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2021 DIGILAW 996 (MAD)

T. Senthilkumar v. K. Palanisamy

2021-03-19

G.CHANDRASEKHARAN, T.RAJA

body2021
JUDGMENT : T. RAJA, J. (Prayer: First Appeal has been filed under Order 41 Rule 1 read with Section 96 of Civil Procedure Code, against the judgment and decree dated 20.12.2012 passed in O.S.No.9 of 2012 by the learned Principal District Judge, Tiruppur.) 1. The defendants in the suit are the appellants and the plaintiff in the suit is the respondent. The defendants/appellants herein, having suffered the decree for specific performance granted by the learned trial Court in favour of the plaintiff/respondent herein, has filed this first appeal. 2. For the sake of convenience, the parties will be referred to as arrayed in the original suit. 3. Brief facts leading to the filing of this appeal are stated below: The property in question viz. an extent of 2 acres comprised in S.F.Nos.73/1B and 73/2 in Neruperichal Vilalge, Tirupur Taluk, originally belonged to one N.Ramasamy, son of Nallasamy Gounder, and one P.Thangavelu, father of defendants 1, 3 to 5 and the husband of second defendant as per the sale deed dated 10.03.2003 bearing Document No.1598 of 2003 registered on the file of Sub-Registrar Office, Tiruppur. Subsequently, the said N.Ramasamy sold his share of property viz. 1 acre, with the consent of Thangavelu, to the first defendant/T.Senthilkumar through a registered sale deed dated 21.06.2005 bearing Document No.5928 of 2005 on the file of Sub-Registrar Office, Tiruppur. The aforesaid two sale deeds were marked as Ex.A4 and Ex.A5 before the learned trial Court. While the first defendant and his father/P.Thangavelu were in peaceful possession and enjoyment of the properties, in the year 2007, both of them said to have entered into a sale agreement on 03.12.2007 with the plaintiff for selling the aforesaid two properties, namely, Exs.A4 and A5, for a total sale consideration of Rs.50 lakhs (Rs.25 lakhs per acre). On the date of agreement for sale, the first defendant and his father/P.Thangavelu said to have received Rs.20 lakhs with a condition to pay the remaining amount of Rs.30 lakhs within one year from 03.12.2007. Thereafter, the plaintiff said to have paid further sum of Rs.15 lakhs and Rs.10 lakhs on 05.05.2008 and 03.11.2008 respectively towards the part of sale consideration. Thereafter, the plaintiff said to have paid further sum of Rs.15 lakhs and Rs.10 lakhs on 05.05.2008 and 03.11.2008 respectively towards the part of sale consideration. However, despite receiving Rs.45 lakhs out of total sale consideration of Rs.50 lakhs, since the defendants have not come forward to execute the sale deed, the plaintiff has filed a suit for specific performance of the contract directing the defendants to execute a sale deed in favour of the plaintiff as per the terms of the agreement for sale dated 03.12.2007. 4. Learned trial Court framing the following issues; (1) Whether the plaintiff is entitled for the relief of specific performance as prayed for? (2) Whether the plaintiff is ready and willing to purchase the properties? (3) Whether the title deeds of the defendants are not misplaced and utilized by the plaintiff? (4) Whether the suit agreement was not created to grab the properties? (5) What relief? and after perusing Exs.A1 to A23 marked on the side of the plaintiff and Exs.B1 to B22 marked on the side of the defendants, decreed the suit in favour of the plaintiff directing the defendants to receive the balance sale consideration of Rs.5 lakhs and to execute the sale deed as per the sale agreement dated 03.12.2007 in respect of the suit properties. Aggrieved by the same, the defendants/appellants have filed the present appeal. 5. Mr.N.Manokaran, learned counsel appearing for the defendants/appellants herein would submit that the allegation made in the plaint that suit properties belonged to one Ramasamy and Thangavel by virtue of a sale deed dated 10.03.2003 were vehemently denied, as the suit properties are joint family properties of the defendants, hence, the alleged agreement of sale dated 03.12.2007 said to have been executed by Thangavelu and his son/first defendant with the plaintiff is a forged one. It is further submitted that the stamp papers used by the plaintiff were procured by the plaintiff from the stamp vendor at Coimbatore; that the dates found in the stamp papers used for sale agreement are totally different; and that the serial numbers of the stamp papers used for sale agreement are also totally different from each other. This would show that the sale agreement said to have been prepared on a stamp paper is a manipulated one in connivance with stamp vendor at Coimbatore, when the suit properties itself are in Tirupur District. 6. This would show that the sale agreement said to have been prepared on a stamp paper is a manipulated one in connivance with stamp vendor at Coimbatore, when the suit properties itself are in Tirupur District. 6. Adding further, learned counsel for the appellants would submit that there was no any sale agreement entered among the plaintiff, first defendant and his father/Thanjavelu at any point of time, because, the plaintiff is an utter stranger insofar as the defendants and the suit properties are concerned. When there was no necessity for the sale of the suit properties, neither the first defendant nor his father/Thangavelu ever agreed to sell the suit properties to the plaintiff for a total sale consideration of Rs.50 lakhs. As the plaintiff is owning the property adjacent to the suit properties, he has been attempting to grab the suit properties illegally. Moreover, the first defendant and his father never received any amount towards advance as alleged by the plaintiff. When the suit properties are joint family properties, the other defendants were not made as a party to the suit sale agreement, therefore, the suit sale agreement is unenforceable in the eye of law. 7. Continuing his arguments, he would further submit that the defendants 1 and 3 have lost the original sale deeds dated 10.03.2003 and 21.06.2005 marked as Exs.A4 and A5 respectively and therefore, they have given paper publication on 06.08.2008 about the missing of original sale deeds and thereafter, within two days, the defendants 1 and 3 gave a separate police complaint on 08.08.2008, whereby, Sub-Inspector of Police, Tiruppur North Police Station, have taken the said complaint on file and thereby issued C.S.R.Nos.34/2008 and 38/2008. After the investigation, the Sub-Inspector of Police, North Police Station, Tiruppur, issued a Non-Traceable Certificate on 13.08.2008 confirming the missing of Exs.A4 and A5. Thus, these evidences would clearly show that the original sale deeds/Ex.A4 and A5 were lost and this was never handed over to the plaintiff. Moreover, the first defendant had executed a settlement deed dated 18.11.2008 in favour of the third defendant settling his half share measuring 1 acre and this was marked as Ex.A7. Thus, these evidences would clearly show that the original sale deeds/Ex.A4 and A5 were lost and this was never handed over to the plaintiff. Moreover, the first defendant had executed a settlement deed dated 18.11.2008 in favour of the third defendant settling his half share measuring 1 acre and this was marked as Ex.A7. In addition thereto, partition also took place on 27.11.2008 between the defendants in respect of 1 acre stood in the name of Late P.Thangavelu allotting the suit properties to the defendants 1, 4 and 5 and no property was allotted to the defendants 2 and 3. This was marked as Ex.A8. Therefore, these two documents, namely, Exs.A7 and A8, confirm the fact that the suit properties have been rightly partitioned between the defendants, hence, there was no sale agreement executed by the defendants as alleged by the plaintiff. 8. Assailing the impugned judgment and decree, learned counsel for the appellants would further submit that on receipt of pre-suit notices dated 23.12.2009 and 25.12.2009 issued by the plaintiff, which were marked as Exs.A9 and 12 respectively, the defendants also issued a reply notice on 06.01.2010 and this was marked as Ex.A23. But, surprisingly, issuance of reply notice dated 06.01.2010 by the defendants was suppressed by the plaintiff. It is further contended that when Late Thangavelu and his son/first defendant have got no rights to execute the sale agreement dated 03.12.2007/Ex.A1 in respect of the joint family property; that the signatures and endorsement found in the sale agreement were forged one; that the defendants 2 to 5 were not even parties to Exs.A1 to A3; that the sale agreement was created with the help of bogus stamp vendors after partition deed dated 27.11.2008 executed between the defendants, learned trial Court has not considered any one of these documents. Moreover, the plaintiff has not even established his readiness and willingness to perform his part of the contract, for, there has been a huge delay of 2 years in filing the suit for specific performance, and this would indicate that the plaintiff was not ready and willing to perform his part of the contract which is essential requirement as contemplated under Section 16 of the Specific Relief Act. However, ignoring these vital aspects, learned trial Court has wrongly come to the conclusion that the first defendant has indirectly admitted the execution of sale agreement dated 03.12.2007/Ex.A1; that the execution of Ex.A1 proved through PW2, PW3 and PW5; that the missing of original sale deeds, namely, Exs.A4 and Ex.A5 could not be believable; and that no reply to the pre-suit notice was given by the defendants, when there was a specific reply given by the defendants on 06.01.2010 marked as Ex.A23. Therefore, such an approach adopted by the learned trial Court would clearly show the non-application of mind, he pleaded. 9. It is further submitted that it is the usual accustom and practice in Tiruppur and Coimbatore to handover the original parent document only on the date of execution of sale deed, therefore, the claim made by the plaintiff that on the date of making second payment to the tune of Rs.15 lakhs towards the part of sale consideration, original sale deeds were handed over to him is unbelievable. Moreover, when the possession of the suit property has not been handed over to the plaintiff, learned trial Court, without any valid reason or proof, has given a finding that the possession has been handed over to the plaintiff under Ex.A2, which is factually incorrect. Further, when the sale agreement and the subsequent payment made on 05.05.2008 and 03.11.2008 were all created by the plaintiff by committing an act of forgery, and that the witnesses, namely, PW2 and PW3, are real estate brokers and close associates of the plaintiff, these crucial aspects have been completely ignored by the learned trial Court. This apart, when the defendant filed I.A.No.1058 of 2010 under Order 26 Rule 10A of CPC read with Section 45 of the Evidence Act seeking to get an Expert Opinion as to the genuineness of Exs.A1 to A3, the plaintiff surprisingly opposed the said prayer and thereby, learned trial Court has also wrongly dismissed the said IA on the ground that the defendants have not produced any document with admitted signature, which is also incorrect and unjustified. 10. In support of his submissions, Mr.N.Manokaran, learned counsel for the appellants, has relied on a judgment of the Hon'ble Apex Court in the case of J.P.Builders and another Vs. 10. In support of his submissions, Mr.N.Manokaran, learned counsel for the appellants, has relied on a judgment of the Hon'ble Apex Court in the case of J.P.Builders and another Vs. A.Ramadas Rao and another [ (2011) 1 SCC 429 ] for a proposition that the factum of readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. But, in the present case, as per Section 16(c) of the Specific Relief Act, when the plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract, he has not established that he was ready and willing to perform the essential terms of the contract, because, he has not specifically pleaded as per Form 47 of Appendix A read with Order VI Rule 3 CPC, therefore, granting of decree for specific performance is against the well settled legal position, he pleaded. 11. Again, taking support from the judgment of the Hon'ble Apex Court in Kamal Kumar Vs. Premlata Joshi and others [ (2019) 3 SCC 704 ] for a proposition that the grant of relief of specific performance is a discretionary and equitable relief, Mr.N.Manokaran, learned counsel, contended that in this case, the plaintiff set up a false case taking a stand that on receipt of the advance amount, original sale deeds, namely, Exs.A4 and A5 were handed over to him, but, during the cross-examination, he deposed that the possession has not been handed over, therefore, such a contradictory stand of the plaintiff would show that he has not come to the Court with clean hand as he was playing hot and cold, therefore, the plaintiff is not entitled for the discretionary remedy as decreed by the learned trial Court. 12. Concluding his arguments, Mr.N.Manokaran, taking support of another judgment of the Hon'ble Apex Court in the case of Padmakumari and others Vs. Dasayyan and others [ (2015) 8 SCC 695 ], pleaded that pleadings in the plaint are not in conformity with Order 6 Rule 3 CPC, therefore, the impugned judgment and decree passed by the learned trial Court grating decree in favour of the plaintiff, in the absence of mandatory compliance, cannot be sustained. 13. Dasayyan and others [ (2015) 8 SCC 695 ], pleaded that pleadings in the plaint are not in conformity with Order 6 Rule 3 CPC, therefore, the impugned judgment and decree passed by the learned trial Court grating decree in favour of the plaintiff, in the absence of mandatory compliance, cannot be sustained. 13. Mr.M.S.Krishnan, learned Senior Counsel, for Mr.Rameshkanna, learned counsel for the plaintiff/respondent herein, submitted that the first defendant and his father/Thangavelu entered into a sale agreement on 03.12.2007 agreeing to sell 2 acres of suit properties to the plaintiff and on the said date itself, Rs.20 lakhs was paid out of total consideration of Rs.50 lakhs with a condition to pay the balance amount within one year from 03.12.2007. Thereafter, again, on 05.05.2008, the first defendant approached the plaintiff to advance further sum of Rs.15 lakhs stating that his father/Thangavelu fell sick, whereby the said Thangavelu and his son/first defendant have agreed to handover the original title deeds and vacant possession of the suit properties on receipt of the said sum, and accordingly, on the said date itself, the plaintiff further advanced Rs.15 lakhs and the first defendant and his father/Thangavelu have handed over the original sale deeds, namely, Exs.A4 and A5 and these transactions were also endorsed by them on the back side of the sale agreement dated 03.12.2007. Therefore, it goes without saying that the first defendant and his father/Thangavelu have not only accepted the execution of sale agreement dated 03.12.2007, but, they have also admitted the receipt of second payment to the tune of Rs.15 lakhs. Moreover, handing over of the original sale deeds dated 10.03.2003 and 21.06.2005/Exs.A4 and A5 also further amplifies the case of the plaintiff seeking a decree for specific performance. 14. Moreover, handing over of the original sale deeds dated 10.03.2003 and 21.06.2005/Exs.A4 and A5 also further amplifies the case of the plaintiff seeking a decree for specific performance. 14. In further support of the suit for specific performance, learned Senior counsel argued that even after the alleged drama created by the defendants that they have lost the original sale deeds, namely, Exs.A4 and Ex.A5, for which, they have given paper publication on 06.08.2008 coupled with police complaint on 08.08.2008, they have received further advance amount of Rs.10 lakhs on 03.11.2008 marked as Ex.A3 by extending the time to execute the sale deed till 31.12.2009 and therefore, if the defendants have not really interested to proceed with the sale of the suit properties, they should have rescinded the sale agreement dated 03.12.2007, but, on the contrary, after the death of Thangavelu on 02.06.2008, his son/first defendant has again approached the plaintiff on 03.11.2008 and received further sum of Rs.10 lakhs by extending the time limit till 31.12.2009 for execution of the sale deed and thereafter, executing the settlement deed dated 18.11.2008/Ex.A7 in favour of the third defendant/T.Venkatachalam in respect of his half share measuring 1 acre and then again executing partition deed dated 27.11.2008/Ex.A8 among the defendants in respect of 1 acre stood in the name of Thangavelu allotting the same to the defendants 1, 4 and 5 would clearly prove the bad conduct of the defendants and it further shows that the purported execution of settlement deed dated 18.11.2008 by the first defendant in favour of his brother/the third defendant is only to escape from the execution of sale deed, that too, after receiving Rs.45 lakhs out of total sale consideration of Rs.50 lakhs. 15. Referring to the pre-suit notices dated 23.12.2009/Ex.A9 and 25.12.2009/Ex.A12 issued by the plaintiff, Mr.M.S.Krishnan, learned Senior counsel, argued that after the payment of Rs.45 lakhs, when the plaintiff came to know that the first defendant has executed a settlement deed dated 18.11.2008 in favour of his brother/third defendant and also partition deed dated 27.11.2008/Ex.A8 among the defendants so as to create third party interest in the suit properties for the purpose of defeating the interest of the plaintiff, the plaintiff issued the aforesaid pre-suit notices expressing his willingness and readiness to perform his part of the contract, but, the defendants did not come forward to give any reply to the pre-suit notices. Thereafter, a paper publication was issued on 23.12.2009 marked as Ex.A11 informing the public not to deal with the suit properties and in the said paper publication, clear description of the suit property has also been mentioned. Thereafter, yet another pre-suit notice dated 25.12.2009/Ex.A12 was issued to the defendants calling upon them to execute the sale deed on or before 31.12.2009, in which, a draft sale deed was also enclosed. Despite receiving pre-suit notices, the defendants have not given any reply, therefore, it is not open to them to say that the plaintiff has not expressed his readiness and willingness, when the plaintiff in his pre-suit notice dated 23.12.2009 followed by another pre-suit notice dated 25.12.2009 and also in the plaint has specifically pleaded that he was always ready and willing to pay the balance sale consideration of Rs.5 lakhs and the registration of the sale deed in his favour. Thus, it is clear compliance of requirement mentioned in Padmakumari's case (cited supra) and agreeing with the same only, learned trial Court has rightly decreed the suit for specific performance in favour of the plaintiff. 16. In support of his submissions, referring to another judgment of the Hon'ble Apex Court in the case of Motilal Jain Vs. Ramdasi Devi (Smt) and others [ (2000) 6 SCC 420 ] for a proposition that the compliance of readiness and willingness has to be in spirit and substance and not in letter and form, because, the averment of readiness and willingness in the plaint is not a mathematical formula which should only be in specific words. If the averments in the plaint as a whole do clearly indicate the readiness and willingness of the plaintiff to fulfill his part of the obligations under the contract which is the subject matter of the suit, the fact that they are differently worded will not militate against the readiness and willingness of the plaintiff in a suit for specific performance of contract for sale. Therefore, in this case, out of Rs.50 lakhs of total sale consideration, the plaintiff has paid Rs.45 lakhs on three different dates as stated above and while making the second payment of Rs.15 lakhs, the first defendant and his father/Thangavelu made an endorsement on the back side of the sale agreement dated 03.12.2007 and thereby handed over the original sale deeds/Exs.A4 & A5 as agreed. Subsequently, the defendants have issued a paper publication in a daily newspaper “Daily Thanthi” on 06.08.2008, followed by police complaint on 08.08.2008 alleging that Exs.A4 & A5 were lost by them while they were coming back to home from Advocate office on 03.08.2008. Again, adding fuel to fire, after giving paper publication, they have also approached the police about the missing of original sale deeds/ Exs.A4 & A5, for which, the Sub-Inspector of Police, North Police Station, Tiruppur, issued a Non-Traceable Certificate on 13.08.2008, which was marked as Ex.B5. But, even after the paper publication, followed by police complaint, the first defendant again approached the plaintiff on 03.11.2008 and received further sum of Rs.10 lakhs with further extension of time limit till 31.12.2009 giving a false promise that this amount has to be distributed to other legal heirs of Late Thangavelu since after his demise, they were creating ruckus. Therefore, learned trial Court deprecating the bad conduct of the defendants decreed the suit for specific performance in favour of the plaintiff. 17. It is further submitted that after the filing of the suit on 06.01.2010, the defendants issued a reply notice dated 06.01.2010/Ex.A23 stating yet another falsehood that the plaintiff has suppressed the reply notice given by the defendants, which is also factually incorrect, for, only on the date of filing of the suit i.e. on 06.01.2010, the defendants have given their reply, therefore, the stand taken by the defendants in their written statement that the plaintiff has suppressed the reply notice given by the defendants indicates bad conduct of the defendants, therefore, the present appeal filed by the defendants challenging the well reasoned impugned judgment of the learned trial Court is bereft of any merit and it is liable to be dismissed. 18. In the light of the aforesaid submissions of the learned counsel for the appellants and the learned Senior counsel for the respondent and also on perusal of the documents placed before this Court, now the issues arise for consideration in this appeal are stated below: (1) Whether the plaintiff/respondent has established the execution of the sale agreement dated 03.12.2007/Ex.A1? (2) Whether the findings and conclusions reached by the learned trial Court on the readiness and willingness of the plaintiff as per Section 16(c) of the Specific Relief Act deserve to be confirmed or not? (2) Whether the findings and conclusions reached by the learned trial Court on the readiness and willingness of the plaintiff as per Section 16(c) of the Specific Relief Act deserve to be confirmed or not? (3) Whether the parties to the suit have come to the Court with clean hands? Issue No.1 19. The plaintiff himself deposed as PW1 and he explained as to how the sale price of Rs.50 lakhs was fixed. On payment of Rs.20 lakhs on the date of execution of sale agreement on 03.12.2007, he was again asked to make three other payments to the first defendant. On the date of execution of sale agreement dated 03.12.2007/Ex.A1, Rs.20 lakhs said to have been paid as advance and the same was also mentioned in the said sale agreement. Thereafter, when Late Thangavelu fell sick, on the request made by his son/first defendant and the said Thangavelu himself to pay further advance amount of Rs.15 lakhs agreeing to handover the original sale deeds/Ex.A4 & A5, it was stated that the plaintiff has further paid a sum of Rs.15 lakhs and thereupon, original title deeds were also handed over to him on 05.05.2008 by making endorsement on the back side of the sale agreement dated 03.12.2007. Yet again, after the death of Thangavelu on 02.06.2008, the first defendant said to have approached the plaintiff and requested to pay further advance amount of Rs.10 lakhs so as to enable him to convince other family members for execution of the sale deed. Therefore, it was the claim of the plaintiff that the further advance of Rs.10 lakhs was also paid to him on 03.11.2008 and an endorsement thereby has also been made by the first defendant on the back side of the sale agreement dated 03.12.2007. 20. To establish the execution of the sale agreement dated 03.12.2007 and the part of sale consideration made on three different dates, P.W.1-K.Palanisamy and P.W.3- Parameswaran have deposed about the manner in which the sale agreement was entered into between the parties. Since both of them were witness to the sale agreement and also for the subsequent endorsement about the receipt of further payment, learned trial Court, accepting the said evidence, gave a finding that the execution of the sale agreement dated 03.12.2007 has been sufficiently proved. Since both of them were witness to the sale agreement and also for the subsequent endorsement about the receipt of further payment, learned trial Court, accepting the said evidence, gave a finding that the execution of the sale agreement dated 03.12.2007 has been sufficiently proved. In addition thereto, P.W.5-Velliangiri, who is the scribe of the sale agreement, also deposed that he has scribed the said sale agreement and in his presence, Late Thangavelu and his son/first defendant have received the first advance amount of Rs.20 lakhs on the date of execution of sale agreement by appending their signatures. Moreover, P.W.1 also deposed that Late Thangavelu alone purchased the stamp papers and this deposition was also corroborated by PW5 stating that the stamp papers were purchased by the first defendant in the name of the plaintiff as this fact was informed by the first defendant on the date of execution of sale agreement. Therefore, the finding given by the learned trial Court accepting the execution of sale agreement dated 03.12.2007 on the strength of evidence given by P.Ws.2, 3 and 5, is perfectly in order and accordingly, the first issue is answered in favour of the plaintiff. Issue No.2 21. Coming to the readiness and willingness, it is relevant to extract Section 16 of the Specific Relief Act, which is reproduced hereunder: 16. Personal bars to relief.—Specific performance of a contract cannot be enforced in favour of a person— (a) who would not be entitled to recover compensation for its breach; or (b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or (c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant. Explanation.—For the purposes of clause (c),— (i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court; (ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. A mere perusal of Section 16 envisages that a person seeking specific performance of a contract must prove that he has always been ready and willing to perform the essential terms of the contract which are to be performed by him. In this context, it is relevant to extract below paragraph No.10 and a part of paragraph No.11 of the plaint: “X) The plaintiff was and is always ready and willing to perform his part of contract by paying the balance sale consideration of Rs.5 lakhs and get the sale deed executed and registered in his favour. The plaintiff submits that he has approached the defendants after seeing the Encumbrance Certificate and informed his willingness to pay the balance of sale consideration of Rs.5 lakhs and also his readiness and willingness to perform his part of the contract. However, the defendants have been dodging and delaying and reluctant to execute and register the sale deed for reason best known to them. XI) The plaintiff is entitled to enforce the agreement and the defendants are bound to fulfill their part of contract by receiving the balance sale consideration of Rs.5,00,000/- and execute and register the sale deed in favour of the plaintiff. The plaintiff is ready and willing to perform his part of the contract and the defendants are bound to fulfill their part of the contract immediately. Even as per agreement, in case of any breach on the part of the plaintiff, he is entitled for relief of specific performance and the plaintiff has no other option except to enforce the said clause, if the defendants fail to fulfill their part of contract. The defendants have already committed breach of contract and failed and neglected to receive the balance sale consideration and execute and register the sale deed in favour of the plaintiff as per the agreement. As for the agreement, time is fixed till 31.12.2009. The defendants have already committed breach of contract and failed and neglected to receive the balance sale consideration and execute and register the sale deed in favour of the plaintiff as per the agreement. As for the agreement, time is fixed till 31.12.2009. The plaintiff is ready with the balance sale consideration of Rs.5 lakhs and also willing to get the sale deed executed and registered in his name. The plaintiff therefore, issued legal notice dated 23.11.2009 calling upon the defendants to fix a date on or before 31.12.2009 and to come to the Registrar Office at Tiruppur and execute and register the sale deed and receive the balance sale consideration of Rs.5 lakhs......................” The above paragraphs extracted from the plaint show that the plaintiff has repeatedly expressed his willingness and readiness to perform his part of the contract by paying balance meagre sum of Rs.5 lakhs, as he has already paid Rs.45 lakhs out of the total sale consideration of Rs.50 lakhs. Therefore, the ratio laid down by the Hon'ble Apex Court in Motilal Jain's (cited supra) that the language in Section 16(c) of the Specific Relief Act, 1963, does not require any specific phraseology but only the plaintiff must aver that he has preformed or has always been and is willing to perform his part of the contract has to be established. In this context, relevant observation made in said judgment is extracted below: “9. That decision was relied upon by a three Judges Bench of this Court in Syed Dastagirs case (supra), wherein it was held that in construing a plea in any pleading, courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of ones case for a relief. It is pointed out that in India most of the pleas are drafted by counsel and hence they inevitably differ from one to the other; thus, to gather true spirit behind a plea it should be read as a whole and to test whether the plaintiff has performed his obligations, one has to see the pith and substance of the plea. It was observed, Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. It was observed, Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16(c) of the Specific Relief Act, 1963 does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of readiness and willingness has to be in spirit and substance and not in letter and form. It is thus clear that an averment of readiness and willingness in the plaint is not a mathematical formula which should only be in specific words. If the averments in the plaint as a whole do clearly indicate the readiness and willingness of the plaintiff to fulfil his part of the obligations under the contract which is subject- matter of the suit, the fact that they are differently worded will not militate against the readiness and willingness of the plaintiff in a suit of specific performance of contract for sale.” 22. In the case on hand, as stated above, after the demise of Thangavelu, his son/first defendant approached the plaintiff and requested to advance further sum of Rs.10 lakhs and accordingly, the plaintiff has also paid the said sum on 03.11.2008 with extension of time limit for execution of sale deed till 31.12.2009 and this fact was also endorsed on the back side of the sale agreement dated 03.12.2007/Ex.A1. In the meanwhile, the plaintiff applied for Encumbrance Certificate on 16.12.2009, whereby an entry was found with regard to settlement deed dated 18.11.2008/Ex.A7 registered as Document No.10911/2008 by the first defendant in favour of his brother/third defendant. Besides, another entry was found with regard to partition deed dated 27.11.2008/Ex.A8 entered among the defendants. As the settlement deed dated 18.11.2008 and the partition deed dated 27.11.2008 are subsequent to the sale agreement dated 03.12.2007 entered with the plaintiff, realizing that some attempts have been made to defeat his legal rights over the suit properties, the plaintiff has issued pre-suit notice dated 23.12.2009/Ex.A9 expressing his readiness and willingness to pay the balance amount of Rs.5 lakhs and on receipt of the same, to execute the sale deed. But, there was no reply from the defendants. But, there was no reply from the defendants. Therefore, the plaintiff issued a public notice on 23.12.2009/Ex.A11 informing the third parties not to deal with the suit properties. Again, the plaintiff issued another pre-suit notice dated 25.12.2009/Ex.A12 calling upon the defendants to come forward to receive the balance sale consideration of Rs.5 lakhs and then to execute the sale deed, but, again, there was no response. Therefore, the plaintiff filed a suit for specific performance on 06.01.2010, but, on the said date only, the defendants issued a reply notice which was marked as Ex.A23 denying the execution of the sale agreement by the first defendant and his father/Late Thangavelu, besides stating that the plaintiff was a total stranger. When the plaintiff has issued two pre-suit notices dated 23.12.2009 and 25.12.2009 calling upon the defendants to come forward to receive the balance amount of Rs.5 lakhs and to execute the sale deed in respect of the suit properties, giving a reply notice only on the date when the suit was filed by the plaintiff on 06.01.2010 does not sound good, hence, the allegation of the defendants that the plaintiff has suppressed the reply notice indicates that the defendants have set up a false case. Thus, the payment of Rs.45 lakhs on three different dates as stated supra coupled with endorsement made by the first defendant on the back side of the sale agreement dated 03.12.2007 acknowledging receipt of the said amount and the issuance of pre-suit notices dated 23.12.2009 and 25.12.2009 followed by paper publication on 23.12.2009 would show that the plaintiff has been always willing and ready to discharge his part of contractual obligation. Therefore, we do not find any merit on the stand taken by the defendants that the plaintiff was not ready and willing to perform his part of the contract as he filed the suit after two years from the date of sale agreement dated 03.12.2007. Accordingly, the second issue is also answered in favour of the plaintiff. Issue No.3: 23. Therefore, we do not find any merit on the stand taken by the defendants that the plaintiff was not ready and willing to perform his part of the contract as he filed the suit after two years from the date of sale agreement dated 03.12.2007. Accordingly, the second issue is also answered in favour of the plaintiff. Issue No.3: 23. To wriggle out the sale agreement dated 03.12.2007/Ex.A1, the defendants 1 and 3 taking somersault said to have issued paper publications in two tamil dailies, namely, “Tamil Murasu” and “Dinathanthi” on 06.08.2008 stating that while they were coming back to home from Advocate Office, they have lost original sale deeds, namely, Exs.A4 and A5 and for better understanding, the same are extracted below: “TAMIL” A. JEGADEESH, B.A., B.L., S. RAMAN, B.A., B.L., ADVOCATES. 25/18 POLICE LINE, TIRUPUR – 641 601 A reading of the above shows that the document bearing No.5928/2005 was lost on 03.08.2008 at Avinashi Road by the first defendant while he was coming back on a twowheeler to home from the Advocate office. Likewise, the document bearing No.1598/2003 was also lost by by the third defendant on 04.08.2008 while he was coming back on a twowheeler to home from the Advocate office. When Ex.A5-sale deed dated 21.06.2005 was said to have lost on 03.08.2008 by the first defendant, it is not known how his brother/third defendant also can claim that he too has lost another sale deed bearing Document No.1598/2003, dated 10.03.2003, when both these documents said to have been given to the plaintiff as a mark of showing readiness and willingness to execute the sale deed. Moreover, the conduct of the defendants shows that after giving a paper publication on 06.08.2008 about the missing of Exs.A4 and A5, followed by police complaint on 08.08.1988 for which the police have also issued CSR.Nos.34/2008 and 38/2008, it is not known how they can come and collect further sum of Rs.10 lakhs from the plaintiff on 03.11.2008 with extension of time limit for execution of the sale deed till 31.12.2009. Such conduct of the defendants clearly shows that they have not only merely denied the execution of sale agreement but also attempted to defeat the plaintiff's right over the suit properties. 24. Such conduct of the defendants clearly shows that they have not only merely denied the execution of sale agreement but also attempted to defeat the plaintiff's right over the suit properties. 24. One of the arguments of the learned counsel for the defendants/appellants is that the signatures of Late Thangavelu and his son/first defendant are forged one and therefore, they have moved an application in I.A.No.1058 of 2010 under Order 26 Rule 10A of CPC read with Section 45 of the Evidence Act to get an expert opinion as to the genuineness of Exs.A1 to A3. But, since the said IA was opposed by the plaintiff, the same was dismissed by the learned trial Court holding that the defendants have not produced the documents with admitted signatures so as to enable the Court to get an expert opinion as to the genuineness of Exs.A1 to A3. The defendants have not even filed any other documents with signatures of the first defendant and his father/Late Thangavelu enabling the Court to compare the signatures. When it is the duty cast on the defendants to place before the Court that the signatures of first defendant and his father differ from the signatures found in the sale agreement dated 03.12.2007, they should have placed some acceptable documents bearing their signatures before the learned trial Court to compare the signatures, which they have not done so. This would further show that the defendants played every tricks and techniques to delay the execution of the sale deed, therefore, learned trial Court has rightly rejected the stand taken by the defendants. However, when this argument was placed before us by virtue of Section 73 of the Evidence Act, we have compared with the signatures of the first defendant and his father/Late Thangavelu found in the sale agreement dated 03.12.2007 with that of signatures found in the other documents and we are not able to find any slightest variation of their signatures. Accordingly, third issue is also answered in favour of the plaintiff. 25. Accordingly, third issue is also answered in favour of the plaintiff. 25. Lastly, before parting with the matter, at the risk of repetition, we are compelled to re-state the dodging attitude of the defendants; (i) that after receiving Rs.45 lakhs out of the total sale consideration of Rs.50 lakhs, the defendants were evading and reluctant to execute the sale deed; (ii) that the defendants have made a false statement before the learned Court below that the plaintiff has suppressed the reply received by him, when they themselves sent a reply notice only on 06.01.2010, by the time suit has already been filed; (iii) and that after giving false police complaint on 08.08.2008 stating that original sale deeds dated 10.03.2003/Ex.A4 and 21.06.2005/Ex.A5 were lost, the first defendant again meeting the plaintiff and extracting another sum of Rs.10 lakhs by making an endorsement on the back side of the sale agreement dated 03.12.2007, but, even thereafter, executing settlement deed dated 18.11.2008 and partition deed dated 27.11.2008 among the defendants with a view to defeat the plaintiff's right over the suit properties and to escape from the execution of the sale deed, vividly shows that the defendants have no regards or fear for the rule of law. 26. We are also fully aware of the popular legal maxim “He who seeks equity must do equity and he who comes to Court must come with clean hands”. As such, in view of repeated falsehood one after another willfully made by the defendants, namely, giving of false public notice, false police complaint and fraudulent execution of settlement deed dated 18.11.2008 and the partition deed dated 27.11.2008 to defraud the plaintiff's legal right over the suit properties and thereafter wasting the precious time of the Court playing hide and seek with all forms of manipulation to deceive the plaintiff, police, trial Court and this Court too, this Court, taking note of such bad and troublesome conduct of the defendants and also considering the fair presentation of the case by Mr.N.Manokaran, learned counsel for the defendants, instead of imposing exemplary costs, hereby imposes a token costs of Rs.2 lakhs against the defendants/appellants herein payable to the plaintiff/respondent herein within a period of four weeks from the date of receipt of a copy of this judgment. In fine, for the reasons stated above, the appeal is dismissed by confirming the impugned judgment and decree passed by the learned trial Court.