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2017 DIGILAW 1332 (MAD)

N. Sundaram v. P. Kamalammal

2017-05-03

N.SATHISH KUMAR

body2017
JUDGMENT : The unsuccessful plaintiff in O.S.No.13180 of 2010, on the file of the learned Additional District Judge, Fast Track Court No. V, Chennai 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.13180 of 2010, before the learned Additional District Judge, Fast Track Court No. V, Chennai, for specific performance. 4. After contest, the suit was dismissed by the Trial Court, vide judgment and decree dated 22.3.2012 and hence this appeal. 5. The facts leading to the filing of this appeal are as follows: (i) The 1st defendant borrowed money from the 2nd defendant by mortgaging the suit property. Since the 1st defendant was not able to redeem the mortgage of the suit property, she decided to sell the suit property to the plaintiff for a total consideration of Rs.9,50,000/- and executed an agreement for sale on 28.5.2007 and received a sum of Rs. 1,50,000/- towards lease amount and also agreed to treat the same as part of consideration. As per the sale agreement, the plaintiff has to pay the balance amount to the 2nd defendant towards the mortgage loan and to pay the balance sale consideration to the 1st defendant. The plaintiff also approached the 2nd defendant to pay the loan amount but the 2nd defendant refused to receive the same by saying that the 1st defendant alone should pay the amount. Therefore, the plaintiff requested the 1st defendant to cooperate for clearing the mortgage loan. But, she did not cooperate for the same. However, the 1st defendant requested the plaintiff to pay further amount so that he could pay the mortgage amount. As per her request, the plaintiff paid further amount of Rs.2,00,000/- on 05.10.2007 and 10.01.2008 towards the sale consideration and thus, he has paid a sum of Rs.6,00,000/- in toto towards sale consideration. (ii) Before the expiry of the agreement date i.e. 27.5.2008, the plaintiff insisted the 1st defendant to clear the mortgage and execute the sale deed in his favour. However, the 1st defendant informed the plaintiff that he requested the 2nd respondent to reduce rate of interest and the same will take some time. Therefore, on 20.5.2008, she extended the agreement till 19.5.2009. Thereafter again the 1st defendant gave undertaking on 10.5.2009 stating that she will execute the agreement. However, the 1st defendant informed the plaintiff that he requested the 2nd respondent to reduce rate of interest and the same will take some time. Therefore, on 20.5.2008, she extended the agreement till 19.5.2009. Thereafter again the 1st defendant gave undertaking on 10.5.2009 stating that she will execute the agreement. As the 1st defendant failed to execute the agreement, the plaintiff caused a legal notice on 03.8.2009 expressing his readiness and willingness to pay the balance sale consideration of Rs. 3,50,000/-. The plaintiff is always ready and willing to pay the balance sale consideration of Rs.3,50,000/-. Again the plaintiff issued a notice on 08.10.2009 to the 2nd defendant to give the particulars of the exact loan amount payable to the 1st defendant. Since no reply was received from the 2nd defendant, the plaintiff filed the instant suit. (iii) Admitting the execution of lease agreement as well as the receipt of Rs.1,50,000/- from the plaintiff towards lease amount on 07.5.2007, it is the contention of the 1st defendant that she never executed any agreement to sell the suit properties. It is the case of the 1st defendant that she requested the plaintiff to vacate the premises but since the plaintiff requested extension of lease period for a further period of one year, the 1st defendant agreed for the same and received a sum of Rs.20,000/- towards additional lease amount. But the plaintiff fraudulently obtained signature of the 1st defendant in the blank stamp paper and utilised the same for preparation of fake sale agreement. The outstanding loan amount to the 2nd defendant is less than the market value of the suit properties. There is no agreement executed as stated by the plaintiff. Hence the 1st defendant prayed for dismissal of the suit. (iv) The 2nd defendant filed written statement stating that he is no way connected with the alleged agreement between the plaintiff and the 1st defendant. According to the 2nd defendant, the 1st defendant has borrowed loan of Rs.2,17,221/- for which he mortgaged the suit properties. After execution of Mortgage Deed dated 22.3.2005, she made payments regularly. Thereafter she had committed default. Despite several reminders and request, the 1st defendant has failed to pay the dues regularly. As a result, action was taken under Section 69 of the Transfer of Property Act. After execution of Mortgage Deed dated 22.3.2005, she made payments regularly. Thereafter she had committed default. Despite several reminders and request, the 1st defendant has failed to pay the dues regularly. As a result, action was taken under Section 69 of the Transfer of Property Act. However, the property which was brought to sale could not be sold and even thereafter the 1st defendant has failed to clear the mortgage amount. Again on 15.2.2010, the mortgaged property was brought for sale but the sale did not fructify. It is the further contention of the 2nd defendant that the 1st defendant, being the mortgagor, has authorized the plaintiff to pay the entire amount. The 2nd defendant has no objection to receive the said amount of Rs.2,56,017/-. The plaintiff has no right to question the intending sale for bringing the mortgage property in public auction. 6. Based on the above pleadings, the Trial court has framed the following issues: 1. Is the plaintiff entitled to specific performance of agreement of sale as prayed for against the 1st defendant? 2. Whether the 2nd defendant has to receive Rs.2,75,000/- from plaintiff to redeem the suit property? 3. Is the plaintiff entitled to permanent injunction as prayed for against the 2nd defendant? 4. Whether the 1st defendant entered into sale agreement with the plaintiff ? 5. Whether the sale agreement is the forged document? 6. To what other relief? 7. On the side of the plaintiff, the plaintiff examined himself as PW1 and one M.S.S.Prasath, was examined as P.W.2 and Exs.A1 to A7 were marked. On the side of the defendants, the defendant examined himself as DW1 and Exs.B1 to B8 were marked. Ex.C1,Expert opinion issued by Forensic Science Department was also marked. 8. On the basis of the evidence and materials adduced on both sides, the learned trial judge dismissed the suit. Aggrieved over the same, the plaintiff has come forward with this appeal. 9. The learned counsel appearing for the appellant/plaintiff submitted that the plaintiff was originally inducted as a tenant in the suit properties, for which he paid a sum of Rs.1,50,000/- to the 1st defendant on 07.05.2007. The understanding between the parties was that the amount shall not carry any interest and the building shall not carry any rent. 9. The learned counsel appearing for the appellant/plaintiff submitted that the plaintiff was originally inducted as a tenant in the suit properties, for which he paid a sum of Rs.1,50,000/- to the 1st defendant on 07.05.2007. The understanding between the parties was that the amount shall not carry any interest and the building shall not carry any rent. It is the submission of the learned counsel that as the 1st defendant has already mortgaged the suit properties with the 2nd defendant and she was not able to redeem the suit properties, she decided to sell the suit properties for a total consideration of Rs. 9,50,000/- and also entered into an agreement on 28.5.2007 with the plaintiff and received a sum of Rs.2,50,000/- other than the lease amount paid by the plaintiff. Therefore, it is the contention of the learned counsel that on the date of agreement, a sum of Rs.4,00,000/- was paid towards sale consideration. Thereafter, the plaintiff has paid another sum of Rs.2,00,000/- on two different dates. Despite his request to clear the mortgage loan, the 1st defendant did not cooperate which resulted in issuing notice. Thereafter, also the 1st defendant did not cooperate with the plaintiff. 10. It is submitted by the learned counsel for the appellant/plaintiff that the agreement is also extended by the 1st defendant. The above facts clearly show that the 1st defendant has purposely evading the sale transaction. Therefore, the plea of forgery set up by the 1st defendant has not been proved. It is submitted that the hand writing expert's report also clearly falsify such defence. Hence, it is submitted that the plaintiff was always ready and willing to complete his part of obligation. Thus, the learned counsel prayed for allowing the appeal. 11. Whereas the learned counsel for the 2nd respondent Bank submitted that the 1st defendant had executed Mortgage Deed in favour of the 2nd defendant and after availing mortgage loan, as she failed to redeem the mortgage property, the property was brought on auction. However, the said auction could not be done and that there is a due of more than Rs.10,00,000/-. Since almost 10 years have been lapsed, the interest accumulated to such huge arrears. It is the contention of the learned counsel for the 2nd defendant bank that the alleged agreement itself was created only in order to defeat the rights of the Bank. Since almost 10 years have been lapsed, the interest accumulated to such huge arrears. It is the contention of the learned counsel for the 2nd defendant bank that the alleged agreement itself was created only in order to defeat the rights of the Bank. Hence, the learned counsel for the 2nd defendant prayed for dismissal of the appeal. 12. In the light of the above submissions, now the points that arise for consideration in this appeal are as follows: 1. Whether the sale agreement dated 28.5.2007 is genuine and valid and is supported by consideration? 2. Whether the plaintiff is always ready and willing to purchase the suit property? 3. To what relief? Point No. 1: 13. The suit has been laid to enforce the agreement dated 28.5.2007, said to have been executed by the 1st defendant widow for sale of the suit property for a total consideration of Rs.9,50,000/-. It is stated by the plaintiff that originally he was inducted into possession of the suit properties on 17.5.2007 and paid sum of Rs.1,50,000/- as lease amount. Thereafter, as the 1st defendant could not able to redeem the property from the 2nd defendant, she decided to sell the property to the plaintiff. It is the specific case of the defendant that she never executed any agreement for sale of the suit properties while extending the period of lease for another one year. The plaintiff has obtained signatures in the blank papers while paying a sum of Rs.20,000/- towards additional lease amount and the same has been used for preparing the so called agreement in order to grab the suit properties. 14. In the above background, now this Court has to analyze the entire evidence and documents adduced on both sides. 15. It is true that once agreement is denied, the initial burden lies on the plaintiff to establish the execution of the agreement by the 1st defendant and also to show that the agreement is genuine one and not attached with any suspicion. 16. It is admitted fact that the plaintiff was inducted into possession of the suit properties on the basis of the agreement entered into between the parties on 07.5.2007. Though nomenclature of the document in which the plaintiff claims to have inducted into possession denotes as lease deed, when Ex.A1 document is carefully perused, it is seen that, in fact, it is not a lease deed. Though nomenclature of the document in which the plaintiff claims to have inducted into possession denotes as lease deed, when Ex.A1 document is carefully perused, it is seen that, in fact, it is not a lease deed. It is like unregistered usufructuary Mortgage Deed. As per the said deed, the plaintiff was permitted to occupy the property on condition that he has to pay a sum of Rs.1,50,000/- and that the aforesaid amount shall not carry any interest and the building shall not carry any rent. 17. Be that as it may, the fact remains that the plaintiff was inducted into possession on 07.5.2007 on payment of Rs.1,50,000/-. It is the case of the plaintiff that on 28.5.2007, i.e. within three weeks from the date of entering into possession of the property, the 1st defendant has agreed to sell the property for a total consideration of Rs.9,50,000/- and executed the agreement. This agreement is marked as Ex.A2. When Ex.A1, so called Lease Deed is carefully examined, it is seen that the same has been neatly typed in three pages with sufficient space between every sentence. When Ex.A2 so called sale agreement is carefully seen, in fact, the recital in the agreement is accommodated without even leaving space between the words. This fact also gives one of the circumstances to doubt the so called agreement. 18. It is the specific stand of the 1st defendant that after expiry of lease period, when she requested the plaintiff to vacate the property, the plaintiff sought for extension of lease for further period of one year and also paid a sum of Rs.20,000/- towards additional lease amount and obtained signature of the 1st defendant in the bank papers and the same has been utilized by the plaintiff for creation of the so called sale agreement. 19. In the above background, when Ex.A2 is carefully seen, it is the specific case of the plaintiff that on the date of the agreement, a sum of Rs.2,50,000/- was paid as advance and a sum of Rs.1,50,000/- already paid under Ex.A1 was also adjusted towards sale consideration and the sale shall be completed within one year. The recitals in the agreement would go to show that the 1st defendant has to clear the mortgage amount. Further, the endorsement dated 20.05.2008 was made extending the contract from 20.5.2008 to 19.05.2009. The recitals in the agreement would go to show that the 1st defendant has to clear the mortgage amount. Further, the endorsement dated 20.05.2008 was made extending the contract from 20.5.2008 to 19.05.2009. Again another endorsement was also made as if the 1st defendant has given an undertaking to complete the sale within six months from 10.5.2000. 20. It is also the case of the plaintiff that on 05.10.2007 and 10.01.2008 he has paid a total sum of Rs.2,00,000/-. The endorsement made in the back of the stamp paper appears to have been written by the same person. The manner in which the 1st defendant signed in the document would also clearly indicate that she is not a literate lady. Her evidence also shows that she is the widow and she is residing along with her son in different house. Therefore, it is well settled that when a person relying on any document executed by illiterate lady, genuineness of the document has to be established by such person. It is needless to say that the execution implies reading out, understanding, and signing the document. 21. It is the admitted fact that the suit properties were under the mortgage and the 2nd defendant has also taken coercive steps in bringing the properties for auction, by initiating proceedings under Section 69 of the Transfer of the Property Act at the relevant point of time. These facts would clearly show that at the relevant point of time, the 1st defendant, who is an illiterate, in fact, was in adversity. Therefore, the burden lies on the plaintiff to establish the genuineness of the so called agreement. 22. According to the plaintiff on the date of agreement, i.e. 28.05.2007 itself he has paid a sum of Rs.2,50,000/- to the 1st defendant. This specific recital also found in the agreement. P.W.1, in his evidence, has also asserted the same. One of the attesting witnesses, M.M.S.Prasad, S/o. Seetharaman, was examined as P.W.2 to prove the agreement dated 28.5.2007. P.W.2, in the chief examination, has asserted that on the date of agreement, i.e. 28.5.2007, a sum of Rs.1,00,000/- alone paid. towards sale consideration. This evidence is totally contrary to the agreement and also the evidence of P.W.1. The attesting witnesses was examined not only to prove the execution of the agreement but also to prove the consideration, his evidence is totally contrary to P.W.1. towards sale consideration. This evidence is totally contrary to the agreement and also the evidence of P.W.1. The attesting witnesses was examined not only to prove the execution of the agreement but also to prove the consideration, his evidence is totally contrary to P.W.1. Therefore, the question of relying Ex.A2 agreement and the so called payment of Rs.2,50,000/- is highly doubtful. 23. Another reason which weighs in favour of the 1st defendant and against the plaintiff is the admission of P.W.2. In the cross examination, P.W.2 has admitted that he does not know who has prepared the agreement. He has also admitted that the document has already been prepared. According to him, the 1st defendant signed in his presence and he does not know whether the plaintiff signed in the agreement. Even in the cross examination, he has categorically admitted that only a sum of Rs.1,00,000/- was paid by the plaintiff. If really he was present while signing the document, he ought to have seen P.W.1 at the time of signing the document by him. Whereas his evidence would clearly show that he does not even know whether the plaintiff has signed in the document. Similarly, it is the specific evidence of P.W.2 that only a sum of Rs.1,00,000/- was paid on the particular date. 24. That apart, P.W.2's admission in the cross examination, in fact, strengthened the defence theory that Ex.A2, so called agreement for sale, is created one. It is the specific admission of P.W.2, who is said to be the attesting witness in the agreement, that after signing the agreement on 28.5.2007, he never stood as witness for subsequent transaction took place between the parties. Whereas Ex.A2 document, would go to show that as if P.W.2 was also present and signed as witness in the endorsement on 10.5.2009. P.W.2 in his evidence has categorically admitted that he never participated in the subsequent transaction. This fact also create serious doubt about the genuineness of Ex.A2 agreement. All the endorsements were written by the same persons and so called payment of Rs.2,00,000/- in subsequent dates, also written in Ex.A2. These facts, in fact, gives an inference that all the endorsements were made on the same day and subsequently, signature of P.W.2 has been obtained. The alleged endorsements said to have been made on 05.10.2007 and 10.01.2008 are also falsified by the evidence of P.W.2. These facts, in fact, gives an inference that all the endorsements were made on the same day and subsequently, signature of P.W.2 has been obtained. The alleged endorsements said to have been made on 05.10.2007 and 10.01.2008 are also falsified by the evidence of P.W.2. His categorical admission is that after 28.5.2007 he never stood as witness. Whereas in the last page of the endorsement, his signature is also found. 25. The above facts, in fact, gives an inference that taking advantage of the precarious situation of the 1st defendant that she was not able to redeem the property, which was mortgaged with the 2nd defendant Bank and that the property has been brought on sale, as per Ex.A3 auction sale notice, this Ex.A2 has been created. Ex.A3 auction sale notice shows that originally property was brought on auction on 08.10.2009 at 4.00 p.m. and again on 15.02.2010 at 4.p.m. This creation of document is further fortified by the legal notice issued by the plaintiff for the 1st time on 03.8.2009, wherein he has pleaded as if the entire sum of Rs.4,00,000/- was paid to the 1st defendant at the time of entering into sale agreement on 28.5.2007. This fact leads to the conclusion that Ex.A2 is created one. 26. More so, admission of P.W.1 in the cross examination shows that he has paid a sum of Rs.1,50,000/- towards lease amount after 2 or 3 months from the date of his induction into possession of the property. This admission would also create a serious doubt about the execution of agreement within three weeks from the original induction into property. 27. Even though the signature of 1st defendant was compared by the forensic science expert and report has been filed in Ex.C1, it is to be noted that report of the hand writing expert is not a conclusive proof as the same is not based on exact science. It is only a opinion given by the expert. Expert also not testified before the Court of law. Therefore, Ex.C1, a hand writing expert's report cannot be given much importance when expert being not examined before the Court of law. 28. Further more, it is the specific case of the 1st defendant that she has signed in blank papers. When that being so, expert's opinion is no way helpful to decide the issue. Therefore, Ex.C1, a hand writing expert's report cannot be given much importance when expert being not examined before the Court of law. 28. Further more, it is the specific case of the 1st defendant that she has signed in blank papers. When that being so, expert's opinion is no way helpful to decide the issue. Mere signing in the document by illiterate lady cannot be construed as an execution of document, since the execution implies reading out, understanding, and signing the document. In the instant case, as discussed above, nature of the alleged consideration paid on the date of the alleged agreement itself is doubtful, in the light of contradictory evidence between P.W.1 and P.W.2 and also the legal notice sent by the plaintiff. 29. That apart, as discussed above, presence of attesting witness is doubtful, and the signature of the attesting witness found in the last page of the endorsement is also doubtful in view of his own evidence. All these facts are cumulatively taken into consideration, the same would lead to only conclusion that Ex.A2 was, in fact, created with the help of signatures obtained by the 1st defendant, while she was in financial crisis i.e. when her property was under mortgage and the same has been brought for auction on several occasions. Therefore, this Court is of the view that this document has been created taking advantage of the adversity of the 1st defendant, who is an illiterate. Such situation cannot be boon for others to take advantage of the financial conditions of the person, whose property was already under mortgage. 30. In any event, Ex.A2 sale agreement itself is found to be created. The burden on the part of the plaintiff to establish genuineness of the agreement itself has not been discharged in this case. Nature of payment made by him is also doubtful. Further, there is no evidence forthcoming to show that he had ready cash at the relevant point of time. The plaintiff also failed to establish the fact that he has legally paid the amount. Accordingly, this point is answered. Point Nos.2 and 3: 31. Even assuming that the agreement executed by the 1st defendant is true, the plaintiff, as a matter of right, cannot seek enforcement for specific performance without establishing the readiness and willingness on his part. As discussed in point No.1, the very agreement itself is doubtful. Accordingly, this point is answered. Point Nos.2 and 3: 31. Even assuming that the agreement executed by the 1st defendant is true, the plaintiff, as a matter of right, cannot seek enforcement for specific performance without establishing the readiness and willingness on his part. As discussed in point No.1, the very agreement itself is doubtful. Consideration is also doubtful. That apart, it is the specific case of the plaintiff that only to redeem the mortgage, the 1st defendant has agreed to sell the suit properties and he has also agreed to redeem the mortgage out of the sale consideration but the 1st defendant has failed to authorize the plaintiff to pay the mortgage money to the bank. 32. Absolutely, there is no evidence to show that he has mobilized the fund and also went to the bank to pay the amount. Except sending legal notice to the Bank after a period of two years i.e. 08/10/2009, that too, before filing the suit, absolutely, there is no evidence on the side of the plaintiff to show that actually he has interested in clearing the mortgage amount. If really the parties are intended to clear the mortgage as stated in the agreement and the plaintiff was interested in purchasing the property and that agreement was intended for sale, the normal human conduct would be to make some payment immediately to clear all the mortgage money in order to get the document registered with free of encumbrances. Admittedly, at the relevant point of time, the mortgage money payable was below Rs.2,50,000/-. But the plaintiff has not taken any steps in that regard also. 33. In any event, the contention of the plaintiff that the 1st defendant has failed to clear the mortgage, despite receipt of the sale consideration cannot be true in view of his own admission and suggestion to D.W.1. In the cross examination, a specific question was put to D.W.1 by the plaintiff to the effect that while mortgaging the property to the 2nd defendant, the bank pass book was given by the 2nd defendant to the plaintiff with instruction to pay the mortgage money regularly to the 2nd defendant. Therefore, the contention of the plaintiff that he has retained the passbook and that 1st defendant has paid the amount of Rs.29,000/-, Rs.1,28,715/- and Rs.48,000/- on 30.3.2007, 08.6.2007, 10.1.2008 and 30.5.2008 respectively cannot be countenanced. Therefore, the contention of the plaintiff that he has retained the passbook and that 1st defendant has paid the amount of Rs.29,000/-, Rs.1,28,715/- and Rs.48,000/- on 30.3.2007, 08.6.2007, 10.1.2008 and 30.5.2008 respectively cannot be countenanced. If this specific suggestion of the plaintiff that the pass book was already handed over to him to pay the mortgage money by the plaintiff is true, nothing prevented him to pay sum of Rs.2,50,000/- out of balance sale consideration to clear the mortgage money once for all. Similarly, the alleged pass book said to have been retained by the plaintiff has also not seen the light of the day. This fact clearly show that the entire contention of the plaintiff is false and the same pressed into service only in order to occupy the suit property, taking advantage of the adversity of the 1st defendant. 34. From the entire analysis of evidence of P.W.1 and P.W.2 and D.W.1 and documents, it is clear that execution of Ex.A2 is doubtful. Besides, the plaintiff, by taking undue advantage of his possession in the suit property, has created the aforesaid document to lay a claim for specific performance. When the Court entertain even a slightest doubt with regard to execution of Ex.A2 agreement for sale, specific performance of such document cannot be maintainable in the eye of law. The ready and willingness is also absent for the simple reason that the plaintiff has not taken any steps to clear the mortgage to show his bona fide. Therefore, this Court does not find any infirmity in the judgment of the trial Court dismissing the suit for specific performance. 35. It is pertinent to point out that the plaintiff was inducted into possession lawfully in the year 2007 and his evidence also shows that he never paid any rent till now i.e., for more than 12 years and he is enjoying the property without paying any rent except parting some amount at the time of taking over of possession of the suit properties. The persons, who were taking undue advantage of the situation, have no right to seek any relief in the eye of law. Hence, this Court has no other option except to dismiss the suit. It is for the 1st defendant to initiate proper action to evict the plaintiff from the suit property. These points are answered accordingly. 36. The persons, who were taking undue advantage of the situation, have no right to seek any relief in the eye of law. Hence, this Court has no other option except to dismiss the suit. It is for the 1st defendant to initiate proper action to evict the plaintiff from the suit property. These points are answered accordingly. 36. In the result, the appeal is dismissed with costs by confirming the judgment and decree of the trial Court. Consequently, connected miscellaneous petitions are closed.