TaxTMI 
TaxTMI 
2025 (6) TMI 1084
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat the Plaintiffs are in possession of the plaint schedule property measuring a total extent of 2809 square feet or 6 cents and 193 square feet. The Defendant also expressed her intention to sell this property for a total sale consideration of Rs. 8,20,000/- to the Plaintiffs. After discussion, an agreement of sale dated 14.11.1994 came to be executed between the Plaintiffs and Defendant. On the date of execution of the said agreement, the Plaintiffs paid Rs. 1,50,000/- as advance and it was mutually agreed that upon payment of the balance sale consideration within six months, a sale deed can be executed in favour of the Plaintiffs. Subsequently, the Defendant sought for payment of Rs. 55,000/- and it was also paid by the Plaintiffs on 25.12.1994. According to the Plaintiffs, they were always ready and willing to perform their part of the contract, but it was the Defendant who sought further time on 14.05.1995 to deliver possession of the property and to register the sale deed. Accordingly, the period for performance of the contract was extended by one month till 14.06.1995. However, the Plaintiffs got the contract extended from 14.06.1995 to 14.08.1995, 14.08.1995 to 14.10.1995 a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....greement dated 14.11.1994, the Plaintiffs have no right to seek for enforcement of the same. Even in the reply notice dated 10.01.1996, the Defendant has clearly stated that if the sale deed is not obtained on 12.01.1996 or 18.01.1996, the Plaintiffs will loose their right to seek for enforcement of the agreement dated 14.11.1994. Inspite of the same, the Plaintiffs have filed the present suit for specific performance of the agreement and it is not maintainable. Accordingly, the Defendant prayed for dismissal of the suit filed by the Plaintiffs for specific performance of the agreement dated 14.11.1994. 2.3. The Defendant also filed an additional written statement stating that the endorsement for extension of period from 14.05.1995 to 14.06.1995 was made since the tenants did not deliver possession. The Plaintiffs also insisted that they are not ready to purchase the property unless the tenants are vacated therefrom. However, now the Plaintiffs insist for the tenants to handover the vacant possession knowing fully well that it is an impossible task to evict the tenants within a given time. By seeking to handover vacant possession of the property, the Plaintiffs have breached the t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and the said suit has got nothing to do with the present claim for specific performance. As against the dismissal of the suit in O.S. No. 944 of 1995, A.S. No. 56 of 2002 was filed before this Court. As far as Criminal Case No. 864 of 2001 is concerned, the first Plaintiff is contesting the same legally. The various documents filed along with the plaint will amply prove the financial capacity of the Plaintiffs. The Defendant is unnecessarily referring to the claim of her brother Varadharaj with a view to deny the Plaintiffs their right to get the sale deed executed. The RCOP Nos. 22 and 225 of 1997 filed against the Tenants have been disposed of long ago and those tenants are no longer in occupation of the property in question. The Plaintiffs are having the required funds to honour their commitment and therefore, the Plaintiffs prayed for decreeing the suit as prayed for. 2.5. During trial in the suit, the first Plaintiff examined himself as P.W-1 and Ex. A-1 to Ex.A-145 were marked. On the other hand, the Defendant examined herself as D.W-1 and marked Ex.B-1 to Ex.B-23. The trial Court, on considering the notices exchanged among the Plaintiffs and Defendant, particularly Ex.A-10....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and others (2020) 4 SCC 313. 9. Apart from the fact that no points for determination were framed, including on the issue of readiness and willingness, it is ex-facie apparent that the High Court has failed to consider the matter in its full perspective as it should have while dealing with the first appeal under Section 96 of the Code of Civil Procedure. 10. For the above reasons and without this Court expressing any view on the merits of the rival cases, we allow the appeal and set aside the impugned judgment and order of the High Court dated 22 June 2022 in AS No. 461 of 2007. A.S. No. 461 of 2007 is restored to the file of the High Court for being considered afresh. 11. Pending applications, if any, stand disposed of." 2.9. Pursuant to the order dated 19.09.2022 passed by the Honourable Supreme Court, this Appeal is posted for hearing before this Court. 3. The learned Counsel for the Plaintiffs/Appellants, Mr.B.Nedunchezhiyan, submitted that the Plaintiffs entered into an agreement of sale with the Defendant on 14.11.1994 for purchase of the property situated in Town S.No.9/26, Cross-cut Road Coimbatore Town and District. The total sale consideration was fixed at Rs. 8,2....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e registration of deed of conveyance and also possession of the properties. The time agreed for completion and registration of sale deed was six months from the date of agreement of sale. VIII. The Plaintiffs further submit that as per the terms and conditions of sale agreement dated 14.11.1994 the Defendant must entrust the original title deeds, the above mentioned partition deed, property tax payment receipts, Urban Land Tax receipts income tax clearance certificate, encumbrance certificate along with legal opinion and other documents within one month to the Plaintiff. The Defendant also must deliver actual physical possession of properties on the date of registration of sale deed. A copy of the sale agreement was also handed over to Defendant on the date of agreement of sale. XV. The Plaintiffs humbly submit that the Defendant through her Counsel sent a reply notice dated 10.01.1996 in and by which she admitted the execution of agreement of sale and receipt of Rs. 2,05,000/- from the Plaintiff. She also admitted that the original title deeds, income tax clearance certificate, encumbrance certificate within one month from the date of agreement. But the Defendant took up a new....
X X X X Extracts X X X X
X X X X Extracts X X X X
....took to execute the sale deed after getting permission from her brother to sell the property. It is in this context, repeatedly, time was extended for which the Defendant has made endorsements in the sale agreement deed. While so, it cannot be said that the Plaintiffs have delayed the execution of the sale deed in any manner. In spite of repeated extension of time, the Defendant failed to abide the conditions set out in the sale agreement deed which forced the Plaintiffs to approach the Court by filing the suit for specific performance of contract for sale of the property. 7. The learned Counsel for the Plaintiffs invited the attention of this Court to para 3 to 7 of the written statement which reads as follows:- "3. There is no valid family arrangement as alleged in para 3 of the plaint. The properties are in possession and enjoyment of the two tenants and they are R.G.Rajan and Deivasigamani. This Defendant also in possession of portion of the suit property. In view of a portion of the property is in occupation of the tenants this Defendant had already taken steps under Rent Control Act for eviction and the same is pending before the Rent Controller, Coimbatore in RCOP 22/97 a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cified date. The Plaintiffs insisted the Defendant to perform several of the obligations which are impossible to be performed by any one. It is the Plaintiffs who have agreed to settle all disputes with the Defendant's brother chosen to insist this Defendant to obtain signature of her brother which is an impossible one. It is equally impossible to deliver actual possession of the suit properties since there are two tenants who refused to vacate the premises to the knowledge of Plaintiffs. The Defendant's brother was claiming equal share in the suit properties and the Plaintiffs are aware of the disputes. There is no encroachment in the suit properties and in any event the Plaintiffs cannot expect this Defendant to obtain the signature of the abetting owner to convey Plaintiffs title. The Plaintiffs are unable to arrange funds and chosen to lay several terms and conditions to register the sale with a view to pretend that they are ready for obtaining the sale deed. The Plaintiffs are not ready and willing to obtain the sale deed. It is further submitted that there is impossibility of performance by the Defendant. The Plaintiffs had lost their right in view of laying condition....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ty was not exclusive property of the Defendant? iii. Whether the agreement of sale dated 14.11.1994 is an unenforceable contract? iv. Whether the Plaintiff had not performed their part of the contract as per the sale agreement? v. Whether the Plaintiff was not ready and willing to perform their part of the contract? vi. To what relief the parties to the suit are entitled? 9. During the pendency of the suit, additional issues were framed, which are as follows: i. Whether the Defendant had made fraudulent alterations in the sale agreement deed dated 14.11.1994? ii. Whether the Defendant had fraudulently altered the sketch annexed to the sale agreement deed? iii. Whether the Plaintiff does not have resources to execute the sale deed; whether the Plaintiff is indigent? iv. To what relief the Plaintiffs are entitled? 10. The learned Counsel for the Plaintiffs/Appellants submitted that the Trial Judge had taken up Issue No.2 for discussion and decided it in favour of the Plaintiffs stating that the suit property exclusively belongs to the Defendant. The learned Counsel for the Plaintiffs invited the attention of this Court to the discussion in Issue No.2 wherein it was ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....onviction under Section 138 of the Negotiable Instruments Act, 1881 and was awarded imprisonment for one year. However, it was contended that the criminal proceeding has no bearing for getting a decree for specific performance in this suit. 12. The contention of the Defendant is that the Plaintiffs wantonly insisted conditions in the sale agreement deed to be fulfilled, which are unenforceable and therefore, they have been blaming the Defendant for failure to execute the sale deed. However, the fact remains that it was the Plaintiffs have resources to get the sale deed executed by paying the entire balance sale consideration. However, the learned Trial Judge arrived at the conclusion under Issues Nos. 3 to 5 that the Plaintiffs does not have enough resources to pay the balance of entire sale consideration in one installment. If he had such resources, he should have voluntarily deposited the amount into Court. Before the trial, he had not done so. Therefore, he is not entitled to enforce the sale agreement deed dated 14.11.1994 and the learned Judge dismissed the suit and had granted the alternate relief of refund of the sale advance amount with an interest of 12% by the Defendant.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n as such - Applicability of Section 27, Limitation Act may not arise - Question to be decided on pleadings and evidence to be adduced by parties on aspect of second limb of Article 54 of Limitation Act - Limitation Act 1963 - Sections 3, 27, Art- 54 Specific Relief Act 1963 - Section 20." 13.5. The decision of Division Bench of this Court in the case of V.Ramanujam and Jagadeesan vs. Rajamani and others reported in 2004 (2) M.L.J. 399 wherein it has been held as follows:- "The Principle that the equitable relief of specific performance cannot be granted to a person who has put forward a false case is based on the doctrine that one who seeks equity must do equity" 13.6. In the decision of this Court reported in M.L.J. 1997 (iii) Page 576 it has been held as under:- "Readiness and willingness must be there continuously from the date of agreement upto the date of hearing it is also held that. Even if for a single day, Plaintiff - agreement holder is not ready to take the sale deed, equitable remedy should not be granted." 13.7. In the case of Ranganatha Gounder v. Sahadeva Gounder and others reported in 2004 (4) M.L.J. 112 it has been held as under: "Readiness and willingnes....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the contents of sale agreement deed, Ex.A-1 and extension sought by the Defendant repeatedly under Ex.A-2 to Ex.A-6 and Ex.A-7 to Ex.A-10, the exchange of notices between the Plaintiffs and Defendant. Ex.A-11 is the partition deed registered as Doc No.1245 of 1972 in which it is shown that the property was allotted to the mother of the Defendant. Ex.A-12 is the Will executed by the mother of the Defendant in her favour. Ex.A-13 is the registered sale deed bearing Document No.2075 of 1974 in favour of the Plaintiffs executed by one Rangasamy Naidu, S/o.Gundupilla Boni Naiyudu. By pointing out these documentary evidence, it was submitted that the Plaintiffs had blown hot and cold. On the one hand, she contends that she is the exclusive owner of the property on the basis of the Will under Ex.A-12 but on the other hand, she complains that the Plaintiffs assured to meet her brother to sort out the dispute between the Defendant and her brother amicably. Thus, the inconsistent plea of the Defendant requires to be taken note of by this Court to hold that the Defendant has not come forward with clean hands and her intention is to evade execution of the sale deed in favour of the Plaintiffs....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n favour of a third party purchaser. The third party purchaser is now proceeding with construction in the said property. Therefore, the Plaintiffs reserves their right to initiate contempt against the Defendant. 19. Per contra, Mr. Raman, learned Senior Counsel appearing for the Defendant/Respondent submitted that it is the case where the Plaintiffs were not at all willing to perform their part of the contract. They did not have resources to pay the balance of sale consideration. The learned Senior Counsel for the Defendant/Respondent invited the attention of this Court to the exchange of notices between the Plaintiffs and the Defendant prior to institution of the suit. The Plaintiff had issued notice dated 09.01.1996, under Ex.A-7 as though Defendant failed to execute her part of the contract. On receipt of the notice dated 09.01.1996, under Ex.A-7, immediately on the next day the Defendant issued a reply notice dated 10.01.1996 under Ex.A-8, stating that the Defendant is ready to perform her part of the contract, provided the Plaintiffs are ready to pay the entire balance of sale consideration before the Sub Registrar Office on the day mentioned in their notice viz., on 12.01.19....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to be present in the office of the Sub-Registrar, they have sent the rejoinder informing that they are yet to get the opinion from the lawyer with respect to the title of the property. In any event, the Plaintiffs are residing just opposite to the suit property. They knew fully well about the occupation of the property by tenants. While so, after entering into the agreement on 14.11.1994, it is not proper for the Plaintiffs to call upon the Defendant to evict the tenants and handover the vacant possession of the property as a condition precedent to pay the balance sale consideration. The Plaintiffs were also aware that the Defendant has filed Rent Control Original Petitions against the tenants. Thus, the Plaintiffs want the Defendant to perform the impossible task with an intention to gain time. Merely by entering into sale agreement deed the Plaintiffs impose a condition to evict the tenants with reference to the fact that the Defendant ha already filed Rent Control Original Petitions to evict the tenant and they were pending. However, the Defendant was always ready and only called upon the Plaintiffs to come to the office of the Sub Registrar to get the sale deed executed. Howev....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ich event, the Court will not refuse it. In this context, the learned Senior Counsel for the Defendant placed reliance on the very same ruling relied on by the learned Counsel for the Plaintiffs in the judgment pronounced by Justice R. Subramanian in A.S. No. 863 of 2009 in M. Kaja Nijamudden Vs. A. Rajamani, wherein it is observed as follows:- "12. The next limb of the argument of the learned Counsel for the appellant is that the Plaintiff has not established that he was always ready and willing to perform his part of the contract. The learned Counsel would submit that even according to the Bank statements produced by the Plaintiff he did not have the entire balance sale consideration of Rs. 6 lakhs in his Bank account during the relevant period. Therefore, the learned Counsel would contend that the Plaintiff has not established his readiness and willingness. Section 16 (c) of the Specific Relief Act does not require the Plaintiff to jingle the coins before the court. What is required is that the Plaintiff should prove that he has the 7 enough means to raise the funds. In the case on hand, in my considered opinion, the Plaintiff has by producing the Bank statements established t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....relief of specific performance for sale of the property? (v) Whether the learned Judge had discussed the evidence properly and answered the issues? 25. Heard the learned Counsel for the Appellants and the learned Senior Counsel for the Respondent. Perused the judgment and decree dated 22.12.2006 passed in O.S. No. 139 of 2001 by the learned Additional District and Sessions Judge, Fast Track Court No.2, Coimbatore and also the materials available on record. 26. On consideration of the rival submissions and on perusal of the judgment of the learned Trial Judge, it is found that the learned Trial Judge, had not answered each of every issue framed by him. It is considered that the learned Trial Judge, had arrived at a just conclusion based on appreciation of evidence of the Plaintiff as P.W-1 and evidence of the Defendant as D.W-1. The Plaintiffs have filed documents to show that they had enough resources. In the cross examination, the P.W-1 was confronted by the learned Senior Counsel for the Defendant stating that only a short period of time, in each of the Bank accounts, amounts are made available and that too not more than one lakh and subsequently whatever amount is available ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ation does not augur well and it only goes against the interest of the Plaintiffs to seek for equitable relief. 27. The documents under Ex.A-13 to Ex.A-145 were filed by the Plaintiffs to prove that they have sufficient means. On assessment of those documents, the learned Trial Judge concluded that in those Bank statements there was amount of one lakh and two lakhs etc. for a few days and those amounts were withdrawn subsequently. In other words, for the sake of proving the financial capability, the Plaintiffs deposited some amount and produce the document to the trial Court. This will not truly and adequately reflect the financial capability of the Plaintiffs. This is more so that the documents mentioned above have emanated after the institution of the suit. As mentioned above, the financial capability or capacity of the Plaintiffs has to be traced on the date of or soon after the execution of the agreement of sale dated 14.11.1994 in this case. If it is considered, the Plaintiffs fail to demonstrate that they are financially capable to pay the balance sale consideration to the Defendant. As rightly pointed out by the learned Senior Counsel for the Defendant, several documents fi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tted the offence under Section 138 of The Negotiable Instruments Act, 1881 and sentenced to undergo imprisonment. That apart, there were also civil proceedings initiated against the Plaintiffs and a portion of the immovable property owned by them got attached. Furthermore, the Plaintiffs themselves admit that the brother of the Defendant has also got a right over the property in question. If it is so, a normal prudent purchaser would not venture to purchase the property. It is very much available on record that the Plaintiffs and Defendant are residing in the house located opposite to each other. Therefore, the Plaintiffs would have better knowledge about the right, title and interest of the Plaintiff. Furthermore, the Defendant has also initiated Rent Control proceedings to evict the tenant. It is stated by the Plaintiffs themselves that those Rent Control Original Proceedings initiated by the Defendant have been disposed of long back and the tenants have been vacated. At the same breadth, the Plaintiffs admit that now some other tenants are in occupation of the property. It is not known as to why the Plaintiffs are exhibiting enormous interest to purchase a property which is full....