Research › Search › Judgment

Madras High Court · body

2020 DIGILAW 1353 (MAD)

Athimuthu Manoharan v. B. Thilagavathi

2020-08-24

body2020
JUDGMENT : (Prayer: Appeal is filed under Section 96 of the Civil Procedure Code, against the judgment and decree dated 12.07.2007 passed by the learned Additional District Judge (Fast Track Court No.I), Thoothukudi, in O.S.No.29 of 2005.) 1. The defendants 1 and 2 are the appellants herein. The respondent No.1/plaintiff has filed a suit for specific performance of the suit Sale Agreement, dated 13.05.1994, wherein, the main relief in the suit is for specific performance of Sale Agreement which has culminated into Ex.A.4-Sale Agreement dated 11.03.1995. The defendants 1, 2 and 3 are the owners of the lay out. 2. The summary of the pleadings in the plaint is as under:- On 13.05.1994, the plaintiff and the first defendant have entered into a sale agreement fixing the unit price of 1 cent at Rs.3,050/- and within one year, the sale has to be completed and the first defendant has to execute the Sale Deed either in favour of the plaintiff or the person nominated on by her. The plaintiff entered into an agreement of sale based on the representation of the first defendant that it is an approved lay out and out of 109 plots, he is willing to sell the property and on believing the same, the agreement was entered into between the plaintiff and the first defendant and on 13.05.1994, a sum of Rs.1,15,000/- was paid by way of four cheques to be kept as a security and the four cheques are respectively for Rs.25,000/-, Rs.45,000/-, Rs.45,000/- and Rs.30,000/- and it is mutually agreed between the parties that the post dated cheques should not be encashed till the sale consideration is completed. Subsequently, on 30.05.1994, the first defendant has received a sum of Rs.3,00,000/- in cash and made an endorsement to that effect. In view of certain misunderstanding between the plaintiff and the first defendant, the said agreement could not be enforced as the first defendant has not produced the approved lay out plan. The plaintiff was waiting for the same. However, the first defendant has delayed the matter. In view of certain misunderstanding between the plaintiff and the first defendant, the said agreement could not be enforced as the first defendant has not produced the approved lay out plan. The plaintiff was waiting for the same. However, the first defendant has delayed the matter. Subsequently, on 11.03.1995, both the defendants 1 and 2 along with the third defendant have entered into a fresh agreement of sale wherein, newly price for a cent was fixed at Rs.3,150/- and defendants 1 and 2 have received a sum of Rs.1,40,000/- and agreed to execute the Sale Deed on or before 31.03.1995 and on 25.03.1995, the defendants 1 and 2 have received a sum of Rs.93,000/- in cash and accordingly, made an endorsement on the second agreement dated 11.03.1995. 3. The legal notice issued by the second defendant dated 13.02.1996 are all false. The plaintiff is not aware of the suit in O.S.No.70 of 1995 filed between the defendants. Thus, the plaintiff has paid a sum of Rs.1,15,000/- on 13.05.1994, Rs.3,00,000/- on 30.05.1994, Rs. 1,40,000/- on 11.03.1995 and Rs.93,000/- on 25.03.1995. However, as the plaintiff came to know about the execution of Sale Agreement by the third defendant in favour of the fourth defendant, the same is not binding upon her. Thus, as per the Sale Agreement, after deduction of the amount already paid, namely, the sale consideration as per the sale agreement is Rs.18,52,085/-, advance amount paid by the plaintiff is Rs.6,48,000/-. The balance is Rs.12,04,085/-. In spite of the repeated demands made by the plaintiff, the defendants evaded execution of Sale Deed and hence, she has filed the about suit in O.S.No.29 of 2005. 4. The summary of the written statement filed by defendants 1 and 2 is as under:- The subject matter of the suit property consisting of 160 plots and on 13.05.1994, four cheques have been given as a security and there was a mutual agreement between the parties. 4. The summary of the written statement filed by defendants 1 and 2 is as under:- The subject matter of the suit property consisting of 160 plots and on 13.05.1994, four cheques have been given as a security and there was a mutual agreement between the parties. While the plaintiff owned a land in Peelavattan Village in Millarpuram and for 25 cents, there was an agreement between the defendants and the plaintiff and a sum of Rs.3,00,000/- has been paid and the said consideration endorsing the suit sale agreement and in the endorsement found in the first agreement, there was no consideration because it is an agreement between the parties and the four cheques issued by the plaintiff were presented, however, the same has been returned as “insufficient funds” and "non-operative account". Furthermore, in respect of the land agreed to be sold by the plaintiff in favour of the defendants, it was also acquired by the Government for the Tamil Nadu Housing Board and hence, the plaintiff along with her husband has filed a complaint before the Deputy Superintendent of Police, Thoothukudi and in the police station, because of the criminal conspiracy committed by the plaintiff, both the agreements in favour of the plaintiff executed by the defendants and the agreement in favour of the defendants executed by the plaintiff, on 13.05.1994 were cancelled and due to the police complaint initiated therein, a new agreement was came into force and because of the police force, the third defendant has attested the document and all the alleged further payments are denied except some of Rs.2,23,000/- The original Sale Agreement dated 13.05.1994 was suppressed by the plaintiff, since it was a criminal conspiracy caused by her and it is specifically pleaded by the defendants that the Sale Agreements dated 13.05.1994 and 14.05.1994 were cancelled and the endorsement made by the first defendant for a sum of Rs.3,00,000/- is false and denied. The defendants had received a sum of Rs.1,40,000/- on 11.03.1995 and Rs.93,000/- on 25.03.1995, in toto, Rs.2,33,000/- alone was received by the defendants 1 and 2 and all other further payments alleged in the plaint are false and the agreement dated 11.03.1995 is an independent agreement and it does not have any nexus or continuity from the alleged previous agreement as stated in the plaint, since the same was cancelled. 5. 5. The gist of the written statement filed by the third defendant adopted by the fourth defendant is as follows:- The defendants 3 and 4 denies any agreement between the plaintiff and these defendants on 13.05.1994. The fourth defendant is the daughter-in-law of the third defendant. The defendants 5, 6 and 7 adopts the written statement of the fourth defendant. 6. Based on the above pleadings, the Trial Court has formulated as many as eight issues. 7. Before the trial Court, P.Ws.1 to 5 were examined. While the plaintiff examined herself as P.W.1, the husband of P.W.1 was examined as P.W.2. The attestors of Ex.A4-Sale Agreement were examined as P.W. 3 and P.W.4. P.W.5 is the Block Development Officer, who would depose that the files were missing in the office and so, he is not in a position to depose whether approval was granted or not. On behalf of the defendants five witnesses were examined D.Ws.1 to 5 and documents Exs.B.1 to B.29 were marked. 8. On consideration of both oral and documentary evidence adduced before the trial Court, it came to the conclusion that the sale agreement entered between the parties are enforceable and the plaintiff is ready and willing to perform his part of contract and there is a binding nature against the third defendant and his legal heirs. In view of the attestation in Ex.A5 sale agreement and the defendant being attestor of Ex.A5 sale agreement, the contents is binding upon him and accordingly, granted the specific performance of agreement dated 13.05.1994 and consequently, rejected the alternate relief of refund of advance amount. 9. Aggrieved against the said decree and judgment passed in O.S.No.29 of 2005, the defeated D-1 and D-2 have preferred the appeal. 10. Though the LRs of D-3 have not filed any separate appeal, they raised contentions as regards enforceability of agreement in respect of the land equal to 22 plots as referred to above. 11. Points for determination in this appeal are as follows:- 1. Whether the suit sale agreement is in existence or enforceability? 2. Whether the plaintiff is entitled for the relief of specific performance of the suit sale agreement? 3. Whether the respondent/plaintiff is ready and willing to perform her part of contract? 4. Whether the respondent/plaintiff is entitled for the alternate relief of refund of amount as claimed?, if so, to what extent? 5. 2. Whether the plaintiff is entitled for the relief of specific performance of the suit sale agreement? 3. Whether the respondent/plaintiff is ready and willing to perform her part of contract? 4. Whether the respondent/plaintiff is entitled for the alternate relief of refund of amount as claimed?, if so, to what extent? 5. Whether the order of the trial Court is sustainable in law? 12. The learned counsel for the appellants/defendants 1&2 would submit that the plaint averments are false and the plaintiff has come forward with false plea of further payment of Rs.3,00,000/- and Rs. 3,00,000/- has been given credit to the second agreement based upon a separate agreement of sale between the parties in respect of alleged ownership of the plaintiff's land. However, subsequently, it was found to be the land already acquired by the Housing Board. Though no objection has been raised for marking the document, endorsement for Rs.3,00,000/- was separately marked. Total payment as pleaded in the plaint has found to be variation with the second agreement dated 11.03.1995. The alleged pleading as if besides Rs.1,15,000/- another sum of Rs.1,40,000/- was paid at the time of Ex.A5 agreement is not a specific recital in the said agreement and therefore, would contend that the payment alleged in the plaint regarding Rs.1,40,000, Rs.1,15,000/- and Rs.93,000/- are all false besides the payment in respect of Rs.3,00,000/-. The said amount was not paid to the defendant. Furthermore, in the absence of any recital in Ex.A5 agreement, there cannot be any excess payment over and above Rs.1,15,000/- paid under the first agreement. 13. The learned counsel for the appellants further stated that it is the defendants/appellants, who had issued Ex.A1 notice at the first instance calling upon the plaintiff to comply with the terms of the agreement and for which, there was no reply. Furthermore, under Ex.B7 dated 05.12.1995, again issued by the defendant no reply by the plaintiff and lastly Ex.A7 was replied by the plaintiff to the defendant. According to the appellants' counsel, a combined reading of the pre-suit notice exchanged between the parties under Ex.A1, Ex.A2, Ex.A7, and Ex.B7 goes to show that there is a false plea of payment. Furthermore, under Ex.B7 dated 05.12.1995, again issued by the defendant no reply by the plaintiff and lastly Ex.A7 was replied by the plaintiff to the defendant. According to the appellants' counsel, a combined reading of the pre-suit notice exchanged between the parties under Ex.A1, Ex.A2, Ex.A7, and Ex.B7 goes to show that there is a false plea of payment. Though the plaintiff alleged that approved lay out plan was not given, it was already approved even in the year 1992 and approval number is also mentioned in both the agreement and hence, he has not come to the Court with clean hands. The suit was filed only on 10.12.1997. There is a delay of more than one year and hence, in view of the fact that there is a false plea in the plaint with regard to further payment of advance amount and in the absence of any ready and willingness on the part of the plaintiff and the plaintiff seeking equitable relief of specific performance, has to come to the Court with clean hands and hence, seeks to set aside the judgment of the trial Court. 14. The learned counsel for the respondents 3 to 5 would contend that as stated in the written statement filed by D-4, in the absence of any agreement between the plaintiff and the defendants in the absence of any advance being paid by the plaintiff and received by the defendants, the trial Court has committed an error since Ex.B7 is only a xerox copy and the same could not be received as secondary evidence evidencing the alleged agreement between the plaintiff and the third defendant. The extent of the land belongs to the third defendant is 2 acres and 33 cents and the proposed amount is too low and also adopted the contention of the appellants. 15. The learned counsel for the first respondent/plaintiff would contend that the plaintiff had demonstrated his readiness and willingness before the trial Court and the trial Court has held that the third defendant and his legal heirs are binding upon the terms of the agreement between the parties since the third defendant has attested the document and further contended that in view of exchange of notice Ex.A1 to A3 and Ex.B1 to B14 and B16, there is a clear recital indicating his readiness and willingness to perform his part of contract. Draw my attention to Ex.A7 notice inviting the defendant to get approved lay out or to produce at the earliest for completion of sale transaction and also relied upon Ex.A17. Total sale consideration is Rs.18,52,080/-. Advance paid is Rs.6,48,000/- Balance to be paid is Rs.12,06,085/-. After decree on 12.07.2007, the balance sale consideration seems to have been paid on 19.07.2007. 16. Heard both sides and perused the records. 17. On perusal of the list of exhibits annexed with the judgment, I find that the serial numbers shown in the annexure as Exhibits are misleading and appears to be misappropriate and incorrect and hence Lower Court records were called for from the Vernacular Section and on verification of the Lower Court records, the correct and proper Exhibits as marked before the trial court at the time of the trial are as under: 1. Ex.A1 is the legal notice issued by the defendant to the plaintiff dated 01.03.1995. 2. Ex.A2 is the legal notice issued by the defendant to the plaintiff and Thavasimuthu dated 13.02.1996. 3. Ex.A3 is the reply notice issued on behalf of the plaintiff to the defendant through his advocate dated 28.02.1996. 4. Ex.A4 is the sale agreement dated 11.03.1995 between the plaintiff and the defendant (this is not the suit sale agreement and in this regard the judgment referred by the District Judge refers Ex.A4 in respect of the suit sale agreement, however the same is not marked nor any xerox copy has been marked either by the plaintiff's side) 5. Ex.A5 is the legal notice issued by the defendant to the plaintiff and others dated 01.03.1995. 6. Ex.A6 is the legal notice issued by the plaintiff to the defendants 2 and 3 dated 13.02.1996. Legal notice by the plaintiff to the defendant No.2 in reply notice dated 28.02.1996 legal notice issued by the plaintiff counsel to the Tahsildar on 01.04.2002. Acknowledgement for Ex.A8 is Ex.A9. 7. Ex.A10 is the paper publication in Thinathanthi by the plaintiff dated 16.04.1996. 8. Ex.A11 is the certified copy of the sale deed in 393/03 9. Ex.A12 is the certified copy of the sale deed dated 04.12.2003. 18. The defendants 1 and 2 in O.S.No.29 of 2005 are the appellants herein. Acknowledgement for Ex.A8 is Ex.A9. 7. Ex.A10 is the paper publication in Thinathanthi by the plaintiff dated 16.04.1996. 8. Ex.A11 is the certified copy of the sale deed in 393/03 9. Ex.A12 is the certified copy of the sale deed dated 04.12.2003. 18. The defendants 1 and 2 in O.S.No.29 of 2005 are the appellants herein. The first respondent filed the suit in O.S.No.29 of 2005 additional District Judge (Fast Track Court No.1), Thoothukudi, for specific performance of the agreement dated 11.03.1995 or in the alternate, refund of the advance amount along with interest. The suit was decreed and hence the present appeal by the defendants 1 and 2. 19. The first respondent/plaintiff filed a suit for specific performance in respect of the schedule of the property, which also includes plot Nos.1 to 4, 9 to 18, 153 to 160 totally 22 plots that were belonged to the third defendant, who died pending suit. The fourth defendant is the daughter-in-law of the third defendant and it is alleged that an agreement of sale was entered by her. After filing the written statement, the third defendant died leaving behind the defendants 5 to 7, who are the respondents 3 to 5 herein. 20. The plaint proceeds on the basis that the plaintiff and the defendants 1 and 2 (appellants 1 and 2 herein) have entered into an agreement of sale Ex.A4 on 13.05.1994 to an extent of 5 acres 86 cents agreeing to sell and agreeing to buy one cent at the rate of Rs.3050/- per cent and the period of agreement is fixed at one year. The said sale agreement is an unregistered document. Originals were not deposited with the agreement holder. The plaint further proceeds that under Ex.A4, another sale agreement dated 11.03.1995 came into existence at the rate of Rs.3150/-per cent and advance of Rs.1,40,000/- was paid. This amount was in addition to Rs.1,15,000/- said to have been paid under suit sale agreement. Subsequently, on 30.05.1994 a sum of Rs.3,00,000/- was paid and on 25.03.1995, another sum of Rs.93,000/- was paid and thereby a total sum of Rs.6,48,000/- was said to have been paid. There is a specific condition in the agreement that the defendants 1 and 2 have to get the approval by the panchayat for the lay out and on such approval, the sale transaction is to be completed. The suit was filed on 10.12.1997. There is a specific condition in the agreement that the defendants 1 and 2 have to get the approval by the panchayat for the lay out and on such approval, the sale transaction is to be completed. The suit was filed on 10.12.1997. Exchange of notice between the parties are marked as Ex.A1, Ex.A2, Ex.A3 and Ex.B14, Ex.B15, Ex.B16. While the first agreement dated 13.05.1994 is not marked, the second agreement dated 11.03.1995 is marked as Ex.A4. 21. In the written statement filed by the first defendant, he had contended that it is not a pre-condition to get the approval and hence, the alleged statement made by the plaintiff is incorrect on facts. 22. The third defendant has filed separate written statement alleging that in respect of plot Nos.1 to 4, 9 to 18 and 153 to 160 totalling 22 plots, the third defendant is the sole and absolute owner of the property. Pending suit agreement, he entered tin an agreement with the fourth defendant, his daughter-in-law. Furthermore, he alleged that there is no privity of contract between the defendant and the plaintiff for selling the property. Due to police force exerted upon him before the police station, he had attested Ex.A5 sale agreement dated 11.03.1995 as one of the attestors and the same was obtained by force and coercion and he had no intention to sell the property. Pending suit, the third defendant died. The defendants 4 to 6 were brought on records as legal heirs of the third defendant. 23. After brought on records, the defendants 4 to 6 filed separate written statements alleging that in the absence of agreement between the plaintiff and the third defendant original owner, specific performance cannot be granted against them and the third defendant has not received any amount from the plaintiff. With regard to the alleged agreement between the first defendant and third defendant to sell the property, the original was not marked. What was marked was only Ex.B7. With regard to the alleged agreement between the first defendant and third defendant to sell the property, the original was not marked. What was marked was only Ex.B7. Since no amount has been received by the third defendant and the plaintiff is not ready and willing to perform his part of the contract and the plaintiff has not issued any notice of his ready and willingness in respect of the plots owned by the third defendant, in the absence of any consensus as to unit rate of Rs.3150/- per cent, the lands belonged to the third defendant as stated supra cannot be subject matter of the suit. Consequently, enforcement of alleged agreement as against these defendant is not permissible under law. For better appreciation of facts on record, the relevant portion of admission of PW.1 to PW.4 in their respective cross-examination are extracted hereunder: 24. PW.1 in his cross-examination stated that 1. “TAMIL” 25. PW.2 in his cross-examination stated that “TAMIL” 26. PW.3 in his cross-examination stated that “TAMIL” 27. PW.4 in his cross-examination stated that “TAMIL” 28. Whether the plaintiff is entitled for the relief of specific performance of the suit sale agreement dated 13.05.1994. (in short A.O.S.1) 29. The plaintiff has come forward with a specific case that there was an agreement on 13.05.1994 and certain payment has also been made by way of post-dated cheque to be kept as a security, since the enforcement sale agreement cannot be made for want of approval of lay out within the stipulated time, the sale deed could not be executed and hence, another agreement was entered into between the parties on 11.03.1995. Ex.A.4 (in short A.O.S.2). It remains to be stated that neither original of the sale agreement dated 13.05.1994 is filed before the Court nor marked during trial. (Annexure into lower Court judgment, it is wrongly mentioned as discussed supra) 30. It is seen from the records that the counsel for the plaintiff has issued a notice to produce the documents viz., suit sale agreement dated 13.05.1994 to the defendants under Order 11 Rule 14 of CPC and neither any objection was filed by the defendants 1 and 2 nor the original Sale Agreement dated 13.05.1994 was produced by the defendants and the Trial Court has taken an adverse inference based upon certain pleadings in the written statement and the admission by D.W.1. This Court is unable to accept and uphold the said findings for drawing an adverse inference against the defendants for more than one reasons. 31. The Sale Agreements 1 and 2 dated 13.05.1994 and 11.03.1995 respectively are alleged to have been entered between the plaintiff and defendants 1 and 2. The plaintiff being the agreement holder, in the regular course of business in the real estate or sale transaction of immovable properties, it is a established practice in the State of Tamil Nadu that the agreement holder will be given the original documents and the land owner will be having the additional copy. For the reasons best known, no reason has been assigned by the plaintiff for non-production of the originals, especially, the suit Sale Agreement. The plaintiff simply averred in the plaint that it was kept by the defendants. At this juncture, the same cannot be believed, since it is against the regular course of business-practice being adopted in the State of Tamil Nadu in respect of sale transaction of immovable property. Besides, in the written statement, it is a specific plea of the defendants that on 13.05.1994-Sale Agreement was entered between the parties and four post dated cheques were given as a security. However, she further developed another reason that there was another collateral agreement between the sale of the plaintiff's property in favour of the defendants and for the said price, difference of Rs.3,00,000/- is said to have been made as an endorsement in Ex.A.4. On enquiry, it is come to light that the alleged plaintiff's property is already acquired by the Government and as the defendants resisted to entertain the sale agreement, the plaintiff by using her political power, gave a complaint before the Superintendent of Police, Thoothukudi and both agreements dated 13.05.1994(suit sale agreement) and the agreement referred to by the defendants between the parties in respect of the plaintiff's property were cancelled and destroyed. The Trial Court has disbelieved this version of the defendants on the ground that the defendants have not proved their pleadings in the written statement. 32. It is rudimentary procedure in the civil proceedings that the plaintiff has to plea and prove her case, he cannot sit and win over on the defendants' weakness. The part of the admission made by the defendants is that both the agreements dated 13.05.1994 and 14.05.1994 were cancelled and destroyed. 32. It is rudimentary procedure in the civil proceedings that the plaintiff has to plea and prove her case, he cannot sit and win over on the defendants' weakness. The part of the admission made by the defendants is that both the agreements dated 13.05.1994 and 14.05.1994 were cancelled and destroyed. Unless the plaintiff proved to the satisfaction of the Court that the original was not given to the plaintiff, it was only with the defendants and thereafter, calling upon the defendants to produce the original and for non-production of document as called for under the notice to produce the documents, no adverse inference could be drawn. 33. In this regard, reliance was made on the following decisions of this Court reported in [i] 2003 (2) MLJ page 411 [A.S. Rathinam W/o. Ravi Vs. A.S. Ponnammal]; [ii] 2007 (1) MLJ page 591 [G. Ramalingam Vs. T. Vijayarangam] and [iii] 2006 (1) CTC page 519 [Sri Guruvayurappan, Asthiga Samajam, Madras - 61, represented by its Trustee R. Ramachandran Vs. The Hindu Religious and Charitable Endowment Administration Department, Madras, represented by its Commissioner] are found to be supporting the case of the defendants that unless the plaintiff discharges the initial burden upon her shoulder, no adverse inference can be drawn against the defendants. 34. In this case, the evidence of D.W.1 was relied upon by the Trial Court. D.W.1, in his evidence, has categorically deposed about the coming into existence of suit sale agreement and subsequent cancellation of the same. As stated supra, it was disbelieved by the Trial Court on the simple reason that no person in connection with the alleged cancellation of transaction has been examined. As extracted supra, DW.3 & DW4, who are independent witnesses also attestors of the suit sale agreement were clearly admitted in the cross-examination about the police complaint and enquiry. 35. In view of the practice in regular course of business in the sale transaction, in this part of the State, being that the original should be given to the agreement holder. 35. In view of the practice in regular course of business in the sale transaction, in this part of the State, being that the original should be given to the agreement holder. In the absence of any plausible explanation much less any explanation for non-possession of the original agreement by the plaintiff, no adverse inference can be drawn against the defendants as done by the lower Court and hence, this Court is of the considered view that the Trial Court has wrongly caused the onus of proof on the defendants as if it is the onus of proof on the defendants, whereas, on the facts of the case, it is the burden of proof on the shoulder of the plaintiff. 36. The plaintiff is not offered any positive reason for nonproduction of suit Sale Agreement and hence, the adverse inference as held and approved by the Trial Court is unsustainable in law. Accordingly, the said finding rendered by the Trial Court is hereby stands vacated. 37. Yet another point is that though the plaintiff/P.W.1 could depose that the second agreement namely, Ex.A.4 dated 11.03.1995 is not a new agreement between the parties, it is in continuity of the earlier agreement dated 13.05.1994. On perusal of the said agreement, it is seen that there is no clause found to that effect as spoken to by P.W.1 assumes significance. Had there been any continuity between these two agreements, definitely, it could have reflected in the second agreement viz., Ex.A.4. It is to be stated that in Ex.A.4 second agreement between the parties, certain addition of properties are included viz., the properties of the third defendant were also included and hence, if Ex.A.4 is to be read in isolation, there is no clause connecting Ex.A.4 as continuity of suit sale agreement assumes significance and further, I find that there is no privity of agreement between the parties viz., plaintiff and defendant No.3. 38. As stated supra, P.W.1 is the plaintiff and P.W.2 is the husband of P.W.1 while P.W.3 and P.W.4 are the attestors of Ex.A.4. None of the witnesses has spoken about the fact that in whose possession the original sale agreement was handed over. 38. As stated supra, P.W.1 is the plaintiff and P.W.2 is the husband of P.W.1 while P.W.3 and P.W.4 are the attestors of Ex.A.4. None of the witnesses has spoken about the fact that in whose possession the original sale agreement was handed over. In other words, in the absence of any evidence from P.W.3 and P.W.4 or P.W.1 and P.W.2 as to who has got the possession of the original, this Court is of the considered view that the specific relief sought is a discretionary relief and it has to be exercised only on the basis of sound principles of law and not for mere asking and hence, this Court finds that non-production of original suit sale agreement, dated 13.05.1994, which is sought to be enforced specifically is also fatal to the plaintiff's case on the facts and circumstances. The plea of further payment under suit sale agreement: 39. It is the specific case of the appellants/defendants 1 and 2 that Ex.A.4 is the novation of earlier agreement and under Ex.A4-(AOS) contract, an advance amount of Rs.3,00,000/- has been paid and no further payment has been paid. As per the pleadings and as well as the evidence of P.W.1, this Court finds that the trial Court has accepted the alleged endorsement made in unmarked AOS, when the existence of the same is under cloud and an endorsement made in the document without being marked has been found to be accepted by the trial Court. In other words, the Trial Court has committed an error in relying upon the endorsement said to have been made in the suit sale agreement dated 13.05.1994, when such an endorsement itself is not supposedly marked. Furthermore, when the defendants had denied the payment, under suit sale agreement, as pleaded by the plaintiff, a duty is cast upon the plaintiff/respondent No.1 to prove the alleged payment and hence, the reasoning assigned by the trial Court for accepting the alleged payment of Rs.3,00,000/- based upon the unmarked endorsement in the unmarked document AOS is unsustainable in law and the same shall stand vacated. 40. The plea of respondent/plaintiff regarding further payment is not proved in the manner known to law. It is an admitted case of both the appellants/defendants 1 and 2 and respondent No.1/plaintiff that four cheques have been given as a security in respect of the suit Sale Agreement. 40. The plea of respondent/plaintiff regarding further payment is not proved in the manner known to law. It is an admitted case of both the appellants/defendants 1 and 2 and respondent No.1/plaintiff that four cheques have been given as a security in respect of the suit Sale Agreement. Admittedly, as per the version of the defendants in the pleading and as per the evidence of D.W.1, four cheques were presented for collection and the same have been dishonoured. It is not the case of the plaintiff that the cheque amount has been honoured and adjusted for advance. Further PW.1 has admitted in the cross-examination that they are given only as security but not has advance of part of sale consideration assumes significance. 41. Hence, this Court finds that four cheques said to have been given by the plaintiff are only as a security for future payment. The same was not encashed for want of funds in the account of the first respondent/plaintiff and thus, when the cheques were issued as a security for further payment as sale consideration, the same cannot be equated to show the advance amount for further payment of sale consideration under the suit Sale Agreement. In the absence of any passing of consideration as sale consideration, when passing of sale consideration is not proved, the same cannot be termed as further payment. Thus, the trial Court has committed an error in treating the same as passing of part of the sale consideration when no amount is transferred from the account of the first respondent/plaintiff to the appellants/defendants 1 and 2. Plea of further payment is true, if so, to what extent? 42. The appellants/defendants 1 and 2 both in the pleadings as well as in the cross examination of D.W.1, he has admitted that a sum of Rs.3,33,000/- alone except the above said payment under Ex.A.4 and not under suit sale agreement as pleaded by the plaintiff assumes significance and hence, this Court finds that the first respondent/plaintiff has come forward with a false plea of further payment and this point is answered against the first respondent/plaintiff and in favour of the appellants/defendant 1 and 2. Point No. 3 : Whether the first respondent/plaintiff is ready and willing to perform her part of the contract? Willingness: 43. Point No. 3 : Whether the first respondent/plaintiff is ready and willing to perform her part of the contract? Willingness: 43. From the discussion in the preceding paragraphs, this Court finds that the unmarked suit sale agreement is surrounded with suspicion and the same was unmarked document. In the absence of any incredible evidence satisfying to accept it as a secondary evidence, the same cannot be received in evidence. It is seen from the documents viz., Exs.B.1, B.2 and B.3, and Exs.A.1 and A.2 and from the evidence of D.W.1 that it is the defendants, who called upon the plaintiff as to the non performance of the terms of the agreement and subsequently, the agreement was cancelled under Ex.B.7. A reply was also given only in respect of Ex.A.3 and not in respect of alleged legal notices. Though the plaintiff has come forward with a specific case that she is ready and willing to perform her part of contract, for the reasons not known, from 13.05.1994 till the legal notices were issued by the defendants under Exs.A.1 and A.2, B.4 and B. 6, the plaintiff has not even moved her little finger in advancement of the terms of the alleged suit sale agreement also assumes significance. 44. In other words, except the notice sent by the defendants and termination of the agreement by the defendants, the plaintiff has not taken any steps to express her willingness to complete the terms of the agreement and to complete the sale transaction also assumes significance and in the absence of any positive evidence or acceptable legal evidence on behalf of the plaintiff, this Court is of the considered view that the plaintiff has not demonstrated her willingness to perform her part of the contract under suit sale agreement. 45. Furthermore, on the contrary, only the appellants/defendants 1 and 2 have issued the legal notices under Exs.A.1 and A.2 and Ex.A.3 reply was given in the year 1996. 45. Furthermore, on the contrary, only the appellants/defendants 1 and 2 have issued the legal notices under Exs.A.1 and A.2 and Ex.A.3 reply was given in the year 1996. Even Ex.B.4 legal notice sent by the first defendant on 01.03.1995, was returned and Ex.B.7 is yet another legal notice sent by the first defendant-land owner and hence, taking into consideration the exchange of three pre-suit legal notice and the contents therein and the admission of P.W.1 in the cross-examination, this Court finds that the plaintiff is not expressed her willingness to complete the sale transaction in the manner established to law and hence, this Court holds that the plaintiff has not demonstrated her willingness for the completion of the sale consideration. Readiness: 46. On the point as to whether the first respondent/plaintiff is ready to perform her part of contract, readiness means ready with money. As admittedly after execution of suit sale agreement, further payment was not made and only four cheques were given as a security. This Court, in the preceding paragraphs, has observed that the deposit of the post dated cheques as a security does not tantamount to advance payment in continuation of the sale consideration. Furthermore, the same was also not honoured nor credited to the account of the defendants. Furthermore, the defendants in order to demonstrate that the plaintiff is a man of no means has examined D.W.2 and D.W.3, Managers of the Bank where the plaintiff is having the account and the plaintiff's account were also marked as Exs.B.27 and B.28 which clearly show that the plaintiff own no money in her account to satisfy the sale consideration also assumes significance and hence, the financial incapacity of the plaintiff stands exposed by the official witness viz., D.W.2 and D.W.3 Bank witnesses and Exs.B.27 and B.28 coupled with her own admission, as in cross of PW.1, that on the date of examination in court she is not possessing any amount to satisfy the sale consideration, assumes relevant and significance. Even PW3 &PW4 have not whispered regarding the financial capacity of PW.1. 47. On a perusal of the Lower Court records, I find that the first respondent/plaintiff has not deposited balance of sale consideration at the time of filing of suit, is yet another point assumes significance. Even PW3 &PW4 have not whispered regarding the financial capacity of PW.1. 47. On a perusal of the Lower Court records, I find that the first respondent/plaintiff has not deposited balance of sale consideration at the time of filing of suit, is yet another point assumes significance. However, only after passing of the decree dated 12.07.2007, it appears that the first respondent/plaintiff has deposited the balance of sale consideration. Be that as it may, on the date of filing of the suit viz., 10.12.1997, the plaintiff has not demonstrated before the Court that she is ready with money to complete the sale transaction. Except the bald statement, there is nothing on record to show her readiness to buy the property and being ready with money to purchase the property to complete the sale transaction. The alleged further payments as spoken to by P.W.1 were not proved in the manner known to law. Mere deposit of the four cheques as a security, that by itself is not a further payment of the sale consideration and hence, this Court holds that the plaintiff has not demonstrated before the trial Court about her readiness on financial ground and her willingness with an intention to purchase the property in the manner as prescribed by the various decisions of the Apex Court and hence, I have no hesitation to come to the conclusion that the plaintiff has miserably failed to demonstrate her ready and willingness to perform her part of the contract as required under Section 16 (3) of the Specific Relief Act. 48. It remains to be stated that the ready and willingness is a preliminary principle and mandatory condition that has to be satisfied before enforceability of agreement and hence, this Court is of the considered view that the plaintiff is not entitled for the relief of specific performance of suit sale agreement. This Court has observed that suit sale agreement itself is surrounded with sea of suspicion. In view of the discussions supra, Point Nos.1, 2 and 3 are answered in negative against the respondent / plaintiff. Point No.4: Whether the respondent is entitled for alternate relief of refund of amount as claimed, if so, to what extent? 49. Admittedly, the plaintiff has not asked for the enforcebility of Suit Sale Agreement. The preliminary relief of specific performance has been negatived for the reasons recorded in the preceding paragraphs. 50. Point No.4: Whether the respondent is entitled for alternate relief of refund of amount as claimed, if so, to what extent? 49. Admittedly, the plaintiff has not asked for the enforcebility of Suit Sale Agreement. The preliminary relief of specific performance has been negatived for the reasons recorded in the preceding paragraphs. 50. The main relief of specific performance of agreement in respect of 106 plot of D1 +D2 stands negatived. As the other part of main relief of 22 plot of D3 is concerned In the absence of any privity of contract with D.3 Suit Sale Agreement cannot be extended against the lands of D.3. This fact on the terms of the agreement is totally overlooked by the trial Court. Merely because there is a clause in the Ex.A4 agreement and was attested by the third defendant, the same cannot be enforced with liability of the third defendant. The privity of contract is a greater in nature and hence, on the basis of material available on record, this Court holds that there is no privity of contract between the respondent/plaintiff and the third defendant and hence, the specific performance of the land belongs to the third defendant cannot be granted. Ex.B4 dated 15.02.1995 has sent a legal notice cancelling the agreement between the parties. The suit was filed only on 26.02.1995 and there is no whisper regarding Ex.B.7 assumes significance. 51. On the point of alternate relief, this Court finds that the defendants have accepted a sum of Rs.2,25,000/- and except the said payment, other alleged payment made by the plaintiff is not proved in the manner known to law and hence, the plaintiff is entitled to only refund of a sum of Rs.2,25,000/- alleged to have been paid under Ex.A.4 Sale Agreement. Though the plaintiff has asked for refund of advance amount said to have been paid under suit sale agreement not under Ex.A4, however, in equity, in view of the admission of the defendants, the advance amount paid under Ex.A.4 is ordered to be refunded. Point No: 5 52. Since this Court has found that the suit sale agreement is not specifically enforceable, for the reasons observed in the preceding paragraphs, the point as to whether exhalation of the price of the land and the point of limitation does not arise for consideration. Point No: 5 52. Since this Court has found that the suit sale agreement is not specifically enforceable, for the reasons observed in the preceding paragraphs, the point as to whether exhalation of the price of the land and the point of limitation does not arise for consideration. Though this Court has given a specific finding that from the date of the agreement viz., 13.05.1994 till the date of suit, there was no positive action on the part of the first respondent/plaintiff to express her willingness to execute the terms of the agreement, since the suit was filed within three years from the date of execution of Ex.A.5 dated 11.03.1995, the same is held to be in time. However, merely because a suit has been filed in time, the relief cannot be granted, since the relief sought for in the suit is for specific performance which is a discretionary relief and hence, the same shall stand negatived and hence, the findings of the trial Court stands vacated and the judgment and decree passed by the trial Court are liable to be set aside. 53. In fine, The judgment and decree passed by the learned Additional District Judge (Fast Track Court No.I), Thoothukudi, in O.S.No.29 of 2005, are set aside and the suit is dismissed in respect of the main relief viz., in respect of specific performance and the suit is partly allowed and partly decreed only to the limited extent of grant of relief of alternate relief viz., refund of advance amount of Rs.2,25,000/- with 6% interest from the date of the agreement till the date of filing of the suit and 9% interest after the decree. 54. In the result, [i] A.S.No.8 of 2008 is allowed. [ii] The judgment and decree in passed in O.S.No.29 of 2005 are set aside. [iii] O.S.No.29 of 2005 shall stand dismissed in respect of the main relief relating to specific performance of the suit agreement and O.S.No.29 of 2005 is partly decreed only to the limited extent of the alternate relief viz., refund of Rs.2,25,000/- and with costs and interest at 6% interest from the date of the agreement till the date of filing of the suit + pending suit and interest at the rate of 9% + 9% interest after the date of decree.