2025:MHC:111IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on 18.12.2024

Pronounced on 07.01.2025

CORAM:

THE HONOURABLE MS.JUSTICE R.N.MANJULA

S.A.No.837 of 2016 and

C.M.P.No.16331 of 2016

Vimala

... Appellant / 2nd Defendant

Vs.

1.Kandasamy ... 1st respondent / plaintiff

2.Veluchamy

3.Mayilathal

... Respondents 2 & 3 / defendants 4 & 5

Prayer: Second Appeal is filed under Section 100 of the Code of Civil

Procedure, to set aside the judgment and decree dated 22.11.2011 rendered

in A.S.No.167 of 2004 on the file of the Principal District Judge,

Coimbatore, confirming the decree and the judgment dated 30.01.2003

rendered in O.S.No.830 of 1990 on the file of the subordinate Judge,

Coimbatore.

For Appellant: Mr.S.Subbiah, Senior Counsel for

Mr.A.V.Arun for P.Raja

For Respondents: Mr.S.Mukunth, Senior Counsel for

Mr.B.Thirumalai for R1

No appearance for R2 and R3

1/28

https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/05/2025 08:16:39 pm )

JUDGMENT

This Second Appeal has been filed to set aside the judgment and

decree dated 22.11.2011 rendered in A.S.No.167 of 2004 on the file of the

Principal District Judge, Coimbatore, confirming the decree and the

judgment dated 30.01.2003 rendered in O.S.No.830 of 1990 on the file of

the subordinate Judge, Coimbatore.

2. Heard Mr.S.Subbiah, learned Senior Counsel for the appellant and

Mr.S.Mukunth, learned Senior Counsel for R1 and perused the materials

available on record.

3. The second defendant is the appellant. The first respondent /

plaintiff has filed a suit seeking for a relief of specific performance against

the defendants 1 and 2. During the pendency of the suit, the first defendant

died and hence, her legal heirs have been impleaded as defendants 3 to 5.

The second defendant is a subsequent purchaser from the first defendant.

Therefore, she has also been impleaded as a party to the suit. The Trial

Court has decreed the suit and in the First Appeal preferred by the second

defendant, the First Appellate Court has dismissed the First Appeal and

2/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/05/2025 08:16:39 pm )

confirmed the judgment and decree of the Trial Court. Aggrieved over the

same, the second defendant has preferred this Second Appeal.

4. The brief facts stated in the plaint are as follows:

On 15.7.1987 the 1

st

defendant had entered into a sale agreement with

the plaintiff for a total sale consideration of Rs. 2,16,000/- and a sum of

Rs. 50,000/- has been paid as an advance amount to the 1

st

defendant by the

plaintiff and that has been stated in the agreement itself. The time to

complete the sale transaction has been agreed at 12 months. On the same

day when the sale agreement was entered, the plaintiff was put into

possession and the said fact has also been stated in the agreement. After

taking possession of the suit property, the plaintiff has converted the land

into house sites. The 2

nd

defendant is an adjacent owner of the suit property.

There is a public cart track having a width of 20 to 22 feet proceeding from

Maruthamalai Road through the 2nd defendant's land in Survey Nos. 157

and 158 and then through the suit property. The said cart track has been

used for the past 70 years.

3/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/05/2025 08:16:39 pm )

4.1. By coming to know about the sale agreement in favour of the

plaintiff, the 2

nd

defendant created troubles because she had already tried to

purchase the suit property from the 1

st

defendant. The 2

nd

defendant has

filed a suit against the 1

st

defendant in OS.No.1529 of 1987 before the Sub

Court in Coimbatore seeking the relief of permanent injunction against the

1

st

defendant, the plaintiff and others. Since the 2

nd

defendant has tried to

obstruct the cart track, the 1

st

defendant has also filed a suit in O.S.No.2703

of 1987 seeking the relief of permanent injunction. The plaintiff was

informed that the 1

st

defendant has settled the dispute with the 2

nd

defendant. Therefore, the plaintiff was all along ready and willing to

purchase the suit property as per the sale agreement. But the 1

st

defendant

did not settle the dispute in respect of the suit property with the 2

nd

defendant and had not come forward to execute the sale deed. Therefore, the

plaintiff had sent a legal notice on 08.08.1989 calling upon the 1

st

defendant

to execute the sale deed. In the meanwhile, the 1

st

defendant had executed a

sale deed in favour of the second defendant unmindful of the sale agreement

4/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/05/2025 08:16:39 pm )

in favour of the plaintiff. Hence, the plaintiff has filed the suit for specific

performance.

5.The averments made in the written statement filed by the 2

nd

defendant are as follows:

The suit sale agreement is a concocted one. The 1

st

defendant has

sold the suit property in favour of the 2

nd

defendant and hence, he did not

have any right to execute any sale agreement in favour of the plaintiff. The

first defendant executed a sale agreement of the suit property to the second

defendant on 05.04.1987 itself. The 2

nd

defendant is in possession and

enjoyment of the suit property in pursuant to the sale deed executed by the

1

st

defendant on 29.07.1989. The 1

st

defendant had executed a sale

agreement in favour of the second defendant even prior to the sale

agreement alleged to have been executed by her in favour of the plaintiff

and hence, this is a frivolous suit filed by the plaintiff.

5/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/05/2025 08:16:39 pm )

6. The averments made in the written statements filed by the third

and fifth defendants are as follows:

The suit sale agreement is not a genuine one. The 2

nd

defendant has

filed a suit against the 1

st

defendant in O.S.No.1529 of 1987 and the 1

st

defendant has also filed a suit in O.S.No.2703 of 1987 against the second

defendant and both the suits are pending. The plaintiff did not have any

wherewithal to purchase the suit property. The 2

nd

defendant has purchased

the suit property on 29.07.1989 from the 1

st

defendant for a sale

consideration of Rs.1,00,000/-. However, she had paid only a sum of

Rs.50,000/-. For the balance sale consideration, the 2

nd

defendant's husband

had executed a promissory note in favour of the 1

st

defendant. But he did

not pay any amount in pursuant to the same.

7. During the course of the trial, on the side of the plaintiff, one

witness has been examined as PW.1 and Ex.A1 to Ex.A32 were marked. On

the side of the defendants, two witnesses have been examined as D.W.1 and

D.W.2 and Ex.B1 to Ex.B11 were marked.

6/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/05/2025 08:16:39 pm )

8. After the conclusion of the trial and on considering the materials

available on record, the Trial Court has decreed the suit as prayed and the

First Appeal preferred by the 2

nd

defendant before the First Appellate Court

was also dismissed by confirming the judgment and decree of the Trial

Court. Hence, the 2

nd

defendant has preferred this Second Appeal. While

admitting this Second Appeal, the following substantial questions of law

were framed for consideration:

"1. Whether the suit filed by the purchaser for

specific performance in respect to an agreement of sale

having been terminated by a written notice by the vendor, is

maintainable without a declaration that the termination of

the contract of sale is null and void?

2. When the suit was filed nearly after three years

from the date of the agreement of sale and when there was

no explanation whatsoever by the plaintiff for not filing the

suit for specific performance at the earlier point of time,

simply because the suit was filed within the period of

limitation, still, whether the plaintiff would be entitled to

the equitable relief of specific performance under Section

16(c) of the Specific Relief Act?

3. Whether the Courts below are justified in granting

the discretionary relief for specific performance based on

agreement dated 15.07.1987 marked as Ex.A1 when

7/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/05/2025 08:16:39 pm )

admittedly the said agreement was cancelled by the owners

of the land by sending notice dated 19.02.1989 marked as

Ex.A24, especially, in the absence of any challenge to such

cancellation made by the agreement holder?"

9. The learned Senior Counsel for the appellant / second defendant

submitted that the 1

st

defendant has already issued a legal notice to the

plaintiff after the expiry of the 12 month time limit agreed upon in the sale

agreement, stating that the plaintiff's advance money would be forfeited in

view of his failure to pay the balance sale consideration and get the sale

deed executed. Since the sale agreement itself got cancelled, the decree

cannot be granted in favour of the plaintiff. Even the decree has been

granted only against the defendants 3 to 5 and not against the 2

nd

defendant

in whose favour the 1

st

defendant had executed the sale deed even prior to

the filing of the suit. The decree will not bind the interest of the 2

nd

defendant, who was the rightful owner at the time when the suit was filed.

Even though the defendants 3 to 5 executed a sale deed in favour of the

plaintiff subsequent to the decree passed in the suit, that will not take away

8/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/05/2025 08:16:39 pm )

the right of the 2

nd

defendant over the suit property as the Court has not

passed any decree against her though she was a party to the proceedings.

10. The learned Senior Counsel for the first respondent / plaintiff

submitted that the sale agreement in favour of the plaintiff was executed by

the first defendant on 15.07.1987. Thereafter, the second defendant has

created a sale agreement by using the old stamp papers in the name of the

second defendant by putting the date of execution of the sale agreement as

05.04.1987 in order to create a make belief that the sale agreement in favour

of the second defendant was executed prior to the sale agreement in favour

of the plaintiff. The second defendant is not a bonafide purchaser. In the

earlier suit filed by the second defendant for seeking the relief of injunction

against the first defendant, she has admitted her knowledge about the sale

agreement in favour of the plaintiff. Further, the second defendant did not

come to the witness box and subjected herself for examination. The first

defendant did not file any written statement when she was alive and the first

defendant's legal heirs who are D3 to D5 have filed their written statements,

wherein, they also did not raise any point as to cancellation of the sale

9/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/05/2025 08:16:39 pm )

agreement or that the suit is not maintainable in view of the cancellation of

the sale agreement.

11. The learned Senior Counsel further submitted that just because

the decree has not been passed by binding the second defendant, the

plaintiff is not deprived to get the benefit of the decree because the second

defendant can at the best claim right only through the 1st defendant. Since

the decree has been passed binding the legal heirs of the 1st defendant

[defendants 3 to 5] the sale deed in favour of the 2nd defendant can be

ignored.

12. The learned Senior Counsel for the appellant further submitted

that no issue has been framed by the Trial Court whether the plaintiff is

ready and willing to perform his part of contract. Without rendering any

finding on this aspect the decree for specific performance cannot be granted.

The time for performance is agreed at 12 months. The plaintiff did not

perform his part of contract and thereafter, the 1st defendant has given a

legal notice terminating the contract. The plaintiff himself has admitted that

10/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/05/2025 08:16:39 pm )

he has got the knowledge about the sale deed executed in favour of the 2nd

defendant within a week of its execution.

13. The suit has been based upon the sale agreement executed by the

first defendant in favour of the plaintiff on 15.07.1987. Even though the

second defendant who is the appellant herein has denied the execution of

the sale agreement, the party to the sale agreement viz., the first defendant

did not deny the same. The second defendant also taken a stand that Ex.A1

sale agreement has been cancelled by the first defendant through a legal

notice dated 19.02.1989. When the party to the sale agreement herself has

admitted the sale agreement and subsequently sent a notice (Ex.A24) for

cancelling the sale, it cannot lie in the mouth of the second defendant to

state that the sale agreement is not true.

14. Though the first defendant is a party to the sale agreement

between herself and the plaintiff, she is not a contesting party. The second

defendant alone is contesting this Second Appeal against the plaintiff. Since

the second defendant has purchased the suit property subsequent to the sale

agreement Ex.A1, has impleaded the first defendant also as a party to the

11/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/05/2025 08:16:39 pm )

proceedings. However, the second defendant has raised a point that the

plaintiff has filed the suit without seeking the relief to set aside the sale

deed dated 29.07.1989 executed by the first defendant in favour of the

second defendant.

15. In the judgment of this Court reported in 2020 (1) MWN 540, in

the case of A.Maheswari and Others Vs. R.Balasubramaniam and Others,

this Court has referred to the judgment of the Full Bench of the Hon'ble

Supreme Court in the case of Lala Durga Prasad and another Vs. Lala

Deep Chand and Others, reported in AIR 1954 SC 75. In Lala Durga

Prasad case, the Hon'ble Supreme Court has held that in the suit filed for

specific performance by the plaintiff, if there is an alienation of the

property after the agreement but prior to the suit, the plaintiff need not seek

the relief to set aside the subsequent alienation in the suit filed for specific

performance against the vendor. As the law is well settled on this point, it is

wrong on the part of the appellant to claim that the plaintiff ought to have

filed a suit for specific performance along with the relief of declaration as to

the sale deed dated 29.07.1989 (Ex.A25).

12/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/05/2025 08:16:39 pm )

16. The next argument advanced by the learned counsel for the

appellant is that even prior to the filing of the suit, the party to the sale

agreement viz., the first defendant has issued a legal notice to the plaintiff

by stating that the plaintiff did not come forward to finish the sale as agreed

in the sale agreement and hence, he is terminating the contract. It is

submitted by the learned Senior Counsel for the plaintiff that the first

defendant cannot terminate the contract as the plaintiff was all along ready

and willing to perform his part of contract. Unfortunately in the suit filed for

specific performance, the Trial Court has not framed a specific issue as to

the readiness and willingness on the part of the plaintiff in performing his

part of contract. Even the First Appellate Court had omitted to take note of

the above fact. The Courts below had focused on the sale agreement alleged

to have been executed in favour of the second defendant by the first

defendant even prior to Ex.A1 sale agreement in favour of the plaintiff.

17. The learned Senior Counsel for the plaintiff submitted that the old

stamp paper which was purchased in the name of the second defendant has

been made use to create the sale agreement dated 05.04.1987 (Ex.B2) just in

order to pretend that the first defendant had already executed the sale

13/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/05/2025 08:16:39 pm )

agreement in favour of the second defendant even before her agreement

with the plaintiff. It is for the first defendant to state whether she had

executed the sale agreement in favour of the plaintiff earlier in point of time.

The Trial Court has made an observation that in the additional written

statement filed by the legal heirs of the deceased first defendant, they have

admitted about the execution of the sale agreement in favour of the plaintiff

even before the sale agreement executed in favour of the second defendant.

18. It might be true that the old stamp papers have been used for the

purpose of creating the sale agreement in favour of the second defendant to

create a picture that the first defendant had executed the sale agreement with

the second defendant prior to her sale agreement with the plaintiff. But the

plaintiff has to prove his case on his own materials and merit that he is

entitled to the relief of specific performance. The relief of specific

performance being an equitable relief, it cannot be granted just because the

plaintiff had proved that the sale agreement Ex.A1 is true and valid.

19. The appellant / second defendant has claimed that time was the

essence of the sale agreement and that the plaintiff did not come forward to

14/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/05/2025 08:16:39 pm )

execute his part of contract by paying the balance sale consideration and

allowed the first defendant to issue notice Ex.A24 to terminate the contract.

As the plaintiff did not come forward to execute the sale deed, the first

defendant has issued a legal notice (Ex.A24) stating that the sale agreement

in favour of the plaintiff gets cancelled in view of his indifference in

complying the terms of contract. The plaintiff received the notice, but he did

not send any reply. So it is claimed by the second defendant that even if the

sale agreement in favour of the plaintiff is true, it got cancelled before the

sale deed Ex.A25 dated 29.07.1989 was executed in favour of the second

defendant.

20. In fact, the second defendant had claimed that the plaintiff ought

to have filed a suit by including the prayer for declaration that the

cancellation of the sale agreement Ex.A1 by the first defendant is null and

void before claiming the relief for specific performance. Since the plaintiff

believed that he had the right to seek the relief of specific performance, he

had filed a suit for seeking the same relief. It is for the second defendant to

disprove the claim of the plaintiff in case the plaintiff proves his

entitlement. So the second defendant cannot plead that the sale agreement

15/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/05/2025 08:16:39 pm )

Ex.A1 in favour of the plaintiff got cancelled in pursuant to Ex.A24 legal

notice.

21. Even the plaintiff also denied the fact of receiving the legal notice

Ex.A24. Until 08.08.1989, the plaintiff did not choose to send any reply

notice to the legal notice of the first defendant. The legal notice sent by the

plaintiff to the first defendant was on 08.08.1989 and it has been marked as

Ex.A26. The legal notice was sent by the plaintiff after he came to know

that a sale deed has been executed by the first defendant in favour of the

second defendant. However, it cannot be strictly stated that the plaintiff's

right to maintain the suit for specific performance is available to him only if

he seeks a relief for declaring the cancellation of the sale agreement by the

first defendant as null and void. The plaintiff has got a paramount duty to

prove that he has been all along willing to perform his part of contract and

that he is entitled to the relief of specific performance within the context of

Section 16(c) of the Specific Relief Act.

22. The legal notice has been sent by the first defendant to the

plaintiff on 19.02.1989 stating that the plaintiff did not come forward to

16/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/05/2025 08:16:39 pm )

perform his part of contract. But the plaintiff did not send any reply. So the

first defendant was at liberty to presume that the plaintiff has lost his

interest in getting the sale deed executed and proceed to find out some other

purchaser. It appears that the first defendant had found the second

defendant as a potential buyer and sold the suit property in her favour on

29.07.1989.

23. Immaterial of the fact whether the second defendant had her sale

agreement even prior to the sale agreement in favour of the plaintiff, the fact

remains that the sale agreement in favour of the second defendant came to

be executed only after the first defendant has sent a legal notice to the

plaintiff to cancel the sale agreement executed in his favour. Between the

period from 19.02.1989 on which date the first defendant sent a legal notice

Ex.A24 to the plaintiff till the legal notice sent by the plaintiff on

08.08.1989, the plaintiff was indifferent about the completion of the sale

transaction. In other words, the conduct of the plaintiff is such a way that he

had lost his interest in getting the sale deed executed. As the relief for

specific performance revolves around the proof of an important fact that the

plaintiff was all along ready and willing to perform his part of contract, the

17/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/05/2025 08:16:39 pm )

argument advanced on the side of the appellant that the plaintiff ought to

have claimed a relief for declaration that the termination of the sale

agreement is null and void cannot be of any significance. In view of the

above cited reasons, the judgments cited by the learned Senior Counsel for

the plaintiff to fortify the point that the plaintiff need not seek the relief of

declaration that the termination of the agreement is void, are not necessary.

24. Admittedly, the Trial Court did not frame an issue as to the

readiness and willingness on the part of the plaintiff to perform his part of

contract. Apart from the conduct of the plaintiff that he remains silent after

receiving the legal notice dated 19.02.1989 till 08.08.1989 when he sent

Ex.A26 legal notice, the evidence of the plaintiff also would reveal that

even after giving Ex.A24 notice he did not proceed to file a suit for specific

performance and delayed it for 10 months. P.W.1 has given a categorical

evidence that he did not have any reason for causing delay. Even though the

suit for specific performance filed by the plaintiff was within a period of

limitation that alone will not entitle the plaintiff to get the relief of specific

performance. Because his evidence would reveal that he could get the copy

of the sale deed dated 29.07.1989 in favour of the second defendant within

18/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/05/2025 08:16:39 pm )

10 days from the date of execution. Hence, there is no reason to wait and

watch for nearly one year without filing any suit for specific performance.

25. The only reason which was stated by the plaintiff in his evidence

was that after receiving notice from the first defendant, he waited and met

the first defendant in person and she had agreed to execute the sale deed.

But these facts were not pleaded by the plaintiff in his suit. The plaintiff has

stated that there was a dispute as to the contract in view of the objections

raised by the second defendant. Hence, he was requesting the first defendant

to settle the dispute before entering into a sale transaction.

26. Despite the plaintiff insisted to settle the dispute about cart track

with the second defendant, no interest was shown by the first defendant.

The suit filed by the first defendant in this regard against the second

defendant was in the year 1987 before the District Munsif, Coimbatore in

O.S.No.2703 of 1987. The suit filed by the second defendant against the

first defendant in this regard was also of the year 1987 in O.S.No.1529 of

1987. So the legal notice sent by the first defendant vide Ex.A24 dated

19.02.1989 was much later than the above said pending suits.

19/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/05/2025 08:16:39 pm )

27. When the first defendant has categorically stated in the legal

notice that the time is the essence of contract and advance amount paid by

the plaintiff will be forfeited, the first defendant did not come forward to get

the sale deed executed, any reasonable person in the place of the plaintiff

would have immediately sent a reply notice by stating that pending

litigation was the reason for the delay. But the plaintiff did not care to sent

any legal notice and his conduct would only show that he had lost interest in

getting the sale done in his favour by the first defendant.

28. After the plaintiff sent the legal notice, he did not file a suit

immediately. But he was waiting for nearly 10 months knowing pretty well

that the second defendant had already acquired title through the sale deed

executed by the first defendant in favour of the second defendant. Even

though the plaintiff has raised a plea that the second defendant is not a

bonafide purchaser, that argument would arise only if there is a legally

enforceable sale agreement is in subsistence between the plaintiff and the

first defendant and during that course, without knowing the existence of the

sale agreement, the second defendant purchased the suit property. But the

20/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/05/2025 08:16:39 pm )

facts and materials available in this case would only show that the plaintiff

has lost his interest and the first defendant also conveyed her intention that

she is not going to sell the suit property to the plaintiff as he did not come

forward within the specific time limit by sending Ex.A24 legal notice.

29. Since the first defendant herself has ignored the sale agreement in

favour of the plaintiff because the same was terminated by her, the second

defendant need not prove that she was a bonafide purchaser and it is enough

for her to prove that she is a purchaser of the suit property. Even though the

second defendant might know the sale agreement executed in favour of the

plaintiff, she has every reason to proceed and get the sale deed executed in

her favour because the first defendant had cancelled the sale agreement by

sending a legal notice to the plaintiff. On the other hand, the plaintiff has

got the bounden duty to prove that he was all along ready and willing to

perform his part of contract, but it was the first defendant who did not come

forward to execute the sale deed.

30. Firstly, the plaintiff ignored the legal notice sent by the first

defendant vide Ex.A24 and secondly, he was waiting for more than one year

21/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/05/2025 08:16:39 pm )

to file a suit even after he sent Ex.A26 notice to the first defendant after he

came to know about the sale deed executed in favour of the second

defendant. Except the pending litigation, the plaintiff had not stated any

other reason and even the reason of pending litigation was also not quoted

as a reason for finishing the sale transaction by sending any reply notice by

the plaintiff to the first defendant.

31. In the above circumstances, the second defendant did not have the

burden to prove that she is a bonafide purchaser. The Courts below ought to

have adverted the readiness and willingness on the part of the plaintiff to

perform his part of contract and that he proved his continuous readiness.

Without any reasons, the plaintiff had waited for nearly one year for filing

the suit after he sent the legal notice Ex.A26. The conduct exhibited by the

plaintiff after receiving the legal notice from the first defendant and the

reasonable delay he made after he sent a legal notice to the first defendant

vide Ex.A26 would only show that the plaintiff has lost his interest in

getting the sale deed executed in his favour. As the plaintiff had failed to

prove his readiness and willingness in term of Section 16(c) of the Specific

22/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/05/2025 08:16:39 pm )

Relief Act, the Courts below ought not to have granted the equitable relief

of specific performance.

32. In this regard, it is appropriate to cite the judgment of the Hon'ble

Supreme Court held in the case of His Holiness Acharya Swami Ganesh

Dassji Vs. Sita Ram Thapar, reported in (1996) 4 SCC 526. In the said

case, the Hon'ble Supreme Court has held that the factum of readiness and

willingness on behalf of the plaintiff to perform his part of contract is to be

adjudged with reference to the conduct of the party and the attending

circumstances. The Court may infer from the facts and circumstances

whether the plaintiff was ready and was always ready and willing to

perform his part of contract.

33. In the instant case, from the conduct of the plaintiff as well as the

circumstances and the fact proved before the Trial Court, the Court ought to

have arrived at a conclusion that the plaintiff was not ready and willing to

perform his part of contract. The readiness and willingness on the part of the

plaintiff has to be proved as per Section 16(c) of the Specific Relief Act.

The position of law in this regard remains constant prior and subsequent to

23/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/05/2025 08:16:39 pm )

the amendment of Specific Relief Act. The above position has been

confirmed by the judgment of the Division Bench of this Court held in the

case of Elango Vs. K.Kamalaveni (died) and 16 others, reported in 2023

(2) CTC 535. In the said judgment, the Division Bench of this Court has

held that the plaintiff has to lead a credible evidence that he is entitled to

the relief of specific performance and that he was always ready and willing

to perform his part of contract. In fact, it is held that even if the defendants

remained absent, the plaintiff has got the duty to establish the readiness

and willingness. In this regard, paragraph Nos.20, 21 and 22 of the above

judgment are extracted hereunder:

"20. It is strenuously argued by the learned Senior

counsel for the plaintiffs that the defendants have taken

contradictory pleas and having denied the suit sale

agreement itself in entirety it was not really incumbent on

the plaintiffs to prove 'readiness and willingness' and she

further contended that in any event the plaintiffs have

pleaded that they are always ready and willing to perform

their part of contract not only in the plaint but also in the

pre-suit notices exchanged between the parties.

21. This Court is unable to find any force in the

submissions made by the learned counsel for the

plaintiffs/respondents. Even in a case where the defendants

24/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/05/2025 08:16:39 pm )

remain ex-parte, the Court would not automatically grant a

decree for specific performance in favour of the plaintiffs.

The plaintiffs are bound to establish that they were always

ready and willing to perform their part of the essential

terms of the contract/agreement of sale. It is not sufficient

compliance of the law to merely state and plead that the

plaintiffs were always ready and willing.

22. A reading of Sec. 16 (c) extracted herein above,

clearly shows that it is not only a question of pleading but

also proof of such readiness and willingness, which is

material and mandatory for a plaintiff seeking the

discretionary relief of specific performance before the

Court of Law. Infact, Sec.16 (c) of the Act has been

amended by Act 18 of 2018 w.e.f 01.10.2018 and after the

amendment, in Sec.16 (c), the legislature has omitted the

requirement of pleading by removing the words 'to aver”.

Even though the amendment Act would not apply to the

facts of the present case, yet it is referred to for the reason

that the legislature has continued to insist on proof of

'readiness and willingness'. Therefore, prior to the

amendment as well as post the amendment of Sec.16(c) the

requirement to establish and prove 'readiness and

willingness' is not done away with. On the other hand, such

proof is sine qua non for a plaintiff to become entitled to

25/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/05/2025 08:16:39 pm )

the relief of specific performance which is an equitable and

discretionary one."

34. As the relief of specific performance is an equitable relief, the

Courts below ought to have weighed the equitable circumstances in a fair

and proper manner. As the Courts below had omitted to do the above

exercise by not properly evaluating the readiness and willingness on the part

of the plaintiff and proceeded to grant the relief of specific performance to

the plaintiff, the second substantial question of law is answered in

favour of the appellant / second defendant.

35. As the above substantial question of law has been answered in

favour of the appellant and which has a bearing on the result of the suit, the

substantial questions of law Nos.1 and 3 would loose significance even if

those legal positions might not be in favour of the second defendant. Since

the plaintiff has not proved his readiness and willingness and the second

substantial question of law in this regard has been answered in favour of the

appellant / second defendant, the judgment and decree of the First Appellate

Court and the Trial Court are liable to be set aside.

26/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/05/2025 08:16:39 pm )

36. In the result, this Second Appeal is allowed and the judgment and

decree dated 22.11.2011 made in A.S.No.167 of 2004 by the Principal

District Judge, Coimbatore is modified to the extent of decreeing the suit by

granting the alternate relief of refund of the advance amount of Rs.50,000/-

to the plaintiff along with interest at the rate of 9% from the date of filing

of the suit till the date of realization by the defendants 4 & 5 from the

estates of the first defendant inherited by them. Time for payment is one

month from the date of receipt of a copy of this order. No costs.

Consequently, connected miscellaneous petition is closed.

07.01.2025

Speaking order

Index : Yes

Neutral Citation: Yes

gsk

27/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/05/2025 08:16:39 pm )

R.N.MANJULA , J.

gsk

To

1.The Principal District Judge,

Coimbatore.

2.The subordinate Judge,

Coimbatore.

S.A.No.837 of 2016 and

C.M.P.No.16331 of 2016

07.01.2025

28/28 https://www.mhc.tn.gov.in/judis ( Uploaded on: 06/05/2025 08:16:39 pm )