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Madras High Court · body

2008 DIGILAW 2643 (MAD)

C. K. Natarajan v. M. Sarvothayam & Others

2008-07-25

R.BANUMATHI

body2008
Judgment This Second Appeal is directed against the concurrent findings of Courts below in A.S.No.10 of 2007 on the file of learned Subordinate Judge, Tirupur, dated 210. 2007 (arising out of the trial Court judgment in O.S.No.901 of 2004 on the file of learned District Munsif, Tirupur dated 211. 2006) dismissing the Plaintiffs Suit for specific performance. Unsuccessful Plaintiff is the Appellant. 2. Case of Plaintiff is that first Respondent/Defendant had entered into an Agreement of Sale (Ex.A1) on 12.03.1998. The sale consideration was fixed at Rs.65,000/- and on the same day, Plaintiff had paid an advance amount of Rs.20,000/-to the first Defendant. On 10.03.2000, Plaintiff had paid an amount of Rs.20,000/- (EX.A2- Endorsement) and the time was extended from 10.03.2000 to 12.03.2002 under Ex.A3-Endorsement. Plaintiff had again paid an amount of Rs.15,000/-on 09.03.2002 and the sale agreement was extended from 12.03.2002 to 12.09.2004. According to the Plaintiff he was always ready and willing to perform his part of contract. On 12.09.2004, plaintiff had issued Ex.A4-Notice to the first Defendant expressing his readiness and willingness. Inspite of receipt of the said notice, the first Defendant did not execute the sale deed. In order to defeat the lawful claim of the Plaintiff, first defendant had executed Ex.B7-Sale Deed (18.09.2002) in favour of Defendants 2 and 3 and the sale deed has been created and is binding upon the Plaintiff. The Plaintiff had filed the suit for specific performance against the Defendants 1 to 3. 3. Denying execution of Ex.A1-Agreement of Sale, second Defendant has filed written statement contending that his signature was taken in blank stamp papers for the amount as a security for the loan. In respect of cheque for Rs.1,00,000/-(one lakh) issued by the first Defendant, which was dishonoured, plaintiff has filed criminal complaint under Section 138 of Negotiable Instruments Act in C.C.No.533 of 2002 on the file of Judicial Magistrate No.1 Tirupur, and the same is pending. Plaintiff has fabricated Ex.A1-Agreement of Sale using the signature of first Defendant obtained in blank stamp paper. According to Defendants 2 and 3, they are bonafide purchasers for value and they are in possession and enjoyment of the suit property and therefore, the Plaintiff is not entitled to the discretionary relief of specific performance. 4. On the above pleadings, relevant issues were framed. According to Defendants 2 and 3, they are bonafide purchasers for value and they are in possession and enjoyment of the suit property and therefore, the Plaintiff is not entitled to the discretionary relief of specific performance. 4. On the above pleadings, relevant issues were framed. Upon consideration of evidence, trial court held that Plaintiff being a money lender, Ex.A1 was obtained as a security for the loan borrowed by the first Defendant. Pointing out various circumstances trial court held that if the parties really entered into EX.A1-Agreement of Sale, they would not have extended time for 6 ½ years for performance of the contract. Finding that Ex.A1 was obtained as security for the loan, trial court dismissed Plaintiffs suit. 5. Aggrieved, Plaintiff has filed A.S.No. 10 of 2007. Lower Appellate Court also held that Exs.A1 to 3 were not executed by the first Defendant as agreement of sale and for extending time for performance of the contract. Lower Appellate Court held that first Defendant had signed in blank stamp papers only for the loan transaction and on this finding confirmed the judgment of the trial court and dismissed the appeal. 6. Challenging the concurrent findings of court below, unsuccessful Plaintiff has filed the Second Appeal. With the consent of both counsel, the Second Appeal itself was taken up for final hearing at the stage of "Notice Before Admission". During the course of arguments following substantial questions of law was formulated for consideration. "(a) Whether the judgment and decree of the Courts below are right in dismissing the suit for specific performance in the absence any denial by the person who executed a suit sale agreement to sell the suit property? (b) Are not the Courts below committed miscarriage of justice in rejecting the case of the appellant by holding that the suit sale agreement is meant only for loan transaction? 7. Challenging the concurrent findings, learned counsel for the Appellant Mr. N. Thiagarajan, contended that when the first Defendant has not gone into the witness box, the subsequent purchasers, Defendants 2 and 3 cannot speak about the execution of Exs.A1 to 3 nor can they dispute the sale agreement. Placing reliance upon AIR 1995 SC 945 (Jugraj Singh And Another Vs. Labh Singh and others) the learned counsel submitted that plea about readiness and willingness of Plaintiff is not available to subsequent purchasers. Placing reliance upon AIR 1995 SC 945 (Jugraj Singh And Another Vs. Labh Singh and others) the learned counsel submitted that plea about readiness and willingness of Plaintiff is not available to subsequent purchasers. The learned counsel further submitted that time is not the essence of contract in case of immovable properties and while so, courts below erred in admitting Ex.A1 on the ground of long time fixed and Ex.A1 for performance of the contract. The learned counsel would further submit that the courts below failed to appreciate the oral and documentary evidence in proper perspective. .8. Drawing attention of court to Exs.A1 to 3, learned counsel for the Defendants Mr. P.L. Narayanan, had submitted that it is quite improbable that the same witnesses were verified for both A.1- Agreement of Sale and Exs.A2 and A3-Endorsement. The learned counsel further submitted that on comparison of Exs.A1 to 3, courts below rightly held that EX.A1 is a fabricated document. Drawing attention of court to Exs.A4 and A6, learned counsel further submitted that having refused to take the offer of sale of house, it is not open to the Plaintiff to claim relief of specific performance under Ex.A1-Agreement of Sale. The learned counsel has pointed out that after purchase, Defendants 2 and 3 have put up building and at this point of time, it would be inevitable to grant the discretionary relief of specific performance. 9. Ex.A1-Agreement of Sale is dated 12.03.1998 for consideration of Rs.65,000/- . On the date of agreement, Plaintiff paid Rs.20,000/-. On 10.03.2000, Plaintiff is said to have paid Rs.20,000/- for which Ex.A2-Endorsement was made extending the time from 12.03.2000 to 12.03.2002. On 09.03.2002, plaintiff is said to have paid Rs.15,000/-(EX.A3-Endorsement) and time was allegedly extended from 12.03.2002 to 12.09.2004. The total time for performance of the contract is about 6 ½ years. As rightly held by the courts below it is quite unbelievable that for performance of the contract of immovable property the parties would have fixed time for performance at a long period of 6 ½ years. 10. It is relevant to note that witnesses to Exs.A1 to 3 are one and the same viz., Palanisamy (PW2) and one Baskaran. It passes ones comprehension as to how same two persons were co-incidentally available to sign as witness on three different dates with three intervals of two years each. 11. 10. It is relevant to note that witnesses to Exs.A1 to 3 are one and the same viz., Palanisamy (PW2) and one Baskaran. It passes ones comprehension as to how same two persons were co-incidentally available to sign as witness on three different dates with three intervals of two years each. 11. In this regard, Lower Appellate Court has also pointed out the typing both in EX.A1-Agreement of Sale and Exs.A.2 & A.3- Endorsement are one and the same. Based on the circumstance that Exs.A1 to 3 were typed using the same machine and taking note of the fact that the same witnesses have signed, courts below rightly held that Exs.A1 to A3 must have been prepared at one and the same time. In my considered view, the concurrent findings of the courts below is based upon appreciation of evidence and the same cannot be interfered. .12. Yet another circumstance pointed out by the courts below needs mention. First Defendant has been working as cashier in State Bank of Travancore, Vijayapuram Branch. As seen from Exs.B7 and B8.-the certificate issued by the said bank and the extract of Attendance Register for 12.03.1998 and 10.03.2000, first Defendant has been attending to his work in the bank on these two dates. As rightly submitted by the learned counsel for the first Defendant MR. P.L. Narayanan, if the cashier has to go out of the bank the employee concerned should obtain prior permission and for taking such a permission no endorsement has been made in the attendance register. It is relevant to note that distance between the first Defendant work place (i.e) State Bank of Travancore, Tirupur at Vijayapuram and the alleged place of execution of agreement of sale Exs.A1 to 3 viz., Tirupur Town is about 12 km. It is quite improbable that the first Defendant cashier even while on duty would have travelled to Tripur to sign in Ex.A1 and in the endorsement-Ex.A2. Upon consideration of evidence, courts below rightly held that first Defendant could not have been present in the Taluk office to sign in Exs.A1 and A2 as alleged by the Plaintiff. 13. Plaintiff is doing money lending business and the first Defendant has borrowed Rs.2,00,000/-(two lakhs) on 010. 2001 for discharging the same. First Defendant had issued EX.B1-Cheque dated 08.04.2000. Upon consideration of evidence, courts below rightly held that first Defendant could not have been present in the Taluk office to sign in Exs.A1 and A2 as alleged by the Plaintiff. 13. Plaintiff is doing money lending business and the first Defendant has borrowed Rs.2,00,000/-(two lakhs) on 010. 2001 for discharging the same. First Defendant had issued EX.B1-Cheque dated 08.04.2000. The cheque presented for collection dishonoured regarding which, a criminal case under Section 138 Negotiable Instruments Act was also filed before the Judicial Magistrate No.1, Tirupur in C.C.No.533 of 2002. When the Plaintiff is said to have advanced loan of Rs.2,00,000/-in October 2001, which the first Defendant had not repaid, it is quite unbelievable that the Plaintiff would have paid further advance of Rs.15,000/-on 09.03.2002 to get Ex.A3 endorsement. Referring to various facts and circumstances, courts below rightly held that signature of first Defendant was obtained by the Plaintiff as security for the loan advanced. 14. In response to Ex.A4- Legal Notice, first Defendant had sent Ex.A6-Letter (16.08.2004). In Ex.A6-Reply Notice, first Defendant has stated that even in the beginning he asked Appellant/Plaintiff to purchase his house at Tirupur to enable him to settle his dues, and that the Appellant has not accepted the proposal. In Ex.A6, first Defendant has also added that he sold his house to the Defendants 2 and 3 under Ex.B7 dated 18.09.2002. The fact that first Defendant has already requested the Plaintiff to purchase the property and the Plaintiff refused to purchase is a strong circumstance to be reckoned with. 15. Under Ex.B7 sale deed dated 18.09.2002, first Defendant had already sold the suit property to Defendants 2 and 3, but the Plaintiff has filed the suit on 21.09.2004. As rightly held by the courts below if Ex.A1 was a genuine agreement of sale he would have immediately rushed to the court and he would not have remained silent even after alienation of the suit property. 16. Upon appreciation of oral and documentary evidence courts below recorded concurrent findings that there was borrowal by the first Defendant and that he found it difficult to pay the dues and also a criminal case under section 138 of the Negotiable Instruments Act was filed and the same was pending. Courts below recorded concurrent finding that signature under Ex.A1 was obtained as a security for the loan advanced and the same cannot be interfered with. 17. Courts below recorded concurrent finding that signature under Ex.A1 was obtained as a security for the loan advanced and the same cannot be interfered with. 17. The jurisdiction to decree specific relief is discretionary and the Court has to take into consideration various circumstances to decide whether such relief is to be granted. Merely because it is lawful to grant specific relief, the Court need not grant the order for specific relief; but this discretion shall not be exercised in an arbitrary or unreasonable manner. 18. Observing that the Court should see that litigation is not used as an instrument of oppression in Parakunnan Veetill Josephs Son Mathew v. Nedubara Kuruvilas Son, AIR 1987 SC 2328 , the Supreme Court has cautioned and observed as under : " .... 14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter in the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the Plaintiff." 19. Based upon evidence, courts below recorded concurrent findings of the fact, where both the courts below have correctly appreciated the facts and arrived at correct conclusion exercising jurisdiction under Sec. 100 C.P.C the High Court will not interfere with the concurrent findings of fact. In this Second Appeal no substantial question of law arises for consideration and the second Appeal is bound to fail. 20. In the result the judgment of Lower Appellate Court in A.S.No.10 of 2007 on the file of learned Subordinate Judge, Tirupur, dated 210. 2007 (arising out of the Trial Court judgment in O.S.No.901 of 2004 on the file of learned District Munsif, Tirupur dated 211. 2006) is confirmed and the Second Appeal is dismissed. In the circumstances of the case, there is no order as to costs.