Madras High Court
A.H.Rahman vs P.Rokaiya Banu on 22 January, 2026
A.S(MD)No.111 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 25.10.2025
Pronounced on : 22.01.2026
CORAM
THE HONOURABLE MR.JUSTICE P.VADAMALAI
A.S(MD)No.111 of 2017
and
C.M.P(MD)No.6538 of 2017
A.H.Rahman,
S/o.K.S.All Bux,
D.No.86A, Melsaragu,
Madurai Road, Poochinaickenpatti,
Begambur Post, Dindigul Town
Now residing at No.2, 2A,
Opposite to S.P.T. Thirumana Mandapam,
S.P.Nagar, Batlagundu Road,
Dindigul. ... Appellant/Defendant
Vs.
1.P.Rokaiya Banu,
W/o.S.S.Peer Mohideen,
D.No.8/8, M.R.R.Nagar,
Batlagundu Road,
Begambur Post,
Dindigul Town.
2.M.Thangammal,
W/o.Late.Mohammed Yusuf,
D.No.8/8, M.R.R.Nagar,
Batlagundu Road,
Begambur Post,
Dindigul Town. ...Respondents/Plaintiffs
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A.S(MD)No.111 of 2017
PRAYER:- This Appeal Suit is filed under Section 96 and Order XLI
Rule 1 of CPC., against the judgment and decree, dated 30.11.2015 made in
O.S.No.48 of 2013 on the file of the Principal District Judge, Dindigul.
For Appellant : Mr.S.Muniyandi
For Respondents : Mr.Ajmal Khan,
Senior Counsel
for M/s.Ajmal Associates
JUDGMENT
This Appeal is directed against the judgment and decree, dated
30.11.2015 rendered in O.S.No.48 of 2013 on the file of the learned Principal
District Judge, Dindigul.
2.The appellant is the defendant in O.S.No.48 of 2013 on the file of the
Principal District Court, Dindigul. The respondents are the plaintiffs in that
suit. The respondents have filed the suit for specific performance.
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 plaintiffs (respondents herein):-
The suit property is house site in plot Nos.1 and 2 in Madurai Road,
5th Ward, Dindigul Town, Nagal Naickenpatti Sub D, Dindigul Re-D. The suit
property is self acquired property of the defendant by virtue of registered sale
deed, dated 30.09.1991. The defendant approached the plaintiffs and offered to
sell the suit property in order to settle his sundry debts, necessary expenses.
The plaintiffs have consented. The sale consideration was fixed at
Rs.19,25,000/- and they entered into sale agreement, dated 10.10.2012, fixing
time for concluding the sale within 4 months. On 10.10.2012, the plaintiffs
paid Rs.5,00,000/- towards advance and the defendant received the same.
Thereafter, on 21.11.2012, the defendant received another Rs.5,00,000/- from
the plaintiffs and made an endorsement to that effect in the sale agreement.
Though four months time was fixed, since the defendant received
Rs.5,00,000/- on 21.11.2012, the time was not the essence of contract.
The plaintiffs were ready to complete the sale by paying the balance sale
consideration of Rs.9,25,000 and they demanded the defendant several times to
execute the sale deed. The defendant has been evading to execute the sale
deed. So, the plaintiffs sent a legal notice, dated 18.04.2013 to the defendant.
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A.S(MD)No.111 of 2017The defendant received the same on 20.04.2013 and sent a reply notice on
29.04.2013 with false averments. The defendant stated that the plaintiffs have
not approached him to complete the sale within 4 months as agreed and he had
not demanded Rs.5,00,000/- on 21.11.2012. Time was not the essence of
contract between them as the defendant received Rs.5,00,000/- on 21.11.2012,
subsequent to the sale agreement. The defendant is trying to alienate the suit
property to third party. Hence, the plaintiffs filed the suit for specific
performance and permanent injunction against the defendant.
(b) The case of the defendant(appellant herein):-
The defendant and the plaintiffs entered into an unregistered sale
agreement, dated 10.10.2012 for sale of suit property for a sale consideration
of Rs.19,25,000/-. The defendant received Rs.5,00,000/- on 10.10.2012 and
also received another Rs.5,00,000/- on 21.11.2012. Because of payment on
21.11.2012, the averment that the time is not essence of contract is not correct.
In the sale agreement four months time was fixed to conclude the sale. But, the
plaintiffs were not willing and ready to pay the balance sale consideration of
Rs.9,25,000/- within the said four months. Hence, the unregistered sale
agreement itself was cancelled as per contents of the sale agreement.
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The defendant sent notice to the plaintiff on 18.04.2013 mentioning about the
cancellation of sale agreement. The plaintiff managed to return the same and
sent their legal notice stating that time is not essence of contract. The plaintiffs
obtained the signature of the defendant and made an endorsement as the
defendant received Rs.5,00,000/-. The plaintiffs are trying to create an
encumbrance by taking advantage of sale agreement. The plaintiffs were not
ready and willing to perform their part of contract. So, the plaintiffs are not
entitled for the discretionary relief of specific performance and also permanent
injunction.
5.The trial Court framed the following issues upon the pleadings of both
parties.
(1) Whether the agreement entered into between
the plaintiffs and the defendant are true?
(2) Whether the defendant has obtained a sum of
Rs.5,00,000/- and made endorsement on the back side
of the agreement?
(3) Whether the plaintiff is ready and willing to
perform his part of obligation?
(4) Whether the time is essence of the contract?
(5) To what other relief?
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Trial Court re-casted the issue as follows:
1. Whether the plaintiff is entitled for the relief of
specific performance as prayed for?
2. Whether the plaintiff is always ready and
willing to perform their part of obligation?
3. Whether the time is the essence of contract?
6.During trial, the 1st plaintiff examined himself as P.W.1 and examined
one Umar Farook as P.W.2 and Mohammed Siddiq as P.W.3. On the plaintiffs’
side five exhibits were marked as Ex.A.1 to Ex.A.5. The defendant examined
himself as D.W.1 and examined one Asaraf Ali as D.W.2 and marked Ex.B.1 to
Ex.B.4.
7.On appreciation of evidence and the submissions made on behalf of the
parties, the trial Court has decreed the suit in favour of the plaintiff by its
judgment and decree, dated 30.11.2015.
8.The judgment and decree of the trial Court, dated 30.11.2015, is under
challenge by way of this appeal.
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9.Both parties have argued their respective cases by relying on rulings of
the Hon’ble Supreme Court and High Courts. On hearing both sides and on
perusing the material records along with grounds of appeal, both side admitted
that they have entered into an unregistered sale agreement, dated 10.10.2012,
for selling the suit property for Rs.19,25,000/- and an advance of Rs.5,00,000/-
was paid, fixing four months time for payment of balance sale consideration
from the date of sale agreement. Further, a sum of Rs.5,00,000/- was paid
towards balance sale consideration on 21.11.2012. Thereafter, on exchange of
legal notices, the suit was filed for the relief of specific performance, which
was granted by the trial Court. The defendant moved this Court on appeal,
mainly agitating the following points.
10.The points for consideration in this appeal are:
1)Whether the plaintiffs were not ready and
willing to perform their part of contract within the fixed
four months time?
2) Whether the time is the essence of contract?
3)Whether the sale agreement was cancelled as
contended by the defendant?
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11.Point Nos.1 to 3:
The learned counsel for the appellant/defendant submitted that it is
admitted by both that the sale agreement was executed on 10.10.2012 for sale
of suit property i.e., house plots 1 and 2, for a total sale consideration of
Rs.19,25,000/- and an advance of Rs.5,00,000/- was paid. The sale agreement
is an unregistered one. As per the sale agreement, four months time was fixed
to complete the sale i.e., on or before 10.02.2013. Another sum of
Rs.5,00,000/- was paid on 21.11.2012. Thereafter, the plaintiffs have not paid
the balance amount and have not been ready for completing the contract, so the
sale agreement came to be cancelled. The defendant issued a legal notice, dated
18.04.2013 to the plaintiff cancelling the sale agreement, but the plaintiff
managed to return it. Since four months time was specifically mentioned in the
sale agreement, time is essence of contract. The plaintiffs were not ready and
willing to perform their part of contract within four months. As per Section
16(c) of the Specific Reliefs Act, the plaintiffs did not take steps for
completion of contract. The plaintiffs have not averred any pleading regarding
readiness and willingness. They have not stated that they were in possession of
the means to pay the balance sale consideration. Even the plaintiffs have not
sent legal notice Ex.A.3 within the said four months, they have sent it on
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A.S(MD)No.111 of 201718.04.2013 after the lapse of fixed four months time. The trial Court
misconstrued the facts of the case while appreciating the evidences. The trial
court failed to consider the facts that the plaintiffs were not ready and willing
to perform the contract when the time was specifically mentioned as four
months for completion of sale, so the time is the essence of contract. Therefore,
the plaintiffs are not entitled for discretionary relief of specific performance.
The trial Court has not considered all these aspects and simply decreed the suit,
so the finding of the trial Court may be set aside.
12.In support of his argument, the learned counsel for the defendant
relied on ruling of the Hon’ble Supreme Court reported in 2022 Live Law
(SC) 588 in the case of U.N.Krishnamurthy /v/ A.M.Krishnamurthy, in
which it is held in paragraph Nos.25 and 43 as follows:
“25. 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 position to9/32
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A.S(MD)No.111 of 2017raise funds in time to discharge his obligation
under the contract. If the plaintiff does not have
sufficient funds with him to discharge his obligation
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.
43. In Saradamani Kandappan (supra) this
Court reiterated that (i) while exercising discretion
in suits for specific performance, the Courts should
bear in mind that when the parties prescribed a
time for taking certain steps or for completion of
the transaction, that must have some significance
and therefore time/period prescribed cannot be
ignored. (ii) The Courts will apply greater scrutiny
and strictness when considering whether purchaser
was ready and willing to perform his part of the
contract and (iii) every suit for specific
performance need not be decreed merely because it
is filed within the period of limitation, by ignoring
time limits stipulated in the agreement.”10/32
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13.Per contra, the learned counsel for the plaintiffs/respondents has
argued that the defendant mainly contended about that time is essence of
contract and that the plaintiffs were not ready and willing to perform their part
of contract. Ex.A.1 sale agreement was executed between the plaintiffs and the
defendant on 10.10.2012 and on that date itself the defendant received
Rs.5,00,000/- out of the sale consideration of Rs.19,25,000/-. Though four
months time was fixed, within four months the defendant received another sum
of Rs.5,00,000/- on 21.11.2012. The four months was expired on 10.02.2013.
In between the plaintiffs have demanded the defendant several times to
complete the sale, but the defendant has evaded to execute the sale deed, so the
plaintiffs issued a legal notice on 18.04.2013. The plaintiffs and the defendant
are neighbours, so having knowledge of sending legal notice by the plaintiff,
the defendant has chosen to send notice on his part on the same date.
The defendant admitted that at the time of sending the legal notice by both
parties that the plaintiffs sent the legal notice first. The suit was filed on
15.05.2013 and the suit was decreed on 30.11.2015, granting one month time.
On direction, the plaintiffs deposited the balance sale consideration on
10.12.2015. So, the plaintiffs were ready and willing to perform their contract
and deposited the balance sale consideration into court. Since the defendant
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received another advance amount within the stipulated four months, the time is
not essence of contract. Moreover, the defendant has not showed his part of
willingness to execute the sale deed within four months. The plaintiffs have
clearly averred in the plaint about their readiness and willingness.
14.The learned counsel for the plaintiffs further argued that the
defendant admitted in his written statement regarding receipt of
Rs.10,00,000/- from the plaintiffs towards sale consideration. In the sale
agreement, there is no cancellation clause after expiry of four months.
Also, since there is no default clause in the sale agreement on expiry of
stipulated time, the time is not essence in this case. It is a settled position that
in respect of sale agreement for immovable property, time is not the essence of
contract. The suit is filed within the period of limitation. The Hon’ble Supreme
Court settled the principle that where the plaintiff brings a suit for specific
performance of contract for sale, the law insists upon a condition precedent to
the grant of decree for specific performance and once the agreement to sell is
admitted and is legal, the Court has to exercise its discretion in granting relief
of specific performance to the plaintiff. In this case, the defendant admitted the
execution of Ex.A.1 sale agreement and the receipt of Rs.10,00,000/- out of
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A.S(MD)No.111 of 2017
sale price of Rs.19,25,000/-. So, the plaintiffs are entitled to the discretionary
relief. The trial Court has correctly appreciated these aspects and granted
discretionary relief. The findings of the Court below need not be set aside.
Therefore, the plaintiffs have established their case for the relief of specific
performance and the appeal may be dismissed.
15.In support of his argument, the learned counsel for the plaintiffs
relied on the following citations:
(1) (2004) 8 Supreme Court Cases 689 in the case of ‘Swarnam
Ramachandran /v/ Aravacode Chakungal Jayapalan” held in paragraph
No.12 as follows:-
“12. That time is presumed not to be of
essence of the contract relating to immovable
property, but it is of essence in contracts of
reconveyance or renewal of lease. The onus to
plead and prove that time was the essence of the
contract is on the person alleging it, thus giving an
opportunity to the other side to adduce rebuttal
evidence that time was not of essence. That when
the plaintiff pleads that time was not of essence
and the defendant does not deny it by evidence, the
Court is bound to accept the plea of the plaintiff.
In cases where notice is given making time of the13/32
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A.S(MD)No.111 of 2017essence, it is duty of the Court to examine the real
intention of the party giving such notice by looking
at the facts and circumstances of each case. That a
vendor has no right to make time of the essence,
unless he is ready and willing to proceed to
completion and secondly, when the vendor
purports to make time of the essence, the
purchaser must be guilty of such gross default as
to entitle the vendor to rescind the contract.”(2) (2008) 4 Supreme Court Cases 464 in the case of “Balasaheb
Dayandeo Naick /v/ Appasaheb Dattartraya Pawar” the Hon’ble Supreme
Court held in paragraph Nos.10 and 11 as follows:
“10. In Chand Rani (Smt.) (dead) by LRs. Vs.
Kamal Rani (Smt.) (dead) by LRs, (1993) 1 SCC 519,
a Constitution Bench of this Court has held that in
the sale of immovable property, time is not the
essence of the contract. It is worthwhile to refer the
following conclusion: (SCC pp.525, 527 and 528,
paras 19, 21, 23)
19.It is a well-accepted principle that in the
case of sale of immovable property, time is never
regarded as the essence of the contract. In fact, there
is a presumption against time being the essence of
the contract. This principle is not in any way different14/32
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A.S(MD)No.111 of 2017from that obtainable in England. Under the law of
equity which governs the rights of the parties in the
case of specific performance of contract to sell real
estate, law looks not at the letter but at the substance
of the agreement. It has to be ascertained whether
under the terms of the contract the parties named a
specific time within which completion was to take
place, really and in substance it was intended that it
should be completed within a reasonable time.
An intention to make time the essence of the contract
must be expressed in unequivocal language.
21. In Govind Prasad Chaturvedi v. Hari Dutt
Shastri (1977) 2 SCC 539 following the above ruling
it was held at pages 543-544: (SCC para 5)
5. ….It is settled law that the fixation of the
period within which the contract has to be performed
does not make the stipulation as to time the essence
of the contract. When a contract relates to sale of
immovable property it will normally be presumed
that the time is not the essence of the contract. [Vide
Gomathinayagam Pillai v. Pallaniswami Nadar
(at p. 233).] It may also be mentioned that the
language used in the agreement is not such as to
indicate in unmistakable terms that the time is of the
essence of the contract. The intention to treat time as
the essence of the contract may be evidenced by
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circumstances which are sufficiently strong to
displace the normal presumption that in a contract of
sale of land stipulation as to time is not the essence
of the contract.
23.In Indira Kaur (Smt) v. Sheo Lal Kapoor
(1988) 2 SCC 488 in paragraph 6 it was held as
under: (SCC p 495)
6. …The law is well-settled that in transactions
of sale of immovable properties, time is not the
essence of the contract.
11. It is clear that in the case of sale of
immovable property, there is no presumption as to
time being the essence of the contract.
8. …Even where the parties have expressly
provided that time is the essence of the contract,
such a stipulation will have to be read along with
other provisions of the contract…..; for instance, if
the contract was to include clauses providing for
extension of time in certain contingencies or for
payment of fine or penalty for every day or week,
the work undertaken remains unfinished on the
expiry of the time provided in the contract, such
clauses would be construed as rendering ineffective
the express provision relating to the time being of
the essence of contract.
In the case on hand, though the parties agreed that
the sale deed is to be executed within six months, in
the last paragraph they made it clear that in the
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event of failure to execute the sale deed, the earnest
money will be forfeited. In such circumstances, the
above-mentioned clauses in the last three
paragraphs of the agreement of sale would render
ineffective the specific provision relating to the time
being the essence of contract.”
(3) (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 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. As the contract was
spread over a long tenure, the intention of the
parties to provide for extensions surely reinforces
the fact that timely performance was necessary.
The fact that such extensions were granted
indicates ONGC’s effort to uphold the integrity of
the contract instead of repudiating the same.”17/32
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A.S(MD)No.111 of 2017(4) (2019) 8 Supreme Court Cases 62 in the case of
“R.Lakshmikantham /v/ Devaraji) in paragraph No.11 it is held as follows:
“11. The High Court order is not correct in
stating that readiness and willingness cannot be
inferred because the letters dated 18.12.2002 and
19.12.2002 had not been sent to the defendant.
The High Court also erred in holding that despite
having the necessary funds, the plaintiff could not be
said to be ready and willing. In the aforesaid
circumstances, the High Court was also incorrect in
putting a short delay in filing the Suit against the
plaintiff to state that he was not ready and willing.
In India, it is well settled that the rule of equity that
exists in England, does not apply, and so long as a
Suit for specific performance is filed within the
period of limitation, delay cannot be put against the
plaintiff – See Mademsetty Satyanarayana v.
G. Yelloji Rao and others AIR 1965 Supreme Court
1405 (paragraph 7) which reads as under:
“7. Mr. Lakshmaiah cited a long catena of
English decisions to define the scope of a Court’s
discretion. Before referring to them, it is necessary
to know the fundamental difference between the two
systems – English and Indian-qua the relief of
specific performance. In England the relief of
specific performance pertains to the domain of18/32
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A.S(MD)No.111 of 2017equity; in India, to that of statutory law. In England
there is no period of limitation for instituting a suit
for the said relief and, therefore, mere delay – the
time lag depending upon circumstances – may itself
be sufficient to refuse the relief; but, in India mere
delay cannot be a ground for refusing the said relief,
for the statute prescribes the period of limitation.
If the suit is in time, delay is sanctioned by law; it is
beyond time, the suit will be dismissed as barred by
time; in either case, no question of equity arises.”(5) (2015) 1 Supreme Court Cases 597 in the case of “K.Prakash /v/
B.R.Sampath Kumar” it is held in paragraph No.16 as follows:
“16.The principle which can be enunciated is
that where the plaintiff brings a suit for specific
performance of contract for sale, the law insists
upon a condition precedent to the grant of decree
for specific performance that the plaintiff must show
his continued readiness and willingness to perform
his part of the contract in accordance with its terms
from the date of contract to the date of hearing.
Normally, when the trial court exercises its
discretion in one way or the other after appreciation
of entire evidence and materials on record, the
appellate court should not interfere unless it is19/32
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A.S(MD)No.111 of 2017established that the discretion has been exercised
perversely, arbitrarily or against judicial principles.
The appellate court should also not exercise its
discretion against the grant of specific performance
on extraneous considerations or sympathetic
considerations. It is true, as contemplated under
Section 20 of the Specific Relief Act, that a party is
not entitled to get a decree for specific performance
merely because it is lawful to do so. Nevertheless
once an agreement to sell is legal and validly proved
and further requirements for getting such a decree is
established then the Court has to exercise its
discretion in favour of granting relief for specific
performance.”
16.I have carefully considered the arguments advanced by the respective
counsels of both sides. I have also considered the rulings relied on either side,
along with material records of the case. As already stated supra, there is no
dispute that the plaintiffs and defendant are neighbours and they entered into a
sale agreement, dated 10.10.2012, which is an unregistered one, for the sale of
suit property, i.e., house plots bearing Nos.1 and 2 comprised in T.S.No.887 of
Ward No.5, Dindigul Town. Total sale consideration was fixed at
Rs.19,25,000/-. The defendant received advance of Rs.10,00,000/-,
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A.S(MD)No.111 of 2017i.e., Rs.5,00,000/- on 10.10.2012 and another Rs.5,00,000/- on 21.11.2012.
In the sale agreement, four months time was fixed for completion of sale.
However, the sale transaction has not been completed within four months.
There is no dispute in the above facts.
17.It is the definite case of the defendant that the sale agreement came to
be cancelled since the plaintiffs have not come forward to complete the sale
within the stipulated period of four months as mentioned in the sale agreement.
It is further argued that the plaintiffs were not ready and willing to perform
their part of the contract and also they were not in possession of balance sale
consideration. These contentions were vehemently denied by the plaintiffs.
18.As regards the plea of cancellation is concerned, a perusal of the
contents of Ex.A.1 – Sale Agreement, it shows as follows:
“moapy;fz;l gpshl; vz; 1 & 2 cs;s
kidaplj;ij ek;kpy; 1tJ egh; ek;kpy; 2 & 3
egh;fSf;F fpiuak; bra;J bfhLg;gjhf ngrp
Kot[ bra;J fpiua bjhifahf U:.1925000/ vd;Wk;
nkw;go fpiuak; ngrpajw;F Kd;gzkhf U:.500000/-
moapy; fz;l rhl;rpfs; Kd;ghf ek;kpy; 2 & 3
egh;fsplkpUe;J 1tJ egh; buhf;fk; bgw;Wf;
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A.S(MD)No.111 of 2017
bfhz;lhh;.
kPjp fpiua Jif U:.1425000/ j;ij ,JKjy; 4
(ehd;F) khj fhy bfLtpw;Fs; ek;kpy; 1tJ eghplk; 2
& 3 egh;fs; brYj;jp fpiuag; gj;jpuj;ij g{h;j;jp
bra;J gjpt[ bra;J bfhs;s ntz;oaJ vd;Wk;>
,dp moapy; fz;l brhj;ij bghUj;J ek;kpy;
1tJ egh; ahbjhU tpy;yq;fKk; bra;af;TlhJ vd;Wk;
ek;kpy; 2 & 3 egh;fs; fhy bfLtpw;Fs; kPjp fpiuaj;
Jifia brYj;jpat[ld; 1tJ egh; kPjp fpiuaj;
Jifia bgw;Wf; bfhz;L brhj;jpy; ahbjhU
tpy;yq;fkpd;wpa[k; tPz;fhyjhkjk; bra;jhy; chpa
ePjpkd;wj;jpy; kPjp fpiua Jifia brYj;jp
Mtzj;ij ePjpkd;wk; K:yk; g{h;j;jp bra;J bfhs;s
ek;kpy; 2 & 3 egh;fSf;F chpik cz;L vd;Wk;>
ek;kpy; 1tJ egh; fpiuak; bra;J bfhLf;f
jahuhf ,Ue;J ek;kpy; 2 & 3 egh;fs;
tPz;fhyjhkjk; bra;jhy; ek;kpy; 2 & 3 egh;fs;
bfhLj;j Kd; gzj;ij ek;kpy; 1tJ egh; bfhLf;Fk;
rkak; bgw;Wf; bfhz;L ,e;j cld;gof;ifapypUe;J
tpyfp bfhs;s ntz;oaJld; ek;kpy; 1tJ egh;
moapy; fz;l brhj;ij ntW xU egUf;F fpiuak;
bra;J bfhLg;gij ek;kpy; 2 & 3 egh;fs; vt;tpj
Ml;nrgiza[k; bra;af;TlhJ vd;Wk;…..”.
From the above recitals, it is clear that there is no default clause for
cancellation of sale agreement as rightly held by the trial Court. The defendant
has not sent any notice to the plaintiffs within the said four months, as he is
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ready to perform his part of the contract and is insisting the plaintiffs to pay the
balance sale consideration otherwise, he would cancel the sale agreement.
Even immediately after the expiry of four months, the defendant has not sent
such notice to the plaintiffs stating that he was in possession of the means to
repay the amount received by him as per the contents of the sale agreement.
When the plaintiffs intended to send notice on 18.04.2013, the defendant
stated that he also sent notice to the plaintiffs, cancelling the sale agreement on
the same date i.e., 18.04.2013.
19.It is pertinent to note here that the plaintiffs and defendant are
neighbours and the defendant admitted in his evidence that Ex.A.3 notice was
sent by the plaintiffs on 18.04.2013 at 12.50 p.m., whereas Ex.B.2 notice was
sent by the defendant on 18.04.2013 at 8.44 p.m. So, the argument put forth by
the plaintiffs that on coming to know about sending of notice by the plaintiffs,
the defendant tried to send his notice in hurried manner cannot be brushed
aside, as there is no reason. The Five Judges Bench of Hon’ble Supreme Court
in (1993) 1 Supreme Court Cases 519 held that “..If the contract relates to
the sale of immovable property, it would normally be presumed that time was
not of the essence of the contract.” The said principle has been reiterated by
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the Hon’ble Supreme Court in subsequent verdicts also. On perusal of citations
relied on by both sides, it is clear that “The law is well-settled that in
transactions of sale of immovable properties, time is not the essence of the
contract. And “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.” From the above facts and circumstances, the
case of the defendant that the sale agreement was cancelled as the plaintiffs did
not come to perform their part of the contract within fixed period of four
months is not accepted.
20.Next point is readiness and willingness. As rightly argued by the
defendant’s side, the plaintiffs have to prove their willingness and readiness to
be entitled to the relief of specific performance, as per Section 16 of the
Specific Relief Act, which dealt with by the Apex Court as follows:
“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) to24/32
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A.S(MD)No.111 of 2017clause (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 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.
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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.”
From the above, it is clear from the explanation that the plaintiffs must
aver performance or readiness and willingness to perform the contract
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according to its true construction.
21.On perusal of plaint, the plaintiffs clearly averred as follows:
“tHf;F brhj;J rk;ge;jkhf 10.10.2012k; njjpapy;
Vw;gl;l fpua cld;gof;if Mtzj;jpd;go tHf;F
brhj;Jf;F chpa fpua Jif U:.19>25>000/y;
thjpfsplkpUe;J gpujpthjpf;F Kd;gzkhf bry;yhd;
U:.10>00>000/ nghf ghf;fp fpua Jif U:.9>25>000/ I
gpujpthjpf;F brYj;jp thjpfs; fpiuak; Koj;Jf; bfhs;s
jahuha; ,Uf;fpwhh;fs;. vdnt> thjpfs; fpiuak;
Koj;Jf; bfhs;s Ready and Willing Mf ,Ue;J
tUfpwhh;fs;. Mdhy; gpujpthjp thjpfsplk; ghf;fp fpiua
Jifia bgw;Wf; bfhz;L tHf;F brhj;ijg; bghWj;J
fpiua gj;jpuk; vGjpg; gjpe;J bfhLf;fhky; tPz;
fhyjhkjk; bra;J tUfpwhh;…”On perusal of legal notice Ex.A.3, the plaintiffs stated about the above
said version in their legal notice. The plaintiffs categorically deposed in their
evidence as P.W.1. Moreover, the plaintiff has examined P.W.2 and P.W.3, who
have deposed supporting the case of the plaintiffs. The defendant has
examined D.W.2, who is alleged to be witness to the sale agreement has
deposed that “fpiua xg;ge;jj;jpy; ehd; rhl;rp ifbaGj;J nghltpy;iy.
fpiua xg;ge;jj;jpy; vd;d vd;d vGjg;gl;Ls;sJ vd goj;Jg;
ghh;f;ftpy;iy..” So, the evidence of D.W.2 need not be considered as it has no
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A.S(MD)No.111 of 2017weight. Therefore, the plaintiffs have clearly established the ingredients of
Section 16 of the Act. The defendant admitted that he has received
Rs.5,00,000/- on the date of sale agreement on 10.10.2012 and has also
received Rs.5,00,000/- on 21.11.2012. If it is so, in case the plaintiffs were not
willing to purchase, they had no reason to pay further amount. Total sale
consideration is Rs.19,25,000/-. The defendant received more than 50% of that
amount. It is settled position in (2017) 4 Supreme Court Cases 654
“A.Kanthamaniu /v/ Nasreen Ahmed” case “it is not necessary for the
plaintiff to produce the money or vouch a concluded scheme for financing the
transaction to prove his readiness and willingness, muchless purchaser need
not prove possession of sufficient money for financing transaction during
stipulated period. In this case, the defendant admitted the execution of sale
agreement and also receipt of advance of substantial amount.
22.The senior Judge of this Court held in a case in S.A.No.565 of 2015
reported in 2022 (4) CTC 649 following the judgment of the Hon’ble Supreme
Court in P.Ramasubbamma v. V.Vijayalakshmi & Others [Civil Appeal No.
2095 of 2022, dated 11.04.2022].
”20. Once the execution of the agreement of
sale and the receipt of the substantial amount
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towards the sale consideration is established,
there is nothing more to be proved by the
agreement holder to establish his readiness and
willingness to perform his part of the contract.
The finding of the lower Appellate Court in this
regard does not suffer from any perversity and it
does not require the interference of this Court.
This Court holds that the plaintiff had established
the execution of the sale agreement and also the
payment of substantial amount towards sale
consideration and also his readiness and
willingness to perform his part of the contract.
Therefore, the natural consequence would be that
the plaintiff will be entitled for the relief of
specific performance. The substantial question of
law framed by this Court is answered
accordingly.”
Therefore, from the above facts and circumstances, the plaintiffs have
established their readiness and willingness to perform their part of the contract
and the trial Court has correctly held the same in favour of the plaintiffs.
The citations relied on by the appellant/defendant side are not applicable to the
facts and circumstances of this case, whereas the rulings relied on by the
respondents/plaintiffs side are applicable to the facts of this case.
Therefore, this Court is of the considered view that time is not the essence of
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contract in the case on hand is concerned and the trial Court has rightly held
that there is no implication that time is the essence of the contract in this case.
23.The trial Court has correctly appreciated the evidence adduced on
both sides and after considering the arguments and citations relied on by both,
the trial Court correctly held that the respondents/plaintiffs have proved their
case and they are entitled to the discretionary relief of specific performance.
Hence, the points are answered against the appellant/defendant. For all these
reasons, the judgment and decree of the trial Court is sustainable in law and the
same need not be interfered with by way of this appeal. Thus, the appeal fails.
24.In the result, this Appeal Suit is dismissed. The judgment and decree,
dated 30.11.2015 rendered in O.S.No.48 of 2013 on the file of the learned
Principal District Judge, Dindigul, is confirmed. No costs. Consequently, the
connected Miscellaneous Petition is closed.
22.01.2026
NCC : Yes / No
Internet : Yes / No
Index : Yes / No
VSD
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To
1.The Principal District Judge,
Dindigul.
2.The Record Keeper,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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A.S(MD)No.111 of 2017
P.VADAMALAI, J.
VSD
Pre-Delivery Judgment made in
A.S(MD)No.111 of 2017
and
C.M.P(MD)No.6538 of 2017
22.01.2026
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