IMPORTANT CASE LAWS - Madras High Court

2011 -2- L.W. 226
K. Pattammal (deceased) & Ors
vs
Ganga Harinarayanan & Ors
Specific Performance, Specific Relief Act (1963), Sections 16, 21/Two agreements for sale, Starting of
limitation, Computing of, Consensus ad idem between the parties relating to enforcement of the agreement,
Novation of contract.
Limitation Act (1963), Article 54/Limitation for filing of suit,
Contract/Novation,
Maxims/Ex turpi causa non oritur action – (Out of a base (illegal or immoral) consideration, an action does
(can) not arise; Exdolo malo non aritur action – (Out of fraud no action arises; fraud never gives a right of action;
No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act; In Pari delicto
potior est condition possidentis (defendentis) – In a case of equal or mutual fault (between two parties) the
condition of the party in possession (or defending) is the better one; Suppressio very suggestion falsi –
Suppression of the truth is equivalent to the suggestion of what is false; Suppressio very expression falsi –
Suppression of the truth is equivalent to the expression of what is false.
Before the lower court virtually, both sides agreed that such an agreement (Ex.A1) emerged between the
parties concerned – Period of performance was specified as three months, which means on or before 03.04.1987,
the parties should have performed their respective parts of the contract – But, in this case, it did not the contract –
But, in this case, it did not happen – Second agreement emerged on 22.01.1987 between the same parties and for
the same property.
Three months’ period expired by 03.04.1987 and three years limitation period as per Article 54 of the
Limitation period as per Article 54 of the Limitation Act expired by 03.04.1990 – Plaint was presented before the
court only on 24.04.1990 long after the expiry of the limitation period.
There was no consensus ad idem between the parties relating to enforcement of the agreement to sell
Ex.A1 in toto.
Ex.A1 agreement to sell was sought to be manipulated by entering into the second agreement to sell – It
cannot be contended that the terms and conditions in Ex.A1 and the subsequent agreement were verbatim the
same and there was no novation.
Plaintiff wanted to get enforced the second agreement to sell – But, plaintiff filed the suit for enforcement
of the first agreement.
In the absence of a prayer for such return of the advance amount and for awarding compensation, the
same could not be ordered.
Held:
Unarguably and unassailably, indubitably and indisputably, Ex-A1 is the agreement to sell dated 03.01.1987.
Before the lower court virtually, both sides agreed that such an agreement emerged between the parties concerned.
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