OSA/310/2021 of S. JAMAL MOHIDEEN Vs K.T.J.PRAKASH on 12 October 2026

Judgment

(Judgment of the Court was delivered by N.Sathish Kumar J.) Challenging the judgment of the learned single Judge dismissing the suit for enforcing the contract dated 01.07.2005 and granting the alternative relief for refund of the advance amount, the unsuccessful plaintiff is before this Court.

2. Following are the brief facts of the case: The plaintiff has entered into an Agreement for Sale dated 01.07.2005 to purchase the suit property for a total sale consideration of Rs.2,35,00,000/- and paid a sum of Rs.10 lakhs as advance vide a cheque dated 02.07.2005. It was agreed that the remaining sale consideration of Rs. 2,25,00,000/- would be paid on 30.09.2005, upon the vendor clearing all dues to the Income Tax Department and financial agreement holders, etc. It was further agreed between the parties that the defendant would enter into a compromise in C.S. No. 486 of 2003, a suit filed by one M. Kalanther Naina Mohamed and withdraw the same. However, the defendant has not complied with the conditions as agreed in the agreement, but the plaintiff was always ready and willing to perform his part of the contract. It is the further case of the plaintiff that he has informed his readiness and willingness by a letter dated 06.06.2008 followed by a legal notice dated 17.06.2008, but there was no response from the defendant. Hence, the suit.

3. Denying the agreement, it is the contention of the defendant that the plaintiff has been fully appraised of the fact that only after the dues of the creditors are settled, the documents would come to his hand and despite being aware about the Agreement of Sale with M.Kalanther Naina Mohamed, the plaintiff had included the entire extent in the Agreement of Sale. It is the further contention of the defendant that he has already requested a sum of Rs.40 lakhs, but the plaintiff has not paid, which would indicate that the plaintiff did not have wherewithal to pay the balance sale consideration.

4. Based on the above pleadings, the following issues were framed in the suit: “1. Whether the suit transaction that the plaintiff had with the defendant on 01.07.2005 was a loan transaction or an agreement of sale of suit property ?

2. If the suit transaction dated 01.07.2005 was an agreement to purchase suit property, whether the plaintiff was ready and willing to perform his part of the obligation under the agreement?

2. If the suit transaction dated 01.07.2005 was an agreement to purchase suit property, whether the plaintiff was ready and willing to perform his part of the obligation under the agreement?

3. If the suit tranaction dated 01.07.2025 was an agreement to pruchase suit property, whether the plaintiff is entitled to the equitable relief of specific performance of agreement dated 01.07.2005 ?

4. If the suit transaction dated 01.07.2005 was an agreement to purchase suit property, whether the defendant would suffer hardship under Section 20(b) of the Specific Relief Act, 1963, if decree for specific performance of agreement dated 01.07.2005 is granted to the plaintiff as prayed for ?

5. To what other relief's are the parties entitled to ?

6. Who is entitled to costs of the suit ? ”

5. In the suit, on the side of the plaintiff, one R.Soundarajan was examined as PW1 and Exs.P1 to P6 were marked before the learned single Judge. On the side of the defendant, DW1 was examined and Exs.D1 and D2 were marked. In this appeal, a sale deed dated 14.11.2016 has been filed, which is admitted by both sides and it is stated that no oral evidence is required. The said sale deed has been marked as Ex.P7.

6. On appreciation of oral and documentary evidence, the learned single Judge dismissed the suit for specific performance, however granted the relief of return of advance amount of Rs.10,00,000/-. Challenging the same, the present appeal has been filed by the unsuccessful plaintiff.

7. The main contention of the learned Senior counsel for the appellant/plaintiff is that he was always ready and willing and his readiness comes into play only when the obligations as agreed by the defendant is fulfilled. The defendant has neither cleared the Income tax nor settled the other pending matters as agreed. However, during the pendency of the suit, the defendant has transferred the property to a third party and thereafter cleared the debts. Therefore, the learned single Judge is erred in dismissing the suit for specific performance when the appellant/plaintiff was always ready and willing to perform his part of the contract. It is the further contention of the learned Senior counsel for the appellant/plaintiff that the learned single Judge ought to have at least created a charge over the property for the advance amount. In support of his contention the learned Senior counsel relied on the following judgments: i) Videocon Properties Ltd., Vs. Dr.Bhalchandra Labouratories and Others reported in (2004) 3 SCC 711;

ii) M.Chinnaiyan Vs. Kasthuri Radhakrishnan and Others reported in 2020 SCC OnLine Mad 28011;

iii) Gaddipati Divija and Another Vs. Pathuri Samrajyan and Others reported in (2023) 3 MLJ 604(SC);

iv) Ferrodous Estates (Pvt.) Ltd., Vs.P.Gopirathnam (Dead) and Others reported in 2021-1-L.W.388;

8. The learned counsel for the respondent/defendant would submit that the very nature of the agreement itself clearly shows that it is not enforceable. The appellant/plaintiff entered into the agreement despite being aware of the fact that subject property is already encumbered in another suit and the said suit should be settled. The learned counsel would further submit that there is also a clause in the agreement to the effect that the defendant has to clear all the dues to the Income Tax Department and therefore, the very nature of the contract itself clearly shows that it is nothing but a loan transaction and in any event, the plaintiff has never exhibited the readiness and willingness from the very inception and after three years of the agreement, he filed the suit and in the meanwhile, the property has already been transferred to the third parties.

9. In the light of the above submission, now the points that arise for consideration are as follows:

i) Whether the plaintiff was always ready and willing to perform the contract?

ii) Whether the plaintiff is entitled for equitable relief of specific performance?

iii) To what other relief?

10. Though the plaintiff has filed the suit for specific performance, he has not come before the Court to adduce evidence. Only the plaintiff’s brother’s Manager has been examined as PW1. The evidence of PW1 also clearly indicates that he is not even aware of whether the plaintiff has the wherewithal to pay the balance sale consideration. Therefore, when the plaintiff has not come before the Court to seek equitable relief, only his brother’s manager has been examined on his behalf, who is not even aware of the financial capacity to pay the balance sale consideration, the readiness and willingness cannot be inferred merely on the basis of the agreement. The readiness and willingness must be established from the very inception.

11. The very terms incorporated in the agreement itself indicate that undue advantage has been taken by the plaintiff. If really the plaintiff had an intention to purchase the property, knowing fully well that the defendant was in adversities and he had already availed several loan and was facing income tax proceedings and a suit had already been filed against the defendant, the plaintiff would not have delayed to perform his part of the contract. Knowing all the adversities of the defendant, the plaintiff entered into the agreement by paying an advance of Rs.10,00,000/- and waited for three years to send a letter to show as if he was ready and willing to perform the contract creates serious doubt as to the plaintiff's bona fides and the same shows that the plaintiff some how or the other took undue advantage to knock out the properties.

12. Further, even assuming that the plaintiff has actually entered into an agreement with the intention to purchase the property, the normal conduct of a person would be to have the title transferred immediately at least by clearing all the dues of his vendor. There is no reason as to why he has to postpone the substantial sale consideration for the period of three years. These facts clearly indicate that the plaintiff was not ready and willing to perform the contract. That apart, the plaintiff has not even come before this Court and on his behalf, his brother's Manager was examined and no document was filed to show that the plaintiff was throughout ready and willing to perform his part of the contract and he has not even made enquiry with regard to the nature of the tax payable by the defendant to the Income tax Department. Further, he has not made any other enquiry with regard to the nature of the amount borrowed by the vendor in respect of the subject property. All these facts clearly indicate that the willingness is absent from the very inception. That apart, absolutely there is no scrap of paper to show that the plaintiff had the capacity to mobilize the huge amount from the date of agreement. This also clearly shows that readiness is also absent on his part. The judgments relied upon by the learned counsel for the appellant are distinguishable on facts and, therefore, does not apply to the present case.

13. In view of the above discussion, we are of the view that the learned single Judge is right in dismissing the civil suit. The points are answered accordingly against the appellant.

14. In the result, this Original Side Appeal is dismissed. There shall be no order as to costs. Consequently, the connected miscellaneous petition is closed. (N.S.K.,J.) (G.K.M.,J.) 12-10-2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No gpa

N.SATHISH KUMAR J. AND GK.MUTHUKUMAAR J. GPA OSA No. 310 of 2021 & CMP No. 17949 of 2021 & CMP No. 19995 ofb 2024 12-10-2026