S P NARAYAASWAMI PILLAI Vs. DHANAKOTI AMMAL

JUDGEMENT

(1.) THE plaintiff whose suit for the specific performance of an agreement for sale in his favour of a house property has been dismissed by the learned District Judge, north Arcot, reversing the decree for specific performance given by the learned subordinate Judge is the appellant before me.

(2.) THE material facts of the case are not very much in dispute and may be briefly set out. The agreement for sale is evidenced by Ex. A. 1, dated 23-6-1958 where under the defendant, the admitted owner of the property has received an advance of Rs. 500, the price fixed for the conveyance being Rs. 9,700. The contract for sale had to be completed within 3 months, the balance of price namely, Rs. 9200 being payable by 23-9-1958 at the time of the registration of the sale, expenses of the execution and registration of the sale deed to be borne by the purchaser, namely, the plaintiff. There was the usual default clause providing for the forfeiture of the advance in the event of the purchaser failing to complete the sale as provided. The plaintiff secured an encumbrance certificate for the property on 8-9-1958, and there is evidence that the defendant cleared an encumbrance over the properly in favour of the Varalakshmi Bank on 13-9-1958. It is also established that by 20-9-1958 the plaintiff had purchased stamp papers of the value of Rs. 765 for engrossing the sale deed. On 23-9-1958, that is, the last day as shown in the agreement for sale for completing the transaction, the plaintiff filed the suit for specific performance out of which this second appeal arises complaining that in spite of his having been ready and willing to perform his part of the contract, the defendant contended that the plaintiff failed to receive the balance of consideration and execute the sale deed. The defendant contended that the plaintiff had not the requisite balance of consideration with him on 23-8-1958, that even earlier the plaintiff had sought of the defendant a loan Rs. 6000, that on 229-1958 she had sent her husband to inform the plaintiff that she would wait at the sub Registrar's office on 23-9-1958 and that she waited in the Sub Registrar's officer till 4 p. m. that there was no bona fides in the suit as the plaintiff had not deposited the balance of consideration when filling the suit, that time was essence of the contract, that the suit was prematurely instituted without even issuing a notice to the defendant and that in the circumstance the plaintiff was not entitled to specific performance. At the time of arguments in the trial court, each side sought to throw the entire blame on the other and the defendant while giving evidence expressed her readiness to register the sale deed if money was paid even then. Within three days, the plaintiff deposited the entire balance of consideration into court. On this, the learned Subordinate Judge, while penalising the plaintiff for not issuing a notice to the defendant by depriving the plaintiff of his costs decreed the suit for specific performances. But the learned District Judge on appeal while agreeing with the conclusion of the trial court that time was not the essence of the contract, took the view that as the plaintiff had not the balance of consideration till he deposited the money into court there was no force in this contention that he was ready and willing to perform his part of the contract. Commenting on the failure of the plaintiff to tender the balance to the defendant he found against the claim of the plaintiff for specific performance and dismissed the suit with costs. In my view, on the facts and circumstances of the case, this is an extraordinary decision to take.

(3.) THERE has been no contention before me, nor do I find it adumbrated specifically in that form in arguments in the courts below that the suit does not lie because it was premature. The plea of the defendant was that there was no bona fides in filling this suit on 23-9-1958 itself prematurely and that it had been filed only with a view to gain time, the plaintiff not having had the cash to pay the balance of consideration. The contention that the suit is premature on the facts of the case would be highly technical as the court could always take note of cause of action arising subsequent to the presentation of the plaint and was naturally not mooted in that form. As felt by the learned Subordinate Judge, this will be a matter for consideration in awarding costs of the proceedings. All the same it must be remarked that if the plaintiff had rushed to the court without any necessity and the defendant had no objection on her part, she could have straightway expressed her readiness and willingness to a decree and performance mulcting the plaintiff with all the costs. As noticed in Abdul Shaker Sahib v. Abdul Rahiman Sahib. ILR 46 Mad 148: (AIR 1923 Mad 284) where specific performance of sale has not been effected within the period laid down by the decree, it is open to the vendor who will be the defendant in the suit to apply for a final and peremptory order for specific performance or for an order residing in the contract either immediately or to follow automatically on the expiry of the period peremptorily granted. Equally it would have been open to the plaintiff purchase to apply to the court for an extension of time for payment of the purchase money.