KANTILAL C. SHAH Vs. A.G. DEVARAJULU REDDIAR

JUDGEMENT

(1.) THE plaintiff, who lost his suit for specific performance of a contra of sale in O.S. No. 107 of 1968 on the file of the Court of the Subordinate Judge Chingleput, is the appellant. Under, Exhibit A -1 dated 28th May, 1962 which was a registered agreement of sale, there plaintiff contracted to purchase 5 acres and 68 cents of land belonging to the defendant for a sum and consideration of Rs. 52,000. He paid a sum of Rs. 12,000 advance thereunder. Contemporaneously, it would appear that the plaintiff's wife and his sister entered into two other agreements to purchase similar lands belonging to the defendant under two independent contracts with which we are not very much concerned in this case, excepting to refer to it at appropriate places in so far as it has an impact on the facts and circumstances of this case. The plaintiff's case is that apart from the sum of Rs. 12,000 he paid a sum of Ps. 4,000 and a further sum of Rs. 1,000 on 25th August, 1964 and 21st January, 1965 respectively and notwithstanding the payment of Rs. 17,000 as above and in spite of his demands made for the due performance of the contract on the part of the defendant and although he was ready and willing to pay the balance of consideration and get the sale deed executed by the defendant, the defendant was evading performance. He has sought for possession as well if he succeeds in his claim for specific performance. The defendant in the written statement would refer to the two other agreements contemporaneously entered into between him and the plaintiff's sister and wife and would have that soon after the date when the agreements of sale as aforesaid were entered into, there was a notification issued by the State Government under Section 4(1) of the Land Acquisition Act setting the compulsory process in motion to acquire 2 acres and 40 cents out of the four acres agreed to be sold by the plaintiff's wife and sister. According to the defendant, it was the plaintiff, who brought about the agreements as between his relatives and himself and as a result of the notification for the compulsory acquisition of a portion of the land, the plaintiff was not inclined to complete the transaction, but on the other hand was anxious to receive back the amounts paid by him as advances. He would refer to the recitals in the agreement and would contend that the plaintiff at the time when he entered into the contract required the lands agreed to be purchased by him for purposes of erecting a chemical factory and he was, therefore, anxious to complete the transaction as early as possible. That such was the intention between the parties is undoubtedly clear from Exhibit A -1, the contract of sale. The defendant would allege that the land acquisition process went on as regards the other properties agreed to be sold by the plaintiff's wife and sister and during the course of such proceedings, the plaintiff gave the impression that he was not anxious to pursue his own contract for the purchase of the suit land under Exhibit A -1. According to be defendant, the plaintiff went away to north India and for more than three years, he did not return, nor did he claim the advance paid by him. Only in June, 1967 for reasons better known to the plaintiff, he sought for the completion of the sale as per the recitals in Exhibit A -1 and this, according to the defendant, was because the prices of the lands, which are the subject matter of the suit, had gone up considerably by then. He also alleges that there were certain negotiations in the matter of the return of the deposit and the defendant made it clear that by reason of the inordinate delay and due to the intervening land acquisition Process, he had to spend about Rs. 3,000 and that the said sum of Rs. 3,000 was deductible by him from the advance given by the plaintiff. The plaintiff Would not agree to the return of the sum of Rs. 9,000 and the matter drifted like that. In these circumstances, the case of the defendant is that it was the plaintiff, who was admittedly avoiding the performance of the contract and was postponing the same deliberately and did not want the land and indeed agreed to take back the advance; The plea as to the bar of the suit by the law of limitation is also taken. It is common ground that the present suit was instituted on 31st of October, 1968 and in that context the plea is that the suit is barred by limitation. In any event the plaintiff ought to have demanded the performance of the contract within a reasonable time and having regard to the circumstances of the case, the inference is, that the plaintiff has abandoned his relief for specific performance and in this context also the defendant would say that the plaintiff is not entitled to the decree as prayed for. The plaintiff filed a reply statement reiterating his original stand and denied that he ever sought for the refund of the advance amount and stressed his intention to obtain specific performance of the contract in accordance with the to nor of Exhibit A -1. The plaintiff denies that the suit is barred by limitation.

(2.) ON these pleadings, the fallowing issues were framed, by the trial Judge.

(3.) MR . N.S. Raghavan, learned Counsel for the appellant -plaintiff stresses on the fact that though there was delay in the matter of the plaintiff's claim for specific performance, yet the circumstances of the case do not warrant the inference that the plaintiff gave up or abandoned his rights under the contract. He would hesitantly urge that a further sum of Rs. 5000 was paid to the defendant by the plaintiff and that the lower Court was wrong in having found that no such sum was paid by him. In the end, he would say that in the absence of any breach in the matter of the acceptance of a deed of sale as per the contract of sale, the Court should not refuse to exercise its jurisdiction to grant the relief for specific performance of the contract. In the 'alternative, however, Mr. Raghavan finding that his client was more or loss in troubled waters, filed a petition before us C.M.P. No. 6715 of 1976 praying that if this Court finds that the equitable relief of specific performance could not be granted for some reason or other, the plaintiff may be at last given a decree in the sum of Rs. 12,000 admittedly paid as advance on the date of agreement, together with interest thereon at 6 per cent, per annum from the date of the agreement.