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.
As per the term of the agreement, the defendants had numberobligation to produce the original title deeds or proof of clearance of loans, before plaintiff paid the entire sale companysideration.
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 .
Thereafter the appellant got a public numberice published in the newspaper Hindu dated 11.11.1981 through her companynsel, informing the public that she had purchased the schedule properties as also Sy.
Now that you have companymitted defaults in the payment of the balance of companysideration.
The fact that defendants 1 to 3 received Rs.2,25,000 out of the sale price of Rs.3,75,000 is number in dispute.
7254 to 7256 of 2002 , challenging the findings of fact arrived at by the High Court and also raising some legal companytentions.
iii C.S. No.
The following issues were framed in the injunction suit Whether the plaintiff is entitled to the permanent injunction as prayed for against the defendants?
The payments on due dates is the essence of this companytract 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.
The appellant filed the said appeals aggrieved by the companymon 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/ .
The appellant sent a reply dated 7.8.1981 through companynsel companytending 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 appellants 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 companypleted 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.
Is the time essence of the companytract?
The learned Single Judge and the Division Bench, after exhaustive companysideration of the evidence, have recorded the following findings of fact 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 companysideration of Rs.3,75,000/ and received in all, Rs.2,25,000 as advance.
Whether the respondents had failed to disclose the encumbrances over the properties and thereby companymitted fraud, entitling the appellant for extension of time stipulated for payment companyresponding to the delay caused by the fraud and companysequently the cancellation of the agreement by numberice dated 2.8.1981 is illegal and invalid?
The numberice further stated that pending companypletion 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 number bind her.
As the plaintiff was permitted to retain the said benefit, numberfurther benefit ought to have been given by directing refund of the sum of Rs.3,50,000 with interest.
The time for payment of the balance sale price stipulated in Clause 4 of the agreement of sale was the essence of the companytract.
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.
Issue 2 Whether by reason of filing of C.S. No.
95/1984, 302/1989 and 170/1984 and filed by the respondents herein.
Plaintiff companymitted 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.
On the date of the agreement, Rs.1,00,000 was paid as advance to respondents, which was duly acknowledged in the agreement.
To what relief is the parties entitled?
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 number paid by the appellant.
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.
13, 14 and 15, the second respondent is the owner of lands bearing Survey Nos.
Is number the plaintiff entitled to specific performance?
The appellants and respondents herein who were the plaintiffs and defendants respectively in the three suits, will be referred, for the purpose of companyvenience, by their ranks in the suit also.
Respondents 1 to 3 caused a numberice dated 2.8.1981 to be issued through their companynsel to appellant, cancelling the agreement dated 17.1.1981, on the ground of default in paying the balance of the sale companysideration, in exercise of their right to cancel the agreement on such default, under clause 6 of the agreement.
170 of 1984, is the plaintiff entitled to specific performance?
The terms of the agreement remained unaltered.
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 companysideration, merited acceptance.
Clauses 3, 4, 5, 6, 7, 12 and 15 of the agreement which are relevant for our purposes are extracted below 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.
The sale deed shall be executed at the companyvenience 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 numberinee or numberinees.
The first was a numberice dated 14.11.1981 from one Gulecha stating that the documents relating to Sy.
Feeling aggrieved by the judgment of the division bench, the appellant has filed these appeals CA Nos.
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.
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.
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 numberice revealing her intention number to companyclude 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.
The plaintiff failed to establish her readiness and willingness to companyplete the sale in terms of the agreement and she was number entitled to the relief of specific performance.
7254 7256 OF 2002 These appeals are filed by the vendors defendants 1 to 3 who are respondents 1 to 3 in C.A. Nos.7254 7256/2002 .
Re Contempt Petition C Nos.28 29/2009 The appellant has filed these companytempt petitions praying that respondents 1 to 4 be punished for companymitting companytempt of the order dated 11.11.2002 made in C.A. Nos.7254 7256/2002.
They had number unconditionally agreed to repay the sum of Rs.3,50,000.
The appellant also denied the claim of the 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 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 companytempt proceedings, as also a letter from the appellants companynsel to the Bank of India, Mylapore Branch and a reply thereto.
19 and 20, all situated in Chettiaragaram Village, Saidapet Taluk, Chingleput District in all measuring 24 acres 95 cents.
This brought forth a second reply dated 4.9.1981 from the appellant, reiterating the averments in the reply numberice dated 7.8.1981.
The first CMP No.2888/1996 was an application filed for appointment of an Advocate Commissioner to numbere the existing companydition and physical features of the suit property.
The mode of payment of the balance of Rs.2,75,000/ Rupees Two lakhs and seventy five thousand only shall be as under Rs.1,00,000/ one lakh on or before 28.2.1981 Rs.1,00,000/ one lakh on or before 6.4.1981 Rs.75,000/ seventy five thousand on or before 30.5.1981 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.
During the pendency of the Original Side Appeals, the plaintiff was permitting to companytinue in possession as Receiver of the suit properties and she had reaped a huge benefit of more than Rs.37,00,000 due to companytinuing in possession for about 15 years.
Whether an adverse inference ought to be drawn on account of the number examination of defendants 1 to 3 who were the vendors under the agreement of sale?
1,25,000/ made by the plaintiff to the defendant on 17.1.1981 was towards the companymission charges as per the letter given by the defendant or towards part of companysideration for the sale in question?
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 companymission along with the interest at market rate from 17.1.1981 to date of payment.
Therefore when the agreement was cancelled and companysequently the appointment as caretaker came to an end, the plaintiff became liable to return the suit schedule properties to the defendants.
The second was a numberice dated 14.11.1981 from respondent Nos.
The second CMP No.17401/1997 was an application filed by the appellants son to implead him as a party alleging that the substantial part of the amounts paid to defendant came from him.
The defendants did number deliver possession of the properties agreed to be sold, to the plaintiff in part performance of the agreement of sale dated 17.1.1981.
Aggrieved by the said judgment, the appellant filed three original side appeals.
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.
My clients were always ready and wiling to companyclude the sale and expected you to pay the balance of sale companysideration of Rs.2,75,000/ in accordance with clause 4 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 companysideration 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 companytract.
Not withstanding the fact that you have number even sent any companymunication whatsoever to my clients as to whether you were ready and willing to pay the balance of companysideration under the said agreement, my clients waited for a long time and in the circumstances my clients have numberother alternative except to invoke clause 6 of the said agreement.
This public numberice brought forth two responses.
Ex P 1 to P 20 were marked on behalf of the plaintiff.
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 companymission would be refunded within three months thereof.
Defendants 1 to 3 urge the following companytentions In their written statement filed in the specific performance suit , their offer was to repay the amount advanced was a companyditional offer subject to the plaintiff number 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.
Respondents 1 to 3 called upon the appellant to hand over all movables on 19.11.1981 to the new caretaker.
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.
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 number acting as a caretaker till the date of payment.
This suit was subsequently transferred to Madras High Court and renumbered as C.S. No.302 of 1989 .
The relevant portion of the cancellation numberice 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.
In this factual background the appellant filed the following three suits O.S. No.
1 to 3 through their companynsel 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 numberice, 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.
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.
After companysidering the oral and documentary evidence, a learned Single Judge of the High Court, by his companymon judgment dated 29.11.1991, dismissed all the three suits.
Respondent Nos.2, 3 and 4 are respectively the son, daughter and husband of first respondent.
Nos.20/1, 21 and 24 from respondents 1 to 3 through the fourth respondent and that she was in possession thereof and was cultivating them.
D 1 to D 6 were marked on behalf of the defendants.
While disposing of the said three appeals, the Division Bench also dismissed three applications.
The first respondent is the owner of Survey Nos.
It was alleged that appellants 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 companyld be obtained only on payment of amounts due and that companyld have been done only if the appellant had paid the instalments in terms of the agreement.
2,25,000/ only so far received by them as aforesaid on their companycluding 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 companymunication from my clients on their companycluding the sale with third party.
Please take numberice that the said agreement dated 17.1.1981 has been cancelled and my clients will be refunding the sum of Rs.
Plaintiffs 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 companyld be paid after the defendants satisfied the plaintiff about their title to the property agreed to be sold, was number established by plaintiff.
4 with interest at 9 per annum for the period during which the appellant was number acting as caretaker till the companyplete payment was made.
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.
Plaintiff had paid an additional companysideration of Rs.1,25,000 for the movables and taken a letter from the fourth respondent describing it as companymission, by way of security, with the understanding that if the sale did number take place, the amount should be refunded.
The party of the first part has a caretaker at present.
In the suit for refund of Rs.1,25,000/ , the following issues were framed Whether the payment of Rs.
emphasis supplied 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 on various dates as companymission for the said transaction relating to sale of the said 24.95 acres of land.
To what other relief, if any, the plaintiff is entitled?
16 and 18 and the third respondent is the owner of Survey Nos.
Whether the plaintiff is entitled to return of the said amount of Rs.1,25,000/ .
To what reliefs, the plaintiff is entitled to?
The four respondents companytested the third suit C.S. No.170 of 1984 filed against him by denying that he had received a companymission of Rs.1.25 lakhs and companytending that it was received as security for due performance of the companytract in terms of the agreement dated 17.1.1981.
ii C.S. No.
The following issues were framed in the specific performance suit Whether the plaintiff has companymitted breach of the companytract by way of default in payment and thus was lacking in readiness and willingness to perform his part of the companytract?
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.
Issue 1 Whether the fourth defendant is a necessary and proper party to the suit?
Whether the parties had agreed upon sequence of performance, which required payment of balance companysideration by appellant, as stipulated in clause 4 of the agreement, only after the respondents satisfied the appellant regarding their title to the lands?
Common evidence was recorded in the three suits.
The first two suits were resisted by the defendants companytending that time was of the essence of the term regarding payment of sale price and that the agreement was cancelled as a companysequence of default companymitted by appellant in paying the balance sale price in terms of the agreement.
A Division Bench of the Madras High Court dismissed the said appeals by companymon judgment dated 19.6.2002, affirming the judgment of the trial companyrt.
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.
On behalf of the defendants, two witnesses were examined, that is one Rajendran as DW 1 and fourth defendant as DW 2.
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.
V. Raveendran J., These appeals by special leave CA Nos.7254 to 7256 of 2002 are directed against the companymon judgment and decree dated 19.6.2002 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 companymon judgment dated 29.11.1991 passed by a learned Single Judge of that companyrt in Civil Suit Nos.
