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2017 DIGILAW 1041 (MAD)

P. C. Eswaramoorthy v. N. Palanisamy

2017-04-12

N.SATHISH KUMAR

body2017
JUDGMENT : The unsuccessful plaintiff in O.S.No.338 of 2004, on the file of the learned I Additional District Judge, Coimbatore, is the appellant herein. 2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court. 3. The plaintiff filed a suit in O.S.No.338 of 2004, before the learned I Additional District Judge, Coimbatore, for specific performance. 4. After contest, the suit was dismissed by the Trial Court, vide judgment and decree dated 28.2.2005 and hence this appeal. 5. The brief averments of the plaintiff are as follows: The defendant, being the owner of the suit property, has entered into an agreement for sale of the property for a total consideration of Rs.5,10,000/- (Rupees five lakhs ten thousand only) and also executed registered agreement Deed dated 27.08.1999. On the date of agreement itself, the defendant has received a sum of Rs.4,85,000/-(Rupees four lakhs eighty five thousand) towards advance. The time fixed for execution of the Sale Deed is one year from the date of agreement. The defendant also handed over the Xerox Copy of the Sale Deed dated 04.02.1991 and agreed to hand over the original Sale Deed at the time of registration. From the date of agreement, the plaintiff is always ready and willing to perform his part of the contract. Inspite of several requests and demand made by the plaintiff, the defendant postponed the execution of Sale Deed in favour of the plaintiff. Hence the plaintiff issued a legal notice dated 16.12.1999. Besides, the plaintiff also issued paper publication dated 19.12.1999. But the defendant sent reply with false and untenable allegations. Hence, the plaintiff filed a suit for specific performance or in the alternative for return of advance amount. 6. The brief averments of the written statement filed by the defendant are as follows: Resisting the claim of specific performance, it is the contention of the defendant that the plaintiff was running a finance company in the name of Sri Kariakaliamman Auto Finance and the defendant had financial transaction with him for more than six years and borrowed amount on various dates. He has also purchased a Mahindra van and hypothecated the same to the plaintiff on 21.07.1997. He has also purchased a Mahindra van and hypothecated the same to the plaintiff on 21.07.1997. The defendant sold the Van for a sum of Rs.1,82,500/-(Rupees one lakh eighty two thousand five hundred only) to one Kandasamy on 30.06.1999 and paid a sum of Rs.1,80,000/-(Rupees one lakh eighty thousand only) to the plaintiff. The defendant is liable to pay a sum of Rs.1,50,000/-(Rupees one lakh fifty thousand only) to one Athammmal, wife of one Easwaran. To settle the above amount, there was a Panchayat in the presence of Nallasamy and as per the settlement arrived at in the Panchayat, the plaintiff agreed to discharge the defendant from his liability and to pay a sum of Rs.1,50,000/- to the said Easwaran if a sale agreement pertaining to the suit property is executed by the defendant. Believing the promise and assurance of the plaintiff, the defendant had executed the sale agreement in favour of the plaintiff without receiving any consideration. But, the plaintiff failed to pay the amount to the said Athammal. The legal notice and publication issued by the plaintiff are also properly replied by the defendant. Hence, the defendant prayed for dismissal of the suit. 7. Based on the above pleadings, the Trial court has framed the following issues. 1. Whether the suit transaction said to be taken place between the plaintiff and the defendant with regard to the suit property is true? 2. Whether suit agreement dated 27.08.1999 is supported by proper and valid consideration? 3. Whether the plaintiff has performed his part of the contract? 4. Whether the plaintiff is entitled to the relief of specific performance? 5. To what relief, if any, is the plaintiff entitled to? 8. On the side of the plaintiff, the plaintiff examined himself as PW1 and Exs.A1 to A6 were marked. On the side of the defendant, the defendant examined himself as DW1 and no documents were marked. 9. On the basis of the evidence and materials adduced on both sides, the learned trial judge dismissed the suit on the ground that the plaintiff has failed to prove the consideration. Agreed over the same, the plaintiff has come forward with this appeal. 10. The learned counsel appearing for the appellant/plaintiff submitted that execution of the registered Sale Deed is not disputed by the defendant. Agreed over the same, the plaintiff has come forward with this appeal. 10. The learned counsel appearing for the appellant/plaintiff submitted that execution of the registered Sale Deed is not disputed by the defendant. The learned counsel further submitted that the stand taken by the defendant that the plaintiff promised to pay the debt incurred by the defendant to the tune of Rs.1,50,000/-(Rupees one lakh fifty thousand only) to one Athammal, has not been established. According to the learned counsel, the alleged loan transaction between the defendant and the said Athammal has also not been established. Hence, it is the contention of the learned counsel that having agreed to sell the property and executed document, now the defendant cannot take a contrary stand than the terms mentioned in the agreement. Further, absolutely, there is no evidence to show that the defendant, at the relevant time, has borrowed a sum of Rs.1,50,000/-(Rupees one lakh fifty thousand only) from the said Athammal. More so, it is not the case of the defendant that the instant agreement was entered in respect of loan transaction. Therefore, the judgment of the Trial court dismissing the suit on the ground that consideration has not been proved is without any basis. Even, the evidence of DW1 and suggestion put to PW1 clearly shows that the agreement is a genuine one. It is submitted that the Trial court has not considered all these aspects. It is also submitted that the plaintiff was always ready and willing to perform his part of the contract. Hence, it is the submission of the learned counsel that the judgment and decree of the trial court is liable to be interfered with. 11. Countering the arguments advanced by the learned counsel for the appellant/ plaintiff, the learned counsel appearing for the respondent/ defendant submitted that in order to clear the debt incurred by the defendant to one Athammal, he has signed the document and hence, the same cannot be a ground to hold that the defendant has received the sale consideration. Though it is contended by the plaintiff that he paid a sum of Rs.4,85,000/- on the date of agreement, he has failed to prove the consideration. The evidence of P.W.1 shows that the plaintiff paid the amount in the Registrar office. But, no endorsement whatsoever, found in the agreement. Though it is contended by the plaintiff that he paid a sum of Rs.4,85,000/- on the date of agreement, he has failed to prove the consideration. The evidence of P.W.1 shows that the plaintiff paid the amount in the Registrar office. But, no endorsement whatsoever, found in the agreement. The above facts would clearly prove that the agreement is not supported by consideration. It is the further contention of the learned counsel that the plaintiff is the financier and the same has been admitted in his evidence. The conduct of the plaintiff giving one year time to pay the paltry sum of Rs.25,000/- to complete the sale transaction itself would prove that this agreement is not intended for sale. Hence, it is submitted that the plaintiff, being the income tax assesse, has failed to prove the consideration. Therefore, it is the contention of the learned counsel that the judgment and decree of the Trial Court is well balanced and the same does not require any interference. 12. In the light of the above submissions, now the points that arise for consideration in this appeal are as follows: 1. Whether the agreement dated 27.08.1999 is not supported by any consideration? 2. Whether the agreement dated 27.08.1999 came into existence based on the promise given by the plaintiff for clearing the debt of the defendant to one Athammal? 3. Whether the plaintiff was always ready and willing to perform his part of the contract? 4. Whether the plaintiff is entitled for specific performance? 5. To what relief, the plaintiff is entitled to? Point Nos.1 & 2: 13. The suit itself is laid for enforcing the contract dated 27.08.1999 entered into between the plaintiff and the defendant. The aforesaid agreement dated 27.8.1999 is marked as Ex.A1. It is the contention of the plaintiff that the defendant has agreed to sell the property for a total consideration of Rs.5,10,000/-(Rupees five lakhs ten thousand only) and executed the aforesaid agreement. On the date of agreement, the defendant received a sum of Rs.4,85,000/-(Rupees four lakhs eighty five thousand only) and the time agreed between the parties is one year for completion of sale transaction. 14. Whereas it is the contention of the defendant that he has not received any consideration on the date of agreement. There was financial dealing with the plaintiff and the defendant prior to 1999. 14. Whereas it is the contention of the defendant that he has not received any consideration on the date of agreement. There was financial dealing with the plaintiff and the defendant prior to 1999. The defendant has also hypothecated the van purchased by him with the plaintiff on 21.07.1997. He sold the van for a sum of Rs.1,82,500/-(Rupees one lakh eighty two thousand five hundred only) to one Kandasamy and paid a sum of Rs.1,80,000/- (Rupees one lakh eighty thousand) to the plaintiff and also cancelled the hypothecation on the registration certificate. It is not the case of defendant that sale agreement was executed in the loan transaction. 15. It is the specific case of the defendant that since the plaintiff assured to pay a sum of Rs.1,50,000/-(Rupees one lakh fifty thousand only) to one Athammal, W/o. Easwaran, from whom he borrowed the said amount, the sale agreement was executed. Absolutely, there is no evidence on the side of the defendant at least to show that he borrowed the said amount from Athammal at the relevant time and only for that purpose, the sale agreement was executed. Further, there is no pleadings whatsoever, in the entire written statement as to the nature of borrowal and the nature of document on which the alleged amount was borrowed by the defendant, from the said Athammal. D.W.1, in his evidence, has not spoken anything with regard to the alleged loan except stating that the plaintiff obtained the so called agreement on assurance to clear the debt incurred by him to one Athammal. It is not even stated that what was the nature of contract entered between the defendant and the said Athammal. Further, the plaintiff has not chosen to examine the said Athammal or Easwaran. 16. When Ex. A1, the registered agreement executed on 27.08.1999, is carefully perused, it is seen that the advance amount of Rs.4,85,000/-(Rupees four lakh eighty five thousand only) was paid on the same day. The parties have also agreed to complete the sale transaction within one year. Ex.A1 also contain a clause that if the purchaser has not come forward to complete the sale within the period of one year, the advance amount of Rs.4,85,000/-(Rupees four lakh eighty thousand only) is liable to be forfeited. Making such a clause in the agreement itself clearly show that the amount has been received by the defendant. Ex.A1 also contain a clause that if the purchaser has not come forward to complete the sale within the period of one year, the advance amount of Rs.4,85,000/-(Rupees four lakh eighty thousand only) is liable to be forfeited. Making such a clause in the agreement itself clearly show that the amount has been received by the defendant. Having admitted the agreement, it is for the defendant to establish that agreement is not supported by consideration. Once the execution of the agreement itself is admitted, the defendant cannot take a contrary stand than the terms of the contract. 17. As per Section 91 of the Indian Evidence Act, 1872 when the terms of contract have been reduced to the form of a document, no evidence is permissible in proof of the terms of such contract. However, proviso to Section 92 contemplates that the party to the contract may prove the fact that the agreement is not valid on the ground of fraud, intimidation, illegality, want of due execution, want of capacity, failure of consideration or mistake in fact or law, the said provision also permit oral evidence to show that the document is not valid for the want of failure of consideration. When the pleadings in the written statement, the evidence of P.W.1 and suggestion put to PW1 are carefully perused, it is clear that the fact with regard to execution of the document is not even been denied by the defendant. Once, the execution of the document is admitted, it is for the defendant to show that the above document is not supported by consideration. 18. As already stated, it is the specific case of the defendant that Ex. A1 came to be executed only in order to clear the loan of the defendant to one Athammal, W/o Easwaran. However, there is no specific pleading made by the defendant with regard to the aforesaid loan amount said to have been paid to the said Athammal. Merely on the basis of evidence, it cannot be stated that the document is not supported by consideration. It is to be noted that the burden lies on the defendant to establish the fact that agreement is not supported by consideration. 19. It is pertinent to point out that the Trial court has placed burden on the plaintiff to establish the consideration, which is not in accordance with law. Once the execution of Ex. It is to be noted that the burden lies on the defendant to establish the fact that agreement is not supported by consideration. 19. It is pertinent to point out that the Trial court has placed burden on the plaintiff to establish the consideration, which is not in accordance with law. Once the execution of Ex. A1 is admitted and the defendant has also failed to establish the particular fact on which basis the so called document was assailed, the burden cannot be re-shifted on the plaintiff to establish the consideration. It is for the defendant to prove that the document was not supported by consideration. 20. On a careful perusal of the entire evidence of PW1 and DW1, this court is of the view that the defendant has not discharged his burden in establishing the fact that Ex. A1 is not supported by consideration. The very suggestion put to PW1 itself clearly shows that the defendant was ready to execute the sale deed provided the plaintiff pays a sum of Rs.2,05,000/-(Rupees two lakhs five thousand only), including the amount paid by the defendant by way of sale of the van. It is suggested to PW1 thrice that if the above amounts were paid to the defendant he would execute the document. Therefore, if really, there was no consideration on the date of Ex.A1, there was no necessity for the defendant to suggest the plaintiff to execute the document, provided the plaintiff pays a sum of Rs.2,05,000/-(Rupees two lakhs Five thousand only). The above aspects itself clearly show that the agreement was executed for a valid consideration. Accordingly, these points are answered. Point Nos. 3 to 5: 21. Admittedly, Ex.A1 itself clearly show that substantial sale consideration has been paid as advance and remaining sum of Rs.25,000/-(Rupees twenty five thousand only) alone to be paid by the plaintiff and that, the time agreed to complete the sale is one Year. The plaintiff sent a legal notice under Ex.A3 dated 16.12.1999 for which the defendant also sent a reply. In the reply notice, the stand taken by the defendant is that he had financial transaction to various persons and borrowed amount on various dates and in order to settle the amount due to one Athammal, he executed the sale deed. But in the suit, he has taken different stand. In the reply notice, the stand taken by the defendant is that he had financial transaction to various persons and borrowed amount on various dates and in order to settle the amount due to one Athammal, he executed the sale deed. But in the suit, he has taken different stand. All these facts would clearly show that the defence pleaded by the defendants is not true. When Ex.A1 is executed as per law, now the defendant cannot take a contrary stand. The plaintiff, after causing legal notice effecting publication under Ex.A5 has come to court and filed a suit on 14.01.2006 itself, i.e., within reasonable time. All these facts would clearly show that, in fact, the plaintiff has made tremendous effort to complete the sale transaction. However, in view of the defendant’s refusal to pay the amount, he has filed the suit within six Months from the date of agreement. The ready and willingness pleaded by the plaintiff has not been denied by the defendant. 22. Therefore, this court is of the view that the plaintiff, in fact, has made out a case for granting specific performance in favour of the plaintiff. Even though, the plaintiff has proved his ready and willingness to perform his part of the contract, taking into consideration the facts and circumstances of the case and more particularly, the fact that substantial consideration has been paid by the defendant on the date of agreement itself and that fixing one year time for paying a paltry sum of Rs.25,000/-(Rupees twenty five thousand only) to register the sale deed, this Court is of the view that the entire transaction gives an inference that agreement was not intended for sale. The fact remains that consideration has been proved in Ex.A1. The property consists of 0.06 3/4 cents, 17 sq.ft vacant land including the 660 sq.ft house. No doubt, granting long time, i.e. one year, for paying a sum of Rs.25,000/-(Rupees twenty five thousand only) to complete the sale transaction itself creates doubt in the mind of the court to grant the equitable relief of specific performance to the plaintiff though the same has been proved in Ex.A1. 23. No doubt, granting long time, i.e. one year, for paying a sum of Rs.25,000/-(Rupees twenty five thousand only) to complete the sale transaction itself creates doubt in the mind of the court to grant the equitable relief of specific performance to the plaintiff though the same has been proved in Ex.A1. 23. Taking into consideration the facts and circumstances of the case and more particularly, the fact granting one year time to pay a sum of Rs.25,000/-( Rupees twenty five thousand only) and also taking into consideration the conduct of the parties prior to the transaction entered between them, I am of the view that if the specific performance is allowed, the same will give unfair advantage to the plaintiff and, in fact, the defendant will force to loose his dwelling house. Therefore, this court, exercising discretionary power and taking into consideration the fact that the agreement is of the year 1999 and almost 17 years have been lapsed, instead of granting the relief of specific performance, directs the defendant, to refund a sum of Rs.4,85,000/-(Rupees four lakhs eighty five thousand only) with interest at the rate of 7.5% per annum from the date of suit till the date of realisation. Till the amount is fully realised by the plaintiff, there shall be a charge over the property in respect of the advance amount. These points are answered accordingly. 24. In the result, the appeal is partly allowed. The respondent/defendant shall refund the sum of Rs.4,85,000/-(Rupees four lakhs eighty five thousand only) with interest at the rate of 6% per annum from the date of suit till the date of realisation. Till the amount is fully realised by the plaintiff, there shall be a charge over the property for the advance amount. No costs.