- (1.)This second appeal is focussed by the defendants, inveighing the judgment and decree dated 26.8.2010 passed by the learned Subordinate Judge, Kanchipuram in A.S. No. 41 of 2009 in confirming the judgment and decree dated 9.7.2009 passed by the learned District Munsif cum Judicial Magistrate, Sriperumbudur in O.S. No. 524 of 2008. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court.
(2.)Compendiously and concisely, the relevant facts, which stood uncurtained and unveiled, which are absolutely necessary and germane for the disposal of this second appeal, would run thus:
a) The plaintiff-Harikrishnan filed the suit as against the following six persons:

1. Ponnammal

2. J. Devadasan

3. J. Gopu

4. J. Punniyakotti

5. J. Manoharan

6. R. Kumaravel

seeking the relief of specific performance with regard to the immovable property found described in the schedule of the plaint, which is set out thus:

Schedule of Property

Kanchipuram District, Sriperumbudur Taluk in No. 119, Kandhoor Village,

b) A summation and summarisation of the averments in the plaint would run thus:

An agreement to sell Exhibit A-1 emerged on 01.09.1999 between the plaintiff and the following seven persons:

1. J. Ponnammal

2. M. Jayarama Naicker

3. J. Devadasan

4. J. Gopu

5. J. Punniyakoti

6. R. Kumaravel

7. Manoharan

for a total sale consideration of Rs. 97,800/- stipulating a period of six months for performance and a sum of Rs. 20,000/- was paid as advance under the said agreement to sell. The proposed seller was enjoined to sell the property free from encumbrance. However, subsequently, the plaintiff came to know that the third defendant created a mortgage loan in favour of Poonamallee Co-op. Primary Agricultural and Rural Development Bank, Chennai-56 for certain sum in respect of an extent of 2.32 acres comprised of Survey Nos. 141/3, 142/1, 141/4B and 141/2B, which forms part of the suit property. Even though the plaintiff was ready and willing to perform his part of the contract by paying the remaining part of the sale consideration of Rs. 77,800/-, the defendants were postponing the execution of the sale deed and they did not also take steps to discharge the mortgage loan. However, during the month of May 2003, the defendants' insisted for higher sale consideration, for which the plaintiff also agreed because he happened to be a real estate business man and that he had commitment with third parties. Accordingly, on 24.5.2003 the plaintiff made the following payments:

1. A sum of Rs. 10,000/- was received by the 2nd defendant.

2. A sum of Rs. 70,000/- was received by the 3rd defendant.

3. A sum of Rs. 50,000/- was received by the 4th defendant.

4. A sum of Rs. 47,850/- was received by the 5th defendant under three cheques.

As such, the total amount paid was Rs. 1,77,850/- on 24.5.2003 in addition to the sum of Rs. 20,000/- already paid by the plaintiff to the defendants under the said agreement to sell. The defendants' undertook to clear the mortgage at an earlier date and execute the sale deed; but they failed to do so. Whereupon, the plaintiff himself discharged the loan of Rs. 53,000/- and got back the original document from the said Bank on 1.12.2003. As such, the plaintiff paid the entire enhanced sale consideration and he was entitled to specific performance. It is also the contention of the plaintiff that even though Exhibit A-1 is a registered agreement yet under one other un-registered agreement, which emerged on the same day, the plaintiff was put in possession of the suit property as per Section 53-A of the Transfer of Property Act. As the pre-suit notice dated 26.5.2004, issued by the plaintiff evoked no response from the defendants, the suit was came to be filed.

c) Per contra, in a bid to make mincemeat and torpedo the case of the plaintiff, D3 filed the written statement, inveighing and challenging, impugning and refuting the averments/allegations in the plaint, which was adopted by the remaining defendants:

Notwithstanding that the suit property stood in the name of Jayarama Naicker and D1-Ponnammal, by way of abundant caution all the children of the couple along with one other son of their pre-deceased son, were added as proposed sellers in the agreement to sell. There was an oral arrangement, under which, the total sale consideration of Rs. 7,65,450/-, was agreed to be paid by the plaintiff to the defendants'; but the former failed to do so. The defendants are co-sharers of the suit property. The agreement to sell dated 1.9.1999 is not enforceable and it is barred by limitation. The plaintiff cannot plead protection under Section 53-A of the Transfer of Property Act. The plaintiff was not put in possession of the suit property under the said agreement. The encumbrance in favour of the Poonamallee Co-op. Primary Agricultural and Rural Development Bank, Chennai-56 was created by Jayarama Naicker and the defendants' discharged the said debt. At the time of execution of the agreement itself, the plaintiff was aware of such encumbrance. Within the limitation period, the plaintiff did not call upon the defendants to execute the sale deed, by expressing his readiness and willingness to perform his part of the contract. As such, the suit was barred by limitation.

Accordingly, they prayed for the dismissal of the suit.

d) Whereupon issues were framed by the trial court.

e) Up went the trial, during which, the plaintiff examined himself as P.W. 1 along with P.W. 2 and marked Exhibits A-1 to A-20. On the side of the defendants, D3 examined himself as D.W. 1 and Exhibits B-1 to B-15 were marked.

f) Ultimately, the trial court decreed the suit; as against which, the defendants' preferred the appeal for nothing but to be dismissed by the first appellate court confirming the judgment and decree of the trial court.

g) Challenging and impugning the judgments and decrees of both the fora below, the defendants have preferred this second appeal on various grounds and also suggesting the following substantial questions of law:

a) Is the lower appellate Court correct and justified in disposing of the appeal even framing proper point and arise for consideration and even without following the procedure laid down under Order 41 Rule 31 of CPC?

b) Are the Courts below correct and justified in decreeing the suit for relief of specific performance especially when the plaintiff has not come to the court with clean hands?

c) Are the Courts below correct and justified in holding that time is not the essence of the contract?

d) When payment as to balance of consideration has to be made on or before a particular time, will not failure to pay within that period disentitle the plaintiff from getting relief of specific performance?

e) Is not payment before time fixed a condition precedent failure of which would disentitle the plaintiff from getting the discretionary relief of specific performance?

f) Whether defendants acknowledgement is valid or invalid under Section 18 of the Limitation Act and whether it would give fresh period of limitation?

g) Are the courts below correct and justified in holding that the suit is not barred by limitation?

h) Are the courts below correct and justified in holding that plaintiff was ready and willing to perform his part of the contract?

i) On the face of cheques issued by the plaintiff being dishonoured for want of funds are the Courts below correct and justified in still holding that plaintiff was ready and willing to perform his part of the contract?

j) On the face of the unexplained delay in filing the suit after notice are the Courts below correct and justified in holding that the plaintiff was ready and willing and can discretionary relief be granted to such a person?

k) Are the courts below correct and justified in holding that plaintiff is protected under 53 A of Transfer of Property Act especially when his possession is not traceable to the agreement?

l) Are the courts below correct and justified in relying on Exhibit A-2 when it is disputed and even before it is found to be true?

(extracted as such)

(3.)Heard both sides.