BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 29/02/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.No.343 of 1996 and C.M.P.No.6232 of 2005 A.Ramanathan Chetthiar ... Appellant/Plaintiff Vs. 1.R.Ranganayaki 2.S.V.Sivakumar 3.N.Valliammai 4.C.Valliappa Chettiar 5.Kasi Viswanathan ... Respondents/Defendants Prayer Appeal filed under Section 96 of the Code of Civil Procedure, against the judgment and decree dated 15.12.1992 in O.S.No.50 of 1989 on the file of the Subordinate Judge, Devakottai, PMT District. !For Appellant ... Mr.M.C.Swamy ^For Respondents ... Mr.N.Dilipkumar for R.3 No representation for R.1, R.2, R.4 and R.5 :JUDGMENT
This appeal has been filed against the judgment and decree dated
15.12.1992 in O.S.No.50 of 1989 on the file of the Subordinate Judge,
Devakottai, PMT District.
2. The parties, for convenience sake, are referred to hereunder according
to their litigative status before the trial Court.
3. Broadly but briefly, narratively and precisely, the case of the
plaintiff as stood exposited from the plaint, could be portrayed thus:
The plaintiff and the first defendant entered into the agreement to sell
as per Ex.A.1 dated 20.03.1989, whereby the latter agreed to sell in favour of
the former the suit immovable property described in the schedule of the plaint
for a sale consideration of Rs.1,00,000/- (Rupees One Lakh only) and a sum of
Rs.20,000/- was paid by the former to the latter as advance. The time
stipulated was upto 13.05.1989. Owing to factors beyond the plaintiff’s
control, the sale deed could not be got executed in his favour and thereupon, by
mutual agreement, time was got extended upto 13.07.1989. On 13.07.1989, the
plaintiff was present at the Sub-Registrar’s Office concerned, but the first
defendant did not turn up and thereby the sale deed could not be got executed in
favour of the plaintiff. Whereupon, a telegram was sent to the first defendant
explaining his position, it was replied otherwise as though the plaintiff
committed default. Thereupon, the plaintiff filed the suit for specific
performance.
4. Per contra, denying and disputing, challenging and impugning the
allegations/averments, the first defendant filed the refutatory written
statement; the gist and kernel of it, could be detailed thus:
The plaintiff was not ready and willing to perform his part of the
contract. As a concession, time was extended upto 13.07.1989. It was
specifically mentioned therein that on 13.07.1989 at 11.00 a.m., the plaintiff
should make himself available with the requisite stamp papers for the purpose of
getting the sale deed executed and also with the remaining part of the sale
consideration, so to say, the sum of Rs.80,000/- (Rupees Eighty Thousand only).
The first defendant, as such, indicated that time was the essence of the
contract and in the event of the plaintiff failing to get the sale deed executed
as observed supra, the contract shall stand cancelled. Despite such categorical
expression from the first defendant’s side, the plaintiff who was really having
no sufficient money as well as the financial wherewithal to get the sale deed
executed in his favour, failed to appear at the Sub-Registrar’s Office
concerned on 13.07.1989. Whereupon, the first defendant cancelled the agreement
by sending necessary communication to the plaintiff. Subsequently, the
plaintiff executed the power deed in favour of one Natarajan to sell the suit
property. Accordingly, there was no merit in the plaint filed by the plaintiff.
5. The trial Court framed the relevant issues.
6. During trial, the plaintiff examined himself as P.W.1 along with P.W.2
and P.W.3 and Exs.A.1 to A.29 were marked. The first defendant examined herself
as D.W.1 and Exs.B.1 to B.7 were marked.
7. Ultimately, the trial Court found that time was essence of the contract
and the plaintiff was not ready and willing to perform his part of contract and
accordingly, the trial Court dismissed the original suit.
8. Being aggrieved by and dissatisfied with, the judgment and decree of
the trial Court, the plaintiff preferred this appeal on the following main
grounds among others:
(i) The judgment and decree of the trial Court are against law and the
weight of evidence. Time was not the essence of the contract. However, the
trial Court assumed the contrary as though time was the essence of the contract
and dismissed the suit. On 13.07.1989, even though the plaintiff was very much
present with the remaining part of the sale consideration and also ready to
purchase the stamp papers, nevertheless the first defendant did not appear and
this fact was ignored by the trial Court.
(ii) The deposition of P.W.2 and P.W.3 have not been considered in the
proper perspective, even so their testimonies would highlight that the plaintiff
was always ready and willing to perform his part of the contract. The learned
trial Judge misunderstood the extract from the Commentaries on the Contract Act
by Mr.Subramanian and Singhal, 3rd Edition, 1989 at page 1061. The plaintiff
by clinching evidence highlighted that on 13.07.1989, he was present at the Sub-
Registrar’s Office concerned for getting the sale deed executed on 13.07.1989,
nonetheless the trial Court held otherwise. Accordingly, the plaintiff prayed
for setting aside the judgment and decree of the trial Court and for decreeing
the original suit.
9. The points for consideration are:
(i) Whether the plaintiff was ready and willing to perform his part of
the contract throughout and more specifically on 13.07.1989?
(ii) Whether the trial Court was justified in holding that time was the
essence of the contract so far as this case is concerned?
(iii) Whether there is any infirmity in the judgment and decree of the
trial Court?
10. Point Nos.(i) and (ii) are taken together for discussion as they are
interlinked and interwoven with each other.
Point Nos:(i) and (ii)
11. At the outset, I would like to highlight certain vital points which
are to be considered before commencing discussion on merits.
12. Before the trial Court only, the first defendant appeared and the
other defendants who happened to be the subsequent purchasers from the first
defendant, remained ex-parte.
13. In this appeal, the first defendant remained ex-parte, whereas the
third defendant appeared through her Counsel who argued the matter.
14. The question arises as to whether without filing written statement
before the trial Court, the third defendant would be competent to argue on
merits the entire case.
15. At this juncture, the learned Counsel for the plaintiff would
correctly cite the decision of the Honourable Apex Court in M.M.S.Investments,
Madurai and others v. V.Veerappan and others reported in 2008-1-L.W.62. An
excerpt from it, would run thus:
“6. Questioning the plea of readiness and willingness is a concept
relatable to an agreement. After conveyance the question of readiness and
willingness is really not relevant. Therefore, the provision of the Specific
Relief Act, 1963 (in short the ‘Act’) is not applicable. It is to be noted that
the decision in Ram Awadh’s case (supra) relates to a case where there was only
an agreement. After the conveyance, the only question to be adjudicated is
whether the purchaser was a bona fide purchaser for value without notice. In
the present case the only issue that can be adjudicated is whether the
appellants were bona fide purchasers for value without notice. The question
whether the the appellants were ready and willing is really of no consequence.
In Ram Awadh’s case (supra) the question of the effect of a completed sale was
not there. Therefore, that decision cannot have any application so far as the
present case is concerned. Once there is a conveyance the concept would be
different and the primary relief could be only cancellation.
7. Learned counsel for the appellants submitted that since the purchasers
step into the shoes of the vendor, the question of readiness and willingness can
be pressed into service. This plea is clearly without substance because the
purchasers had to prove that they are bona fide purchasers for value without
notice. The readiness and willingness aspect will not give any relief to them.
That being the position, the appeal is sans merit and is dismissed. There will
be no order as to costs.”
16. In fact, the aforesaid judgment emerged consequent upon the appeal
filed the appellant in the case decided by this Court in M.M.S. Investments v.
Veerappan reported in 2000 (I) CTC 538 which has been cited by the learned
Counsel for the third defendant herein.
17. The perusal of the aforesaid extract and more so, the entire judgment,
would highlight the fact that the subsequent purchaser of the suit property
cannot be heard to contend the facts relating to the transaction which emerged
between the parties to the agreement to sell and at the most the subsequent
purchaser could contend that he is a bona fide purchaser for value without
notice of any dispute between the parties to the agreement to sell.
Accordingly, if viewed, ex facie and prima facie, it is clear that the third
defendant who remained exparte before the trial Court and had not filed the
written statement, is having no right to canvass the case of the first defendant
and pick holes in the case of the plaintiff.
18. Be that as it may, the learned Counsel for the third defendant
submitted his argument under the following sub-heads:
(i) Time was made the essence of the contract as per Ex.A.1 and by virtue
of subsequent exchange of communications between the parties.
(ii) The plaintiff was not ready and willing to perform his part of the
contract.
(iii) The third defendant is a bona fide purchaser for value without
notice of such dispute between the parties to the agreement to sell.
(iv) At any rate, the plaintiff is not entitled to obtain the
discretionary relief of specific performance, when adequately he could be
compensated money wise and that too when he contracted with one other party even
before getting the sale deed executed in his favour.
19. By way of comprehensively deciding this appeal, I proceed to deal with
all the points in seriatim.
20. The learned Counsel for the plaintiff would draw the attention of this
Court to various Exhibits marked in this case and highlight that as revealed by
Ex.A.3, the plaintiff had always been ready and willing to perform his part of
the contract. As revealed by Ex.A.1, both sides entered into an agreement to
sell whereby 13.05.1989 was agreed to be the time limit for getting the sale
deed executed in favour of the plaintiff from the first defendant. However,
Ex.B.1, the telegram would clearly highlight that the plaintiff could not get
such sale deed executed owing to certain unavoidable circumstances which he
would elaborate during trial by pointing out that his sister died and that he
could not be ready. Subsequently, Ex.A.3, telegram emerged at the instance of
the plaintiff to the effect that the plaintiff was ready and willing to perform
his part of the contract and he would also refer to the earlier meeting between
himself and the first defendant on 13.05.1989.
21. Whereupon, by Ex.A.4, the first defendant conveyed her intention and
it is just and necessary to extract the same hereunder for ready reference:
“A.Ramanathan, 11, Hospital Street, KYR, willing to execute the sale deed
as per your Telegram be ready with the entire balance of sale consideration and
necessary stamp papers at the Sub-Registrar’s Office, Karaikudi on 13.07.1989 at
11.00 A.M failing which agreement will be treated as cancelled.
R.Renganayaki.”
22. The perusal of the aforesaid excerpt, would clearly demonstrate that
ignoring the past happenings, the first defendant had come forward to get the
transaction concluded if the plaintiff would be ready to come forward to get the
sale deed executed on 13.07.1989 at 11.00 a.m., by having with him the remaining
sale consideration and also necessary stamp papers to get the sale deed executed
in his favour.
23. This gains prominence in this case. On the one hand, the learned
Counsel for the plaintiff would argue that even though the time has been fixed
as 11.00 a.m on 13.07.1989 as the crucial time for getting the sale deed
executed in favour of the plaintiff from the first defendant, nevertheless it
cannot be taken as the one constituting the essence of the contract.
24. Whereas the learned Counsel for the third defendant would contend that
it is a trite proposition of law that despite in the agreement itself, there may
not be any specification that time should be treated as the essence of the
contract, nonetheless the parties by subsequent communications and conduct can
make the time as the essence of the contract and Exs.A.3 and A.4 should be
interpreted in that line.
25. According to the third defendant, on 13.07.1989 at 11.00 a.m., the
plaintiff was not ready and that was why the contract did not get concluded. It
is obvious that the third defendant could not have any personal knowledge about
it. Even so, the third defendant on behalf of the first defendant, would
canvass his case.
26. To the risk of repetition without being tautologous, I would like to
highlight that these pleas of the third defendant are considered purely out of
academic interest and the third defendant in stricto sensu cannot legally
canvass on behalf of the first defendant such pleas.
27. As correctly highlighted by the learned Counsel for the plaintiff, the
deposition of D.W.1 itself would lend support to P.W.1 that P.W.1 was present on
13.07.1989 at the Sub-Registrar’s Office to get the sale deed executed in his
favour.
28. An excerpt from the deposition of D.W.1, during cross-examination is
extracted hereunder for ready reference:
“13 e; Bjjp, rhh;gjpthsh; mYtyfj;jpw;F vjph;g[wj;jpy; thjpiag;
ghh;j;jbghGJ mth; vA;fSld; Bgrtpy;iy. ehBdh, vd; fztBuh, thjpia Tg;gpltpy;iy.
thjpia 20 my;yJ 25 mo Jhuj;jpy; ghh;j;Bjhk;.” (emphasis supplied.)
29. As such, the aforesaid excerpt from the cross-examination of D.W.1
would clearly indicate and exemplify that on 13.07.1989, the plaintiff was very
much present at the Sub-Registrar’s Office concerned. Whereas the first
defendant in the written statement would totally deny the factum of P.W.1 having
been present at the Sub-Registrar’s Office.
30. The plaintiff by examining himself as P.W.1 along with P.W.2 and
P.W.3, categorically established that he was very much present on 13.07.1989 as
directed by the first defendant earlier.
31. The learned Counsel for the third defendant would draw the attention
of this Court to the deposition of P.W.1 during chief examination itself that on
on 13.07.1989, he was going between two Sub-Registrar’s Offices without knowing
to which Office he had to be present. As highlighted by the learned Advocate
for the plaintiff, both the Sub-Registrar’s Offices are in Karaikudi only nearby
to each other.
32. The preponderance of probabilities would govern the adjudication in
civil cases.
33. On the one hand, D.W.1 earlier in the written statement took the stand
that the plaintiff was not at all present on 13.07.1989 and that he committed
default, but during trial, she would admit the presence of P.W.1 at the Sub-
Registrar’s Office on 13.07.1989. The documentary evidence in addition to oral
evidence as highlighted supra, would reveal that on 15.07.1989 itself he got the
sale deed engrossed on the stamp papers as revealed by
Exs.A.15 to A.17.
34. The learned Counsel for the third defendant canvassing the case of the
first defendant would contend that had really the plaintiff was ready and
willing to get the sale deed executed even from the morning of 13.07.1989 as
claimed by him, he should have purchased the stamp papers even on 13.07.1989
itself for which the explanation from P.W.1 was to the effect that on that day,
stamp papers were not available and P.W.2, the document writer would also
corroborate his evidence.
35. In fact, it is the case of P.W.1 that only at about 04.00 p.m., the
first defendant came to the Sub-Registrar’s Office and at that time, P.W.2
told that stamp papers were not available. Now, the expectation on the side of
the third defendant is that P.W.1 should have got the stamp papers already
purchased. However, in the facts and circumstances of this case, such a plea by
the third defendant appears to be a far-fetched one. P.W.1 purchased the stamp
papers on 15.07.1989. Had really P.W.3 did not have had any intention to get
the sale deeds executed in his favour, but purely for the purpose of feigning as
though he was ready and willing to purchase, then the subsequent events would
not have taken shape in the manner it happened.
36. On noticing that on 17.07.1989, the first defendant did not come to
the Sub-Registrar’s Office concerned, as promised by the first defendant on
13.07.1989 that on 17.07.1989, the plaintiff sent telegram Ex.A.7, narrating as
to what actually happened. Thereupon, the first defendant sent Ex.A.8,
refutatory telegram accusing the plaintiff as though he allegedly committed
default and that he was not having sufficient funds on 13.07.1989 and that on
13.07.1989 the first defendant did not agree to execute the sale deed on
17.07.1989. Thereupon, the plaintiff filed the suit on 19.07.1989 and
subsequently, deposited the remaining sale consideration of Rs.80,000/- (Rupees
Eighty Thousand only) on 24.02.1989 after obtaining order from the Court on
22.08.1989.
37. Considering the preponderance of probabilities, it is clear from the
analysis of evidence supra that the plaintiff was ready and willing to perform
his contract. Had really, the plaintiff was not having the remaining part of
the sale consideration, he would not have spent money idly in purchasing the
stamp papers on 15.07.1989 and getting the sale deeds Exs.A.15 to A.17 prepared.
38. The trial Court in paragraph No.14 of its judgment, would refer to a
part of the deposition of P.W.1 erroneously and assumed as though P.W.1 while
deposing further on 10.11.1992 before the trial Court stated as though he was
having only a sum of Rs.50,000/- (Rupees Fifty Thousand only) and not the entire
sale consideration.
39. During arguments, I called upon both the learned Advocates to analyse
the deposition of P.W.1 and I also perused it deeply. But, we could see no such
deposition as understood by the learned trial Judge. Perhaps the trial Judge
might have erroneously understood the deposition of P.W.1 and arrived at such
wrong finding.
40. The learned Counsel for the third defendant would argue that there is
no presumption that the plaintiff had a sum of Rs.80,000/- (Rupees Eighty
Thousand only) on 13.07.1989, as he had not produced any bank Passbook to prove
his financial wherewithal, even though P.W.1 stated that the funds were in his
wife’s account. It is the admitted case of the plaintiff as well as the first
defendant and now, the arguments of the third defendant to the effect that it is
the case of the plaintiff that he entered into the agreement to sell with one
Muthiah relating to the suit property and it was Muthiah who funded him largely;
when such is the position, the question of the plaintiff being in a penurious of
impecunious circumstances did not arise at all.
41. It is a trite proposition of law that the plaintiff need not in all
cases demonstrate his financial ability, by producing the currency or passbook
etc and prove beyond all reasonable doubts his financial ability. It should not
be forgotten that in this case, the plaintiff also deposited the entire
remaining sale consideration in the Court without even waiting for a decree to
be passed in his favour.
42. The learned Counsel for the plaintiff appositely by placing reliance
on the deposition of D.W.1 would develop his argument to the effect that even as
per the case of the first defendant, earlier to 13.07.1989, she took out a draft
for a sum of Rs.20,000/- (Rupees Twenty Thousand only) for repaying the amount
which she received from the plaintiff as advance under Ex.A.1 and that itself
would indicate that she was not ready and willing to perform her part of the
contract and that she had already predetermined to rescind Ex.A.1.
43. I could see considerable force in the submission made by the learned
Counsel for the plaintiff. The first defendant’s plea that the plaintiff was
not ready and willing is an afterthought and her pleas are nothing but stooges
dished out by her to camouflage and conceal her fault.
44. The trial Court without adverting to all these facts, simply held that
the time was essence of the contract, even though it is a well settled
proposition of law relating to agreement to sell, the time is not the essence of
the contract.
45. The learned Counsel for the third defendant would submit that in all
cases, relating to immovable property blindly it cannot be taken that time
should not be the essence of the contract, but depending upon the facts of each
and every case, time can rightly be taken as the essence of the contract and
that this case is one such a case. In support of his contention, he relied on
the following decisions:
(i) Sobharam v. Totaram reported in A.I.R (39) 1953 NAGPUR 244.
(ii) Gomathinayagam Pillai v. Palaniswami Nadar reported in AIR 1967
Supreme Court 868.
(iii) K.Appa Rao v. Balasubramania Gramani reported in AIR 1976 MADRAS 70.
(iv) K.Suryanarayana Reddy v. C.Chellayyamma reported in AIR 1989 ANDHRA
PRADESH 276.
(v) Chand Rani v. Kamal Rani reported in (1993) 1 Supreme Court Cases 519.
(vi) His Holiness Acharya Swami Ganesh Dassji v. Shri Sita Ram Thapar
reported in 1996 (II) CTC 158.
(vii) Seeni Ammal v. Veerayee Ammal reported in 1997 (I) CTC 360.
(viii) K.S.Vidyanadam and others v. Vairavan reported in (1997) 3 Supreme
Court Cases 1.
(ix) Vasantha and others v. M.Senguttuvan reported in 1998 (I) CTC 186.
(x) V.B.Dharmyat v. Shree Jagadguru Tontadrya reported in (1999) 6 Supreme
Court Cases 15.
(xi) S.Maruthai and another v. Gokuldoss Dharam Doss and four others
reported in 1999 (III) CTC 724.
(xii) Indravathi v. Kamala reported in 2000 (IV) CTC 278.
(xiii) Nalluswamy Reddiar v. Marammal and 5 others reported in 2000 (I)
CTC 484.
(xiv) M.M.S.Investments v. Veerappan reported in 2000 (I) CTC 538.
(xv) Govindappa Naidu v. C.Sidda Chetty and others reported in 2003-3-
L.W.479.
(xvi) M/s.P.R.Deb & Associates v. Sunanda Roy reported in AIR 1996 SUPREME
COURT 1504.
46. The perusal of the aforesaid decisions would clearly indicate that
depending upon the facts of each and every case, it could rightly be taken that
time is the essence of the contract relating to the immovable property. Placing
reliance on those decisions, the learned Counsel for the third defendant would
put forth his argument unconvincingly that the very fact that by Ex.A.4, the
defendant intended that 11.00 a.m. on 13.07.1989 should be the final time limit
for getting the sale deed executed by the plaintiff from the first defendant, is
sufficient to hold that time was the essence of the contract.
47. The learned Counsel for the plaintiff would convincingly argue that
even such specification of time as 11.00 a.m., cannot be taken as the one that
both sides agreed that time should be the essence of the contract. The concept
‘time is the essence of the contract’ cannot be inferred by mere wordings.
Simply because, certain time limit is fixed in an agreement to sell, one cannot
jump to the conclusion that time is the essence of the contract relating to
immovable property. Over and above such prescription of time limit, there
should be other proven circumstances to countenance that time is the essence of
Contract.
48. The learned Counsel for the plaintiff cited the recent decision of the
Honourable Apex Court in Balasaheb Dayandeo Naik (Dead) v. Appasaheb Dattatraya
Pawar reported in 2008 (1) CTC 530 which would posit the proposition that time
is not the essence of the contract relating to the immovable properties.
49. The learned Counsel for the third defendant placing reliance on
various documentary evidence such as Exs.B.2 and B.3, would advance his argument
that the contractor informed the first defendant’s husband that he should pay a
sum of Rs.75,000/- (Rupees Seventy Five Thousand only) at the relevant time so
as to enable the builders to purchase the property on behalf of the first
defendant’s husband, so that they would be able to make constructions for the
husband of the first defendant. According to them, the time duration tallies
between the agreement to sell and Exs.B.2 and B.3. However, the learned Counsel
for the plaintiff correctly pointed out that neither in Ex.A.1 nor in the
written statement, the first defendant stated those facts. Any amount of
evidence unsupported by pleadings should be eshewed.
50. Furthermore, in this case, Exs.B.2 and B.3 have not been proved by
examining the contractors and they are only bare communications from those
builders to the first defendant’s husband.
51. At this juncture, I would also highlight that when Ex.A.1 is silent
and the written statement also is silent, the communications between the
builders and the first respondent’s husband would not enure to the benefit of
the first defendant. Moreover, the legal personality of the ‘first defendant’
is different from that of her husband who was not examined as a witness before
the Court. Hence, in this view of the matter, it cannot be held that time is
the essence of the contract. Accordingly, these points are decided in favour of
the plaintiff.
52. The learned Counsel for the third defendant would develop his argument
to the effect that at any rate, the third defendant is a bona fide purchaser for
value without notice of the dispute between the parties to Ex.A.1.
53. The learned Counsel for the plaintiff would also correctly draw the
attention of this Court to Exs.A.9 and A.10,the paper publications. The perusal
of them would reveal that soon after the filing of the suit, the plaintiff made
a publication in Dinamalar dated 21.07.1989 to the effect that a third party
should not purchase the suit property. Whereas the first defendant through her
power agent Natarajan made a counter publication in the same Dinamalar dated
22.07.1989 to the effect that the plaintiff had committed default and hence, he
is having no right to prevent any alienation.
54. The fact remains that only by virtue of Exs.A.11 to A.14, subsequently
the third defendant purchased from the said Natarajan, the power agent of the
first defendant, the properties, so to say, precisely during the pendency of the
suit which would attract the doctrine of ‘lis pendense’. As such, the sales are
hit by the doctrine of ‘lis pendense’. The facts would further demonstrate that
the first defendant as well as the power agent of the first defendant were fully
aware of the pendency of the suit and with that knowledge, they sold.
55. The learned Counsel for the third defendant would argue that the third
defendant was not aware of such publications. Inasmuch as, the publications
were made in the daily news papers, the third defendant cannot be heard to
contend that she was not award of the dispute between the plaintiff and the
first defendant.
56. Hence, it cannot be held that the third defendant is a bona fide
purchaser for value without notice of it.
57. Furthermore, the crucial point is that the doctrine of ‘lis pendense’
would be applicable irrespective of the fact whether the purchaser had knowledge
about the pendency of the suit or not. Hence, in this view of the matter, the
third defendant is not in a better position to canvass the case of the first
defendant and try to achieve success in the litigative battle. Accordingly, it
is decided that the third defendant has not proved that she is the bona fide
purchaser.
58. The learned Counsel for the third defendant would advance his argument
by drawing the attention of this Court to the deposition of P.W.1 and his
evidence that even before Ex.A.1 got itself fructified in the form of a sale
deed emerging in favour of the plaintiff, he had chosen to enter into an
agreement to sell with regard to the same property with one Muthiah offered for
a higher sale consideration of Rs.1,35,000/- (Rupees One Lakh and Thirty Five
Thousand only), which demonstrates that the plaintiff was interested in making
money and not very particular in enjoying the suit property by himself and in
such a case, specific performance need not be ordered and at the most,
compensation could be awarded in favour of the plaintiff. In support his
proposition, he relied on the decision of the Honourable Apex Court in
Ramshankar v. Kailasgauri reported in AIR 1974 GUJARAT 69.
59. No doubt, the relief of ordering specific performance is a
discretionary one. Inasmuch as, it is a discretionary relief, it cannot be
taken that such a discretionary relief should not be granted at all. At the
whims and fancies, it cannot be denied.
60. Here, as has been already highlighted supra, the subsequent purchasers
of the property could not prove that they are having bona fide claim over the
suit property. In such a case, I am at a loss to understand as to how the
plaintiff who is otherwise entitled to get the sale deed executed, should be
deprived of it by ordering that he should be satisfied by obtaining damages from
the persons concerned.
61. Each and every case has to be analysed based on its own merits.
Here, my finding above would be indicative of the fact that the first defendant
even before 13.07.1989, the date for executing the sale deed, determined to
rescind the contract and thereby exposed herself. The doctrine of ‘lis
pendense’ is applicable as against the third defendant and other purchasers.
Over and above that, there is nothing to prove that the third defendant is a
bona fide purchaser for value without notice.
62. In such view of the matter, the relief as sought by the third
defendant orally that the plaintiff could be compensated instead of specifically
granting the relief of specific performance, cannot be countenanced and upheld.
63. I could see no merit in the contention of the third defendant.
However, without considering all these salient features involved in this case,
the trial Court caught the wrong end of the stick and consequently, fell into
error in simply assuming as though time was essence of the contract and that the
plaintiff was not ready and willing.
64. In the result, this appeal is allowed, setting aside the judgment and
decree dated 15.12.1992 in O.S.No.50 of 1989 on the file of the Subordinate
Judge, Devakottai, PMT District and the original suit is decreed to the effect
that the first defendant shall execute the sale deed transferring the suit
property in favour of the plaintiff, failing which the Court shall execute the
sale deed. Consequently, connected Miscellaneous Petition is closed. The
Parties shall bear their respective costs.
rsb
To
The Subordinate Judge,
Devakottai,
PMT District.