V. Kanagaraj, J.
1. Both the above appeal suits, which are connected matters are directed against the common judgment and decree dated 30.10.1984 made in respectively O.S.Nos.69 of 1979 and 412 of 1983 by the Court of Subordinate Judge, Coimbatore, thereby dismissing the suit in O.S.No. 69 of 1979 for specific performance, but ordering the defendants therein to return the advance amount of Rs. 16,000 to the plaintiff without interest and decreeing the other suit in O.S.No. 412 of 1983 directing the defendant therein to surrender possession of the suit land to the plaintiffs, which is a suit for recovery of possession of the suit properties.
2. So far as the subject matter and the rival parties in both the suits are concerned, they are one and the same. The plaintiff in O.S.No. 69 of 1979 is the defendant in O.S.No. 412 of 1983 and the defendants in O.S.No. 69 of 1979 are the plaintiffs in O.S.No. 412 of 1983. In fact, the suit in O.S.No. 412 of 1983 had been originally filed in the Court of District Munsif, Coimbatore as O.S.No. 360 of 1979 and the same having been transferred to the Court of Subordinate Judge, Coimbatore, wherein a case in O.S.No. 69 of 1979 was already pending, for a joint trial to be held and a common judgment to be delivered, came to be re-numbered as O.S.No. 412 of 1983. Even the appeal in A.S.No. 838 of 1984 concerned with O.S.No. 69 of 1979 has been preferred before this Court and the other appeal in Tr.A.S.No. 964 of 1985 concerned with O.S.No. 412 of 1983 had been originally preferred in the Court of District Judge, Coimbatore and on transfer to the file of this Court, has come to be listed jointly for hearing both these appeals by one and the same court for a common judgment to be delivered.
3. So far as the first case in O.S.No. 69 of 1979 filed by one Ranjithammal against defendants, numbering four, who are plaintiffs in the other suit wherein this plaintiff-Ranjithammal the sole defendant, is concerned, the plaint averments are that the suit properties which are landed properties measuring five acres, comprising a well fitted with 5 H.P. electric motor and pump set and with the service connection, a house measuring 27 x 40 with all appurtenance and 100 coconut trees had been originally purchased by the first defendant, as per the registered sale deed dated 28.8.1968 for Rs. 12,000 and the first defendant executed a settlement in favour of the defendants 2 and 3, who are her sons, on 22.11.1973 in respect of Ac.2.50 cents on the Northern side, thus all the defendants became the owners of the suit properties, as mentioned above.
4. The further averments of the plaintiff are that the plaintiff entered into a sale agreement on 22.3.1978 with the defendants for the purchase of the suit properties for a valid consideration of Rs. 40,000 further paying an advance amount of Rs. 16,000 to the defendants on the same day and pursuant to the said agreement, the defendants also put the plaintiff in physical possession of the suit properties fixing the time for execution of the sale deed as six months from 22.3.1978. As per the default clause of the agreement, on failure on the part of the plaintiff to pay the balance and get the sale registered in her favour, she should forfeit the sum of Rs. 16,000 paid as advance already and if the defendants fail to execute the sale deed in time, they have to pay the plaintiff double the sum of advance i.e., Rs. 32,000 as damages and both the parties having right to enforce the agreement for specific performance in the appropriate forum.
5. The further pleadings of the plaint are that the plaintiff being in possession of the suit properties, effected vast repairs, herself spending lot of money and had also further paid a total sum of Rs. 6,250 bit by bit on various dates, as part of payment of the sale consideration thus a total sum of Rs. 22,250 having been paid from out of the sale consideration, there was only an amount of Rs. 17,750 left with; that in spite of the plaintiff having been ready and willing to perform her part of contract, keeping the balance sale consideration ready, further purchasing the stamp papers to the value of Rs. 4,400 the defendants did not cooperate to execute a sale deed, for reasons best known to them that later the plaintiff was given to understand that the defendants in spite of having assured to do the sale registration free of encumbrance, with ulterior motives, have kept alive the mortgage debt created in favour of the first defendant's husband for an amount of Rs. 8,625 dated 20.7.1968 as a sham and nominal one and yet another mortgage executed by the defendants 2 and 3 in favour of one Rajagopal Naidu for Rs. 6,000 on 1.3.1974 is also subsisting. Another loan of Rs. 1,850 obtained by the third defendant from the Kurichi Cooperative Credit Society and further an amount of Rs. 470 obtained by the second defendant under I.M.S. loan were also not discharged, for which the Village Munsif of Kurichi approached the plaintiff with notice and letter for the discharge of the said loan and the plaintiff paid a sum of Rs. 801 and obtained receipt therefor; that in the meantime, the first defendant getting ad-judged insolvent in I.P.No. 17 of 1982 on 12.8.1983, her right in the property vests with the Official Receiver Coimbatore and therefore the Official Receiver is impleaded as fourth defendant to the suit; that in all these melees, the defendants did not come forward to either furnish the details of the loans or revealing the true facts to the plaintiff, thus, committing breach of contract and did not come forward to do the registration in favour of the plaintiff, as a result, of which, the plaintiff issued a telegram on 19.9.1978 coupled with the lawyer's notice on the same day thus alerting the defendants and requiring them to do the registration of the suit properties in favour of the plaintiff pursuant to the agreement dated 22.3.1978, on 21.9.1978 at 10.00 a.m. at the Sub Registrar's Office, that since the defendants have not turned up to comply with the requirements of the telegram and notice and have violated the terms and conditions of the agreement, the plaintiff being left with no option filed the above suit, praying thereby to direct the defendants 1 to 3 to execute the sale deed in favour of the plaintiff pursuant to the agreement and on their failure to do so, the court to execute the same on their behalf and for awarding the costs.
6. In the written statement filed by the defendants they would contend that the title traced in plaint para 3 and the agreement with plaintiff detailed in plaint para 4 are correct, except as to matters relating to default covered in the last part of the para 4 of the plaint which are wrong and those are additions and never contemplated by the parties nor provided for in the agreement. The allegation that apart from the advance anything said to have been paid to the defendants is false and plaintiff has not paid them the sum of Rs. 4,250, that Nandagopal is not a party to the agreement and for the amount alleged to have been paid to him, that these defendants cannot be burdened with, even if the said payments are true; that the defendants never authorised Nandagopal to receive any part of the amount and the amount of Rs. 4,250 alleged to have been paid to him, cannot be accounted in the sale amount; that even the other payments made to the defendant and by the plaintiff's husband have no bearing with the sale consideration that the draft sale deed was given to the plaintiff in time and within the contract period, but only on 12.12.1978, the counter draft sale deed was given to defendants and in the meantime, the agreement period lapsed; that encumbrance certificate was also given to the plaintiff along with the agreement and that the allegation as to the assignment to Nandagopal being nominal and sham are not correct and that the said assignment and debt there under was renewed and acknowledged before the agreement to plaintiff and she knows it on the date of agreement itself.
7. It is further contended in the written statement that the other mortgage to one Rajagopal Naidu is a matter to be established as debt due; that withholding the said sums was the understanding between the parties; that the society debts are true but the figures are not correct and that the first defendant is not a surety for commercial tax due from the said Nandagopal; that they sent the list of creditors to the plaintiff on 21.9.1978 under certificate of posting; that the defendants were at the office of the Register as per telegram on 21.9.1978 and 22.9.1978 for registering a document in favour of one Murugesan, as such the default was on the part of the plaintiff; that the defendants have not violated the terms and conditions of agreement; that mediation was done in December 1978 and the draft sale deed was given to the defendants only then; that a suit to recover possession is filed by the defendants in the District Munsif's Court, Coimbatore and the plaintiff has filed a suit in O.S.No. 72 of 1979 for injunction as to the use of the motor and pump set and that the agreement only guarantees Rs. 32,000 that if the defendants default is established and the plaintiff is not entitled for specific performance and more so, when she has defaulted, she is not entitled to the refund of advance amount of Rs. 16,000.
8. The first defendant filed an additional written statement contending thereby that he has been adjudged insolvent in I.P.No. 17 of 1982 and consequent to the same, the estate of the first defendant has been vested with the Official Receiver and in these circumstances, the suit is not maintainable as against the half share of the suit property, which is in the hands of the Official Receiver. The fourth defendant i.e., the Official Receiver would adopt the written statement filed by the defendants 1 to 3.
9. On the above pleadings, the lower court framed three issues as follows:
1. Whether the plaintiff is entitled to get the specific performance of the agreement dated 22.3.1978?
2. If the plaintiff is not entitled for specific performance, what other relief, she is entitled to?
3. Whether the suit is maintainable regarding the half share belonging to the first defendant, which is entrusted with the fourth defendant?
10. Regarding the second suit filed in O.S.No. 412 of 1982 is concerned, it is a suit for the recovery of the possession, filed by the defendants in the other suit and the plaint averments herein are that the first plaintiff after purchasing the suit properties on 28.8.1968, had settled the Northern half in favour of her sons i.e., plaintiffs 2 and 3; that on 22.3.1978 all the plaintiffs agreed to sell the suit property to the defendant for a sale consideration of Rs. 40,000 and got advance of Rs. 16,000 with which the mortgage to Indian Overseas Bank, Kurichi was discharged, that as per the sale agreement deed dated 22.3.1978, the defendant did not come forward to get the sale registered in her favour within the stipulated time of six months; that since the time lapsed, the plaintiffs are entitled to deal with the property in any manner and the defendant is neither entitled for the sale deed nor even to get back the advance amount as stipulated in the agreement itself; that the possession of the suit properties had been handed over to the defendant on the date of agreement itself; that on the basis of an assurance given by one Rajagopal Naidu of Singanallur to pay Rs. 6,000 on mortgage, the plaintiffs 2 and 3 have created a mortgage in his favour regarding the Northern half of the suit properties and since the said Rajagopal attempted to register the said property in his name without the knowledge of these plaintiffs, the said attempt had not been conceded by the Registrar and consequently he filed a suit in O.S.No. 683 of 1975 on the file of Subordinate Judge's Court, Coimbatore, in which it was decided to register the document, that the defendant was fully aware of the loans obtained regarding the suit properties by the plaintiffs and plaintiffs consented to withhold Rs. 9,000 from out of the sale consideration for clearing these debts; that even at the time of purchase of the suit properties by the first plaintiff for the loan amount of Rs. 8,625 due to one Marikonar it was withheld from the sale price and the same had been made over to Nandagopal; that the defendant gave a notice and telegram on 19.9.1978 stating that she would be ready to take the registration and would be waiting at the registration office on 21.9.1978 and 22.9.1978, thereby further requiring the plaintiffs to come and register the sale deed in her favour on those days, but she never turned up to get the registration, as required by her; that after filing of the case, the first plaintiff has been adjusted as insolvent on her Insolvency petition as on 12.8.1983 and hence the Official Receiver has also been impleaded as the fourth plaintiff in this suit, since the possession of the part of the suit properties belonging to the first plaintiff has been entrusted with the custody of the Official Receiver. Hence, the plaintiffs are entitled to get back the possession of the suit properties from the defendant and in this respect on 8.1.1978 itself, notice has also been sent to the defendant and she received the same and would contend ultimately that the defendant is liable to surrender possession of the suit properties to the plaintiffs with the costs of this suit.
11. In the written statement filed by the defendant, she would emphasis the pleadings given in the plaint of her suit in O.S.No. 69 of 1979. She would further allege that on 21.9.1978, the plaintiffs did not come to the Sub Registrar's Office, nor did they make the least attempt to do the registration in her favour; that since the plaintiffs defaulted, this defendant filed a suit in O.S.No. 69 of 1979 on the file of court of Subordinate Judge, Coimbatore, against the plaintiffs herein for specific performance and other reliefs; that the husband of the first plaintiff and the father of plaintiffs 2 and 3 Nandagopal is a cantankerous type of person and would indulge in all sorts of manipulations and the plaintiffs, dancing to his tunes, have not complied with the terms and conditions of the sale agreement? that the plaintiffs have not properly valued the suit for the purpose of court fee and jurisdiction and that the plaintiffs are not entitled to any relief as sought for and the suit is liable to be dismissed with costs of this defendant.
12. The court below has also framed two issues in this suit, viz.,
(1) Whether the plaintiffs are entitled to the relief as prayed for in the plaint, and
(2) To what relief, if any, the plaintiffs are entitled to?
13. Since the subject matter involved and the parties in both the suits are common, on a joint memo filed by both the parties, the lower court having clubbed both the suits, conducted the common trial and recorded the evidence in O.S.No. 69 of 1979, wherein on the part of the plaintiff in O.S.No. 69 of 1979 and the defendant in O.S.No. 412 of 1983, one Narayana Sami, the husband of the plaintiff in O.S.No. 69 of 1979 has been examined as P.W.1 and on the part of the defendants in O.S.No. 69 of 1979, who are the plaintiffs in O.S.No. 412 of 1983, the first defendant in O.S.No. 69 of 1979-Maragathammal would testify herself as D. W. 1 and no other witnesses were examined on either side for oral evidence. For documentary evidence, 20 documents would be marked as Exs.A-1 to A-20 on the part of the plaintiff and seven documents would be marked as Exs.B-1 to B-7 on the part of the defendants. [Paras. 14 and 15 omitted - Ed.]
16. The learned Counsel appearing for the appellant in both the above appeals giving a brief history of the above case as we have already seen in the pleadings, would also confirm the averments of the pleadings regarding the payments of money towards the advance and then on various dates and would ultimately say that a total amount of Rs. 22,250 had been paid for a total sale consideration of Rs. 40,000 and there was only an amount of Rs. 17,750 left as balance i.e., to be paid at the time of executing the sale deed She would further contend that the appellant was in all preparedness to get the sale registered in her favour, keeping the balance sale consideration ready as seen from the bank balance, the draft sale deed having been prepared and sent to the first defendant for approval having purchased the stamp duties for the value of Rs. 4,400 etc. It would be submitted that at the time of agreement, the loan obtained by the defendants were not revealed and even subsequent to the agreement, they have created encumbrance over the suit property and giving an account of the loans kept pending without being cleared on the part of the defendants prior and after Ex.A-3 agreement, the learned Counsel would argue that even when the list of creditors was sought for in writing, no reply was there from the other side and in spite of the plaintiff getting ready to discharge the encumbrance due to the default of the defendants, they were not able to be cleared in time as it is seen under Exs.A-10 and A-11 and ultimately fixing a date requesting the first respondent to come to the Sub Registrar's Office, Coimbatore and in spite of the plaintiff waiting in the Sub Registrar's Office, they did not turned up at the appointed hour, thereby showing their unwillingness to execute the sale deed.
17. The learned Counsel would point out that the lower court's finding that the plaintiff was not ready to execute the sale deed in her favour, in spite of the defendants coming forward to do the registration of the same, had dismissed the suit; that the appellant has no reason to either obtain from getting the sale registration in her favour, inspite of having got ready with everything that are required and only for the fault committed on the part of the defendants wilful and in wanton manner, the sale was not able to be completed. He would also lay emphasis on the expenses involved for effecting improvements in the suit property even within such a short period, the improvements effected are open to the knowledge of everyone including that of the defendants and the expenses of Rs. 6,250 has been confirmed by the first defendant; that the draft sale deed sent was also confirmed by the first defendant, but would say that some corrections were made, the registration copy of the another sale deed was also carried to the Sub Registrar's Office on 21.1.1978 and on the part of the learned Counsel for the appellant, it would be argued that the fact of the defendants attending to the Sub Registrar's Office has not been proved.
18. The learned Counsel would cite a judgment reported in Satyanarayana v. Yettoji Rao : 2SCR221 , wherein it is held:
Under the Indian Law, relief of specific performance could be refused only if the plaintiff abandons or waives his right under the contract; and in the present case the appellant had not established either abandonment or waiver by the 1st respondent of his right under the contract, for indeed as soon as he saw that the appellant had laid foundations for putting up structures on the plots, he rushed without any delay to the Court and filed the suit. (3) In the circumstances of the instant case there is no scope for holding that the appellant could have had any reasonable belief that the 1st respondent had waived or abandoned his right, for it was the positive case of the appellant that there was no concluded sale at all.
19. The next judgment cited by the learned Counsel is one reported in Pirthi v. Jati Ram : AIR1997SC1598 , wherein it is held:
After suit for specific performance of the agreement filed by petitioner, respondents 2 and 3 purchasing the land and coming in possession - Held, respondents not bona fide purchasers - Hence suit for specific performance rightly decreed refusing alternative relief of compensation.
The next judgment cited by the learned Counsel is Bibi Jaibunisha v. Jagdish Pandit : (1997)4SCC481 , wherein it is held:
Admittedly, no issue was raised in this behalf. The question therefore, is Whether the High Court would be justified in coming to the conclusion that the time was the essence of the contract? It is now well-settled legal position that in the matter of enforcement of the agreement or agreement of reconveyance, time is not always the essence of the contract unless the agreement specifically stipulates and there are special facts and circumstances in support thereof. It must be specifically pleaded and issue raised so that the other party has a right to lead evidence. There is no express plea in the written statement nor any issue raised in that behalf. Consequently, there was no opportunity to the appellant to adduce rebuttal evidence that time was not the essence of the contract.
20. The next judgment cited by the learned Counsel is one reported in Indira Kaur v. Sheo Lal Kapoor : AIR1988SC1074 , wherein it is held:
On carefully perusing the pleadings and the evidence and also the findings recorded by the courts below, we are fully satisfied that the trial court was entirely in error in recording a finding adverse to the appellant-plaintiff on the ground that the plaintiff was not ready and willing to perform his part of the contract. The finding is contrary to the evidence and is palpably unreasonable.
What emerges from this evidence is that he had in fact received the notice, but he had not replied to the notice. It is also emerges that according to him the notice was not received before the stipulated date namely August 16 1977 and he was not prepared to execute the sale deed because he had not been called upon to perform his part of the contract before August 16,1977, the deadline, He found himself in an inconvenient position when he was asked questions as regards the telegram sent by him that he had remained present in the Sub Registrar's Office which was inconsistent with his earlier stand that he had never received any intimation requiring him to remain present on August 16,1977. This is what he had to say in his evidence:On August 17 1977 I gave the plaintiff a telegram that on August 16 19771 had gone there but you did not come there.
21. The learned Counsel would cite another judgment reported in Govind Prasad Chaturvedi v. Hari Dutt Shastri : 2SCR877 , wherein it is held:
High Court cannot make time the essence of the contract an issue if it was not an issue in the trial court, the defendant not having raised such a defence in his written statement.
Yet another judgment cited is one reported in Thimmappa v. Siddaramakka : 3SCR1045 , wherein it is held:
Contract - Sale agreement did not stipulate the date for performance - Whether the time is of essence - It is settled law that unless the deed of agreement of sale stipulated a date for performance, time is not always essence of the contract.
22. In reply, the learned Counsel Mr. K. Sukumaran appearing for the respondents in both the above appeals, would draw the attention of the court and would say that the appellant has not produced any valid evidence to prove that she was taking genuine interest in fructifying the sale deeds; that the Supreme Court says that right from the date of agreement, they must be ready and willing to execute their part of the contract; that they issued the telegram, but it cannot indicate that they were ready and willing to perform their part of contract; that when the date is fixed, the defendant is at liberty to go at any time to the Sub Registrar's Office on that particular day. So far as the part performance is concerned, they are enjoying the property all these years at the expense of the respondent that they relied upon an encumbrance certificate under Ex.A-17 which stands in the name of the husband of the appellant; that any person can go and apply for an encumbrance certificate and it is not necessary that the party who is applying for must be present. There was no document to say that they were having enough funds to satisfy the agreement towards the balance sale consideration.
23. The learned Counsel would cite at this juncture, a judgment reported in Chand Rani v. Kamal Rani A.I.R. 1993 S.C. 1752, wherein it is held:
It is settled law that the fixation of the period within which the contract has to be performed does not make the stipulation as to time the essence of the contract. When a contract relates to sale of immovable property it will normally be presumed that the time is not the essence of the contract. (Vide: Gomathinayagam Pillai v. Pallaniswami Nadar ( : 1SCR227 ). It may also be mentioned that the language used in the agreement is not such as to indicate in unmistakable terms that the time is the essence of the contract. The intention to treat time as the essence of the contract may be evidenced by circumstances which are sufficiently strong to displace the normal presumption that in a contract of sale of land stipulations as to time is not the essence of the contract.
24. Resuming his arguments, the learned Counsel would state that even now, they are not able to produce the documents to show that they had sufficient funds to get the sale registered in their favour; that by virtue of the documents produced by the appellant, she herself had considered that time is the essence of the contract; that within 6 months, they have to pay the balance sale consideration; that they did not pay and they are not entitled to the specific performance. Yet another judgment cited by the learned Counsel is one from the case N.P. Thirugnanam v. R. Jagan Mohan Rao : AIR1996SC116 , wherein it is held:
In a suit for specific performance of contract, finding that the plaintiff was not ready and willing to perform his part of the contract, well supported from facts and circumstances - Held, there was no infirmity in judgment warranting granting of leave.
That to adjudge whether the plaintiff is ready and willing to the subsequent conduct of parties are relevant to be considered:
There is nothing on record to show that they had money. Regarding Ex.B-4, dated 8.1.1979, the date of notice is the date on which they filed the suit and the same would be pointed out by the learned Counsel. He would further say that it is their duty to prove that they were present with cash on the particular day for performance of the contract, there is no evidence at all. At this juncture, the learned Counsel would cite get another judgment reported in Kanshi Ram v. Om Prakash Jawal : AIR1996SC2150 , wherein it is held:
The courts in granting the decree for specific performance should exercise the discretion on sound principles of law. In the event of working out the equities, the courts would in an appropriate case, grant alternative relief, instead of granting the decree for specific performance.
The learned Counsel would end up ultimately remarking that it was a failure on the part of the plaintiff/appellant and they are not entitled to any relief as sought for, and would pray for both the appeals to be dismissed.
25. From the above appeals as put up by the plaintiff in O.S.No. 69 of 1979 who is the defendant in the other suit and the defendants in the former suit, who are the plaintiffs in the other suit, what is assessed is that the suit filed by the appellant in both the above appeals is for specific performance of the contract, entered into in between herself and the defendants in her suit. Under Ex.A-3, sale agreement deed, on her part to purchase the suit properties fixing the sale price at Rs. 40,000 and making the payment of an advance amount of Rs. 16,000 on the date of Ex.A-3 itself and further agreeing to execute the sale within 6 months from the date of Ex.A-3. It is the further case that afterwards, she had paid on different instalments, not only in favour of the first defendant, but also in favour of her husband, the second defendant and the third defendant her son by direct payment or in clearing the payments or even in paying the taxes or the dues of the loans in all, she would contend that an amount of Rs. 22,250 had been paid towards the sale consideration and there was only an amount of Rs. 17,750 left with and in the above circumstances, when she was ready and willing to perform her part of the contract effecting the balance sale consideration and having purchased the stamp papers for the value of Rs. 4,400 and doing such things to get the sale registered in her favour, since the defendants were reluctant and unwilling to register the sale deed in her favour, she even issued notices in Exs.A-10 and A-11, telegram and notice, calling for the defendants to come to the Sub Registrar's Office on 21.9. 1978 at 10.00 a.m. and inspite of herself waiting from 10.00 a.m. to 2.00 p.m. since the defendants did not turn up, she left disappointed without getting the sale registered, as a result of which, she prays for the specific performance of the said contract by the defendants, lest, the court to do the registration in her favour.
26. It is further admitted case by both parties that on the date of Ex.A-3, sale agreement deed, the physical possession of the suit properties have been handed over with the appellant and till date of filing of the suit, she was in possession of the suit property, and hence when the appellant came forward to registrar to file the suit in O.S.No. 69 of 1979, seeking specific relief, a little later, the defendants have also/filed the suit in O.S.No. 412 of 1983 thereby seeking the relief of delivery of possession of the suit properties from the hands of the appellant to them.
27. A study of the pleadings would reveal that the plaint averments in O.S.No. 69 of 1979 is almost the same in the written statement of the other suit in O.S.No. 412 of 1983 and on the vice-versa what forms part of the written statement in O.S.No69 of 1979 are the plaint averments in O.S.No. 412 of 1983 on the part of the respondents herein, it could be urged that inspite of their readiness and willingness to do the registration, it was on account of the appellants in not getting ready with the balance sale consideration, the registration was not done in time and even on 21.9.1979 as required under Exs.A-10 and A-11, they went to the Sub Registrar's Office, but the plaintiff was not to be seen there. Hence, they executed another agreement in favour of one Murugesan, pertaining to the suit properties and they would file the same as Ex.B-2. They would not agree with many subsequent payments alleged to have been made by the appellant in their favour, but would agree only a few. Their case is that time was considered to be the essence of the contract. Their further case is that it was a default committed on the part of the appellant in having failed to get ready with the balance sale consideration and come forward to get the sale registered in her favour, the agreement was not performed and they cannot be blamed for the fault of the other side. Therefore, they would seek for the reliefs sought for in their suit i.e., possession of the suit properties from the hands of the appellant.
28. The points that arise for determination at this appellate stage in the above appeals are that:
(1) Whether it is true that time is considered to be the essence of the contract in this case?
(2) Whether on the part of the appellant or on the part of the respondents default had been committed, so that the sale deed was not executed as contemplated in Ex.A-3 agreement?
(3) Whether the lower court was right in dismissing the suit in O.S.No. 69 of 1979, refusing the specific performance and granting only the advance amount of Rs. 16,000 to be returned to the appellant without interest and ordering to handover to the respondent, as prayed for in their suit in O.S.No. 412 of 1983? and
(4) What relief, if any, is the appellant entitled to?
29. Point No. 1: So far as point No. 1 as framed above is concerned, it is not only from the judgment of the lower court, but also from the facts on the evidence produced on the part of the counsel for the appellant and from the decided cases submitted on the part of the counsel for the respondent, the well settled law on this subject, whether time is the essence of the contract is that, time is not the essence of the contract, so far the contract with immovable properties are concerned, unless it is emphasised that time is the essence of the contract, in the instrument itself and the other side is put on notice to the said effect. A glance into Ex.A-3 sale agreement deed, would indicate that six months' time is given for execution of sale deed by the respondents in favour of the appellant coupled with the default clause imposing conditions on both sides, but nowhere it has been emphasised in the agreement that time is the essence of the contract, nor any notice issued to the said effect at the earliest point of time. The properties are immovable properties and the legal propositions are that, regarding immovable properties, time is not the essence of the contract, unless it is emphasised in the agreement itself that time is the essence of contract and the other side is put on notice, lest time cannot be considered to be the essence of the contract. Hence, so far as this case is concerned, there is absolutely no hindrance to decide that time is not the essence of the contract. Therefore, this legal question is decided in favour of the appellant and against the respondent.
30. Point No. 2: So far as this point is concerned, even though it is argued on the part of the appellant that she not only paid an amount of Rs. 16,000 as advance on the date of Ex.A-3 agreement, but also paid many other instalments, thus, clearing the major part of the amount from out of the sale consideration and only Rs. 17,750 was left with to be paid to the defendants as the balance sale consideration, excepting for one or two, she has not accounted for the entire amounts alleged to have been paid from out of sale consideration every now and then.
31. The amounts which the appellant accounted for and accepted by the other side in toto are only Rs. 16,000 and neither through oral evidence nor through documents, she is able to prove to the effect that she paid those amounts in various instalments. But, on the contrary, she could produce the Bank balance sheet of the Indian Overseas Bank to the effect that she was keeping sufficient money in hand and since the other side did not come forward to register the sale deed in her favour, during the relevant time, having kept the money in hand, especially on 21.9.1978, ultimately she credited the sums on 23.9.1978 and that is shown under Ex.A-8 bank passbook. Moreover, as it is expected by the lower court, it is not incumbent on the part of the appellant to have shown the amount by putting the money in the Bank It could be inferred from many circumstances encircling the events in the case to decide whether she would have got ready with the balance sale consideration at that particular point of time or not. According to the appellant, she had credited to the extent of Rs. 22,250 and the balance is only Rs. 17,750 and hence having purchased the stamp papers already for Rs. 4,400 expecting to pay the balance sale consideration and to keep a paltry sums for expenses, there was no necessity on her part to keep any major amount and the required amount, she had kept in hand, could be inferred from Ex.A-8. Moreover, there is no compulsion that it should be kept in the Bank itself and there may be hundreds of ways and means for a purchaser to raise money within his capacity and hence the proof that is made available is sufficient to hold that the plaintiff in O.S.No. 69 of 1979 i.e., the appellant herein was possessed of enough funds as on 21.9.1978 for paying balance sale consideration, as per her case. But, a larger amount than what is spoken about as the balance sale consideration was there according to the respondents, is a different issue.
32. Moreover, having purchased the stamp papers for Rs. 4,400 the appellant has taken the encumbrance certificate also as early as on 17.1.1978 itself, as explained in Ex.A-17. But, it is not denied on the part of the respondents that at the time of agreement, there were many encumbrances created on the property and they have not been revealed barring one or two, which are shown in Ex. A-3. Even the other encumbrances brought forth by the appellant have not been denied by the respondents. It is glaringly seen from Ex. A-3 agreement that the respondents have to come forward to register the sale in favour of the appellant free of encumbrances within six months from the date of agreement in Ex.A-3. What steps have been taken on the part of the respondents to get the suit properties freed from many encumbrances subsisting on the date of agreement are not revealed to the appellant. Not even a step seems to have been taken on the part of the respondents in warding off the encumbrances created on the suit property by means of mortgages, cooperative loans and such others. No respondent seems to have taken any genuine interest in clearing the encumbrances and reporting to the appellant that they are ready to do the sale registration of the suit properties in her favour, free of encumbrances. Absolutely there is no whisper regarding this vital aspect of the case from the side of the respondents nor the lower court bothered about discussing this important issue. On the other hand, the lower court should have paid attention that 20 years back from now, purchasing the stamped papers at a cost of Rs. 4,400 is not easy task and if really the appellant was not ready to perform her part of contract, there was no reason on her part to waste that much amount in purchasing the stamped papers. This would indicate only the interest of the appellant in getting the sale registered in her favour and there is no valid reason also on her part either to postpone the sale or to get rid of it since she is already in possession of the property. Thus it is proved in no uncertain terms that she was interested in getting a clear title of the suit properties and under no ground, non-performance could be attributed to the appellant at all.
33. Coming to the Exs.A-10 and A- 11 the telegram and notice sent on 19.9.1978 by the appellant to the respondents, thereby asking the respondents to come and do the registration on 21.9.1978, the appellants' case is that in spite of her waiting at the Sub Registrar's Office, Coimbatore that day from 10.00 a.m. to 2.00 p.m., since the respondents did not turn-up, the registration was not able to be done in spite of the appellant being ready and willing On the contrary, it would be contended on the part of the respondents that the respondents came to the Sub Registrar's Office on that day and also waited there and between 3.00 p.m. and 4.00 p.m. they registered the sale agreement deed in favour of one Murugesan, regarding the suit properties, since the appellant did not turn-up to the Sub Registrar's Office. It is pertinent to note from Ex.A-10 that the time fixed is 10.00 a.m. on 21.9.1978, further requiring to give the list of creditors, original title deeds and encumbrance certificate. In spite of receipt of this telling notice, it is the evidence of D. W. 1 that they went to Sub- Registrar's Office between 3.00 p.m. and 4.00 p.m. There is absolutely no evidence pertaining to their taking the list of creditors with them or possessed of the original deeds or even the encumbrance certificate. But, the respondents would simply say that they effected the registration in favour of yet another person between 3.00 p.m. and 4.00 p.m. Without prior arrangements, for days together, it is impossible for such an agreement to be entered into between parties, as it is admittedly done on the part of the respondents. As bluntly discussed by the lower court, it is not whether the party is physically present at the Sub Registrar's Office, but what is relevant is whether the party has come prepared with all necessary documents and with the intention to execute the sale deed in favour of the agreement holder. It cannot under any circumstances be argued on the part of the respondents that they came with those required and relevant and inevitable documents for doing the registration of the sale in this case nor could it be said that they came to the Sub Registrar's Office with intent to do the registration in favour of the appellant. It is obvious from Ex.B-2 that having already arranged for creating a sale agreement in favour of the said Murugesan in spite of Ex.A-3 agreement being in force and not to do the registration in favour of the appellant, but only to register the Ex.B-2 agreement in favour of the said Murugesan, the respondents have come to the Sub Registrar's Office that day and they have done their job, accordingly, thereby revealing that they did not even have the least intention to execute the sale in favour of the appellant as they pose before the court. Moreover, the time fixed was 10.00 a.m. and the reasonable time within which the registration could be executed observing all the formalities is in between 10.00 a.m. and 2.00 p.m., during which time, the appellant had been present and since the respondents admittedly have come to the Sub Registrar's Office at 3.00 p.m., in spite of Ex.A-10 notice, naturally they could not have seen the appellant there, which comes to be revealed from the evidence of D.W.1 and hence at no stretch of imagination, it could be decided that there was neither slackness nor unwillingness on the part of the appellant and that the respondents came ready to register the sale deed in favour of the appellant.
34. From the overall evidence available, the only conclusion that could be arrived at is that the appellant was ready and willing to perform her part of contract, by remitting the balance sale consideration in favour of the respondents and the respondents on their part did not do any act in favour of getting the instrument registered in the name of the appellant and more over since Ex.A-3 is dated 22.3.1978 till the end of 21.9.1978, the agreement, was in force and on the same day, prior to the expiry of the agreement, the respondents have no business to create yet another agreement in favour of third party and it is nothing but a deliberate act perpetrated on the part of the respondents quite against the stipulations and contentions of the agreement in Ex.A-3. During the existence of an earlier agreement, no second agreement could be thought of and the coming into existence of Ex.B-2 should have been well-planned and arrived at days before it got registered in a fraudulent manner and in order to cheat the genuine agreement holder-the appellant herein. Hence, in all probabilities and on facts in law, the second question has to be decided in favour of the appellant and against the respondent, concluding thereby that the appellant on her party was ready and willing to perform her part of contract and the respondents were not at all ready and willing in any manner to perform their part of the contract.
35. Point No. 3: The lower court has not properly dealt with the subject-matter to the expectations of law and the judgment and decree of the lower court suffers from patent errors of law and perversity in its approach, resulting in wrong conclusions to be arrived at, thus, calling for interference by this Court. Any agreement entered into by parties must be honoured and not for entering into another agreement, during the lifetime of the first agreement. So far as Ex.A-3 is concerned, in law, after the expiry of six months, since time is not considered to be essence of the contract, not only the properties being immovable ones but also having not been emphasised by parties to the effect that time is the essence of the contract, the parties had three more years of time from the date of expiry of the stipulated six months' time in the agreement, during which time, the respondents have no right to enter into yet another contract with regard to the suit properties and without giving effect to this proposition of law, the court below has simply dealt with on verbal representations made by parties, without going into the crux of the dispute. Hence, the point No. 3 is answered in these terms.
36. Point No. 4: The amount of Rs. 22,250, said to have been cleared by the appellant having not been proved, the calculations as offered on the part of the appellant are not admitted and other paltry sums, which are also said to have been from out of the sale cannot be accepted since only to safeguard her possession, she had remitted those amounts and hence the balance sale consideration of Rs. 24,000 has to be paid. Hence, it is hereby concluded that the appellant is liable to pay the entire balance sale consideration of Rs. 24,000 to the respondents, for getting the sale to be registered in her favour.
37. In result, both the above appeal suits are allowed setting aside the common judgment and decree dated 30.10.1984 made in O.S.Nos.69 of 1979 and 412 of 1983 by the Court of Subordinate Judge, Coimbatore in the above terms.
38. The suit filed by the appellant herein in O.S.No. 69 of 1979 is decreed, subject to the condition that she should pay the balance sale consideration of Rs. 24,000. The respondents are directed to execute the sale deed of the suit properties in favour of the appellant in six months from today.
39. The suit in O.S.No. 412 of 1983 filed by the respondents herein is dismissed.
40. However, in the circumstances of the above case, there shall be no order as to costs.