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2021 DIGILAW 198 (MAD)

Seniammal (died) v. Mahamuni

2021-01-18

N.SATHISH KUMAR

body2021
JUDGMENT : (Prayer: Appeal is filed under Section 96 of the Code of Civil Procedure, against the judgment and decree passed in O.S.No94 of 2007, by the learned Additional District Judge, Fast Track Court, Dindigul, dated 3010.2009.) 1. Aggrieved over the judgment and decree of the trial Court in the suit filed for specific performance, the present appeal came to be filed. 2. For the sake of convenience, the parties are referred to herein, as per their ranking before the Trial Court. 3. The brief facts leading to the filing of the suit are as follows: (i) The suit property originally belonged to one K.S.Raja, son of the first defendant and the second defendant is the wife of late K.S.Raja and the third and fourth defendants are minor children of K.S.Raja. In the year 2003, the said K.S.Raja has mortgaged the properties to one M.R.Lakhsmi for a sum of Rs.3,00,000/- (Rupees Three Lakhs only). Thereafter, he died. The defendant Nos.1 and 2 in order to clear the mortgage debt, decided to sell the suit property and according to the same, they entered into the agreement with the plaintiff to sell the suit property for a total sale consideration of a sum of Rs.16,00,000/- (Rupees Sixteen Lakhs only). (ii). Accordingly, on 04.06.2007, a suit agreement came to be executed and the plaintiff has paid an advance amount of a sum of Rs.11,000/- (Rupees Eleven Thousand only) by cash and the remaining amount of Rs.5,89,000/- (Rupees Five Lakhs Eighty Nine Thousand only) by way of Cheque, drawn on the Pandiyan Grama Bank, Batlagundu, in the name of the second defendant. However, on the same date, the plaintiff came to know that there are other encumbrances in the said suit property running to several Lakhs of Rupees, which was not disclosed by the defendant Nos.1 and 2 at the time of agreement. (iii). Suspecting the foul play and fraud, the plaintiff immediately sent a notice on 05.06.2007 to the Bank requesting to stop payment on the cheque and also informed the defendant Nos.1 and 2 about the letter for stop payment. A notice was also sent to the defendant Nos.1 and 2 and the defendants also informed about the same on 20.06.2007. Thereafter, the defendant Nos.1 and 2 agreed to sell the property by disclosing all the other existing encumbrances. A notice was also sent to the defendant Nos.1 and 2 and the defendants also informed about the same on 20.06.2007. Thereafter, the defendant Nos.1 and 2 agreed to sell the property by disclosing all the other existing encumbrances. After that, the plaintiff revoked the 'stop payment' by a letter to the Bank dated 17.08.2007 and also sent a notice to the defendants on 17.08.2007, intimating them to encash the cheque with them and also expressed his readiness and willingness. The above said notice was received by the defendant Nos.1 and 2 on 20.08.2007. When the defendants evaded to execute the sale, the plaintiff issued a Newspaper publication on 31.08.2007. Thereafter, the defendants sent a notice to the plaintiff by enclosing a Demand Draft for a sum of Rs.11,000/- by falsely alleging as if the plaintiff wanted to cancel the agreement. The said notice was received on 03.09.2007 and the plaintiff sent back a reply on 04.09.2007 along with the Demand Draft for a sum of Rs.11,000/-. After the said notice dated, 04.09.2007 the defendant Nos.1 and 2 met the plaintiff and expressed their readiness and willingness to complete the transaction. However, the defendants dragged the proceedings. Hence, the suit filed for specific performance. 4. In a written statement, it is the contention of the defendants that, on the date of agreement, the defendants requested the plaintiff to pay a sum of Rs.6,00,000/- as an advance amount, whereas, the plaintiff has paid only a sum of Rs.11,000/- and issued a cheque to the tune of Rs.5,89,000/-. When the cheque was presented on 04.06.2007 in the Bank, it was dishonoured with an endorsement as the plaintiff has “stopped payment”. This shows that the plaintiff had willfully violated the essential basic terms of contract by voluntarily withholding the advance amount agreed by both of them due to the defendants. A notice, dated 20.06.2007 was also issued in this regard, by the plaintiff. 5. Thereafter, the plaintiff expressed his intention that he was not interested to perform the contract and he demanded back the said sum of Rs.11,000/- paid by him. A notice, dated 20.06.2007 was also issued in this regard, by the plaintiff. 5. Thereafter, the plaintiff expressed his intention that he was not interested to perform the contract and he demanded back the said sum of Rs.11,000/- paid by him. When the defendants offered a cash of a sum of Rs.11,000/- and demanded to return back the original agreement given by them to the plaintiff, the plaintiff had been dodging and in order to avoid the receipt of the same, he stated that he has misplaced the original documents in his house and he had to trace the same. The defendant No.2 also took a Demand Draft for a sum of Rs.11,000/- and she approached the plaintiff to return the original sale agreement. However, the plaintiff stated that he had misplaced the said original agreement somewhere else and he had to trace in is house also. 6. The defendants were running a Workshop Manufacturing Spades etc. After a very long legal battle, they were able to recover the same from the alleged lessees thereon and thereafter, they were intended to start their manufacturing business thereon. Only for the above said purpose, they decided to sell the property and get some advance from the plaintiff and start their manufacturing activities. They had also paid advance to the skilled labours for opening of their manufacturing unit on receipt of the advance from the plaintiff. Only to achieve those purposes in time, they decided to sell the suit property. If the entire advance had been paid, the defendants would have achieved all those purposes by starting their manufacturing unit and by discharging most of their debts at concessional by reducing rates. Even prior to the agreement, the plaintiff was well aware about all subsisting debts and the defendants' effective move to discharge those at reduced rates, hence he prayed for dismissal of the suit. 7. Based on the above pleadings, the Trial Court has framed the following issues:- “(i). Whether the plaintiff is always ready and willing to perform his part of contract to pay the advance amount as per the agreement? (ii). Is it true that the sale agreement was cancelled as stated by the defendants? (iii). Whether the plaintiff is entitled to specific performance? (iv). Whether the plaintiff is entitled to refund of a sum of Rs.6,00,000./- with interest? (v). To what relief, the plaintiff is entitled?” 8. (ii). Is it true that the sale agreement was cancelled as stated by the defendants? (iii). Whether the plaintiff is entitled to specific performance? (iv). Whether the plaintiff is entitled to refund of a sum of Rs.6,00,000./- with interest? (v). To what relief, the plaintiff is entitled?” 8. On the side of the plaintiff, P.W.1 to P.W.5 were examined and Exs.A.1 to A.25 were marked. On the side of the defendants, the first defendant herself was examined as D.W.1 and Exs.B.1 to B.3 were marked. 9. The learned trial Judge granted decree in favour of the plaintiff, as against which, the present appeal is filed. 10. The learned counsel appearing for the appellants would vehemently contend that the trial Court has not even appreciated the evidence in a proper manner and merely, on the basis of the agreement, a decree has been granted. He would further submit that the trial Court has not even considered the fact that the hardship suffered by the appellants while granting the decree. The trial Court has also failed to consider the fact that the defendant Nos.3 and 4 are minors and their properties were also dealt without permission of the Court and further, the very advance amount agreed to be paid as per the agreement / Ex.A.1 has not been paid by the plaintiff. In fact, the plaintiff has stopped the payment by issuing a notice to the Bank and the cheque, which was issued by him, was also dishonoured and the same was also not taken note of by the trial Court. (i). The above facts would clearly indicate that the plaintiff was never ready and willing to perform his part of contract. When the plaintiff's evidence itself clearly shows that he was not ready mentally to purchase the suit property, the specific performance cannot be granted and the hardship pleaded by the defendants was never considered by the trial Court, hence, he submitted that the judgment of the First Appellate Court while granting a decree in favour of the plaintiff, is not based on the proper evidence and law. (ii) Further, the plaintiff has never shown his readiness and willingness and even Ex.A.14-the xerox copy of the pass book in the name of the plaintiff would clearly show that the plaintiff was only having a part of amount in his account. (ii) Further, the plaintiff has never shown his readiness and willingness and even Ex.A.14-the xerox copy of the pass book in the name of the plaintiff would clearly show that the plaintiff was only having a part of amount in his account. Similarly, there was no intention on the part of the plaintiff to purchase the property and the hardship on the part of the defendants was not taken note of by the trial Court. Hence, he submitted that the specific performance granted by the First Appellate Court, has to be set aside. 11. The learned counsel appearing for the respondent / plaintiff would submit that the agreement was executed on 04.06.2007 on the ground that there was only one mortgage in respect of one M.R.Lakshmi. Whereas, the plaintiff came to know that there are some other debts payable by the defendants in respect of the suit properties. He would further submit that only in order to clear the above debts, he has sent a notice to 'stop payment' to the Bank. Whereas, later, the plaintiff has withdrawn a letter issued to the Bank and he expressed his readiness and willingness to purchase the property. Hence, it is contended that he has also deposited the amount and the suit was also filed within the period of limitation and the readiness and willingness has also been established before the trial Court by the plaintiff and the trial Court has appreciated the evidence. Hence, he prayed for dismissal of the appeal. 12. In the light of the above submissions the points now arise for consideration are that:- “(i) Whether the plaintiff was always ready and willing to purchase the suit property? (ii). Whether the minors' shares could be subjected to sale without the permission of the Court? (iii). Whether the plaintiff is entitled to specific performance?” 13. A suit was filed to enforce the contract dated 04.06.2007 to sell the property for a total sale consideration of a sum of Rs.16,00,000/-. It is the very case of the plaintiff that after the death of the husband of the second defendant, in order to clear the debts of her late husband, the defendants being the legal heirs have entered into the contract with the plaintiff for a sum of Rs.16,00,000/-. It is the very case of the plaintiff that after the death of the husband of the second defendant, in order to clear the debts of her late husband, the defendants being the legal heirs have entered into the contract with the plaintiff for a sum of Rs.16,00,000/-. It is an admitted case of both sides that the property originally belonged to the husband of the second defendant and the son of the first defendant one K.S.Raja. The evidences further indicated that the said K.S.Raja died in a car accident, leaving behind the second defendant and his legal heirs / defendant Nos.3 and 4, who are the minor children. It is to be noted that all are class-I legal heirs. After the death of the said K.S.Raja, each defendants in the suit are equally entitled to 1/4th share in the property, left by late K.S.Raja. The agreement / Ex.A.1 makes it very clear that it is not the case of the parties that the agreement was entered in respect of the minors' shares for the benefit of the minors. It is to be noted that the property devolved on the legal heirs only under Section 8 of the Hindu Succession Act, 1956. It is not the case of the parties that the properties are ancestral properties, so that, no permission is required to deal with the shares of the minors under Section 8 of the Hindu minority and Guardianship Act, 1956, whereas, the property devolved upon the minors under Section 8 of the Hindu Succession Act, 1956. In Such view of the above said fact, this Court is of the view that, without permission to deal with the minor properties, the very agreement itself cannot be given any importance. 14. It is the contention of the plaintiff that only in order to discharge the mortgage loan availed by Late K.S.Raja, the defendants have entered into an agreement. On the date of agreement i.e., on 04.06.2007, the plaintiff agreed to pay a sum of Rs.6,00,000/- out of which Rs.11,000/- was paid and the remaining cash of Rs.5,89,000/- was paid through a cheque. However, on the very next day, the plaintiff has issued a notice to the Bank to stop the payment. It is also admitted by both sides that till date, the cheque issued by the plaintiff has not been encashed. However, on the very next day, the plaintiff has issued a notice to the Bank to stop the payment. It is also admitted by both sides that till date, the cheque issued by the plaintiff has not been encashed. When the cheque was presented by the defendants, it was dishonoured on the ground of stop payment notice sent by the plaintiff. 15. It was an explanation by the plaintiff to the effect that since the defendants had not disclosed the other debts in the agreement and on coming to know about the said encumbrances in the very next day, he has stopped the payment. However, later, he withdrew the notice of stop payment on 17.08.2007, thereafter, the same was informed to the defendants. On entire scanning of the evidence of P.W.1 and the other evidences, it is made very clear that the alleged so-called debt, which has not been disclosed by the defendants, is only a small sum, which is not exceeding more than Rs.10,00,000/-. In such being the case, if really the plaintiff had intended to purchase the property, his intention was to clear the amount since all the loans according to him would not be more than Rs.10,00,000/-. Such was the position, the plaintiff ought to have cleared all the loans. The very agreement itself shows that there was a mortgage debt in favour of one Lakshmi. Such being a position, the fact that some other loans were said to have not been disclosed cannot be a ground to deny the entire advance amount agreed to be paid to clear the loan. 16. Therefore, at this point of time, it cannot be said that later the plaintiff withdrew the notice of stop payment under Ex.A.6 dated 17.08.2007, therefore, he is always ready and willing to perform the part of contract. 17. It is the specific case of the defendants that they entered into the agreement only in order to clear the loans and improve their existing businesses and recover the possession from the lessesees. When the defendants have demonstrated by way of pleadings and evidence that the agreement was entered only to invest further and augment their income and restore the possession by paying the amount to the others whom they owed the money. When the defendants have demonstrated by way of pleadings and evidence that the agreement was entered only to invest further and augment their income and restore the possession by paying the amount to the others whom they owed the money. When the agreed amount has not been paid by the plaintiff, the defendants would have certainly put into inconvenience and hardship and this cannot be ignored altogether. The trial Court has never considered this aspect. 18. The plaintiff has come forward with the suit at the later point of time and taking note of the fact that some other persons are also trying to purchase the property at the relevant point of time and the plaintiff came before this Court by contending that he is always ready and willing to purchase the property. The readiness and willingness has to be shown from the very beginning that is from the inception of the agreement till the agreement culminates into the sale of property. The records particularly Exs.A.1, A.7, A.8, A.9 and A.10 clearly shows that except Rs.11,000/- which has been paid in cash, the agreed amount has not been en-cashed and in fact stop payment notice was issued on the very next day as per the evidence of P.W.1 himself. P.W.1 had also admitted in his evidence that the cheque amount has not been en-cashed by the defendants. 19. It is also the contention of the defendants that the advance has also been given and the cheque to the tune of Rs.11,000/- has also been drawn and they made an attempt to pay the amount to the plaintiff which has not been denied by the plaintiff. When the plaintiff has failed to establish their readiness and willingness from the inception of the agreement, merely, on the basis of the passbook filed to show that a sum of Rs.6,00,000/- is available in his account, hence, the readiness and willingness cannot be inferred. His evidence also clearly indicates that he has no other account in any other Bank except Ex.A.14. Ex.A.14 indicates that only Rs.6,31,960/- was in his account at the relevant point of time. There was no whisper as to how the remaining sale consideration could be mobilised by the plaintiff. 20. His evidence also clearly indicates that he has no other account in any other Bank except Ex.A.14. Ex.A.14 indicates that only Rs.6,31,960/- was in his account at the relevant point of time. There was no whisper as to how the remaining sale consideration could be mobilised by the plaintiff. 20. Whereas, the learned trial Court has placed the entire burden on the defendants and in fact failed to consider the well settled principles of law that a person seeks equitable relief of specific performance has to come to the Court with clean hands and also to show the readiness and willingness from the inception of the agreement. The readiness virtually means capacity to mobilise the funds. The willingness is a mental attitude to purchase the property. Unless the two essential conditions are satisfied and proved by the plaintiff, he cannot succeed in seeking any specific performance as an equitable relief. Even assuming that the defendants have not stated about the other debts and other than the mortgage debt, if the mental attitude and intention was clear on the part of the plaintiff to purchase the properties, he would have cleared the above debts. He should have prepared to pay the amount to clear the above debts and get the sale deed immediately, whereas, his conduct indicated that even the cheque issued for clearing the mortgage debt has not been en-cashed, it was stopped by issuing a notice to the Bank. That itself clearly indicates that he was never ready and willing to purchase the properties. 21. The very admission of P.W.1 clearly shows that the defendants had borrowed various loans from third parties for a sum of Rs.33,900/-, Rs.44,758/- and Rs.2,90,000/- and this fact would clearly indicate that the defendants are dire needs of funds to clear the loans. The admission of P.W.1 coupled with the evidence of D.W.1 makes it very clear that the defendants are in fact decided to sell the property only in order to clear the debts and invest in their business. They have stated that the very sale itself for the purpose of clearing the debts and recovering the possession of other properties. Due to the failure of the payment of advance amount, would have caused much hardship on the defendants. They have stated that the very sale itself for the purpose of clearing the debts and recovering the possession of other properties. Due to the failure of the payment of advance amount, would have caused much hardship on the defendants. Section 20 of the Specific Relief Act, 1963 (before the Amendment Act 18 of 2018) makes it very clear that the Court while granting the specific performance will properly exercise its discretion; the Court may refuse for granting a decree for specific performance where the performance of contract would involve some hardship on the defendants which he did not forsee, whereas, the non performance would involve no such hardship on the plaintiff. When the plaintiff's evidence itself clearly shows that the defendants are in debt trap and only in order to clear the debts, they entered into the agreement. The advance amount has also not been paid as per the agreement and even the mortgage debt has not been cleared as agreed. Therefore, the plaintiff is certainly not entitled for specific performance. 22. Further, it is already held that the defendant Nos.3 and 4 were together entitled to half share in the suit property and no permission whatsoever was obtained from the Court. That apart, it is not the case of the parties that only for the benefit of the minors that the properties had been dealt with, hence, in that ground also, the plaintiff is not entitled to get the specific performance. 23. The plaintiff / respondent herein has filed an application in M.P.(MD)No.1 of 2014 seeking to receive additional documents. It is the contention of the plaintiff that the appellants herein had filed a suit in O.S.No.106 of 2009 with the collusion of one P.Murugesan to deviate the rights of the plaintiff. He also contended that the documents now sought to be marked have come into existence only subsequent to the judgment in the original suit. Therefore, those documents are also relevant to decide the issue. Hence, prayed for allowing the miscellaneous petition. 24. This Court perused the entire documents that are sought to be marked. It is relevant to note that though marking additional evidence is permitted to enable the Courts to decide the issue provided the documents are relevant, what is sought to be marked as an additional evidence is only a suit between the appellants and one P.Murugesan. 24. This Court perused the entire documents that are sought to be marked. It is relevant to note that though marking additional evidence is permitted to enable the Courts to decide the issue provided the documents are relevant, what is sought to be marked as an additional evidence is only a suit between the appellants and one P.Murugesan. This Court is of the view that the documents now sought to be marked are not relevant to the present issue. What is relevant to be seen in this appeal is whether the respondent had performed his part of the contract and he is entitled to specific performance. As already discussed earlier, the readiness and willingness to perform the contract is totally absent and the hardship is also not considered by the Court. Hence, the additional evidence now sought to be marked cannot be received at this stage. Hence, M.P.(MD)No.1 of 2014 is dismissed. 25. All the points are answered as against the respondent/ plaintiff. In the mean time, if any money is deposited in pursuant to the decree and judgment before the trial Court by the plaintiff, the same shall be refunded to him. 26. In the result, the Appeal Suit stands allowed. The judgment of the trial Court in favour of the plaintiff is set aside and the suit in O.S.No.94 of 2007, on the file of the learned Additional District Judge, Fast Track Court, Dindigul stands dismissed. No costs.