KABIRDASS Vs. VINOTHAMBAL

JUDGEMENT

(1.) THE plaintiff and the defendant entered into an agreement of sale on 15.12.1983 in respect of some agricultural lands in Karaikal. Out of the sale consideration of Rs.27,191, Rs.5,000 was paid and the balance was intended to be paid at the time of completing the sale transaction. THE defendant was bound to obtain the encumbrance certificate and the title deeds at the time of the sale deed and also hand over possession immediately after the registration of the sale deed. In case the defendant failed to complete the sale transaction within the time stipulated i.e., six months from the date of agreement, the advance of Rs.5,000 must be refunded together with a sum of Rs.5,000 as compensation. Briefly these are the terms of the agreement. On 30.5.1984 under Ex.A.2, the defendant issued a notice indicating to the plaintiff that he is ready with encumbrance certificate and the title deeds of the property and he is also ready to hand over possession of the property and that inspite of several oral demands made by the defendant, the plaintiff was delaying the matter. Ex.A.2 was issued to remind the plaintiff that the last date for the performance of the sale is nearing. On receipt of the notice, the plaintiff alleged that he went to the defendant's residence on 4.6.1984 and informed him that he had the balance consideration ready and requested the defendant to produce the necessary documents. THE plaintiff also alleged that he was asked by the defendant to come after a couple of days. But when he went, he found that the defendant was admitted in the General Hospital, Karaikal for Paralytic attack and that because of this, nothing further could be done. To show his readiness and willingness, he purchased stamp papers for Rs. 1,600 on 11.6.1984. He waited for the defendant to return from the hospital to complete the transaction of sale. Though the defendant came back on the first day of August 1984 since he was in poor health, the plaintiff was asked to wait and finally in March 1985, the plaintiff realised that the defendant was adopting delaying tactics to get a higher price. After issuing Ex.A.3 notice dated 12.3.1985, which is Ex.A.3, the suit was filed. THE defendant died and the respondents who were the legal representatives were impleaded. THE trial Court rejected the claim for specific performance but ordered refund of advance. This was confirmed in appeal. THErefore the plaintiff has filed this second appeal, and the Cross Objection No.55 of 1992 has been filed against the decree for refund of amount.

(2.) THE learned counsel for the appellant would submit that the plaintiff had been ready and willing and it was only because of the illness of the defendant that the sale deed could not be executed and registered. She submitted that the plaintiff had done everything within his power to get the sale deed registered and had even purchased the stamp paper. THE Court below failed to see that the agreement obliged the defendant to produce the encumbrance certificate and the title deeds. So the plaintiff cannot be faulted with for not performing his part of the contract. According to the learned counsel, the following substantial questions of law arise for consideration:- 1. Whether the lower appellate Court erred in law in holding that time is essence of contract overlooking the fact that in any agreement for sale of immovable properties, time is not regarded as the essence of contract" 2. When the seller for the property has disabled himself from performing his part of the contract within the time stipulated, whether the lower appellate Court is right in negativing the relief of specific performance"

(3.) THE defendant has demonstrated his readiness and willingness to perform his part of the contract as agreed upon by him. Even as regards the importance of the time factor fixed one has to bear in mind that even if time is not the essence of the contract, the plaintiff should perform his part of the contract within a reasonable time and the surrounding circumstances should be borne in mind by the Court, while exercising its discretion. THE fact that the plaintiff did not reply or react to Ex.A.2 promptly and also the fact that inspite of receiving Ex.A.4 reply stating that he did not possess sufficient funds, the plaintiff did nothing to demonstrate his possession of funds and his willingness to take the sale deed are all relevant in this regard. THEy show that exercise of discretion in favour of the plaintiff is not warranted. THErefore questions-1 to 3 are answered against the appellant. As regards question-4, the appellate Court has held that the decree for specific performance cannot be enforced against the legal representatives. THE appellate Court has clearly committed an error in arriving at this finding. THE persons, who inherit the estate of the original owner are bound by the obligation under the sale agreement entered into by the original owner and therefore this question of law is answered in favour of the appellant. As regards the cross objection, there is no merit in the same since the parties have agreed for the return of the advance, and they are bound to do so. THE second appeal and the cross objection are dismissed. No costs.