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2014 DIGILAW 68 (MAD)

P. Meenakshisundaram v. P. Vijayakumar

2014-01-07

A.SELVAM, G.CHOCKALINGAM

body2014
JUDGMENT : A. Selvam, J. These Appeal Suits have been directed against the common Judgment and decree dated 1st day of October 2010 passed in Original Suit No.332 of 2004 by the Additional District Court/Fast Track Court, No. II, Madurai. 2. The first respondent herein as plaintiff has instituted Original Suit No.332 of 2004 on the file of the trial Court for the reliefs of specific performance and also for perpetual injunction, wherein the present appellant has been shown as first defendant. 3. The contraction of the plaint can be stated like thus: The suit property is the absolute property of the first defendant and he has agreed to sell the same for a sum of Rs.37,50,000/- in favour of the plaintiff and to that extent a sale agreement has come into existence betwixt them. On the date of execution of sale agreement, Rs.6,00,000/- has been given as an advance. In the sale agreement it has been vividly stated to the effect that there is no encumbrance in the suit property. If any encumbrance emerges, the same should be discharged by the first defendant. On 21.01.2001 the first defendant has received a sum of Rs.2,00,000/- from the plaintiff as part payment and in aggregation, the first defendant has received a sum of Rs.8,00,000/-. The first defendant has given a legal notice to the plaintiff, wherein it is stated that prior to 30.09.2001 he has to discharge bank loan in respect of a Suit pending before Debt Recovery Tribunal. Under the said circumstances, the plaintiff has given Rs.10,00,000/- on 22.09.2001. The first defendant has given assurance that prior to 31.01.2002 he would discharge the entire loan amount relating to suit property and execute a sale deed in favour of the plaintiff. The plaintiff has paid Rs.18,00,000/- to the defendant out of Rs.37,50,000/-. On 29.07.2002 the plaintiff, first defendant and their counsel have joint together and settled that the first defendant has to execute a sale deed on 18th day of month of Aadi. The plaintiff has agreed to pay the balance of sale consideration. Further it has been agreed that on 03.08.2002, the first defendant should hand over possession of the suit property. The plaintiff has always shown his readiness and willingness to perform his part of the contract. But the first defendant has not come forward to execute a sale deed in the month of Aadi due to astrological reasons. Further it has been agreed that on 03.08.2002, the first defendant should hand over possession of the suit property. The plaintiff has always shown his readiness and willingness to perform his part of the contract. But the first defendant has not come forward to execute a sale deed in the month of Aadi due to astrological reasons. Under the said circumstances, the present Suit has been instituted for the reliefs sought for in the plaint. 4. In the written statement filed on the side of the first defendant it is averred that on 20.09.2000 the first defendant has executed a sale agreement in favour of the plaintiff. But it is false to say that in the sale agreement no mention has been made with regard to encumbrance existed in respect of the suit property. It is false to aver that on 21.01.2001 the first defendant has received a sum of Rs.2,00,000/- through cheque. The first defendant has mortgaged the suit property with Federal Bank, Madurai Branch and in respect of loan amount, Original Suit No.40 of 1996 has been instituted by the said bank and subsequently Original Suit No.40 of 1996 has been transferred to Debt Recovery Tribunal, Chennai. It is absolutely false to aver that the first defendant has suppressed the material facts and thereby cheated the plaintiff. It is false to aver that on 03.08.2002 the plaintiff has shown his readiness and willingness to perform his part of the contract as per arrangement dated 29.07.2002. It is also equally false to aver that the first defendant has not evinced any interest to discharge bank loan. The first defendant has not given possession of the suit property at any point of time. The plaintiff has failed to advance money for discharging bank debt. The plaintiff has illegally trespassed into the suit property and due to that the first defendant has sent various complaints to concerned authorities. The first defendant has given original title deed along with encumbrance certificate to the plaintiff before execution of the earlier sale agreement dated 30.06.2000. Since the plaintiff has not shown his readiness and willingness to get a sale deed from the first defendant after paying the remaining sale consideration, he is not entitled to get the reliefs sought for in the plaint. Therefore, the present Suit deserves to be dismissed. 5. Since the plaintiff has not shown his readiness and willingness to get a sale deed from the first defendant after paying the remaining sale consideration, he is not entitled to get the reliefs sought for in the plaint. Therefore, the present Suit deserves to be dismissed. 5. In the additional written statement /counter claim filed on the side of the first defendant, it is averred that the plaintiff has instituted the present Suit purely on false and frivolous grounds and since the plaintiff has illegally trespassed into the suit property, relief of mandatory injunction has been sought for so as to direct the plaintiff to hand over vacant possession of the suit property and also for directing the plaintiff to pay past mesne profits to the tune of Rs.5,40,000/-. 6. In the written statement filed on the side of the second defendant it is averred that the first defendant has incurred a debt so as to construct a marriage hall and since the first defendant has failed to discharge his liability, Original Suit No.40 of 1996 has been filed on the file of the Third Additional Sub Court, Madurai and subsequently transferred to Debt Recovery Tribunal, Chennai. The second defendant is not a necessary party to the present Suit and therefore, the same deserves to be dismissed. 7. In the reply statement filed on the side of the plaintiff, the averments made in the written statement as well as in the additional written statement are denied as false 8. On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has decreed the Suit as prayed for and dismissed counter claim. Against the reliefs of specific performance and perpetual injunction granted by the trial Court, Appeal Suit No.218 of 2010 and against the dismissal of counter claim by the trial Court, Appeal Suit No.219 of 2010 have been preferred on the file of this Court. 9. Against the reliefs of specific performance and perpetual injunction granted by the trial Court, Appeal Suit No.218 of 2010 and against the dismissal of counter claim by the trial Court, Appeal Suit No.219 of 2010 have been preferred on the file of this Court. 9. The sum and substance of the case of the plaintiff is that the suit property is the absolute property of the first defendant and he has agreed to sell the same for a sum of Rs.37,50,000/- in favour of the plaintiff and to that extent, the suit sale agreement dated 20.09.2000 has come into existence, wherein it has been explicitly stated to the effect that there is no encumbrance over the suit property. On various occasions, in aggregation the plaintiff has paid Rs.18,00,000/- and subsequently he came to know that the first defendant has obtained loan by way of creating a mortgage in respect of the suit property and due to that Original Suit No.40 of 1996 has been instituted on the file of the Third Additional Sub Court, Madurai and subsequently transferred to Debt Recovery Tribunal, Chennai and due to that some arrangements have been made and despite of best efforts taken by the plaintiff, the first defendant has not discharged bank loan nor he has come forward to execute a sale deed in favour of the plaintiff. Under the said circumstances, the present Suit has been instituted for the reliefs sought for in the plaint. 10. Under the said circumstances, the present Suit has been instituted for the reliefs sought for in the plaint. 10. The defence put forth on the side of the first defendant is that even at the time of execution of sale agreement dated 20.09.2000 the first defendant has revealed existence of encumbrance over the suit property and the plaintiff has agreed to give money so as to discharge bank debt and subsequently so many legal notices have given and since the plaintiff has not shown his readiness and willingness from inception of the suit sale agreement dated 20.09.2000, he is not entitled to get discretionary relief of specific performance and the plaintiff has falsely introduced an arrangement alleged to have been taken place on 29.07.2002 and also falsely created notice dated 29.07.2002 as if the same has been given by the counsel of the first defendant and in fact the first defendant has not given any instruction to his counsel so as to give the same and since the counsel of the first defendant has played fraud upon the first defendant, proper action has been taken against him and further the plaintiff has illegally trespassed into the suit property. Under the said circumstances, the plaintiff is not entitled to get the reliefs sought for in the plaint. 11. The trial Court after analysing the available evidence on record has decreed the Suit as prayed for and dismissed counter claim. 12. Before pondering the rival submissions made on either side, the Court has to narrate the following documents. The suit sale agreement dated 20.09.2000 has been marked as Ex.A3 and the endorsement made on it has been marked as Ex.A4. The legal notice sent by the first defendant to the plaintiff and copy of reply notice given by the plaintiff to the first defendant have been marked as Exs.A5 and A6. A copy of legal notice sent by the plaintiff to the first defendant and a copy of reply notice sent by the first defendant to the plaintiff have been marked as Exs.A7 and A8. A copy of legal notice sent by the plaintiff to the first defendant on 22.09.2001 along with cheque for a sum of Rs.10,00,000/- has been marked as Ex.A9. A copy of legal notice dated 31.10.2001 and a copy of legal notice dated 15.11.2001 have been marked as Exs.A10 and A11. A copy of legal notice sent by the plaintiff to the first defendant on 22.09.2001 along with cheque for a sum of Rs.10,00,000/- has been marked as Ex.A9. A copy of legal notice dated 31.10.2001 and a copy of legal notice dated 15.11.2001 have been marked as Exs.A10 and A11. A photo copy of legal notice sent by the plaintiff to the first defendant on 19.06.2002 has been marked as Ex.A14 and a legal notice sent by the first defendant to the plaintiff has been marked as Ex.A15. 13. From cumulative reading of the Exhibits referred to supra, the Court can easily discern the following admitted facts. 14. It is an admitted fact that under Ex.A3, the first defendant has agreed to sell the suit property in favour of the plaintiff for a sum of Rs.37,50,000/-. On the date of execution of sale agreement, he has received Rs.6,00,000/- and subsequently as per Ex.A4, he received Rs.2,00,000/- and thereafter first legal notice has become emanated from the first defendant and subsequently the plaintiff has given a legal notice dated 01.09.2001 (Ex.A7) and thereby directed the first defendant to settle bank accounts. The first defendant has given Ex.A8, reply notice wherein he stated to the effect that negotiation with the bank is going on and on 22.09.2001 the plaintiff has given Ex.A9 along with Rs.10,00,000/- and thereafter the plaintiff has given legal notices viz., Exs.A10 and A11, wherein also directed the first defendant to settle bank loans. The plaintiff has given a legal notice (Ex.A14), for which, the first defendant has given a reply notice dated 29.07.2002 (Ex.A15), wherein it has been clearly stated about the subsequent arrangement entered into between the plaintiff and first defendant and also handing over possession of the suit property to the plaintiff. 15. The present Suit has been instituted for the relief of specific performance on the strength of the sale agreement dated 20.09.2000 (Ex.A3). Since the present Suit has been filed for the relief of specific performance, a primordial duty is cast upon the plaintiff to aver and prove his readiness and willingness to perform his part of the contract from inception of Ex.A3. Since the present Suit has been filed for the relief of specific performance, a primordial duty is cast upon the plaintiff to aver and prove his readiness and willingness to perform his part of the contract from inception of Ex.A3. At this juncture, it would be condign to rely upon the relevant provision of Section 16(c) of the Specific Relief Act, 1963, wherein it is stated like thus: "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 terms the performance of which has been prevented or waived by the defendant." 16. It is an axiomatic principle of law that Section 16 of the Specific Relief Act, 1963 deals with 'Personal bars to relief'. A mere reading of sub section (c) would clearly go to show that if plaintiff fails to aver and prove that he has performed or has always been ready and willing to perform his part of the contract, he is not entitled to get discretionary relief of specific performance. 17. It is an admitted fact that the entire case of the plaintiff proceeds on the basis of Ex.A3. Even in the written statement filed by the first defendant it has been clearly admitted to the effect that Ex.A3 has come into existence in between him and plaintiff. Therefore, it goes without saying that the first defendant as per Ex.A3 has become a seller, whereas the plaintiff has become a buyer. 18. Section 55 of the Transfer of Property Act, 1882 deals with Rights and Liabilities of buyer and Seller, wherein in sub section 1(a), it is mentioned as follows: "the seller is bound to disclose to the buyer any material defect in the property......" 19. Since under Ex.A3 the first defendant is a seller of the suit property, as per Section 55 (1)(a) of the Transfer of Property Act, 1882, the first defendant is bound to disclose all material defect in the suit property including encumbrance. 20. The specific averments made in the plaint are that before execution of Ex.A3, the first defendant has stated to the effect that there is no encumbrance over the suit property and even in Ex.A3 it has been clearly mentioned to that effect. 20. The specific averments made in the plaint are that before execution of Ex.A3, the first defendant has stated to the effect that there is no encumbrance over the suit property and even in Ex.A3 it has been clearly mentioned to that effect. But subsequently the plaintiff has come to know the fact that the first defendant has mortgaged the suit property in a bank and thereby obtained loan and since he failed to discharge his liability, the concerned bank has instituted Original Suit No.40 of 1996 so as to recover the amount due from him. But in the written statement, in various places, it has been stated that even at the time of execution of Ex.A3, the first defendant has stated about the encumbrance created over the suit property. If really such divulsion has taken place as averred in the written statement at the time of execution of Ex.A3, the same would have found place in Ex.A3. But in Ex.A3 in many places it has been vividly stated to the effect that there is no encumbrance over the suit property. 21. On the side of the plaintiff, enormous documents have been filed for the purpose of proving existence of bank loan over the suit property and also institution of Original Suit No.40 of 1996. In fact as stated earlier, the plaintiff has given various legal notices and thereby directed the first defendant to discharge the bank loan. From the documents filed on the side of the plaintiff, as stated earlier, even prior to execution of Ex.A3, Original Suit No.40 of 1996 has been instituted so as to recover the amount mentioned therein and the first defendant has suppressed pendency of Original Suit No.40 of 1996 at the time of execution of Ex.A3. Since the first defendant has suppressed the fact that he obtained loan by way of encumbering the suit property and also pendency of Original Suit No.40 of 1996 at the time of execution of Ex.A3, it is pellucid that the entire defence put forth on the side of the first defendant is based upon falsehood. 22. In 1994 (2) Civil Court Cases 131 (S.C.) : 1994 AIR SCW 243 (S.P.Chengalverayan (died) by LRs. 22. In 1994 (2) Civil Court Cases 131 (S.C.) : 1994 AIR SCW 243 (S.P.Chengalverayan (died) by LRs. v. Jaganathan (died) by LRs., the Hon'ble Apex Court has observed as follows: "Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court. He should be summarily thrown out at any stage of litigation. 23. In the instant case, it has already been pointed out that even prior to execution of Ex.A3, a suit has been instituted in Original Suit No.40 of 1996 on the basis of mortgage created by the first defendant in respect of the suit property. But for the reasons best known to him, schemingly, deliberately suppressed the existence of mortgage over the suit property and further stated in Ex.A3 to the effect that there is no encumbrance over the same. Therefore, the entire defence put forth on the side of the first defendant is purely based upon falsehood and as per the dictum given by the Hon'ble Apex Court the defence put forth by the first defendant in the present case can summarily be thrown out. 24. On the basis of the factual as well as legal aspects narrated supra, the Court has to analyse the rival submissions made on either side. 25. 24. On the basis of the factual as well as legal aspects narrated supra, the Court has to analyse the rival submissions made on either side. 25. The learned counsel appearing for the appellant/first defendant has strenuously contended that even at the time of execution of Ex.A3, the plaintiff has come to know the existence of encumbrance over the suit property and also pendency of Original Suit No.40 of 1996 and he agreed to give money so as to settle bank loan and since he has not settled the same, the first defendant has not been able to discharge his liability and for the first time a legal notice has become emanated from the first defendant (Ex.A5) and further, the first defendant has not given any instruction to his counsel to issue notice dated 29.07.2002 (Ex.A15) and since the counsel of the first defendant has given erroneous reply notice without the knowledge of the first defendant, proper action has been taken against him and no subsequent arrangement has taken place as averred in Ex.A15 and further, the plaintiff has not always been ready and willing to perform his part of the contract and since the present Suit has been instituted for getting a discretionary relief and since the plaintiff has not shown his readiness and willingness from inception of Ex.A3, the reliefs sought for in the plaint cannot be granted and the trial Court without considering the attitude, conduct of the plaintiff has erroneously decreed the Suit and further the plaintiff has illegally trespassed into the suit property and in order to recover possession of the same, counter claim has been sought for and the trial Court has wrongly rejected the same and altogether the Judgment and decree passed by the trial Court are liable to be interfered with. 26. 26. As a repartee to the contentions raised on the side of the appellant/first defendant, the learned counsel appearing for the first respondent/plaintiff has befittingly contended that the present Suit has been instituted on the basis of Ex.A3, wherein no mention has been made with regard to existence of encumbrance and also pendency of Original Suit No.40 of 1996 and after some time, the plaintiff has come to know the existence of encumbrance and subsequently directed the first defendant to discharge the same and inspite of the best efforts taken by the plaintiff, the first defendant has not discharged the same and ultimately an arrangement has been made between the parties in the presence of their Advocates and the same has been encrusted in Ex.A15 and the trial Court after considering the over all efforts taken by the plaintiff and also material suppression of facts on the part of the first defendant, has rightly decreed the Suit as prayed for and also rightly rejected counter claim and therefore, the Judgment and decree passed by the trial court are not liable to be interfered with. 27. It has already been pointed out that for the first time a legal notice has become emanated from the first defendant (Ex.A5) on 12.05.2001 and the plaintiff has given befitting reply notice viz., Ex.A6 and subsequently various notices have been given to the first defendant and thereby directed him to discharge bank loan. On 22.09.2001 along with Ex.A9, the plaintiff has sent a cheque for a sum of Rs.10,00,000/- to the first defendant. 28. It is an admitted fact in Ex.A3 period of execution of sale deed has been fixed as six months. Even though in Ex.A3, period of execution of sale deed has been fixed as six months, due to encumbrance created over the suit property, various legal notices have been exchanged between the parties. 29. 28. It is an admitted fact in Ex.A3 period of execution of sale deed has been fixed as six months. Even though in Ex.A3, period of execution of sale deed has been fixed as six months, due to encumbrance created over the suit property, various legal notices have been exchanged between the parties. 29. The main argument put forth on the side of the appellant/first defendant is that Ex.A3 has come into existence on 20.09.2000, wherein period of execution of sale deed has been mentioned as six months and therefore, the plaintiff ought to have obtained a sale deed on or before 20.03.2001 and since the plaintiff has failed to obtain a sale deed from the first defendant on or before 20.03.2001 by way of paying remaining sale consideration, the Court can easily come to a conclusion that the plaintiff has not shown his readiness and willingness from inception of Ex.A3 so as to perform his part of the contract. 30. As stated earlier, the period of execution of sale deed has been mentioned as six months in Ex.A3, that is, on or before 20.03.2001, the plaintiff has to pay balance of sale consideration and obtain a sale deed from the first defendant. But for the first time, Ex.A5 has been given by the first defendant on 12.05.2001, wherein also no mention has been made about the existence of encumbrance over the suit property and also pendency of Original Suit No.40 of 1996. After receipt of Ex.A5, Ex.A6, reply notice has been given to the first defendant and subsequently on 01.09.2001 the plaintiff has given a legal notice to the effect that the first defendant has created encumbrance over the suit property and thereby directed him to settle the same. The first defendant has given Ex.A8, wherein he has stated to the effect that negotiation is going on with bank for the purpose of discharging loan and thereafter on 22.09.2001 the plaintiff has sent a legal notice along with a cheque for a sum of Rs.10,00,000/- and the same has been accepted by the first defendant. 31. The first defendant has given Ex.A8, wherein he has stated to the effect that negotiation is going on with bank for the purpose of discharging loan and thereafter on 22.09.2001 the plaintiff has sent a legal notice along with a cheque for a sum of Rs.10,00,000/- and the same has been accepted by the first defendant. 31. From the exhibits referred to supra, the Court can easily come to a conclusion that the plaintiff has always shown his readiness and willingness to perform his part of the contract and if really the plaintiff is not willing to perform his part of the contract, definitely he would not have parted with a huge sum of Rs.10,00,000/- on 22.09.2001. 32. In 212 (2) Apex Court Judgments 515 (S.C.) : 2012 (3) Civil Court Cases 091 (S.C.) 2012 (5) SCC 712 : AIR 2012 SC 2035 , Narinderjit Singh v. North Star Estate Promoters Limited, the Hon'ble Apex Court has observed that "readiness and willingness of plaintiff to perform his part of agreement, must be decided with reference to conduct of parties, attendant circumstances and evidence on record." 33. In the instant case, as pointed out earlier, the plaintiff has shown his readiness and willingness to perform his part of the contract even after issuance of notices marked as Exs.A5 to A8 and on 22.09.2001 he sent a cheque for a sum of Rs.10,00,000/- to the first defendant. Therefore, on the basis of the dictum given by the Hon'ble Apex Court, the alleged readiness and willingness of the plaintiff in a suit for specific performance has to be analysed on the basis of conduct of parties, attendant circumstances and also evidence on record. Under the said circumstances, the Court cannot come to a conclusion even for a minute that the plaintiff has not shown his readiness and willingness to perform his part of the contract from inception of Ex.A3. 34. It is a well settled and also a static principle of law that in a suit for specific performance of contract, concerned plaintiff must aver and prove his readiness and willingness from inception of sale agreement. In the instant case, as elucidated earlier, the plaintiff has always shown his readiness and willingness to perform his part of the contract. Under the said circumstances, the contention put forth on the side of the appellant/first defendant cannot be accepted. 35. In the instant case, as elucidated earlier, the plaintiff has always shown his readiness and willingness to perform his part of the contract. Under the said circumstances, the contention put forth on the side of the appellant/first defendant cannot be accepted. 35. In the plaint at paragraph-6 it has been specifically averred that on 29.07.2002 both the plaintiff, first defendant and their counsel have met together and finally decided to execute a sale deed on 18th day of Aadi in favour of the plaintiff and the same has been encrusted by way of issuance of legal notice dated 29.07.2002. 36. On the side of the plaintiff, the said legal notice dated 29.07.2002 has been marked as Ex.A15. The learned counsel appearing for the appellant/first defendant has contended that the counsel of the first defendant has colluded with the plaintiff for the reasons known to him and even without necessary instruction from the first defendant, he issued Ex.A15 and necessary action has been taken against him and therefore, no credence could be attached to Ex.A15. 37. Ex.A15 is a notice issued by the counsel of the first defendant, wherein the subsequent arrangement and also settlement have been clearly mentioned. The only defence taken on the side of the first defendant is that Ex.A15 has been given by his counsel even without his consent and due to that necessary action has been taken against him. Since Ex.A15 is a legal notice emanated from the counsel of the first defendant, the Court cannot belittle nor reject the same. Further if at all any action has been taken, it is nothing but a matter between the plaintiff and counsel and on that basis, the Court cannot reject Ex.A15. 38. The learned counsel appearing for the appellant/first defendant has also contended to the effect that the first defendant has not given possession of the suit property in favour of the plaintiff and he has unlawfully trespassed into the suit property and for the purpose of taking necessary action, various complaints have been preferred. Under the said circumstances, counter claim has been sought for and the trial Court without considering the documents filed on the side of the first defendant has erroneously rejected the counter claim. 39. It is seen from the records that various complaints have been given by the first defendant. Under the said circumstances, counter claim has been sought for and the trial Court without considering the documents filed on the side of the first defendant has erroneously rejected the counter claim. 39. It is seen from the records that various complaints have been given by the first defendant. But at the same time, in Ex.A15 it has been clearly mentioned about handing over possession of the suit property to the plaintiff. It has already been pointed out that Ex.A15 cannot be belittled nor rejected on the basis of the defence taken on the side of the first defendant. Since in Ex.A15 itself necessary materials are found place with regard to handing over possession of the suit property to the plaintiff, the contention put forth on the side of the appellant/first defendant is sans merit. 40. The trial Court after perpending the available evidence on record has clearly come to the conclusion to the effect that the plaintiff is entitled to get the reliefs sought for in the plaint. In view of the foregoing enunciation of both the factual and legal premise, this Court has not found any attractive force in the contention put forth on the side of the appellant/first defendant and altogether the present Appeals are liable to be dismissed. 41. In fine, these Civil Appeals deserve dismissal and accordingly are dismissed with costs. The common Judgment and decree passed in Original Suit No.332 of 2004 by the Additional District Court/Fast Track Court, No.II, Madurai are confirmed. Connected Miscellaneous Petitions are also dismissed. Appeal dismissed.