VASANTHA Vs. M SENGUTTUVAN

JUDGEMENT

(1.) SECOND Appeal No. 314 of 1986 arises from O. S. No. 1482 of 1981, a suit for specific performance filed by the appellants. SECOND Appeal no. 2101 of 1986 arises from O. S. No. 197 of 1981, filed by the defendant in O. S. 1482 of 1981. It was a suit for recovery of the property from the appellants. Both the suits were tried jointly, and evidence was taken in O. S. No. 197 of 1981, i. e. , the suit filed by the respondent in both the appeals. In this judgment, reference to parties will be according to their rank in O. S. No. 1482 of 1981, which relates to SECOND Appeal No. 314 of 1986, in which the plaintiffs in O. S. 1482 of 1981 are the appellants.

(2.) THE plaint property admittedly belonged to the defendant, respondent herein. On 29. 1. 1978, an agreement for sale was executed between the parties. THE plaintiff M. S. Mani agreed to purchase the plaint schedule property for a total consideration of Rs. 3,180, and paid an advance of rs. 1,000. As per the terms of the agreement, the plaintiff, agreed to take the sale deed within a period of six months from the date of the agreement on payment of the balance sale consideration at his expenses. THE defendantsenguttuvan, in his turn, agreed that he will provide the plaintiff with No Objection Certificate from the Urban Ceiling Authorities and also would satisfy him that the property is free from any encumbrance. It is the case of the plaintiff that subsequent to the agreement, the defendant was not ready to give a sale deed: Plaintiff was put in possession of the property, and with the consent of the owner, he has put up the construction, and for the house-warming ceremony, the defendant was also invited. His close friend who was residing just opposite to the plaint property also attended the house-warming ceremony. In the suit for specific performance, it is said that the plaintiff (M. S. Mani)was always ready and willing to take the. sale deed in accordance with the terms of the agreement. But he could not take the sale deed, since the defendant demanded a higher price, and he also did not get No Objection certificate from the Urban Ceiling Authorities, nor was the non-encumbrance certificate obtained by him. Plaintiff prayed that the defendant may be directed to execute a sale deed in his favour.

(3.) TRIAL Court, after recording evidence, both oral and documentary, found that even though six months' ; time was provided in the agreement, time was not the essence of the contract. It further found that the stipulation for getting sanction from the Urban Land Ceiling Authorities was not taken seriously by the respondent, nor was the non-production of the non-encumbrance certificate a mitigating circumstance for not taking the sale deed. TRIAL Court found that these two clauses cannot be said as stipulations which prevented the appellant from taking the sale deed. Thai part of the finding by the trial Court Was not disturbed by the lower appellate Court. The trial Court further held that even though time was not the essence of the contract, and the respondent was prepared to waive the same and receive the balance of consideration even after the expiry of the period, and since the appellant has spent more than Rs. 11,000 for putting up construction in the plaint property, it cannot be said that he was not having sufficient funds to take the sale deed. Even though the appellant was not having sufficient funds for some period to take the sale deed, that will not debar him from getting a decree for specific performance. The appellant' s suit was decreed, and the respondent' s suit was dismissed.