K SUNTHANTHIRAM Vs. V MURUGESAN

JUDGEMENT

(1.) THE plaintiff in the original suit is the appellant herein. The suit was filed by him on the basis of an agreement for sale dated 15. 09. 1988, to which the appellant and the defendant were the parties, for the relief of specific performance in the said contract. The learned trial Judge after trial, dismissed the suit holding the appellant/plaintiff not entitled to trelief of specific performance, by judgement and decree dated 08. 08. 1996. Aggrieved by th e same and challenging the decree of the trial court dismissing the suit filed by the appellant herein, the present appeal has been preferred on various grounds set out in the memorandum of appeal.

(2.) THE appellant had filed the suit before the trial court containing the following allegations. The suit property originally belonged to the respondent / defendant, who got it under a partition deed dated 19. 02. 1986 bearing Document No. 880 of 1986. He offered to sell the suit property measuring an extent of 2. 08 acres to the appellant/plaintiff at the rate of 2,75,000/- per acre and the said offer was accepted by the appellant/plaintiff, pursuant to which both of them entered into a written agreement for sale dated 15. 09. 1998. On the date of the agreement itself, the appellant / plaintiff paid a sum of Rs. 1,00,000/- as advance and part of the consideration. Though the agreement contains a recital that the transaction should be completed within a period of one year, the same was not the essence of the contract. In accordance with the said agreement for sale, four sale deeds covering an extent of 8,626 Sq. ft alone were executed by the respondent / defendant. Sale deed in respect of the balance extent remained to be executed. The appellant/plaintiff was ready and willing to perform his part of the contract and he had made his readiness and willingness to make payment of the balance consideration and get the sale deeds executed by the respondent /defendant, provided he could get encumbrance certificate and Income Tax clearance certificate known to the respondent/defendant. Despite repeated request made by the appellant / plaintiff, the respondent/defendant did not get Income Tax clearance certificate. On the other hand, the respondent / defendant chose to issue a telegram at the fag end of the period stipulated in the agreement, calling upon the appellant/plaintiff to make payment of the sale consideration and get the sale deed executed, as if he was ready to perform his part of the contract. The respondent / defendant also issued a lawyer's notice to that effect. A suitable reply was sent by the appellant / plaintiff, asking the respondent / defendant to get the Income Tax clearance certificate. Possession of the property, which was the subject matter of the agreement, was handed over to the appellant / plaintiff on the date of agreement itself, to enable him to form a lay out dividing the property into house sites and in fact, the appellant / plaintiff divided the properties into several house sites, out of which four plots alone were sold. While so, the respondent/defendant, who was not ready and willing to perform his part of the contract, made attempts to alienate and encumber the suit property in order to defeat the right of the appellant / plaintiff and also attempted to deposes the plaintiff/appellant, by driving him out of the suit property. Therefore, the appellant / plaintiff had to approach the Court by way of the suit for the relief of specific performance of contract directing the respondent / defendant to execute sale deed in respect of the suit 'b' Schedule property, after receiving the balance sale consideration and for permanent injunction restraining the respondent / defendant from interfering with the appellant's / plaintiff's peaceful possession and enjoyment of the suit property.

(3.) THE suit was resisted by the respondent/defendant by filing a written statement, admitting the execution of agreement for sale dated 15. 09. 1988 and the receipt of a sum of Rs. 1,00,000/- as advance and part consideration and denying the plaint allegations regarding the plaintiff's / appellant's readiness and willingness to perform his part of the obligations under the agreement. The further contentions raised in the written statement are as follows:-It was specifically agreed by the parties to the agreement that the time stipulated in the agreement was the essence of the contract. The plaint allegations regarding induction of appellant / plaintiff in possession of the suit property in part performance of the contract is false. The appellant / plaintiff did not take any step to convert the property into house sites and hence there was no occasion for him to enter the property. The suit property continues to be an agricultural land and crops are being raised periodically by the respondent / defendant. It was the respondent / defendant, who was ever willing and ready to perform his part of the contract and on the other hand, the appellant / plaintiff was not ready and willing to perform his part of the contract as he could not arrange funds for the payment of the balance consideration. The plaint allegation that the sale could not take place, since the respondent / defendant had not obtained Income Tax clearance certificate is an utter false statement. The respondent / defendant who waited in vein till the end of the contract period, issued a telegram calling upon the appellant / plaintiff to come on 15. 09. 1989 with the balance sale consideration to take the sale deed from the respondent / defendant as per the agreement. After issuing such a telegram, the defendant in fact went to the Sub-registrar's office at Surampatti and waited there from morning till evening, but the appellant/plaintiff did not turn up. Therefore, the respondent/defendant issued a layer's notice fixing a dead line for payment of the balance consideration and to take the sale deed as per the agreement and thus making time for performance as the essence of the contract. The appellant/plaintiff, who received the said notice did not even respond. Thereafter, the appellant/plaintiff waited for three long years and filed the suit on 09. 09. 1992 affixing a Court fee of Rs. 500/- alone, got the plaint returned on 14. 09. 1992, kept it in cold storage for more than 3 months and re-presented it on 04. 01. 1993, again with deficit Court fee, got it returned on 07. 01. 1993 and re-presented the same on 17. 12. 1993 with a delay of nearly one year. The said fact itself will show that the appellant/plaintiff did not have the necessary funds to pay the balance amount of sale consideration with a corollary that he was not ready and willing to perform his part of the contract from the date of agreement till the date of filing of the suit. Therefore, the appellant/plaintiff should be non-suited for the relief of specific performance sought for in the plaint.