao and another v. Ramrao and others ( 1999 (8) SCC 416 ) held that if the agreement had not stipulated as to what is to happen in the event of the sale not going through, then perhaps the plaintiff could have asked the court for a specific performance. Even if time is not the essence of the contract it is true that plaintiff has to approach court within a reasonable time. As general proposition of law in the case of sale time is the essence of contract and even if it is not essence of the contract the court may fix a time that it is to be performed within a reasonable time if the conditions are genuine. In the instant case property was outstanding on mortgage to the plaintiff himself. Ext.A1 agreement stipulates that plaintiff is entitled to deduct mortgage amount of Rs.5,300/- and only pay the balance amount of Rs.3,192/-. In this case plaint schedule property was agreed to be sold by the mortgagor to the mortgagee. Plaintiff is not affected by the delay in performing the contract since he is already in possession. Though plaintiff had issued notice to the defendant requesting to perform his part of the contract defendant refused. He did not take any concrete steps and the execution of the sale deed was delayed. Plaintiff is already in possession of the scheduled property. We therefore reject the contention of the counsel for the appellant that the suit is to be dismissed on the ground of delay and also on the basis of default clause. We also find plaintiff was also given time to perform his part of the contract. We may point out that plaintiff is already in possession of the property as mortgagee. Balance sale consideration is only Rs.3,192/-. There is no material in this case to show that the plaintiff would not be in a position to pay Rs.3,192/-. It is the defendant who tried to withdraw from the contract and not the plaintiff. In order to show that plaintiff was ready and willing to perform his part of the contract PW.1 was examined. PW.1 stated that he made demand in the presence of two persons whom he has taken along with him on his way to the house of the defendant. PW.2 has categorically stated that when PW.1 made the request from the house of the defendant, he alone was present and there was nobody else at that time in the house of the defendant. We agree with the learned Single Judge that the plaintiff was ready and willing to perform his part of the contract. In such circumstances we hold plaintiff was ready and willing to perform his part of the contract and it was the defendant who defaulted. We also find no reasons to exercise the discretion under S.20 of the Act. This is a case where possession of the property is with the plaintiff for number of years. Continued possession by the plaintiff is also one of the factors for not denying decree for specific performance. Considering the entire facts and circumstances of the case we fully agree with the judgment of the learned Single Judge. We find no reason to interfere with the judgment. The appeal is dismissed. Parties would bear their respective costs.