Madras High Court
T.Subramanian vs N.K.Rajan (Died) on 23 March, 2026
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
SA (MD)No.96 of 2007
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 16.03.2026
Pronounced on : 23.03.2026
CORAM:
THE HONOURABLE Mr. JUSTICE N.ANAND VENKATESH
SA (MD)No.96 of 2007
T.Subramanian .. Appellant/Defendant
Vs.
1.N.K.Rajan (died) .. Respondent/Plaintiff
2.R.Maragatha Valli
3.R.Divya
4.R.Deepauk
5.K.Kamala .. Respondents
(R2 to R4 were brought on record as LRs of the sole respondent
vide order dated 19.07.2023 in MP No.1 of 2014)
(R5 was brought on record as LR of the deceased respondent vide
order dated 09.06.2025 in CMP NO.14505/2023)
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SA (MD)No.96 of 2007
Appeal filed under Section 100 of the Code of Civil Procedure
against the judgment and decree dated 10.04.2006 in AS No.29/2005 on the
file of the Principal District Judge, Madurai, reversing the judgment and
decree dated 02.11.2004 passed in OS No.298/1996 on the file of the I
Additional Subordinate Judge, Madurai.
For Appellant : Mr.E.T.Rajendran
For Respondents : Mr.S.Parthasarathy for R2 to R4
JUDGMENT
The defendant is the appellant in the second appeal.
2. The second appeal has been filed against the judgment and decree
passed by the learned Principal District Judge, Madurai in AS NO.29/2005
dated 10.04.2006 reversing the judgment and decree dated 02.11.2004 made
in OS No.298/1996 on the file of the I Additional Sub Court, Madurai.
3. The respondent/plaintiff filed the suit on the ground that he entered
into an agreement of sale dated 16.02.1993 with the appellant wherein the
appellant agreed to sell the suit property for a total consideration of Rs.2
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SA (MD)No.96 of 2007
lakhs and that on the date of the agreement, a sum of Rs.1 lakh was paid as
advance in cash and a further sum of Rs.90,000/- was also paid on various
dates. Thus, only a balance sum of Rs.10,000/- was payable and the
respondent was requesting the appellant to receive the balance consideration
and to execute the sale deed and since the appellant was not coming forward
to execute the sale deed, the respondent filed the suit seeking for the relief
of specific performance.
4. The appellant as the defendant filed a written statement stating that
the respondent did not pay the advance amount of Rs.1 lakh/- and what was
paid was only a sum of Rs.90,000/- towards advance. Apart from that there
was an order of attachment against the property under mortgage deed and
therefore, the property could not have been sold in favour of the respondent
till the attachment was raised and the respondent was expected to discharge
the debt and in the absence of the same, the respondent is not entitled for the
relief of specific performance. Accordingly, the appellant sought for
dismissal of the suit.
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5. The trial Court, on considering the facts and circumstances of the
case and on appreciation of evidence, came to a conclusion that no sale
consideration passed on and therefore, the agreement itself is inoperative
and that the agreement was of the year 1993, whereas, the suit was filed
only in the year 1996 and there was no readiness and willingness on the part
of the respondent and hence, the suit was dismissed by judgment and decree
dated 02.11.2004. Aggrieved by the same, the respondent/plaintiff filed the
appeal before the Principal District Court, Madurai in AS No.29/2005 and
the appellate Court reversed the judgment and decree of the trial Court by
judgment and decree dated 10.04.2006. Aggrieved by the same, the present
second appeal has been filed before this court.
6. When the second appeal was admitted, this Court framed the
following substantial questions of law :
“(1) Whether the decree and judgment of the lower
appellate Court is liable to be set aside as Ex.A1, the alleged
sale agreement is void, in the light of the findings of the trial
Court that Ex.A1 is without passing of consideration? and
(2) Whether the decree and judgment of the lower4/17
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SA (MD)No.96 of 2007appellate Court is liable to be set aside in the absence of
conveying the readiness and willingness on the part of the
plaintiff to the defendant to pay the balance amount as
mentioned in Ex.A1 and get the sale deed executed and
registered within the stipulated time mentioned in Ex.A1?”
7. This Court considered the submissions made on either side and the
materials available on record and also carefully went through the judgment
passed by both the courts below.
8. The first question of law pertains to the passing of the
consideration. Ex.A1, which is the sale agreement, assumes lot of
significance. A careful reading of the agreement shows that as on the date
of entering into an agreement, a sum of Rs.1 lakh/- was paid as advance in
cash. The trial Court disregarded this specific clause in the agreement
based on the evidence of PW2, who stated that the sum of Rs.1 lakh/- was
not paid to the defendant. Therefore, the trial Court held that the agreement
is not supported by consideration.
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9. The appellate Court, while dealing with this issue, apart from
taking note of the specific clause in the agreement of sale, also took into
consideration Ex.A5, which is the plaint filed by the appellant in another
suit in OS No.1576/1993, wherein, the appellant has acknowledged the fact
that he has received a sum of Rs.1,90,000/- as advance. In the light of this
specific admission made by the appellant in the plaint, the appellate Court
came to the correct conclusion that a sum of Rs.1,90,000/- was paid by the
respondent to the appellant and what remained to be paid was only the
balance sum of Rs.10,000/- and therefore, the agreement is supported by
valid consideration. The appellate Court disregarded the evidence of PW2
on the ground that PW2 was an interested witness, who is the friend of the
appellant and his evidence cannot outweigh the specific clause in the sale
agreement and the admission made by the appellant, while filing a suit in
OS No.1576/1993. In view of the same, this Court does not find any
illegality in the finding rendered by the lower appellate Court. Accordingly,
the first substantial question of law is answered against the appellant.
10. The second issue pertains to readiness and willingness on the part
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SA (MD)No.96 of 2007
of the respondent/plaintiff. The trial Court rendered a finding that the
agreement was of the year 1993 and the suit was filed only in the year 1996
and the time was the essence of the contract and therefore the
respondent/plaintiff did not show any readiness and willingness to pay the
balance consideration of Rs.10,000/- and get the sale deed executed in his
favour.
11. The lower appellate Court rendered a finding to the effect that
only a balance sum of Rs.10,000/- was payable by the respondent and when
the suit was filed, this amount was also deposited in the Court and the suit
has been filed well within the period of limitation and therefore, the
respondent was ready and willing to perform his part of the contract.
12. It is not in dispute that the respondent/plaintiff was originally a
tenant in the property and he wanted to purchase the property, which
resulted in entering into an agreement of sale, while he continued in
possession. Out of the total sale consideration of Rs.2 lakhs, a sum of Rs.
1,90,000/- had been paid and only the balance amount of Rs.10,000/- had to
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SA (MD)No.96 of 2007
be paid. The specific case of the plaintiff is that he was ready and willing to
pay this balance amount and the appellant was not coming forward to
execute the sale deed. At this juncture, the stand taken by the appellant in
the written statement assumes significance. He has stated that the defendant
was not in a position to execute the sale deed since the property was already
attached in another suit and the attachment was also made absolute and till
the debt is discharged by the defendant, the sale of the property cannot be
made in favour of the plaintiff.
13. It is also relevant to take note of Ex.A5, which is the suit filed by
the appellant for bare injunction against one Karunakaran and the plaintiff
in the present case. In the plaint, the appellant has stated that he is obliged
to execute the sale deed within three years from the date of sale agreement
and he was not able to execute the sale deed since the property had already
been attached in another suit in OS NO.1365/1992. One of the relief that
has been sought for in the suit is to restrain the respondent/plaintiff from in
any manner compelling the appellant to execute the sale deed. Thus, the
appellant/defendant was very clear in his stand that he was not in a position
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to execute the sale deed in view of the attachment order passed against the
property and the appellant/defendant himself had filed a suit to restrain the
plaintiff from insisting for the execution of the sale deed. This suit was
withdrawn by the appellant somewhere in the year 1994.
14. It is true that readiness and willingness is a sine qua non for
decreeing the suit for specific performance. In the case in hand, the plaintiff
was in possession of the property and out of the total sum of Rs.2 lakhs,
Rs.1,90,000/- had already been paid and the plaintiff was willing to pay the
balance amount of Rs.10,000/- but the appellant/defendant took a stand that
he is not in a position to execute the sale deed due to an order of attachment
passed in a different suit. The pleadings of the appellant/defendant in OS
No.1576/1993 (Ex.A5) clearly brings out the fact that even after receiving a
sum of Rs.10,000/-, the appellant will not in a position to execute the sale
deed. This is the stand that was taken by the appellant consistently. In a
case of this nature, there is no question of denying the relief of specific
performance on the ground of readiness and willingness. Readiness
generally relates to the financial position of the purchaser and willingness
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SA (MD)No.96 of 2007
relates to the frame of mind of the purchaser. Insofar as his readiness is
concerned, the financial position of the plaintiff was not in question since
out of Rs.2 lakhs, a sum of Rs.1,90,000/- had already been paid and the
balance amount of Rs.10,000/- had also been deposited before the trial
Court on the date of filing of the suit. Insofar as the willingness is
concerned, the plaintiff was already in possession of the property in his
capacity as a tenant and having paid almost the entire consideration except a
sum of Rs.10,000/-, the willingness on the part of the plaintiff is not found
wanting. Useful reference can be made to the judgment in Nagarajan v.
Selvi @ Sellammal (died) and others reported in 2024 (2) MLJ 709 and the
relevant portions are extracted hereunder:
“29. “Readiness and willingness” is not defined under the statute
viz., Specific Relief Act. However, law is now well settled on this aspect
of “readiness and willingness”. The plaintiff, who approaches the Court,
seeking specific performance, should show that he has always been ready
and willing to perform his part of the contract i,e., unfulfilled obligations
under the agreement of sale, at all relevant points of time, In this case,
admittedly, according to the plaintiff, nothing further needs to be done on
his part. He has not only paid the entire sale consideration, but he has
also been put in possession of the suit property. Thus, the onus is only on
the defendants to execute and register the sale deed in favour of the10/17
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SA (MD)No.96 of 2007plaintiff. Therefore, viewed from this angle, the mandate of Section 16(c)
of Specific Relief Act, 1963 may not strictly apply to the plaintiff.
30. In fact, I have already discussed in detail that the extension
agreement is true and the suit has been filed in time and further, the plea
raised by the defendants that the plaintiff forcibly took possession cannot
be true and in all probabilities, the plaintiff was put in possession only by
the original vendor, M.Loganathan. The admissions of D.W.1/the third
defendant also does not advance the cause of the defence set up in the
pre- suit notice and also continued into the written statement before the
trial Court. Thus, it is not a case, where the delay of 13 years can be put
against the plaintiff to deny the relief of specific performance.
31. Learned counsel for the appellant has relied upon the
judgment of the Hon’ble Supreme Court in the case of Munishamappa vs
M.Rama Reddy and Others reported in 2023 6 MLJ 553, where, the
Hon’ble Supreme Court has held that when the owners have received the
full consideration and have also transferred possession of the property in
question, to the plaintiff, then, the other defences would not be available
to them and that even the issue of readiness and willingness, on the part
of the appellant, would not be relevant. This is the position because
under section the Specific Relief Act, 1963, “readiness and willingness”
is limited the unfulfilled obligations cast upon the plaintiff under the
agreement of sale. Here, under Ex.A.2, the entire balance sale
consideration has been paid and the plaintiff has been put in possession
of the suit property. The admission of the third defendant, in cross11/17
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SA (MD)No.96 of 2007examination, would virtually tilt the balance of the case in favour of the
plaintiff.
32. In John Thomas and Ors vs Joseph Thomas and Ors reported
in 2000 SCC Online Ker 96, the Division Bench of the Kerala High
Court followed the ratio laid down in Erlanger vs Sombrero Phosphate
Co (1878) 3 App. Cas. 1218 that where the delay in payment has been
acquiesced by the vendor of immovable property and no notice
terminating the contract has been given, the court will decree specific
performance, notwithstanding a stipulation to the effect that time is the
essence of the contract, as long as the circumstances are in a manner or
such as to excuse the failure of the plaintiff to compete the transaction. In
Erlanger’s case, ‘delay’ was discussed by the Hon’ble Court and it was
held that the delay has two aspects and the acquiescence is also a factor
that has to be considered by the Court. Though the learned counsel for
the respondents Mr.S.Chandrasekaran, would submit that the plaintiff
had admitted inability to pay the balance sale consideration, while
entering into Ex.A.2 supplementary agreement and therefore, ‘readiness
and willingness’ on the part of the plaintiff has to be negatived, however,
applying the ratio laid down by the Hon’ble Division Bench of Kerala
High Court, mere fact that the deceased M.Loganathan entered into a
supplementary agreement, extending time for payment after receiving the
entire balance sale consideration, would clearly amount to acquiescence
on his part. In fact, I find that there is no delay on the part of the plaintiff
in payment of the balance consideration also, for the simple reason that
under Ex.A.1 agreement, one year time was fixed, which ended only on
03.12.1998. However, as early as on 10.11.1998, the balance sale12/17
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SA (MD)No.96 of 2007consideration of Rs.50,000/- has been paid and the plaintiff was also put
in physical possession of his property, which is evidenced from the terms
of the supplementary agreement. Thus, even in the present case, there is
absolutely no delay on the part of the plaintiff and even otherwise, by
extending time by executing Ex.A.2 supplementary agreement, time has
been extended sine-die and in such circumstances, I am unable to
countenance the argument of the learned counsel for the respondents that
the conduct of the plaintiff should be viewed from Ex.A.2 covenants.
33. The learned counsel for the appellant, Mr.Sharath Chandran
would also place reliance on the decision of this Court in Chokkammal
and 3 others vs K.Balaj reported in 2008 5 CTC 690, where, this Court
falling back on Section 10 of the Specific Relief Act, dealing with entry
into possession of the property, when claimed to be unlawful and whether
the relief of Specific Performance could be denied, held, when the entire
sale consideration had also been paid, it was not possible to attribute
grave misconduct on the part of the plaintiff to deny him the relief of
specific performance and in fact, further held that it would be inequitable
to deny the relief of specific performance in view of Section 10 of Specific
Relief Act.
34. The facts of the present case are almost identical to the facts
of the case before this Court in Chokkammal‘s case. Further, in the
present case, as I have already discussed, though the defendants have
claimed that the forcibly entered into the property even as early as on
11.05.2011, their reply notice in Ex.A.5, the defendants have chosen to
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SA (MD)No.96 of 2007recovering the property that has been forcibly occupied by the plaintiff.
Therefore, the ratio laid down by this Court in Chokkammal‘s case would
squarely apply to the facts of the present case.
35. Learned counsel for the appellant, Mr.Sharath Chandran
would also place reliance on the decision of the Hon’ble Supreme Court
in the case of K.Prakash vs B.R.Sampath Kumar reported in (2015) 1
SCC 597, where the Hon’ble Supreme Court held that escalation and
value of the property is not a ground to deny the relief of specific
performance.
36. Per contra, Mr.S.Chandrasekaran, learned counsel for the
respondents would place reliance on the decision of the Hon’ble Supreme
Court in the case of Nazir Mohamed vs J. Kamala and Others reported
(2020) 19 SCC 57 and in the case of Desh Raj and Others vs Rohtash
Singh reported in (2023) 3 SCC 714, seeking to dismiss the Second
Appeal, warranting no interference in the concurrent findings.
37. In Nazir Mohammed‘s case, [(2020) 19 SCC 57], the Hon’ble
Supreme Court, in fact, summarised the principles regarding interference
by the High Court under Section 100 of Code of Civil Procedure and
held that though the general rule is that the High Court would not
interfere with concurrent findings, however, the said Rule is not an
absolute Rule. The exceptions that have been set out by the Hon’ble
Supreme Court are (i) where the courts below have ignored material
evidence or acted on no evidence (ii) the courts had drawn wrong
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inferences from proved facts by applying law erroneously; and (iii) courts
have wrongly cast the burden of proof.”
15. In the light of the above discussions, this Court finds that the
issue of readiness and willingness becomes insignificant in the light of the
fact that the plaintiff continued to be in possession of the property, the
plaintiff had paid the sum of Rs.1,90,000/- out of the total sale consideration
of Rs.2 lakhs, the defendant was expressing his inability to execute the sale
deed due to an order of attachment of the property and the balance sum of
Rs.10,000/- was also deposited at the time of filing the suit. Therefore, the
relief sought for by the plaintiff cannot be negated on the issue of readiness
and willingness. The second substantial question of law is answered
accordingly.
16. In the light of answering the substantial questions of law framed
by this Court, this Court does not find any ground to interfere with the
judgment and decree passed by the Principal District Judge, Madurai, in AS
No.29 of 2005 dated 10.04.2006.
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17. In the result, the judgment and decree of the lower appellate Court
stands confirmed and the second appeal stands dismissed. No costs.
23.03.2026
NCC : Yes/No
Index : Yes/No
RR
To
1.The Principal District Judge,
Madurai.
2.The I Additional Subordinate Judge, Madurai.
3.The Record Keeper,
Vernacular Records Section,
Madurai Bench of Madras High Court,
Madurai.
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SA (MD)No.96 of 2007
N.ANAND VENKATESH, J
RR
Judgment made in
S A. (MD)No.96 of 2007
23.03.2026
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