2026:MHC:1334AS No. 924 of 2018

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 09.03.2026PRONOUNCED ON : 02.04.2026

CORAM

THE HON'BLE MR JUSTICE C.V. KARTHIKEYAN

AND

THE HON'BLE MR JUSTICE K.RAJASEKAR

AS No. 924 of 2018

and

CMP No.23611 of 2018

1.T.Meyyappan

2.Venugopal

..Appellant(s)

Vs.

C.Selvan

..Respondent(s)

Appeal Suit filed under Order 41 Rule 1 of CPC read with Section 96 of

CPC, to set aside the judgment and decree dated 06.08.2018 passed in OS

No.23 of 2016 on the file of III Additional District and Sessions Court, Erode at

Gobichettipalayam.

For Appellant(s): Mr.S.Kaithamalai Kumaran

For Respondent(s):Mr.S.A.Mohamed Mubarak

https://www.mhc.tn.gov.in/judis

AS No. 924 of 2018

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JUDGMENT

(Judgment of the Court was delivered by C.V.Karthikeyan J.)

The defendants in O.S.No.23 of 2016 on the file of the III Additional

District Court, Gopichettipalayam at Erode, aggrieved by the judgment and

decree dated 06.08.2018 have filed the present Appeal Suit.

2.The suit in O.S.No.23 of 2016 had been filed by the respondent,

C.Selvam, seeking specific performance of an agreement of sale or in the

alternate to refund the advance amount of Rs.33,42,000/- together with interest

and also future interest till realization and also to create a charge over the suit

properties as security for the recovery of the advance amount and also for costs

of the suit.

3.By judgment dated 06.08.2018, the suit was decreed, necessitating the

defendants, T.Meiyappan and T.Venugopalan to file the present appeal.

O.S.No.23 of 2016 ( III Additional District Court, Gopichettipalayam at Erode):

4.In the plaint it had been stated that the suit property described in the

schedule to the plaint belonged to the defendants and that on https://www.mhc.tn.gov.in/judis

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14.09.2015, the defendants had entered into an agreement of sale with the

plaintiff, to convey the suit property for a total sale consideration of

Rs.58,08,000/- at the rate of Rs.6,00,000/- per acre. An advance of

Rs.20,00,000/- had been paid. The agreement was also reduced into writing.

5.In the agreement, it had been stipulated that the balance sale

consideration of Rs.38,08,000/- should be paid within a period of three months

and then the sale deed should be executed. The defendants had also agreed to

measure the property before the execution of the sale deed. It was further

provided that if the plaintiff failed to perform his part of the agreement, then the

defendants could forfeit the advance amount, and if the defendants were to fail

to come forward to execute the sale deed, the plaintiff could file a suit seeking

specific performance.

6.The plaintiff contended that he was always ready and willing to pay the

balance sale consideration but that the defendants protracted measuring the

property and fixing the boundaries. However, on 18.12.2015, the defendants

received a further sum of Rs.10,00,000/- and entered into another agreement

and extended the time for performance of the contract till the last date of

January 2016. The plaintiff contended that he had been calling upon the

defendants to come forward to execute the sale deed and to receive the balance

sale consideration. Since they did not do so, the plaintiff had issued a notice on https://www.mhc.tn.gov.in/judis

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14.04.2016 expressing readiness and willingness to pay the balance sale

consideration and calling upon the defendant to come over to the Sub-Registrar

Office, Sathyamangalam on 21.04.2016 to execute the sale deed and receive the

balance sale consideration of Rs.28,08,000/-.

7.The defendants issued a reply notice on 20.04.2016 refusing to execute

the sale deed. They claimed that the plaintiff was not ready and willing to

perform his part of the agreement and that the plaintiff did not have sufficient

funds to pay the balance sale consideration. It was contended that time was the

essence of the contract and the defendants were entitled to forfeit the advance

amount.

8.It had been further contended in the plaint that the 1

st

defendant along

with another individual U.Selvaraj sought enhancement of the sale

consideration to Rs.7,00,000/- per acre which was accepted by the plaintiff, but

thereafter not responded by the defendants. The plaintiff claimed that the

defendants were deliberately avoiding execution of the sale deed and under

those circumstances filed the suit seeking specific performance or in the

alternate for return of the advance amount.

9.In the written statement, the defendants denied that the properties

belonged to them or that it was allotted to them under the partition deed. They https://www.mhc.tn.gov.in/judis

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denied the execution of the agreement and receipt of advance sale price as

contended in the plaint. They denied every other allegation in the plaint

including receipt of further advance of Rs.10,00,000/- and the issuance of notice

and the exchange of notices. They further denied that they sought enhancement

of sale consideration from Rs.6,00,000/- per acre to Rs.7,00,000/- per acre.

10.They thereafter stated that time was the essence of agreement and that

the plaintiff was never ready and willing to pay the balance sale consideration.

It was further contended that the plaintiff never had intention to purchase the

property, but entered into the agreement to make profit. The allegations that the

plaintiff met the defendants and demanded execution of the sale deed were also

denied. They sought dismissal of the suit.

11.An additional written statement had been filed stating that the

agreements are inadmissible in evidence since they had not been registered

under the Registration Act.

12.On the basis of the above pleadings, the Trial Court framed the

following issues:

“1.Whether the agreement dated 14.09.2015 was true and

valid?

2.Whether the plaintiff was ready and willing to perform https://www.mhc.tn.gov.in/judis

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his part of the agreement?

3.Whether the plaintiff was entitled for the relief of specific

performance?

4.Whether the plaintiff was entitled for the alternate relief

of refund of advance sale consideration?

5.Whether the plaintiff was entitled for grant of charge

over the property?

6.To what other reliefs is the plaintiff entitled to?”

13.During trial, the plaintiff examined himself as PW-1 and examined

another witness as PW-2. The 1

st

and 2

nd

defendants examined themselves as

DW-1 and DW-2. They examined two further witnesses as DW-3 and DW-4.

14.The plaintiff marked Exs.A1 to A7. Exs.A1 and A2 dated 14.09.2015

and 18.12.2015 respectively were the agreements of sale. Exs.A3 and A6 were

the notices exchanged between the parties. Ex.A7 was the Bank Statement of

the plaintiff obtained from Axis Bank, Sathyamangalam.

15.On the side of the defendants, Exs.B1 to B5 were marked. Exs.B1, B2

and B3 were the sale deeds in the name of family members of the plaintiff.

Ex.B4 was the reply dated 20.04.2016 issued to the Advocate of the plaintiff. https://www.mhc.tn.gov.in/judis

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16.On the basis of the oral and documentary evidence, the Trial Court

held that the agreement was true and valid and in this connection, placed

reliance on the evidence of DW-1 who admitted to the agreement and to the

receipt of advance under the agreement. This fact was also confirmed by DW-2.

It must be noted that DW-1 and DW-2 were the two defendants. The Trial Court

also observed that PW-2 Selvaraj was a witness to Exs.A1 and A2 and therefore

held that the two documents had been entered into by the plaintiff with the

defendants. It was finally observed that under the two agreements a total

advance sale consideration of Rs.30,00,000/- had been received by the

defendants and it was therefore held that the agreements were valid and binding

on the defendants.

17.With respect to the issue on readiness and willingness, the bank

statement in Ex.A7 of the plaintiff was examined wherein, there was a balance

of Rs.72,00,000/- and very specifically on 13.04.2016 there was a balance of

Rs.40,00,000/- and on 21.04.2016 there was a balance of Rs.33,00,000/-. It was

therefore contended that the plaintiff possessed the necessary funds to purchase

the property. The statement of the plaintiff that his wife had possessed 10.15

acres and that there was a surplus income of Rs.6,00,000/- to Rs.7,00,000/- was

also noted. It was also observed that income was also received from a Trust

which was running a school and college. It was therefore held that the plaintiff

had the necessary resources to purchase the property. Holding as above, the

Trial Court decreed the suit with costs. https://www.mhc.tn.gov.in/judis

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18.Challenging the said judgment and decree, the defendants have filed

the present appeal.

19.Heard arguments advanced by Mr.S.Kaithamalai Kumaran, learned

counsel appearing for the appellants and Mr.S.A.Mohamed Mubarak, learned

counsel appearing for the respondent.

20.Mr.S.Kaithamalai Kumaran, learned counsel appearing for the

appellants, in his arguments pointed out that both the agreements were

unregistered. The 1

st

agreement was dated 14.09.2015 and the 2

nd

agreement was

dated 18.12.2015. The learned counsel contended that in the 1

st

agreement, it

had been provided that the total sale consideration was Rs.58,08,000/- at

Rs.6,00,000/- per acre and that an advance of Rs.20,00,000/- had been given. It

had been very specifically provided that the balance sale consideration of

Rs.38,08,000/- should be paid within a period of three months. Under the 2

nd

agreement, a further advance of Rs.10,00,000/- had been paid. It was contended

by the learned counsel that under Ex.A7 on the date of expiry of the agreement

that the required balance was not available in the account of the respondent. He

further contended that only much later the amount had been deposited. He

contended that the respondent had not proved that he was ready and willing to

perform his part of the agreement. https://www.mhc.tn.gov.in/judis

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21.In this connection, the learned counsel placed reliance on the judgment

of the Hon’ble Supreme Court reported in (2019) 3 SCC 704, Kamal Kumar

Vs. Premlatha Hoshi and Others, wherein the Hon’ble Supreme Court had

stipulated the factors to be considered in a suit for specific performance. The

relevant paragraphs of the judgment are as follows:

“7.It is a settled principle of law that the grant of relief of

specific performance is a discretionary and equitable relief. The

material questions, which are required to be gone into for grant of

the relief of specific performance are:

7.1.First, whether there exists a valid and concluded

contract between the parties for sale/purchase of the suit property.

7.2.Second, whether the plaintiff has been ready and willing

to perform his part of contract and whether he is still ready and

willing to perform his part as mentioned in the contract.

7.3.Third, whether the plaintiff has, in fact, performed his

part of the contract and, if so, how and to what extent and in what

manner he has performed and whether such performance was in

conformity with the terms of the contract;

7.4.Fourth, whether it will be equitable to grant the relief of

specific performance to the plaintiff against the defendant in

relation to suit property or it will cause any kind of hardship to the https://www.mhc.tn.gov.in/judis

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defendant and, if so, how and in what manner and the extent if such

relief is eventually granted to the plaintiff;

7.5.Lastly, whether the plaintiff is entitled for grant of any

other alternative relief, namely, refund of earnest money, etc. and,

if so, on what grounds.”

22.The learned counsel stated that even in the instant case, the respondent

was neither ready nor willing to perform his part of the agreement within the

stipulated time.

23.The learned counsel also placed reliance, for the same issue, on the

judgment of the Hon’ble Supreme Court reported in (2015) 8 SCC 695,

Padmakumari and Others Vs. Dasayyan and Others and the judgment of the

Division Bench of the Madurai Bench of Madras High Court reported in 2019

(3) CTC 564, R.Gnana Arulmoni Vs. R.S.Maharajan.

24.The learned counsel further argued that time was the essence of the

agreement and for that proposition, placed reliance on the judgment of the

Hon’ble Supreme Court reported in (2024) 3 SCC 232, Alagammal and Others

Vs. Ganesan and Another. The learned counsel therefore contended that the

appeal should be allowed and the judgment and decree of the Trial Court should

be set aside. https://www.mhc.tn.gov.in/judis

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25.Mr.S.A.Mohamed Mubarak, learned counsel appearing for the

respondent, on the other hand, pointed out the document filed, particularly,

Ex.A7 and stated that the respondent was possessed of necessary funds to

purchase the property. The learned counsel contended that by entering into the

2

nd

agreement, the appellants had consciously moved away from the stipulation

that time was the essence of the agreement. They had also accepted the further

advance of Rs.10,00,000/-. He stated that the trial Court had considered all the

relevant factors and had come to a correct conclusion that the respondent was

entitled for specific performance of the agreement of sale. The learned counsel

urged that the appeal should be dismissed.

26.We have carefully considered the arguments advanced and perused the

material records.

27.The points which arise for consideration are,

i).Whether the respondent was ready and willing to perform the

agreements?

ii).Whether the time was essence of the agreement?

28.Since the pleadings and evidence overlap, both the points are taken up

together for consideration. https://www.mhc.tn.gov.in/judis

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29.The appellants were the owners of the suit schedule property. Though

in the written statement they denied that fact and had denied every other

statement in the plaint, they admitted to the agreements and the receipt of

advance sale consideration.

30.The respondent had entered into an agreement of sale on 14.09.2015

with the appellants to purchase the suit schedule property at the rate of

Rs.6,00,000/- per acre for a total consideration of Rs.58,08,000/-. An advance of

Rs.20,00,000/- had been paid. It had been mentioned in the agreement that

within a period of three months, the balance should be paid by the respondent.

However, a subsequent agreement was entered into on 18.12.2015 and a further

advance of Rs.10,00,000/- had been received by the appellants. This would

indicate that the appellants had consciously not considered that time should be

the essence of the agreement since they received a further advance of

Rs.10,00,000/- after the expiry of three months period. Therefore, time could

never have been the essence of the agreement.

31.It had been further provided in the agreement that the appellants

should come forward to measure the land and to fix the boundaries. There is no

indication that they did so. Again, owing to their inaction, time can never be

insisted upon to be the essence of the agreement. https://www.mhc.tn.gov.in/judis

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32.The respondent had issued a notice on 11.04.2016 calling upon the

appellants to execute the sale deed and receive the balance sale consideration. In

the reply notice, the appellants admitted the receipt of the sale consideration of

Rs.20,00,000/- and Rs.10,00,000/- but contended that the respondent was never

ready and willing to pay the balance sale consideration. It was contended that

therefore the appellants would not come over to the Sub-Registrar Office to

execute the sale deed.

33.This stand would constitute refusal to perform the agreement. Article

54 of the Limitation Act, 1963 provides a three year period from the date of

such refusal to institute the suit. Article 54 of the Limitation Act is as follows:

Description of suitPeriod of limitationTime for which period

begins to run

54. For specific

performance of a

contract.

Three years.

The date fixed for the

performance, or, if no such

date is fixed, when the

plaintiff has notice that

performance is refused.

34.The plaint was however filed much earlier on 29.09.2016 within about

six months from the date of refusal. https://www.mhc.tn.gov.in/judis

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35.Ex.A7 is the statement of accounts produced by the respondent to

indicate possession of funds. The said document had been carefully examined

by the Trial Court. We have also perused the same. It reflects that the

respondent was in possession of a sum of Rs.72,00,000/-. At the time of expiry

of the 2

nd

agreement of sale, on 13.04.2016, the respondent had a balance of

Rs.40,00,000/- and on 21.04.2016 a balance of Rs.33,00,000/-. It is thus seen

that the respondent was possessed of the funds.

36.The respondent had issued a notice on 11.04.2016, when he had the

balance sale consideration in his account, calling upon the appellants to come

over to the Sub-Registrar Office, Sathyamangalam, to execute the sale deed. A

reply notice was issued under Ex.A6 on 20.04.2016 alleging that the respondent

did not have necessary funds. This statement is contradictory to the facts

presented under Ex.A7. In the reply notice, the appellants refused to come over

to the Sub-Registrar Office to execute the sale deed. The respondent had a three

year period to institute the suit from the date of such refusal. He however

instituted the suit within a period of six months. It is further seen that even

before the written statement was filed, the balance sale consideration of

Rs.28,08,000/- had been deposited into the Court on 12.07.2017. It is only

thereafter that the written statement was filed on 27.10.2017. Even before the

pleadings had been settled, the respondent had deposited the balance sale

consideration exhibiting readiness and willingness. https://www.mhc.tn.gov.in/judis

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37.The principles enunciated in (2019) 3 SCC 704, Kamal Kumar Vs.

Premlata Joshi and Others, referred supra, are satisfied by the respondent.

There were valid and concluded contracts between the parties and the

respondent was always ready and willing to perform his part of the agreement.

He had actually performed his part of the agreement by depositing the balance

sale consideration even before the filing of the written statement. We hold that

in such circumstances, it is only appropriate that a direction is issued to the

appellants to come forward and execute the sale deed.

38.With respect to the contention that the agreements have not been

registered, we hold that under the proviso to Section 49 of the Registration Act,

the documents may be used as contract and could be taken into consideration

even if the agreements were inadmissible in evidence for want of registration.

39.In view of the above reasons, we answer the points framed for

consideration that the agreements were true and valid and binding on the

appellants and that the respondent was always ready and willing to perform his

part of the agreement.

40.We therefore confirm the judgment and decree of the trial Court in

O.S.No.23 of 2016 dated 06.08.2018. https://www.mhc.tn.gov.in/judis

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41.Accordingly, the Appeal Suit stands dismissed with costs.

Consequently, connected Civil Miscellaneous Petition is closed.

(C.V.K.,J.) (K.R.S.,J.)

02-04-2026

smv

Index: Yes/No

Speaking/Non-speaking order

Neutral Citation: Yes/No https://www.mhc.tn.gov.in/judis

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To

1.The III Additional District and Sessions Court, Erode, Gobichettipalayam.

2.The Section Officer,

VR Section, Madras High Court. https://www.mhc.tn.gov.in/judis

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C.V.KARTHIKEYAN, J.

AND

K.RAJASEKAR, J.

smv

Pre-Delivery Judgment made in

AS No. 924 of 2018

02-04-2026 https://www.mhc.tn.gov.in/judis