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2015 DIGILAW 1574 (MAD)

D. K. Ganesan v. Arumugham

2015-03-23

P.R.SHIVAKUMAR

body2015
JUDGMENT:- 1. As against the decree dated 30.12.2008, made in O.S.No.187 of 2007 on the file of the Additional District Judge (Fast Track Court I), Coimbatore granting the relief of specific performance, the defendant in the said suit has filed the present appeal. 2. The above said suit was filed by the respondent herein/plaintiff seeking the relief of specific performance based on an agreement for sale dated 18.01.2006 executed by the appellant herein/defendant. The plaint allegations, in brief, are as follows: (i) The appellant herein/defendant, claiming to be the absolute owner of the property described in the plaint schedule as he had got it under a Will of one Arthanari dated 15.11.1985 and also as per the decree passed in O.S.No.1223/1990, agreed to sell the suit property to the respondent /plaintiff for a sum of Rs.10,00,000/- and the respondent/plaintiff agreed to purchase the same for the above said price. Accordingly, both of them entered into a written agreement for sale on 18.01.2006 with specific terms and conditions. A sum of Rs.1,50,000/- was paid as advance by the respondent/plaintiff to the appellant/defendant on the date of agreement for sale. Thereafter, the respondent/plaintiff made additional payments to the tune of Rs.5,00,000/- towards the balance sale consideration, leaving a sum of Rs.3,50,000/- alone as the balance amount due towards the sale price. The details of payments including the advance paid on the date of agreement are as follows: S.No. Date Amount 1 18.01.2006 Rs. 1,50,000.00 2 18.05.2006 Rs.1,70,000.00 3 21.09.2006 Rs. 70,000.00 4 02.11.2006 Rs. 10,000.00 5 27.12.2006 Rs.1,50,000.00 6 31.12.2006 Rs.1,00,000.00 Total Rs.6,50,000.00 (ii) Even though the respondent/plaintiff, on the date of making the last payment, namely 31.12.2006, requested the appellant/defendant to receive the entire balance amount of sale consideration and execute the sale deed, the appellant/defendant promised to execute the sale deed in the first week of January 2007. However, he put the respondent/plaintiff in possession of the suit property and thereafter, the respondent/plaintiff has been in possession and enjoyment of the same. However, he put the respondent/plaintiff in possession of the suit property and thereafter, the respondent/plaintiff has been in possession and enjoyment of the same. Since the time for completion of sale transaction had been fixed as one year, the respondent/plaintiff met the appellant/defendant before 18.01.2007 with the balance sale consideration, but the appellant/defendant sought time till the end of January 2007 on the premise that he had to get the parent document from the Sub-Registrar's office and assured that he would execute the sale deed not later than the first week of February 2007. (iii) Thereafter, when the respondent/plaintiff tried to meet the appellant/defendant at his residence, the latter avoided the meeting. Sensing that the appellant/defendant was avoiding performance of his obligations under the contract for sale, the respondent/plaintiff issued a legal notice dated 14.02.2007 by Registered Post. However in the address on the envelope, the initial was mistakenly noted as 'T' instead of 'D'. Taking advantage of the same, the appellant/defendant tried to avoid the service of the said notice. Hence, another notice dated 26.02.2007 with correct initial of the appellant/defendant was sent and the receipt of the same was acknowledged by him on 13.03.2007. The balance amount of sale consideration, which was in the hands of the respondent/plaintiff, was deposited with the Primary Agricultural Corporative Bank Limited on 22.03.2007 in Fixed Deposit for one year. However, the same was capable of being withdrawn at any time before the date of maturity. The respondent/plaintiff undertook to deposit the balance price in Court if the Court would direct him to do so. The respondent/plaintiff was ever ready and willing to perform his part of the contract. As the appellant/defendant did not properly respond to the call of the respondent/plaintiff to receive the balance amount of consideration and execute the sale deed, the respondent/plaintiff had to approach the trial Court with the prayer for the relief of specific performance. 3. The suit was resisted by the appellant herein/defendant based on his averments found in the written statement filed by him in the trial Court. The contents of the written statement, filed by the appellant herein/defendant, can be summarized as follows: (i) The appellant/defendant never claimed to be the absolute owner of the suit property as per the Will of Arthanari dated 15.11.1985 and also as per the decree and judgment in O.S.No.1223 of 1990. The contents of the written statement, filed by the appellant herein/defendant, can be summarized as follows: (i) The appellant/defendant never claimed to be the absolute owner of the suit property as per the Will of Arthanari dated 15.11.1985 and also as per the decree and judgment in O.S.No.1223 of 1990. He never agreed to sell the suit property to the respondent/plaintiff for a sum of Rs.10,00,000/-. The suit agreement was not intended to be an agreement for sale. A sum of Rs.1,50,000/- was not paid as advance on the date of agreement as contended by the respondent/plaintiff in his plaint. On the other hand, the respondent/plaintiff paid a sum of Rs.1,41,000/- alone on 18.01.2006 to the appellant/defendant as loan, after deducting interest for 3 months on Rs.1,50,000/- at the rate of 24% p.a. The respondent/plaintiff had agreed to lend a sum of Rs.10,00,000/- in the year 2003 itself, in instalments to the appellant/defendant, for his urgent family expenses as against the promise of the appellant/defendant to repay the said loan with interest at the rate of 24% p.a. The amounts referred to in the plaint as the amounts paid towards the advance and part payment of the sale consideration were nothing but the amounts released towards the payment of the agreed sum of Rs.10,00,000/- as loan amount. (ii) The other allegations regarding the readiness and willingness on the part of the respondent/plaintiff to complete the transaction as per the terms and conditions of the suit agreement, regarding the payment made by the respondent/plaintiff, alleged offer to make payment of the balance sale consideration of Rs.3,50,000/- with a demand to execute the sale deed and the alleged evasive methods adopted by the appellant/defendant are false and untenable. The respondent/plaintiff was never put in possession of the suit property and on the other hand, it is in the possession and enjoyment of the appellant/defendant and his two brothers. No partition was effected between the appellant/defendant and his brothers. The respondent/plaintiff, at the first instance, purposely sent the notice to a wrong address mentioning incorrect initial of the appellant/plaintiff and when the subsequent notice dated 26.02.2007 was addressed to him to his proper address, he acknowledged the receipt of the same on 13.03.2007. Even before the receipt of the said notice, the appellant/defendant had settled the loan amount with interest on the basis of compromise talks held on 16.02.2007. Even before the receipt of the said notice, the appellant/defendant had settled the loan amount with interest on the basis of compromise talks held on 16.02.2007. Accordingly on 05.03.2007 itself based on a receipt dated 16.02.2007, 3 sale deeds in favour of the plaintiff and his nominees-Ravichandran and Marudhachalam were executed. The same was the reason why the appellant/defendant did not issue any reply to the said legal notice. The deposit receipt of Primary Agricultural Corporative Bank Limited is a created document and the same, being a self serving document, will not bind the appellant/defendant. (iii) One Palaniammal, D/o.Arthanari @ Chinnaiah filed a suit O.S.No.806 of 1996 on the file of the Principal Sub-Judge, Coimbatore against the appellant herein/defendant and his brothers for the relief of partition. The said Palaniammal claimed 1/3rd share in an extent of 3.15 acres comprised in S.Nos.294/3A and 294/3B. The said suit, due to the amendment of law regarding pecuniary jurisdiction, was transferred to Fast Track Court No.I, Coimbatore and re-numbered as O.S.No.117 of 2001. Fast Track Court No.I, Coimbatore passed a preliminary decree on 19.01.2003 directing division of the property and allotment of 1/2 share in S.F.No.294/3A and 294/3B (suit property) and 1/2 share in respect of the other properties in favour of Palaniammal. As against the preliminary decree, the appellant herein/defendant and one of his brothers preferred an appeal in A.S.No.1005 of 2003 before the High Court. In the said appeal, an interim stay of passing of final decree till the disposal of the appeal has been granted. (iv) Being a money lender, the respondent/plaintiff got an agreement for sale only as security for repayment of the loan with interest. While lending a sum of Rs.1,00,000/- in the month of May 2003, the respondent/plaintiff demanded execution of a sale agreement in respect of 20 cents of land in S.F.No.371/1 and the appellant/defendant executed a sale agreement in respect of 20 cents. On payment of a further sum of Rs.1,50,000/-, as loan in the year 2006, the respondent/plaintiff demanded execution of a sale agreement in respect of S.F.No.294/3A and 294/3B. Subsequently, payment of a further sum of Rs.1,00,000/- in two installments evidenced by the endorsements made on the backside of the above said agreement. The said agreement executed in the year 2003 got lapsed in the year 2005 itself. Subsequently, payment of a further sum of Rs.1,00,000/- in two installments evidenced by the endorsements made on the backside of the above said agreement. The said agreement executed in the year 2003 got lapsed in the year 2005 itself. The appellant/defendant demanded the respondent/plaintiff to make payment of Rs.8,00,000/- as loan in the year 2006. At that point of time, the respondent/plaintiff agreed to pay further sum of Rs.1,50,000/- as another installment on 18.01.2006 and demanded the execution of a document styled as “Agreement for sale” in the presence of a notary. The appellant/defendant, thus borrowed a total sum of Rs.8,50,000/-. He paid interest at the rate of 24% per annum on the said amount when the lands were sold to third parties. On 18.01.2007, the appellant/defendant sought six months time for repayment of the amount borrowed with interest. However, at the instigation of the enemies of the appellant/defendant, the respondent/plaintiff wanted the appellant/defendant to sell the property to him for a meagre price and caused threat to the appellant/defendant to make him execute sale deed in respect of the suit property. v) On 15.02.2007, defendant came to know that the plaintiff had sent a notice through an advocate by name Mr.J.R.Viveka. He sought extension of time for repayment of the loan and accordingly a deed styled “Deed of Time Extension” came to be executed on 16.02.2007. On the same day, a compromise was effected and the plaintiff agreed to receive the total amount of Rs.8,50,000/- together with an interest at the rate of 24% per annum. The plaintiff agreed to purchase 20 cents of land in S.No.371/1 at the rate of Rs.40,000/- per cent which worked out to Rs.8,00,000/- and received a balance amount of Rs.50,000/- in cash. On 05.03.2007, 3 registered sale deeds were executed by the defendant in favour of the plaintiff in the office of the Sub-Registrar, Thondamuthur in favour of the nominees of the plaintiff, namely 1) Ravichandran and 2) Maruthachalam separately. When the appellant /defendant asked for return of the sale agreement, the plaintiff told him that he had kept it at home and he would return it the next day. Thereafter, he evaded by giving one excuse or other. On receipt of notice dated 26.02.2007, the appellant/defendant contacted the respondent/plaintiff and made a protest. Plaintiff promised that he would withdraw the notice and would return the original agreement deed within a short time. Thereafter, he evaded by giving one excuse or other. On receipt of notice dated 26.02.2007, the appellant/defendant contacted the respondent/plaintiff and made a protest. Plaintiff promised that he would withdraw the notice and would return the original agreement deed within a short time. When the appellant/defendant received summons from the Court, he realized that he was cheated and the suit came to be filed by the plaintiff against him. After the filing of the suit the plaintiff illegally tried to take possession of the suit property on 30.03.2007, but the said attempt was thwarted by the appellant/defendant. The suit filed is a vexatious one and hence the defendant is entitled to an order directing the plaintiff to pay compensatory cost. Except the relationship of creditor and borrower, there was no relationship of vendor and purchaser between the plaintiff and the defendant. Hence, the plaintiff shall not be entitled to the relief of specific performance as prayed for in the plaint. 4. Four issues and two additional issues were framed in the trial Court. They are as follows: Issues: 1. Whether the sale agreement dated 18.01.2006 is true, valid in law? 2. Whether the plaintiff has been ready and willing to perform his obligations under the sale agreement? 3. Whether the plaintiff is entitled to a decree directing the defendant to execute the sale deed after receiving the balance sale consideration and a further direction that the court shall execute the sale deed in case of default by the defendant? 4. To what other relief? Additional Issues: 1. Whether the sale agreement dated 18.01.2006 was executed by the defendant as security purpose after availing a loan of Rs.10 lakhs from the plaintiff? 2. Whether the sale advance amount of Rs.6.5 lakhs paid by the plaintiff by way of selling of 20 cents of site land in another land on 05.03.2007 as stated in the written statement and also based on receipt dated 16.02.2007? 6. In the trial, two witnesses were examined as Pws 1 and 2 and 10 documents were marked as Exs.A1 to A10 on the side of the respondent herein/plaintiff, whereas two witnesses were examined as DWs.1 and 2 and 16 documents were marked as Exs.B1 to B16 on the side of the appellant herein/defendant. 7. 6. In the trial, two witnesses were examined as Pws 1 and 2 and 10 documents were marked as Exs.A1 to A10 on the side of the respondent herein/plaintiff, whereas two witnesses were examined as DWs.1 and 2 and 16 documents were marked as Exs.B1 to B16 on the side of the appellant herein/defendant. 7. At the conclusion of trial, the learned trial Judge, heard the arguments, considered the evidence in the light of the points urged by the counsel appearing on both sides in their arguments and upon such consideration and on an appreciation of evidence, found the suit sale agreement to be true and the contention of the defendant that the same was executed as a security for repayment of loan was not substantiated. The learned trial Judge further held that the plaintiff proved his readiness and willingness to perform his part of the obligation under the suit agreement for sale and that he was entitled to the relief of specific performance as prayed for in the plaint. Accordingly, by a judgment and decree dated 30.12.2008, the learned trial Judge granted the relief of specific performance as prayed for directing the appellant/defendant to get the balance sale consideration and execute the sale deed in favour of the respondent/plaintiff within three months. The trial Court also directed the defendant to pay the cost of the respondent/plaintiff. As against the said decree of the trial Court dated 30.12.2008, the defendant in the original suit has filed the present appeal before this Court on various grounds set out in the memorandum of grounds of appeal. 8. The points that arise of consideration in this appeal are: "1. Whether the trial court committed an error in holding that the suit sale agreement was genuine and it was not proved to be one executed as a security for the repayment of loan? 2. Whether the trial court wrongly cast the burden of proving the defence plea of the appellant/defendant that the suit agreement for sale was not intended to be acted upon as an agreement for sale and on the other hand, it was intended to be a security for repayment of loan? 3. 2. Whether the trial court wrongly cast the burden of proving the defence plea of the appellant/defendant that the suit agreement for sale was not intended to be acted upon as an agreement for sale and on the other hand, it was intended to be a security for repayment of loan? 3. Whether the appellant/defendant has proved his contention that the amounts received by him which are evidenced by Exs.A1 to A6 were repaid with interest by adjusting the same towards the sale of 20 cents of land to the respondent/plaintiff and his nominees and by making a cash payment of Rs.50,000/-? 4. Whether the respondent/plaintiff has complied with the conditions provided under Section 16(c) of the Specific Relief Act, 1963 by specifically pleading his readiness and willingness and proving such plea by adducing evidence? 5. Whether the trial court committed any error in granting the relief of specific performance in respect of the suit property? 6. To what reliefs the parties are entitled?" 9. The arguments advanced by Mr.C.Deivasigamani, learned counsel for the appellant and by Mr.P.Saravana Sowmiyan, learned counsel for the respondent were heard. The materials produced in the form of typed-set of papers were perused. Points 1 to 3: 10. The respondent herein/plaintiff filed the suit seeking the relief of specific performance based on the suit agreement for sale dated 18.01.2006 marked as Ex.A1. The appellant herein/defendant did not dispute the execution of Ex.A1-Agreement for sale. On the other hand he contended that the respondent/plaintiff agreed to lend a sum of Rs.10,00,000/- in the year 2003 itself; that on 18.01.2006, even though a sum of Rs.1,50,000/- alone was lent for an interest at the rate of 24% per annum, actually a sum of Rs.1,41,000/- alone was paid by the respondent/plaintiff on that day and the balance amount, namely Rs.9,000/- was deducted towards interest for three months and that at that point of time, as demanded by the respondent/plaintiff, the suit sale agreement dated 18.01.2006 marked as Ex.A1 was executed by the appellant/defendant in favour of the respondent/plaintiff as security for the repayment of the loan amount with interest. 11. 11. Once the execution of the agreement is admitted and it is claimed by the appellant/defendant that the same was not intended to be enforced as an agreement for sale and on the other hand, the same was given only as a security for the repayment of the loan, the respondent/plaintiff, who relies on the agreement for sale need not adduce evidence in proof of the execution of the document, as it stands admitted and admitted facts need not be proved. The burden of proving that the agreement was not intended to be acted upon as an agreement and on the other hand, it was mutually agreed to be a security for the repayment of the loan, shall be heavily upon the appellant/defendant. Even then the respondent/plaintiff has chosen to adduce evidence by examining himself as PW1 and one Balasubramanian, the attestor of Ex.A1-Agreement for sale as PW2. 12. PW1 was categorical in his testimony that Ex.A1-Agreement for sale was executed by the appellant/defendant agreeing to sell the suit property for a sum of Rs.10,00,000/- and received a sum of Rs.1,50,000/- as advance and that as per the terms of the agreement, the appellant/defendant agreed to receive the balance sale consideration and execute a registered sale deed in favour of the respondent/plaintiff within a period of one year from the date of Ex.A1-Agreement for sale. It is also his clear assertion that subsequent to the date of execution of Ex.A1-Agreement for sale, he had paid further amounts on various dates totaling a sum of Rs.5,00,000/- and that thus, out of the sale consideration of Rs.10,00,000/-, he had paid Rs.6,50,000/- as on 31.12.2006 (within one year). It is his further assertion that though he was ready with the balance amount of sale consideration, namely Rs.3,50,000/- to be paid to the appellant/defendant under the agreement for sale, within the time stipulated in the agreement, the appellant/defendant gave evasive answers stating that he had to get the parent deed from the office of the Sub Registrar and that by his own act, the appellant/defendant caused the time of one year stipulated in the agreement to lapse, by initially seeking time till the end of January 2007 and then assuring to execute the sale deed not later than the first week of February 2007. It is also the clear assertion of the respondent/plaintiff that suspecting the bonafide of the appellant/defendant, he chose to issue a lawyer's notice, which was refused to be received by him citing a small clerical mistake in noting the initial of the appellant/defendant on the envelope even though his name had been correctly written in the notice, which was in vernacular, necessitating the respondent/plaintiff to issue a fresh notice mentioning the correct initial and correct address. 13. PW2-Balasubramanian totally corroborated the evidence of PW1 regarding the payment of Rs.1,50,000/- as advance, execution of Ex.A1-Agreement for sale on 18.01.2006, subsequent payments of Rs.5,00,000/- towards balance sale consideration up to 31.12.2006, endorsements made on the dates of such payments and attesting of those endorsements, except the endorsement dated 31.12.2006. 14. As against such clear evidence adduced on the side of the respondent herein/plaintiff, the evidence adduced on the side of the appellant/defendant is not sufficient to discharge the burden of proving his contention that Ex.A1-Agreement for sale had been executed by him only as a security for repayment of loan. It is quite surprising to hear from the appellant/defendant that on the mere promise allegedly made by the respondent/plaintiff to lend a sum of Rs.10,00,000/-, Ex.A1, suit sale agreement was executed as security for the repayment of the loan. No prudent man will execute an agreement for sale agreeing to sell the property for a sum of Rs.10,00,000/- intending it to be a security for the repayment of the loan to be advanced in future in installments. It is the plea made by the appellant/defendant in his written statement that such a promise was made by the respondent/plaintiff way back in 2003 itself. If at all a promise to lend a sum of Rs.10,00,000/- was made in 2003 itself, the appellant/defendant would not have chosen to execute an agreement for sale in the month of January 2006 quoting the sale consideration to be Rs.10,00,000/-. 15. The appellant/defendant, while deposing as DW1 also referred to a document dated 16.02.2007 executed by him as a Time Extension Deed for the repayment of the loan availed by him in favour of the respondent/plaintiff. Though such a deed of time extension has not been produced and it is the evidence of DW1 that the original was with the respondent/plaintiff, he has chosen to produce a xerox copy of the same as Ex.B15. Though such a deed of time extension has not been produced and it is the evidence of DW1 that the original was with the respondent/plaintiff, he has chosen to produce a xerox copy of the same as Ex.B15. Ex.B15 had been marked subject to objection. One Kalichamy is stated to have signed the said document as an attestor, he was not examined as a witness on the side of the appellant/defendant. On the other hand, one Sivasami was examined as DW2. DW2 is an advocate. The appellant/defendant is also an advocate by profession. DW2 would say that on 18.01.2006 Ex.A1-Agreement for sale was executed in his presence and that he signed it as an attestor of the said document. At the same time, he would tend to support the case of the appellant/defendant by stating that the said agreement for sale was executed as requested by the respondent/plaintiff for the loan advanced by him to the appellant/defendant. In this regard, there is a total contradiction between the evidence of DW1 and DW2. According to the pleading made by the appellant/defendant in his written statement, the amount lent on 18.01.2006 was only Rs.1,50,000/- even though the respondent/plaintiff had promised in 2003 itself to lend a sum of Rs.10,00,000/-. According to the plea made in the written statement and the evidence of DW1, even out of Rs.1,50,000/-, Rs.9,000/- was deducted by the respondent/plaintiff towards interest for three months at the rate of 24% per annum and only a sum of Rs.1,41,000/- was paid by the respondent/plaintiff to the appellant/defendant on 18.01.2006. The evidence of DW2 who is also an advocate, is totally contradictory to the evidence of DW1. According to him, the respondent/plaintiff agreed to lend a sum of Rs.10,00,000/- and out of the said amount, a sum of Rs.2,00,000/- alone had been lent for interest at the rate of 24% per annum and that for the said loan, the suit sale agreement for sale was executed as security. Such is the testimony of DW1 in paragraph 2 of the proof affidavit. However in paragraph 3 of the proof affidavit of DW2, he supported the case of DW1 as if a sum of Rs.1,50,000/- was lent and deducting a sum of Rs.9,000/- towards interest for three months, a sum of Rs.1,41,000/- alone was paid by the respondent/plaintiff to the appellant/defendant. DW2 has made such incoherent contradictory statement in his proof affidavit. 16. However in paragraph 3 of the proof affidavit of DW2, he supported the case of DW1 as if a sum of Rs.1,50,000/- was lent and deducting a sum of Rs.9,000/- towards interest for three months, a sum of Rs.1,41,000/- alone was paid by the respondent/plaintiff to the appellant/defendant. DW2 has made such incoherent contradictory statement in his proof affidavit. 16. The suit sale agreement has been marked as Ex.A1. The endorsements made on Ex.A1 agreement on the dates of making further payments have been marked as Exs.A2 to A6. DW2 seems to have signed as an attestor of Ex.A1, namely the suit agreement for sale. In Ex.A2-endorsement dated 18.05.2006, his name in vernacular is written as the first witness. So far as the other four endorsements, namely Exs.A3 to A6 are concerned, he does not figure as an attestor. However, he has ventured to state that he was aware of the payments made in the respective dates of execution of Ex.A1-agreement and making of Exs.A2 to A6 - endorsements and that all those payments were made only as loan. However during cross examination, DW2 admitted that he signed as a witness for the execution of Ex.A1 as a sale agreement and that only from the information furnished by the appellant/defendant, he came to know that the same was executed by the appellant/defendant as security for the loan. It is the further admission of DW2 that prior to 18.01.2006, he had no knowledge of the alleged negotiation resulting in the execution of Ex.A1-Agreement for sale as security for loan based on the earlier promise made by the respondent/plaintiff in 2003 itself to provide a loan of Rs.10,00,000/- to the appellant/defendant. 17. The contention of the appellant/defendant is that an agreement for sale was executed in 2003 after receiving a sum of Rs.1,00,000/- and the said agreement lapsed in the year 2005 itself. Nowhere in the written statement the appellant/defendant has made any reference to any agreement dated 03.07.2005. However, during the course of his evidence as DW1, the appellant/defendant produced Ex.B10, claiming the same to be the Xerox copy of an agreement dated 03.07.2005. It is quite surprising to note that the said document is dated 03.06.2005, whereas DW1 (appellant/defendant) claims it to be the agreement executed on 03.07.2005. However, during the course of his evidence as DW1, the appellant/defendant produced Ex.B10, claiming the same to be the Xerox copy of an agreement dated 03.07.2005. It is quite surprising to note that the said document is dated 03.06.2005, whereas DW1 (appellant/defendant) claims it to be the agreement executed on 03.07.2005. A perusal of the endorsements found on the reverse side of the first sheet of Ex.B10 will make it quite obvious that Ex.B10 could not be true and it is more probable that the same was created for the purpose of the case. Apart from the discrepancy regarding the date of Ex.B10 between the recitals found in Ex.B10 and the evidence of DW1, the first endorsement found in the said document is dated 03.05.2005, which is anterior to the date of Ex.B10. There are also corrections in the figure noted in the endorsement. The total consideration as noted in Ex.B10 is Rs.55,000/-. Out of the said amount of Rs.55,000/-, Rs.30,000/- is stated to have been paid on the date of agreement as advance as per clause 2 of the said agreement. However, it has been noted in the endorsement that Rs.20,000/- alone was paid as advance, that too, on 03.05.2005 with a promise to pay Rs.10,000/- as further advance on 06.06.2005. However, the second endorsement is to the effect that only on 09.06.2005 a sum of Rs.10,000/- was paid leaving a balance of Rs.25,000/- out of the total sale consideration. The same is quite contrary to the evidence of DW1, the appellant/defendant himself. 18. In addition, the appellant/defendant has produced Ex.B15 as xerox copy of the deed of extension of time and Ex.B16 as a receipt executed by the respondent/plaintiff on 16.02.2007 to the effect that he received back the entire amount of Rs.8,50,000/- lent by him to the appellant/defendant by adjusting Rs.8,00,000/- towards sale consideration for the sales effected under three sale deeds dated 05.03.2007 and receiving a sum of Rs.50,000/- in cash. Both Exs.B15 and B16 are disputed by the respondent/plaintiff. DW2 alone figured as an attestor of Ex.B16. One Kalichamy is said to have signed as sole witness in Ex.B15. The said Kalichamy has not been examined as a witness on the side of the appellant/defendant. The veracity of DW2 is also questionable for the reasons indicated supra. Both Exs.B15 and B16 are disputed by the respondent/plaintiff. DW2 alone figured as an attestor of Ex.B16. One Kalichamy is said to have signed as sole witness in Ex.B15. The said Kalichamy has not been examined as a witness on the side of the appellant/defendant. The veracity of DW2 is also questionable for the reasons indicated supra. That apart Ex.B15 shall not support the case of the appellant/defendant that the same was executed for extending the time for repayment of the loan advanced by the respondent/plaintiff. On the other hand, it refers to the extension of time for completion of the sale transaction under Ex.A1-Agreement for sale dated 18.01.2006. Therefore, no credence can be given to Ex.B15 as a document in support of the contention of the appellant/defendant that the same was executed as a deed of time extension for the repayment of the loan availed by the appellant/defendant from the respondent/plaintiff. 19. Ex.B16 is produced as a receipt showing that a sum of Rs.8,50,000/- lent by the respondent/plaintiff to the appellant/defendant was repaid by adjusting Rs.8,00,000/- towards sale consideration for the sale of 20 cents of land and by cash payment of Rs.50,000/-. It is the clear case of the respondent/plaintiff that the total amount paid under Ex.A1-Agreement for sale and Exs.A2 to A6 endorsements was Rs.6,50,000/-. Where from the additional 2,00,000/- came? There is no explanation on the part of the appellant/defendant. In Ex.B16, it has been stated that 20 cents of land was agreed to be sold to the respondent/plaintiff at the rate of Rs.40,000/- per cent, which would account for Rs.8,00,000/-. The certified copy of the sale deeds allegedly referred to in Ex.B16 - receipt have been produced as Exs.B1, B2 and B14. Under Ex.B1, an extent of 4,320 sq.ft. or 9 cents and 400 sq.ft. along with a house with an ACC cement sheet roof with the measurement 10 x 10 was conveyed in favour of the respondent/plaintiff for a sum of Rs.1,50,000/- on 05.03.2007. The said amount is said to have been paid in cash on the date of sale deed itself. It is the further testimony of DW1 that on 05.03.2007 as directed by the respondent/plaintiff he executed two sale deeds in favour of the nominees of the respondent/plaintiff, namely Ravichandran and Marudhachalam, conveying five cents each. The said amount is said to have been paid in cash on the date of sale deed itself. It is the further testimony of DW1 that on 05.03.2007 as directed by the respondent/plaintiff he executed two sale deeds in favour of the nominees of the respondent/plaintiff, namely Ravichandran and Marudhachalam, conveying five cents each. A certified copy of the sale deed executed in favour of Marudhachalam in respect of 2180 sq.ft. or five cents and 2 sq.ft. has been produced as Ex.B2 dated 05.03.2007. The sale consideration is Rs.8,50,000/-. Similarly, the certified copy of the sale deed executed on 05.03.2007 in favour of K.Ravichandran son of Karuppanna Gaunder has been produced as Ex.B14. An extent of 5 cents 2 sq.ft. (2180 sq.ft.) along with an ACC cement sheet roof with the measurement 10 x 10 was sold for a sum of Rs.85,000/- by the appellant/defendant to the said Ravichandran. In the said document also, the entire sale consideration of Rs.85,000/- was said to be received in cash on the date of execution of the sale deed. Copies of two sale agreements dated 31.10.2005 and 01.03.2006 executed in favour of Manoharan (son-in-law of the respondent/plaintiff) have been produced as Ex.B11 and Ex.B12. A certified copy of another sale deed executed by the appellant/defendant in favour of Manoharan on 15.03.2006 in respect of 3 cents 232 sq.ft. (1539 1/4 sq.ft.) and RCC house for a sum of Rs.1,10,000/- has been marked as Ex.B13. The entire sale consideration was said to be paid in cash on the date of execution of the sale deed. Thus the total extent sold by the appellant/defendant in favour of the respondent/plaintiff, Manoharan, son-in-law of the respondent/plaintiff, Marudhachalam and Ravichandran alleged nominees of the plaintiff are as follows: Purchaser Extent of land Amount Date of purchase Exhibit No. Arumugam (respondent/plaintiff) 9 cents 400 sq.ft. Rs.1,50,000/- 05.03.2007 Ex.B1 Marudhachalam 5 cents 2 sq.ft. Rs.85,000/- 05.03.2007 Ex.B2 Manoharan 3 cents 322 sq.ft. Rs.1,10,000/- 15.03.2006 Ex.B13 Ravichandran 5 cents 2 sq.ft. Rs.85,000/- 05.03.2007 Ex.B14 If the sale deed in the name of Manoharan (Ex.B3) is excluded, the total extent sold under Exs.B1, B2 and B14 will roughly come to 20 cents and the total sale consideration for the said extent as per the sale deeds comes to Rs.3,20,000/-. Rs.1,10,000/- 15.03.2006 Ex.B13 Ravichandran 5 cents 2 sq.ft. Rs.85,000/- 05.03.2007 Ex.B14 If the sale deed in the name of Manoharan (Ex.B3) is excluded, the total extent sold under Exs.B1, B2 and B14 will roughly come to 20 cents and the total sale consideration for the said extent as per the sale deeds comes to Rs.3,20,000/-. However, the appellant/defendant contended that the sale consideration for the sales effected in favour of the respondent/plaintiff and his nominees (Ravichandran and Marudhachalam) was Rs.8,00,000/-. The same is against the recitals found in the documents. There is no independent evidence, excepting the interested testimony of DW1 and the unreliable testimony of DW2, who is a colleague of DW1. 20. Admittedly, Ex.A1-agreement for sale was executed on 18.01.2006. Further payments paid under Exs.A2 to A6 - endorsements were made between 18.05.2006 and 31.12.2006. According to the appellant/defendant, the said amounts covered by Exs.A1 to A6 were adjusted towards the sale consideration of Exs.B1, B2 and B14 dated 05.03.2007. The said sale deeds do not refer to the adjustment of the amounts paid by the respondent/plaintiff under Exs.A1 to A6 towards the sale consideration. On the other hand, the recitals found in those three sale deeds are to the effect that the amount was paid in cash. Though the appellant/defendant would have relied on Ex.B15 in support of his contention that the amounts mentioned in Exs.A1 to A6 were in fact amounts lent by the respondent/plaintiff and that the original of Ex.B15 was executed as a Deed of Time extension for repayment of the loan, the recitals found in Ex.B15 are totally contrary to the pleading made by the respondent/plaintiff. The execution of the said document has been denied by the respondent/plaintiff and the same has not been proved by the appellant/defendant. Further, the recitals found in Ex.B15 is contrary to what the appellant/defendant pleads. Therefore, even if it is assumed that Ex.B15 is proved, the same will not help the appellant/defendant to prove his case that Ex.A1 was executed as a security for repayment of loan and the original of Ex.B15 was executed as a Deed of Time extension for repayment of the loan with interest. Another document relied on by the appellant/defendant in support of his case is Ex.B16, dated 16.02.2007. It has been prepared in a non-judicial stamp paper and titled as 'Receipt'. Another document relied on by the appellant/defendant in support of his case is Ex.B16, dated 16.02.2007. It has been prepared in a non-judicial stamp paper and titled as 'Receipt'. It refers to the suit agreement marked as Ex.A1 and yet another agreement (without any date) relating to an extent of 20 cents for a sum of Rs.2,00,000/- and that under both the agreements, a total sum of Rs.8,50,000/- had been borrowed. So far as a sum of Rs.6,50,000/- is concerned, it is covered by Exs.A1 to A6. There is no document to show the lending of another sum of Rs.2,00,000/- by the respondent/plaintiff. The recital found in Ex.B16 is to the effect that a sum of Rs.50,000/- was received in cash after adjusting Rs.8,00,000/- towards the sale consideration apart from the interest already received from the appellant/defendant. The recital found in Ex.B16 is to the effect that on 16.02.2007 itself, after adjusting Rs.8,00,000/- towards sale consideration, Rs.50,000/- was paid by the appellant/defendant in cash. However, the pleading and evidence are to the contrary insofar as they are to the effect that the payment of Rs.50,000/- in cash was made at the time of execution of the sale deeds and adjustment of Rs.8,00,000/- towards the sale consideration was also adjusted at the time of execution of the sale deed. Both Exs.B15 and B16 are dated 16.02.2007. The stamp paper for Ex.B16 was purchased on 16.02.2007, whereas stamp paper for Ex.B15 was purchased on 15.02.2007. The same is the reason why in Ex.B15 the date was initially written as 15.02.2007 and subsequently corrected as 16.02.2007. All these aspects will go to show that Exs.B15 and B16 were created for the purpose of the case, besides the failure on the part of the appellant/defendant to prove them by adducing reliable evidence. If those two documents are considered in the light of the above said facts, it will probablise the case of the respondent herein/plaintiff that they were fabricated and created for the purpose of the case and the improbabilities of the defence case in this regard shall be brought to light. 21. Yet another aspect worth mentioning in this case is that the appellant/defendant is a legally trained person and is practising as an advocate. In fact he himself has admitted that he appeared as a counsel for the respondent/plaintiff in a suit in O.S.No.587/1992. 21. Yet another aspect worth mentioning in this case is that the appellant/defendant is a legally trained person and is practising as an advocate. In fact he himself has admitted that he appeared as a counsel for the respondent/plaintiff in a suit in O.S.No.587/1992. The certified copies of the plaint and the decree passed in the said suit have been produced as Exs.B3 and B4. As the appellant/defendant is a trained law graduate and a practising advocate, his knowledge in law cannot be compared with the respondent/plaintiff, who is not so qualified. Being an advocate, the appellant/defendant would be very much conscious of the consequences of his acts of executing documents. It is improbable for a practising advocate to execute an agreement for sale as security for the repayment of the loan, that too without even receiving the entire amount agreed to be lent. It is highly improbable that for a promise made in 2003 itself to lend a sum of Rs.10,00,000/- out of which only a sum of Rs.1,50,000/- was paid by the respondent/plaintiff on 18.01.2006, the appellant/defendant would have executed an agreement for sale agreeing to sell the suit property for a sum of Rs.10,00,000/-. 22. The receipt of a total sum of Rs.6,50,000/- covered by Ex.A1-sale agreement and Exs.A2 to A6 - endorsements stands admitted. Though the appellant/defendant would have contended that on the date of execution of Ex.A1, the respondent/plaintiff deducted interest for three months at the rate of 24% per annum, he has not contended that on each date of payment evidenced by Exs.A2 to A6 advance interest for three months was deducted. It is also not his case that when the subsequent advances were made under Exs.A2 to A6, the interest that became due under Ex.A1 and the previous endorsements was deducted from the amount mentioned in each one of the endorsements and the balance amount alone was paid. The cumulative effect of all the above said aspects will lead to the conclusion that the appellant/defendant has not discharged the burden cast on him to prove his contention that Ex.A1-Agreement for sale was executed only as a security for repayment of loan. 23. The cumulative effect of all the above said aspects will lead to the conclusion that the appellant/defendant has not discharged the burden cast on him to prove his contention that Ex.A1-Agreement for sale was executed only as a security for repayment of loan. 23. The learned trial judge, on proper appreciation of evidence and on proper application of law regarding burden of proof, has arrived at a correct conclusion that the respondent herein/plaintiff has proved Ex.A1 to be an agreement for sale was executed by the appellant/defendant agreeing to sell the suit property for a sum of Rs.10,00,000/-; that a total sum of Rs.6,50,000/- was paid under Ex.A1-agreement for sale and Exs.A2 to A6 - endorsements as advance and part payment of the sale consideration and that on the other hand, the appellant/defendant miserably failed to substantiate his contention that Ex.A1-suit sale agreement was not intended to be an agreement for sale and on the other hand, it was executed only as a security for repayment of the loan. The learned trial judge rightly held that the contention of the appellant herein/defendant that a sum of Rs.8,00,000/- was adjusted towards the sale consideration of Exs.B1, B2 and B14 and a sum of Rs.50,000/- was paid by the appellant/defendant in cash and thus the entire amount due from the appellant/defendant towards the respondent/plaintiff stood discharged and wiped out, was not substantiated by the appellant/defendant by preponderance of probabilities by adducing reliable evidence. Hence the said finding of the trial court does not deserve any interference and on the other hand, the same deserves to be confirmed. Point Nos.4 to 6:- 24. Hence the said finding of the trial court does not deserve any interference and on the other hand, the same deserves to be confirmed. Point Nos.4 to 6:- 24. The next question to be considered is "whether the respondent/plaintiff has complied with the conditions stipulated in Section 16(c) of the Specific Relief Act, 1963 to enable him to get the relief of specific performance by making a specific plea regarding his readiness and willingness to perform his part of the contract and proving the same by adducing evidence?" In this regard, the respondent herein/plaintiff has made a clear and unambiguous plea that within the time stipulated in Ex.A1-agreement, he had paid a total sum of Rs.6,50,000/- out of the agreed sale consideration of Rs.10,00,000/-; that when the last payment was made on 31.12.2006, he was having with him the balance amount also and he requested the appellant herein/defendant to receive the entire balance sale consideration and execute the sale deed; that on the other hand, it was the appellant/defendant who promised to get it and execute the sale deed in the first week of January 2007; that ever since the execution of the sale agreement he was ready and willing to pay the balance amount of sale consideration and get the sale deed executed in his favour; that when he approached the appellant/defendant along with the balance sale consideration before the date of expiry of one year period, the appellant/defendant sought time till the end of January 2000 on the premise that he had to get the parent document from the Sub Registrar's office; that even thereafter the appellant herein/defendant was postponing the execution of the sale deed under one pretext or other, which made him issue a lawyer's notice on 14.02.2007, which was returned followed by another notice dated 26.02.2007; that the notice dated 26.02.2007 which was received and acknowledged and that since the appellant/defendant did not come forward to complete the transaction even after the receipt of the said notice, he deposited the balance amount of sale consideration with the Primary Agricultural Cooperative Bank Ltd and filed the suit for specific performance. 25. The xerox copy of the deposit receipt for Rs.3,50,000/- dated 23.03.2007 has been produced and marked as Ex.A10. 25. The xerox copy of the deposit receipt for Rs.3,50,000/- dated 23.03.2007 has been produced and marked as Ex.A10. Though the maturity date noted therein was 22.03.2008, clear evidence was adduced by the respondent/plaintiff the said deposit could be prematurely closed and he was prepared to deposit the balance sale consideration as and when he would be directed by the court to do so. The copy of the notice dated 14.02.2007 has been marked as Ex.A7. It was prepared in vernacular. The name of the appellant/defendant has been written as However, in the address on the envelope, his name was written in English as T.K.Ganeshan. The wrong initial of 'T' instead of 'D' in English made the appellant/defendant to claim that there was no such addressee and hence the same was returned. To the very same address, but with a correction in the initial from 'T' to 'D', another notice was sent and the same was received by the appellant/defendant, as evidenced by the postal acknowledgement card marked as Ex.A9. No reply was sent to the above said notice. On the other hand, the appellant/defendant has come forward with an explanation that he met the respondent/plaintiff and questioned the propriety of sending such a notice for which the respondent/plaintiff replied that he would not take further action. Such an explanation from an advocate like the appellant/defendant is far from being acceptable. 26. Furthermore, as against the clear evidence, both oral and documentary, adduced on the side of the respondent herein/plaintiff regarding his readiness and willingness, there is no contra evidence on the side of the appellant/defendant to show that the respondent/plaintiff was not ready and willing to urge the court not to exercise the discretion in favour of the respondent/plaintiff. The appellant/defendant, referring to the contention of the plaintiff made in the plaint paragraph 6 to the effect that in the first week of January 2007, the appellant/defendant gave possession of suit property to the respondent/plaintiff, contends that since the property is a common property, without any division, possession of the property could not have been delivered to the respondent herein/plaintiff and that since he had come with an untenable plea as if he was put in possession in part performance of the agreement for sale, he must be non-suited for the relief of specific performance holding that he has not come to the court with clean hands. It is the further contention raised on behalf of the appellant herein/defendant that a lis was pending between himself and his aunt Palaniammal regarding the suit property and that therefore, the respondent/plaintiff could not have been legally granted the relief of specific performance. In this regard, Exs.B5 to B9 have been produced on the side of the appellant herein/defendant. Ex.B5 is the certified copy of the plaint filed by the above said Palaniammal seeking partition. Ex.B6 is the certified copy of the preliminary decree passed in the said suit in O.S.No.117 of 2007 on the file of Additional District Judge (FTC No.1), Coimbatore. Ex.B7 is the certified copy of the judgment. Ex.B8 is the certified copy of the Memorandum of Appeal filed in the High Court as A.S.No.1005/2003. Ex.B9 is a certified copy of the order of interim stay of passing of final decree granted by this court. 27. The above said documents will show that the appellant herein/defendant and his brother were claiming exclusive title to the suit property under the will of one Arthanari dated 15.11.1985. The said Palaniammal seems to have filed the suit for partition on the premise that she was a co-owner of the property having undivided 1/3rd share in it. Simply because there is a dispute regarding the title of the appellant/defendant regarding the suit property, it cannot be said that the respondent/plaintiff, who entered into an agreement with the appellant/defendant for the purchase of the suit property cannot be specifically enforced. Whatever right the appellant/defendant might be having in the property, shall have to be conveyed as per the commitment made in the agreement for sale. The subject matter of the agreement for sale is also undivided 1/3rd share of the property measuring 3.15 acres comprised in S.Nos.294/3A and 294/3B at Pooluvapatti, Coimbatore Taluk and Coimbatore Distirct. When the agreement itself is for the sale of the undivided share, it shall be quite untenable to contend that the agreement for the sale of the undivided share, without effecting partition, cannot be specifically enforced. The result of the suit filed by Palaniammal shall not in any way affect the right of the respondent/plaintiff under Ex.A1-suit agreement for sale. According to the plaint of Palaniammal, she was entitled to 1/3rd share, whereas the appellant/defendant and his brother were entitled to 1/3rd share each. The result of the suit filed by Palaniammal shall not in any way affect the right of the respondent/plaintiff under Ex.A1-suit agreement for sale. According to the plaint of Palaniammal, she was entitled to 1/3rd share, whereas the appellant/defendant and his brother were entitled to 1/3rd share each. What was sought to be conveyed was only undivided 1/3rd share regarding which, undoubtedly the appellant/defendant does have title. Even otherwise in a suit for specific performance, the defendant cannot succeed in his defence by simply projecting his defect in the title. When the plaintiff is prepared to get a sale deed unmindful of any defect in the title of the defendant and taking the risk on himself, the plaintiff cannot be non-suited for the relief of specific performance. 28. So far as the plea of part performance is concerned, though the respondent/plaintiff chose to make such a plea in paragraph 6 of the plaint, the said plea has been given up. Simply because an incorrect or erroneous plea as if possession was delivered in part performance of the agreement for sale came to be made, the plaintiff cannot be denied the relief of specific performance, if he is otherwise entitled to. Considering all the above said aspects in proper perspective, the trial court came to a correct conclusion that the respondent herein/plaintiff complied with the requirements of Section 16(c) of the Specific Relief Act, 1963 by pleading and proving his readiness and willingness to perform his part of the obligations under Ex.A1-Agreement for sale and that hence he was entitled to the relief of specific performance as prayed for. 29. The well considered finding of the trial court in this regard does not warrant any interference by this court, as this court cannot find any defect or infirmity in the same. The trial court committed no error or mistake in holding that the respondent herein/plaintiff is entitled to a decree for specific performance as prayed for. The decree passed by the trial court granting the relief of specific performance deserves to be confirmed. There is no merit in the appeal and the appeal is bound to be dismissed confirming the decree of the trial court. In the result, the first appeal is dismissed, confirming the decree of the trial court dated 30.12.2008 made in O.S.No.187 of 2007. However, there shall be no order as to cost.