{"id":171526,"date":"2008-02-29T00:00:00","date_gmt":"2008-02-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/a-ramanathan-chetthiar-vs-r-ranganayaki-on-29-february-2008"},"modified":"2016-02-20T23:23:07","modified_gmt":"2016-02-20T17:53:07","slug":"a-ramanathan-chetthiar-vs-r-ranganayaki-on-29-february-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/a-ramanathan-chetthiar-vs-r-ranganayaki-on-29-february-2008","title":{"rendered":"A.Ramanathan Chetthiar vs R.Ranganayaki on 29 February, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
A.Ramanathan Chetthiar vs R.Ranganayaki on 29 February, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED : 29\/02\/2008\n\nCORAM\nTHE HONOURABLE MR.JUSTICE G.RAJASURIA\n\nA.S.No.343 of 1996\nand\nC.M.P.No.6232 of 2005\n\n\nA.Ramanathan Chetthiar\t\t... Appellant\/Plaintiff\n\n\nVs.\n\n\n1.R.Ranganayaki\n2.S.V.Sivakumar\n3.N.Valliammai\n4.C.Valliappa Chettiar\n5.Kasi Viswanathan\t \t... Respondents\/Defendants\n\n\n\nPrayer\n\nAppeal filed under Section 96 of the  Code of Civil Procedure, against\nthe judgment and decree dated 15.12.1992 in O.S.No.50 of 1989 on the file of the\nSubordinate Judge, Devakottai, PMT District.\n\n!For Appellant  \t... Mr.M.C.Swamy\n\n^For Respondents\t... Mr.N.Dilipkumar for R.3\n\t\t\t    No representation\n\t\t\t    for R.1, R.2, R.4 and R.5\n\n\n\n:JUDGMENT\n<\/pre>\n
\tThis appeal has been filed against the judgment and decree dated
\n15.12.1992 in O.S.No.50 of 1989 on the file of the Subordinate Judge,
\nDevakottai, PMT District.\n<\/p>\n
\t2. The parties, for convenience sake, are referred to hereunder according
\nto their litigative status before the trial Court.\n<\/p>\n
\t3. Broadly but briefly, narratively and precisely, the case of the
\nplaintiff as stood exposited from the plaint, could be portrayed thus:\n<\/p>\n
\tThe plaintiff and the first defendant entered into the agreement to sell
\nas per Ex.A.1 dated 20.03.1989, whereby the latter agreed to sell in favour of
\nthe former the suit immovable property described in the schedule of the plaint
\nfor a sale consideration of Rs.1,00,000\/- (Rupees One Lakh only) and a sum of
\nRs.20,000\/- was paid by the former to the latter as advance.  The time
\nstipulated was upto 13.05.1989.  Owing to factors beyond the plaintiff’s
\ncontrol, the sale deed could not be got executed in his favour and thereupon, by
\nmutual agreement, time was got extended upto 13.07.1989.  On 13.07.1989, the
\nplaintiff was present at the Sub-Registrar’s Office concerned, but the first
\ndefendant did not turn up and thereby the sale deed could not be got executed in
\nfavour of the plaintiff.  Whereupon, a telegram was sent to the first defendant
\nexplaining his position, it was replied otherwise as though the plaintiff
\ncommitted default.  Thereupon, the plaintiff filed the suit for specific
\nperformance.\n<\/p>\n
\t4. Per contra, denying and disputing, challenging and impugning the
\nallegations\/averments, the first defendant filed the refutatory written
\nstatement; the gist and kernel of it, could be detailed thus:\n<\/p>\n
\tThe plaintiff was not ready and willing to perform his part of the
\ncontract.  As a concession, time was extended upto 13.07.1989.  It was
\nspecifically mentioned therein that on 13.07.1989 at 11.00 a.m., the plaintiff
\nshould make himself available with the requisite stamp papers for the purpose of
\ngetting the sale deed executed and also with the remaining part of the sale
\nconsideration, so to say, the sum of Rs.80,000\/- (Rupees Eighty Thousand only).
\nThe first defendant, as such, indicated that time was the essence of the
\ncontract and in the event of the plaintiff failing to get the sale deed executed
\nas observed supra, the contract shall stand cancelled.  Despite such categorical
\nexpression from the first defendant’s side, the plaintiff who was really having
\nno sufficient money as well as the financial wherewithal to get the sale deed
\nexecuted in his favour, failed to appear at the Sub-Registrar’s  Office
\nconcerned on 13.07.1989.  Whereupon, the first defendant cancelled the agreement
\nby sending necessary communication to the plaintiff.  Subsequently, the
\nplaintiff executed the power deed in favour of one Natarajan to sell the suit
\nproperty.  Accordingly, there was no merit in the plaint filed by the plaintiff.\n<\/p>\n
\t5. The trial Court framed the relevant issues.\n<\/p>\n
\t6. During trial, the plaintiff examined himself as P.W.1 along with P.W.2
\nand P.W.3 and Exs.A.1 to A.29 were marked.  The first defendant examined herself
\nas D.W.1 and Exs.B.1 to B.7 were marked.\n<\/p>\n
\t7. Ultimately, the trial Court found that time was essence of the contract
\nand the plaintiff was not ready and willing to perform his part of contract and
\naccordingly, the trial Court dismissed the original suit.\n<\/p>\n
\t8. Being aggrieved by and dissatisfied with, the judgment and decree of
\nthe trial Court, the plaintiff preferred this appeal on the following main
\ngrounds among others:\n<\/p>\n
\t(i) The judgment and decree of the trial Court are against law and the
\nweight of evidence.  Time was not the essence of the contract.  However, the
\ntrial Court assumed the contrary as though time was the essence of the contract
\nand dismissed the suit.  On 13.07.1989, even though the plaintiff was very much
\npresent with the remaining part of the sale consideration and also ready to
\npurchase the stamp papers, nevertheless the first defendant did not appear and
\nthis fact was ignored by the trial Court.\n<\/p>\n
\t(ii) The deposition of P.W.2 and P.W.3 have not been considered in the
\nproper perspective, even so their testimonies would highlight that the plaintiff
\nwas always ready and willing to perform his part of the contract.  The learned
\ntrial Judge misunderstood the extract from the Commentaries on the Contract Act
\nby Mr.Subramanian and Singhal, 3rd Edition, 1989 at page  1061.  The plaintiff
\nby clinching evidence highlighted that on 13.07.1989, he was present at the Sub-
\nRegistrar’s Office concerned for getting the sale deed executed on 13.07.1989,
\nnonetheless the trial Court held otherwise.  Accordingly, the plaintiff prayed
\nfor setting aside the judgment and decree of the trial Court and for decreeing
\nthe original suit.\n<\/p>\n
\t9. The points for consideration are:\n<\/p>\n
\t(i) Whether the  plaintiff was ready and willing to perform his part of
\nthe contract throughout and more specifically on 13.07.1989?\n<\/p>\n
\t(ii) Whether the trial Court was justified in holding that time was the
\nessence of the contract so far as this case is concerned?\n<\/p>\n
\t(iii) Whether there is any infirmity in the judgment and decree of the
\ntrial Court?\n<\/p>\n
\t10. Point Nos.(i) and (ii) are taken together for discussion as they are
\ninterlinked and interwoven with each other.\n<\/p>\n
Point Nos:(i) and (ii)\n<\/p>\n
\t11. At the outset, I would like to highlight certain vital points which
\nare to be considered before commencing discussion on merits.\n<\/p>\n
\t12. Before the trial Court only, the first defendant appeared and the
\nother defendants who happened to be the subsequent purchasers from the first
\ndefendant, remained ex-parte.\n<\/p>\n
\t13. In this appeal, the first defendant remained ex-parte, whereas the
\nthird defendant appeared through her Counsel who argued the matter.\n<\/p>\n
\t14. The question arises as to whether without filing written statement
\nbefore the trial Court, the third defendant would be competent to argue on
\nmerits the entire case.\n<\/p>\n
\t15. At this juncture, the learned Counsel for the plaintiff would
\ncorrectly cite the decision of the Honourable Apex Court in M.M.S.Investments,
\nMadurai and others v. V.Veerappan and others<\/a> reported in 2008-1-L.W.62.  An
\nexcerpt from it, would run thus:\n<\/p>\n
\t“6. Questioning the plea of readiness and willingness is a concept
\nrelatable to an agreement.  After conveyance the question of readiness and
\nwillingness is really not relevant.  Therefore, the provision of the Specific
\nRelief Act, 1963 (in short the ‘Act’) is not applicable.  It is to be noted that
\nthe decision in Ram Awadh’s case (supra) relates to a case where there was only
\nan agreement.  After the conveyance, the only question to be adjudicated is
\nwhether the purchaser was a bona fide purchaser for value without notice.  In
\nthe present case the only issue that can be adjudicated is whether the
\nappellants were bona fide purchasers for value without notice.  The question
\nwhether the the appellants were ready and willing is really of no consequence.
\nIn Ram Awadh’s case (supra) the question of the effect of a completed sale was
\nnot there.  Therefore, that decision cannot have any application so far as the
\npresent case is concerned.  Once there is a conveyance the concept would be
\ndifferent and the primary relief could be only cancellation.\n<\/p>\n
\t7. Learned counsel for the appellants submitted that since the purchasers
\nstep into the shoes of the vendor, the question of readiness and willingness can
\nbe pressed into service.  This plea is clearly without substance because the
\npurchasers had to prove that they are bona fide purchasers for value without
\nnotice.  The readiness and willingness aspect will not give any relief to them.
\nThat being the position, the appeal is sans merit and is dismissed.  There will
\nbe no order as to costs.”\n<\/p>\n
\t16. In fact, the aforesaid judgment emerged consequent upon the appeal
\nfiled the appellant in the case decided by this Court in M.M.S. Investments v.
\nVeerappan<\/a> reported in 2000 (I) CTC 538 which has been cited by the learned
\nCounsel for the third defendant herein.\n<\/p>\n
\t17. The perusal of the aforesaid extract and more so, the entire judgment,
\nwould highlight the fact that the subsequent purchaser of the suit property
\ncannot be heard to contend the facts relating to the transaction which emerged
\nbetween the parties to the agreement to sell and at the most the subsequent
\npurchaser could contend that he is a bona fide purchaser for value without
\nnotice of any dispute between the parties to the agreement to sell.
\nAccordingly, if viewed, ex facie and prima facie, it is clear that the third
\ndefendant who remained exparte before the trial Court and had not filed the
\nwritten statement, is having no right to canvass the case of the first defendant
\nand pick holes in the case of the plaintiff.\n<\/p>\n
\t18. Be that as it may, the learned Counsel for the third defendant
\nsubmitted his argument under the following sub-heads:\n<\/p>\n
\t(i) Time was made the essence of the contract as per Ex.A.1 and by virtue
\nof subsequent exchange of communications between the parties.\n<\/p>\n
\t(ii) The plaintiff was not ready and willing to perform his part of the
\ncontract.\n<\/p>\n
\t(iii) The third defendant is a bona fide purchaser for value without
\nnotice of such dispute between the parties to the agreement to sell.\n<\/p>\n
\t(iv) At any rate, the plaintiff is not entitled to obtain the
\ndiscretionary relief of specific performance, when adequately he could be
\ncompensated money wise and that too when he contracted with one other party even
\nbefore getting the sale deed executed in his favour.\n<\/p>\n
\t19. By way of comprehensively deciding this appeal, I proceed to deal with
\nall the points in seriatim.\n<\/p>\n
\t20. The learned Counsel for the plaintiff would draw the attention of this
\nCourt to various Exhibits marked in this case and highlight that as revealed by
\nEx.A.3, the plaintiff had always been ready and willing to perform his part of
\nthe contract.  As revealed by Ex.A.1, both sides entered into an agreement to
\nsell whereby 13.05.1989 was agreed to be the time limit for getting the sale
\ndeed executed in favour of the plaintiff from the first defendant.  However,
\nEx.B.1, the telegram would clearly highlight that the plaintiff could not get
\nsuch sale deed executed owing to certain unavoidable circumstances which he
\nwould elaborate during trial by pointing out that his sister died and that he
\ncould not be ready.  Subsequently, Ex.A.3, telegram emerged at the instance of
\nthe plaintiff to the effect that the plaintiff was ready and willing to perform
\nhis part of the contract and he would also refer to the earlier meeting between
\nhimself and the first defendant on 13.05.1989.\n<\/p>\n
\t21. Whereupon, by Ex.A.4, the first defendant conveyed her intention and
\nit is just and necessary to extract the same hereunder for ready reference:
\n\t“A.Ramanathan, 11, Hospital Street, KYR, willing to execute the sale deed
\nas per your Telegram be ready with the entire balance of sale consideration and
\nnecessary stamp papers at the Sub-Registrar’s Office, Karaikudi on 13.07.1989 at
\n11.00 A.M failing which agreement will be treated as cancelled.\n<\/p>\n
\t\t\t\t\t\t     \tR.Renganayaki.”\n<\/p>\n
\t22. The perusal of the aforesaid excerpt, would clearly demonstrate that
\nignoring the past happenings, the first defendant had come forward to get the
\ntransaction concluded if the plaintiff would be ready to come forward to get the
\nsale deed executed on 13.07.1989 at 11.00 a.m., by having with him the remaining
\nsale consideration and also necessary stamp papers to get the sale deed executed
\nin his favour.\n<\/p>\n
\t23. This gains prominence in this case.  On the one hand, the learned
\nCounsel for the plaintiff would argue that even though the time has been fixed
\nas 11.00 a.m on 13.07.1989 as the crucial time for getting the sale deed
\nexecuted in favour of the plaintiff from the first defendant, nevertheless it
\ncannot be taken as the one constituting the essence of the contract.\n<\/p>\n
\t24. Whereas the learned Counsel for the third defendant would contend that
\nit is a trite proposition of law that despite in the agreement itself, there may
\nnot be any specification that time should be treated as the essence of the
\ncontract, nonetheless the parties by subsequent communications and conduct can
\nmake the time as the essence of the contract and Exs.A.3 and A.4 should be
\ninterpreted in that line.\n<\/p>\n
\t25. According to the third defendant, on 13.07.1989 at 11.00 a.m., the
\nplaintiff was not ready and that was why the contract did not get concluded.  It
\nis obvious that the third defendant could not have any personal knowledge about
\nit.  Even so, the third defendant on behalf of the first defendant, would
\ncanvass his case.\n<\/p>\n
\t26. To the risk of repetition without being tautologous, I would like to
\nhighlight that these pleas of the third defendant are considered purely out of
\nacademic interest and the third defendant in stricto sensu cannot legally
\ncanvass on behalf of the first defendant such pleas.\n<\/p>\n
\t27. As correctly highlighted by the learned Counsel for the plaintiff, the
\ndeposition of D.W.1 itself would lend support to P.W.1 that P.W.1 was present on
\n13.07.1989 at the Sub-Registrar’s Office to get the sale deed executed in his
\nfavour.\n<\/p>\n
\t28. An excerpt from the deposition of D.W.1, during cross-examination is
\nextracted hereunder for ready reference:\n<\/p>\n
\t“13 e; Bjjp, rhh;gjpthsh; mYtyfj;jpw;F vjph;g[wj;jpy; thjpiag;
\nghh;j;jbghGJ mth; vA;fSld; Bgrtpy;iy.  ehBdh, vd; fztBuh, thjpia Tg;gpltpy;iy.
\nthjpia 20 my;yJ 25 mo Jhuj;jpy; ghh;j;Bjhk;.”\t      \t(emphasis supplied.)<\/p>\n
\t29. As such, the aforesaid excerpt from the cross-examination of D.W.1
\nwould clearly indicate and exemplify that on 13.07.1989, the plaintiff was very
\nmuch present at the Sub-Registrar’s Office concerned.  Whereas the first
\ndefendant in the written statement would totally deny the factum of P.W.1 having
\nbeen present at the Sub-Registrar’s Office.\n<\/p>\n
\t30. The plaintiff by examining himself as P.W.1 along with P.W.2 and
\nP.W.3, categorically established that he was very much present on 13.07.1989 as
\ndirected by the first defendant earlier.\n<\/p>\n
\t31. The learned Counsel for the third defendant would draw the attention
\nof this Court to the deposition of P.W.1 during chief examination itself that on
\non 13.07.1989, he was going between two Sub-Registrar’s Offices without knowing
\nto which Office he had to be present.  As highlighted by the learned Advocate
\nfor the plaintiff, both the Sub-Registrar’s Offices are in Karaikudi only nearby
\nto each other.\n<\/p>\n
\t32. The preponderance of probabilities would govern the adjudication in
\ncivil cases.\n<\/p>\n
\t33. On the one hand, D.W.1 earlier in the written statement took the stand
\nthat the plaintiff was not at all present on 13.07.1989 and that he committed
\ndefault, but during trial, she would admit the presence of P.W.1 at the Sub-
\nRegistrar’s Office on 13.07.1989.  The documentary evidence in addition to oral
\nevidence as highlighted supra, would reveal that on 15.07.1989 itself he got the
\nsale deed engrossed on the stamp papers as revealed by
\nExs.A.15 to A.17.\n<\/p>\n
\t34. The learned Counsel for the third defendant canvassing the case of the
\nfirst defendant would contend that had really the plaintiff was ready and
\nwilling to get the sale deed executed even from the morning of 13.07.1989 as
\nclaimed by him, he should have purchased the stamp papers even on 13.07.1989
\nitself for which the explanation from P.W.1 was to the effect that on that day,
\nstamp papers were not available and P.W.2, the document writer would also
\ncorroborate his evidence.\n<\/p>\n
\t35. In fact, it is the case of P.W.1 that only at about 04.00 p.m., the
\nfirst defendant came to the Sub-Registrar’s Office and at that time, P.W.2
\ntold that stamp papers were not available.  Now, the expectation on the side of
\nthe third defendant is that P.W.1 should have got the stamp papers already
\npurchased.  However, in the facts and circumstances of this case, such a plea by
\nthe third defendant appears to be a far-fetched one.  P.W.1 purchased the stamp
\npapers on 15.07.1989.  Had really P.W.3 did not have had any intention to get
\nthe sale deeds executed in his favour, but purely for the purpose of feigning as
\nthough he was ready and willing to purchase, then the subsequent events would
\nnot have taken shape in the manner it happened.\n<\/p>\n
\t36. On noticing that on 17.07.1989, the first defendant did not come to
\nthe Sub-Registrar’s Office concerned, as promised by the first defendant on
\n13.07.1989 that on 17.07.1989, the plaintiff sent telegram Ex.A.7, narrating as
\nto what actually happened.  Thereupon, the first defendant sent Ex.A.8,
\nrefutatory telegram accusing the plaintiff as though he allegedly committed
\ndefault and that he  was not having sufficient funds on 13.07.1989 and that on
\n13.07.1989 the first defendant did not agree to execute the sale deed on
\n17.07.1989.  Thereupon, the plaintiff filed the suit on 19.07.1989 and
\nsubsequently, deposited the remaining sale consideration of Rs.80,000\/- (Rupees
\nEighty Thousand only) on 24.02.1989 after obtaining order from the Court on
\n22.08.1989.\n<\/p>\n
\t37. Considering the preponderance of probabilities, it is clear from the
\nanalysis of evidence supra that the plaintiff was ready and willing to perform
\nhis contract.  Had really, the plaintiff was not having the remaining part of
\nthe sale consideration, he would not have spent money idly in purchasing the
\nstamp papers on 15.07.1989 and getting the sale deeds Exs.A.15 to A.17 prepared.\n<\/p>\n
\t38. The trial Court in paragraph No.14 of its judgment, would refer to a
\npart of the deposition of P.W.1 erroneously and assumed as though P.W.1 while
\ndeposing further on 10.11.1992 before the trial Court stated as though he was
\nhaving only a sum of Rs.50,000\/- (Rupees Fifty Thousand only) and not the entire
\nsale consideration.\n<\/p>\n
\t39. During arguments, I called upon both the learned Advocates to analyse
\nthe deposition of P.W.1 and I also perused it deeply.  But, we could see no such
\ndeposition as understood by the learned trial Judge.  Perhaps the trial Judge
\nmight have erroneously understood the deposition of P.W.1 and arrived at such
\nwrong finding.\n<\/p>\n
\t40. The learned Counsel for the third defendant would argue that there is
\nno presumption that the plaintiff had a sum of Rs.80,000\/- (Rupees Eighty
\nThousand only) on 13.07.1989, as he had not produced any bank Passbook to prove
\nhis financial wherewithal, even though P.W.1 stated that the funds were in his
\nwife’s account.  It is the admitted case of the plaintiff as well as the first
\ndefendant and now, the arguments of the third defendant to the effect that it is
\nthe case of the plaintiff that he entered into the agreement to sell with one
\nMuthiah relating to the suit property and it was Muthiah who funded him largely;
\nwhen such is the position, the question of the plaintiff being in a penurious of
\nimpecunious circumstances did not arise at all.\n<\/p>\n
\t41. It is a trite proposition of law that the plaintiff need not in all
\ncases demonstrate his financial ability, by producing the currency or passbook
\netc and prove beyond all reasonable doubts his financial ability.  It should not
\nbe forgotten that in this case, the plaintiff also deposited the entire
\nremaining sale consideration in the Court without even waiting for a decree to
\nbe passed in his favour.\n<\/p>\n
\t42. The learned Counsel for the plaintiff appositely by placing reliance
\non the deposition of D.W.1 would develop his argument to the effect that even as
\nper the case of the first defendant, earlier to 13.07.1989, she took out a draft
\nfor a sum of Rs.20,000\/- (Rupees Twenty Thousand only) for repaying the amount
\nwhich she received from the plaintiff as advance under Ex.A.1 and that itself
\nwould indicate that she was not ready and willing to perform her part of the
\ncontract and that she had already predetermined to rescind Ex.A.1.\n<\/p>\n
\t43. I could see considerable force in the submission made by the learned
\nCounsel for the plaintiff.  The first defendant’s plea that the plaintiff was
\nnot ready and willing is an afterthought and her pleas are nothing but stooges
\ndished out by her to camouflage and conceal her fault.\n<\/p>\n
\t44. The trial Court without adverting to all these facts, simply held that
\nthe time was essence of the contract, even though it is a well settled
\nproposition of law relating to agreement to sell, the time is not the essence of
\nthe contract.\n<\/p>\n
\t45. The learned Counsel for the third defendant would submit that in all
\ncases, relating to immovable property blindly it cannot be taken that time
\nshould not be the essence of the contract, but depending upon the facts of each
\nand every case, time can rightly be taken as the essence of the contract and
\nthat this case is one such a case.  In support of his contention, he relied on
\nthe following decisions:\n<\/p>\n
\t(i) Sobharam v. Totaram reported in A.I.R (39) 1953 NAGPUR 244.\n<\/p>\n
\t(ii) Gomathinayagam Pillai v. Palaniswami Nadar<\/a> reported in AIR 1967
\nSupreme Court 868.\n<\/p>\n
\t(iii) K.Appa Rao v. Balasubramania Gramani<\/a> reported in AIR 1976 MADRAS 70.\n<\/p>\n
\t(iv) K.Suryanarayana Reddy v. C.Chellayyamma reported in AIR 1989 ANDHRA
\nPRADESH 276.\n<\/p>\n
\t(v) Chand Rani v. Kamal Rani<\/a> reported in (1993) 1 Supreme Court Cases 519.\n<\/p>\n
\t(vi) His Holiness Acharya Swami Ganesh Dassji v. Shri Sita Ram Thapar<\/a>
\nreported in 1996 (II) CTC 158.\n<\/p>\n
\t(vii) Seeni Ammal v. Veerayee Ammal<\/a> reported in 1997 (I) CTC 360.\n<\/p>\n
\t(viii) K.S.Vidyanadam and others v. Vairavan<\/a> reported in (1997) 3 Supreme
\nCourt Cases 1.\n<\/p>\n
\t(ix) Vasantha and others v. M.Senguttuvan<\/a> reported in 1998 (I) CTC 186.\n<\/p>\n
\t(x) V.B.Dharmyat v. Shree Jagadguru Tontadrya<\/a> reported in (1999) 6 Supreme
\nCourt Cases 15.\n<\/p>\n
\t(xi) S.Maruthai and another v. Gokuldoss Dharam Doss and four others
\nreported in 1999 (III) CTC 724.\n<\/p>\n
\t(xii) Indravathi v. Kamala<\/a> reported in 2000 (IV) CTC 278.\n<\/p>\n
\t(xiii) Nalluswamy Reddiar v. Marammal and<\/a> 5 others reported in 2000 (I)
\nCTC 484.\n<\/p>\n
\t(xiv) M.M.S.Investments v. Veerappan<\/a> reported in 2000 (I) CTC 538.\n<\/p>\n
\t(xv) Govindappa Naidu v. C.Sidda Chetty and others<\/a> reported in 2003-3-
\nL.W.479.\n<\/p>\n
\t(xvi) M\/s.P.R.Deb & Associates v. Sunanda Roy<\/a> reported in AIR 1996 SUPREME
\nCOURT 1504.\n<\/p>\n
\t46. The perusal of the aforesaid decisions would clearly indicate that
\ndepending upon the facts of each and every case, it could rightly be taken that
\ntime is the essence of the contract relating to the immovable property.  Placing
\nreliance on those decisions, the learned Counsel for the third defendant would
\nput forth his argument unconvincingly that the very fact that by Ex.A.4, the
\ndefendant intended that 11.00 a.m. on 13.07.1989 should be the final time limit
\nfor getting the sale deed executed by the plaintiff from the first defendant, is
\nsufficient to hold that time was the essence of the contract.\n<\/p>\n
\t47. The learned Counsel for the plaintiff would convincingly argue that
\neven such specification of time as 11.00 a.m., cannot be taken as the one that
\nboth sides agreed that time should be the essence of the contract.  The concept
\n‘time is the essence of the contract’ cannot be inferred by mere wordings.
\nSimply because, certain time limit is fixed in an agreement to sell, one cannot
\njump to the conclusion that time is the essence of the contract relating to
\nimmovable property.  Over and above such prescription of time limit, there
\nshould be other proven circumstances to countenance that time is the essence of
\nContract.\n<\/p>\n
\t48. The learned Counsel for the plaintiff cited the recent decision of the
\nHonourable Apex Court in Balasaheb Dayandeo Naik (Dead) v. Appasaheb Dattatraya
\nPawar<\/a> reported in 2008 (1) CTC 530  which would posit the proposition that time
\nis not the essence of the contract relating to the immovable properties.\n<\/p>\n
\t49. The learned Counsel for the third defendant placing reliance on
\nvarious documentary evidence such as Exs.B.2 and B.3, would advance his argument
\nthat the contractor informed the first defendant’s husband that he should pay a
\nsum of Rs.75,000\/- (Rupees Seventy Five Thousand only) at the relevant time so
\nas to enable the builders to purchase the property on behalf of the first
\ndefendant’s husband, so that they would be able to make constructions for the
\nhusband of the first defendant.  According to them, the time duration tallies
\nbetween the agreement to sell and Exs.B.2 and B.3.  However, the learned Counsel
\nfor the plaintiff correctly pointed out that neither in Ex.A.1 nor in the
\nwritten statement, the first defendant stated those facts.  Any amount of
\nevidence unsupported by pleadings should be eshewed.\n<\/p>\n
\t50. Furthermore, in this case, Exs.B.2 and B.3 have not been proved by
\nexamining the contractors and they are only bare communications from those
\nbuilders to the first defendant’s husband.\n<\/p>\n
\t51. At this juncture, I would also highlight that when Ex.A.1 is silent
\nand the written statement also is silent, the communications between the
\nbuilders and the first respondent’s husband would not enure to the benefit of
\nthe first defendant.  Moreover, the legal personality of the ‘first defendant’
\nis different from that of her husband   who was not examined as a witness before
\nthe Court.  Hence, in this view of the matter, it cannot be held that time is
\nthe essence of the contract.  Accordingly, these points are decided in favour of
\nthe plaintiff.\n<\/p>\n
\t52. The learned Counsel for the third defendant would develop his argument
\nto the effect that at any rate, the third defendant is a bona fide purchaser for
\nvalue without notice of the dispute between the parties to Ex.A.1.\n<\/p>\n
\t53. The learned Counsel for the plaintiff would also correctly draw the
\nattention of this Court to Exs.A.9 and A.10,the paper publications.  The perusal
\nof them would reveal that soon after the filing of the suit, the plaintiff made
\na publication in Dinamalar dated 21.07.1989 to the effect that a third party
\nshould not purchase the suit property.  Whereas the first defendant through her
\npower agent Natarajan made a counter publication in the same Dinamalar dated
\n22.07.1989 to the effect that the plaintiff  had committed default and hence, he
\nis having no right to prevent any alienation.\n<\/p>\n
\t54. The fact remains that only by virtue of Exs.A.11 to A.14, subsequently
\nthe third defendant purchased from the said Natarajan, the power agent of the
\nfirst defendant, the properties, so to say, precisely during the pendency of the
\nsuit which would attract the doctrine of ‘lis pendense’.  As such, the sales are
\nhit by the doctrine of ‘lis pendense’.  The facts would further demonstrate that
\nthe first defendant as well as the power agent of the first defendant were fully
\naware of the pendency of the suit and with that knowledge, they sold.\n<\/p>\n
\t55. The learned Counsel for the third defendant would argue that the third
\ndefendant was not aware of such publications.  Inasmuch as, the publications
\nwere made in the daily news papers, the third defendant cannot be heard to
\ncontend that she was not award of the dispute between the plaintiff and the
\nfirst defendant.\n<\/p>\n
\t56. Hence, it cannot be held that the third defendant is a bona fide
\npurchaser for value without notice of it.\n<\/p>\n
\t57. Furthermore, the crucial point is that the doctrine of ‘lis pendense’
\nwould be applicable irrespective of the fact whether the purchaser had knowledge
\nabout the pendency of the suit or not.  Hence, in this view of the matter, the
\nthird defendant is not in a better position to canvass the case of the first
\ndefendant and try to achieve success in the litigative battle.  Accordingly, it
\nis decided that the third defendant has not proved that she is the bona fide
\npurchaser.\n<\/p>\n
\t58. The learned Counsel for the third defendant would advance his argument
\nby drawing the attention of this Court to the deposition of P.W.1 and his
\nevidence that even before Ex.A.1 got itself fructified in the form of a sale
\ndeed emerging in favour of the plaintiff, he had chosen to enter into an
\nagreement to sell with regard to the same property with one Muthiah offered for
\na higher sale consideration of Rs.1,35,000\/- (Rupees One Lakh and Thirty Five
\nThousand only), which demonstrates that the plaintiff was interested in making
\nmoney and not very particular in enjoying the suit property by himself and in
\nsuch a case, specific performance need not be ordered and at the most,
\ncompensation could be awarded in favour of the plaintiff.  In support his
\nproposition, he relied on the decision of the Honourable Apex Court in
\nRamshankar v. Kailasgauri reported in AIR 1974 GUJARAT 69.\n<\/p>\n
\t59. No doubt, the relief of ordering specific performance is a
\ndiscretionary one.  Inasmuch as, it is a discretionary relief, it cannot be
\ntaken that such a discretionary relief should not be granted at all.  At the
\nwhims and fancies, it cannot be denied.\n<\/p>\n
\t60. Here, as has been already highlighted supra, the subsequent purchasers
\nof the property could not prove that they are having bona fide claim over the
\nsuit property.  In such a case, I am at a loss to understand as to how the
\nplaintiff who is otherwise entitled to get the sale deed executed, should be
\ndeprived of it by ordering that he should be satisfied by obtaining damages from
\nthe persons concerned.\n<\/p>\n
\t61. Each and every case has to be analysed based  on its own merits.
\nHere, my finding above would be indicative of the fact that the first defendant
\neven before 13.07.1989, the date for executing the sale deed, determined to
\nrescind the contract and thereby exposed herself.  The doctrine of ‘lis
\npendense’ is applicable as against the third defendant and other purchasers.
\nOver and above that, there is nothing to prove that the third defendant is a
\nbona fide purchaser for value without notice.\n<\/p>\n
\t62. In such view of the matter, the relief as sought by the third
\ndefendant orally that the plaintiff could be compensated instead of specifically
\ngranting the relief of specific performance, cannot be countenanced and upheld.\n<\/p>\n
\t63. I could see no merit in the contention of the third defendant.
\nHowever, without considering all these salient features involved in this case,
\nthe trial Court caught the wrong end of the stick and consequently, fell into
\nerror in simply assuming as though time was essence of the contract and that the
\nplaintiff was not ready and willing.\n<\/p>\n
\t64. In the result, this appeal is allowed, setting aside the judgment and
\ndecree dated 15.12.1992 in O.S.No.50 of 1989 on the file of the Subordinate
\nJudge, Devakottai, PMT District and the original suit is decreed to the effect
\nthat the first defendant shall execute the sale deed transferring the suit
\nproperty in favour of the plaintiff, failing which the Court shall execute the
\nsale deed.  Consequently, connected Miscellaneous Petition is closed.  The
\nParties shall bear their respective costs.\n<\/p>\n
rsb<\/p>\n
To<\/p>\n
The Subordinate Judge,
\nDevakottai,
\nPMT District.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court A.Ramanathan Chetthiar vs R.Ranganayaki on 29 February, 2008 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-171526","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nA.Ramanathan Chetthiar vs R.Ranganayaki on 29 February, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/a-ramanathan-chetthiar-vs-r-ranganayaki-on-29-february-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"A.Ramanathan Chetthiar vs R.Ranganayaki on 29 February, 2008 - 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