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2018 DIGILAW 3789 (MAD)

T. G. K. Bhoopathy v. S. Ashok Kumar

2018-10-12

T.RAVINDRAN

body2018
JUDGMENT T.Ravindran, J. In this second appeal, challenge is made to the Judgment and Decree dated 03.12.2013 passed in A.S.No.72 of 2013 on the file of the Principal District and Sessions Court, Erode, reversing the Judgment and Decree dated 30.04.2013 passed in O.S.No.104 of 2010 on the file of the Sub-Court, Perundurai. 2. Suit for Specific Performance or in the alternative for the refund of the advance amount. 3. The parties are referred to as per their rankings in the trial Court. 4. The case of the plaintiff, in brief, is that the suit properties belong to the defendants 1 & 2 and it is stated that the first defendant is a registered company and the second defendant is the Managing Director of the first defendant company and it is the case of the plaintiff that the defendants 1 & 2 agreed to sell the suit properties to him and pursuant thereof, on 23.05.2007 a written sale agreement was executed between the plaintiff and the defendants as regards the sale of the suit properties for a sale price of Rs. 4,95,320/- and it is further stated that on the date of the sale agreement, the plaintiff had paid a sum of Rs. 2,25,320/- towards the sale consideration as advance and the parties had agreed that the sale should be completed within a period of three years and further, it is stated that the defendants 1 & 2 agreed to discharge the debts borrowed by them from the Tamil Nadu Industrial Investments Corporation and Indian Overseas Bank, Erode, in its entirety and get back the original title deeds deposited with them and hand over the same to the plaintiff and also agreed to dismantle and remove the constructions put up on the suit properties prior to the sale and it is stated by the plaintiff that he is always ready and willing to perform his part of the contract and accordingly, demanding to execute the sale deed in favour of the plaintiff on receiving the balance sum. However, the defendants 1 & 2 had been postponing the same under some pretext or other and while so, the defendants insisted the plaintiff to pay a further sum in connection with the business needs and accordingly, the plaintiff paid a further sum of Rs. However, the defendants 1 & 2 had been postponing the same under some pretext or other and while so, the defendants insisted the plaintiff to pay a further sum in connection with the business needs and accordingly, the plaintiff paid a further sum of Rs. 2,40,000/- towards part of the sale consideration on 22.08.2008 and the same had been endorsed on the reverse of the sale agreement, even thereafter, the plaintiff made several demands to the defendants 1 & 2 to receive the balance sale consideration and execute the sale deed but the defendants 1 & 2 had been delaying the same on some lame excuses and hence, issued the notice dated 29.04.2010 to the defendants 1 & 2 calling upon them to receive the balance sale consideration and execute a sale deed and in response to the same, the defendants 1 & 2 sent a reply on 13.05.2010, they admitting the sale agreement in favour of the plaintiff, would state that they had sold the suit properties to the third defendant under three sale deeds dated 28.02.2007, 08.01.2008 and 08.01.2008 and it is also stated by them that the third defendant approached the second defendant to carry on his business jointly, with a view to discharge the debts of the second defendant and believing the same, accordingly, the second defendant had executed the sale deeds in favour of the third defendant. However, the third defendant had acted against the abovesaid assurance and failed to discharge the debts and the third defendant had left the business and all those facts put forth by the defendants 1 & 2 in the reply notice are denied by the plaintiff and the plaintiff issued a further notice on 14.05.2010 and despite the same, the third defendant failed to issue any reply and also failed to comply with the demand made by the plaintiff therein and the sale deeds executed by the defendants 1 & 2 in favour of the third defendant are not genuine, true and valid. No consideration passed under the abovesaid sale deeds and the title had not been validly conveyed in favour of the third defendant and possession was also not handed over to the third defendant pursuant to the same and the abovesaid sale deeds are not the true documents and hence, according to the plaintiff, he has been necessitated to lay the suit for appropriate reliefs. 5. 5. The case of the third defendant, in brief, is that the sale agreement had been created in collusion with the defendants 1 & 2 and clearly, the endorsement found in the sale agreement is also the outcome of the abovesaid collusion between the plaintiff and the defendants 1 & 2 and also it is stated that the exchange of notices between the plaintiff and the defendants 1 & 2 are only make belief affairs for creating a cause of action in laying the suit for specific performance. According to the third defendant, the suit properties as well as the other properties of the first defendant were mortgaged with Indian Overseas Bank, Main Branch, Erode, by way of an equitable mortgage dated 18.05.2006 by the defendants 1 & 2 and the mortgage abovestated, a registered one and entered as an encumbrance in respect of the suit properties on the file of the Sub-Registrar concerned and the plaintiff though aware of the abovesaid encumbrance, knowingly fabricated the sale agreement with the active connivance of the defendants 1 & 2 with a view to blackmail the third defendant and thereby get an unlawful enrichment. The Indian Overseas Bank being the mortgagee initiated SARFAESI proceeding against the defendants 1 & 2 and also expressed its intention to take possession of the suit properties on 27.02.2007 and again on 05.10.20017, the bank issued a notice to the first defendant about their taking of symbolic possession of the suit properties. The Indian Overseas Bank being the mortgagee initiated SARFAESI proceeding against the defendants 1 & 2 and also expressed its intention to take possession of the suit properties on 27.02.2007 and again on 05.10.20017, the bank issued a notice to the first defendant about their taking of symbolic possession of the suit properties. Further, on 09.10.2007, the bank had issued notice to the first defendant under Section 13(4) (8) SARFAESI Act and following the same, the bank also effected paper publication on 09.10.2007, the first defendant gave a letter to one P.K.Duraisamy Gounder representing Erode Annai Spinning Mills Private Limited and requested him to purchase the properties through private negotiations and on 15.10.2007, Erode Annai Spinning Mills Private Limited informed the first defendant about their willingness to purchase the suit properties through private negotiations and on the basis of the same, the first defendant, on 26.10.2007, informed the mortgagee Bank about his proposal to sell the suit properties privately and agreed to remit the sale amounts to the mortgagee Bank and the mortgagee bank granted necessary sanction on 10.11.2007 and accordingly, the third defendant being one of the directors in Erode Annai Spinning Mills Private Limited and as well as the son-in-law of P.K.Duraisamy gounder expressed his desire to the directors of Erode Annai Spinning Mills Private Limited to purchase the suit properties individually and the same having been given consent on 28.12.2007, the third defendant purchased the suit properties as well as the other properties of the defendants 1 & 2 for a valid consideration by way of a registered document dated 08.01.2008 and accordingly, the first defendant on 11.01.2008 requested the mortgage bank to return the original documents to the third defendant and following the same, the original documents were returned to the 3rd defendant and the plaintiff is aware of the sale deed dated 08.01.2008 in favour of the third defendant and in conclusion with the defendants 1 & 2, with a view to defeat the same, created the sale agreement by antedating the suit agreement as 23.05.2007 and the first defendant was heavily indebted and hence, the unsecured creditors of the first defendant filed a company petition in No.59 of 2008 before the High Court, Madras for winding up the company. However, prior to the same, the mortgagee bank had taken the possession of the suit properties and the official liquidator without knowing the same, inspected the properties of the first defendant and sealed the same in discharging of his official duty and thereupon, the third defendant took steps to de-seal the properties purchased by him by way of the registered sale deed dated 08.01.2008 and the High Court, Madras also by its order dated 22.10.2008 ordered to de-seal the properties and accordingly, the official liquidator also de-sealed the properties of 30.10.2008 and released the same in favour of the third defendant. The suit sale agreement is a fabricated document for a very low sum created in collusion with the plaintiff and the defendants 1 & 2 and the plaintiff is therefore not entitled to obtain anyone of the reliefs claimed in the plaint and accordingly, the suit is liable to be dismissed. 6. In support of the plaintiff's case, PW1 to PW3 were examined and Exs.A1 to A16 were marked. On the side of the defendants, DW1 was examined and Exs.B1 to B16 were marked. 7. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the trial Court was pleased to grant the relief of specific performance in favour of the plaintiff as prayed for. Challenging the same, the third defendant had preferred the first appeal. In the first appellate Court, it is seen that the additional documents have come to be marked on the side of the third defendant and accordingly, the same had come to be exhibited as Exs.B17 to B20. The first appellate Court, on an appreciation of the materials placed on record, both oral and documentary, accordingly, was pleased to set aside the Judgment and decree of the trial Court and thereby, declined the relief of specific performance granted in favour of the plaintiff by the trial Court and in the alternative, granted the relief of the refund of the advance amount paid by the plaintiff from the defendants 1 & 2 and impugning the same, the present second appeal has come to be laid. 8. 8. At the time of admission of the second appeal, the following substantial questions of law were formulated for consideration: "(1).Whether the First Appellate Court erred in law in dismissing the suit for specific performance filed by the appellant in the absence of any dispute as to the execution of the sale agreement, payment of advance, readiness and willingness on the part of plaintiff in performing his part of the contract under Ex.A1 dated 23.05.2007? (2).Whether the First Appellate Court is erred in law in declaring the title of the 3rd defendant under Ex.B-8 and Ex.B-10, particularly when the plaintiff being a prior agreement holder had a statutory charge over the suit property? (3). Whether the judgment of the First Appellate Court is vitiated in receiving the additional evidence even without complying with the mandate of Order 41 Rules 27 and 28 CPC? " 9. The suit has come to be laid by the plaintiff for the relief of specific performance on the basis of the sale agreement dated 23.05.2007 marked as Ex.A1. According to the plaintiff, the defendants 1 & 2 being owners of the suit properties agreed to convey the same in his favour by way of a written sale agreement dated 23.05.2007 for a sum of Rs. 4,95,320/- and it is stated that on the date of the sale agreement, the plaintiff had paid a sum of Rs. 2,25,320/- and it is the further case of the plaintiff that thereupon, at the request of the second defendant, he had paid a further sum of Rs. 2,40,000/- towards the sale consideration and therefore, it is stated that only the balance sum of Rs. 30,000/- remained to be paid and even though the plaintiff had been all along ready and willing to pay the balance sale consideration and get the sale transaction completed, it is contended that the defendants 1 & 2 had been avoiding the same on some pretext or the other and left with no other alternative, it is stated that he issued a legal notice and in response to the same, the defendants 1 & 2 had come with the false case as if they had sold the suit properties to the third defendant and hence, according to him, he has been necessitated to lay the suit for appropriate reliefs. 10. 10. Per contra, it is the case of the third defendant that the sale agreement projected by the plaintiff is a created document in connivance and collusion with the defendants 1 & 2 and it is stated that the defendants 1 & 2 have mortgaged the suit properties and the other properties to the Indian Overseas Bank, Erode by way of an equitable mortgage by deposit of the title deeds and it is stated that SARFAESI proceeding had been initiated by the mortgagee bank and following the same, the mortgagee bank had taken the possession of the suit properties and also endeavoured to sell the suit properties and at that point of time, it is the case of the third defendant, that through his intervention as detailed in the written statement, he had come forward to purchase the properties and accordingly, it is stated that he had purchased the suit properties on 08.01.2008 for a valid consideration and following the same, as per the request of the defendants 1 & 2, the original documents entrusted with the mortgagee bank, had been handed over to the third defendant and accordingly, it is stated that it is only the third defendant, who has a valid title to the suit properties and only with a view to defeat the title of the third defendant in respect of the suit properties, according to the third defendant, the sale agreement involved in the suit has been created by the plaintiff and the defendants 1 & 2 by antedating the same and therefore the suit laid by the plaintiff is liable to be dismissed. 11. In the light of the above scenario, it has to be seen as to whether the sale agreement is a true and genuine document. As rightly found by the first appellate Court, on a perusal of Ex.A1 sale agreement, it is seen that there are clear recitals contained therein that on the date of the sale agreement, the suit properties had been mortgaged with the bank by the defendants 1 & 2. As rightly found by the first appellate Court, on a perusal of Ex.A1 sale agreement, it is seen that there are clear recitals contained therein that on the date of the sale agreement, the suit properties had been mortgaged with the bank by the defendants 1 & 2. Thus, as seen from the abovesaid averments contained in the said agreement, when by way of the mortgage, the defendants 1 & 2 had left the custody of the title documents of the suit properties with the bank in continuation of the equitable mortgage created by them and when it is found that despite the same, the plaintiff having endeavoured to enter into a sale agreement with the defendants 1 & 2 as regards the suit properties, it has to be seen that whether the case of the plaintiff is a genuine one. As seen from the evidence adduced by the plaintiff examined as PW1, he would claim that he was having cash of Rs. 7,00,000/-, even on the date of the sale agreement and if that be so, nothing prevented the plaintiff from paying the entire sale consideration to the defendants 1 & 2 and obtain the sale deed in respect of the suit properties on the date of the sale agreement. On the other hand, knowing fully well that the plaintiff could not obtain the sale deed from the defendants 1 & 2, owing to the pendency of the mortgage debt with the bank, it is seen that the case of the plaintiff that he had been always ready and willing to part with the sale consideration as such cannot be readily accepted. 12. In addition to that, as seen from the evidence of PW1, he has clearly admitted that he knew very well that the suit properties had been mortgaged with the bank. However, he would state that he does not know as to the particulars of the mortgage transaction and for what amount the suit properties had been mortgaged with the bank and further, he would state that he had not enquired with reference to the same and also not verified the documents as regards the same and thus, it is found that, as determined by the first appellate Court, with closed eyes, the plaintiff seems to have endeavoured to enter into the sale agreement with the defendants 1 & 2 qua the suit properties. If the plaintiff had made a cursory verification of the details of the mortgage created by the defendants 1 & 2 with the bank, he would have noted that the mortgage amount is on the higher side. Therefore, knowing fully well that the suit properties had been mortgaged with the bank and despite the same, the case projected by the plaintiff, that without verification of the details of the abovesaid mortgage, he had endeavoured to purchase the suit properties from the defendants 1 & 2 based on the sale agreement marked as Ex.A1, as such, cannot be readily accepted. 13. Further, as noted by the first appellate Court, it is seen that the mortgagee bank had already initiated the proceeding against the defendants 1 & 2 under the SARFAESI Act and this could be seen from the notice dated 27.02.2007 marked as Ex.B1, which is much prior to the sale agreement Ex.A1. Following Ex.B1, it is seen that the mortgagee bank had also taken the possession of the suit properties under the SARFAESI Act and the same could be evidenced from Ex.B2 dated 05.10.2007. In such view of the matter, to say that despite the abovesaid proceeding, the plaintiff had entered into the sale agreement with the defendants 1 & 2 with reference to the suit properties cannot be believed and accepted. Furthermore, as could be seen from the publication given by the mortgagee bank in the newspaper marked as Ex.B3 dated 09.10.2007, the mortgagee bank had put on notice to one and all about the mortgage, their taking possession of the suit properties on 05.10.2007 and in such view of the matter, the case of the plaintiff that he had still ventured to pay a further sum of Rs. 2,40,000/- to the defendants 1 & 2 on 22.08.2008 towards the balance sale consideration as such cannot be readily believed and accepted. In this connection, it is to be noted that when the mortgagee bank had proceeded to initiate SARFAESI proceeding against the defendants 1 & 2 as regards the suit properties and the plaintiff had also been put on notice about the same and the plaintiff not even endeavouring to make any enquiry as regards the details of the same as deposed by him, as rightly found, the case of the plaintiff is seen to be very highly doubtful and improbable. Further, if really, as per the case of the plaintiff, the defendants 1 & 2 are required to discharge the mortgage debt and hand over the title deeds to the plaintiff, the defendants would have endeavoured to discharge the mortgage debt and on the other hand, the mortgagee bank is found to have initiated the SARFAESI proceeding against the defendants 1 & 2, despite the same, the case projected by the plaintiff that he had paid a further sum of Rs. 2,40,000/- on 22.08.2008 as such cannot be believed and accepted in any manner. Thus, it is found that no plausible reason seems to have been offered by the plaintiff with regard to the availability of the suit properties at the hands of the defendants 1 & 2 in conveying the sale deed with regard to the same in favour of the plaintiff. Conveniently, in this case, the defendants 1 & 2 had remained exparte and it is only the third defendant, who is contesting the plaintiff's case. 14. As regards the explanation given by the plaintiff for advancing the further sum of Rs. 2,40,000/-, according to the plaintiff, he was not ready to proceed further the sale transaction without the clearance of the mortgage created with the bank. Such being the position, when the materials had been placed on record to show that the suit properties had been mortgaged to the bank by the defendants 1 & 2 and the bank had also taken the SARFAESI proceeding against the defendants 1 & 2 by initiating the action against the suit properties, in such view of the matter, the case of the plaintiff that he has been always ready and willing to perform his part of the contract as such cannot be readily accepted. 15. Furthermore, when according to the plaintiff, the sale price had been fixed at Rs. 4,95,320/- and he has already paid a sum of Rs. 2,25,320/- on the date of the sale agreement and if the plaintiff is possessed of the sufficient means and capacity and the suit sale agreement is a true and genuine document, there is no need for the parties to fix an outer time limit of three years for completing the sale transaction. 2,25,320/- on the date of the sale agreement and if the plaintiff is possessed of the sufficient means and capacity and the suit sale agreement is a true and genuine document, there is no need for the parties to fix an outer time limit of three years for completing the sale transaction. This itself would expose the falsity of the sale agreement and thereby, it is seen that the case of the third defendant that the sale agreement Ex.A1 had been brought about by the defendants 1 & 2 with the plaintiff in collusion, as such, cannot be easily discarded. 16. It is the case of the third defendant that at the intervention of the third parties, he had offered to purchase the suit properties and accordingly, the mortgage bank also agreeing and giving consent for the private sale of the suit properties, it is found that the third defendant had purchased the suit properties by paying a huge sum to the defendants 1 & 2, accordingly, it is seen that following the purchase of the suit properties by the third defendant, a sum of Rs. 1,76,00,000/- had been deposited in the account of the first defendant and the same could be evidenced from additional documents projected in the matter. In this second appeal, much hue and cry has been putforth by the appellant's counsel that the first appellate Court has erred in entertaining the additional documents projected by the third defendant. However, as seen from the reasonings of the first appellate Court in accepting the additional documents, according to the first appellate Court, though the third defendant had produced, the sale document with reference to the purchase of the suit properties and other necessary documents, inasmuch as the sale deed projected only mentioned a sum of Rs. 8,93,200/- as having been paid, however, as per the case of the third defendant, taking into account that the franchise right had also been obtained by the third defendant and accordingly, a sum of Rs. 8,93,200/- as having been paid, however, as per the case of the third defendant, taking into account that the franchise right had also been obtained by the third defendant and accordingly, a sum of Rs. 1,76,00,000/- had been credited in the bank account of the first defendant and only with a view to evidence the same, the first appellate Court had chosen to mark the additional documents and the first appellate Court is found to have not discountenanced the plaintiff's case or accepted the third defendant's case mainly on the basis of the projected documents and the projected documents had come to be entertained by the first appellate Court, as according to the first appellate Court, those documents would be useful for the complete adjudication of the issues involved between the parties, furthermore, pointing out that the evidence, with reference to the additional documents, had already been tendered in the matter and the additional documents do not require any oral evidence as such, accordingly, chose to receive the same in support of the third defendant's case. Accordingly, noting that by way of the additional documents marked as Exs.B17 & 18, a huge sum has been credited in the bank account of the first defendant, it is seen that for acquiring franchise right of the first defendant's company in respect of the suit properties, the other amount had been utilised and thus, it is found that as determined by the first appellate Court, with a view to prevent the suit properties from being proceeded against under SARFAESI Act, the third defendant, at the request of the second defendant, has chosen to come forward to purchase the suit properties after the defendants 1 & 2 had obtained the consent of the mortgagee bank and accordingly, it is seen that following the purchase of the suit properties by the third defendant, the mortgagee bank had also parted with the original documents to him and in connection with the same, the documents had been exhibited in the matter, marked as Ex.B11 and B12. 17. 17. Considering the materials placed on record, when it is found that the suit properties had been mortgaged with the bank for a huge sum and accordingly, the defendants 1 & 2 are required to discharge the mortgage debt amounting to laks of rupees and the plaintiff also having been put on notice about the mortgage created by the defendants 1 & 2 with the bank qua the suit properties and despite the same, with closed eyes, he had endeavoured to purchase the suit properties from the defendants 1 & 2. If the plaintiff had been a bona fide purchaser, he would have endeavoured to enter into the sale agreement in respect of the suit properties inclusive of the clearance of the mortgage debt so as to enable the defendants 1 & 2 to discharge the same by receiving the said amount from the plaintiff. The position being above, to say that the plaintiff had entered into a sale agreement with the defendants 1 & 2 for the purchase of the suit properties for a meagre sum of Rs. 4,95,320/- on 23.05.2007 as such cannot be believed and accepted and when the materials placed on record go to show that the third defendant had ventured to purchase the suit properties for several lakhs of rupees and the same had been buttressed by the documents projected in the matter, as rightly determined by the trial Court, a serious suspicion revolves around the truth and genuineness of Ex.A1 sale agreement and thus, it is seen that, as rightly determined by the first appellate Court, the sale agreement seems to have been brought about by the plaintiff and the defendants 1 & 2 in collusion with the view to defeat the sale transaction created in favour of the third defendant. 18. Furthermore, as rightly determined by the first appellate Court, no resolution seems to have been passed by the defendants 1 & 2 as regards the sale of the suit properties in favour of the plaintiff. This also create suspicion in the sale agreement marked as Ex.A1. 18. Furthermore, as rightly determined by the first appellate Court, no resolution seems to have been passed by the defendants 1 & 2 as regards the sale of the suit properties in favour of the plaintiff. This also create suspicion in the sale agreement marked as Ex.A1. On the other hand, in respect of the sale of the suit properties in favour of the third defendant, necessary resolution had been passed by the first defendant and accordingly, the same also would only lead to the conclusion that Ex.A1 sale agreement had been fabricated at a later point of time by antedating the same and accordingly, the above factor also disentitle the plaintiff to obtain the discretionary relief of specific performance. 19. The sine qua non for obtaining the relief of specific performance is that the agreement holder should be always ready and willing to perform his part of the contract. Though the sale agreement has fixed three years period for completing the sale transaction, however, when it is found that there is no material placed on record worth acceptance to evidence that the plaintiff had been always ready and willing to perform his part of the contract by tendering the balance sale consideration and when it is found that the plaintiff for the first time has issued the notice only on 29.04.2010, after the expiry of the time fixed under Ex.A1 and accordingly, it is found that as determined by the first appellate Court and as argued by the third defendant, the exchange of notices between the plaintiff and the defendants 1 & 2 seem to have been created for the purpose of the case, with a view to develop a cause of action for laying the suit for specific performance. 20. 20. In addition to that, it is also noted that the same dispute had been pending between the third defendant's father-in-law and the second defendant in the High Court in C.S.Nos.687 & 688 of 2009 and accordingly, it is stated by the third defendant that in view of the same, the sale agreement had come to be concocted by the defendants 1 & 2 in collusion with the plaintiff and accordingly, when the proceedings pending on the file of the High Court would go to show that the dispute had been existing between the second defendant and the third defendant's father-in-law, all these would only to go to show that all is not well with the defendants 1 & 2 and the third defendant, despite the purchase of the suit properties by the third defendant as above discussed and accordingly, it is seen that the plaintiff is unable to establish the truth and validity of Ex.A1 sale agreement and if the plaintiff had been a prudent person, as determined by the first appellate Court, he would have not at all ventured to purchase the suit properties from the defendants 1 & 2, in the light of the heavy encumbrance created by the defendants 1 & 2 in respect of the suit properties and despite the same, the case of the plaintiff that he had proceeded to purchase the suit properties for a sum of Rs. 4,95,320/- without even caring to verify the particulars of the mortgage created with the bank, all would only go to show that, as determined by the first appellate Court, the plaintiff has failed to establish the genuineness and the validity of the sale agreement and equally, the plaintiff has also failed to establish his readiness and willingness on his part in completing the alleged sale agreement for entitling him to obtain the discretionary relief of specific performance. For the reasons aforestated, no reason is made out to interfere with the well considered judgment and decree of the first appellate Court. 21. The learned counsel for the first respondent, in support of his contentions, relied upon the decisions reported in (S.Ashok Kumar and another Vs.S.Subramaniam and another, (2017) 5 CTC 390 ) and (S.Mallika and two others Vs.R.Saravanan and another, (2016) 4 CTC 643 ). 21. The learned counsel for the first respondent, in support of his contentions, relied upon the decisions reported in (S.Ashok Kumar and another Vs.S.Subramaniam and another, (2017) 5 CTC 390 ) and (S.Mallika and two others Vs.R.Saravanan and another, (2016) 4 CTC 643 ). The principles of law outlined in the abovesaid decisions are taken into consideration and followed as applicable to the case at hand. 22. In the light of the abovesaid factors, the first appellate Court is right in dismissing the suit i.e. negativing the relief of specific performance prayed for by the plaintiff as he had failed to establish the genuineness and validity of the sale agreement and the payment of the sum as recited therein and his readiness and willingness in completing the sale transaction and considering the materials placed on record, when it is seen that the third defendant had truly purchased the suit properties at the intervention of the third parties and with the consent of the mortgagee bank following the resolution of the first defendant company and accordingly, the sale deed has come to be executed in his favour and he had also been parted with the original title deeds by the bank and when it is seen that Ex.A1 has not been established to be a true document and various suspicions surround the same, not having been dispelled by the plaintiff in the manner known to law and as above discussed, hence the plaintiff cannot take umbrage by contending that he is entitled to the suit properties as the prior agreement holder. When in fact the plaintiff has miserably failed to establish and dispel the suspicions encircling and circumventing the sale agreement relied upon by him as abovenoted, the first appellate Court having decided to receive the additional evidence for enabling it to adjudicate the issues involved in the matter completely and furthermore, when the additional evidence also do not require any oral evidence as such and when the first appellate Court has not disposed of the appeal in favour of the third respondent mainly relying upon the additional evidence and on the other hand, the first appellate Court is found to have disbelieved the sale agreement based on the other materials placed on record and thereby, declined the relief of specific performance and the additional documents had come to be relied upon by the first appellate Court only to ascertain whether the third defendant had also acquired franchise right of the first defendant's company as regards the suit properties, in such view of the matter, in my considered opinion, the act of the first appellate Court in receiving the additional evidence cannot be held to be in violence of the mandate of Order 41 Rule 27 and 28 of the CPC. The substantial questions of law formulated in this second appeal are accordingly answered against the plaintiff and in favour of the third defendant. In conclusion, the second appeal fails and accordingly, is dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed.