Saradamani Kandappan vs S. Rajalakshmi & Ors

Mrs. Saradamani Kandappan ... Appellant

Vs.

Mrs. S. Rajalakshmi & Ors. ... Respondents

With

CIVIL APPEAL NOS. 4641-42/2002

Mrs. S. Rajalakshmi & Ors. ... Appellants

Vs.

Mrs. Saradamani Kandappan & Anr. ... Respondents

J U D G M E N T

R. V. Raveendran J.,

These appeals by special leave (CA Nos.7254 to 7256 of 2002) are

directed against the common judgment and decree dated 19.6.2002

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passed by the Madras High Court in O.S.A. Nos.12 of 1992, 32 of 1995

and 148 of 1999 filed by the appellant herein against the common

judgment dated 29.11.1991 passed by a learned Single Judge of that court

in Civil Suit Nos. 95/1984, 302/1989 and 170/1984 and filed by the

respondents herein. The appellants and respondents herein who were the

plaintiffs and defendants respectively in the three suits, will be referred,

for the purpose of convenience, by their ranks in the suit also.

2. Respondent Nos.2, 3 and 4 are respectively the son, daughter and

husband of first respondent. The first respondent is the owner of Survey

Nos. 13, 14 and 15, the second respondent is the owner of lands bearing

Survey Nos. 16 and 18 and the third respondent is the owner of Survey

Nos. 19 and 20, all situated in Chettiaragaram Village, Saidapet Taluk,

Chingleput District in all measuring 24 acres 95 cents. The said lands

along with the trees, wells, pump-houses, farm godowns, perimeter fence

and some furniture, are together referred to as the `schedule properties'.

Respondents 1 to 4 entered into agreement of sale dated 17.1.1981 with

the appellant herein for sale of the schedule properties, at a price of

Rs.15,000 per acre (in all Rs.3,74,250 rounded off to Rs.3,75,000). On

the date of the agreement, Rs.1,00,000 was paid as advance to

respondents, which was duly acknowledged in the agreement. Clauses 3,

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4, 5, 6, 7, 12 and 15 of the agreement which are relevant for our purposes

are extracted below :-

"3. The execution of the sale deeds shall depend upon the party of the

second part getting satisfied regarding the title to the land, so also the

nil encumbrance.

4. The mode of payment of the balance of Rs.2,75,000/- (Rupees Two

lakhs and seventy five thousand only) shall be as under :

(a) Rs.1,00,000/- (one lakh) on or before 28.2.1981

(b) Rs.1,00,000/- (one lakh) on or before 6.4.1981

(c) Rs.75,000/- (seventy five thousand) on or before 30.5.1981

5. If however any of the above mentioned dates are subsequently declared

as holidays then the next immediate working day shall be the day of the

payment.

6. The payments on due dates is the essence of this contract and in

case of failure on the part of the party of the second part, the party of

the first part shall cancel this agreement.

7. The sale deed shall be executed at the convenience of the party of the

second part as and when she wants them to be executed either in her name

or in the name of her nominee or nominees.

12. If the party of the second part finds the titles of the properties herein

above mentioned to be unsatisfactory or unacceptable, the party of the first

part shall be put on notice revealing her intention not to conclude the sale

and in such event if the party of the first part, fails to satisfy the party of

the second part regarding the title the party of the first part shall pay to the

party of the second part within three months the date there of all the

monies advanced by the party of the second part till then.

15. The party of the first part has a caretaker at present. From the day of

this agreement the party of the second part shall act as a caretaker for the

entire properties and be in trust of all the properties till the party of the

first part given the possession of the entire properties to the party of the

second part on payment of the sale amount i.e. after the entire sale amount

is paid.

(emphasis supplied)

3. On the same day (17.1.1981) the fourth respondent, in a letter

addressed to the appellant, acknowledged the receipt of Rs.1,25,000 paid

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on various dates as commission for the said transaction relating to sale of

the said 24.95 acres of land. By the said letter, he agreed that in case the

transaction of sale remained unconcluded or got cancelled because of the

default on the part of the sellers or buyers under the agreement dated

17.1.1981 or because of defective title, the entire amount of Rs.1,25,000

received by him as commission would be refunded within three months

thereof.

4. In pursuance of the said agreement the appellant paid further

advances of Rs.1,00,000 on 28.2.1981 and of Rs.25,000 on 2.4.1981. The

balance of 75,000 in regard to the instalment payable on 6.4.1981 and the

last instalment of Rs.75,000 payable on or before 30.5.1981 was not paid

by the appellant.

5. Respondents 1 to 3 caused a notice dated 2.8.1981 to be issued

through their counsel to appellant, cancelling the agreement dated

17.1.1981, on the ground of default in paying the balance of the sale

consideration, in exercise of their right to cancel the agreement on such

default, under clause 6 of the agreement. The relevant portion of the

cancellation notice is extracted below:

"My clients state that even at the time of entering into the said agreement

of sale, you looked into the documents of title and satisfied yourself about

the title of my clients to the said property. My clients were always ready

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and wiling to conclude the sale and expected you to pay the balance of

sale consideration of Rs.2,75,000/- in accordance with clause 4 of the said

agreement. Now that you have committed defaults in the payment of the

balance of consideration. Not withstanding the fact that you have not even

sent any communication whatsoever to my clients as to whether you were

ready and willing to pay the balance of consideration under the said

agreement, my clients waited for a long time and in the circumstances my

clients have no other alternative except to invoke clause 6 of the said

agreement. Accordingly, my clients hereby cancel the said agreement

dated 17th January 1981 entered into between yourself and my clients in

view of your failure to have paid the balance of sale consideration

according to clause 4 of the said agreement, as the payment of the

instalment on due dates was agreed to be the essence of the contract.

Please take notice that the said agreement dated 17.1.1981 has been

cancelled and my clients will be refunding the sum of Rs. 2,25,000/- only

so far received by them as aforesaid on their concluding the sale with any

third party and ascertaining the deficit, if any, in the sale price for

deducting the same from the amounts refundable to you in receipt of

which you may expect a communication from my clients on their

concluding the sale with third party".

6. The appellant sent a reply dated 7.8.1981 through counsel

contending that time was never intended to be the essence of the

agreement though it was formally mentioned in the agreement that time

was of the essence; that respondents had failed to produce the original

documents of title in spite of repeated demands and therefore it was

agreed between the appellant's husband and the fourth respondent during

discussions held in March 1981 in the presence of witnesses, that the

original documents would be made available as soon as possible and the

appellant should pay the balance only thereafter, and that sale should be

completed within a reasonable time of handing over the documents; and

that as a token of such understanding, a further advance of Rs.25,000 was

received on 2.4.1981. The appellant also denied the claim of the

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respondents that the appellant had got examined the documents of title

and satisfied herself about that title at the time of entering into the

agreement of sale. The appellant asserted that there was no default on her

part and contended as follows :-

"The allegation that your client was always ready and willing to conclude

the sale and expected my client to pay the balance of the sale

consideration of Rs. 2.75 lakhs in accordance with clause 4 of the said

agreement etc. is not correct. The very attitude your client is not giving the

documents of title for scrutiny from January 1981 for the past 6 months

will prove the hollowness of the claim. The further allegation that my

client has committed default in payment etc. is also not true, because my

client has already paid Rs. 2,25,000/- and on 2.4.1981 when the sum of

Rs. 25,000/- was paid it was specifically understood that the balance of

money will be paid and the sale will be completed within a reasonable

time as soon as the documents of title were handed over to her. Therefore,

the question of default in payment of the instalment does not arise.

Moreover, it is very unreasonable on the part of your client to allege that

default has been committed when the truth is otherwise.

My client is ready and willing to pay the balance of sale consideration and

have the sale completed provided the documents are handed over to her

immediately for scrutiny and approval. Once again in the circumstances

set out above, there is no default on the part of my client and she is always

ready and willing to perform her part of the agreement provided your

client hands over the documents for scrutiny and the title is found good to

the satisfaction of my client's legal advisers.

My client therefore stated that the purported cancellation of the agreement

by the said notice is not legal and valid and your client is called upon to

perform her part of the obligation, viz., the handing over of the original

documents forthwith and without any undue delay, so that the transaction

may be completed. I hope that your client will see the reasonableness in

the offer and will not precipitate the matter any further. My client expects

an early reply in this regard."

7. This brought forth a rejoinder dated 26.8.1981 from respondents 1

to 3 through their counsel. They denied the claim of the appellant that

there was a variation in the term regarding payment of balance

consideration in specified instalments. They also denied that such a

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variation was agreed at a meeting held in March 1981. They reiterated

that the time was the essence of the contract and that the agreement was

executed only after the appellant had satisfied herself about their title and

the respondent's husband had in fact taken true copies of all the

documents together with the encumbrance certificate upto 1980, and in

those circumstances, the question of appellant again seeking any

document of title did not arise. They contended that they were not bound

to deliver the original documents before payment of the entire price. It

was pointed out that payment of instalments relating to sale consideration

stipulated in the agreement did not depend upon the appellant satisfying

herself about the title after scrutinising the documents of title and that the

appellant had unconditionally agreed to pay the entire consideration on

the due dates mentioned in clause (4) of the agreement. It was further

pointed out that as appellant was already in possession of xerox copies of

the documents of title, if she wanted inspection of the originals, she could

have addressed a letter seeking inspection.

8. This brought forth a second reply dated 4.9.1981 from the

appellant, reiterating the averments in the reply notice dated 7.8.1981.

Thereafter the appellant got a public notice published in the newspaper

`Hindu' dated 11.11.1981 through her counsel, informing the public that

she had purchased the schedule properties (as also Sy. Nos.20/1, 21 and

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24) from respondents 1 to 3 through the fourth respondent and that she

was in possession thereof and was cultivating them. The notice further

stated that pending completion of documentation, she had learnt that

respondents were trying to resell the properties and issued a warning that

if any third party enters into any agreement with the owners, they will be

doing so at their own risk, and the same will not bind her. This public

notice brought forth two responses. The first was a notice dated

14.11.1981 from one Gulecha stating that the documents relating to Sy.

Nos. 16 and 18 were deposited with him by the second respondent as

security for a loan taken from him and that if appellant purchased the said

lands, she will be doing so at her risk. The second was a notice dated

14.11.1981 from respondent Nos. 1 to 3 through their counsel stating that

the claim of the appellant that she had purchased the lands bearing Nos.8,

10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 20/1, 21 and 24 and was in

possession thereof was false; the survey numbers mentioned were

erroneous; that after the agreement dated 17.1.1981 was cancelled, they

had entered into an agreement with a third party which fell through

because of the public notice, causing loss to them; that the appellant had

been appointed only as a caretaker of the lands under the agreement dated

17.1.1981 and the said appointment was cancelled and a new caretaker

had been appointed. Respondents 1 to 3 called upon the appellant to hand

over all movables on 19.11.1981 to the new caretaker.

9 9. In this factual background the appellant filed the following three

suits:-

(i) O.S. No. 1709/1981 on the file of the District Munsif, Poonamallee

against respondents 1 to 4 for a permanent injunction restraining the

respondents, their men and agents from in any way interfering with her

peaceful possession and enjoyment of the suit properties. (This suit was

subsequently transferred to Madras High Court and renumbered as C.S.

No.302 of 1989).

ii) C.S. No. 95/1984 on the file of Madras High Court, filed on

19.6.1982, against respondents 1 to 4 seeking a decree for specific

performance of the agreement of sale dated 17.1.1981 and a direction to

respondents 1 to 3 to execute a sale deed after receiving the balance.

iii) C.S. No. 170 of 1984 on the file of the Madras High Court, filed on

12.1.1984 against the fourth respondent for return of Rs.1,25,000/- paid

as commission along with the interest at market rate from 17.1.1981 to

date of payment.

10. The first two suits were resisted by the defendants contending that

time was of the essence of the term regarding payment of sale price and

that the agreement was cancelled as a consequence of default committed

by appellant in paying the balance sale price in terms of the agreement. It

was alleged that appellant's husband knew even before the agreement

was signed that the original documents were with State Bank of Mysore

and Gulecha and that the release of the documents could be obtained only

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on payment of amounts due and that could have been done only if the

appellant had paid the instalments in terms of the agreement.

11. The four respondents contested the third suit (C.S. No.170 of 1984)

filed against him by denying that he had received a commission of

Rs.1.25 lakhs and contending that it was received as security for due

performance of the contract in terms of the agreement dated 17.1.1981.

12. The following issues were framed in the injunction suit :

(i) Whether the plaintiff is entitled to the permanent injunction

as prayed for against the defendants?

(ii) To what reliefs, the plaintiff is entitled to?

The following issues were framed in the specific performance suit :

(1) Whether the plaintiff has committed breach of the contract

by way of default in payment and thus was lacking in

readiness and willingness to perform his part of the contract?

(2) Is the time essence of the contract?

(3) If so, whether the termination of the contract by the

defendant is valid?

(4) Is not the plaintiff entitled to specific performance?

(5) To what relief is the parties entitled?

Addl. Issue (1) : Whether the fourth defendant is a necessary and

proper party to the suit?

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Addl. Issue (2) : Whether by reason of filing of C.S. No. 170 of

1984, is the plaintiff entitled to specific

performance?

In the suit for refund of Rs.1,25,000/-, the following issues were framed:

(1) Whether the payment of Rs. 1,25,000/- made by the plaintiff

to the defendant on 17.1.1981 was towards the commission

charges as per the letter given by the defendant or towards

part of consideration for the sale in question?

(2) Whether the plaintiff is entitled to return of the said amount

of Rs.1,25,000/-.

(3) To what other relief, if any, the plaintiff is entitled?

13. Common evidence was recorded in the three suits. On behalf of the

plaintiff, three witnesses were examined, that is plaintiff as PW1 and one

Babu as PW-2 and one Balaraman as PW-3. Ex P-1 to P-20 were marked

on behalf of the plaintiff. On behalf of the defendants, two witnesses

were examined, that is one Rajendran as DW-1 and fourth defendant as

DW-2. Ex.D-1 to D-6 were marked on behalf of the defendants. After

considering the oral and documentary evidence, a learned Single Judge of

the High Court, by his common judgment dated 29.11.1991, dismissed all

the three suits.

14. Aggrieved by the said judgment, the appellant filed three original

side appeals. A Division Bench of the Madras High Court dismissed the

said appeals by common judgment dated 19.6.2002, affirming the

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judgment of the trial court. The Division Bench however directed the

respondents to repay Rs.3,50,000 (i.e. Rs.2,25,000 paid to defendants 1 to

3 and Rs.1,25,000 paid to defendant No. 4) with interest at 9% per annum

for the period during which the appellant was not acting as caretaker till

the complete payment was made. While disposing of the said three

appeals, the Division Bench also dismissed three applications. The first

(CMP No.2888/1996) was an application filed for appointment of an

Advocate Commissioner to note the existing condition and physical

features of the suit property. The second (CMP No.17401/1997) was an

application filed by the appellant's son to implead him as a party alleging

that the substantial part of the amounts paid to defendant came from him.

The third (CMP No.7471/1002) was an application by the appellant to

receive by way of additional evidence, a judgment rendered by this Court

in suo moto contempt proceedings, as also a letter from the appellant's

counsel to the Bank of India, Mylapore Branch and a reply thereto.

15. The learned Single Judge and the Division Bench, after exhaustive

consideration of the evidence, have recorded the following findings of

fact :

(a) Respondents 1 to 3 entered into an agreement dated 17.1.1981

agreeing to sell 24 acres 95 cents of land to the plaintiff for a

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consideration of Rs.3,75,000/- and received in all, Rs.2,25,000 as

advance.

(b) Plaintiff had paid an additional consideration of Rs.1,25,000 for the

movables and taken a letter from the fourth respondent describing it as

`commission', by way of security, with the understanding that if the sale

did not take place, the amount should be refunded.

(c) The time for payment of the balance sale price stipulated in Clause

(4) of the agreement of sale was the essence of the contract.

(d) Plaintiff's claim that in March, 1981, clause (4) regarding payment

schedule was modified by oral agreement under which it was agreed that

the instalments due on 6.4.1981 and 30.5.1981 could be paid after the

defendants satisfied the plaintiff about their title to the property agreed to

be sold, was not established by plaintiff. The terms of the agreement

remained unaltered.

(e) Plaintiff committed breach by failing to pay the sum of Rs.1,00,000

due on 6.4.1981 (except Rs.25,000 paid on 2.4.1981) and the sum of

Rs.75,000 due on 30.5.1981 and the defendants were therefore justified in

cancelling the agreement on 2.8.1981.

(f) The defendants did not deliver possession of the properties agreed

to be sold, to the plaintiff in part performance of the agreement of sale

dated 17.1.1981. The defendants delivered the property to the plaintiff in

trust to hold the same as caretaker, until the vendors received the entire

sale price and delivered possession. Therefore when the agreement was

cancelled and consequently the appointment as caretaker came to an end,

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the plaintiff became liable to return the suit schedule properties to the

defendants.

(g) The plaintiff and her husband had knowledge of the existence of

mortgage, before entering into the agreement of sale on 17.1.1981; and

the case put forth by the defendants that as per the understanding between

the parties, the defendants had to discharge the mortgage debts and secure

the original title deeds after receiving the entire consideration, merited

acceptance. As per the term of the agreement, the defendants had no

obligation to produce the original title deeds or proof of clearance of

loans, before plaintiff paid the entire sale consideration.

(h) The plaintiff failed to establish her readiness and willingness to

complete the sale in terms of the agreement and she was not entitled to

the relief of specific performance.

16. Feeling aggrieved by the judgment of the division bench, the

appellant has filed these appeals (CA Nos. 7254 to 7256 of 2002),

challenging the findings of fact arrived at by the High Court and also

raising some legal contentions. Where findings of fact recorded by the

learned single Judge (trial court) are affirmed by the appellate bench of

the High Court in appeal, this court will be reluctant to interfere with

such findings in exercise of jurisdiction under Article 136 of the

Constitution, unless there are very strong reasons to do so. On the

contentions urged, the following questions arise for our consideration:

15 (i) Whether the time stipulated for payment of balance consideration

was the essence of contract and whether the defendants were justified in

cancelling the agreement, when the time schedule stipulated for such

payment was not adhered to?

(ii) Whether the parties had agreed upon sequence of performance,

which required payment of balance consideration by appellant, as

stipulated in clause (4) of the agreement, only after the respondents

satisfied the appellant regarding their title to the lands?

(iii) Whether the respondents had failed to disclose the encumbrances

over the properties and thereby committed fraud, entitling the appellant

for extension of time stipulated for payment corresponding to the delay

caused by the fraud and consequently the cancellation of the agreement

by notice dated 2.8.1981 is illegal and invalid?

(iv) Whether an adverse inference ought to be drawn on account of the

non-examination of defendants 1 to 3 who were the vendors under the

agreement of sale?

Re: Question (i)

17. The appellant contends that time is not the essence of the

agreement of sale dated 17.1.1981. She contends that where the vendors

fail to give the documents of title to satisfy the purchaser about their title,

and the purchaser is ready and willing to perform the contract, the

termination of the agreement of sale by the vendors is illegal and amounts

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to breach of contract. They submit that High Court had failed to apply

section 55 of the Contract Act, 1872. Section 55 of Contract Act deals

with the effect of failure to perform at a fixed time, in contract in which

time is essential. Said Section is extracted below :

"Section 55. Effect of failure to perform at a fixed time, in contract in

which time is essential.-- When a party to a contract promises to do a

certain thing at or before a specified time, or certain things at or before a

specified time, and fails to do such thing at or before a specified time, the

contract, or so much of it as has not been performed, becomes voidable at

the option of the promisee, if the intention of the parties was that time

should be of essence of the contract.

Effect of such failure when time is not essential: If it was not the intention

of the parties that time should be of the essence of the contract, the

contract does not become voidable by the failure to do such thing at or

before the specified time; but the promisee is entitled to compensation

from the promisor for any loss occasioned to him by such failure.

Effect of acceptance of performance at time other than agreed upon: If, in

case of a contract voidable on account of the promisor's failure to perform

his promise at the time agreed, the promisee accepts performance of such

promise at any time other than agreed, the promisee cannot claim

compensation of any loss occasioned by the non-performance of the

promise at the time agreed, unless, at the time of acceptance, he give

notice to the promisor of his intention to do so."

The above section deals with the effect of failure to perform at a fixed

time, in contracts in which time is essential. The question whether time is

the essence of the contract, with reference to the performance of a

contract, what generally may arise for consideration either with reference

to the contract as a whole or with reference to a particular term or

condition of the contract which is breached. In a contract relating to sale

of immovable property if time is specified for payment of the sale price

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but not in regard to the execution of the sale deed, time will become the

essence only with reference to payment of sale price but not in regard to

execution of the sale deed. Normally in regard to contracts relating to sale

of immovable properties, time is not considered to be the essence of the

contract unless such an intention can be gathered either from the express

terms of the contract or impliedly from the intention of the parties as

expressed by the terms of the contract.

18. Relying upon the observation of this court in N.Srinivasa v.

Kuttukaran Machine Tools Ltd. [2009 (5) SCC 182] that "in the contract

relating to immovable property, time cannot be the essence of the

contract", the appellant put forth the contention that in all contracts

relating to sale of immovable property, time stipulated for performance,

even if expressed to be the essence, has to be read as not being the

essence of the contract and consequently the contract does not become

voidable by the failure to perform before the specified time. A careful

reading of the said decision would show that the sentence relied on

(occurring in para 31) apparently was not the statement of legal position,

but a conclusion on facts regarding the contract that was being considered

by the court in that case, with reference to its terms. In fact the legal

position is differently stated in para 27 of the said decision, thus:

18 "27. In a contract for sale of immoveable property, normally it is

presumed that time is not the essence of the contract. Even if there is

an express stipulation to that effect, the said presumption can be

rebutted. It is well settled that to find out whether time was the essence

of the contract. It is better to refer to the terms and conditions of the

contract itself."

19. The legal position is clear from the decision of a Constitution

Bench of this court in Chand Rani v. Kamal Rani [1993 (1) SCC 519],

wherein this court outlined the principle thus:

"It is a well-accepted principle that in the case of sale of immovable

property, time is never regarded as the essence of the contract. In fact,

there is a presumption against time being the essence of the contract.

This principle is not in any way different from that obtainable in

England. Under the law of equity which governs the rights of the

parties in the case of specific performance of contract to sell real

estate, law looks not at the letter but at the substance of the agreement.

It has to be ascertained whether under the terms of the contract the

parties named a specific time within which completion was to take

place, really and in substance it was intended that it should be

completed within a reasonable time. An intention to make time the

essence of the contract must be expressed in unequivocal language."

Relying upon the earlier decisions of this court in Gomathinayagam

Pillai v. Pallaniswami Nadar [1967 (1) SCR 227] and Govind Prasad

Chaturvedi v. Hari Dutt Shastri [1977 (2) SCC 539], this Court further

held that fixation of the period within which the contract has to be

performed does not make the stipulation as to time the essence of the

contract. Where the contract relates to sale of immovable property, it will

normally be presumed that the time is not the essence of the contract.

Thereafter this court held that even if time is not the essence of the

contract, the Court may infer that it is to be performed in a reasonable

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time : (i) from the express terms of the contract; (ii) from the nature of the

property and (iii) from the surrounding circumstances as for example, the

object of making the contract. The intention to treat time as the essence of

the contract may however be evidenced by circumstances which are

sufficiently strong to displace the normal presumption that time is not the

essence in contract for sale of land. In Chand Rani, clause (1) of the

agreement of sale required the balance consideration to be paid as under:

"Rs.98,000/- will be paid by the second party to the first party within a

period of ten days only and the balance Rs.50,000 at the time of

registration of the sale deed....". This court held that time regarding

payment of Rs.98,000 was the essence, on the following reasoning:

"The analysis of evidence would also point out that the plaintiff was not

willing to pay this amount unless vacant delivery of possession of one

room on the ground floor was given. In cross-examination it was deposed

that since income-tax clearance certificate had not been obtained the sum

of Rs. 98,000 was not paid. Unless the property was redeemed the

payment would not be made. If this was the attitude it is clear that the

plaintiff was insisting upon delivery of possession as a condition precedent

for making this payment. The income-tax certificate was necessary only

for completion of sale. We are unable to see how these obligations on the

part of the defendant could be insisted upon for payment of Rs. 98,000.

Therefore, we conclude that though as a general proposition of law time is

not the essence of the contract in the case of a sale of immovable property

yet the parties intended to make time as the essence under Clause (1) of

the suit agreement."

The intention to make time stipulated for payment of balance

consideration will be considered to be essence of the contract where such

intention is evident from the express terms or the circumstances

necessitating the sale, set out in the agreement. If for example, the vendor

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discloses in the agreement of sale, the reason for the sale and the reason

for stipulating that time prescribed for payment to be the essence of the

contract, that is, say, need to repay a particular loan before a particular

date, or to meet an urgent time bound need (say medical or educational

expenses of a family member) time stipulated for payment will be

considered to be the essence. Even if the urgent need for the money

within the specified time is not set out, if the words used clearly show an

intention of the parties to make time the essence of the contract, with

reference to payment, time will be held to be the essence of the contract.

20. Let us consider the terms of the agreement of sale in this case to

find out whether time was the essence. The standard agreements of sale

normally provide for payment of earnest money deposit or an advance at

the time of execution of agreement and the balance of consideration

payable at the time of execution/registration of the sale deed. In the

absence of contract to the contrary, the purchaser is bound to tender the

balance consideration only at the time and place of completing the sale

[see clause (b) of section 55(5) of Transfer of Property Act, 1882 `TP

Act' for short]. In this case we find that there is a conscious effort to

delink the terms relating to payment of balance price (clauses 4, 5 and 6)

from the term relating to execution of sale deed (clause 7) and making the

time essence only in regard to the payment of the balance sale

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consideration. There is also a clear indication that while time would be

the essence of the contract in regard to the terms relating to payment of

balance price, time would not be the essence of the contract in regard to

the execution of the sale deed. The intention making time essence of the

contract for payment of balance price is clear from the following : (a)

clause 4 requires the balance consideration to be paid in three instalments

that is Rs.1,00,000 on or before 28.2.1981; Rs.1,00,000 on or before

6.4.1981; and Rs.75,000 on or before 30.5.1981; (b) Clause 5 makes it

clear that if any of the abovementioned dates of payment is subsequently

declared as a holiday, then the next immediate working day shall be the

date of payment. This shows a clear intention that payment should be

made on the stipulated dates and even a day's delay was not acceptable

unless the due date was declared to be a holiday; (c) Clause 6 specifically

stipulates that the payments on due dates is the essence of the contract

and in case of failure on the part of the purchaser the vendors shall cancel

the agreement.

21. On the other hand, if we look at the terms relating to performance

of sale, there is a clear indication that time was not intended to be the

essence, for completion of the sale. Clause 3 provides that the execution

of sale deed shall depend upon the second party (purchaser) getting

satisfied regarding the title to the lands, so also the nil encumbrance. It is

22

significant that the said clause does not say that payment of balance

consideration shall depend upon the purchaser getting satisfied regarding

title or nil encumbrances. Clause 7 provides that the sale deed shall be

executed at the convenience of the purchaser, as and when she wants

them to be executed either in her name or in the name of her nominee or

nominees. Clause 12 provides that if the second party (purchaser) finds

the title of the properties to be unsatisfactory or unacceptable, the vendors

shall be put on notice about her intention not to conclude the sale and in

such an event, if the vendors fail to satisfy the purchaser regarding their

title, the vendors shall pay to the purchaser within three months from that

date, all monies advanced by the purchaser till then. It is thus evident

from clause 12 also that the payments of balance sale price in three

instalments on the specified due dates were not dependent upon the

further examination of title or the satisfaction of the purchaser about the

title. It is clear that the purchaser on the basis of whatever initial

examination she had taken of the documents, had unconditionally agreed

to pay the amounts in three instalments of Rs.1,00,000 on or before

28.2.1981; Rs.1,00,000 on or before 6.4.1981 and Rs.75,000 on or before

30.5.1981; and if the purchaser was not thereafter satisfied with the title

or found the title unacceptable and if the vendors failed to satisfy her

about their title when she notified them about her dissatisfaction, the

vendors had to refund all payments made within three months. Thus it is

23

categorically made clear in the agreement that time regarding payment of

balance price was the essence of the contract and such payment was not

dependent upon the purchaser's satisfaction regarding title.

22. Apart from the above, the plaintiff in her evidence admitted that

time for performance was the essence of the contract vide the following

questions and answers :

Q : The payment of the due date and in case of failure on the part of the

party of second part, the party of the first part shall cancel the agreement.

Is this in the agreement or not?

Ans. Yes. The dates and the title are important.

Q : Do you know that everywhere in this agreement one thing is made

clear that time is the essence of the agreement ?

Ans. Yes. Time is the essence of the contract and also the title must be

proved in the agreement.

Her evidence also shows that she apparently did not have the funds to pay

the balance of Rs.75,000 due on 6.4.1981 and Rs.75000/- due on

30.5.1981 as was evident from the Bank pass book. It was therefore

possible that being not ready to perform the contract in terms of the

agreement, the appellant had invented a modification in the terms of the

agreement. The learned Single Judge and the Division Bench have

recorded a concurrent finding that the time was the essence of the

contract and that no change was agreed in respect of the agreement terms

24

as alleged by the appellant. The appellant is unable to place any material

which calls for reversal of the said findings. Therefore it has to be held

that time regarding payment stipulated in clauses (4), (5) and (6) of the

agreement of sale was the essence of the contract and failure of the

appellant to adhere to it, justified cancellation of the agreement by the

respondents.

An aside regarding the principle "time is not of the essence" for

future consideration

23. It is of some interest to note that the distinction between contracts

relating to immovable properties and other contracts was not drawn by

section 55 of Contract Act (or any other provisions of Contract Act or

Specific Relief Act, 1963). Courts in India made the said distinction, by

following the English law evolved during the nineteenth century. This

Court held that time is not of the essence of the contracts relating to

immovable properties; and that notwithstanding default in carrying out

the contract within the specified period, specific performance will

ordinarily be granted, if having regard to the express stipulation of the

parties, nature of the property and surrounding circumstances, it is not

inequitable to grant such relief. [vide Gomathinayagam Pillai (supra),

Govind Prasad Chaturvedi (supra) and Indira Kaur v. Sheo Lal Kapoor -

1988 (2) SCC 188 and Chand Rani (supra) following the decision of

25

Privy Council in Jamshed Khodaram Irani v. Burjorji Dhunjibhai - AIR

1915 PC 83 and other cases]. Of course, the Constitution Bench in Chand

Rani made a slight departure from the said view.

24. The principle that time is not of the essence of contracts relating to

immovable properties took shape in an era when market value of

immovable properties were stable and did not undergo any marked

change even over a few years (followed mechanically, even when value

ceased to be stable). As a consequence, time for performance, stipulated

in the agreement was assumed to be not material, or at all events

considered as merely indicating the reasonable period within which

contract should be performed. The assumption was that grant of specific

performance would not prejudice the vendor-defendant financially as

there would not be much difference in the market value of the property

even if the contract was performed after a few months. This principle

made sense during the first half of the twentieth century, when there was

comparatively very little inflation, in India. The third quarter of the

twentieth century saw a very slow but steady increase in prices. But a

drastic change occurred from the beginning of the last quarter of the

twentieth century. There has been a galloping inflation and prices of

immovable properties have increased steeply, by leaps and bounds.

Market values of properties are no longer stable or steady. We can take

26

judicial notice of the comparative purchase power of a rupee in the year

1975 and now, as also the steep increase in the value of the immovable

properties between then and now. It is no exaggeration to say that

properties in cities, worth a lakh or so in or about 1975 to 1980, may cost

a crore or more now.

25. The reality arising from this economic change cannot continue to

be ignored in deciding cases relating to specific performance. The steep

increase in prices is a circumstance which makes it inequitable to grant

the relief of specific performance where the purchaser does not take steps

to complete the sale within the agreed period, and the vendor has not

been responsible for any delay or non-performance. A purchaser can no

longer take shelter under the principle that time is not of essence in

performance of contracts relating to immovable property, to cover his

delays, laches, breaches and `non-readiness'. The precedents from an era,

when high inflation was unknown, holding that time is not of the essence

of the contract in regard to immovable properties, may no longer apply,

not because the principle laid down therein is unsound or erroneous, but

the circumstances that existed when the said principle was evolved, no

longer exist. In these days of galloping increases in prices of immovable

properties, to hold that a vendor who took an earnest money of say about

10% of the sale price and agreed for three months or four months as the

27

period for performance, did not intend that time should be the essence,

will be a cruel joke on him, and will result in injustice. Adding to the

misery is the delay in disposal of cases relating to specific performance,

as suits and appeals therefrom routinely take two to three decades to

attain finality. As a result, an owner agreeing to sell a property for

Rs.One lakh and received Rs.Ten Thousand as advance may be required

to execute a sale deed a quarter century later by receiving the remaining

Rs.Ninety Thousand, when the property value has risen to a crore of

rupees.

26. It is now well settled that laws, which may be reasonable and valid

when made, can, with passage of time and consequential change in

circumstances, become arbitrary and unreasonable.

26.1) In Rattan Arya v. State of Tamil Nadu - (1986) 3 SC 385, this

Court held:

"We must also observe here that whatever justification there may have

been in 1973 when Section 30(ii) was amended by imposing a ceiling of

Rs. 400 on rent payable by tenants of residential buildings to entitle them

to seek the protection of the Act, the passage of time has made the ceiling

utterly unreal. We are entitled to take judicial notice of the enormous

multifold increase of rents throughout the country, particularly in urban

areas. It is common knowledge today that the accommodation which one

could have possible got for Rs. 400 per month in 1973 will today cost at

least five times more. In these days of universal day to day escalation of

rentals any ceiling such as that imposed by Section 30(ii) in 1973 can only

be considered to be totally artificial and irrelevant today. As held by this

court in Motor General Traders v. State of A.P. (1984) 1 SCC 222, a

provision which was perfectly valid at the commencement of the Act could

28

be challenged later on the ground of unconstitutionality and struck down

on that basis. What was once a perfectly valid legislation, may in course

of time, become discriminatory and liable to challenge on the ground of

its being violative of Article 14."

(emphasis supplied)

26.2) In Malpe Vishwanath Acharya v. State of Maharashtra - (1998) 2

SCC 1 a three Judge bench of this court considered the validity of

determination of standard rent by freezing or pegging down the rent as on

1.9.1940 or as on the date of first letting, under sections 5(10)(B), 7,

9(2)(b) and 12(3) of the Bombay Rents, Hotel and Lodging House Rates

Control Ac, 1947. This court held that the said process of determination

under the Act, which was reasonable when the law was made, became

arbitrary and unreasonable in view of constant escalation of prices due to

inflation and corresponding rise in money value with the passage of time.

This Court held:

"In so far as social legislation, like the Rent Control Act is concerned, the

law must strike a balance between rival interests and it should try to be

just to all. The law ought not to be unjust to one and give a

disproportionate benefit or protection to another section of the society.

When there is shortage of accommodation it is desirable, nay, necessary

that some protection should be given to the tenants in order to ensure that

they are not exploited. At the same time such a law to be revised

periodically so as to ensure that a disproportionately larger benefit than the

one which was intended is not given to the tenants......

Taking all the facts and circumstances into consideration, we have no

doubt that the existing provisions of the Bombay Rent Act relating to the

determination and fixation of the standard rent can no longer be

considered to be reasonable......"

The principle underlying the said decisions with reference to statutes,

would on the same logic, apply to decisions of courts also.

29 27. A correct perspective relating to the question whether time is not of

the essence of the contract in contracts relating to immovable property, is

given by this court in K.S. Vidyanadam and Others vs. Vairavan - (1997)

3 SCC 1 (by Jeevan Reddy J. who incidentally was a member of the

Constitution Bench in Chand Rani). This Court observed:

"It has been consistently held by the courts in India, following certain

early English decisions, that in the case of agreement of sale relating to

immovable property, time is not of the essence of the contract unless

specifically provided to that effect.

In the case of urban properties in India, it is well-known that their

prices have been going up sharply over the last few decades -

particularly after 1973. .........We cannot be oblivious to the reality

and the reality is constant and continuous rise in the values of urban

properties - fuelled by large scale migration of people from rural

areas to urban centres and by inflation.

Indeed, we are inclined to think that the rigor of the rule evolved by

courts that time is not of the essence of the contract in the case of

immovable properties - evolved in times when prices and values were

stable and inflation was unknown - requires to be relaxed, if not

modified, particularly in the case of urban immovable properties. It is

high time, we do so."

(emphasis supplied)

Therefore there is an urgent need to revisit the principle that time is not of

the essence in contracts relating to immovable properties and also explain

the current position of law with regard to contracts relating to immovable

property made after 1975, in view of the changed circumstances arising

from inflation and steep increase in prices. We do not propose to

undertake that exercise in this case, nor referring the matter to larger

bench as we have held on facts in this case that time is the essence of the

30

contract, even with reference to the principles in Chand Rani and other

cases. Be that as it may.

28. Till the issue is considered in an appropriate case, we can only

reiterate what has been suggested in K.S. Vidyanadam (supra) :

(i) Courts, while exercising discretion in suits for specific

performance, should bear in mind that when the parties

prescribe a time/period, for taking certain steps or for

completion of the transaction, that must have some significance

and therefore time/period prescribed cannot be ignored.

(ii) Courts will apply greater scrutiny and strictness when

considering whether the purchaser was `ready and willing' to

perform his part of the contract.

(iii) Every suit for specific performance need not be decreed merely

because it is filed within the period of limitation by ignoring the

time-limits stipulated in the agreement. Courts will also `frown'

upon suits which are not filed immediately after the

breach/refusal. The fact that limitation is three years does not

mean a purchaser can wait for 1 or 2 years to file a suit and

obtain specific performance. The three year period is intended

to assist purchasers in special cases, as for example, where the

major part of the consideration has been paid to the vendor and

possession has been delivered in part performance, where equity

shifts in favour of the purchaser.

31

Re: Question (ii)

29. Before the learned Single Judge, the appellant had concentrated on

the contention that time for payment was not the essence of the contract

and therefore the failure to pay the second instalment on or before

6.4.1981 and the final instalment on or before 30.5.1981 did not entitle

the vendors to cancel/terminate the agreement. As that contention was

rightly rejected by the learned Single Judge, the emphasis before the

Division Bench was on the contention that the term regarding payment

was altered by an oral understanding. It was contended that though time

was the essence of the contract in regard to payments, it was equally

necessary for the defendants to produce original title deeds to show that

there were no encumbrances over the suit properties; that after paying the

first instalment of Rs.1,00,000 on 28.2.1981, the plaintiff and her

husband got doubts about the original title deeds as they learnt that the

properties had been mortgaged; that therefore the plaintiff's husband

along with his friends Babu (PW2) and Balaraman (PW3) went to

defendants' house in March, 1981 and made inquiries and then the

defendants requested for some more time promising that they would get

original title deeds for verification and therefore on 2.4.1981 only

Rs.25000 was paid towards the second instalment of Rs.1,00,000 due on

6.4.1981 with the understanding that the balance of Rs.75,000 towards

32

the second instalment as also the third instalment would be paid only

after the production of original title deeds. Therefore the contention was

that though time regarding payment was essence of the contract and the

balance consideration of Rs.2,75,000 had to be paid in three instalments

of Rs.1,00,000, Rs.1,00,000 and Rs.75000 on 28.2.1981, 6.4.1981 and

30.5.1981 respectively, there was an alteration in those terms, as per an

oral understanding in March, 1981 to postpone payment of the second

and third instalments, till the original documents of title were produced

by the defendants. In short the emphasis of the plaintiff was on an oral

agreement altering the time schedule and the terms which made time for

payment the essence of the contract. Neither the Single Judge nor the

Division Bench accepted the claim of appellant that there were any such

discussions or oral understanding in March 1981 leading to variation in

terms or that the time for payment was postponed.

30. Before this court there was again a significant shift in the stand of

the appellant. Faced with the finding that time for payment was the

essence and that there was no change in the terms relating to payment, the

emphasis is on a different contention based on section 52 of the Contract

Act. The appellant contended that the agreement of sale laid down the

order in which the reciprocal promises were to be performed; that it first

required respondents 1 to 3 as vendors, to furnish the original title deeds

33

and a nil encumbrance certificate to satisfy the appellant about their title;

that the appellant had to pay the balance of the sale price only after the

vendors discharged their said obligation; that the appellant was entitled to

withhold the balance sale price till the vendors discharged their liabilities,

secured the original title deed and delivered them to her and satisfied her

about their title; and that without performing their obligation by

producing the original title deeds, the vendors cannot expect performance

by the purchaser, to pay the balance price. The appellant contended that

courts below failed to appreciate the scope of section 51 to 54 of Contract

Act. To appreciate the said contention it is necessary to refer to sections

51 to 53 of the Contract Act.

31. Section 51 provides that when a contract consists of reciprocal

promises to be simultaneously performed, no promisor need perform his

promise, unless the promisee is ready and willing to perform his

reciprocal promise. For example, if the contract provides that the balance

of sale consideration shall be paid by the purchaser to the vendor against

execution of sale deed within a period of three months, the purchaser

need not pay the balance sale consideration if the vendor was not willing

to execute the sale deed. Similarly the vendor need not execute the sale

deed unless the purchaser is ready to pay the balance sale consideration.

34 32. Section 52 relates to the order of performance of reciprocal

promises. It provides that where the order in which reciprocal promises

are to be performed is expressly fixed by the contract, they shall be

performed in that order; and where the order is not expressly fixed by the

contract, they shall be performed in that order which the nature of the

transaction requires. Let us illustrate with reference to an agreement of

sale which provides that the vendor shall make out to the satisfaction of

the purchaser a good, marketable and subsisting title and provide all

documents as required by the purchaser to satisfy him about the title of

the vendor, that the vendor shall obtain a certificate of clearance from a

specified authority for the sale, that the sale shall be completed within a

period of four months of receipt of the clearance certificate and the

purchaser shall pay the balance sale price at the time of registration of the

sale. It is evident that the vendor will have first to make out a title by

producing the documents required by the purchaser and also obtain the

clearance certificate. Only thereafter the sale deed shall have to be

executed and payment of the sale consideration will have to be made at

the time of registration of the sale deed. The vendor cannot seek payment

of the balance sale price without performing his obligations as per the

agreement.

35 33. Section 53 provides that when a contract contains reciprocal

promises, and one party to the contract prevents the other from

performing his promise, the contract becomes voidable at the option of

the party so prevented; and he is entitled to compensation from the other

party for any loss which he may sustain in consequence of the non-

performance of the contract. Let us take by way of illustration an

agreement which provides that out of the sale price Rs.10,00,000,

Rs.1,00,000 was paid as advance, Rs.4,00,000 was to be paid within one

month to enable the vendor to purchase an alternative property and shift

his residence from the property agreed to be sold, and the sale deed has to

be executed within three months from the date of agreement of sale and

vacant possession of the premises should be given, against payment of

balance price. If the purchaser failed to pay Rs.4,00,000 within one

month and thereby prevented the vendor from purchasing another

property and shifting to such premises, the vendor will not be able to

perform his obligation to deliver vacant possession. Thus the contract

becomes voidable at the option of the vendor.

34. Section 54 of Contract Act provides that when a contract consists

of reciprocal promises, such that one of them cannot be performed, or that

its performance cannot be claimed till the other has been performed, and

the promisor of the promise last mentioned fails to perform it, such

36

promisor cannot claim the performance of the reciprocal promise, and

must make compensation to the other party to the contract for any loss

which such other party may sustain by the non-performance of the

contract. The agreement in this case provides a good illustration for this

section. The purchaser cannot claim that the vendors should produce the

original title deeds and satisfy her regarding their title, or claim execution

of the sale deed, unless and until she paid the entire consideration within

the time stipulated in clause (4) of the agreement, which would enable the

vendors to repay the loans and obtain release of the original title deeds.

35. The appellant contends that clause (3) of the agreement provides

that execution of the sale deed shall depend upon the purchaser getting

satisfied regarding (vendors') title to the lands and that the property is not

subject to any encumbrance; that the said clause precedes clause (4)

requiring payment of balance consideration of Rs.2,75,000 in three

instalments; and that shows that the intention of parties was that the

satisfaction of the purchaser in regard to the vendors' title to the land and

encumbrance, was a condition precedent for payment of the balance

consideration. In other words, it is contended that the contract provides

the order in which reciprocal promises are to be performed, by placing

clause (3) before clause (4), that is the vendors should first satisfy the

purchaser regarding title of the vendors and only when that promise is

37

performed by the vendors, the question of purchaser performing her

promise to pay the balance consideration would arise.

36. The order of performance of reciprocal promises does not depend

upon the order in which the terms of the agreement are reduced into

writing. The order of performance should be expressly stated or provided,

that is, the agreement should say only after performance of obligations of

vendors under clause (3), the purchaser will have to perform her

obligations under clause (4). As there is no such express fixation of the

order in which the reciprocal promises are to be performed, the

appellant's contention is liable to be rejected. We have already noticed

that the contract contains two different streams of provisions for

performance. One relates to payment of the balance consideration by the

purchaser in the manner provided, which is not dependent upon any

performance of obligation by the vendors. It is significant that clause (4)

of the agreement did not say that the balance of the sale price shall be

paid only after the vendors satisfied the purchaser in regard to title or that

the purchaser shall pay the balance of sale price only after she satisfies

herself regarding title of the vendors to the lands. Nor does clause (3)

contain a provision, after stating that execution of the sale deed shall

depend upon the purchaser getting satisfied regarding title to the land as

also the nil encumbrance, that the payment of sale consideration will also

38

depend upon such satisfaction regarding title and nil encumbrance. As

noticed above there is an unconditional promise to pay the balance

consideration in three instalments and the said promise by the purchaser

is not dependent upon performance of any obligation by vendors. The

contract specifically states that having paid the balance price, if the

purchaser is not satisfied about the title and on being intimated about the

same if the vendors fail to satisfy the purchaser about their title, all

amounts paid towards the price should be refunded to purchaser. This

clearly demonstrates that the payment of balance of sale price in terms of

the contract was not postponed nor made conditional upon the purchaser

being satisfied about the title, but that payment of the balance price

should be made to the vendors as agreed unconditionally. In fact if the

intention of the parties was that only after the vendors satisfying the

purchaser about their title, balance consideration had to be paid, clause

(12) would be redundant as the situation contemplated therein would not

arise. Further, if that was the intention, the purchaser would not have paid

Rs.1,00,000 as further advance on 28.1.1981 and Rs.25,000 on 2.4.1981.

It is therefore clear that the contract does not expressly (or even

impliedly) specify the order of performance of reciprocal promises, as

alleged by the appellant.

39 37. The terms of the contract makes it clear that payment of sale price

did not depend on execution of the sale deed. The sale deed was not

required to be executed within any specific period. The purchaser had to

fulfil her obligation in regard to payment of price as provided in clause 4

and thereafter vendors were required to perform their reciprocal promise

of executing the sale deed, whenever required by the purchaser, either in

her name or in the names of her nominees. The sale deed had to be

executed only after payment of complete sale consideration within the

time stipulated. In these circumstances, section 52 of the Contract Act

does not help the appellant but actually supports the vendors-respondents.

Re: Question (iii)

38. Learned counsel for the appellant next submitted that the lands

belonging to the first respondent were mortgaged to Bank of India, the

lands belonging to the second defendant were mortgaged to one Gulecha,

the lands belonging to third respondent were mortgaged to State Bank of

Mysore and therefore none of the original title deeds were in the custody

of vendors; that having regard to section 55 (1) of Transfer of Property

Act, 1882 (`TP Act' for short) the vendors were bound to disclose to the

purchaser, any material defect in their title to the property; that the failure

of vendors to disclose the existence of the mortgages/encumbrances

amounted to fraudulent conduct within the meaning of section 55 of TP

40

Act. It was submitted that the vendors had deliberately failed to disclose

the existence of the said encumbrances to the purchaser and thereby

committed a fraud which made the purchaser to enter into an agreement

of sale and part with a potion of the sale consideration in advance; that

when the purchaser got doubts and insisted on production of the original

title deeds, the fourth respondent took time to get the original title deeds

and agreed that the balance of sale price due may be paid after production

of sale deeds. It was submitted that having regard to section 55 of the TP

Act, failure to disclose the encumbrances amounted to fraud; and in view

of such fraud by the respondents, the appellant was prevented from

performing her part of the contract by paying the balance price before the

agreed dates and therefore the appellant was entitled to extension of

further time for performing her promise to pay the balance price,

corresponding to the delay caused by such fraud, having regard to the

provisions of section 34 of the TP Act.

39. Section 55 of TP Act lists the rights and liabilities of the buyer and

the seller in the absence of a contract to the contrary. The relevant portion

of section 55 reads thus:

"55. Rights and liabilities of buyer and seller -- In the absence of a

contract to the contrary, the buyer and the seller of immovable

property respectively are subject to the liabilities, and have the rights,

mentioned in the rules next following or such of them as are applicable

to the property sold:

41

(1) The seller is bound-

(a) to disclose to the buyer any material defect in the property or in the

seller's title thereto of which the seller is, and the buyer is not, aware,

and which the buyer could not with ordinary care discover;

(b) to produce to the buyer on his request for examination all

documents of title relating to the property which are in the seller's

possession or power;

(c) to answer to the best of his information all relevant questions put to

him by the buyer in respect to the property or the title thereto; x x x x x

Section 34 of the TP Act relied upon by appellant, is extracted

below:

"34. Transfer conditional on performance of act, time being

specified

Where an act is to be performed by a person either as a condition to be

fulfilled before an interest created on a transfer of property is enjoyed

by him, or as a condition on the non-fulfilment of which the interest is

to pass from him to another person, and a time is specified for the

performance of the act, if such performance within the specified time

is prevented by the fraud of a person who would be directly benefited

by non-fulfilment of the condition, such further time shall as against

him be allowed for performing the act as shall be requisite to make up

for the delay caused by such fraud. But if no time is specified for the

performance of the act, then, if its performance is by the fraud of a

person interested in the non-fulfilment of the condition rendered

impossible or indefinitely postponed, the condition shall as against him

be deemed to have been fulfilled."

40. Whenever a party wants to put forth a contention of fraud, it has to

be specifically pleaded and proved. It is significant that the plaint does

not allege any fraud by the defendants. Evidence shows that before the

agreement was entered, the purchaser's husband and legal advisor had

examined the xerox copies of the title deeds and satisfied themselves

about the title of the vendors. The appellant in her evidence clearly

42

admits that xerox copies of the title deeds were shown to her husband.

The agreement of sale provided that the sale would depend upon

purchaser getting satisfied about the title of the vendors. The manner in

which the agreement was drafted by the purchaser shows that the

purchaser and/or her husband were made aware of the encumbrances.

Firstly there is no provision in the agreement that the lands were not

subject to any encumbrances. Secondly, the provision for payment of sale

price within a specified time does not link the payment to execution of a

sale deed. Thirdly the contract provided that on execution of the

agreement the purchaser will take possession as care taker of the suit

schedule properties and that on complete payment of the sale price on

30.5.1981, she will be entitled to possession in part performance and that

the execution of the sale deed will be whenever required by the

purchaser, totally disconnected with either payment of price or delivery

of possession. All these provisions demonstrate that the vendors were in

urgent need of money, that the purchaser was made aware of the

encumbrances, that on the purchaser paying the sale price, the vendors

had to clear the encumbrances and thereafter convey the property, free

from encumbrances. The contention that the vendors deliberately or

intentionally suppressed any information regarding the pending

encumbrances or the fact that the original documents were not available

and thereby committed fraud is neither pleaded nor proved.

43 41. The appellant did not allege in the plaint, any fraud on the part of

vendors, in regard to suppression of encumbrances over the property. The

entire plaint tried to justify that the plaintiff did not commit breach of

contract by not paying the balance instalments on 6.4.1981 and

30.5.1981, except for a stray sentence that the plaintiff will be entitled to

proceed against the third defendants 1 to 3 for damages, for not

performing their part of the contract and not disclosing several prior

encumbrances over the property. In the written statement the defendants

submitted that the encumbrance certificate upto the year 1980 had been

given to appellant's husband, which showed the encumbrance in favour

of State Bank of Mysore, that plaintiff and her husband both knew before

entering into the agreement of sale that original documents were with the

said bank and that therefore the allegation that the encumbrance was not

disclosed was false. It was also disclosed in the written statement, that a

document was surreptitiously detained by one Gulecha. It was stated that

the defendants intended to utilise the last two instalments for securing

back the original documents by discharging the loans. It is not disputed

that the amount due to Gulecha was around Rs.40,000 and the amount

due to State Bank of Mysore was around Rs.39,000 and any of the last

two instalments would have been sufficient to discharge the said

liabilities. The appellant having committed default in paying the last two

instalments which would have enabled discharging the debts, can not find

44

fault with the vendors by contending that they did not secure the original

title deeds. If the mortgage/encumbrance was made known to appellant's

husband and if it had been understood that the same would be cleared

from the last of the instalments paid by the appellant, the absence of

original title deeds could not be made a ground for not paying the last two

instalments. The claim of the appellant that the vendors should have

cleared all the encumbrances before payment of the last two instalments

is not borne out by any evidence. Even in law, the obligation of the

vendors is to convey an encumbrance free, good and marketable title

subject to contract to the contrary. The stage of execution of sale deed

had not arrived as the appellants did not paid the amount due in terms of

the contract.

42. The appellant contended that the debt due to the Bank of India had

been fraudulently suppressed by the vendors. There is no reference to

such a mortgage either in the plaint or the evidence of the plaintiff. No

one has been examined from the bank nor any document produced to

prove the existence of such mortgage. Appellant attempted to produce

some documents relating to the said mortgage with an application under

Order 41 Rule 27 CPC which was rejected by the High Court. Before us,

the appellants relied upon the decision in Bank of India v. Vijay

Transport [2000 (8) SCC 512] which related to the bank's suit against

45

Vijay Transport of which the first respondent was stated to be a partner.

The said decision of this court discloses that proceedings were

commenced in the year 1975 against the firm in which the first

respondent was a partner, for recovery of Rs.18,14,817.91 in the Court of

Sub-Judge, Eluru; that the partnership firm raised a counter claim of Rs.

34,48,799 against the Bank; and that on 6.7.1976 the Bank's suit was

decreed only for Rs.1,00,418/55 whereas the counter claim of the first

respondent was decreed for Rs.34,48,799 with costs. The bank filed an

appeal before the High Court which was allowed on 20.9.1983 and the

Bank's suit was decreed for Rs.18,49,209.70 with interest and the firm's

counter claim was dismissed. But what is significant and relevant is the

fact that as on the date of the agreement of sale (17.1.1981) the first

defendant was not a debtor of Bank of India but on the other hand the

bank itself was a debtor to the extent of more than Rs.33,00,000 with

interest. Therefore the contention of the appellant that an encumbrance in

favour of Bank of India was in existence and that was not disclosed and

the said liability was not disclosed, is wholly untenable. From the

evidence on record as rightly held by the courts below it is not possible to

make out either any fraud or any suppression or failure to disclose facts

on the part of the respondents.

46 43. We are therefore of the view that the failure of the appellant to pay

the balance of Rs.75,000 on 6.4.1981 and failure to pay the last

instalment of Rs.75,000 on or before 30.5.1981 clearly amounted to

breach and time for such payment was the essence of the contract, the

respondents were justified in determining the agreement of sale which

they did by notice dated 2.8.1981 (Ex. P5). Therefore rejection of the

prayer for specific performance is upheld.

44. We may next briefly deal with the correctness of the dismissal of

the suit for injunction. The appellant was not put in possession of the suit

properties in part-performance of the agreement of sale. Under clause 15

of the agreement of sale, she was only entrusted with the suit schedule

properties as a caretaker until possession is given on receipt of the entire

sale consideration. As neither the entire sale consideration was paid nor

possession delivered, the plaintiff remained merely a caretaker and on

cancellation of the agreement of sale by the respondents, the plaintiff

became liable to leave the suit schedule properties as the possession

continued to be with the defendants. As appellant never had `possession'

she was not entitled to seek a permanent injunction to protect her

possession. We have held that the cancellation of agreement was

justified and upheld the rejection of the suit for specific performance. In

the circumstances, the dismissal of the suit for injunction by the learned

47

Single Judge, affirmed by the Division Bench, is also not open to

challenge.

45. We also find no reason to interfere with the dismissal of the suit for

recovery of Rs.1,25,000 from the fourth respondent. The trial court held

that the said amount was not paid as commission but was paid as

consideration for the movables. The said suit was dismissed by the trial

court. In the High Court the learned counsel for the appellant during

arguments clearly stated that the appellant was not pressing for any

decree against the fourth respondent in view of the finding that the

amount paid was part of the consideration for movables. Therefore the

dismissal of suit for Rs.1,25,000 is also upheld.

46. The division bench to do broad justice and work out the equities,

took note of the offer of the defendants in their written statement to

refund the amount paid as advance and directed the defendants to refund

the sum of Rs.2,25,000 paid to defendants 1 to 3 under the agreement and

Rs.1,25,000 paid to the fourth respondent, in all, Rs.3,50,000 with

interest at 9% per annum for the period when the appellant was not acting

as a care taker till date of payment. We find no reason to interfere with

the direction to refund Rs.3,50,000 with interest. We however propose to

make a modification in regard to the rate of interest and the period for

48

which interest is payable. The High Court has awarded interest on the

sum of Rs.3,50,000 at 9% per annum for the period in which the

appellant had not acted as caretaker till the date of payment. As noticed

above, the agreement of sale does not provide for forfeiture of the

amounts paid as advance under any circumstances and on the other hand,

specifically provides that if the plaintiff was not satisfied with the title of

the defendants, the amounts received as advance would be refunded. In

fact, the respondents, in their written statement, offered to refund the

amount. Therefore, the High Court ought to have granted interest from

the date of cancellation of the agreement (2.8.1981) to date of payment.

The High Court was not justified in restricting the interest to only for the

period during which the appellant had not acted as caretaker. The liability

to refund the advance has nothing to do with the appointment of the

plaintiff as caretaker or the obligation of the plaintiff to return the

property on cancellation of the agreement. Having regard to the facts and

circumstances, we are of the view that the rate of interest shall be

increased to 12% per annum instead of 9% per annum.

Re : Question No. (iv)

47. The appellant contended that none of the three vendors (defendants

1, 2 and 3) stepped into the witness box to give evidence and therefore an

49

adverse inference should be drawn against them that the case put forth by

them is incorrect. Reliance was also placed on the decisions of this court

in Vidhyadhar v. Mankikrao & Anr. (1999) 3 SCC 573 and Balasaheb

Dayandeo Naik (Dead) through LRs. and Ors. v. Appasaheb Dattatraya

Pawar (2008 ) 4 SCC 464 in that behalf. There were four defendants in

the suit. Defendants 1,2 and 3, who were the owners of the lands were

respectively the wife, son and daughter of the fourth defendant. It is an

admitted position that the entire transaction was done on behalf of the

defendants 1,2 and 3 by defendant No.4 who alone had complete

knowledge of the entire transaction. Fourth defendant has given evidence

on behalf of all the other defendants. When one of the defendants who is

conversant with the facts has given evidence, it is not necessary for the

other defendants to be examined as witnesses to duplicate the evidence.

The legal position as to who should give evidence in regard to the matters

involving personal knowledge have been laid down by this court in Man

Kaur (dead) by LRS. v. Hartar Singh Sangha (2010) 10 SCC 512. This

court has held that where the entire transaction has been conducted

through a particular agent or representative, the principal has to examine

that agent to prove the transaction; and that where the principal at no

point of time had personally handled or dealt with or participated in the

transaction and has no personal knowledge of the transaction, and where

the entire transaction has been handled by the agent, necessarily the agent

50

alone can give evidence in regard to the transaction. This court further

observed:

"Where all the affairs of a party are completely managed, transacted and

looked after by an attorney (who may happen to be a close family

member), it may be possible to accept the evidence of such attorney even

with reference to bona fides or 'readiness and willingness'. Examples of

such attorney holders are a husband/wife exclusively managing the affairs

of his/her spouse, a son/daughter exclusively managing the affairs of an

old and infirm parent, a father/mother exclusively managing the affairs of

a son/daughter living abroad."

Therefore the evidence of the fourth defendant (examined as DW2) was

sufficient to put forth the case of the defendants and there was no need to

examine the other three defendants who did not have full or complete

knowledge of the transactions. In the circumstances we find no merit in

the contention that the suits ought to have been decreed, as defendants 1,2

and 3 did not step into the witness box.

Re : Contempt Petition (C) Nos.28-29/2009 :

48. The appellant has filed these contempt petitions praying that

respondents 1 to 4 be punished for committing contempt of the order

dated 11.11.2002 made in C.A. Nos.7254-7256/2002. The appellant filed

the said appeals aggrieved by the common judgment dated 19.6.2002

passed by the Division Bench of the High Court, affirming the dismissal

of the three suits of appellant for injunction, for specific performance and

for refund of Rs.1,25,000/-. This Court on 11.11.2002 while granting

51

leave in the special leave petitions, made an interim order that the

respondent shall not encumber the property in any manner.

49. The appellant alleges that one Jeevanandam filed three suits against

respondents 1 to 3 in the years 2007 and 2008 for injunctions and other

reliefs, alleging that he had entered into three Memorandum of

Understanding (MOU for short) dated 5.7.2002 with them, under which

they had agreed to enter into agreements of sale in regard to the suit

schedule properties; that he had paid advances to each of them on

5.7.2002, and that he had further paid to respondents 1 to 3 in the years

2004 and 2005, a sum of Rs.1,50,00,000. The appellants contend that the

alleged act of receiving Rs.1,50,00,000 in the years 2004 and 2005 by

respondents 1 to 3 from Jeevanandam, amounted to creating an

encumbrance over the suit property and thereby respondents 1 to 3 have

committed contempt of the order dated 11.11.2002 of this Court. The

appellant also wants this court to hold an enquiry and hold that the MOUs

were actually entered subsequent to the interim order dated 11.11.2002,

but deliberately anti-dated to get over the interim order and therefore the

execution of the said MOUs also amounts to creating an encumbrance. It

is not necessary for us to examine the question whether the MOUs were

anti-dated as the said question is not relevant as will presently be seen,

52

apart from the fact that no material has been produced by the appellant to

establish the said allegation.

50. An `encumbrance' is a charge or burden created by transfer of any

interest in a property. It is a liability attached to the property that runs

with the land. [See National Textile Corporation vs. State of

Maharashtra - AIR 1977 SC 1566 and State of H.P. vs. Tarsem Singh -

2001 (8) SCC 104]. Mere execution of an MOU, agreeing to enter into an

agreement to sell the property, does not amount to encumbering a

property. Receiving advances or amounts in pursuance of an MOU would

not also amount to creating an encumbrance. The MOUs said to have

been executed by respondents 1 to 3 provide that agreements of sale with

mutually agreed terms and conditions will be entered between the parties

after clearance of all pending or future litigations. Therefore the MOUs

are not even agreements of sale. In these circumstances, it is not possible

to hold that the respondents have created any encumbrances or violated

the order dated 11.11.2002. Hence, these contempt petitions are liable to

be rejected.

51. We make it clear that nothing stated in this order on the contempt

petitions will be construed as an expression of any opinion on the merits

of the dispute between Jeevanandam and respondents 1 to 3, and

53

necessarily any pending litigation between them will have to be decided

on the merits of the respective cases.

CIVIL APPEAL NOS. 7254-7256 OF 2002

52. These appeals are filed by the vendors - defendants 1 to 3 (who are

respondents 1 to 3 in C.A. Nos.7254-7256/2002). They are aggrieved by

the judgment and decree of the Division Bench in O.S.A. No.12/1992

(arising from the specific performance suit) and O.S.A.No. 148/1999

(arising out of the money suit) whereby the Division Bench directed

defendants 1 to 3 to jointly repay Rs.3,50,000 with interest at 9% per

annum during the period the plaintiff was not acting as a caretaker till the

date of payment. Defendants 1 to 3 urge the following contentions :

(a) In their written statement (filed in the specific performance suit),

their offer was to repay the amount advanced was a conditional offer

subject to the plaintiff not obstructing the defendants from interfering

with the property or filing any frivolous, mischievous or vexatious suit

and voluntarily handing over the possession of the property. They had not

unconditionally agreed to repay the sum of Rs.3,50,000. As the plaintiff

failed to hand over the possession and obstructed the defendants from

selling the property, the offer to return the advance had stood withdrawn.

(b) During the pendency of the Original Side Appeals, the plaintiff was

permitting to continue in possession as Receiver of the suit properties and

she had reaped a huge benefit of more than Rs.37,00,000 due to

54

continuing in possession for about 15 years. As the plaintiff was

permitted to retain the said benefit, no further benefit ought to have been

given by directing refund of the sum of Rs.3,50,000 with interest.

53. The fact that defendants 1 to 3 received Rs.2,25,000 out of the sale

price of Rs.3,75,000 is not in dispute. Similarly, there is no dispute that

the fourth defendant had received a sum of Rs.1,25,000 from the plaintiff

and agreed to refund the said amount if the sale remained unconcluded or

if the agreement of sale was cancelled. The division bench of the High

Court found fit to award the said amount, after affirming the decision

rejecting the prayer for specific performance, in view of the offer made

by defendants 1 to 3 in their written statement to repay the amounts

received towards the sale consideration. We have held that the time

stipulated for payment of the balance price by the plaintiff was the

essence of the contract and when the same was not paid, defendants 1 to 3

were justified in cancelling the sale agreement. But, we also found that

there was no provision in the agreement for forfeiture of the amounts

already paid, even in the event of breach by the purchaser. On the other

hand it provides that if the vendors did not satisfy the purchaser in regard

to their title, the amounts received would be refunded. The consistent

case of the plaintiff was that the defendants 1 to 3 failed to satisfy her

about their title.

55 54. Further, defendants 1 to 3 in their written statement filed in the

specific performance suit had agreed to refund all amounts received by

them from the plaintiff. It is true that the offer was conditional upon the

plaintiff not creating any hindrance in the way of the defendants by filing

false, frivolous and mischievous suits. Though we have affirmed the

decision of the learned Single Judge and the Division Bench that the

plaintiff is not entitled to the relief of specific performance, it cannot be

said that the plaintiff had filed false, frivolous and mischievous suits. In

view of the above, in terms of the agreement and in terms of its offer, the

plaintiff was entitled to recover the amounts paid by her. A sum of

Rs.2,25,000 was paid under the agreement of sale to defendants 1 to 3.

The finding of the learned Single Judge that the sum of Rs.1,25,000 paid

by the plaintiff to the fourth defendant was also the consideration for the

movables in addition to the consideration of Rs.3,75,000 under the

agreement of sale, was not been challenged by the defendants. In the

circumstances, the Division Bench was justified in granting a decree in

favour of the plaintiff for Rs.3,50,000 with interest. These appeals are

therefore liable to be dismissed.

Conclusion :

56 55. In view of the foregoing the appeals and contempt petitions are

disposed of as follows:

(i) C.A. Nos.7254-7256/2002 are allowed in part only in regard to the

rate of interest and period for which interest is payable, with respect to

the decretal amount of Rs.3,50,000/-. We direct that respondents 1 to 3

shall refund the sum of Rs.3,50,000/- to appellant as directed by High

Court, with interest at 12% per annum from 2.8.1981 to the date of

payment. Subject to the aforesaid modification in regard to the period for

which interest is payable and rate of interest, the judgment of the Division

Bench of the Madras High Court is upheld in its entirety.

(ii) Contempt Petition Nos.28-29/2009 are dismissed.

(iii) C.A. Nos.4641-4642/2003 are dismissed.

(iv) Parties are directed to bear their respective costs.

As a consequence, CS No. 170/1984 and CS No. 302/1989 stand

dismissed. CS No. 95/1984 is decreed in part in favour of the appellant

for Rs.3,50,000 with interest at 12% per annum from 2.8.1981 to date of

payment.

...............................J.

(R V Raveendran)

New Delhi; ............................J.

July 4, 2011 (K S Radhakrishnan)