{"id":82274,"date":"2010-04-09T00:00:00","date_gmt":"2010-04-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jugraj-vs-p-sankaran-on-9-april-2010"},"modified":"2015-06-20T00:47:39","modified_gmt":"2015-06-19T19:17:39","slug":"jugraj-vs-p-sankaran-on-9-april-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jugraj-vs-p-sankaran-on-9-april-2010","title":{"rendered":"Jugraj vs P.Sankaran on 9 April, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
Jugraj vs P.Sankaran on 9 April, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDated :  09.04.2010\n\nCORAM:\n\nTHE HON'BLE MR.JUSTICE M.DURAISWAMY\n\nSecond Appeal No.699 of 2003 &\nC.M.P.NO.6660 of 2003\n\n1.Jugraj\t\t\t\t\t\t\t      .. Appellant \n\n    Vs\n\n1.P.Sankaran\n2.S.Govindaraj\n3.S.Dorrairaj\n4.Parvathiammal\n5.Kasturi\n6.Krishnaveni\n7.Kamaveni\n8.R.Velu\n9.V.Premalatha\n  (R-8 & R-9 impleaded as per order of \n   court dated 11.7.20023 made in\n   C.M.P.No.6517\/2003) \t                     .. Respondents  \n\n\n\tSECOND APPEAL filed under Section 100 of the Code of Civil Procedure judgment and decree dated 26.02.2002 made in A.S.No.298 of 2000  on the file of  II Additional Judge, City Civil Court, Chennai confirming the Judgment and Decree dated 26.8.1999  passed   in O.S.No.3820 of 1996 on the file of VIII Assistant  Judge, City Civil Court, Chennai \n \n\tFor Appellant\t: Mr.S.Raghavan\n\n\tFor Respondent : Mr.R.Subramanian, Sr. Counsel \n          for MR.S.V.R.Ram Prasad  \n        - for R-1 & R-3  R8 & R-9\n        \n                No appearance  for R-2, R-4, R-5,\n                       R-6 & R-7\n\nJ U D G M E N T\n<\/pre>\n
\t The above Second Appeal arises against the  judgment and decree in A.S.No.298 of 2000  on the file of  II Additional Judge, City Civil Court, Chennai confirming the Judgment and Decree   in O.S.No.3820 of 1996 on the file of VIII Assistant  Judge, City Civil Court, Chennai.\n<\/p>\n
\t\t2.  The plaintiff   in the suit is the appellant    in the above second appeal and the  respondents 1 to 7 are the  defendants   in the suit.  The respondents 8 and 9 are the purchasers of the suit property from the respondents 1 to 7, who were impleaded in the  above second appeal.\n\t\n\t\t3. The plaintiff   filed the  suit in O.S.No.3820 of 1996 on the file of VIII Assistant  Judge, City Civil Court, Chennai for the following reliefs:\n\n\t\t(i) Directing the defendants to specifically perform the agreement of sale dated 12.6.1983 filed as Plaint Document No.1 and to execute the same in his favour of the plaint schedule mentioned property.\n\t\tii) Directing the defendants to deliver to the plaintiff vacant possession of the plaint schedule mentioned property.\n\n\t\tiii) In the event this court comes to the conclusion that specific performance cannot be ordered, then direct the defendants to refund to the plaintiff the advance of Rs.35,000\/- paid by him with interest at 24%  as claimed in the plaint and to charge a   for the said sum with costs on the  plaint schedule mentioned property.\n\n\t\tiv)  Directing the defendants to pay to the plaintiff Rs.20,000\/- as compensation for breach committed by defendants with interest thereon at 24% p.a. from  the date of plaint till date of payment.\n\n\t\tv) Directing the defendants  to pay to the plaintiff  the cost of the suit.\n \n \t \t4. The brief  case of  the plaintiff in the suit is  as follows:-  \n<\/pre>\n
 \t\t (i) According to the plaintiff,  defendants 1 to 3 are the sons of late V.Sundararaja Mudaliar.  Defendants 5 to 7 are the daughters and the fourth defendant is the wife of the said late Sundararaja Mudaliar.   On 12.6.1983, the said V.Sundararaja Mudaliar  and defendants 1 to 3 entered into an agreement of sale with the plaintiff at Chennai.  By the said agreement, they agreed to sell the suit property to the plaintiff for a sum of Rs.1,15,000\/-.  A sum of Rs.25,000\/- was paid by the plaintiff to V.Sundararaja Mudaliar on 15.11.1982 and the said sum of Rs.25,000\/- was treated as part of the advance and the plaintiff paid them a further  sum of Rs. 10,000\/-  on 12.6.1983.  Thus, the plaintiff had paid a total sum of Rs.35,000\/- as advance.\n<\/p>\n
\t\t(ii)  According to the plaintiff, the defendants 1 to 3  and  Sundararaja Mudaliar agreed to deliver vacant possession of the suit property  to him or his nominee at the time of registration of the sale deed  and that the sale deed shall be executed within 15 days from the date on which the defendants 1 to 3 and their father  Sundararaja Mudaliar inform  the plaintiff  that the premises is vacant and ready for delivery.  The plaintiff came to know in or about second week of May 1986 that the tenant in occupation of  the suit property  had vacated it.  Sundararaja Mudaliar had died on 24.11.1984.  On coming to know that the tenant has vacated the premises, the plaintiff  approached the defendants 1 to 4 and requested them to implement the suit agreement.  Since the defendants were evading to  comply with his request, the plaintiff issued a lawyer’s notice dated 2.6.1986  to the defendants 1 to 4 informing that he was ready and willing to pay the balance sale  consideration  and to perform all the essential terms of the agreement of sale to be performed by him and calling upon them to produce Income tax clearance certificate and to inform him  about the date of  registration of the sale deed within 10 days from the date of receipt of the notice.\n<\/p>\n
\t\t(iii) According to the plaintiff, the defendants 1 to 4 sent a reply dated 15.6.1986 wherein, they admitted the execution of the sale agreement but denied the existence of the validity for enforcement  of the same taking a false plea that they had informed the plaintiff on 8.7.1985 that they had kept the premises vacant and asked  him to pay the balance amount and get the sale deed  executed.  Since the plaintiff had failed to fulfill  the terms of agreement, they had cancelled the agreement by their letter dated 17.9.1985.  In the reply dated 15.6.1986, the defendants had also stated  that the plaintiff met the fourth defendant and informed her that he was not willing to purchase the property and that he would  return the  agreement after  due cancellation.  Since he did not return the cancelled agreement, on 20.1.1986 the first defendant had sent  another letter demanding return of the cancelled agreement.  In the reply, the defendants had also alleged that in view of the damages caused to them, they had informed the plaintiff that the advance amount would be forfeited and that as  the plaintiff  was  was demanding  return of 50% of the amount, negotiations were going on and that the plaintiff was withholding the agreement.\n<\/p>\n
\t\t(iv) According to the plaintiff, the defendant  had not informed him on 8.7.1985 that they had kept the premises vacant.  The plaintiff  had also not received the letters dated 17.9.1985 or 20.1.1986 from the defendants.  The plaintiff sent his lawyer’s rejoinder dated 5.7.1986 denying the defendants’ false statements and allegations made in the plaint  and called upon the defendants to inform him  of the date of registration of the sale deed to which he had not received any reply from the defendants.  The above facts and events clearly establish the defendants’ unwillingness  to complete  the sale transaction  as per the terms of the agreement.\n<\/p>\n
\t\t(v) According to the plaintiff,  he was always ready and willing   to  perform the terms of agreement of sale.  The plaintiff  is ready and willing to pay the balance of sale consideratin and comply with all the other terms and conditions in the agreement.\n<\/p>\n
\t\t(vi) According to the plaintiff, in addition to the relief of specific performance, he  is also entitled for compensation from the  defendants for the breach committed by them.  The plaintiff had  also suffered  loss of interest or return of advance amount of Rs.35,000\/-.  The plaintiff estimated for the  present compensation payable by the defendants  at Rs.20,000\/-.  In the event of  the court holding that for any reason, the plaintiff is not entitled to the relief of  specific performance, the plaintiff prayed for  a decree for the refund of advance amount of Rs.35,000\/- with interest at 24%   from the date of payment of the respective advance amount i.e, on Rs.25,000\/- from 15.11.1982 and on Rs.10,000\/- from 12.6.1983.  Therefore, the  plaintiff   filed the suit.\n<\/p>\n
\t\t5. The  brief case of  the defendants are  as follows:\n<\/p>\n
\t\t(i)  According to the  defendants, they admitted the execution of the sale agreement dated 12.6.1983 for the sale of the suit property.  The defendants also accept the receipt of the sum of Rs.35,000\/-. According to the defendants, the entire property was in their occupation except a small portion  which was in possession of one Udayakumar. Since the property was old and dilapidated, the portion under the occupation  of the tenant Udayakumar completely fell down in the year  1984 during heavy rain.  The plaintiff and  his brother also came  to the property and  personally saw  the damaged portion.  Therefore, the plaintiff was well aware that the property was ready for handing over  vacant possession as early as in November 1984.\n<\/p>\n
\t\t(ii) According to the defendants,  Sundararaja Mudaliar  died on 27.12.1984.  In view of the death of   Sundararaja Mudaliar and also to meet the other family necessities, the defendants were badly in need of money.  The second defendant contacted the plaintiff and requested him to pay the balance amount and to get the sale deed executed.  However, the plaintiff was evading in paying the balance sale consideration and also getting the sale deed in his favour.  In these circumstances, the second defendant sent a letter dated 8.7.1985 to the plaintiff and informed him that  the entire property was lying vacant and was  ready for handing over possession and to get the plaintiff’s sale deed  executed.  The plaintiff did not send any reply. Therefore, by letter dated 17.9.1985, second defendant cancelled the agreement dated 12.6.1983 and called upon the plaintiff to return the agreement.  The second defendant also informed that the advance amount paid under the sale agreement was forfeited in view of the breach committed by the plaintiff.  Immediately, plaintiff  met the second defendant in person and informed him that the plaintiff is not interested in purchasing the property.  The  plaintiff also agreed to return the agreement after consulting his counsel.  Since the defendants were not able to get the balance of sale consideration from the plaintiff or were not able to sell the property to  any third parties to raise money, they were put to heavy damages and difficulties including borrowal of money for heavy interest from outsiders.  Since the defendant thought fit  to raise funds atleast by mortgaging the property, they wanted the original title deeds from the plaintiff.  In the said circumstances, the second defendant called upon the plaintiff to return the cancelled agreement and also the title deeds of the properties.  The plaintiff compelled  the second defendant to pay 50% of the advance amount in which case only he will return the title deeds.\n<\/p>\n
\t\t(iii) According to the defendants, they  have not  committed breach of the terms of the agreement dated 12.6.1983,  and it is false to state that the defendants never informed about the vacant  possession of the property.  The plaintiff was personally aware of the vacant possession of the  property and he was duly informed by letter dated 8.7.1985 sent by the second defendant.  The plaintiff actually slept over  the matter and due to appreciation of  the  price in the locality, now wants to purchase the same.  The property is now worth Rs.3,50,000\/- and the plaintiff wants to get the same.  The plaintiff failed to perform  his  part of the contract within time.  Immediately after the receipt of the lawyer’s notice  dated 2.6.1986 sent by the plaintiff, the defendants sent reply dated 15.6.1986.   The plaintiff  sent rejoinder dated 5.7.1986.  Even after that, the plaintiff had been deliberately  avoiding to take  action and  seems to have come to the court only in March 1987.  This itself will show   that the deliberate and supine  indifference  on the part of the plaintiff and also his negligence to  perform his part of the  agreement.  The agreement dated 12.6.1983 is barred  by limitation and the plaintiff has no right to ask for enforcement of the same.  The defendants are entitled to forfeit the amount paid under the sale agreement.  The defendants  are not liable to pay any amount to the plaintiff by way of return.  The plaintiff is not entitled  for a decree for specific performance or for return of any amount.  Therefore,  the defendants prayed for dismissal of the suit.\n<\/p>\n
\t\t6. Before the trial court, on the side               the plaintiff,  plaintiff was examined as P.W.1    and 8 documents, Ex.A-1 to Ex.A-8 were marked and on the side of the defendants, first defendant was examined as D.W.1 and  6 documents, Ex.B-1 to Ex.B-6 were marked.\n<\/p>\n
\t\t7. The trial court after taking into consideration, the oral and documentary evidences of both the parties,  dismissed the suit  in respect of specific performance and damages  and  decreed the suit in respect of  prayer for  refund of advance amount of Rs.35,000\/- together with interest at Rs.18% per annum.\n<\/p>\n
\t\t 8. Aggrieved over the judgment and decree of the trial court, the plaintiff   preferred  appeal in A.S.No.298 of 2000  on the file of  II Additional Judge, City Civil Court, Chennai  and the lower appellate court  also after taking into consideration the materials available on record, confirmed the judgment and decree of the trial court and dismissed the appeal.\n<\/p>\n
\t\t9. Aggrieved over  the  judgments and decrees of the courts below, the plaintiff has  filed the above second appeal.\n<\/p>\n
\t\t10.  C.M.P.No.6660 of 2003 has been filed by the petitioner-appellant to receive additional documents.  According to the petitioner-appellant,  the respondents 8 and 9 are the purchasers of the suit property from respondents 1 to 7\/defendants 1 to 7 by a deed of sale  dated 14.9.2000.  The said fact was brought to the notice of the appellant-plaintiff by a registered letter dated 21.9.2003  by the first respondent\/first defendant.  Therefore, petitioner-appellant has filed C.M.P.No.6660 of 2003  to permit the petitioner to produce the sale deed dated 14.9.2000 in favour of respondents 8 and 9 and the letter dated 29.1.2003 written  by the first respondent  to the petitioner-appellant as additional document.  The respondents did  not file  any counter.\n<\/p>\n
\t\t11.  Heard Mr.S.Raghavan, learned counsel appearing for the appellant, Mr.R.Subramanian, learned counsel for  the  respondents 1, 3, 8 and 9.\n<\/p>\n
\t\t12. At the time of admission of the above Second Appeal,  the  following substantial questions  of law arose for consideration:-\n<\/p>\n
\t  “i) Whether the Courts below is right in holding  that presumption under section 114 of Indian Evidence Act can be raised of receipt of Exs. B-2, B-4 and B-6 by appellant, when they were purported to have been sent by second respondent alone under certificate of posting admittedly after differences had arisen between the parties and  when 2nd respondent was not examined even though he was a vailable for examination in spite of denial of receipt thereof by appellant in Ex.A-3 reply notice, pleadings and evidence, when it has been held by the  Supreme court in  the decisions set out in Ground No.3 that certificate of posting is easy to procure and cannot be relied on and presumption u\/s.114 of Evidence Act cannot be raised?\n<\/p>\n
\tii) Whether the courts below is right in relying on Exs.B-1 to B-6 to negative the appellant’s suit for the  reliefs of (i) specific performance \/ or (ii) compensation prayed for in the sit,  when the said documents are inadmissible  in evidence?”\n<\/p>\n
\t\t13.  With regard to C.M.P.No.6660 of 2003 filed in the above second appeal to produce the registered copy of the sale deed dated 14.9.2000 executed in favour of respondents 8 and 9 in respect of the suit property by respondents 1 to 7 and the original  of the letter dated 29.1.2003 written by the   first respondent  to the appellant with postal cover informing the sale of the suit property in favour of the respondents  8 and 9 as additional documents.  The respondents did  not file  any counter.  The learned senior counsel for the  respondents have no objection for producing the above said documents as additional evidence. Therefore,  the sale deed dated 14.9.2000 is marked as  Ex.A-9 and the letter dated 29.1.2003 is marked as Ex.A-10.  Therefore, the CMP No.6660 of 2003 stands allowed.\n<\/p>\n
\t\t14. On a careful consideration of the materials available on record and the  submissions made by both the learned counsels, it could be seen that  it is not in dispute that  V.Sundararaja Mudaliar (who is the husband of the fourth respondent and father of respondents 1 to 3 and 5 to 7) entered into Ex.A-1 agreement of sale dated 12.6.1983 with the appellant-plaintiff. The sale consideration mentioned in Ex.A-1 sale agreement is  Rs.1,15,000\/-.  It is also not in dispute that the appellant paid a sum of Rs.25,000\/- on 15.11.1982 and a further sum of Rs.10,000\/- on the date of the agreement i.e., on 12.6.1983.  The appellant has paid a total sum of Rs.35,000\/- as advance.  On the date of Ex.A-1 agreement, the front portion of the suit property was leased out to one Udayakumar and the remaining tiled portion was occupied by the respondents  1 to 7.\n<\/p>\n
\t\t15. According to the respondents 1 to 7,  Sundararaja Mudaliar  died on 27.12.1984.  The suit was originally filed before this court on 25.3.1987 and subsequently transferred to the City Civil Court on 23.2.1996.  since the said   Sundararaja Mudaliar died on 25.12.1984, therefore, the suit was filed as against his legal representatives, who are respondents  1 to 7.\n<\/p>\n
\t\t16. According to the appellant-plaintiff, he was always ready and willing to perform his part of the contract and that since the respondents  could not deliver vacant possession of the leased out portion, they were not in a position to execute the sale deed in his favour.  But according to the respondents, the second respondent  wrote Ex.B-2 letter dated 8.7.1985 to the appellant informing him that the tenant Udayakumar left the property, since the portion completely fell down as early  as in November 1984 due to heavy rains and called upon the appellant to pay the balance money within 15 days.  By Ex.B-4 letter dated 17.9.1985, the second respondent  cancelled the agreement dated 12.6.1983, since the appellant  failed to pay the balance sale consideration.  The second respondent also requested the appellant to return the title deeds  and the original agreement.\n<\/p>\n
\t\t17. By Ex.B-6  letter dated 20.1.1986, the second respondent called upon the appellant to return the original document.  By Ex.A-2 lawyer’s notice dated 2.6.1986, the appellant informed the respondents 1 to 4 that he is ready and willing to pay the balance sale consideration and ready for registration.  The respondents 1 to 4 sent Ex.A-3 reply dated 15.6.1986 informing that  entire premises was kept vacant and that since the appellant failed to pay the balance sale consideration as stated in the  letter dated 8.7.1985, they cancelled the agreement by letter dated 17.9.1985.  Therefore,  expressed their regret  that they cannot comply with the appellant’s demand.\n<\/p>\n
\t\t18. By Ex.A-4 rejoinder dated 5.7.1986, the appellant stated that he did not receive the letter   dated 8.7.1985, 17.9.1985 and 20.1.1986 about the cancellation of the agreement.   After the issuance of the above said notice, reply and rejoinder, the appellant had filed the suit in O.S.No.248 of 1987 on the file of this court on 25.3.1987.  Subsequently, the suit was transferred to  the file of City Civil Court, Chennai on 23.2.1996.\n<\/p>\n
\t\t19. With regard to the plea of readiness and willingness of the appellant-plaintiff, the appellant has specifically stated  in the plaint that he was always ready and willing to perform his part of the contract.  As per section 16-C of the Specific Relief Act, the readiness and willingness of the plaintiff must be pleaded and proved.  With regard to  the proof of readiness and willingness, the appellant has not examined any independent witness  other than his own evidence.  That apart, the appellant  did not produce any document to prove the plea of readiness and willingness.  With regard to the readiness as P.W.1, he has stated that  he is a money lender and he was having sufficient funds to perform his part of the contract.  To substantiate the same,  he has not even filed a single document to show that he was having sufficient funds to complete the sale  from the date of agreement till the date of filing of the suit.  In the absence of any proof,  the  appellant cannot sustain the plea of readiness and willingness.\n<\/p>\n
\t\t20.  In the judgment reported in 2009(7) MLJ 640 (S.Andal and another v. K.Chinnasamy), the Division Bench of this court held that  in the absence of any acceptable evidence to show that the plaintiff  possessed sufficient  funds, the plaintiff is not entitled for a decree for specific performance.\n<\/p>\n
\t\t21. Learned counsel appearing for the appellant submitted that since the respondents 1 to 7 had sold the property  to respondents 8 and 9 on 14.9.2000, the subsequent purchasers are not entitled to raise the plea of readiness and willingness against the appellant-plaintiff and that they can only prove that  they were bonafide purchaser for the value without notice.  In support of  the said contention, learned counsel appearing for the appellant relied upon a judgment reported in AIR 2007 SC 2663 (M.M.S. Investments, Madurai and Ors. v. V.Veerappan and Ors),<\/a> wherein it is held as follows:-\n<\/p>\n
\t“5. 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 Awadhs 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 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.”\n<\/p>\n
\t\t22.  Learned  senior counsel appearing for the respondents submitted that  the appellant was never willing and ready to perform his part of the agreement and  that even the subsequent purchasers can raise the plea of readiness and willingness against the appellant.  In support of  the said contention, learned senior counsel  relied upon the following judgments:\n<\/p>\n
\t(i)  2000(2)SCC 428 (Ram Awadh (dead) by LRs and others v. Achhaibar Duby and another),  which reads  as follows:-\n<\/p>\n
\t“The obligation imposed  by section 16 is upon the court not to grant specific performance to a plaintiff who has not met the requirements of  clause (a), (b) and (c)   thereof. A  court may not, therefore, grant to a plaintiff who has failed to aver and to prove ;that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks.  There is, therefore, no question of the plea being available to one defendant  and not to another.  It is open to any defendant to contend and establish that  the mandatory requirement of Section 16(c) has not been complied with  and it is for the court to determine whether it has or has not been complied with and, depending upon its conclusion, decree or decline to decree the suit.”\n<\/p>\n
\t(ii) AIR 2000 SC 860 ( Ram Awadh (decd) by L.Rs and others v. Achhaibar Dubey and another)
\n\t\tIn the above judgment, the Hon’ble  Apex Court held that the plea that the plaintiff is ready and willing to perform his contract is available to vendor and also to the subsequent purchaser and even to the legal representatives of the subsequent purchasers and even to all the legal representatives of the subsequent purchasers.\n<\/p>\n
\t(iii) 2009(3) LW 911 (Azhar Sultana v. B.Rajamani and others<\/a>) wherein it is held as follows:\n<\/p>\n
\t “It is well settled principle  of law that not only the original vendor but also the subsequent purchase would be entitle to raise a contention that the plaintiff was not ready and willing to perform his part of the contract.  The apex court also held that section 16-C of the Specific Relief Act,  willingness on the part of the plaintiff and it is a condition precedent for obtaining a relief of grant of specific performance of contract.”\n<\/p>\n
\t\t23.  Therefore, applying the principles laid down in the above  judgments, it is clear that the subsequent purchaser i.e., respondents 8 and 9, who were impleaded in the above second appeal, are entitled to raise the plea that the appellant  was not ready and willing to perform  his part of the contract.  Therefore,  as already found, since the appellant  had failed to establish that he was always ready and willing to perform his part of the contract and since the appellant failed to comply with  the mandatory provision of section 16-C of the Specific Relief Act, the appellant is not entitled for the relief of specific performance.\n<\/p>\n
\t\t24. The learned senior counsel appearing for the respondents submitted that by judgment and decree in O.S.No.3810 of 1996, the trial court dismissed the prayer for specific performance and damages, however, granted the alternative relief of refund of the advance amount of Rs.35,000\/- with interest at 18% per annum.  The decree was passed on 26.8.1999.   After the decree in O.S.No.3810 of 1996, the respondents 1 to 7 in compliance of the decree sent a sum of Rs.1,42,000\/- to the appellant,  by demand draft dated 14.7.2000, being the amount payable to him as per the decree.  The said amount pertains to the advance amount paid by the appellant together with interest  at the rate of 18% per annum.  The appellant acknowledged  the receipt of the said demand draft on 19.7.2000 and according to the learned senior counsel for the respondents  the demand draft was encashed  by the appellant on 20.07.2000.\n<\/p>\n
\t\t25. The learned senior counsel for the respondents  submitted that  the appellant-plaintiff filed the first appeal before the lower appellate court on 27.4.2000  and  during the pendency of the appeal, the appellant had received the advance  amount as decreed by the trial court from the respondents, therefore, the appeal is not maintainable, since the appellant was satisfied with the  decree and got back the advance amount together with interest.\n<\/p>\n
\t\t26. In AIR 1990 MADRAS 361 (Annapoorani Ammal (died)and others v. Ramaswamy Naicker and others), the Full Bench of this court went into the above point and held that appeal by a plaintiff obtaining only the alternative relief of refund of earnest money or advance money and   who has been denied the relief of specific performance is competent appeal and that in sofar as the first court denied him the relief of specific performance, the plaintiff must be held to be aggrieved person.\n<\/p>\n
\t\t27. Learned counsel appearing for the appellant submitted that though  the appellant had received the above   amount as decreed by the trial court, that will not prevent  the appellant from appealing against the rejection of the relief of specific performance.  In support of the said contention, the learned counsel relied upon the judgment reported in 1970(3) SCC 140 (R.C.Chandiok and another v. Chuni Lal Sabharwal and others, wherein, the Apex Court held as follows:\n<\/p>\n
\t\t“The fact that the appellant withdrew the earnest money during the course of the appeal does not affect his right to a decree for specific performance.  The rule that a  party cannot approbate and reprobate  cannot be applied to the facts and circumstances of the case.”\n<\/p>\n
\t\t28. Therefore, in view of the above referred judgments, it is clear that  the appeal filed by the plaintiff is maintainable, since he is aggrieved by the rejection of his prayer for specific performance.\n<\/p>\n
\t\t29. The learned counsel appearing for the appellant  submitted that since Exs. B-2, B-4 and B-6 were sent by certificate of posting and since the respondents failed to examine  the author of the document,  the documents are liable to be rejected.  In support of the said contention, he relied upon  the following judgments:\n<\/p>\n
\t\t(i) 2009(9) SCC 221 (Malay Kumar  Ganguly v. Dr.Sukumar Mukherjee),<\/a> wherein it is held as follows:\n<\/p>\n
\t“37. It is true that ordinarily if a party to an action does not object to a document being taken on record and the same is marked as an exhibit, he is estopped and precluded from  questioning the admissibility thereof at a later stage.  It is, however, trite that a document becomes inadmissible in evidence unless the author thereof is examined; the contents  thereof cannot be held to  have been proved unless he is examined and subjected to cross-examination in a court of law.  The   document which is otherwise inadmissible cannot be  taken  in evidence only because no objection to the admissibility thereof was taken.”\n<\/p>\n
\t(ii) 1981 (3) SCC 317 ( Ummu Saleema v. B.B.Gujaral)<\/a> wherein it is held as follows:\n<\/p>\n
\tIn the above judgment the Hon’ble Apex court held that in the case of a letter posted under  certificate of posting, no conclusive presumption arises that it was received.\n<\/p>\n
\t\t30. It is true that in the case of  letter posted under certificate of posting,  no conclusive presumption arises that it was received.  However, Exs. B-2, B-4 and B-6  letters  are not statutory notices.  They are  only  letters written by the second respondent to the appellant.  Even assuming that the said letters were not received by the appellant, By Ex.A-3, reply dated 15.3.1986, the respondents 1 to 4 have clearly sated that   by letter dated 8.7.1985 they called upon the appellant to pay the balance sale consideration and get the sale deed executed.  They also stated that by letter dated 17.9.1985, they cancelled the agreement dated 12.6.1983 and called upon the appellant to return the agreement.  The appellant did not dispute the receipt of Ex.A-3 reply.  That being the case,  the appellant was well aware  that atleast on 15.6.1986  that Ex.A-1 agreement was cancelled by the respondents.  The appellant sent Ex.A-4 rejoinder dated 5.7.1986 wherein, they disputed the receipt of Ex.B-2, B-4 and B-6 letters.  However, the appellant having come to know about the cancellation of Ex.A-1 agreement on 15.6.1986,   preferred to file the  suit only on 25.3.1987  In support of the said contention, the learned senior counsel appearing for the respondents relied upon a judgment reported in 2010(2) LW 13 S.N. (B.Nemi Chand Jain and another av. G.RAviandran), wherein it is  held that the delay in filing the suit would  operate either as acquiescence  or as waiver or as abandonment or atleast make it inequitable, to grant the relief of specific performance to the appellant.\n<\/p>\n
\t\t31. The learned   counsel appearing for the appellant relied upon the   judgment  reported in  1993(1) SC 579 (Chand Rani v. Kamal Rani),<\/a> wherein the apex court held as follows:\n<\/p>\n
\t“As a general proposition of law, in the case of sale of immovable property there in no presumption as to time being the essence of the contract.  Even if it if not of  the contract the Court may infer that it is to be performed in a reasonable time  if the conditions are evident;\n<\/p>\n
(i)from the express terms of he contract\n<\/p>\n
(ii)from the  nature of he property ; and\n<\/p>\n
(iii)from the surrounding circumstances, for example: the object of making the contract.”\n<\/p>\n
\t\t32. Even if  time is  not the essence  of the contract, the contract is to be performed in a reasonable time.  It is also settled principle that even though time is not the essence of the contract, the parties under such agreement have to perform their obligations within a reasonable time, if certain conditions are existing.  As per Ex.A-1 agreement,  the sale deed shall be executed within 15 days from the date on which the vendor informed  the purchaser that the said premises is vacant and ready for delivery.  Though no time limit was fixed for the respondents to keep the premises ready for vacant possession, but, on the other hand, 15 days time was fixed for the vendors to inform  the purchaser  with regard to the execution of the sale deed   after getting the vacant possession.  Though the terms   of the contract does not indicate that the time was the essence of the contract, but the sale deed should be executed within the fair and reasonable time for the simple reason that  the respondents 1 to 7 were in distress  and suffering from paucity of funds.  Since the  respondents 1 to 7 entered into Ex.A-1 agreement only to wipe out the  debts,  the appellant  should have performed his part of the contract within a reasonable time.\n<\/p><\/blockquote>\n
\t\t33. Therefore applying the principles laid down in the above judgment, it is clear that the delay in filing the suit, it would  operate either as acquiescence  or as waiver or as abandonment or atleast make it inequitable, to grant the relief of specific performance to the appellant-plaintiff.\n<\/p><\/blockquote>\n
\t\t34. With regard to the escalation of  price of the land, the learned senior counsel  for the respondents submitted that  the market price  of the value escalated multi-fold and same should be taken into consideration.  In support  of the said contention,  the learned senior counsel relied upon a judgment reported in 2009(3) MLJ 376 (M.Ranganathan v. M.Thulasi Naicker (decd) and others), wherein, this court held that the though the increase  in price may not be a ground for refusing decree for specific performance, escalation of price of the land will have to be necessarily kept in view.\n<\/p><\/blockquote>\n
\t\t35. It  is not in dispute that the agreement was  entered in the year 1983 and the value of the land had necessarily escalated multi-fold.  Since the respondents had already sold the property  to respondents  8 and 9 at a higher price it also proves the contention of the respondents that value of the suit property increased multifold.\n<\/p><\/blockquote>\n
\t\t 36. Since it is found that the appellant failed to prove his readiness and willingness to perform  his part of the contract, which  is a mandatory provision   under section 16-C  of the Specific Relief Act, the  appellant is not entitled for the relief of specific performance.    The courts below  have rightly  rejected the relief of specific performance and decreed the alternative relief of refund of the advance amount.\n<\/p><\/blockquote>\n
 \t\t37. In these circumstances, I find no ground much less substantial question  of law to  interfere with the  concurrent findings of the courts below.  The  above  second appeal  is liable to be dismissed.  Accordingly, the above Second Appeal is dismissed and C.M.P.No.6660 of 2003 is ordered.    However, there shall be no order as to costs. \n\n\n\n\n\n\n\n\n\nrj\n\nTo\n\n1. II Additional Judge, \n   City Civil Court,Chennai.\n\n2. VIII Assistant  Judge, \n   City Civil Court, \n   Chennai\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Jugraj vs P.Sankaran on 9 April, 2010 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 09.04.2010 CORAM: THE HON’BLE MR.JUSTICE M.DURAISWAMY Second Appeal No.699 of 2003 & C.M.P.NO.6660 of 2003 1.Jugraj .. Appellant Vs 1.P.Sankaran 2.S.Govindaraj 3.S.Dorrairaj 4.Parvathiammal 5.Kasturi 6.Krishnaveni 7.Kamaveni 8.R.Velu 9.V.Premalatha (R-8 & R-9 impleaded as per order […]<\/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-82274","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nJugraj vs P.Sankaran on 9 April, 2010 - 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\/jugraj-vs-p-sankaran-on-9-april-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Jugraj vs P.Sankaran on 9 April, 2010 - 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