AS/280/2021 of A.SIVAKUMAR Vs M.LOGANAYAKI
A.S. No. 280 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 05.11.2025
PRONOUNCED ON : 01.04.2026
CORAM:
THE HONOURABLE DR. JUSTICE A.D. MARIA CLETE
A.S. No. 280 of 2021
A.Sivakumar,
S/o.Arunachalam,
No.69, Sathy Road,
Ganapathy, Coimbatore. ...Appellant
Versus
1.M.Loganayaki,
W/o.A.V.Parthasarath,
No.A/9, Pricacolony,
Kaundamapalayam,
Coimbatore.
2.D.Shanthamani,
W/o.Devaraj,
No.70, Sathy Road,
Ganapathy, Coimbatore.
3.Radhamani,
W/o.P.Sivasamy,
Residing at No.7/55, Thekku Thottam,
Thennammanallur,
Coimbatore. ...Respondents
PRAYER:
Appeal Suit filed under Section 96 of the Code of Civil Procedure,
1908 against the Judgment and decree dated 20.04.2021 made in
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O.S.No.116 of 2007 on the file of the III Additional District Judge,
Coimbatore.
For Appellant : Mr.K.Balamurali, Mr.Shivakumar, Advocates.
For Respondents : Mr.Chenthoori Pugazendi for
Mr.K.Balu for R1.
R2 & R3 – Served - No appearance.
J U D G M E N T
The present appeal has been preferred by the first defendant
assailing the judgment and decree dated 20.04.2021 passed in O.S.
No.116 of 2007 on the file of the learned III Additional District and
Sessions Judge, Coimbatore, by which the suit instituted by the plaintiff
for specific performance came to be decreed.
2. For the sake of convenience, the parties are referred to as they
were arrayed before the Trial Court.
3. Case of the Plaintiff: The plaintiff pleaded that the suit property
originally belonged to one C. Muthusamy Gounder and, upon his demise,
devolved on the first defendant under a Will dated 10.01.2001. It was
further pleaded that the first defendant entered into a sale agree ment
dated 09.10.2006 (Ex.A2), agreeing to sell the suit property for a total
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sale consideration of Rs.10,15,000/-, and received a sum of Rs.6,00,000/-
by way of advance.
4. According to the plaintiff, although a period of three months
was stipulated under the agreement, she had, at all times, been re ady and
willing to perform her part of the contract. It was her further case that the
first defendant failed to produce the original title deeds and furnish the
correct measurements of the suit property, and thereafter issued a notice
dated 27.01.2007 cancelling the agreement and forfeiting the advance
amount, which was suitably refuted by the plaintiff through a reply
notice. The plaintiff also asserted that she was present at the off ice of the
Sub-Registrar on 15.02.2007 with the balance sale consideration, but the
first defendant did not turn up. Hence, the suit came to be laid for specific
performance and permanent injunction.
5. Defence of the First Defendant: The first defendant, while
admitting the execution of Ex.A2, contended that time was the essence of
the contract. It was his specific stand that, since the plaintif f had failed to
pay the balance sale consideration within the stipulated period of thr ee
months, the agreement was validly terminated by notice dated 27.01.2007
and the advance amount stood forfeited.
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6. In the additional written statement, the first defendant fur ther
pleaded that there had been an earlier agreement dated 01.12.2005
(Ex.B1) between himself and the plaintiff’s husband, pursuant to which a
sum of Rs.5,00,000/- had been paid. According to him, since the
plaintiff’s husband did not complete the said transaction, the present
agreement (Ex.A2) came to be executed by carrying forward the adva nce
amount paid under the earlier agreement. It was therefore contended that
Ex.A2 was an independent agreement containing a strict stipulation as to
time.
7. Findings of the Trial Court: The Trial Court tried O.S. No.116
of 2007 along with O.S. No.14 of 2013 filed by the second defendant
challenging the will dated 10.01.2001. By a common judgment, the Trial
Court partly decreed O.S. No.116 of 2007 and dismissed O.S. No.14 of
2013. In O.S. No.116 of 2007, the Trial Court held that the sale
agreement dated 09.10.2006 was genuine and enforceable, and that the
plaintiff had established her readiness and willingness to perform her part
of the contract, and accordingly decreed the suit for specific performance.
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8. Aggrieved by the judgment and decree in O.S. No.116 of 2007,
the first defendant has preferred the present appeal. No appeal has been
filed against the dismissal of O.S. No.14 of 2013.
9. Grounds of Appeal: The appellant/first defendant assailed the
judgment and decree of the Trial Court contending that Ex.A2 was an
independent agreement and not a mere continuation of Ex.B1; that time
was the essence of the contract; that the plaintiff had failed t o establish
continuous readiness and willingness, as mandated under Section 16(c) of
the Specific Relief Act; that the agreement had already been validly
terminated by notice dated 27.01.2007; and that, in the absence of a
prayer seeking declaration that such termination was invalid, the sui t for
specific performance was not maintainable.
10. The learned counsel for the appellant/1st defendant contended
that the Trial Court erred in granting specific performance by
misconstruing the documentary evidence. It was argued that the
agreement dated 09.10.2006 (Ex.A2) is an independent contract and not a
continuation of the earlier agreement dated 01.12.2005 (Ex.B1), the
earlier agreement has been suppressed by the plaintiff, and that Ex.A2
contains no recital indicating any extension or renewal of Ex.B1. It was
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further contended that Ex.A2 prescribed a period of three months for
completion and provided for forfeiture of advance and cancellation upon
default, thereby making time the essence of the contract. The plaint iff
having failed to pay the balance consideration within the stipulated
period, the agreement stood validly cancelled, as evidenced by the noti ce
dated 27.01.2007. The finding of the Trial Court that unilateral
cancellation without notice is invalid was assailed.
11. The learned counsel also submitted that the plaintiff failed t o
establish continuous readiness and willingness as required under Section
16(c) of the Specific Relief Act, inasmuch as no evidence of fina ncial
capacity during the contractual period was produced, and subsequent
transactions cannot cure such defect. The Trial Court erred in re lying
upon Ex.A9, a subsequent sale deed, to infer the plaintiff’s financial
capacity, thereby impermissibly stepping into the shoes of the plaintiff . It
was further contended that the Trial Court erred in holding that the reason
for fixation of time was not stated and in concluding that the defe ndant
was not ready to perform. The findings regarding alleged obligations of
the 1st defendant to clear, measure the property or produce original ti tle
deeds were stated to be unsupported by Ex.A2. It was also pointed out
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that PW3, in his deposition, admitted that he had inspected the tit le deeds
and measured the property.
12. In support of the said submissions, reliance was placed upon
Citadel Fine Pharmaceuticals v. Ramaniyam Real Estates Pvt. Ltd .,
Kamal Kumar v. Premlata Joshi , Sukhwinder Singh v. Jagroop Singh ,
C.S. Venkatesh v. A.S.C. Murthy , R. Shama Naik v. G. Srinivasaiah ,
Shenbagam v. K.K. Rathinavel, U.N. Krishnamurthy v. A.M.
Krishnamurthy, and Kolli Sathyanarayana v. Valuripalli Kesava Rao
Chowdary to emphasize that time is essence of the contract, time
stipulations may be binding, and specific performance cannot be granted
absent proof of readiness and willingness.
13.The learned counsel for the respondent/plaintiff contended that
the Trial Court had rightly decreed the suit for specific perform ance,
since the 1st defendant had admittedly agreed to sell the suit proper ty for
a total consideration of Rs.10,15,000/- and had received a substantial
advance of Rs.6,00,000/-. According to her, though there had been an
earlier agreement dated 01.12.2005 in favour of her husband and the
payments made thereunder were given credit in the subsequent agreement
dated 09.10.2006 executed in her favour, the transaction could not be
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completed only because of the delay attributable to the 1st defendant,
particularly his failure to clean and measure the property as agreed.
14.She further submitted that the notice dated 27.01.2007 was false
and was issued only as an attempt to wriggle out of the contract a fter the
value of the property had increased, whereas she had, throughout, been
ready and willing to pay the balance sale consideration of Rs.4,15,000/-
and complete the sale.
15.It was also contended that the Trial Court had properly
appreciated the evidence and had rightly held that time was not the
essence of the contract, particularly in the light of the earlier course of
dealings between the parties and the endorsement extending time.
According to the respondent, her readiness and willingness stood
established by the reply notice, telegram, oral evidence and mater ials
relating to her financial capacity, and therefore the decree f or specific
performance called for no interference.
16.In support of the said submissions, reliance was placed on M.
Michaelsamy(deceased) v. John Kennedy Pradeep , I.S. Sikandar v. K.
Subramani, and Govind Prasad Chaturvedi v. Hari Dutt Shastri for the
proposition that, in contracts relating to immovable property, whi le
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examining the question of time being essence of the contract , court
should look into the surrounding circumstances in order to decide the
intention of the parties at the time of agreement.
17. The following points arise for consideration:
(i)Whether the suit for specific performance without challenging the
termination of Ex. A2 is maintainable?
(ii)Whether the plaintiff has proved continuous readiness and
willingness?
(iii)Whether the plaintiff is entitled to the discretionary re lief of specific
performance?
(iv)Whether the judgment and decree of the Trial Court require
interference?
Point No. 1:
18. Nature of Ex.A2 and Suppression of the Earlier Transaction:
A significant aspect emerging from the evidence is the existence of the
earlier agreement, Ex.B1 dated 01.12.2005, entered into between the fi rst
defendant and the plaintiff’s husband, under which a sum of
Rs.5,00,000/- had already been paid. Though the plaint has been framed
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as if Ex.A2 was the first and only agreement between the partie s, it has
come to light in cross-examination that the advance paid under Ex.B1
was carried forward and appropriated as part of the advance under Ex.A2.
Thus, out of the total sum of Rs.6,00,000/- shown as advance under
Ex.A2, only Rs.1,00,000/- was in fact paid on the date of Ex.A2, while
the remaining amount Rs.5,15,000/- pertains to the earlier transaction.
19. This material fact has not been disclosed in the plaint. In the
absence of necessary pleadings, the plaintiff cannot be permitted to r ely
on oral evidence to portray Ex.A2 as a continuation of Ex.B1. It is w ell
settled that no amount of evidence can be looked into in the absence of
pleadings.
20.Effect of Termination — Maintainability of the Suit:
Admittedly, the first defendant terminated the agreement by issuing
notice dated 27.01.2007 (Ex.B2). Though the plaintiff sent a reply
thereto, no declaratory relief has been sought to challenge the vali dity of
such termination. The Hon’ble Supreme Court, in I.S. Sikandar v. K.
Subramani, (2013) 15 SCC 27 , has held that where an agreement has
been terminated, a suit for specific performance, in the absence of a
prayer for declaration that the termination is invalid, is not ma intainable.
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In the light of the said principle, the present suit, being one for bar e
specific performance, is legally not maintainable. Thus, Point no.1 is
answered in favour of 1st defendant / appellant.
Point No. 2:
21. Whether Time Was the Essence of the Contract: Ex.A2
contains a specific stipulation fixing a period of three months for
completion of the sale transaction. The backdrop of the earlier fai led
transaction under Ex.B1 lends considerable significance to such
stipulation and indicates that the parties intended to prescribe a definite
and binding time frame under Ex.A2. The said period expired on
09.01.2007, and the first defendant thereafter issued a notice dated
27.01.2007 terminating the agreement. Till the issuance of such
termination notice, there is no convincing material to show that t he
plaintiff had taken any concrete or effective steps to perform he r part of
the contract. In the above circumstances, this Court is of the view that the
parties intended time to be the essence of the contract.
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22. Readiness and Willingness: The plaintiff has adopted
inconsistent stands. While, on the one hand, she claims that she was
always ready and willing to perform her part of the contract, on the other,
she seeks to attribute the delay to the first defendant on the ground that he
had not produced the title deeds and had not cleared and measured t he
property. These explanations do not inspire acceptance. The evidence of
P.W.2 and P.W.3 clearly discloses that the plaintiff’s husband had
verified the title documents even prior to Ex.B1. In that view, t he
contention that the title deeds were not furnished cannot be sustained. It is
also well settled that a vendor cannot ordinarily be expected to pa rt with
the original title deeds before the execution of the sale. The conduct of
the plaintiff, including her silence during the stipulated period and t he
absence of satisfactory proof regarding her financial capacity, would
clearly indicate that continuous readiness and willingness has not been
established. Thus, Point no.2 is answered in favour of 1 st defendant /
appellant.
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Point No. 3:
23. Discretionary Relief: Specific performance is an equi table
and discretionary relief. In the case on hand, the plaintiff has su ppressed
material facts, failed to establish continuous readiness and will ingness,
and approached the Court without seeking the necessary relief in respe ct
of the termination of the agreement. In such circumstances, the pla intiff
cannot be held entitled to the equitable relief of specific perf ormance.
Thus, Point no.3 is answered in favour of 1st defendant / appellant.
Point No. 4:
24. In view of the foregoing findings, this Court holds that the
plaintiff has failed to establish her continuous readiness and willi ngness
to perform her part of the contract; that the agreement stood validly
terminated; that, in the absence of a prayer for declaratory re lief, the suit
as framed is not maintainable; and that the Trial Court has mi sdirected
itself both in its appreciation of the evidence and in its applic ation of the
governing legal principles. Thus, Point no.4 is answered in favour of 1 st
defendant / appellant.
25. In the result, the appeal is allowed and the judgment and
decree dated 20.04.2021 passed in O.S. No.116 of 2007 are set aside.
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Consequently, O.S. No.116 of 2007 shall stand dismissed. There shall be
no order as to costs. Consequently, connected miscellaneous petitions, if
any, shall stand closed.
01.04.2026
ay
Index:Yes/No
Speaking Order /Non-speaking order
Neutral citation:Yes/No
To
1.The III Additional District Judge,
Coimbatore.
2. The Section Officer,
V.R.Records,
Madras High Court.
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A.S. No. 280 of 2021
DR. A.D. MARIA CLETE, J
ay
PRE DELIVERY JUDGMENT
A.S. No. 280 of 2021
01.04.2026
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