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2014 DIGILAW 859 (MAD)

K. C. Bhaskar v. R. Siva

2014-04-07

R.KARUPPIAH

body2014
Judgment : 1. The appellant, who is the defendant in the suit filed this Second Appeal against the Judgment and decree dated 09.12.2003 made in A.S.No.75 of 2003 on the file of Principal District Court, Vellore confirming the judgment and decree dated 27.06.2003 made in O.S.No.1 of 1996 on the file of Subordinate Court, Ranipet, Vellore District. 2. For the sake of convenience, the defendant in the original suit referred as appellant and the plaintiff in the original suit referred as respondent hereafter. 3. The respondent/plaintiff filed a suit for specific performance of contract dated 16.12.1992. Briefly the case of the respondent is that the appellant is absolute owner of the suit property. On 16.12.1992, the appellant agreed to sell the suit property to the respondent for a total sale consideration of Rs.79,729/-and after receipt of entire sale consideration, executed an agreement of sale in favour of the respondent. Both sides agreed that time is not essence of contract. The respondent has demanding the appellant to execute the sale deed from 1st week of January 1993, but the appellant evaded to execute the sale deed. Therefore, the respondent issued a legal notice on 09.08.1995 and the appellant received the same but the appellant has not discharged his contractual applications. Hence, filed the suit for specific performance to execute the sale deed in favour of the respondent in respect of the suit property as per agreement of sale dated 16.12.1992. 4. The appellant/defendant has filed written statement, in which, he has admitted that he is absolute owner of the suit property and also admitted that the appellant had affixed his signature in the above said Ex.A1 agreement of sale. But, the appellant denied the receipt of sale consideration of Rs.79,729/-from the respondent as stated in agreement of sale. Further, the case of the appellant is that he had borrowed a meagre amount at one point of time, but, the respondent had multiplied into principal amount of Rs.20,000/- with interest at 24% totalling Rs.24500/-on 15.03.1987. The appellant owns the suit property and also other vacant sites and he had a mind to sell the above said sites to third parties and then repaid the above said amount of Rs.24500/-to the respondent. The appellant owns the suit property and also other vacant sites and he had a mind to sell the above said sites to third parties and then repaid the above said amount of Rs.24500/-to the respondent. Only on the assurance of the respondent that the agreement of sale was executed only intended to sell the suit property to third parties and not to the respondent and obtained the signatures by the respondent by coercion, undue influence and fraud, since the appellant is related to the respondent. Further, the respondent never demanded the appellant to execute the sale deed and the respondent was never ready and willing to complete the transaction. On believing the words of the respondent that the legal notice was issued only to threat to repay the loan and hence, the appellant did not sent any reply. Further, the respondent cheated the appellant by fraud and the suit is barred by limitation. Therefore, the respondent is not entitled to any relief and prayed for dismissal of the above said suit. 5. From the above said pleadings, the trial court framed five issues. On the side of the respondent, the respondent himself deposed as PW1 and marked three documents as Exs.A1 to A3. On the side of the appellant, two witnesses were examined as DW1 and DW2 but not marked any documents. The trial court has discussed about the oral and documentary evidence on either side and finally decreed the suit as prayed for in the plaint. 6. Aggrieved over the above decree and judgment of the trial court, the appellant/defendant preferred the first appeal in A.S.No.75 of 2003. During the pendency of the first appeal, the appellant/defendant filed an application in I.A.No.153 of 2003 to receive additional documents (i.e.,) approved plan as well as approval order passed by Arakkonam Panchayat Union permitted to layout plots so as to prove that the suit property is not only owned by the appellant and also by another owner namely Chowdry. The first appellate court has discussed about the oral and documentary evidence adduced on both sides including interlocutory application and finally confirmed the decree and judgment passed by the first appellate court and dismissed the first appeal and also the petition to receive additional documents (i.e.,) I.A.No.153/2003 filed by the appellant. 7. The first appellate court has discussed about the oral and documentary evidence adduced on both sides including interlocutory application and finally confirmed the decree and judgment passed by the first appellate court and dismissed the first appeal and also the petition to receive additional documents (i.e.,) I.A.No.153/2003 filed by the appellant. 7. Aggrieved over the concurrent findings of both the courts below, the appellant who is defendant in the suit filed this second appeal. 8. The Second Appeal is admitted on the following substantial questions of law:- "1. Whether the courts below have properly considered recital, Ex.A1, Viz., that Rs.79,729/- has been paid fully and in spite of that the respondents agreed to take the sale deed at any time as the appellant desires, when such recitals exposing the doubts as contended by the appellant ? 2. Whether the Courts below have properly considered the facts and circumstances under which the appellant has signed Ex.A1 with no intention of executing the same ? 3. Whether the order of the Courts below in dismissing the application for reception of additional documents before the lower court under Order 41, Rule 27(1) (b) is sustainable in law as per the decision reported in 1994 4 SCC 659 , the ratio of which fully applies with the facts of the case ? 4. Whether the respondent/plaintiff is always ready and willing to perform her part of contract as per Ex.A1 agreement ? 9. Heard the learned counsels appearing for the appellant and the respondent. Perused the materials available on record. 10. The learned counsel appearing for the appellant submitted that both the courts below have failed to consider the elaborate reasons stated by the appellant under which circumstances, the appellant signature was obtained by the respondent. Further, the above said signature was obtained by coercion, undue influence and fraud by the appellant in Ex.A1 alleged agreement of sale on assurance of the respondent that the above said Ex.A1 agreement of sale is only to sell the suit property to the third parties and on the above said assurance, the appellant had signed the document, without looking into the contents of the document. But, both the courts below have wrongly held that the appellant has not proved and therefore, the findings of both the courts below are perverse finding. But, both the courts below have wrongly held that the appellant has not proved and therefore, the findings of both the courts below are perverse finding. Further, the learned counsel appearing for the appellant would submit that the first appellate court has failed to consider the fact that the appellant is not the exclusive owner of the suit property and the suit property also owned by one Chowdri, so as to prove the above said contention, the appellant filed an application in I.A.No.153/2003 before the first appellate court to receive additional documents under Order 41 Rule 27 CPC, but, the first appellate court wrongly dismissed the above said application and it is illegal. The learned counsel further submitted that the suit is filed for specific performance under Ex.A1 agreement of sale, but, the suit is barred by limitation. Therefore, both the courts below have failed to consider properly about all the above said contentions raised by the appellant and hence, the respondent is not entitled to the specific performance as per Ex.A1 agreement of sale. 11. Per contra, the learned counsel appearing for the respondent submitted that the appellant has clearly admitted that he had affixed his signature in Ex.A1, agreement of sale but, the contention of the appellant is that the above said document was executed only with intention to sell the suit property to third parties and on the assurance, the respondent obtained signature from the appellant and the respondent affixed his signature without looking into the contents of the document and also contended that the said document was obtained by the respondent by coercion, undue influence and fraud. In the above said circumstances, the onus is on the appellant to prove the above said contentions, but in the instant case, the appellant has miserably failed to prove the above said contention by adducing reliable oral and documentary evidence. The learned counsel further submitted that the respondent has proved by reliable oral and documentary evidence that Ex.A1 agreement of sale is genuine document and it was executed by the appellant with an intention to sell the suit property. Further, the respondent has proved that the entire sale consideration was paid on the date of agreement itself and only due to the relationship between parties, the respondent has not taken immediate steps to obtain the sale deed. Further, the respondent has proved that the entire sale consideration was paid on the date of agreement itself and only due to the relationship between parties, the respondent has not taken immediate steps to obtain the sale deed. Further, the suit notice issued and then filed the suit within the period of limitation and both the courts below have correctly discussed in detail about the oral and documentary evidence adduced on either side properly and given correct findings and therefore, the above said findings are not perverse finding as contended by the learned counsel for the appellant and there is no need to interfere in the above said concurrent findings of both the courts below by applying Section 100 CPC. 12. Admittedly, the respondent has filed the suit for specific performance of contract under Ex.A1 agreement of sale dated 16.12.1992 but, the appellant has clearly admitted in the written statement that he had affixed his signature in the above said document. But, the contention of the appellant is that the above said document Ex.A1 is executed only with an intention to sell the suit property to third parties and not to the respondent and only on the assurance given by the respondent, he had signed in the above said Ex.A1 agreement of sale. In the above said circumstances, as rightly pointed out by the learned counsel for the respondent, the onus is on the appellant to prove the above said contention. 13. As discussed by both the courts below, in the written statement the appellant has stated as he affixed his signature without knowing the contention of Ex.A1 agreement of sale. But, at the time of evidence, DW1 has clearly deposed as on the date of agreement of sale itself, he is ready to execute the sale deed in favour of the respondent and also admitted that the signature found in Ex.A1 as his signature. Further, he deposed that while he was affixed the signature, the witnesses were also present and he has no intention to cheat the respondent. DW2 examined by the appellant also admitted that after execution of agreement of sale, he affixed his signature as witness and after reading all the contention of the agreement and the appellant had admitted all the terms and conditions of the agreement and then only affixed his signature. Further, he deposed as one Mr.Dasaradan also affixed his signature as witness. DW2 examined by the appellant also admitted that after execution of agreement of sale, he affixed his signature as witness and after reading all the contention of the agreement and the appellant had admitted all the terms and conditions of the agreement and then only affixed his signature. Further, he deposed as one Mr.Dasaradan also affixed his signature as witness. Both the courts below have considered the above said documents, Exs.A1 to A3, oral evidence or DW1, DW2 and also the evidence of PW1 and correctly held that Ex.A1 agreement of sale is true and genuine document and not executed by coercion, undue influence or fraud. Therefore, above said findings of the first appellate court is not perverse finding as contended by the learned counsel for the appellant. 14. The learned counsel appearing for the appellant would further submit that the appellant alone is not absolute owner of the property, but one Chowdri also one of the owner of the suit property and to prove the same, the appellant filed an application in I.A.No.153/2003 under Order 41 Rule 27 CPC before first appellate court to receive additional evidence but, the first appellate court wrongly dismissed the above said application. Therefore, the order passed in the above said I.A.No.153/2003 is illegal and perverse. As rightly pointed out by the learned counsel for the respondent, the appellant has clearly admitted in the written statement as "It is true that the defendant is absolute owner of the schedule mentioned property". At the time of evidence also, he has not adduced any reliable oral and documentary evidence before the trial court that the suit property also belongs to one Chowdri along with the appellant. Only during the pendency of the first appeal, the appellant tried to produce some documents without any pleadings as if the above said Chowdri also one of the co-owner of the suit property. As rightly held by the first appellate court, the appellant has pleaded a new plea before the first appellate court against the pleadings in the written statement and also the evidence adduced before the trial court. Further, the above said alleged co-owner namely Chowdri has not filed any application to implead as defendant in the suit or at the time of first appeal. Further, the above said alleged co-owner namely Chowdri has not filed any application to implead as defendant in the suit or at the time of first appeal. Therefore, the first appellate court has correctly discussed and dismissed the above said I.A.No.153 of 2003 and it is not illegal finding as contended by the appellant. 15. The next contention of the learned counsel appearing for the appellant is that the suit is barred by limitation and the respondent has not ready and willing to perform his part of the contract from the date of agreement of sale itself and therefore, the respondent is not entitled to the relief of specific performance. On the side of the respondent, it is clearly proved that Ex.A1 agreement of sale is genuine document and also proved that the entire sale consideration was paid on the date of agreement of sale itself. It is also not in dispute that both the appellant and the respondent are close relatives. The appellant himself stated in the written statement as the respondent is his close relative. In the above said circumstances, the appellant had executed an agreement of sale in respect of suit property to the respondent. Both the courts below have clearly discussed about the readiness and willingness and also the question of limitation and finally held that the respondent is always ready and willing to perform his part of the contract, only the appellant has not executed the sale deed and the suit is filed within the time. Admittedly, no period is fixed for execution of the sale in the above said Ex.A1 agreement of sale. Therefore, the respondent is entitled to file a suit within the period of three years from the date of denial of execution of sale deed under Article 54 of the Limitation Act. In the instant case, as rightly discussed by both the courts below, the date of Ex.A1 agreement of sale is 16.12.1992 and the respondent has issued legal notice under Ex.A2 dated 09.08.1995 and the appellant has not sent any reply and therefore, the present suit has been filed within three years from the date of denial of executing the sale deed. 16. 16. In the above said circumstances, the learned counsel appearing for the appellant relied on a decision of the Hon'ble Supreme Court reported in 2011 (4) CTC 640 (Saradamani Kandappan v. S.Rajalakshmi & Others) and contended that the merely because the limitation Act prescribes larger period of limitation, the respondent cannot post the suit last day and therefore, the respondent is not entitled to the relief of specific performance. As already discussed, both the appellant and the respondent are close relatives and the entire sale consideration was paid on the date of Ex.A1 agreement of sale itself and the respondent alone sent legal notice to execute the sale deed several months prior to filing the suit but, the appellant has not sent any reply in spite of receiving the above said notice. Considering all the above said facts revealed that the facts of decision relied on by the appellant are not applicable to the facts of the present case. As rightly discussed and held by both the courts below, the suit is not barred by limitation and the respondent was always ready and willing to perform his part of contract as contended by the learned counsel appearing for the respondent. 17. From the above said discussion, it is clear that Ex.A1 agreement of sale has been executed with intention to sell the suit property and the entire sale consideration of Rs.79,729/- has been paid and answered the 1st substantial question of law accordingly. The appellant has miserably failed to prove the contention that the appellant has signed Ex.A1 agreement of sale with no intention to execute the sale deed is not proved and answered the 2nd substantial question of law accordingly. The first appellate court has correctly discussed in the application in I.A.No.153 of 2003, filed under Order 41 Rule 27 CPC and dismissed the above said I.A., and no illegality in the above said order and answered the 3rd substantial question of law accordingly. As already discussed, the respondent was always ready and willing to perform his part of contract and answered the 4th substantial question of law accordingly. In view of the above said findings, all the four substantial questions of law answered against the appellant and the second appeal is liable to be dismissed. 18. In the result, the second appeal is dismissed and confirmed the decree and judgments passed by both the courts below. In view of the above said findings, all the four substantial questions of law answered against the appellant and the second appeal is liable to be dismissed. 18. In the result, the second appeal is dismissed and confirmed the decree and judgments passed by both the courts below. No order as to costs. Consequently, connected miscellaneous petition is closed.