Madras High Court
Thirugnanam vs S.B.Vijayaraghavan (Died) on 2 February, 2026
2026:MHC:1104
A.S(MD)No.214 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 04.11.2025
Pronounced on : 02.02.2026
CORAM
THE HONOURABLE MR.JUSTICE P.VADAMALAI
A.S(MD)No.214 of 2017
and
C.M.P(MD)No.12141 of 2017
Thirugnanam,
S/o.Shenbhagam,
36-A, Govt. Higher Secondary School Road,
Avaniapuram,
Madurai. ...Appellant/Plaintiff
Vs.
1. S.B.Vijayaraghavan (Died),
S/o.Balasundaram,
No.2, North Perumal Maestri Street,
Madurai. ...1st Respondent/Defendant
2.Mohanavalli,
W/o.Late S.B.Vijayaraghavan,
No.2, North Perumal Maistry Street,
Madurai.
3.V.Vishnu Priya,
D/o.Late.S.B.Vijayaraghavan,
No.2, North Perumal Maistry Street,
Madurai.
4.V.Yogeshwari,
D/o.Late.S.B.Vijayaraghavan,
No.2, North Perumal Maistry Street,
Madurai. ...Respondents 2 to 4
1/35
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2026 04:25:25 pm )
A.S(MD)No.214 of 2017
(Respondents 2 to 4 are brought on record as LRs of the
deceased sole respondent vide Court order,
dated 28.07.2023 made in C.M.P(MD)No.1315 of 2020 in
A.S(MD)No.214 of 2017)
PRAYER :- This Appeal Suit is filed under Order 41 Rule 1 r/w Section 96 of
CPC., to set aside the judgment and decree made in O.S.No.10 of 2015 on the
file of the VI Additional District Court, Madurai, dated 17.07.2017.
For Appellant : Mr.K.Ganesamoorthy
R1 : Died
For R2 to R4 : Mr.J.Barathan
JUDGMENT
This Appeal is filed against the judgment and decree, dated 17.07.2017
made in O.S.No.10 of 2015 on the file of the VI Additional District Court,
Madurai.
2. The appellant is the plaintiff in O.S.No.10 of 2015 on the file of the
VI Additional District Court, Madurai. The first respondent is the defendant in
that suit.
3. For the sake of convenience, the parties are referred to as per their
rank before the trial Court.
2/35
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2026 04:25:25 pm )
A.S(MD)No.214 of 2017
4. The brief facts are as below:
(a) The case of the plaintiff (appellant herein):-
The suit properties to a total extent of 12 acres 72 cents, shown as three
items. The item Nos.1 and 2 are absolute properties of the defendant by virtue
of the sale deed, dated 21.03.1985. In the 3rd item, he is having 1/5th share.
He and his brother are in joint possession of the 3rd item. The defendant agreed
to sell item Nos.1 and 2 and 1/5 share in item No.3 to the plaintiff for a total
consideration of Rs.10,49,400/- at the rate of Rs.825/- per cent. The plaintiff
and the defendant entered into sale agreement on 16.09.2007. The plaintiff paid
Rs.1,00,000/- to the defendant as advance. The sale should be completed
within one month. The defendant further received Rs.1,50,000/- on
07.02.2008; Rs.1,00,000/- on 11.02.2008 and Rs.10,000/- on 25.02.2008 and
thus the defendant received totally Rs.3,60,000/- out of sale consideration.
The defendant made an endorsement for receipt of the said sum on the back
side of sale agreement. The plaintiff has always been ready and willing to
perform his part of the contract and insisting the defendant to execute the sale
deed. The defendant has been postponing the registration, stating that there was
a dispute between the defendant and his brothers. On 14.02.2014, the plaintiff
approached the defendant and insisted for execution of the sale deed, for which
3/35
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2026 04:25:25 pm )
A.S(MD)No.214 of 2017
the defendant gave a promise letter stating that he would definitely perform his
part of the contract. However, the defendant failed to do so. Hence, the
plaintiff issued a legal notice on 28.03.2014 to the defendant, calling upon him
to execute the sale deed. Again, the defendant gave another letter on
25.04.2014 promising that he would definitely complete the sale and asked the
plaintiff to wait for some period. The plaintiff is having sufficient means and is
always ready and willing to get the sale deed registered. Since the plaintiff was
in possession of the suit properties, he was on hope that the defendant would
sell the suit property to him. On 05.01.2015, the plaintiff learnt that the
defendant was attempting to sell the suit properties to third parties. Hence, the
plaintiff filed the suit for specific performance.
(b) The case of the defendant:-
The plaintiff and the defendant entered into sale agreement, dated
16.09.2007. One month time was stipulated for completion of sale.
The defendant received a sum of Rs.1,00,000/- on 16.09.2007, Rs.1,50,000/-
on 07.02.2008, Rs.1,00,000/- on 11.02.2008 and Rs.10,000/- on 25.02.2008.
The balance sale consideration was to be paid within another one month time.
The plaintiff has not paid. The plaintiff has to file the suit within three years,
4/35
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2026 04:25:25 pm )
A.S(MD)No.214 of 2017
i.e., on or before 22.03.2011, but the plaintiff filed the suit on 14.02.2014,
stating that the defendant sent a letter to the plaintiff promising to perform his
part of contract. As per Limitation Act, the acknowledgement should have
been given within three years i.e., on or before 22.03.2011. The defendant
never sent any reply on 25.04.2014 as alleged. So, the suit is filed beyond the
limitation period and the suit is barred by limitation. The plaintiff was not
ready and willing to perform his part of contract. The plaintiff committed a
breach of contract. Hence, the plaintiff is not entitled to the discretionary relief
of specific performance and the suit is liable to be dismissed.
5.The trial Court framed the following issues upon the pleadings of both
parties.
(1) Whether the suit is barred by limitation
as alleged by the defendant?
(2) Whether the plaintiff was ready and
willing to perform the contract as per the terms of
sale agreement dated 16.09.2007?
(3) Whether the plaintiff is entitled to the
relief of specific performance of contract as
prayed for?
(4) To what other relief and cost, the
plaintiff is entitled to?
5/35
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2026 04:25:25 pm )
A.S(MD)No.214 of 2017
6.During the trial, the plaintiff has examined two witnesses as P.W.1 and
P.W.2 and marked nine exhibits as Ex.A.1 to Ex.A.9. The defendant was
examined himself as D.W.1 and no exhibit was marked.
7.On appreciation of evidence and the submissions made on behalf of the
parties, the trial Court has concluded that the suit is barred by limitation and
that the plaintiff was not ready and willing to perform his part of the contract
and thereby dismissed the suit by its judgment, dated 17.07.2017.
8.The judgment and decree of the trial Court, dated 17.07.2017 are under
challenge in this appeal.
9.I have heard the arguments of the learned counsel of both sides.
On hearing both sides and on perusing the material records along with the
grounds of appeal, both sides admitted that they had entered into an
unregistered sale agreement, dated 16.09.2007, in respect of the suit properties
for Rs.10,49,400/- , fixing one month time for completion of the contract.
It is further admitted that an advance of Rs.1,00,000/- was paid on the date of
the sale agreement i.e., on 16.09.2007 itself and further payment amounts of
6/35
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2026 04:25:25 pm )
A.S(MD)No.214 of 2017
Rs.1,50,000/- on 07.02.2008, Rs.1,00,000/- on 11.02.2008 and Rs.10,000/- on
25.02.2008. So, there is no dispute that a total sum of Rs.3,60,000/- was paid
towards the sale consideration from 16.09.2007 to 25.02.2008. From their
arguments and records, the learned counsel for both side have made
submissions mainly on the point of limitation and readiness and willingness.
10. The points for consideration in this appeal are:
1)Whether the suit is barred by limitation?
2) Whether the time is the essence of contract?
3) Whether the trial Court erred in dismissing the
suit, and whether the finding of the trial Court is liable to
be set aside?
4) Whether the present appeal is to be allowed?
11. Points 1 to 4:
The learned counsel for the appellant/plaintiff submitted that the plaintiff
and the defendant entered into Ex.A.3 sale agreement, dated 16.09.2007, for
selling the suit properties to an extent of 12 acres 72 cents for a sale
consideration of Rs.825/- per cent, i.e., the total sale price is Rs.10,49,400/-.
Eventhough one month time was fixed for completion of the contract, the
defendant had received further amounts from the plaintiff beyond one month
7/35
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2026 04:25:25 pm )
A.S(MD)No.214 of 2017time i.e., on 07.02.2008, 11.02.2008 and on 25.02.2008. The defendant has
also admitted the receipt of further payments. Whenever the plaintiff insisted
the defendant for execution of the sale deed, the defendant has delayed the
matter by saying there was a dispute among himself and his brothers.
Hence, time is not the essence of contract as the said one month time was
breached by the parties. The defendant, admitting his liability for execution of
the sale deed, has given a letter, dated 14.02.2014 and the same was marked on
the plaintiff’s side as Ex.A.4. Moreover, the plaintiff sent Ex.A.5 legal notice,
dated 28.03.2014 to the defendant. The defendant received the said legal notice
and sent Ex.A.6 reply notice on 25.04.2014 in which he specifically stated that
he admitted the sale agreement, receipt of advance amount and giving of
Ex.A.4 letter and that he would definitely complete the sale and also asked the
plaintiff to wait for some time. Both the plaintiff and defendant are relatives
and hence, considering the relationship, the plaintiff believed the words of the
defendant. So, time is not the essence of contract and also the suit is not barred
by limitation as the suit was filed on 13.01.2015 from one year from the date of
Ex.A.4 notice and Ex.A.6 reply legal notice acknowledging the receipt of the
advance amount and liability of his part of contract. The defendant specifically
admitted his signature in Ex.A.4 letter.
8/35
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2026 04:25:25 pm )
A.S(MD)No.214 of 2017
12. The learned counsel for the appellant/plaintiff further argued that the
plaintiff has always been ready to pay the balance sale consideration amount
for getting the sale deed registered. The defendant has also admitted in his
letter Ex.A.4, reply notice Ex.A.6 and also in his evidence that the plaintiff and
his father have met the defendant 100 or 300 times for completion of the sale
agreement. So, the plaintiff has clearly established his readiness and
willingness, whereas the defendant has not been ready and willing to perform
his part of contract. The trial Court has not considered all these aspects, but
mainly came to the conclusion that the suit is barred by limitation. The trial
Court has not considered the admission of the defendant, which is the best
piece of evidence as per the Evidence Act. Since the defendant has given
Ex.A.4 letter promising to perform his part of the contract, time is not the
essence of contract, even though Ex.A.4 was given after three years.
The Hon’ble Supreme Court held that whether the time is of the essence of
contract has to be culled out from the reading of the entire contract and the
surrounding circumstances. The plaintiff should not be blamed for the delay
due to the inaction of the defendant. Hence, the relief of specific performance
has to be granted in favour of the plaintiff.
9/35
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2026 04:25:25 pm )
A.S(MD)No.214 of 2017
13. In support of his argument, the learned counsel for the plaintiff has
relied on the following citations:
(1) (2022) 2 Supreme Court Cases 382 in the case of “Welspun
Speciality Solutions Ltd., /v/ ONGC”, in which it is held in paragraph No.35
as follows:
“35. It is now well settled that “whether time is
of the essence in a contract” has to be culled out from
the reading of the entire contract as well as the
surrounding circumstances. Merely having an explicit
clause may not be sufficient to make time the essence
of the contract.”(2) AIR 2002 Himachal Pradesh 166 in the case of “Ranjana Nagpal
alias Ranjana Malik /v/ Devi Ram and Ors.’ it is held in paragraph Nos.45,
46 and 48 as follows:
“45. In the case before the Hon’ble Supreme
Court, the specific performance of the agreement was
refused since the plaintiff therein was found to be
guilty of inaction for a period of 2½ years after initial
payment of a small amount as earnest money by him.
This inaction on the part of the plaintiff weighed
against the exercise of a discretion for grant of specific
performance of the agreement in favour of the plaintiff.
10/35
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2026 04:25:25 pm )
A.S(MD)No.214 of 2017
46. In the present case, the plaintiff is not to be
blamed for the delay. Though the agreement
Ex.P.W.3/A was executed on 1.10.1983, the necessary
mutation in favour of the defendants was sanctioned
only on 30.11.1984. The sale deed was to be executed
by the defendants only after the sanction of such
mutation in their favour. While discussing question
No.2 above, it has been observed that the defendants
after the sanction of mutation had never informed the
plaintiff in this regard. The defendant even failed to
serve the notice on the plaintiff as stipulated in
clause (2) of the agreement calling upon him to get the
sale deed executed and registered in his favour. Rather
the plaintiff on coming to know about the sanctioning
of mutation in favour of the defendants on 17.9.1985
had served a notice Ex.P.W4/A upon them calling upon
them to execute the sale deed in his favour on or before
5.10.1985. The defendants did not respond to such
notice. No reply was even given by them. As a result
the present suit was on 24.6.1986. Since the defendant
themselves were guilty of inaction, they cannot be
permitted to take advantage of their own inaction.
The discretionary relief of specific performance of the
agreement was, therefore, rightly granted by the two
Courts below in favour of the plaintiff inasmuch as the
defendants themselves are to be blamed for the delay.
11/35
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2026 04:25:25 pm )
A.S(MD)No.214 of 2017
14. Per contra, the learned counsel for the respondent/defendant
contended that it is the specific condition in the Ex.A.3 sale agreement, dated
16.09.2007 that the time for conclusion of the contract has been fixed as one
month. The time of one moth expired on 15.10.2007. The suit ought to have
been filed on or before 15.10.2010, but the suit was filed on 13.01.2015, which
is beyond the three years period. The further payments made on 07.02.2008,
11.02.2008 and 25.02.2008. The last payment was made on 25.02.2008.
If three years are calculated from that date, the limitation expires on
24.02.2011. Hence, the suit is hopelessly barred by limitation. Even for the
argument’s sake, Ex.A.4 and Ex.A.6 are admitted, those letters were said to
have been written on 14.02.2014 and 25.04.2014. As per Section 18 of the
Limitation Act, the acknowledgements ought to have been executed within the
three year period of limitation. In this case, three years expired on 15.10.2010
or 24.02.2011 from the last payment. Those letters said to have been signed on
14.02.2014 and 25.04.2014, were executed beyond the three years.
Hence, these letters will not come under the definition of Section 18 of the
Limitation Act and therefore, the suit is barred by limitation.
12/35
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2026 04:25:25 pm )
A.S(MD)No.214 of 2017
15.The learned counsel for the defendant has further argued that as
regards to readiness and willingness, the plaintiff has not been ready and
willing to perform his part of contract, because after the last payment on
25.02.2008, the plaintiff did not make any further payment towards the sale.
Mere assertions that he was ready 100 or 300 time do not establish his
continuous readiness and willingness. The suit was filed after lapse of 8 years.
All these years, the plaintiff has not made any effort for making payment.
Even after filing the suit, the plaintiff has only deposited the balance sale
consideration into Court on 04.03.2016. The plaintiff had not taken a single
step to pay the balance sale consideration after 25.02.2008.
From 25.02.2008 to 14.02.2014 there was no correspondence from the
plaintiff. The alleged handing over possession is false one as there is no word
in sale agreement in this regard. The act of the plaintiff itself shows that the
plaintiff is not ready and willing to perform his part of contract.
16.In support of this contention, the learned counsel for the defendant
has relied on the judgment of the Hon’ble Apex Court rendered in the case of
“U.N.Krishnamurthy /v/ A.M.Krishnamurthy” reported in (2023) 11
13/35
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2026 04:25:25 pm )
A.S(MD)No.214 of 2017
Supreme Court Cases 775, in which it is held in paragraph Nos.22, 23, 24 and
31 to 34 as follows:
”22. Section 16 of the Specific Relief Act, 1963,
as it stood at the material time (prior to amendment
with effect from 1.10.2018), inter alia, provides:-
“16. Personal bars to relief.—Specific
performance of a contract cannot be enforced in
favour of a person—
(a) who would not be entitled to recover
compensation for its breach; or
(b) who has become incapable of performing,
or violates any essential term of, the contract that on
his part remains to be performed, or acts in fraud of
the contract, or wilfully acts at variance with, or in
subversion of, the relation intended to be established
by the contract; or
(c) who fails to aver and prove that he has
performed or has always been ready and willing to
perform the essential terms of the contract which are
to be performed by him, other than terms the
performance of which has been prevented or waived
by the defendant.
Explanation. —For the purposes of clause (c),-
(i) where a contract involves the payment of
money, it is not essential for the plaintiff to actually
tender to the defendant or to deposit in court any14/35
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2026 04:25:25 pm )
A.S(MD)No.214 of 2017money except when so directed by the court;
(ii) the plaintiff must aver performance of, or
readiness and willingness to perform, the contract
according to its true construction.”
23. Section 16 (c) of the Specific Relief Act,
1963 bars the relief of specific performance of a
contract in favour of a person, who fails to aver and
prove his readiness and willingness to perform his
part of contract. In view of Explanation (i) to clause
(c) of Section 16, it may not be essential for the
plaintiff to actually tender money to the defendant or
to deposit money in Court, except when so directed by
the Court, to prove readiness and willingness to
perform the essential terms of a contract, which
involves payment of money. However, Explanation
(ii) says the plaintiff must aver performance or
readiness and willingness to perform the contract
according to its true construction.
24. To aver and prove readiness and
willingness to perform an obligation to pay money, in
terms of a contract, the plaintiff would have to make
specific statements in the plaint and adduce evidence
to show availability of funds to make payment in terms
of the contract in time. In other words, the plaintiff
would have to plead that the plaintiff had sufficient
funds or was in a position to raise funds in time to15/35
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2026 04:25:25 pm )
A.S(MD)No.214 of 2017discharge his obligation under the contract. If the
plaintiff does not have sufficient funds with him to
discharge his obligations in terms of a contract, which
requires payment of money, the plaintiff would have to
specifically plead how the funds would be available to
him. To cite an example, the plaintiff may aver and
prove, by adducing evidence, an arrangement with a
financier for disbursement of adequate funds for
timely compliance with the terms and conditions of a
contract involving payment of money.
31.In K.S. Vidyanadam v. Vairavan, Justice
B.P.Jeevan Reddy said that grant of the relief of
specific performance is discretionary and the Court is
not bound to grant it. This Court further held that
though time is not of essence to a contract relating to
transfer of property, such contracts need to be
completed within a reasonable time period. Thus, the
time element cannot be completely ignored.
32.In a suit for specific performance of a
contract, the Court is required to pose unto itself the
following questions, namely:-
32.1 Whether there is a valid agreement of sale
binding on both the vendor and the vendee and
32.2 Whether the plaintiff has all along been
and still is ready and willing to perform his part of the
contract as envisaged under Section 16(c) of the16/35
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2026 04:25:25 pm )
A.S(MD)No.214 of 2017
33. There is a distinction between readiness
and willingness to perform the contract and both
ingredients are necessary for the relief of specific
performance. In Acharya Swami Ganesh Dassji v.
Sita Ram Thapar cited by Mr.Venugopal, this Court
said that there was a difference between readiness and
willingness to perform a contract. While readiness
means the capacity of the plaintiff to perform the
contract which would include his financial position,
willingness relates to the conduct of the plaintiff. The
same view was taken by this Court in Kalawati v.
Rakesh Kumar.
34. Even in a first appeal, the first Appellate
Court is duty bound to examine whether there was
continuous readiness and willingness on the part of
the plaintiff to perform the contract. This proposition
finds support from Balraj Taneja v. Sunil Madan, and
H.P. Pyarejan v. Dasappa where this Court approved
the views taken by the Privy Council in Ardeshir
Mama v. Flora Sassoon.
17.The learned counsel further submitted that the total payment of
Rs.3,60,000/- is admitted. However, the plaintiff is not entitled to refund as the
plaintiff has not specifically sought the alternative relief of refund of money
17/35
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2026 04:25:25 pm )
A.S(MD)No.214 of 2017
according to provisions of Sec.22(2) of the Specific Relief Act. Unless the
plaintiff claims a refund of the advance amount by way of alternative relief, the
plaintiff is not entitled to get refund of the said advance amount. In support of
this contention, the learned counsel relied on the judgment of the Hon’ble
Supreme Court in the case of “K.R.Suresh /v/ R.Poornima and Others”
reported in 2025 SCC Online SC 1014, it is held in paragraph Nos.53, 54, 55,
58 to 64 as follows:
”ii. Law on the Alternative Relief of Refund
of Earnest Money under Section 22 of the 1963 Act
53. The High Court denied the relief of refund
of advance money to the appellant herein, having
regard of the fact that the appellant had not sought
for an alternative prayer for refund of the advance
sale consideration in the suit as mandated by Section
22(2) of the 1963 Act.
54. Before we proceed to answer the question
formulated by us in para 27, we deem it necessary to
examine Section 22 of the 1963 Act. It reads thus:
“22. Power to grant relief for possession,
partition, refund of earnest money, etc.—
(1) Notwithstanding anything to the contrary
contained in the Code of Civil Procedure, 1908
(5 of 1908), any person suing for the specific
performance of a contract for the transfer of18/35
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2026 04:25:25 pm )
A.S(MD)No.214 of 2017immovable property may, in an appropriate case, ask
for—
(a) possession, or partition and separate
possession, of the property, in addition to such
performance; or
(b) any other relief to which he may be
entitled, including the refund of any earnest money
or deposit paid or [made by] him, in case his claim
for specific performance is refused.
(2) No relief under clause (a) or clause
(b) of sub-section (1) shall be granted by the court
unless it has been specifically claimed:
Provided that where the plaintiff has not
claimed any such relief in the plaint, the court shall,
at any stage of the proceeding, allow him to amend
the plaint on such terms as may be just for including
a claim for such relief.
(3) The power of the court to grant relief
under clause (b) of subsection (1) shall be without
prejudice to its powers to award compensation under
section 21.”
55. Sir Frederick Pollock, 3rd Baronet, in
Pollock & Mulla: The Indian Contract and Specific
Relief Acts, 16th Edn., has discussed the object and
scope of Section 22 of the 1963 Act and the
alternative relief of refund of earnest money deposit,19/35
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2026 04:25:25 pm )
A.S(MD)No.214 of 2017as follows:
“[s 22.6.2] Refund of Earnest Money or
Deposit
[…] The relief of refunding of earnest money
or deposit cannot be granted unless specifically
claimed. Further such a plea cannot be considered in
a second appeal, particularly when the issue of
execution of the agreement has been held as not
having been proved…….
58. It is thus a settled position of law that the
plaint may be amended at any stage of the
proceedings to enable the plaintiff to seek an
alternative relief, including that of refund of earnest
money, and the courts have been vested with wide
judicial discretion to permit such amendments.
However, under Section 22 of the 1963 Act, the
courts cannot grant such relief suo moto, since the
inclusion of the prayer clause remains a sine qua non
for the grant of such a relief. In other words, when
an “appropriate case” exists for seeking the said
relief under this provision, it must be specifically
sought either in the original plaint or by way of an
amendment. This has been emphatically held by this
Court in Desh Raj v. Rohtash Singh, reported in
(2023) 3 SCC 714. The relevant observations are
reproduced hereunder:
20/35
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2026 04:25:25 pm )
A.S(MD)No.214 of 2017“35. On a plain reading of the above-
reproduced provision, we have no reason to doubt
that the plaintiff in his suit for specific performance
of a contact is not only entitled to seek specific
performance of the contract for the transfer of
immovable property but he can also seek alternative
relief(s) including the refund of any earnest money,
provided that such a relief has been specifically
incorporated in the plaint. The court, however, has
been vested with wide judicial discretion to permit
the plaintiff to amend the plaint even at a later stage
of the proceedings and seek the alternative relief of
refund of the earnest money. The litmus test appears
to be that unless a plaintiff specifically seeks the
refund of the earnest money at the time of filing of the
suit or by way of amendment, no such relief can be
granted to him. The prayer clause is a sine qua non
for grant of decree of refund of earnest money.
36. Applying these principles to the facts of the
case in hand, we find that the respondent has neither
prayed for the relief of refund of earnest money in the
original plaint nor he sought any amendment at a
subsequent stage. In the absence of such a prayer, it
is difficult to accept that the courts would suo motu
grant the refund of earnest money irrespective of the
fact as to whether Section 22(2) of the SRA Act is to21/35
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2026 04:25:25 pm )
A.S(MD)No.214 of 2017be construed directory or mandatory in nature.”
(Emphasis supplied)
59. The judgment in Desh Raj (supra) has
been relied upon by the learned counsel appearing
for the appellant herein. However, it is difficult to
understand how this judgment furthers their case.
On the contrary, this judgment clearly contradicts
their position, stating in unequivocal terms that, in
the absence of a prayer for the relief of refund of
earnest money, such relief cannot be granted by this
Court.
60. Another judgment which has been relied
upon by the learned counsel for the appellant in
reference to the issue of refund of earnest money, is
the case of Kamal Kumar v. Premlata Joshi,
reported in (2019) 3 SCC 704. Notably, the ruling in
this case also stands contrary to the arguments
advanced by the appellant on account of the fact that
the relief of refund of earnest money was denied
therein. The relevant observations are extracted
hereunder:
“9. In the case at hand, we find that the two
courts below have gone into these questions in the
light of pleadings and evidence and recorded a
categorical finding against the plaintiff holding that
the plaintiff was neither ready nor willing to perform22/35
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2026 04:25:25 pm )
A.S(MD)No.214 of 2017his part of the contract and, therefore, he was not
entitled to claim the relief of specific performance of
the contract against the defendants in relation to the
suit land. It was also held that the plaintiff was not
entitled to claim any relief of refund of earnest money
because it was liable to be adjusted as agreed
between them.”
(Emphasis supplied)
61. Applying these principles to the facts of the
case at hand, we find ourselves unable to accept the
submissions of the appellant that, in the absence of a
specific prayer for the refund of advance money paid
by them, Prayer (c) of the plaint which specifies the
grant of “such other relief(s) as the Hon’ble Court
deems fit in the facts and circumstances of the case in
the interest of justice”, can be construed to include a
prayer for such an alternative relief.
62. The reasoning set forth in the case of
Manickam (supra) as regards the relief of possession
under Section 22(1)(a) of the 1963 Act, can be
appropriately imported in the present case to say that
the relief of refund of earnest money under Section
22(1)(b) is not a relief that automatically flows from
a decree for specific performance of a sale
agreement and must, therefore, be explicitly sought.
23/35
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2026 04:25:25 pm )
A.S(MD)No.214 of 2017
63. In our considered opinion, the law
contained under Section 22(2) of the 1963 Act is
adequately broad and flexible to allow the appellant
to seek an amendment of the plaint for the said relief,
even at the appellate stage. However, no such
application for an amendment of the plaint was
moved either before the trial court or during the
course of the first appeal before the High Court.
That is to say, the appellant never prayed for the
refund of the advance money. Here, it would be
redundant to state that the law aids the vigilant, not
those who sleep over their rights.
E. CONCLUSION
64. For all the foregoing reasons, we have
reached the conclusion that the forfeiture of advance
money by the respondent nos. 1-4 was justified.
In such circumstances, we are not inclined to grant
the relief of refund of advance money to the
appellant.
65. We are unable to find any kind of
perversity or illegality in the impugned judgment
passed by the High Court. As a result, the present
appeal stands dismissed.
66. Parties shall bear their own costs. Pending
application(s), if any, stand disposed of.”
24/35
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2026 04:25:25 pm )
A.S(MD)No.214 of 2017
18. In reply, the learned counsel for the plaintiff made his submissions
that the plaintiff deposited the balance sale consideration. Moreover, the
plaintiff and the defendant’s families are relatives and the plaintiff has
purchased 96 acres from the defendant’s family. D.W.1 has also admitted the
letters Ex.A.4 and Ex.A.6, hence, the surrounding circumstances have also to
be looked into as per the judgment of Welspun Specialty Solution Ltd. case
(2022) 2 SCC 382 supra. Therefore, the appeal may be allowed.
19.On hearing both sides and on perusal of records, the main points
argued pertain to limitation, readiness & willingness and the essence of time.
The plaintiff mainly relied on Ex.A.4 and Ex.A.6, which were written by the
defendant on 14.02.2014 and 25.04.2014, since the defendant has admitted
execution of the sale agreement and receipt of the advance amount.
The suit was filed on 13.01.2015 which is within three years from 25.04.2014.
But, the defendant’s side vehemently argued that those letters were written after
the expiry of three years from the date of sale agreement on 16.09.2007, as
well as the last payment of Rs.10,000/- on 25.02.2008, hence, these letters
cannot be taken as acknowledgement as per Section 18 of the Limitation Act.
Admittedly, there is no dispute that the sale agreement was executed on
25/35
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2026 04:25:25 pm )
A.S(MD)No.214 of 2017
16.09.2007 for a total sale consideration of Rs.10,49,400/-, out of which, the
plaintiff paid a sum of Rs.1,00,000/- on 16.09.2007; another Rs.1,50,000/- on
07.02.2008; another Rs.1,00,000/- on 11.02.2008 and the last payment of
Rs.10,000/- on 25.02.2008. It is also agreed that the time for completion of
sale was fixed as one month. While the facts being so, the three-year limitation
period calculated from the date of the sale agreement ended on 15.10.2010,
while the period calculated from the last payment date of 25.02.2008
concluded on 24.02.2011. Therefore, it is to be looked into whether the Ex.A.4
and Ex.A.6 letters, dated 14.02.2014 and 25.04.2014, written by the defendant,
can be taken as an acknowledgment as per provisions of Section 18 of the
Limitation Act.
20.Section 18 of the Limitation Act 1963 deals with the effect of
acknowledgment in writing, which reads as follows:-
“18. Effect of acknowledgement in writing–
(1) Where, before the expiration of the
prescribed period for a suit or application in respect
of any property or right, an acknowledgement of
liability in respect of such property or right has been
made in writing signed by the party against whom
such property or right is claimed, or by any person26/35
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2026 04:25:25 pm )
A.S(MD)No.214 of 2017through whom he derives his title or liability, a fresh
period of limitation shall be computed from the time
when the acknowledgment was so signed.
(2)Where the writing containing the
acknowledgement is undated, oral evidence may
be given of the time when it was signed; but
subject to the provisions of the Indian Evidence
Act, 1872 (1 of 1872), oral evidence of its contents
shall not be received.
Explanation: For the purposes of this Section –
(a) an acknowledgement may be sufficient
though it omits to specify the exact nature of the
property or right, or avers that the time for
payment, delivery, performance or enjoyment has
not yet come or is accompanied by a refusal to
pay, deliver, perform or permit to enjoy, or is
coupled with a claim to set-off, or is addressed to
a person other than a person entitled to the
property or right;
(b) the word “signed’ means signed either
personally or by an agent duly authorized in this
behalf; and
(c) an application for the execution of a decree
or order shall not be deemed to be an application in
respect of any property or right.”
27/35
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2026 04:25:25 pm )
A.S(MD)No.214 of 2017
21.In the decision in State of Kerala v. Chacko, 2000 (3) M.LJ. 135
(S.C.), the Hon’ble Supreme Court had an occasion to deal with the scope of
Section 18 of the Limitation Act and held as follows:-
“From a perusal of Sub-section (1) of Section
18 it is evident that to invoke this provision:
(1) there must be an acknowledgment of
liability in respect of property or right;
(2) the acknowledgment must be in writing
signed by the party against whom such right of
property is claimed (or by any person) through
whom he derives his title or liability;
(3) the acknowledgment must be made before
the expiration of the period prescribed for a suit or
application (other than application for the execution
of a decree) in respect of such property or right.
The effect of such an acknowledgment is that a
fresh period of limitation has to be computed from
the time when the acknowledgment was so signed.
22.From the above provisions and decision of the Hon’ble Supreme
Court, it is clearly held that the acknowledgement has to be made within three
years, and certainly not beyond three years of the original limitation period.
28/35
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2026 04:25:25 pm )
A.S(MD)No.214 of 2017
It is admitted by both parties that the sale agreement was entered into on
16.09.2007 and the last payment was made on 25.02.2008. One month was the
stipulated condition for completing the sale. Therefore, the limitation ends on
15.10.2010 and 24.02.2011 respectively. The alleged Ex.A.4 and Ex.A.6
acknowledgement letters were written by the defendant on 14.02.2014 and on
25.04.2014, i.e., beyond the three years period. Hence, they cannot be
considered as acknowledgment within the meaning of provision of Section
18 of the Limitation Act, as rightly held by the trial Court and also rightly
argued by the counsel for the defendant. But, the suit was filed on 13.01.2015,
i.e., nearly a lapse of 7 years from the sale agreement and the last payment
date. The plaintiff as P.W.1 has admitted as “xg;ge;jk; Vw;gl;L 6 tUlk;
fHpj;J tHf;F bjhlug;gl;lJ vd;why; rhpjhd;. ….fpiua xg;ge;jk; kw;Wk;
mjpy; Fwpg;gpl;Ls;s fhy mtfhrk; 1 khjk; fHpj;jJ nghf 3 Mz;L
fhyj;jpw;Fs; th.rh.M.4 fojk; bgwg;gltpy;iy vd;why; rhpjhd;.
24.02.2011f;Fs;shft[k; th.rh.M.4 vGjp bgwtpy;iy vd;why; rhpjhd;”
Therefore, this Court holds that the suit is hopelessly barred by limitation.
The trial Court has correctly appreciated the evidence and held that the suit is
barred by limitation, which need not be interfered by this Appellate Court.
29/35
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2026 04:25:25 pm )
A.S(MD)No.214 of 2017
23.The next point is regarding readiness and willingness. It is argued by
the plaintiff’s counsel that the trial Court has decided the suit only on the
limitation point, it has not considered the aspect of readiness and willingness.
It is admitted by both parties that the performance should have been completed
within one month i.e., 15.10.2007, from the date of Ex.A.3 sale agreement on
16.09.2007. It is also admitted that the plaintiff paid some part of the sale
consideration on 07.02.2008, 11.02.2008 and 25.02.2008. Thereafter, there was
no attempt to pay the sale amount till filing of the suit. Even after filing of the
suit, the plaintiff has deposited the balance sale consideration on 04.03.2016 as
per his chief evidence as P.W.1, who categorically deposed as “jhth fpiua
xg;ge;jj;jpw;Fz;lhd ghf;fp fpiua bjhif U:.6>89>400/ia 4.3.2016 md;W
nfhh;;l;oy; blghrpl; bra;Jtpl;nld;..”. The Hon’ble Supreme Court has held
in Kirshnamurthy case reported in (2023) 11 Supreme Court Cases 775,
that the discretionary relief of specific performance cannot be granted in favour
of a person who failed to prove readiness & willingness and also the first
Appellate Court is duty bound to examine whether there was continuous
readiness and willingness on the part of the plaintiff to perform the contract.
30/35
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2026 04:25:25 pm )
A.S(MD)No.214 of 2017
24.On perusal of records, there is no correspondence between the period
25.02.2008 to 14.02.2014 made by the plaintiff to the defendant specifically
mentioning his readiness and willingness or the availability of the balance sale
consideration. Except oral evidence that 100 or 300 times the plaintiff asked
the defendant, which is not sufficient, the same has to be established by
admissible evidence other than oral evidence. But the plaintiff has not
substantiated his continuous readiness and willingness. The evidence of P.W.1
in his cross examination is better to extract hereunder. He admitted that
“25.02.2008 njjpapypUe;J 24.2.2011f;Fs; tHf;if jhf;fy; bra;atpy;iy
vd;why; rhpjhd;. ,ilg;gl;l 3 tUl fhyj;jpw;Fs; ehd; vGj;J K:ykhf
xg;ge;jgo ele;Jbfhs;Sk;go gpujpthjpf;F mwptpg;ngh fojnkh vGjp
xg;ge;jgo elf;f nfl;ftpy;iy vd;why; rhpjhd;. tha;bkhHpahf
nfl;nld;..”. The defendant in his evidence as D.W.1 deposed that “ehDk;
thjpa[k; thjpapd; je;ija[k; 100 Kiwf;F nky; re;jpj;Js;nshk;. me;j 100
Kiwa[k; rPf;fpuk; gjpe;J thq;fpf;bfhs;Sq;fs; vd;W ehd;jhd; brhd;ndd;.
thjpfs; vd;dplk; gjpe;J jUk;go nfl;ftpy;iy Rkhh; VbHl;L
tUlq;fSf;F Kd; filrpahf gjpe;J bfhs;Sk;go brhd;ndd;. ehd;F
tUlq;fSf;F Kd; mth;fis filrpahf ghh;j;njd; mjd;gpd; nehpy;
re;jpf;ftpy;iy ..” From the above material facts and evidence, it is very clear
that the plaintiff has not been ready and willing to perform his part of contract.
31/35
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2026 04:25:25 pm )
A.S(MD)No.214 of 2017
25.It is settled law that for the relief of specific performance, the plaintiff
has to prove that all along and till the final decision of the suit, he was ready
and willing to perform his part of the contract. It is the bounden duty of the
Plaintiff to prove his readiness and willingness by adducing evidence.
This crucial facet has to be determined by considering all circumstances
including availability of funds and a mere statement or averment in the plaint
of readiness and willingness, would not suffice. In Umabai Vs. Nilkanth
Dhondiba Chavan reported in 2005 [6] SCC 243, the Hon’ble Supreme Court
has held that there must be a finding by the Court regarding the continuous
readiness and willingness of the plaintiff to perform his part of the contract
before granting specific performance. And also, from several judgments of the
Hon’ble Supreme Court, this Court has no difficulty in holding that Section
16[c] of the Specific Relief Act is a personal bar and that the mandatory
requirement of readiness and willingness cannot be dispensed with merely
because the defendants have repudiated the contract or they were not in a
position to perform their part of the contract. Section 51 of the Contract Act
does not dispense with the proof of readiness of the plaintiff to perform his part
of the contract. In the instance case, the appellant/plaintiff has not let in any
32/35
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2026 04:25:25 pm )
A.S(MD)No.214 of 2017
evidence to show that he was ready with the money to complete the transaction
within the time stipulated in the Agreement Ex.A.3. Therefore, this Court
further holds that the plaintiff has not established his continuous readiness and
willingness to perform his part of the contract.
26.The next point is regarding refund of the advance amount. On perusal
of the plaint, no alternative relief for the refund of the advance amount was
sought by the plaintiff. The Hon’ble Supreme Court in K.R.Suresh’s case
reported in 2025 SCC Online SC 1014 clearly settled the proposition of law
that in the absence of a specific prayer for the refund of advance money, the
plaintiff is not entitled for refund of advance amount. In view of the above
settled position the plaintiff is not entitled for refund of advance amount.
The citations relied on by the respondent/defendant are squarely applicable to
the facts and circumstances of the case and the citations relied on by the
appellant/plaintiff are not applicable to the facts of the case.
27.From the above facts and circumstances conjoined with the evidence
oral and documentary adduced in this case, the trial Court correctly found that
the suit is barred by limitation and the plaintiff is not entitled to the relief of
33/35
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2026 04:25:25 pm )
A.S(MD)No.214 of 2017
specific performance. Hence, the finding of the trial Court need not be
interfered with by way of this appeal. All the points for consideration are
answered against the appellant/plaintiff. Thus, the appeal is liable to be
dismissed.
28.In the result, this appeal is dismissed. The judgment and decree,
dated 17.07.2017 made in O.S.No.10 of 2015 on the file of the learned
VI Additional District Judge, Madurai, is confirmed. No costs. Consequently,
the connected Miscellaneous Petition is closed.
02.02.2026
NCC : Yes / No
Internet : Yes / No
Index : Yes / No
VSD
To
1.The VI Additional District Court,
Madurai.
2.The Record Keeper,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
34/35
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2026 04:25:25 pm )
A.S(MD)No.214 of 2017
P.VADAMALAI, J.
VSD
Pre-Delivery Judgment made in
A.S(MD)No.214 of 2017
and
C.M.P(MD)No.12141 of 2017
02.02.2026
35/35
https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/03/2026 04:25:25 pm )