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Madras High Court · body

2001 DIGILAW 815 (MAD)

A. Ganapathy v. S. Venkatesan, Defendant

2001-07-27

M.CHOCKALINGAM

body2001
Judgment :- The Order of the Court was as follows : This suit has been filed for a specific performance directing the defendant to execute a sale deed in pursuance of the agreement dated 17-3-1996 on receipt of the balance sale consideration of Rs. 15.00 lakhs, for a permanent injunction restraining the defendant from alienating or dealing with the suit property and for costs. 2. Plaint averments are as folllows :- The defendant is the owner of the land and building situate at No. 68 Bazullah Road, T. Nagar, Madras 17. An agreement for sale was entered into by the plaintiff in respect of the suit property on 17-3-1996 and the plaintiff had paid a sum of Rs. 15.00 lakhs towards part consideration. The total sale consideration was fixed at Rs. 30.00 lakhs. The defendant has given a stamped receipt dated 17-3-1996 for receipt of Rs. 15.00 lakhs. Time was not the essence of the contract. As the plaintiff was already in possession of a portion of the said premises, he had been calling upon the defendant to complete the sale. The plaintiff is always ready and willing to pay the balance sale consideration of Rs. 15.00 lakhs. He had also been calling upon the defendant to accept the said balance of Rs. 15.00 lakhs and execute the sale deed. The defendant who had been evading the plaintiff, got himself transferred from Madras and he is not employed as Assistant Manager, S.B.I. Tuticorin. The plaintiff had also called upon the defendant in Tuticorin and asked him to execute the sale deed on receipt of the balance of sale consideration. The defendant is attempting to alienate the suit property. If the defendant deals with the third party in respect of the suit property, the plaintiff will be put to great loss and hardship and his right, title and interest over the suit property will be seriously affected. The plaintiff is ready and willing to perform his part of the agreement. Hence the suit. 3. The defendant filed a written statement alleging that the defendant has not entered into, any agreement in respect of the suit property on 17-3-1996 and hence the question of making any payment following the agreement does not arise in this case. The allegations of agreement and payment on 17-3-1996 are totally mischievous, fraudulent and frivolous. Hence the suit. 3. The defendant filed a written statement alleging that the defendant has not entered into, any agreement in respect of the suit property on 17-3-1996 and hence the question of making any payment following the agreement does not arise in this case. The allegations of agreement and payment on 17-3-1996 are totally mischievous, fraudulent and frivolous. The plaintiff has filed this suit with a malicious motive and mala fide intention to grab the property of the defendant. The defendant had never issued any receipt for a sum of Rs. 15.00 lakhs which the plaintiff never paid nor has he ever agreed to pay. The so-called receipt is a fabricated document. There was neither agreement nor payment. Since the defendant never agreed to sell the suit property. no question of putting the plaintiff into possession of a portion of the suit property would arise. The plaintiff had been fraudulently setting up things behind the back of the defendant in order to get the property of the defendant and also to get the defendant involved in a criminal case filed by one Sudha who was an instrument at the hands of the plaintiff. The defendant was not duty bound to intimate his transfer to the plaintiff who was not at all concerned with the defendant in any manner, except the case of assault of the defendant by the plaintiff and his gangmen on 17-3-1996. The plaintiff is a person of dubious character and conduct. In one such incident the plaintiff was found to have set up one lady by name Sudha. The plaintiff, Sudha, and her mother were staying in a room at hotel Geetha International at Tuticorin on 17-2-1996. Sudha telephoned to the defendant and asked him to come over to the hotel room. The defendant went to the Hotel along with his brother Subramaniam. He met Sudha, her mother Mangai and the plaintiff. The plaintiff was introduced by Sudha as her father's relative. Sudha and her associates demanded the defendant to spend money to start a STD Booth at Madras for her brother by name Prakash. On 17-3-1996, the said Sudha and her mother had been to the defendant's bank at Tuticorin and requested the defendant to come to the residence of Sudha. The defendant accompanied them expecting to go to the residence, but he was taken to a railway quarters at Melavitan Railway Station, Tuticorin. On 17-3-1996, the said Sudha and her mother had been to the defendant's bank at Tuticorin and requested the defendant to come to the residence of Sudha. The defendant accompanied them expecting to go to the residence, but he was taken to a railway quarters at Melavitan Railway Station, Tuticorin. The plaintiff and two ladies blackmailed and forced the defendant to agree for a second marriage. Since the defendant did not agree for their demand, he was threatened with dire consequences and the plaintiff forced him to sign on a blank revenue stamped paper and also stamp papers. He managed to escape from that place. The defendant lodged a complaint on 21-3-1996 against the said Sudha, Mangai and the plaintiff to Sub-Inspector of Police, Thattaparai Police Station, Tuticorin, which was taken on file under serial No. 10/96. The said criminal case is pending investigation. The said Sudha at the instigation and instance of the plaintiff lodged a complaint against the defendant and his brother Subramaniam on 3-6-96 to CB CID Metro Chennai making false and frivolous allegations and the case was registered against the defendant in Crime No. 4/96 for offences under Ss. 420, and 420 r/w 109, IPC. The defendant was arrested on 22-6-1996 at Tuticorin. On application, he was released on bail. The entire suit property is being occupied by the defendant and his family. He is not making any attempt to sell the suit property. He has raised a loan by mortgaging the suit property with State Bank of India. The plaintiff has got nothing to do with the suit property. The suit is totally misconceived and mischievous one. The plaintiff has misused the blank papers signed by the defendant on a revenue stamp. There is no cause of action for this suit. Hence the suit is liable to be dismissed. 4.The following issues were framed : (1) Whether the plaintiff is entitled for the specific performance in pursuance of an agreement of sale dated 17-3-1996, as set out in the plaint? (2) To what relief, the plaintiff is entitled to? 5. Issues 1 and 2 :- The plaintiff has filed this suit for specific performance in respect of an agreement dated 17-3-1996 and for permanent injunction. 6. The plaintiff has examined himself as P.W. 1. (2) To what relief, the plaintiff is entitled to? 5. Issues 1 and 2 :- The plaintiff has filed this suit for specific performance in respect of an agreement dated 17-3-1996 and for permanent injunction. 6. The plaintiff has examined himself as P.W. 1. He would depose that he entered into a sale agreement with the defendant for purchasing the suit property for a sum of Rs. 30.00 lakhs. He paid Rs. 15.00 lakhs in three instalments of Rs. 5.00 lakhs each on 7-1-1996, 4-2-1996 and 17-3-1996 respectively. He filed to the xerox copy of the receipt given by the defendant for the said amount, at Tuticorin. Thiru K. Palanisamy who is doing real estate business and Thiru K. Appavu Pandian told him about the proposed sale of the suit property. On 17-3-1996 itself, the defendant handed over possession of the building of an extent of 463 sq.ft. in the suit property and promised to give possession of the remaining portions in due course. He took possession of the first floor, portion. He filed the said receipt dated 17-3-1996 in O.S. No. 4724/97 on the file of the City Civil Court, Madras. The defendant lodged a police complaint against him alleging that he had not received any money from him and that P.W. 1 was threatening and beating him. The police came for an enquiry and found no basis for the said complaint. Thiru K. Palanisamy and Thiru K. Appavu Pandian attested the said receipt. He is ready and willing to pay the balance amount of Rs. 15.00 lakhs to the defendants immediately to get the sale deed executed. 7. Mr. K. Palanichamy Chettiar was examined as P.W. 2. He would depose that he knew the plaintiff for about 15 years. He was told that the suit property was to be sold. The first and second payments of Rs. 5.00 lakhs each were given to the defendant in the suit property on 5-1-1996 and 4-2-1996 respectively. The last instalment of Rs. 5.00 lakhs was given to the defendant in the rental house of the defendant at Baganeri, Tuticorin. 8. The plaintiff examined one K. Appavoo Pandian as P.W. 3. He would state that he knew the defendant, through the plaintiff. Out of Rs. 30, 00 lakhs, an advance was given at Rs. 5.00 lakhs each in two instalments in the defendant's house. Another amount of Rs. 8. The plaintiff examined one K. Appavoo Pandian as P.W. 3. He would state that he knew the defendant, through the plaintiff. Out of Rs. 30, 00 lakhs, an advance was given at Rs. 5.00 lakhs each in two instalments in the defendant's house. Another amount of Rs. 5., 00 lakhs towards the advance amount was given at Tuticorin. When the last payment was made, the plaintiff, the defendant, Palanisamy and himself were present. A receipt was given by the defendant to the plaintiff on that day, in which he signed as attesting witness. 9. The defendant examined himself as D.W. 1. His evidence is that he mortgaged the house at No. 68, Basullah Road with the State Bank of India in the year 1994 for a sum of Rs. 96, 000/- for the construction of the first floor. With the responsibility as Assistant Manager (Cash), he could not come to Madras during the week ends. He did not enter into any agreement of sale. The plaintiff was introduced to him by a lady named Sudha and her mother at Hotel Geetha International at Tuticorin. On 17-3-1996, he went to the house of the said Sudha, at Melavitan, Tuticorin, for having lunch on their invitation. On that day himself, Sudha and her mother Mangai went to the Railway Quarters at Melavitan. There was a name board bearing the name Mookaian in front of the house. The hefty person pushed him inside a room and threatened him and asked him to sign in a blank paper containing a revenue stamp. In the said paper, he was forced to write that he does not have any objection to marry Sudha as his second wife. They asked him to sign on the blank paper affized with the revenue stamp. They have also asked him to affix his left thumb impression. Ex. D7 is the certified copy of the complaint lodged by him. Ex. D8 is the receipt in respect of the police complaint given by him. The certified copy of the telegram given by him to the District Sessions Judge is marked as Ex. D9. The certified copy of the telegram given by him to the D.G.P. Madras is marked as Ex. D10. Ex. D8 is the receipt in respect of the police complaint given by him. The certified copy of the telegram given by him to the District Sessions Judge is marked as Ex. D9. The certified copy of the telegram given by him to the D.G.P. Madras is marked as Ex. D10. On 22-6-1996, CB, CID officials came and arrested him and told him that they were arresting him on the complaint lodged by Sudha to the effect that he had cheated 26 persons by making them part with the money by misrepresenting that he would secure jobs for them. Ex. D11 is the printed copy of the FIR. The charge sheets in CC Nos. 4375/98 and 4376/1998 are marked as Exs. D12 and D13. In the criminal case, he was convicted by the trial Court and on appeal he was acquitted by the Court of Session. Exs. D14 and D15 are the copies of the judgments by the Sessions Court in C.A. Nos. 127 and 128/2000. Ex. P1 receipt was not issued by him. 10. Ex. P1 is the receipt dated 17-3-1996. Ex. P2 is the certified copy of the evidence adduced by D.W. 1 before the City Civil Court in O.S. 4724/97. Ex. P3 is the photograph of D.W. 1. Ex. D1 is the certified copy of the complaint given by P.W. 1 The certified copy of the plaint filed by P.W. 1 in O.S. No. 4724/1997 is marked as Ex. P2. Ex. D3 is the certified copy of the deposition of P.W. 1 before the City Civil Court. The certified copy of the evidence given by PW 1 in CC 4375/1998 is marked as Ex. D4. Ex. D5 is the true copy of the Commissioner's report. Ex. D6 is the certified copy of the deposition of PW. 2 in O.S. 4724/1997. 11. Arguing for the plaintiff, the learned counsel would submit that the plaintiff has filed the suit for specific performance directing the defendant to execute the sale deed in pursuance of an agreement dated 17-3-1996 on receipt of the balance sale consideration of Rs. 15.00 lakhs; that it is not disputed that the defendant is the owner of the suit property; that the plaintiff entered into a sale agreement with the defendant for purchasing the suit property for a sum of Rs. 30.00 lakhs; that in pursuance of the agreement, he paid a sum of Rs. 15.00 lakhs; that it is not disputed that the defendant is the owner of the suit property; that the plaintiff entered into a sale agreement with the defendant for purchasing the suit property for a sum of Rs. 30.00 lakhs; that in pursuance of the agreement, he paid a sum of Rs. 15 lakhs in three instalments of Rs. 5 lakhs each on 7-1-1996, 4-2-1996 and 17-3-1996 respectively; that while the third instalment of Rs. 5 lakhs was paid on 17-3-1996 at Tuticorin, the defendant has issued Ex. P1 stamped receipt; that a reading of Ex. P1 would clearly reveal that the defendant has received a sum of Rs. 15 lakhs; that he has handed over the possesion of the property in part performance of the agreement for sale; that the plaintiff has examined himself as PW1 and apart from him, PWs. 2 and 3 who are the mediators for the sale agreement have clearly spoken to the fact of the agreement for sale, the payment of three instalments totalling to Rs. 15 lakhs and the execution of Ex. P1 receipt at TGuricorin on 17-3-1996; that following the said agreement, the defendant has handed over possession of the entire building by handing over the keys of the property; that accordingly the plaintiff came with his family to Madras on 18-3-1996 and occupied the property; that when the demand was made for the execution of the sale deed by receiving the balance of consideration of Rs. 15 lakhs, the defendant refused to execute the sale deed; that when the defendant disturbed the possession of the plaintiff, he was constrained to file a suit in OS 4724/1997 on the file of the City Civil Court, Madras, seeking permanent injunction wherein permanent injunction was granted and the defendant has preferred an appeal therefrom; that the defendant lodged a police complaint against the plaintiff which was enquired into by the police and found to be false; that in order to prove Ex. P1 receipt and the payment of three instalments of Rs. 5 lakhs each, the plaintiff has examined P.Ws. 2 and 3 from whose evidence it would be clear that they were present at the time of the discussions between the plaintiff and the defendant in respect of the sale of the suit property; that the consideration was fixed as Rs. 30 lakhs and part payments of three instalments each Rs. 5 lakhs each, the plaintiff has examined P.Ws. 2 and 3 from whose evidence it would be clear that they were present at the time of the discussions between the plaintiff and the defendant in respect of the sale of the suit property; that the consideration was fixed as Rs. 30 lakhs and part payments of three instalments each Rs. 5 lakhs were paid on 7-1-96, 4-2-1996 and 17-3-1996; that they have further deposed that they accompanied P.W. 1, the plaintiff to the defendant's house at Tuticorin where he executed Ex. P1 on 17-3-1996; that the defendant is unable to show any valid reason or circumstance to disbelieve their testimony; that insofar as Ex. P1 is concerned, the defendant has come with a false evidence that it is a forged document; that the plaintiff filed an application for injunction against the defendant herein in the instant suit; that the defendant filed an application No. 1417/97 to vacate the interim injunction already granted in favour of the platinfif, wherein he has filed an affidavit stating that the plaintiff has misused the blank papers signed by him on the revenue stamps obtained from him on coercion on 17-3-1996 at Tuticorin, but has filed the written statement contrary to the same and has also deposed stating that Ex. P1 is a forged and fabricated document; that a comparison of the signature of the defendant in Ex. P1 and other available documents viz. written statement, Vakalath would clearly reveal that it was the defendant who signed Ex. P1, but has come forward to give false evidence stating that it is not his signature; that if the defendant comes forward to state that the said document has come into existence because of coercion, it is for the defendant to prove the said fact, but has failed to do so and thus the defendant has come with two inconsistent version in respect of Ex. P1 document, which would clearly be indicative of the fact of falsehood of the defence and which would further be indicative of the fact that the defendant having agreed to sell his property for a consideration of Rs. 30 lakhs and having accepted Rs. P1 document, which would clearly be indicative of the fact of falsehood of the defence and which would further be indicative of the fact that the defendant having agreed to sell his property for a consideration of Rs. 30 lakhs and having accepted Rs. 15 lakhs as part of the consideration has come with a false defence to state that he neither entered into an agreement nor received any consideration therefor; that the defendant has admitted that a criminal complaint was filed against him by one Sudha stating that he has cheated so many persons by making misrepresentation for securing jobs for them and he was convicted by the trial Court for a period of five years RI and another complaint is pending against him for cheating that he has received Rs. 60, 000/- on misrepresentation of securing job; that all the documents filed by the defendant's side cannot stand in the way of the plaintiff getting the relief; that all the documents filed by the defendant's side were pertaining to the criminal case filed against him by one Sudha and the copies of the complaint and telegraphic messages given by the defendant which were subsequently rejected by the police as baseless and thus no evidentiary value could be attached to those documents since they are not pertaining to the matter in issue in the case and thus the plaintiff has proved the agreement for sale, the payment of consideration and the execution of Ex. P1 receipt and hence in view of the same, the suit has got to be decreed granting the relief asked for. 12. P1 receipt and hence in view of the same, the suit has got to be decreed granting the relief asked for. 12. Advancing her arguments for the defendant, the learned counsel would submit that the plaintiff has sought for the relief of specific performance on the basis of an agreement dated 17-3-1996, but no one of the witnesses including the plaintiff has stated that the agreement was entered into on 17-3-1996; that also of them have deposed that the agreement has taken place in the first week of December 1995 or January 1996; that PW has categorically stated that he did not have his own funds to pay, but he mortgaged his wife's property and he borrowed money from different persons, but he has not adduced any documentary evidence to prove the source for his funds on the relevant dates; that a scrutiny of the evidence adduced by the plaintiff's side would clearly reveal that he could not have parted with any money to the defendant either on 7-1-96 and 4-2-1996 at Madras or on 17-3-1996 at Tuticorin; that regarding their visit to Tuticorin, all the witnesses examined on the plaintiff's side have given different versions that Ex. P1 receipt alleged to have been issued by the defendant does not contain any reference to the place of execution viz. Tuticorin; that the plaintiff filed a suit against the defendant seeking for permanent injunction before the City Civil Court, Madras, where he has categorically admitted that he paid Rs. 15 lakhs on 17-3-1996 but he has not stated that he paid the said Rs. 15 lakhs at three instalments each Rs. 5 lakhs; that the plaintiff himself has admitted that he knew the defendant only through Mrs. Sudha; that the plaintiff was examined as PW. 2 in the Clanedar Case tried by the Addl. 15 lakhs on 17-3-1996 but he has not stated that he paid the said Rs. 15 lakhs at three instalments each Rs. 5 lakhs; that the plaintiff himself has admitted that he knew the defendant only through Mrs. Sudha; that the plaintiff was examined as PW. 2 in the Clanedar Case tried by the Addl. C.M.M., Madras which arose pursuant to the complaint of Sudha against the defendant and one Subramaniam; that the defendant has filed the copy of the FIR, the statements recorded by the police and the evidence given by the plaintiff in that criminal case; that all would go to show that the transaction of cheating had taken place prior to March 1994 and from the perusal of those documents, it would be clear that the plaintiff has got thorough knowledge about the alleged commission of the crime by the defendant and under such circumstances, the plaintiff should not have parted with Rs. 15.00 lakhs to the defendant who had already made a breach by his word and cheated so many persons including Sudha; that the plaintiff was introduced to him on 17-3-1996 by the said Sudha at Hotel Geetha International at Tuticorin and on request by her the plaintiff went to her house on 17-3-1996 wherein the plaintiff accompanied by his henchmen, threatened the defendant and forced him to write in a paper that he would not have any objection to marry the said Sudha as second wife; that he was also forced to sign in a blank paper affixed with revenue stamp; that apart from that he was asked to sign in two more stamp papers of Rs. 20/- and Rs. 5/-; that he was forced to write in those papers as if he borrowed Rs. 2.00 lakhs on 17-3-1996 from Sudha; that the defendant had no option than to do whatever they desired in order to escape from the situation; that the defendant gave a police complaint on 21-3-1996 as found under Ex. D7; that the police has also issued a receipt under Ex. D8; that he sent telegraphic message to the D.G.P. as found under Ex. D7; that the police has also issued a receipt under Ex. D8; that he sent telegraphic message to the D.G.P. as found under Ex. D10; that all these documents would clearly show that on 17-3-1996, the defendant was forced and coerced to sign on blank papers and stamp papers; that on 17-3-1996 the plaintiff did not make any payment, but on the contrary with his henchmen coerced the defendant to sign in blank papers and stamp papers; that PWs. 2 and 3 were utter strangers to the defendant; that from their discrepant evidence it would be clear that they were giving false evidence in order to support their friend, the plaintiff herein; that regarding the possession of the property, Ex. P1 would read that the entire property was handed over; that the plaintiff has also deposed that possession of the entire property was handed over to him by handing over of the key on 17-3-1996 and he occupied the same on 18-3-1996, but it is averred in the plaint that he is occupying a part of the property while the other part is in the hands of the defendant and this would clearly reveal that during the pendency of all these proceedings, he had made a criminal trespass into the property in respect of which the defendant had already given a police complaint; that the plaintiff is not entitled for the discretionary relief of specific performance in view of the inconsistent pleading and insufficient proof; that the defendant mortgaged the suit property with the State Bank of India in the year 1994 for a sum of Rupees 96, 000/- for the construction of the first floor; that the original documents in respect of the same have been given to the S.B.I.; that he was at Tuticorin; that during that time, he used to come to Madras during the combined holidays; that the defendant, who was Assistant Manager (Cash) was in the custody of all the cash, jewels, draft forms, mail transfer drafts forms, etc.; that with this responsibility he could not come to Madras during the week ends and hence he could not have entered into any agreement of sale either with the plaintiff or anybody else and hence the plaintiff's claim has got to be rejected. 13. 13. Needless to say that the specific performance seeking a direction for execution of the sale deed pursuant to an agreement is a discretionary relief. When the terms and conditions of the sale agreement are reduced into writing, the written instrument would be the best piece of evidence. In a suit for specific performance of sale of an immovable property based on an oral agreement, the plaintiff has to specifically aver in respect of essential terms of the contract including the description of the property, the date and place of execution, consideration for sale, any payment of advance, delivery of possession, title deeds in respect of the property and encumbrance that existed on the date of the agreement, etc. and adduce evidence strictly proving the same. The absence of necessary and requisite pleading and insufficiency or lack of proof would be suffice to reject the request of the plaintiff. The oral testimony adduced by the plaintiff has to be necessarily subjected to a careful scrutiny. In such a case the circumstances would indicate the genuineness or otherwise of the agreement apart from assisting the Court to test the veracity of the witnesses examined. 14. The plaintiff who seeks for the specific performance of an agreement for sale in respect of the purchase of the defendant's immovable property mentioned in the schedule has examined himself as PW 1. He has also examined P.W. 2 K. Palanichami Chettiar and PW 3 K. Appavoo Pandian as the persons who were present at the time of the alleged agreement for sale and the payment of Rs. 15 lakhs towards the part consideration. What are all stated in the plaint in respect of the alleged sale agreement is, "the plaintiff has entered into an agreement for sale for purchase of the said land and building at door No. 68 Bazullah Road, T. Nagar, Madras-17 on 17-3-1996 and had paid a sum of Rs. 15 lakhs towards the part consideration and the total consideration was fixed at Rs. 30 lakhs." It is not the case of the plaintiff that any written agreement for sale was entered into between the parties. As found above, the plaintiff has specifically pleaded that the agreement for sale was entered into on 17-3-1996. The plaintiff has deposed that in pursuance of the agreement, he paid a sum of Rs. 15 lakhs in three instalments of Rs. As found above, the plaintiff has specifically pleaded that the agreement for sale was entered into on 17-3-1996. The plaintiff has deposed that in pursuance of the agreement, he paid a sum of Rs. 15 lakhs in three instalments of Rs. 5 lakhs each on 7-1-1996, 4-2-1996 and 17-3-1996 respectively. P.W. 1 has further added that on information by PWs. 2 and 3 on January 1, 1996 that the property of the defendant was for sale, he proceeded to the defendant's house with the witnesses; that he had discussions; that the defendant asked for Rs. 40 lakhs as sale consideration and it was agreed at Rs. 30 lakhs and one week after agreeing for the sale consideration of Rs. 30 lakhs he paid the first instalment on 7-1-1996. PWs. 2 and 3 have also deposed that in pursuance of an agreement for sale, the first instalment of Rs. 5 lakhs was paid on 7-1-1996. According to PW. 2, during the discussion, the defendant asked the sale consideration of Rs. 40 lakhs and the plaintiff agreed only for Rs. 30 lakhs and apart from agreeing for the sale consideration of Rs. 30 lakhs, there was no talk anything else on that day and 10 days latter, they took a sum of Rs. 5 lakhs to the defendant's house on 7-1-1996 and hnaded over the same to the defendant. PW. 3 comes with a different version stating that the discussions regarding the purchase of the property was over by December itself. It remains to be stated that nowhere the plaintiff has averred that the agreement for sale has taken place either in December 1995 or January 1996, but has specifically stated that the agreement was entered into on 17-3-1996. No one of the witnesses on the plaintiff's side would state that the sale agreement was entered into on 17-3-1996. Thus it casts a doubt whether there was any agreement for sale that would have taken place as now put forth by the plaintiff's side. According to the averments in the plaint, the sale consideration was fixed at Rs. 30 lakhs and on 17-3-1996, he paid a sum of Rs. 15 lakhs towards the part consideration. But PW 1 has now deposed that he paid Rs. 5 lakhs on 7-1-96, Rs. 5 lakhs on 4-2-96 and Rs. 5 lakhs on 17-3-1996 respectively. According to the averments in the plaint, the sale consideration was fixed at Rs. 30 lakhs and on 17-3-1996, he paid a sum of Rs. 15 lakhs towards the part consideration. But PW 1 has now deposed that he paid Rs. 5 lakhs on 7-1-96, Rs. 5 lakhs on 4-2-96 and Rs. 5 lakhs on 17-3-1996 respectively. If it is true that the plaintiff had made payments of Rs. 5 lakhs each in three instalments as now stated by him there was no impediment for him to mention the same, but he has not stated so. It is further added by the plaintiff that on 7-1-1996 and on 4-2-1996 also the defendant issued two receipts each for Rs. 5 lakhs and on 17-3-1996, when the third instalment of Rs. 5 lakhs was given, the defendant issued Ex. P1 receipt and got back the other two earlier receipts. But nothing is mentioned as to the passing of any receipts by the defendant either on 7-1-1996 or on 4-2-1996 to the plaintiff. It is not the case of the plaintiff that the defendant was closely acquainted either to the plaintiff or the other two witnesses. If an agreement for sale of the defendant's property was entered into, as put forth by the plaintiff's side and that too when the consideration was a huge sum of Rs. 30 lakhs and the plaintiff parted with the sums in three instalments of Rs. 5 lakhs each, the plaintiff is unable to give explanation why and under what circumstances, the terms and conditions were not reduced into writing. PW. 3 has deposed that he is a native of Thirunelveli and he knew the plaintiff for a long time. PW. 2 has admitted that he knew the plaintiff for the past 10 to 15 years. According to PW. 2 he is not an income tax assessee, but he would say that he went to the auditor Rajagopal's house for getting I.T. clearance. Under such circumstances it can be stated that PWs. 2 and 3 as friends of the plaintiff have given false evidence and they are interested on the plaintiff. 15. The plaintiff has much relied on Ex. P1 stating that the said Ex. P1 receipt was executed by the defendant at Tuticorin on 17-3-1996 when the third instalment of Rs. 5 lakhs was given to him. 2 and 3 as friends of the plaintiff have given false evidence and they are interested on the plaintiff. 15. The plaintiff has much relied on Ex. P1 stating that the said Ex. P1 receipt was executed by the defendant at Tuticorin on 17-3-1996 when the third instalment of Rs. 5 lakhs was given to him. The learned counsel for the plaintiff would submit that the evidence of PW. 1 in that regard as to the receipt of the third instalment of Rs. 5 lakhs by the defendant and the execution of Ex. P1 receipt by the defendant is corroborated by the evidence of PWs. 2 and 3 and hence it has got to be believed. The plaintiff has not pleaded anything about the payment of the third instalment or the execution of Ex. P1 receipt at Tuticorin. A scrutiny of EX. 1 would reveal that nowhere it is stated that the receipt was executed at Tuticorin. It is not in dispute that on 17-3-1996, the defndant was employed as Assistant Manager, State Bank of India, Tuticorin. It is significant to note that the defendant is described as S. Venkatesan, S/o. A. V. Sundaram, working as Assistant Manager in the State Bank of India and at present residing at No. 68, Bazullah Road, T. Nagar, Madras. Had it been true that Ex. P1 receipt was executed at Tuticorin on 17-3-1996 as contended by the plaintiff's side, the place Tuticorin should have been mentioned in the receipt. The non-mention of the place Tuticorin in Ex. P1 creates a doubt whether it would have been executed at Tuticorin as contended by the plaintiff. It has been specifically pleaded and deposed by the defendant that the signature found in Ex. P1 is not his signature and he never executed Ex. P1. The defendant has stated that on 17-3-1996 he went to the house of one Mrs. P1 creates a doubt whether it would have been executed at Tuticorin as contended by the plaintiff. It has been specifically pleaded and deposed by the defendant that the signature found in Ex. P1 is not his signature and he never executed Ex. P1. The defendant has stated that on 17-3-1996 he went to the house of one Mrs. Sudha at Melavitan, Tuticorin when the plaintiff accompanied by other persons came over there, threatened her, forced him to write that he did not have any objection to marry Sudha as his second wife; that he was asked to sign in a blank paper affixed with revenue stamp and apart from that he was asked to affix his left thumb impression; that when he refused he was tortured; that in order to save himself he put his signature in stamp papers and blank papers and escaped from the place. The defendant has filed Ex. D7 a certified copy of the complaint lodged to police on 20th March 1996 and the receipt issued by the police on that day is marked as Ex. D8. He has also filed Ex. D9 a certified copy of the telegram given to the District Judge and Ex. D10 a certified copy of the telegram given to the D.G.P. Madras. PW. 1 has deposed that he went to Tuticorin a few days earlier and PWs. 1 and 3 joined him there on 17-3-1996. According to PW. 2, he accompanied PWs. 1 and 3 to Tuticorin on 17-3-1996 morning. According to PW 3 he was accompanied by PWs. 2 and one of his friends. This piece of evidence strengthens the contentions of the defendant's side that PWs. 2 and 3 did not come to Tuticorin at all on 17-3-1996, and PWs. 2 and 3 did not met him. Ex. P1 receipt does not contain anything about the title deeds pertaining to the property, the necessary income tax clearance certificate for sale of the property or the existing encumbrance over the property in question. The contention of the defendant that the property in question was mortgaged with the State Bank of India in the year 1994 for a sum of Rs. 96, 000/- for the construction of the first floor and the original documents in respect of the same were given to the State Bank of India is not disputed by the plaintiff's side. The contention of the defendant that the property in question was mortgaged with the State Bank of India in the year 1994 for a sum of Rs. 96, 000/- for the construction of the first floor and the original documents in respect of the same were given to the State Bank of India is not disputed by the plaintiff's side. It is significant to note that Ex. P1 receipt does not speak about the existing mortgage on 17-3-1996. If the case of the plaintiff that he entered into an agreement for the purchase of the property for a consideration of Rs. 30 lakhs and he parted with a huge sum of Rs. 15 lakhs to the defendant as contended by him is true, he would have certainly enquired about the encumbrance over the said property on the said date. This is one of the strong circumstances which goes against the plaintiff's case. 16. As stated above the plaintiff has not averred in the plaint that Ex. P1 was executed by the defendant at Tuticorin and Ex. P1 receipt does not refer to the place of execution as Tuticorin. A reading of para 8 of the plaint stating that the defendant was evading the plaintiff and as a matter of fact the defendant himself got transferred from Madras and he was then employed as Assistant Manager, SBI, Tuticorin; that the defendant did not intimate to the plaintiff about the voluntary transfer and he took the plaintiff some time in finding out the address of the defendant and he had also called upon the defendant in Tuticorin and asked him to execute the sale deed on receipt of the balance of consideration would indicate that he had occasion to go to Tuticorin to make demand on the defendant to execute a sale deed. The above Will also falsify that Ex. P1 was executed at Tuticorin on 17-3-1996. The learned Counsel for the plaintiff brought to the notice of the Court that the defendant has admitted that on a complaint against the defendant for cheating 19 persons to the tune of Rs. 14 lakhs and odd promising them jobs in the Electricity Board, he was convicted for 5 years RI by the trial Court and a criminal case is also pending against him for committing fraud to the tune of Rs. 60, 000/-. From the certified copies of the judgment in C.A. Nos. 14 lakhs and odd promising them jobs in the Electricity Board, he was convicted for 5 years RI by the trial Court and a criminal case is also pending against him for committing fraud to the tune of Rs. 60, 000/-. From the certified copies of the judgment in C.A. Nos. 127 and 128/2000, marked as Exs. D14 and D15, it would be clear that though he was convicted by the trial Court, he was acquitted by the appellate Court. The defendant himself has admitted that a criminal case is pending against him at present for committing fraud to the tune of Rs. 60, 000/-, but this cannot be a circumstance that could be relied upon by the plaintiff as a proof of his case. The defendant who has admitted in his affidavit in Application Nos. 1417/97 in OA 180/97 seeking to vacate the injunction granted in favour of the plaintiff has stated that the plaintiff has misused the bank papers signed by him on the revenue stamps obtained from him under coercion and illtreatment on 17-3-96 at Tuticorin. But he has deposed that the signature found in Ex. P1 is not his signature and it is a forged document. As contended by the learned counsel for the plaintiff, the plaintiff has taken two stands in respect of Ex. P1. That did not mean that the plaintiff can rely on the inconsistent stand taken by the defendant and need not prove the said document. As stated supra, there were number of circumstances, which have led to the irresistable conclusion that Ex. P1 could not have been executed at Tuticorin on 17-3-96 as put forth by the plaintiff's side. 17. It is stated in para 6 of the plaint that though time was not the essence of the contract, since the plaintiff is already in possession of the suit property, he had been calling upon the defendant to complete the sale. It is pertinent to note that the plaintiff has not stated when he came into possession of the suit property. As per the plaint averments, the plaintiff is already in possession of a portion of the suit property. Ex. P1 receipt much relied on by the plaintiff recites that in part of the agreement, the plaintiff was put in actual physical possession of the land and building situated in Door No. 68, Bazullah Road to the extent of 2533 sq. As per the plaint averments, the plaintiff is already in possession of a portion of the suit property. Ex. P1 receipt much relied on by the plaintiff recites that in part of the agreement, the plaintiff was put in actual physical possession of the land and building situated in Door No. 68, Bazullah Road to the extent of 2533 sq. ft. with ground floor and first floor including all amenities. According to the plaintiff Ex. P1 was executed on 17-3-1996. The plaintiff has verified his plaint on 25-3-1997, i.e. nearly about one year thereafter from 17-3-96. If the recital in Ex. P1 is true that the possession of the entire property was given to the plaintiff, the plaintiff has no explanation to offer how he has stated in the plaint that only a portion of the property was handed over to him. PW 1 has stated in the chief examination that the defendant handed over possession of the building of an extent of 463 sq. ft. in the suit property promising him to give the remaining portion in due course, but has come with another version during his cross-examination by stating that on 17-3-1996 itself the defendant after giving him the receipt handed over the possession of the entire suit property by handing over the entire keys; that he left for Chennai with family on 17-3-1996 in the evening and occupied the suit property along with his family on 18-3-1996 itself. All the witnesses examined on the plaintiff's side would say that the construction of the building both on the ground floor and the first floor was complete when possession was handed over to the plaintiff. It is seen from Ex. D5 report that a Commissioner was appointed by the City Civil Court in IA 1616/97 in CMA 241/97 and he visited the suit property on 8-3-98 and has given the said report stating that the construction was incomplete and number of works were pending execution. The said report of the Commissioner would falsify the above evidence of PWs. 1 to 3. All the above would cast a doubt whether the possession of any part of the building was handed over to the plaintiff as contended by him. 18. Before filing of the suit, no notice was issued by the plaintiff making a demand on the defendant for execution of the sale deed. 1 to 3. All the above would cast a doubt whether the possession of any part of the building was handed over to the plaintiff as contended by him. 18. Before filing of the suit, no notice was issued by the plaintiff making a demand on the defendant for execution of the sale deed. The learned counsel for the plaintiff would submit that insofar as the agreement for sale of an immovable property, a written instrument is not necessary and here is a clear and clinching evidence of PW. 1 corroborated by the evidence of PW 2 as to the payment of Rs. 15 lakhs in three instalments of Rs. 5 lakhs each on 7-1-1996, 4-2-1996 and 17-3-1996 respectively and apart from that the defendant has already passed on a stamped receipt as found under Ex. P1 and this would clearly show that the defendant has agreed to sell the property for a consideration of Rs. 30 lakhs and got a part of the consideration of Rs. 15 lakhs from the plaintiff. As per his averments in the written statement, the defendant has stated that neither he entered into an agreement with the plaintiff for sale nor he received any money from him and Ex. P1 document is a forged and fabricated document. Suggestions have also been put to the plaintiff that he had no source for making the payment of Rs. 15 lakhs as contended by him. The plaintiff has categorically admitted that he made the said payment of Rs. 15 lakhs not out of his own funds, but by taking loans from others and he has got documents to show that he has mortgaged his wife's property, sold his property and borrowed loans from others. According to him the first payment of Rs. 5 lakhs was raised by mortgaging his wife's property and the second payment of Rs. 5 lakhs was borrowed from his younger brother who is working in Indian Oil Corporation, Salem and the third payment of Rs. 5 lakhs was raised from one Radha Mohan of Hosur. Ex. D1 is the certified copy of the complaint lodged by the plaintiff against the defendant before the Inspector of Police, Pondy Bazaar, Madras wherein he has stated that he paid Rs. 15 lakhs and possession in respect of a part of the property was handed over to him on 17-3-1996. Ex. D1 is the certified copy of the complaint lodged by the plaintiff against the defendant before the Inspector of Police, Pondy Bazaar, Madras wherein he has stated that he paid Rs. 15 lakhs and possession in respect of a part of the property was handed over to him on 17-3-1996. In his plaint in OS 4724/97 on the file of the City Civil Court the plaintiff has stated that he entered into an agreement of sale for the purchase of the suit property on 17-3-1996 and has paid a sum of Rs. 15 lakhs towards the part of the consideration and he has further stated that he was in possession of a portion of the property. The plaintiff as PW. 1 in the said suit OS 4724/97 has deposed that he paid Rs. 15 lakhs on 17-3-1996. When the financial position of the plaintiff has been questioned by the defendant, and when the plaintiff himself has admitted that he had no funds to make the payment, the plaintiff should have examined the witnesses from whom he raised funds and should have filed the documents which he claims to be in custody to prove the same. In the absence of any proof in that regard, it would be difficult to accept that the plaintiff who had no funds of his own, suddenly raised a loan of Rs. 15 lakhs within a short time and paid to the defendant. 19. The plaintiff has admitted that even prior to the agreement of sale he knew the defendant through one Sudha, daughter of Tiruvengadam for whom the defendant had promised to secure a job; that the said Sudha filed a case against the defendant on 3-6-1996 stating that the defendant had cheated her by misrepresentation of securing job and obtained money for her, and the said case was CC 4375/96 on the file of the Additional Chief Metropolitan Magistrate, Madras; that he was examined as PW. 2 in that case and the certified copy of his evidence in that case is Ex. D4. The witness has further added in his evidence that he was convicted in CC 35/94 on the file of the Judicial Magistrate, Padmanabhapuram under S. 420, IPC on 14-11-1995 and he was produced from Jail before the Court in CC 4375/96 for giving evidence. D4. The witness has further added in his evidence that he was convicted in CC 35/94 on the file of the Judicial Magistrate, Padmanabhapuram under S. 420, IPC on 14-11-1995 and he was produced from Jail before the Court in CC 4375/96 for giving evidence. The printed copy of the FIR in Crime No. 4/96 of CB CID Madras, which was subsequently taken on file by the Addl. CMM, Madras in CC 4375/96 is marked as Ex. D11. The said case was registered against the defendant herein along with one Subramaniam on the complaint given by Sudha on 3-6-1996 alleging that between 13-4-1994 and 26-10-1994 the defendant herein along with the other accused made misrepresentation of securing jobs for so many persons and obtained Rs. 14.65 lakhs by cheating them, and the plaintiff herein has also witnessed and had a thorough knowledge of the commission of the crime by the defendant. The learned counsel appearing for the defendant brought to the notice of the Court that in the said complaint, the said Sudha has alleged that on 17-3-1996, the defendant accompanied his henchmen, came to her house and threatened them, and would submit that under such circumstances, neither the plaintiff could have parted with money to the defendant nor the defendant could have executed any receipt as found under Ex. Pl. Admittedly the plaintiff was examined as a witness in the complaint given by Sudha. Taking into consideration the allegations made by Sudha in her complaint that the defendant herein cheated number of persons and received Rs. 14.65 lakhs by cheating so many persons prior to 1994 and the same was well within the knowledge of the plaintiff, it would be highly unbelievable and improbable that the plaintiff parted with a sum of Rs. 15 lakhs in 1996 for purchase of the defendant's property. Thus from the available evidence, it would be abundantly clear that an agreement for sale could not have been entered into either on 17-3-1996 or on any date earlier; that the plaintiff could not have paid Rs. 15 lakhs as contended by him and the defendant could not have executed Ex. P1 receipt on 17-3-1996 at Tuticorin as contended by the plaintiff's side. 20. 15 lakhs as contended by him and the defendant could not have executed Ex. P1 receipt on 17-3-1996 at Tuticorin as contended by the plaintiff's side. 20. It has to be pointed out that in a suit for specific performance, the plaintiff cannot be allowed to depart from his case as set up in the plaint and therefore, if one agreement is set up in the plaint, but another is established, the case of the plaintiff has to be rejected on that ground. Since the relief of specific performance is in the nature of an equitable relief, even the conduct of a party may disentitle him to the relief asked for. Suffice to say that in the instant case the plaintiff who has come with a specific averment of an agreement for sale on 17-3-96 has not adduced any evidence to prove the same. The oral evidence adduced through PWs. 1 to 3 stands contra to the averments in the pleading. The Court is of the view that Ex. P1 receipt much relied on by the plaintiff for the relief could not have been executed by the defendant at Tuticorin on 17-3-1996. The plaintiff has not adduced sufficient and acceptable proof for the payment of Rs. 15 lakhs to the defendant. Without any hesitation the Court has to comment on the evidence of P.W. 1 as unreliable and that of PWs. 2 and 3 as untrustworthy, since PWs. 2 and 3 have supported the false case of the plaintiff because of their interestedness. The Court cannot rely on the self-serving testimony of P.W. 1 and interested testimony of PWs. 2 and 3 to grant the relief asked for. For the reasons stated and discussions made above, the Court is of the view that the plaintiff is not entitled to the relief of specific performance and other relief. The above issues are answered accordingly. 21. In the result, this suit is dismissed with costs. Suit dismissed.