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2019 DIGILAW 1369 (MAD)

Muthammal v. V. Thangavel

2019-04-29

R.PONGIAPPAN

body2019
JUDGMENT : R. Pongiappan, J. 1. The unsuccessful defendants 3 to 11 in O.S. No. 396 of 1996 on the file of the learned Additional Subordinate Judge, Dindigul, are the appellants herein. The respondent herein filed a suit in O.S. No. 396 of 1996 against these appellants for the relief of specific performance, directing the appellants to execute a sale deed in respect of the suit schedule property after receiving the balance sale consideration of Rs. 1,000/-. 2. The learned Additional Subordinate Judge, Dindigul, by Judgment and Decree dated 21.11.2005, decreed the suit in favour of the respondent herein. Aggrieved over the same, the appellants herein filed an appeal in A.S. No. 9 of 2006 before the learned Principal District Judge, Dindigul, seeking the relief of setting aside the decree passed by the learned Additional Subordinate Judge, Dindigul, in O.S. No. 396 of 1996. The learned Principal District Judge, Dindigul, by Judgment and Decree dated 14.03.2007, confirmed the findings arrived at by the Trial Court and dismissed the appeal. 3. Feeling aggrieved over the same, the appellants herein have preferred the present Second Appeal. 4. For the sake of convenience, the parties are referred to as, as prescribed before the Trial Court. 5. The averments made in the plaint are as follows: (i) On 07.07.1993, both the plaintiff and defendants entered into a sale agreement, in which, the defendants/appellants contracted to sell the suit property to the plaintiff/respondent, for a total sale consideration of Rs. 1,31,000/-. Out of the said total sale consideration, on the day itself, Rs. 60,000/- was paid by the plaintiff as advance, for discharging the mortgage loan of one Valliammal, pro-note loan and also for minor maintenance. Thereafter, possession of the suit property was handed over to the plaintiff on the same day. In the sale agreement, 10 months' time was stipulated for payment of the balance sale consideration of Rs. 71,000/-. After entering into the possession of the suit property, the plaintiff spent a sum of Rs. 50,000/- towards the improvement of the suit schedule property. Subsequent to that, since the defendants created encumbrance to the possession, the plaintiff filed a suit against the defendants in O.S. No. 710 of 1994 before the learned Additional District Judge, Dindigul, seeking the relief of permanent injunction, restraining the defendants therein from interfering with the peaceful possession of the property. 50,000/- towards the improvement of the suit schedule property. Subsequent to that, since the defendants created encumbrance to the possession, the plaintiff filed a suit against the defendants in O.S. No. 710 of 1994 before the learned Additional District Judge, Dindigul, seeking the relief of permanent injunction, restraining the defendants therein from interfering with the peaceful possession of the property. (ii) It is claimed by the plaintiff that on 08.07.1983, he discharged the mortgage loan of one Valliammal, for which, he obtained a receipt. In order to discharge the mortgage loan of one Muniappa Gounder and the pro-note loan, the first defendant, on 03.10.1993, out of the balance sale consideration of Rs. 71,000/-, received a sum of Rs. 50,000/- from the plaintiff and also issued a receipt. Now, out of the balance sale consideration of Rs. 21,000/-, the plaintiff paid a sum of Rs. 10,000/- to one Karuppusamy and a sum of Rs. 10,000/- to one Balasubramaniam, in the presence of the first defendant. According to the plaintiff, Rs. 1,000/- alone is the balance to be paid to the defendants towards balance sale consideration. (iii) It is further claimed by the plaintiff that he is always ready and willing to pay the balance sale consideration and for executing the sale deed, but, the defendants are not willing to execute the same. Hence, on 04.06.1996, the plaintiff issued advocate notice to the defendants and filed the suit. 6. The averments made in the written statement filed by the first defendant and adopted by 2nd to 9th defendants are as follows: (i) The suit properties are the ancestral property of defendants 1 to 9. In earlier, due to heavy financial crisis, on the advice of one Mr. V. Kasthuri Rengasamy Reddiar, the first defendant agreed to sell the suit properties, for a sum of Rs. 1,85,000/-. But, in order to reduce the stamp duty, the sale agreement was executed for a sum of Rs. 1,31,000/-. (ii) On the date of sale agreement, the mortgage loan of one Valliammal was discharged by the plaintiff by paying a sum of Rs. 30,000/- through the said V. Kasthuri Rengasamy Reddiar. Apart from that, the pro-note loan having by the defendant was also discharged by the plaintiff through the same person by paying Rs. 3,000/- and Rs. 6000/-. 1,31,000/-. (ii) On the date of sale agreement, the mortgage loan of one Valliammal was discharged by the plaintiff by paying a sum of Rs. 30,000/- through the said V. Kasthuri Rengasamy Reddiar. Apart from that, the pro-note loan having by the defendant was also discharged by the plaintiff through the same person by paying Rs. 3,000/- and Rs. 6000/-. Further, on the same day, the plaintiff entered into two separate agreements, in which, one agreement is entered with 6th, 8th and 9th defendants, agreeing to pay a sum of Rs. 25,000/- and another agreement is entered with the 3rd defendant agreeing to pay a sum of Rs. 7,000/-. According to the defendants, there are three agreements between the plaintiff and the defendants on 07.07.1993. But, the plaintiff did not pay the amount to the defendants as per the agreement made between them. On the other hand, the plaintiff paid Rs. 2,000/- to the 8th defendant, Rs. 2,000/- to the 3rd defendant, Rs. 1,000/- to the second defendant, Rs. 1,000/- to the 4th defendant, Rs. 300/- to the 5th defendant. The plaintiff spent a sum of Rs. 400/- towards travelling expenses and also a sum of Rs. 400/- for chit transaction. Therefore, the plaintiff paid a sum of Rs. 52,100/- alone as a initial payment for the sale agreement. It is false to state that the first defendant received a sum of Rs. 50,000/- from the plaintiff on 03.10.1993, for which, a receipt has also been issued. (iii) It is true that on the date of sale agreement itself, the possession was handed over to the plaintiff, it was done by believing the words of Mr. V. Kasthuri Rengasamy Reddiar. The suit properties are in good condition. Since properties are in good condition, there was no necessity for the plaintiff to spend a sum of Rs. 50,000/- towards the improvement of the said property. Since the plaintiff paid a sum of Rs. 52,100/- as a initial payment, he has to pay a sum of Rs. 1,32,900/- towards the balance sale consideration. But, the plaintiff claimed that he has to pay the sum of Rs. 1,000/- alone towards the balance sale consideration, which is not correct. Therefore, the plaintiff has not approached this Court with clean hands. 52,100/- as a initial payment, he has to pay a sum of Rs. 1,32,900/- towards the balance sale consideration. But, the plaintiff claimed that he has to pay the sum of Rs. 1,000/- alone towards the balance sale consideration, which is not correct. Therefore, the plaintiff has not approached this Court with clean hands. Further, since the plaintiff did not perform his part of contract within the stipulated time under the sale agreement, he is not entitled to get the equitable relief. (iv) Since the sale agreement was cancelled, It is the duty of the plaintiff to surrender the possession of the suit property. Instead of surrendering the possession of the suit property, the plaintiff fraudulently filed the suit against the defendants in O.S. No. 710 of 1994 for permanent injunction. In the said suit, all the defendants are set ex parte. The plaintiff ought to have filed a suit for specific performance only at the first instance. In view of the said fact, the present suit is not maintainable and is barred under Order II Rule 2 C.P.C. 7. The averments made in the written statement filed by the 11th defendant and adopted by the 10th defendant are as follows: The suit filed by the plaintiff is a false one. The plaintiff had not settled the loan amount, availed by the defendants, as mentioned in the sale agreement. He created a forged receipt for a sum of Rs. 50,000/- and thereby, tried to mislead the Court. Furthermore, the plaintiff is not a capable person for paying the balance sale consideration amount. Therefore, the plaintiff is not entitled to get the equitable relief and hence, the suit is liable for dismissal. 8. Based on the above pleadings, the trial Court framed necessary issues and tried the suit along with O.S. No. 430 of 1999, which was filed for recovery of possession and for mesne profits, by the defendants. 9. Before the trial Court, the plaintiff examined himself as P.W. 1. He examined one V. Kasthuri Rengasamy as P.W. 2 and marked ten documents as Exs. A1 to A10. On the side of the defendants, 8th defendant examined himself as D.W. 1. He examined three more witnesses as D.W. 2 to D.W. 4 and marked 15 documents as Ex. B1 to Ex. B15. 10. He examined one V. Kasthuri Rengasamy as P.W. 2 and marked ten documents as Exs. A1 to A10. On the side of the defendants, 8th defendant examined himself as D.W. 1. He examined three more witnesses as D.W. 2 to D.W. 4 and marked 15 documents as Ex. B1 to Ex. B15. 10. Having considered all the materials placed before him, the learned Additional Subordinate Judge, Dindigul, came to a conclusion that the payment made by the plaintiff towards sale consideration was clearly proved and therefore, the defendants cannot have any right to plead against the averment made in the sale agreement and finally, held that the plaintiff is entitled to equitable relief of specific performance and decreed the suit. 11. In the appeal, the learned Principal District Judge, Dindigul, by placing reliance on the receipt alleged to be issued by the defendant and believing the documents, i.e. Exs. A1, A4 and A5, came to a conclusion that the decree passed by the trial Court in favour of the plaintiff is found correct and therefore, dismissed the appeal. 12. Against the concurrent findings, the very same appellants in A.S. No. 9 of 2006 filed this Second Appeal. 13. At the time of admitting the second appeal, this Court formulated the following substantial questions of law: (i) Is not the present suit for specific performance barred under Order 2, Rule 2 of CPC as held in Judgment reported in 2006-2-LW-234 when the plaintiff has filed a suit in O.S. No. 714 of 1994 for permanent injunction at a time when the cause of action for seeking specific performance has already arisen and was very much available? (ii) Whether the plaintiff has any surviving right to sue in view of Exs. B8, dated 12.09.1997 as per which he has assigned the rights under the suit agreement in favour of one third person without any knowledge of the defendants? (iii) Are the courts below correct and justified in granting an equitable relief of specific performance for mere asking and also against the terms asked for by the plaintiff, despite finding the case of plaintiff regarding Ex. B4 and Ex. B5 and the balance to be paid, to be false and also finding suppression of material facts? Substantial Question of Law No. I 14. B4 and Ex. B5 and the balance to be paid, to be false and also finding suppression of material facts? Substantial Question of Law No. I 14. It is an admitted fact that previous to the filing of the suit, i.e. O.S. No. 396 of 1996, pertaining to this appeal, the plaintiff/respondent herein filed a suit against defendants in O.S. No. 710 of 1994 before the learned Additional District Munsif, Dindigul, seeking the relief of permanent injunction. A copy of the decree passed in O.S. No. 710 of 1994 was also marked as Ex. A3. 15. Now, on going through the decree passed in O.S. No. 710 of 1994, it appears that the plaintiff/respondent herein filed the said suit against one Kandhasamy Gounder (D1), one Balasubramanian, one Mahendra Balu and one Chinnarasu @ Chinna, seeking the relief of permanent injunction restraining them from interfering with the peaceful possession and enjoyment of the suit property. The suit property in this appeal and the suit property in O.S. No. 710 of 1994 are one and the same. 16. In this regard, the learned counsel appearing for the appellants rightly argued and relied upon the Judgment of this Court, reported in 2006 2 LW 234 (M/s. Raptakos Brett and Company Pvt. Ltd. Chennai vs. M/s. Modi Business Centre (Pvt.) Ltd., Chennai). 16.1. In the said judgment, while at the time of disposing the suit in C.S. No. 517 of 2003, this Court observed that since the earlier suit filed for the relief of declaration and injunction is based on the agreement, the second suit filed for the relief of specific performance based on the very same agreement is not maintainable and that the second suit was hit by Order II Rule 2 of C.P.C. 17. On the other hand, the learned counsel appearing for the respondent contended that the said preposition of law is now changed. In this regard, the learned counsel relied upon the Judgment of our Honourable Apex Court reported in 2018 (4) CTC 321 (Sucha Singh Sodhi (D) through Lrs. vs. Baldev Raj Walia and another), in which, our Honourable Apex Court has held as follows: "35. In this regard, the learned counsel relied upon the Judgment of our Honourable Apex Court reported in 2018 (4) CTC 321 (Sucha Singh Sodhi (D) through Lrs. vs. Baldev Raj Walia and another), in which, our Honourable Apex Court has held as follows: "35. Third, when both the reliefs/claims namely, (1) Permanent Injunction and (2) Specific Performance of Agreement are not identical, when the causes of action to sue are separate, when the factual ingredients necessary to constitute the respective causes of action for both the reliefs/claims are different and lastly, when both the reliefs/claims are governed by separate Articles of the Limitation Act, then, in our opinion, it is not possible to claim both the reliefs together on one cause of action." 18. Further, in the Judgment of our Honourable Apex Court reported in 2015 (1) LW 38 (Inbasegaran and another vs. S. Natarajan (Dead), through Lrs), it was held as follows: "26. ... However, when the precise cause of action upon which the previous suit for injunction was filed because of imminent threat from the side of the defendant of dispossession from the suit property then the subsequent suit for specific performance on the strength and on the basis of the sale agreement cannot be held to be the same cause of action. In the instant case, from the pleading of both the parties in the suits, particularly the cause of action as alleged by the plaintiff in the first suit for permanent injunction and the cause of action alleged in the suit for specific performance, it is clear that they are not the same and identical." 19. Applying the said proposition with the present case on hand, here also, the earlier suit filed by the plaintiff is only for the relief of permanent injunction and subsequently, the suit pertaining to this appeal has been filed for the relief of specific performance. Even though both the suits are based on the sale agreement dated 07.07.1993, as per the observation of our Honourable Apex Court, the cause of action is different in both the suits. 20. Hence, following the Judgment rendered by our Hon'ble Apex Court (cited supra), I am of the considered opinion that the present suit filed by the plaintiff is not barred under Order II Rule 2 C.P.C. Accordingly, substantial question of law No. I is answered in favour of the plaintiff. 20. Hence, following the Judgment rendered by our Hon'ble Apex Court (cited supra), I am of the considered opinion that the present suit filed by the plaintiff is not barred under Order II Rule 2 C.P.C. Accordingly, substantial question of law No. I is answered in favour of the plaintiff. Substantial Question of Law No. 2 21. It is the case of the plaintiff/respondent herein that on 12.09.1997, in respect to the sale agreement, he executed a made-over agreement in favour of one Kalimuthu. After executing the same, from the said Kalimuthu, he received Rs. 2,00,000/- as a advance amount with a condition that the balance of Rs. 1,51,000/- has to be paid to him at the time when the sale deed is executed in favour of the said Kalimuthu. The said made-over agreement was executed during the pendency of O.S. No. 396 of 1996. So, it discloses that after the filing the suit before the competent Forum, the said made over agreement was executed by the plaintiff/respondent herein with the said Kalimuthu. But, the particulars in respect to the said made-over agreement was not incorporated in the plaint by way of amendment. 22. It is the case of the defendants that the made-over agreement, which stands in the name of Kalimuthu, was executed by the plaintiff without their knowledge. Further, it is the case of the defendants that the said made-over agreement curtailed the right of the plaintiff to continue as plaintiff in O.S. No. 396 of 1996 also. 23. Now, In order to appreciate the arguments advanced by the learned counsel appearing for the appellants in this regard, it is necessary to see the recitals of the said document, which had been marked as Ex. B8, before the trial Court. In the said document, it has been mentioned by the plaintiff as follows: xxxxxxxxxxxxxxxxxx 24. The above recital clearly establishes that the right of the plaintiff/respondent herein has been made over in favour of one Kalimuthu. On the other hand, the genuinity of the said document is not disputed on either side. 25. It is needless to say that once the right has been made over in favour of, the right to sue having by the plaintiff will be come to an end. Hence, it is the duty of the plaintiff/respondent herein to implead the said Kalimuthu as one another plaintiff and proceed with the suit. 25. It is needless to say that once the right has been made over in favour of, the right to sue having by the plaintiff will be come to an end. Hence, it is the duty of the plaintiff/respondent herein to implead the said Kalimuthu as one another plaintiff and proceed with the suit. But, before the trial Court, no one has not take any steps to implead the said Kalimuthu as a party to the proceedings. In the said circumstances, even assuming that the suit is even ended in favour of the plaintiff, the Court cannot direct the defendants to execute the sale deed in favour of the present plaintiff. So, legally and logically, after the execution of Ex. B8, the plaintiff lost the right to continue the suit in O.S. No. 396 of 1999 as a plaintiff. Accordingly, substantial question of law No. 2 is answered in favour of the appellants. Substantial Question of Law No. III 26. It is a definite case of the defendants that after suppressing the material facts, i.e. the existence of Ex. B4 and B5, the plaintiff filed this suit against all defendants for the relief of specific performance. Ex. B4 is nothing but the sale agreement entered between the plaintiff and defendants 4, 6 and 7. Ex. B5 is also a sale agreement made between the plaintiff and the first defendant. Further, both the documents are executed on 07.07.1993. Now, on a close reading of the said document, it appears that even though the said documents are styled as sale agreement, through the said document, the plaintiff has only assured to give some amount to the defendants. 27. However, before the trial Court, the signature of the plaintiff found in the said documents (Exs. B4 and B5) was denied. Hence, the same was sent to the Forensic Department, Chennai, for getting expert opinion. During the time of examination by expert, it was identified by the Examiner that the signature found in Ex. B4 and Ex. B5 belongs to the plaintiff. D.W. 4, who is the Chemical Examiner had supported the case of the defendant stating that the signature found in Ex. B4 and Ex. B5 belongs to the plaintiff. 28. During the time of examination by expert, it was identified by the Examiner that the signature found in Ex. B4 and Ex. B5 belongs to the plaintiff. D.W. 4, who is the Chemical Examiner had supported the case of the defendant stating that the signature found in Ex. B4 and Ex. B5 belongs to the plaintiff. 28. In the said circumstances, it is to be noted that as per the case of the plaintiff, the crucial document, which is the sale agreement, was executed on the same day, i.e. on 07.07.1993. Further, the parties to the document in Ex. B4 and Ex. B5 are the parties in the suit filed by the plaintiff in O.S. No. 396 of 1996. Further the said documents are also related to the purchase of the suit schedule property by the respondent. So, the circumstances in and around Ex. B4 and Ex. B5 disclose that if really, the plaintiff has approached this Court with clean hands, there is no necessity for him to suppress the details of Ex. B4 and Ex. B5. The details of payments mentioned by the plaintiff in Ex. B4 and Ex. B5 are entirely different with the case of the plaintiff. 29. Moreover, as per the sale agreement dated 07.07.1993, the sale transaction should be completed within a period of ten months. Accordingly, the time would be over by 07.05.1994. But, the plaintiff sent the notice to the defendants as a first time only on 04.06.1996 after two years 11 months. Furthermore, the reason for the delay in sending the notice is not explained on the side of the plaintiff. Even though limitation is available to file a suit, for getting the relief of Specific Performance, the plaintiff has to prove his readiness and willingness from the date of inception of agreement. 30. In this regard, it is useful to refer the Judgment of our Hon'ble Apex Court reported in 2018 (9) SCC 805 (Jagjit Singh (dead) through Legal Representatives vs. Amarjit Singh), in which, our Honourable Apex Court has held as follows: "4. It is settled law that a plaintiff who seeks specific performance of contract is required to plead and prove that he was always ready and willing to perform his part of the contract. It is settled law that a plaintiff who seeks specific performance of contract is required to plead and prove that he was always ready and willing to perform his part of the contract. Section 16(c) of the Specific Relief Act mandates that the plaintiff should plead and prove his readiness and willingness as a condition precedent for obtaining relief of grant of specific performance. As far back as in 1967, this Court in Gomathinayagam Pillai v. Palaniswami Nadar held that in a suit for specific performance the plaintiff must plead and prove that he was ready and willing to perform his part of the contract right from the date of the contract up to the date of the filing of the suit. This law continues to hold the field and it has been reiterated in J.P. Builders v. A. Ramadas Rao and P. Meenakshisundaram v. P. Vijayakumar. It is the duty of the plaintiff to plead and then lead evidence to show that the plaintiff from the date he entered into an agreement till the stage of filing of the suit always had the capacity and willingness to perform the contract." 31. It is true, in respect of the immovable property, time is not essence of contract. However, it is the duty cast upon the plaintiff to prove his readiness and willingness from the date of entering into the contract. In fact, in the plaint, the plaintiff/respondent pleaded that he is always ready and willing to execute the sale deed. It is further pleaded on the side of the plaintiff that during the pendency of O.S. No. 710 of 1994, he requested the defendants to execute the sale deed. In the said circumstances, if really the defendants are not willing to execute the sale deed, it is the duty of the plaintiff to send a notice to the defendant with a request to come forward for executing the sale deed. In this case, the plaintiff has not taken any such steps. As such, sending of notice after two years will clinchingly prove that the plaintiff is not ready and willing to purchase the suit property. Accordingly, the plaintiff has not proved his readiness and willingness in performing his part of contract, according to Section 16-C of the Specific Relief Act. 32. As such, sending of notice after two years will clinchingly prove that the plaintiff is not ready and willing to purchase the suit property. Accordingly, the plaintiff has not proved his readiness and willingness in performing his part of contract, according to Section 16-C of the Specific Relief Act. 32. Now, the learned counsel appearing for the appellants/defendants would contend that for disposing the second appeal filed under Section 100 C.P.C., appreciation of evidence is not necessary. Only it is the bounden duty of this Court to answer the substantial question of law arisen, if any. 33. On the other hand, it is the contention of the respondent/plaintiff that interference of this Court is not necessary in the concurrent findings of the Courts below. 34. In this regard, on going through the Judgment of our Honourable Apex Court reported in 2005 (5) CTC 282 (Ramlal and another vs. Phagua and others), it was held as follows: ".... this power has to be exercised sparingly but if and when the Court is satisfied that grave injustice has been done it is not only the right but also the duty of the Court to reverse the error and the injustice and to upset the finding notwithstanding the fact that it has been affirmed earlier. This Court also held that it is not the number of times that a finding has been reiterated that matters. What really matters is whether the findings is manifestly unreasonable and unjust one in the context of evidence on record......." 35. Further, this Court, while disposing of the second appeal No. 426 of 1987 reported in 2000 (1) L.W. 853 (Narayanaswamy vs. Raman), observed as follows: "Though the findings of the two Courts below are concurrent, this Court is unable to sustain the Judgment of the Courts below as they have miserably failed to consider the material documents and oral evidence. The omission to consider the material documents and material portion of the evidence by the two Courts below is a valid ground for interference in the Second Appeal, even if it is against concurrent findings. The omission to consider the material documents and material portion of the evidence by the two Courts below is a valid ground for interference in the Second Appeal, even if it is against concurrent findings. Merely because the findings are concurrent, this Court is not helpless when it is demonstrated that the two Courts below have failed to advert or consider the material portion of the evidence or their appreciation of evidence is perverse or the findings recorded by the two Courts below are demonstrably incorrect on the face of the documentary evidence produced before the two Courts below. This Court is considering this appeal, being conscious of the pronouncement of the Apex Court as to the Court's power under Section 100 C.P.C." 36. Applying the said principle with this case on hand, in this case also, the Courts below have miserably failed to consider the material documents (i.e. Exs. B4, B5 and B8) and the oral evidence. Hence, this Court is of the opinion that since the plaintiff has not proved his readiness and willingness to perform his part of the contract and for the reason of suppressing the material facts, interference of this Court is necessary. Accordingly, substantial question of law No. III is answered in favour of the appellants. 37. In view of the above, the Second Appeal is allowed. The Judgment and Decree dated 14.03.2007 made in A.S. No. 9 of 2006 on the file of the learned Principal District Judge, Dindigul, confirming the Judgment and Decree dated 21.11.2005 in O.S. No. 396 of 1996 on the file of the learned Additional Subordinate Judge, Dindigul, is hereby set aside. No costs.