- (1.) THIS appeal is directed against the judgment and decree dated 26.7.1984 in O.S.No.2066 of 1961 on the file of the City Civil Court, Chennai. The suit is for specific performance. The defendants in the suit are the first and the second appellants and the plaintiff in the suit is the respondent. During the pendency of the appeal, the second appellant died and his legal representatives are impleaded as appellants 3 to 6 in the appeal.
(2.) THE plaint averments are that the mother of the defendants, by name, late R.K. Chengammal, was the owner of the house property bearing door no.28 (New No.47), Ganga Nagar, Chennai-24 (hereinafter referred to as "the suit property") and when the owner expressed her intention to sell the suit property, the plaintiff agreed to purchase the same. In pursuance of the negotiations between the parties, late R.K. Chengammal entered into an agreement of sale dated 26.1.1977 with the plaintiff agreeing to sell the suit property to the plaintiff for a consideration of Rs.51,000 (Rupees Fifty One Thousand only), without any encumbrance and the plaintiff has paid an advance amount of Rs.5,000 to late R.K. Chengammal at the time of execution of the agreement of sale. THE first defendant is the attesting witness to the agreement. As per the plaint allegations, the terms of the agreement provide that the execution and registration of sale deed should be completed within three months from the date of the agreement and R.K. Chengammal should also produce encumbrance certificate and other documents relating to the suit property to the plaintiff. It is stated that R.K. Chengammal did not comply with the terms and postponed the registration. It is also stated that a sum of Rs.20,000 was paid by the plaintiff to R.K. Chengammal on 23.1.1978 in the presence of the defendants and the receipt of the same was also endorsed on the last page of the agreement of sale and the defendants have signed the receipt as witnesses along with one M.A. Abbas who acted as a mediator. It is stated that the amount was paid on the assurance given by R.K. Chengammal and the defendants that the sale would be completed within a short time. Further, it is stated that R.K. Chengammal died and after her death, the plaintiff has demanded the defendants that the deed of sale should be executed in her favour informing them that she was always ready and willing to pay the balance of sale consideration. According to her, though the defendants promised several times to complete the sale deed, they failed and neglected to do so. It is stated that the first defendant for herself and as the Power of Attorney Agent of the second defendant sent a lawyer's notice dated 28.12.1980 to the plaintiff demanding payment of rent from February, 1980 onwards and informing the plaintiff that she has committed wilful default in payment of rent and she was liable to be evicted from the suit property for which the plaintiff sent a reply on 7.1.1981 denying the allegations and demanding the defendants to execute the sale deed as per the agreement of sale. In the notice, the plaintiff has also stated that she would approach Civil Court if her request is not complied with. The plaintiff thereafter filed the suit on 12.1.1981 alleging that the attitude and the conduct of the defendants as well as R.K. Chengammal are unreasonable and unwarranted and the defendants as legal heirs of late R.K. Chengammal, are bound to execute the deed of sale in favour of the plaintiff. She has stated that she is always ready and willing to perform her part of the agreement for sale and accordingly, she filed the suit for specific performance. The first defendant has filed a written statement stating that she is not disputing the agreement entered into by her mother with the plaintiff for the sale of the suit property. According to the first defendant, the sale should have been completed within a period of three months from the date of the agreement and the plaintiff had no funds to complete the sale and therefore, she has been evading the transaction. The first defendant has stated that all relevant title deeds were handed over to the plaintiff. It is the case of the first defendant that the plaintiff has been postponing the execution and registration of sale deed and it is not correct to state that the mother of the defendants was postponing the execution and registration of sale deed. The case of the first defendant is that the plaintiff was not ready and willing to pay the balance of the sale consideration and complete the sale. The first defendant has admitted the receipt of Rs.20,000 by her mother in the year 1978. It is stated that the plaintiff did not perform her part of the contract, but requested extension of time for the completion of the sale. The first defendant has stated that that no assurance was given either by the mother Chengammal or by any of the defendants that after the advance amount is received, the sale would be completed within a short time. It is stated that the plaintiff is a tenant and after the death of the first defendant's mother in 1979, the first defendant and her mother were demanding the plaintiff to complete the sale transaction, but the plaintiff was evading to complete the sale transaction, requesting extension of time for the completion of the sale. It is the case of the first defendant that the claim of the plaintiff that she is ready and willing to pay the balance amount and complete the sale is not correct and the plaintiff has not even paid the rent regularly and when the first defendant issued a notice calling upon the plaintiff to pay the rent, the plaintiff issued a reply. The case of the first defendant is that the sale agreement is not valid and enforceable and the plaintiff had abandoned her rights under the agreement. It is also stated that the previous conduct of the plaintiff cannot be countenanced for granting the relief of specific performance as the plaintiff was not ready and willing to perform her part of the contract. After referring to the exchange of notices between the parties, it is stated that the first defendant was ready to execute sale deed, both in her capacity as legal heir of Chengammal and as power of Attorney Agent for the second defendant. The case of the first defendant is that the plaintiff had abandoned her rights and the plaintiff had no funds and she has sworn to a false affidavit filed along with the petition seeking for extension of time for deposit of balance of sale consideration and the conduct of the plaintiff prior to the suit as well as after she approached the Court is a proof to show that she was not ready and willing to perform her part of the agreement. According to the first defendant, the agreement cannot be enforced against her as well as against the second defendant. The trial Court, on the above pleadings, has framed as many as five issues for consideration and the trial Court, after considering the evidence, oral and documentary, held that the suit filed is within the time and there is no evidence of waiver or abandonment of right by the plaintiff. The trial Court also held that it cannot be held that because of the delay, the plaintiff is not entitled to the relief of specific performance. The trial Court came to the conclusion that time is not the essence of the contract and the subsequent rise in price cannot be taken as a reason for refusing the relief of specific performance of the agreement. In so far as the conduct of the plaintiff during the course of litigation is concerned, the trial Court held that the order passed by the trial Court was with reference to the grant of temporary injunction and under the provisions of Section 28(1) of the Specific Relief Act, the Court has the power to extend time for making deposit. According to the trial Court, the Court has the power in a suit for specific performance to extend the time for deposit and the failure of plaintiff to deposit money in the Court before the decree or even after the decree cannot be a reason to deny the relief of specific performance. The trial Court also held that it was the first defendant who was not willing and ready to complete the sale. The trial Court held that the plaintiff was in a position to pay the balance of sale consideration and in such circumstances, the trial Court was of the view that the plaintiff was ready and willing to complete the sale and consequently, decreed the suit as prayed for. It is against the judgment and decree, the present appeal has been preferred.
(3.) IT is also necessary to notice that during the pendency of the appeal, the second appellant Raghavachari died on 13.1.1998 and an affidavit was filed by one Srinivasan, Power Agent of the legal representatives of the deceased Raghavachari who are residing in United Kingdom, and accordingly, the legal representatives of the deceased Raghavachari were brought on record. Further, it is necessary to mention here that before the trial Court, the first defendant acted as the Power of Attorney Agent for the second defendant and now, after the death of the second appellant, a third party, one Srinivasan is acting a Power Agent for the legal representatives of the deceased second defendant. Mr.T.R. Rajagopalan, learned senior counsel appearing for the appellants submitted that the agreement for sale was entered into on 26.1.1977 and under the agreement, the execution and registration of sale deed should be completed within three months from the date of the agreement subject to satisfaction of certain conditions and the suit was instituted on 12.1.1981 and hence, the suit is barred by time in view of the Article 54 of the Limitation Act. Learned senior counsel submitted that though there was a further advance of Rs.20,000 on 23.1.1978, that would not extend the period of limitation. He referred to Article 54 of the Limitation Act, and submitted that when date has been fixed for the performance of the contract, three year period referred to in Article 54 of the Limitation Act commenced and began to run from 26.4.1977 and the limitation cannot be extended by any further payment. Learned senior counsel also submitted that it is not the case of the plaintiff either in the notice issued prior to the institution of the suit or in the plaint that because of want of consent from the competent authority, sale could not be effected. Learned senior counsel referred to Ex.A-4 and submitted that there was no demand for no objection certificate and the grounds urged in the notice (Ex.A-4) do not show that it is due to want of such consent of the competent authority that the sale was getting postponed. Therefore he submitted that limitation for the institution of the suit commenced on 26.4.1977 and the time began to run from 26.4.1977, and the suit should have been instituted within 3 years from 26.4.1977. ;