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2012 DIGILAW 1479 (MAD)

C. Subramaniam v. A. Ramachandran

2012-03-26

G.RAJASURIA

body2012
Judgment :- 1. This appeal is focussed at the instance of the plaintiff as against the judgment and decree passed by the learned Additional District Judge, (Fast Track Court, No.I), Salem in O.S.No.111 of 2002 dated 28.11.2003. 2. The parties, for convenience sake, are referred to here under according to their litigative status and ranking before the trial Court. 3. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this appeal would run thus: a] The matter has been listed on the following dates: 1. 02.01.2012 2. 05.01.2012 3. 18.01.2012 4. 27.01.2012 5. 30.01.2012 6. 01.02.2012 7. 02.02.2012 8. 07.02.2012 9. 13.02.2012 10. 16.02.2012 11. 01.03.2012 12. 02.03.2012 13. 06.03.2012 14. 07.03.2012 15. 19.03.2012 16. 20.03.2012 and today it has been posted finally. 4. At one point of time, on the respondent's side, representations were made stating that the senior counsel was going to argue the matter; subsequently, it was informed that the said senior counsel, viz., R.S.Subramaniam died; then the counsel on record undertook to argue the matter on several hearings; but no one has come forward to argue on the respondent's side in full the matter. 5. The learned counsel for the appellant has been pressing for the disposal of this appeal ever since January 2012 and he has been arguing the matter also. Earlier also the matter was posted for orders and subsequently, at the request of the counsel on record for the respondent, the matter was adjourned. 6. Today, the matter has been posted for arguments at the instance of the learned counsel for the respondents. Even today, there has been no representation on the respondent's side. Hence, the learned counsel for the plaintiff/appellant has concluded his argument by recapitulating what he argued in previous hearings. Hence, I proceed to dispose of the appeal on the submissions made by the learned counsel for the appellant and also on the perusal of records of the lower court and the pleadings concerned. 7. Hence, the learned counsel for the plaintiff/appellant has concluded his argument by recapitulating what he argued in previous hearings. Hence, I proceed to dispose of the appeal on the submissions made by the learned counsel for the appellant and also on the perusal of records of the lower court and the pleadings concerned. 7. The plaintiff filed the suit seeking the following prayer: a] To pass a judgment and decree in favour of the plaintiff by directing the defendants to execute the sale deed, after getting the balance of sale consideration of Rs.75,000/-at the cost of the plaintiff within the time to be fixed by this court and in case of failure, the same may be done by this Court at the cost of the defendants and for costs. b] The case of the plaintiff as stood exposited in the plaint would run thus: (i) The plaintiff and the defendants entered into an agreement to sell vide Ex.A1 dated 01.12.1993 whereby, the latter undertook to sell their property described in the schedule of the plaint in favour of the former for a total sale consideration of Rs.3,75,000/-and under the said agreement to sell a sum of Rs.2 lakhs was paid by the plaintiff to the defendants. The plaintiff subsequently, paid to the defendants a sum of Rs.1 lakh without getting any endorsement. The plaintiff was put in possession of the suit property as per the said agreement. (ii) Despite, the plaintiff's readiness and willingness to perform his part of the contract, the defendants postponed the execution of the sale deed, without expressing his willingness to receive the remaining part of the sale consideration of Rs.75,000/-, which made the plaintiff to ultimately issue the notice Ex.A2 dated 20.02.1997, which was received by the defendants on 22.02.1997. However, no reply was given by the defendants to the plaintiff. Hence, the suit. c] Inveighing and challenging, denying and refuting the averments/allegations in the plaint, the defendants filed the written statement, which could pithily and precisely be set out thus: (i) Even though the suit agreement to sell emerged between the plaintiff and the defendants, whereby the sum of Rs.2 lakhs was paid by the plaintiff to the defendants, yet as claimed by the plaintiff, the additional sum of Rs.1 lakh was not paid by him to the defendants. (ii) The plaintiff was not ready and willing to perform his part of the contract, whereas he was dilly-dallying and shilly-shallying with the matter and in such a case, he was not entitled to specific performance. (iii) The possession of the suit property was not given to the plaintiff by the defendants and only at the end of the agreement to sell, certain clause was incorporated as though possession was handed over by the defendants to the plaintiff. Accordingly, they prayed for the dismissal of the suit. d] The trial court framed the relevant issues. The plaintiff examined himself as PW1 and marked Exs.A1 to A15. On the defendants' side, D1 examined himself as DW1 along with one Mahalingam, who was examined as DW2 and no document was marked. e] Ultimately, the trial court while dismissing the prayer of the plaintiff for specific performance, ordered the refund of the advance amount with interest even though there was no alternative prayer to that effect in the plaint. f] Being aggrieved by and dissatisfied with the judgment and decree of the trial court, the plaintiff has filed this appeal on various grounds. 8. The learned counsel for the appellant/plaintiff placing reliance on those grounds, advanced his arguments, the pith and marrow of them would run thus: a] The trial court did not give any finding relating to the possession being with the plaintiff. b] There is some cursory references to the plea of possession pleaded by the plaintiff, but there is no finding. Even though the plaintiff could not prove that additionally a sum of Rs.1 lakh was paid by him to the defendants, no reply was given to the legal notice sent by the plaintiff. c] The application of Section 53-A of the Transfer of Property Act was not properly considered by the trial court and the fact remains that the plaintiff has been in possession and enjoyment of the suit property. d] The plaintiff is an income tax assessee and running M/s.Hamsa Agencies business and he had the financial means to perform his part of the contract. d] The plaintiff is an income tax assessee and running M/s.Hamsa Agencies business and he had the financial means to perform his part of the contract. e] The pendency of the Land Acquisition Proceedings was brought to the knowledge of the plaintiff only after the emergence of the agreement to sell and as of now, there is nothing to indicate that the suit property is being proceeded against by the Government for acquisition and those facts will not in any way be treated as an embargo for the plaintiff to get the sale deed executed in his favour by way of specific performance of the agreement to sell. f] Even though the suit was filed only 4 or 5 days before the expiry of the limitation period, no laches could be attributed to the plaintiff because it has been duly explained by the plaintiff that because of the attitude of the defendants, the plaintiff was made to wait. g] The plaintiff, who has been in possession and enjoyment of the suit propertywas justified in expecting that the defendants would come and honour this commitment. h] The trial court was not justified in simply directing the defendants to pay certain amounts, in the absence of any prayer for damages or for return of any amount. Accordingly, he would pray for granting the relief of specific performance by setting aside the judgment and decree of the trial court. 9. The points for consideration are as under: 1. Whether the plaintiff has been ready and willing to perform his part of the contract ever since the emergence of the agreement to sell? 2. Whether Section 53-A of the Transfer of Property Act is attracted in the facts and circumstances of this case and if so, whether the plaintiff was justified in waiting for almost the entire period of limitation expecting that the defendants would come and execute the sale deed in his favour? 3. Whether the trial court was justified in directing the defendants to pay a sum of Rs.2,00,000/- with interest as found set out in the decree even though there is no prayer for damages or for return of any money? 4. Whether there is any perversity or illegality in the judgment and decree of the trial court? 10. All these points are taken together for discussion as they are inter-linked and interwoven, inter-connected and entwined with one another. 11. 4. Whether there is any perversity or illegality in the judgment and decree of the trial court? 10. All these points are taken together for discussion as they are inter-linked and interwoven, inter-connected and entwined with one another. 11. Indubitably and indisputably, there emerged an agreement to sell between the plaintiff on the one hand and the defendants on the other hand, who are the owners of the suit property, whereby the latter agreed to sell in favour of the former the suit property for a total sale consideration of Rs.3,75,000/-. Under the said agreement to sell, a sum of Rs.2,00,000/- was paid by the plaintiff to the defendants. However, the plaintiff without capable of producing any clinching evidence, would state that additionally a sum of Rs.1 lakh under the said agreement to sell was paid by him to the defendants. But the fact remains that the learned counsel for the appellant/plaintiff would submit that even now the plaintiff is ready and willing to pay the remaining part of the sale consideration of Rs.75,000/- along with the said disputed sum of Rs.1,00,000/-(Rupees one lakh) also, but deducting only the sum of Rs.2,00,000/- (Rupees two lakhs), which was already paid by way of advance. The plaintiff, would contend that under the said agreement to sell in Ex.A1 dated 01.12.1993 the recitals would demonstrate and display that the plaintiff was put in possession of the suit property; however, the contention on the side of the defendants was that such a version was inserted in the last portion of the agreement to sell. 12. In my considered opinion, merely because, such a clause is found incorporated at the last portion of the agreement, it would not lose its effectiveness. Nowhere under the law, it is contemplated that the clause contemplated under the fag end of the agreement to sell should be ignored or belittled or slighted or to be looked askance at, with suspicious eye. 13. I recollect and call up the following maxim: Voxaudita perit; littera scripta manet – The heard word is lost; the written letter abides. 14. Here the written words are to the effect that the plaintiff has been put in possession of the suit property under the agreement to sell Ex.A1 and in such a case, I am at a loss to understand as to how the trial court simply ignored the said fact and decided otherwise. 14. Here the written words are to the effect that the plaintiff has been put in possession of the suit property under the agreement to sell Ex.A1 and in such a case, I am at a loss to understand as to how the trial court simply ignored the said fact and decided otherwise. Needless to observe that the onus probandi is on the defendants to prove that despite such clause, the plaintiff was not in possession of the suit property by the defendants. 15. I could see no evidence on the side of the defendants to torpedo and pulverise the specific clause as found in Ex.A1 relating to possession of the suit property having been given to plaintiff by the defendants. On the defendants' side, no document was filed. As such, the deposition of PW1 coupled with Ex.A1 would amply make the point clear and enable the court to hold a fortiori the plaintiff was put in possession of the suit property, which is an agricultural land. Keeping this fact in mind, the matter should have been analysed by the trial court. 16. Trite the proposition of law is that the plaintiff who seeks specific performance should have been ready and willing to perform his part of the contract throughout and he is not expected to avail the full limitation period without proper explanation. 17. My mind is reminiscent and redolent of the following decisions of the Hon'ble Apex Court: (i) 2010(10) SCC 512 [Man Kaur (Dead) By L.Rs. v. Hartar Singh Sangha]; certain excerpts from it would run thus: "40. This contention has no merit. There are two distinct issues. The first issue is the breach by the defendant vendor which gives a cause of action to the plaintiff to file a suit for specific performance. The second issue relates to the personal bar to enforcement of a specific performance by persons enumerated in Section 16 of the Act. A person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him (other than the terms the performance of which has been prevented or waived by the defendant) is barred from claiming specific performance. A person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him (other than the terms the performance of which has been prevented or waived by the defendant) is barred from claiming specific performance. Therefore, even assuming that the defendant had committed breach, if the plaintiff fails to aver in the plaint or prove that he was always ready and willing to perform the essential terms of contract which are required to be performed by him (other than the terms the performance of which has been prevented or waived by the plaintiff), there is a bar to specific performance in his favour. Therefore, the assumption of the respondent that readiness and willingness on the part of the plaintiff is something which need not be proved, if the plaintiff is able to establish that the defendant refused to execute the sale deed and thereby committed breach, is not correct. Let us give an example. Take a case where there is a contract for sale for a consideration of Rs.10 lakhs and earnest money of Rs.1 lakh was paid and the vendor wrongly refuses to execute the sale deed unless the purchaser is ready to pay Rs.15 lakhs. In such a case there is a clear breach by the defendant. But in that case, if the plaintiff did not have the balance Rs.9 lakhs (and the money required for stamp duty and registration) or the capacity to arrange and pay such money, when the contract has to be performed, the plaintiff will not be entitled to specific performance, even if he proves breach by the defendant, as he was not "ready and willing" to perform his obligations." (ii) (2011) 1 SUPREME COURT CASES 429 – J.P.BUILDERS AND ANOTHER V. A.RAMADAS RAO AND ANOTHER would run thus: "27. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the Court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. "Readiness and willingness" to perform the part of the contract has to be determined/ascertained from the conduct of the parties." 18. Here, this is a case, wherein the plaintiff was put in possession of the suit property as per Ex.A1 and as such Section 53-A of the Transfer of Property Act could be pressed into service. 19. The core question arises as to whether the plaintiff who admittedly paid a sum of Rs.2,00,000/- (Rupees two lakhs only) and has been in possession of the suit property should rush to court without even waiting for the defendants to perform his part of the contract. 20. Even though the defendants would contend that even before entering into the contract, the plaintiff was aware of the land acquisition proceedings, yet there is no miniscule or jot of evidence to highlight and spotlight the fact that the plaintiff had knowledge about the land acquisition proceedings before entering into the agreement to sell. However, the plaintiff as well as the defendants in their evidence would expatiate that there emerged land acquisition proceedings; but the details of it are not available. 21. Be that as it may, it is quite clear that because of the apprehended or pending land acquisition proceedings, there were some delay. The core question arises as to whether the plaintiff has to be blamed for that. The plaintiff issued notice, for which no reply was given by the defendants and that would additionally mulct the defendants with liability to perform their part of the contract. 22. The learned counsel for the appellant/plaintiff would cite the decision of the Hon'ble Apex Court reported in AIR 2004 SC 3854 [ Mahadeva and others vs. Tanabai]. Certain excerpts from it would run thus: "8. The judgment of the High Court is based on a question framed during the course of writing of the judgment which is in departure from the two questions of law on which the appeal was admitted for hearing. The whole emphasis shifted from the core issues. Then, the High Court has not discussed any law and has also not assigned reason, much less a satisfactory one, for taking a view different from the one concurrently taken by the two courts below. The whole emphasis shifted from the core issues. Then, the High Court has not discussed any law and has also not assigned reason, much less a satisfactory one, for taking a view different from the one concurrently taken by the two courts below. The singular reason assigned by the High Court for denying the benefit of Section 53-A of the T.P.Act is not a sound reason by itself in view of the decision of this court in Shrimant Shamrao Suryavanshi and another vs. Pralhad Bhairoba Suryavanshi (dead) by Lrs and others (2002) 3 SCC 676 . This court has held that merely because the suit for specific performance at the instance of the vendee has become barred by limitation that by itself is not enough to deny the benefit of the plea of part performance of agreement of sale to the person in possession." Even though this judgment is on different set of facts what one could understand is that a person, who is in possession of the suit property under Section 53-A of the Transfer of Property Act is on a better footing and in my considered opinion, in the facts and circumstances of this case, the plaintiff was justified in waiting for the defendants to come and execute the sale deed. Approaching the court for getting specific performance is not an easy affair for the plaintiff; he has to initially spend cost towards court fee, advocate fees and other incidental expenses. In such a case, the plaintiff cannot be found fault with for having waited till almost the expiry of the limitation period. Cases involving the application of Section 53-A of the Transfer of Property Act has to be viewed some what differently while understanding the concept of approaching the court at the earliest point of time. 23. The learned counsel for the plaintiff in all fairness would state that in the event of this court finding that the plaintiff was not entitled to get the sum of Rs.One lakh deducted from the remaining part of the sale consideration, the plaintiff would deposit the entire remaining sale consideration of Rs.1,75,000/-(Rupees one lakh and seventy five thousand only). 24. The learned counsel for the plaintiff in all fairness would state that in the event of this court finding that the plaintiff was not entitled to get the sum of Rs.One lakh deducted from the remaining part of the sale consideration, the plaintiff would deposit the entire remaining sale consideration of Rs.1,75,000/-(Rupees one lakh and seventy five thousand only). 24. When the plaintiff had chosen to incorporate in Ex.A1 the sum of Rs.2,00,000/-(Rupees two lakhs only) which was paid as advance by him to the defendants, I am at a loss to understand as to what made the plaintiff not to get the endorsement in the same Ex.A1 itself, the alleged fact of he having paid the additional sum of Rs.1,00,000/-(Rupees one lakh only) to the defendants. Hence, I am of the view that the plaintiff could not prove his claim that he additionally paid the sum of Rs.1,00,000/- (Rupees one lakh only) under Ex.A1. 25. Regarding the ability of the plaintiff to purchase the property, it is quite obvious and axiomatic from the perusal of Exs.A9 to A15 that the plaintiff was having financial wherewithal to perform his part of the contract. Hardly could it be stated in the wake of the cited exhibits that the plaintiff was not financially sound. These facts also, the trial court has not taken note of. 26. In para No.11 of its judgment, the trial court ignoring this clinching evidence, opined as though from those Exs.A9 to A15 one cannot infer that the plaintiff was financially sound to perform his part of the contract. No doubt, the trial court would even went to the extent of commenting upon those income tax returns and observe that only meagre amount was paid as income tax by the plaintiff. There the trial court committed a serious mistake. The trial court was misled by the notion as though the income tax paid by the plaintiff should be huge enough to enable the court to visualize that the plaintiff was capable of paying the remaining part of the sale consideration, so to say, the balance amount of Rs.1,75,000/-. There the trial court committed a serious mistake. The trial court was misled by the notion as though the income tax paid by the plaintiff should be huge enough to enable the court to visualize that the plaintiff was capable of paying the remaining part of the sale consideration, so to say, the balance amount of Rs.1,75,000/-. Both oral and documentary evidence adduced on the side of the plaintiff would convey and portray that he was financially sound and that simply because, those documents did not refer to the fact that he was having in his hand a sum of Rs.1,75,000/- he cannot be described as a person, who was not having financial wherewithal to perform his part of the contract. Even if a person is capable of raising money and paying the remaining part of the sale consideration that itself is much more sufficient to prove his readiness and willingness to perform his part of the contract. In this regard, I would like to cite the decision of the Hon'ble Apex Court reported in (1997) 4 SCC 482 [Bibi Jaibunisha vs. Jagdish Pandit] could fruitfully be cited and certain excerpts from it would run thus: 7. The next question is: whether the appellant was ready and willing to perform his part of the contract? In that behalf, all the Courts have found that the appellants was not ready and willing to perform his part of the contract and an inference has been drawn in support of the finding from the non-production of the Bank Pass-book. It is seen that though he has not produced the passbook, it is not the plea of the respondent that she had no capacity to pay the amount. She established that she has a substantial money to pay the amount. Under these circumstances, it would be unlikely that the appellant would have failed to offer the amount before coming to the Court for the specific performance. It is seen that the last day of the limitation under the contract was February 20, 1973 and the suit was filed on April 7, 1975 within three years under Article 54 of the Schedule to the limitation Act. The courts below were wrong in coming to the conclusion that the appellant had not tendered the amount to the respondent. It is seen that the last day of the limitation under the contract was February 20, 1973 and the suit was filed on April 7, 1975 within three years under Article 54 of the Schedule to the limitation Act. The courts below were wrong in coming to the conclusion that the appellant had not tendered the amount to the respondent. It is seen that in the evidence of the plaintiff (PW-1), it is stated that he was willing and, in fact, he had offered a sum of Rs. 4,500/-. On the other hand, another witness (PW-3) has stated that he has offered to pay a sum of Rs. 4,000/-. On this minor discrepancy of Rs. 500/-, the court below was not right in disbelieving the entire evidence. 8. The material question is: whether the appellant had capacity to pay the money as offered. On this aspect, there is no consideration by either of the courts. Under these circumstances, the courts below were in error in reaching the conclusion that the appellant was not ready and willing to perform her part of the contract. As held earlier, there is no dispute on the capacity of the appellant to pay back Rs. 4,000/-the consideration paid under the conveyance executed in favour of the respondent. When we put the question to the learned counsel for the appellant as to what amount his client is willing to pay since the property is required to be reconveyed under the agreement, the learned counsel, in fairness, has stated the appellant is willing to pay a sum of Rs. 40,000/- in lump sum. .............." 27. Accordingly, I am of the view that the trial court was wrong in holding that the plaintiff was not having financial wherewithal to perform his part of the contract. The sum of Rs.1,75,000/-(Rupees one lakh and seventy five thousand only) was not a huge amount by any standard and the evidence referred to supra would indicate and establish that he was worthy to that much amount. 28. Section 22 of the Specific Relief Act is clear on the point that unless there is a prayer for return of the advance amount, there is no question of ordering so. The plaint was not got amended also. 28. Section 22 of the Specific Relief Act is clear on the point that unless there is a prayer for return of the advance amount, there is no question of ordering so. The plaint was not got amended also. No doubt, the trial court ordered the said advance amount of Rs.2,00,000/- (Rupees two lakhs only) to be refunded to the plaintiff with interest by way of damages. Such a course is not contemplated in the absence of the plaintiff having made such a prayer in the plaint. Needless to state that the approach of the trial court is far from satisfactory and it is liable to be set aside. Over and above that I would also like to incidentally point out that the trial court did choose to order refund of the amount with damages by way of interest would connote and denote that as per the trial court the plaintiff was not at all at fault. In such a case, I am of the view that the judgment and decree of the trial court is liable to be set aside and the prayer of the plaintiff for specific performance should be allowed. 29. Accordingly, Point No.1is decided to the effect that the plaintiff has been ready and willing to perform his part of the contract ever since the emergence of the agreement to sell. Point No.2is decided to the effect that Section 53-A of the Transfer of Property Act is attracted in the facts and circumstances of this case and the plaintiff was justified in waiting for almost the entire period of limitation expecting that the defendants would come and execute the sale deed in his favour. Point No.3 is decided to the effect that the trial court was not justified in directing the defendants to pay the sum of Rs.2,00,000/-with interest as found set out in the decree when there is no prayer for damages or for return of any money. 30. Point No.3 is decided to the effect that the trial court was not justified in directing the defendants to pay the sum of Rs.2,00,000/-with interest as found set out in the decree when there is no prayer for damages or for return of any money. 30. In the result, the suit is decreed as prayed for and the judgment and decree of the trial court is set aside and the appeal is allowed with costs throughout as under: The defendants shall execute the sale deed in favour of the plaintiff on the plaintiff depositing the remaining sale consideration of a sum of Rs.1,75,000/- (Rupees one lakh and seventy five thousand only) within a period of one month from the date of receipt of a copy of this order. Consequently, the connected miscellaneous petition is closed.