M/s. Pan Resorts Ltd. v. H.H.Karthika Thirunal Lakshmi Bayi (deceased) & Ors.

8legal notice, the defendants 5 and 6 proceeded to executesale deeds in favour of the plaintiff in respect of theirshares. (e) The 5th defendant executed two registered saledeeds on 6.11.95 in favour of the plaintiff and receivedthe said consideration and accepted the correct measurementof the property as put forth by the plaintiff. Similarly,the 6th defendant also executed two registered sale deedsdated 24.11.95 conveying his undivided interest in favourof the plaintiff. However, the sale deeds executed wereheld up for registration for complying with certainmandatory formalities which would go to prove that theplaintiff is not responsible, particularly, with regard todelay in obtaining the Income Tax Clearance Certificaterequired to be obtained under Section 230-A of the IncomeTax Act. The plaintiff's counsel sent a legal notice tothe defendants 1 to 4 and 7 to 9 on 22.12.95. Thecompliance of the agreement by the co-owners was mentionedin the said notice. The plaintiff denied the allegationsmade in the reply notice dated 17.9.95 sent by some of thedefendants through their counsel including denying thestatement that the tripartite agreement was agreed to bedropped. The plaintiff also requested the other defendantsto comply with the agreement as done by the other co-owners/sharers viz., defendants 5 and 6, failing which, theplaintiff have no other option except to institute a civil https://hcservices.ecourts.gov.in/hcservices/ 9suit on the expiry of the period of 15 days from the dateof receipt of the notice. The plaintiff has also filedthe copies of the bankers pay order obtained on 2.8.95in favour of each of the defendants showing that it wasalways ready and willing to perform the contract andcontinues to be ready and willing to perform the contract.Out of nine defendants, six defendants, without bonafide,have issued the notice to the plaintiff through theircounsel dated 13.8.95. It is defendants 1 to 4 and 7 to 9who had evaded to perform their party of the contract andeven now, the plaintiff is ready and willing to performits part of the contract, which is confirmed by the conductof the plaintiff, having secured Bankers Pay Orders forthe remaining balance sale consideration. As the plaintiffhas no other option and in order to protect its right andinterest, the plaintiff is constrained to institute thesuit. (f) The defendants 5 and 6 are only impleaded asproforma parties and no relief is sought againstthem in view of the fact they had already executedsale deeds in respect of their shares pursuant to agreementdated 3.8.94. The 10th defendant, Indian Bank is impleadedas proforma party as it is a party to the originalagreement for sale. The plaintiffs stated that equity is infavour of the plaintiff because the agreement dated 3.8.94has been partly performed by execution of sale deeds by https://hcservices.ecourts.gov.in/hcservices/ 10defendants 5 and 6 to the extent of their share. Since theagreement dated 3.8.94 is a composite agreement, it has tobe fully performed by all the parties. Hence, the suit hasbeen filed by the plaintiff praying for specificperformance.3. The objections raised by the 4th defendant in thewritten statement are as follows:(a) The suit filed by the plaintiff for specificperformance is devoid of merits and not maintainable inlaw and it is liable to be dismissed in limine. Theplaintiff is not entitled to any equity relief much lessthan the relief of either specific performance orconsequential relief of physical possession of the suitproperty. (b) The defendants 1 to 9 are the absolute owners ofthe suit property and they have inherited the saidproperty by a Will dated 28.11.1981 executed by HisHighness Sri Chithrai Thirunal Padmanabha Dasa, the formerRuler of Travancore, who died on 20.07.1991. After hisdemise, his Will was duly probated before the High Court ofKerala and the defendants got the property jointly. Thesaid property admeasured an extent of 20 grounds and thedefendants 1 to 9 have common pathway from L.B.Road,leading to their property which includes a palace, whereinthe family members of the defendants 1 to 9 are stillliving. It is true, as per the above said Will, the https://hcservices.ecourts.gov.in/hcservices/ 11defendants 1 to 8 are each entitled to an undivided shareof 11.25% and the 9th defendant is entitled to undividedshare of 10% from and out of the suit schedule property, asco-owners.(c) The defendants 1 to 9 have entered into anagreement for sale on 10.03.1993 which was tripartite innature wherein the defendants 1 to 9 were the parties of 1stpart, the intended purchasers viz. Mr.Shankar Khandadi andone Mr.Usman Fayaz were the parties of the 2nd part and thefinancier viz., the Chief Manager of Indian Bank, AdyarBranch was the party of the 3rd part, in which, the saleconsideration was fixed at Rs.325 lakhs, out of which Rs.50lakhs was paid by the parties of the 2nd part to the partiesof the 1st part proportionately. Since the agreement holdersviz., the parties of the 2nd part have not performed theirpart of the said agreement for sale and also expressed thatthey were not in a position to proceed further in pursuantto the said agreement, the same was dropped as not actedupon by them. Hence, it was decided to enter into amemorandum of agreement regarding the sale of the saidproperty, with the plaintiff and accordingly, the same wasentered into on 03.08.1994 with strict conditions and termsagreed by both parties, wherein the erstwhile agreementholders viz Mr.Shankar Khandadi and one Mr.Usman Fayaz andthe financier viz., the Chief Manager of Indian Bank, AdyarBranch were also the parties. https://hcservices.ecourts.gov.in/hcservices/ 12(d) It is stated that though some progress was madein pursuant to the agreement dated 10.03.1993, the saidagreement was not put through between the originallycontemplated parties. Since the erstwhile agreement holdershave not performed their part of the agreement, it was notacted upon and in that situation only, the subsequentmemorandum of agreement has been entered into with theplaintiff on 03.08.1994. The plaintiff had full knowledgeof all the facts. The plaintiff had paid a sum ofRs.50 lakhs, apart from Rs.50 lakhs, paid by theerstwhile agreement holders, as per the said memorandumof agreement to the defendants 1 to 9 proportionately asper their share. (e) The income tax authorities has granted thenecessary certificate under Section 269 UL (i) on21.11.1994 approving the sale to the plaintiff forRs.325 lakhs. The plaintiff should have paid a further sumof Rs.50 lakhs in September 1994 or atleast in November1994 to the defendants 1 to 9 as per the terms of theagreement dated 03.08.1994 and the balance of Rs.175 lakhshad to be paid at the time of Registration. The defendants1 to 9 had not received any amount except the sum of Rs.100lakhs and thus, the plaintiff had failed to perform theirpart of the contract as per the agreement dated 03.08.1994.However, they proceeded to create correspondence showingthat they are ready and willing to perform their part of https://hcservices.ecourts.gov.in/hcservices/ 13the agreement. (f) As per clause 5 of the agreement, theplaintiff was to pay the balance of sale considerationwithout waiting for clearance under the Urban Land CeilingAct and complete the transaction and get the sale deedexecuted within 4 months from the last date, for which, thedefendants 1 to 9 obtain and produce NOC and clearancefrom Income Tax Department. The said certificates wereobtained by the defendants but the plaintiff has notcomplied with the admitted terms. (g) By letter dated 02.12.1994, the plaintiff sent adraft sale deed for submission to Income Tax Department for230-A certificate and promised to pay the balance saleconsideration in three weeks on receipt of 230-Acertificate, by their letter dated 19.01.1995. Thedefendants 1 to 9 had obtained necessary Income Taxclearance and informed to the plaintiff but suddenly, theplaintiff by letter dated 28.03.1995 claimed to have notedsome discrepancy in the extent agreed to be sold and inregard to the right of passage. The same was refused bythe defendants 1 to 9 by letter dated 28.03.1995 to theplaintiff's counsel T.N.C.Varadhan. The defendants 1 to 9had also expressed their readiness to execute the sale deedin the month of April, 1995 but the plaintiff was not readyand willing and reiterated his contentions again in his https://hcservices.ecourts.gov.in/hcservices/ 14letter dated 29.06.1995. The plaintiff has not at all beenput in possession of the suit property. . The plaintiff didnot choose to perform their side of contract as per theterms and conditions of the agreement and allowed to lapseit. Hence, the plaintiff is not entitled to have any remedyof equity nature much less than the reliefs prayed for inthe suit. As the 9th defendant started to act against theinterest of the principals viz. the defendants 1 to 8, thepower of attorney given to 9th defendant was cancelled.Hence, from the date of cancellation the 9th defendant hasbeen ceased to be the Power of Atorney and any act done byhim on behalf of the defendants 1 to 8 would be certainlyinvalid. (h) The plaintiff by his letter dated 07.08.1995claimed to have obtained Bankers Pay Orders for a total sumof Rs.1,89,18,047/-, after lapse of nearly 5 months fromthe date of rebuttal by the defendants 1 to 9. The same wasnot a proper tender or readiness to perform the contractagreed to between the parties. The offer of the plaintiffwas rejected by the defendants 1 to 9 through their counselby letter dated 13.08.1995 wherein it was clearly statedthat the plaintiff had failed to perform his part of thecontract and had hence, committed a breach of the samedisentitling him to claim any relief under the suitagreement. In the reply notice dated 21.08.1995, theplaintiff did not make any reference to the legal notice https://hcservices.ecourts.gov.in/hcservices/ 15dated 13.08.1995. After admitting the receipt of theclearance certificate even in November 1994, they falselyalleged that the sale could not be completed due to certaindifficulties expressed by the vendors. They called upon thedefendants 1 to 9 to execute the sale within 15 days ofreceipt of the notice. This was followed by a public noticedated 07.09.1995 claiming and asserting their rights underthe suit agreement dated 03.08.1994. The defendants 1 to 9have given a suitable reply on 17.09.1995 through theircounsel clearly pointing out that time is the essence ofcontract. The defendants further denied the plaintiff'sreadiness and willingness to complete the suit saleagreement dated 03.08.1994. It was also clearly mentionedthat there was no variation in extent agreed to be sold andhence, they were not willing to vary the price agreed. (i) On 12.09.1995, the then shareholders of theplaintiff company agreed to transfer all their shares toK.Sarojini, wife of K.Subbiah for a total value of 225lakhs. A perusal of the said agreement clearly shows thatthe said Sarojini was financing the plaintiff'sshareholders for purchasing the suit property underthe suit agreement. Only pursuant to this agreement tofinance the plaintiff, the plaintiff company managed toobtain sale deeds from 2 sharers viz., the defendants 5 and6 for a consideration on Rs.18,28,125/- each. It is thusclear that the plaintiff company had no wherewithal to https://hcservices.ecourts.gov.in/hcservices/ 16purchase the suit property at all. Even after thedefendants' reply on 17.09.1995, the plaintiff had shown noinclination to complete the sale through court immediatelythereafter. The registration of the sale deed by thedefendants 5 and 6 had been made even without producing230-A certificate and thus the plaintiff was fully awarethat 230-A certificate was not necessary to register thesale deeds and the excuse pleaded by them for completingthe sale is false to his knowledge. The reference to aclause in the suit agreement that the building should notbe demolished is wrongly interpreted. The possession hasnever been handed over to the plaintiff at any point oftime. On this false plea of the plaintiff, they becamedisentitled to the relief of specific performance. Thedefendant therefore submits that the plaintiff is notentitled to the equitable relief of specific performance atall and the suit deserves to be dismissed with costs.4. The objections raised by the 9th defendant in thewritten statement are as follows:(a) There is no mention in the plaint as to howMr.K.Subbiah, shown as director of the plaintiff company iscompetent and duly authorised to sign and verify theplaint. Even assuming that Mr.K.Subbiah has legalcompetence and authority to sign and verify the plaint, theverification of the plaint has not been done in a mannerknown to law. Hence, the plaint is liable to be rejected. https://hcservices.ecourts.gov.in/hcservices/ 17The suit has not been instituted in accordance with clauseNo.11 of the suit agreement dated 3.8.1994 which is soughtto be specifically enforced by the plaintiff. Admittedly,the plaintiff has not deposited the balance saleconsideration and there was no averment in the plaint tothe effect that the terms of clause 11 have been compliedwith. Therefore, the plaintiff is liable to be non-suited.The defendants are the co-owners of the suit property, inparticular, the defendant owns 10% share in the suitproperty. This defendant admits the tripartite agreement ofsale dated 10.03.1993 Though a sum of Rs.50 lakhs was paidas advance, Mr.Fayaz one of the purchasers took back a sumof Rs.25 lakhs from this defendant on 11.3.1993. The sum ofRs.25 lakhs so returned to Mr.Fayaz is made up of theproportionate share of each one of the defendant herein.This defendant admits that the suit agreement dated 3.8.94referred to in the plaint, this defendant received a sum ofRs.5 lakhs from the plaintiff as an advance amount. (b) The plaintiff handed over the draft sale deedfor obtaining the necessary clearance under section 230-Aof the Income Tax Act only in December 1994 by letter dated2.12.1994. Though under clause 5 of the agreement dated3.8.1994 time was regarded as the essence of the contract,the plaintiff took 4 months time to hand over the draftsale deed; the plaintiff need not have taken such a longtime to hand over the draft sale deed to the defendants. https://hcservices.ecourts.gov.in/hcservices/ 18This delay has to be viewed in the light of clause 5 of thesuit agreement dated 3.8.1994 which provides that theplaintiff should pay the balance sale consideration within4 months from the last date when the defendants producedNOC under chapter XX-C of the Income Tax Act and theclearance under section 230-A of the I.T. Act. Theplaintiff did not take any step whatsoever to get the saledeed from this defendant either on or before 31.3.1995 orwithin 4 months from 2.3.1995. The plaintiff informed thisdefendant by letter dated 2.8.995 that a pay order forRs.23,22,006/- had been secured towards balance saidconsideration. The 9th defendant by his counsel's noticedated 13.8.1995 informed the plaintiff that he was notwilling to accept the pay order. In the said counsel'snotice dated 13.8.95, it was specifically mentioned that on17.06.1995 during the meeting between the counsel for theplaintiff and the defendants, the plaintiff's counselsuggested an option to give up the transaction and it wasaccepted by the counsel for these defendants. The counselfor these defendants by letter dated 28.3.1995 informed theplaintiff's counsel for the plaintiff that 4th April 1995could be a mutually convenient date for the execution andregistration of sale deeds in favour of the plaintiff butneither the plaintiff nor its counsel took any steps to getthe sale deeds prepared executed and registered. Theplaintiff never had the necessary wherewithal to pay the https://hcservices.ecourts.gov.in/hcservices/ 19balance sale consideration and complete the transaction.Even the alleged pay order Rs.23,22,006/- does notrepresent the correct amount payable to the defendants.This fact was made known to the plaintiff by letter dated13.08.1995; curiously neither the legal notice dated21.08.1995 nor the subsequent legal notice dated22.12.1995 refers to the alleged pay order forRs.23,22,006/- said to have been procured by the plaintifftowards the balance sale consideration. Thus, thisdeliberate omission shows that the plaintiff had in factnever procured any such pay order. (c) The suit has been filed nearly two years laterin November 1997 after the correspondence between theplaintiff and the 9th defendant ended in December 1995. Theplaintiff has not explained the delay in instituting thesuit before the Court. No proof has been shown before Courtto prove is financial capacity to pay the balance saleconsideration. It is submitted that a sum of Rs.25 lakhswas refunded to Mr.Fayaz and thus what was paid under theearlier agreement dated 10.03.1993 was only Rs.25 lakhs.The plaintiff delayed in handing over the copy of the draftsale deed to enable the 9th defendant to apply for IncomeTax Clearance certificate. Thus, the plaintiff sought totake full advantage of the four months time prescribed byclause 5 of the suit agreement of sale to complete thesale transaction. The Income Tax clearance was obtained by https://hcservices.ecourts.gov.in/hcservices/ 20this defendant on 2.3.1995 and it was duly intimated to theplaintiff as well. The plaintiff never made any tangibleattempt to pay the balance sale consideration. Though itwas made clear by letter dated 28.3.1995 sent by thecounsel for the defendants to the counsel for the plaintiffthat the registration could be had on 4th April 1995, noattempt was made by the plaintiff to complete the saletransaction. The pay order sent to this defendant wasreturned to the plaintiff. The plaintiff is not entitledfor the relief of specific performance as prayed for.5. On the above pleadings, originally, thisCourt has framed the following issues for trial on8.11.2005."1. Whether the plaintiff was ready andwilling to perform his part of the contract ?2. Whether the plaintiff has committedbreach of the terms of agreement dated03.08.1994, as alleged by the defendants ?3. Whether the plaintiff is entitled tothe relief of specific performance sought for ?4. To what relief the parties areentitled to?"Subsequently, this Court has framed the followingadditional issues for trial on 3.9.2007."1. Whether the plaintiff is entitledto the relief of specific performance based onthe alleged agreement for sale dated03.08.1994 as against the 4th defendant ?2. Whether the alleged agreement for https://hcservices.ecourts.gov.in/hcservices/ 21sale dated 03.08.1994 was valid and executableat the time of filing the present suit ?3. Whether the time in essence of thecontract viz., the alleged agreement for saledated 03.08.1994 ?4. Whether the claim of the plaintifffor specific performance based on the allegedagreement for sale dated 03.08.1994 is barredby limitation ?5. Whether the plaintiff is entitledfor a relief of consequential relief ofpossession?"6. The trial Court examined the Director of theplaintiff Company as P.W.1 and admitted Exs.P1 to P25 onthe side of the plaintiff. The defendants have examined the8th defendant as D.W.1 and have produced Exs.D1 to D5 insupport of their case. 7. Heard, Mr.R.Parthasarathy, learned counselappearing for M/s. P.Seshadri, Mohan Parasaran & SathishParasaran,learned counsel for the plaintiff,Mr.C.Selvaraju, learned senior counsel appearing forMr.R.Rajarajan, learned counsel for defendants 1 to 3,Mr.S.V.Jayaraman, learned senior counsel appearing forMs.P.Anitha, learned counsel for the 4th defendant and forMs.A.Arulmozhi, learned counsel appearing for defendants 7to 9. No appearance for Defendants, 5, 6 and 10.8. Learned counsel for the plaintiff would submit inhis arguments that the present suit has been laid by the https://hcservices.ecourts.gov.in/hcservices/ 22plaintiff for specifically enforcing the agreement of salein the form of Memorandum of Understanding dated 3.8.1994entered into between the defendants 1 to 9 on the firstpart , the previous agreement holders on the second part,the plaintiff on the third part and the 10th defendant onthe fourth part and the agreement was a joint agreementwhich had superceded the early tripartite agreement had inbetween the defendants 1 to 9 on the first part, one Mr.Shankar Kandadai and one Mr.Usman Fayaz on the second partand the 10th defendant on the third part on 10.3.1993. Hewould further submit that, in the said earlier agreement,it was agreed in between the parties that the suit propertywhich is described in the schedule was accepted to be soldfor Rs.325 lakhs and an advance of the said agreement, asum of Rs.50 lakhs was paid by them to the defendants 1 to9. Subsequently, the said agreement was renewed in the formof Memorandum of Understanding on 3.8.1994 in between theplaintiff and the defendants, to which, the previousagreement holders, Shankar Kandadai and Usman Fayaz havegiven consent to give up that agreement in favour of theplaintiff. He would also submit that the plaintiff paidanother sum of Rs.50 lakhs to the defendants towards theadvance for the said agreement and had entered theagreement of sale. He would further submit that 4 monthstime was fixed from the date of obtaining No ObjectionCertificate under Section 269 UD of Income Tax Act and also https://hcservices.ecourts.gov.in/hcservices/ 23the Income Tax Clearance of all the defendants 1 to 9 undersection 230-A of the said Act. It was also agreed thatclearance from the Urban Land Ceiling Act should also beobtained. He would further submit that under Clause 4 ofthe agreement, the obtaining of Urban Land CeilingClearance and NOC under Chapter XX-C of Income Tax Act wascontemplated. 9. Learned counsel would further submit that Clause5 of the agreement would show the balance payment to bemade within 4 months without waiting for the clearance fromthe Urban Land Ceiling Act and Income Tax ClearanceCertificate and No Objection Certificate under Chapter XX-C of the Income Tax Act. He would also submit that the saidtime limit was fixed on or before 31.3.1995 after obtainingall clearance certificates. He would further submit that atthe time of execution of the sale deed, within certaintime, the defendants 1 to 9 have agreed to put theplaintiff in vacant possession with an undertaking not todemolish the palace. He would further submit that the orderof clearance from Urban Land Ceiling Act was obtained on20.11.1994 and NOC from Income Tax Department was obtainedon 21.11.1994. However, the Income Tax Clearance underSection 230-A for the defendants were yet to be obtained.He would further submit that the plaintiff has written aletter on 2.12.1994 in Ex.P7 offering the entire paymentand seek to remove the furnitures and fittings in the https://hcservices.ecourts.gov.in/hcservices/ 24premises and thereby to give vacant possession. He wouldalso submit that the plaintiff has renewed his intention topay the balance consideration to the defendants 1 to 9 andto get the sale deed executed in the subsequent letterdated 28.3.1995 produced in Ex.P9 and therefore, theplaintiff was always ready and willing to perform his partof the contract by paying the balance amount within thetime to get the sale deed from the defendants 1 to 9. Hewould further submit that the earlier agreement producedin Ex.P2 had with the third persons Mr.Shankar Kandadai andUsman Fayaz was not referring to any pathway, however, inthe subsequent suit agreement in Ex.P3, the right ofpathway has been included. He would further submit thatthe agreed condition was to execute the sale deed afterobtaining the Income Tax Clearance by the defendants andtherefore the fixed date at 31.3.1995 is not a condition.He would further submit that the sketch appended to thesale agreement would disclose the pathway and since therewas some dispute in respect of pathway the plaintiff didnot pay the sum of Rs.50 lakhs immediately on obtaining theNo Objection Certificate from the Income Tax Department on21.11.1994 in Ex.P6. 10. Learned counsel for the plaintiff would alsosubmit that the Advocate for defendants 1 to 9 had writtena letter on 28.3.1995 in respect of ascertaining thecorrect area. He has asked for time till 4.4.1995 for https://hcservices.ecourts.gov.in/hcservices/ 25having a meeting and therefore, preparation of sale deedcould not be made possible before 31.3.1995. He wouldfurther submit that there was a discrepancy in the area ofthe pathway and the letter dated 28.3.1995 produced inEx.D2 would go to show that the time limit fixed at31.3.1995 was given a goby. Even in the said letter nothingwas disclosed about the obtaining of Section 230-Acertificate of clearance of payment of Income Tax. Due tothe said letter written by the counsel, the plaintiff wasnot in a position, as to whether he has to pay the moneyfor the entire extent or the available extent. He wouldfurther submit in his argument that the plaintiff iswilling to take the property with all discrepancies anddeficiencies. 11. Learned counsel would further submit in hisarguments that after the issuance of notice, the plaintiffwas striving much for effecting settlement in between theparties and therefore, he had to wait till the end of theperiod of limitation and to file a suit against thedefendants and sought for the reliefs only against thosedefendants who had not executed the sale deeds in favour ofthe plaintiff. He would further submit that during thesaid attempt of compromise, the defendants 5 and 6 haveagreed to execute the sale deed in respect of their sharesin the suit property and accordingly they have executed thesale deeds in Exs.P16 to P.19. Actually, the defendants 1 https://hcservices.ecourts.gov.in/hcservices/ 26to 8 are entitled to 75% and the 9th defendant was entitledto 10% and one Smt.Sethu Parvathy Bayee,mother of Maharajaof Trivancore was entitled to 15% in the suit property asper the Will executed by His Highness Shri Padmanabha SriChitrai Balarama Varma, the Maharaja of Tiruvancore. Thesaid Will came into force on 20.7.1991, after the probateproceedings were taken and ordered on 3.4.1992 before theHigh Court of Kerala. He would further submit that thedefendants 5 and 6 who were having their respective sharesout of 75% of the share bequeathed under the said Will,passed their title to the plaintiff by executing sale deedExs.P16 to P19,and the other defendants among defendants 1to 9, did not execute any sale deed as per the agreement ofsale and therefore, the plaintiff approached this Court. Hewould further submit that the defendants 5 and 6 havingagreed for selling their undivided share would confirm theagreement of sale had in between the plaintiff and thedefendants and the readiness and willingness on the part ofthe plaintiff and the steps taken by the plaintiff forcompromising the dispute in between the parties andtherefore, the delay has been caused in taking actionthrough court of law. 12. Learned counsel would further submit that theIncome Tax Clearance certificate were filed with referenceto defendants 3 to 5, defendants 7 & 9 and the Income TaxClearance certificate for defendants 1, 2 and 6 are yet to https://hcservices.ecourts.gov.in/hcservices/ 27be produced. He would also submit that it is the right ofthe plaintiff to waive the production of such Income TaxClearance Certificate, however, in view of the non-production of such certificate, the time limit for paymentof the balance sale consideration and the execution of thesale deed are yet alive since the time limit fixed was 4months from the date of production of No ObjectionCertificate given by the defendants 1 to 9 , the proposedvendors. He would further submit that the plaintiff wasconstrained to send notice to the defendants in Ex.P13and Ex.P20, for showing his willingness to get the saledeed despite discrepancies in the area of the suitproperty. He would also submit that the defendant's case,that the right in the pathway as mentioned in the agreementof sale was already sold, cannot be sustained. However, theplaintiff is ready to receive the available property, inthe event of defendants 1 to 4, 7 to 9 executing the saledeed in his favour, after receiving the balance saleconsideration. 13. Learned counsel would also submit that theplaintiff is always ready to deposit the money into Courtbut it could be done only upon the orders of the Court andhe cannot suo motu deposit the money before Court. The non-payment of the balance sale consideration would not amountto failure to perform his part of the contract. He wouldalso submit that he has taken demand draft for the https://hcservices.ecourts.gov.in/hcservices/ 28proportionate consideration as to the availability of theland on the ground and the copies of demand drafts arealone sent considering the safety of demand drafts and theplaintiff was ready to hand over the demand drafts takenby the plaintiff whenever the defendants 1 to 4 and 7 to 9were approaching to receive. He would further submit inhis arguments that he is ready to deposit the money asdirected by the Court within the stipulated time. He wouldfurther submit in his argument that the principle laid downin the judgment of the Honourable Apex Court reported in2011 (12) SCC 18 (Sardamani Kandappan v. S.Rajlakshmi) tothe effect that there would be much difference in themarket value of the property, in case, the contract wasperformed after several years and the steady increase inprice would also bring drastic changes and therefore, thespecific performance entered long prior to the taking up ofthe case, should not be rejected merely because very lowerconsideration had been quoted and would be transferred, ifspecific performance is ordered. He would also submit thatas per the dictum laid down in the said judgment, theplaintiff is always willing to pay the present market valuein proportionate to the shares of the defendants 1 to 4 and7 to 9 and it would be paid if suitable consideration hasbeen judicially fixed by this Court. He would suggest thatthe shares belonging to the defendants 1 to 4 and 7 to 9would be around Rs.12 crores and the plaintiff was willing https://hcservices.ecourts.gov.in/hcservices/ 29to deposit the said amount for the purpose of getting thesale deed from the defendants. Learned counsel for theplaintiff had also presented a memo to that effect. 14. Learned counsel for the plaintiff wouldtherefore request the Court that the defendants 1 to 4, 7to 9 may be directed to execute the sale deed in respect ofthe share of those persons after receiving theconsideration likely to be fixed by the Court at Rs.12crores towards their shares and the plaintiff is ready todeposit the said amount. He would further submit that thedefendants 1 to 4 and defendants 7 to 9 may be directed toexecute the sale deed in favour of the plaintiff afterreceiving the balance sale consideration ofRs.2,25,00,000/- or Rs.12,00,00,000/- instead of a sum ofRs.2,25,00,000/- and to execute the sale deed in favour ofthe plaintiffs and in failure to do so, to pass an orderdirecting the defendants 1 to 4 and defendants 7 to 9 toexecute the sale deed in favour of the plaintiff and indefault, the Court may itself execute the sale in favour ofthe plaintiff through Court.15. Learned counsel would cite catena of judgmentsof the Honourable Apex Court reported in 1959 SCR 1309(Radha Sundar Dutta v. Mohd. Jahadur Rahim & Ors), 1960 (3)SCR 604 (Sahebzada Mohammad v. Jagdish Chandra), 1969 (3)SCC 120 (Nathulal v. Phoolchand), 1973 (2) SCC 543 (SriParmeshwari Prasad v. Union of India ), 1979 (4) SCC 393 https://hcservices.ecourts.gov.in/hcservices/ 30(Prakash Chandra v. Angadlal), 1993 (1) SCC 519 (Chand Raniv. Kamal Rani), 1996 (6) SCC 660 ( United Bank of India v.Naresh Kumar and Ors.), 2004 (6) SCC 649 (P.D'Souza v.Shondrilo Naidu), 2004 (8) SCC 689 (Swarnam Ramachandran v.Aravacode Chakungal Jayapalan), 2005 (5) SCC 784 (UnitedIndia Insurance Co. Ltd. v. Samir Chandra Chaudhary), 2006(5) SCC 96 (Maharashtra State Mining Corporation v. Sunil),2008 (11) SCC 45 (Silvey & Ors. v. Arun Verghese & Anr.),2009 (4) SCC 193 (Kaliaperumal v. Rajagopal and Anr.), 2009(5) SCC 678 (M.P.Housing Board v. Progressive Writers andPublishers), 2009 (5) SCC 223 (FGP Limited v. Salh HooseiniDoctor and another), 2010 (2) CTC 751 (B.Nemi Chand Jain &Anr. V. G.Ravindran & Ors.). Among those judgments,learned counsel for the plaintiff would rely upon 1979 (4)SCC 393 (Prakash Chandra v. Angadlal) and 1999 (III) MLJ404 (S.Ramakrishnan v. R.M.Subbiah) for the principle thatspecific relief has to be granted as a rule and its denialis an exception. He would rely upon the judgment reportedin 1969 (3) SCC 120 (Nathulal v. Phoolchand) and 1999 (III)MLJ 404 (S.Ramakrishnan v. R.M.Subbiah) for the principlethat the plaintiff need not deposit the balance of saleconsideration prior to the direction to be issued by theCourt. He would rely upon the judgment reported in 1993 (1)SCC 519 (Chand rani vs. Kamal Rani), 2004 (8) SCC 689(Swarnam ramachandran v. Aravacode Chakungal Jayapalan),2009 (5) SCC 678 678 (M.P.Housing Board v. Progressive https://hcservices.ecourts.gov.in/hcservices/ 31Writers and Publishers), 2011 (12) SCC 18 (SardamaniKandappan v. S.Rajlakshmi) for the principle that thefacts and circumstances of the case would determine therule as to when the time would be the time be the essenceof the contract.16. Learned counsel would further rely upon thejudgments reported in 2002(8) SCC 146 (Nirmala Anand v.Advert Corporation), 2004 (6) SCC 649 (P.D'Souza v.Shondrilo Naidu) for the principle that the escalation inthe price of the property is not a determinative factor.Learned counsel for the plaintiff would further rely uponthe judgments of the Honourable Apex Court reported in 1969(3) SCC 120 (Nathulal v. Phoolchand), 2004 (6) SCC 649(PD'Souza v. Shondrilo Naidu), 2008 (11) SCC 45 (Silvey &Ors. v. Arun Verghese & Anr.), 2004(8) SCC 689 (Swarnamramachandran v. Aravacode Chakungal Jayapalan) for theprinciple as to the obligations of the defendant and theconduct of the defendant to be noted in a case of specificperformance. 17. Learned counsel had cited a judment reported in2010 (2) CTC 751 (B.Nemi Chand Jain & Anr. V. G.Ravindran &Ors.) for the principle that the filing of the suit withinthe period as allowed by law of limitation would not beconsidered as delay and such delay would not be fatal tothe enforcement of agreement. He would further cite otherjudgments of the Honourable Apex Court reported in 2005(5) https://hcservices.ecourts.gov.in/hcservices/ 32SCC 784 (United India Insurance Co. Ltd. v. Samir ChandraChaudhary), 2008 (7) SCC 85 (Goutam Sarup v. Leela Jetlayand Ors.) to insist upon the principle that admission isthe best evidence. He would also cite 1996 (6) SCC 660(United Bank of India v. Naresh Kumar and Ors.), 1973 (2)SCC 543 (Sri Parmeshwari Prasad v. Union of India), 2006(5)SCC 96 (Maharashtra State Mining Corporation v. Sunil) forthe purpose of showing the principle as to the impliedauthority of the Managing Director or Chairman of theCompany to represent the Company or the ratification givenby the Board would validate the action. He would furthersubmit that the discretion to be given under section 20 ofthe Specific Relief Act ought to have been exercised veryfairly with judicial conscience and for that, he had citedthe judgments reported in 2010 (2) CTC 751 (B.Nemi ChandJain & Anr. V. G.Ravindran & Ors.) , 2004 (6) SCC 649(P.D'Souza v. Shondrilo Naidu) in support of his argument.18. Learned counsel would also submit that theplaintiff is always willing to perform his part of thecontract if the escalated price has been fixed at Rs.12crores in all, by the Court in view of the judgment of theHonourable Apex Court reported in 2011 (12) SCC 18(Sardamani Kandappan v. S.Rajlakshmi). He would also submitthat despite the submission of the plaintiff thathe would pay Rs.12 crores towards the balance of saleconsideration if any higher amount is fixed by the Court, https://hcservices.ecourts.gov.in/hcservices/ 33to which, the plaintiff is always willing to deposit suchmoney and to get the sale deed executed. He would alsosubmit that even though the defendants have not producedall the certificates as required under the clauses in theMemorandum of Understanding, the plaintiff has taken therisk to get the sale deed and had issued the notice that hewas ready to pay the money and get the sale deed executed.Still, the defendants did not come forward to execute thesale deed in order to honour the agreement of sale.Therefore, he would request the Court to decree the suit asprayed for with costs.19. Learned senior counsel appearing for defendantsMr.S.V.Jayaraman, would submit in his argument that theprecedents which would lay the legal proposition as citedby the learned counsel for the plaintiff are not disputed.He would further submit in his argument that the plaintiffwho had come to the Court as the plaintiff seeking forspecific performance of the agreement of sale must show hisbonafide to honour the contract by saying that he wasalways ready and willing to perform his part of thecontract. He would further submit that the plaintiffneither showed his readiness nor his willingness to performhis part of the contract and therefore, he is not entitledto the equitable relief. He would also submit that if theplaintiff was actually ready to perform his part of thecontract, he would have paid the agreed sum of Rs.50 lakhs https://hcservices.ecourts.gov.in/hcservices/ 34on a particular point as fixed in the agreement of sale. Hewould also submit that the said stipulation ought to havebeen complied with and the breach of which, woulddisentitle the plaintiff from getting the reliefs. 20. Learned senior counsel would further submit inhis argument that the plaintiff was not ready within thetime as stipulated in the agreement i.e., on or before31.3.1995 despite the Income Tax Clearance and other UrbanLand Ceiling Clearance have been obtained by the defendantsand was not informed about the same. He would furthersubmit in his arguments that no doubt the plaintiff hassent a notice containing the xerox copies of the demanddrafts but those demand drafts would not represent theactual agreed consideration as per the agreement of saleand therefore, the readiness of the plaintiff, even if itis true, would be only a conditional one. He would alsosubmit that the plaintiff did not send the original demanddrafts nor the entire amount due under the agreement ofsale to the defendants and the said action of the plaintiffwould not in any way show his readiness and willingness asper the conditions entered in the Memorandum ofUnderstanding. 21. Learned counsel would also submit that theplaintiff, even though argued that he is ready to acceptthe extent of the suit property whatever it is available onground with the reduced area of the pathway leading to the https://hcservices.ecourts.gov.in/hcservices/ 35suit property, the said argument has no basis in thepleadings. The plaintiff ought to have pleaded to acceptthe available extent in order to seek specific performanceof the agreement. He would also submit that when theplaintiff is lacking in complying with the conditionsstipulated in the agreement, the court may not exercise itsdiscretion in favour of the plaintiff since the relief ofspecific performance is an equitable relief. He would alsosubmit that the plaintiff has come forward with a falseplea that possession is stated to be with him, but actuallypossession was not handed over to him. Even through thepleadings of the plaintiff, it could be understood that theplaintiff was stating on one occasion that he was givenwith possession however, he has asked for the prayer forpossession. He would therefore submit that the plaintiffwho had come with such false pleas, would not get anyrelief at the hands of this Court. 22. Learned senior counsel would further submit thatthe plaintiff was also not shrewd enough to pursue hisremedy immediately after the exchange of notices but waswaiting till the last period of limitation and has file thesuit and it would show his laches and inaction on his partin seeking the specific performance. He would submit thateven though the plaintiff is entitled to file the suitwithin 3 years, he ought to have shown to Court that he wasnot disinterested in seeking the specific performance of https://hcservices.ecourts.gov.in/hcservices/ 36the agreement of sale and the said interest to obtainspecific performance is very much lacking in this case. Hewould further submit that the plaintiff had come to court,more than a year after the issuance of notice and thearguments advanced by the learned counsel for the plaintiffthat there was a mediation between the plaintiff and thedefendants was not supported by any pleadings or evidence.Therefore, the delay was an unexplained one and in suchcase, the equitable relief of specific performance may notbe granted.23. Learned senior counsel would also continue inhis argument that the plaintiff himself admitted that theUrban Land Ceiling Clearance Certificate were obtained on21.11.1994 in the plaint and the said admission, coupledwith the conditions imposed in Clause 4 and 5 of theagreement that no objection certificate under XX-C of theIncome Tax Act and the Income Tax Clearance Certificate inrespect of each of the defendants 1 to 9 under Section 230-A of the Income Tax Act, it could be seen that theplaintiff ought to have performed his part of the contractimmediately after 21.11.1994 and to pay the entire money tothe defendants in order to get the sale deed executed fromthem. He would further submit that the plaintiff did noteven pay Rs.50 lakhs payable on production of the IncomeTax Clearance certificate nor paid the entire saleconsideration within the time stipulated and therefore the https://hcservices.ecourts.gov.in/hcservices/ 37plaintiff is not entitled to any relief in the suit. Hewould also submit that in paragraph 11 of the proofaffidavit of P.W.1., he would admit that the plaintiff wasin fact, put in possession and the plaintiff it hadundertaken not to demolish the existing palace over andabove the schedule land for a period of two years from3.8.1994. He would also submit that the plaintiff hashowever, asked for full possession of the suit property inthe prayer and that would show that the plaintiff hasuttered falsity and lie in the evidence which woulddisentitle the plaintiff to get at the specific relief. 24. He would also refer to a judgment of this Courtreported in 1993 (2) LW 411 for the principle that wheneverthe plaintiff is entitled for specific performance and hewas found guilty of pleading falsity, he would not beentitled to such an equitable relief. He would also cite ajudgment of the Honourable Apex Court reported in Air 1996SC 2814 (1) (Laurdu Mari David and others. Louis ChinnayaArogiaswamy and others) for the same principle of law.25. Learned senior counsel would further submit thatthe defendants 1 to 9 had obtained no objection certificatefrom the authorities under XX(C) of the Income Tax Act on4.8.1994 and also obtained Urban Land Ceiling ClearanceCertificate in the month of September 1994 and the saidorder was communicated to the plaintiff on 20.11.1994along with the Urban Land Ceiling Clearance Certificate. He https://hcservices.ecourts.gov.in/hcservices/ 38would further submit that the said admission in the plaintwould go to show that the defendants have complied with thecondition,however, the plaintiff did not perform his partof contract. He would also insist in his argument thatnothing prevented the plaintiff to pay the agreed sum ofRs.50 lakhs after 21.11.1994 but he did not do so. He wouldalso submit that there was no explanation offered by theplaintiff for the non-payment of Rs.50 lakhs as per thestipulation made in Clause 4 of the agreement. He wouldfurther submit that the plaintiff has referred to theavailability of the lesser extent of the suit property inparagraph 18 of the plaint but he did not plead that hewould be willing to accept the lesser extent by paying theentire sale consideration in favour of the defendants. Hewould also submit that the plaintiffs reference as to theinformation given to the defendants 1 to 9 that the saletransaction could be very well communicated in all respectsbefore the end of June 1995 in paragraph No.19 of theplaint which would go to show that the plaintiff was notable to complete the sale transaction within the stipulatedperiod of either 4 months or 31.3.1995 which would showthat the plaintiff was not ready to perform his part of thecontract.26. Learned senior counsel would also submit thatdespite the defendants replied to the notice of theplaintiff specifically stating the breach of contract https://hcservices.ecourts.gov.in/hcservices/ 39committed by the plaintiff, the plaintiff could file thesuit only in the month of May 1997 without showing anyreadiness and willingness on his part to pay the agreedamount to the defendants and get the sale deed executed. Hewould also submit that the plaintiff had issued the secondnotice on 22.12.1995 when there was no necessity to sendsuch notice. He would further submit that the said attitudeof the plaintiff would go to show that it was a ruse to gettime from paying the consideration and getting the saledeed executed. He would also submit that even in the saidnotice dated 22.12.1995, the plaintiff did not offer anyvolunteer to pay the balance sale consideration in order toperform his part of the contract. He would further submitthat the arguments advanced regarding the mediation done inbetween the said notice as well as the filing of the suitwas not pleaded in the plaint nor any names of mediator orthe place of mediation has been stated in the plaint. 27. Learned senior counsel would further submit thatthe plaintiff even in the plaint sought for the executionof sale deed for an extent of 20 grounds which is notpossible, since even as per the pleadings of the plaintiffthe total extent of the property available was only 18grounds 2053 sq.ft. He would submit that the plaintiff didnot show to Court that the defendants 1 to 9 have ignoredthe conditions made in Clause 4 of the agreement which ismaterial and binding on both parties. According to the said https://hcservices.ecourts.gov.in/hcservices/ 40Clause 4, the plaintiff was under the obligation to pay afurther advance of Rs.50 lakhs to the defendants as earlyas possible when the defendants 1 to 9 produced the UrbanLand Ceiling Certificate from the authorities. He wouldalso submit in his arguments that the defendants are notratifying the payment, the plaintiff want to deposit beforethe Court nor to condone the said delay in not paying thesaid money to the defendants.28. Learned senior counsel would also submit thatthe condition imposed under Clause 5 of the agreement thatthe transaction should be completed without awaiting theClearance from Urban Land Ceiling Act, if Income TaxClearance and No Objection to be obtained under the IncomeTax Act have been obtained without detriment to the saidcondition of payment of Rs.50 lakhs, to which, theplaintiff should adhere to. He would also submit that theplaintiff has also violated the condition imposed in Clause5 when the clearance certificate were produced by thedefendants on 21.11.1994 and the plaintiff did not performhis part of the contract within the stipulated time. 29. Learned senior counsel would also draw theattention of the Court in suport of lhis argument ajudgment of the Honourable Apex Court reported in 1993(1)SCC 519 (Chand Rani v. Kamal Rani)and argued that thepayment of money stipulated in a particular period ismandatory. He would further submit that the period for https://hcservices.ecourts.gov.in/hcservices/ 41completion of the sale deed was fixed on 31.3.1995 and thecumulative reading of the said conditions would go to showthat the registration should be over on or before 31.3.1995and for which, the plaintiffs laches and non-payment ofmoney were the causes and therefore, the plaintiff is notentitled to any specific relief. 30. He would also submit that the conditionimposed in Clause 5 would go to show that the paymentshould be made by the plaintiff first and thereafter only,the registration to be completed after obtaining thenecessary certificate under Income Tax Act. He wouldtherefore, submit that the said conditions of producing thecertificates under Income Tax Act would not extend the timewhen an outer period was fixed at 31.3.1995 and any lacheson the part of the plaintiff would certainly disentitlefrom getting the discretionary relief of specificperformance. He would also submit that the letter writtenby the Advocate of the defendants would not extend thedebts for payment and the said letter should have beenconsidered along with the correspondence of the plaintiffwhich would show that there was no understanding in betweenthe parties that such a period of performance has beenextended. He would also submit that the fixation of timetill the end of June 1995 was unilaterally fixed by theplaintiff and the defendant never agreed for the same. Hewould further submit that the tendering of the xerox copies https://hcservices.ecourts.gov.in/hcservices/ 42of the demand drafts, that too, for a lesser sum would notbe considered as a valid tender of money and thesubsequent non-payment of money throughout till this datewould show the unwillingness of the plaintiff to pay themoney and to perform his part of the contract. 31. He would further submit that when the plaintiffis not actually willing to pay the balance money to thedefendants within the time stipulated in the agreement,then the plaintiff cannot be considered as a deservingperson to get a decree of specific performance. He wouldalso submit that the explanation offered by the learnedcounsel for the plaintiff that the balance saleconsideration ought to have been deposited into Court tothe credit of the suit only when the Court had directed topay the said money and since there was no such order, theplaintiff did not deposit the money into Court cannot helpthe plaintiff. He would also submit that the plaintiffought to have applied for depositing the balance saleconsideration into Court but he did not apply for suchdepositing the balance sale consideration into Court. Hewould further submit that the agreement of sale enteredinto between the parties have become incapable ofperformance since the defendants have become unable toconvey the property with a right of pathway where it is notavailable. He would therefore submit that the agreement ofsale without the right of pathway is frustrated. Therefore, https://hcservices.ecourts.gov.in/hcservices/ 43the plaintiff is not entitled to the relief as prayed for. 32. He would also submit that the plaintiff neitherpaid the money as stipulated under Clause 4 of theagreement on the production of Urban Land Ceiling ClearanceCertificate nor paid the entire balance sale considerationafter the production of No Objection Certificate and theIncome Tax Clearance Certificate by the defendants on21.11.1994 and the said non-compliance of the conditionsof paying the money would vitiate the contract. He wouldalso submit that the time fixed by the parties to theagreement was certainly the essence of the contract and thenon-payment of Rs.50 lakhs on production of Urban LandCeiling Clearance Certificate and the balance saleconsideration within 31.3.1995 would show the violation ofsuch terms by the plaintiff. 33. He would also bring it to the notice of theCourt a judgment of Honourable Apex Court reported in 2011(12) SCC 18 (Sardamani Kandappan v. S.Rajlakshmi) and 1997(3) SCC 1 (K.S.Vidyanadam and others v. Vairavan) insupport of his argument. He would further submit that thecorrespondence had in between the parties would also showthat the time was the essence of the contract and when nojustification is seen for non-payment of balance saleconsideration within such time, it would be amounting tobreach of the conditions made in the agreement. 34. He would also rely upon yet another judgment of https://hcservices.ecourts.gov.in/hcservices/ 44the Honourable Apex Court reported in 2011 (5) LW 30 (SC)(M/s. Citadel Fine Pharmaceuticals. v. M/s. Ramaniyam RealEstates P. Ltd. & another) in support of his argument. Hewould also submit that the plea of plaintiff that he hadpurchased the respective shares of the defendants 5 and 6in the suit property after date of issuing the notice tothe defendants and before the filing of the suit would goto show that the plaintiffs claim was bonafide, would notin anyway help the plaintiff. He would further submit thatthe claim that the defendants 5 and 6 have executed thesale deeds in favour of the plaintiff in respect of theirrespective shares in the property would not in any waycompel the other defendants, viz., defendants 1 to 4 anddefendants 7 to 9 to execute the sale deed in favour ofthe plaintiff. He would further submit that the plaintiffhas to establish his case and to seek remedy on that basis.The settlement reached in between the plaintiff and thedefendants 5 and 6 would not in any way make the otherdefendants to execute the sale deed in respect of the suitproperty. 35. He would further submit in his argument that theremedy for the plaintiff would be to file a suit forpartition of his due shares purchased from the defendants 5and 6 and he cannot compel the other defendants to executesale deed in favour of the plaintiff . The right of co-ownership and the right to purchase of property under the https://hcservices.ecourts.gov.in/hcservices/ 45Partition Act has been laid down in the judgment of thisCourt reported in 2010 (2) LW 244 (A.K.Lakshmipathy (dead)and Ors. v. Rai Saheb Pannalal H.Lahoti Charitable Trust &Ors.). He would therefore submit that the plaintiff wouldnot be entitled to any relief as prayed for and therefore,the suit ought to have been dismissed against thedefendants.36. Learned senior counsel Mr.C.Selvaraju,appearing for Mr.R.Neelakandan, learned counsel for the 4thdefendant would submit in his argument that the memorandumof understanding produced in Ex.P3 would show the Clause 4is an important one which was admittedly not complied withby the plaintiff. He would further submit that as per thesaid stipulation in Clause 4, on production of Urban LandCeiling Clearance Certificate, a sum of Rs.50 lakhs shouldbe paid by the plaintiff, to which, the plaintiff did notcomply with. When the said non-compliance was notexplained to the satisfaction of the Court, thediscretionary relief may not be granted by the Court infavour of the plaintiff. He would also submit that the 4thdefendant was not a cause for the delay since he hadproduced the Income Tax Clearance even in the year 1994itself. He would further submit in his argument that thebalance sale consideration of Rs.2 crores 25 lakhs ought tohave been paid by the plaintiff to the defendants on orbefore 31.3.1995, out of which, a sum of Rs.50 lakhs should https://hcservices.ecourts.gov.in/hcservices/ 46have been paid within 4 months from the date of productionof the Urban Land Ceiling Clearance by the defendants tothe plaintiff i.e., on 21.11.1994. Since both theobligations cast upon the plaintiff were not performed bythe plaintiff it can be inferred that the plaintiff, wasnot ready and willing to perform his part of the contract.37. Learned senior counsel would also submitin his argument that the plaintiff has not come forwardwith acceptable evidence by speaking through the correctperson who had dealt with the transactions. He wouldfurther submit that the plaintiff company was managed byone Mr.Shreyas Sri Paul, during the time of entering intothe Memorandum of Understanding on 3.8.1994 and he had onlysigned as the Director of the plaintiff company andthereafter during the transactions had in between theparties, he had correspondence with the defendants onbehalf of the plaintiff till 30.12.1995 and the legalnotice in Ex.P20 was sent by the plaintiff and thosetransactions would have been known to the then ManagingDirector Mr.Shreyas Sri Paul only and the plaintiff who isnow representing as Director of the plaintiff company wasnot competent to speak about the important factual aspectas to its readiness and willingness and towards the paymentof the balance of sale consideration through the xeroxcopies of demand drafts etc. 38. Learned senior counsel would also submit that https://hcservices.ecourts.gov.in/hcservices/ 47the plaint filed and represented by Mr.K.Subbiah as itsDirector was not valid since no document has been producedthat the said K.Subbiah was one of its Directors and theBoard's resolution has been passed for the said K.Subbiah,to represent the plaintiff Company. He would also submitthat after the death of the said Director Mr.K.Subbiah, oneMr.Sarath Kakumanu is stated to have been the Director ofthe plaintiff Company whether the said Mr.Sarath Kakumanuwas a Director to represent the plaintiff company, afterthe said Mr.K.Subbiah. He would further submit that thecompetency to represent the Company ought to have beenproved by the plaintiff in order to maintain the suit onbehalf of the Company, in which, the said Mr.K.Subbiah andafter him Mr.Sarath Kakumanu are stated to be the Directorof the said Company. In the absence of such evidence orproof on the part of the plaintiff, the suit ought to havebeen dismissed on that ground itself.39. Further more, he would submit in his argumentthat the best evidence to be adduced by the plaintiff forproving the readiness and willingness and the transactionshappened prior to the filing of the suit would be the saidMr.Shreyas Sir Paul and in the absence of examination ofthe said witness, the plaintiff's claim for specificperformance cannot be ordered. 40. Learned senior counsel would also submit in hisargument that the execution of the sale deeds by the https://hcservices.ecourts.gov.in/hcservices/ 48defendants 5 and 6 towards their respective shares wouldnot in any way discharge the burden of proving therequirements for the grant of specific performance on thefoot of the Memorandum of Understanding Ex.P3. He wouldalso submit that as per Ex.P3, Memorandum of Understanding,the obligation cast upon the plaintiff was that he has toobtain sale deed from all the defendants and therefore,there cannot be any several or separate sale deeds asexecuted by Defendants 5 and 6. The arguments advanced bythe learned counsel for the plaintiff that there cannot beany doubt about the financial capacity of the plaintiffsince the Indian Bank was a party to the Memorandum ofUnderstanding Ex.P3, to which, the parties agreed that the10th defendant (Indian Bank) as the 4th party in theMemorandum of Understanding agreed to step into the shoesof the plaintiff to purchase the property when theplaintiff defaulted, cannot be sustained.41. Learned senior counsel would further submit thatno evidence has been adduced on the side of the 10thdefendant to show that the 10th defendant was ready topurchase the said property, in default of the plaintiff. Hewould further submit that the case was pending from theyear 1997 and there was no offer putforth by the 10thdefendant to step into the shoes of the plaintiff to getthe sale deed in its favour by paying the entire saleconsideration. https://hcservices.ecourts.gov.in/hcservices/

4942. Learned senior counsel would also submit in hisargument that the plaintiff has sent notices in order toprolong the case and there was no intention to pay of theentire sale consideration and to get the sale deed on thepart of the plaintiff. He would also submit, if really theplaintiff was actually ready and willing to perform itspart of the contract, it would have sent the entire balanceof sale consideration with the original demand draftsenclosed in the ratio of the defendants share. He wouldalso submit that the plaintiff had wantonly raised thedispute in respect of the area of the property from 20grounds to 18 grounds 2053 sq.ft and had sent aproportionate balance of sale consideration which is not acorrect tender. He would also submit that such deficitconsideration unilaterally sent by the plaintiff would notshow the readiness and willingness of the plaintiff. Hewould further submit that the grant of specific performanceis a discretionary relief as per the provisions of section20 of the Specific Relief act and the said relief cannot begranted merely because it was legal to do so. He wouldfurther submit in his argument that even though there was ageneral proposition of law that time is not the essence ofthe contract in the case of sale of immovable property, theparties to the said contract can make the time as theessence of the contract. He would further submit that suchstipulation made in an agreement could also be seen for https://hcservices.ecourts.gov.in/hcservices/ 50ascertaining the readiness and willingness of the partiesto the contract.43. In order to support his argument, he would relyupon the judgment of the Honourable Apex Court reported inAIR 1993 SC 1742 , the judgment of the ConstitutionalBench. He would further submit in argument that the furtherpayment fixed in between the parties to pay within thestipulated time and the failure of the purchaser to paysuch an amount would be amounting to failure to pay themoney within the time. He would also submit that theplaintiff was silent after issuance of notice for about 2years and this would also draw an inference that he wasnot ready and willing to perform his part of the contract.In such cases, equity cannot be favoured against theplaintiff in support of his argument. He would cite ajudgment of the Honourable Apex Court reported in 1997 (1)CTC 628 (K.S.Vidyanandam and others v. Vairavan). 44. Learned senior counsel would cite yet anotherjudgment of the Honourable Apex Court reported in 2011 (4)CTC 640 (Saradamani Kandappan v. S.Rajalakshmi and Others)for the proposition that the intention of parties to makethe time as essence of contract could be inferred from theconditions of the contract. He would also cite yet anotherjudgment of the Honourable Apex Court reported in 2011 (9)SCC 147 (M/s. Citadel Vine pharmaceuticals v. M/s. https://hcservices.ecourts.gov.in/hcservices/ 51Ramaniyam Real Estates Pv. Ltd. And Anr.) for the sameprinciple. 45. Learned senior counsel would also submit thatthe unfair advantage which is likely to get by theplaintiff in case the specific performance was orderedwould be no doubt true since the agreement was entered inthe year 1994 and the price of the properties have raisedmanifold and it cannot be ascertained what would be thepresent price and to ask the parties to comply with that.He would further submit that when such unfair advantage islikely to have accrued to the plaintiff, if specificperformance is ordered, it would deviate the defendantsvaluable right. He has referred to a judgment of theHonourable Apex Court reported in 1987 SC 2328 (ParakunnanVeetil Joseph's Son Mathew v. Nedumbara Kuruvil's Son andothers.) in support of his argument. He would also submitin his argument that the escalation of the price in betweenthe date of agreement and the date of disposal of the suitcould have been considered only before the trial Court butit is not a fit case to consider the said contingency,since the plaintiff is not entitled for the relief ofspecific performance and there is no evidence available forfixing the present market value. He would also submit thatthe raise in price of the land agreed to be conveyed is arelevant factor and if the specific performance is orderedin favour of the plaintiff to stick to the agreement https://hcservices.ecourts.gov.in/hcservices/ 52dated 3.8.1994 to pay a balance sum of Rs.2.25 crores,minus the sale price amount of defendants 5 and 6, itwould be a different thing, since the price of the suitproperty had raised multi-fold.46. Learned senior counsel would also submit thatthe learned counsel for the plaintiff had filed a memo byoffering to pay a sum of Rs.12 crores and that would go toshow that the price of the property has been raised multi-fold and it would not be at Rs.12 crores as suggested bythe plaintiff. He would also submit that the market valueof the property has to be ascertained through properevidence and if anything is suggested on any guess work, itwould be amounting to invention of new terms of contractin between the parties. He would also submit that whensuch escalation of price is an admitted one, the equitablerelief of specific performance need not be granted.47. In support of his argument, he had cited thejudgment of the Honourable Apex court reported in AIR 2001SC 2446 (V.Pechimuthu v. Gowrammal) and 2011 (12) SCC 658(Vimaleshwar Nagappa Shet v. Noor Anmed Sheriff & Others).He would also submit that the plaintiff was not ready andwilling to perform his part of the contract either bypaying a sum of Rs.50 lakhs within 4 months after theproduction of Urban Land Ceiling Clearance nor paid theentire balance sale consideration on or before 31.3.1995 asfixed by the parties in the agreement and therefore, there https://hcservices.ecourts.gov.in/hcservices/ 53could not be any proof of readiness and willingness on thepart of the plaintiff. He would rely upon the judgment ofthe Honourable Apex court reported in 2011 (4) SCC 741(Pramod Buildings & Developers (P) Ltd. v. Shanta Chopra)in support of his argument and requested the Court todismiss the suit for specific performance for want ofreadiness and willingness of the plaintiff. He wouldfurther submit in his argument that merely because theplaintiff's sister concern are in and around the suitproperty, the plaintiff cannot seek for the sale of thesaid property as per the agreement reached in between themwhen the requirements of readiness and willingness islacking on the part of the plaintiff. He would therefore,request the Court to dismiss the suit with exemplary costs.48. The arguments advanced by the learned counselappearing for both sides have to be dealt with on issuewise.49. Additional Issue Nos. 2 and 4:The suit has been filed by the plaintiff seeking for thefollowing reliefs against the defendants 1 to 4 , 7 to 9. "To direct the defendants 1 to 4 and 7 to 9,(a) to specifically perform theagreement dated 3.8.94 entered intobetween the plaintiff and thedefendants 1 to 9 and to do all actsnecessary for the execution of the SaleDeed in favour of the plaintiff, after https://hcservices.ecourts.gov.in/hcservices/ 54receiving the balance of saleconsideration payable to the defendantsin proportion to their respectiveshares in terms of the agreement forsale dated 3.8.94 and on their failingto do so direct an Officer of the Courtto execute the sale deed of theremaining portion of the suit propertyin respect of the undivided sharesowned by the defendants 1 to 4 and 7 to9 in favour of the plaintiff in termsof the agreement dated 3.8.94.(b) direct the defendants to doall acts necessary to put the plaintiffin full possession of the suitproperty.(c) pay costs of the suit.(d) pass such further or otherorders as this Honourable Court maydeem fit and proper in thecircumstances of the case."50. The admitted case of both parties would be thatthe plaintiff is a company and it had entered into amemorandum of understanding with the defendants 1 to 9 asfirst party and the erstwhile agreement holders in respectof the suit property namely Mr.Shankar Khandadi andMr.Usman Fayaz as the second party and the plaintiff itselfthe third party and the 10th defendant as the fourth party https://hcservices.ecourts.gov.in/hcservices/ 55and agreed to buy 20 grounds of the suit property put upwith the sketch, inclusive of a right of way in a commonpathway leading from Lattice Bridge Road to suit propertyat a breadth of 33 feet, for a total consideration ofRs.3,25,00,000/-. In the said Memorandum of Understandingdated 3.8.1994 produced as Ex.P3, there are several clausesagreed in between the parties and the important clauses areClauses Nos.1, 4,5, 8 to 11 and 14, apart from otherclauses. The earlier advance amount paid by the previousagreement holder were released for consideration asmentioned in agreement and it was agreed that the vendors,namely defendants 1 to 9 had received a sum of Rs.1 croreas advance paid in the said agreement of sale. It wasagreed in between the parties that the vendors shall putthe purchaser in vacant possession on the date ofregistration of the deed of sale as per clause 2; thepurchaser, namely, the plaintiff agreed to pay a furtheradvance of Rs.50 lakhs on production of Urban Land CeilingClearance Certificate or No Objection certificate underChapter XX-C of Income Tax Act under Clause 4; apart fromthat, the plaintiff(purchaser) shall pay the balance saleconsideration as agreed in between the parties within 4months on the production of No Objection Certificate underChapter XX-C of Income Tax Act and Income Tax ClearanceCertificate under section 230-A of the Income Tax Act underclause 5; the parties agreed to get the sale deed executed https://hcservices.ecourts.gov.in/hcservices/ 56on or before 31.3.1995 after obtaining all necessaryclearance certificates under clause 8; if the vendors fail,the purchaser, namely, the plaintiff is entitled to recoverall the advance amount together with interest at 24% perannum under clause 9; if the purchaser fails , the vendorsviz., the defendants shall retain 10% of the advance amountand claim for damages under clause 10; if the vendors(defendants 1 to 9) fail, the purchaser (plaintiff) isentitled to seek relief under the Specific Relief Act anddeposit the balance consideration or claim the advance withinterest at 24% per annum under clause 11; and in the eventof vendors (defendants 1 to 9) fulfil their obligations andthe purchaser (plaintiff) fails, the vendors shall returnthe advance with 6% interest. 51. The main features of Ex.P3 Memorandum ofUnderstanding would govern the entire enforcibility of thesaid agreement in between the parties. The time fixed forcompletion of the execution of the sale deed was fixed as31.3.1995 It has been contended that the said fixing of thedate would not be amounting to a date within which thecontract should have been completed, since the parties tothe contract have agreed mutually to extend the time evenafter 31.3.1995, by virtue of correspondence had inbetween them. Whether such time is essence of contract ornot will be dealt with in a separate issue. As far as theseissues are concerned, whether the suit filed by the https://hcservices.ecourts.gov.in/hcservices/ 57plaintiff is within the time as allowed by Law ofLimitation and whether the agreement entered into betweenthe parties was valid and executable at the time of filingthe present suit. No doubt, the outer limit for performanceand execution of sale deed is fixed at 31.3.1995. Withoutdetriment to decide the issues regarding the extension ofthe said period, if we calculate the period of limitationfrom the said date, namely, 31.3.1995, the period oflimitation as fixed under Article 54 of Limitation Act,namely 3 years would run upto 31.3.1995. No doubt, theplaint was presented into Court during the month of May1997 and it was taken on file during July 1997 which iswell within the period of limitation. When time has beenfixed in an agreement of sale, the first part of Article 54alone is applicable and there is no necessity to go intothe second part of Article 54 of Limitation Act toascertain the date of refusal. Therefore, I am of theconsidered opinion that the suit filed by the plaintiff waswell before the period of limitation.52. In the earlier paragraph, I have discussed andfound that the suit filed by the plaintiff on the foot ofthe agreement of sale entered into between the parties on3.8.1994 in Ex.P3 was well within the time. The saidagreement entered into between the plaintiff,defendants 1to 9 and 10th defendant along with the previous agreementvendees has not been disputed about its execution. The https://hcservices.ecourts.gov.in/hcservices/ 58defendants 1 to 4, 7 to 9 have only contended that theplaintiff is not entitled to the relief of specificperformance as entered into between the parties in Ex.P3.In the evidence adduced on either side, I could see thatthe truth, validity and the executability of the saidagreement was not disputed. As regards the enforcement ofthe said agreement, other aspects have to be gone into andtherefore, I could see that the said agreement of saledated 3.8.1994 was a valid agreement at the time of filingthe suit. Accordingly, both the issues are decided.53. Additional Issues 3 and Issue Nos.1 and 2:In the earlier issues, I found that the saidagreement Ex.P3 was executed in between the parties alongwith the previous agreement vendees on 3.8.1994, and it wasa true and valid agreement entered into between theparties. As regards its enforceability, it has to beconsidered whether the plaintiff was always ready andwilling to perform his part of the contract as stipulatedin the said agreement. For finding the readiness andwillingness of the plaintiff, it has to be consideredwhether the plaintiff has not committed any breach ofconditions of the agreement Ex.P3. In order to find outwhether the plaintiff has committed breach of the terms ofthe agreement, it has to be necessarily decided as towhether the time fixed in the agreement of sale Ex.P3 bythe parties is essence to the contract or not. The https://hcservices.ecourts.gov.in/hcservices/ 59plaintiff examined P.W.1 alone on his side and producedExs.P1 to P25. P.W.1 is stated to be a Director of theplaintiff company in his evidence. An objection has beenraised that P.W.1 has no competency to adduce evidencesince there was no document produced regarding hisauthority to depose on behalf of the plaintiff. However,in the earlier proceedings filed by the defendants, P.W.1was also impleaded as one of the defendants in O.S.No.3149of 2008 before the City Civil Court, Chennai. However, nodocument has been produced that P.W.1 was one of theDirectors of the plaintiff Company even though he hasdeposed that he is one of the Directors of the Company. Hehad admitted in his cross examination he had nothing to dowith the plaintiff company till 1996. P.W.1 had producedExs.P16 and P17, the sale deeds dated 6.11.1995 executed bythe 5th defendant in respect of conveying 5.625% undividedshare in the suit schedule properties in favour of theplaintiff. Similarly, the 6th defendant executed 2 saledeeds in Exs.P18 and P.19 dated 24.11.1995 conveying5.4625% undivided share in the suit schedule property ineach of the sale deeds in favour of the plaintiff. Thosesale deeds had conveyed 22.5% of the undivided share of thesuit schedule property and in the said sale deeds Exs.P16and P17 which had been referred that the plaintiff was avendee.It has not been disputed that P.W.1 was not theManaging Director after 1996. In this aspect, it has to be https://hcservices.ecourts.gov.in/hcservices/ 60referred to the judgments of the Honourable Apex Courtreported in 1996 (6) SCC 660 (United Bank of India v.Naresh Kumar and others) as cited by the learned counselfor the plaintiff. The relevant passage would run asfollows:"10. ......... A person may beexpressly authorised to sign thepleadings on behalf of the company, forexample by the Board of Directorspassing a resolution to that effect orby a power of attorney being executed infavour of any individual. In absencethereof and in cases where pleadingshave been signed by one of it's officersa Corporation can ratify the said actionof it's officer in signing thepleadings. Such ratification can beexpress or implied. The Court can, onthe basis of the evidence on record, andafter taking all the circumstances ofthe case, specially with regard to theconduct of the trial, come to theconclusion that the corporation hadratified the act of signing of thepleading by it's officer."54. Yet another judgment reported in 1973 (2) SCC543 (Parmeshwari Prasad Gupta vs The Union Of India) wasalso relied upon by the plaintiff. The relevant passageruns as follows:"14. ......... Therefore, it was https://hcservices.ecourts.gov.in/hcservices/ 61open to a regularly constituted meetingof the Board of Directors to ratify thataction which, though unauthorised, wasdone on behalf of the Company.Ratification would always relate back tothe date of the act ratified and so itmust be held that the services of theappellant were validly terminated onDecember 17, 1953. The appellant was notentitled to the declaration prayed forby him and the trial court as well asthe High Court was right in dismissingthe claim."55. Yet another judgment reported in 2006(5) SCC 96 (Maharashtra State Mining Corporation v. Sunil) was reliedupon for the same purpose. The relevant passage runs asfollows:"7. The High Court was rightwhen it held that an act by a legallyincompetent authority is invalid. Butit was entirely wrong in holding thatsuch an invalid act cannot besubsequently ''rectified'' byratification of the competentauthority. Ratification by definitionmeans the making valid of an actalready done. The principle is derivedfrom the Latin maxim 'ratihabitiopriori mandato aequiparatur' namely "asubsequent ratification of an act is https://hcservices.ecourts.gov.in/hcservices/ 62equivalent to a prior authority toperform such act". Thereforeratification assumes an invalid actwhich is retrospectively validated."56. Those judgments will categorically lay down theprinciple that the approval of the earlier act can be doneby ratification by word or conduct or action throughwhich the improper and unauthorised performance can becorrected. In the evidence of P.W.1, it has been suggestedthat P.W.1 has resigned from the Directorship of theCompany on 29.12.2005 to which, he has denied it.Therefore, I could see that P.W.1 was previously theDirector of the plaintiff company and he is said to haveresigned on 29.12.2005, to which, no evidence isavailable. Therefore, I could see that P.W.1 was one of theDirectors during the time of examination of P.W.1 and whenhe was questioned regarding the suit transaction it wasimpliedly admitted that he was the then Managing Directorof the plaintiff Company. When P.W.1 was a Director of theCompany, even though he was not a Director during thetransaction had in between the parties, he was competent todepose as well as maintain the suit representing theplaintiff Company. Therefore, P.W.1 is competent torepresent the plaintiff, after the death of the earlierDirector K.Subbiah.57. The execution of Ex.P3, Memorandum of https://hcservices.ecourts.gov.in/hcservices/ 63Understanding in between all the four parties, includingthe plaintiff and defendants 1 to 10, was an admitted one.The important clauses as regards the time for execution ofthe contract are being dealt with in Clauses 4, 5 & 8. Forbetter understanding, the said clauses are extractedhereunder:"4. THE PARTIES OF THE FIRSTPART shall obtain and produce UrbanLand Ceiling Clearance Certificate fromthe Authorities as early as possible,if necessary under the Act or Rules.THE PARTY OF THE THIRD PART agrees topay a further advance of Rs.50,00,000/-(Rupees Fifty lakhs only) to THEPARTIES OF THE FIRST PART on suchproduction, if the Urban Land CeilingClearance is produced earlier to N.O.Cfrom the appropriate Authority. I.T.Dept., Madras; or on production ofN.O.C. under chapter XX-C of the IncomeTax Act , whichever is earlier. Thetime for obtaining the clearance underUrban Land Ceiling is coterminous withthe time taken for obtaining theclearance under the Income Tax Actunder chapter XX-C of the Act.5. THE PARTY OF TEH THIRD PARTshall pay the balance saleconsideration without waiting for theclearance under U.L.C Act and competethe transaction and get the Sale Deed https://hcservices.ecourts.gov.in/hcservices/ 64executed within four months from thelast date when THE PARTIES OF THE FIRSTPART obtain and produce (a) N.O.C.Under Chapter XX-C; and (b) Income TaxClearance Certificates under Sec.230-A.Time is the essence of this contract.....8. In any event, the partiesherein agree to get the Sae Deedexecuted personally by all THE PARTEISOF THE FIRST PART and arrange toregister the same at the cost of THEPARTY OF THE THIRD PART on or before31.3.1995 after obtaining all thenecessary clearance certificates."58. According to Clause 8, it has been categoricallyagreed that the first party should arrange the registrationof the sale deed and the third party to execute the saledeed on or before 31.3.1995 after obtaining all necessaryclearance certificates. It is also mentioned in Clause 5that time is the essence of the contract. It has beenstrenuously argued by the learned counsel for the plaintiffthat even though, the parties have agreed for certain timelimit and also with a condition that time is the essence ofcontract, it has not been considered that the saidstipulated time should have been considered as essence ofthe contract and the conduct of parties to the saidadherence of clause would show that the time fixed in theagreement was not treated as essence of the contract. https://hcservices.ecourts.gov.in/hcservices/

6559. The judgments referred to in 1993(1) SCC519 (Chand Rani v. Kamal Rani) as to the principle thattime, when essence of the contract, it has been laid downas follows:"19. It is a well-acceptedprinciple that in the case of sale ofimmovable property, time is neverregarded as the essence of the contract.In fact, there is a presumption againsttime being the essence of the contract.This principle is not in any waydifferent from that obtainable inEngland. Under the law of equity whichgoverns the rights of the parties in thecase of specific performance ofcontract to sell real estate, law looksnot at the letter but at the substanceof the agreement. It has to beascertained whether under the terms ofthe contract the parties named aspecific time within which completionwas to take place, really and insubstance it was intended that it shouldbe completed within a reasonable time.An intention to make time the essence ofthe contract must be expressed inunequivocal language."60. Yet another judgment reported in 2004(8) SCC 689(Swarnam Ramachandran v. Aravacode Chakungal Jayapalan)would also hold the field. The relevant passage would run https://hcservices.ecourts.gov.in/hcservices/ 66as follows:"10. .... Notwithstanding thata specific date was mentioned in theagreement, one has not only to look atthe letter but also at the substance ofthe contract. Whether time is ofessence is a question of fact and thereal test is intention of the parties.It depends upon facts and circumstancesof each case.".....12. That time is presumed notto be of essence of the contractrelating to immovable property, but itis of essence in contracts ofreconveyance or renewal of lease. Theonus to plead and prove that time wasthe essence of the contract was on theperson alleging it, thus giving anopportunity to the other side to adducerebuttal evidence that time was not ofessence. That when the plaintiff pleadsthat time was not of essence and thedefendant does not deny it by evidence,the Court is bound to accept the pleaof the plaintiff. In cases where noticeis given making time of the essence, itis duty of the Court to examine thereal intention of the party giving suchnotice by looking at the facts andcircumstances of each case. That avendor has no right to make time of the https://hcservices.ecourts.gov.in/hcservices/ 67essence, unless he is ready and willingto proceed to completion and secondly,when the vendor purports to make timeof the essence, the purchaser must beguilty of such gross default as toentitle the vendor to rescind thecontract."61. In the judgment of the Honourable Apex Courtreported in 2009 (5) SCC 678 (M.P.Housing Board v.Progressive Writers and Publishers) it has been held asfollows:"27. It is fairly well settledthat time is not normally an essence ofany agreement qua immovable propertiesand even if there was an express covenantof time being an essence, the overallagreement have to be looked at todetermine whether time was the essence.Whether time is the essence of thecontract would, therefore, be a questionof fact to be determined in each case andmerely expression of the stipulated timewould not make time an essence of thecontract."62. In yet another judgment of the Honourable ApexCourt reported in 2011 (12) SCC 18 (Sardamani Kandappan v.S.Rajlakshmi), it has been held as follows:"23. The above section dealswith the effect of failure to perform https://hcservices.ecourts.gov.in/hcservices/ 68at a fixed time in contracts in whichtime is essential. The question whethertime is the essence of the contract,with reference to the performance of acontract, what generally may arise forconsideration either with reference tothe contract as a whole or withreference to a particular term orcondition of the contract which isbreached. In a contract relating tosale of immovable property if time isspecified for payment of the sale pricebut not in regard to the execution ofthe sale deed, time will become theessence only with reference to paymentof sale price but not in regard toexecution of the sale deed. Normally inregard to contracts relating to sale ofimmovable properties, time is notconsidered to be the essence of thecontract unless such an intention canbe gathered either from the expressterms of the contract or impliedly fromthe intention of the parties asexpressed by the terms of thecontract."63. The aforesaid judgment of the Honourable ApexCourt has clearly laid down that the principle of time asessence of contract is normally presumed to be notapplicable for a contract of sale in respect of immovableproperties except in a Deed of Reconveyance or Renewal of https://hcservices.ecourts.gov.in/hcservices/ 69Lease. It has also been dictated that the march of time asessence of contract has to be tested with the intention ofparties which has to be culled out upon the facts andcircumstances of each case. In the back drop of the saiddicta laid down by the Honourable Apex Court when weapproach the facts and circumstances through the pleadingsand evidence, I could see that the counsel for thedefendants had written a letter on 28.3.1995 to thecounsel for the plaintiff stating that the talk in respectof the extent of the property and the execution of saledeed in between the parties would be convened on 4.4.1995which is mutually convenient date and therefore, it couldbe considered that 31.3.1995 was not the crucial date tocomply with the execution of sale deed on or before31.3.1995. On a careful perusal of the said letter writtenby the counsel for the defendants which was produced asEx.D2 on the side of the defendants in paragraph 3, it hasbeen clearly laid down as follows:"3. Princess Poyam Thirunal hassome urgent work at Bombay. After outtelephonic talk I had informed that,Princess can proceed to Bombay as itmay not be possible for the party tocomplete the sale deed on or before31.3.95."64. Apart from the said disability for notregistering the document on or before 31.3.1995, it has https://hcservices.ecourts.gov.in/hcservices/ 70been postponed by the counsel for the defendant to 4.4.1995for holding a talk in respect of extent of the property andthe execution of the sale deed and the payment ofconsideration for the said properties. Therefore, the timefixed to execute the sale deed on or before 31.3.1995 wasnot treated as the essence of the contract. 65. As regards readiness and willingness of theplaintiff to perform its part of contrct, the learnedsenior counsel appearing for most of the defendants viz.,defendants 1 to 3 , 7 to 9, Mr.S.V.Jayaraman would stressin his argument that the plaintiff was not at all ready andwilling to perform his part of the contract throughout andhe was also liable for breach of contract. Similarly, thelearned senior counsel appearing for the 4th defendant,Mr.C.Selvaraju would also submit that the plaintiff isnot only guilty of breach of contract but was deliberatelyfailed to honour the terms of agreement by not paying theagreed sum immediately on production of Urban Land CeilingClearance Certificate as per Clause 4 of the Agreement.Whether the said non-payment, if true is a serious lacheson the part of the plaintiff. However, the learned counselMr.R.Parthasarathy would argue that the said non-payment ofRs.50 lakhs as per clause 4 of the agreement was due todiscrepancies in the extent of the property and the pathwayright in the common pathway connecting Lattice Bridge Roadwith the suit property as described in the agreement of https://hcservices.ecourts.gov.in/hcservices/ 71sale. It has been further submitted by the learned counselfor the plaintiff that the said reason has been elicited inthe re-examination of P.W.1.66. On a careful consideration of these submissionsand evidence adduced on the side of the plaintiff regardingthe payment as per the conditions, I could see that thecondition as imposed under Clause 4 of the agreement was tothe effect that the purchaser, namely, the plaintiff agreedto pay a further advance of Rs.50 lakhs on production ofUrban Land Ceiling Clearance Certificate or No ObjectionCertificate under XX-C of Income Tax Act by the defendants.According to the pleadings found in the plaint in paragraph14, it has been categorically admitted that the Urban LandCeiling Authorities have issued a clearance certificate inSeptember 1994 itself. Similarly, in paragraph 15 of theplaint it is stated that the Income tax Authorities hadissued No Objection for the sale of the property in favourof the plaintiff on 21.11.1994 by its order dated21.11.1994 in AA/MDS/8(286) 11/94-95-M.111. In the evidenceof both sides, I could also see that those certificateshave been produced as Exs.P4 and P6 respectively. Accordingto Ex.P6, the No Objection Certificate from the Income Taxauthorities were obtained by the defendants 1 to 9 andhanded over to the plaintiff which is dated 21.11.1994.Therefore, the plaintiff is at the obligation to pay anadditional advance of Rs.50 lakhs to the defendants on such https://hcservices.ecourts.gov.in/hcservices/ 72production of No Objection Certificate from Income Taxauthorities. The said amount of Rs.50 lakhs was admittedlynot paid towards additional advance by the plaintiff to thedefendants 1 to 9 . However, it has been argued by thelearned counsel for the plaintiff that a letter written bythe plaintiff to the defendants 1 to 9 on 28.3.1995produced in Ex.P9 would disclose that there was a disputein the extent of the property and therefore, the saidpayment of Rs.50 lakhs could not be paid by the plaintiffto the defendants 1 to 9. The said reason put forth by thelearned counsel for the plaintiff, was vehemently opposedby the learned senior counsel appearing for the defendants1 to 4 and 7 to 9. 67. A judgment of the Honourable Apex Courtreported in 2011(4) SCC 741 (Pramod Buildings & Developers(P) Ltd v. Shanta Chopra) has been cited by the leanedsenior counsel appearing for the 4th defendant. The relevantpassage would run as follows:"18. As rightly held by theHigh Court, it was for the plaintiffwho approached the Court to prove thathe was ready and willing to perform thecontract. The plaintiff in a suit forspecific performance, cannot obviouslysucceed unless he proved that he wasready and willing to perform thecontract. The exhaustive correspondencebetween the parties clearly discloses https://hcservices.ecourts.gov.in/hcservices/ 73the respective stands of the parties.Even the prayer in the plaint showsthat the appellant was not ready to paythe entire balance of Rs.34,00,000 asagreed under the agreement of sale butthat the plaintiff insisted upon theappellant to pay the municipal taxesbefore the sale, as a condition forsale. If the appellant was not willingto pay Rs.34 lakhs at the time ofsale,a s specifically agreed under theagreement of sale, the appellant couldnot claim that it was ready and willingto perform its obligations."68. In the judgment as cited by the learned counselfor the plaintiff reported in 1969 (3) SCC 120 (Nathulal vsPhoolchand) it has been held as follows:"12. ......If, therefore.tinder the terms, of the contract theobligations of the parties have to beperformed in a certain sequence, one ofthe parties to the contract cannotrequire compliance with the obligationsby the other party without in the firstinstance performing his own part of thecontract which in the sequence ofobligations is performable by himearlier."69. Yet another judgment cited by the learnedcounsel for the plaintiff reported in 2004(6) SCC 649 https://hcservices.ecourts.gov.in/hcservices/ 74(P.D'Souza v. Shondrilo Naidu) would lay down the principleas follows:"21. It is not a case where theplaintiff had not made the requisiteaverments in the plaint. The readinessand willingness on the part of theplaintiff to perform his part ofcontract would also depend upon thequestion as to whether the defendantdid everything which was required ofhim to be done in terms of theagreement for sale. The plaintiff was atenant of the defendant."70. In the aforesaid judgments, it has beencategorically laid down that the readiness and willingnessof the stipulations made in the contract would depend uponthe question as to whether the performance of thedefendants was also required so as to seek the reciprocalperformance from the other side.71. If so whether such performance has beencorrectly done by the defendant is a question, to seek forthe performance from the other side. As admittedly statedin the plaint that 'No Objection Certificate' from IncomeTax Department has been obtained on 21.11.1994, apart fromUrban Land Ceiling Authority which gave the clearance evenin September 1994 in respect of the suit property throughits letter dated 20.11.1994. Those documents are producedas Exs.P6 and P4 respectively. According to Clause 4, the https://hcservices.ecourts.gov.in/hcservices/ 75plaintiff was under the liability of performing his part ofthe contract on such production of those certificates bypaying Rs.50 lakhs towards additional advance. It has beenexplained by the plaintiff that the said payment of Rs.50lakhs was not paid due to the discrepancy in the area andthe pathway right. The said explanation emanated only in aletter written on 8.3.1995, when the time stipulated forexecution of the sale deeds on or before 31.3.1995 wasreaching. There is no murmur in between the date ofsubmission of No Objection Certificate from the Income TaxAuthority and the Urban Land Ceiling Clearance certificateon 20.11.1994 and 28.3.1995 regarding the discrepancy inthe area. 72. It is not disputed that the defendants havepursued in getting the No Objection Certificate from theIncome tax Department as well as the clearance from UrbanLand Ceiling Authorities and produced them to the plaintiffon 21.11.1994. The performance due on the side of thedefendants 1 to 9 was completed on 21.11.1994, thereciprocal performance due as per clause 4 of the agreementwas to pay a sum of Rs.50 lakhs towards additional advanceto the defendants 1 to 9 but it was not paid by theplaintiff. The explanation offered by the plaintiff in there-examination that there was discrepancy in the extent ofthe pathway right of the suit property, cannot be believedfor not paying the said payment which has to be paid by the https://hcservices.ecourts.gov.in/hcservices/ 76plaintiff on the performance of the defendants through theproduction of No Objection Certificate from the Income Taxas well as Urban Land Ceiling Certificate from theauthorities concerned. The failure on the part of theplaintiff to pay the said additional advance is a seriousone and it would show that the plaintiff was not ready andwilling to perform his part of the contract from 21.11.1994till 28.3.1995.73. Could the said lacunae or failure to performthe part of the plaintiff be redressed by the subsequentacts of the parties had through the communication andcorrespondence in between them.74. The communications in between the plaintiff anddefendants were produced as Exs.P7 to P9 and Exs.D1 and D2.According to the evidence adduced by both sides, I couldsee that the outer period fixed for the purpose would beending by 31.3.1995 and therefore, the correspondence hadin between the parties till 31.3.1995 or very muchimportant for the purpose of ascertaining the mutualunderstandings reached in between the parties. On a carefulperusal of Ex.P7, a letter written by the plaintiff, theplaintiff would state that the plaintiff would be makingthe payment of entire balance of sale consideration at theend of 1995 and have the execution and registration of saledeed along with the draft copy of sale deed so as to obtainIncome Tax Clearance Certificates. The plaintiff has also https://hcservices.ecourts.gov.in/hcservices/ 77requested the defendants to remove all the furnitures andfittings from the said building located in the suitproperty for facilitating the delivery of vacant possessionon the date of registration of the sale deed. Ex.P80,another letter written by the plaintiff to 9th defendant, inwhich, the plaintiff reiterated that the entire balance ofsale consideration would be paid by the end of January1995. Further more, in Ex.P9, a letter written by theplaintiff to all the defendants on 28.3.1995, for the firsttime, stating that the extent of the property was only 18grounds 2053 sq.ft. and not 20 grounds and also sought forcertain information about the Income Tax ClearanceCertificate obtained and the removal of the furnitures andfittings from the said building in the property and tocomply with the requirements of Clause 8 of the agreement.However, it was stated in the said letter that the saidletter was written for recording the readiness andeagerness to pay the entire balance consideration and tocomplete the transaction as per agreement and sought for 20grounds property to be conveyed. In the letter sent by thecounsel for the defendants, namely, K.L.Narasimhan on28.3.1995, produced as Ex.D2 it is stated that theregistration could not be possible before 31.3.1995however, it had been fixed for execution of sale deed on4.4.1995 and the sale deed would be executed for 20 groundsfor the consideration of Rs.3.25 crores and the actual https://hcservices.ecourts.gov.in/hcservices/ 78area will be found on measurement and considerationtherefor, on proportionate basis making it binding on bothsides.75. Considering all these correspondence, I couldsee that the parties along with their counsel have notconsidered that the sale deed need not be executed on orbefore 31.3.1995 but it could be executed on 4.4.1995 for20 grounds and and the accepted consideration and theactual measurement could be arrived at on measuring theproperty and the proportionate consideration may be fixedin between the parties. On the said date namely 4.4.1995,neither the entire balance sale consideration was paid northe sale deed was executed. In the said correspondencediscussed above viz., Exs.P7 to P9 and Ex.D2, the non-payment of additional advance to the tune of Rs.50 lakhs onthe production of Urban Land Ceiling Certificate on20.11.1994 has not been explained by the plaintiff.Despite the plaintiff has stated that he is ready to paythe entire balance of sale consideration before the end ofJanuary 1995 even the said amount of Rs.50 lakhs whichought to have been paid on 21.11.1994 was not paid. Eventhough the defendants have communicated through theirlawyer that let the consideration fixed for the entireproperty be Rs.3.25 crores and could be executed for 20grounds and the proportionate sale consideration could beascertain thereafter, the plaintiff did not come forward to https://hcservices.ecourts.gov.in/hcservices/ 79either pay the said money on 4.4.1995 inclusive of Rs.50lakhs which ought to have been paid on 21.11.1994 and getthe sale deed executed nor had he sent the proportionateamount through original demand drafts immediately onreceipt of Ex.D2 from defendants lawyer. However he hadexclosed the xerox copies of the demand drafts for theproportionate extent of the property, namely, 18 grounds2053 sq.ft. along with the letter dated 7.8.1995 producedas Ex.P11. In the said letter, the plaintiff requested thedefendants separately seeking convenient date for executionof the sale deed after receiving the original demand draftfrom the plaintiff. Whether the tender made by theplaintiff through Ex.P11 series of letters would show thereadiness and willingness on the part of the plaintiff is acrucial question. 76. We have already discussed and found that thetime limit fixed by the parties at 31.3.1995 forperformance of the contract was postponed to 4.4.1995.However, a letter was sent by the plaintiff to thedefendants stating that the time to complete thetransaction in all respects was decided by the counsel forthe defendants before the end of June 1995 and the same wasnot fructified and therefore, the plaintiff was ready topay the consideration and eager to pay the same andcomplete the transaction atleast before 15.7.1995. It hasalso been sought for delivering the vacant possession of an https://hcservices.ecourts.gov.in/hcservices/ 80extent of 20 grounds with an uninterrupted right of way.The contents of Ex.P10 would candidly show that theplaintiff was not willing to get 18 grounds 2053 sq.ft butwanted 20 grounds as agreed in the agreement for thepayment of entire balance of sale consideration. Even aftersaying that he is ready to pay the balance of saleconsideration, the plaintiff had only sent a xerox copy ofthe demand drafts to each of the defendants 1 to 9 towardsthe proportionate balance of sale consideration for 18grounds and 2053 sq.ft. only. The said circumstances andthe conduct of plaintiff would go to show that theplaintiff was not unconditionally ready to give the paymentof the entire balance of sale consideration, despite noadditional advance of Rs.50 lakhs was paid on 21.11.1994and to get the sale deed in favour of the plaintiff. 77. The arguments advanced by the learned counselfor the plaintiff would go to show that the readiness andwillingness to perform the contract entered into betweenthe parties, on the part of the plaintiff need not besuspected, because the 4th party to the agreement, Ex.P3,namely 10th defendant, being a nationalised bank is insupport of the plaintiff to finance or to step into theshoes of the plaintiff to get the sale deed and therefore,the readiness and willingness can be inferred through thepresence of the 10th defendant. Such an argument of the https://hcservices.ecourts.gov.in/hcservices/ 81learned counsel for the plaintiff may be helpful toascertain the financial capacity of parties but readinessand willingness is a different one.78. In the judgment of the Honoruable Apex Courtreported in 2012 (5) SCC 712 (Narinderjit Sing v North StarEstate Promoters Limited), it is very clearly laid down asfollows:"21. In R.C.Chadiok v. ChuniLal Sabharwal this Court observed that"readiness an4d willingness cannot betreated as a straitjacket formula andthe issue has to be decided keeping inview the facts and circumstancesrelevant to the intention and conductof the party concerned". The same viewwas reitered in P.D'Souza v. ShondriloNaidu.".79. In the aforesaid judgment, it has beenreiterated, the earlier judgments of the Honourable ApexCourt and was found that the readiness and willingness toperform the contract has to be adjudged with reference tothe conduct of the parties and the attending circumstances.The plaintiff, even though, has repeatedly stating that hewas ready and willing to pay the balance of saleconsideration and get the sale deed executed through hisletters, Exs.P9, P10, P11, but he had not mentioned thepayment of Rs.50 lakhs which he was obliged to pay under https://hcservices.ecourts.gov.in/hcservices/ 82clause 4 of the agreement in his subsequent correspondence.The plaintiff has also not come forward with the payment ofthe entire balance of sale consideration as agreed to bepaid on or before 4.4.95 in order to get the sale deed.This non-payment of Rs.50 lakhs as per Clause 4 of theagreement and the failure to pay the entire balance of saleconsideration atleast by 4.4.1995 on the part of theplaintiff would not only show the breach of terms ofagreement by the plaintiff but also the unwillingness topay the entire balance sale consideration even afternegotiations had been done at the end of the fixed datenamely 31.3.95 or 4.4.95 as the case may be.80. It is quite clear that the plaintiff need notjingle the coin to show his financial capacity showingreadiness and willingness on the part of the plaintiff. Thesaid proposition have been laid in the judgment of theHonourable Apex Court reported in 1969(3) SCC 120 (Nathulalv. Phoolchand). The relevant passage would run as follows:"6. ...... To prove himselfready and willing a purchaser has notnecessarily to produce the money or tovouch a concluded scheme for financingthe transaction: Bank of India Ltd. andOthers. v. Famsetji A.H.Chinoy andMessrs. Chinoy and Company."81. The said principle has been followed by this https://hcservices.ecourts.gov.in/hcservices/ 83Court in the judgment reported in 1999 (III) MLJ 404(S.Ramakrishnan v. R.M.Subbiah) . The relevant passagewould run thus:"18. .... There are catenaof decisions of this Court and the ApexCourt to the effect that readiness andwillingness do not imply that thepurchaser must produce money and theconditions to be fulfilled are thatpurchaser had done some act infurtherance of the contract and the actperformed by him was with certainty."82. The dictum laid down by the aforesaid judgmentwould go to show that there is no need for deposit of themoney before the Court to show readiness and willingness onthe part of the plaintiff. However, the plaintiff who wasstating that he was ready and willing to perform his partof the contract, did not explain about the non-payment of Rs.50 lakhs, to which, he was obliged to pay onthe production of Urban Land Ceiling Clearance Certificateon 20.11.1994. No attempt has been made to pay the said sumwith an explanation by the plaintiff till the date of suitand even after the filing of the suit. Therefore, I am ofthe considered view that the plaintiff was not ready andwilling to perform his part of the contract as contemplatedunder Clause of the Memorandum of Understanding Ex.P3.Accordingly, additional issue No.3 is decided in favour of https://hcservices.ecourts.gov.in/hcservices/ 84the plaintiff. However, Issue No.1 and Issue No.2 aredecided against the plaintiff.83. Issue No.3 and Additional issue No.1The suit has been filed by the plaitniff seeking forspecific performance of the contract namely memorandumm ofunderstanding dated 3.8.1994 Ex.P3 which was based upon theprevious agreement dated 10.3.1993. The grant of the reliefof specific performance based upon the agreement of sale isgoverned by section 20 of the Specific Relief Act. Section20 of the Specific Relief Act runs as follows:"20. Discretion as to decreeingspecific performance:-(1) The jurisdiction to decreespecific performance is discretionary,and the court is not bound to grantsuch relief merely because it is lawfulto do so; but the discretion of thecourt is not arbitrary but sound andreasonable, guided by judicialprinciples and capable of correction bya court of appeal.(2) The following are cases inwhich the Court may properly exercisediscretion not to decree specificperformance-(a) where the terms of thecontract or the conduct of the partiesat the time of entering into thecontract or the other circumstances https://hcservices.ecourts.gov.in/hcservices/ 85under which the contract was enteredinto are such that the contract, thoughnot voidable, gives the plaintiff anunfair advantage over the defendant; or(b) where the performance of thecontract would involve some hardship onthe defendant which he didl not foresee,whereas its non-performance wouldinvolve no such hardship on theplaintiff; (c) where the defendant enteredinto the contract under circumstanceswhich though not rendering the contractvoidable, makes it inequitable toenforce specific performance.Explanation 1:- Mere inadequacyof consideration, or the mere fact thatthe contract is onerous to the defendantor improvident in its nature, shall notbe deemed to constitute an unfairadvantage within the meaning of clause(a) or hardship within the meaning ofclause (b). Explanation 2:- The questionwhether the performance of a contractwould involve hardship on the defendantwithin the meaning of clause (b) shall,except in cases where the hardship hasresulted from any act of the plaintiffsubsequent to the contract, bedetermined with reference to thecircumstances existing at the time of https://hcservices.ecourts.gov.in/hcservices/ 86the contract.(3) the court may properlyexercise discretion to decree specificperformance in any case where theplaintiff has done substantial acts orsuffered losses in consequence of acontract capable of specificperformance.(4) The court shall not refuseto any party specific performance of acontract merely on the ground that thecontract is not enforceable at theinstance of the other party."84. According to the submission of the learnedcounsel for the plaintiff specific relief shall be normallygranted as a rule and the denial of the same is anexception. For the said principle, he would cite a judgmentof the Honourable Apex Court reported in 1979 (4) SCC 393(Prakash Chandra v. Angadlal). The relevant passage wouldrun as follows:"9. The ordinary rule is thatspecific performance should be granted.It ought to be denied only when equitableconsiderations point to its refusal andthe circumstances show that damages wouldconstitute an adequate relief." https://hcservices.ecourts.gov.in/hcservices/ 87Yet another judgment of the Honourable Apex Corut reportedin 1999 (III) MLJ 404 (S.Ramakrishnan v. R.M.Subbiah) wasalso cited for the said principle. The relevant passagewould run thus:"20. .... The relief by way ofspecific performance beingdiscretionary under Sec.20, theplaintiff must come to Court with cleanhands and with all the materials withregard to readiness and willingness tocomplete the sale transaction asstipulate din the agreement. The oralevidence of P.w.1 and the documentsclearly established that the plaintiffhas come to court with clean hands andhe was always ready and willing toperform his part of the contract and hewas anxious to complete the saletransaction and only the defendant wasevading the execution of the sale deed.So this Court has to necessarilyexercise its discretionary power toorder specific performance of thecontract."Whether the aforesaid principles laid down in this judgmentwould be helpful to the plaintiff is the question to bedecided on the basis of the evidence adduced by theplaintiff. 85. According to the said provisions, judicial https://hcservices.ecourts.gov.in/hcservices/ 88discretion has to be exercised for the grant of such arelief. When we approach the evidence adduced in this case,the person who represented the plaintiff company at thetime of execution of the suit agreement Ex.P3 and had thecorrespondence with the defendants till December 1995, wasone Mr.Shreyas Sri Paul and he was not examined to speakabout the intention of parties had at that time towards theperformance of agreement of sale. The possession of thesuit property was stated to have been given by thedefendants to the plaintiff and the plaintiff was seekingthe full possession of the suit property in the prayer.However, the communication in Exs.P6 to P9 would go to showthat the vacant possession should have been given to theplaintiff. Those documents would go to show that possessionwas yet to be given by the defendants to the plaintiffwhereas the pleading in the plaint would go to show thatthe entire building in the suit property was not handedover and therefore, the plaintiff requested the defendantsto remove the fixtures and fittings prior to the executionof the sale deed. The pleadings putforth by the plaintiffregarding the possession is contradictory. No doubt, it isa settled law that the plaintiff has to approach the Courtwith clean hands. But such submission is contradictory tothe evidence and therefore, this Court cannot exercise thediscretion in favour of the plaintiff.86. Apart from that, the property comprised in 20 https://hcservices.ecourts.gov.in/hcservices/ 89grounds in the suit property was agreed to be sold for atotal consideration of Rs.3.25 crores. The total sum ofRs.1 crore was paid as advance towards the saidtransaction. No further payment was made including theadditional advance of Rs.50 lakhs till the date of the suitand after the date of the suit. The agreement was enteredinto between the parties in the year 1994. The suit wastried and it was brought to Court in the year 2012 forarguments and on the date of addressing arguments, value ofthe property cannot be said as static. The suit propertyis located in a very prominent place at Adayar and it is avast extent. The parties to the suit cannot dispute thevalue of property had increased multi-fold. Even though theprice has been escalated from the date of execution of theagreement and the suit has been filed within the period oflimitation, it is pending for more than 17 years. Nodoubt, the suit property is an urban property and noevidence has been adduced regarding its present value. Theplaintiff had putforth an offer by filing a memo that heis ready to pay a sum of Rs.12 crores with otherexpenditures, in case, this Court has come to a conclusionthat the value of the property had increased multi-fold.The said offer was negatived by the learned senior counselappearing for the defendants.87. Before filing the suit, the defendants 5 and 6have executed sale deeds in respect of their share in the https://hcservices.ecourts.gov.in/hcservices/ 90suit property through Exs. P16 to P19. The plaintiff hasfiled the suit for the remaining extent of properties fromthe defendants 1 to 4 and 7 to 9. Whether the escalation ofprice would be a bar for the grant of specific performanceis the question. A judgment reported in 2011 (12) SCC 658(Vimaleshwar Nagappa Shet v. Noor Ahmed Shariff) would runas follows:"11. It is settled law thatSection 20 of the Specific Relief Act,1963 confers discretionary powers (VideM.Meenakashi v. Metadin Agarwal,Nirmala Anand v. Advent Corpn.(P) Ltd.and Parakunnan Veetill Joseph's SonMathew v. Nedumbara Karuvila's Son).It is also well settled that the valueof the property escalates in urbanareas very fast and it would not beequitable to grant specific performanceafter the lapse of a long period oftime."88. However, the learned counsel for the plaintiffwould cite a judgment of the Honourable Apex court reportedin 2004 (6) SCC 649 (P.D'Souza v. Shondrilo Naidu) insupport of his argument that escalation of price would notdeter the Court to grant the relief of specificperformance. The relevant passage would run as follows:" 39. ...... It is therefore,too late for the appellant now to https://hcservices.ecourts.gov.in/hcservices/ 91suggest that having regard to theescalation in price, the respondentshould be denied the benefit of thedecree passed in his favour.Explanation I appended to Section 20clearly stipulates that merelyinadequacy of consideration, or themere fact that the contract is onerousto the defendant or improvident in itsnature would not constitute an unfairadvantage within the meaning of sub-section (2) of Section 20."89. When we apply the principle laid down by theHonourable Apex Court in the aforesaid judgments, I couldsee that the suit property is in a posh locality namelyAdyar and the price escalation is very fast and there is noevidence before the Court for assessing the correct marketprice as on date. According to the submission of thelearned counsel for the plaintiff, it may be more thanRs.25 crores or more. In the said circumstances, if thespecific performance is ordered for execution of sale deedby the defendants 1 to 4 and 7 to 9 for a balance sum ofRs.2 crores 25 lakhs or to a sum of Rs.12 crores assuggested by the plaintiff, it would be highly inequitablewhen especially, the plaintiff had breached clause 4 of thememorandum of understanding Ex.P3. Therefore, the judgmentof the Honoruable Apex court reported in 2011 (12) SCC 658(Vimaleshwar Nagappa Shet v.Noor Ahmed Shariff and others) https://hcservices.ecourts.gov.in/hcservices/ 92is more applicable than the judgment of the Honourable ApexCourt reported in 2004 (6) SCC 649 (P.D'Souza v. ShondriloNaidu).90. I have already discussed and come to aconclusion that the Managing Director who acted on behalfof the plaintiff at the time of execution of the contractas well as during the correspondence till 22.12.1995 wasnot examined to speak about all these facts. The evidenceof P.W.1 who was not aware of the events happened before1996, cannot be considered s best evidence for proving theessential facts for the grant of specific performance ofEx.P3. Therefore, the plaintiff is very much lacking inwinning the conscience of the Court to grant the equitablerelief of specific performance.91. For the foregoing discussions, I am ofthe considered view that the plaintiff is not entitled forthe grant of specific performance on the basis of theagreement dated 3.8.1994 against the defendants 1 to 4 and7 to 9. Accordingly, these two issues are decided againstthe plaintiff.92.Additional Issue No.5In the foregoing issues, I have discussed theevidence adduced by the plaintiff in respect of possessionof the suit property. The plaintiff had pleaded that thepossession of the building was handed over and thedefendants are at the liberty to remove the fixtures and https://hcservices.ecourts.gov.in/hcservices/ 93fittings in the building so as to give full possession ofthe suit property on the execution of the sale deed by thedefendants 1 to 4 and 7 to 9. The plaintiff hascategorically admitted that he was not put in fullpossession but was in partial possession. It has beenargued that the defendants 5 and 6 have executed the saledeeds in Exs.P16 to P19 in respect of their respectiveshares in the suit property and they have handed overpossession to the plaintiff and therefore, the plaintiffought to have been considered as in possession of the suitproperty and therefore absolute possession should have beengiven to the plaintiff. The mere execution of the saledeeds in Exs.P16 to P19 regarding the undivided shares inthe property would not give either actual possession of thesuit property and it cannot be considered that theplaintiff was in possession of the said property. It can beat best considered that he was in constructive possessionof the undivided share of the defendants 5 and 6 and theactual possession could be granted on the foot of the saledeeds in Exs.P16 to P.19 only when a suit for partition andseparate possession of the respective shares of thedefendants 5 and 6 is filed and decreed. Till then, thepossession of the defendants 1 to 4 and to 9 cannot bedisturbed since the plaintiff is found not entitled to geta decree of specific performance. Therefore, I am of theconsidered view that the plaintiff's claim that the https://hcservices.ecourts.gov.in/hcservices/ 94possession may be handed over in pursuance of the specificperformance decree is also found untenable. Accordingly,this issue is also decided against the plaintiff.93. Issue No.4:In the earlier issues, I have discussed and foundthat the suit was filed within time and time was notessence of the contract in favour of the plaintiff.However, the other issues and additional issues were foundagainst the plaintiff. When the plaintiff is not entitledfor specific performance of the suit agreement Ex.P3, ithas been categorically agreed in between the parties thatplaintiff is entitled for refund of the money paid to thedefendants. Clause 9 and 10 of the suit agreement Ex.P3would govern the return the advance amount payable by thedefendants 1 to 4, 7 to 9 to the plaintiff. Admittedly, theadvance amount paid was a sum of Rs.1 crore. Thedefendants 4 and 5 had executed sale deeds in Exs.P16 toP19 after adjusting the advance amount paid towards theirshare. In case, the defendants 1 to 4 and 7 to 9 have toreturn the advance amount, it is being governed by clauses9 and 10 of the agreement. I have already discussed andfound that the plaintiff was guilty of breach of clause 4of the agreement by failing to pay the sum of Rs.50 lakhson the receipt of Urban Land Ceiling Clearance Certificatefrom the defendants 1 to 9. Therefore, I could see thatclause 10 alone is applicable to the present case and https://hcservices.ecourts.gov.in/hcservices/ 95clause 9 is not applicable. The plaintiff is entitled toget 90% of the advance amount from the defendants 1 to 4and 7 to 9 after deducting the proportionate advance amountof defendants 5 and 6. However, the said refund of themoney cannot be ordered in this suit since the plaintiffhas not asked for any alternate relief of refund of theadvance amount as mandated under the provisions of Section22 (2) of the Specific Relief Act. No doubt, it is asettled law that the plaintiff can at any time seek toamend the plaint till it is finally decided. Therefore, itis for the plaintiff to do so and at this stage, sincethere is no prayer for the refund of the advance amount,this Court is not ordering for the return of the advanceamount as per the terms in Clause 10 of the agreement ofsale Ex.P3. 94. In the earlier issues, I have discussedand come to the conclusion that the plaintiff is notentitled for equitable remedy of specific performance assought for by the plaintiff either for the considerationmentioned in Ex.P3 or to the suggested consideration ofRs.12 crores by the plaintiff and therefore, the suit filedby the plaintiff seeking to specifically enforce Ex.P3against the defendants 1 to 4 and 7 to 9 is liable to bedismissed.95. In fine, the suit filed by the plaintiff isdismissed with costs. https://hcservices.ecourts.gov.in/hcservices/ 96Exhibits produced on the side of the plaintiff:Sl.No. Exhibits Date Description 1. Ex.P1 28.11.1981 Will dated 28.11.1981 executed by Maharaja of Travancore(xerox)2. ExP2 10.3.1993 Tripartite agreement entered into between defendants 1 to9 & 2 others(xerox)3. Ex.P3 3.8.1994 Memorandum of Agreement between plaintiff, defendants 1 to 9 & 2 others(xerox)4. Ex.P4 20.11.1994 Letter from D9 as Power of (series) Attorney to D1 to D8 (xerox) 5. Ex.P5 Sketch of a larger property, of which the suit property is a part6. Ex.P6 NOC issued under Chapter XX-C of IT Act for agreement dated 3.8.1994 (xerox)7. Ex.P7 2.12.1994 Letter from plaintiff company to 9th defendant (xerox)8. Ex.P8 19.1.1995 Letter from plaintiff to 9th defendant9. Ex.P9 28.03.1995 Letter from plaintiff to D1 to D910. Ex.P10 29.6.1995 Letter from plaintiff to D1 to D911. Ex.P11 7.8.1995 Letter from plaintiff to D1 to D912. Ex.P12 13.8.1995 Letter from counsel of D2 to plaintiff13. Ex.P13 21.08.1995 Legal notice from plaintiff's counselto D1 to D914. Ex.P14 17.9.1995 Reply from counsel for D1,to4 D8 & 915. Ex.P15 7.9.1995 Public Notice issued by plaintiff counsel https://hcservices.ecourts.gov.in/hcservices/

9716. Ex.P16 & Ex.P17 Sale deeds executed by 5th defendant in favour of plaintiff 17. Ex.P18 Sale deeds executed by 6th defendant & Ex.P19 in favour of plaintiff 18. Ex.P20 22.12.1995 Legal notice issued by plaintiff to defendants 1 to 4 and 7 to 919.Ex.P21 13.2.2008 Notice to defendants counsel to produce 2nd original of Memorandum of Agreement20 Ex.P22 10.10.2005 Sale deed executed by D1,2,3,7 & 8 in favour of Eraa.Raajganeshan21. Ex.P23 10.10.2005 Sale deed executed by D4,5 & 6 in favour of Eraa.Raajganeshan 22.Ex.P24 10.10.2005 Sale deed executed by D1,2,3,7 & 8 in favour of Eraa.Raajganeshan23.Ex.P25 10.10.2005 Sale deed executed by D4,5 & 6 in favour of Eraa.Raajganeshan Exhibits produced on the side of the defendants:Sl.No. Exhibits Date Description1. Ex.D1 12.3.2010 Letter to Ramalayam (xerox)2. Ex.D2 28.3.1995 Legal notice (xerox)3. Ex.D3 Common typed set made in CRP.No.3887 & 3788/20094. Ex.D4 1.7.1995 Letter from PAN Resort Ltd. (xerox).5. Ex.D5 Form 34 A , 8th defendant's document (xerox)Witnesses examined on the side of the plaintiff:P.W.1. - Mr.Sharath KakumanuWitnesses examined on the side of the defendantsD.W.1 – Mr.Adithya Varma Sd/-V.P.K.J 01.10.2012 //Certified to be a true copy//Dated this the day of 2012. R.s/05.10.2012 COURT OFFICERFrom 25.09.2008 the Registry is issuing certified copies ofthe Order/Judgment Decree in this format.