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2005 DIGILAW 1545 (MAD)

P. Ramalingam Padayatchi v. Muthiah Pillai

2005-09-15

S.ASHOK KUMAR

body2005
Judgment :- (Second Appeal preferred against the judgment and decree dated 13.10.1993 in A.S.No. 57 of 1992 on the file of the Subordinate Judge, Chidambaram, confirming the judgment and decree dated 12.10.1992 in O.S.No: 1505 of 1998 on the file of the District Munsif, Chidambaram.) The defendant is the appellant. The plaintiff filed the suit for specific performance to execute the sale deed as per the agreement, Ex.A.1 dated 24.12.1985. 2. The defendant contended that the plaintiff was not ready and willing to perform his part of the contract, disputed the quantum of money paid as advance at the time of execution of Ex.A.1, sale agreement. However, the trial court decreed the suit. The defendant's first appeal was also dismissed. Hence this Second Appeal. 3. At the time of admission, the following substantial Questions of law were framed by this Court: - (i) Is the Court below right in holding that the agreement for specific performance was kept alive by the party who seeks the remedy before the Court of law under the various provisions of the Specific Relief Act? (ii) Is the Court below right in granting the decree in view of Sections 16 and 20 of the Specific Relief Act? (iii) Whether the Courts below have correctly appreciated the adduced oral and documentary evidence in its proper perspective as well settled by now by the courts of law?" 4. Before this Court, learned counsel appearing for the appellant/defendant would contend that (i) Ex.A.1 is not an agreement for sale, it is only an undertaking for the loan obtained by the defendant due to compelling circumstances; (ii) Rs.5,500/= was not paid as advance as mentioned in Ex.A.1 sale agreement; (iii) there is no attachment of the suit property prior to Ex.A.1 sale agreement; and (iv) the plaintiff was never ready and willing to perform his part of the contract by paying the balance amount to the defendant. 5. The agreement for sale was entered into on 24.12.1985 and out of the sum of Rs.10,000/=, being the sale consideration at the time of Ex.A.1, agreement, Rs.5,500/= was paid by the plaintiff as seen from Ex.A.1 sale agreement itself. As per Ex.A.1, agreement, the sale deed should be executed without any encumbrance in the property before 23.1.1986. In the typed set of paper filed before this Court, the words "without any encumbrance" are missing, whereas they are found in the original. As per Ex.A.1, agreement, the sale deed should be executed without any encumbrance in the property before 23.1.1986. In the typed set of paper filed before this Court, the words "without any encumbrance" are missing, whereas they are found in the original. Therefore, the defendant will not execute the sale deed for the property without any encumbrance. But the property was attached by the Court by an order dated 4.7.1985 in I.A.No.405 of 1985 in O.S.No.24 of 1985, as seen from Ex.A.4, Application for attachment and order passed thereon. Item No.4 in the said application is the suit property. Further, the defendant admits during the course of cross-examination that there was an attachment of the property. Therefore, the contention of the learned counsel for the appellant/defendant that there was no attachment of the property as claimed in the written statement is not correct. At the time of entering into Ex.A.1 agreement, the attachment was subsisting, but the defendant suppressed this fact of the subsistence of the court attachment of the suit property. According to the plaintiff he came to know about the attachment from one Rajagopala Sastrigal, who filed the suit O.S.No.24 of 1985 and therefore, the plaintiff insisted to raise the attachment to execute the sale deed, for which, the defendant was getting time. These aspects are pleaded in the Plaint itself. Only during 1988 the attachment was raised and immediately the plaintiff has issued a notice which was evaded by the defendant and thereafter the plaintiff filed the suit for specific performance. 6. As regards the first contention that the alleged transaction under Ex.A.1 is not a sale agreement is untenable because such defence was not taken either before the trial court or before the first appellate court. Further Ex.A.1 is very clear to the effect that Ex.A.1 is an agreement for sale with two conditions: (1) that the property should be sold without any encumbrance (ii) that the sale deed should be executed before a particular date. Therefore the two contentions of the learned counsel for the appellant/defendant that Ex.A.1 is not a sale agreement is liable to be rejected. 7. The next contention of the learned counsel for the appellant/defendant is that Rs.5,500/= was not paid at the time of executing Ex.A.1 sale agreement. In Ex.A.1 itself it is stated that out of the sale price of Rs.10,000/=, Rs.5,500/= was paid as advance. 7. The next contention of the learned counsel for the appellant/defendant is that Rs.5,500/= was not paid at the time of executing Ex.A.1 sale agreement. In Ex.A.1 itself it is stated that out of the sale price of Rs.10,000/=, Rs.5,500/= was paid as advance. But in the written statement, the defendant claimed that only Rs.3,000/= was paid as advance and the plaintiff promised to pay Rs.2500/= on the next day, but did not pay the money. But during the course of evidence, the defendant when examined as D.W.1, stated that at the time of execution of Ex.A.1, only Rs.2500/= was paid and not Rs.3000/= as mentioned in the written statement. 8. In the judgment, the trial court has rightly observed that for the purpose of the case, i.e., the defendant will go to any extent in uttering falsehood. Therefore, it is clear that Rs.5,500/= has been paid as seen from Ex.A.1 sale agreement itself. 9. Though it was contended in the written statement filed by the defendant that the suit property was not under court attachment, such contention is false because Ex.A.4, as already mentioned clinches the issue. The attachment was made even as early as on 4.7.1985, whereas Ex.A.1, agreement was entered into by them only on 24.12.1985. But the defendant has suppressed the existence of the attachment of the suit property. Admittedly, the attachment was raised only during 1988. Therefore, the contention of the defendant that there was no attachment of the suit property is false. 10. The last contention of the appellant/defendant is that the plaintiff was never ready and willing to pay the balance money and thus not performed his part of the contract. But, according to the plaintiff, he came to know about the attachment from Rajagopala Saistrigal, the plaintiff in O.S.No.24/85 who brought the property under attachment and therefore the plaintiff requested the defendant to raise the attachment and execute the sale deed, for which the defendant was taking time again and again. Normally, when a property is under court attachment, nobody will dare to purchase that property. Therefore, it is natural on the part of the plaintiff to wait till the attachment of the suit property is raised. Because, if he purchase the property during the pendency of the attachment, he has to take the risk and he may even lose the property as well as the money. Therefore, it is natural on the part of the plaintiff to wait till the attachment of the suit property is raised. Because, if he purchase the property during the pendency of the attachment, he has to take the risk and he may even lose the property as well as the money. When the attachment was raised in 1988, the plaintiff has issued a lawyer's notice, which was evaded by the defendant. The plaintiff in paragraph 3 of the Plaint has averred that he was always ready and willing to perform his part of the contract. When the defendant evaded notice as seen from Ex.A.3, Postal Cover, sent by the plaintiff, he has filed the suit on 13.12.1988. 11. As regards the plaintiff's capacity to pay Rs.4,500/=, being the balance sale consideration, as per Ex.A.5, partition deed, the plaintiff has obtained 10 ½ acres of land and according to him he is getting Rs.1000/= per month as rental income from his house and the defendant has also admitted that the plaintiff was selling plots of his Punja lands. Therefore, the plaintiff was having sufficient funds to pay the balance sum of Rs.4,500/= at any time, if the defendant had been ready to executed the sale deed. On the other hand, the conduct of the defendant is that (i) he made false averments, as regards the quantum of advance paid at the time of Ex.A.1 sale agreement, (ii) he suppressed the subsistence of attachment of the suit property (iii) he successfully evaded the lawyer's notice sent by the plaintiff. 12. In AIR 1979 SC 1244 (Prakash Chandra V.Angadlal) Their Lordships of the Supreme Court have held as follows:- "9. The ordinary rule is that specific performance should be granted. It ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief. In the present case, the conduct of the appellant has not been such as to disentitle him to the relief of specific performance. He has acted fairly throughout and there is nothing to show that by any act of omission or commission he encouraged Mohsinali and Qurban Hussain to enter into the sale with the first and second respondents. There is no evidence that the appellant secured an unfair advantage over Mohsinali and Qurban Hussain when he entered into the agreement. He has acted fairly throughout and there is nothing to show that by any act of omission or commission he encouraged Mohsinali and Qurban Hussain to enter into the sale with the first and second respondents. There is no evidence that the appellant secured an unfair advantage over Mohsinali and Qurban Hussain when he entered into the agreement. Nor is there anything to prove that the performance of the contract would involve the respondents in some hardship which they did not foresee. In our opinion there is no reason why the appellant should not be granted the relief of specific performance...." 13. As already mentioned, the plaintiff was ready and willing to perform his part of the contract after the property was raised from court attachment and on the contrary the conduct of the defendant proves his unwillingness to perform his part of the contract. For the reasons stated above, this court has no hesitation to hold that the concurrent findings of the courts below cannot be interfered with unless there is any perversity or failure to exercise of power or error apparent on the face of the record. 14.In the result, the Second Appeal is dismissed. No costs.