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2022 DIGILAW 112 (MAD)

A. Velan v. K. Ramasamy

2022-01-11

G.CHANDRASEKHARAN

body2022
JUDGMENT : This Second Appeal is directed against the judgment of the learned IV Additional District and Sessions Judge, Coimbatore in A.S.No.3 of 2016 modifying the judgment of the learned Camp Subordinate Judge, Mettupalayam in O.S.No.1 of 2013. 2. The respondent/plaintiff filed the suit for specific performance of contract on the basis of sale agreement dated 19.07.2012 or alternative relief of refund of advance amount of Rs.50,000/- with interest and for costs. 3. The case of the respondent/plaintiff is that the first appellant and his brother Krishnan succeeded to the property to an extent of 2.61acres in S.F.No.438/2 in Sirumugai Village. Respondent is a leasee in this property for thirty years. On 20.01.1992, respondent purchased an extent of 1.30 ½ acre of this property from the appellants and Krishnan. Again on 30.12.2005, he purchased 64 ¾ acres from the remaining extent of this property, from Krishnan and his son. Then respondent settled these properties in favour of his wife by two settlement deeds dated 15.11.2004 and 04.03.2008 respectively. He was cultivating tenant in respect of the remaining extent of 65 ½ cents in this property. A dispute arose between the respondent and appellants with regard to the purchased properties. Therefore, two suits were filed, one in O.S.No.148 of 2008 by the respondent's wife and another by appellants in O.S.No.217 of 2008. Both the suits are pending before the learned District Munsif, Mettupalayam. On 19.07.2012 appellants agreed to sell the 65 ½ cents, the remaining extent in the above mentioned property for a sale consideration of Rs.3,50,000/-. An advance of Rs.50,000/- was paid. A time limit of two months was fixed for completing the sale. Respondent was always ready and willing to perform his part of a contract by paying the balance sale consideration and complete the sale. When he requested the appellants several times for executing the sale deed, they prolonged it under one pretext or the other. They informed the respondent that they will execute the sale deed on 13.09.2012, but failed to come to the Sub Registrar's office at Mettupalayam to execute the sale deed. On 14.09.2012, respondent sent legal notice calling upon the appellants to be present on 17.09.2012 and 18.09.2012 for the execution of sale deed after receiving the balance sale consideration. First appellant did not send a reply but the second appellant sent reply on 24.09.2012. On 14.09.2012, respondent sent legal notice calling upon the appellants to be present on 17.09.2012 and 18.09.2012 for the execution of sale deed after receiving the balance sale consideration. First appellant did not send a reply but the second appellant sent reply on 24.09.2012. He admitted the sale agreement dated 19.07.2012, but denied the description of the property in the draft sale deed. Respondent sent a rejoinder dated 08.12.2012, with a view to give opportunity to the appellants and correct the date of sale agreement as 19.07.2012 instead of 19.06.2012. Notice was received by counsel for the appellants, however they have not come forward to execute the sale deed. Therefore, the suit. 4. Appellants admitted the trace of title, but it is denied that respondent is a cultivating tenant in respect of the suit property for thirty years. An extent of 1.30acre belong to the brother of first appellant was alone sold. Appellants are not aware of the settlement deed executed by the respondent in favour of his wife. The contention that Krishnan and his son sold remaining extent of 64 ¾ cents to the respondent is totally un-acceptable for the reason that appellants at no point of time sold any share of their properties to the respondent under the sale deed dated 20.01.1992. It is denied that respondent is a cultivating tenant in respect of the suit property measuring 65 ½ cents. Appellants never sold any share in the above said survey number, sale deed dated 20.01.1992 and 30.12.2005 will not bind the appellants. It is true that the sale agreement for selling 65 ½ cents was executed, but it is not correct to say that time is not construed as essence of contract. The claim of the respondent that he was always ready and willing to perform his part of contract and requested the appellants to come to Sub Registrar's office are factually not correct. Appellants refused to come to Sub Registrar's office to execute the sale deed for the reason that the description of property mentioned in the draft sale deed is incorrect. The description was given with a wrong motive to prejudice the appellants in the pending litigations. A suitable reply was sent on 24.09.2012. The recitals are incorporated in the sale deed, as if the appellants have no other extent of property available in the suit survey number. The description was given with a wrong motive to prejudice the appellants in the pending litigations. A suitable reply was sent on 24.09.2012. The recitals are incorporated in the sale deed, as if the appellants have no other extent of property available in the suit survey number. Respondent has approached the Court with unclean hands and therefore, not entitled for the relief of specific performance. 5. The trial Court framed the following issues, i) Whether the sale agreement dated 19.07.2012 between the plaintiff and respondent is true and enforceable? ii) Whether the plaintiff was ready and willing to perform his part of the contract. iii) Whether the plaintiff is entitled for the relief of specific performance prayed for? iv) Whether the plaintiff is entitled for the relief of refund of advance amount? vi) To what relief, if any, plaintiff is entitled? 6. During the trial PW1 to PW3 were examined and Exhibits A1 to A12 were marked on the side of the respondent/plaintiff. DW1 was examined on the side of the appellants/defendants and no document was marked. 7. On considering the oral and documentary evidence, learned trial Judge found that there was a mischief in describing the suit property, respondent was not ready and willing to correct that mischief, respondent was not ready and willing to perform his part of contract. In this view of the matter, learned Trial Judge denied the relief of specific performance of contract of executing the sale deed, but granted the alternative relief of refund of advance amount with interest. Respondent/plaintiff challenged this judgment in appeal in A.S.No.3 of 2016. The learned Appellate Judge reconsidered the evidence and came to the conclusion that, respondent is entitled for the relief of specific performance and decreed the suit. Against the said judgment, the appellants/defendants filed this Second Appeal. 8. At the time of admission of the Second Appeal, following substantial questions of law were framed, i) (a) Whether the Lower Appellate Court is right in rendering the finding that the plaintiff has proved his readiness and willingness by issuing legal notice to the vendor calling him to execute the sale deed? (b) Whether mere issuance of legal notice is enough to prove readiness and willingness on the part of plaintiff? ii) Whether the Lower Appellate Court is right in ordering specific performance when the description of property in the draft sale deed is in dispute? (b) Whether mere issuance of legal notice is enough to prove readiness and willingness on the part of plaintiff? ii) Whether the Lower Appellate Court is right in ordering specific performance when the description of property in the draft sale deed is in dispute? iii) Whether the Lower Appellate Court is right in rendering the finding that the appellants herein were not ready to execute the sale deed and the respondent herein was ready by relying the bank deposit receipt (Exhibit A10) deposited subsequent to the agreement period? 9. The learned counsel for the appellants submitted that execution of sale agreement namely Exhibit A3 is admitted by the appellants. The draft sale deed sent by the respondent to the appellants, for their approval, do not contain correct details of the property agreed to be sold. The respondent mischievously inserted a paragraph, wherein, it is alleged that appellants had sold a portion of the property in the survey number to the respondent and they are selling the remaining extent in the same survey number to the respondent, meaning thereby, that the appellants have no more property available in the said survey number, that is, survey No.438/2. On the other hand the appellants are entitled to 1.30acres in survey No.438/2. They executed the sale agreement only to an extent of 65 ½ cents. This mischievous recitals in the draft sale deed shows that respondent included this recitals to prejudice the appellants in the cases pending on the file of the learned District Munsif, Mettupalayam, in O.S.No.148 of 2008 and O.S.No.217 of 2008. Respondent has not approached the Court with clean hands. There is a change in survey number in the suit property and description of the suit property. Not only that, respondent was not ready and willing to perform his part of contract, even after the execution of sale agreement. Therefore, the respondent is not entitled for the relief of specific performance of the contract. The Trial Court has rightly considered this aspect and dismissed the claim of specific performance of the contract, but only granted the relief of return of advance amount. However, the first Appellate Court, without properly considering the issues involved in this case, had wrongly reversed the finding of the Trial Court and granted decree of specific performance. The Trial Court has rightly considered this aspect and dismissed the claim of specific performance of the contract, but only granted the relief of return of advance amount. However, the first Appellate Court, without properly considering the issues involved in this case, had wrongly reversed the finding of the Trial Court and granted decree of specific performance. Therefore, he prayed for setting aside the judgment of the First Appellate Court and for restoring the judgment of the Trial Court. 10. In response, learned counsel for the respondent submitted that out of the total extent of 2.61acres inherited by first appellant and his brother Krishnan, each are entitled to 1.30 ½ acres. Appellants and Krishnan sold 1.30 ½ acres to the respondent on 20.01.1992. This extent is inclusive of the share of the appellants. Then, on 30.12.2005, Krishnan and his son sold 64 ¾ cents to the respondent. Out of 2.61acres in the suit survey number, only 65cents is available with the appellants. The sale agreement was executed only in respect of this balance 65cents. Neither appellants nor Krishnan has any more extent of property in survey No.438/2. Respondent's wife filed suit in O.S.No.148 of 2008 for the relief of declaration of title and injunction only in respect of the lands purchased by respondent and settled in her favour, that is, to the extent of 1.96acres. On the other hand, appellants filed O.S.No.217 of 2008 seeking the relief of permanent injunction in respect of the entire extent of property in survey No.438/2, that is, to an extent of 2.61acres. This is an atrocious claim. Except 65cents owned by appellants in survey No.438/2, there is no extent of property available to them in that survey number. Therefore, the draft sale deed was prepared with appropriate recitals and taking note of subsequent sub division. There is absolutely no defect in describing the property to be purchased. Except the survey number all the other description confirm to the description of property in the sale agreement. Finding that appellant has good case and he was always ready and willing to perform his part of contract and in fact he deposited the balance sale consideration in the Court, the First Appellate Court reversed the finding of the Trial Court and granted the decree of specific performance. Finding that appellant has good case and he was always ready and willing to perform his part of contract and in fact he deposited the balance sale consideration in the Court, the First Appellate Court reversed the finding of the Trial Court and granted the decree of specific performance. Therefore, the learned counsel for the respondent prayed for confirming the judgment of the First Appellate Court and for dismissal of this Second Appeal. 11. Considered the rival submissions and perused the records. 12. From the pleadings and submissions of the counsel narrated above, it is clear that the appellants admit the execution of Exhibit A3 sale agreement, agreeing to sell the property covered under Exhibit A3 to the respondent for a consideration of Rs.3,50,000/-. It is also admitted that an advance of amount Rs.50,000/- was paid. Reason for the refusal for executing the sale deed in favour of the respondent is that, certain recitals in the draft sale deed sent by the respondent/plaintiff contained objectionable recitals. That is, it is recited in the draft sale deed that appellants have no more extent of land available in survey No.438/2. This recital is not correct for the reason that appellants are entitled to 1.30acres in survey No.438/2. They have their remaining lands to an extent of 65cents in survey No.438/2. This is suppressed in the draft sale deed and in fact it is recited that appellants have no more extent of land available in survey No.438/2. It is not correct and therefore they refused to execute the sale deed. 13. Admittedly, appellants and first appellants brother Krishnan inherited an extent of 2.61acres in survey No.438/2 from their father Avinashi. At the most, both, first appellant and Krishnan can claim only an extent of 1.30 1/2 acres each. It is the claim of the appellant that they have never executed the sale deed on 20.01.1992 in favour of the respondent. Appellants claim that they joined in executing the sale deed dated 20.01.1992 only for confirming that a portion of the property belong to Krishnan was sold. The sale deed dated 20.01.1992 is not produced for the perusal of this Court. But the fact remains that appellants and Krishnan along with legal heirs jointly sold 1.30 ½ acres of land in survey No.438/2 to the respondent. The sale deed dated 20.01.1992 is not produced for the perusal of this Court. But the fact remains that appellants and Krishnan along with legal heirs jointly sold 1.30 ½ acres of land in survey No.438/2 to the respondent. It is not open to the appellants to give evidence contrary to the contents of the sale deed dated 20.01.1992, at this point of time. Thus, effectively, 50% of the land in survey No.438/2 belong to appellants and Krishnan had been sold to respondent through the sale deed dated 20.01.1992. 14. There is a remaining extent of 1.30 ½ acres. It is the case of the respondent that respondent purchased an extent of 64 ¾ cents from Krishnan and his son. What is left if only 65 ½ cents belong to appellants. That property is now sought to be sold by the appellants through Exhibit A3 sale agreement to the respondent. Therefore, the claim of the appellants that they have some more extent of property in survey No.438/2 is not true. They have only 65½ cents in survey No.438/2. Now, they enter into sale agreement for selling this extent of land to the respondent. Therefore, the recitals in the draft sale deed cannot be considered as wrong. It is perfectly in order. Except the survey number, other descriptions including the boundaries of the suit property confirms to the description of property given in Exhibit A3 sale agreement. The survey number is given as 438 in the sale agreement. It is now shown as 438/2, taking into consideration the sub division. This minor change will no way affect the merits of the case. 15. As per order VII Rule 3, it is enough, if the suit properties is identified by boundaries or numbers. Order VII Rule 3 reads as follows, “Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers.” 16. This provision makes it clear that when describing the immovable property, the description should be sufficient enough to identify it with its boundaries or numbers. In the case before hand, the suit property is described with boundaries and the survey number. Boundaries prevail over survey number is the settled proposition of law. This provision makes it clear that when describing the immovable property, the description should be sufficient enough to identify it with its boundaries or numbers. In the case before hand, the suit property is described with boundaries and the survey number. Boundaries prevail over survey number is the settled proposition of law. There is no change in boundaries in the sale agreement, in the plaint and in the draft sale deed. Therefore the claim of the appellants that there are mis-description in the recitals and description of property cannot be accepted. The learned counsel for the appellants produced the judgment in Appeal (Civil) 1673 of 2008 (Puran Ram Vs. Bhaguram and Another) for the proposition that unless the plaint is suitably amended, regarding the survey number, appropriate relief cannot be granted. In the case before hand, this Court found that there is no serious flaw in describing the suit property and therefore, amendment is not necessary in this case. This judgment is not applicable to the facts and circumstances of this case. 17. The sale agreement was entered into between the parties on 19.07.2012 giving two months time for completion of sale. Respondent had issued legal notice even before the completion of the two months, that is on 14.09.2012. It is seen that he had also deposited a sum of Rs.3,00,000/- in fixed deposit. It shows that he has sufficient wherewithal, to pay the balance sale consideration. He was always ready and willing to perform his part of contract from the date of execution of sale agreement. The learned Trial Judge failed to consider all these aspects and wrongly dismissed the suit. However, the learned First Appellate Judge has considered the oral and documentary evidence in detail and rightly concluded that respondent is entitled for the relief of specific performance of contract. This Court finds no reason to interfere with the judgment of the First Appellate Court and confirms the judgment. 18. However, the learned First Appellate Judge has considered the oral and documentary evidence in detail and rightly concluded that respondent is entitled for the relief of specific performance of contract. This Court finds no reason to interfere with the judgment of the First Appellate Court and confirms the judgment. 18. For the reasons aforesaid, this Court answers the first substantial question of law, the Appellate Court was right in finding that plaintiff has proved his readiness and willingness by issuing notice followed by depositing the balance sale consideration, for substantial question of law number one; there is no serious dispute with regard to the description of property in the sale deed, for substantial question of law number two; the First Appellate Court was right in recording a finding that appellants were not ready to execute the sale deed but, respondent was ready and willing to perform his part of contract for the completion of sale, for substantial question of law number three. In the result, this Court confirms the judgment of the learned First Appellate Judge in A.S.No.3 of 2016 and dismisses this Second appeal with the costs of the respondent throughout. Consequently, connected miscellaneous petition is closed.