M/s.Ramnath Publications Pvt. Ltd. v. A.R.Madana Gopal & Ors.

For Respondents inOSA 382 to 384/2003: Mr.AR.L.Sundaresan Senior Counsel for Mr.M.MuraliCOMMON JUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)This judgment shall govern these four appeals in OSA Nos.381to 384 of 2003.2.These appeals challenge a common judgment of the learnedSingle Judge of this Court made in C.S.Nos.826 and 983 of 2000 and111 and 112 of 2001.3.The plaint averments in C.S.No.826 of 2000 are as follows:(a) The suit property belonged to the first defendant, a firm,which was being represented by the second defendant. They offeredto sell the property to the plaintiff. The price fixed wasRs.9,25,000/-. The suit property is 1/4th undivided share of landsituated at Door No.325, Arcot Road, Vadapalani, Chennai 600 026.A written agreement was entered into between the plaintiff and thefirst defendant on 20.3.1991, and a sum of Rs.25,000/- was paid tothe first defendant as advance. As per the agreement, the saleshall be concluded within a period of four months, and the vendorsshall deliver all relevant title deeds to the purchaser at the timeof the payment of the 2nd advance of Rs.2,75,000/-. The vendorsalso agreed for the demolition of the building and for removal ofthe material contained in the building. The plaintiff paid amountsto the extent of Rs.8,50,000/- on different dates, and the balancedue was Rs.75,000/-. The plaintiff's two brothers and father alsoentered into separate agreement on 20.3.1991 with the firstdefendant for the purchase of 1/4th undivided share of land in thesaid property. The sale consideration for each agreement was fixedat Rs.9,25,000/-. Thus, the entire property was agreed to bepurchased by the plaintiff, his father and brothers. (b) The first defendant had applied to the Income TaxAuthorities to issue permission in order to facilitate execution ofthe sale deed to the plaintiff and other agreement holders. Thesaid authorities initiated proceedings for compulsory acquisitionof property. An order was passed by the authorities holding thatthe said property was fit to be purchased by the Central Governmentunder the provisions of the Income Tax Act, and final order waspassed on 22.2.1993. The department wanted to take possession ofthe property. The first defendant filed WP No.4588/93 andchallenged the order passed on 22.2.1993. The plaintiff, hisbrothers and father also filed writ petitions in this regard. On11.9.1998, this Court has passed an order holding that theprovision permitting compulsory purchase was inapplicable inrespect of the suit property, and the writ petition was allowed.Because of these proceedings, the plaintiff and the first defendant https://hcservices.ecourts.gov.in/hcservices/ voluntarily entered into a Memorandum of Understanding on 24.1.1994in continuation of the agreement dated 20.3.1991, as per which thefirst defendant was permitted to keep the original title deeds withthem until completion of the sale by registration of the sale deed,and it also refers the payment made towards sale consideration. (c) After the disposal of the said writ petition, theplaintiff has been requesting the first defendant to receive thebalance of consideration and execute the sale deed. The firstdefendant has been telling that the Income Tax Department havetaken steps for filing an appeal against the decision rendered inthe writ petition. The first defendant filed a suit against theplaintiff's father in O.S.No.3400/98 on the file of the XVIIIAssistant City Civil Judge, Chennai, and it was resisted by him.For reasons best known, the defendants have been postponing theexecution of the sale deed. The plaintiff has been ready andwilling to perform his part of the contract. The plaintiff isready to pay or deposit the balance of sale consideration to thefirst defendant at any time. On account of default or inaction anddelay on the part of the first defendant alone, the sale could notbe completed. The first defendant is free to remove thesuperstructure before delivery of possession of suit property, butnot afterwards. The plaintiff had to approach the first defendantdirectly and through his men for the fulfillment of the contract.The defendants are also attempting to encumber the property todefraud the plaintiff's rights. Hence, the plaintiff sought for adecree for specific performance of the agreement of sale, adirection to the plaintiff to deposit the balance amount ofRs.75,000/- within the time fixed by the Court, a direction to thedefendants to execute a sale deed and to deliver vacant possessionof the suit property to the plaintiff and a decree for permanentinjunction restraining the defendants from alienating orencumbering the suit property.4.The averments in the other plaints in C.S.Nos.983 of 2000and 111 and 112 of 2001 are in the same lines. The plaintiffstherein paid Rs.9,00,000/-, Rs.8,50,000/- and Rs.8,00,000/-respectively on different dates. 5.The suit in C.S.No.826 of 2000 was contested by thedefendants by stating that apart from the 2nd defendant, there arefive other Directors of the first defendant company, and they havenot been impleaded as parties. The other five Directors areneither inclined nor had given any consent for selling the suitproperty at any point of time. Thus, the suit is barred for non-joinder of necessary parties. In the year 1999, the market valueof the property in that area was Rs.25 lakhs per ground. The suitproperty consists of 3 grounds and 1950 sq. ft. with ground andfirst floor building. The suit agreement dated 20.3.1991 had beensuperseded by a memorandum of understanding on 24.1.1994. But, thesuit has been filed only in the year 2000, after a lapse of 9 yearsfrom the date of agreement. The plaintiff entered into thememorandum of understanding agreeing to get the refund of theadvance amount with interest at 9% per annum. This is nothing but https://hcservices.ecourts.gov.in/hcservices/ a novation of contract. Any purported attempt made by theplaintiff to enforce the pre-existing, but a time barred contractwhich is 10 years old, is hopelessly time barred and non-est in theeye of law. Hence, the question of relying on the clauses in thedefunct agreement of sale will be of no use. The plaintiffdeliberately undervalued the suit property. The decision renderedby this Court as has been cited by the plaintiff, has been recentlyoverruled by the Supreme Court of India besides confirming the viewtaken on this aspect by the Bombay High Court in similar matters.The parties herein originally agreed that time is the essence ofthe contract. The sale shall be concluded within a period of fourmonths. Subsequently, the said agreement has been rescinded by amemorandum of understanding between the parties on 24.1.1994 whichis nothing but a novation of contract. A mere pendency of the writpetition will not prevent the plaintiff herein from enforcing theagreement of sale in a court of law. The writ petition filed bythe parties cannot be considered as a 'lis'. Admittedly, the suithas been filed after a period of more than 9 years from the date ofagreement of sale, after 6 years and 9 months from the date ofmemorandum of understanding and after 2 years and 1 month from theorder passed by this Court in the writ petition. The plaintiff hasmiserably failed to establish that he was always ready and willingto perform his part of the contract. Therefore, he is not entitledto the reliefs prayed for in the plaint. The plaintiff is not atall interested in enforcing the contract and he allowed the same tobecome time barred. The suit agreement of sale and the memorandumof understanding lapsed by efflux of time, and the same cannot bepressed into service. The plaintiff as a partner entered into alease agreement with the defendants on 10.2.1994 in respect of theentire first floor as well as the godown at the ground floor. Theplaintiff committed willful default in payment of rents. Thedefendants filed a petition in RCOP No.248/99 for eviction, and thesame is pending on the file of the Rent Controller, Chennai. Thekey of the entire ground floor portion is with the Indian Bank,Kodambakkam Branch. The Indian Bank filed a suit for recoveryagainst the defendants. The plaintiff and family members made anattempt to trespass into the ground floor. The defendants and theIndian Bank complained the matter before the local police station.The defendants also filed a suit in O.S.No.3400/98 on the file ofthe City Civil Court, Madras, seeking a permanent injunctionrestraining the plaintiff and his family members from interferingwith the peaceful possession of the ground floor of the suitproperty. Hence, the suit was liable to be dismissed. 6.The allegations made in the written statements inC.S.Nos.983 of 2000 and 111 and 112 of 2001 are in the same lines.7.On the above pleadings, nine issues were framed. Theparties went on trial. One Madanagopal was examined as P.W.1, and27 documents were marked on the side of the plaintiff. The seconddefendant was examined as D.W.1 and no documents were marked on thedefendants' side. The learned trial Judge after hearing thesubmissions made and looking in to the evidence, decreed all thesuits as prayed for. Hence, these appeals at the instance of thedefendants. https://hcservices.ecourts.gov.in/hcservices/

8.The points that would arise for consideration are:(i) Whether the plaintiffs are entitled for the relief ofspecific performance?(ii) To what relief the parties are entitled?9.Advancing the arguments on behalf the appellants, thelearned Senior Counsel would submit that the suit agreements wereentered into between the parties on 20.3.1991; that the plaintiffsin all the suits belonged to one and the same family; that thesuits were filed by the plaintiffs in October and December 2000respectively, and thus, it would be quite clear that the suits werefiled after a period of 9 years; that the memorandums ofunderstanding were entered into between the parties on 24.1.1994;that the plaintiffs have filed the suits 6 years after thememorandums of understanding; that the writ petition filed by theappellants challenging the acquisition proceedings, was disposed ofon 11.9.1998, and thus, the suits were filed after 2 years from thedate of the disposal of the writ proceedings.10.Placing reliance on the judicial pronouncements, thelearned Senior Counsel would urge that the plaintiff in a suit forspecific performance should prove the readiness and willingness toperform his part of the contract from the date of agreement tillthe date of filing of the suit, and only then, he would be entitledto get the equitable relief of specific performance; that in theinstant case, except the bald averments in the plaints that theplaintiffs were ready and willing to perform their part of thecontract all along, no proof was adduced to accept the same; thatmere averment in the plaint would not be sufficient; but, theremust be proof to accept the same; that P.W.1 has categoricallyadmitted that he had not produced any proof for the alleged breach;that all along these period, the plaintiffs never sent even oneletter or notice informing their readiness and willingness toperform their part of the contract as contemplated under Sec.16(c)of the Specific Relief Act; that the plaintiffs have averred thatthey approached the defendants in 2000 and wrote some letters; but,no scrap of paper was produced before the trial Court; and that onthe point of readiness and willingness, on the basis of merepleadings in the plaints without any proof whatsoever, the trialCourt has accepted that the plaintiffs were ready and willing toperform their part of the contract. 11.Added further the learned Senior Counsel that thememorandums of understanding were entered into in the year 1994wherein it has been clearly and categorically admitted by theparties that immediately after the disposal of the writ petitions,the sale deed should be executed; that the writ petitions weredisposed of by this Court on 11.9.1998; that due to the filing ofthe suits in 2000, there was an interregnum period of 2 years and 3months; but, neither steps were taken by the plaintiffs, nor evenany notice or letter was issued, and thus, there was no proof atall; that the entire first floor of the suit property was in theoccupation of the plaintiffs; that it was not in part performanceof the contract, but as a tenant; that they have committed willfuldefault in payment of rent which constrained the respondents to https://hcservices.ecourts.gov.in/hcservices/ file a petition in RCOP 248/99 as could be seen under Ex.P27; thateven prior to the agreements entered into between the parties, abranch of the Indian Bank was occupying the ground floor; that theplaintiffs attempted to interfere with the possession of the bank;that both Indian Bank and the defendants gave complaint to thejurisdictional police; that the defendants also filed O.S.No.3400of 1998 for a permanent injunction before the City Civil Court torestrain the plaintiffs from trespassing into the ground floor ofthe suit property, and thus, it would be quite clear that therelationship between the parties became strained; that if to be so,the contention put forth by the plaintiffs' side that they weremaking demand personally and through their men was an utterfalsehood which should have been rejected by the trial Court; thatthe said conduct would be indicative of the recalcitrant attitudeand inaction on the part of the plaintiffs; that the trial Courthas placed reliance on the interested testimony of P.W.1 which wasself serving also; that the same was not corroborated by anyindependent evidence either oral or documentary; and that thecircumstances would clearly indicate that the evidence of P.W.1that he made demand on the defendants to execute the sale deed;but, they did not perform their part was false. 12.The learned Senior Counsel would further submit that allthe suits were filed in October and December 2000 respectivelyalleging that the defendants were about to alienate the suitproperty which impelled the plaintiffs to file the suits in 2000;that it is pertinent to point out that the suits were filed after 9years from the original agreements and 6 years from the date ofmemorandums of understanding; that there was nothing to indicatethat the defendants committed any breach of the agreements in 2000or it gave rise to the cause of action for filing the suits; thatthe trial Court has come to the said conclusion without anymaterial whatsoever; and that the plaintiffs have not whispered anybreach of the agreements by the defendants. 13.Advancing his arguments further, the learned Senior Counselwould submit that the crucial legal aspect which has to beappreciated is that for the non-performance of the part of thecontract by the plaintiffs under Sec.16(b) of the Specific ReliefAct, the plaintiffs were disentitled to enforce the defunctagreements; that as per the agreements, the plaintiffs agreed topurchase 1/4th undivided share of the land and the defendantsshould demolish the superstructure and hand over the land to theplaintiffs; that P.W.1 has categorically admitted that theplaintiffs were in physical possession of the first floor and aportion in the ground floor; that Ex.P27 was the document toestablish the same, and hence, the defendants could not demolishthe building without the vacation of the plaintiffs from the suitproperty; that the trial Judge proceeded with the finding as if thedefendants were in possession and enjoyment of the entire propertyand they were to hand over possession, but factually not so; andthat it is not a case where the plaintiffs were put in possessionof the property as a part performance of the contract under Sec.53Aof the Transfer of Property Act; but, they were in occupation only https://hcservices.ecourts.gov.in/hcservices/ as tenants and committed willful default also. 14.Added further the learned Senior Counsel that it was a casewhere the suits were not only filed beyond the period oflimitation, but also the laches on the part of the plaintiffs woulddisentitle them to get the equitable relief of specificperformance; that to obtain the relief of specific performance onthe strength of an agreement for sale, the plaintiff shouldapproach the Court with clean hands apart from proving hisreadiness and willingness throughout under Sec.16(c) of theSpecific Relief Act; that in the instant case, the plaintiffs haveneither proved that they were ready and willing to perform theirpart of the contract throughout which is mandatory under Sec.16(c)of the Specific Relief Act, and also the conduct would clearlyindicate that they were not entitled to even ask for the relief;that the suit agreements have stipulated four months' time tocomplete the transaction; but, admittedly, the suits were filedafter 9 years from the time of agreements; that the memorandums ofunderstanding were only novation of the earlier agreements; thateven under the memorandums of understanding, it was agreed that thesale deed should be executed immediately on the disposal of thewrit petition; but, for a period of 2 years, the plaintiffs havenot taken any steps whatsoever; that it is also to be consideredthat during the relevant point of time i.e., in 1991, the guidelinevalue of Kodambakkam High Road was Rs.20 lakhs per ground; but, theentire property measuring 3 grounds and 1950 sq. ft. was valued atRs.38 lakhs; that it was a case of deliberate under valuation ofthe suit property; that the Income Tax Department also inclined topurchase the same at that time; that the said fact was admitted byP.W.1 in evidence; that it is pertinent to point out that theplaintiffs were never prevented in law from instituting the suitsat the earliest point of time seeking the relief of specificperformance; that P.W.1 has categorically admitted that theconditions stipulated in all the agreements were to demolish thebuilding, get income tax clearance and hand over original documentsafter payment of the first instalment of Rs.2.25 lakhs; but, theplaintiffs were in possession of the entire first floor even duringthe time of filing the suits; that under the circumstances, thequestion of complying with the conditions stipulated in theagreements did not arise; that P.W.1 has categorically admittedthat the appropriate authority wanted to acquire the property, andthe first defendant who undervalued the purchase value, filed thewrit petition in the Court; that it would be quite clear that theplaintiffs have not adduced any proof that they were ready andwilling to perform their part of the contract from the time ofagreements till the time of the suits; that apart from that, theconduct of the plaintiffs would clearly indicate that they were notalso entitled for the relief; that under the circumstances, thetrial Court should have rejected their claim, and hence, all theappeals have got to be allowed by dismissing the suits.15.In support of his contentions, the learned Senior Counselrelied on the following decisions:(i) (1997) 3 SUPREME COURT CASES 1 (K.S.VIDYANADAM ANDOTHERS V. VAIRAVAN); https://hcservices.ecourts.gov.in/hcservices/ (ii) (2002) 9 SUPREME COURT CASES 582 (PUSHPARANI S.SUNDARAM AND OTHERS V. PAULINE MANOMANI JAMES ANDOTHERS);(iii) (2005) 6 SUPREME COURT CASES 243 (UMABAI ANDANOTHER V. NILKANTH DHONDIBA CHAVAN AND ANOTHER) and(iv) (2006) 2 SUPREME COURT CASES 496 (H.P.PYAREJAN V.DASAPPA AND OTHERS).16.Contrary to the above contentions, the learned SeniorCounsel for the respondent in OSA No.381 of 2003 would contend thatit is true that the plaintiffs in those four suits have enteredinto agreements with the defendants who are the owners of theproperty, as found under Exs.P4 to P7; that it was clearly agreedthat the total consideration covered under all these fouragreements for the sale of the property was Rs.37 lakhs, out ofwhich the plaintiff in CS 826 of 2000 paid Rs.8.5 lakhs; theplaintiff in CS 983/2000 paid Rs.9 lakhs; the plaintiff in CS111/2001 paid Rs.8.5 lakhs and the plaintiff in CS 112/2001 paidRs.8 lakhs, and thus, they have paid Rs.34 lakhs out of Rs.37 lakhsconsideration; that what was remaining was only Rs.3 lakhs; that itis not the case of the defendants/appellants that they did not havesufficient funds to pay or they were unable to pay; that thedefendants in order to avoid the agreements for sale and also thesubsequent memorandums of understanding, took all defence pleaswhich were vexatious and unfounded to their knowledge; thatadmittedly, after the agreement was entered into between theparties, permission was sought for by the first defendant; that theincome tax authorities initiated acquisition proceedings in March1993 which necessitated the defendants to file WP No.12449/93; thatconsidering the situation, the parties entered into memorandums ofunderstanding as could be seen from Exs.P15 to P18 on 24.1.1994;that a reading of the memorandums of understanding would clearlyreveal that they desired to continue the original agreements; andthat nowhere it was stated that the memorandums of understandingwere the substitution of the original agreements; but, on thecontrary.17.Added further the learned Senior Counsel that the finalorders came to be passed only in the year 1998; that it ispertinent to point out that out of the total consideration of Rs.37lakhs, Rs.34 lakhs was paid from March 1991 the time of theagreements till January 1994, the time of the memorandums ofunderstanding; that in the instant case, the contention put forthby the appellants' side that the plaintiffs were never ready andwilling to perform their part of the contract was to bediscountenanced; that it has been rightly done by the trial Court;that out of the sale consideration of Rs.37 lakhs, Rs.34 lakhs waspaid in between 1991 and 1994; that if the plaintiffs were actuallynot ready and willing to perform their part of the contract, theywould not have paid the major part of the sale considerationleaving only Rs.3 lakhs; that it is pertinent to point out that thewrit proceedings were initiated pursuant to the acquisitionproceedings and final orders came to be passed in September 1998;that till the time, the sale deed could not be executed; that from1998 onwards, the plaintiffs were personally and through their men https://hcservices.ecourts.gov.in/hcservices/ also insisting for the execution of the sale deed for which it wasreplied by the defendants that the income tax department have takensteps to prefer an appeal from the orders passed in the writpetitions; that even after waiting for a period of 2 years, theycould not accept the evasive answers of the defendants, and undersuch circumstances, they filed the instant suits. 18.Added further the learned Senior Counsel that it is truethat at the time when the agreements were entered into between theparties, the possession of the first floor of the property was nothanded over to the plaintiffs; but, after the memorandums ofunderstanding were entered into between the parties on 24.1.1994,the plaintiffs were actually put in possession of the first floorand not as tenants, but pursuant to the memorandums ofunderstanding, and hence, the defendants who filed the RCOP seekingeviction on the ground of willful default against the plaintiffs,allowed it to be dismissed for non-prosecution; that the defendantsas agreed, have never obtained NOC or clearance certificate fromthe Income Tax department and also they have not vacated the IndianBank who had its branch in the ground floor, and thus, they did notperform their part of the contract; that the defendants have alsonot cancelled the agreements or the memorandums of understandingentered into between the parties; that the defendants who have notperformed their part of the contract, cannot be allowed to say thatthe plaintiffs were never ready and willing; that the plaintiffshave brought to the notice of the trial Court all the circumstancesindicating their readiness and willingness; that it is true thatthe notice was not issued; but, it did not mean that there was nodemand; that the plaintiffs who have parted with a huge sum ofRs.34 lakhs which would represent the major part of theconsideration of Rs.37 lakhs, would not be keeping quiet, and theyhave been pressurizing for the execution of the sale deed; and thatsince the defendants did not perform their part of the contract,the plaintiffs were compelled to file the suits before the Court,and accordingly, they have done.19.It is further submitted by the learned Senior Counsel thatP.W.1 has categorically admitted that even at the time of Exs.P4 toP7 entered into between the parties, the defendants have createdequitable mortgage, and the documents were actually in the hands ofthe mortgagee; but, those facts were actually suppressed, andnowhere it is found in the agreements; that under thecircumstances, the plaintiffs are entitled for the relief ofspecific performance, and hence, the appeals have got to bedismissed.20.In support of his contention, the learned Senior Counselrelied on the following decisions:(i) AIR 1986 SUPREME COURT 1912 (ROJASARA RAMJIBHAIDAHYABHAI V. JANI NAROTTAMDAS LALLUBHAI AND ANOTHER);(ii) 2007 (11) SCALE (SC) 626 (SITA RAM & OTHERS V.RADHEY SHYAM);(iii) (2008) 2 MLJ 750 (SC) (BALASAHEB DAYANDEO NAIK ANDOTHERS V. APPASAHEB DATTATRAYA PAWAR) and(iv) (2008) 3 MLJ 951 (SC) (SILVEY AND OTHERS V. ARUN https://hcservices.ecourts.gov.in/hcservices/ VARGHESE AND ANOTHER).21.The learned Senior Counsel for the respondents in OSANos.382 to 384 of 2003 would submit that the plaintiffs and thefirst defendant decided to conclude the contract after disposal ofthe writ petitions; that the plaintiffs have made payments to thedefendants pending the writ petitions, under the sale agreements;that it is quite evident that the plaintiffs have performed theirpart of the contract by paying major part of the sale considerationand also continuously expressing their readiness and willingness toperform their part of the contract; but, the defendants did notperform their part of the contract; that the learned trial Judgewas justified in granting a decree in favour of the plaintiffs;that the defendants had no intention to complete their part ofcontract even after receiving the huge sale consideration from theplaintiffs; that under such circumstances, the defendants werebound to execute the sale deed on receiving the balance amount, andthe plaintiffs were entitled to get the document executed by them;that if the pleadings manifest that the conduct of the plaintiffsentitles them to get the relief on perusal of the plaint, theyshould not be denied the relief; that in a given case like this,the burden of proving whether time was of the essence is upon theperson alleging it, thus giving an opportunity to the other side torebut such a presumption; that if such evidence is led and notrebutted, the Court is bound to accept the plaintiff's plea; thatin the instant case, the plaintiffs have proved their case, andhence, the judgment of the learned trial Judge has got to besustained, and the appeals be dismissed. In support of hiscontention, the learned Senior Counsel relied on the decisionsreported in (2004) 8 SUPREME COURT CASES 689 (SWARNAM RAMACHANDRANAND ANOTHER V. ARAVACODE CHAKUNGAL JAYAPALAN) and in (2005) 7SUPREME COURT CASES 534 (ANIGLASE YOHANNAN V. RAMLATHA AND OTHERS). 22.From the pleadings of the parties and evidence adduced onboth sides oral and documentary, the following are noticed asadmitted facts:The plaint schedule property belonged to the second defendantwho is the Managing Director of the first defendant company.Pursuant to the offer to sell the said property, the plaintiffs inall the four suits entered into four sale agreements as found inExs.P4 to P7, whereby it was agreed that each sale agreement was inrespect of 1/4th undivided share in the said property, and theconsideration for the same was fixed at Rs.9.25 lakhs. Out of thesale consideration, including the advance paid at the time of saidagreements, the plaintiff in CS 826/2000 paid Rs.8.5 lakhs; theplaintiff in CS 983/2000 paid Rs.9 lakhs; the plaintiff in CS111/2001 paid Rs.8.5 lakhs; and the plaintiff in CS 112/2001 paidRs.8 lakhs. Thus, out of the sale consideration of Rs.37 lakhs asfound in the agreements, Rs.34 lakhs was actually paid commencingfrom the time of agreements till August 1994. The balance ofconsideration that was payable by the plaintiffs was Rs.3 lakhs.The first defendant applied to the Income Tax authorities to accordpermission in order to facilitate execution of the sale deed to theplaintiffs. The Income Tax authorities initiated proceedings for https://hcservices.ecourts.gov.in/hcservices/ compulsory acquisition of the said property, and orders came to bepassed by the appropriate authority namely the Income TaxDepartment, holding that the said property was fit to be purchasedby the Central Government under the provisions of the Income TaxAct, and final orders were passed on 22.2.1993. The departmentdecided to take possession of the property. The said proceedingswere challenged by the first appellant/first defendant in WPNo.12449/91. The said writ petition was filed on 3.9.1993. Pendingthe writ proceedings, the parties entered into memorandums ofunderstanding on 24.1.1994 in continuation of the agreements dated20.3.1991 referred to above. The writ petitions pertaining to thecompulsory acquisition were disposed of by this Court on 11.9.1998as could be seen from Ex.P19. The Corporation of Madras issueddemolition order under Ex.P26 on 3.10.1989. The appellants filed asuit for permanent injunction against the plaintiff on the file ofthe City Civil Court in O.S.No.3400 of 1998 and also filed RCOPNo.248/99 against the plaintiff seeking eviction on the ground ofwillful default. All the four suits were filed by the respectiveplaintiffs in October and December 2000 respectively. 23.As could be seen above, the deliberations made thoughelaborate, center round upon three aspects namely (1) Time as theessence of the contract; (2) Readiness and willingness of theplaintiffs and (3) Conduct of the parties. 24.According to the plaintiffs, time was not the essence ofthe contract, and though recitals stipulating the period were foundin Exs.P4 to P7, the agreements, and also Exs.P15 to P18, thememorandums of understanding, it was not understood so, and apartfrom that, since they were agreements for sale of immovableproperties, time cannot be the essence of the contract. In supportof their contentions, the learned Senior Counsel relied on thedecisions reported in AIR 1986 SUPREME COURT 1912 (ROJASARARAMJIBHAI DAHYABHAI V. JANI NAROTTAMDAS LALLUBHAI AND ANOTHER);(2008) 2 MLJ 750 (SC) (BALASAHEB DAYANDEO NAIK AND OTHERS V.APPASAHEB DATTATRAYA PAWAR) and (2004) 8 SUPREME COURT CASES 689.On the contrary, the specific stand of the appellants/defendantsbefore the trial Court and equally here also is that time was theessence of the contract as found in the agreements for sale andalso for memorandums of understanding; that the plaintiffs have notperformed their part of the contract within the stipulated time,and hence they were not entitled for the relief. 25.Concededly, the agreements for sale were entered intobetween the parties under Exs.P4 to P7. Clause 4 reads that theSale shall be concluded within a period of 4 months from this day,i.e. the date of the agreement. In view of the fact that the incomeTax Authorities/appropriate Authority instead of grantingpermission sought for by the defendants, initiated proceedings forcompulsory acquisition of the property, which necessitated thedefendants to file W.P.No.12449 of 1991. Pending the same, theparties have entered into Memorandums of understanding on 24.1.1994which were marked as Exs.P15 to P18 respectively. It was contendedby the defendants that by entering into memorandums of https://hcservices.ecourts.gov.in/hcservices/ Understanding, the earlier agreements were given up, and it was anew one. But that contention was rightly rejected by the learnedtrial Judge, since it was found in those documents that thoseMemorandums of Understanding were in addition to and not insubstitution of the agreements dated 20.3.1991 between the parties,and thus, it would be quite clear that the parties were bound bythe agreements for sale. It can be well stated that the agreementsfor sale originally entered into between the parties under Exs.P4to P7 would continue to bind the parties. Though a period of 4months for completion of sale was incorporated in Exs.P4 to P7, inview of the acquisition proceedings and consequent writ petitions,there arose a necessity to include a Clause stipulating the periodfor completion of sale. 26.Clause 3 of memorandums of understanding reads as follows: "3.The purchaser further pays a sum ofRs.1,50,000/- ...... and the balance of the sale priceamounting to Rs.75,000/- (Rupees Seventy Five Thousandsonly) will be paid to the Vendor at the time ofRegistration of Sale deed immediately when the writpetition is disposed of upholding the sale agreementbetween the Vendor and the Purchaser."27.In the instant case, it is an admitted position that thewrit petitions were disposed of on 11.9.1998, but the instant suitswere filed between October and December, 2000 after a period ofnearly two years and three months from that date. It remains to bestated that the agreements for sale were entered into between theparties on 20.3.1991 which stipulated 4 months' period forexecution of the sale, and under the Memorandums of Understandingdated 24.1.1994, it was specifically agreed that the balance ofconsideration should be paid at the time of registration of thesale deed immediately after the disposal of the writ petition. Asstated above, the writ petition was disposed of on 11.9.1998.Thus, it would be quite clear that the sale deed could not beexecuted for the reasons beyond the control of the parties till thedisposal of the writ petitions. But, it was clearly understood inthe Memorandums of Understanding that the vendee should make thepayment of balance of consideration immediately on the disposal ofthe writ petition. 28.Placing emphasis on the word "immediately" as found in thememorandums of understanding, the learned Senior Counsel for theappellants would submit that the time was expressly understood asthe essence of the contract. On the contrary, the learned SeniorCounsel for the respondents would submit that though it was foundthat the balance of consideration should be paid immediately afterthe disposal of the writ petition, it was not understood that thetime should be the essence of the contract, and apart from that,even assuming time limit was stipulated in the agreements and alsoin the memorandums of understanding which were only in addition tothe original agreements in respect of the sale of the immovableproperty, time cannot be the essence of the contract. In order tosolve the above controversies between the parties, it would be moreapt and appropriate to look into the different decisions relied on https://hcservices.ecourts.gov.in/hcservices/ by them. An occasion arose before the Apex Court on the identicalfactual events in a case reported in (1997) 3 SCC 1 (K.S.VIDYANADAMAND OTHERS VS. VAIRAVAN). Their Lordships have held as follows:"9. Article 54 of the Limitation Act prescribes threeyears as the period within which a suit for specificperformance can be filed. The period of three years is tobe calculated from the date specified in the agreementfor performance or in the absence of any suchstipulation, within three years from the date theperformance was refused.10. It has been consistently held by the courts in India,following certain early English decisions, that in thecase of agreement of sale relating to immovable property,time is not of the essence of the contract unlessspecifically provided to that effect. The period oflimitation prescribed by the Limitation Act for filing asuit is three years. From these two circumstances, itdoes not follow that any and every suit for specificperformance of the agreement (which does not providespecifically that time is of the essence of the contract)should be decreed provided it is filed within the periodof limitation notwithstanding the time-limits stipulatedin the agreement for doing one or the other thing by oneor the other party. That would amount to saying that thetime-limits prescribed by the parties in the agreementhave no significance or value and that they mean nothing.Would it be reasonable to say that because time is notmade the essence of the contract, the time-limit(s)specified in the agreement have no relevance and can beignored with impunity? It would also mean denying thediscretion vested in the court by both Sections 10 and20. As held by a Constitution Bench of this Court inChand Rani v. Kamal Rani: (SCC p.528, para 25)"... it is clear that in the case of sale ofimmovable property there is no presumption as to timebeing the essence of the contract. Even if it is notof the essence of the contract, the Court may inferthat it is to be performed in a reasonable time ifthe conditions are (evident?): (1) from the expressterms of the contract; (2) from the nature of theproperty; and (3) from the surrounding circumstances,for example, the object of making the contract."In other words, the court should look at all the relevantcircumstances including the time-limit(s) specified inthe agreement and determine whether its discretion togrant specific performance should be exercised. Now inthe case of urban properties in India, it is well-knownthat their prices have been going up sharply over thelast few decades — particularly after 1973*. In this case,the suit property is the house property situated inMadurai, which is one of the major cities of TamilNadu. The suit agreement was in December 1978 and the sixmonths’ period specified therein for completing the sale https://hcservices.ecourts.gov.in/hcservices/ expired with 15-6-1979. The suit notice was issued by theplaintiff only on 11-7-1981, i.e., more than two yearsafter the expiry of six months’ period. The question iswhat was the plaintiff doing in this interval of morethan two years? The plaintiff says that he has beencalling upon Defendants 1 to 3 to get the tenant vacatedand execute the sale deed and that the defendants werepostponing the same representing that the tenant is notvacating the building. The defendants have denied thisstory. According to them, the plaintiff never moved inthe matter and never called upon them to execute the saledeed. The trial court has accepted the defendants’ storywhereas the High Court has accepted the plaintiff’sstory. Let us first consider whose story is more probableand acceptable. For this purpose, we may first turn tothe terms of the agreement. In the agreement of sale,there is no reference to the existence of any tenant inthe building. What it says is that within the period ofsix months, the plaintiff should purchase the stamppapers and pay the balance consideration whereupon thedefendants will execute the sale deed and that prior tothe registration of the sale deed, the defendants shallvacate and deliver possession of the suit house to theplaintiff. There is not a single letter or notice fromthe plaintiff to the defendants calling upon them to getthe tenant vacated and get the sale deed executed untilhe issued the suit notice on 11-7-1981. It is not theplaintiff’s case that within six months’, he purchasedthe stamp papers and offered to pay the balanceconsideration. The defendants’ case is that the tenant istheir own relation, that he is ready to vacate at anypoint of time and that the very fact that the plaintiffhas in his suit notice offered to purchase the house withthe tenant itself shows that the story put forward by himis false. The tenant has been examined by the defendantas DW 2. He stated that soon after the agreement, he wassearching for a house but could not secure one. Meanwhile(i.e., on the expiry of six months from the date ofagreement), he stated, the defendants told him that sincethe plaintiff has abandoned the agreement, he need notvacate. It is equally an admitted fact that between 15-12-1978 and 11-7-1981, the plaintiff has purchased twoother properties. The defendants’ consistent refrain hasbeen that the prices of house properties in Madurai havebeen rising fast, that within the said interval of 2 1/2years, the prices went up three times and that onlybecause of the said circumstance has the plaintiff (whohad earlier abandoned any idea of going forward with thepurchase of the suit property) turned round and demandedspecific performance. Having regard to the abovecircumstances and the oral evidence of the parties, weare inclined to accept the case put forward by Defendants1 to 3. We reject the story put forward by the plaintiffthat during the said period of 2 1/2 years, he has been https://hcservices.ecourts.gov.in/hcservices/ repeatedly asking the defendants to get the tenantvacated and execute the sale deed and that they wereasking for time on the ground that tenant was notvacating. The above finding means that from 15-12-1978till 11-7-1981, i.e., for a period of more than 2 1/2years, the plaintiff was sitting quiet without taking anysteps to perform his part of the contract under theagreement though the agreement specified a period of sixmonths within which he was expected to purchase stamppapers, tender the balance amount and call upon thedefendants to execute the sale deed and deliverpossession of the property. We are inclined to accept thedefendants’ case that the values of the house property inMadurai town were rising fast and this must have inducedthe plaintiff to wake up after 2 1/2 years and demandspecific performance."29.It is to be pointed out that in the instant case, thoughthe writ petition was disposed of on 11.9.1998, till the time whensuits were filed between October and December, 2000, the plaintiffshave not issued even a single letter or notice to the defendantscalling upon them to get the balance of consideration therebygetting the sale deed executed. It is not the plaintiffs' casethat they purchased stamp papers or offered to pay the balance ofconsideration. Even P.W.1 has admitted that he has not issued anycommunication or letter. On the contrary, he would state that manya demand was made personally and also through messengers after thedisposal of the writ petitions, and since the defendants did notpay heed to the request, there arose the necessity to file thesuits. Except the testimony of P.W.1, an interested and selfserving one, no material was placed before the trial Court. Thus,no evidence either oral or documentary was placed before the trialcourt to accept the said contention. On the other hand, the conductof the defendants after the disposal of the writ petition in notcanceling the agreements of sale would be indicative of the factthat no fault could be attributed to them. It is not the case ofthe plaintiffs that the defendants made any higher demand in viewof the price raise which would be indicative of the fact that theycontinued to have the agreement in force. For a period of nearly 2years and 3 months, the plaintiffs were sitting quiet withouttaking any steps to perform their part of the contract under theagreements, though it was specifically agreed under the Memorandumsof Understanding that they should pay the balance of considerationimmediately after the disposal of the writ petition. It is not thecase of the plaintiffs that they either purchased stamp papers ortendered balance of consideration to the defendants. 30.In the instant case, the agreements were entered into inthe year 1991, wherein the time stipulated for execution of thesale deed was 4 months, but in view of the acquisition proceedingsand the writ petition till September, 1998, the sale deed could notbe executed. Needless to say, the value of the property found inthe agreements, in the city of Madras would have risen many timesin these 9 or 10 years. In the case reported in (2004) 8 SCC 689 https://hcservices.ecourts.gov.in/hcservices/ (SWARNAM RAMACHANDRAN AND ANOTHER VS. ARAVACODE CHAKUNGALJAYAPALAN), the Apex Court has held thus:"12. That time is presumed not to be of essence of thecontract relating to immovable property, but it is ofessence in contracts of reconveyance or renewal of lease.The onus to plead and prove that time was the essence ofthe contract is on the person alleging it, thus giving anopportunity to the other side to adduce rebuttal evidencethat time was not of essence. That when the plaintiffpleads that time was not of essence and the defendantdoes not deny it by evidence, the court is bound toaccept the plea of the plaintiff. In cases where noticeis given making time of the essence, it is duty of thecourt to examine the real intention of the party givingsuch notice by looking at the facts and circumstances ofeach case. That a vendor has no right to make time of theessence, unless he is ready and willing to proceed tocompletion and secondly, when the vendor purports to maketime of the essence, the purchaser must be guilty of suchgross default as to entitle the vendor to rescind thecontract."31.From the very reading of the above decision, it would bequite clear that in a case where time was the essence of thecontract, the burden of proof was upon the person alleging it, bygiving an opportunity to the other side to rebut such apresumption. On application of the above decision to the presentfacts of the case, it would be quite clear that the burden was onthe defendants to show that the time was the essence of thecontract which, in the opinion of this Court, has been proved bythe appellants under the above circumstances, but that presumptionis rebuttable. Despite the availability of the opportunity, theplaintiffs have miserably failed to rebut that presumption. 32.The decision relied on by the respondents and reported inAIR 1986 SUPREME COURT 1912 (ROJASARA RAMJIBHAI DAHYABHAI V. JANINAROTTAMDAS LALLUBHAI AND ANOTHER) cannot be applied to the presentfacts of the case, since the question that arose before the ApexCourt was whether the Contract between the parties was onecontingent or specifically enforceable and whether the suit forspecific performance could be filed within 3 years after obtainingpermission. Factual events noticed in the instant case, are neitheridentical nor similar. 33.The respondents relied on another decision of the SupremeCourt reported in (2008) 2 MLJ 750 (SC) (BALASAHEB DAYANDEO NAIKAND OTHERS V. APPASAHEB DATTATRAYA PAWAR) for the legal propositionthat in the case of sale of immovable property, there is nopresumption as to time being the essence of the contract and evenwhere the parties have expressly provided that time is the essenceof the contract, such a stipulation will have to be read along withother provisions of the contract. There cannot be any quarrel onthe legal proposition put forth by the respondents' side. It istrue that mere fixation of time within which the contract was to beperformed, did not make the stipulation as to the time as the https://hcservices.ecourts.gov.in/hcservices/ essence of the contract. But, in a given case, the Court has toread along with the other provisions of the contract and also lookinto all other circumstances attendant. If done in the instantcase, it would be clear that it was not a mere delay, but of totalinaction on the part of the plaintiffs for 2 years and 3 months inclear violation of the terms of the Memorandums of Understanding,which required them to pay the balance of consideration immediatelyafter the disposal of the writ petition. The said delay was alsocoupled with the substantial raise in price between the date ofagreements and Memorandums of Understanding and the date ofdisposal of the writ petition and filing of the suit. In theopinion of this Court, it would be inequitable to give the reliefof specific performance to the plaintiffs. 34.True it is, it was specifically averred in each plaint thatthe plaintiff emphatically states that ever since the date ofagreement, he has been ready and willing to perform his part of thecontract, and the plaintiff is ready to pay or deposit the balanceof sale consideration to the first defendant at any time. On thecontrary, the defence plea was that the last payment was made inMarch, 1994 immediately after the memorandums of understanding, andthe plaintiffs had not shown their readiness and willingness allalong these period, and thus, though the averments are found in theplaints, there was no proof to show that they were ready andwilling to perform their part of the contract by making payment ofbalance of consideration at any point of time.On the questionof readiness and willingness, the Law is well settled. What isreadiness and willingness to perform the terms of the contract asunderstood in Section 16(c) of the Specific Relief Act came up forconsideration by the Apex Court in a decision reported in (2002) 9SCC 582 (PUSHPARANI S.SUNDARAM AND OTHERS VS. PAULINE MANOMANIJAMES(DECEASED) AND OTHERS. The Supreme Court has held as follows:"4. The only question raised before the High Court, whichit considered, to which we are called upon forconsideration is, whether the appellants were alwaysready and willing to perform their part under thecontract. The High Court came to the conclusion thatwillingness and readiness is no doubt pleaded but theyled no evidence to prove it. Thus held, that theplaintiff is not entitled to the decree of specificperformance. The submission by the learned counsel forthe appellants is that the plaintiff was always willingand ready to perform his part under the contract but merenon-leading of any evidence is not sufficient to rejectit. Inference of readiness and willingness could be drawnby the conduct of the plaintiff, the circumstances in aparticular case in other words to be gathered from thetotality of circumstances.5. For this, the appellants rely on two circumstances,one, that immediately after the exemption was given bythe Ceiling Authorities on 31-3-1982, the present suitwas filed in April 1982, and the other the tendering of afurther sum of Rs.5000 to the defendant after executionof the agreement of sale. He also reiterates with https://hcservices.ecourts.gov.in/hcservices/ reference to para 11 of the plaint which pleads that theappellant was and is ready and willing to perform hispart under the contract. So far these being a plea thatthey were ready and willing to perform their part of thecontract is there in the pleading, we have no hesitationto conclude, that this by itself is not sufficient tohold that the appellants were ready and willing in termsof Section 16(c) of the Specific Relief Act. Thisrequires not only such plea but also proof of the same.Now examining the first of the two circumstances, howcould mere filing of this suit, after exemption wasgranted be a circumstance about willingness or readinessof the plaintiff. This at the most could be the desire ofthe plaintiff to have this property. It may be for such adesire this suit was filed raising such a plea. ButSection 16(c) of the said Act makes it clear that mereplea is not sufficient, it has to be proved.6. Next and the only other circumstance relied upon isabout the tendering of Rs.5000, which was made on 2-3-1982 which was even prior to the grant of the exemption.Such small feeder to the vendor is quite often made tokeep a vendor in good spirit. In this case the only otherpayment made by the plaintiff was Rs.5000 at the time ofexecution of the agreement of sale. Thus, the totalamount paid was insignificantly short of the balanceamount for the execution of the sale deed. Thus in ourconsidered opinion the said two circumstances takentogether, is too weak a filament to stand even to buildan image of readiness and willingness. Section 16(c) ofthe Specific Relief Act requires that not only there be aplea of readiness and willingness but it has to be provedso. It is not in dispute that except for a plea there isno other evidence on record to prove the same except thetwo circumstances. It is true that mere absence of aplaintiff coming in the witness box by itself may not bea factor to conclude that he was not ready and willing ina given case as erroneously concluded by the High Court.But in the present case, not only the plaintiff has notcome in the witness box, but not even sent anycommunication or notice to the defendant about hiswillingness to perform his part of the contract. In factno evidence is led to prove the same."35.In a case reported in (2005) 6 SCC 243 (UMABAI AND ANOTHERVS. NILKANTH DHONDIBA CHAVAN AND ANOTHER), the Apex Court has heldthus:"30.It is now well settled that the conduct of theparties, with a view to arrive at a finding as to whetherthe plaintiff-respondents were all along and still areready and willing to perform their part of contract as ismandatorily required under Section 16(c) of the SpecificRelief Act must be determined having regard to the entireattending circumstances. A bare averment in the plaintor a statement made in the examination-in-chief would not https://hcservices.ecourts.gov.in/hcservices/ suffice. The conduct of the plaintiffs/respondents mustbe judged having regard to the entirety of the pleadingsas also the evidences brought on records.....38."Inference of readiness and willingness could be drawnby the conduct of the plaintiffs, the circumstances in aparticular case in other words to be gathered from thetotality of the circumstances.""36.From the above decisions, it would be quite clear that inorder to satisfy the requirements of Section 16(c) of the SpecificRelief Act, mere plea though specifically made in the suit forspecific performance, that the plaintiffs were ready and willingwould not be sufficient. But, that must be proved by acceptableevidence. In the instant case, even the statement of P.W.1 in thebox that the plaintiffs were all along ready and willing to performtheir part of the contract by paying the balance of considerationwould not be sufficient. According to P.W.1, he had not issued anynotice for nearly 2 ½ years after the disposal of the writ petitionand before filing the suit. Not even a scrap of paper has beenfiled to indicate that the plaintiffs were ready and willing. Thecontention put forth by the respondents' side that the plaintiffshave specifically averred in the plaints and in order to prove thesame, P.W.1 was examined would not satisfy, in the consideredopinion of the Court, the requirement of Section 16(c) of theSpecific Relief Act. The Court can even comment that the evidenceof P.W.1 cannot be accepted at all. 37.Admittedly, the first defendant has filed the suit againstthe plaintiffs in O.S.No.3400 of 1998 on the file of the City Civilcourt, Madras for permanent injunction not to interfere with thepeaceful possession and enjoyment of the ground floor of the suitproperty, wherein a branch of the Indian Bank was being run. Apartfrom that, the defendants have also filed RCOP No.248 of 1999against the plaintiffs seeking eviction on the ground of willfuldefault. Thus, it would be quite clear that those legal proceedingswere initiated by the defendants against the plaintiffs, and theywere pending during the interval of 2 years, i.e. after thedisposal of the writ petition and before the filing of the instantsuits. Naturally, it would indicate the strained relationship ofthe parties. In such circumstances, the contentions put forth bythe respondents' side that after the disposal of the writ petition,the plaintiffs personally and through messengers were going onmaking many a demand on the defendants to execute the sale deed byaccepting the balance of consideration, cannot but be a ruseinvented for the purpose of the case, and hence it cannot but berejected as false. Thus, all would indicate that except the mereaverments made in the plaints that the plaintiffs were ready andwilling to perform their part of the contract and the self servingunacceptable testimony of P.W.1 as stated above, no material wasavailable to accept the case. In a given case like this, when theplaintiff comes forward for the equitable remedy of specificperformance, he must strictly plead and prove the mandatoryprovision under Section 16(c) of the Specific Relief Act, and in https://hcservices.ecourts.gov.in/hcservices/ default, he is not entitled for the relief. On that ground also,the plaintiffs could not succeed. 38.As far as the conduct of the parties was concerned, one wascomplaining of the conduct of the other. On appraisal of thepleadings and the evidence both oral and documentary available,this Court is afraid whether it could accept or appreciate theconduct of the plaintiffs to grant the equitable remedy of specificperformance. The agreements were entered into between the partiesin the year 1991 as could be seen from Exs.P4 to P7. It was notthe case of the plaintiffs that they were put in possession of anypart of the property that time. Admittedly, the property consistsof two floors. At the time when the agreements were entered into,the ground floor was in the occupation of the Indian Bank branch asa tenant, and the first floor was in the occupation of thedefendants. The memorandums of understanding were entered intobetween the parties in the month of January 1994. Even in thememorandums of understanding, there is nothing to indicate any termunder which it was agreed that the possession of any part of theproperty should be given to the plaintiffs. It is quite clear fromthe evidence that at the time when the suits were filed, theplaintiffs were in possession of the first floor of the property.The defendants have filed RCOP 248/99 against the plaintiffsstating that the plaintiffs entered into the said agreement withthe defendants on 10.2.1994 in respect of the entire first floor aswell as the godown at the ground floor, and since the rent was notpaid from the very commencement, they were to be evicted. Itremains to be stated that the plaints were thoroughly silent inrespect of the occupation of the first floor by the plaintiffs from1994 till the time of the filing of the suits. A feeble stand wastaken at the time of arguments by the respondents that theplaintiffs were put in possession immediately after the memorandumsof understanding. At this juncture, no pleading or no evidencethrough P.W.1 was available. Though it is contended by thedefendants’ side that the plaintiffs were given possession pursuantto the lease agreement, the plaintiffs have denied the lease. But,there is no corresponding clause for delivery of possession of anypart of the property in the memorandums of understanding. No othermaterial is also available to indicate that the plaintiffs weregiven possession. In such circumstances, a duty is cast upon theplaintiffs to plead and prove how they got into possession of theproperty. 39.The contention put forth by the learned Senior Counsel forthe respondents that the possession of the first floor of theproperty by the plaintiffs is admitted by the defendants pursuantto a lease agreement, and hence, it need not be pleaded. But, thiscontention cannot be countenanced. In a suit for specificperformance on the strength of an agreement for sale, where no partof the property was actually given to the plaintiff at the time ofagreement, and during the pendency of the agreement, the plaintiffhas got the possession of a part of the property, a duty was castupon the plaintiff to specifically aver how he got possession ofthe said property. In the instant case, the plaintiffs have not https://hcservices.ecourts.gov.in/hcservices/ even whispered in the plaints how they got possession of the firstfloor of the property, and hence it can be commented that theplaints in that regard were lacking. 40.Apart from the above, as per the agreements, the defendantsmust hand over vacant possession of the property. One of thecomplaints made by the plaintiffs against the defendants was thatthey did not keep the property vacant nor deliver possession at thetime of the execution of the document, and hence, the plaintiffs atthe time of the filing of the suits felt the mentioning of theirpossession in the property as an impediment. Since the plaintiffswho are in possession of a part of the property, cannot complainthe other side, they have not removed the superstructure. Thiswould speak about the conduct of the plaintiffs. 41.It is pertinent to point out that the plaintiffs during thecurrency of the agreements and after the disposal of the writpetition have attempted to trespass into the ground floor of theproperty where Indian Bank was running its office. The Indian Bankand the defendants have made a complaint to the jurisdictionalpolice. The defendants have also filed the suit inO.S.No.3400/1998 for permanent injunction to restrain therespondents/plaintiffs from interfering with the peacefulpossession and enjoyment of the ground floor by the Indian Bankbranch. Thus, it would be quite clear that the plaintiffs insteadof making the payment of balance of consideration and demanding forthe execution of the sale deed, have attempted to vacate the IndianBank by forcible method which would speak of the conduct of theplaintiffs during the relevant time, which, in the opinion of thisCourt, would disentitle them to the equitable relief of specificperformance. The lack of pleading in respect of the possession ofthe plaintiffs in respect of the first floor of the property andthe attempted trespass of the plaintiffs into the ground floor ofthe property where Indian Bank was being run, in the opinion of theCourt, would be adding factors to refuse the relief of specificperformance, an equitable remedy. All put together would go toshow that the plaintiffs were not entitled for the relief, andhence, all the suits have got to be dismissed. 42.It is well settled proposition of law that the grant ofdecree of specific performance lies in the discretion of the Court,and it is always not necessary to grant specific performance simplyfor the reason that it is legally to do so. The Court in itsdiscretion can direct either of the party to make an additionalpayment to the other while granting or refusing the decree ofspecific performance. In the instant case, though the Court hasheld that the plaintiffs are not entitled to the equitable remedyof specific performance, it is a fit and proper case where thedefendants should be directed to return the respective amounts paidby the plaintiffs, along with interest at 9% per annum from thedate of respective payments till realisation. Thedefendants/respondents are in possession of the first floor of theproperty and also the godown pursuant to the agreements and thememorandums of understanding. Since the relief of specific https://hcservices.ecourts.gov.in/hcservices/ performance on the basis of the agreements is denied, theplaintiffs are liable to hand over possession to theappellants/defendants. 43.In the result, all these original side appeals are allowedsetting aside the judgment and decree of the trial Court. Theappellants/defendants are directed to return the respective amountspaid by the plaintiffs, along with interest at 9% per annumfrom the date of respective payments till realisation. Threemonths' time is given for payment from this day. On such payment,the respondents/plaintiffs should hand over possession to theappellants/defendants. Both namely payment and handing overpossession, should be done simultaneously. The parties aredirected to bear their costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.nsv/ToThe Sub Assistant RegistrarOriginal Side, High Court, Madras5 ccs to Mr.M. Balasubramanian, Advocate, SR. 40009, 40013,40012,40010, 400111 cc to Mr.M. Sriram, Advocate, SR. 399471 cc to Mr.M. Murali, Advocate, Sr. 40287OSA Nos.381 to 384 of 2003NM (CO)kk 13/8