MUNIRA FATHIMA Vs. G VELUSAMY

JUDGEMENT

(1.) BEING aggrieved by the suit for specific performance being decreed by the courts below, the unsuccessful defendant has filed this second appeal against the judgement and decree dated 5.1.2000 passed in AS.No.286/1997 by the learned VI Additional Judge, City Civil Court, Madras, confirming the Judgement and Decree dated 29.8.1997 passed in OS.No.6173/1993 by the learned VII Assistant Judge, City Civil Court, Madras.

(2.) THE facts, giving rise to this second appeal, briefly, are as follows:- a. By an agreement dated 31.3.1993 Ex.A1 entered into between the appellant as vendor and the 1st respondent herein (since deceased) as purchaser, the appellant agreed to sell a vacant site bearing Plot No.26 in S.No.15, Kolathur, Madras-99 measuring about 2400 sq.ft for a total sale price of Rs.77,000/- and in pursuant to the said agreement, the respondent paid a sum of Rs.30,000/- on the same date and further agreed to get the sale deed executed within three months from 31.3.1993. Under a specific clause in the agreement, it was agreed that the balance of consideration should be paid within three months from the date of the agreement and on such payment being made, the appellant should execute the sale deed and register the same in favour of the 1st respondent. b. THE appellant through her husband had received a further sum of Rs.10,000/- on 10.4.1993 and the same was endorsed by the defendant's husband in Ex.A1 sale agreement itself. According to the 1st respondent, he was having the remaining amount in cash in hand and was always ready and willing to complete the sale. Apart from oral requests made by the 1st respondent, he also issued a lawyer's notice dated 10.7.1993 in Ex.A3, calling upon the appellant to accept the balance of sale consideration and to execute and register the sale deed on or before 16.7.1993 i.e. before the beginning of the Tamil Month Aadi. THE said lawyer's notice was sent through Certificate of Posting as well as by Registered Post. THE notice sent by Registered Post was returned with an endorsement as refused in Ex.A4 cover. THE appellant having received the notice sent by Certificate of Posting sent a reply dated 13.7.1993 in Ex.A6 declining to complete the sale transaction on the ground that three months time stipulated under the sale agreement had elapsed and therefore, the agreement stood terminated. THE 1st respondent/purchaser was always ready and willing to complete the sale transaction and therefore, he is entitled to the relief of specific performance of the said agreement. Pending the suit, after getting permission from the trial court, the balance of sale consideration was deposited by the 1st respondent in the court on 18.2.1994. c. THE appellant in the written statement stated that under the agreement Ex.A1, the 1st respondent agreed specifically to get the transaction completed within three months from 31.3.1993 and the time was agreed specifically to be the essence of the contract. Further, it is stated that though three months time was stipulated in the agreement, the 1st respondent assured to complete the sale within 10 days from the date of the agreement. But, the 1st respondent was not prepared to get the sale deed executed, but only paid a sum of Rs.10,000/- on 10.4.1993 and assured that he would pay the balance of sale consideration and get the sale deed executed on or before 31.6.1993 as stipulated in the agreement of sale. Before the expiry of the time specified, the appellant called upon the 1st respondent to pay the balance consideration, but the 1st respondent neglected to pay the same and requested the appellant to give him a power of attorney in respect of the suit property so as to enable him to sell the same to third parties. But, the appellant refused to give any such power of attorney. By efflux of time stipulated in the agreement, the agreement stood cancelled. THE 1st respondent had issued a lawyer's notice on 10.7.1993 after the expiry of the contract period and further after coming to know of the issuance of legal notice sent by the appellant dated 9.7.1993 in Ex.A7, the 1st respondent has sent Ex.A3 notice. Further, the appellant also sent a reply dated 13.7.1993 Ex.A6 indicating that on the expiry of three months period, agreement stood cancelled. THE agreement of sale is not in force and the 1st respondent is not entitled to claim specific performance of the contract. d. Before the Trial Court, on the side of the Plaintiff, Ex.A1 to A9 were marked and the Plaintiff examined himself as PW.1. On behalf of the Defendant, Ex.B1 was marked and one Tajuddin was examined as DW.1. e. On consideration of the oral as well as the documentary evidence, the Trial Court found that time was not the essence of the contract and the 1st respondent was willing and ready to perform his part of the contract and granted a decree for specific performance. Aggrieved over the same, the appellant preferred an appeal before the first appellate court, which dismissed the appeal, confirming the judgement and decree of the trial court. Aggrieved over the same, this Second Appeal has been filed by the defendant.

(3.) MR.S.Sadasharam, the learned counsel for the appellant vehemently contended that Ex.A1 agreement stipulated a specific date for the payment of the balance of sale consideration and for getting the sale executed, thus the parties to the agreement had agreed that time is the essence of the contract. When it is so, the courts below have ignored the same and erroneously found that the time is not the essence of the contract. It was urged that the suit having been filed after the expiry of time on which the sale deed was to be executed, the surrounding circumstances indicated that the 1st respondent did not have the money to pay the balance of sale consideration on the stipulated dated i.e. as on 31.6.1993 and therefore, the readiness and willingness has not been proved by the 1st respondent, which disentitled him to the relief of specific performance which is purely a discretionary relief.