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2022 DIGILAW 3950 (MAD)

M. K. Majeeth Kamal Batshah (Died) v. M. K. Atham

2022-12-19

N.MALA

body2022
JUDGMENT : PRAYER: Appeal Suit filed under Section 96 of Code of Civil Procedure, to set aside the judgment and decree dated 21.10.2013 passed in O.S.No.20 of 2010 on the file of the District Judge, Sivagangai. The appeal arises out of a suit for specific performance of an agreement of sale dated 22.08.2007 The defendants are the appellants in the above first appeal. The plaintiff and first defendant are brothers. The defendant is the owner of the suit property having purchased the same under a sale deed, dated 12.05.2005 (Exhibit B.6). The plaintiff and defendant entered into an agreement of sale of the suit property which is a coconut garden admeasuring 6 acres and 8 cents in S.Nos.19/7, 19/8A, 19/8B, 19/9, 19/10, 19/11, 19/12A, 19/12B and 19/13 on 22.08.2007 for a sale consideration of Rs.20,00,000/- (Rupees Twenty Lakhs only). An advance of Rs.15,00,000/- (Rupees Fifteen Lakhs only) was paid by the plaintiff to the defendants on the date of the agreement and the balance of Rs.5,00,000/- (Rupees Five Lakhs only) was agreed to be paid within a period of 1 year from the date of agreement. The suit agreement was a registered agreement. As the defendant was evading performance, the plaintiff issued an advocate notice on 06.08.2008 demanding performance to which the defendant replied on 19.08.2008 raising untenable pleas, therefore the plaintiff filed the suit for specific performance of the agreement of sale deed dated 22.08.2007. 2. The defendant contested the suit and in his written statement referred to the back drop of facts leading to the purchase of the suit property by him vide sale deed dated 12.05.2005. The defendant while denying all the contentions raised in the plaint stated that the sale agreement was executed to enable the plaintiff to raise bank loan for setting up poultry and Diary farm business and that no consideration passed under the agreement. The defendant therefore submitted that the suit deserved to be dismissed. 3. The trial Court on the basis of the pleadings of the both parties framed the following issues : 1. Whether the plaintiff is entitled to the relief of specific performance of the sale agreement, dated 22.08.2007 as prayed for? 2. To what other relief, the plaintiff is entitled? 4. The trial Court on the basis of the pleadings of the parties and the evidence on record decreed the suit. Whether the plaintiff is entitled to the relief of specific performance of the sale agreement, dated 22.08.2007 as prayed for? 2. To what other relief, the plaintiff is entitled? 4. The trial Court on the basis of the pleadings of the parties and the evidence on record decreed the suit. Aggrieved by the judgment and decree of the trial Court, the defendant has filed the above appeal. 5. The learned counsel for the appellants submitted that the suit agreement was executed for enabling the plaintiff to raise loan from the Bank for setting up poultry and Dairy farm business. The learned counsel submitted that absolutely no consideration passed under the agreement. The learned counsel for the appellant further submitted that the lower Court failed to note that the plaintiff did not satisfy the mandatory requirements of Section 16(C) of the Specific Relief Act and hence ought to have non-suited the plaintiff. The learned counsel referred to the inconsistencies in the plaintiff's side evidence in support of his submissions and prayed that the appeal be allowed. 6. In reply, the learned counsel for the respondent submitted that the suit sale agreement was a registered agreement and that the submission of the appellant's counsel that the suit sale agreement was executed for enabling the respondent to raise Bank loan is frivolous submission because no Bank would advance loan on a mere agreement of sale. The learned counsel for the respondent further submitted that the plaintiff satisfied the mandatory requirements of Section 16 (C) of Specific Relief Act and in any event neither any plea was raised by the appellant in this regard nor was an issue framed by the trial Court. The learned counsel for the respondent referred to the defendant's evidence to support his submissions and prayed that there are no merits in the appeal and hence the trial Court judgment and decree should be affirmed. 7. I have heard both side counsels and perused the materials on record. The issues that raise for determination in this appeal are as under : (1) Whether the suit sale agreement is valid and enforceable in law? (2) Whether the plaintiff has satisfied the mandatory requirements of Section 16(C) of the Special Relief Act? (3) To what other relief is the plaintiff entitled? The parties will be referred to as per their rank in the suit for sake of convenience. (2) Whether the plaintiff has satisfied the mandatory requirements of Section 16(C) of the Special Relief Act? (3) To what other relief is the plaintiff entitled? The parties will be referred to as per their rank in the suit for sake of convenience. Back drop of facts: 8. The undisputed facts of the case are that the plaintiff and defendant are own brothers and that the defendant is the owner of the suit property. According to the plaintiff, he entered into a registered agreement for sale of the suit property with the defendant on 22.08.2007 for a sale consideration of Rs.20,00,000/- and an advance of Rs.15,00,000/- was paid on the date of the sale agreement. The time for performance was one year. As the defendant evaded performance the plaintiff sent a notice on 06.08.2008 and the defendant sent a reply on 19.08.2008 making false and frivolous averments therein and hence the plaintiff filed the suit. The defendant, on the other hand, though admitted the execution of the suit sale agreement submitted that it was executed only to facilitate the plaintiff to raise bank loans for setting up poultry and Dairy farm business. The defendant denied the receipt of any consideration under the sale agreement. The defendant therefore prayed for the dismissal of the suit. DISCUSSION: 9. As far as the first aspect of validity of the suit sale agreement is concerned, the learned counsel for the appellant has raised three grounds. The first objection is that the agreement was a sham and nominal transaction and was entered into for the purpose of enabling the plaintiff to raise loan from the Bank. The second objection is as to passing of consideration and third objection is with regard to limitation. I will consider each of the objections separately. (i) Agreement sham and Nominal Transaction: It is the case of the defendant that the suit sale agreement was sham and the real intention was only to facilitate the plaintiff to raise loan from the Bank for starting a poultry and Diary farm business. It is unfathomable as to how a mere sale agreement would enable the plaintiff to raise loan. It is well settled that no title passes under a mere sale agreement. Therefore this contention of the learned counsel for the appellant cannot be accepted. It is unfathomable as to how a mere sale agreement would enable the plaintiff to raise loan. It is well settled that no title passes under a mere sale agreement. Therefore this contention of the learned counsel for the appellant cannot be accepted. The defendant in his cross examination has stated as follows : From the evidence of the defendant, it is lucid that the defense is set up only to wriggle out of the sale agreement. It is admitted that the plaintiff and defendants are own brothers and if really the sale agreement was entered into for the purpose of availing loan the defendant would have enquired about it. I am therefore of the view that the plea that the sale agreement is sham and nominal transaction is untenable and hence rejected. (ii) Passing of consideration: It is the contention of the learned counsel for the appellant that the defendant did not receive any consideration under the sale agreement. The initial burden is on the plaintiff to prove the passing of consideration. In this regard, the evidence of the plaintiff as P.W.1, P.W.2 and P.W.3, who are the attestors of the sale agreement is cogent and consistent. All the three witnesses consistently state that the consideration was paid in the Sub- Registrar's office after signing the sale agreement. The evidence of the plaintiff's witnesses is extracted to show how consistently they have deposed on passing of consideration. From the evidence of the plaintiff, it is clear that the part consideration of Rs.15,00,000/- was paid by the plaintiff. The evidence of the defendant in contrast is not trust-worthy. The defendant has not examined any other person except himself. The defendant as D.W.1 states as follows in his cross-examination. This evidence when read with his evidence that he has entered into several transaaction and that he used to sign only after reading will clearly establish that the defendant's evidence is unnatural and unbelievable. Therefore, from the evidence on record, it is clear that the agreement of sale is supported by consideration and the contentions to the contrary are rejected. (iii) Limitation: The learned counsel for the defendant made a feeble attempt to contend that the plaintiff has abandoned the contract as he has filed the suit 1 ½ years after the reply notice declining performance. (iii) Limitation: The learned counsel for the defendant made a feeble attempt to contend that the plaintiff has abandoned the contract as he has filed the suit 1 ½ years after the reply notice declining performance. At the outset, it is to be noted that no such ground is raised in the grounds of appeal. A plea of limitation was raised in the written statement and the same was rejected by the Trial Court on the factual finding that the suit was filed within three years both from the date of agreement as also the time fixed for performance. It is seen that the delay in filing the suit was properly explained by the plaintiff in the plaint. The plaintiff stated that as the defendant was his own brother, he was trying to amicably settle the matter with the defendant through negotiations in the presence of relatives and friends. I am therefore of the view that the said objection cannot be entertained. 10. The next aspect is the contention of the appellant's counsel that the plaintiff has neither averred nor proved that he was ever ready and willing to perform his part of the contractual obligations. The learned counsel therefore submits that the plaintiff's suit should be dismissed for non-compliance of the mandatory requirements of Section 16(C) of the Specific Relief Act as it goes to the root of the matter. The learned counsel for the respondents on the other hand submitted that there are pleadings satisfying the requirements of the statute but the form and letter of the statute are not replicated. The learned counsel for the respondent drew my attention to paragraph 5 of the plaint. The learned counsel for the respondent further submitted that there is no plea in the written statement regarding non-compliance of Section 16(C) of the Specific Relief Act and further no issue was also framed by the trial Court in this regard. 11. Therefore, it is to be seen if on facts, the plaintiff has satisfied the requirements of the statute on readiness and willingness to perform his part of the contractual obligations. Before launching on the factual matrix with respect to this issue, I would like to delve into the legal aspect first. 12. In Ramesh Chandra Chandiok Vs. 11. Therefore, it is to be seen if on facts, the plaintiff has satisfied the requirements of the statute on readiness and willingness to perform his part of the contractual obligations. Before launching on the factual matrix with respect to this issue, I would like to delve into the legal aspect first. 12. In Ramesh Chandra Chandiok Vs. Chuni Lal Sabharwal reported in AIR 1971 SC 1238 , the Hon'ble Supreme Court has held as follows : “6......Readiness and willingness cannot be treated as a straight jacket formula. These have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned.” In Syed Dastagir Vs. T.R. Gopalakrishna Shetty reported in 1996 (6) SCC 337 , it was observed as : “9....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.” In Motilal Jain Vs. Ramdasi Devi reported in 2000 (6) SCC 420 , it was held as follows : “9...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 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.” 13. Keeping in mind the above legal principles, let me now scrutinise the facts, I would pre-empt the exercise by stating that there is a difference between total lack of pleading and unartful expression in pleading. It is to be noted that if from the reading of the entire plaint, the statutory requirements are found to be satisfied, then the plaintiff cannot be non-suited. It is to be noted that if from the reading of the entire plaint, the statutory requirements are found to be satisfied, then the plaintiff cannot be non-suited. In this regard, paragraph 5 of the plaint is relevant and it reads as follows : A reading of the particular paragraph with the entire plaint shows that the plaintiff was ever ready and willing to perform his part of the contract. It is to be borne in mind that the plaintiff paid substantial amount of Rs.15,00,000/- out of the total sale consideration of Rs.20,00,000/-, even at the time of the agreement. Further, the learned counsel for the respondent has rightly contended that absolutely no plea was raised in the written statement on readiness and willingness by the defendant and therefore, the trial Court had also not framed any issue. The learned counsel for the appellant relied on the judgment of the High Court of Delhi in the case of Dinesh Kumar Jain vs. Sanjeev Chaudhary and on the judgment of this Court in the case of Jugraj vs. P. Sankaran in support of his submission that plaintiff has not established that he was ready and willing to perform his part of the contract. 14. I have gone through the judgments and I am of the opinion that they do not apply to the facts of the case. 15. In my view, an error, mistake, in advertence of the learned counsel, who drafted the plaint should not prejudice the plaintiff. It is true that the statute obligates the plaintiff to aver readiness and willingness, but can such statutory requirement he fulfilled by parroting the exact words or by verbal loyalty to the statue. I think not, in my view, if on a construction of the entire plaint averments readiness and willingness can be inferred, the plaintiff cannot and should not be non-suited. The facts of the case as disclosed by the pleadings and evidence clearly establish that the plaintiff has performed his part of the contract by paying substantial portion of the consideration on the date of the agreement itself and by sending the legal notice within the time stipulated under the agreement demanding the defendant to execute the sale Deed. It is settled legal proposition that procedure is handmaid of justice. The form prescribed under Order 6 Rule 3 of Civil Procedure Code is procedural in nature. It is settled legal proposition that procedure is handmaid of justice. The form prescribed under Order 6 Rule 3 of Civil Procedure Code is procedural in nature. Even the form prescribed has for its object the advancement of cause of justice and it is not intended to defeat or short circuit the decision on merits. When there is a choice between form and substance, substance should always prevail. The facts as disclosed would clearly show that the averments in the plaint when constructively read as a whole establish that the statutory requirements are fulfilled. I therefore answer this issue in favour of the plaintiff and against the defendant. What Relief: 16. On a conspectus of the entire evidence, it is seen that the breach of contract is by the defendant and not the plaintiff. The learned counsel for the plaintiff at the time of argument submitted that the defendant filed the appeal belatedly and in the interregnum the plaintiff filed Execution Petition and got the sale deed executed through Court and only at the time of delivery of possession the defendant pressed the appeal. The learned counsel for the defendant on the other hand submitted that as the plaintiff instituted the execution proceedings, he was contesting the same and therefore the appeal could not be prosecuted diligently. I am of the view that here also the conduct of the defendant is suspect. The defendant wanted to some how drag on the proceedings and has approached this Court at the eleventh hour. This is evident from the fact that though the appeal was filed in the year 2019, it was numbered after three years (ie) in 2022 only. It is to be noted here that the plaintiff paid 75% of the sale consideration even on the date of agreement and it is the defendant who has been evading to execute the sale. I am therefore of the considered view that the defendant is solely responsible for the breach of contract and so the plaintiff cannot be non-suited. I am therefore of the view that there are no merits in the appeal. 17. For all the foregoing reasons, the appeal is dismissed with costs. Consequently, connected miscellaneous petitions are closed.