(Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, praying to reverse and set aside the judgment and decree dated 12.08.2010 passed by the District Judge, Kanyakumari @ Nagercoil in A.S.No.30 of 2006 in reversing the judgment and decree of Principal Sub Judge, Nagercoil, dated 29.09.2005 in O.S.No.115 of 2004.)
1. The plaintiff in the suit in O.S.No.115 of 2004 on the file of the Principal Sub Court, Nagercoil, is the appellant in this Second Appeal. The appellant filed a suit for specific performance of an agreement of sale dated 11.09.2001.
2. The case of the plaintiff / appellant as per the plaint are summarised as follows:
2.1. The suit property measuring an extent of ten cents as described in the plaint belongs to the defendant. On 11.09.2001 the plaintiff / appellant and the defendant / respondent entered into an agreement of sale in respect of the suit property. As per the agreement, the total sale consideration for the entire suit property was Rs.2,50,000/- and an advance amount of Rs.30,000/- was paid as on the date of agreement. A further sum of Rs.32,500/- was paid on 25.01.2001 to the defendant / respondent who acknowledged the receipt of the said amount by an endorsement. Again on 12.12.2001, the plaintiff / appellant paid a further sum of Rs.50,000/-. This payment was also acknowledged by the defendant by way of an endorsement on the backside of the sale agreement.
2.2. Though the plaintiff / appellant was ready and willing, even in the year 2002 to 2004, the defendant / respondent was postponing the execution of the sale. The plaintiff / appellant issued notice on 21.06.2004 requesting the defendant / respondent to execute the sale deed. However, the defendant / respondent sent a reply notice dated 27.07.2004 raising false and frivolous allegations. Hence, the plaintiff / appellant was constrained to file the suit for specific performance by instituting a suit on 30.09.2004.
3. The suit was contested by the defendant / respondent on many grounds. The defendant / respondent disputed the identity of the suit property in the written statement and paragraph 2 of the written statement is extracted for convenience:
2. It is humbly submitted that there is no such plaint schedule property is in existence as stated in paragraph 1 of the plaint and as described in the schedule of property and there is no Pasupathi Nitheswarar Nagar as averred in Paragraph 1 of the plaint. It is the duty of the plaintiff of prove the averment in paragraph 1 of the plaint.
4. The defendant / respondent also contested the suit on the ground that the defendant's / respondent's signature was obtained fraudulently and hence, the suit agreement according to the defendant / respondent, is void and not enforceable. Though the receipt of a sum of Rs.30,000/- at the time executing the sale agreement was admitted by the defendant / respondent in the written statement, it was his specific case that the third page in the agreement was created by the broker and the schedule appended to the sale agreement was also manipulated.
5. Sum and substance, the defendant / respondent raised a specific plea with regard to the genuineness of the sale agreement and denied the receipt of money as per the endorsement as well as his signature. The defendant / respondent also raised a plea that the plaintiff / appellant is not ready and willing to perform his part of the contract in terms the agreement. Further, the defendant / respondent also took a stand that the suit which was filed after a period of 2 years from the date of agreement is liable to be dismissed on the ground of laches and the long delay in approaching the Court would demonstrate the fact that the plaintiff / appellant himself had abandoned his right under the sale agreement.
6. The suit was decreed by the Trial Court after holding that the sale agreement is proved by the plaintiff / appellant. The trial Court has not even framed an issue with regard to the readiness and willingness of the plaintiff / appellant. Further, despite the fact that a specific plea in the written statement has been raised by the defendant / respondent with regard to the identity of the suit property and the enforceability of the sale agreement in respect of the property described in the sale agreement and the plaint, the trial Court has neither framed an issue nor considered the issue regarding the identity of the suit property. Even with regard to the question of delay in filing the suit, the trial Court has not given any finding.
7. Aggrieved by the judgment and decree of the trial Court, the defendant / respondent filed an appeal in A.S.No.30 of 2006 on the file of the District Court, Kanyakumari at Nagercoil. The lower appellate Court, after considering the evidence in a proper perspective allowed the appeal and reversed the findings of the trial Court. As a result, the lower appellate Court has dismissed the suit in toto. Aggrieved by the judgment and decree of the lower appellate Court, the plaintiff has preferred this Second Appeal.
8. At the time of admitting the second appeal, this Court was pleased to frame the following questions of law:
(1) Whether the lower appellate Court has rendered a perverse finding to the effect that Ex.A1-agreement for sale is not a genuine one, despite the fact that the respondent / defendant had not taken such a plea in the reply notice to the pre-suit notice in which the very same description of property as found in Ex.A1 was provided?
(2) Whether the lower appellate Court has committed an error in holding that the property described in Ex.A1 is not in existence when the respondent / defendant has not stated that regarding which other property the original agreement was executed?
(3) Whether the finding of the lower appellate Court that the third sheet of Ex.A1-Agreement had been removed and a sheet with a forged signature has been annexed is without any basis and hence, perverse?
9. First of all, the learned counsel for the plaintiff / appellant submitted that the defendant has not raised an issue with regard to the identity of the suit property and hence, the lower appellate Court is wrong in reversing the findings of the trial Court and refusing to grant the decree for specific performance on the ground that the property is not identifiable one. The learned counsel for the plaintiff / appellant also attacked the judgment of the lower appellate Court with regard to the readiness and willingness of the plaintiff / appellant and on other issues in tune with the questions of law framed by this Court. First of all, the suit property has been described in the suit agreement as well as in the plaint in the following manner:
Schedule of property
10. Admittedly, the plaintiff / appellant has not produced the lay out plan nor a rough sketch indicating the division of larger extent of 2 acres 75 cents or the division of plots bearing numbers 1 to 72 so that plot Nos.29 and 30 referred to in the schedule can be located. Even the dash found in the description is not explained by the plaintiff / appellant either in the plaint or at the time of argument. The suit property had been shown as property measuring an extent of ten cents. This extent of ten cents is described in the schedule as lying in two plots. The description of this two portions in the suit schedule will not make sense and it has been demonstrated by the learned counsel for the respondent that the suit property can never be identified on ground and that the Court cannot enforce the agreement of sale.
11. The contention of the appellant that this issue was not raised before the trial Court is wrong as the defendant has specifically pleaded that there is no such property as per the description in the plaint. It is fundamental that the subject matter of agreement should be specified with clarity as otherwise the agreement would be void for vagueness. The description of the property should be in such a way so that the property is identifiable on ground and capable of being ascertained. In this case, the description is vague and there was no attempt by plaintiff by producing the layout plan or some document referred to in the agreement to locate the suit property with certainty. Hence, the plaintiff is not entitled to seek specific performance of the agreement.
12. Secondly, with regard to the question of readiness and willingness, I do find that the suit agreement specifically refers to three months time for the plaintiff / appellant to pay the balance of amount and complete the sale transaction. The sale agreement is dated 11.09.2001. The time for performance comes to an end by 10.12.2001. After the execution of the sale agreement and the payment of subsequent amounts within few months pursuant to the sale agreement, it is the case of the plaintiff / appellant that he issued the suit notice only on 21.06.2002 i.e., nearly after 2 years from the date of sale agreement. Even in the said notice, the plaintiff / appellant has come up with the plea that the sale agreement dated 11.09.2001 is an agreement where time is not the essence of the contract. This is contrary to the specific recitals of the sale agreement. When the sale agreement specifically provides time limit of three months, the case pleaded by the plaintiff / appellant in the suit notice without an explanation for the long delay of 2 years in issuing the suit notice would clearly indicate that the plaintiff / appellant is not ready and willing to perform his part of the contract strictly in terms of the sale agreement which is sought to be enforced by the plaintiff / appellant. The learned counsel for the plaintiff / appellant relied upon a judgment of the Hon'ble Supreme Court in the case of P.Prushottam Reddy and another v. M/s.Pratap Steels Ltd., reported in AIR 2002 SC 771 wherein the Hon'ble Supreme Court had an occasion to deal with the question whether assignment of time was essence of contract.
8. For the purpose of deciding the question whether or not time was the essence of the contract the appellant before the High Court relied on K.S. Vidyanandam and Ors. v. Vairavan - which is a two-Judge Bench decision and a few other decided cases. On behalf of the plaintiff-respondent reliance was placed on Chandnee Widya Vati Madden v. C.L. Katial and Ors. - , which is a three-Judge Bench decision. The High Court noticed the facts of both these decisions, and having also dealt with the law laid down therein felt inclined to decide the case in the light of the law laid down in Chandnee Widya Vati's case because the decision in Chandnee Widya Vati's case was as stated by the High Court, "the earlier larger Bench judgment". The attention of the High Court was not invited to a Constitution Bench decision in Chand Rani (Dead) by Lrs. v. Kamal Rank (Dead) by Lrs.- and therefore the law laid down by the Constitution Bench has escaped the attention of the High Court. The issue as to whether time is the essence of the contract in contracts for sale of immoveable property came up for the consideration of the Constitution Bench and it was held:-
"It is a well-settled principle that in the case of sale of immovable property, time is never regarded as the essence of the contract. In fact, there is a presumption against time being the essence of the contract. This principle is not in any way different from that obtainable in England. Under the law of equity which governs the rights of the parties in the case of specific performance of the contract to sell real estate law looks not at the letter but at the substance of the agreement. It has to be ascertained whether under the terms of the contract the parties named a specific time within which completion was to take place, really and in substance it was intended that it should be completed within a reasonable time. An intention to make time the essence of the contract must be expressed in unequivocal language."
xxx xxx xxx ".....in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract the Court may infer that it is to be performed in a reasonable time if the conditions are:
1. From the express terms of the contract.
2. from the nature of the property; and
3. from the surrounding circumstances, for example: the object of making the contract."
9. Vide para 29, the Constitution Bench on an analysis of evidence, concluded that though as a general proposition of law time is not the essence of the contract in the case of sale immovable property yet the parties intended to make time as the essence under Clause (1) of the suit agreement. This Constitution Bench decision in Chand Rani's case was placed before and followed by the two-Judge Bench deciding Vidyanadam's case. The High Court ought to have noticed the Constitution Bench decision, while dealing with the facts and circumstances of the present case as emerging from evidence and then decided the case in the light of the law handed down by the Constitution Bench.
13. Broadly speaking, it is true that fixation of the period does not make the stipulation as to time the essence of the contract. However, it is also a settled proposition that it is to be performed in a reasonable time if the parties have consciously agreed upon to perform the contract within a time frame. Having regard to the steep rise in price for any immovable property and this trend is witnessed in this state throughout, the person who is seeking the equitable relief of specific performance cannot ignore the time specified in the agreement. On 11.09.2001, the plaintiff agreed to pay the balance sale consideration of Rs.2,20,000/- within three months and to complete the sale. Without an explanation for the long delay, the suit notice was issued only on 21.06.2004 expressing his readiness. The plaintiff in para 4 of the plaint has stated as follows:
The sale agreement is only an ordinary agreement for sale in which limitation is fixed as three years.
Thus, the interpretation of the agreement by the plaintiff would show that there is no proper pleading as to plaintiff's readiness and willingness in terms of the sale agreement. In such circumstances, the ratio of the judgment of the Hon'ble Supreme Court above referred to is not helpful to the appellant. Hence, the plaintiff / appellant has not proved his readiness and willingness in terms of the sale agreement. The lower appellate Court has also come to the conclusion that the plaintiff / appellant has not proved his readiness and willingness on appreciation of evidence. I do not find any reason to interfere with the findings of the lower appellate Court on the question of readiness and willingness. As observed earlier, even on the bare facts admitted, I am unable to find that the plaintiff / appellant has proved his readiness and willingness in terms of the agreement of sale.
14. The next question arises for consideration is with regard to the delay and laches on the part of the plaintiff / appellant in approaching the Court for specific performance. As pointed out earlier, the suit agreement is dated 11.09.2001. The notice itself was issued only on 21.06.2004 nearly after a period of 2 years after the date specified in the sale agreement for performance. Absolutely, there is no reason that is assigned by the plaintiff / appellant for filing the suit, after an inordinate delay of 2 years. Absolutely, there is no explanation for the delay and the conduct of the plaintiff reveals that he had no intention to perform the contract within a reasonable time. In the above circumstances, the suit is also liable to be dismissed on the ground of laches and it is a settled proposition of law that the plaintiff's / appellant's suit for specific performance cannot be decreed merely because the suit is filed well within the period of limitation and that the plaintiff / appellant who is guilty of delay and laches cannot succeed in a suit for specific performance particularly when serious prejudice will be caused to the defendant / respondent if a decree for specific performance is granted.
15. The learned counsel for the plaintiff / appellant relied upon the judgment of this Court in K.M.Madhavakrishnan v. S.R.Swami and another reported in 1995-1-L.W.716 for the proposition that the rise in price cannot be a ground for refusing specific performance. In the present case, the decree for specific performance was not denied on the ground of rice in price but on the ground of laches and failure to prove readiness and willingness. Hence, this judgment has no application to the facts of this case.
16. Finally, the learned counsel for the plaintiff / appellant relied upon a judgment of the Division Bench of this Court in the case of S.K.Panchaksharam (Died) and others v. T.V.Kanniah Naidu and others reported in 1985 1 MLJ 354. I do not find anything in the said judgment to lend support to the arguments advanced by the learned counsel for the appellant. As a matter of fact, the facts and conclusions of the Division Bench in the said judgment would only go against the appellant in the present case. The substantial questions of law framed by this Court at the time of admitting the appeal are answered in the following manner.
17. The first question of law has been framed without adverting to the actual plea of the defendant / respondent. However, this Court do not consider it necessary to deal with the genuineness and validity of the agreement Ex.A1 in view of the conclusions reached by this Court on other issues. Regarding the second question of law, this Court has found that the property described in the suit schedule can never be identified on ground and hence, it is not necessary to consider whether the defendant has stated about the other property for which the suit agreement was executed. The suit was for specific performance is liable to be dismissed as the plaintiff / appellant has failed to prove his readiness and willingness. Having regard to the other circumstances, the appellant is not entitled to seek the equitable remedy. The suit is also liable to be dismissed on the ground of laches and the suit agreement is not enforceable in view of the fact that the suit property cannot be identified on ground.
18. For all the above reasons, the second appeal is liable to be dismissed and hence, the same is dismissed. The judgment and decree of the lower appellate Court in A.S.No.30 of 2006, dated 12.08.2010, is confirmed and the suit in O.S.No.115 of 2004 is dismissed. However, there is no order as to costs. Consequently, the connected miscellaneous petitions are closed.