K.R. SUNDARARAJ Vs. M. NATARAJ

JUDGEMENT

(1.) Defendants 2 and 3 in the Suit in O.S. No.648/2011 on the file of I Additional District Court, Coimbatore, are the Appellants in the above Appeal.

(2.) Brief facts that are necessary for the disposal of this Appeal are as follows:

(3.) Mr. Ar.L. Sundaresan, learned Senior Counsel appearing for the Appellants/Defendants 2 & 3 referred to the recitals in the Sale Agreement [Ex.A2] dtd. 29/7/2011 and submitted that time is the essence of the Contract. Learned Senior Counsel submitted that the Plaintiff, who has agreed to execute the Sale Deed within 30 days from the date of Agreement and who had agreed to fore-go his advance amount if he fails to pay the balance Sale consideration within the stipulated time, did not come forward to pay the balance but called upon 2nd Defendant to produce several documents without an intention to complete the sale after paying the balance. Learned Senior Counsel therefore submitted that the Plaintiff was never ready and willing to perform his part of the Contract. Since readiness and willingness is the essential requirement for granting the relief of Specific Performance, learned Senior Counsel submitted that the Trial Court has erroneously held that time is not the essence of the Contract and that the Plaintiff was ready and willing without adverting to the oral and documentary evidence. Referring to the evidence of PW1, who has admitted that he was satisfied with the title and obtained encumbrance certificate before entering into the Agreement. Learned Senior Counsel submitted that the Plaintiff unnecessarily insisted the Defendants to produce original documents and to measure the property only to avoid payment of balance within the time stipulated. Learned Senior Counsel submitted that the Trial Court ought to have held that Plaintiff was not ready and willing to perform his part of the Contract in terms of the Agreement. Learned Senior Counsel appearing for Appellants referring to the contents of notice and reply notice and evidence of Plaintiff submitted that the question of readiness and willingness has to be examined in the factual context and not by what Plaintiff says in his Plaint or evidence.