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TMI Blog2021 (4) TMI 1327X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Writ Petition. The Division Bench of the High Court in the impugned judgment held that the Appellants were not ready and willing to perform their part of the agreement by not depositing the balance sale consideration immediately after the disposal of the Writ Petition. The High Court lost sight of the words at the time of registration of sale in clause 3 of MOUs - there are force in the submission made on behalf of the Appellants that payment of balance consideration has to be done only at the time of the registration of the sale deeds. Admittedly, no steps were taken for the registration of the sale deeds. The finding of the Division Bench of the High Court that the Appellants were not ready and willing to perform their part of the contract by not paying the balance consideration immediately after disposal of the Writ Petition is erroneous. The High Court highlighted the conduct of the Appellants to deny relief. The failure of the Appellants in not pleading and proving how they were put in possession of a part of the property, the frivolous complaint about vacant possession not being given by the Respondents and the attempt made by the Appellants to take forcible posses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecree for specific performance passed by the learned Single Judge was reversed. 2. The Appellants filed four suits for specific performance of the agreements of sale dated 20.03.1991 and Memoranda of Understanding (MOU) dated 24.01.1994. In addition, the Appellants prayed for a direction to the Respondents to deliver vacant possession of the schedule property, a decree of permanent injunction restraining the Respondents from alienating or encumbering the suit property and a decree of mandatory injunction to deposit the title deeds with the Court. It was alleged in the plaints that the Respondent entered into separate agreements with the Appellants who belong to the same family for sale of property situated at Door No.325, Arcot Road, Vadapalani, Chennai on 20.03.1991. As per the terms of the agreement, the sale was to be concluded within a period of four months. The Respondents would produce the encumbrance certificate much before the execution and registration of the sale deeds. The Respondents should also obtain the income tax clearance certificate under Section 230-A of the Income Tax Act, 1961. To comply with the obligation stipulated in the agreement, the first Respondent a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 20.03.1991. It was contended on behalf of the Respondents that the suit was time barred. Time was the essence of the agreement dated 20.03.1991 as it was agreed between the parties that the sale should be concluded within a period of four months. Though, the Writ Petition filed against the order of the Income Tax Department was allowed in the year 1998, the Appellants maintained silence for more than two years before filing the suits in 2000 which clearly shows that they were neither ready nor willing to perform their part of the agreement. 6. All the four suits were tried together and a learned Single Judge of the High Court decreed the suits on 17.07.2003. The Appellants were directed to deposit the balance sale consideration along with interest at the rate of 12 per cent within eight weeks from the date of decree and upon such deposit, the Respondents were directed to execute the sale deeds in favour of the Appellants. Thereafter, the Respondents were directed to deliver possession of the property to the Appellants. The Appellants deposited the balance consideration on 01.08.2003. The Respondents filed original suit appeals against the judgment of the learned Single Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be frivolous as the Appellants continued to be in possession of a part of the property. The attempt made by the Appellants to trespass into the ground floor of the property where the Indian Bank was having its office disentitled them from seeking the equitable relief of specific performance. 9. We have heard Mr. Raghavendra S. Srivatsa, Advocate for the Appellants and Mr. P.S. Narasimha, learned Senior Counsel for the Respondents. The contention of the Appellants is that the agreements and the MOUs have to be read together. It was argued on behalf of the Appellants that the sale consideration of all the four agreements for purchase of the property is Rs. 37/- lakhs out of which Rs. 34/- lakhs was paid by August, 1994. Mr. Srivatsa, submitted that the demand made by the Appellants for execution of the sale deeds was rejected by the Respondents on the ground that the Writ Appeal filed by the Income Tax Department against the judgment of the High Court dated 11.09.1998 was pending. It was only on receipt of information by the Appellants that the property was already encumbered, that the Appellants filed suits for specific performance. According to the Appellants, it cannot be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e MOUs dated 24.01.1994. Though, the Writ Petitions were disposed of on 11.09.1998, the Appellants filed the suit only between October and December, 2000. The Appellants had not issued any notices to the Respondents to execute sale deeds after the disposal of the Writ Petitions. The Appellants also did not discharge their obligation of paying balance sale consideration. The delay of two years and three months after the disposal of the Writ Petition is fatal and the Appellants are not entitled for the relief claimed for. It was argued on behalf of the Respondents that the escalation in prices of properties in Chennai is a relevant factor. Mr. Narasimha, supported the judgment of the Division Bench of the High Court by arguing that the Appellants were not put in possession of the property at the time of the agreement. There is no covenant in the MOU that the possession shall be given to the Appellants. The Appellants have not explained as to how they got possession of the first floor. The Appellants highhandedly made attempts to disturb the possession of the Indian Bank from a portion of the building. As the First Appellate Court is the last Court on findings of fact, this Court shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. The Division Bench of the High Court agreed with the contention of the Appellants that mere fixation of time within which the contract was to be performed does not make the stipulation as to time being of the essence of the contract. However, the Appellants were found guilty of total inaction on their part. The sole ground for denial of relief to the Appellants is non payment of balance consideration immediately after disposal of the Writ Petition. The said conclusion is the result of a faulty interpretation of clause 3 of the MOUs as stated earlier. 13. The High Court highlighted the conduct of the Appellants to deny relief. The failure of the Appellants in not pleading and proving how they were put in possession of a part of the property, the frivolous complaint about vacant possession not being given by the Respondents and the attempt made by the Appellants to take forcible possession of a part of the property were commented upon to hold that the Appellants were disentitled to equitable relief. There is not dispute that the Appellants were in possession of the first floor of the property. Details about the manner in which possession was given to the Appellants not being p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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