Vellingiri Gounder (died)2 v. Ayyaswami (died)2

IN THE HIGH COURT OF JUDICATURE AT MADRASDated:23.11.2007Coram: The Honourable Mr. Justice V. DHANAPALANA.S. No.1150 of 19931Vellingiri Gounder (died)2Rajendran3Mahendran4SethuramalingamAppellants/Plaintiff(Appellants 2 to 4 brought on record as Lrsof the deceased sole appellant as per order of Court dated 07.01.1998 in CMP No.609 to 611 of 1996)vs.1Ayyaswami (died)2Pappathi Ammal3Radhakrishnan4Shanmugam5ArumugamRespondents/Defendant(RR 2 to 5 brought on record as LRs of thefirst respondent vide as per order of Courtdated 04.07.2002 made in CMP Nos.7097 to 7099 of 2000)Appeal filed under Section 96 of Code of Civil Procedure againstthe judgment and decree dated 26.02.1993 made in O.S.No.711 of 1987 onthe file of the II Additional Subordinate Judge of Coimbatore.For appellantsMr. M.DuraisamyFor respondentsMr. Govi GanesanJ U D G M E N TThe unsuccessful plaintiff in O.S. No.711 of 1987 before the IIAdditional Subordinate Judge, Coimbatore is the appellant herein andhis Legal Representatives have since been brought on record subsequentto his death. Similarly, the Legal Representatives of the deceaseddefendant also have since been brought on record.2The case of the appellant/plaintiff, as could be seen from theplaint, is as under: https://hcservices.ecourts.gov.in/hcservices/ aThe suit property which originally belonged to theplaintiff, was sold to the defendant for a consideration ofRs.50,000/- by way of a registered sale deed dated 07.05.1984 andon the same day, possession of the suit property was also handedover to the defendant. bOn the same day, the defendant also entered into a saleagreement with the plaintiff to the effect that he would executea sale deed in favour of the plaintiff in respect of the suitproperty provided the latter pays a sum of Rs.50,000/- within aperiod of three years and a sum of Rs.50,000/- was also receivedby the defendant as advance. cBefore the expiry of the sale agreement, the plaintiffhad informed the defendant that he was prepared to get the saledeed executed and had also sent a telegram to the defendant inthis regard and this telegram was returned since the defendanthad refused to receive it. The plaintiff had also met thedefendant in person and had asked him to execute the sale deedwhereas the defendant had turned deaf ears without any reason andthe plaintiff's efforts through a mediator by name Rajappan boreno fruits. The plaintiff was in possession of the balance amountof Rs.49,000/- to be paid to the defendant and was also preparedto deposit the same before the Trial Court to get the sale deedexecuted through the court.dThe defendant was liable to compensate the plaintiff @Rs.750/- per month for possession and enjoyment of the suitproperty. Though the Registrar had handed over the original saledeed to the defendant on the date on which it was entered into,the defendant had not returned the same and had given only thephotocopy of the same and hence, the suit.3In reply, the defendant filed his written statementcontending that:awhen the re-conveyance agreement dated 07.05.1984 was notexecuted within a period of three years as agreed to in it, thesuit filed by the plaintiff on 15.07.1987 is barred bylimitation;bthe plaintiff was never prepared to get the sale deedexecuted and had in fact, borrowed a sum of Rs.10,000/- from thedefendant's wife by way of a promissory note dated 26.06.1984besides getting a sum of Rs.5,000/- and in lieu of interest forthe said amount, he let out his house to the defendant's wife andan agreement also was entered into in this regard on 07.10.1985;c.the plaintiff never had the wherewithal to pay thebalance amount of Rs.49,000/- and as such, he was not at allprepared to get the sale deed executed in terms of the agreement https://hcservices.ecourts.gov.in/hcservices/ and the mere fact that he had not deposited the balance amount inthe Trial Court itself would prove that he was not willing to actas per the terms of the agreement; andd.the plaintiff is not entitled to receive any sum ascompensation and had also not sent any telegram and as such, thesuit had to be dismissed.4On the side of the plaintiff, the plaintiff examined himselfas P.W.1 besides marking three exhibits, namely, sale agreement dated07.05.1984, true copy of the telegram sent by him to the defendant andthe certificate of the Superintendent of the Telegraph office. Whileno document was marked on the side of the defendant, he himself wasexamined as D.W.1.5.The Trial Court, on consideration of the case of theparties, framed the following issues for consideration:a.Whether the plaintiff is entitled to get the relief ofspecific performance in terms of sale agreement dated 07.05.1984?b.whether the suit is barred by limitation?c.Whether the plaintiff is entitled to get compensation;d.to what other relief, the plaintiff is entitled to?6.On an analysis of the oral and documentary evidence, theTrial Court, holding that the suit filed by the plaintiff is barred bylimitation, has further held that the plaintiff is not entitled to therelief of specific performance since Ex.D.3 merely reads that thetelegram has been rejected by the defendant's family members and doesnot clearly state by whom it has been rejected and also for the reasonthat the plaintiff has failed to examine anyone from the Telegraphoffice as witness. Holding so, the Trial Court has dismissed the suitwith costs. 7.Heard Mr. Duraisamy, learned counsel for the appellant andMr. Govi Ganesan, learned counsel for the respondents.8.The learned counsel for the appellants has contended that:a.the Trial Court has failed to appreciate that Ex.A.1,the sale agreement dated 07.05.1984 does not disclose theingredients of an agreement to re-convey more so, when it doesnot even style itself as a contract to re-convey;b.the Court below has failed to consider that in cases ofa contract to re-convey, the stipulation has to be complied withwithin the stipulated period and there can be only onestipulation and nothing more; https://hcservices.ecourts.gov.in/hcservices/ c.the Court below has also failed to appreciate thatconsideration for a contract to re-convey is the earlier sale infavour of the party agreeing to re-convey and there cannot be anyother consideration;d.the Trial Court has erred in not appreciating that theconsideration for Ex.A.1 is the payment of advance of Rs.1,000/-and has also committed an illegality in not referring to thepenal clause and the reason for introducing the penal clausewhich alone is sufficient to prove Ex.A.1 and this aspect has notbeen looked into by the Trial Court;e.the Court below has failed to appreciate that the veryfact that an advance was paid clearly indicates or discloses theintention of the parties to treat Ex.A.1 only as a contract topurchase the suit property; andf.the Court below has failed to appreciate that theparties have used the words “sale agreement” instead of Agreementof Re-conveyance and introduced the clause such as receipt ofcertain amount as advance.9.The learned counsel for the appellants, in support of hisstrenuous contention that the suit is within the period of limitation,has relied on Ex.A.2, the telegraphic notice dated 06.05.1987 sent bythe plaintiff to the defendant. He has further contended that theplaintiff was always ready to perform the remaining obligation and thesame has not been properly looked into by the Trial Court.10.Per contra, Mr. Govi Ganesan, learned counsel for therespondents, has contended that while Ex.A.1 dated 07.05.1984 hasstipulated a condition for three years, the execution of sale deedought to have been made by 06.05.1987 on the expiry of three yearswhereas the suit came to be filed by the plaintiff only on 15.07.1987and therefore, the Trial Court has rightly held that the suit isbarred by limitation, by relying on a Division Bench judgment of thisCourt reported in AIR 1976 Madras 360 and has dismissed the suit andas such, there is no infirmity in the findings of the Trial Court.11.Secondly, the learned counsel for the appellants, on thequestion of readiness and willingness, has contended that P.W.1himself, in his deposition, has stated that he had no sufficient fundsto purchase property and this categorical admission by the plaintiffhas been rightly taken into consideration by the Trial Court to cometo a conclusion that the plaintiff was not ready and willing toperform the obligation and to establish his case under Section 16(c)of the Specific Relief Act.12.In support of his contentions, the learned counsel for theappellants has placed reliance on the following judgments: https://hcservices.ecourts.gov.in/hcservices/ a.a judgment of this Court reported in 1997 2 MLJ 598 in thecase of Periaswamy & 10 others v. Kaliammal and 2 others (paras 13 &14)“For all the reasons stated above, I am of the viewthat the latter decision in Bibi Jaibunisha v. JagdishPandit and others, (1997) 2 LW 257 cannot be applied byme in preference to the earlier decision of a largerBench of the very same Apex Court, which has dealt withthe position more elaborately and accurately too afterconsidering and applying the earlier rulings of thePrivy Council and also of the Federal Court. All themore so, when the later decision by a smaller Bench ofthe Apex Court has been rendered without considering theearlier decision of the Supreme Court or dealing withthe matter or the principles involved elaborately orobjectively.For all the reasons stated above, the judgment anddecree of the learned first appellate judge,dismissingthe suit and also holding that the plaintiffs, onaccount of the default committed by them in notenforcing the agreement for re-conveyance in the manneragreed to and according to the terms and conditionscontained therein, including the stipulation regardingthe time, which does not merely operate as period oflimitation, but more as a condition precedent, for suchenforcement are not entitled to the relief sought for,do not call for any interference in my hands. Thesecond appeal, therefore, fails and shall standdismissed.”b.yet another judgment of this Court reported in AIR 1961Madras 276 in the matter of N. Pattay Gounder v. P.L. Bapaswami (para8):“The second ground of Sri. R. Gopalswami Ayyangar,namely that as no offer has been made by the purchaseror his assigns or their assignee to repurchase bytendering the required amount to the vendor within thespecified time, the right to enforce the covenant waslost, has however, much force and has to be accepted.The stipulation in Ex.B.1 was that at any time afterfive years and within seven years of the execution ofthe deed the vendor could tender the sum of Rs.4000 tothe purchaser and call upon him to reconvey the propertyto him.The deed expressly stated that this condition wouldbe void after the expiry of the specified period. Theright to purchase must be exercised according to thestrict terms of the power. That English doctrine https://hcservices.ecourts.gov.in/hcservices/ referred to in Fisher on Mortgages has been accepted bySadasiva Aiar and Napier JJ in Samarapuri Chettiar v.Sudarsanachariar ILR 42 Mad 802; (AIR 1919 Mad.544), tobe applicable to this country as well. The learnedJudges have held that the doctrine that time may not beof the essence of the contract which arises on theconstruction of contracts of sale of immovable property,is not applicable to contracts of resale of propertyconveyed. The same principle was applied by the FederalCourt in Shanmugam Pillai v. Annalakshmi Ammal, AIR 1950FC 38. . . Sri. K.S. Desikar, the learned counsel for theplaintiff-respondent referred me to Section 4 andArticle 113 of the Limitation Act and contended that asthe Court remained closed on 28.05.1953, the suit filedon the date of the reopening should be considered to bewithin time. In my opinion, the argument has only to bestated to be rejected. The period fixed in the documentis a condition for the performance and after the expiryof the period, the right reserved itself is at an end.The period fixed for the deed is not the period oflimitation prescribed to any suit. Section 4 of theLimitation Act can, therefore, have no application tothe present case.”13.I have considered the rival submissions made by the learnedcounsel on either side and I have also given due consideration to theoral and documentary evidence in addition to the judgments relied onby the learned counsel for the respondents.14.It is not in dispute that Ex.A.1 has been entered intobetween the plaintiff and the defendant on 07.05.1984. On the sameday, i.e. on 07.05.1984, the defendant has agreed to sell the suitproperty to the plaintiff for the said sum of Rs.50,000/- within aperiod of three years and a sum of Rs.1,000/- was also received asadvance by the defendant from the plaintiff. From the recitals of thesaid agreement, it is also seen that the defendant has to execute thesale deed in favour of the plaintiff on receiving the balanceconsideration of Rs.49,000/- before the expiry of three years periodand as such, the sale deed should have been executed on or before06.05.1987. Whereas, there was no notice issued by the plaintiff andonly a telegraphic communication dated 06.05.1987 intimating that heis ready with the money to execute the sale deed and he would wait atthe Sub-Registrar's office on 07.05.1987 at 11.00 a.m. has been sentby the plaintiff to the defendant, which according to the respondentis dated 07.05.1987. From this, it is clear that the telegraphicnotice is one day after the expiry of the three year period. Thus,when the period of limitation stipulated in Ex.A.1 is over by06.05.1987, the telegraphic notice which is said to be sent on07.05.1987 is of no help to the plaintiff. Looked at from that angle,the cogent and convincing reasoning given by the Trial Court in coming https://hcservices.ecourts.gov.in/hcservices/ to the conclusion that the suit is barred by limitation based onExs.P.1 and P.2 and also on the basis of the judgment of this Courtreported in AIR 1976 Madras 360 is perfectly in order and as such, Ido not find any infirmity in the said finding of the Trial Court inthis regard.15.Secondly, on the question of readiness and willingness, itis quite relevant to refer to the deposition of the plaintiff himself,examined as P.W.1., who has stated that he did not have sufficientfunds to purchase the property and this vital aspect of the matter hasbeen given due consideration by the Trial Court. Besides that, theTrial Court has also found that the plaintiff has not taken anyeffort, much less serious effort, during the period of agreement tosend any notice to the defendant expressing his willingness to get thesale deed executed except sending a telegraphic notice and that too,after the expiry of the three year period stipulated in the saleagreement. Even this telegraphic notice, according to the defendant,was not served on him. That apart, as rightly observed by the TrialJudge, it is not clear from Ex.A.3 as to which person in thedefendant's family has refused to accept the telegram sent by theplaintiff and the plaintiff also has not called any person in theTelegraph office to the witness box. These series of events wouldonly go to show that the plaintiff was never willing and ready to getthe sale deed executed by the defendant and these aspects of thematter have been duly taken cognizance of by the Trial Judge whiledeciding the question of equitable and discretionary remedy in thematter of suit for specific performance and dismissing the suit.For all the reasons stated above, this Court finds no merit inthe appeal and the same is accordingly dismissed. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarcadCopy to1. The II Additional Subordinate Judge, Coimbatore.2. The Section Officer,V.R.Section, High Court, Madras.1 cc To Mr.K.Govi Ganesan, Advocate, SR.69705.A.S. No.1150 of 1993 KG(C)RVL 29.01.2008