- (1.) THIS petition is directed against judgment dated 4.8.2008 of the Division Bench of the Madras High Court whereby the appeal filed by the respondent was allowed and the decree passed by the learned Single Judge for specific performance of agreement dated 19.2.1994 was set aside. The petitioner filed suit for specific performance by making the following assertions: (i) that she had entered into an agreement with the respondent for purchase of the suit property bearing Door No. 10/1 (old Door No. 18/1), Ebrahim Sait Street, Kondithope, Madras comprised in T.S.No.124/94, Block No. 2, George Town Village; (ii) that the total price of the suit property was Rs.10,25,000/-; (iii) that she had paid Rs.50,000/- to the respondent and agreed to pay the balance amount within next three months subject to the condition that the respondent shall obtain clearance from the Income Tax Department and get the title deeds after clearing the dues of the bank from which he had taken loan; (iv) that even though she was always ready and willing to perform her part of the agreement, the balance price was not paid because the respondent failed to get the requisite certificate from the Income Tax Department and he did not clear the bank 's dues.
(2.) IN his written statement, the respondent pleaded that the petitioner had undertaken to clear the outstanding dues of the bank and to pay Rs.1,30,000/- in addition to the sale consideration, which she did not do; that he had agreed to sell only the ground floor, first floor and the second floor of the suit property but the petitioner was claiming all the floors; that the petitioner was not ready and willing to perform her part of the agreement and that she did not have adequate funds for paying the balance consideration. On the pleadings of the parties, the learned Single Judge framed the following issues: "1. Whether the plaintiff is entitled to specific performance of the contract dated 19.2.1994? 2. Whether the plaintiff was always ready and willing to perform his part of the contract? 3. Whether the defendant was evading to perform the obligations cast upon him under the agreement of sale? 4. Whether the plaintiff is entitled to a specific performance? 5. To what relief? " After considering the evidence produced by the parties, the learned Single Judge decreed the suit. In the appeal filed by the respondent, the Division Bench formulated the following points: "(i) Whether the plaintiff was entitled for the specific performance of the contract dated 19.2.1994? (ii) Whether the plaintiff was ready and willing to perform her part of the contract? (iii) Whether it is correct that the plaintiff is not entitled to the equitable relief of specific performance for her conduct? (iv) To what relief? " While considering the second point, the Division Bench observed as under: "The decision in the case rests upon three aspects as to, (i) whether time is essence of the contract; (ii) whether the plaintiff was ready and willing to perform her part of the agreement; and (iii) the conduct of the parties.
(3.) AS pointed out above, the parties have agreed that the transaction should be completed within a period of 3 months from the date of the agreement. True it is, ordinarily time is the essence of the contract insofar as the sale of an immovable property. In the present case, certain circumstances are noticed. A reading of the agreement would clearly reveal that the property which was the subject matter of sale, was actually mortgaged with the Indian Overseas Bank, Sowcarpet Branch. It is also made clear in the agreement that the defendant was under necessity to enter into such a transaction for clearance of the said mortgage debt. At this juncture, Ex.A2 reads as follows: "WHEREAS the Vendor with a view to discharge the sundry debts and to discharge the loan in Indian Overseas Bank, offered to sell the above property and morefully described in the schedule hereunder for a net price of Rs. 10,25,000/- (Rupees ten lakhs twenty five thousand only) and whereas the Purchaser agreed to purchase the same for the said sum of Rs.10,25,000/-. " ;