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2018 DIGILAW 2813 (MAD)

Kalyani Ammal v. Vinayaga Sundaram Pillai

2018-09-07

N.SATHISH KUMAR

body2018
JUDGMENT : C.M.P.(MD) No. 8288 of 2018 This application has been filed to condone the delay of 2527 days in preferring the Second Appeal against the judgment of the first appellate court in A.S.No.94 of 2010. 2. The reason assigned for such huge delay can be culled out from paragraph No.6 of the affidavit filed in support of this petition, which are as follows :- “6. I also humbly submit that the long delay is not due to my letharginess or negligent. This second appeal has become necessary only because of the production of Ex.A.11 in O.S.No.228/2014 and A.S.No.39/2017. I submit that I am not filing this second appeal in order to delay the proceedings in any way. Further if this second appeal is taken on file and heard along with my Second Appeal No. /2018, justice will be the only result. No prejudice will cause to the respondent if the delay is condoned and decided afresh on the question of facts and law. My only contention is that, if the said agreement Ex.A.11 is forged and not executed by the respondent, then what made him to file this in his O.S.228/2014 plaint as 11th document and marked it as Ex.A.11. How he could possess a xerox copy Ex.A.11 which according to him was not at all executed?” 3. The learned counsel appearing for the petitioner would contend that as the first appeal was dismissed in the year 2010 itself, thereafter, the owner of the property filed a suit in O.S.No.228 of 2014 for recovery of possession. In the above suit, he has filed a xerox copy of the subsequent agreement dated 11.09.1991, whereas in the previous suit in O.S.No.60 of 2003, he disputed the above agreement. Since in the subsequent suit, he himself has filed a xerox copy and exhibited as exhibit P.11, it has necessitated the present petitioner to file the present second appeal as against A.S.No.94 of 2010. 4. Before delving into the merits of the case, the facts which are relevant to dispose of this application can be culled out from the materials :- The petitioner has originally entered into an agreement with respondent for purchase of the property on 09.03.1989. On that date, he said to have paid Rs.5,000/-. Though six months time was granted to pay the remaining consideration, he could not pay, which resulted in to entering of second agreement, dated 22.07.1991. On that date, he said to have paid Rs.5,000/-. Though six months time was granted to pay the remaining consideration, he could not pay, which resulted in to entering of second agreement, dated 22.07.1991. After adjusting the previous payments, still there was a balance sale consideration to be paid by the petitioner. Thereafter, the balance sale consideration also could not be paid by him. Hence third agreement was entered on 11.09.1991. On that date, the entire sale consideration said to have been adjusted and paid to the vendor. Based on the above transaction, he has laid a suit in the year 2003 for specific performance in O.S.No.60 of 2003. The learned Trial Court, after analysing the evidence and materials negatived the suit, as against which, a first appeal was filed in A.S.No.94 of 2010, which was also dismissed. Thereafter, the petitioner kept quiet all these years. Only now, he has come before this Court to condone the delay of 2527 days. 5. It is also to be noted that in the mean while, the vendor namely the owner of the property instituted a suit for recovery of possession in O.S.No.228 of 2014. The above suit was decreed in favour of the vendor. As against which, the appeal preferred in A.S.No.39 of 2017 was dismissed. Against which, the present second appeal No.302 of 2018 has been preferred and is coming before me for admission. S.A.(MD) No. 302 of 2018 : 6. The main contention of the appellant in the second appeal No. 302 of 2018 is that the trial court and appellate court have not appreciated the document namely Ex.P.11, dated 11.09.1991, in the earlier occasion. Since the above document has been subsequently admitted by the plaintiff himself, in the subsequent suit, he is entitled to protect his possession on the basis of the part performance. Therefore, it is the contention of the learned counsel for the appellant that since he has paid the entire sale consideration and put in possession in furtherance of contract and continuing in the possession of the property, he is entitled to protect his possession. Therefore, the suit for recovery of possession is not maintainable. 7. In the light of the above submissions, I perused the entire materials. Therefore, the suit for recovery of possession is not maintainable. 7. In the light of the above submissions, I perused the entire materials. Since the application for condonation of delay of 2527 days in filing the second appeal as against the judgment of the first appellate court in A.S.No.94 of 2010 and the second appeal are in respect of the same property and between the same parties, I will dispose of both in this judgment. 8. On perusal of the entire materials, I find that the reasons assigned by the appellant in para No.6 of the affidavit cannot be given any importance. The reason mentioned in the affidavit for the delay lacks bonafide and only in order to re-adjudicate the issue already decided, this application has been filed with a delay of 2527 days. No doubt, the word “sufficient cause” has to be given liberal approach for advancing the substantial justice. At the same time, it does not mean that a party, who approached the Court with such huge delay need not give any reason. Further, the reason given for delay is also lacks bonafide. Therefore, delay of 2527 days cannot be condoned. 9. If really, the petitioner was intended to purchase the property or acted in furtherance of contract, he should have acted at the earliest point of time, when the first appeal itself was dismissed as against the suit filed by him in the year 2003. Only after taking up some minor inconsistencies in the subsequent suit, this application has been filed to nullify the decree and judgment of the Court or to delay its execution. Hence, I am of the view that this application filed to condone the huge delay of 2527 days cannot be entertained. If such applications are entertained, it will be only abuse of process of law. Hence, the application filed to condone the delay of 2527 days is dismissed. 10. Now, coming to the merits of the second appeal, the main contention of the appellant is that he is protecting his possession on the basis of Section 53-A of the Transfer of Property Act. It is to be noted that having entered into an agreement on 09.03.1989 and agreed to pay the entire sale consideration within 6 months, he could not pay the amount, which resulted subsequent agreement dated 22.07.1991. It is to be noted that having entered into an agreement on 09.03.1989 and agreed to pay the entire sale consideration within 6 months, he could not pay the amount, which resulted subsequent agreement dated 22.07.1991. Even after entering such agreement, he could not mobilize the balance amount of Rs.3,500/-, which resulted another agreement dated 11.09.1991. Only on 11.09.1991, the entire sale consideration said to have been adjusted and paid to the vendor. Having paid the sale consideration and taken possession in furtherance of the contract, he remained silent without taking any active steps to enforce the contract. Mere agreement or payment of consideration would not create any charge or interest over the immovable property. That being the position, he was a passive spectator and has first time come to the Court for enforcing the agreement only in the year 2003. The trial court dismissed the suit. The first appellate court has also dismissed the appeal. The conduct of the appellant filing a suit in the year 2003 itself clearly indicates that his mental attitude is not there in completing the transaction. Readiness and willingness are distinct acts. Readiness means capacity to mobilize the funds. Willingness is mental attitude. Only both go together and established by the agreement holder, he is entitled to specific performance. The very nature of the suit filed in the year 2003, after much delay clearly explains absence of willingness on his part. Be that as it may, since A.S.No.94 of 2010 was dismissed, as there was no second appeal, the vendor namely the owner of the property filed a suit O.S.No.228 of 2014. In the above suit, a defense was set up by the defendant to the effect that agreement dated 11.09.1991 was valid and not as forged, as held by the Trial Court and first appellate court in an earlier occasion in O.S.No.60 of 2003. Except relying agreement, in the entire written statement, he has not even pleaded to the effect that in pursuance of the contract, he was always ready and willing to perform his part of obligation. It is well-settled that to have the benefit under Section 53-A of the Transfer of Property Act, the following requirements are sine quonon :- “(i) existence of a contract for the transfer of immovable property. It is well-settled that to have the benefit under Section 53-A of the Transfer of Property Act, the following requirements are sine quonon :- “(i) existence of a contract for the transfer of immovable property. (ii) which should be in writing signed by the other party and the terms thereof should be ascertainable with reasonable certainty, (iii) the transferee in part performance of the contract should have either taken possession or continued in possession or have done some other act in furtherance of the contract. (iv) the transferee should perform or be willing to perform his part of the bargain set down in the writing, though (v) the doctrine would not be attracted against another transferee without notice of the contract or its part performance.” 11. Further the entire evidence oral as well as documentary evidence do not show the readiness and willingness on the part of the appellant. Further, there is no evidence to show that some active role has been played by the appellant in furtherance of a contract. He was a passive spectator, except defending the suit all these years, his evidence or materials do not show any act on his part to show that he has acted in furtherance of contract and he was always ready and willing to perform his part of the contract. In the absence of above facts, particularly absence of the pleadings in the written statement, further the requirements which are mandatory to invoke the benefit under Section 53-A of the Transfer of Property Act having not established. Appellant cannot protect his possession under Section 53-A of the Transfer of Property Act. It is further to be noted that his right to enforce the contract is already negatived by the Court, which already reached finality. Though he has filed an application to condone the delay of 2527 days, which is also dismissed by this Court. 12. In view of the same, he cannot simply squat on the property on the ground that he can protect the property, merely on the basis of earlier agreements which enforcements were also negatived by the Court. 13. Considering all these facts, I find no substantial question of law involved in this matter. Hence, S.A.(MD) No. 302 of 2008 is dismissed at the admission stage itself. Similarly, the application filed in C.M.P.(MD) No. 8288 of 2018 is also dismissed with costs.