AS No. 101 of 2012

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 08.12.2025

PRONOUNCED ON : 11.02.2026

CORAM

THE HONOURABLE MR JUSTICE C.V. KARTHIKEYAN

AND

THE HONOURABLE MR.JUSTICE K.KUMARESH BABU

AS No. 101 of 2012

1.Ponnammal (Died)

2.Chinnammal (Died)

3.Kannammal (Died)

4.Jayanthi

5.Suresh Kumar

6.Kandasamy

7.Boopathi

8.Shanthi

(Appellants 6 to 8 brought on record as LRs of

the deceased 2nd Appellant viz., Chinnammal

vide court order dated 17/06/2019 made in

CMP 8318/2019 in AS 101 of 2012.)

9.T.Saraswathi

10.Rathinam

(Appellants 9 & 10 brought on record as LRs of

the deceased 1

st

Appellant viz., Ponnammal https://www.mhc.tn.gov.in/judis

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vide court order dated 27.04.2023 made in CMP

Nos.9944 to 9946 of 2023 in AS 101 of 2012.)

..Appellant(s)

Vs

1.T.K.Kandhaswamy (Died)

2.Rukmani

3.K.Selvapriya

4.T.K.Muthurajan

(R2 to R4 brought on record as LRs of the

deceased sole respondent viz.,

T.K.Kandhaswamy vide court order dated

17/06/2019 made in CMP 8301/2019 in AS 101

of 2012.)

5.T.Marappan

(5th Respondent impleaded vide Order Of

Court Dated 16/03/2023 in CMP.No.102 of

2023 In As.No.101 of 2012.)

6.Anith Ms

(R3 DIED, R6 BROUGHT ON RECORD AS

LRS OF DECEASED 3RD RESPONDENT

VIZ, K.SELVAPRIYA, VIDE ORDER OF

COURT DATED 08/06/2023 MADE IN

CMP.NOS.9948,9950 AND 9954/2023 IN AS.

NO.101 OF 2012.)

(Cause title accepted vide order of Court dated https://www.mhc.tn.gov.in/judis

AS No. 101 of 2012

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21.02.2012 made in MP No.1 of 2012 in

A.S.Sr.No.16260 of 2012)

..Respondent(s)

For Appellant(s): Mr.P.Valliappan Senior Counsel

for Mr.S.M.S.Sriram Narayanan

For Respondent(s):Mr.N.Manokaran For R2, R4 and R6

Mr.Gautham S.Raman

for M/s.K.V.Law Firm for R5

JUDGMENT

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

The first and second defendants and the legal representatives of the

third defendant have filed the present appeal suit challenging the judgment

dated 12.09.2011, in O.S.No.78 of 2009, on the file of the Principal District

Court, Namakkal.

2.The suit in O.S.No.78 of 2009 had been filed by the respondent

T.K.Kandhaswamy seeking the relief of specific performance of an

agreement dated 10.06.2006 and directing the defendants to execute a

registered sale deed after receiving the balance sale consideration of https://www.mhc.tn.gov.in/judis

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Rs.55,06,300/- in his favour with respect to the suit property and in default,

for the Court to execute the sale deed in his favour.  The suit was decreed by

judgment dated 12.09.2011 necessitating filing of the present appeal.

3.Pending appeal, the first and second appellants died and their legal

representatives were impleaded as 6

th

to 10

th

appellants. The sole respondent

T.K.Kandhaswamy also died and his legal representatives were impleaded as

2

nd

to 4

th

respondents.  The third respondent also died and her legal

representative was impleaded as 6

th

respondent.

4.During the pendency of the appeal, the 5

th

respondent T.Marappan

was impleaded by an order of the Hon’ble Supreme Court in Civil Appeal

No.63 of 2015, by an order dated 06.01.2015.  The Hon’ble Supreme Court

had however stated that such impleadment was without prejudice to the

rights of the parties in the appeal to agitate all questions of law that may be

open to them.  Further, it was also directed that the High Court should not

permit the nature and character of the original pleadings to be altered in any

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

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5.O.S.No.78 of 2009 - Principal District Court, Namakkal.

The plaintiff T.K.Kandhaswamy stated that the defendants

Ponnammal, Chinnammal and Kannammal who are the daughters of late

Vellappa Gounder had entered into an agreement of sale with him on

10.06.2006 with respect to the suit properties for a total consideration of

Rs.20,90,000/- per acre. The total area of the property agreed to be conveyed

was 4.07 acres.  It had been further contended that an advance sale

consideration of Rs.12,00,000/- had been paid on the date of agreement. The

time for execution was fixed before the last day of Ippasi month, namely, on

or before 16.11.2006.  It was further contended that possession had been

handed over on the date of agreement itself. It was further contended that the

properties had to be measured and the sale deed would be executed in favour

of the plaintiff after producing all original and ancient documents. It had

been further contended that a further advance of Rs.18,00,000/- had been

paid and this was endorsed on the back side of the sale agreement itself. It

was therefore contended that the defendants have totally received a sum of

Rs.30,00,000/- towards the sale consideration as advance.

6.It was further contended that the defendants executed a General

Power of Attorney on 23.06.2006 and it was stipulated that this Power of https://www.mhc.tn.gov.in/judis

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Attorney would be valid till the agreement is performed. The Power of

Attorney was also notarised.  The defendants however issued a notice on

14.04.2007 that they had cancelled the said Power of Attorney.  The plaintiff

contended that he was always ready and willing to pay the balance sale

consideration of Rs 55,06,300/- at Rs. 20,90,000/- per acre for a total area of

land being 4.07 acres.  The plaintiff further contended that he had

approached the defendants to execute the sale deed, but they were always

evading.  The plaintiff issued a reply notice stating the correct facts.  He also

stated that there was another suit filed in O.S.No.652 of 2003 before the Sub

Court, Namakkal.  The plaintiff then issued a registered notice on

30.04.2009 calling upon the defendants to execute the sale deed on

15.05.2009 between 10.00 a.m. and 3.00 p.m. at the Sub Registrar's office at

Tiruchengode after receiving the balance sale consideration. But the

defendants did not come forward to execute the sale deed and issued a reply

on 05.05.2009 raising various contentions. It was under those circumstances

that the suit had been filed seeking specific performance of the agreement

dated 10.06.2006.

7.The third defendant filed a written statement admitting to the

agreement dated 10.06.2006 and also admitting to the receipt of the https://www.mhc.tn.gov.in/judis

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advanced sale consideration of Rs.12,00,000/-. It was however stated that

the entire balance of the sale consideration should have been paid before the

last day of Ippasi month according to the Tamil calendar of the year 2006. 

The claim of the plaintiff that possession was handed over was however

denied. The defendant also admitted receipt of the further advance sale

consideration of Rs.18,00,000/-. It was further stated that the three

defendants were not having any male support and under those circumstances

had executed a General Power of Attorney in favour of the plaintiff. It was

stated that the plaintiff had instituted several suits as Power of Attorney

agent of the defendants, which were not to the best interest of the

defendants. Therefore, they had taken a decision to cancel the Power of

Attorney. It was further contended that the plaintiff was never ready and

willing to pay the balance sale consideration.  It was also stated that efforts

were made by Mediators to settle the issue, but the plaintiff never came

forward to pay the balance sale consideration.  In the meanwhile, notices

were exchanged between the parties. It was stated that the plaintiff did not

come forward to perform his part of the agreement within the time

stipulated. The period stated in the agreement elapsed. The claim of the

plaintiff that he had called upon the defendants to come forward to execute https://www.mhc.tn.gov.in/judis

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the sale deed was denied. It was stated that the plaintiff was not entitled for

specific performance and it was therefore contended that the suit should be

dismissed.

8.The written statement of the third defendant was adopted by the first

and second defendants. The third defendant filed an additional written

statement contending that though the plaintiff had stated that he had issued a

notice dated 30.04.2009, there was no date mentioned in the said notice. It

was further contended that the plaintiff had suppressed the reply notice

issued by the defendants. It was stated that the suit was filed two months

after that particular date. It was further contended that the family members

of the two brothers of the defendants, Rathnam and Sengottuvel had

conveyed the suit properties without any right or title to Marappan by sale

deed dated 20.12.2006. With respect to that sale deed, the plaintiff had filed

O.S.No.58 of 2007 as Power of Attorney agent of the defendants before the

Sub Court at Namakkal. It was therefore contended that the suit was bad for

non joiner of necessary parties and therefore should be dismissed on that

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

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9.A reply statement was filed by the plaintiff claiming that the suit

properties do not belong to the brothers of the defendants and therefore, the

sale in favour of Marappan is of little consequence and can be ignored. It

was also contended that Marappan was not a necessary party to the suit.

10.On the basis of the said pleadings, the following issues and

additional issues were framed.

1.Whether the plaintiff is entitled to specific

performance of the agreement dated 10.06.2006?

2.Whether the plaintiff was ready and

willing to perform his part of the contract dated

10.06.2006?

3.Whether the time is essence of the

contract?

4.To what relief if the plaintiff is entitled to?

11.Additional Issues framed on 10.11.2010

1.Whether the properties absolutely

belonged to defendants 1 to 3 above?

2.Whether the suit is bad for non joinder of

necessary party Marappan? https://www.mhc.tn.gov.in/judis

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12.During trial, the plaintiff examined himself as PW 1 and marked

Exs.A1 to A23. Ex.A1 was the agreement of sale dated 10.06.2006 and

Ex.A2 was the endorsement in the agreement of sale dated 15.07.2006.

Ex.A4, A5, A8 and A12 were notices exchanged between the parties.

Ex.A13 (series), Ex.A14 and A15 (Series) were copies of pattas. On the side

of the defendants, the first defendant examined herself as DW1 and

examined another witness as DW2. The defendants marked Exs.B1 to B7.

Exs.B1, B2, B3 and B4 were notices exchanged between the parties. Ex.B6

dated 20.12.2006 was the sale deed executed in favour of Marappan. During

trial, Ex.X1 dated 16.05.1990, which was a sale deed executed in favour of

the plaintiff was also marked.

13.The learned Principal District Judge, Namakkal, first took up for

consideration issue Nos.1, 2 & 3. The fact that the agreement and the receipt

of the advance sale consideration and the receipt of the additional advance

sale consideration had been admitted by the defendants was noted. It was

also noted that the time fixed for performance of the agreement was the last

date of Ippasi Month of the year 2006. The argument of the defendants that

time was the essence of the contract was also noted. The further arguments https://www.mhc.tn.gov.in/judis

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that the plaintiff was not ready and willing to perform his part of the

agreement was also noted. The learned Trial Judge further noted Ex.A6

which was the copy of the plaint in O.S.No.652/2003 which was a suit for

partition filed by the family members of the brothers of the defendants. The

copy of I.A.No.1662/2023 in the said suit, which was marked as Ex.A7 was

also noted and that it was observed that injunction was granted on

11.08.2003. It was observed that though injunction had been granted, the

defendants had suppressed the factum of the pending suit and had entered

into the agreement. It was also observed that the plaintiff had been in

possession of the suit property. The undertaking of the parties to lay roads

was also noted by the learned Trial Judge. It was held that time was not the

essence of the contract and that the defendants had also consented to lay

roads and divide the land into plots. It was further observed that substantial

amount had been paid by the plaintiff. The documents Exs.A.13 to Ex.A15

patta in the name of the plaintiff and his family members and documents

were noted and Exs.A19 to A21 were also noted, which revealed that the

plaintiff was running transport business and having three vehicles. It was

therefore held that the plaintiff has sufficient means to pay the balance sale

consideration. In view of this reason, it was finally held that the plaintiff https://www.mhc.tn.gov.in/judis

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was entitled for specific performance of the agreement and that time was not

the essence of the contract.

14.With reference to the contention in additional issues 1 and 2

regarding non joinder of the purchaser of the property, it was held that the

defendants alone were the title holders of the property and nobody else had

title to convey the property and therefore, the sale deed in favour of

Marappan would not convey any right, title or interest. It was therefore held

that Marappan was not a necessary party to the suit. Finally, the suit was

decreed granting specific performance of the agreement.

15.A.S.No.101 of 2012:

Challenging the said judgment and decree, the defendants filed the

present appeal.

16.Even before the appeal could be presented, the third defendant died

and her legal representatives were impleaded as 4

th

and 5

th

appellants.

During the pendency of the appeal, the first and second appellants also died

and their legal representatives were impleaded as sixth to tenth appellants. https://www.mhc.tn.gov.in/judis

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17.The respondent also died and his legal heirs were impleaded as

second to fourth respondents. The third respondent also died and her legal

heir was also impleaded as sixth respondent. The purchaser Marappan was

impleaded as the fifth respondent by the orders of the Hon’ble Supreme

Court as stated above.

18.Mr.P.Valliappan, learned Senior Counsel appearing on behalf of

the appellants took the Court through the facts of the case. The learned

Senior Counsel pointed out that the agreement between the plaintiff and the

defendants was dated 10.06.2006. The learned Senior Counsel contended

that the agreement had been admitted and receipt of advance sale

consideration of Rs.12,00,000/- was also admitted by the appellants. The

receipt of further additional sale consideration of Rs.18,00,000/- was also

admitted. The learned Senior Counsel however contended that the

respondent was never ready and willing to perform his part of the agreement.

The sale consideration was determined as Rs.20,90,000/- per acre. The total

area of land was 4.07 acres. The balance sale consideration payable was

Rs.55,06,300/-. The learned Senior Counsel pointed out that it was the

appellants who had issued notice on 14.04.2007 to the plaintiff. The https://www.mhc.tn.gov.in/judis

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plaintiff did not come forward to pay the balance sale consideration to

perform his part of the agreement. In this connection, the learned Senior

Counsel further pointed out that the parties had specifically mentioned that

the performance should be completed before the end of Ippasi month

according to the Tamil Calendar of the year 2006. The learned Senior

Counsel pointed out that the appellants/defendants, at the time they entered

into agreement had necessity to sell the property. But later, the

respondent/plaintiff had taken advantage of their position as ladies without

male support and had delayed the payment of balance sale consideration

waiting for the value of the property to increase. In this connection, the

learned Senior Counsel pointed out that the first legal notice issued by the

respondent was on 30.04.2009, nearly three years after the date of

agreement. The appellants had issued a reply notice on 05.05.2009. The

learned Senior Counsel stated that it was the respondent who delayed in

performing his part of the agreement in paying balance sale consideration.

Eventhough many documents had been filed during the trial, the learned

Senior Counsel pointed out that the respondent had failed to produce

necessary evidence to show that he was possessed with balance sale

consideration and that he was willing to pay the balance sale consideration. https://www.mhc.tn.gov.in/judis

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19.The learned Senior Counsel also pointed out Ex.B5, copy of the

plaint in O.S.No.352/2008 filed by the appellants before the Sub Court,

Tiruchengode, seeking a declaration that the sale deed in favour of

Marappan was null and void and for consequential reliefs. This suit had

been filed by the respondent in his capacity as Power of Attorney agent of

the appellants.

20.The learned Senior Counsel contended that the respondent had

failed to establish that he was ready and willing to perform his part of the

sale agreement and that he had not explained the reasons for the delay in

coming forward to pay the balance sale consideration or even in instituting

the suit. The learned Senior Counsel therefore contended that the appeal

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

set aside.

21.Mr.N.Manokaran, learned counsel for the first respondent/plaintiff

however contested and disputed the arguments advanced on behalf of the

appellants. The learned counsel pointed out that the agreement had been

admitted, the receipt of the advance sale consideration had been admitted, https://www.mhc.tn.gov.in/judis

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and the receipt of the additional advance sale consideration had also been

admitted. The learned counsel contended that in such circumstances, the

Court should direct specific performance. He contended that the appellants

had also appointed the first respondent as Power of Attorney agent. In the

meanwhile, the family members of the brothers of the appellants had sold

the suit schedule property to the fifth respondent Marappan. This

necessitated the first respondent to file O.S.No.352/2008 before the Sub

Court, Tiruchengode, as Power of Attorney agent, seeking a declaration that

the said sale deed was null and void. The learned counsel contended that

Marappan is neither a necessary party nor a proper party to the suit. He also

contended that the sale deed in favour of Marappan has to be rejected as the

vendor had no right, title or interest over the property to convey the same.

He further contended that the first respondent had produced necessary

documents to show possession of the properties, to show purchase of other

properties, to also show that he was running transport business. These

documents have been considered in their proper light by the learned Trial

Judge and it was very specifically held that the first respondent was

possessed with necessary funds to purchase the suit property. The learned

counsel also stated that there was also a counter obligation on the part of the https://www.mhc.tn.gov.in/judis

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appellants to measure the suit property. He stated that the first respondent

had called upon the appellants to come to the Sub Registrar’s Office and

execute the sale deed, but however they failed to do so. The learned counsel

stated that these supervening circumstances were responsible for the delay in

instituting the suit and claimed that it was not owing to the respondents, but

rather owing to the fact that the appellants were never bonafide in coming

forward to execute the sale deed. The learned counsel therefore contended

that the appeal should be dismissed and the judgment of Trial Court should

be upheld.

22.Mr.Gautham S.Raman, learned counsel for the fifth respondent

pointed out that the fifth respondent had purchased the property from the

family members of the appellants herein for valuable sale consideration. He

contended that the fifth respondent had also been put in possession. He

further contended that the fifth respondent had been impleaded by the

directions of the Hon’ble Supreme Court, wherein permission was granted to

raise all legal issues. He contended that the sale agreement between the

appellants and the first respondent stood obliterated owing to the sale deed

executed in favour of the fifth respondent. The agreement was sham and https://www.mhc.tn.gov.in/judis

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neither party was willing to perform their obligations under the said

agreement. The learned counsel stated that substantial interest had devolved

on the fifth respondent. He also contended that a separate suit had also been

instituted by the fifth respondent seeking declaration of title. The learned

counsel contended that the appeal should be dismissed, and that this Court

should declare the agreement between the appellants and the first respondent

as impossible of performance and should uphold the title of the fifth

respondent.

23.We have carefully considered the arguments advanced and perused

the materials on record. The following points arise for consideration under

Order 41 rule 30 CPC:

(i) whether specific performance can be

granted of the agreement dated 10.06.2006?

(ii) whether specific performance should be

denied owing to the alleged latches on the part of

the first respondent?

(iii) whether the first respondent had

established readiness and willingness to part with

the sale consideration? https://www.mhc.tn.gov.in/judis

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(iv) whether any right, title had been granted

in favour of the fifth respondent over the suit

schedule property?

Since all the points framed for consideration have to be addressed by

examining the oral and documentary evidence adduced by the parties, which

evidence is interlinked, all the points are taken up for consideration and

answered together.

24.The first respondent T.K.Kandhaswamy had entered into an

agreement of sale dated 10.06.2006 with the 1

st

, 2

nd

and 3

rd

appellants,

Ponnammal, Chinnammal and Kannammal, who were all sisters and

daughters of late Vellappa Gounder with respect to the suit schedule

property to purchase the same at the rate of Rs.20,90,000/- per acre. The

total area of the property was 4.07 acres. This agreement had been admitted

by the appellants. At the time of entering into the agreement of sale, an

advance sale consideration of Rs.12,00,000/- had been paid. The receipt of

this advance sale consideration had also been admitted by the appellants.

Thereafter, a further advance of Rs.18,00,000/- had been paid on

15.07.2006. The receipt of this additional sale consideration had also been

admitted by the appellants. https://www.mhc.tn.gov.in/judis

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25.The learned counsel for the first respondent Mr.N.Manokaran

placed reliance on the judgment of the Hon’ble Supreme Court reported in

2022 (7) SCC page 384, R.Ramasubbamma Vs. V.Vijayalakshmi and ors,

wherein in a similar circumstances where there was an admission of the

agreement and receipt of the advance sale consideration, the Hon’ble

Supreme Court had held as follows:

5.2 Considering the fact that original defendant No.

1 – vendor – original owner admitted the execution

of agreement to sell dated 12.04.2005 and even

admitted the receipt of substantial advance sale

consideration, the learned Trial Court decreed the

suit for specific performance of agreement to sell

dated 12.04.2005. 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 https://www.mhc.tn.gov.in/judis

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admitted the execution of the agreement to sell and

receipt of the advance sale consideration; thereafter

no further evidence and/or proof was required.

26.The learned counsel placed reliance on the said dictum and

contended that in the instant case, there has been admission of the agreement

and also receipt of the advance sale consideration and the additional sale

consideration, and therefore no further evidence or proof was required and

specific performance must be granted. The learned counsel therefore

contended that the learned Trial Judge had correctly decreed the suit.

27.However, Mr.P.Valliappan, learned Senior Counsel on behalf of

the appellants pointed out the time taken by the respondent to come forward

to perform his part of the obligation of payment of balance sale

consideration. The learned Senior Counsel widened the scope of arguments

by pointing that the agreement was dated 10.06.2006, and the parties had

expressly contended and agreed and stipulated that time was the essence of

the agreement and that breach would result in forfeiture of the advance and

if the appellants were not to come forward to execute the sale deed, then the

respondent should file a suit for specific performance after depositing the https://www.mhc.tn.gov.in/judis

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balance sale consideration into the Court. The learned Senior Counsel

pointed out that since deceased first respondent had never come forward to

deposit the balance sale consideration within the stipulated time. He

therefore contended that specific performance should not be granted since

the agreement had lapsed by efflux of time. He further pointed out that the

agreement had been entered into only because the appellants were in need, at

the time of execution of sale agreement, of financial assistance. But

however, the first respondent taking advantage of their position had

protracted the payment of the balance sale consideration. The learned

Senior Counsel therefore contended that in view of the fact that the first

respondent had not come forward to pay the balance sale consideration,

specific performance ought not to have been granted by the learned Trial

judge and therefore argued that the appeal should be allowed.

28.However, we are constrained to point that there were further

intervening circumstances which had occurred during the pendency of the

agreement. It is to be noted that a suit had been filed and injunction had

been granted not to deal with the property. Copy of the plaint in O.S.No.652

of 2023 was marked as Ex.A6 and the copy of the injunction application in https://www.mhc.tn.gov.in/judis

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I.A.No.1662/2003 was marked as Ex.A7. Injunction to deal with the

property was granted on 11.08.2003. It was pointed that this suit was

pending till the year 2013. It is thus seen that till the year 2013, the first

respondent had a reasonable explanation for not paying the balance sale

consideration. But that he was possessed of the balance sale consideration is

evident from the documents filed by him, namely, Ex.A13 (series), A14 and

A15 (series) which reflected possession of properties. The first respondent

had also filed Ex.A16, A17 and A18 which relate to renewal of permit for

running transport business. The registration certificate of the vehicles had

also been marked as Ex.A19, 20 & 21. The learned Trial Judge had placed

reliance on the said documents to come to a conclusion that the first

respondent was indeed possessed of funds.

29.A perusal of the facts revealed that the first respondent had paid a

total advance of Rs.30,00,000/- to the appellants and therefore, a conclusion

cannot be drawn that the first respondent was not possessed of funds. It is

also to be noted that in the meanwhile, the family members of the brothers of

the appellants had sold the property to the fifth respondent by sale deed

dated 20.12.2006. This is a substantial intervening circumstance, which https://www.mhc.tn.gov.in/judis

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necessitated the first respondent to file O.S.No.352 of 2008 before the Sub

Court, Tiruchengode. A copy of the plaint had been marked as Ex.B5. He

had sought a declaration that the sale deed was null and void. Therefore, the

suit property was mired with litigation.

30.We hold that these are plausible reasons for the first respondent to

withhold the payment of balance sale consideration. But however, it must

also be noted that he had issued a legal notice in Ex.B3 dated 30.04.2009

very specifically calling upon the appellants to come over to the Sub

Registrar’s Office at Tiruchengode on 15.05.2009 between 10.00 a.m. and

3.00 p.m. and execute the sale deed. The appellants had issued a reply on

05.05.2009 under Ex.A12 = Ex.B4. They had however avoided going over

to the Sub Registrar’s office to execute the sale deed.

31.In 2002 (8) SCC 146 Nirmala Anand vs Advent Corporation Pvt.

Ltd. & Ors, It had been held as follows:

“6. It is true that grant of decree of specific

performance lies in the discretion of the court and

it is also well settled that it is not always necessary https://www.mhc.tn.gov.in/judis

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to grant specific performance simply for the reason

that it is legal to do so. It is further well settled that

the court in its discretion can impose any

reasonable condition including payment of an

additional amount by one party to the other while

granting or refusing decree of specific

performance. Whether the purchaser shall be

directed to pay an additional amount to the seller

or converse would depend upon the facts and

circumstances of a case. Ordinarily, the plaintiff is

not to be denied the relief of specific performance

only on account of the phenomenal increase of

price during the pendency of litigation. That may

be, in a given case, one of the considerations

besides many others to be taken into consideration

for refusing the decree of specific performance. As

a general rule, it cannot be held that ordinarily the

plaintiff cannot be allowed to have, for her alone,

the entire benefit of phenomenal increase of the

value of the property during the pendency of the

litigation. While balancing the equities, one of the

considerations to be kept in view is as to who is the

defaulting party. It is also to be borne in mind

whether a party is trying to take undue advantage

over the other as also the hardship that may be https://www.mhc.tn.gov.in/judis

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caused to the defendant by directing specific

performance. There may be other circumstances on

which parties may not have any control. The

totality of the circumstances is required to be

seen.”

The dictum laid is when once discretion had been exercised granting

specific performance, it may not be appropriate to interfere with the same

unless it is specifically proved that one party is taking undue advantage. In

the instant case, while examining who is the defaulting party, it must be kept

in mind that the first respondent had paid substantial advance of

Rs.30,00,000/- which had been admitted by the appellants. The appellants

had not disclosed that an injunction order was prevailing in a suit filed

seeking partition and separate possession. The suit was pending and

injunction had also been granted. The first respondent therefore had a

reason for withholding the payment of balance sale consideration as any

conveyance would be subject to the result of the said suit. Further, the

family members of the brothers of the appellants had conveyed the property

to the fifth respondent. This sale deed was executed on 20.12.2006 within

just six months from the date of the agreement of the sale in favour of the https://www.mhc.tn.gov.in/judis

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first respondent. This is a substantial circumstance which the first

respondent had to contend with and therefore, he had to institute a suit in

O.S.No.352/2008 before the Sub Court, Tiruchengode on 27.02.2007 within

two months from the date of the sale deed seeking a declaration that the sale

deed was null and void. He had instituted the suit as power of attorney agent

of the appellants. Therefore, it is clear that the first respondent had taken all

required steps to protect the agreement in his favour and to assert the rights

which he had obtained. We hold that the defaulting party therefore are the

appellants who, after having received the advance sale consideration of

Rs.30,00,000/- and having admitted the said receipt had not come forward to

execute the sale deed.

32.The learned Senior Counsel for the appellants insisted that the

Court should examine the delay from the date of agreement till the date of

institution of the suit. But however, the reasons are available in the

documents filed and the evidence adduced. There was a suit for partition

which had been filed and injunction had also been granted against the

appellants from dealing with the property and inspite of the order of

injunction, they had entered into the agreement of sale. Thereafter, the https://www.mhc.tn.gov.in/judis

AS No. 101 of 2012

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family members of the brothers of the appellants had sold the property to the

fifth respondent necessitating the first respondent to institute the suit seeking

declaration that the sale deed is null and void. These suits were pending.

Therefore, the fact that there has been delay can never be placed against the

first respondent. In these circumstances, it can never be stated that the time

is the essence of the agreement.

33.The fifth respondent had been impleaded by the directions of the

Hon’ble Supreme Court. It had however been held that arguments should be

advanced only on the existing pleadings and no further additional pleadings

could be introduced. The fifth respondent had purchased the property from

the family members of the brothers of the appellants and it is the case of the

appellants and also of the first respondent that the vendors did not have any

right or interest to convey the property. It is also seen that the fifth

respondent had instituted a suit for declaration of title. The first respondent

as Power of Attorney agent had also instituted the suit seeking that the sale

deed should be declared as null and void. We are of the considered view

that the learned Trial Judge had examined all necessary factors before

exercising discretion to grant specific performance of the agreement of sale. https://www.mhc.tn.gov.in/judis

AS No. 101 of 2012

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34.We hold that the judgment of the Trial Judge does not require any

interference and we therefore dismiss the appeal with costs. The judgment

and decree of the Principal District Court, Namakkal, dated 12.09.2011,

passed in O.S.No.78 of 2009 is confirmed. Consequently, connected

miscellaneous petitions, if any, are also closed.

(C.V.K.,J.) (K.B.,J.)

11.02.2026

Index: Yes/No

Speaking/Non-speaking order

Neutral Citation: Yes/No

sli

To

The Principal District Court,

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

AS No. 101 of 2012

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C.V.KARTHIKEYAN, J.

AND

K.KUMARESH BABU, J.

sli

Pre-delivery Judgment in

AS No. 101 of 2012

11.02.2026 https://www.mhc.tn.gov.in/judis