- (1.) THIS appeal has been directed against the decree and judgment in O.s.No.37 of 1996 on the file of the Court of Principal Subordinate Judge, Chengalpattu. The defendant in the suit is the appellant herein.
(2.) THE averments in the plaint sans irrelevant particulars are as follows:- THE defendant has agreed to sell the plaint schedule property measuring 17 acres 28 cents in Seekanankuppam Village, Cheyyur Taluk, in favour of the plaintiff on 21.09.1995 at the rate of Rs.21,000/- per acre and received an advance of Rs.1 lakh and executed an agreement to sell the property in favour of the plaintiff on the same day. THE defendant has represented that Items 1 to 8 were allotted to him in a partition in the family and Item Nos.9 to 12 were purchased by him. THE defendant has executed the suit agreement in the capacity as joint family manager consisting himself and other members of the joint family and he sued in such capacity also. THE defendant had executed the suit agreement of sale in the capaity of de-jure as joint family manager. THE time stipulated under the sale agreement is six months from the date of agreement. Though the time has not been agreed to be the essence of contract, the plaintiff has been tendering the balance of sale consideration to the defendant and demanding specific performance. THE defendant has been evading from the date of agreement and the plaintiff was always ready and willing to perform his part of the contract ie., to pay the entire balance of sale consideration and to take the sale deed at his expenses and to register the same. THE plaintiff had sent a telegram on 18.03.1996 demanding specific performance. But there is no reply. Hence, the suit. The defendant in his written statement would contend that the suit is not maintainable. The contention that the suit agreement of sale was executed by the defendant in the capacity as joint family manager consist of himself and other members of the joint family and that the defendant was sued in such capacity are not correct and true. The defendant never made such a representation to the plaintiff at any point of time. The time fixed under the suit agreement is the essence of the contract. The plaintiff agreed to complete the sale transaction strictly within six months and he also further agreed that in the event of delay he would pay the market price for the suit properties that prevailed at the time he was ready with funds and take the sale deed from the defendant. The defendant was always ready and willing to perform his part of the contract. The allegation that the plaintiff sent a telegram on 18.03.1996 is not true. The plaintiff has committed breach of contract by neglecting to pay the balance of sale consideration and take the sale deed within the specific time agreed under the suit agreement. The defendant is not the absolute owner of the suit property and hence he is not liable to execute the sale deed in favour of the plaintiff. There is no cause of action to file the suit. Hence, the suit is liable to be dismissed. On the above pleadings the learned trial Judge has framed 6 issues for trial. The plaintiff has examined himself as P.W.1 and exhibited Ex.A.1 to Ex.A.4. The defendant has examined himself as D.W.1. No document was marked on the side of the defendant. After meticulously going through the evidence both oral and documentary the learned trial Judge has come to the conclusion that the plaintiff is entitled to a decree for specific performance of contract and accordingly decreed the suit with costs. Aggrieved by the findings of the learned Trial Judge, the defendant has preferred this appeal.
(3.) THE point for determination in this appeal are as follows:- 1) Whether the suit as framed is maintainable? 2) Whether the time was considered to be the essence of contract by the parties? 3) Whether the decree and judgment in O.S.No.37 of 1996 on the file of the Principal Subordinate Judge, Chengalpattu, is liable to be set aside for the reasons stated in the memorandum of appeal? Point No.1:- Ex.A.1 is the agreement of sale entered into between the plaintiff and the defendant on 21.09.1995. The time stipulated under Ex.A.1 for performance of the contract was six months from the date of agreement of sale. The time expires by 20.03.1996. The defendant has not issued any notice demanding the plaintiff to get the sale deed executed after paying the balance of sale consideration before 21.3.1996. A telegraphic notice was sent by the plaintiff to the defendant on 18.3.1996 and true copy of the said telegraphic notice certified by the Junior Telegraph Officer, Telegram Office, Chengalpattu, dated 19.03.1996 is Ex.A.2. Under the said telegraphic notice the plaintiff has demanded the defendant to execute the sale deed before 21.3.1996 after receiving the balance of sale consideration from the plaintiff. For the above said telegraphic notice the defendant has not sent any reply notice. It is seen from Ex.A.3 that on behalf of the minor son of the defendant, the father of the defendant has sent a notice to both the plaintiff and the defendant claiming that the plaint schedule property belongs to the joint family of the defendant and that the agreement of sale entered into between the plaintiff and the defendant under Ex.A.1 will not bind the minor Aswin Kumar, son of the defendant. For Ex.A.3 the plaintiff has issued a reply notice dated 30.3.1996 contending that the minor Aswin Kumar is residing with his father/defendant and that he is not residing with his grand-father K.B.Bangarusamy Reddiar and that the grand-father of the minor Aswin Kumar is not the guardian of minor Aswin Kumar. It has been in clear terms informed by the plaintiff to the defendant that only in the capacity of joint family Manager the defendant had executed Ex.A.1-sale agreement in respect of the property scheduled to the plaint and that after his telegraphic notice sent to the defendant under original of Ex.A.2, with the connivance of the defendant, his father had sent Ex.A.3 in the name of minor Aswin Kumar. It has been further stated in Ex.A.4 that the agreement of sale was entered into between the plaintiff and the defendant only in the interest of the minor and also for the joint family interest. Even though under Ex.A.1 the time stipulated for the performance of the contract is fixed as six months from the date of Ex.A.1 ie., on or before 20.3.1996, the defendant has not issued any notice to the plaintiff before 20.3.1996 demanding the plaintiff to perform his part of the contract informing that the defendant is always ready and willing to perform his part of the contract ie., he was ready to execute the sale deed in terms of Ex.A.1. Further it is settled proposition of law that in respect of immovable property the time cannot be taken as essence of contract unless the parties insist for the same. The conduct of the plaintiff from Ex.A.2 shows that he was always ready and willing to perform his part of the contract before the time stipulated under Ex.A.1. Under such circumstance, I hold on Point No.1 that the defendant was not ready and willing to performance his part of the contract before the time stipulated under Ex.A.1, on the other hand the plaintiff was ready and willing to perform his part of the contract before the time stipulated under Ex.A.1. Point No.1 is answered accordingly.;