P. Velumani v. K.A. Noorjahan & Ors.

expressed her readiness and willingness and the balance of saleconsideration was kept ready but the appellant/defendant send a replydated 13.02.1995 stating that he was not willing to execute the saledeed for the present. The appellant/defendant was attempting toretain 1 acre and 23 cents of lands together with the house and otherappurtenances which form part of the total sale consideration ofRs.22,97,100/- for the 4 acres 3 cents vacant agricultural landswhich were agreed to between the parties.11. The Varthamanam agreement dated 05.02.1992 was thereforeoperative from 14.12.1994 itself when the second respondent/secondplaintiff paid the entire sale consideration to the appellant.Therefore, the appellant/defendant was duty bound to execute the saleof the suit properties in favour of the first respondent/plaintiffupon receiving the remaining sale consideration of Rs.7,18,200/- withher and whenever she was called upon to deposit the said amount intoCourt she would deposit it. 12. The second respondent/second plaintiff was only a formalparty and no relief was claimed separately or jointly in his favourinasmuch as the suit agreement was partially dependent on thecompletion of an agreement dated 05.02.1992 in his favour. The suitwas filed within 3 years from the date of refusal of theappellant/defendant to execute the sale deed. Hence the suit wasfiled praying for the relief of directing the appellant/defendant toexecute the sale deed in respect of the suit properties and registerthe same in favour of the first respondent/plaintiff and in defaultthe Court was to execute the sale deed and register it.13. In the written statement filed by the appellant/defendantaverments have been made to the effect that at no point of timeduring the negotiation or at the time of entering into an agreementit has been suggested by the respondents/plaintiffs' or anyone onbehalf of them that the properties have been intended to be dividedinto house sites and further, the time has been the essence ofcontract and in this regard a legal notice dated 29.07.1993 has beenissued by the appellant/defendant to the second respondent/secondplaintiff and since he has not been ready and willing to perform hispart of the contract by paying the remaining sale consideration hehas committed a breach of the agreement and moreover, it is notcorrect to state that the second respondent/second plaintiff who hasperformed his part of the contract of sale under his agreementfirstly by purchasing 4 acres and 3 cents and only after thecompletion of the entire sale has the right to claim execution of thesale of the property under the agreement pertaining to S.F.No.212/2including the bungalow bearing D.No.375-A, Well, Kalam bearingD.No.375 Farm Shed, Crusher Shed, Cow Shed etc., and all theappurtenance. https://hcservices.ecourts.gov.in/hcservices/

14. The further pleas of the appellant/defendant have been thatthe Varthamanam letter dated 05.02.1992 stated that the sale deed inrespect of the D.No.375-A, Well, Kalam bearing D.No.375 Farm Shed,Crusher Shed, Cow Shed, coconut trees and other appurtenance would beexecuted after the completion of the sale of the rest of the propertyincluding the property covered by the agreement with the firstrespondent/first plaintiff and the two agreements are separate andthey are not connected in anyway except that the house and theappurtenance thereof should be sold last and both the agreementsstipulated the period for performance i.e, before 05.08.1993 andbased on the Varthamanam letter. The plaintiffs' trying to takeumbrage for the defaults and their inability to form their part ofcontract and moreover, the appellant/defendant has never parted withthe possession of the property and that the properties have neverbeen divided into house sites and it continued to be an agriculturalproperty and also that the properties have been agreed to be sold asis where is condition and only after the inspection of the propertymade by the second respondent/second plaintiff the property has beenagreed to be purchased and the second plaintiff never spent even asingle pie for vacating the encroachers and in fact theappellant/defendant issued a legal notice on 29.07.1993 calling uponthe respondents/plaintiffs to complete the transaction within thestipulated time reminding that time has been the essence of contractand the respondents/plaintiffs' have not been ready with cash to paythe remaining sale consideration and as a matter of fact theappellant/defendant has been to Sub-Registrar office on 05.08.1993 atRaja Street, Chennai, at 09.30 am. and waiting till 5 pm, but therespondentsplaintiffs' never turned up till 5 pm.15. Apart from the above, the stand of the appellant/defendantis that after the issuance of legal notice on 29.07.1993 theagreement has never been extended and no conveyance has been made infavour of the plaintiffs or their nominees and also that theappellant/defendant has sold the properties to third parties afterthe expiry of the time in regard to the performance of the agreementand the said sales have been effected with the knowledge of therespondents/plaintiffs' and also that the second respondent/secondplaintiff has adduced all the sale deeds besides the plaintiffs' sonhimself has purchased 32 cents of vacant land from theappellant/defendant and there is absolutely no cause of action forthe suit.16. On the basis of the pleadings mentioned supra the trialCourt altogether framed three issues on the side ofrespondents/plaintiffs' witnesses P.W. 1 to 4 were examined and Exs.A1 to A30 were marked and on the side of appellant/defendant witnessD.W.1 was examined and Exs. B1 to B32 were marked.17. On an appreciation of oral and documentary evidence and upon https://hcservices.ecourts.gov.in/hcservices/ perusing the available material evidence on record the trial Courtresultantly directed the first respondent/first plaintiff to depositthe balance sale consideration into Court and upon such deposit beingmade in favour of the first respondent/first plaintiff theappellant/defendant is to execute the sale deed within a month fromthe date of passing of the judgment and in default the plaintiffshave been directed to approach the Court in regard to the executionof sale deed by the Court on behalf of the appellant/defendant.18. The points that arises for determination in this appeal are:-1.Whether eighteen months time specified in Ex.A2agreement dater 05.02.1992 entered into between theappellant/defendant and the firstrespondent/plaintiff is the essence of contract ?2.Whether possession has been handed over by theappellant/defendant to the second respondent/secondplaintiff in pursuance Ex.A1 agreement dated05.02.1992 ?3.Whether the appellant/plaintiff is to execute thesale deed of the suit properties in favour of thefirst respondent/first plaintiff ?19. Contentions, Discussions and Findings of point Nos.1 to 3:According to the learned counsel for the appellant/defendant theappellant has entered into different agreement on the same date05.02.1992 and Ex.A1 agreement dated 05.02.1992 has been entered intowith the second respondent/second plaintiff in regard to an extent of4 acres and 3 cents as mentioned in the schedule and present suit hasnothing to do with Ex.A1 agreement dated 05.02.1992 and the otheragreement Ex.A2 dated 05.02.1992 has been entered into between theappellant/defendant and the first respondent/first plaintiff inrespect of an extent of 1 acre and 26 cents being the subject matterof the suit property and the buildings thereon and the stand of therespondents/plaintiff's is that as per Ex.A3 muchilika dated05.02.1992 the suit agreement can be executed only after fulfillmentof the obligations as per Ex.A1 agreement dated 05.02.1992 enteredinto between the appellant and the second respondent/second plaintiffand this plea is contrary to the averments made in Ex.A3 muchilikaand there is no evidence at all in the case in regard to thepurported readiness and willingness on the part of the firstrespondent/first plaintiff (wife of the second respondent/secondplaintiff) who has not been examined and as a matter of fact thesecond respondent/second plaintiff as PW.1 before the trial Court inhis evidence has not deposed that the first respondent/firstplaintiff has been ready and willing to perform her part of the https://hcservices.ecourts.gov.in/hcservices/ contract and that she has been possessing the money ready forcompleting the transactions and in this aspect the acceptance ofevidence of PW.1 by the trial Court in favour of the firstrespondent/first plaintiff (wife) is clearly unsustainable andfurther the respondents/plaintiffs' have not come to Court with cleanhands and therefore the grant of relief of specific performance asprayed for in the suit by the trial Court is not correct because ofthe fact that the relief of specific performance is undoubtedly anequitable and discretionary remedy in law and moreover, Ex.A2agreement dated 05.02.1992 relates to the first respondent/firstplaintiff and Ex.A1 agreement dated 05.02.1992 in favour of thesecond respondent/second plaintiff is not the subject matter of thesuit and that the second respondent/second plaintiff has falselycontended that as if the huts are on the suit property and also thatwhen the first respondent/first plaintiff has come out with thespecific plea with the right to issue in respect of Ex.A2 agreementdated 05.02.1992 will arise only after the second respondent/secondplaintiff perform his contract in respect of 4 acres and 3 centscovered under Ex.A1 agreement dated 05.02.1992 and on completion ofthe entire sale of the said extent of 4 acres and 3 cents etc. Thepresent suit filed by the respondent/plaintiff is an unsustainableone even as per the respondents/plaintiffs' own case.20. Continuing further, the learned counsel for the appellantsubmits that the second respondent/second plaintiff has only beenpermitted to measure the lands and prepare the lay out plan etc., byentering into the property, and the possession always continued withthe appellant/defendant who has been admittedly cultivating the suitproperty by raising sugar cane and other crops and that he was alsosupplying sugar cane to Bannariamman Sugar Company and other adangalsalso prove that the appellant/defendant has been alone in thepossession of the property and this has been considered by PW.1(second plaintiff) and in commercial transactions of the suit natureit must be construed that time is the essence of contract and in anyevidence even whether time is not the essence of the contract it isopen to the parties while issuing the notice to make time as theessence and thereafter any plea that time is not the essence ofcontract cannot be raised and it is not open to the parties to adduceany oral evidence in regard to the construction of a document as perSection 91 of the Indian Evidence Act, and there have been no hutdwellers in the property as per Ex.A1 agreement dated 05.02.1992 andas a matter of fact the hut dwellers have been only on the highwaysand the amount alleged to have been spend by the secondrespondent/second plaintiffs' for displacing them cannot be construedas discharging any obligation in respect of the suit agreement Ex.A2or Ex.A1 agreement dated 05.02.1992 and moreover, in both theagreement Exs.A1 and A2 dated 05.02.1992 there is no reference to thehut dwellers and if really the removal of hut dewellers has been apart of the obligation under the contract then the same might have https://hcservices.ecourts.gov.in/hcservices/ been made mention of in the agreement itself and in the absence ofthe same the respondents/plaintiffs have been precluded fromadvancing any contention so as to seek an equity and the reading ofthe Ex.A3 Varthamanam agreement dated 05.02.1992 shows that theexecution of the sale deed and delivery of possession was postponedonly in regard to the constructed portion till the completion of theobligation under Ex.A1 as per agreement dated 05.02.1992 and indeedthis suit filed by the respondents/plaintiffs' is unsustainablebecause of the reasons that obligations as per Ex.A1 dated 05.02.1992have not been completed. 21. Besides the above, expatiating his arguments, the learnedcounsel for the appellant contends that it is not open to the trialCourt to render a finding that a period of 18 months will beavailable to the first respondent/first plaintiff were 14.12.1994,contrary to the case of the respondents/plaintiffs' and per contra areading of the plaint will go to show that all the obligations inrespect of the suit property as per Ex.A2 agreement dated 05.02.1992has to be performed on or before 05.08.1993 and that the firstrespondent/first plaintiff has been ready and willing to purchase thesuit property on 05.08.1993 and moreover, a telegram has been send bythe first respondent/first plaintiff that the respondents/plaintiffs'have been ready with the balance of purchase sum payable to theappellant/defendant as per the two agreements dated 05.08.1993, andalso the fact remains that the second respondent/second plaintiff haspurchased only an extent of 1 acres and 89 cents till 01.02.1993 inregard to the properties covered under Ex.A1 agreement and he hasfailed to purchase the remaining extent of property and there is noexplanation for not completing the transactions pertaining to the 7cents of lands and as a matter of fact, there is no pleading that anextent of 44 cents has been covered by road and as such no sale hastaken place and the evidence of appellant/DW.1 is to the effect thatthe sales have been executed subsequent to 01.02.1983 not inpursuance of Ex.A1 agreement dated 05.02.1992 and they areindependent transactions and if the two agreements dated 05.02.1992are inter-connected really and the respindent/plaintiffs are readyand willing to fulfill their obligations then, they have to provethat they have been possessing a sum of Rs.6,18,000/- available withthem on that date inasmuch as only an extent of 1 acre and 89 centshas been sold from and out of the extent covered under Ex.A1agreement dated 05.02.1992, till 05.08.1993.22. Added further, the learned counsel for theappellant/defendant submits that the non-examination of the firstrespondent/first plaintiff as a witness is a fatal one to the case ofthe respondents/plaintiffs' and as a matter of fact the firstrespondent/first plaintiff has been present on 05.08.1993 before theauthorities of the Registration Department and the non-production ofaccounts by the respondent/plaintiffs' to substantiate their case https://hcservices.ecourts.gov.in/hcservices/ that entire consideration has been paid in regard to Ex.A1 agreementdated 05.02.1992 transactions, and that cash has been ready tocomplete the transaction under Ex.A2 agreement will result in drawingof an adverse inference against them and that the agreement has beenrevoked, then there exists no subsisting right on the date of filingof the suit by the respondents/plaintiffs' and indeed therespondents/plaintiffs' have assigned erroneous reasons in theaffidavit extending time for payment of Court fee and the evidence ofthe stamp vendor will show that stamp have been available and thenon-production of receipts by the respondents/plaintiffs in regard tothe payments received is very much fatal to their case.23. The learned counsel for the appellant/defendant submits thatthe respondents/plaintiffs' have to claim their relief's on the basisof their own conduct and if on account of their own conduct they arenot entitled to any reliefs, then they cannot rely on the misconductof the appellant/defendant and to lend support of this contention, herelies on the decision of this Court, Bhagwandas Fatechand Daswaniand 4 others v. H.P.A. International, a partnership firm carrying onits business at No.8C, Old No.15/16, Casa Major Road, Egmore, Madras8 rep. By its Managing Partner H.A. Md. Aleemuddin and 2 others 2001(3) CTC 86 at page 123, wherein it is inter-alia held as follows:-"Learned counsel for the plaintiff respondent laidgreat emphasis on the misconduct on the part ofthe appellant in the course of the trial, indenying his identity as Bob Daswani, and hisconduct in proceeding with the constructiondespite the interim injunction, and submitted thatthe lack of candour and dishonesty in hispleadings and affidavits, disentitles him to anyrelief in equity, as one who plays foul withequity cannot use it as a shield. This submissionthough relevant to the grant or withholding ofdiscretionary relief, where the plaintiff isotherwise not disentitled in law or equity to suchrelief, cannot be regarded as relevant for thepurpose of deciding the existence or otherwise ofa legally enforceable contract at the time thetrial Court granted the decree for specificperformance. What doe not exist in the eye of lawcannot be deemed to exist, because of the acts ofomission or commission of the defendant during thecourse of the trial. If the plaintiff havingregard to it's own conduct is not entitled to therelief, the misconduct of the defendants cannotresult in plaintiff becoming entitled to suchrelief." https://hcservices.ecourts.gov.in/hcservices/

24. Also the learned counsel for the appellant contends thatmere existence of a valid agreement of sale is no reason for theCourt to grant an equitable relief of specific performance and thecontinuos readiness and willingness on the part ofrespondents/plaintiffs' is a condition pertinent to the grant ofrelief and moreover, Court of law has to look into the conduct of therespondents/plaintiff's before and subsequent to the filing of thesuit besides taking note of the other surrounding circumstances ofthe case.25. He seeks in aid of the decision of the Hon'ble Supreme CourtAjaib Singh and others v. Smt. Tulsi Devi (2000) 3 MLJ 159 (S.C)whereby and whereunder it is observed that,"plaintiff making averments which are convenientto her without regard for truth and notperforming her part of the contract could not getspecific performance".26. He presses into surveys the decision of Hon'ble SupremeCourt, N.P. Tirugnanam (Died) by Lrs. v. Dr. R. Jagan Mohan Rao andothers 1995 2 MLJ 118 at page 119 wherein it is laid down as follows;"It is settled law that remedy for specificperformance is an equitable remedy and is in thediscretion of the Court which discretion requiresto be exercised according to settled principles oflaw and not arbitrarily as adumbrated under Sec.20, of the Specific Relief Act, 1963. UnderSec.20 the court is not bound to grant the reliefjust because there was valid agreement of sale.Sec.16(c) of the Act envisages that plaintiff mustplead and prove that he had performed or hasalways been ready and willing to perform theessential terms of the contract which are to beperformed by him, other than those terms theperformance of which has been prevented or waivedby the defendant. The continuous readiness andwillingness on the part of the plaintiff is acondition precedent to grant the relief ofspecific performance. This circumstances ismaterial and relevant and is required to beconsidered by the court while granting or refusingto grant the relief. If the plaintiff failseither to aver or prove the same, he must fail.To adjudge whether the plaintiff is ready andwilling to perform his part of the contract, thecourt must take into consideration, the conduct ofthe plaintiff prior and subsequent to filing of https://hcservices.ecourts.gov.in/hcservices/ the suit along with other attending circumstances.The amount of consideration which he has to pay tothe defendant must of necessity be proved to beavailable. Right from the date of the executiontill date of the decree, he must prove that he isready and has always been willing to perform hispart of the contract. As stated, the factum ofhis readiness and willingness to perform his partof the contract is to be adjudged with referenceto the conduct of the party and the attendingcircumstances. The court may infer from the factsand circumstances whether the plaintiff was alwaysready and willing to perform his part ofcontract".27. He cites the decision of this court in K. Jayakumar v.Robert and others (2002) 2 MLJ 112 wherein it is observed as follows,"It is apparent from the materials on record thatduring the relevant time the plaintiff did notexpress her readiness and willingness to performher part of the contract and call upon theappellant to complete the sale.Notice was issued more than one year afterthe date fixed for executing the sale deed andafter receipt of the reply notice stating thattime was the essence of the contract and that thecontract stood terminated, she waited for nearly ayear to file the suit. She also did not take upthe challenge by the defendant in his pleadingscalling upon her to deposit the amount intoCourt".28. Reliance is placed on the side of appellant to the decisionof Hon'ble Supreme Court, Faquir Chand and Another v. Sudesh Kumari(2007) 7 MLJ 871 at page 872 whereby and whereunder it is observedthat,"According to the provisions contained in Section16(c) of Specific Relief Act 1963, readiness andwillingness to perform the essential terms ofcontract are must for insistence of specificperformance in a suit under the said Act".29. Further, the learned counsel for the appellant draws theattention of this Court to the decision Seeni Ammal v. Veerayee Ammal1997 (I) CTC 360 wherein it is held that https://hcservices.ecourts.gov.in/hcservices/ "Parties to the suit specifically agreeing tocomplete contract within stipulated date and timeis the essence of contract and that the generalprinciple that time is not the essence ofcontract relating to immovable property is notapplicable".30. The learned counsel for the appellant cites the decision ofHon'ble Supreme Court M/s. P.R. Deb and Associates v. Sunanda Roy1997 2 MLJ 3 wherein it is held thus,"If the contract relates sale of immovableproperty it would normally be presumed that timewas not of the essence of the contract. But,even if it is not of the essence of the contract,the Court may infer that it is to be performed ina reasonable time if the conditions of thecontract so warrant. That can be inferred (1)from the express terms of the contract, (2) fromthe nature of the property, and (3) from thesurrounding circumstances."31. Continuing further, on the side of the appellant thedecision G. Ramalingam v. T. Vijayarangam (2007) 1 MLJ 591 at page593 is cited before this Court to the following effect that, "When the sale agreement does not contain anyclause to the effect that time is the essence ofthe contract and the surrounding circumstancesalso prove that the parties never intended timeto be the essence of the contract, the lowerCourts are not correct in holding that time isthe essence of the contract.Even if for a single day, the plaintiff-agreement holder is not ready to take the saledeed, the equitable remedy of specificperformance should not be granted. Readiness andwillingness must be there continuously from thedate of agreement up to the date of hearing.When the findings of the lower Courts, thatthe plaintiff has not proved his continuousreadiness and willingness at all stages, is basedupon the evidence on record and when the findingsare not perverse, the High Court will notinterfere with such findings, by exercising powerunder Section 100 of the Code of Civil https://hcservices.ecourts.gov.in/hcservices/ Procedure".32. Moreover, the learned counsel for the appellant/defendantrelies on the decision of this Court Vasantha and others v. M.Senguttuvan 1997 2 MLJ 576 wherein it is laid down as follows,"Even if for a single day, plaintiff-agreementholder is not ready to take the sale deed, theequitable remedy should not be granted. Readinessand willingness must be there continuously fromthe date of agreement upto the date of hearing.Even if the finding of the lower court that theappellant has sufficient funds is accepted, thatwill not show his willingness. 'Willingness' mustbe to implement the contract in accordance withthe terms within the stipulated period or within areasonable time thereafter. If he had thenecessary funds, he has to explain why he did notoffer or tender the balance sale consideration andgot the sale deed. It is well-settled that evenif the appellant proved all the ingredients of thesection, he cannot claim specific performance asof right. It is only a discretion and thatdiscretion will have to be exercised on well-established judicial principles".33. In support of the contention that time limit prescribed bythe parties in the agreement has relevance, the learned counsel forthe appellant brings to the notice of this Court to the decisionRanganatha Gounder v. Sahadeva Gounder and others (2004) 4 MLJ 112 atpage 113 wherein it is among other things held thus,"It is settled that a person cannot claim therelief of specific performance unless he proveshis readiness and willingness to perform his partof the contract.In the case of agreement of sale relating toimmovable property, time is not of the essence ofthe contract. At the same time, it cannot bestated that the time-limits prescribed by theparties in the agreement have no significance orvalue and that they mean nothing".34. Even if time is not the essence of contract the contract hasto be performed within a reasonable time, on the side ofappellant/defendant, reliance is placed on the decision SubbannaGounder (deceased) and others v. Subbayammal and others (2003) 2 MLJ231 at page 232, wherein it is held that, https://hcservices.ecourts.gov.in/hcservices/ "In the suit for specific performance which is adiscretory relief, the plaintiff must come to theCourt with clean hands".35. To say when time is the essence of contract the learnedcounsel for the appellant relies on the decision S.S. Chokkalingam v.R.B.S. Mani and 5 others 1994 1 LW 321 at page 322 wherein it is heldthus,"No doubt, ordinarily in contracts relating toimmovable property, time is not the essence of thecontract. But, in the facts and circumstances ofeach case, the court can come to a conclusion thatin a particular case, time has been made theessence of the contract. In the present case, wehold that though initially the respondents werewilling to extend the time as requested by theappellant, they have made it clear to himunequivocally that he should complete thetransaction before a particular date. In fact,the appellant himself has assured the respondentsthat in case of default, they were free to seekother purchasers. Hence, in this case we holdthat the appellant is not entitled to claim therelief of specific performance as he has not cometo Court within the time. We have also pointedout that the suit has been filed long after theappellant was informed of the sale in favour ofrespondent 3 and 4. There is absolutely noexplanation on record as to why the appellant waskeeping quiet for such a long time."36. He also relies on the decision Indravathi v. Kamala 2000(IV) CTC 278 wherein it is observed that,"Normally tie is the essence of contract relatingto sale of immovable property and conditionregarding time being essence of contract as amatter of consensus between parties to suchcontract and time is the essence of contractwhere time limit has been stipulated forperformance of certain obligations and anydisregard to such stipulation would amount toignoring understanding between parties".37. As a matter of fact, the learned counsel for the appellantplaces reliance on the decision of Hon'ble Supreme CourtGomathinayagam Pillai and others v. Palaniswami Nadar AIR 1967 https://hcservices.ecourts.gov.in/hcservices/ Supreme Court 868 (V 54 C 185) wherein it is among other thingsobserved that,"Time is of essence of contract if parties intendit to be so and intention may be evidenced eitherby express stipulations or by circumstances whichare sufficiently strong to displace ordinarypresumption that in contract for sale of landstipulation as to time is not of essence and iftime is not of essence originally, it can be madeof essence even subsequently by serving notice onother party."38. He also cites the decision of Hon'ble Supreme Court Smt.Chand Rani (dead) by Lrs., v. Smt. Kamal Rani (dead) by Lrs., AIR1993 Supreme Court 1742, wherein it is observed thus;"In the case of sale of immovable property thereis no presumption as to time being the essence ofthe contract. Even if it is not of the essence ofthe contract the Court may infer that it is to beperformed in a reasonable time if the conditionsare: (1) from the express terms of the contract;(2) from the nature of the property; and (3) fromthe surrounding circumstances, for example: theobject of making the contract."39. The learned counsel for the appellant contends that thefirst respondent/first plaintiff has not been examined as a witnesson the side of respondents/plaintiff's before the trial Court and thesaid non-examination enables the Court to draw an adverse inferenceagainst her and in support of the said contention he draws theattention of this Court to the decision S.K.M. Mohammed Amanullahrepresented by his Power Agent A.Ali Akbar Aziz v. T.C.S. RamasanguPandian and others 1993 (2) MLJ 464 wherein it is held as under;"In the absence of any valid explanation for theplaintiff's non-examination of himself as awitness, the Court is entitled to draw an adverseinference against him."40. He also cites the decision of Hon'ble Supreme Court K.S.Vidhanadam and Others v. Vairavan 1997 3 SCC 1 wherein it is inter-alia observed that,"if property is a house located in an urban area,continuing steep rise in price thereof would be arelevant factor for the court to decide whetherthe delay or laches on the part of the plaintiff https://hcservices.ecourts.gov.in/hcservices/ to perform his part of the contract woulddisentitle him the relief of specific performanceand where agreement specifying period of 6 monthswithin which plaintiff had to purchase the stamppapers, tender the balance amount ofconsideration and require the defendants toexecute the sale deed, total inaction for 2 ½years after initial payment of a small amount asearnest money by the plaintiff would be acircumstance which would weigh against exerciseof discretion for grant of specific performanceof the agreement in favour of the plaintiff."41. In regard to the contention that if purchaser who has notgiven true facts with reference to deposit of balance saleconsideration is not entitled to get the relief of specificperformance, the learned counsel for the appellant/defendant relieson the decision of this Court, Pankajam Parthasarathy and five othersv. Kasturi Guna Singh 2001 (1) CTC 200 at page 220 in para 48 it isheld as follows."In so far as encumbrance certificate isconcerned, the vendor was required to produceencumbrance certificate for a period of one yearfrom September, 1976 on the date of execution ofsale and that period also expired in September,1977. I am of the view, the plaintiff has keptquiet, because she was in possession of the suitproperty by paying rent for some time. After thedeath of Chengammal in 1978, the plaintiff fallin arrears in payment of rent from January, 1980.Taking into account the overall view of thematter, I hold that the plaintiff was not readyand willing to perform her part of the contractafter the payment of Rs.20,000 in January, 1978.Though the said payment has indicated that shewas ready at that time, her subsequent conductshows that she was not ready and willing toperform her part of the contract. Further, shehas also come forward with conflicting versionsboth in the affidavit (Ex.B-4) and in theevidence regarding the availability of money ofRs.26,000/-. It is well settled by variousdecisions of this Court that where the plaintiffhas set up a false case, she is not entitled tothe relief of specific performance. I hold thaton the vital and important aspect with referenceto the deposit of balance of sale consideration,the plaintiff has not given true facts which https://hcservices.ecourts.gov.in/hcservices/ disentitle the plaintiff from claiming the reliefof specific performance. The various decisionsrelied upon by the learned counsel for theappellants on this aspect do support the case ofthe appellants."42. As to the legal principle that a plaintiff ought to stand orfall on the strength of his own case and not to bang upon theweakness of the defendant's case on the side of appellant reliance isplaced on the decision V. Manakkan and others v. Veera Perumal 1998 3MLJ 557 at page 580 wherein it is held that,"It is settled law that a plaintiff should standor fail on the strength of his own case and notrely on the alleged weakness of the defendant'scase."43. In another decision of this Court Ayyakannu Gounder v.Virudhambal Ammal (2005) 1 MLJ 14 it is observed that,"it is well settled that the plaintiff cannot pickholes in the defendant's case to establish hiscase".44. In the decision of Parakunnan Veetill Joseph's Son Mathew v.Nedumbara Kuruvila's Son and others AIR 1987 Supreme Court 2328, itis held that,"Section 20 preserves judicial discretion toCourts as to decreeing specific performance. TheCourt should meticulously consider all facts andcircumstances of the case. The Court is bound togrant specific performance merely because it islawful to do so. The motive behind thelitigation should also enter into the judicialverdict. The court should take care to see thatit is not used as an instrument of oppression tohave an unfair advantage to the plaintiff".45. Again in P.R. Gopal v. M. Rajeswari (2008) 7 MLJ 164 it isobserved that,"Relief of specific performance is an equitablerelief and the Court has to see all thecircumstances attendant. Any person seeking thebenefit of specific performance of contract mustmanifest that his conduct has been blemishlessthroughout entitling him to the specific relief.Therefore, when the plaintiff has not shown any https://hcservices.ecourts.gov.in/hcservices/ blemishless conduct to entitle her for thespecific relief as prayed for, the suit forspecific performance by the plaintiff ought to bedeclined".46. That apart, the learned counsel for the appellant refers tothe order of this Court dated 04.02.1997 in Notice of Motion No.347of 1995 in Suit No.4715 of 1994 between, Mina Fusade v. ParasrampurisEstate Developers, wherein it is observed as follows;"... relying on the aforesaid Division Benchjudgment the learned Judge has further held:I am supported in my view to the effect thatthe suit for specific performance of developmentagreement is not maintainable by an unreportedjudgment of the Division Bench of this Court inAppeal No.285 of 1988 in Notice of Motion No.76of 1987 in Suit No.3419 of 1986 being thejudgment of Lentin and Sujata Manohar, JJ. Dated7th March, 1988.In view of what has been held above it isobvious that defendant No.1 could not claim anyrelief in the present suit etc."47. Also on the side of the appellant order dated 29.03.2005passed by this Court in Orl. Application No.684 of 2004 andApplication Nos.3233 & 3234 of 2004 in C.S.No.202 of 2004, JainHousing & Constructions Ltd., rep. By its Executive Director, Mr.Sandeep Mehta, No.7, Lakshmi Narasimhan Street, T. Nagar, Chennai v.M/s. Raptakos Brett and Company Ltd., No.142 (Old No.66), VelacherryRoad, Guindy, Chennai is relied on to the observations made which runas follows;"The Bombay High Court in an unreported case ofPANCHAMI MOOLOOR vs. NAMEDO AND OTHERS in SuitNo.2607 of 1983 has held that if an agreementunder which both the parties have agreed tocollaborate for the development of the suit land,and is purely commercial in nature, any breach ofthe agreement is capable of being compensated interms of money. The plaintiff therein would notordinarily be entitled to a specific performanceof agreement and held that the case was of a fitcase fo granting interim relief of injunction.There is no reason for me to take a differentview than the one taken by the Bombay High Courtin the above said case, is the present case is https://hcservices.ecourts.gov.in/hcservices/ also one for commercial venture.In GAJANAN NARAYAN MALIK VS. KOLTE PATILDEVELOPERS reported in 1999(2)Bombay C.R. 118,the Bombay High Court heard as follows:"This Court has consistently taken aview that the Development Agreementcannot be specifically enforced and thatdamages are an answer except where theDeveloper has invested substantial moneyand altered his position by creatingthird party rights."In view of the above, I am of the view thatthe applicant has not made out a prima facie caseand the balance of conveyance is also not infavour of the applicant, rather more in favour ofthe respondent in rejecting prayer. Hence,interim injunction as sought for has to berejected and the same is rejected and theapplication is dismissed."48. In response, the learned counsel for therespondent/plaintiffs submits that the subject matter of the suit isEx.A2 agreement dated 05.02.1992 and that the said agreement is notan independent agreement and it depends on Ex.A1 agreement dated05.02.1992 through Ex.A3 Varthamanam agreement dated 05.02.1992entered into between appellant/defendant and first respondent/firstdefendant and by execution of Ex.A3 Varthamanam agreement dated05.02.1992, the parties have altered Ex.A2 agreement dated 05.02.1992in respect of the time factor of 18 months alone as agreed to earlierand in other aspects Ex.A2 agreement dated 05.02.1992 remains as itis and really speaking till the completion of Ex.A1 agreement dated05.02.1992 Ex.A2 has nothing to do and as a matter of fact Ex.A2agreement dated 05.02.1992 will take effect after the completion ofEx.A1 agreement and moreover, in Ex.A1 agreement dated 05.02.1992there is no mention of the factum of encroachment but theencroachment has been admitted in Ex.A9, lawyer's reply notice dated07.08.1993 issued on behalf of the appellant/defendant to the effectthat the property has been agreed to be purchased along with theadvance, knowing full well of the pros and cons of the deal andwithout removing the encroachments the properties cannot be sold andin Ex.A2 agreement dated 05.02.1992, clause-V refers to nil-encumbrance and the existence of huts have been suppressed in thesaid agreement and though Ex.A7, lawyer's reply notice dated03.08.1993 issued on behalf of the second respondent/plaintiff andaddressed to the appellant/defendants lawyer refers to the secondrespondent/plaintiff purchasing an alternate side to the hut dwellers https://hcservices.ecourts.gov.in/hcservices/ to shift their huts and the payment of the compensation fromRs.10,000/- to Rs.25,000/- depending upon the size of hut and therebyspend a sum of Rs.3,50,000/- so far for the eviction of 15 hutdwellers, the same has not been paid by the appellant/defendantnotwithstanding the fact that as per Ex.A2 agreement dated 05.02.1992the first respondent/first plaintiff is entitled to deduct the saidexpenditure from and out of the sale consideration amount and whenthe suit is filed within three years, as per Article 54 of LimitationAct, there cannot be any abandonment and the first sale deed has beenexecuted on 18.02.1992 and six sale deed have been executed on01.02.1993 and last sale deeds dated 14.12.1994 are Exs.A20 and 23and that all the seven sale deeds have been executed in respect ofvarious nominees nominated by the plaintiff and the Ex.A20 sale deeddated 14.12.1994 is in pursuance of Ex.A1 agreement dated 05.02.1992and as a matter of fact the plaintiff's son nominee of the plaintiffhas himself purchased 32 cents of vacant land and the denial of sevensale deeds is not admitted and 05.08.1993 is not the dead line forEx.A1 agreement dated 05.02.1992 and as per Section 62 of the IndianContract Act, new contract viz., Ex.A3 Varthamanam agreement when ithas come into force then, 05.08.1993 date is not the dead line andeven on 05.08.1993 the first respondent/first plaintiff and herhusband namely the second respondent/second plaintiff have gone tothe Sub-Registrar's office and waited there and there is no evidencethat the plaintiffs have gone with insufficient funds and that thebalance sale consideration has been kept ready and has been depositedinto Court within two days from the passing of the decree and thattime is not the essence of contract and the parties have extended thetime as per Ex.A3 Varthamanam agreement there is no abandonment ofany right at all and Section 52 of the Indian Contract Act, refersto the order of preference in case of reciprocal promise and in shortthe trial Court has taken into account all the relevant facts andcircumstances of the case in a right perspective and as decreed thesuit is prayed for by the plaintiff in the plaint.49. The learned counsel for the respondents/plaintiffs' citesthe decision of Hon'ble Supreme Court Surya Narain Upadhyaya v. RamRoop Pandey and Others 1995 Supp (4) Supreme Court Cases 542 and 543wherein it is held as follows;"Though the decree for specific performance is adiscretionary power, yet the court is not bound togrant such a relief merely because it is lawful todo so. The discretion of the court is notarbitrary, but sound and reasonable, guided byjudicial principles of law and capable ofcorrection by a court of appeal. Therefore, thediscretion should be properly exercised keeping inview the settled principles of law as envisaged inSection 20 of the Act. In this case, the High https://hcservices.ecourts.gov.in/hcservices/ Court took irrelevant consideration into accountto refuse to grant the decree for specificperformance. It also committed manifestillegality in reversing the concurrent finding offacts recorded by the trial court as well as thefirst appellant court, namely the appellant hasalways been ready and willing to perform his partof the contract.50. He also relies on the decision of Hon'ble Supreme CourtBalasaheb Dayandeo Naik (Dead) through Lrs. And others v. AppasahebDattatraya Pawar (2008) 4 Supreme Court Cases 464 at 465, wherein itis held that;"... purchaser is entitled to enforce specificperformance and the plea of seller has beenrejected that time has been the essence, as hesold land under dire need to construct his housebut purchaser evaded to complete sale within sixmonths and the seller has not proved his plea onoath and on the contrary the purchaser has beenfound ready and willing to perform his part of thedeal and therefore, the purchaser has beendirected to deposit the balance amount and theseller has been directed to execute the saledeed".51. Another decision of Hon'ble Supreme Court Bibi Jaibunisha v.Jagdish Pandit and others 1997 MLJ (Supreme Court) 54 is relied onthe side of the respondents to the effect that,"It is now well-settled legal position that in thematter of enforcement of the agreement oragreement of reconveyance, time is not always theessence of the contract unless the agreementspecifically stipulated and there are specialfacts and circumstances in support thereof. Itmust be specifically pleaded and issue raised sothat the other party has a right to leadevidence".52. The learned counsel for the respondents presses into surveysthe decision of the Hon'ble Supreme Court Jai Durga Finvest (P) Ltd.v. State of Haryana and Others (2004) 3 Supreme Court Cases 381 atpage 382 wherein it is held thus,"The question, thus, which was required to beposed and answered was as to whether clause 18-Aof the agreement would remain enforceable despite https://hcservices.ecourts.gov.in/hcservices/ the fact that the appellant allegedly could notextract any sand by reasons of omission andcommission on the part of the respondentsconcerned. Therefore, in this regard the firstquestion that arises is whether the respondentscomplied with their statutory obligations when therequest was made by the appellant. If not, thesecond question would be the effect of non-compliance with the statutory obligation of therespondents which formed part of the contractinsofar as they did not comply with theappellant's request as aforementioned which had adirect bearing on the right of the appellant toraise sand".53. Further, he brings it to the notice of this Court, thedecision of Hon'ble Supreme Court P.D'SOUZA v. SHONDRILO NAIDU (2004)6 Supreme Court Cases 649 at page 951 wherein it is laid down asfollows;"The contention raised on behalf of the appellantto the effect that the plaintiff had failed toshow her readiness and willingness to perform herpart of contract by 5.12.1978 i.e. Time stipulatedfor performance of contract is rejected inasmuchas the defendant himself had revived the contractat a later stage. He, as would appear from thefindings recorded by the High Court, even soughtfor extension of time for registering the saledeed till 31.12.1981. It is, therefore, too latein the day for the defendant now to contend thatit was obligatory on the part of the plaintiff toshow readiness and willingness as far back as5.12.1978.Time, having regard to the fact situationobtaining herein, cannot, thus, be said to be ofthe essence of the contract. In any event, thedefendant consciously waived his right . He,therefore, now cannot turn around and contend thatthe time was of the essence of the contract andthe plaintiff was not ready and willing to performher part of contract in December 1978". 54. Also it is held that "it is indisputable that the plaintiffmust establish his readiness and willingness to perform his part ofthe contract and however the readiness and willingness on his part toperform his part of the contract will also depend on whether thedefendant has done everything which has been required of him to do https://hcservices.ecourts.gov.in/hcservices/ the same in terms of the agreement".55. Besides the above, the learned counsel for the respondentsplaces reliance on the decision Rathinam Chettiar v. Embar Naidu andanother 1999 III CTC 394 wherein it is held that,"plaintiff (purchaser) establishing that he wasalways ready and willing to pay balanceconsideration anf get sale deed executed, he neednot produce documents to show that he is havingmoney with him to pay the sale consideration".56. It is the contention on the side of respondents/plaintiff'sthat the conduct of parties will have to be looked into by the Courtof law when a false plea is taken that the purchaser have abandonedthe agreement. In this regard the decision of Hon'ble Supreme CourtSilvey and others v. Arun Varghese and another (2008) 11 SupremeCourt Cases 45 is relied on the side of respondents to the effectthat,"Conduct of defendants in taking a false plea hasto be taken into account while decreeing ordenying a decree for specific performance".57. In the decision of Hon'ble Supreme Court Motilal Jain v.Ramdasi Devi (Smt.) and others (2000) 6 SCC 420 it is held that,"Where appellant-plaintiff had paid about two-thirds of the consideration settled at the time ofexecution of agreement for sale of suit propertyand had sent three notices to the defendant-respondent, all of which was set out in theplaint, held, High Court erred in setting asidethe decree of specific performance and substitutedone for compensation".58. At this juncture, the learned counsel for therespondent/plaintiff submits that the suit cannot be dismissed on thebasis that no plea has been raised in regard to the readiness andwillingness of a party to perform as per Section 20 of The SpecificRelief Act, 1963.59. Moreover, he cites the decision of Hon'ble Supreme CourtRamakrishna Pillai and another v. Muhammed Kunju and others (2008) 4Supreme Court Cases 212 and page 213 wherein it is held that,"It was categorically stated in the plaint in boththe suits that the plaintiffs are always ready andwilling to fulfill their part of the obligations https://hcservices.ecourts.gov.in/hcservices/ and that the defendants were evading the executionfor one reason or the other and the respondentsdirected to execute the sale deed after receivingthe balance of the consideration".60. Another decision of Hon'ble Supreme Court Aniglase Yohannanv. Ramlatha and others, (2005) 7 Supreme Court Cases 534 is relied onthe side of respondents/plaintiffs' to the effect that,"Where in a suit for specific performanceagreement for sale, the essential facts containedin the plaint led to an inference of theplaintiff's readiness and willingness, the HighCourt rightly held that the requirement ofSection 16(c) of the Specific Relief Act, 1963stood complied with".61. Countering the submissions of the learned counsel for therespondents/plaintiffs the learned counsel for the appellant contendsthat Ex.A3 Varthamanam agreement does not say that one can completethe performance of contract after 18 months period and in realityEx.A3 Varthamanam agreement never speaks of eternal one and as amatter of fact even in Ex.A3 Varthamanam agreement the secondrespondent/second plaintiff can take sale deeds in respect of allother portions within 18 months period. Firstly, the Ex.A1 agreementand letter the Ex.A2 agreement or a portion of Ex.A2 dated 05.02.1992agreement even before completion of Ex.A1 dated 05.02.1992 thatoption is given to the second respondent/second plaintiff andmoreover, it is not correct to state that Ex.A3 Varthamanam agreementis a novation of Exs.A1 and A2 and the averments in page 2 of theEx.A3 agreement dated 05.02.1992 to the effect that in respect of theproperty mentioned in the sale agreement entered into between thesecond respondent/second plaintiff and the appellant/defendant thatonly after the completion of entire sales being effected by theappellant/defendant in the name of the second respondent/plaintiff orhis nominee or nominees the sale agreement entered into between theappellant/defendant and the first respondent/first plaintiff theappellant/defendant can hand over the possession and effect sale inrespect of the portion of the said property mentioned in theagreement are only statements of fact and at best Ex.A3 says howExs.A1 and A2 agreements will have to be performed and from05.02.1992. On 05.08.1993 the period of 18 months is over and thedate 05.08.1993 can be made by the parties as an essence of contactand the appellant/defendant has issued an Ex.A10 lawyer's noticedated 07.08.1993 addressed to the first respondents/first plaintiff'slawyer stating that the first respondent/first plaintiff is nothaving the requisite funds to complete the transactions and that theappellant has been waiting at the Sub-Registrars office on 4th and 5thAugust, 1993 and that the first respondent/first plaintiff has never https://hcservices.ecourts.gov.in/hcservices/ turned up and no proof that there has been a panchayat and inpanchayat there is no novation and in fact in paragraph 13 of theplaint the averment of payment of entire sale consideration ofRs.22,97,100/- is a material fact of falsehood and the factum of thesecond respondent/second plaintiff having no money for payment ofstamp duty and registration charges cannot be equated with deficitCourt fee and that the second respondent/second plaintiff is a realestate owner and the relative hardship caused to theappellant/defendant can be taken into account by a Court of Law,since the grant of relief of specific performance is an equitable anddiscretionary remedy and therefore, prays for allowing the appeal infurtherance of substantial cause of justice.62. In the present case, the evidence of PW.1/second plaintiffand DW.1/defendant are to be looked into by this Court. PW.1/secondplaintiff in his evidence has deposed that the first plaintiff hiswife and that he has entered into a sale agreement with theappellant/defendant and the appellant has agreed to sell 5 acres and26 cents land at the rate of Rs.5,70,000/- per acre and the 5 acreland are in two parts and in between there is a channel and one pathconsists of 4 acres and 3 cents and in another part of 1 acre and 39cent consists of a bungalow, well, motor pump set, power line, farmhouse, coconut trees etc., and that he has paid a token advance ofRs.25,000/- for which a receipt has been given by theappellant/defendant and two sale agreements have been entered into inrespect of these properties and the sale agreement in his favour isEx.A1 which refers to 4 acres land and the sale agreement for 1 acre26 cents in his wife's name is Ex.A2 and even for the sale agreementin favour of his wife he has paid the money and his wife is not inthe habit of coming to common place and the suit has been filed inrespect of Ex.A2 agreement executed in favour of his wife and becauseof the fact that the properties in his wife's agreement is of highvalue and only after getting the sale deed executed as per the saleagreement in his favour, the sale deed can be executed in regard tothe sale agreement of his wife and the sale agreements have beenentered into for the purpose of plotting out the properties as housesites, as described in the agreements and that he has taken thepossession of the properties from the appellant/defendant on the dateof entering into an agreement itself and he has come to know that in4 acres and 3 cents property a road has been laid and the roadbelongs to Highways Department on the western side and these roadsare situated in the lands belonging to the appellant/defendant asinformed by him and when he has measured the properties he has cometo know that the roads have been formed after encroachment andbecause of the encroachment one cannot come to the road and theappellant/defendant has informed him that the encroachments will haveto be cleared by himself in view of the fact that the saidencroachments are in Poromboke and the necessary expenditure in thisregard will have to be borne by himself and out of 20 encroachers he https://hcservices.ecourts.gov.in/hcservices/ has vacated 15 of the by providing alternative place and also payingcompensation and in this regard he has incurred an expenditure ofRs.3,50,000/- and pending sale agreement he has sold out 1 acre 80cents to six persons out of the properties mentioned in his saleagreement and in the said sale deed the appellant has out hissignature and he has paid an advance of Rs.1,75,000/- towards hissale agreement and apart from it he has paid Rs.11,97,300/- and theappellant/defendant has not rendered in assistance in regard to theremoval of the encroachment and he has issued separate noticesExs.A4 and A5 to himself and his wife and separate replies Ex.A6 andA7 have been issued by him and his wife and he has sent an replystating that he is willing to perform his part of the contract andhas called upon the appellant/defendant to come to the registrarsoffice and the appellant/defendant has asked him to come to theregistrars office on 05.08.1993 and he has gone along with his wifeto the registrars office and has been waiting in the said office frommorning 9am till 5pm in the evening and that the appellant/defendanthas not turned up and the appellant/defendant has send a telegramthat he has been waiting in the registrar's office.63. PW.1 has further deposed that the appellant has given areply in these Ex.A9 dated 07.08.1993 and further he has issued replynotice Ex.A10 to his wife and rejoinder given by him is Ex.A11 dated17.08.1993 and later on Babu alias Balasubramaniam has called him forsettling the issue and hence in the house of the appellant/defendantpanchayat talks have been held and on 10.09.1993 he has paid a sum ofRs.4,50,000/- to the appellant/defendant and obtained sale deeds toan extent of 92 cents in favour of sons names and theappellant/defendant has compelled him to effect the purchase toprevent trouble Urban tax office and the appellant/defendant hasexecuted a sale deed to an extent of 40 cents in Babu's name andanother sale deed to an extent of 39 cents in the name of Balu andfor these two sale deeds he has to pay the sale amount and in thename of appellant/defendant there is a land to an extent of 20 centsfor which he has to pay the amount and in regard to 99 cents on14.12.1994 he has paid the money and has obtained sale deeds inGafoor and Mumtaz names and that till date he has paid a sum of Rs.22,92,100/- to the appellant/defendant and as per the sale agreementshe has paid the entire amount to the appellant/defendant and 48 centsland is of path way and that he has paid money including the saidpath way and as per the sale agreement A1 he has fulfilled hisobligations and therefore he gets the right as per Ex.A2 agreementand the appellant/defendant has informed him that after cultivatingsugar cane he will execute the sale deed and therefore he has issuedEx.A12 notice dated 04.05.1995 to the appellant/defendant for which areply Ex.A13 dated 13.05.1995 has been given by theappellant/defendant for which he issued a rejoinder Ex.A15 dated22.05.1995 and inspite of the same since the appellant/defendant hasnot executed the sale deed and that he has instituted the suit and in https://hcservices.ecourts.gov.in/hcservices/ regard to the sale agreement dated 05.02.1992 in favour of his wifeon the date of agreement itself and an advance of Rs.1 lakh has beenpaid and as per Ex.A2 agreement the appellant/defendant has to bepaid a sum of Rs.6,18,000/- and that he has been ready with the moneyat all the time and from the date of Ex.A2 agreement till date isready and willing to perform his part of the contract and is alsopresently ready to deposit the amount.64. PW.1 in his cross-examination has categorically stated thatExs.A1 to A3 agreement are interrelated and the averment in theplaint to the effect that only after himself purchasing theproperties mentioned in his Ex.A1 sale agreement right will accrue inthe properties mentioned in his wife's agreement and during theperiod of 18 months he has purchased 1 acre and 30 cents and that heis not paying the Income Tax and that he has no bank accounts andalso he is not keeping any accounts in respect of the sale agreementtransaction and there is no direct relationship between theappellant/defendant and the six purchasers and further theappellant/defendant has effected the sales as per his directions andthat he has paid the amount due to the appellant/defendant and evenafter the completion of 18 months the appellant/defendant has sold 1acre and 55 cents land to five persons and that theappellant/defendant has not sold the lands individually and in regardto the sale or purchase of suit properties he has no connection withBalasundaram and Balasubramaniam and that in sale agreement asregards the balance 62 cents sale has taken place and 44 cents havebeen left out as common path way and that on 30.09.1993 they haveexecuted sale deeds in favour of Fatima to an extent of 7 cents andin favour of Reddy executed the sale deed in respect of 4 cents andin the remaining 7 cents there are huts and there is no mention inthe plaint that the appellant/defendant has not effected the sale inrespect of 7 cents.65. Added further, it is the evidence of PW.1 that he has nottaken any steps to obtain the sale deed in respect of path way andthat he has not deposited the money into Court or the bank pertainingto the suit property and that he has not filed any documents to showthat he has kept the money readily and that he has filed the suit onthe last working day on 28.04.1995 by paying a Court fee of one rupeeand he has not filed any application to state that stamp papers havenot been available and since many persons have purchased the stamppapers he has not got the same, and on 10.06.1995 the suit papershave been returned for directing him to affix the same the stamppapers and on 10.07.1995 the stamp papers have not been available andagain he has represented the suit before the Court and later he haspaid the Court fee and it is not correct to state that towardspurchase of stamp papers for four months he has no money and that hehas not given any application before the treasury requesting for thesupply of stamp papers and on 05.08.1993 he has been waiting in the https://hcservices.ecourts.gov.in/hcservices/ Sub-Registrars office with an amount of Rs.6,18,000/- in cash andthat he has not purchased the stamp papers in anybody's name and thaton 05.08.1993 he has come to know that appellant/defendant will notact as agreed and immediately on the next day he has not taken anysteps for filing of the suit and he thought that theappellant/defendant after completion of sale of properties in thefirst agreement the sale can be effected in respect of the other landand therefore he has instituted the suit 1 ½ years later and in thefirst agreement the last sale deed is effected on 19.12.1994 and thatthe time of filing of the suit in the suit properties seven hutdwellers have been resided and he is not aware of their names andthat the appellant/defendant has not stated in the agreement that hewill evict the huts in the highways and he has evidence to show thathe has spend Rs.3,50,000/- in regard to the removal of huts and thesale incurred thereto.66. It is quite relevant to state that PW.1 in his evidence hasstated that the stamp vendor M.Pratapan in his sworn affidavit hasstated that stamp papers have not been available and further that on05.08.1993 his wife has brought a sum of Rs.6,18,000/- and since theappellant/defendant has not turned up his wife has taken the money tothe house but the same has not been deposited in a bank and she haskept the same in the house and out of Rs.6,18,000/- on certainoccasions for urgent need relatives have borrowed the amount andreturned the same and they have obtained pro-note for such borrowalfrom some of the relatives and he cannot say the year and month ofthe pronotes.67. PW.2 in his evidence has stated that previously he and hisfamily resided in the National Highways for 42 years and behind hishouse there has been a garden of the appellant/defendant and that hasbeen given in sale by the appellant/defendant and since the purchaserhas no way, in order to provide a path way since he has been assuredof the place and money he has vacated the said place along with 20others and in the present place where he is staying at Sunambu Kalvaithere are 13 persons residing and that particular place has beengiven by the second plaintiff's son for which PW.1/second plaintiffhas given money and no sum has been paid by the appellant/defendant.68. The evidence of PW.3 is to the effect that he has purchaseda property on 14.12.1994 from the second plaintiff and has paid himthe money and at the time when the sale deed has been executed thesecond plaintiff has brought three persons and asked them to sign inthe sale deed and he has come to know of them at that point of timeand that he has not spoken to them in regard to the sale dated14.12.1994 and that he has not paid the sale amount to the said threepersons.69. PW.3 in his cross-examination has specifically stated that https://hcservices.ecourts.gov.in/hcservices/ plaintiff has shown him the sale agreement in his name and that hehas not seen the date of sale in the agreement and that he has seenthe Ex.A1 sale agreement and that he has purchased within six monthsperiod and at the time of purchase property has not been divided asplots and that he has not known what are the rights ofappellant/defendant and the second plaintiff.70. The appellant as DW.1 in his evidence has deposed that hehas entered into an Ex.A2 agreement with the first respondent/firstplaintiff (wife of second plaintiff) and the suit property relates to1 acre and 26 cents and in respect of the properties other than thesuit properties he has entered into an agreement with the secondrespondent/second plaintiff in respect of 4 acres and 3 cents and thetime limit for performance of both the agreement is 18 months andEx.A2 agreement dated 05.020.1992 is for a commercial purpose andtime limit specified in Ex.A2 agreement is an important condition andEx.A3 muchilika agreement relates to the possession being give inrespect of house and well pertaining to 1 acre and 26 cents and asper Ex.A1 agreement only after sale is completed in respect of 4acres and 3 cents the possession of house and well agreement has beenwritten and in the sale agreement property as per Ex.A1 the secondplaintiff has purchased 1 acre 89 cents and he has not purchased theremaining portion and that the plaintiff have not come forward topurchase the suit property of 1 cent and he has not agreed at anypoint of time to extend the time limit in regard to the suitagreement and the second respondent/second plaintiff has purchased bymeans of six sale deeds an extent of 1 acre and 89 cents and thatafter the sale agreement date he has executed 7 sale deeds and thesesale deeds have not been effected as directed by the second plaintiffand an extent of 1 acre 63 cents as covered under the 7 sale deedsand out of 7 sale deeds he has filed the certificate copy marked asExs.B1 to B5 and he has received the money in respect of 1 acre and63 cents which has been sold by him and that he has not handed overpossession of the suit property to the plaintiffs' and in the suitproperty there are plantains and apart from them he has raised maizeand sugarcane and the sugarcanes have been delivered to the SugarFactory and adangal Exs.B6 to B8 are in respect of suit property forthe faslis 1400-1402 and the payment of tax receipts in respect ofsuit property are Exs.B9 to B11 and that he has issued Ex.A4 noticementioning that the time mentioned in the sale agreement is animportant condition and the two telegrams he has issued to theplaintiff's are Exs.B26 and B27 and on 04.08.1993 and on 05.08.1993,he has been waiting in the registrars office and on 05.08.1993, inthe registration office he has signed as witness in the settlementdeed namely Ex.B28 and as per the sale agreement in favour of thesecond plaintiff leaving 1 acre and 89 cents the balance of 2 acreand 9 cents remained to be sold and in regard to the two saleagreements within the time limit of 18 months there has been abalance of 3 acres for which the sale has not been effected and at https://hcservices.ecourts.gov.in/hcservices/ the time of the conclusion of 18 months period in respect of the twoagreements the balance sale consideration to be paid remained asRs.19 lakhs and odd and the plaintiff's have no capacity to pay a sumof Rs.19 lakhs and it is not correct on the part of the plaintiff'sto say that they have paid the amount in respect of unsold 51 centsof land and it is not correct to state on part of the plaintiff thatafter his issuance of notice there has been a panchayat and in thesaid panchayat the time has been extended.71. DW.1 in his cross-examination has stated that in theKuniamuthur property of 1 acre and 23 cents there is a bungalow andland and out of 1 acre 36 cents the sale agreement has been enteredin respect of 1 acre and 26 cents in respect of which there is noencroachment and in the 4 acre 3 cents of land abutting the highwaysthere have been huts and for entering into this land of 4 acre and 3cents a way has been their and in Ex.A1 property there is no well andthe value of properties in 2 agreements will be more than Rs.30 lakhsand in between the plaintiffs' and himself one C.Palanivel has actedas a spokesmen, in respect of two sale agreements and he has spokenwith the second plaintiff in respect of the two sale agreement andonly after reading the two agreements and after coming to know thatit is correct, he has signed the same. Also it is the furtherevidence of DW.1 that in Ex.A1 sale agreement property 7 centsremains to be sold and before issuance of notice by the secondplaintiff through his counsel he has not issued any notice in regardto the expiry of time specified in the agreement and in Exs.A1 and A2sale agreements it is written that time is the essence of contractand he has issued receipts to the amounts paid by the plaintiff's andthat as described in Ex.25 the roads are not linked and in the saledeed the path way is mentioned as 10 feet in breadth and about 600feet in length.72. Ex.A1 is the sale agreement in respect of agricultural landdated 05.02.1992 entered into between the appellant/defendant and thesecond respondent/second plaintiff in respect of property 4 acres and3 cents out of 5 acres and 39 cents more particularly described inschedule thereto and the sale consideration per acre has been fixedat Rs.5,70,000/- as per the said agreement and an advance of Rs.2lakhs have been paid by the second respondent/second plaintiff to theappellant/defendant subject to certain conditions mentioned in theEx.A1 agreement. As a matter of fact in Ex.A1 agreement dated05.02.1992 the time for completion of performance has been mentionedas 18 English months, from 05.02.1992. Also there is a clause in thesaid agreement that the balance of sale consideration other than theadvance of Rs.2 lakhs will have to be paid by the secondrespondent/second plaintiff to the appellant/defendant before05.08.1993 and he has to get the sale deed executed at his expenseeither in his name or in portion thereof as an agricultural land.Further, the 3rd clause of the agreement specifically refers to the https://hcservices.ecourts.gov.in/hcservices/ second respondent/second plaintiff forfeiting the advance amount ifhe refuses or fails to perform his part of the contract within thetime specified. Significantly, the 4th clause in the agreement speaksof the second respondent/second plaintiff to deposit the saleconsideration into Court other than the advance amount paid and toget compulsory registration of the documents in case if theappellant/defendant refuses or fails to perform his part of thecontract. The clause six in Ex.A1 agreement refers to the permissionbeing given by appellant/defendant to the second respondent/secondplaintiff in measuring, cleaning, fixing stones, to lay roads, tocomplete the transaction by fixing a higher price, to do agriculturaloperations, to enter into agreements and to receive advance and tofacilitate in this regard the appellant/defendant has givenpossession of the land to the second respondent/second plaintiff.73. Ex.A2 is the sale agreement in respect of an agriculturalland dated 05.02.1992 entered into between the appellant/defendantand the first respondent/first plaintiff (wife of secondrespondent/second plaintiff) in respect of a land of 1 acre 26 centswhich more fully and particularly described in the schedule thereto.In Ex.A2 agreement the sale price per acre has been fixed atRs.5,70,000/- as agreed to by the parties and an advance of Rs.1 lakhhas been paid by the first respondent/first plaintiff to theappellant/defendant who had received the same. The time limit forthe agreement has been specified as 18 English months from05.02.1992. Like Ex.A1 agreement dated 05.02.1992 Ex.A2 agreementdated 05.02.1992 contains a clause that the balance saleconsideration (other than advance of Rs.1lakh) has to be remitted bythe first respondent/first plaintiff to the appellant/defendantbefore 05.08.1993 and the first respondent/first plaintiff has to getthe sale deed either in his name or in others name either in part orin entirety as an agricultural land. Ex.A2 agreement speaks of thefirst respondent/first plaintiff, forfeiting the advance if she failsto perform her part of the contract and the appellant/defendant whenhe refuses to execute the sale deed to the first respondent/firstplaintiff, then the first respondent/first plaintiff has to approachthe court and get the documents registered compulsorily by depositingthe balance amount etc. Further, the clause six of the Ex.A2agreement refers to the permission being granted to the firstrespondent/first plaintiff by the appellant/defendant to measure theland, cleaning the same to fix stones, to lay roads, and to negotiatewith sale for others for a higher price or to do agriculture andenter into agreement and to receive advance, and to facilitate thesame and that appellant/defendant has handed over possession of theproperty to the first respondent/first plaintiff.74. Interestingly the two sale agreements Exs.A1 and A2 dated05.02.1992 speak of the right of the appellant/defendant to sell theremaining portion not purchased by the respondents/plaintiffs within https://hcservices.ecourts.gov.in/hcservices/ the time adumbrated. Also it contains a condition that in case therespondents/plaintiff's have not sold the land to any person as peragreement the same will not bind the appellant/defendant.75. Ex.A3 is the Varthamanam agreement dated 05.02.1992 enteredinto between the appellant/defendant and the first respondent/firstplaintiff (wife of the second respondent/second plaintiff) it ispertinent to point out that Ex.A3 Varthamanam agreement is dated05.02.1992 like that of Exs.A1 and A2 sale agreements.76. In Ex.A3 Varthamanam agreement dated 05.02.1992 there is arecital to the effect that the appellant/defendant and the secondrespondent/second plaintiff has entered into a sale agreement inrespect of the property in Government Survey No.214, 693/2, 215/3,213/3 in Kuniamuthur village and only after the secondrespondent/second plaintiff obtaining the entire sale deed from theappellant/defendant either in his name or in the names of personsmentioned by him. The portion of the property mentioned in theirsale agreement in Government Survey No.212/2, in which the bungalowin door No.375 – A, well, mango trees, kalam, coconut trees and otheradjoining portions and their sale will be effected by theappellant/defendant to and in favour of the second respondent/secondplaintiff.77. The appellant/defendant has issued Ex.A4 lawyer's noticedated 29.07.1993 addressed to the second respondent/second plaintiffinter-alia stating that the second respondent/second plaintiff hasentered into an agreement with him on 05.02.1992 towards the purchaseof agricultural lands measuring 4.03 acres for a sum of Rs.5,70,000/-per acre and has paid an advance of Rs.2lakhs and has agreed tocomplete the sale within 18 months viz., before 05.08.1993 and thathe has purchased 1.89 acres only in various persons names and thatthe period is coming to an end on 05.08.1993 and that time is theessence of the contract and that he is ready and willing to performhis part of the contract if the transaction is completed by means ofpayment of balance of amount before 05.08.1993 and since the secondrespondent/second plaintiff is not willing to purchase the balanceextent, th time will not be extended under any circumstances beyond05.08.1993 and if the balance amount is not paid and transaction isnot completed, the agreement dated 05.02.1992 entered into by theparties stand canceled and that advance amount will be forfeited. Ineffect Ex.A4 appellant/defendants lawyer's notice dated 29.07.1993calls upon the second respondent/second plaintiff to pay the entirebalance amount before 05.08.1993 and to complete the transactionbefore that date failing which the time will not be extended underany circumstances etc.78. In Ex.A5 appellant/defendants lawyer's notice dated29.07.1993 addressed to the first respondent/first plaintiff (wife of https://hcservices.ecourts.gov.in/hcservices/ second plaintiff) it is mentioned that the first respondent/firstplaintiff has entered into an agreement with appellant/defendant on05.02.1992 to purchase an extent of 1.26 acres agricultural landstogether with a house and other appurtenances therein for a sum ofRs.5,70,000/- per acre and that an advance of One Lakh rupees hasbeen paid and further that the first respondent/first plaintiff hasagreed to purchase the property by paying the balance amount within18 months from 05.02.1992 i.e., before 05.08.1993, and moreover, herhusband namely the second respondent/second plaintiff has alsoentered into an another agreement with the appellant on 05.02.1992 inregard to the purchase of 4.03 acres of land and on 05.02.1992 itselfa Varthamanam agreement has been entered into between the appellantand the first respondent/first plaintiff in and by which the firstrespondent/first plaintiff has agreed that only after purchasing theentire extent covered in the agreement between appellant/defendantand the second respondent/second plaintiff the first respondent/firstplaintiff will purchase the house i.e., D.No.375-A and Kalam No.375,coconut trees and the area surrounding the house and the Kalam andthat her husband, second respondent/second plaintiff has failed toperform his part of the contract by paying the balance amount andthat the agreement of sale entered into between the firstrespondent/first plaintiff and the appellant/defendant, dated05.02.1992 cannot be extended under any circumstance beyond05.08.1993 and if the first respondent/first plaintiff failed tocomplete the transaction before 05.08.1993 the agreement standscanceled and added further the first respondent/first plaintiff hadbeen directed to comply with the terms of the agreement and theVathamanam Oppantham dated 05.02.1992 and that time is the essence ofcontract and that the agreement stands canceled if there is failureon the part of the first respondent/first plaintiff and on her partof the contract before 05.08.1993 and that the advance paid by herwill stand forfeited.79. Ex.A6 is the reply lawyer's notice dated 03.08.1993 issuedby the first respondent/first plaintiff addressed to theappellant/respondents advocate stating that the firstrespondent/first plaintiff has entered into an agreement with theappellant/defendant for the purchase of the properties described inthe agreement dated 05.02.1992 at the value of Rs.5,70,000/- and thatan amount of Rs.1lakh has been paid as an advance being the partamount of sale consideration on the date of agreement itself and thatthe said agreement can be performed subject to and being dependent onan earlier agreement entered into between the appellant/defendant andthe first respondent/first plaintiff's husband namely the secondrespondent/second plaintiff and in the Varthamanam agreement it ismentioned specifically that the appellant/defendant will be able tosell and transfer the bungalow, well, farm shed and crusher shed, cowshed, coconut trees and all other appurtenances only after theperformance in full of the earlier agreement mentioned supra, but an https://hcservices.ecourts.gov.in/hcservices/ option is given in favour of the first respondent/first plaintiffthat she can purchase the property in S.F.No.212/2 western portion,212/1 & 213/1 and that the first respondent/first plaintiff hasalways been ready and willing to perform her part of the contract asper the agreement referred to and repeated demands have been made towith effect and it is now declared that the first respondent/firstplaintiff is willing to purchase the property under the agreement on04.08.1993 itself by which date this reply might have been receivedand also a request is made to inform the first respondent/firstplaintiff telegraphically of the readiness and willingness ofappellant/defendant to execute the sale deed by receiving the balancesale consideration and first respondent/first plaintiff in possessionof the properties and therefore the first respondent/first plaintiffis looking forward to a positive reply and the balance of saleconsideration is kept ready with her.80. Ex.A7 is the second respondent/second plaintiff's lawyer'sreply notice dated 03.08.1993 addressed to the appellant/defendantslawyer stating inter-alia that the appellant/defendant has not beensuccessful in agricultural operations and for quite a long time hasbeen proposing to sell the properties, since the lands are situatedon the periphery of Coimbatore City, the agricultural lands in andaround are being converted into house sites or industrial sites andthe second respondent/second plaintiff has inspected the propertyproposed to purchase the same for the sole purpose of laying out thesame as house sites and that after negotiation between the partiesthe property has been agreed to be sold out to the secondrespondent/second plaintiff's and an agreement has also been enteredinto between the parties and their dominant intention being that theproperty can be converted into house sites and sold to variousparties and it has never been intended nor it can be never beintended that time is the essence of contract and that theappellant/defendant has suppressed the fact that there have been/arenumerous huts in which people from all walks of life have beenresiding by encroaching the road strips of the Coimbatore PalghatNational Highways land as well as the land belonging to him, which isthe subject matter of the agreement and the second respondent/secondplaintiff after talks has agreed to vacate the hutment dwellers byspending his own money and clear the western border of the propertyand the appellant/defendant has agreed to deduct the value of 50cents out of the total sale consideration and in pursuance to theagreement the second respondent/second plaintiff has been put intopossession of the property more fully for the reasons mentioned underClause-6 of the agreement and in pursuant of the possession thesecond respondent/second plaintiff has convened a meeting of thehutment dwellers but only a few of them attended and the protractednegotiations have been successful in vacating 15 huts and purchasedalternative sites and made them to shift their hut to the said placeand also gave a compensation from Rs.10,000-Rs.25,000/- depending https://hcservices.ecourts.gov.in/hcservices/ upon the size of the hut and also spent a sum of Rs.3,50,000/- foreviction of the 15 hutment dwellers and the second respondent/secondplaintiff has thereby partly performed the agreement and moreover, hehas cleared and leveled the land after planting survey stones, laidroad at cost of Rs.50,000/- and there are more than 20 huts andnegotiations are still being carried on and in the meanwhile thesecond respondent/second plaintiff has purchased land under sixseparate slae deeds varying extent of land on different datestotaling and entent of 1 acre and 89 cents etc.81. Indeed, a reading of Ex.A7 second respondent/secondplaintiffs lawyer's notice dated 03.08.93 contain averments to theeffect that the second respondent/second plaintiff has been and isalways willing to purchase the property agreed upon and he has neverconceived any idea of either protracting or unlawfully enriching atthe cost of appellant/defendant etc., and if the matter isprecipitated the same will entail in utter chaos and loss due toproceedings by Urban Land Ceiling and Urban Land Tax Authorities.82. In Ex.A8 telegram issued by the appellant/defendnantaddressed to first respondent/first plaintiff the following recitalsare seen; "..Received your telegram willing to execute sale ofentire property on fifth August come with balance money, I shall waitat Sub Registrars Office from ten am. onwards on fifth Augustyesterday you did not turn up". Further in the Ex.A9 lawyer'srejoinder issued on behalf of the appellant/defendant addressed tothe second respondent/second plaintiff's lawyer, it is stated thatpossession continues with the appellant/defendant and that the secondrespondent/second plaintiff has never been willing and ready topurchase the property and that he never had a required fund tocomplete the sale etc.83. In Ex.A10 appellants lawyer's rejoinder dated 07.08.1993addressed to the lawyer of the first respondent/first plaintiff it ismentioned that the first respondent/first plaintiff is not having therequisite funds to complete the transaction and that theappellant/defendant has been waiting at the Sub Registrars office on4th and 5th August, 1993 but, the first respondent/first plaintiff hasnever turned up and hence the contract between the firstrespondent/first plaintiff and the appellant dated 05.02.1992 standscanceled.84. In Ex.A11 lawyer's reply notice dated 07.08.1993 issued onbehalf of the first respondent/first plaintiff addressed to theappellant/defendant's lawyer that it is inter-alia mentioned that thefirst respondent/first plaintiff has already intimated and has beenwaiting at Sub Registrars Office on 4th and 5th of August and it ispersonally known to the appellant/defendant and that the firstrespondent's/first plaintiff's husband namely the second https://hcservices.ecourts.gov.in/hcservices/ respondent/second plaintiff has gone to the house ofappellant/defendant on 06.08.1993 and further talks have been held inthe presence of one Babu a close relative of the appellant who is themediator in the matter and further a request has been made that theappellant/defendant must see the entire matter in a properperspective and complete the sale consideration without any loss toboth the parties.85. In Ex.A12 lawyer's notice dated 04.02.1995 issued on behalfof the respondent's/plaintiff's addressed to the appellant/defendantamong other things mention that the agreement in favour of the secondrespondent/second plaintiff is dependent on the performance ofagreement with the second respondent/second plaintiff and the firstrespondent/first plaintiff is entitled to get the sale deed as peragreement in her favour only after the purchase of 4.03 acres landspurchased by the second respondent/second plaintiff.86. Ex.A13 is the reply notice of appellant's lawyer addressedto the respondents/plaintiffs lawyer inter-alia stating that both theagreements are independent and there is no connection between the twoagreements and further that both the agreements should be performedwithin the stipulated period and after the expiry of period there isno question of the appellant/defendant executing the sale in favourof the respondent/plaintiff and that the respondents/plaintiffs donot have the required funds to purchase the properties and that theappellant is not willing to execute the sale deed at present. Ex.A14is the rejoinder notice dated 22.02.1995 issued by therespondents/plaintiffs lawyer addressed to the appellants/defendantslawyer stating that the appellant/defendant will have to perform hispart of the agreement by executing the sale deed in favour of therespondent/plaintiff or his nominees etc., and therespondents/plaintiffs are ready and willing to perform their part ofthe agreement and get the sale executed as per the agreement bypaying the balance of purchase money and they are prepared to waitfor another seven days beyond which it will be put to the direnecessity of seeking appropriate reliefs before the Civil Forum.87. It is to be borne in mind that the specific performance of acontract is the actual execution of contract as per the terms andconditions and a Court of law directs a party in default to performthe very thing which is he is contracted to do. As such, the termsof the conditions contract will have to be certain and the partiesshould have consenses ad idem. In short, the acceptance must beabsolute and ought to correspond with terms of offer. The minds weread idem is to be established by a plaintiff in a given case. However,terms and conditions are uncertain and parties are not ad idem therecan be no specific performance, for there has been no contract at all.88. It is to be noted that in a suit for specific performance, https://hcservices.ecourts.gov.in/hcservices/ the evidence and the proof of agreement must be absolutely clear andcertain. Furthermore, explanation-I appended to Section 20 of theSpecific Relief Act clearly enjoins that mere fact that a contract isonerous to the defendant or improvident in its nature will notconstrue and unfair advantage within the meaning of Section 20 (2) ofthe Act. Moreover, a mere incorporation in the written agreementof clause imposing penalty in case of default it is not by itself anevidence on intention to make time is the essence of contract.89. Even if time is not the essence of contract a Court of Lawmay interfere that it is to be performed in a reasonable time forwhich the conditions are:1.From the express terms of contract.2.From the nature of property.3.From surrounding circumstances. For e.g., aim of making thecontract while granting relief, reasonable time has to beascertained from all the facts and circumstances of the case.Also as per Section 20 of the Specific Relief Act 1963, a Courtof Law while exercising its discretion must see that it is notused as an instrument of oppression and to have an unfairadvantage to the plaintiff.90. As a matter of fact the motive behind the litigation mustalso enter into the judicial verdict because Section 20 of theSpecific Relief Act (47 of 1963) preserves the judicial discretionto a Court of Law in decreeing the Reliefs of Specific Performance.91. At this stage, this Court recalls observation of Hon'bleSupreme Court in the decision Ganesh Shet v. C.S.G.K. Setty AIR 1998Supreme Court 2216 wherein it is observed as follows:"While normally, it is permissible to grant reliefon the basis of what emerges from the evidence,even if not pleaded, provided there is noprejudice to the opposite party, such a principleis not applied in suits relating to specificperformance. Other relief i.e. General relief tobe granted must be consistent with both pleadingand proof, in suits for specific performance".Also in the aforesaid decision at page 2216 it is observed thus;"Where in a suit for specific performance ofcontract, the contract on which relief was basedwas found to be not a concluded contract, therelief cannot be given on basis of another https://hcservices.ecourts.gov.in/hcservices/ contract alleged by plaintiff to be concludedcontract when it was not proved that it was afresh or independent contract. In such a case thegrant of any general relief on the basis of anagreement of sale for second time even if provedwill be doing violence to the language in theplaint to the effect that the parties concluded anagreement on previous occasion as aforesaid whichwas found to be concluded contract".92. In another decision Prakash Chandra v. Angadlal AIR 1979Supreme Court 1241, the Hon'ble Supreme Court has observed as follows;"The ordinary rule is that specific performanceshould be granted. It ought to be denied onlywhen equitable considerations point to itsrefusal and the circumstances show that damageswould constitute an adequate relief."93. It is not out of place for this Court to make a pertinentmention that the Hon'ble Supreme Court in the decision The Union ofIndia v. Kishorilal Gupta and Bros. AIR 1959 Supreme Court 1362 atpage 1368 as other things observed as follows:"We are concerned with the expressed intention ofthe parties and when the words are clear andunambiguous they are undoubtedly clear in thiscase there is no scope for drawing uponhypothetical considerations or supposed intentionsof the parties; nor are we attracted by theargument that the description of the propertiesintended to be hypothecated was not made clear andtherefore the presumed intention was to sustainthe rights under the new contract till a validdocument in respect of a definite and specifiedproperty was executed. Apart from the fact thatwe are not satisfied with the argument that thedescription was indefinite, we do not think thatsuch a flaw either invalidates a document orsuspends its operation till the defect isrectified or the ambiguity clarified. Thesubstituted agreement gave a new cause of actionand obliterated the earlier ones and if there wasa valid defence for the enforcement of the newcontract in whole or in part, the party affectedmust take the consequences. We have, therefore,no doubt that the contract dated February 22,1949, was for valid consideration and the commonintention of the parties was that it should be in https://hcservices.ecourts.gov.in/hcservices/ substitution of the earlier ones and the partiesthereto should thereafter look to it alone forenforcement of their claims. As the document doesnot disclose any ambiguity, no scrutiny of thesubsequent conduct of the parties is called for toascertain their intention".94. In the decision Kabirdass v. Vinothambal and others (2002) 3MLJ 244 this Court has held thus;"The vendor should be equally ready and willing toperform his part of the obligations from day onee.g., clearing the encumbrance if any on theproperty, procuring the encumbrance certificate,income-tax clearance, steps to get the tenant, ifany, in the occupation of the property out gettingconsent from other sharers, etc.; If time is notof essence originally, it can be made of essenceeven subsequently by serving notice on the party".95. In the decision Suryagandhi v. Lourduswamy (2002) 3 MLJ 788this Court has held that;"Even if tie is not the essence of the contract,the Court may infer that it has to be performedwithin a reasonable time. In the present case,the learned counsel for the defendant stronglycontended that time is the essence of the contractas a condition has been stipulated in Ex.A-2 saleagreement viz., the plaintiff has to forfeit theadvance in case if there is a breach on his partand the defendant has to refund double the advanceamount in case of his committing breach. However,this Court is not persuaded to sustain thecontention that the time is the essence of thecontract in the light of the law laid down by theApex Court in the recent reported decision".96. One cannot brush aside an important fact that as per Section51 of the Indian Contract Act, 1872 if promises which reciprocalseach one has always the option to perform his part of the contractbut one party cannot insist on the other performing his promisewithout himself performing what he has agreed to do as per decisionVairavan Chettiyar v. Kannapa Mudaliyar AIR 1925 Madras 1029,whereas suit for Specific Performance of Contract to sell animmovable property has been filed on the litigation that theplaintiff has paid the full consideration amount and the litigationhas been found to be incorrect in that case it cannot be said thatplaintiff has not been willing to perform his part of the contract as https://hcservices.ecourts.gov.in/hcservices/ per decision Lachuram Nath v. Madharam Nath AIR 1962 Assam 41 (D.B).97. A party will be absolved from performing his part of thecontract only if he accepts repudiation and acts upon it. But whenhe does choose to do so but treats the contract as subsisting, he hasto prove the performance of the conditions precedent and readinessand willingness on his part if he desire to enforce the performanceof the contract by the other side as per decision Paudi Lazarus v.Rev. Johnson Edward, AIR 1976 Andra Pradesh 243. Continuing furtherit is to be mentioned that while seeking performance of thereciprocal promise by the opposite party, the plaintiff has tospecifically plead and prove that he has performed or has been readyand willing to perform the promise he has made as per decisionUshodaya Publications Pvt. Ltd., v. M. Ramanamma AIR 1998 A.P. 13(D.B). Further, if the Court comes to the conclusion that time isnot the essence of contract and for the purchase of immovableproperties the failure of the party for the option of the purchasemoney required in the contract within the stipulated period will notipso facto disentitle him to get a decree for Specific Performance asper decision Debendra Nath Mandal v. Sakhilal Kar, AIR 1950 Calcutta526. 98. Section 54 of the Indian Contract Act 1872, refers to acontract of reciprocal promises, such that one cannot be performed orits performance cannot be claimed different the other has beenperformed. Indeed, a validly entered into contract cannot rescindedwithout any cogent justification in the considered opinion of thisCourt. The law of accord and satisfaction is that a person entitledto the performance of a promise might accept instead of the originalpromise, something different; this different thing is agreed upon byan accord reached between the parties to the contract as per decisionSaraswat Trading Agency v. Union of India, AIR 2002 Calcutta 51 (D.B).99. It is significant to point out that as per the Contract Act,there is no legal presumption that time is the essence of thecontract. Even where the parties have expressly provided that time isthe essence of the contract such provisions have to be read alongwith other provisions of the contract and such other provisions mayon the construction of the contract may exclude the completion of thecontract by a particular date was intended to be fundamental. Inshort whether or not time must be regarded as an essential clause ofthe contract is purely a question of intention of the individuals tobe gathered from the terms of the contract and the surroundingcircumstances of the case. Apart from that, intention to make timeof the essence, if expressed in writing, must be in an unmistakablelanguage. However, the Specific Performance of the Contract willordinarily be granted notwithstanding the default in carrying out thecontract within the specified period, if having regard to expressstipulation of the parties, nature of the property and surrounding https://hcservices.ecourts.gov.in/hcservices/ circumstances, it is not inequitable to grant the relief. Also anintention to make time of the essence of contract may be inferredfrom what passed between the parties before the contract and notthereafter. Furthermore, equity which governs the right of theparties in the cases of Specific Performance of contracts to sellreal-estates looks at the substance of the agreement in order to findout whether the parties, notwithstanding that the named specific timewithin which completion was to take place really and in substanceintended grant it should take place within a reasonable time.Generally speaking, Equity has never laid it down that a man whonever be allowed to mean what he says, in the considered opinion ofthis Court.100. As per Section 58 of the Indian Contract Act 1872, in thecase of an alternative promise one branch of it which is legal andother illegal, the legal branch alone can be enforced. If a contracthas separate clause some of which are legal and others illegal, thefact that some which are illegal will not make the legal onesunlawful and the Court of law can enforce the legal ones as opined bythis Court.101. Under the Indian Contract Act a novation is a new promisewhich is accepted in satisfaction of a previously existing claimwhile in accord and satisfaction itself is not a new promise but theperformance of the new promise that is accepted as satisfaction. Toput it differently, a novation is generally defined as a mutualagreement among concerned parties for the discharge of a validexisting obligation by the substitution of a valid existingobligation on the part of an individual or a debtor or a likeagreement for the discharge of a debtor to its creditor for thesubstitution of a new creditor. In common law, novation is broughtabout by introduction of new parties or alteration between the sameparties by an introduction of new covenance. The parties to acontract are competent by a mutual agreement, without anysatisfaction, to discharge the obligation of a contract wholly or inpart and this is otherwise, clear from the ingredients of Section 63of the Contract Act, which speaks of a promisee who may dispense withor remit performance of promise. The abandonment/waiver may be inwriting or in oral terms and can also be inferred from the conductand circumstances of a given case. For novation, consideration isnecessary, ordinarily the consideration mutually being thedischarging of an old contract as per decision Kedarnath Lal v.Sheonarain Ram AIR 1957 Pat. 407 (D.B).102. Undoubtedly, the requirement of an averment as to readinessand willingness to perform plaintiffs' part of the contract is amandatory requirement and the same applies only to executorycontracts. Where the plaintiff-buyer has paid the entire price andis put in possession and the only thing remains is only the https://hcservices.ecourts.gov.in/hcservices/ execution of sale deed for which the suit is filed, there is noquestion of his having to plead his readiness and willingness toperform his part of the contract in the considered opinion of thisCourt. Also it is not necessary for a buyer to go about jinglingmoney to demonstrate his capacity to pay the purchase price as perdecision Ganesh Prasad v. Saraswati Devi AIR 1982 ALL 47 (servingnotice and bringing suit sufficient to prove readiness andwillingness to pay). When a time is fixed for performance, a buyerneed not show that he had command of ready money even before thatdate during the time of the contract and that will render meaninglessfixing of a date/time for performance in the considered opinion ofthis Court. Moreover, when the obligations under the contract are tobe performed in a certain sequence, one individual cannot requirecompliance by the other party without first performing his own partof the contract. Added further, it is not necessary to produce moneyor to vouch a scheme for financing the transaction as per decisionBank of India v. Jamsetji Chinoy AIR 1950 P.C. 90 at page 96. It isnot necessary to produce account books as per decision Santlal v.Shyamdhawan AIR 1986 Del 275 at page 282.103. As far as the present case is concerned in Ex.A1 saleagreement dated 05.02.1992 (entered into between theappellant/defendant and the second respondent/second plaintiff, beingthe husband of the first respondent/first plaintiff) the timespecified for the performance of contract is 18 English months from05.02.1992 likewise, in Ex.A2 sale agreement dated 05.02.1992(entered into between the appellant/defendant and firstrespondent/first plaintiff, being the wife of secondrespondent/second plaintiff) the time fixed for performance of thecontract is 18 English months from 05.02.1992. In Ex.A2 saleagreement dated 05.02.1992 (entered into between theappellant/defendant and the first respondent/first plaintiff) it isclearly mentioned that apart from the advance amount of Rs.1 lakh thebalance sale consideration will have to be paid by the firstrespondent/first plaintiff to the appellant/defendant before05.08.1993 (that is within 18 months time limit from 05.02.1992).However, in Ex.A1 sale agreement dated 05.02.1992 (entered intobetween the appellant/defendant and the second respondent/secondplaintiff) it is mentioned that apart from an advance of Rs.2 lakhsthe balance sale consideration will have to be paid within 18 monthsfrom 05.02.1992 (i.e. before 05.08.1993 by the secondrespondent/second plaintiff to the appellant/defendant).Interestingly, in the Ex.A3, Varthamanam agreement dated 05.02.1992entered into between the appellant/defendant and the firstrespondent/first plaintiff (wife of second respondent/secondplaintiff) it is mentioned that 'only after the performance of saleagreement in entirety either in favour of second respondent/secondplaintiff or his nominees/assignees is completed then theappellant/defendant will be in a position to hand over possession and https://hcservices.ecourts.gov.in/hcservices/ execute sale to and in favour of the first respondent/first plaintiffin respect of the property viz., bungalow, bearing house no.375,well, kallam etc., in a portion of Government Survey No.212/2 etc.Moreover, in Ex.A3 Varthamanam agreement in page 3, it is alsomentioned that in regard to the other western portion in GovernmentSurvey No.212,212/2,213/1 etc. described in the sale agreement if thefirst respondent/first plaintiff demands for the sale being effectedthe appellant/defendant agrees for the same. Therefore, it iscandidly clear that only after the entire sale of the propertiesmentioned in Ex.A1 sale agreement dated 05.02.1992 (entered intobetween the appellant/defendant and the second respondent/secondplaintiff) either in second respondent/second plaintiff or hisnominees name is completed, the first respondent/first plaintiff getsthe right of demanding the sale of properties mentioned in her saleagreement dated 05.02.1992 from the appellant/defendant. 104. In this connection a reading of Clause-6 of Ex.A1 agreementdated 05.02.1992 entered into between the appellant/defendant and thesecond respondent/second plaintiff indicates that theappellant/defendant as permitted to the second respondent/secondplaintiff to measure, clean and to lay stones and to form roads inthe land and also to enter into negotiation with others by fixinghigher price, to do agricultural operations to enter into agreementsand to receive advance. Even though Exs.A1 to A2 sale agreementsdated 05.02.1992 speak of 18 English months being the period of timefor completion of performance of the contract (from 05.02.1992) inview of the fact that in Ex.A3 Varthamanam agreement dated 05.02.1992(entered into between the appellant/defendant and the firstrespondent/first plaintiff) the parties have covenanted a clause tothe effect that 'only after selling the entire properties mentionedin the sale agreement in favour of the second respondent/secondplaintiff the sale of a portion of a property in respect of the saleagreement in favour of the first respondent/first plaintiff can begiven in sale shows unequivocal terms that 18 English months periodis not the essence of contract as understood by the parties and it isalso not the dead line for the performance of the contract in thematter in controversy, as opined by this Court. In fact, by means ofsubsequent arrangement/Ex.A3 Varthamanam agreement dated 05.02.1992entered into between the appellant/defendant and the firstrespondent/first plaintiff altogether a new contract has been enteredinto between the appellant/defendant and the first respondent/firstplaintiff which is nothing but a subsequent arrangement in novationof the earlier Exs.A1 and A2 agreement dated 05.02.1992 (entered intobetween appellant/defendant and the respondents/plaintiffs). Sufficeit for this Court to point out that Ex.A3 Varthamanam agreement is anew mutual agreement/contract in substitution of Ex.A1 and A2agreements dated 05.02.1992 entered into between the parties and as amatter of fact by all means Ex.A3 Varthamanam agreement dated05.02.1992 is a valid and enforceable contract in the eye of law to https://hcservices.ecourts.gov.in/hcservices/ be effective as a novation, since in the present case on hand theappellant/defendant and the first respondent/first plaintiff by meansof agreement A3 Varthamanam agreement dated 05.02.1992 have agreed tosubstitute a new contract or to alter the previous Exs.A1 and A2agreement dated 05.02.1992, this Court is of the considered view thatthe original contract namely Exs.A1 and A2 need not be performed.Moreover, in the present case on hand appellant/defendant hasexecuted sale deeds even after 05.08.1993 and this act unhesitatinglypoints out that time is not the essence of contract as opined by thisCourt. In regard Ex.A1 sale agreement dated 05.02.1992 in favour ofthe second respondent/second plaintiff the appellant/defendant hasexecuted the sale deeds even after 05.08.1993 and the secondrespondent/second plaintiff (husband) has signed as witness in thosesale deeds and therefore, by no stretch of imagination it can be saidthat time is the essence of contract in the considered opinionof this Court and in fact by means of consenses ad idem between theparties on the terms mentioned in Ex.A3 Varthamanam agreement dated05.02.1992 the respondents/plaintiffs can maintain an action offiling the present suit before the trial court and the same is validin law and the point is answered accordingly.105. The case of the respondents/plaintiffs (through evidence ofPW.1/second plaintiff) is that as per Ex.A1 sale agreement dated05.02.1992 on 14.12.1994 he has paid the entire sale considerationand therefore as per Ex.A2 agreement dated 05.02.1992 he derivesright of demanding sale from the appellant/defendant but at thatpoint of time the appellant/defendant in Ex.A2 sale agreementproperty dated 05.02.1992 (entered into between theappellant/plaintiff and the first respondent/first plaintiff) hasraised sugarcane, and he informed that he will execute the sale deedafter harvesting sugarcane and since the appellant/defendant has notexecuted the sale deed he has issued Ex.A12 lawyer's notice dated04.02.1995. At this juncture, it is apt for this Court to point outthat from Exs.B12 to B25 it transpires that in the suit property theappellant/defendant has raised sugarcane.106. That apart, a perusal of Ex.A1 agreement dated 05.02.1992(entered into between the appellant/defendant and the secondrespondent/second plaintiff in respect of sale of 4.03 acres) thesame is silent about the existence of huts and the encroachments.But it is evident from Ex.A7 second respondent/second plaintiffslawyer's notice dated 03.08.1993 addressed to theappellant/defendant's lawyer that the second respondent/secondplaintiff pursuant to the Ex.A1 agreement dated 05.02.1992 has beenput into possession of the property as per Clause-6 for the purposesmentioned therein. However, there is a categorical averment that thePW.1/second respondent/second plaintiff after a protractednegotiation with the hut dwellers have vacated 15 of them andhas purchased an alternate site, made them to shift their huts to https://hcservices.ecourts.gov.in/hcservices/ that site and has also given a compensation ranging from Rs.10,000-Rs.25,000/- depending upon the size of the hut and thereby spent asum of Rs.3.5 lakhs for evicting them and still there are more than20 huts and negotiation are still being carried on for the rest andto this effect the second respondent/second plaintiff has deposed inhis evidence as PW.1. To put it precisely, even though Ex.A1agreement dated 05.02.1992 has not expressly or impliedly refers tothe existence of hut or the hut dwellers, Ex.A9 appellant's lawyer'srejoinder notice dated 07.08.1993 addressed to the secondrespondent/second plaintiff's lawyer mentions that the secondrespondent/second plaintiffs after inspection has agreed to purchasethe property in 'as is were is condition' and further has agreed topurchase the property along with hutments knowing fully well the prosand cons of the deal etc.107. In as much as Clause-6 of the Ex.A1 agreement dated05.02.1992 in favour of the second respondent/second plaintiff speaksof the possession being handed over by the appellant/defendant to thesecond respondent/second plaintiff and also the secondrespondent/second plaintiff has cleared and levelled the land afterplanting survey stones etc., and also vacated the 15 hut dwellers bypurchasing and providing an alternate site to them to shift theirhuts and has also paid compensation amount and thereby incurred anexpense of Rs.3.5 lakhs for vacating them and also in regard to thedisbursement of compensation amount varying from Rs.10,000-Rs.25,000/- depending upon the size of the hut, this Court acceptsthe evidence of PW.1 (second respondent/second plaintiff) since thesame is worthy of credence based on the facts and circumstances ofthe case on hand, coupled with the evidence of PW.2 and has statedthat the second plaintiff has given money to vacate the encroachersand has come to the inevitable conclusion that the possession hasbeen handed over by the appellant/defendant to the secondrespondent/second plaintiff in pursuance of Ex.A1 agreement dated05.02.1992 and the point is so answered.108. The appellant/defendant has DW.1 in his evidence in cross-examination has deposed that he has not issued any notice to therespondents/plaintiffs demanding the money due in respect of the 51cents and the reason for non-issuance of notice torespondents/plaintiffs is that the time has expired as per agreement.Moreover, he has also admitted in his evidence that the 51 cents arelying as separate portions without sale being effected thereto. Itis not out of place to pertinently point out that theappellant/defendant as DW.1 in his evidence has stated that he hasgiven the path way measuring an extent of 44 cents to the purchasersbut the evidence of PW.1/second respondent/second plaintiff is that44 cents has been left as common path way and in the remaining 7cents there are huts and that he has paid amount in respect of thesaid 7 cents but the appellant/defendant has not executed the sale https://hcservices.ecourts.gov.in/hcservices/ deed in respect of the same. It is relevant to make a significantmention that the appellant/DW.1 in his evidence has categoricallystated that the purchasers at the time of their purchase have notpaid consideration in regard to the path way, and it is incorrect tostate that purchasers have paid consideration towards the purchase ofpath way. However, a closer scrutiny of schedule of property ofEx.A1 agreement dated 05.02.1992 entered into between theappellant/defendant and the second respondent/second plaintiffwithout any iota of doubt refers to the sale of 4.03 acres includingthe trees,mamool path way right etc., and in view of the fact thatthe PW.1/second plaintiff has paid Rs.22,92,100/- (as spoken to byhim in his evidence) to the appellant/defendant as on 14.12.1994,being the entire sale consideration in respect of his sale agreementEx.A1 dated 05.02.1992 though it is stoutly denied by theappellant/defendant side and a plea is put forward that therespondents/plaintiffs have falsely averred in para 13 of the plaintthat the second plaintiff has paid a sum of Rs.22,97,100/- to theappellant/defendant under various sale deeds, being the entire saleconsideration, even in the absence of receipt, it is to be pointedout that no ordinary prudent man will remain quiet if the amount isnot paid for a commercial venture of land transaction and as such thecontra evidence of appellant/DW.1 to the effect that the purchasershave not given money to the property mentioned in the agreementincluding the path way is not accepted by this Court.109. In regard to the averment in the written statement ofappellant/defendant to the effect that second respondent/secondplaintiff is not a necessary party for the suit and there ismisjoinder of parties and misjoinder of cause of action it is to bepointed out that second respondent/second plaintiff in his evidenceas PW.1 has deposed that he has only entered into an agreement withthe appellant/defendant and that he conducts the case on behalf ofhis wife namely the second respondent/second plaintiff and thatExs.A1 and A2 agreements dated 05.02.1992 have been entered into bythem that the appellant/defendant and Ex.A3 Varthamanam agreementdated 05.02.1992 has been entered into between theappellant/defendant and the first respondent/first plaintiff namelyhis wife. By means of Ex.A3 Varthamanam agreement dated 05.02.1992entered into between the appellant/defendant and the firstrespondent/first plaintiff a new contract by mutual agreement hasbeen entered into between the parties which is a valid and a legallyenforceable contract in the eye of law as novation and since Exs.A1and A2 agreements dated 05.02.1992 speak of 18 months period forcompletion of contract from 05.02.1992 in order to resolve all thedisputes whether time is the essence of contract as understood by theparties and also because of the fact that Ex.A3 Varthamanam agreementrefers to the averments that the first respondent/first plaintiffcannot make any demand for the execution of the sale deed till theperformance of the sale agreement in favour of second https://hcservices.ecourts.gov.in/hcservices/ respondent/second plaintiff is completed, this Court opines that thesecond respondent/second plaintiff (PW.1), being the husband of firstrespondent/first plaintiff is a proper/necessary party to the casefor a complete and effectual determination of all controversiesinvolved in the suit.110. As regards the plea of the appellant/defendant that therespondents/plaintiffs have assigned erroneous reasons in theaffidavit to extend time for payment of Court fee when the evidenceof stamp vendor goes to show that stamps have been made available,the learned counsel for the appellant/defendant submits that therespondents/plaintiffs have projected a false case in this regard andthey have not approached the Court with clean hands when they havepaid a Court fee of One rupee only on the date of filing of the suiton 28.04.1995, when in reality they have to pay a Court fee ofRs.53,865.50/-.111. The learned counsel for the appellant/defendant cites thedecision of this Court Ramiah and Another v. R.Palaniappan and Others(2007) 5 MLJ 559 at page 560 it is held as follows;"In the present case, the delay in re-presentationwas huge. The reasons given for the delay even onthe face of it do not merit acceptance. Yet, thedelay was condoned. After three years ofprosecution of plaint, the Court permitted thefirst respondent to pay the deficit Court fees,which was almost the entire Court fees payable,without notice to the other side, contrary toK.Natarajan v. P.K. Rajasekaran (2003) 2 MLJ 305.It is definitely open to the petitioners tocomplain to this Court that absolutely nojustifiable reasons were made out and that therewas a glaring infirmity and abuse of process oflaw, and this Court is bound to examine thegrievance of the petitioner.The Court finds that the condonation of thedelay of 1090 days in re-presenting the plaint bythe learned Subordinate Judge is withoutapplication of mind. But more importantly, thelearned Subordinate Judge had no authority nor thejurisdiction to decide that question. He knewthat the jurisdiction was taken away from him inview of the Amendment Act. When the plaint wasre-presented, all he had to do was direct therespondents to return it to the appropriate Court.The order without jurisdiction is totally void.It must be noted that even in the application for https://hcservices.ecourts.gov.in/hcservices/ condonation of delay, the first respondent wasaware that he had to pay deficit Court fees. Heshould have filed an application for reception ofthe deficit Court fees. He does not do so. Hewaits until the day when the Court will wake up tothe fact and direct him to pay the Court fees,which it does on 22.04.2004. On this date, atleast the Court should have considered underSection 149, C.P.C whether it should allow in itsdiscretion, the plaintiff to make up the deficitCourt fees since he had come to Court on payingonly Rs.300/- as against a sum of Rs.17,96,693/-.This also, it does not do, but merely grants timefor him to make good the deficit. This directionto pay the deficit Court fees on 22.04.2004 isalso untenable and therefore, can be correctedunder Article 227 of the Constitution of India".He also relies on the decision S.V. Arjunaraja v. P.Vasantha(2005) 5 CTC 401 and 402 wherein it is among other things held that;"In the absence of specific application invokingSection 149 of Civil Procedure Code and in theabsence of any order passed by the Court grantingtime for payment or enlargement, plaintiff is notprotected and suit is liable to be rejected".Furthermore, in the aforesaid decision it is also held that,"In a suit based on promissory note filed in timebut proper Court fees not being paid, and thedeficit made up after the period o limitation forthe suit expires and when there is no order forpayment of deficit Court fee made by the Courtand no application filed by the plaintiff alsothen the plaintiff is liable to be rejected andthe suit is held to be barred under law".112. On the side of appellant/defendant the decision P.Sakthivel v. Ponnusamy (2007) 4 MLJ 433 is relied on and wherein itis held that,"Once there was a deficit Court fee found, and itwas directed to be paid within the stipulatedtime, and if not done, the only procedure possibleunder the C.P.C is to seek extension of time forpayment of the deficit Court fee as required underSection 149 of the Code".Also it is laid down that, https://hcservices.ecourts.gov.in/hcservices/ "So long as the application as contemplated underSection 149 of C.P.C has not been filed and thattoo within the stipulated time, no question ofcondoning the delay of 258 days in making the re-presentation of the plaint would arise and theapplication which could be filed under Section 151of C.P.C., should have been made in time".113. He also draws the attention of this Court to the decisionV.N. Subramaniyam v. A. Nawab John and 5 others 2007 (3) CTC 144wherein its inter-alia held that;"Court fee has to be paid within period oflimitation and if there is delay in payment ofCourt fee application to extend time for paymentof Court fee or to condone delay in payment ofCourt fee must be made and the applications filedfor condoning delay in representation of Plaintwill not amount condonation of delay in payment ofCourt fee and suit was liable to be rejected, andthat Section 149 of C.P.C gives discretionarypowers to Court to extend time for payment ofdeficit Court fee, if it is established thatbonafide mistake have been occurred in valuingplaint under particular provision of Court FeesAct or if it is established that non-payment ofCourt fee was for reasons beyond his control, likewhere stamps meant for filing were stolen orstamps were not available at particular point oftime, etc."Also it is further held that; "The plaintiffs who filed suit by paying Courtfee lesser than one to be paid sought to condonedelay in representing plaint and did not filepetition under Section 149 to extend time forpaying deficit Court fee cannot get such reliefunder Section 151 of C.P.C".114. A perusal of Section 149 of the Civil Procedure Code showsthat the section is an enabling provision which empowers a Court oflaw to permit a party to make up the deficiency of Court fees payableon plaint, memorandum of appeals, application for review of judgmentetc., even after the expiration of the limitation period prescribed.As a matter of fact, the power to make up the deficiency of Courtfees is subject to the discretion of the Court and the same cannot beclaimed as a matter of right by one party. When the extension and https://hcservices.ecourts.gov.in/hcservices/ the exemption of the Court fees is a discretionary power of a Courtof Law, bonafide of the ground must be established beyond allreasonable doubt in the considered opinion of this Court. Also anOrder under Section 149 of the Civil Procedure Code can be made suomotu. In fact, the payment of deficit Court fee relates bak to thedate of lodgment of the plaint. Significantly, the words 'at anystage' in Section 149 of the C.P.C contemplates that the deficiencycan be ordered to be made good even after the period of limitationfor filing of the suit or appeal has lapsed. Indeed, the discretioncan be exercised even in the case of a plaint without any Court fees.115. At this stage this Court recalls the observation of Hon'bleSupreme Court, in the decision Johri Singh v. Sukh Pal Singh andothers 1989 4 SCC 403 where in it is held that,"When Subordinate Court makes an order in properexercise of its jurisdiction under Section 148 andneither acts illegally nor commits any materialerror in the procedure which may affect theultimate decision then, High Courts interferenceunder Section 115 of C.P.C is not called for".116. In the decision of Hon'ble Supreme Court IndianSatatistical Institute v. M/s. Associated Builders and Others (1978)1 Supreme Court Cases 483 it is laid down as follows;"The two defects pointed out were that theobjections were not properly stamped and that theverification was not dated. So far as thedeficiency in stamps is concerned under Section149 C.P.C, the Court has ample jurisdiction toallow the person by whom the fee is payable topay it at any stage. The defect in not affixingthe date of verification is not a material one tobe taken serious notice of. In thecircumstances, it cannot be said that theobjections were not filed within time or thatbecause they were not properly stamped theobjections could not be taken as having beenfiled at all. Therefore, there has not been anydelay in preferring the objections. The delay,if any, was in complying with the directions ofthe Registrar to rectify the defects and re-filing the objections. Section 5 of theLimitation Act provides for extension of theprescribed period of limitation if the petitionersatisfies the Court that he had sufficient causefor not preferring the objections within theperiod of limitation. When there is no delay in https://hcservices.ecourts.gov.in/hcservices/ presenting the objection petition, Section 5 hasno application and the delay in re-presentationis not subject to rigorous tests which areusually applied in excusing the delay in apetition under Section 5. In the present case,the papers were obtained by the second advocatefrom the first on January 20, 1977 and theobjections were promptly re-filed on the verynext day. The High Court was, therefore, notjustified in dismissing the petition".117. In Custodian of Evacuee Property, New Delhi v. RameshwarDayal and others AIR 1968 Delhi 183 (V 55 C 46) it is held thus;"The discretion conferred on the Court by Section149 is normally expected to be exercised in favourof the litigant except in cases of contumacy orpositive malafides or reasons of a similar kind.The question of bonafides has in this connectionto be considered from the point of view of itsdefinition as contained in the General Clauses Actand not as contained in the Limitation Act. Athing should be presumed to be done bonafide if itis done honestly, whether it is done negligentlyor not, for the purposes of judging whether thediscretion under Section 149 should or should notbe exercised in favour of the litigant.When the deficient Court-fee stamp to beaffixed on the copy of the order appealed from wasactually attached with the application underSection 149, it would be a more appropriate andmore satisfactory exercise of judicial discretionto allow the deficiency to be made good so thatthe controversy was heard on the merits ratherthan to throw out the appeal on this ground".118. In the decision Faizullah Khan and another v. Mauladad Khanand others AIR 1929 Privy Council 147 it is observed as follows;"In a suit for accounts and the settlement of thesums due thereon in connection with a partnershipof a firm of contractors the plaintiffs valuedtheir suit at Rs.3,000/- for the purpose ofCourt-fees and asked for rendering of accountsand a decree for Rs.3,000/- with the settlement'if mere than Rs.3,000/- is found due to theplaintiffs they will pay an additional Court-fee'. The defendant asked for a decree in his https://hcservices.ecourts.gov.in/hcservices/ own favour for Rs.29,000/- and he challenged theshares as given by the plaintiffs and asked fordismissal of the suit. The Subordinate Judgepassed a final decree with costs and interest.Under that decree Rs.19,991 was declared to bedue to defendants by plaintiff. No sum was founddue to the appellants under the claim forRs.3,000/-. The judgment was appealed from byboth parties. The position of the plaintiffstill remained the same viz., that theychallenged the decree against them for overRs.19,000/- and maintained that sum in whole orin part should be disallowed and their own claimfor Rs.3,000/- or less or more should be grantedin their favour. The appeal was valued forpurposes of Court-fee at Rs.19,991/- and the feepaid was Rs.975/-.And held that "the valuation applied to theappeal in its entirety, that is to say both forthe purpose of reversing the decree against theappellants and for granting the decree in theirfavour and that it was a mistake to treat thepayment of Rs.975/- as a fee made only on theamount of the decree passed against theappellant".And further it is laid down that "this waspre-eminently a case for the exercise by thejudicial authority of the discretion underSection 149, C.P.C".119. Generally, discretion is exercised in favour of a litigantexcept in cases of contumacy or positive malafide. In case ofdelayed payment of deficit Court fee, Court has ample power toreceive at late stage to do justice but good faith has to be takeninto account when delay is not due to his fault. In the decisionGobardhan Singh v. Barsati AIR 1972 All 246 it is held as follows;"Even in cases where an order is made by theCourt for doing a thing within a particular timeand the order further provides that theapplication, suit or appeal shall stand dismissedif the thing is not done within the time fixed,the Court has jurisdiction, if sufficient causeis made out, to extend the time even when theapplication for extension of time is made afterthe expiry of the time fixed. It is not theapplication for grant of further time, whether https://hcservices.ecourts.gov.in/hcservices/ made before or after the expiry of the timegranted, which confers jurisdiction on the Court.The Court possesses the jurisdiction underSection 148, Civil Procedure Code to enlarge thetime and the application merely invokes thatjurisdiction".120. That apart, in the decision Durairangam Pillai v.Govindarajulu Naidu and another AIR 1938 Madras 560, 561 and 562 itis held as follows;"The next point for decision is whether the suitis barred by limitation. The facts relating tothis point are as follows. The plaint waspresented on 4th October 1928, the last day of theperiod of limitation, with a one rupee stampthereon. It was returned with an endorsement on5th October 1928 giving two weeks' time forpayment of the deficit Court-fee. It was re-presented on 19th October, 1928 praying for afurther two weeks time to comply with therequirements. It was granted on 20th October,1928 and the plaint was re-presented on 3rdNovember, 1928 paying the required Court-fee.Full Court-fee having been paid only on 3rdNovember,1928, it is argued that in thecircumstances the suit is barred by limitation.O.7, R.11 (e), C.P.C., suggests that the Courtmay admit a plaint though it is written on paperinsufficiently stamped if the plaintiff on beingrequired by the Court supplies the requisitestamp paper within the time allowed by it. Thatis what has been done in the case. Under theCode of 1882, there was a conflict of decisionson this point. This conflict has now been set atrest by the enactment in the new Code of Section149, which runs as follows;Where the whole or any part of any feeprescribed for any document by the law for thetime being in force relating to court-fee has notbeen paid, the Court, may in its discretion, atany stage, allow the person by whom such fee ispayable, to pay the whole or part, as the casemay be, of such court-fee; and upon such paymentthe document, in respect of which such fee ispayable, shall have the same force and effect asif such fee had been paid in the first instance. https://hcservices.ecourts.gov.in/hcservices/ It follows from this section that when incircumstances like the present the deficientcourt fee was paid and accepted by the Court, thedocument should have the same effect as if thecourt-fee had been paid in the first instance,that is, on the date when the plaint was firstpresented. This date was before the expiry ofthe period of limitation though it was on thelast day of the period. We must therefore holdthat the suit is not barred by limitation. Thewhole point is very clearly considered in Mulla'sCommentaries on the Code of Civil Procedure inPoint No.3 under Cl.(c) of O.7, R.11, to whichreference may be made in this connection. As inthe circumstances of this case no question oflimitation arises, the decision in 41 Mad 412relied on by the appellants' learned counsel doesnot apply. We may also draw attention to thedecision in 24 C L J 88 which says thatdiscretion exercised by the Court below accordingpermission for paying the deficient court-feeshould not be interfered with by a Court ofAppeal Reading O.7, R.11 with S.149, C.P.C., itis clear that the contention that the suit isbarred by limitation should be overruled. Forthe above reasons, the appeal fails on both thepoints argued before us and is dismissed withcosts."121. PW.1/second plaintiff in his evidence has deposed that atthe time of filing of the suit one rupee Court fee has been paid inthe plaint and has filed the said suit on the last working day of theCourt on 28.04.1995 and that he has not filed any application statingthat he has not got the stamp papers and since many persons havepurchased the stamp papers he has not got the same and the plaint hasbeen returned on 10.06.1995 for payment of proper Court fee and againhe has represented the plaint before Court on 10.07.1995 stating thathe has not got the stamp papers and thereafter, he has paid Court feeand he has not filed any application in the treasury officerequesting for the supply of stamp papers to him and it is incorrectto state that stamp papers have been easily available in largequantity and also that since he has no money he has not purchased thesame.122. It is useful to refer to the evidence of PW.4 (stampvendor) to the effect that he is a stamp vendor selling stamp papersinside the Court compound and before 07.07.1995 there is no shortageof stamp papers and on 07.07.1995 he has given requisition to the https://hcservices.ecourts.gov.in/hcservices/ treasury office stating that he is in requirement of stamp papers andnext date is on 11.06.1995 to enable him to give a requisition andlike him there are 7 persons and like treasury office there is anAdvocate Society, because of the Court summer vacation the stamppapers have been easily made available during last week of April 1995.123. It transpires from the perusal of the plaint in O.S.No.980of 1995 filed by the respondent/plaintiff that the plaint has beepresented on 28.04.1995 and on 10.06.1995 the plaint has beenreturned assigning one among other reasons that, "Deficit Court Feeto be affixed to the plaint" and the plaint has been re-presented on10.07.1995 with an endorsement made by the respondents/plaintiffscounsel inter-alia stating that "still stamps are not available".Hence, application requesting extension by three days is filed".Thereafter, the plaint has been returned on 18.07.1995 citing otherdefects than the payment of Court fee and the same have been compliedwith by the respondents/plaintiffs advocate on 26.07.1995. Reallyspeaking, the plaint has been taken cognisance of by the trial Courton 03.08.1995 and numbered as O.S. No.980 of 1995 and summons hasbeen ordered to be issued for the hearing on 19.10.1995. On top ofthe plaint an endorsement in red ink is seen to the effect"C.F.Rs.53865.50/- paid kept separately". It is pertinent to pointout that, Pw.4 (stamp vendor) has been examined before the trialCourt on 21.08.2000, nearly 5 years after the numbering of the plaint.124. It is to be borne in mind that it is not alwaysjustificable to draw an adverse inference against the plaintiffs'capacity when the plaint in specific performance suit is filed with adeficit Court fee and this approach may be a dangerous one too attimes. Several factors may be there for not filing the plaint withfull Court fee. This is not an invariable for the reason that aplaintiff has not arranged for meeting his obligation under thecontract. Hence, in all these matters a Court of law is supposed todeal with caution and where a plausible explanation is brought forth,due credence must be given to it. Also a party may be equipped toperform the contract fully but if, for any reason, circumstancecoupled him to seek recourse by way of filing of the suit, he may seehimself in a predicament that he is unable to manage the additionalexpenses in connection with the litigation. To put it candidly, thecapacity to perform the contract and the capacity to financelitigation are two distinct matters and the incapacity to spend forthe litigation cannot lead to an irresistible conclusion that a partylacks money for performing his part of the contract in the consideredopinion of this Court. Admittedly, as against the discretionexercised by the trial Court, in allowing an application filed by therespondents/plaintiffs praying for extension of time in regard to thepayment of deficit Court fee if the appellant/defendant has notpreferred any revision before the High Court questioning the same andtherefore, this Court is of the considered view that the said https://hcservices.ecourts.gov.in/hcservices/ discretion exercised by the trial Court cannot afterwards beimpeached. However, in view of the categorical evidence of PW.4(stamp vendor) to the effect that stamp papers have been availablebefore 07.07.1995 and there has been no scarcity in this regard, atbest it can very well safely be said that second plaintiff/PW.1 hasnot assigned bonafide reasons in his affidavit praying for anextension of time in regard to the payment of deficit Court fee, andhas not acted in good faith in the considered opinion of this Court.125. In the instant case on hand, it is to be mentioned that thefirst respondent/first plaintiff (wife of the secondrespondent/second plaintiff) has not been examined as a witnessbefore the trial Court on the side of respondents/plainitffs. Thelearned counsel for the appellant/defendant contents that there is novalid explanation offered on the side of respondents/plaintiffs innot examining the first respondent/first plaintiff (wife of thesecond respondent/second plaintiff) and therefore, this is not afavourable circumstance, in favour of the respondents/plaintiffs,when admittedly, the respondents/plaintiffs have sought the relief ofexecution of the sale deed in respect of the suit property andregister them, in favour of the first respondent/first plaintiff bymeans of specific performance against the appellant/defendant. Inthis connection it is the evidence of PW.1/second plaintiff thatfirst respondent/first plaintiff is his wife and he deposed forhimself and also on behalf of his wife and further that he hasentered into an agreement with the appellant/defendant in regard tothe purchase of land at Kuniamuthur village and the sale agreementsin his favour is Ex A1 dated 05.02.1992 and his wife sale agreementdated 05.02.1992 is Ex.A2 and that as per the covenants in Ex.A1sale agreement he has performed all his acts pursuant to the contractand therefore he has acquired the right as per sale agreement Ex.A2dated 05.02.1992 and therefore, he has demanded theappellant/defendant to act as per Ex.A2 sale agreement dated05.02.1992. Further, as per Ex.A2 sale agreement theappellant/defendant is to be paid a sum of Rs.6,18,100/- and as perEx.A2 sale agreement in favour of his wife namely, the firstrespondent/first plaintiff an advance of Rs.1 lakh has been paid tothe appellant/defendant and that he is all the time ready with moneyand from the date of Ex.A2 sale agreement till date he is ready. Inview of the fact that the appellant/defendant has raised sugarcane inthe property of Ex A2 agreement dated 05.02.1992 it is crystal clearthat the appellant/defendant has not been ready and willing toexecute the sale deed in the considered opinion of this Court.Moreover, though PW.1/second plaintiff in his evidence has statedthat he has paid a sum of Rs.22,92,100/- till 14.12.1994 and has paidthe full amount as per the agreement and this has been stoutly deniedby the appellant/defendant to the effect that even if Exs.B1 to B5sale deeds are put together then it will not come to Rs.22,97,100/-and therefore PW.1 has uttered a falsehood upon a material fact and https://hcservices.ecourts.gov.in/hcservices/ accordingly the plaintiffs must fail and at this juncture this Courtopines that it is enough for the first respondent/first plaintiff tomake a demand on the appellant/defendant to hand over possession andexecute sale deed in respect of the properties mentioned in Ex.A2agreement dated 05.02.1992 as opined by this Court in view of thespecific recitals seen in the Ex.A3 Varthamanam agreement dated05.02.1992 entered into between the appellant/defendant and the firstrespondent/first plaintiff and also agreed to by the parties, and byan incorrect or material false statement so made by the plaintiffs inpara 13 of the plaint in regard to the payment of consideration, thesame is not a fatal one. Therefore, there is no question of firstrespondent/first plaintiff to prove her readiness and willingness toperform her part of the contract in the considered opinion of thisCourt.126. When Ex.A3 Varthamanam agreement dated 05.02.1992specifically refers to the averment that till the performance of saleagreement in favour of the second plaintiff is completed, the firstplaintiff cannot make a demand for possession and execution of thesale deed from the appellant/defendant in respect of the entire suitproperty and when this has been agreed to, by meeting of minds thenthe first respondent/first plaintiff need not show that she has beenin possession or in command of the ready money even before thetime/date fixed for performance since delay may be otiose indetermining of a date for performance as opined by this Court.Moreover, when Ex.A3 Varthamanam agreement specifies the obligationsto be performed under the contract in a certain manner a party has toperform his or her own part of the contract before asking the otherparty to perform in compliance of the conditions agreed thereto.127. However, the learned counsel for the appellant/defendantcites the decision of Hon'ble Supreme Court K.S. Vidyanadam andOthers v. Vairavan 1997 3 SCC 1 at page 3 wherein it is held asfollows;"In the present case, the case of the defendantsis acceptable. In the agreement of sale there isno reference to the existence of any tenant in thebuilding. No letter or notice was issued by theplaintiff to the defendants calling upon them toget the tenant vacated and get the sale deedexecuted until he issued the suit notice on11.07.1981. From 15.12.1978 till 11.07.1981,i.e., for a period of more than 2 ½ years, theplaintiff was sitting quiet without taking anysteps to perform his part of the contract underthe agreement. It is thus not a case of meredelay. It is a case of total inaction on the partof the plaintiff for 2 ½ years in clear violation https://hcservices.ecourts.gov.in/hcservices/ of the terms of agreement which required him topay the balance, purchase the stamp papers andthen ask for execution of sale deed within sixmonths. Further, the delay is coupled withsubstantial rise in prices according to thedefendants, three times between the date ofagreement and the date of suit notice. The delayhas brought about a situation where it would beinequitable to give the relief of specificperformance to the plaintiff"and contends that in the present case before us, thecircumstances are against the exercise of discretion for grant ofspecific performance relief in favour of the plaintiffs by the Courtand therefore, the respondents/plaintiffs are dis-entitled to thereliefs prayed for by them because of the latches on their part.128. In the decision Pechimuthu v. Gawri Aammal AIR 2001 SC 2446it is held that "refusal of relief of the specific performance on theground that price of land has arisen astronomically is not proper".129. Be that as it may, when the PW.1/second plaintiff has paidthe entire sale amount of Rs.22,92,100/- till 14.12.1994 as per saleagreement as spoken to by him, in his evidence and when the suit hasbeen filed before the trial Court on 28.04.1995 by therespondents/plaintiffs because of the refusal of theappellant/defendant to execute the sale deed firstly on 07.08.1993 bymeans of a telegram and later by 13.02.1995 reply notice, the suitfiled is within 3 years period from the date of refusal as perArticle 54 of the Limitation Act and the same is not hit bylimitation in the considered opinion of this Court. Just becausemoney taken by the first respondent/first plaintiff has not beensufficient towards the purchase of stamp papers and for registrationexpenses it cannot be construed by any means that firstrespondent/first plaintiff is not ready to conclude her part of thecontract. Even though the mediation said to have been done by closerelative of the appellant is denied by the appellant and though Babuhas not been examined before the trial Court the fact thatappellant/defendant has executed sale deed in regard to the remainderof the properties as per agreement dated 05.02.1993 in favour of thesecond respondent/second plaintiff tacitly goes to show that therehas been a Panchayat and added further, the non-examination ofmediator Babu has not affected the case of the plaintiff in anymanner in the considered opinion of this Court based on the overallassessment of the facts and circumstances of the case in an integralmanner.130. Merely because Ex.A3 Varthamanam agreement confers anunfair advantage to the first respondent/first plaintiff the refusal https://hcservices.ecourts.gov.in/hcservices/ of specific performance relief is improper since in the instant casethe minds were ad idem at the time of entering into Exs.A1 to A3agreements between the parties have been proved beyond all reasonabledoubt as opined by this Court. It is not out of place to point outthat PW.1(second plaintiff) in his evidence (re-cross-examined) hasspecifically stated that on 05.08.1993 accidentally they have signedin the documents in the registration office and on 05.08.1993 hiswife has brought Rs.6,18,000/- in cash and since theappellant/defendant has not turned up she has taken back the money tothe house and the same has not been deposited in the bank and kept itin the house and in Rs.6,18,000/- some time the relatives have takenloan and returned the same and in regard to some loan pro-notes havebeen obtained and from some persons no pronotes have been taken andhe cannot tell the year,date and month of the pronotes and he cannotsay from how many named persons they have taken pronotes etc. Atthis stage, the learned counsel for the appellant/defendant submitsthat the case of lending money by plaintiffs on pronotes show anabandonment of the right and by the next day the firstrespondent/first plaintiff should have rushed to Court, but on thebasis of lending money on pronotes by the respondents/plaintiffs itcannot be said by any means that they have abandoned or waived theirright of claiming the relief of specific performance. It cannot belost sight of, that the respondents/plaintiffs have deposited thebalance sale consideration amount before the trial Court within twodays from the date of passing of the decree. Also, the observationsof the trial Court in its judgment in para 13 to the effect that'work of affixing stamp papers towards payment of Court fees and theact of purchasing stamp papers are not performed by therespondents/plaintiffs directly and mostly these acts are performedby the assistant of an Advocate etc." are certainly based onassumptions or presumptions and as a matter of fact on conjectures inthe considered opinion of this Court.131. Therefore, on a careful consideration of respectivecontentions and in view of the qualitative and quantitativedisccussions mentioned supra and on assessment of the entire factsand circumstances of the case in a cumulative manner this Court comesto the inevitable conclusion that when Ex.A3 Varthamanam agreementdated 05.02.1992 clearly spells out that only after the sale of theproperties mentioned in Ex.A1 sale agreement dated 05.02.1992(entered into between the appellant/defendant and secondrespondent/second plaintiff either in second respondents/secondplaintiffs name or his nominees is/are completed then the firstrespondent/first plaintiff gets the right of demanding the sale ofproperties mentioned in her Ex.A2 sale agreement dated 05.02.1992from the appellant, the first respondent/first plaintiff need notexhibit that she had the command of ready money even before thattime/date during the time of the contract and that will rendernugatory or meaningless fixing of a time/date for performance (namely https://hcservices.ecourts.gov.in/hcservices/ Ex.A3 Varthamanam agreement dated 05.02.1992) and moreover, it is notnecessary to produce money or vouch a scheme for financing thetransaction in that view of the matter the the first respondent/firstplaintiff is entitled to the relief of specific performance asclaimed in the suit and resultantly the appeal fails. 132. In the result for the foregoing reasons the appeal isdismissed leaving the parties to bear their own costs. Consequentlythe judgment and decree in O.S.No.980 of 1995 on the file of trialCourt are affirmed for the reasons assigned by this Court in thisappeal. Having regard to the facts and circumstances of the case theparties are directed to bear their own costs. Connected C.M.P.No.897of 2001 is also closed. Sd/- Asst.Registrar/true copy/ Sub Asst.Registrarprm To1.The IV Additional Subordinate Judge, Coimbatore.2.The Section Officer, V.R.Section, High Court, Madras-104.+1 cc to Mr.C.T.Subbiah, Advocate, SR.No.49383 JUDGMENT inA.S.No. 6 of 2001And C.M.P.No.897 of 2001KSK {CO}TP/13.10.2009.