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Indian Bank Employees Union. Vs. M.A.Zubaida Ammal, and ors. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtChennai High Court
Decided On
Case NumberA.S.No.654 of 2009.
Judge
ActsIndian Contract Act, 1872 -- Sections 55, 31 ; Specific Relief Act, 1963 - Section 16(c) ;
AppellantIndian Bank Employees Union.
RespondentM.A.Zubaida Ammal, and ors.
Appellant AdvocateMr.R.Thiagarajan; Ms.Vasudha Thiagarajan, Advs.
Respondent AdvocateM/S.Sampathkumar, Adv.
Cases ReferredB.K.Jayaraman v. S.K.Subramanian and
Excerpt:
[aftab alam ; r.m. lodha, jj.] the respondent worked in the appellant-bank as cashier-cum-clerk. the enquiry was first fixed on november 15, 1994 but on that date the respondent did not appear without giving any intimation to the enquiry officer. due to his non- appearance the enquiry was adjourned to november 28, 1994. after recording his evidence, the enquiry officer closed the enquiry and submitted his report holding the respondent guilty of all the charges. the industrial tribunal found and held that the domestic enquiry held against the respondent suffered from violation of the principles of natural justice. it appears that from the bank this letter was not handed over to the enquiry officer. admittedly, the respondent had not appeared for the enquiry on two earlier dates. in those.....1. this first appeal (appeal suit) arises out of the judgment and decree dated 21.11.2007 made in o.s.no.15373 of 1996 on the file of the iii additional city civil court, madras.2. the averments made in the plaint are as follows:(i) the suit property bearing old door no.317, new door no.138, thambu chetty street, madras-600 001 was purchased by the second defendant under a registered sale deed dated 08.07.1965 subject to the mortgage deed in favour of madras purasawalkam hindu janopakara saswatha nidhi (hereinafter referred to as 'the nidhi'). the suit property was purchased by the second defendant with the funds belonging to the first defendant and therefore, the second defendant executed a release deed in favour of the first defendant on 05.01.1979. (ii) in order to discharge the.....
Judgment:
1. This First Appeal (Appeal Suit) arises out of the judgment and decree dated 21.11.2007 made in O.S.No.15373 of 1996 on the file of the III Additional City Civil Court, Madras.

2. The averments made in the plaint are as follows:

(i) The suit property bearing Old Door No.317, New Door No.138, Thambu Chetty Street, Madras-600 001 was purchased by the second defendant under a registered sale deed dated 08.07.1965 subject to the mortgage deed in favour of Madras Purasawalkam Hindu Janopakara Saswatha Nidhi (hereinafter referred to as 'The Nidhi'). The suit property was purchased by the second defendant with the funds belonging to the first defendant and therefore, the second defendant executed a Release Deed in favour of the first defendant on 05.01.1979.

(ii) In order to discharge the various mortgages created by the second defendant and his predecessor in title, the first and second defendants have entered into a sale agreement with the plaintiffs on 09.07.1976 for Rs.4,75,000/- subject to the mortgages. The plaintiffs should pay an additional sum of Rs.50,000/- for delivering vacant possession by the Departments of the entire building except the ground floor to the purchaser viz., the plaintiffs herein, apart from the amount of Rs.50,000/- paid as an advance. A period of three months' time was given for execution of the sale deed. The defendants 1 and 2 ought to have produce income tax clearance certificate on or before 15.09.1976. The plaintiffs have discharged all the mortgage debts and obtained the original title deeds from the Nidhi on 08.04.1980. The plaintiffs had also paid a sum of Rs.4,22,000/- on various dates till 18.01.1980 to the first and second defendants, but they failed and neglected to execute the sale deed in favour of the plaintiffs.

(iii) The defendants wanted to extract more money from the plaintiffs and demanded a further sum of Rs.1.50 lakhs before they could execute the sale deed in favour of the plaintiffs. Thereupon, all the defendants jointly executed another agreement on 19.01.1980 purporting to be in continuation of the old agreement dated 09.07.1976 and three months' time is granted for execution of the sale deed. The defendants ought to have vacate the Dhandapani Electricals from the first floor of the suit property and ought to have produce the necessary income tax, gift tax and urban land ceiling clearance certificates, but in spite of repeated demands, the defendants have not produced the same and not vacated the Dhandapani Electricals, though the President of the Indian Bank Employees Union, Mr. P.M.Vellaiyan has made a constant requests for conveying the property to the plaintiffs.

(iv) The plaintiffs submitted that time is not the essence of contract. So far the plaintiffs paid a sum of Rs.6,07,507/- and the balance is only Rs.67,493/- towards sale consideration, which is required to be paid before the Sub Registrar at the time of registration of the sale deed.

(v) The plaintiffs were always ready and willing to pay the balance sale consideration and get ready with the documents. The plaintiffs also obtained sanction of a loan of Rs.2,00,000/- from the Indian Bank against the title deeds of the suit property and that loan is still open and is kept open always. The plaintiffs caused a lawyer's notice on 23.03.1984 calling upon the defendants to execute the sale deed, but they have not received any reply. Since the defendants are making arrangements for alienating the suit property, the plaintiffs are constrained to file the suit for decree of specific performance of contract and also for injunction restraining the defendants from alienating the property and for other reliefs and prayed for a decree.

3. The gist and essence of the written statement filed by the defendants 1 to 3, adopted by the fourth defendant are as follows:

(i) The suit is barred by limitation. The agreement date is 19.01.1980. Three months' time is stipulated for performance of contract. The contract was also expressly terminated by the letter dated 20.04.1981, since the plaintiffs have not been ready and willing to perform its part of the obligations under the contract. The suit is speculative to gain the advantage on account of the steep rise in the real estate properties in the market.

(ii) The plaintiffs re-delivered the possession of the suit property after termination of the contract on 20.04.1981 conceding its inability to perform the contract. The plaintiffs had been in possession of the suit property for a considerable time without payment of rent. All the payments made by the plaintiffs have been appropriated towards the damages for use and occupation and interest charges incurred.

(iii) In so far as the income tax clearance was concerned, as per the directions of the plaintiffs, the matter was entrusted to the plaintiffs' auditors M/s. T.T. Krishnaswamy and Ram Devi, who took signatures in various papers. The portion in the occupation of Dhandapani Electricals was insignificant are area of 30 sq.ft. under a stair case. Dhandapani Electricals was prepared to quit at any time, hence was allowed to continue till such time the sale deed was drafted by the Plaintiffs and sent for approval. They continue to be there even today as the plaintiffs failed to take steps to complete the sale.

(iv) Under the agreement dated 09.07.1976, the plaintiffs undertook to discharge the mortgage and complete the sale within three months thereof, but failed to do so. Even under the agreement dated 19.01.1980, the plaintiffs ought to have get the sale deed within three months. The agreement dated 19.01.1980 also recites in very clear terms, the reasons for payment of a further sum of Rs.1,50,000/-.

(v) As early as on 25.03.1981, the defendants called upon the plaintiffs to complete the sale within a week from the date of receipt thereof, but there was no reply. So the defendants terminated the contract on unequivocal terms by a letter dated 20.04.1981. Even to this letter, there was no reply. It was after almost three years later that the plaintiff caused its lawyers notice dated 23.03.1984. The plaintiffs cannot take advantage of the delay by its own auditors in getting the necessary certificates. There was no necessity to take steps to vacate Dhandapani Electricals as they were willing to get out at any time. The defendants issued reply notice dated 07.04.1984. The plaintiffs have no cause of action for the suit. The plaintiffs will be put to unfair advantage, if specific performance is allowed. The plaintiffs have come forward with the suit after such a long delay and they should not be granted the discretionary remedy of specific relief. Hence the defendants prayed for the dismissal of the suit.

4.The gist and essence of the written statement filed by the sixth defendant, adopted by the fifth defendant are as follows:-

(i) There were no numerous mortgages, the defendants never agreed to sell the suit property solely for the purpose of discharging the mortgage to them, who wanted to sell the property to reinvest the sale consideration in purchasing separate immovable properties each in the name of the defendants 3 to 6. Due to the delay caused by the plaintiffs to conclude the sale in time, they are unable to reinvest the sale proceeds in good securities. An agreement dated 09.07.1976 stipulated that the plaintiffs have to pay additional sum of Rs.50,000/- for delivering the vacant possession of the entire premises, except the ground floor and also that the vendors would produce necessary income tax and gift tax clearance certificate at their cost on or before 15.09.1976. The plaintiffs never prepared the draft sale deed and forwarded the same to the defendants so as to enable them to enclose the draft sale deed along with their application for income tax clearance certificate. It was not agreed that the defendants would deliver the vacant possession of the ground floor. Dhandapani Electricals occupied only a small portion of 30 sq.ft. only in landing and passage in the first floor and this portion is not a four wall room at all and the said Dhandapani Electricals agreed to vacate and deliver the vacant possession on the eve of the registration of the sale deed. The defendants delivered the vacant possession of the entire first, second and third floor portions except the small portion of 30 sq.ft. occupied by Dhandapani Electricals.

(ii) The plaintiffs have not discharged the mortgage within the stipulated time, which caused enormous loss about Rs.35,000/- by way of payment of interest to the Nidhi. At the time of execution of the sale agreement dated 09.07.1976 itself, the defendants 1 and 2 intimated the plaintiffs about their intention to settle the property in favour of their daughters, and that the said deed will be effected by their daughter's only. Following the agreement and within 15 days from the date of the agreement on 24.07.1976, the defendants 1 and 2 executed a deed of gift in favour of their daughters, who are defendants 3 to 6 herein. The plaintiffs did not have money to conclude the sale and they were not ready and prepare to conclude the sale. It is only after the lapse of more than 3 = years and after having failed to conclude the sale by paying the balance of sale consideration, the plaintiffs requested the defendants to enter into a fresh agreement of sale offering to compensate the monetary loss suffered by the defendants due to non-performance of the plaintiffs' part of the contract. The plaintiffs have bargained and offered to pay Rs.9,00,000/- out of which the second sale agreement shall contain revised consideration of Rs.6,75,000/- inclusive of Rs.50,000/- agreed to be given for delivery of vacant possession and yet another sum of Rs.2,25,000/- to be given privately at the time of signing the sale deed. Now taking advantage of the non-mentioning of the private and separate payment of Rs.2,25,000/-, the plaintiffs conveniently omitted to mention in the plaint. The defendants reminded and warned the plaintiffs repeatedly by various letters and sending personal messengers to seize the second opportunity given to them, but again the plaintiffs failed and neglected to perform their part of the contract. So the defendants have no other alternative except to terminate and cancel the agreement of 19.01.1980 by serving a registered notice on 25.03.1981 and yet another registered letter dated 20.04.1981 was sent confirming the registered letter of 25.03.1981 and confirming the cancellation of the agreement. After a lapse of 3 years from the date of termination of agreement and four years after the date of the second agreement and nearly (torn) years after the date of the first agreement, the plaintiffs filed the suit as if the contract is subsisting.

(iii) The defendants have taken all the steps to vacate Dhandapani Electricals by negotiating with them for the delivery of the vacant possession seven clear days before the date fixed for the execution and registered of the sale deed. The plaintiffs themselves are aware that they insisted the removal of files relating to the gift tax, income tax, from the defendants' auditors and entrust the entire matter relating to income tax and gift tax to their own auditors Mr.Krishnaswamy and Ram Devi. They also wanted the defendants to execute necessary authorisation and deeds for power of attorney in favour of their auditors for obtaining necessary certificates from the officers of gift tax and income tax. Accordingly, the defendants also executed the necessary authorisation and deeds of power of attorney in favour of the plaintiffs' auditor.

(iv) With regard to urban ceiling certificate that the registration rules do not insist on production of ceiling certificate as a condition precedent for the registration of the sale deed in respect of a building. The plaintiffs never evinced any interest, whatsoever to conclude the sale except to make small payments to the defendants, whenever they approached the plaintiffs to conclude the sale by paying the entire sale consideration in one lump sum so as to enable the defendants to invest the amounts paid towards the sale consideration suitably.

(v) Regarding the allegation as to the visit of Mr.Vellaiyan, President of Plaintiffs' Union to Pandaravadai, Thanjavur District, the defendants submit that the President visited Pandaravadai to request the defendants for the return of the entire advance and the subsequent payments without claiming any damages for the loss of rent etc., and definitely not for demanding the defendants to conclude the sale as alleged in the plaint. The President has also handed over the keys of the premises also. Ever since the date, the defendants are in possession of the premises. The President visited Pandaravadai again in the month of February 1984 and again in the month of March 1984 at Madras and met the second defendant and requested him to waive and ignore the letters dated 25.03.1981 and letter of 20.04.1981. The defendants refused to concede to the request of the President. Then the plaintiffs filed the above suit out of time and without any merits.

(vi) The suit is barred by limitation. The plaintiffs failed to perform their part of contract under the agreement dated 09.07.1976. But for the repeated assurances and undertaking given by the plaintiffs that they will conclude the sale on or before 19.05.1980 inclusive of the grace period of one month, the defendants would not have entered into the agreement of sale dated 19.01.1980. The balance amount due and payable by the plaintiffs towards the sale consideration is more than Rs.3,50,000/- inclusive of Rs.2,25,000/- agreed to be paid to the defendants privately.

(vii) Only the defendants 2 and 5 received the notice on 27.03.1984, whereas other defendants did not receive any notice at all. The 5th defendant being an ignorance young Gosha lady without sufficient wordily knowledge dispatched the notice by post to her father and reply was sent on behalf of this defendant. The value of the suit property is more than Rs.35,00,000/- and the plaintiffs have abandoned the idea of purchasing this property in the beginning of 1981 itself. Hence, the defendants prayed for dismissal of the suit.

5. The trial Court, after considering the averments both in the plaint and the written statements and arguments of both the counsel, framed four issues and considering the oral evidence of P.W.1 and P.W.2 and documentary evidence of Exs.A1 to A87, Exs.B1 to B14, dismissed the suit, against which, the appellants/plaintiffs have come forward with this Appeal Suit.

6. After hearing the arguments of both sides counsel, the following points for consideration are framed:

i)Whether the Trial Court is correct in held that the appellants are not ready and willing to perform their part of contract?

ii) Whether the Trial Court is correct in held that the suit is barred by limitation?

iii)Whether the appellants are entitled to the decree of specific performance as prayed for in the suit?

iv)Whether the judgment and decree passed by the trial Court are sustainable?

v) To what relief, the appellants are entitled to?

7.Point No.2: The appellants as the plaintiffs filed a suit for specific performance on the basis of the sale agreement dated 19.01.1980 under Ex.A71. Admittedly, the suit property is belonging to the respondents/defendants. Since they have not executed the sale deed, the appellants/plaintiffs filed a suit for specific performance. After hearing the arguments of both sides counsel, the trial Court dismissed the suit stating that the time is essence of contract, the suit is barred by limitation and the appellants/plaintiffs are not ready and willing to perform their part of contract, against which, the appellants/plaintiffs have come forward with this Appeal Suit.

8.Suit is barred by limitation Time is essence of contract:

(i)Admittedly, the suit property was purchased by the second defendant on 08.07.1965 under Ex.A7. He executed the release deed in favour of the first defendant under Ex.A8 on 05.01.1971. The title deeds are marked as Exs.A1 to A6. Admittedly, the first defendant is the owner of the suit property. On 09.07.1976 under Ex.A70, both the appellants/plaintiffs and the respondents/defendants 1 and 2 are entered into a sale agreement. In the said sale agreement, it was specifically mentioned that the sale price was fixed at Rs.4,75,000/- and an advance amount of Rs.50,000/- was paid by the plaintiffs and directed the purchaser to discharge the mortgage over the schedule mentioned property and pay the balance of sale consideration to the vendors within three months. But admittedly, the respondents 1 and 2/defendants 1 and 2 are unable to repay the mortgage in favour of the Madras Purasawalkam Janopakara Saswatha Nidhi Limited. In the meanwhile, the respondents 1 and 2/defendants 1 and 2 executed the settlement deed in favour of the respondents 3 to 6/defendants 3 to 6 under Ex.A9 on 24.07.1976. The respondents/defendants also sent letters, receipts and telegrams to the appellants/plaintiffs and demanded money under the various documents in Exs.A10 to A19, A21 to A26, A30 to A33, A35 to A43, A45, A46, A49, A50, A53 to A58, A63 to A66 and A84. The appellants/plaintiffs also paid the mortgage dues to the Nidhi under Exs.A20, A27, A28, A29, A34, A52 and A59. The mortgage deed under Ex.A44 was cancelled on 06.05.1978. Since the appellants/plaintiffs are unable to discharge the mortgage debts, the respondents/defendants entered into a fresh sale agreement under Ex.A71 on 19.01.1980. In that sale agreement, the purchasers agreed to pay separately a further sum of Rs.50,000/- to the vendors for delivering the vacant possession of the entire building except the ground floor to the purchasers. The purchasers further agreed to pay separately a further sum of Rs.1,50,000/- to the vendors to make good the loss sustained by the vendors due to the delay in completion of the sale process. At the time of executing the sale agreement under Ex.A71, the mortgage debt dues to the Madras Purasawalkam Janopakara Saswatha Nidhi Limited has not been discharged. So as per Ex.A71-sale agreement, three months time was granted, the period of completion would be extended by one more month, if there are exceptional circumstances. Now this Court has to decide that whether the time is essence of contract. The sale agreement in respect of immovable property, time is not always essence of contract and the conduct of the parties should be looked into.

(ii)The learned counsel for the appellants/plaintiffs submitted that as per clause-(ix) of Ex.A71-sale agreement, the respondents/defendants ought to have produced the necessary income tax, gift tax and urban land ceiling clearance certificates to the appellants/plaintiffs, but they have not produced the same. Hence the question of time is essence of contract does not arise. He further submitted that admittedly one Dhandapani Electricals has been occupied in the first floor of the suit property. As per the sale agreement under Ex.A71, the respondents/defendants ought to have given the vacant possession of the property to the appellants/plaintiffs, since they have not completed the obligation mentioned in Ex.A71, the time is essence of the contract, does not arise. He further submitted that as per article 54 of the Limitation Act, cause of action arose from the date fixed by the agreement or even no date or time is fixed, three years from the date of refusal from the part of contract. But here, the respondents/defendants themselves were not performed their part of contract by way of obtaining income tax and urban land ceiling clearance certificates and they have not vacated the premises (i.e.) Dhandapani Electricals, so they are not fulfilled their obligation mentioned in Ex.A71. Hence the suit filed on 11.04.1984 is well within time. The conduct of the party itself shows that time is not essence of the contract.

(iii) Refuting the same, the learned counsel for the respondents/defendants submitted that since the appellants/ plaintiffs are not having funds, they conducted the cultural programme in the year 1977 for collecting money to purchase the suit property. As per Article 54 of the Limitation Act, "if the time is fixed for the performance, three years from the date fixed for the performance or if no such date is fixed, when the plaintiff has notice that performance is refused." The respondents 1 and 2/defendants 1 and 2 issued a letter under Ex.B7 on 25.03.1981, directing the appellants/plaintiffs to ready with the balance amount of sale consideration within one week to get the sale deed executed, failing which, the two agreements will automatically stand cancelled. He sent another letter to the appellants/plaintiffs dated 20.04.1981 under Ex.B9 stating that the sale agreements stand cancelled. But the appellants/plaintiffs have not sent any reply to both the letters under Exs.B7 and B9, they have sent a notice only on 23.03.1984 under Ex.B11 and thereafter, filed the suit on 11.04.1984, which is not in time. Hence he prayed for confirming the judgment and decree passed by the trial Court.

(iv) It is true that when Exs.A70 and A71 were executed, three months time was granted for performance of the contract and three months time will be completed on 19.04.1980. The mortgage deeds were cancelled by the Nidhi on 13.03.1980 after mortgage amount was discharged by the appellants/plaintiffs. A letter from the second respondent/second defendant to the appellants/plaintiffs dated 04.06.1980 under Ex.A63 has clearly proved that he demanded Rs.10,000/- from the appellants/plaintiffs and directed to produce the draft sale deed. He also sent letters under Exs.A64, A65 and A66, which have clearly proved that time is not essence of their contract. As already stated that as per clause-(v) of Ex.A71, three months time was granted for executing the sale deed and the same was expired on 19.04.1980. But the letters sent by the respondents/defendants to the appellants/plaintiffs under Exs.A63 to A66 were related to the month of June, which clearly proved that both the parties are not considered that the time is essence of their contract. The conduct of the appellants/plaintiffs and the respondents/defendants and the correspondence between both the parties would show that they never considered the time is essence of contract for performance of Exs.A70 and A71.

(v) At this juncture, it is appropriate to consider the following decisions relied upon by the learned counsel for the appellants/plaintiffs for the significance of time is essence of contract:

(a)AIR 1967 SC 868 (Gomathinayagam Pillai and others v. Palaniswami Nadar) in paragraph-4, it reads as follows:

"4.The facts which have a material bearing on the first question have already been set out. Section 55 of the Contract Act which deals with the consequences of failure to perform an executory contract at or before the stipulated time provides by the first paragraph:

"When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promisee if the intention of the parties was that time should be of the essence of the contract."

It is not merely because of specification of time at or before which the thing to be done under the contract is promised to be done and default in compliance therewith, that the other party may avoid the contract. Such an option arises only if it is intended by the parties that time is of the essence of the contract. Intention to make time of the essence, if expressed in writing, must be in language which is unmistakable : it may also be inferred from the nature of the property agreed to be sold, conduct of the parties and the surrounding circumstances at or before the contract. Specific performance of a contract will ordinarily be granted, notwithstanding default in carrying out the contract within the specified period, if having regard to the express stipulations of the parties, nature of the property and the surrounding circumstances, it is not inequitable to grant the relief. If the contract relates to sale of immovable property, it would normally be presumed that time was not of the essence of the contract. Mere incorporation in the written agreement of a clause imposing penalty in case of default does not by itself evidence an intention to make time of the essence. In Jamshed Khodaram Irani v. Burjorji Dhunjibhai the Judicial Committee of the Privy Council observed that the principle underlying section 55 of the Contract Act did not differ from those which obtained under the law of England as regards contracts for sale of land. The Judicial Committee observed :

"Under that law equity, which governs the rights of the parties in cases of specific performance of contracts to sell real estate, looks not at the letter but at the substance of the agreement in order to ascertain whether the parties, notwithstanding that they named a specific time within which completion was to take place, really and in substance intended more than that it should take place within a reasonable time. . . . Their Lordships are of opinion that this is the doctrine which the section of the Indian Statute adopts and embodies in reference to sales of land. It may be stated concisely in the language used by Lord Cairns in Tilley v. Thomas (1867) L. R. 3 Chapter 61: 'The construction is, and must be, in equity the same as in a Court of law. A Court of equity will indeed relieve against, and enforce, specific performance, notwithstanding a failure to keep the dates assigned by the contract, either for completion, or for the steps towards completion, if it can do justice between the parties, and if (as Lord Justice Turner said in Roberts v. Berry (1853) 3 De G. M. & G. 284), there is nothing in the "express stipulations between the parties, the nature of the property, or the surrounding circumstances," which would make it inequitable to interfere with and modify the legal right. This is what is meant, and all that is meant when it is said that in equity time is not of the essence of the contract. Of the three grounds... mentioned by Lord Justice Turner "express stipulations" requires no comment. The "nature of the property" is illustrated by the case of reversions, mines, or trades. The "surrounding circumstances" must depend on the facts of each particular case.'

Their Lordships will add to the statement just quoted these observations. The special jurisdiction of equity to disregard the letter of the contract in ascertaining what the parties to the contract are to be taken as having really and in substance intended as regards the time of its performance may be excluded by any plainly expressed stipulation. But to have this effect the language of the stipulation must show that the intention was to make the rights of the parties depend on the observance of the time limits prescribed in a fashion which is unmistakable. The language will have this effect if it plainly excludes the notion that these time limits were of merely secondary importance in the bargain, and that to disregard them would be to disregard nothing that lay as its foundation. 'Prima facie, equity treats the importance of such time limits as being subordinate to the main purpose of the parties, and it will enjoin specific performance notwithstanding that from the point of view of a Court of Law the contract has not been literally performed by the plaintiff as regards the time limit specified.' "

(b) (1990) 1 SCC 104 (Ramzan v. Hussaini) in which, it reads as follows:

"Held: The requirement of Article 54 of the Limitation Act is not that the actual day should necessarily be ascertained upon the face of the deed, but that the basis of the calculation which was to make it certain should be found therein. The agreement in the present case was a typical illustration of a contingent contract within the meaning of Section 31 of the Contract Act and became enforceable as soon as the event of redemption (by the plaintiff herself) happened. Under the agreement the date for the defendants to execute the sale deed was fixed, although not by mentioning a certain date but by a reference to the happening of a certain event, namely, the redemption of the mortgage; and; immediately after the redemption by the plaintiff, the defendant became liable to execute the sale deed which the plaintiff was entitled to enforce. The period of limitation thus started running on that date. The doctrine of id certum est quod certum reddi potest is clearly applicable to the case which is that certainty need not be ascertained at the time; for if, in the fluxion of time, a day will arrive which will make it certain, that is sufficient. The case is, therefore, covered by the first part of Article 54(third column) and not the second part."

(c) AIR 1991 Delhi 315 (M/S. Nanak Builders and Investors Pvt. Ltd., v. Vinod Kumar Alag) in which, it reads as follows:

" Whether time is of the essence of a contract is a question of fact and the decision of this depends on the entire relevant facts on record of the case. The real test is the attention of the parties. Generally in the context of immovable properties time is not of the essence of the contract. But this general principle is subject to the exceptions as may arise on the facts of a given case wherein the parties may make time of essence of the contract even in cases relating to immovable property. The intention of the parties has to be found out on the basis of the material on record."

(vi) The learned counsel for the respondents/defendants relied upon the following decisions for the significance of time is essence of contract:

(a)2002 (4) CTC 31 (Suryagandhi v. Lourduswamy) in paragraph-27, it reads as follows:

"27. One another aspect the learned counsel for the defendant highlighted is that the plaintiff has not acted within a reasonable time and Nine years and above is not a reasonable time at all for the plaintiff to awake from the deep sleep and demand for sale. In Vidyanandam vs. Vairavan , 1997 (3) SCC 1, the Apex Court has laid down thus:-

"Even where time is not of the essence of the contract, the plaintiff must perform his part of the contract within a reasonable time and reasonable time should be determined by looking at all the surrounding circumstances including the express terms of the contract and the nature of the property."

(b)2007-4-L.W.36 (Janardhanam Prasad v. Ramdas), in which, it reads as follows:

"Court, in applying the period of limitation, would first inquire as to whether any time was fixed for performance of agreement of sale, if it is so fixed, the suit must be filed within the period of three years, failing which the same would be barred by limitation.

In this case, however, no time for performance was fixed; it was for the Courts to find out the date on which the plaintiff had notice that the performance was refused and on arriving at a finding in that behalf, to see whether the suit was filed within three years thereafter."

(c) AIR 2006 SC 2281 (Pancharan Dhara and others v. Monmatha Nath Maity (Dead) by Lrs. and another) in paragraph-21, it reads as follows:

"21. A bare perusal of Article 54 of the Limitation Act would show that the period of limitation begins to run from the date on which the contract was to be specifically performed. In terms of Article 54 of the Limitation Act, the period prescribed therein shall begin from the date fixed for the performance of the contract. The contract is to be performed by both the parties to the agreement. In this case, the first respondent was to offer the balance amount to the Company, which would be subject to its showing that it had a perfect title over the property. We have noticed hereinbefore that the courts below arrived at a finding of fact that the period of performance of the agreement has been extended. Extension of contract is not necessarily to be inferred from written document. It could be implied also. The conduct of the parties in this behalf is relevant. Once a finding of fact has been arrived at, that the time for performance of the said contract had been extended by the parties, the time to file a suit shall be deemed to start running only when the plaintiff had notice that performance had been refused. .. .."

(d)2004 (3) CTC 308 (Pukhraj D.Jain and others v. G.Gopalakrishna), in paragraph-5, it reads as follows:

"5. .. This period of 3 years under Article 54 has to be reckoned from date fixed for specific performance or if no date is filed when plaintiff had notice that performance was refused) This period of 3 years has to be reckoned from the date fixed for the performance, or if, no such date is fixed, when the plaintiff has notice that performance is refused. .."

(e) AIR 1993 SC 1120 (Smt.Thakamma Mathew v. M.Azamathulla Khan and others) in which, it reads as follows:

"The power under O.7, R.7 conferred on the Court does not enable it to override the statutory limitations contained in S.16 of the Specific Relief Act, 1963 and S.54 of the Limitation Act, 1963 which preclude the grant of the relief of specific performance of a contract except within the period prescribed by the section. "

(f) (1994) II MLJ 207 ( K.Krishnan Nair and others v. K.Parameswaran Pillai (died) and others), in which, it reads as follows:

"Article 54 of the Limitation Act, 1963, prescribes a period of three years for a suit for specific performance of a contract from the date fixed for the performance or if no such date is fixed when the plaintiff has notice that performance is refused. In the present case, the date is fixed by the parties. Though actual date is not fixed, the parties have clearly mentioned the time within which the contract should be performed. It has been held in Munuswami Gounder .V.Shammanna Goundar, (1950) 2 M.L.J.163, that the words 'date fixed' are comprehensive to include a date which can be ascertained with reference to an event certain to happen. In the present case, certain event is fixed and that is within one month of the final order in M.C.No.7 of 1964 and that happened on 30.07.1964. Hence the suit should have been filed within three years from 30.08.1964. The suit having been filed only on 18.07.1979 is clearly barred by limitation."

(g)AIR 1988 Karnataka 83 (Mahboob Pasha v. Syed Zaheeruddin and others) in paragraph-9, it reads as follows:

"9. .. .. No doubt normally in the case of an agreement for sale, relating to immovable property, time is not the essence of the Contract unless the agreement in clear terms provides for it without any ambiguity. The question whether time is the essence of the contract is relevant for the purpose of determining the question as to who has committed breach of the agreement; but it is not relevant for deciding the question as to commencement of the period of limitation. In a case where the date for performance of the agreement is fixed, as per first part of Art. 54, the limitation begins to run from the date fixed for the performance. The clear meaning of this is that irrespective of the fact whether the time is the essence of the Contract or not, the period of limitation begins to run from the date fixed for the performance of the agreement. There is no ambiguity whatsoever. .. .."

(h) AIR 1965 Madhya Pradesh 177 (Sumerchand Hukumchand and others v. Hukumchand Mathurdas and others), in paragraph-4, it reads as follows:

"4. .. .. The question whether time is the essence of the contract is, in my opinion, not at all relevant for determining whether the first or the second part of Column 3 in Article 113 applies to a particular case. Where time for performance of the contract is fixed, limitation forthwith begins to run as from that time, irrespective of the question of notice or refusal to perform. Authorities are uniform on the point that where a time is fixed for performance, the second part of Column 3 in Article 113 can have no application. .. .."

(i) AIR 1976 Bombay 342 (Shrikrishna Keshav Kulkarni and others v. Balaji Ganesh Kulkarni and others) in paragraph-9, it reads as follows:

"9. .. .. The starting point of limitation, as already noted, was the date fixed for performance of the contract, or, if no such date is fixed, the date on which the plaintiff has notice that performance is refused. In the absence of any indication when the attachment would be raised and what would be the date for the performance of the agreement, which was after the attachment was raised, it had to be treated as a case in which no date was fixed for the performance of the contract. To such a case, the starting point of limitation is when the plaintiff has notice that performance is refused. .. .."

(j) AIR 2009 SC 2193 (Ahmmadsahab Abdul Mulla (deceased by Lrs.) v. Bibijan and others) in paragraph-7, it reads as follows:

"7.The inevitable conclusion is that the expression 'date fixed for the performance' is a crystallized notion. This is clear from the fact that the second part "time from which period begins to run" refers to a case where no such date is fixed. To put it differently, when date is fixed it means that there is a definite date fixed for doing a particular act. Even in the second part the stress is on 'when the plaintiff has notice that performance is refused'. Here again, there is a definite point of time, when the plaintiff notices the refusal. In that sense both the parts refer to definite dates. So, there is no question of finding out an intention from other circumstances. Whether the date was fixed or not the plaintiff had notice that performance is refused and the date thereof are to be established with reference to materials and evidence to be brought on record. The expression 'date' used in Article 54 of the Schedule to the Act definitely is suggestive of a specified date in the calendar. .. .."

(k) AIR 1996 SC 1504 (M/S.P.R.Deb and Associates v. Sunanda Roy) in paragraph-8, it reads as folllows:

"8. .. .. This Court has observed that although in the case of a sale of immovable property time is not of the essence of the contract, it has to be ascertained whether under the terms of the contract, when the parties named a specific time within with completion was to take place, really and in substance it was intended that it should be completed within a reasonable time. .. .."

(l) 2000 (IV) CTC 278 (Indravathi v. Kamala) in which, it reads as follows:

"Time is essence of contract where time limit has been stipulated for performance of certain obligations and any disregard to such stipulation would amount to ignoring understanding between parties."

(m)(1994) II MLJ 78 (S.S.Chokkalingam v. R.B.S.Mani and others) in paragraph-26, it reads as follows:

".. It is well known that a person who has come to Court with a false case is not entitled to the equitable relief of specific performance. .. .. No doubt, ordinarily in contracts relating to immovable property, time is not the essence of contract. But in the facts and circumstances of such case, the court can come to a conclusion that in a particular case, time has been made the essence of contract. .. .."

"26. .. In the present case, we hold that though initially the respondents were willing to extend the time as requested by the appellant, they have made it clear to him unequivocally that he should complete the transaction before a particular date. In fact, the appellant himself has assured the respondents that in case of default, they were free to seek other purchasers. Hence, in this case we hold that the appellant is not entitled to claim the relief of specific performance as he has not come to court within the time. .. .."

(n) 200 AIR SCW 6561 (Narinder Kumar Malik v. Surinder Kumar Malik), in paragraphs-28 and 29, it read as follows:

"28. High Court certainly fell into error in construing the said provision in right perspective and erred in coming to the conclusion that since time was extendable, the time could not have been made the essence of the contract.

29. A bare perusal of the aforesaid provision makes it clear that ultimately the time was fixed only upto 9th July 2005. However, with an intention to given further leverage to the respondent herein, the time was made extendable by 10 to 20 days and not more and that too only with the consent of the parties. Even if it is said that 9th July 2005 could not have been the last date, at least after 20 days the said last date expired. Admittedly, the respondent has not honoured his commitment, within the extendable period given to him, even though he had no right to claim the benefit as of right for the extendable period."

(o) 2009 AIR SCW 7144 (A.K.Lakshmipathy (dead) and others v. Rai Saheb Pannalal H.Lahoti Charitable Trust and others) in paragraph-15, it reads as follows:

"15. .. .. In our view, the High Court has rightly pointed out that there are many instances in the said contract where the fact that time is to be of essence of the contract has been specifically mentioned. Clause 10 of the Agreement of Sale which reads : "Time will be of essence of the contract", therefore, has been clearly mentioned in the agreement for sale. However, it is well settled proposition of law by now that time is not to be of essence in case of sale of immovable property. In Chand Rani v. Kamal Rani [AIR 1993 SC 1742], this Court clearly held that in the case of sale of immovable property, there is no presumption as to time being the essence of the contract."

(p)1999 AIR SCW 2378 (K.Narendra v. Riviera Apartments (P) Ltd.) in which, it reads as follows:

"Where though the agreement to sell the land did not specifically provide for a time limit within which the agreement was to be performed, however, intrinsic evidence was available in the agreement itself spelling out the intention of the parties to perform the contract within a reasonable time i.e. within period of about 2 = years to 3 = years from the date of agreement for example, a cheque which was post-dated was given by the purchasers to the buyers with the stipulation that the same was to be encashed by the seller after the plans of multi-storied buildings as submitted by the purchaser were passed and cleared for construction by the authorities or earlier by a mutual agreement and the cheque was not undated but to expire after six months from the prescribed date, meaning thereby the sanction of the plans and clearance from the authorities, the obligation to secure which was on the purchaser, were expected by the parties to be secured within the period of six months, so also it was provided for completion of the construction of the building within a period of two to three years from the date of the plans being sanctioned and released by the appropriate authority and the purchasers failed to perform their obligations within the reasonable time and also there was astronomical rise in the value of land, which none of the parties could have fore contemplated at the time of entering into agreement, it was held that discretionary jurisdiction to decree specific performance ought not to be exercised in favour of the purchasers in such a case."

(q) 2008-3-L.W.817 (M/S.Ramnath Publications pvt. Ltd., represented by its Managing Director v. A.R.Madana Gopal and others) in paragraph-33, it reads as follows:

"In a case where time was the essence of the contract, the burden of proof was upon the person alleging it, by giving an opportunity to the other side to rebut such a presumption."

"33. .. .. in the case of sale of immovable property, there is no presumption as to time being the essence of the contract and even where the parties have expressly provided that time is the essence of the contract, such a stipulation will have to be read along with other provisions of the contract. There cannot be any quarrel on the legal proposition put forth by the respondents' side. It is true that mere fixation of time within which the contract was to be performed, did not make the stipulation as to the time as the essence of the contract. .. .. "

(r) 2003 (2) CTC 109 ( Manjunath Anandappa urf Shivappa Hanasi v. Tammanasa and others) in paragraph-30, it reads as follows:

"30.There is another aspect of the matter which cannot be lost sight of. The plaintiff filed the suit almost after six years from the date of entering into the agreement to sell. He did not bring any material on records to show that he had ever asked defendant No. 1, the owner of the property, to execute a deed of sale. He filed a suit only after he came to know that the suit land had already been sold by her in favour of the appellant herein. Furthermore, it was obligatory on the part of the plaintiff for obtaining a discretionary relief having regard to Section 20 of the Act to approach the Court within a reasonable time. Having regard to his conduct, the plaintiff was not entitled to a discretionary relief."

Considering the above citations, as per Article 54 of the Limitation Act, three years from the date fixed for the performance or if no such date is fixed, when the plaintiff has notice that performance is refused.

(vii) The learned counsel for the respondents/defendants submitted that a notice was issued by the respondents 1 and 2/defendants 1 and 2 under Ex.B7 on 25.03.1981. In that it was stated that if the appellants/plaintiffs have not ready to perform their part of contract within the stipulated time, the contract will be cancelled automatically. They issued another notice under Ex.B9 on 20.04.1981 stating that the two agreements stand cancelled, since the appellants/plaintiffs had not performed their part of contract. But admittedly, no reply was sent by the appellants/plaintiffs either to Ex.B7 or to Ex.B9. They kept quiet all along till 1984 and thereafter, they filed a suit only on 11.04.1984.

(viii) At this juncture, the learned counsel for the appellants/plaintiffs submitted that as per Article 54 of the Limitation Act, the appellants/plaintiffs had the knowledge about the cancellation of documents only on 20.04.1981. So they ought to have filed the suit from the third year from the date of Ex.B9 (i.e.) they ought to have filed the suit on or before 19.04.1984. Hence the suit was filed on 11.04.1984, which is well within time. So the suit is not barred by limitation.

(ix)Per contra, the learned counsel for the respondents/ defendants submitted that as per Ex.A71, three months time was given for completing the sale process. So the appellants/plaintiffs ought to have completed their performance on or before 18.04.1980. If they want to file the suit, they ought to have filed the suit on or before 18.04.1983, instead of that, they filed the suit on 11.04.1984 (i.e.) after three years, which is barred by limitation.

(x)As already stated that the conduct of the parties played vital role for deciding that whether the time is essence for performing contract and whether the suit for specific performance is barred by limitation.

(xi) It is pertinent to note that mortgage deed was cancelled only on 13.03.1980. The appellants/plaintiffs were also paid the amounts to the respondents/defendants in various dates on 21.06.1980, 01.08.1980, 07.08.80, 10.09.1980, 24.09.1980 and 30.10.1980 (i.e.) after three months fixed in Ex.A71, which shows that the conduct of both the parties proved that the time is not essence of the contract. In such circumstances, even though time was fixed under Ex.A71 (i.e.) three months from 19.01.1980, after that also, the respondents/defendants have received the balance amounts shows that both the parties are not considered that the time is essence of contract.

(xii) Since time is not essence of the contract, now this Court has to decide that whether the suit is barred by limitation?. As per Article 54 of the Limitation Act, cause of action begins only on the date of refusal of performance. Now it is appropriate to consider Ex.B7-notice issued by the respondents 1 and 2 /defendants 1 and 2 dated 25.03.1981, in which, it was specifically mentioned as follows:

".. .. I have given you a long time as long over 4 year and 9 months, you do not care to purchase our building. Your long delay results in a huge loss and hardship to me. I do not want to continue this. This is therefore to request you to finish the sale transaction within a week from the receipt of this registered letter, failing which, please note that the agreement dated 8-7-76 and 19-1-80 are hereby stand cancelled and we are entitled to sell the property by virtue of the agreements executed by you. You know very well that the time is the essence of the contract and if you fail and do not finish the transaction within one week your two agreements will automatically stand cancelled."

The above notice was received by RM.Vellaiyan, President, Indian Bank Employees Union on 28.03.1981 and an acknowledgement card was marked under Ex.B8, but no reply was sent by him. Subsequently, another notice was sent by the respondents 1 and 2/ defendants 1 and 2 under Ex.B9 on 20.04.1981, in which, it was stated as follows:

" As detailed wherein since you had not performed your part of the contract within the time stipulated in my last notice dated 25.03.1981 which you have received it on 28.03.1981 please note that the agreement dated 9-7-76 and 19-1-80 stand cancelled and the advance amounts have been forfeited as per term of the above agreements. Hereafter you have absolutely right of any kind under the aforesaid agreement. I am at liberty to sell the property to whomsoever I like hereafter. This is for your information."

But no reply was sent by the appellants/plaintiffs either to Ex.B7 or Ex.B9. The learned counsel for the respondents/defendants submitted that on 25.03.1981 itself, they were specifically stated that "if you fail and do not finish the transaction within one week your two agreements will automatically stand cancelled" and the same was received by them on 28.03.1981. Since no reply was sent by them, the respondents 1 and 2/defendants 1 and 2 cancelled the two agreements dated 09.07.1976 and 19.01.1980.

(xiii) Considering both sides arguments, as per Ex.B7, even though one week time was granted to finish the transaction, the appellants/plaintiffs have not taken any steps to perform their part of contract. So as per Ex.B9 dated 20.04.1981, the sale agreements under Exs.A70 and A71 were stand cancelled and the advance amounts have been forfeited. In such circumstances, I am of the view that since the cause of action for the suit arose only on 20.04.1981, the suit was filed on 11.04.1984. So the suit is not barred by limitation as per Article 54 of the Limitation Act. So the trial Court has erroneously concluded that the suit is barred by limitation. Point No.2 is answered accordingly.

9.Point No.1 - Readiness and willingness:

(i) The learned counsel for the appellants/plaintiffs submitted that the trial Court erroneously dismissed the suit on the ground that the appellants/plaintiffs herein were not ready and willing to perform their part of contract, but the appellants/plaintiffs were always ready and willing to perform their part of contract. The respondents/defendants have not furnished the income tax clearance certificate and also urban land ceiling clearance certificate and not vacated the Dhandapani Electricals, which was in the first floor of the suit property. Since the respondents/defendants herein have not fulfilled their obligation mentioned in the sale agreement under Exs.A70 and A71, the readiness and willingness in performing contract does not arise. At this juncture, the learned counsel for the appellants/plaintiffs, to substantiate his arguments, he relied upon various decisions of the Apex Court, this Court and other High Courts.

(ii) Refuting the same, the learned counsel for the respondents/defendants submitted that since the appellants/plaintiffs are not having funds and even though they received the notice issued by the respondents 1 and 2/ defendants 1 and 2, they kept quiet all along. Thereafter, even though another notice was sent under Ex.B9 on 20.04.1981, in which, two agreements were stand cancelled, they kept quiet without any response. They issued notice to the respondents/defendants only in the year 1984, which shows that they are not ready and willing to perform their part of contract. He further submitted that as per the version of the appellants/plaintiffs, the balance amount has to be paid is Rs.67,493/-, but the amount claimed by the Income Tax Department for the gift tax is only Rs.22,500/-. If the appellants/plaintiffs were very particular to purchase the suit property, they may very well paid the said amount of Rs.22,500/-. The appellants/plaintiffs also received a notice from the Income Tax Department on 11.04.1985 under Ex.A75, which is after filing of the suit. It clearly shows that they were not ready and willing to perform their part of contract. In the first agreement under Ex.A70, the purchasers have agreed to discharge the mortgage due to Purasawalkam Janopakara Sasvatha Nidhi Limited within three months, but they have not discharged the same and it was discharged only on 13.03.1980 (i.e.) after the second agreement under Ex.A71 came into existence. Since they have no funds, they conducted cultural programme and generate funds for purchasing the suit property, which shows that they are not ready and willing to perform their part of contract. Even after the receipt of the notices under Exs.B7 and B9, they kept quiet all along, which shows that they are not ready and willing to perform their part of contract. To substantiate his arguments, he relied upon various decisions of the Apex Court, this Court and other High Courts.

(iii)Now it is appropriate to consider the following decisions relied upon by the learned counsel for the appellants/plaintiffs for the significance of readiness and willingness:

(a)1970 II MLJ 397 (Alagammal v. M.S.Rajagopala Servai) in paragraph-6, it reads as follows:

"6. .. .. There is an explanation to the said provision which provides that where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court. The plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. .. .."

(b)AIR 1971 SC 1238 (Ramesh Chandra Chandiok and another v. Chuni Lal Sabharwal (dead) by his legal representatives and others) in which, it reads as follows:

"Held that on the facts and circumstances of the case A must be held to be ready and willing to performance his part of the contract till date of suit and was therefore entitled to a decree for specific performance. Readiness and willingness cannot be treated as a strait-jacket formula. These have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned. There was no material on record to show that A at any stage was not ready and willing to perform his part of contract or that he did not have the necessary funds for payment when the sale deed would be executed after the sanction was obtained. "

(c) (1979) 4 SCC 393 (Prakash Chandra v. Angadlal and others) in paragraph-9, it reads as follows:

"9.The ordinary rule is that specific performance should be granted. It ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief. In the present case, the conduct of the appellant has not been such as to disentitle him to the relief of specific performance. .. .. "

(d) (1988) 2 SCC 488 (Smt.Indira Kaur and others v. Sheo Lal Kapoor), in paragraph-9, it reads as follows:

"9. The High Court also committed the same error of drawing an adverse inference against the plaintiff for not producing the passbook in disregard of the fact that neither the defendant had called upon him to do so nor had the Court ordered him to do so at his instance or on its own. The relevant passage from the judgment of the High Court may be quoted in this context :

The Court noticed that the plaintiff had stated that the amount had been deposited in the bank. There was no passbook of the bank to show that the plaintiff had the aforesaid amount in 1977.

Thus all the three Courts have committed a serious error in drawing an adverse inference against the plaintiff which it was impermissible in view of the law declared by this Court in Mst. Ramrati Kuer v. Dwarika Prasad Singh. "

(e) (1996) 10 SCC 51 (Pandurang Ganpat Tanawade v. Ganpat Bhairu Kadam and others) in paragraph-8, it reads as follows:

"8.In view of the aforesaid statements of the appellant and respondent 1 as well as the averments contained in paras 6 and 10 of the plaint, it must be held that the appellant has not only averred, but has also proved that he was ready and willing to perform his part of the contract under the agreement for sale. The appellate court and the High Court were, therefore, in error in holding that the appellant had failed to comply with the requirements of Section 16(c) of the Specific Relief Act and the appellant must be held entitled to a decree for specific performance of the contract in the suit filed by him. .. .."

(f) (1997) 2 SCC 200 (Sukhbir Singh and others v. Brij pal singh and others) in paragraphs-4 and 5, it read as follows:

"4. In paras 5, 9 and 10 of the plaint the respondents have in substance pleaded that they had been and were still willing to perform their part of the agreement and the defendants did have notice in that behalf. It is seen that averments made in the above paras are in substance as per Forms 47 and 48 prescribed in Appendix AA of the Code as amended by the High Court. What requires to be considered is whether the essential facts constituting the ingredients in Section 16(1)(c) of the Act were pleaded and that found mentioned in the said forms do in substance point to those facts. The procedure is the handmaid to the substantive rights of the parties. It would, therefore, be clear from a perusal of the pleadings and the forms that the averments are consistent with the forms. When the respondents had pleaded and proved by the Sub-Registrar s endorsement as per paper No. 41/C that the respondents were present in the office of the Sub-Registrar for having the sale deed executed and registered by the petitioners, it would be explicit that the respondents were ready and willing to perform their part of the agreement. The facts that the petitioners did not attend the office would prove positively that the petitioners had avoided execution of the sale deed.

5. Law is not in doubt and it is not a condition that the respondents should have ready cash with them. The fact that they attended the Sub-Registrar s office to have the sale deed executed and waited for the petitioners to attend the office of the Sub-Registrar is a positive fact to prove that they had necessary funds to pass on consideration and had with them the needed money with them for payment at the time of registration. It is sufficient for the respondents to establish that they had the capacity to pay the sale consideration. It is not necessary that they should always carry the money with them from the date of the suit till the date of the decree. .. .."

(g) 1998 II MLJ 423 (K.M.Rajendran v. Arul Prakasam and another) in which, it reads as follows:

"Under Sec.16(c) of the Specific Relief Act, 1963 right from the date of execution till date of the decree, the plaintiff must prove that he is ready and has always been willing to perform its part of the contract. The court may refer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. Ex.A-1 agreement is valid and the plaintiff has proved his case by placing acceptable evidence. "

(h) AIR 2000 Kerala 17 (Kochuthampi Rawther Hassankutty v. Peerumuhammed Puthumaliyar Rawther and others) in paragraph-6, it reads as follows:

"6. .. .. The readiness and willingness of the appellant to perform her part of the contract crystalline, in view of the deposit of the balance sale consideration made by her. The deposit of the balance sale consideration in Court ipso facto establishes the readiness and willingness of the appellant from the date of deposit till the passing of the decree in the suit."

(i) (2000) 7 SCC 548 (Gobind Ram v. Gian Chand) in paragraph-7, it reads as follows:

"7. It is the settled position of law that grant of a decree for specific performance of contract is not automatic and is one of the discretions of the court and the court has to consider whether it will be fair, just and equitable. The court is guided by principle of justice, equity and good conscience. As stated in P.V. Joseph s Son Mathew the court should meticulously consider all facts and circumstances of the case and motive behind the litigation should also be considered. "

(j)2010-2-L.W.368 (A.Ramadas Rao v. M/S.J.P.Builders, rep. by its Proprietor, J.Paramanandam), in paragraph-17, it reads as follows:

"17."Readiness and Willingness":

We have given anxious consideration to the rival contentions. Section 16(c) of the Specific Relief Act postulates "readiness and willingness" on the part of the plaintiff. It is a condition precedent for obtaining relief of grant of specific performance. In a suit for specific performance, the plaintiff must allege and prove a continuous "readiness and willingness" to perform the contract on his part from the date of the contract to the time of hearing. The onus is on the plaintiff although in the absence of any evidence to the contrary it may be easily discharged. The requirement of law is two fold. (i) that the plaintiff must aver in the plaint and (ii) that he must prove by evidence that he has always been ready and willing to perform his part of the contract."

(iv) The learned counsel for the respondents/defendants relied upon the following decisions for the significance of readiness and willingness:

(a)AIR 1967 SC 868 (Gomathinayagam Pillai and others v. Palaniswami Nadar) in paragraph-6, it reads as follows:

"6.But the respondent has claimed a decree for specific performance and it is for him to establish that he was, since the date of the contract, continuously ready and willing to perform his part of the contract. If he fails to do so, his claim for specific performance must fail. As observed by the Judicial Committee of the Privy Council in Ardeshir Mama v. Flora Sasson:

"In a suit for specific performance, on the other hand, he treated and was required by the Court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness, from the date of the contract to the time of the hearing, to perform the contract on his part. Failure to make good that averment brought with it the inevitable dismissal of his suit."

The respondent must in a suit for specific performance of an agreement plead and prove that he was ready and willing to perform his part of the contract continuously between the date of the contract and the date of hearing of the suit. On this part of the case the trial Court recorded a clear finding against the respondent that he was at no time ready and willing to perform his part of the contract. The High Court did not consider the effect of this finding upon the claim of the respondent and without expressing dissent with that finding granted a decree for specific performance to the respondent."

(b) 1998 (1) CTC 186 (Vasantha and others v. M.Senguttuvan) in paragrah-15, it reads as follows:

"15. .. .. Even if for single day, plaintiff-agreement holder is not ready to take the sale deed, the equitable remedy should not be granted. Readiness and willingness must be there continuously from the date of agreement upto the date of hearing. In this case, the concurrent finding is that the appellant was not ready to take the sale deed and that is proved by Ex. A-3."

(c) AIR 1995 SC 945 (Jugraj singh and another v. Labh singh and others) in paragraph-3, it reads as follows:

"3. Section 16(c) of the Specific Relief Act, 1963 provides that the plaintiff must plead and prove that he has always been ready and willing to perform his part of the essential terms of the contract. The continuous readiness and willingness at all stages from the date of the agreement till the date of the hearing of the suit need to be proved. The substance of the matter and surrounding circumstances and the conduct of the plaintiff must be taken into consideration in adjudging readiness and willingness to perform the plaintiff s part of the contract."

(d)AIR 1996 SC 116 (N.P.Thirugnanam (dead) by Lrs., v. Dr.R.Jagan Mohan Rao and others) in paragraph-5, it reads as follows:

"5. .. .. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances."

(e)(1996) I MLJ 566 (R.Krishnasamy Naidu v. Smt.Ambrose and another) in paragraph-12, it reads as follows:

"12. .. .. If really the plaintiff was ready and willing to perform his part of the contract, there is no reason as to why he has not come forward with a suit for specific performance immediately after the period contemplated under the agreement and extended by the power of attorney of the first defendant expired. It only goes to show that the plaintiff who was already in possession of the property belonging to the first defendant who was in France, has continued his possession and enjoyment of the property without paying rent and when the purchaser of the property has sought for his eviction, has come forward with this suit for specific performance or in the alternative a decree for refund of Rs. 10,000 The trial court, after considering all these aspects, has rightly held that the plaintiff is not entitled to a decree for specific performance and decreed the suit for refund of the advance. .. .."

(f) JT 1996 (5) SC 460 (His Holiness Acharya Swami Ganesh Dassji v. Shri Sita Ram Thapar) in paragraph-2, it reads as follows:

"2. There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinised. .. .."

(g) 2009 (4) CTC 842 (Shanthi Kawarbai and others v. Sushila) in paragraphs-18, 26 and 29, it read as follows:

"18.At the outset, needless to say that the relief of specific performance is discretionary. In a given case, the plaintiff who seeks the relief, must plead and prove that he has all along been ready and willing to perform his part of the contract. The readiness and willingness should be consistent with the terms of the agreement, and he must also seek the relief with clean hands. The law is well settled that merely because the plaintiff who seeks the relief, has got a right, the relief should not be granted; but the Court should look into all the facts and circumstances attendant, exercise its discretion judiciously and grant the relief if warranted so. .. ..

26. .. .. It is well settled proposition of law that in a given case where there are laches and inaction on the part of the plaintiff seeking the specific relief, the Court cannot but to deny the relief.

29.In the instant case, the total inaction and laches on the part of the plaintiff was for a period of three years. The suit was filed just one day prior to the completion of three years and that too with false averments. In such circumstances, it is not a fit case where the Court can exercise the discretionary powers to grant the relief of specific performance. .."

(h) 2007 (1) CTC 243 (G.Ramalingam v. T.Vijayarangam) in paragraph-19, it reads as follows:

"19. .. .. Even assuming that the plaintiff had enough means to complete the sale transaction that itself is not sufficient unless the plaintiff established that he was ready and willing to pay the balance sale consideration and complete the sale transaction right from the date of the execution till the date of decree. As laid down by the Apex Court the plaintiff has not proved his continuous readiness and willingness at all stages from the date of agreement till the date of hearing of the suit."

(i) 2003-1-L.W.673 (Arunachala Mudaliar v. Jayalakshmi Ammal and another) in paragraph-12, it reads as follows:

"12. Section 16(c) of the Specific Relief Act, 1963 personally bars the Court from granting relief to a person who does not prove that he is ready and willing to perform the essential terms of the contract. As explanation of Clause (c) relating to readiness and willingness it is stated that "it is not essential for the plaintiff to actually tender to the defendant or to deposit any money except when so directed by the Court." Section 19 deals with relief against parties and persons claiming under them by subsequent title and it is seen that as per the Section, specific performance of the contract may be enforced against any person other than the party to the agreement claiming under either of them by a title arising subsequent to the contract except a transferee for value who has paid his money in good faith and without notice of the original contract. Section 20 makes it clear that the jurisdiction to decree specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful to do so."

Considering the above citations, it is the duty of the appellants/plaintiffs to aver and to prove that they are ready and willing to perform their part of contract. Furthermore, as per the dictum of the Apex Court, the appellants/plaintiffs must establish that they are always continuously ready and willing to perform their part of contract from the date of agreement till the institution of the suit.

(v) Now it is appropriate to consider the oral and documentary evidence let in by both sides. On the side of the appellants/plaintiffs, P.W.1 and P.W.2 were examined. The respondents/defendants herein not let in any oral evidence. Since the appellants/plaintiffs have sought for discretionary and equitable relief of specific performance, it is bound and duty to prove that they are always continuously ready and willing to perform their part of contract from the date of agreements (i.e.) Exs.A70 and A71, till filing the suit. Admittedly, in Ex.A71, three months time was granted for performing their part of contract, but they have not performed their part of contract. It is pertinent to note that as per Ex.B7, a notice was issued to the appellants/plaintiffs by the respondents 1 and 2/defendants 1 and 2 and one week time was given to finish their transaction, failing which, the two agreements will stand cancel automatically. Though they received the said notice under Ex.B8 on 28.03.1981, they have neither given any reply nor ready to get the sale deed executed. The respondents 1 and 2/defendants 1 and 2 sent another notice under Ex.B9 on 20.04.1981, stating that the two agreements stand cancelled, since the appellants/plaintiffs had not performed their part of contract. Though they received the said notice under Ex.B10 on 23.04.1981, they kept quiet all along. Only in the month of April 1984, they issued a notice under Ex.A72 on 23.03.1984 and filed a suit on 11.04.1984. As already discussed about that the conduct of the parties played vital role for deciding whether the time is essence of contract. As already stated that they kept quiet till 23.03.1984, wherein the two sale agreements stand cancelled under Exs.B7 and B9 in the year 1981, they issued notice only on 23.03.1984 under Ex.A72, nearly for three years, they have not taken any steps to get the sale deed executed. So the conduct of the appellants/plaintiffs clearly proved that they are not ready and willing to perform their part of contract.

(vi) At this juncture, it is appropriate to consider the arguments advanced by the learned counsel for the appellants/plaintiffs that as per the agreement under Exs.A70 and A71, the respondents/defendants were agreed to produce the income tax clearance certificate and Urban land ceiling clearance certificate from the authority and also vacated the premises occupied by Dhandapani Electricals, since they have not taken any steps to obtain the above two clearance certificates and to evict Dhandapani Electricals, the respondents/defendants herein have not fulfilled their obligations, so the readiness and willingness on the part of the appellants/plaintiffs does not arise.

(vii) At this juncture, it is appropriate to consider Ex.A64-letter written by second respondent/second defendant to the President of Indian Bank Employees Union Mr.Vellaiyan, in which, it was stated as follows:

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10 ehl;fspy; Koe;J tpl;lhy; kpft[k; re;njhcok;/ ,y;yhtpl;lhy; $%d; 15k; thf;fpy; U:/10.000-? tptrha bryt[fSf;fhf bfhLj;J cjt[k;goahf nfl;Lf; bfhs;fpnwd;/ // //@

In Ex.A63-letter from the second respondent/second defendant to the appellants/plaintiffs, in which, it was stated as follows:

" .. .. When I last visited Madras, I have been informed by Mr.Nachiappan and Mr.Sivalingam that the documents were being prepared by the lawyers and was near completion. I hope by now the preparation of purchase deed would have been ready. Please write to me so as to bring my wife and my daughters for signing of the documents. .. .."

But theappellants/plaintiffs herein have not taken any steps to prepare the documents.

(viii)As per the argument advanced by the learned counsel for the respondents/defendants, for getting sanction under Section 230A clearance, it is the duty of the purchaser to send the draft sale deed to the vendor for approval. On approval, the said draft sale deed should be enclosed along with Form No.34A to the Income Tax Department for clearance under Section 230A. If any tax is to be paid, the Department will immediately demand and on payment under Section 230A clearance will be given. Considering the same, as per the evidence of P.W.1-Assistant General Secretary, Indian Bank Employees Union, they had not prepared the draft sale deed and not sent to the vendor. Till now they are not prepared the draft sale deed and forwarded to the respondents/defendants to get the approval from the Income Tax Department. So the argument advanced by the learned counsel for the appellants/plaintiffs that since they have not obtained the income tax clearance certificate, they are unable to get the sale deed executed, does not merit acceptance.

(ix)To substantiate his arguments, the learned counsel for the respondents/defendants relied upon the following decisions for the significance of Urban Land Ceiling Clearance Certificate:

(a)AIR 1994 Delhi 345 (Shri Rajesh Aggarwal v. Shri Balbir Singh and another) in which, it reads as follows:

"In a suit for specific performance of an agreement to sell, failure to obtain Income-tax clearance, cannot non-suit the plaintiff transferee, on the ground that the agreement to sell was not enforceable without Income-tax clearance, in view of S.269-UC of Income-tax Act."

(b) (1993) 1 SC 519 (Chand Rani (smt) (dead) by Lrs. v. Kamal Rani (Smt) (dead) by Lrs.) in paragraph-29, it reads as follows:

"29. The analysis of evidence would also point out that the plaintiff was not willing to pay this amount unless vacant delivery of possession of one room on the ground floor was given. In cross-examination it was deposed that since income-tax clearance certificate had not been obtained the sum of Rs. 98,000 was not paid. Unless the property was redeemed the payment would not be made. If this was the attitude it is clear that the plaintiff was insisting upon delivery of possession as a condition precedent for making this payment. The income tax certificate was necessary only for completion of sale. We are unable to see how these obligations on the part of the defendant could be insisted upon for payment of Rs. 98,000. Therefore, we conclude that though as a general proposition of law time is not the essence of the contract in the case of a sale of immovable property yet the parties intended to make time as the essence under Clause (1) of the suit agreement. From this point of view, we are unable to see how the case in Nathulal could have any application to the facts of this case."

(c) (1989) 1 L.W.235 (K.R.Seetharamiah v. P.N.Narasimhan and another) in paragraph-8, it reads as follows:

"8. .. .. There is no question of any statutory embargo for want of clearance under the Urban Land Ceiling Act preventing the registration as such, except that there had been some kind of a misapprehension in the minds of the concerned officers and the public regarding the need to get a clearance from the Authority concerned under the Urban Land Ceiling Act prior to the registration, and that had, in the circumstances of this case, been responsible for the delayed registration of the sale deed. That however, would not in any manner affect either the validity of the registration or the title to the suit property in the respondent herein. ... "

(d) 1997 (II) CTC 602 (K.Logambal and 3 others v. V.V.Sakunthala and 6 others) in paragraph-8, it reads as follows:

"8. .. .. Though it might have been agreed to between the parties that sanction has to be obtained in respect of the minor's interest or share, it should not be overlooked that such stipulation was for the benefit of the purchaser and if the plaintiff is prepared to purchase the same even without a sanction from the Court, it is no reason for the appellants to contend that in the absence of such sanction in respect of the minor's share, the same cannot be compelled to be sold by enforcing the agreement of sale. .. .."

Considering the above citations, to get the sale deed executed, the appellants/plaintiffs have given such a blame excuses that the respondents/defendants have not given an income tax clearance as well as Urban land tax clearance certificates and not vacated the Dhandapani Electricals, so the readiness and willingness does not arise, is unacceptable.

(x) As already stated that the second respondent/second defendant has periodically written letters asking the appellants/plaintiffs to get the sale deed executed. Finally, he cancelled the two agreements on 20.04.1981 under Ex.B9, which is equal to Ex.A69. But the appellants/plaintiffs without giving any reply, they issued notice only on 23.03.1984 under Ex.A72 after three years, shows that they are not continuously ready and willing to perform their part of contract from the date of Exs.A70 and A71 till filing the suit.

(xi) It is true, as per Section 16(c) of Specific Relief Act, there is no necessity for jingling coins. But the appellants/plaintiffs must prove that they have a capacity to generate funds to meet out the payment of balance sale consideration and get the sale deed executed. But in this aspect, the appellants/plaintiffs herein have obtained sanction of a loan of Rs.2,00,000/- from the Indian Bank, which was marked as Ex.B13. P.W.1 also fairly conceded in his cross-examination, which is as follows:

VERNACULAR (TAMIL) PORTION DELETED

The above paragraphs shows that the P.W.1 conduct itself clearly proved that they are not ready and willing to perform their part of contract. It is pertinent to note from the year 1976, except the property in possession of Dhandapani Electricals, other properties were in possession and enjoyment of the appellants/plaintiffs for more than 4 = years. Even though they are in possession, they are not ready to pay the balance sale consideration, which has clearly proved that the appellants/plaintiffs herein are not ready and willing to perform their part of contract. So the trial Court has considered this aspect and came to the correct conclusion that the appellants/plaintiffs are not ready and willing to perform their part of contract.

(xii) It is worthwhile to consider the arguments advanced by the learned counsel for the appellants/plaintiffs that there is no contra evidence on the part of the respondents/defendants, so the case of the appellants/plaintiffs should be taken as a truth. But the above argument does not hold good. Once the suit has been filed, the appellants/plaintiffs must prove their case. It is their duty to prove, they are always ready and willing to perform their part of contract and they approached the Court with clean hands and thereafter, they are entitled to equitable relief of specific performance. Admittedly, they have not proved that they were always ready and willing to perform their part of contract. In such circumstances, there is no need for the respondents/defendants to let any contra evidence. As already discussed above, as per the citations, the appellants/plaintiffs are not ready and willing to perform their part of contract from the date of Ex.A71 till filing the suit. Hence, I am of the view that the appellants/plaintiffs are not willing to perform their part of contract. Point No.1 is answered accordingly.

10.Point Nos. 3 and 4: In view of the answers given to Point Nos.1 and 2, this Court comes to the conclusion that the appellants/plaintiffs are not ready and willing to perform their part of contract. The learned counsel for the appellants/plaintiffs relied upon the following decisions stating that the appellants/plaintiffs are entitled to discretionary relief of specific performance. (a)1970 (3) SCC 140 (R.C.Chandiok and another v. Chuni Lal Sabharwal and others) in paragraphs-8 and 9, it read as follows:

"8.This relief is discretionary but not arbitrary and discretion must be exercised in accordance with the sound and reasonable judicial principles. We are unable to hold that the conduct of the appellants, which is always an important element for consideration, was such that it precluded them from obtaining a decree for specific performance.

9.It is common ground that the plot in dispute has been transferred by the respondents and therefore the proper form of the decree would be the same as indicated at page 369 in Lala Durga Prasad and Another v. Lala Deep Chand and Others viz. "to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff". We order accordingly. The decree of the courts below is hereby set aside and the appeal is allowed with costs in this Court and the High Court."

(b)AIR 1991 Madras 163 (Ramani Ammal v. Susilammal) in paragraph-13, it reads as follows:

"13. .. .. In Kandasami Chettiar v. Shanmugha Thevar, (1948) 2 Mad LJ 356 : 61 Mad LW 642 : (AIR 1949 Mad 302), it was pointed out that the default clause in the contract provided, inter alia, that "the individual who commits the default shall pay the other individual Rs. 100/- as damages, and in addition this contract shall become void". In that case it was held :

"The clause merely states the disability of the defaulting party who claims specific performance of the contract under S. 24(b) of the Specific Relief Act and does not extend the disability to enforce the contract to the other party and further that the party who brought about the default cannot take advantage of his own wrong and prevent the other party from claiming specific performance."

Thus, in view of the specific provision of S. 23 of the Specific Relief Act (Section 24 is the corresponding provision in the old Act) and the ratio laid down in the above decision, the relief of specific performance cannot be negatived."

(c) (2002) 8 SCC 146 (Nirmala Anand v. Advent Corporation (P) Ltd., and others) in which, it reads as follows:

" .. .. In cases of phenomenal increase in price of land during pendency of litigation held, plaintiff should not be denied relief of specific performance only for that reason. .. .."

(d) (2002) 9 SCC 597 (A.Maria Angelena (dead) and others v. A.G.Balkis Bee) in which, it reads as follows:

" .. .. a decree of specific performance would result in serious hardship to defendants vendor, or subsequent purchaser, and that plaintiff should be compensated in terms of money, held, must be taken at the earliest stage, such plea cannot be entertained for the first time in appeal before Supreme Court, predecessor in interest of appellants entering into agreement for sale of a house in favour of respondent but not executing sale deed despite notice. .. "

(e) (2005) 3 SCC 342 (Devalsab (dead) by Lrs., v. Ibrahimsab F.Karajagi and another) in paragraph-7, it reads as follows:

"7. Learned counsel for the plaintiff-appellant submitted that in fact exercise of discretionary relief in favour of Defendant 2 is not correct as this kind of discretion if exercised in favour of Defendant 2 is likely to lay down a bad precedent. This will give premium to unethical transaction and a bona fide purchaser will be left high and dry. Learned counsel for the defendants submitted that it is true that Section 20 of the Specific Relief Act is a discretionary remedy that is not always necessary to grant a decree for specific relief if it appears to be inequitable and causes hardship to the other side. .."

(f) (2005) 7 SCC 534 (Aniglase Yohannan v. Ramlatha and others) in paragraph-12, it reads as follows:

"12. The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief."

11.Clean Hands:

(i) Now it is appropriate to consider the following decisions relied upon by the learned counsel for the respondents/defendants for the significance of clean hands:

(a)(1994) II MLJ 78 (S.S.Chokkalingam v. R.B.S.Mani and others) in paragraph-26, it reads as follows:

".. It is well known that a person who has come to Court with a false case is not entitled to the equitable relief of specific performance. .. .. No doubt, ordinarily in contracts relating to immovable property, time is not the essence of contract. But in the facts and circumstances of such case, the court can come to a conclusion that in a particular case, time has been made the essence of contract. .. .."

"26. .. In the present case, we hold that though initially the respondents were willing to extend the time as requested by the appellant, they have made it clear to him unequivocally that he should complete the transaction before a particular date. In fact, the appellant himself has assured the respondents that in case of default, they were free to seek other purchasers. Hence, in this case we hold that the appellant is not entitled to claim the relief of specific performance as he has not come to court within the time. .. .."

(b) (1996) I MLJ 566 (R.Krishnasamy Naidu v. Smt.Ambrose and another) in paragraph-12, it reads as follows:

"12. .. .. If really the plaintiff was ready and willing to perform his part of the contract, there is no reason as to why he has not come forward with a suit for specific performance immediately after the period contemplated under the agreement and extended by the power of attorney of the first defendant expired. It only goes to show that the plaintiff who was already in possession of the property belonging to the first defendant who was in France, has continued his possession and enjoyment of the property without paying rent and when the purchaser of the property has sought for his eviction, has come forward with this suit for specific performance or in the alternative a decree for refund of Rs. 10,000 The trial court, after considering all these aspects, has rightly held that the plaintiff is not entitled to a decree for specific performance and decreed the suit for refund of the advance. .. .."

(c) 2008 (1) CTC 86 (Sita Ram and others v. Radhey Shyam) in which, it reads as follows:

"Held:The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint, he should not be denied the relief. On facts held that there was no claim in respect of Khasra No.866 which did not form part of Agreement. However, subsequently Khasra No.866 was added in the Plaint. There is also no averment to the effect that Agreement related to complete sale. Hence plaintiff is not entitled to relief. .."

(d) 2003-1-L.W.673 (Arunachala Mudaliar v. Jayalakshmi Ammal and another) in paragraph-12, it reads as follows:

"12. Section 16(c) of the Specific Relief Act, 1963 personally bars the Court from granting relief to a person who does not prove that he is ready and willing to perform the essential terms of the contract. As explanation of Clause (c) relating to readiness and willingness it is stated that "it is not essential for the plaintiff to actually tender to the defendant or to deposit any money except when so directed by the Court." Section 19 deals with relief against parties and persons claiming under them by subsequent title and it is seen that as per the Section, specific performance of the contract may be enforced against any person other than the party to the agreement claiming under either of them by a title arising subsequent to the contract except a transferee for value who has paid his money in good faith and without notice of the original contract. Section 20 makes it clear that the jurisdiction to decree specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful to do so."

(e) AIR 1996 SC 2814 (Lourdu Mari David and others v. Louis Chinnaya Arogiaswamy and others) in paragraph-2, it reads as follows:

"2. It is settled law that the party who seeks to avail of the equitable jurisdiction of a court and specific performance being equitable relief, must come to the court with clean hands. In other words the party who makes false allegations does not come with clean hands and is not entitled to the equitable relief. .. .. "

(f) (1993) 1 MLJ 686 (Nallaya Gounder and another v. Ramaswami Gounder (died) and others) in paragraph-15, it reads as follows:

"15. .. .. The falsity of the case put forward by the plaintiff disentitled him from obtaining the discretionary relief of specific performance of agreement. The falsity of the case directly impinged on the essential ingredients and elements necessary for claiming the relief. .. .. "

(g) (1997) II CTC 417 ( Amirtham v. Subbian and 3 others) in paragraph-13, it reads as follows:

"13. .. .. It is settled law that the party who seeks to avail of the equitable jurisdiction of a court and specific performance being equitable relief, must come to the court with clean hands. In other words the party who makes false allegations does not come with clean hands and is not entitled to the equitable relief. .. .. "

The above citations clearly proved that once the appellants/plaintiffs sought for equitable relief of specific performance, they must approach the Court with clean hands. They discharged the loan only after the execution of Exs.A71 dated 19.01.1980. But the averment in the plaint stated that they are ready and willing to perform their part of contract, but the respondents/defendants demanded further sum of Rs.1,50,000/- and neglected to execute the sale deed is totally wrong, which shows that the appellants/plaintiffs approached the Court with false case. Besides that the second respondent/second defendant has written letters to the appellants/plaintiffs, directing them to produce the draft sale deed and thereafter, get the sale deed to be executed as soon as possible. Since they kept quiet all along, he was forced to issue a notice under Ex.B7 and cancelled the two agreements under Ex.B9 on 20.04.1981. But the appellants/plaintiffs without giving any reply to them, issued a notice only on 23.03.1984 nearly after three years, stating that they are going to file a suit, which shows that they are not ready and willing to perform their part of contract. Since they have not come to the Court with clean hands, they are not entitled to the relief of specific performance.

(ii) The learned counsel for the respondents/defendants submitted that since there was rise in price of the suit property, the appellants/plaintiffs forced to file the suit on 11.04.1984. To substantiate his arguments, he relied upon the following decisions for the significance of delay and rise in price:

(a) JT 1997 (2) SC 375 ( K.S.Vidyanadam and others v. Vairavan) in which, it reads as follows:

"Held: It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances, it does not follow that any and every suit for specific performance of the agreement [which does not provide specifically that time is of the essence of the contract] should be decreed provided it is filed within the period of limitation notwithstanding the time limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to saying that the time-limits prescribed by the parties in the agreement have no significance or value and that they mean nothing. Would it be reasonable to say that because time is not made the essence of the contract, the time-limits specified in the agreement have no relevance and can be ignored with impunity? It would also mean denying the discretion vested in the court by both Sections 10 and 20. As held by a Constitution Bench of this Court in Chand Rani v. Kamal Rani , "it is clear that 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 (evident?): (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". In other words, the court should look at all the relevant circumstances including the time-limit(s) specified in the agreement and determine whether its discretion to grant specific performance should be exercised."

(b) (1993) 1 MLJ 618 ( The Kancheepuram Kamakshi Amman Silk Handloom Weavers' Co-operative Production and Sale Society Limited v. Jamuna Bai and others) in which, it reads as follows:

"Held: There is no explanation as to why the society waited for nearly a year after issuing every notice. Once it was made clear to the society that the defendants would not execute a sale deed as claimed by them, they should have proceeded to enforce specific performance. But they did not do so. They issued a notice again after a year and filed a suit after expiry of a further year. In the absence of any explanation for this inordinate delay in approaching the court, it can be inferred that the society has waived the performance of contract and abandoned the same. This is a case of unexplained silence and wanton delay and the society cannot escape the consequence of the same by saying that mere delay in seeking specific performance would not disentitle them to get the relief. In the present case, it is clear from a reading of the evidence of P. Ws. 1 and 2 that they are not willing to speak the truth before the court. It is obvious that they are concealing the facts from the court and their evidence is false. Even that is sufficient to refuse the relief to the plaintiff."

(c) (1993) II MLJ 272 (G.Chelliah Nadar (died) and others v. Periasami Nadar and others) in which, it reads as follows:

"The plaintiff who comes to the Court with a false case in material ingredients necessary for the grant of relief of specific performance will not be entitled to the equitable relief at all. It is obvious that in the present case the appellant has based his relief on Ex.A-1 (agreement for sale) after interpolation so as to make it appear that he has a right to enforce it. On the ratio laid down in the decisions in Ramaswamy v. Venkatachalam, (1976) 1 M.L.J., 243 and Vyapuri v. Vijayan, (1978) T.L.N.J.62, even that is sufficient to refuse the relief to the appellant. In addition, it has already, been seen that there is unexplained delay on the part of the appellant, in seeking the remedy. In the circumstances, the learned trial Judge has rightly refused specific performance."

(d) 2010 (3) CTC 297 (Jugraj v. P.Sankaran and others) in which, it reads as follows:

"Not only original vendor, but also subsequent purchaser would be entitled to raise contention that plaintiff was not ready and willing to perform his part of contract. Since plaintiff had failed to establish his readiness and willingness to perform his part of contract, he is not entitled to relief of specific performance"

"Delay in filing suit would operate as acquiescence or waiver and make it inequitable to grant relief of specific performance. "

(e) (1994) II MLJ 110 (Mrs.Bhawari Devi Acha v. Mrs.Anjugam Raj and others) in paragraph-16, it reads as follows:

"16. .. .. In the instant case, the first alternative viz., the execution of the sale deed, failing, if the promisor/vendor decided in favour of the other alternative, it could not be said that there was breach of any obligation under the agreement, and if that was so, there could arise no question of specific performance of the contract."

(f) (1994) II MLJ 464 ( B.K.Jayaraman v. S.K.Subramanian and others) in which, it reads as follows:

"It is true that mere delay in seeking for the relief of specific performance by itself cannot be a ground for the court to refuse to exercise its judicial discretion to grant the equitable relief. .. ... In the view of the court, abandonment of the contract could be presumed by reason of the course of conduct adopted by the appellant who is deliberately silent about his rights and wakes up only a convenient time when he can have unfair advantage over the other."

Considering the above citations, the appellants/plaintiffs have not come to the Court, after the receipt of Exs.B7 and B9 and they have not given any reply to Exs.B7 and B9, but they filed the suit after rise in price. In such circumstances, I am of the view that the trial Court considered this aspect in proper perspective and came to the correct conclusion that the appellants/plaintiffs are not entitled to the equitable relief of decree of specific performance. So the trial Court is correct in held that the appellants/plaintiffs are not entitled to the equitable relief of decree of specific performance. Point Nos. 3 and 4 are answered accordingly.

12.Point No.5: In view of the answers given to point nos.1 to 4, even though Exs.A70 and A71 are true and genuine documents, since the appellants/plaintiffs are not approached this Court with clean hands and not ready and willing to perform their part of contract, they are not entitled to equitable relief of decree of specific performance. Hence, I am of the view that the appellants/plaintiffs are not entitled to the relief as prayed for in the plaint. The Appeal suit deserves to be dismissed and hence it is hereby dismissed. Point No.5 is answered accordingly.

13.In fine,The Appeal Suit is dismissed with costs. The judgment and decree passed by the trial Court are hereby confirmed.


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