THE HONOURABLE Mrs v. D.K.Natarajan2.D.K.Krishnamurthy3.K.S.Santha4.R.Anusuya

properties originally belonged to late Kuppuswamy Chettiar – thefather of Defendants. He died intestate on 27.6.1968. After the deathof Kuppuswamy Chettiar, his widow – D.K.Saraswathy and his childrenpartitioned the properties under registered partition deed dated7.6.1975. Since then Defendants and their mother D.K.Saraswathy havebeen in peaceful possession and enjoyment of the suit property. TheGovernment of Tamil Nadu desirous of acquiring the suit property forthe purpose of housing Coimbatore Central Post Office issued 4(1)notification to acquire an extent of 28,222 sq.ft of land situated inT.S.No.935/2. The Defendants have filed their objections before theRevenue Divisional Officer, Coimbatore.3. Case of Plaintiff is that after filing of objections for landacquisition proceedings, the Defendants have approached the Plaintiffoffering to sell the suit property. The Plaintiff offered all kindsof assistance to get the suit property de-notified from acquisition.The Plaintiff and Defendants have entered into an agreement of saleon 2.7.1986 and the price agreed to be paid by the Plaintiffs to theDefendants is Rs.125/- per sq.ft. Parties have further agreed thatas per the agreement the Plaintiff should pay Rs.2,75,000/- towardsthe estimated and agreed value of the buildings standing in the suitproperty. The Plaintiff has paid an advance of Rs.1,00,000/- by wayof five cheques of Rs.20,000/- to each of the Defendants and theirmother – D.K.Saraswathy. As per the terms of agreement, the Plaintiffwould endeavour to get the property freed from acquisition and takethe sale deed.4. Further case of Plaintiff is that in order to assist and helpthe Defendants in getting the acquisition proceedings dropped and de-notified, the Defendants and their mother late D.K.Saraswathy gavegeneral Power of Attorney in favour of Bhanwarlal H. Ranka on2.7.1986 and again after the death of Saraswathy, Defendants haveexecuted Power of Attorney on 2.5.1989 in favour of the saidBhanwarlal H. Ranka for the same purpose of cancellation ofacquisition proceedings. Further case of Plaintiff is that infurtherance of the terms of agreement the Plaintiff has also movedGovernment of India (in short, "GOI") and GoI has agreed to drop theacquisition proceedings on condition that the land owner shouldconstruct 4000 sq.ft in the ground floor and 4,000 sq.ft in the firstfloor with necessary access roads and the draft agreement was alsosent to the Defendants for the purpose of execution by the Governmentand the Defendants. But the Defendants did not come forward to enterinto agreement with GoI. In the meanwhile, alleging that theDefendants are trying to alienate the property, Plaintiffs have filedO.S.No.783 of 1990 for permanent injunction restraining theDefendants from alienating the property in favour of the 3rd parties.The Plaintiff has also filed O.S.No.9 of 1991 for decree ofmandatory injunction directing the Defendants to enter into anagreement with the Government as proposed by the Government in thedraft agreement sent to the Defendants themselves. According to the https://hcservices.ecourts.gov.in/hcservices/ Plaintiff, they are professional builders and are financially verysound and that they have always been ready and willing to performtheir part of the contract by paying the balance sale considerationof Rs.42,73,162.50 and to get the sale deed executed at their cost.The Plaintiff has alleged that the Defendants have taken differentstands at each stage and the 4th Defendant had attempted to return1/5th of advance amount received by her and the same was returned bythe Plaintiff refuting the contentions made by her. Alleging that theDefendants have committed breach of contract and that they arefalsely alleging that the sale agreement has come to an end,Plaintiff has filed the suit for specific performance to direct theDefendants 1 to 4 to execute the necessary sale deed in respect ofthe suit property, and in the event of their failure, to get the saledeed executed through process of Court. 5. Denying the plaint averments, Defendants 1 to 3 filed writtenstatement contending that the parties have clear intention of havingthe time as essence of contract. According to the Defendants, thePlaintiff was bound to purchase the property within three years andif the acquisition was not dropped and if the sale has not takenplace within three years the agreement becomes infructuous andinvalid and the Defendants are to refund the earnest money depositpaid by the Plaintiff. According to the Defendants, Plaintiff wasnever ready and willing to perform his part of the contract as perthe terms of the contract and the Plaintiff did not have the requiredfunds to pay the balance of sale price and to make the expenses ofpreparation and registration of sale deed. The Defendants furtheraverred that the draft sent by the GoI for demolishing the existingbuilding in the suit property and for construction of new buildingand incorporating the terms that the Defendants should accept therate fixed by the Central Public Works Department and the terms arecontrary to the terms and spirit of the sale agreement dated2.7.1986. Further case of Defendants is that the Power of Attorneysexecuted in 1986 and 1989 were only in terms of agreement of sale,which was in force at the time of their execution and they cannotsurvive beyond the survival of sale agreement. The Defendants furtheralleged that the Plaintiff was aware of the repudiation of contractby the Defendants even before filing O.S.No.783 of 1990 and thePlaintiff has filed frivolous suits - O.S.Nos.783 of 1990 and 9 of1991. The main defence plea is that since time was made the essenceof contract, suit filed in 1995 is barred by limitation. 6. The 4th Defendant has filed separate written statementalleging that the Plaintiff is guilty of breach of contract and thatshe has sent a legal notice on 20.1.1990 to the Plaintiff revokingthe contract and returning the advance of Rs.20,000/-. Reiteratingthe contentions of other Defendants, 4th Defendant also prayed fordismissal of the suit. https://hcservices.ecourts.gov.in/hcservices/

7. On the above pleadings, the trial Court has framed sixissues. Before the trial Court, Plaintiff examined himself as P.W.1and one Bhanwarlal H. Ranka, in whose name Exs.A.5 and A.6- Power ofAttorneys were executed, was examined as P.W.2. On behalf of thePlaintiff, Exs.A.1 to A.21 were marked. On the Defendants' side, 2ndDefendant – Krishnamurthy was examined as D.W.1 and Exs.B.1 to B.9were marked. Upon consideration of oral and documentary evidencetrial Court held that in view of clause (8) of Ex.A.1 agreement, thecontract has become impossible of performance. The trial Courtfurther held that adding three years and 3 months to date ofagreement (Ex.A.1), the stipulated time was 2.10.1989, whereas thesuit was filed on 16.2.1995 and the trial Court has answered issueNo.3 that the suit is barred by limitation. The trial Court took theview that by filing of the earlier suits – O.S.Nos.783 of 1990 and 9of 1991, Order 2 Rule 2 C.P.C. is not attracted and there is noimpediment for the Plaintiff to file the suit for specificperformance and issue No.2 was answered in favour of Plaintiff firm.However holding that the Plaintiff has not adduced substantiveevidence to show the readiness and willingness and since Ex.A.1agreement has become time barred, trial Court held that the Plaintiffis not entitled to the decree for specific performance.8. Challenging the findings, the learned counsel for AppellantMs.P.T.Asha submitted that only if acquisition proceedings aredropped the Plaintiff will have the right to get the sale deed andtherefore the time will start run only after the acquisitionproceedings were dropped and the land is freed from acquisition andwhile so trial Court erred in saying that Ex.A.1 agreement has becometime barred. Further contention of the Appellant is that W.P.No.4925of 1987 was allowed in August 1994 and after issuing Ex.A.12 – noticeon 28.9.1994, the Plaintiff has filed the suit on 16.2.1995 within aperiod of one year of allowing of the Writ Petition and therefore thesuit is well within the period of limitation. The learned counselwould further contend that execution of fresh power of attorney –Ex.A.6 would show that the Defendants were satisfied that thePlaintiff was pursuing the matter in getting the property de-notifiedfrom acquisition and while so trial Court erred in finding that thePlaintiff was not ready and willing to perform his part of thecontract. The main contention of the Appellant is that limitationwill start only from the date of de-notification i.e., only in 1994when in the writ petition land acquisition proceedings came to bequashed and the suit filed in 1995 is well within the period oflimitation. Further contention of Appellant is that when Plaintiffhad taken appropriate steps Defendants cannot blame the Plaintiff forbreach of contract.9. On behalf of the Defendants, learned Senior CounselMr.Rajagopal submitted that clauses 4, 5 and 8 in Ex.A.1 wouldcategorically show that the time stipulated was only two years plusone year and another 3 months and thereafter the agreement would https://hcservices.ecourts.gov.in/hcservices/ become infructuous. Further contention is that Plaintiff, being areal estate dealer, was conscious of the clauses and that he cannotevade the time stipulated in Ex.A.1. Drawing our attention to Ex.B.2,order in W.P.No.4925 of 1987, learned Senior Counsel would furthersubmit that even though the Writ Petition was allowed the Court hasgranted liberty to the Government to proceed from Section 5-A enquiryand that the Defendants were pursuing with the matter even afterdisposal of the Writ Petition and therefore allowing of W.P.No.4925of 1987 would not give any cause of action to the Plaintiff to filethe suit. While supporting the judgment and decree, the learnedSenior counsel also made submissions contending that the findings ofthe trial Court for issue No.2 - Order 2 Rule 2 C.P.C. is erroneous.10. Upon analysis of evidence, judgment of the trial Court andthe submissions of Plaintiff and Defendants, the following pointsarise for consideration:"1. Whether, as per clause 8, Ex.A.1 – agreement hasbecome infructuous as it became impossible of performance asit was impossible of getting the property freed from beingacquired?2. Whether the suit for specific performance filed in1995 is not barred by limitation?3. Having regard to the filing of two earlier suits –O.S.Nos.783 of 1990 and 9 of 1991, whether Order 2 Rule 2C.P.C. is attracted in a suit for specific performance filedin 1995?4. Whether the Appellant/Plaintiff has established themandatory requirement of Section 16(c) proving his readinessand willingness?5. Whether the Appellant/Plaintiff is entitled to thediscretionary relief of specific performance?11. Point Nos.1, 4 and 5: The suit property relates to prime propertymeasuring an extent of 28,222 sq.ft in Avinashi Raod, Coimbatore. Thesuit property was sought to be acquired for the purpose of CentralPost Office in Coimbatore. The Plaintiff firm, being promoters andbuilders and also influential, offered to purchase the suit propertyand also assured that they would get the suit property de-notifiedfrom being acquired and get the suit property free from acquisition.On that understanding, the Plaintiff firm and the Defendants enteredinto Ex.A.1 – agreement of sale on 2.7.1986. Price of land wasagreed at the rate of Rs.125/- per sq.ft., and that the Plaintiffsshould pay Rs.2,75,000/- towards the estimated and agreed value ofthe building standing in the suit property. https://hcservices.ecourts.gov.in/hcservices/

12. Parties were quite conscious that time is the essence ofcontract. Contention of the Plaintiff is that the intention of theparties is to perform their part of contract within three months fromthe date of notification of land acquisition proceedings and whenadmittedly land acquisition proceedings are pending it cannot be saidthat the suit was not filed within three years from the time fixed inthe agreement. Further case of Appellant/Plaintiff is that theparties themselves have made it clear in clause (5) of the agreementthat the contract has to be performed within three months from thedate of de-notification and only on that basis the parties haveagreed that the time is the essence of the contract. The learnedcounsel for the Plaintiff/appellant Ms.P.T.Asha contended that asstipulated in the agreement – Ex.A.1, the Plaintiff was to file thesuit within three months from the date of de-notification and whenthe land acquisition proceedings were pending, the Plaintiff cannotbe faulted for non-filing of the suit for specific performance at anearly date. 13. Clauses (4) to (8) in Ex.A.1 – agreement of sale are to theeffect that the purchaser would endeavour to get the property freedfrom acquisition and take the sale within two years and if not doneso, the purchaser had to pay the higher price at 15% increase tillthe 3rd year only to get the property freed and take the sale. Asper the terms of the contract, the Plaintiff was bound to purchasethe property within three years and within three months thereaftereven if the acquisition was not dropped. Clause (4) of Ex.A.1 is tothe effect that the Plaintiff should endeavour to get theacquisition proceedings dropped within two years and if not droppedextended by another period of one year with increase of 15 percent ofthe sale consideration amount. 14. To appreciate the contentious points, we may usefully referto clauses 4, 5 and 8 in Ex.A.1 – agreement of sale, which read asunder:"4. The purchasers agree to assist and help toendeavour in getting the Acquisition proceedings droppedand de-notified from being acquired within two years, andhowever, if the Acquisition Proceedings are not got droppedwithin the said period of two years, then this agreementshall be extended by another period of one year with anincrease of 15% of the sale consideration amount, from thisdate. 5. The sale deed shall be completed within 3 monthsfrom the date of de-notification, time being the essence ofthis contract..... https://hcservices.ecourts.gov.in/hcservices/

8. If it becomes impossible for getting the scheduleproperty free from being acquired within three years fromthis date as stipulated in para 4, then this agreement forsale will become infructuous and in that event the vendorsherein agree to return back the said earnest money ofRs.1,00,000/- they received from them to the purchasers andthe purchasers herein agree to receive the said amount fromthe vendors without claiming any interest thereon, and thesaid amount is to be paid back at the earliest."15. The contention of the Appellants is that only as and whenthe acquisition proceedings are dropped and it was de-notified andthe property is freed from acquisition, the Plaintiff would get theright to get the sale deed. The contention of the Plaintiff/Appellantis that the Writ Petition W.P.No.4925 of 1987 was allowed on 8.8.1994(Ex.B.2) and immediately thereafter Plaintiff had issued noticeEx.A.12 notice calling upon the Defendants to receive the balancesale price and to execute the sale deed and thereafter Plaintiff hadfiled the suit for specific performance and therefore there are nolaches on the part of the Plaintiff. 16. As pointed out earlier, parties – Plaintiff and Defendantswere conscious of getting the acquisition proceedings dropped withinthe stipulated period of two years and if acquisition proceedings arenot got dropped within the period of two years, then the agreementhas to be extended by another one year with an increase of 15 percentof sale consideration. The intention of the parties is that if theproperty is not freed from acquisition within three years, theagreement of sale will become infructuous and the intention ofparties is clearly manifested in clause 8. The Plaintiff andDefendants were conscious as to what should happen if the property isnot freed from acquisition within three years. The clear intentionof the parties is that the agreement will become infructuous if itbecomes impossible of getting the property freed from the acquisitionwithin three years and the vendors are to return the earnest money ofRs.1,00,000/-, which they received from the purchasers/Plaintifffirm. Therefore, it cannot be contended that identification of theproperty from acquisition was the sole determining factor for gettingthe sale deed. On the other hand, the parties were quite conscious ofthe terms of the agreement that the de-notification should happenwithin three years and if it is not possible of getting the propertyde-notified from acquisition the agreement would become infructuous. 17. As per Clause (4) of Ex.A.1, the Plaintiff agreed to assistand help to endeavour in getting the acquisition proceedings droppedand de-notified. To facilitate the same, the Defendants have executedEx.A.5 – general Power of Attorney on the same day of agreement i.e.,2.7.1986 in favour of P.W.2 – Bhanwarlal H. Ranka and authorisinghim to represent the Defendants before the concerned Departments and https://hcservices.ecourts.gov.in/hcservices/ Officers of the GoI, Government of Tamil Nadu and revenue officialsand also Corporation of Coimbatore and postal authorities and takeappropriate steps for deletion of the proposed acquisition. On2.5.1989, the Defendants have again executed Ex.A.6 – Power ofAttorney in favour of P.W.2 – Bhanwarlal H. Ranka. Laying emphasisupon Ex.A.6, learned counsel for Plaintiff contended that the veryfact that Defendants 1 to 4 have executed Ex.A.6 – Power of Attorneyin 1989 in favour of the Plaintiff and Defendants were conscious inextending the time to the Plaintiff in getting the property freedfrom acquisition. The further contention of the Plaintiff is thatexecution of Ex.A.6 – Power of Attorney in 1989 would again indicatethat time was not made the essence of the contract and that the saledeed has to be taken only on the property being de-notified and freedfrom acquisition. 18. Of course, the Defendants 1 to 4 did give Ex.A.6 – Power ofAttorney to P.W.2 on 2.5.1989. The execution of second Power ofAttorney - Ex.A.6 necessitated because of death of mother –D.K.Saraswathy, since after her death, Ex.A.5 – general Power ofAttorney became defunct. That apart, at the time of execution ofEx.A.6 on 2.5.1989, the time stipulated under Ex.A.1 - agreement ofsale had not expired and time was still available for completion ofcontract. In Ex.A.6, there is nothing to indicate that by executionof Ex.A.6, Defendants had the intention of supplementing clauses 4and 8 in Ex.A.1 and thereby extending the time. Ex.A.6 onlyauthorises P.W.2 to approach the officials and do the needful ingetting the property freed from acquisition. Therefore, Ex.A.6 –Power of Attorney is neither renewal nor has effect of extending thetime stipulated under Ex.A.1 – agreement of sale. There is no forcein the contention of the Plaintiff that by execution of Ex.A.6 –Power of Attorney on 2.5.1989, Defendants have intended to extend thetime stipulated under Ex.A.1. 19. Case of Plaintiff is that they have taken all steps and alsosucceeded in the cancellation of the acquisition proceedings to agreat extent. According to the Plaintiff, GoI has agreed to drop theacquisition proceedings on condition that in the place of 28,222sq.ft and the building thereon, GoI wanted a separate buildingmeasuring 4000 sq.ft of constructed area of both ground and firstfloors for which the present standing buildings have to be given upand separate buildings are to be put up. Further case of Plaintiff isthat the Government insisted upon an agreement to be executed betweenthe Defendants and the GoI with the conditions mentioned thereon hasalso sent necessary draft agreement for approval of the same by theDefendants and its execution so that Government could drop the entireproceedings of the suit property. Speaking about the draft agreementsent by GoI, P.W.1 has also stated that only at their instance, theGoI has sent the draft agreement, but the Defendants have not comeforward to approve the draft agreement and thereby committed breach.In fact, the Plaintiff has filed O.S.No.9 of 1991 seeking for https://hcservices.ecourts.gov.in/hcservices/ mandatory injunction directing the Defendants 1 to 4 to enter intonecessary agreement with President of India as per the draftagreement sent by GoI. Case of Plaintiff is that acting infurtherance of terms of the agreement they have approached the GoI,who in turn, had sent the draft agreement.20. As contended by the Defendants, demolition of the existingbuildings and construction of new buildings is not in consonance withthe terms and spirit of the sale agreement. In his evidence, D.W.1has stated that the draft agreement for dropping acquisitionproceedings is marked as Ex.B.9. By reading of Ex.B.9, it is seenthat owners/Defendants are to construct 8,000 sq.ft. carpet areawithin a span of three years with provision of approach road and alsoto execute long term lease to the GoI for 30 years with option torenew up to 99 years. The owners/Defendants are to agree to the ratefixed by the Central Public Works Department. As per the conditions,if the owners of the property failed to complete the construction ofbuilding within the stipulated period of three years, the GoI shallhave the right to initiate the acquisition proceedings afresh underthe Land Acquisition Act. As rightly contended by the learned SeniorCounsel for the Defendants, Ex.A.1 – sale agreement does notcontemplate any such course. The Plaintiff has not stated as to whoshould bear the expenses for the construction of the said buildingwith 8000 sq.ft. carpet area. Since the terms of Ex.B.9 - draftagreement are contrary to the terms and spirit of the sale agreement,it cannot be held that the Plaintiff has performed his part ofcontract. 21. Even according to the Plaintiff, Defendants have notapproved the draft approval sent by Union of India and thereby theDefendants have not co-operated in getting the property excluded fromthe acquisition proceedings. Though Plaintiff has alleged non-co-operation of the Defendants, at that stage, the Plaintiff has notchosen to file the suit for specific performance. Instead he hasfiled only suit for mandatory injunction - O.S.No.9 of 1991 directingthe Defendants 1 to 4 to enter into necessary agreement with thePresident of India as per the draft agreement. 22. As pointed out earlier, construction of new building ofabout 8000 sq.ft., providing access roads and committing to theGovernment to lease out the new building for 30 years with options torenew upto 99 years and agreeing to rates of rent to be fixed byCentral Public Works Department are contrary to the spirit of Ex.A.1agreement of sale. Ex.B.9 – Draft agreement cannot be said to be infurtherance of terms of contract and intention of the parties. Evenassuming that the Defendants have not co-operated in approving thedraft agreement and that the impossibility of performance was due toDefendants' fault, in equity, the Plaintiff would not be entitled tothe decree for specific performance. https://hcservices.ecourts.gov.in/hcservices/

23. It is pertinent to note that at that stage the 4th Defendanthad sent Ex.A.3 notice (20.1.1990) repudiating the contract andsending back the sum of Rs.20,000/- received by her as advance as perclause 8 of the agreement of sale. Even when the 4th Defendant hadtaken stand repudiating the contract and also returning the advanceamount, the Plaintiff has not then chosen to file the suit forspecific performance. On the other hand, he has only filed the suit –O.S.No.783 of 1990 for permanent injunction alleging that theDefendants are attempting to alienate the suit property and soughtfor permanent injunction restraining the Defendants from alienatingthe suit property.24. Clause 8 in Ex.A.1 is emphatic i.e., if the contract becomesimpossible of performance for getting the property freed fromacquisition within three years from the date of agreement (2.7.1986),then the agreement for sale will become infructuous. As per Section20(3) of the Specific Relief Act, the Court may properly exercisediscretion to decree specific performance in any case where thePlaintiff has done substantial acts or suffered loss in consequenceof a contract capable of specific performance. It is only wherecontract is capable of specific performance and the Plaintiff hasdone substantial acts of the contract the Court would exercise itsdiscretion in his favour. Considering the surrounding circumstancesand conduct of the parties, the suit filed by the Plaintiff in 1995is not maintainable and the Plaintiff is not entitled to any relief. 25. To obtain a decree for specific performance, the Plaintiffhas to allege and prove continuous readiness and willingness from thedate of the contract to the time of hearing to perform the contracton his part. Section 16(c) of the Specific Relief Act provides thatthe plaintiff must plead and prove that he has always been ready andwilling to perform his part of the essential terms of the contract.The continuous readiness and willingness at all stages from the dateof agreement till the date of the hearing of the suit need to beproved. The substance of the matter and surrounding circumstances andthe conduct of the plaintiff must be taken into consideration inadjudging readiness and willingness to perform his part of thecontract. 26. The mere statement in the plaint expressing readiness andwillingness would not be sufficient. The material should be placed toprove the same. In the instant case, the evidence and circumstanceswould clearly indicate that the readiness and willingness contendedby the Plaintiff was only an empty averment in the plaint. Evidenceand surrounding circumstances clearly indicate that the Plaintiff wasnot ready and willing to perform his part of the contract.27. As pointed out earlier, time stipulated under Ex.A.1 –agreement of sale was a period of two years from 2.7.1986 and forfurther one year with an increase at the rate of 15 percent, https://hcservices.ecourts.gov.in/hcservices/ totalling 3 years i.e., 2.7.1989. As per clause 5, the sale deedshall be completed within three months from the date of de-notification i.e., 2.10.1989. As pointed out earlier, by sendingEx.A.3 notice, even in January, 1990, 4th Defendant has repudiated thecontract and sent back advance amount received by her. Inspite ofreceipt of Ex.A.3 notice and the conduct of the Defendants in notapproving the draft agreement, Plaintiff has not chosen to file thesuit for specific performance. Surrounding circumstances and conductof the Plaintiff show that the Plaintiff was not ready and willing toperform his part of the contract, But he has only filed O.S.NO.783 of1990 - the suit for permanent injunction and another suit - O.S.No.9of 1991 to direct the Defendants to enter into agreement withPresident of India. 28. In or about 1990, the Central Government has sent Ex.B.9 –draft approval containing the terms and conditions for de-notifyingthe property from acquisition. No evidence was adduced by thePlaintiff as to who should bear the expenses for the construction of8000 sq.ft and providing other infrastructure for the said buildinglike access road, etc., When the Government sent Ex.B.9 – draftagreement, if really the Plaintiff was ready and willing to performhis part of the contract he could have filed the suit for specificperformance expressing his readiness and willingness to abide by theterms of the draft agreement and expressed his willingness toconstruct the building as required by the Government of India and thePlaintiff could have insisted for getting and thereby the Plaintiffcould have very well filed the suit for specific performance. Butthat was not to be so. He has filed only the suit - O.S.No.9 of 1991seeking for mandatory injunction directing Defendants 1 to 4 to enterinto necessary agreement with the President of India. The facts,evidence and conduct of parties clearly show that the Plaintiff wasnot ready to take the sale deed within the stipulated period.29. Point No.2:- Learned counsel for the Appellant contended thatonly if acquisition proceedings are dropped, the Plaintiff will havethe right to get the sale deed and when the Writ Petition was pendingto quash the acquisition proceedings the Plaintiff could not haveearlier filed the suit for specific performance and the suit is notbarred by limitation. 30. Learned counsel Ms.Asha would further contend that when theWrit Petition - W.P.No.4925 of 1987 came to be allowed only in August1994 and thereafter the Plaintiff had issued Ex.A.12 notice(28.9.1994) and immediately thereafter the Plaintiff had filed thesuit and therefore the Plaintiff cannot be faulted for not filing thesuit at an early date. The contention that the entire landacquisition proceedings was quashed by the order in W.P.No.4925 of1987 does not merit acceptance. By reading of Ex.B.2, it is seen thatwhile allowing the Writ Petition, the acquisition proceedings after https://hcservices.ecourts.gov.in/hcservices/ the stage of Section 4(1) notification was quashed, and the Court hasdirected a fresh enquiry under Section 5-A of the Act in regard tothe lands in question and the Government could decide to proceed withthe acquisition by issuing a declaration. It is thus evident thateven though W.P.No.4925 of 1987 was allowed, the Court has directedenquiry under Section 5-A and even after allowing of writ petition,the land acquisition proceedings continued. The learned SeniorCounsel for the Respondents/Defendants Mr.T.R.Rajagopal submittedthat in the second round of litigation, land acquisition proceedingscame to be quashed finally only in 2008. Therefore, cause of actioncould not have arisen on disposal of Writ Petition – W.P.No.4925 of1987. 31. As discussed earlier, under Ex.A.1, the parties have agreedthat the property has to be de-notified from acquisition within twoyears and with an increase of 15 percent by another period of oneyear and the sale deed has to be completed within three months fromthe date of notification. As per the recitals in Ex.A.1, the outertime limit for performance of the contract is 2.10.1989. Withinthree years thereafter the Plaintiff ought to have filed the suit. Asdiscussed earlier, the 4th defendant repudiated the contract byissuing Ex.A.3 notice (20.1.1990). Even then the Plaintiff had notchosen to file the suit. The Plaintiff had filed the suit – O.S.No.9of 1991 seeking for a mandatory injunction directing the Defendantsto enter into contract with President of India as per the draftagreement. The said suit – O.S.No.9 of 1991 was filed on 7.1.1991.The 1st Defendant has filed written statement on 2.8.1991 allegingthat the Plaintiff was guilty of breach of contract and that he wasnever ready and willing to perform his part of the contract. All theDefendants have raised their defence in the written statement. Thefirst defendant also raised a plea that the contract has becomeinfructuous on 2.7.1989 and averred that the Power of Attorneyautomatically stood revoked. Inspite of stiff resistance by the 1stDefendant, the plaintiff has not chosen to file the suit within threeyears thereafter, but has only filed the suit on 6.4.1995. Pointingout the various dates and conduct of the parties, the trial Courtrightly held that the suit is barred by limitation and the finding oftrial Court on Issue No.3 is confirmed.32. Point No.3: The Plaintiff has filed the suit – O.S.No.783 of1990 for permanent injunction restraining the Defendants fromalienating the suit property. Again the Plaintiff has filed O.S.No.9of 1991 seeking for a mandatory injunction directing the Defendantsto enter into necessary agreement with the President of India as perthe draft agreement. All the contentious points raised between theparties in this suit were raised in the earlier suits. On Issue No.2,the trial Court has held that even though two previous suits werefiled, the present suit, being one for specific performance of https://hcservices.ecourts.gov.in/hcservices/ contract, is not barred under Order 2 Rule 2 C.P.C. 33. The learned Senior Counsel for the Defendants submitted thatboth the earlier suits referred to the same set of facts andobligations and also proceeds on the footing of clauses in Ex.A.2agreement and therefore the present suit is barred under Order 2 Rule2 C.P.C. The learned Senior Counsel would further contend that as perOrder 41, Rule 22 C.P.C, while supporting the decree, it is open tothe Respondents/Defendants to challenge the findings on any specificissue, which were registered against them. Order 41 Rule 22 is aspecial provision, whereby the respondent, without filing any crossobjection, can support the decree and also urge that any issue foundagainst him is erroneous in addition to his right to support thedecree on any other point. 34. In order to attract Order 2 Rule 2 C.P.C, the earlier suitshould be founded on the same cause of action on which thesubsequent suit is based and if in the earlier suit the plaintiff hasomitted to sue in respect of or intentionally relinquished anyportion of his claim, he will not be subsequently entitled to sue inrespect of the portion of his claim so omitted or relinquished. Order2 Rule 2 C.P.C. is directed in securing the exhaustion of relief inrespect of a cause of action.35. As we have discussed earlier, the earlier two suits arefounded on the same cause of action i.e., the agreement of sale andon the same cause of action that the Defendants are not comingforward to perform their obligations and breach of contract. In(2005) 5 SCC 548 ( N.V.SRINIVASA MURTHY AND OTHERS VS. MARIYAMMA),the Appellants/Plaintiffs therein sought for permanent injunctionagainst the Defendants from interfering with their possession of suitproperty in the earlier suit. In the earlier suit, theAppellants/Plaintiffs neither claimed relief of declaration thatoriginal sale deed on basis of which respondents have acquired titleto the suit property was a loan transaction nor claimed specificperformance of said agreement for re-conveyance in the earlier suit.They have only claimed permanent injunction restraining thedefendants from interfering with their possession of suit property.On such facts, in the said case, the Supreme Court held that thesubsequent suit for specific performance of the agreement for re-conveyance is clearly barred by limitation. 36. In similar facts and circumstances in 2010(1) MLJ 363(KALASH PROPERTIES PVT.LTD. VS. LILLY PUSHPAM), in the earlier suit,the plaintiff sought for relief of permanent injunction on theaverments that a threat was made by the first defendant to dispossesshim of the property and, second suit was one for specificperformance. Referring to (2005) 5 SCC 548, 2006(2) MLJ 211(RAPTAKOS BRETT & CO.PVT.LTD. VS. MODI BUSINESS CENTRE (P) LTD.) andother decisions, the Division Bench in the above judgment has held https://hcservices.ecourts.gov.in/hcservices/ that pleadings in both the suits and cause of action in both thesuits were based on the very same and identical facts and that thecause of action seeking for the relief of specific performance wasavailable in the earlier suit and the suit for specific performanceis barred under Order 2 Rule 2 C.P.C.37. The test should be whether the cause of action on which thepresent suit for specific performance was filed, was available to thePlaintiff. In our considered view, the cause of action is identicaland the present suit for specific performance is barred under Order 2Rule 2 C.P.C. Upon analysis of evidence and materials on record, thetrial Court rightly held that the suit for specific performance isnot maintainable and is clearly barred by limitation. The finding ofthe trial Court on Issue No.2 is also reversed and it is held thatthe suit is barred under Order 2 Rule 2 C.P.C. 38. The findings of trial Court are based upon facts andevidence. Since the suit filed in 1995 is not maintainable, theplaintiff is not entitled to the relief of specific performance. Uponanalysis of evidence, we find that the findings of the trial Courtare based upon evidence warranting no interference and the Appeal isliable to be dismissed. 39. In the result, the Judgment dated 31.1.2003 made inO.S.No.104 of 2001 on the file of the I Additional District Court –cum- Fast Track Court at Coimbatore is confirmed and the Appeal isdismissed with costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistraruskToThe I Additional District Judge-cum-Fast Track Court,Coimbatore.1 cc To Mr.Sarvabhauman Associates, Advocate, SR.47950 A.S.No.974 of 2003vsv(co)pmk.25.8.2010.