Thirugnanam vs S.B.Vijayaraghavan (Died) on 2 February, 2026

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    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
    
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                                                                                                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,

    SPONSORED

    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.

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    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

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    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,

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    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?

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    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

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    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

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    time 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.

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    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.

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    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.

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    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.

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    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.

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    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

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    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 any

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    money 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 to

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    discharge 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 the

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    Specific Relief Act, 1963.

    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

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    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 of

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    immovable 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,

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    as 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:

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    “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 to

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    be 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 perform

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    his 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.

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    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.”

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    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

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    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 person

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    through 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.”

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    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.

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    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.

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    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.

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    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.

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    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

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    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

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    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.

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    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

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