G.Sundarraj v. Meenakshi...

(ii) No person who is in a possession of a genuine agreementto sell of the year 1987 would wait till the year 2004 for gettingit specifically enforced.(iii) The defendant herein and her sister Ramayammal filedthe partition suit during the year 2004, citing the plaintiff hereinalso as one of the defendants, namely, 8th defendant, and in theinterlocutory proceedings in that suit, counter and additionalcounter were filed by the same plaintiff herein as D8 therein. Inthe original counter filed therein, there is no whisper about thepresent suit agreement to sell -Ex.A1; however, in the additionalcounter he would detail about Ex.A1.(iv) The fact also remains that only after the filing ofthe partition suit by the plaintiff and her sister, the presentplaintiff herein, who is D8 therein, did choose to issue the noticeseeking specific performance. As such, the said agreement to sell-Ex.A1 herein is nothing but a forged and fabricated document and itwas not earlier referred to in any proceedings before any authority.(v) Admittedly, during the year 1990, the plaintiff hereinsold a portion of the suit property without the back up of the saledeed in his favour; the plaintiff as vendor, while selling a portionof the suit property in favour of the third party, described thesaid property as the ancestral property and not as the property,which he had been allegedly enjoying as the agreement holder.(vi) There is also nothing to show on what basis theplaintiff got the patta transferred in his favour and there is noreference about the suit agreement to sell before any authority.(vii) The undisputed fact is that the defendant is an agedand illiterate lady, wherefore she might not have been having goodmemory to precisely put forth her pleas while she was being cross-examined and the plaintiff cannot try to make a mountain out of amole hill.(viii) The lower Court taking into account the pro etcontra, appropriately disbelieved the case of the plaintiff anddismissed the suit.(ix) In the plaint, in adherence to Section 16 of theSpecific Relief Act there should be an averment to the effect thatthe plaintiff has been ready and willing to perform his part of thecontract throughout ever since the emergence of the agreement tosell, but in this case, the plaint is conspicuous of its missing,whereupon the plaintiff cannot be held to be the one who is entitledto get the sale deed executed in his favour. https://hcservices.ecourts.gov.in/hcservices/ Accordingly, the learned counsel for the defendant wouldpray for dismissal of the appeal.The rest of his arguements isreferred to infra in appropriate places.7. The points for consideration are as under:(i) Whether the plaint is bad for want of a specificaverment to the effect that the plaintiff has been ready and willingto perform his part of the contract throughout?(ii) Whether the suit is barred by limitation?(iii) Whether the suit agreement to sell Ex.A1, was provedto be a genuine one?(iv) Whether the plaintiff was not suffering from anypersonal bar as contemplated under Section 16 of the Specific ReliefAct and whether the plaintiff's case is not one falling foul ofSection 20 of the Specific Relief Act?(v) Whether the plaintiff had been ready and willing toperform his part of the contract throughout?(vi) Whether there is any perversity or illegality in thejudgement passed by the lower Court?8. All these points are taken together for discussion asthey are interwoven and interlinked, interconnected and entwinedwith one another.9. Ex.A1 is purported to be an agreement to sell, uponwhich the plaintiff is relying, to get his suit decreed for specificperformance in his favour. In such a case, the initial burden is onthe plaintiff to prove that the said agreement to sell is a genuineone and he has been ready and willing to perform his part of thecontract throughout.10. The learned counsel for the plaintiff would preciselyput froth his arguement to the effect that this is a singularlysingular case, in which the entire sale consideration relating to1/7th share of the defendant in the larger extent of land was paidas on the date of emergence of Ex.A1-the agreement to sell and therewas nothing more on his part to perform under Ex.A1; over and abovethat the clauses in Ex.A1 would recite that unfettered and unlimitedright was given to the plaintiff to get the sale deed executedwhenever he might find it convenient to get executed in his favour.As such, the principle of estoppel could rightly be applied asagainst the defendant and virtually the defendant is having no https://hcservices.ecourts.gov.in/hcservices/ defence at all in the suit, even then the lower Court failed to takenote of all these facts.11. Whereas, the learned counsel for the defendant wouldcounter the arguement of the learned counsel for the plaintiff bypointing out that the recital in Ex.A1 in no way gives unlimitedpower to the plaintiff to flout Sections 16 and 20 of the SpecificRelief Act. 12. Hence, at this juncture, it is just and proper to referto the decisions cited on both sides.(b) On the side of the appellant/plaintiff the followingdecisions are cited:(i) AIR 1985 BOMBAY 128 – TRIMBAK SHANKAR TIDKE V. NIVRATTISHANKAR TIDKE, certain excerpts from it would run thus:"6. As stated above at the outset, this view ishypertechnical. Such a view should not be taken in anyCourt unless the Court is absolutely compelled to takesuch a hypertechnical view. The point is that in theinstant case there was nothing to be performed by theplaintiff at all. The entire amount of Rs.7000/- whichwas the consideration for the sale deed is already lyingin the coffers of the defendant. The possession of theland has already been made over by the defendant to theplaintiff. All that remains to be done is the executionof the sale deed by the defendant in favour of theplaintiff. So far as the plaintiff is concerned, it isan executed contract on his part; what remains executoryis the part to be performed by the defendant. These arethe facts averred in the plaint and not denied in thewritten statement at all. If this is the position, itbeats understanding as to what is that part that theplaintiff is yet to perform. Pleadings are intended toreflect the substantive rights claimed by the parties.In the instant case, every shade of the right of theplaintiff stands fully reflected in the plaint. . . . .. . . If the plaintiff refused to amend the plainteven after such direction by the Court, the court may berequired to consider whether the plaintiffs suit forspecific performance should be decreed or not in theabsence of such necessary averment in the plaint; butall this discussion is academic so far as the presentcase is concerned. In the present case there remainsnothing for the plaintiff to perform towards thecontractual obligation. If this is so, failure on his https://hcservices.ecourts.gov.in/hcservices/ part to express his willingness to perform hisobligation is of no legal consequence."(ii) AIR 1986 MADHYA PRADESH 39 – MITHU KHAN V.MS.PIPARIYAWALI AND OTHERS, an excerpt from it would run thus:"9. Last material submission of the appellant isthat, in a case of specific performance of contract, theplaintiff is required to plead and prove that he is readyand willing to perform his part of the contract andabsence of such averment shows unwillingness on his part.This submission is not tenable. The plaintiff, after hepaid the full amount to respondent and obtained from himthe receipt of the last payment, completes his part ofthe contract. The proof as to readiness and willingnessby plaintiff to perform his part of the contract has tobe adjudged in the broad perspective. The Court insuitable cases should look into the totality of thecircumstances and the allegations made in the plaint andfrom them come to the conclusion whether necessaryallegations have been made by the plaintiff in thatregard or not. No particular language or phraseology isneeded to be employed by the plaintiff. A literalcompliance of the language appearing in the provision isnot imperative, nor is this the requirement of law."(b) On the side of the respondent/defendant, the followingprecedents are cited:(i) 2010(10) SCC 512 [Man Kaur (Dead) By L.Rs. v. HartarSingh Sangha]; certain excerpts from it would run thus: "40. This contention has no merit. There aretwo distinct issues. The first issue is the breach bythe defendant vendor which gives a cause of action tothe plaintiff to file a suit for specific performance.The second issue relates to the personal bar toenforcement of a specific performance by personsenumerated in Section 16 of the Act. A person whofails to aver and prove that he has performed or hasalways been ready and willing to perform the essentialterms of the contract which are to be performed by him(other than the terms the performance of which has beenprevented or waived by the defendant) is barred fromclaiming specific performance. Therefore, evenassuming that the defendant had committed breach, ifthe plaintiff fails to aver in the plaint or prove thathe was always ready and willing to perform theessential terms of contract which are required to beperformed by him (other than the terms the performanceof which has been prevented or waived by theplaintiff), there is a bar to specific performance in https://hcservices.ecourts.gov.in/hcservices/ his favour. Therefore, the assumption of therespondent that readiness and willingness on the partof the plaintiff is something which need not be proved,if the plaintiff is able to establish that thedefendant refused to execute the sale deed and therebycommitted breach, is not correct. Let us give anexample. Take a case where there is a contract forsale for a consideration of Rs.10 lakhs and earnestmoney of Rs.1 lakh was paid and the vendor wronglyrefuses to execute the sale deed unless the purchaseris ready to pay Rs.15 lakhs. In such a case there is aclear breach by the defendant. But in that case, ifthe plaintiff did not have the balance Rs.9 lakhs (andthe money required for stamp duty and registration) orthe capacity to arrange and pay such money, when thecontract has to be performed, the plaintiff will not beentitled to specific performance, even if he provesbreach by the defendant, as he was not "ready andwilling" to perform his obligations."(ii) (2011) 1 SUPREME COURT CASES 429 – J.P.BUILDERS ANDANOTHER V. A.RAMADAS RAO AND ANOTHER would run thus: "27. It is settled law that even in the absenceof specific plea by the opposite party, it is themandate of the statute that the plaintiff has to complywith Section 16(c) of the Specific Relief Act and whenthere is non-compliance with this statutory mandate, theCourt is not bound to grant specific performance and isleft with no other alternative but to dismiss the suit.It is also clear that readiness to perform must beestablished throughout the relevant points of time."Readiness and willingness" to perform the part of thecontract has to be determined/ascertained from theconduct of the parties."(iii) 2001(6) SCC 600 – A.C.ARULAPPAN V. AHALYA NAIK,certain excerpts from it would run thus:"9. In Parakunnan Veetill Joseph's Son Mathew v. NedumbaraKuruvila's Son2 this Court cautioned and observed asunder: (SCC p. 345, para 14)“14. Section 20 of the Specific Relief Act, 1963 preservesjudicial discretion to courts as to decreeing specificperformance. The court should meticulously consider allfacts and circumstances of the case. The court is notbound to grant specific performance merely because it islawful to do so. The motive behind the litigation should https://hcservices.ecourts.gov.in/hcservices/ also enter into the judicial verdict. The court shouldtake care to see that it is not used as an instrument ofoppression to have an unfair advantage to the plaintiff.”10. In Lourdu Mari David v. Louis Chinnaya Arogiaswamy3the plaintiff, who sought for specific performance of anagreement to purchase immoveable property, filed a suitwith incorrect and false facts. In the plaint, it wasalleged that the plaintiff was already given possession ofDoor No. 2/53 as a lessee and he was given possession ofDoor No. 1/53 on the date of the agreement itself. But hedid not give any evidence that he had got possession ofDoor No. 1/53 on the date of the agreement. It was foundthat his case as regards Door No. 1/53 was false. He alsoalleged that he had paid Rs 400 in addition to the sum ofRs 4000 paid as advance, but this was proved to be anincorrect statement. He alleged that the third defendanthad inspected the house during the course of negotiations,but this also was found to be false. This Court held thatit is settled law that the party who seeks to avail of thejurisdiction of a court and specific performance beingequitable relief, must come to the court with clean hands.In other words, the party who makes false allegations doesnot come with clean hands and is not entitled to theequitable relief.11. In Gobind Ram v. Gian Chand4 it was observed in para 7of the judgment that grant of a decree for specificperformance of contract is not automatic and is one of thediscretions of the court and the court has to considerwhether it would be fair, just and equitable. The court isguided by the principles of justice, equity and goodconscience.15. Granting of specific performance is an equitablerelief, though the same is now governed by the statutoryprovisions of the Specific Relief Act, 1963. Theseequitable principles are nicely incorporated in Section 20of the Act. While granting a decree for specificperformance, these salutary guidelines shall be in theforefront of the mind of the court. The trial court, whichhad the added advantage of recording the evidence andseeing the demeanour of the witnesses, considered therelevant facts and reached a conclusion. The appellatecourt should not have reversed that decision disregardingthese facts and, in our view, the appellate courtseriously flawed in its decision. Therefore, we hold thatthe respondent is not entitled to a decree of specific https://hcservices.ecourts.gov.in/hcservices/ performance of the contract."(iv) 1987 SCC (SUPP) 340 – PARAKUNNAN VETTILL JOSEPH'S SONMATHEW V. NEDUMBARA KURUVILLA'S SON AND OTHERS, certain excerptsfrom it would run thus:"14. Section 20 of the Specific Relief Act, 1963preserves judicial discretion of courts as to decreeingspecific performance. The court should meticulouslyconsider all facts and circumstances of the case. TheCourt is not bound to grant specific performance merelybecause it is lawful to do so. The motive behind thelitigation should also enter into the judicial verdict.The court should take care to see that it is not usedas an instrument of oppression to have an unfairadvantage to the plaintiff. The High Court has failedto consider the motive with which Varghese institutedthe suit. It was instituted because Kuruvila could notget the estate and Mathew was not prepared to part withit. The sheet anchor of the suit by Varghese is theagreement for sale Ex.A1. Since Chettiar had waivedhis rights thereunder, Varghese as an assignee couldnot get a better right to enforce that agreement. Heis, therefore, not entitled to a decree for specificperformance.(v) (2006) 2 SUPREME COURT CASES 428 – R.K.PARVATHARAJ GUPTAV. K.C.JAYADEVA REDDY;(vi) 2012(114) AIC 375 (KER H.C.) SUSHEELA (DEAD) AND OTHERSV. T.M.MUHAMMEDKUNHI(vii) 1995(5) SCC 115 – N.P.THIRUGNANAM (DEAD) BYLRS.VS.DR.R.JAGAN MOHAN RAO AND OTHERS(viii) 2011(2) MWN (Civil) 1 – M.KARUPPUSAMY V.S.KARUNAIYAMMAL(ix) 1998 GAU.92 – MD.MOHAR ALI V. MD MAMUD ALI AND OTHERS.13. I suo moto refer to the following judgements:(i) 2007-2-L.W.481 [M.Meenakshi & Others v. Metadin Agarwal(D) By LRs & others]"39. Furthermore, Section 20 of the SpecificRelief Act confers a discretionary jurisdiction upon theCourts. Undoubtedly such a jurisdiction cannot be refusedto be exercised on whims and caprice; but when withpassage of time, contract becomes frustrated or in somecases increase in the price of land takes place, the samebeing relevant factors can be taken into consideration forthe said purpose. While refusing to exercise itsjurisdiction, the courts are not precluded from takinginto consideration the subsequent events. Only because https://hcservices.ecourts.gov.in/hcservices/ the Plaintiff-Respondents are ready and willing to performtheir part of contract and even assuming that theDefendant was not entirely vigilant in protecting theirrights in the proceedings before the competent authorityunder the 1976 Act, the same by itself would not mean thata decree for specific performance of contract wouldautomatically be granted. While considering the questionas to whether the discretionary jurisdiction should beexercised or not, the orders of a competent authority mustalso be taken into consideration. While the court uponpassing a decree for specific performance of contract isentitled to direct that the same shall be subject to thegrant of sanction by the concerned authority, as was thecase in Mrs.Chandnee Vidya Vati Madden v. Dr.C.L.Katialand Others [AIR 1964 SC 978] and Nirmal Anand v. AdventCorporation (P) Ltd. And Others [(2002) 5 SCC 481]; theratio laid down therein cannot be extended to a case whereprayer for such sanction had been prayed for and expresslyrejected. On the face of such order, which, as noticedhereinbefore, is required to be set aside by a court inaccordance with law, a decree for specific performance ofcontract could not have been granted."(Emphasis supplied)(ii) 2007-4-L.W.36 [Janardhanam Prasad v. Ramdas]"11. The Court, in applying the period oflimitation, would first inquire as to whether any timewas fixed for performance of agreement of sale. If itis so fixed, the suit must be filed within the period ofthree years, failing which the same would be barred bylimitation. Here, however, no time for performance wasfixed. It was for the Courts to find out the date onwhich the plaintiff had notice that the performance wasrefused and on arriving at a finding in that behalf, tosee whether the suit was filed within three yearsthereafter.14. ...Even if the suit was not barred bylimitation on that account, it was a fit case, where theCourt should have refused to exercise its discretionaryjurisdiction under Section 20 of the Specific ReliefAct, 1963.17. ...In that view of the matter too, in ouropinion, it was a fit case where the discretionaryjurisdiction of the Court under Section 20 of theSpecific Relief Act should not have been exercised and, https://hcservices.ecourts.gov.in/hcservices/ instead, monetary compensation could be granted."(Emphasis supplied)(iii) 2007 (1) CTC 57 [A.Ganapathy v. S.Venkatesan]"19. In a case of specific performance of acontract, in the judgment reported in Smt.Mayawanti v.Smt.Kaushalya Devi JT 1990 (3) SC 205, the Supreme Courthas held as under in paragraphs 8 and 11:8. ......"11. .... It is settled law that if a contractis to be made, the intention of the offeree to accept theoffer must be expressed without leaving room for doubt asto the fact of acceptance or to the coincidence of theterms of acceptance with those of the offer. The rule isthat the acceptance must be absolute, and must correspondwith the terms of the offer. If the two minds were notad idem in respect of the property to be sold, therecannot be said to have been a contract for specificperformance. If the parties themselves were not ad idemas to the subject matter of the contract the Court cannotorder specific performance...."(iv) 2003(1) CTC 355 [Arunachala Mudaliar v.Jayalakshmi Ammal and another]"25. ...The plaintiff has not deposited theamount that she should have deposited as per Ex.A7before filing the suit for specific performance. Thedefendant had raised the plea that the deposit was notmade and it would show the plaintiff's lack of bonafides. In spite of that the plaintiff not only does notdeposit the amount before filing the suit, but P.W.1,the plaintiff's husband glibly says in his evidence thathe has deposited the amount. The plaint does not evenrefer to any readiness or willingness to deposit and thesuit notice claimed to have been issued has not beenproved to have been issued. In the particularcircumstance of the case and in view of the specificrecitals regarding the deposit the plaintiff cannot becontent with citing the explanation to Section 16(c) ofthe Act without proving his readiness and willingnessclearly and beyond doubt."(Emphasissupplied)(v) (2008) 6 MLJ 587 [Periyaya v. M.Rajagopaland another] https://hcservices.ecourts.gov.in/hcservices/ "18. In P.V.Joseph's Son Mathew v. N.Kuruvila'sSon AIR 1987 SC 2328 : 1987 Supp SCC 340, the Apex Courtconsidered the scope and ambit of Section 20 of theSpecific Relief Act and observed thus:"Section 20 of the Specific Relief Act, 1963preserves judicial discretion to Courts as to decreeingspecific performance. The Court should meticulouslyconsider all facts and circumstances of the case. TheCourt is not bound to grant specific performance merelybecause it is lawful to do so. The motive behind thelitigation should also enter into the judicial verdict.The Court should take care to see that it is not used asan instrument of oppressions to have an unfair advantageto the plaintiff."(Emphasis supplied)(vi) (2008) 6 MLJ 539 [A.Gunasekaran v.K.Damayanthi]38. .. The decision in K.S.Vidyanandam v. Vairavan,J.T.1997(2) SC 375 is clearly applicable. Specificperformance cannot be ordered merely because they arefiled within the period of limitation, especiallywhere time limits have been stipulated in theagreement for performance of certain obligations. Todisregard the time stipulation would amount toignoring the understanding between the parties asthough it is of no significance or value."(Emphasis supplied)(vii) 2008(2) CTC 382 [P.Sampoornam and othersv. L.T.Somasundaram and others]"19. ... The relief of specific performance is adiscretionary relief and the Courts have to exercisetheir discretion on sound and reasonable reasons. Evenif a doubt arises whether it is probable or possiblethat an agreement of sale would have been executed atall, the discretionary relief shall not be granted. Byanalysing the matter in issue as referred to above, I amof the opinion that it is doubtful that the defendantswould have executed an agreement of sale with anintention to sell the suit property. Further more,there is no reason for execution of Ex.A11 endorsementsince it has not been proved that there was a lessee inthe suit property. Further more, after the endorsementdated 30.12.1990, the plaintiffs would not have waitedtill the issuance of notice under Ex.A.2 dated https://hcservices.ecourts.gov.in/hcservices/

13.07.1996. The silence for nearly six years by theplaintiffs causes much doubt whether there was a realagreement of sale between the plaintiffs and thedefendants. Merely because the defendants have acceptedtheir signatures in the endorsement under Ex.A.11,conclusion could not be reached that the defendants haveentered into an agreement of sale with an intention tosell the suit property."(viii) 2007(1) CTC 243 [G.Ramalingam v.T.Vijayarangam]"16. ... Even if for a single day, plaintiff-agreement holder is not ready to take the sale deed, theequitable remedy should not be granted. Readiness andwillingness must be there continuously from the date ofagreement up to the date of hearing. In this case, theconcurrent finding is that the appellant was not readyto take the sale deed and that is proved by Ex.A-3"(Emphasis supplied)(ix) 2007 (2) L.W.791 [1. Chinnakannu Naidu 2.Saroja v. Chinnappan]"16. In Sandhyarani v. Sudha Rani, AIR 1978 S.C.537, it is laid down"Where there is inordinate delay on the part ofthe plaintiff to perform his or her part of contract adecree for specific performance can be refused."(x) (2006) 2 M.L.J.651 [Yesudass (died) andothers v. Henry Victor and others]"15. The factum of readiness and willingness toperform part of the contract is to be adjudged withreference to the conduct of the parties and theattending circumstance. The court must infer from thefacts and circumstance whether the plaintiff and thirddefendant were always ready and willing to perform theirpart of the contract. The facts of this case wouldamply demonstrate that the plaintiff and third defendantwere not ready nor had the capacity to perform theirpart of the contract as they have no financialcapability to pay the consideration in cash ascontracted and intended to bite for the time, whichdisentitles them as time is the essence of thecontract. Continuous readiness and willingness at allstages from the date of agreements till the date ofhearing of the suit must be proved."(Emphasis supplied) https://hcservices.ecourts.gov.in/hcservices/ (xi) 2008(1) CTC 86 [Sita Ram and others vs.Radhey Shyam]"6. .....He had in that Suit to allege, and ifthe act was traversed, he was required to prove acontinuous readiness and willingness from the date of thecontract to the time of the hearing, to perform thecontract on his part. Failure to make good that avermentbrings with it and leads to the inevitable dismissal ofthe Suit."(Emphasis supplied)(xii) 2006(4) MLJ 1348 [V.Kanniammal and others v.Anjalakshmiammal (Died) and others]"28. ..... Therefore, the readiness andwillingness pleaded and the attempt made to prove thepayment of balance of sale consideration, through P.W.3,fails to satisfy the conscience of the Court and in thisview, it should be held that there was slackness on thepart of the plaintiff to perform her part of the contractand such being the position, even assuming that there wassome contract, the same could not be enforced."14. A survey of the precedents which emerged over a prettylong period, would unambiguously and unequivocally highlight andspotlight the fact that Section 16 of the Specific Relief Act shouldnecessarily be adhered to irrespective of the fact as to anyspecific plea has been taken by the defendant or not. 15. The Honourable Apex Court as well as the other HighCourts in the following precedents:(i) 2010(10) SCC 512 [Man Kaur (Dead) By L.Rs. v. HartarSingh Sangha];(ii) (AIR 2003 SC 2508)-The Hon'ble Apex Court, in RameshChand Ardawatiya v. Anil Panjwani. (iii) Judgement of the Calcutta High Court in MonmathaKumar v. Josada Lal 1924 Cal 647.(iv) AIR 1926 Oudh 192 - In Ghulam Hussain v. Singer SewingMachine Company.(v) AIR 1926 Oudh 192 In Ghulam Hussain v. Singer SewingMachine Company.(vi) AIR 1928 Nagpur 165-In Bhujangrao v. Baliram.shed light on the point that even in an ex-parte matter, the Courtis expected to look into the fact as to whether the plaintiff is https://hcservices.ecourts.gov.in/hcservices/ suffering from any disabilities as contemplated under Section 16 ofthe Specific Relief Act.16. IN RE THE POINTS CONCERNING SEC.16 AND SEC.20 OF THESPECIFIC RELIEF ACT: It is therefore just and necessary to refer to the relevantclauses in Ex.A1:@fPH;fz;l rhl;rpfs; Kd;g[ nkw;go fpiuaj; bjhifU:/20.000/00 ,Ugjhapuj;ija[k; ,d;nw ek;kpy; 2 eguhy; 1 egh;buhf;fkha; bgw;Wf; bfhz;lhh; vd;Wk; mjd;go ek;kpy; 2 egh; ve;jnjjpapy; ek;kpy; 1 egiu fpiuak; bra;J bfhLf;f Tg;gpl;lhYk;ek;kpy; 1 egh; vt;tpj $thg;g[k; brhy;yhky; rh;t tpy;y';fRj;jpaha; ek;kpy; 1 eguhYk; mth; jk; thh;Rfs; cl;gl fpiuak;bra;J bfhLf;ft[s;sth;fs;/ mjd;go ek;kpy; 1 egiu 2 egh; fpiuak;bra;J bfhLf;Fk;go Tg;gpl;L 1 egh; tu kWj;jhnyh my;yJ tPz;fhyjhkjk; bra;jhnyh ek;kpy; 2 egh; fpiua cld;gof;ifiark;ke;jg;gl;l rptpy; nfhh;l;oy; blgh!pl; bra;J nfhh;l; K:yk;fpiuak; bra;J bfhs;s ntz;oaJ mjdhy; ek;kpy; 2 egUf;FVw;gLk; rfy bryt[fSk; ek;kpy; 1 egiuna nrh;e;jJ vd;Wk; 2 egh;fPH;fz;l brhj;Jf;fis fpiuak; bra;J bfhs;s Kj;jpiuj;jhs; gjpt[fl;lzk; MfpaitfSf;F jw;rkak; gzk; ,y;yhikahy; fpiuaj;bjhifia KGtJk; 2 egh; 1 eghplk; brYj;jpa[k; fpiuak; bra;Jbfhs;stpy;iy/ mjw;Fz;lhd gzk; nrfhpj;jt[ld; ve;j njjpapy;ek;kpy; 2 egh; 1 egiu fpiuak; bra;J bfhLf;f Tg;gpl;lhYk; nkw;gotPjk; fpiuak; bra;J bfhLf;ft[s;sth;/@ 17. A plain running of the eye over those portions of Ex.A1would convey and portray that the plaintiff himself undertook thathe would get the sale deed executed no sooner he would be in aposition to have the requisite money for getting the sale deedscribed and registered, which means, the plaintiff was not inpossession of sufficient funds as on the date of emergence ofEx.A1, which fact the plaintiff unambiguously and unequivocally,pulling no punches admitted in Ex.A1-the agreement itself. 18. When such is the unassailable and unarguable factualscenario, the core question would arise as to how it would lie inthe mouth of the plaintiff to contend that ever since 1987 till2004 he did not have had sufficient funds to purchase non-judicialstamp papers and also to get the sale deed scribed and registered.Absolutely, the plaint is silent as silence could be. https://hcservices.ecourts.gov.in/hcservices/

19. At this juncture, I would like to refer to explanation(ii) appended to clause (c) to Section 16 of the Specific ReliefAct:"Sec.16.PERSONAL BARS TO RELIEF – Specificperformance of a contract cannot be enforced in favourof a person. . . . . . . . . . . . . (c) who fails to aver and prove that he hasperformed or has always been ready and willing toperform the essential terms of the contract which areto be performed by him, other than terms theperformance of which has been prevented or waived bythe defendant.Explanation – For the purpose of clause (c) (i) . . . . . (ii) the plaintiff must aver performance of, orreadiness and willingness to perform, the contractaccording to its true construction."which would contemplate that there should be a specific averment inthe plaint itself as to the readiness and willingness to perform hispart of the contract throughout. 20. On this point also, once again the learned counsel forthe plaintiff, by citing the judgements reported in AIR 1985 Bombay128 – Trimbak Shankar Tidke v. Nivratti Shankar Tidke and AIR 1986Madhya Pradesh 39 – Mithu Khan v. Ms.Pipariyawali and Others,referred to supra, would reiterate that absolutely there was nolegal duty cast upon the plaintiff to plead that he was ready andwilling to perform his part of the contract, because he paid theentire sale consideration and the defendant also empowered theplaintiff to get the sale deed executed as and when he mightrequire.21. Such an arguement fails to carry conviction with thisCourt for the simple reason that the document-Ex.A1 itself wouldrecite that the plaintiff would get the sale deed executed no soonerhe would get sufficient funds for getting the sale deed scribed onnon-judicial stamp papers and registered. There should have beensufficient averments in the plaint as to what prevented theplaintiff from having such meagre amounts for getting the sale deedexecuted, for almost 17 years. https://hcservices.ecourts.gov.in/hcservices/

22. Certain excerpts from the plaint would run thus:"IV. The plaintiff has been in possession andenjoyment of 1/7 share of the defendant in the scheduleproperty ever since the date of agreement of sale. Theplaintiff was expressing his readiness and willingnessin the last weak of the month December 2003 to get thesale deed from the defendant in the month of Thai 2004as it is an auspicious month. The defendant had agreedto execute the sale deed conveying her 1/7 share in theschedule property to the plaintiff in compliance withthe demand of the plaintiff. Instead of executing thesale deed in favour of the plaintiff, the defendantrushed to the court and filed a frivolous suit inO.S.No. 1 of 2004 on the file of the Sub Court, Bhavani,against the plaintiff and others and the said suit wastransferred to Fast Track Court, Bhavani, and renumberedas O.S.No.20 of 2004. The defendant has deliberatelysuppressed the agreement of sale of her share ofproperty with the plaintiff, with a mala fide intentionto defeat the plaintiff's right to purchase the salefrom the defendant. This plaintiff is hotly contestingthe said suit. He is entitled to enforce the agreementof sale against the defendant in the suit though thedefendant's suit for partition is pending in the FastTrack Court, Bhavani. After having come to know of thesuit filed by the defendant for the partition in the SubCourt, Bhavani, in the 3rd week January 2004. Theplaintiff did not expect that the defendant would comeforward to execute the sale deed in favour of theplaintiff in pursuance of agreement of sale. Thereforethe plaintiff was forced to issue registered notice tothe defendant on 10.7.2004 calling upon her to fix adate with time and venue of execution of the sale deedwithin 3 days of the receipt of notice by her. Thoughthe defendant received the notice on 12.7.2004, she hasnot yet intimated of the plaintiff about her consent toexecute the sale deed. The plaintiff is even now readyto get the sale deed from the defendant at his ownexpenses. Hence, the plaintiff has filed the suit forspecific performance of agreement for sale against thisdefendant."(extracted as such)23. What one could notice in respect of the mandate ascontemplated under Section 16 of the Specific Relief Act, is onlythe above said excerpt in the plaint. Absolutely there is noexpounding or explanation, elucidation or detailing of the fact asto what made the plaintiff to keep quiet till the year 2003 eversince 1987. There is no legal answer to it. https://hcservices.ecourts.gov.in/hcservices/

24. My mind is reminiscent and redolent of the followingmaxims:'Certum est quod certum reddi potest' – That is certainwhich can be rendered certain.25. No doubt, apparently and pellucidly the time limit isnot set out in Ex.A1. However, the reading of the clauses and therecitals as extracted supra would demonstrate and display, conveyand portray that time limit is found impliedly mentioned in Ex.A1 tothe effect that no sooner the plaintiff would acquire the sufficientfunds for purchase of the requisite non-judicial stamp papers andfor registration of the document, he would get the sale deedexecuted in his favour. 26. The learned advocates on both sides, without anycontradiction between themselves, would in unison submit beforethis Court that at the time of emergence of Ex.A1 the non-judicialstamp papers required for registration of a sale deed contemplatinga sale consideration of a sum of Rs.20,000/-, was Rs.2,400/- and theregistration charges and the scribe charges, it all taken together,totally it would come to an amount not exceeding Rs.3,000/-.27. Now the pertinent question arises as to whether theplaintiff was justified in keeping quiet for 17 long years to raisesuch meagre sum of Rs.3000/- and get the sale deed executed in hisfavour. Absolutely there is no plausible answer in favour of theplaintiff.28. At this juncture, it is just and necessary to refer tothe following decisions:(i) (1997) 3 SUPREME COURT CASES 1 – K.S.VIDYANADAM ANDOTHERS V. VAIRAVAN, certain excerpts from it would run thus: "10. It has been consistently held by the courts in India,following certain early English decisions, that in the caseof agreement of sale relating to immovable property, time isnot of the essence of the contract unless specificallyprovided to that effect. The period of limitation prescribedby the Limitation Act for filing a suit is three years. Fromthese two circumstances, it does not follow that any andevery suit for specific performance of the agreement (whichdoes not provide specifically that time is of the essence ofthe contract) should be decreed provided it is filed withinthe period of limitation notwithstanding the time-limitsstipulated in the agreement for doing one or the other thingby one or the other party. That would amount to saying thatthe time-limits prescribed by the parties in the agreement https://hcservices.ecourts.gov.in/hcservices/ have no significance or value and that they mean nothing.Would it be reasonable to say that because time is not madethe essence of the contract, the time-limit(s) specified inthe agreement have no relevance and can be ignored withimpunity? It would also mean denying the discretion vested inthe court by both Sections 10 and 20. As held by aConstitution Bench of this Court in Chand Rani v. KamalRani1: (SCC p. 528, para 25)“... it is clear that in the case of sale of immovableproperty there is no presumption as to time being the essenceof the contract. Even if it is not of the essence of thecontract, the Court may infer that it is to be performed in areasonable time if the conditions are (evident?): (1) fromthe express terms of the contract; (2) from the nature of theproperty; and (3) from the surrounding circumstances, forexample, the object of making the contract.”In other words, the court should look at all the relevantcircumstances including the time-limit(s) specified in theagreement and determine whether its discretion to grantspecific performance should be exercised. Now in the case ofurban properties in India, it is well-known that their priceshave been going up sharply over the last few decades —particularly after 1973*. In this case, the suit property isthe house property situated in Madurai, which is one ofthe major cities of Tamil Nadu. The suit agreement was inDecember 1978 and the six months' period specified thereinfor completing the sale expired with 15-6-1979. The suitnotice was issued by the plaintiff only on 11-7-1981, i.e.,more than two years after the expiry of six months' period.The question is what was the plaintiff doing in this intervalof more than two years? The plaintiff says that he has beencalling upon Defendants 1 to 3 to get the tenant vacated andexecute the sale deed and that the defendants were postponingthe same representing that the tenant is not vacating thebuilding. The defendants have denied this story. According tothem, the plaintiff never moved in the matter and nevercalled upon them to execute the sale deed. The trial courthas accepted the defendants' story whereas the High Court hasaccepted the plaintiff's story. Let us first consider whosestory is more probable and acceptable. For this purpose, wemay first turn to the terms of the agreement. In theagreement of sale, there is no reference to the existence ofany tenant in the building. What it says is that within theperiod of six months, the plaintiff should purchase the stamppapers and pay the balance consideration whereupon thedefendants will execute the sale deed and that prior to theregistration of the sale deed, the defendants shall vacate https://hcservices.ecourts.gov.in/hcservices/ and deliver possession of the suit house to the plaintiff.There is not a single letter or notice from the plaintiff tothe defendants calling upon them to get the tenant vacatedand get the sale deed executed until he issued the suitnotice on 11-7-1981. It is not the plaintiff's case thatwithin six months', he purchased the stamp papers and offeredto pay the balance consideration. The defendants' case isthat the tenant is their own relation, that he is ready tovacate at any point of time and that the very fact that theplaintiff has in his suit notice offered to purchase thehouse with the tenant itself shows that the story put forwardby him is false. The tenant has been examined by thedefendant as DW 2. He stated that soon after the agreement,he was searching for a house but could not secure one.Meanwhile (i.e., on the expiry of six months from the date ofagreement), he stated, the defendants told him that since theplaintiff has abandoned the agreement, he need not vacate. Itis equally an admitted fact that between 15-12-1978 and 11-7-1981, the plaintiff has purchased two other properties. Thedefendants' consistent refrain has been that the prices ofhouse properties in Madurai have been rising fast, thatwithin the said interval of 2 1/2 years, the prices went upthree times and that only because of the said circumstancehas the plaintiff (who had earlier abandoned any idea ofgoing forward with the purchase of the suit property) turnedround and demanded specific performance. Having regard to theabove circumstances and the oral evidence of the parties, weare inclined to accept the case put forward by Defendants 1to 3. We reject the story put forward by the plaintiff thatduring the said period of 2 1/2 years, he has been repeatedlyasking the defendants to get the tenant vacated and executethe sale deed and that they were asking for time on theground that tenant was not vacating. The above finding meansthat from 15-12-1978 till 11-7-1981, i.e., for a period ofmore than 2 1/2 years, the plaintiff was sitting quietwithout taking any steps to perform his part of thecontract under the agreement though the agreement specified aperiod of six months within which he was expected to purchasestamp papers, tender the balance amount and call upon thedefendants to execute the sale deed and deliver possession ofthe property. We are inclined to accept the defendants' casethat the values of the house property in Madurai town wererising fast and this must have induced the plaintiff to wakeup after 2 1/2 years and demand specific performance. https://hcservices.ecourts.gov.in/hcservices/

11. Shri Sivasubramaniam cited the decision of the MadrasHigh Court in S.V. Sankaralinga Nadar v. P.T.S. RatnaswamiNadar2 holding that mere rise in prices is no ground fordenying the specific performance. With great respect, we areunable to agree if the said decision is understood as sayingthat the said factor is not at all to be taken into accountwhile exercising the discretion vested in the court by law.We cannot be oblivious to the reality — and the reality isconstant and continuous rise in the values of urbanproperties — fuelled by large-scale migration of people fromrural areas to urban centres and by inflation. Take this verycase. The plaintiff had agreed to pay the balanceconsideration, purchase the stamp papers and ask for theexecution of sale deed and delivery of possession within sixmonths. He did nothing of the sort. The agreement expresslyprovides that if the plaintiff fails in performing his partof the contract, the defendants are entitled to forfeit theearnest money of Rs 5000 and that if the defendants fail toperform their part of the contract, they are liable to paydouble the said amount. Except paying the small amount of Rs5000 (as against the total consideration of Rs 60,000) theplaintiff did nothing until he issued the suit notice 2 1/2years after the agreement. Indeed, we are inclined to thinkthat the rigor of the rule evolved by courts that time is notof the essence of the contract in the case of immovableproperties — evolved in times when prices and values werestable and inflation was unknown — requires to be relaxed, ifnot modified, particularly in the case of urban immovableproperties. It is high time, we do so. The learned counselfor the plaintiff says that when the parties entered into thecontract, they knew that prices are rising; hence, he says,rise in prices cannot be a ground for denying specificperformance. May be, the parties knew of the saidcircumstance but they have also specified six months as theperiod within which the transaction should be completed. Thesaid time-limit may not amount to making time the essence ofthe contract but it must yet have some meaning. Not fornothing could such time-limit would have been prescribed. Canit be stated as a rule of law or rule of prudence that wheretime is not made the essence of the contract, allstipulations of time provided in the contract have nosignificance or meaning or that they are as good as non-existent? All this only means that while exercising itsdiscretion, the court should also bear in mind that when theparties prescribe certain time-limit(s) for taking steps byone or the other party, it must have some significance andthat the said time-limit(s) cannot be ignored altogether https://hcservices.ecourts.gov.in/hcservices/ on the ground that time has not been made the essence of thecontract (relating to immovable properties).14. Shri Sivasubramaniam then relied upon the decision inJiwan Lal (Dr) v. Brij Mohan Mehra4 to show that the delay oftwo years is not a ground to deny specific performance.But a perusal of the judgment shows that there were goodreasons for the plaintiff to wait in that case because of thependency of an appeal against the order of requisition of thesuit property. We may reiterate that the true principle isthe one stated by the Constitution Bench in Chand Rani1. Evenwhere time is not of the essence of the contract, theplaintiffs must perform his part of the contract within areasonable time and reasonable time should be determined bylooking at all the surrounding circumstances including theexpress terms of the contract and the nature of the property. (ii) (2002) 1 SUPREME COURT CASES 134 – VEERAYEE AMMALV. SEENI AMMAL , certain excerpts from it would run thus:"13. The word "reasonable" has in law prima faciemeaning of reasonable in regard to those circumstances ofwhich the person concerned is called upon to act reasonablyknows or ought to know as to what was reasonable. It may beunreasonable to give an exact definition of the word"reasonable". The reason varies in its conclusion accordingto idiosyncracy of the individual and the time andcircumstances in which he thinks. The dictionary meaning ofthe "reasonable time" is to be so much time as is necessary,under the circumstances, to do conveniently what the contractor duty requires should be done in a particular case. Inother words it means, as soon as circumstances permit. InP.Ramanatha Aiyar's The Law Lexicon it is defined to mean:"A reasonable time, looking at all the circumstancesof the case; a reasonable time under ordinary circumstances;as soon as circumstances will permit; so much time as isnecessary under the circumstances, conveniently to do whatthe contract requires should be done; some more protractedspace than 'directly'; such length of time as may fairly, andproperly, and reasonably be allowed or required, havingregard to the nature of the act or duty and to the attendingcircumstances; all these convey more or less the same idea."14. In the instance case the parties had agreed tocomplete the sale by 15.6.1980 despite the fact that the timewas not of the essence of the contract. The appellant-plaintiff is stated to have issued letters to the respondent-defendant calling upon to execute the sale deed andthereafter also issued notice. It was further alleged and https://hcservices.ecourts.gov.in/hcservices/ held proved by the course of fact that the nature of theproperty was wetland which continued to be such during thetrial. As the appellant-plaintiff had contracted to purchasethe land with a view to construct a residential house, therespondent-defendant had undertaken to remove the telegraphpole in hone part of the property. The trial as well as thefirst appellate Court found that in pursuance of theagreement the said pole was got removed in the first week ofNovember 1980 and the appellant-plaintiff issued a notice(Exhibit A-4) on 11.11.1980 calling upon the respondent-defendant to execute the sale deed. The appellant-plaintiffalso made a publication on 13.11.1980 in a daily newspaperintimating the people at large not to purchase the propertyof the respondent-defendant as the same was the subject-matter of agreement to sell executed in favour of theappellant-plaintiff. On the failure of the respondent-defendant to comply with the conditions of the agreement, thedemands made in the letters and the notice, the appellant-plaintiff filed O.S.No.1249 of 1980 in the month of November1980 itself. The legal action initiated by the appellant-plaintiff was rightly held by the trial Court and the firstappellate Court to have been commenced without delay anddefinitely within a reasonable time. The High Court was notjustified in disturbing the finding of fact arrived at onappreciation of the evidence, while disposing of the secondappeal."(iii) (1993) 1 SUPREME COURT CASES 519 – CHAND RANI (SMT)(DEAD) BY LRS. V. KAMAL RANI (SMT)(DEAD) BY LRS., certain excerptsfrom it would run thus:"29. The analysis of evidence would also point out that theplaintiff was not willing to pay this amount unless vacantdelivery of possession of one room on the ground floor wasgiven. In cross-examination it was deposed that sinceincome tax clearance certificate had not been obtained thesum of Rs 98,000 was not paid. Unless the property wasredeemed the payment would not be made. If this was theattitude it is clear that the plaintiff was insisting upondelivery of possession as a condition precedent for makingthis payment. The income tax certificate was necessary onlyfor completion of sale. We are unable to see how theseobligations on the part of the defendant could be insistedupon for payment of Rs 98,000. Therefore, we conclude thatthough as a general proposition of law time is not theessence of the contract in the case of a sale of immovableproperty yet the parties intended to make time as the https://hcservices.ecourts.gov.in/hcservices/ essence under clause (1) of the suit agreement. From thispoint of view, we are unable to see how the case inNathulal4 could have any application to the facts of thiscase.30. The next question is whether the plaintiff was readyand willing? The notices which were exchanged between theparties have to be looked into in determining readiness andwillingness. On September 10, 1971 the plaintiff would saythrough the registered notice that ready money wasavailable for purchase of the property which was followedup by a telegram. The stand is taken by the defendant thatwithin 10 days from August 26, 1971, the sum of Rs 98,000was not paid; hence, the sum of Rs 30,000 stood forfeited.The redemption of the mortgage would be done and the incometax clearance also would be obtained after the purchaseof stamp paper. Where, therefore, the plaintiff was put onnotice as to the stand of the defendant with regard topayment of Rs 98,000 which again was reiterated in thenotice dated September 16, 1973, nothing would have beeneasier for the plaintiff than to pay the said sum. Insteadof adopting that course what is stated in the notice datedSeptember 24, 1971 by the plaintiff is as follows:“5. That as per agreement, your clientess has to pay alltaxes, rates, municipal taxes up to the date ofregistration and that the previous and other documentspertaining to the said plot No. 30, Block ‘K’, sanctionedplan and completion certificates from Municipal Corporationof Delhi in respect of the superstructure built on the saidplot shall be handed over along with the vacant possessionof first floor by September 30, 1971.You know that September 30, 1971 is fast approaching andyour clientess is still to comply with these requirementsbesides mentioned in para Nos. 2 and 3 of the agreement.I, therefore, call upon you to advise your clientess tocomply with the requirements well before September 30, 1971or latest by September 30, 1971 and obtain the further partconsideration of Rs 98,000 from my clientess.”31. Therefore, even as late as September 24, 1971 theplaintiff was never willing to make the payment of Rs98,000. In this connection, we have already seen the oralevidence. It shows there was no readiness and willingness.We are in agreement with the conclusion of the DivisionBench."(iv) 2011(4) CRC 640 – SARADAMANI KANDAPPAN V. S.RAJALAKSHMI& OTHERS=(2011)12 SCC 18, certain excerpts from it would run thus:"28. The intention to make time stipulated for https://hcservices.ecourts.gov.in/hcservices/ payment of balance consideration will be considered to beessence of the contract where such intention is evidentfrom the express terms or the circumstances necessitatingthe sale, set out in the agreement. If, for example, thevendor discloses in the agreement of sale, the reason forthe sale and the reason for stipulating that timeprescribed for payment to be the essence of the contract,that is, say, need to repay a particular loan before aparticular date, or to meet an urgent time-bound need (saymedical or educational expenses of a family member) timestipulated for payment will be considered to be theessence. Even if the urgent need for the money within thespecified time is not set out, if the words used clearlyshow an intention of the parties to make time the essenceof the contract, with reference to payment, time will beheld to be the essence of the contract.29. Let us consider the terms of the agreement ofsale in this case to find out whether time was the essence.The standard agreements of sale normally provide forpayment of earnest money deposit or an advance at the timeof execution of agreement and the balance of considerationpayable at the time of execution/registration of the saledeed. In the absence of contract to the contrary, thepurchaser is bound to tender the balance consideration onlyat the time and place of completing the sale [see clause(b) of Section 55(5) of the Transfer of Property Act, 1882(“the TP Act”, for short)]. In this case we find that thereis a conscious effort to delink the terms relating topayment of balance price (Clauses 4, 5 and 6) from the termrelating to execution of sale deed (Clause 7) and makingthe time essence only in regard to the payment of thebalance sale consideration. There is also a clearindication that while time would be the essence of thecontract in regard to the terms relating to payment ofbalance price, time would not be the essence of thecontract in regard to the execution of the sale deed. 30. The intention making time essence of thecontract for payment of balance price is clear from thefollowing:(a) Clause 4 requires the balance consideration to be paidin three instalments, that is, Rs 1,00,000 on orbefore 28-2-1981; Rs 1,00,000 on or before 6-4-1981; andRs 75,000 on or before 30-5-1981;(b) Clause 5 makes it clear that if any of the above https://hcservices.ecourts.gov.in/hcservices/ mentioned dates of payment is subsequently declared as aholiday, then the next immediate working day shall be thedate of payment. This shows a clear intention that paymentshould be made on the stipulated dates and even a day’sdelay was not acceptable unless the due date was declaredto be a holiday;(c) Clause 6 specifically stipulates that the payments ondue dates is the essence of the contract and in case offailure on the part of the purchaser the vendors shallcancel the agreement.31. On the other hand, if we look at the termsrelating to performance of sale, there is a clearindication that time was not intended to be the essence,for completion of the sale. Clause 3 provides that theexecution of sale deed shall depend upon the second party(the purchaser) getting satisfied regarding the title tothe lands, so also the nil encumbrance. It is significantthat the said clause does not say that payment of balanceconsideration shall depend upon the purchaser gettingsatisfied regarding title or nil encumbrances. Clause 7provides that the sale deed shall be executed at theconvenience of the purchaser, as and when she wants them tobe executed either in her name or in the name of hernominee or nominees. Clause 12 provides that if the secondparty (the purchaser) finds the title of the properties tobe unsatisfactory or unacceptable, the vendors shall be puton notice about her intention not to conclude the sale andin such an event, if the vendors fail to satisfy thepurchaser regarding their title, the vendors shall pay tothe purchaser within three months from that date, allmonies advanced by the purchaser till then. It is thusevident from Clause 12 also that the payments of balancesale price in three instalments on the specified due dateswere not dependent upon the further examination of title orthe satisfaction of the purchaser about the title."29. The plaintiff cannot plead carte blanche in his favourand simply at his whims and fancies approach the Court for specificperformance. 30. As such, applying the dicta as found exemplified andexpatiated in the aforesaid precedents, if the facts on hand areanalysed it is glaringly and pellucidly clear that there are lacheson the part of the plaintiff in filing the suit for specificperformance. https://hcservices.ecourts.gov.in/hcservices/

31. The learned counsel for the plaintiff would cite thesecond part of Section 54 of the Limitation Act and he would alsoplace reliance on the following decision of the Honourable ApexCourt:2006(4) CTC 326 – K.BALARAMAN AND OTHERS V. PATTAMMAL ANDOTHERS, certain excerpts from it would run thus:"It is argued by the learned counsel for theappellants that the suit is barred by limitation. Theparties have entered into an agreement, Ex.A1 on20.08.1980 wherein, admittedly, there is no specificdate fixed for performance of the contract, thelimitation starts from the date when the plaintiff hasnotice that the performance is refused as contemplatedunder Article 54. In this case, the first defendantrefused to execute the Sale Deed only through his replynotice, Ex.A7 dated 01.10.1988 and the suit was filedby the plaintiffs on 01.12.1988, hence, the suit is intime."32. For which the learned counsel for the defendant wouldinvite the attention of this Court to the indubitable andindisputable, unarguable and unassailable facts that even thoughthe plaintiff did not take steps to get the sale deed executed inhis favour in respect of the suit property, he got patta in hisfavour.In re the genuineness or otherwise of Ex.A1-the agreement tosell:33. The fact remains that the plaintiff himself was an exV.A.P. at the relevant time and he got the patta changed in his nameobviously without any reference to Ex.A1. There is no smidgen orpint evidence to highlight that anterior to the filing of theadditional counter in the partition suit as D8 therein, theplaintiff herein disclosed anything about Ex.A1 before any authorityor he issued any notice to the defendant. These facts, the lowerCourt correctly took note of. 34. Common or garden principle of law as it is, thatpreponderance of probabilities would govern the adjudication incivil cases; such elements, it is quite obvious and axiomatic in thefacts and circumstances of this case, are against the plaintiff andit is discernible in view of the ratiocination adhered to supra indiscussing the matter by this Court.35. Keeping the aforesaid dicta, the lower Court analysedappropriately the evidence on both sides. https://hcservices.ecourts.gov.in/hcservices/

36. At this juncture I recollect the following maxims:(i) Affirmatis est probare – He who affirms must prove.(ii) Affirmanti, non neganti incumbit probatio – The burdenof proof lies upon him who affirms, not upon one who denies. 37. The sum and substance of those maxims is to the effectthat it is the duty of the person who affirms a particular fact toprove it and he cannot call upon the other side to prove thenegative aspect.38. Here, the plaintiff approached the Court by assertingthat Ex.A1 is a genuine document, which was denied to be so by thedefendant. The lower Court appropriately and appositely negativedthe arguement on the plaintiff's side that the Court itself byinvoking Section 73 of the Indian Evidence Act could compare thedisputed signatures of the defendant with that of the admitted ones.39. At this juncture, I would like to refer to the decisionof the Hon'ble Apex Court reported in (2008) 4 SCC 530[Thiruvengadam Pillai vs. Navaneethammal and another]; certainexcerpts from it would run thus:"16. When there is no doubt that court cancompare the disputed handwriting/signature/fingerimpression with the admittedhandwriting/signature/finger impression, suchcomparison by court without the assistance of anyexpert, has always been considered to be hazardousand risky. When it is said that there is no bar to acourt to compare the disputed finger impression withthe admitted finger impression, it goes withoutsaying that it can record an opinion or finding onsuch comparison, only after an analysis of thecharacteristics of the admitted finger impression andafter verifying whether the same characteristics arefound in the disputed finger impression. Thecomparison of the two thumb impressions cannot becasual or by a mere glance. Further, a finding inthe judgment that there appeared to be no markeddifferences between the admitted thumb impression anddisputed thumb impression, without anything more,cannot be accepted as a valid finding that thedisputed signature is of the person who has put theadmitted thumb impression. Where the court findsthat the disputed finger impression and admittedthumb impression are clear and where the court is ina position to identify the characteristics of https://hcservices.ecourts.gov.in/hcservices/ fingerprints, the court may record a finding oncomparison, even in the absence of an expert'sopinion. But where the disputed thumb impression issmudgy, vague or very light, the court should nothazard a guess by a casual perusal.17. The decision in Murari Lal and LalitPopli should not be construed as laying a propositionthat the court is bound to compare the disputed andadmitted finger impressions and record a findingthereon, irrespective of the condition of thedisputed finger impression. When there is a positivedenial by the person who is said to have affixed hisfinger impression and where the finger impression inthe disputed document is vague or smudgy or notclear, making it difficult for comparison, the courtshould hesitate to venture a decision based on itsown comparison of the disputed and admitted fingerimpressions. Further, even in cases where the courtis constrained to take up such comparison, it shouldmake a thorough study, if necessary with theassistance of counsel, to ascertain thecharacteristics, similarities and dissimilarities.Necessarily, the judgment should should contain thereasons for any conclusion based on comparison of thethumb impression, if it chooses to record a findingthereon. The court should avoid reaching conclusionsbased on a mere casual or routine glance or perusal.19. The trial court had analysed the evidenceproperly and had dismissed the suit by giving cogentreasons. The first appellate court reversed it bywrongly placing onus on the defendants. Itsobservation that when the execution of anunregistered document put forth by the plaintiff wasdenied by the defendants, it was for the defendantsto establish that the document was forged orconcocted, is not sound proposition. The firstappellate court proceeded on the basis that it is forthe party who asserts something to prove that thing;and as the defendants alleged that the agreement wasforged, it was for them to prove it. But the firstappellate court lost sight of the fact that the partywho propounds the document will have to prove it. Inthis case the plaintiff came to court alleging thatthe first defendant had executed an agreement of salein his favour. The first defendant having denied it,the burden was on the plaintiff to prove that the https://hcservices.ecourts.gov.in/hcservices/ first defendant had executed the agreement and not onthe first defendant to prove the negative. Theissues also placed the burden on the plaintiff toprove the document to be true. No doubt, theplaintiff attempted to discharge his burden byexamining himself as also scribe and one of theattesting witnesses. But the various circumstancesenumerated by the trial court and the High Courtreferred to earlier, when taken together, rightlycreate a doubt about the genuineness of the agreementand dislodge the effect of the evidence of Pws. 1 to3. We therefore of the view that the decision of theHigh Court, reversing the decision of the firstappellate Court, does not call for interference."40. There is also one other decision rendered by me reportedin 2008 (3) CTC 470 [Ganapathy Thevar v. Shanmuga Thevar]; certainexcerpts from it would run thus:"14. .......The Court cannot assume the roleof an expert in comparing the disputed handwritingwith that of the admitted ones. No doubt, the Courtas per Section 73 of the Evidence Act, in certaincircumstances could exercise its power with caution.In such an event, it is the bounden duty of the Courtto specify clearly as to what are the salientfeatures based on which the finding is arrived at.15. It is common knowledge that the scienceof analysing the questioned documents contemplatescertain principles and theories. Here, both theCourts below were not objective in analysing theimpugned handwriting.16. No carte blanche is given to any Court tosimply compare the disputed handwriting with that ofthe admitted handwritings and arrive at a subjectivesatisfaction about the similarities anddissimilarities. There should have been reasons setout for arriving at such conclusion, but here, boththe Courts below have not resorted to such aprocedure. The subjective satisfaction of both theCourts below cannot be taken in favour of thedefendant."Yet one other precedent is as under:(iii) (1979) 2 SUPREME COURT CASES 158 – THE STATE(DELHI ADMINISTRATION) V. PALI RAM. https://hcservices.ecourts.gov.in/hcservices/

41. A mere poring over and perusal of the above precedentswould highlight and spotlight the fact that the Court is notexpected to assume the role of an expert and arrive at theconclusion in one way or other relating to the genuineness orotherwise of a document unless extraordinary circumstances warrantso, and furthermore, once the Court assumes the role of an expertnecessarily, the various characteristics as found recognised in thescience of handwriting analysis should be referred to, so to say, atleast a famous treatise on handwriting analysis should be referredto and accordingly, there should be a detailed judgment. Meresubjective satisfaction would not be sufficient. No carte blancheis given to any Court to simply look at the disputed signature withsome admitted signatures and give a finding that the Court issatisfied in one way or the other.42. In this case, the lower Court correctly held that it wasthe duty of the plaintiff to take steps to get the disputedsignatures compared with the admitted signatures of the defendantbut the plaintiff, for reasons best known to himself, did notchoose to do so.43. The learned counsel for the plaintiff, by placingreliance on the evidence of P.W.2-Rangasamy Gounder and P.W.3 oneother witness would try to pyramid his arguement that the lowerCourt could have very well placing reliance on the oral testimony ofP.Ws.1 to 3, held Ex.A1 as a genuine document.44. It is not the question of the Court simply relying onoral evidence which was shaky and titchy to give a finding infavour of the plaintiff, when the plaintiff notwithstanding theopportunity to get the disputed signatures compared with theadmitted signatures of the defendant, had not chosen to avail it.The lower Court also commented upon the evidence of P.W.2 as well asP.W.3 to the effect that their evidence is not free from doubt. 45. The lower Court referred to the evidence of P.W.3 andobserved that his evidence torpedos the very plea of the plaintiffthat it was the defendant who approached voluntarily the plaintifffor selling her 1/7th share. In fact, the plain reading of thedeposition of P.W.3 would demonstrate and display, as per him it wasthe plaintiff who took initiative to purchase the 1/7th share of thedefendant and it is not as though the defendant, who offered to sellher property.46. Over and above that, the deposition of P.W.2 also didnot inspire confidence in the mind of the trial Court for the reasonthat P.W.2 simply deposed that there were some 10 or 12 persons https://hcservices.ecourts.gov.in/hcservices/ present at the time of emergence of Ex.A1 and that there was sometalk of panchayat etc. and he did not know about it. As such, inview of the shaky and patchy, tetchy and pococurante evidenceadduced on the side of the plaintiff the lower Court did not want toplace reliance on them; wherefore, this Court being the appellateCourt, even though has got the power to peruse the depositions andarrive at a different conclusion, yet in view of the clinchingreasons furnished by the lower Court in disbelieving the versions ofP.W.1 to 3, does not want to interfere with such a finding.47. The learned counsel for the plaintiff, by inviting theattention of this Court to the deposition of D.W.2 would advance hisarguement to the effect that D.W.2, who is the sister's husband ofD.W.1 (the defendant) would candidly admit his signature in Ex.A1and in such a case, it cannot be stated that Ex.A1 is not a genuineagreement. 48. The learned counsel for the defendant, appropriatelyand appositely and that too legally, by inviting the attention ofthis Court to the entire deposition of D.W.2, would portray andproject the facts to the effect that D.W.2 did not admit that hesigned the agreement to sell. All that he deposed as D.W.2, was thathis signature found in Ex.A1 was that of his own and nothing more. 49. A plain running of the eye over the deposition of D.W.2would show that D.W.2 would admit his signature in Ex.A1, but hewould hasten to add that he never knew anything about the contentsof it and he never claimed that he saw the defendant signing Ex.A1.50. At this juncture, the role of an attesting witnessshould be taken note of. My mind is reminiscent and redolent of thefollowing decision of this Court:2001 (3) T.L.N.J.173 – K.A.SELVANACHI AND ANOTHER V.DR.S.R.SEKAR AND ANOTHER, certain excerpts from it would run thus:"The learned single Judge placed reliance on thedecision of a single Judge of this Court, Ismail,J., as hethen was, in the case of Ramasamy Gounder v.Anantapadmanabha Iyer (1971-1-M.L.J.392), wherein thelearned Judge referred to decisions rendered by learnedsingle Judges in two old cases viz., Sathasiva Iyer,J. InKandasamy v. Nagalinga (1912) I.L.R.36 Mad 564 and Narayanav. Rama I.L.R.(1915 38 Mad 396 and that of KumaraswamiSastri,J. In the case of Nayakammal v. Munnaswamy Mudaliar(1924) 20 L.W.222. Sathasiva Iyer,J.in the case ofKandasamy referred to the "ordinary course of conduct ofIndians in this presidency" and held that attestation mustbe treated prima facie as a representation by the attestorthat the title and other facts relating to title recited in https://hcservices.ecourts.gov.in/hcservices/ the document are true and that they will not be disputed.The learned judge also observed that in his long experienceas judicial officer, if the attestor has an existinginterest in the property dealt with in the documentattestation was always made in order to bind him as to thecorrectness of rhe recitals. Kumaraswami Sastri,J., in thecase of Nayakammal, observed that "it is the commonest thingin this country for attestations to be obtained from personshaving a possible interest in the property with the objectof binding them later on" and that "I have rarely comeacross a case where a person having and interest present orcontingent has attested the deed without enquiring into itscontents".Those observations made by the learned judges cannotbe treated as having laid down a proposition of law that allattestors of all documents must be imputed with knowledge ofthe contents thereof and even when such contents are adverseto the interest of the attestors so that the attestors areestoped from questioning the same solely by reason of thefact of their having attested the document. Observationsbased on personal perceptions and experience of individualJudges cannot be elevated to the status of Rules of law.Custom and usage are always a matter of evidence and strictproof.Those observations are also clearly inconsistentwith the law that had been laid down by the Privy Council inthe case of Pandurang Krishnaji and cannot be regarded ashaving laid down such inconsistent law. Moreover, whatevermay have been the practice in the year 1912 or 1924, thesame cannot be regarded as the practice even eighty yearslater, when the awarness of the requirements oif law is fargreater than what it was eighty years ago. Further, onprinciple it is not possible to hold that attestation of asignature is to be deemed as acceptance of the contents ofthe document which has been executed by the signatory whosesignature is attested by the attestor. There should besomething more than mere attestation to impute suchknowledge of the contents so as to bind the attestors." 51. A bare reading of above excerpts, including the wholejudgement would evince that a witness is a person who should betaken as the one who could speak about the factum of the executantsigning before him and not about the contents. In this case, suchvery crucial fact itself is missing in the deposition of D.W.1because D.W.2 never stated that he saw the alleged executant,namely, D.W.1, signing Ex.A1. In such a case, placing reliance on https://hcservices.ecourts.gov.in/hcservices/ the deposition of D.W.2 would be a well-neigh impossibility forgiving any finding in favour of the plaintiff and that too, in asuit for specific performance.52. The learned counsel for the defendant would invite theattention of this Court to Ex.A1 and point out that on the back sideof Sheet No.1 and on the back side of Sheet No.4 of Ex.A1, the straypurported signatures of Meenakshi and Srirangasamy Reddy could beseen. The said Srirangasamy Reddy is none but the husband ofMeenakshi and he had not signed as a witness even as per the versionof the plaintiff. The lower Court looked askance at it and raisedthe query as to why such signatures should find in Ex.A1. Certainlythat is a crucial fact to be noted.53. Only people who get signatures in blank papers, wouldat the time of converting such blank stamped and signed papers intodocuments would commit such mistakes in unwittingly allowing straysignatures in such documents. Therefore I am of the view that theratiocination adhered to by the lower Court can never be found faultwith in disbelieving the genuineness of Ex.A1. 54. The learned counsel for the plaintiff, by inviting theattention of this Court to the deposition of D.W.2, would contendthat D.W.2's wife also was one of the persons who executed anagreement to sell in respect of her 1/7th share in favour of theplaintiff and that she in fact executed the sale deed. That wouldnot in an way strengthen the case of the plaintiff herein, which hasto be viewed independently. The deposition of D.W.2 should be takenas a whole. He would plead that he did not see D.W.1 signing Ex.A1and he would also plead total ignorance about the agreement to selland in such a case, in the wake of all these irregularities, thecase of the plaintiff cannot be upheld and a decree for specificperformance cannot be passed.55. Ex.A2-the advocate notice, is a formal document. Thedeposition of P.W.2-Rangasamy Gounder, by itself in the wake ofdiscrepancies found set out in the case of the plaintiff would haveno probative force and Rengasamy Gounder himself has not statedanything about the stray purported signatures of Meenakshi and herhusband Srirangasamy Reddy on the back of the first and fourthsheets of Ex.A1. In fact, the deposition of P.W.2 would be contrato what is contained in Ex.A1 as aforesaid in respect of the straysignatures. Wherefore, I could see no perversity or illegality inthe judgement and decree of the lower Court. 56. Trite the proposition of law is that the trial Court isthe best Court to appreciate the demeanour of the witnesses and itis the Court which is having the opportunity of dealing with the https://hcservices.ecourts.gov.in/hcservices/ entire matter in a better objective manner. Hence, I am of the viewthat no interference with such a finding of the lower Court iswarranted.57. As has been correctly pointed out by the learnedcounsel for the defendant, the alleged prevarication in thedeposition of D.W.1 is not germane, as she did not admit hersignature in Ex.A1 and for that matter she also disputed hersignature in Ex.A1 and a deposition has to be read as a whole, notin piecemeal. In the written statement, without mincing words, thedefendant longingly took up the stand that she did not sign Ex.A1.In such a case, the burden of proof, which is ambulatory, would getshifted from the plaintiff to the defendant if at all the plaintiffby clinching evidence had proved the said facts. The plaintiffcannot pick holes in the cross-examination of D.W.1 and try toachieve success in the litigative process. Accordingly if viewedthe observation made by the lower Court in ignoring such allegedprevarication in the deposition of D.W.1 warrants no interference .58. The fact also remains that the plaintiff is the cousinbrother of the defendant and in such a case I could see absolutelyno reason as to why the plaintiff should simply wait for 16 ½ yearsor 17 years for getting the sale deed executed in his favour.59. At this juncture my mind is reminiscent and redolent ofthe following adage "He who seeks equity must do equity and he whocomes to equity must come with clean hands". 60. Over and above that, the one other relevant maxim wouldbe, "In re dubia magis infitiatio quam affirmatio intelligenda – Ina doubtful matter, the negation is to be understood rather than theaffirmation. "61. When evidence is lacking it is the negative that shouldbe presumed and not the affirmative. Accordingly, the plaintiff whowas expected to approach the Court at the earliest point of time andthat too, with clinching evidence, failed to do so, whereupon theplaintiff cannot demand, as of right, a decree in his favour forspecific performance based on Ex.A1-the agreement to sell.62. Ex.A2 is the copy of the advocate notice and Ex.A3 isthe acknowledgement card and those are only formal documents in thiscase. Ex.A4 is the chitta extract, Ex.A5 is only a certified copyof the patta; Ex.A6 to A10 are the Electricity receipts to show thatthe plaintiff was paying electricity charges in respect of the motorpump set in the suit property. Ex.A11 is the kist receipts andEx.A12 is a circular, Exs.A13 to A16 are the Adagal extracts andthose are all formal documents in this case for the reason that https://hcservices.ecourts.gov.in/hcservices/ absolutely there is no shard or shred, jot or miniscule evidence toshow as to how the plaintiff got mutation in the Revenue records inhis name when there is nothing to show that based on E.A1 he gotsuch mutation. Over and above that based on Ex.A1 like document nomutation also is possible. As such, those documents referred tosupra are having no probative force of their own so far this case isconcerned. 63. Ex.A20 is the reply notice given by the defendant to theplaintiff's advocate in respect of Ex.A2, and A.21 is the replygiven by the plaintiff's advocate to the defendant's advocate andEx.A22 is the acknowledgement, which are formal in nature.64. Exs.B1 is the sale deed and Exs.B2 & B3 are relating tothe partition suit, which are formal documents in this case. 65. The repeated submission of the learned counsel for theplaintiff is that by decreeing the suit, the defendant would not inany way be prejudiced, as about 17 long years she kept quiet and insuch a case, equity is not in favour of the defendant but it is onlyin favour of the plaintiff.66. Flouting and ignoring the mandates as contained inSections 16 and 20 of the Specific Relief Act, the specificperformance cannot be ordered in favour of the plaintiff and if doneso that would lead to travesty of justice, The discussion relatingto the status of the plaintiff as lessee under the defendant'smother and thereafter also, would not in any way be helpful foradjudging the lis relating to the specific performance. IN RE THE LIMITATION POINT67. The suit was filed on 25.6.2004 whereas, Ex.A1 emergedon 12.6.1987. The core question arises as to whether clause (2) ofArticle 54 of the Limitation Act could be invoked or not?68. In this connection, the following precedents could alsobe cited fruitfully.(i) (2006) 2 SUPREME COURT CASES 428 – R.K.PARVATHARAJ GUPTAV. K.C.JAYADEVA REDDY, certain excerpts from it would run thus:"9. Article 54 of the Limitation Act reads thus:"54. For specific performance of a contract.Three years. The date fixed for the performance, or,if no such date is fixed, when the plaintiff has noticethat performance is refused." https://hcservices.ecourts.gov.in/hcservices/

10. In terms of the said article, a suit forspecific performance of a contract is required to befiled within three years; in the event no date is fixedfor the performance, within a period of three yearsfrom the date when the plaintiff has notice thatperformance is refused. The notice dated 24.4.1984,thus, is required to be construed in the context of theagreement dated 13.10.1982 entered into by an betweenthe parties.(ii) AIR 2006 SUPREME COURT 1556 – GUNWANTBHAI MULCHAND SHAHAND OTHERS V. ANTON ELIS FAREL AND OTHERS=(2006) 3 SCC 634, certainexcerpts from it would run thus:"8. We may straightaway say that the manner in whichthe question of limitation has been dealt with by the courtsbelow is highly unsatisfactory. It was rightly noticed thatthe suit was governed by Article 54 of the Limitation Act,1963. Then, the enquiry should have been, first, whether anytime was fixed for performance in the agreement for sale,and if it was so fixed, to hold that a suit filed beyondthree years of the date was barred by limitation unless anycase of extension was pleaded and established. But in a casewhere no time for performance was fixed, the court had tofind the date on which the plaintiff had notice that theperformance was refused and on finding that date, to seewhether the suit was filed within three years thereof. Wehave explained the position in the recent decision in R.K.Parvatharaj Gupta v. K.C. Jayadeva Reddy1. In the case onhand, there is no dispute that no date for performance isfixed in the agreement and if so, the suit could be held tobe barred by limitation only on a finding that theplaintiffs had notice that the defendants were refusingperformance of the agreement. In a case of that naturenormally, the question of limitation could be decided onlyafter taking evidence and recording a finding as to the dateon which the plaintiff had such notice. We are not unmindfulof the fact that a statement appears to have been filed onbehalf of the plaintiffs that they did not want to lead anyevidence. The defendants, of course, took the stand thatthey also did not want to lead any evidence. As we see it,the trial court should have insisted on the parties leadingevidence on this question or the court ought to havepostponed the consideration of the issue of limitation alongwith the other issues arising in the suit, after a trial. https://hcservices.ecourts.gov.in/hcservices/

9. It is seen that the suit was dismissed by the trial courton the finding that the claim for the relief of specificperformance was barred by limitation. The plaint containsnot only a prayer for specific performance but also a prayerfor perpetual injunction restraining the defendants frominterfering with the possession of the plaintiffs and fromcreating any documents or entering into any transaction inrespect of the suit property. Of course, the latter part ofthat prayer is directly linked to the claim for specificperformance, but the suit as regards the prayer forperpetual injunction to protect the possession of theplaintiff over the suit property on the claim that thepredecessor of the plaintiffs was put in possession of theproperty pursuant to the agreement for sale, on a subsequentdate, could not have been held to be not maintainable on anyground. Of course, the grant of the relief of injunction ina sense is discretionary and the court ultimately might ormight not have granted the relief to the plaintiffs. Thedefendants could have also shown that the relief ofinjunction claimed is merely consequential to the relief ofspecific performance and was not an independent relief. Butthat is different from saying that the suit could bedismissed merely on a finding that the prayer for specificperformance of the agreement was barred by limitation. Inany event, therefore, the dismissal of the suit as a wholeas not maintainable, could not be justified or said to becorrect.11. The reliance placed on Section 46 of the Contract Act bylearned counsel for the defendants would also be an aspectthat has to be considered when finally deciding whether thesuit could be held to be in time and whether in a suit filed29 years after the agreement for sale, any relief could begranted to the plaintiffs. The applicability of Section 46of the Contract Act, and if applicable, what is thereasonable time, in this case has to be determined. Theaspect of delay will have relevance while consideringwhether the plaintiffs would be entitled to thediscretionary relief of specific performance, even if theysatisfy the other requirements of the Specific Relief Act.But those aspects can be decided only after taking evidencein the case and giving the plaintiffs an opportunity to showthat they had always been and they were ready and willing toperform their part of the contract and to show that they hadpaid the entire consideration and had been put in possessionof the property, and nothing further remained for them to https://hcservices.ecourts.gov.in/hcservices/ perform and all that remained was the execution of the saledeed in their favour and their failure to sue earlier didnot disentitle them to the relief of specific performanceeither on the ground that the suit was barred by limitationor on the ground of delay and laches on their part or on theground that the discretion of the court in terms of Section20 of the Specific Relief Act was not liable to be exercisedin their favour in the circumstances of the case. All thesepleas available to the plaintiffs cannot enable thedismissal of the suit as barred by limitation under Article54 of the Limitation Act, as things now stand.15. In such a situation, especially when the whole matterrequires reconsideration, we do not think it proper to gointo the various arguments urged by the learned SeniorCounsel appearing in this case. We think that all thosearguments require to be kept alive for decision in the suitafter a trial. Suffice it to say that we consider that theinterests of justice would be subserved by setting aside thefinding by the courts below that the suit is barred bylimitation, even while upholding the finding that the trialcourt had the jurisdiction to try the suit and remand thesuit to the trial court for a decision of all the issuesarising therein, including the issue of limitation, inaccordance with law after giving the parties an opportunityto adduce evidence in support of their respective cases."(iii) 2009(5) SCC 462 – AHMADSAHAB ABDUL MULLA (2) (DEAD) BYPROPOSED LRS.VS.BABIJAN AND OTHERS, certain excerpts from it wouldrun thus:"3. In S. Brahmanand v. K.R. Muthugopal2 a Bench ofthis Court did not go into this issue. It decided the appealon the factual scenario applicable. It was however noticedthat several High Courts have dealt with the matterdifferently. In all these cases, for example, in KashiPrasad v. Chhabi Lal3, Alopi Parshad v. Court of Wards4, LalaRam Sarup v. Court of Wards5, Kruttiventi Mallikharjuna Raov. Vemuri Pardhasaradhirao6, R. Muniswami Goundar v. B.M.Shamanna Gouda7, Hutchegowda v. H.M. Basaviah8, PurshottamSava v. Kunverji Devji9, Lakshminarayana Reddiar v.Singaravelu Naicker10, Shrikrishna Keshav Kulkarni v. BalajiGanesh Kulkarni11 and P. Sivan Muthiah v. JohnSathiavasagam12, the High Courts had decided the issue in thebackground of Article 113 of the Limitation Act, 1908(hereinafter referred to as “the old Act”). Article 113 ofthe old Act is in pari materia with Article 54 of the https://hcservices.ecourts.gov.in/hcservices/ Schedule to the Act."(iv) 2007(15) SCC 174 – JANARDHANAM PRASAD V. RAMDAS,certain excerpts from it would run thus:"12. The court, in applying the period of limitation,would first inquire as to whether any time was fixed forperformance of agreement of sale. If it is so fixed, the suitmust be filed within the period of three years, failing whichthe same would be barred by limitation. Here, however, no timefor performance was fixed. It was for the courts to find outthe date on which the plaintiff had notice that theperformance was refused and on arriving at a finding in thatbehalf, to see whether the suit was filed within three yearsthereafter.(v) 1999(8) SCC 587 – SHAKUNTALA (SMT V. NARAYAN GUNDOJICHAVAN AND OTHERS, certain excerpts from it would run thus:"8. We, however, find on a perusal of the plaint,the said amount of Rs 1000 as mentioned by the High Courtwas not paid by the plaintiff to the defendant subsequent tothe notice dated 17-6-1977. In fact the averment in theplaint itself shows at para 5 that the plaintiff was readyand willing to perform his part of compromise and to pay Rs1000 in advance at the time of making application to theDeputy Commissioner, Belgaum. The above statement in theaforesaid paragraph of the plaint is a clear indication thatno such amount of Rs 1000 was paid nor received by thedefendant subsequent to notice dated 17-6-1977.9. If that be the case the limitation necessarilystarted from 17-6-1977, the date of refusal to perform hispart of the contract and the suit was barred by time. TheHigh Court was in error in taking a contrary view and insetting aside the judgments of the lower courts. Thejudgment of the High Court is set aside and the judgment ofthe trial court as affirmed by the first appellate court, isrestored.(vi) AIR 2004 MAD 8 – SURYGANDHI V. LOURDUSWAMY;(vii) 1997(10) SCC 66 – VENKAPPA GURAPPA HOSUR V. KASAWWAC/O.RANGAPPA KULGOD;(viii) AIR 2004 KAR.442 – H.M.KRISHNA REDDY V. H.C.NARAYANAREDDY(ix) AIR 1999 RAJ 167 – RAM KARAN AND OTHERS V. GOVIND LALAND ANOTHER https://hcservices.ecourts.gov.in/hcservices/

69. My discussion supra would portray that even though noperiod or any date has been specifically stipulated for performanceof the contract as found embodied in Ex.A1, yet within a reasonabletime there should have been performance of the contract. It is notas though a case where the plaintiff has been totally absolved fromperforming his part of the contract. The law envisages under theStamp Act coupled with the Registration Act that the non-judicialstamp papers should be purchased only by the purchaser and not bythe seller and he has to bear the brunt. The recitals extractedsupra from Ex.A1 would reveal that the plaintiff undertook the taskof purchasing the stamp papers and getting the sale deed scribedand registered. However he would only specify in Ex.A1 that he wasnot having sufficient funds. In such a case, the plaintiff cannotbe allowed to contend before this Court that there remained nothingmore to perform on his part, after paying the sum of Rs.20,000/- assale consideration to the defendant. 70. What is reasonable, time differs from case to case. Ashas been already highlighted supra by me, there involved onlytotally a sum of Rs.3000/- for getting the sale deed registered andeven by phantasmagorical thoughts or by any stretch of imaginationit cannot be stated that a person would require almost 17 years toacquire a sum of Rs.3000/- for getting such sale deed executed andregistered. 71. At this juncture it is just and necessary to extracthereunder the relevant portion of Ex.B4-the additional counter filedin A.S.No.1 of 2005 relating to the entire extent of 22 cents ofland.1. 17.6.87 – Agreement of sale between 2ndpetitioner and 8th respondent for Rs.20,000/-2. 25.6.1987 – Agreement of sale between 1stpetitioner and 8th respondent for Rs.20,000/-3. 17.6.1987 – Agreement of sale between 2nddefendant and 8th respondent for Rs.20,000/-4.17.6.1987 – Agreement of sale between 7thdefendant and 8th defendant for Rs.20,000.005. 1.3.1986 – Agreement of sale betweenJayaraman for himself and as guardian of his thenminor 3rd plaintiff and 4th plaintiff and 8th respondentJayaraman is the husband of Gandhimathi one of thedaughter of Raju Reddiar for Rs.45,000/-.6. 17.6.1987 – Agreement of sale betweenAchammal (since dead) and 8th defendant forRs.20,000/-. Her husband is 3rd defendant and thatissues are 4th defendant to 6th defendant.72. A plain reading of the above excerpts would reveal and https://hcservices.ecourts.gov.in/hcservices/ show that as many as many as six agreements to sell, emerged onvarious dates, curiously enough on one and the same day so to say on17.6.1987 four agreements to sell emerged and one agreement to sellemerged a year anterior to those four agreements to sell and yet oneother agreement emerged subsequent to 1987 i.e. on 25.6.1987 i.e. aweek after the emergence of the aforesaid four agreements to sell.73. Taking into account the whole kit and caboodle of thefacts and circumstances what one could understand is that as per theversion of the plaintiff, he had sufficient financial wherewithal topay allegedly the entire sale consideration to the proposed sellers,however, he could not raise enough money to purchase stamp papersand to get the sale deeds registered and for that he took 17 longyears in that regard. Not to put too fine a point on it, the pleaof the plaintiff is too big a pill to swallow and it is like asquare peg in a circular hole.74. From any angle if the matter is viewed the plaintiff isguilty of laches and the suit is clearly barred by limitation also,in addition to the personal bars operating as against the plaintiff.As such, I could see no perversity or illegality in the judgementpassed by the lower Court. 75. Accordingly the points are decided as under:Point No.(i) is decided to the effect that the plaint is notbad for want of a specific avement that the plaintiff has been readyand willing to perform his part of the contract throughout.Point No.(ii) is decided to the effect that the suit isbarred by limitation.Point No.(iii) is decided to the effect that the suitagreement to sell was not proved to be a genuine one.Point No.(iv) is answered to the effect that the personalbar as envisaged under Section 16 of the Specific Relief Act isoperating as against the plaintiff and consequently, thediscretionary relief of specific performance contemplated underSection 20 of the Specific Relief Act cannot be granted in favour ofthe plaintiff.Point No.(v) is decided to the effect that the plaintiff wasnot ready and willing to perform his part of the contractthroughout.Point No.(vi) is decided to the effect that there is noperversity or illegality in the judgement and decree passed by thelower Court. https://hcservices.ecourts.gov.in/hcservices/

76. In the result, this appeal is dismissed. However, thereis no order as to costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.MskToThe V Additional District Judge, Erode District at Bhavani1 cc to Mr.N. Manokaran, Advocate, Sr. 501711 cc to Mr.N. Sankaravadivel, Advocate, Sr. 50779A.S.Nos.732 of 2009JRG (CO)kk 9/10