2026:MHC:491IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 19.12.2025

PRONOUNCED ON : 09.02.2026

CORAM:

THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN

AND

THE HONOURABLE MR. JUSTICE K.KUMARESH BABU

A.S.No. 491 of 2016

G.S.Kesavan (died) ... Appellant/Defendant

2. G.K.Vimala

3. G.K.Babuji

4. G.K.Rammohan

5. R.Lakshmi

6. G.K.Saraswati ...Appellants

Vs

1. Gurrappa Naidu

2. D.M.Chandrasekar

3. B.Subashchand Jain

4. V.Raghunatha Reddy

V.Sathya (died)

1/27

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

5. S.Hemavathi

6. Minor S.Kavya

7. Minor S.Yogesh

8. Minor S.Lohitha

[minors 6 to 8 are represented by her

mother S.Hemavathi] ... Respondents/Plaintiffs

PRAYER: Appeal filed under Order 41 Rule 1 read with Section 96 C.P.C.,

against the Judgment and Decree dated 31.07.2015 made in O.S.No. 25 of

2010 on the file of II Additional District and Sessions Judge, Vellore at

Ranipet.

***

For Appellants : Mr. P.Valliappan

Senior Counsel

for Mr.P.Krishnan

For Respondents : Mr.M.L.Josepah

Assisted by Ms.P.Kavitha

JUDGMENT

2/27 https://www.mhc.tn.gov.in/judis

(Order of the Court was made by C.V.KARTHIKEYAN, J.)

The defendant in O.S.No. 25 of 2010 on the file of II Additional

District Court at Ranipet is the appellant herein.

2. The said suit in O.S.No.25 of 2010 had been filed by the

respondents seeking a direction against the defendant to execute a sale deed

conveying the suit schedule properties to the plaintiffs for a sum of

Rs.1,10,00,000/- on receipt of the balance sale price of Rs.8,00,000/- and in

case of failure, for the Court to execute such sale deed and deliver

possession of the suit properties to the plaintiffs and for permanent

injunction restraining the defendant from alienating the suit properties and

for costs of the suit.

3. The suit properties as described in the schedule to the plaint

was land measuring 38,400 sq.ft., together with buildings, 5 shops, rice

mill, 2 HP electric motor starters and electricity service connections at S.No.

148/115, Gandhi Road, Arakkonam Town, Vellore District, now Ranipet

District. By Judgment dated 31.07.2015, the suit was decreed with costs

3/27 https://www.mhc.tn.gov.in/judis

directing the defendant to execute the sale deed after receiving the balance

sale consideration of Rs.8,00,000/-. A further direction was issued to the

plaintiffs to pay the balance sale consideration within two months from the

date of decree and to the defendant to execute the sale deed within one

month thereafter and on failure thereof, for the Court to execute the sale

deed and deliver vacant possession of the suit properties. Aggrieved by the

said Judgment and Decree, the defendant had filed the present Appeal.

4. Pending the Appeal, the defendant died and his legal

representatives have been brought on record.

O.S.No. 25 of 2020-II Additional District Court at Ranipet:

5. In the plaint, it had been contended that on 04.07.2004, the

defendant, claiming to be the absolute owner of the suit properties offered to

sell the same to the plaintiffs for a total consideration of Rs.1,10,00,000/-. A

registered agreement of sale deed dated 19.05.2005 was entered into

between the parties. The plaintiffs had paid a sum of Rs.1,00,00,000/- as

advance sale consideration. This fact had been stated in the agreement itself.

4/27 https://www.mhc.tn.gov.in/judis

It was further contended that the defendant agreed to receive the balance

sale consideration of Rs.10,00,000/- within a period of 11 months, namely,

on or before 18.04.2006 and agreed to execute a registered sale deed

conveying the suit properties to the plaintiffs.

6. The plaintiffs had called upon the defendant to execute the sale

deed and sent telegram dated 17.04.2006. It was however contended that

time was never agreed to be the essence of the contract. There were tenants

in occupation in a portion of the building and the defendant had undertaken

to vacate them. The defendant however demanded a further sum of

Rs.2,00,000/- as additional advance to vacate the tenants. It had been

further stated that on 22.06.2007, the defendant and his son came to Chittoor

and received the further advance amount of Rs.2,00,000/- and this was also

endorsed on the agreement of sale itself. The son was an attestor to the said

endorsement. It had been stated that the defendant had then eceived a total

sum of Rs.1,02,00,000/- and only a sum of Rs.8,00,000/- was payable by the

plaintiffs.

7. The plaintiffs then again sent another telegram on 24.09.2007

5/27 https://www.mhc.tn.gov.in/judis

calling upon the defendant to come forward to execute the sale deed. The

defendant issued a lawyer's notice on 19.11.2007 contending that time was

the essence of the contract and that the plaintiffs had committed breach of

the contract. The defendant agreed to return the advance.

8. The plaintiffs replied by notice dated 28.11.2007 denying and

disputing the contentions of the defendant. It was under those

circumstances that the suit had been filed calling upon the defendant to

come forward to execute the sale deed pursuant to the agreement.

9. A written statement had been filed by the defendant denying

and disputing the contentions raised. It was contended that the properties

were owned by his father, who executed a registered Will on 05.07.1995

bequeathing his properties to his three sons. One of the contentions under

the Will was that if any one of the sons were to sell the properties allotted to

him, he must first offer it to the other two brothers and not to third parties.

The father died on 21.06.1998. The defendant had been allotted the suit

schedule properties and he became the absolute owner.

6/27 https://www.mhc.tn.gov.in/judis

10. It was further stated that an oral agreement was agreed on

04.07.2004 at Chittoor in Andhra Pradesh between the plaintiffs and the

defendant with respect to the suit properties. This was then reduced into

writing on 19.05.2005. The total sale consideration was determined at

Rs.1,10,00,000/- and an advance of Rs.1/- crore was paid under various

installments. There was a balance sale consideration of Rs.10/- lakhs. It

had been stated that the plaintiffs agreed to receive back the advance of

Rs.1/- crore. It had been stated that the defendant also agreed to repay the

same. It was also stated that the defendant had returned a sum of Rs.25/-

lakhs through Dr.Panneerselvam, President of Arakkonam Rotaryr Club. A

further sum of Rs.10/- lakhs was also returned through Dr.Panneerselvam.

It was further contended that the plaintiffs abducted the son of the defendant

and forcibly obtained an endorsement as if a further advance of Rs.2/- lakhs

was paid. It was contended that the plaintiffs exercised influence with the

assistance of the police. It was stated that the defendant would refund the

balance advance amount of Rs.65/- lakhs, on the plaintiffs returning the

original title deeds. It was contended that the suit was barred by limitation

since time was the essence of the agreement. It was thus contended that the

suit should be dismissed.

7/27 https://www.mhc.tn.gov.in/judis

11. On the basis of the above pleadings, the following issues were

been framed:-

“1. Whether the sale agreement is true

and valid?

2. Whether the plaintiffs are entitled for

the relief of specific performance contract as

prayed in the plaint?

3. Whether the plaintiffs are entitled to

permanent injunction as prayed?

4. Whether the suit is barred by

limitation?

5. To what other relief the plaintiffs are

entitled?”

12. The plaintiffs marked Exs.A-1 to A-14. The defendant marked

Ex.B-1.

8/27 https://www.mhc.tn.gov.in/judis

13. The third plaintiff was examined as PW-1. The defendant

examined himself as DW-1 and examined Dr.Panneer Selvam as DW2.

Ex.A-1 was the registered agreement of sale and Exs.A-2 and A-3 were the

copies of telegram issued by the plaintiffs, Ex.A-6 was the notice sent by the

defendant and Ex.A-7 was the reply to the said notice and Ex.A-14 was the

rejoinder notice. Ex.B-1 was the copy of the Will executed by the father of

the defendant.

14. In the Judgment now under Appeal, it had been observed that

Ex.A-1, the agreement dated 19.05.2005, was a registered agreement and

that a sum of Rs.1,00,00,000/- had been paid as advance out of the total sale

consideration of Rs.1,10,00,000/- and that this fact had also been admitted

by the defendant. The signatures in Ex.A-1 was also admitted by the

defendant. With respect to the endorsement made date 22.06.2007, it had

been observed in the Judgment that the son of the defendant had signed as

one of the witnesses. It had been further observed that since there was an

admission, no further proof was required about the genuinity of the

signature. It had been further held that though it had been contended by the

defendant that his son had been abducted, documents relating to police

9/27 https://www.mhc.tn.gov.in/judis

complaint had not been filed by the defendant. It was held that the

endorsement was made voluntarily after receiving the further advance of

Rs.2/- lakhs. It was also stated that reply was not issued to Ex.A-2 telegram

dated 17.04.2006. It was also observed that in Ex.A-3 telegram, an

endorsement has been made by the defendant that a sum of Rs.1.02/- Crores

had been received as advance. Thus the defendant had admitted to the

receipt of substantial advance of Rs.1.02/- crores out of the total sale

consideration of Rs.1.10/- crores. With respect to the statement made by the

defendant that a sum of Rs.35/- lakhs had been repaid to the plaintiffs

through DW-2 Dr.Panneerselvam, it had been observed that evidence was

not adduced to support the claim that DW-2 had given Rs.35/-lakhs to the

plaintiffs. As a matter of fact, in his proof affidavit, DW-2 had stated that

the defendant only paid Rs.35/- lakhs to the plaintiffs in his presence and not

through him.

15. It was finally held that the defendant had not proved that he

had returned back the said sum of Rs.35/- lakhs. It was further observed that

the brother of the defendant had filed O.S.No. 24 of 2010 seeking

permanent injunction on the basis of the condition imposed in the Will

10/27 https://www.mhc.tn.gov.in/judis

executed by the father and during trial, it was established that the said suit

was filed only under the instigation of the defendant. For all these reasons,

the suit was decreed with costs.

A.S.No. 491 of 2016:

16. Challenging the said Judgment and Decree, the defendant

then filed the present Appeal.

17. During the pendency of the Appeal, the appellant/defendant

died and his legal representatives were brought on record.

18. Heard arguments advanced by Mr.P.Valliappan, learned

Senior Counsel for the appellants and Mr.M.L.Joseph, learned counsel for

the respondents.

19. Mr.P.Valliappan, learned Senior Counsel took the Court

through the facts of the case. He pointed out the dates during which the

11/27 https://www.mhc.tn.gov.in/judis

entire transactions had taken place. The father of the appellant had executed

a Will on 05.07.1995. This Will was marked as Ex.B-1. The Will came into

effect on 21.06.1998 on the demise of his father on 04.07.2004. The learned

Senior Counsel stated that the appellant and the respondents entered into an

oral agreement for sale of the suit properties. This agreement was reduced

into writing and registered on 19.05.2005. The total sale consideration was

determined at Rs.1.10/- crores and advance of Rs.1/- crore had been paid by

the respondents to the appellant. It was contended by the learned Senior

Counsel that time was the essence of the agreement. He contended that the

parties had covenanted that the balance sale consideration should be paid on

or before 18.04.2006. The learned Senior Counsel therefore contended that

when a specific date had been stipulated and when the respondents had not

come forward to pay the balance sale consideration, specific performance

should be denied.

20. In this connection, the learned Senior Counsel placed reliance

on the Judgment of the Hon'ble Supreme Court reported in AIR 2011 SC

3351 [Citadel Fine Pharmaceuticals Vs. Ramaniyam Real Estates and

others], with specific reliance on paragraph No. 46 which is as follows:-

12/27 https://www.mhc.tn.gov.in/judis

“ 46. In K.S.Vidyanadam Vs. Vairavan (1997) 3

SCC1 reference was made to a Constitution Bench

judgment of this Court in Chand Rani (Smt.)

(Dead) by LRs.v. Kamal Rani (Smt.) (Dead) by

Lrs. reported in (1993) 1 SCC 519. The same

question, whether time was of essence of the

contract was discussed in Chand Rani (supra). The

Constitution Bench of this Court while dealing with

this question referred to another decision of this

Court in the case of M/s. Hind Construction

Contractors by its sole proprietor Bhikamchand

Mulchand Jain (Dead) by LRs. v. State of

Maharashtra reported in (1979) 2 SCC 70. By

referring to various judgments, the Constitution

Bench in Chand Rani (supra) formulated the

proposition that even where parties have expressly

provided time to be of the essence of the contract,

such a stipulation will have to be read along with

other terms of the contract. Such other terms, on a

proper construction, may exclude the inference that

the completion of work by a particular date was

meant to be fundamental. The learned Judges

indicated the following circumstances which may

indicate a contrary inference; (a) if a contract

13/27 https://www.mhc.tn.gov.in/judis

includes clauses providing for extension of time in

certain contingencies, or (b) if there are clauses for

payment of fine or penalty for every day or week

the work undertaken remains unfinished after the

expiry of time. The Constitution Bench held that

such clauses would be construed as rendering

ineffective the express provision relating to time

being of the essence of contract (see para 22 at

page 528 of the report).

21. It was thus contended by the learned Senior Counsel that in

the instant case, since the parties had agreed that the balance sale

consideration should be paid on or before 18.04.2006 and there was no

clause extending the time, and when admittedly the plaintiff had not paid the

said amount, this Court should interfere with the Judgment of the trial Court

and dismiss the suit filed seeking specific performance.

22. The learned Senior Counsel further contended that the

endorsement in Ex.A-1 about receipt of further advance of Rs.2/-lakhs

should be held by this Court as having been obtained by threat and coercion.

The learned Senior Counsel pointed out that the specific case of the

14/27 https://www.mhc.tn.gov.in/judis

appellant was that his son had been abducted by the respondents and

signature obtained forcibly on the reverse of the agreement of sale.

23. It was also contended by the learned Senior Counsel that the

suit is not maintainable since the appellant had terminated the agreement

and relief had not been sought to declare such termination as null and void.

24. In this connection, the learned Senior Counsel placed reliance

on the Judgment of the Hon'ble Supreme Court reported in (2013) 15 SCC

27 [ I.S.Sikandar (dead) by LRS. Vs. K.Subramani and Others). The

learned Senior Counsel placed specific reliance on paragraph Nos. 37 and

38 which are as follows:-

“37. As could be seen from the prayer

sought for in the original suit, the plaintiff has not

sought for declaratory relief to declare the

termination of agreement of sale as bad in law. In

the absence of such prayer by the plaintiff the

original suit filed by him before the trial court for

grant of decree for specific performance in

respect of the suit schedule property on the basis

15/27 https://www.mhc.tn.gov.in/judis

of agreement of sale and consequential relief of

decree for permanent injunction is not

maintainable in law.

38. Therefore, we have to hold that the

relief sought for by the plaintiff for grant of

decree for specific performance of execution of

sale deed in respect of the suit schedule property

in his favour on the basis of non-existing

agreement of sale is wholly unsustainable in law.

Accordingly, Point (i) (see para 32.1) is answered

in favour of Defendant 5. ”

25. Pointing out the dictum laid in the above Judgment, the

learned Senior Counsel argued that the suit was not maintainable, since, in

view of the breach of the terms and conditions by the respondent the

agreement had been terminated and a relief had not been sought that such

termination as bad in law.

26. The learned Senior Counsel further pointed out that thought

the agreement had been registered on 19.05.2005, the suit had been

instituted only in the year 2010. The suit had been instituted with much

16/27 https://www.mhc.tn.gov.in/judis

delay after nearly 5 years from the date of the agreement of sale. The

learned Senior Counsel pointed out that this was deliberately done by the

respondents to take advantage of the increase in the marketable value of the

properties. The learned Senior Counsel therefore urged that this Court

should allow the appeal and set aside the Judgment and Decree of the trial

Court.

27. Mr.M.L.Joseph, learned counsel for the respondent however

disputed these contentions. The learned counsel pointed out that the

appellant had admitted to the agreement and had also admitted to receiving

the advance sale consideration. The total sale consideration had been fixed

at Rs.1.10/- crores and an advance of Rs.1/- crore representing 90% of the

sale consideration had been paid and acknowledged by the appellants. The

learned counsel therefore contended that the respondents can never be

claimed to be neither willing nor ready to pay the balance sale consideration

of Rs.10/- lakhs. The learned Senior Counsel very strongly denied the

allegations that the respondent had abducted the son of the appellant.

28. He further contended that there no evidence was adduced to

17/27 https://www.mhc.tn.gov.in/judis

establish the claim of the appellants that a sum of Rs.35/-lakhs had been

paid to the respondent through DW2, Dr.A.Panneerselvam. He further added

that the evidence of DW-2 was extremely vague and self contradictory and

therefore asserted that no amount had been so paid as claimed by the

appellant. The learned counsel further pointed out that the appellant had not

examined his son to speak about the allegations relating to abduction and

alleged force applied while obtaining the endorsement in Ex.A-1 agreement

of sale. The learned counsel argued that since the agreement had been

admitted and since receipt of balance sale consideration had been admitted,

the Court should grant specific performance unless the appellant had proved

discharge.

29. In view of these reasons, the learned counsel contended that

the appeal must be dismissed and the Judgment and Decree of the trial Court

must be upheld.

30. We have carefully considered the arguments advanced and

perused the materials available on records.

18/27 https://www.mhc.tn.gov.in/judis

31. The following points arise for consideration:

(1) whether the registered agreement

dated 19.05.2005 is enforceable in law?;

(2) Whether the endorsement made in

the said agreement had been obtained by force

and coercion?;

(3) Whether time is the essence of the

contract between the parties? And

(4) Whether the respondents are ready

and willing to perform their part of the

obligation?

32. Since the evidence relating to all the above points are

interlinked, all the points are taken up for discussion and determination

together.

19/27 https://www.mhc.tn.gov.in/judis

33. The appellant herein, who died during the pendency of the

appeal and the respondents had initially entered into an oral agreement of

sale relating to the suit properties on 04.07.2004. This fact is admitted by

the appellant therein. This agreement had been reduced into writing and a

registered agreement of sale had been entered into by the parties on

19.05.2005. This fact is also admitted by the appellants. The total sale

consideration for the suit property was determined at Rs.1.10/- crores. An

advance of Rs.1/- crore had been paid by the respondents. These facts are

also admitted by the appellant.

34. The suit property was land measuring 38,400 sq.ft., along

with buildings, 5 shops, rice mill, 2 H.P. Electric motor starters and

electricity fittings in S.No. 148/115, Gandhi Road, Arakkonam. The identity

of the suit property is not in dispute. The fact that the appellant was the

absolute owner of the suit property was not in dispute. The properties had

been bequeathed to him under a Will dated 05.07.1995 marked as Ex.B-1

and executed by his father. The Will came into force on 21.06.1998 on the

demise of his father.

20/27 https://www.mhc.tn.gov.in/judis

35. In the Will, it had been stated that if one of the three brothers

to each one of whom various properties had been bequeathed were to sell

their bequeath, then they should first offer the same to the other two

brothers. Claiming that this portion of the Will had been breached by the

appellant, one of his brothers filed O.S.No. 24 of 2010 against the appellant

and the respondents seeking permanent injunction against the enforcement

of agreement of sale. During trial, it was found that this suit was instigated

only by the appellant himself. This fact had been very clearly stated in the

Judgment of the trial Court.

36. This finding of the learned Judge had not been raised as a

ground of challenge in the grounds of Appeal. In the grounds of Appeal, it

had only been stated that as per the terms of the registered Will, the property

cannot be sold to third parties. But the very specific finding that O.S.No.24

of 2010 had been filed by the brother of the appellant only under the

instigation of the appellant to delay performance of the agreement of sale

had not been challenged in the grounds of appeal. This very fact would

expose the conduct of the appellant herein.

37. As a matter of fact, it is also to be noted that there were

21/27 https://www.mhc.tn.gov.in/judis

tenants in the suit property. The specific case of the respondents was that

the tenants should be evicted and vacant possession must be handed over.

That was not possible within the time prescribed in the agreement. It has to

be therefore held that time could never have been the essence of the

agreement. There were obligations to be performed by the appellant. He had

to evict the tenants. He failed to do so. Moreover, he had instigated his

brother to file a suit in O.S.No. 24 of 2010 seeking injunction from dealing

with the suit property and proceeding with the execution of the sale. These

are factors which extended the period of performance of the obligations

under the agreement. Therefore, the argument that time was essence of the

agreement is rejected by us.

38. It is to be noted that out of the total sale consideration of

Rs.1.10/- crores, an advance of Rs.1/- crore had been paid. This fact had not

been denied by the appellant. The respondents can never come forward to

pay the balance sale consideration since the tenants had not been evicted.

Further O.S.No. 24 of 2010 had to be finally disposed of.

39. It is also seen that in the agreement of sale, an endorsement

had been made on 22.06.2007 for receipt of a sum of Rs.2/- lakhs. It is the

22/27 https://www.mhc.tn.gov.in/judis

contention of the appellants that the son of the appellant had been abducted

and his signature had been forcibly obtained in the said endorsement. But

however, the appellant had not filed any complaint before the police in this

regard. There is no other proof of this allegation. It is thus evident that the

endorsement had been made with intention to receive further sale

consideration of Rs.2/- lakhs.

40. The respondents had issued a legal notice and had issued

telegrams calling upon the appellant to come forward to execute the sale

deed. The balance sale consideration was only Rs.8,00,000/-. The advance

sale consideration which had been paid was Rs.1.02/- crores.

41. We hold that the agreement having been admitted and the

receipt of advance sale consideration having been admitted, unless the

appellant had proved discharge, specific performance cannot be denied.

42. It is the case of the respondents that out of the advance

amount of Rs.1/- crore, they had returned back a sum of Rs.35/- lakhs

through DW-2 Dr.Panneerselvam. His evidence is wholly unsatisfactory. In

23/27 https://www.mhc.tn.gov.in/judis

his proof affidavit, he had stated that the said sum had been returned to the

respondents in his presence. But however, the case of the respondents was

that the sum was handed over to DW-2 to be given to the respondents. Both

the facts have not been proved. DW-2 had also not affirmed these fact with

confidence.

43. In (2022) 7 SCC 384 [P.Ramasubbamma Vs.

V.Vijayalakshmi and Others], the Hon'ble Supreme Court has held as

follows:-

“9. ....Once the execution of agreement

to sell and the payment/receipt of advance

substantial sale consideration was admitted by the

vendor, thereafter nothing further was required to

be proved by the plaintiff – vendee. Therefore, as

such the learned Trial Court rightly decreed the

suit for specific performance of agreement to sell.

The High Court, was not required to go into the

aspect of the execution of the agreement to sell and

the payment/receipt of substantial advance sale

consideration, once the vendor had specifically

admitted the execution of the agreement to sell and

receipt of the advance sale consideration;

24/27 https://www.mhc.tn.gov.in/judis

thereafter no further evidence and/or proof was

required.”

44. Even in the instant case, the agreement has been admitted.

The total sale consideration had been admitted. The identity of the property

is not under dispute. The receipt advance sale consideration had not been

denied. The alleged explanation that the son of the appellant had been

abducted had not been proved. The claim that part of the advance sale

consideration had been paid through DW-2 had also not been proved.

45. The further claim that the agreement had been terminated is

rejected since the appellant had agreed to evict the tenants and had failed to

do so and therefore can never claim that time was the essence of the

agreement and that the agreement stood cancelled.

46. In these circumstances, we hold that the Appeal Suit should

fail and the same is accordingly dismissed with costs. The Judgment and

Decree of the Trial Court is upheld. The appellants are directed to execute

the sale deed in favour of the respondents within a period of 4 weeks from

this date, failing which the trial Court should execute the sale deed.

25/27 https://www.mhc.tn.gov.in/judis

[C.V.K., J.] [K.B., J.]

09.02.2026

Index: Yes/No

Internet:Yes/No

Neutral Citation: Yes/No

To:

1. II Additional District and Sessions Judge, Vellore at Ranipet.

2.The Section Officer,

VR Section,

Madras High Court, Chennai.

C.V.KARTHIKEYAN, J.

AND

K.KUMARESH BABU, J.

vsg

26/27 https://www.mhc.tn.gov.in/judis

Pre-Delivery Judgment made in

A.S.No. 491 of 2016

09.02.2026

27/27 https://www.mhc.tn.gov.in/judis