Case Note & Summary
The appellant/defendant Sebastian filed an appeal against the judgment and decree dated January 3, 2017 passed by the Principal District Court, Thiruvarur in O.S. No.11 of 2014, which decreed specific performance in favor of the respondent/plaintiff Kattari @ Selvaraj. The suit properties belonged to the defendant, who had purchased them through registered sale deeds. On December 20, 2010, the defendant agreed to sell the suit properties to the plaintiff for Rs.13,00,000/- and received Rs.4,00,000/- as advance, executing an unregistered sale agreement. The agreement stipulated that the plaintiff would pay Rs.3,00,000/- on or before April 30, 2011, and the balance of Rs.6,00,000/- on or before April 30, 2012. The plaintiff claimed he was always ready and willing to perform his part, but the defendant failed to execute the sale deed. The defendant admitted the agreement and receipt of advance but contended that the plaintiff was not ready and willing, did not make payments on time, and the suit was barred by limitation. The defendant also filed O.S. No.85 of 2012 for permanent injunction against the plaintiff. The trial court framed issues on entitlement to specific performance and limitation. The plaintiff examined himself as P.W.1 and one Balasubramanian as P.W.2, and marked Ex-A.1 to Ex-A.4. The defendant examined himself as D.W.1 and marked Ex-B.1 to Ex-B.3. The trial court decreed the suit, holding that the plaintiff was ready and willing and the suit was within limitation. The High Court, on appeal, analyzed the evidence and found that the plaintiff failed to prove readiness and willingness as he did not deposit the balance amount or show financial capacity. The court also held that the suit was barred by limitation as it was filed beyond three years from the last date fixed for performance (April 30, 2012). The High Court allowed the appeal, set aside the trial court decree, and dismissed the suit for specific performance. However, the court directed the defendant to return the advance amount of Rs.4,00,000/- with interest at 6% per annum from the date of suit till realization, and also directed the plaintiff to pay the defendant a sum of Rs.3,00,000/- (the second installment) with interest at 6% per annum from the date of suit till realization, as the defendant had offered to return Rs.7,00,000/- on moral grounds.
Headnote
A) Specific Relief Act, 1963 - Section 16(c) - Readiness and Willingness - Plaintiff must plead and prove continuous readiness and willingness to perform his part of the contract from the date of agreement till the decree - In the instant case, plaintiff failed to deposit balance sale consideration or prove financial capacity - Held that mere filing of suit does not prove readiness and willingness (Paras 10-15). B) Limitation Act, 1963 - Article 54 - Suit for Specific Performance - Limitation period of three years from date fixed for performance, or if no date fixed, when plaintiff has notice that performance is refused - In this case, time was not expressly made essence but parties fixed dates for payment - Suit filed beyond three years from last date of performance was barred by limitation (Paras 16-18). C) Contract Act, 1872 - Section 55 - Time Essence of Contract - Even if time is not expressly made essence, where parties fix a specific date for performance, time may be considered essence if circumstances indicate intention - Held that in sale of immovable property, time is not ordinarily essence, but where parties fix dates for payment and performance, delay may disentitle specific performance (Paras 12-14).
Issue of Consideration
Whether the plaintiff was ready and willing to perform his part of the contract and whether the suit for specific performance was barred by limitation.
Final Decision
Appeal allowed. Judgment and decree dated January 3, 2017 in O.S. No.11 of 2014 set aside. Suit for specific performance dismissed. Defendant directed to return Rs.4,00,000/- advance with interest at 6% per annum from date of suit till realization. Plaintiff directed to pay Rs.3,00,000/- (second installment) with interest at 6% per annum from date of suit till realization.
Law Points
- Specific performance
- readiness and willingness
- time essence of contract
- limitation
- Section 16(c) Specific Relief Act
- 1963
- Section 54 Transfer of Property Act
- 1882
