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2013 DIGILAW 532 (MAD)

A. Raja v. J. K. Madhu

2013-01-23

P.R.SHIVAKUMAR

body2013
Judgment :- 1. The defendant in O.S.No.190 of 2003 on the file of the District Munsif, Krishnagiri, who suffered a decree in the said suit for specific performance, after unsuccessfully prosecuting an appeal in A.S.No.46 of 2007 before the Principal Subordinate Judge, Krishnagiri, has approached this Court with the present second appeal. 2. The suit was filed by the respondent herein for the relief of specific performance based on a registered agreement for sale dated 26.11.2001. It was contended by the respondent herein in his plaint that the appellant herein agreed to sell the suit properties to the respondent herein for a sum of Rs.30,000/-, received a sum of Rs.25,000/-as advance and part payment of the consideration and executed the suit sale agreement agreeing to execute a sale deed on receipt of Rs.5,000/-being the balance amount of sale consideration within two years from the date of the suit sale agreement. It was the further contention of the respondent herein that though he was ready and willing to make payment of the balance sale consideration and get the sale deed executed and registered in his name, the appellant herein evaded performing his part of the contract which necessitated the issuance of a pre-suit notice dated 11.08.2003 calling upon the appellant herein to receive the balance amount of sale consideration and execute the sale deed at the cost of the plaintiff on or before 20.08.2003; that the said notice was not replied and the demand made therein was not complied with and on the other hand, the appellant herein had chosen to file a caveat in Ceveat O.P.No.87 of 2003 on the file of the trial Court and that hence he was constrained to file the suit for specific performance. 3. 3. The suit was resisted by the appellant herein contending that he had borrowed a sum of Rs.5,000/- from the respondent herein in the year 1999 and executed a promissory note; that for the said amount borrowed, the respondent herein imposed a condition that a sum of Rs.500/- should be paid per month as interest; that since the appellant herein was not able to pay the said interest for two months, exploiting the financial constraints of the appellant herein, the respondent herein coerced the appellant herein to execute the suit sale agreement as security for the repayment of the loan; that in the month of July 2003, the appellant herein requested the respondent herein to receive the amount lent, namely Rs.5,000/- together with an interest calculated at the rate of 18% p.a, but the respondent herein claimed a sum of Rs.25,000/-together with an interest at the rate of 60% per annum; that due to the said misunderstanding, notice dated 11.08.2003 came to be issued by the respondent herein; that while the appellant herein was trying to amicably settle the matter, the respondent rushed to the Court with the suit for specific performance and that hence, the appellant could not issue a reply. Based on the above said averments, the appellant had prayed for the dismissal of the suit with costs. 4. Necessary issues were framed by the trial Court and in the trial, including the plaintiff, three persons were examined as Pws 1 to 3 and 6 documents were marked as Exs.A1 to A6 on the side of the respondent herein / plaintiff. The defendant figured as the sole witness (DW1) on his side and no document was produced on his side. 5. The learned Additional District Munsif, Krishnagiri, upon considering the pleadings and the evidence, came to the conclusion that the execution of the suit agreement for sale was admitted by the appellant herein and that the defence plea of the appellant herein/defendant that the suit agreement for sale was obtained by coercion and was intended to be a security for the repayment of the loan, was not substantiated by reliable evidence by the appellant herein/defendant. Based on such conclusion the trial Court chose to reject the above said defence plea of the appellant herein/defendant. Based on such conclusion the trial Court chose to reject the above said defence plea of the appellant herein/defendant. On an appreciation of evidence adduced regarding the question of readiness and willingness on the part of the respondent herein/plaintiff to perform his part of the contract, the learned trial Judge accepted the case of the respondent herein/plaintiff and accordingly, decreed the suit for specific performance directing the appellant herein to execute a sale deed in respect of the suit properties to and in favour of the respondent herein/plaintiff. While deciding the case in favour of the respondent herein/plaintiff, the learned trial Judge also noted the fact that the balance amount of consideration had already been deposited into the Court to the credit of the suit. 6. The said decree passed by the trial Court on 08.09.2005 was challenged by the appellant herein before learned Principal Subordinate Judge, Krishnagiri in A.S.No.46 of 2007. The learned lower appellate Judge, on a re-appreciation of evidence, concurred with the findings of the trial Court in all respects and dismissed the said appeal confirming the decree passed by the trial Court. The said decree of the lower appellate Court dated 08.09.2009 made in A.S.No.46 of 2007 is challenged in the present second appeal on the grounds set out in the memorandum of grounds of second appeal. 7. The matter has come up today for admission. Since the second appeal came to be filed with a delay, the respondent entered appearance in the SR stage itself and the respondent is also represented by a counsel. 8. The arguments advanced by Mr.V.Nicholas, learned counsel for the appellant and by Mr.P.Mani, learned counsel for the respondent are heard. Upon such hearing and after perusing the grounds of appeal and the documents produced in the form of typed-set of papers including the copies of the judgments and decrees of the Courts below, this Court pronounces the following judgment. 9. Under Section 100 of the Civil Procedure Code, an appeal against an appellate decree of a Court subordinate to the High Court shall lie to the High Court only on a substantial question of law. The party filing the second appeal has to precisely formulate the substantial question of law and incorporate the same in the grounds of second appeal. Under Section 100 of the Civil Procedure Code, an appeal against an appellate decree of a Court subordinate to the High Court shall lie to the High Court only on a substantial question of law. The party filing the second appeal has to precisely formulate the substantial question of law and incorporate the same in the grounds of second appeal. The High Court hearing the matter shall formulate the substantial question of law if it is satisfied that such a question of law is involved in the second appeal and indicate that on the said substantial question of law the appeal is admitted for hearing on merit. 10. In this case, the defendant in the original suit, who suffered a decree and failed in his challenge made to the same before the first appellate Court, has brought forth this second appeal against the concurrent judgments of the Courts below. Admittedly, the appellant herein is the owner of the suit properties. The suit was filed based on Ex.A1 agreement for sale dated 26.11.2001, admittedly executed by the appellant herein in favour of the respondent herein. It has also been registered. Necessary pleadings regarding the readiness and willingness on the part of the respondent herein/plaintiff to pay the balance amount of sale consideration and get the sale deed executed in his favour had also been made in the plaint. In fact, it is also an admitted fact that prior to the filing of the suit, the respondent herein/plaintiff issued a notice under Ex.A2, the receipt of which was acknowledged under Ex.A3 and no reply was sent to the said notice. It is also an admitted fact that instead of issuing a reply to the said notice, the appellant herein/defendant chose to file a caveat before the trial Court and the copy of the caveat petition filed by him has been produced as Ex.A4. When such is the case, the appellant/defendant, who claims that the suit agreement for sale was obtained by coercion and it was intended to be a security for the repayment of the loan, ought to have led sufficient and reliable evidence and proved his case. In this regard, excepting the interested testimony of DW1, the appellant himself, there is no other evidence either oral or documentary to prove the said contention of the appellant. In this regard, excepting the interested testimony of DW1, the appellant himself, there is no other evidence either oral or documentary to prove the said contention of the appellant. The same was taken into consideration by both the Courts below to reject the above said contention of the appellant herein/defendant as one not substantiated. 11. The learned counsel for the appellant herein has contended that the initial burden of proving the agreement was with the respondent / plaintiff and the Courts below have committed an error in shifting the burden on the appellant herein/defendant to prove his defence plea and that the same could be taken as the substantial question of law involved in the second appeal. This Court is not in a position to accept the above said contention of the learned counsel for the appellant as a plausible or tenable one. When the execution of the document is admitted by the appellant and he pleads a vitiating factor, namely coercion, to challenge the validity of the agreement, the burden to prove it solely rests on the appellant/defendant. As pointed out supra, excepting the ipse dixit of the appellant himself, there is no other evidence to prove the said vitiating factor. Not even a favourable answer was elicited from the witnesses examined on the side of the respondent herein/ plaintiff to support his case of coercion having been applied for getting the sale agreement executed. The procedure adopted by the courts below in casting the burden of proving the vitiating factor on the appellant/defendant cannot be found fault with and the contention raised by the learned counsel for the appellant projecting the same as a substantial question of law has got to be rejected. 12. Apart from taking a plea that the suit sale agreement was tainted with the vitiating factor coercion, the appellant/defendant also took a plea that it was not intended to be acted upon and on the other hand, it was intended to be a security for repayment of loan. According to him, he borrowed a sum of Rs.5,000/-in 1999 and in 2001, the suit sale agreement was obtained reciting a sum of Rs.25,000/-as the advance paid. No prudent man will agree for executing such an agreement reciting a sum, which is five times more than the amount borrowed as the amount paid as advance. According to him, he borrowed a sum of Rs.5,000/-in 1999 and in 2001, the suit sale agreement was obtained reciting a sum of Rs.25,000/-as the advance paid. No prudent man will agree for executing such an agreement reciting a sum, which is five times more than the amount borrowed as the amount paid as advance. The appellant/defendant has also contended that he expressed his readiness to repay the amount borrowed, namely Rs.5,000/-along with an interest at the rate of 18%, but the respondent/plaintiff demanded Rs.25,000/-with interest at 60% per annum. The same is highly improbable. Above all, if at all the contention of the appellant could be true, he could have chosen to issue a notice narrating the facts and expressing his readiness to repay the amount borrowed along with interest. No such thing was done by the appellant. It is very peculiar that the appellant, even after the receipt of notice calling upon the appellant to execute the sale deed after receiving the balance sale consideration, did not issue any reply and on the other hand, rushed to the court with a caveat petition to prevent any interim order being obtained. The said conduct coupled with the absence of reliable evidence will show that the said theory of executing the suit sale agreement as security for repayment of loan is bound to be rejected. 13. Nothing has been convassed by the learned counsel for the appellant regarding the compliance with the requirements of Section 16(c) of the Specific Relief Act. However, a meek attempt was made to show that the period of 2 years stipulated as the time for payment of balance sale consideration and completion of the sale transaction when 5/6th of the sale consideration quoted in the agreement for sale was paid on the date of agreement, was unreasonably long and the same would either show that the agreement would not be intended to be acted upon or would negative the readiness and willingness on the part of the respondent herein. There is no substance in the above said contention raised on behalf of the appellant. There is no substance in the above said contention raised on behalf of the appellant. Both the Courts below applied the correct principles of law regarding burden of proof, appreciated /re-appreciated the evidence in proper perspective and came to a conclusion that the suit sale agreement was not one intended to be a security for repayment of loan and that the respondent had complied with the requirements of Section 16(c) of the Specific Relief Act. The Courts below have also correctly held that the discretion to grant the relief of specific performance should be exercised in favour of the respondent herein/plaintiff. None of the findings rendered by the Courts below can be termed either defective or infirm, much less perverse. Not even a question of law is shown to have been decided wrongly. Hence, this Court comes to the conclusion that the appellant is not able to show that any substantial question of law is involved in the second appeal. There is no merit in the second appeal and the second appeal deserves dismissal at the threshold. Accordingly, the second appeal is dismissed. No costs. Consequently, the connected miscellaneous petition is closed.