Research › Search › Judgment

Madras High Court · body

2018 DIGILAW 2066 (MAD)

Vijaya v. R. Sankar Narayanan

2018-07-09

M.SUNDAR

body2018
JUDGMENT : M. SUNDAR, J. 1. A specific performance suit was filed by one R.Sankara Narayanan. This specific performance suit is O.S.No.73 of 2008, on the file of the 'Principal District Court, Theni', which shall hereinafter be referred to as 'trial Court' for the sake of convenience and clarity. 2. There are four defendants in the specific performance suit in the trial Court and all four are siblings. In other words, the four defendants are one Periyathambi and his three sisters. Periyathambi, is Defendant No.2. 3. The suit was filed in the trial Court on 30.09.2008, almost a decade ago. It is the case of plaintiff Sankara Narayanan that the defendants entered into a sale agreement dated 07.02.2007 (Ex. A.1), agreeing to sell immovable property i.e., agricultural land admeasuring 2 acres and 40 cents or thereabouts comprised in Survey No.551/1 in Kottur Village in Chinnamanoor Sub District, Periyakulam Registration District and Theni District, for a total sale consideration of Rs. 8,88,000/-, took an advance / part payment of sale consideration of Rs. 50,000/- and agreed to complete the sale transaction on or before 16.08.2007. 4. Aforesaid property which is subject matter of Ex.A.1., is described in greater detail / more particularly in the trial Court decree and the same reads as follows: XXX 5. The aforesaid property shall hereinafter be referred to as 'suit property' and aforesaid 'sale agreement' dated 07.02.2007 (Ex.A.1), shall hereinafter be referred to as 'said sale agreement'. 6. It is the case of the plaintiff that the time fixed for execution of sale under Ex.A.1 i.e., time originally fixed being 16.08.2007, was extended three times subsequently. According to plaintiff, it was extended up to 15.02.2008. Thereafter, up to 14.08.2008 and finally up to 12.09.2008. These three extensions were made on 16.08.2007, 15.02.2008 and 13.08.2008, respectively (by way of endorsements in Ex.A.1) and have been marked as Exs.A.5, A.7 and A.8, respectively. 7. Besides Rs. 50,000/- paid as advance and part of sale consideration at the time of execution of Ex.A.1, according to plaintiff, four further payments were made as advance and part of sale consideration. It is plaintiff's case that these four payments are Rs. 25,000/- on 08.02.2007, Rs. 5,000/- on 29.06.2007, Rs. 15,000/- dated 22.07.2007 and Rs. 65,000/- on 30.08.2007. All these four payments are also evidenced by endorsements in Ex.A.1 and they have been marked as Exs.A.2, A.3, A.4 and A.6, respectively. 8. It is plaintiff's case that these four payments are Rs. 25,000/- on 08.02.2007, Rs. 5,000/- on 29.06.2007, Rs. 15,000/- dated 22.07.2007 and Rs. 65,000/- on 30.08.2007. All these four payments are also evidenced by endorsements in Ex.A.1 and they have been marked as Exs.A.2, A.3, A.4 and A.6, respectively. 8. It is the further case of plaintiff that the defendants did not perform their obligations under Ex.A.1., by receiving the balance sale consideration and executing the sale deed, though, the plaintiff was ready and willing to perform all his obligations vide Ex.A.1. It is also the case of the plaintiff that owing to this, plaintiff caused a notice through lawyer dated 12.09.2008, to be issued to the defendants and all the four defendants have refused to receive the lawyer's notice. The lawyer's notice dated 12.09.2008, together with the four returned envelopes showing postal endorsements as refused have been marked as Exs.A.9 and A.10, in the trial Court. To be noted, Ex.A.9 is dated 12.09.2008 and Ex.A.10 is dated 15.09.2008. It is also the further case of the plaintiff that he had been to the jurisdictional Registrar's Office, expecting execution of the sale deed. To support this, two documents in which the plaintiff has signed as witnesses were marked as Exs.A.11 to A.12. Exs.A.11 and A.12 are dated 16.09.2008. Plaintiff had also filed his bank account extracts as Ex.A.13. 9. Plaintiff examined himself as P.W.1 and one Maheshwaran, whom according to the plaintiff is a witness to the aforesaid endorsements in Ex.A.1., was examined as P.W.2. To be noted, he is a witness to endorsement which has been marked as Ex.A.8. 10. On the side of the defendants, a common written statement dated 27.01.2009 was filed. This written statement contains six paragraphs and runs to 1 + pages. A perusal of the written statement would reveal that the only defence taken by the defendants is that the plaintiff has not performed his obligations under Ex.A.1. This is articulated in paragraph No.4 of the written statement and the same reads as follows: XXX 11. On the aforesaid rival pleadings, trial Court framed five issues, which read as follows: XXX 12. Parties went to trial. 13. Witnesses examined on behalf of the plaintiff and the documents marked on behalf of the plaintiff have already been set out supra. On the aforesaid rival pleadings, trial Court framed five issues, which read as follows: XXX 12. Parties went to trial. 13. Witnesses examined on behalf of the plaintiff and the documents marked on behalf of the plaintiff have already been set out supra. In other words, two witnesses P.W.1 and P.W.2 were examined on behalf of the plaintiff and 13 documents namely, Exs.A.1 to A.13 were marked on the side of the plaintiff. On the side of the defendant, D.2., Periyathambi, examined himself as D.W.1, but no documents were marked. 14. In the aforesaid scenario in the trial Court, after examination of the deposition i.e., oral evidence and documentary evidence, the trial Court decreed the suit as prayed for with costs vide judgment and decree dated 18.02.2010. Aggrieved by the aforesaid decree made by the trial Court, the instant first appeal i.e., A.S.[MD]No.166 of 2010, has been filed in this Court by the four defendants under Section 96 of 'Code of Civil Procedure, 1908' [hereinafter referred to as 'CPC' for brevity]. This first appeal was filed on 30.03.2010, to be precise. 15. After dismissal for default and restoration, it is now before this Court for final disposal, post restoration. 16. From the narrative supra, it will be clear that defendants 1 to 4 are appellants 1 to 4 respectively, in the instant first appeal and the sole plaintiff in the trial Court is the lone respondent before this Court. However, for the sake of convenience and clarity, parties shall continue to be referred to by their respective ranks in the trial Court. 17. In the final disposal of the first appeal before this Court today, I heard the submissions of Mr.T.S.Mohamed Mohideen on behalf of all the four defendants and Mr.M.A.M.Raja, on behalf of sole plaintiff. 18. Ten grounds have been raised in the memorandum of grounds of first appeal and today, four more additional grounds have been placed before this Court. This Court is examining the instant second appeal as a last Court of facts under Section 96 CPC and therefore, all the 14 grounds are considered. 19. In the backdrop of the 14 grounds that have been raised by the defendants, Mr.T.S.Mohamed Mohideen, learned Counsel submitted that the sheet anchor submission on behalf of the defendants for assailing the judgment and decree of the trial Court is two fold. 19. In the backdrop of the 14 grounds that have been raised by the defendants, Mr.T.S.Mohamed Mohideen, learned Counsel submitted that the sheet anchor submission on behalf of the defendants for assailing the judgment and decree of the trial Court is two fold. According to the learned Counsel, one ground is that Ex.A.1, is only a loan document. In an attempt to bolster and buttress this submission, learned Counsel submitted that Defendant No.2, who deposed as D.W.1., has spoken about execution of Ex.A.1 and this has been completely ignored by the trial Court. The second aspect of the sheet anchor submission on behalf of the defendants is that the endorsements in Ex.A.1., both with regard to extension of time frame and with regard to further payment towards advance and part payment of consideration were all signed only by second defendant. According to learned Counsel, this will not bind the other defendants i.e., Defendants 1, 3 and 4. 20. Mr.M.A.M.Raja, learned Counsel appearing for the plaintiff disputed these submissions by saying that Ex.A.1., is not a loan document and it was executed by the defendants knowing fully well that it is a sale agreement. It is also the further submission of the learned Counsel for the plaintiff that Defendant No.2 alone being a signatory to the endorsements in Ex.A.1 and the further submission that it therefore does not bind the other defendants is untenable. 21. As this is a first appeal under Section 96 CPC, in accordance with the mandate under Order XLI Rule 31 of CPC, this Court, now proceeds to formulate the points for consideration / determination. Points for consideration / determination are as follows: (i) Whether Ex.A.1 is a mere loan document and not a sale agreement? (ii) Whether the endorsements in Ex.A.1 have been made only by second defendant and therefore whether it does not bind the other defendants? (iii) Whether the trial Court has dealt with and answered the five issues formulated by the trial Court in accordance with law and in the light of correct appreciation of the oral and documentary evidence placed before it? 22. Having formulated the points for determination / consideration in accordance with Order XLI Rule 31 of CPC, this Court now proceeds to examine the instant appeal, which is under Section 96 CPC. 23. 22. Having formulated the points for determination / consideration in accordance with Order XLI Rule 31 of CPC, this Court now proceeds to examine the instant appeal, which is under Section 96 CPC. 23. Let us now examine the first point for determination i.e., whether Ex.A.1 is a mere loan document and not a sale agreement? 24. A perusal of Ex.A.1., shows that the recitals and covenants therein, clearly make it a sale agreement. There is no mention whatsoever about any loan transaction between the documents. Furthermore, the signatures of the parties in Ex.A.1 are not disputed. The ground on which Ex.A.1 is attacked is that the deposition of D.W.1., i.e., second defendant before the trial Court is to the effect that Ex.A.1 is only a loan document. This takes us to the deposition of second defendant, who examined himself as D.W.1. 25. Learned Counsel Mr.T.S.Mohamed Mohideen, took me through the relevant portion of the deposition and the same is contained in paragraph No.4. Paragraph No.4 reads as follows: XXX 26. A perusal of paragraph No.4 being deposition in chief reveals that the deposition of D.W.1 is to the effect that the defendants approached the plaintiff for loan for development of their business, but the plaintiff made it clear that he was not willing to lend money for interest and that he was interested only in purchasing the suit property and he is willing to advance money, if the defendants agree to sell the suit property. Therefore, left with no option, defendants reluctantly entered into Ex.A.1., is what can be deciphered from the deposition of D.W.1. Merely because parties to a document or parties to a contract have entered into a contract reluctantly, that will not vitiate the document. More importantly, by the aforesaid deposition, it gets established that Ex.A.1 was in fact executed by the defendants. In other words, the deposition is to the effect that Ex.A.1 was executed by the defendants. Whether it was done because the defendants did not have any other option or because it was a case of Hobson's Choice for the defendants does not in any manner vitiate the document. 27. Be that as it may, the more important aspect of the matter is, there is absolutely no pleading whatsoever in this regard, in the written statement in the trial Court. 27. Be that as it may, the more important aspect of the matter is, there is absolutely no pleading whatsoever in this regard, in the written statement in the trial Court. This Court has already alluded to the pleadings of the defendants in the trial Court. The only defence that was pleaded was that the plaintiff was not ready and willing to perform his obligation under Ex.A.1, which is articulated in paragraph No.4 of the written statement, which has been extracted supra. Other than this, there is no whisper whatsoever, particularly with regard to Ex.A.1, being a loan document. Therefore, the extent to which the oral evidence of D.W.1 can be believed also becomes extremely suspect. It obviously comes across as a clear case of afterthought. If there is any truth in the deposition of D.W.1., that has been extracted supra, that would have been articulated by way of pleadings in the written statement. In the absence of complete pleadings in this regard, it can only be construed as an afterthought or an averment which is not true. Therefore, this Court has no difficulty in answering the first point for determination in favour of the plaintiff, by holding that Ex.A.1., is in fact a sale agreement. In other words, the arguments that Ex.A.1 is only a loan document is not sustained. 28. This takes us to the next point of determination which pertains to Defendant No.2 alone signing the endorsements in Ex.A.1. To be noted, there are three extensions and four further payments in Ex.A.1. As alluded to supra, the three extensions have been marked as Exs.A5, A.7 and A.8. The further payments have been marked as Exs.A.2, A.3, A.4 and A.6. Sitting as a last Court of facts and exercising appellate jurisdiction under Section 96 CPC, this Court very carefully examined Ex.A.1., independently. Learned Counsel for plaintiff Mr.Raja, pointed out that it is incorrect to say that the second defendant alone has signed all the seven endorsements. 29. On a careful and close perusal of Ex.A.1 by this Court, it is seen that atleast two extensions namely, Exs.A.5 and A.6 have been signed by all the four defendants. It is incorrect to say that all the seven endorsements were signed only by the second defendant. 29. On a careful and close perusal of Ex.A.1 by this Court, it is seen that atleast two extensions namely, Exs.A.5 and A.6 have been signed by all the four defendants. It is incorrect to say that all the seven endorsements were signed only by the second defendant. This Court also examined the signatures of the four defendants and compared the same with the signatures of the four defendants in the vakalatnamah, which forms part of the court file. Even to the naked eye and to a simple comparison, it comes out clearly that the four defendants have signed Ex.A.5 as well as Ex.A.6. As mentioned supra, the signatures of the parties were never put in dispute in the Court below. It is not in dispute before this Court either. Therefore, the submission that all the seven endorsements were made only by the second defendant and therefore, it does not bind the other defendants cannot be sustained. In this view of the matter, after a careful, close and profound examination of the documentary and oral evidence by independent analysis of the same, this Court comes to the conclusion that all the four defendants are parties not only to Ex.A.1., but are also parties to atleast two of the endorsements therein. 30. Furthermore, a common written statement has been filed in the trial Court and one common Counsel has appeared for all the four defendants. This position is no different in this Court also. Therefore, this also is a buttressing factor to negative the submission that endorsements made by Defendant No.2 alone will not bind the other defendants. In any event all endorsements have not been made by defendants No.2 alone. Furthermore, all the endorsements are in the same document i.e., Ex.A.1. To be noted, not only the same document, Exs.A.2 to A.7 endorsements are in the same page. 31. This takes us to the last and third point formulated for determination and consideration. To be noted, the last and third point formulated by this Court for consideration / determination turns on whether the trial Court has returned findings which are in tandem with the oral / documentary evidence as well as the obtaining position of law in the light of the five issues that have been framed by the trial Court. The five issues framed by the trial Court have already been extracted supra. The five issues framed by the trial Court have already been extracted supra. It will be clear that issues 1, 2 and 3 pertain to the specific performance aspect of the suit. A careful perusal of the three issues before the trial Court will demonstrate that all the three issues turn on whether the plaintiff was ready and willing to perform his obligations under Ex.A.1. Issue No.4 pertains to injunction qua alienation of suit property. It is nobody's case that there has been further alienation and therefore, this is of no consequence in the instant first appeal. 32. As alluded to supra, Issues 1, 2 and 3 in the trial Court turn heavily on whether the plaintiff was ready and willing to perform his obligations under Ex.A.1. In other words, legally speaking, it turns on Sub Section '(c)' of section 16 of the Specific Relief Act, 1963. Before proceeding further, it is deemed appropriate to extract Sub Section '(c)' of Section 16 and the same reads as follows: "16. Personal bars to relief:- .... (a) ...... (b) ...... (c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. Explanation.- For the purposes of clause (c), -- (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court; (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.? 33. It may be necessary to look at Section 16(c) together with the two explanations therein. 34. In the instant case, a careful perusal of the judgment of the trial Court which has been called into question will show that the plaintiff has deposited the entire balance sale consideration of Rs. 6,83,000/- in the trial Court. This is articulated in paragraph No.13 of the trial Court judgment and I deem it appropriate to extract that portion of paragraph No.13 of trial Court judgment, which is of relevance and the same reads as follows: XXX 35. 6,83,000/- in the trial Court. This is articulated in paragraph No.13 of the trial Court judgment and I deem it appropriate to extract that portion of paragraph No.13 of trial Court judgment, which is of relevance and the same reads as follows: XXX 35. Besides this, from the four endorsements in Ex.A.1., i.e., endorsements which have been marked as Exs.A.2, A.3, A.4 and A.6, it will be clear that the plaintiff has periodically paid further sums of money at regular intervals to the defendants. These monies have been paid by way of further advance as well as further part of sale consideration. The exact quantum and the dates have already been set out supra. 36. Besides this, the suit notice being Ex.A.9., caused to be issued by the plaintiff through his lawyer being lawyer's notice dated 12.09.2008 to all the four defendants have been returned by all the four defendants. To be noted, all the four defendants have refused to receive the suit notice. Therefore, on this ground also, the plaintiff cannot be faulted and it cannot be said that the plaintiff was not ready and willing to perform his part of the contract, i.e., sale agreement Ex.A.1. Most importantly as alluded to supra, it is the specific case of the plaintiff that he went over to the jurisdictional Sub-Registrar's Office and waited there on 16.09.2008 in the fond hope that the defendants will turn up, receive the balance sale consideration and execute the sale deed supra, Ex.A.1. To support and buttress this, plaintiff, as mentioned supra, has marked two documents being Exs.A.11 and A.12. Exs.A11 and A.12 are documents registered in the jurisdictional Sub-Registrar's office between third parties, in which the plaintiff has signed as a witness. The deposition of plaintiff in this regard is also in tandem with the pleadings and the documents that have been placed before the Court below. After careful analysis of all these aspects of the matter and after alluding to the case laws in this regard, the trial Court has returned a finding that the plaintiff has proved that he was always ready and willing to perform his obligations under Ex.A.1. This is articulated by the trial Court in paragraph No.19 of the judgment of the trial Court, which reads as follows: XXX 37. This is articulated by the trial Court in paragraph No.19 of the judgment of the trial Court, which reads as follows: XXX 37. There is nothing that has been placed before this Court in the instant regular first appeal under section 96 CPC, to show that the trial Court fell in error in returning the aforesaid finding regarding readiness and willingness of plaintiff to perform his obligations under Ex.A.1. 38. For that matter, nothing has been placed before this Court in this appeal, to show that any other findings of the trial Court are erroneous. There is also nothing to show that appreciation of evidence [oral and documentary] by the trial Court is perverse much less that it is so perverse that it warrants interference under Section 96 CPC. 39. From the narrative supra, in addition to a careful perusal of the judgment of the trial Court, it emerges clearly that the appreciation of oral and documentary evidence is cogent and correct. 40. Most importantly, it has to be borne in mind that a prayer for specific performance is one where the Court before which the suit is laid sits in discretionary equitable jurisdiction. In other words, a decree for specific performance is a discretionary remedy which has been granted by the trial Court in the instant case at its discretion. As alluded to supra, a Court at first instance i.e., trial Court hearing a specific performance suit sits not only in discretionary jurisdiction but it also sits in equitable jurisdiction. In the instant case, the trial Court has exercised its discretionary equitable jurisdiction, after applying its mind to the oral and documentary evidence in favour of the plaintiff. Unless it is shown that the discretion or equitable remedy granted by the trial Court is extremely perverse or that it is not even a possible view that can be taken by the Court, the scope of interfering in such decrees is fairly limited. However, as a Court of last facts, this Court has also carefully applied its mind to the manner in which the trial Court has exercised its discretionary equitable jurisdiction and decreed the suit in favour of the plaintiff. As alluded to supra, the oral and documentary evidence have also been independently assessed by this Court for answering the points for determination Nos. 1 and 2 supra. 41. As alluded to supra, the oral and documentary evidence have also been independently assessed by this Court for answering the points for determination Nos. 1 and 2 supra. 41. To the mind of this Court, there is no difficulty in coming to the same conclusion that the suit laid by the plaintiff deserves to be decreed, as Ex.A.1 stands established and atleast some of the endorsements made therein have been signed by all the four defendants and most importantly, entire balance sale consideration had been deposited in full by the plaintiff in the trial Court. In other words, in applying the documentary, oral evidence and appreciating the same, this Court is of the view that on and independent application of mind, it would not come to a conclusion that is any different from the conclusion which the trial Court has come to. 42. At this juncture, as a last submission, Mr.T.S.Mohammed Mohideen, learned Counsel, requested this Court to consider decreeing this appeal without costs. Learned Counsel also pointed out that the trial Court has decreed the suit with cost and made a request to consider deleting the cost portion of the decree. Learned Counsel for defendants who are appellants before this Court requested this Court to exercise its equitable discretionary remedy to set aside the cost portion of the decree of the trial Court. 43. Considering the nature of the lis and the trajectory of this litigation thusfar in this Court, this Court in exercise of its equitable discretionary jurisdiction is of the view that this will be a fit case to not only confirm the decree without costs but also to set aside that limb of the decree of the trial Court pertaining to costs alone. 44. For the purpose of clarity, it is to be noted that the decree of the trial Court consists of four limbs and they are as follows: XXX 45. To be noted, Serial No.2 in the decree is missing. However, a perusal of the decree shows that, XXX 46. For the purpose of clarity, it is made clear that Serial Nos.1, 2 and 3 of the decree of the trial Court are confirmed. Serial No.4 of the decree of the trial Court pertaining to costs which reads as follows alone is set aside. XXX 47. However, a perusal of the decree shows that, XXX 46. For the purpose of clarity, it is made clear that Serial Nos.1, 2 and 3 of the decree of the trial Court are confirmed. Serial No.4 of the decree of the trial Court pertaining to costs which reads as follows alone is set aside. XXX 47. As mentioned supra, this appeal is dismissed confirming the aforesaid three limbs of judgment and decree of the trial Court but dismissed without costs. Aforesaid limb No.4 of the judgment of the trial Court pertaining to costs alone is set aside. 48. First Appeal allowed in part, pertaining to cost portion alone, confirming all other limbs of the decree of the trial Court. No costs.