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2022 DIGILAW 778 (MAD)

Mariappan v. Madheswaran

2022-03-31

S.M.SUBRAMANIAM

body2022
JUDGMENT : (Prayer : Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908, against the Judgment and Decree, dated 28.06.2018, passed in A.S. No. 19 of 2017, on the file of the learned Principal District Judge, Tiruchirappalli, confirming the Judgment and Decree, dated 25.01.2017, passed in O.S.No.19 of 2016, on the file of the learned Subordinate Judge, Thuraiyur.) This second appeal is filed challenging the Judgment and Decree, dated 28.06.2018, passed in A.S.No.19 of 2017, on the file of the learned Principal District Judge, Tiruchirappalli, confirming the Judgment and Decree, dated 25.01.2017, passed in O.S.No.19 of 2016, on the file of the learned Subordinate Judge, Thuraiyur. 2. The defendant is the appellant in this second appeal. 3. For easy reference, the parties are referred to as per the ranking in the original suit. 4. According to the plaintiff, on 03.03.2004, the defendant entered into a sale agreement with him for the sale of the suit schedule property for a sale consideration of Rs.1,25,000/-. The plaintiff paid a sum of Rs.1,00,000/- as advance to the defendant and the balance sale consideration of Rs.25,000/- is to be paid within a period of two years. The plaintiff is always ready and willing to perform his part of the contract and ready with the balance sale consideration, however, the defendant delayed to perform his part of contract despite repeated requests. In such circumstances, the plaintiff issued a legal notice to the defendant calling upon him to receive the balance sale consideration and execute the sale deed. Despite receipt of the legal notice, the defendant neither replied nor come forward to execute sale deed. However, the defendant met the plaintiff's lawyer and requested not to file suit against him as he will execute sale deed within two months. Subsequently, since defendant did not honour, the the plaintiff issued another notice to the defendant on 04.05.2006, for which also the defendant did not respond. The plaintiff is always ready with the balance sale consideration and ready to deposit the balance sale consideration as and when Court directs him to do so. The defendant's brother also agreed to sell the remaining portion of the suit property to the plaintiff and executed a sale agreement to the plaintiff on 23.04.2004. Since the defendant's brother did not execute sale deed, the plaintiff filed a suit in O.S.No.330 of 2006 and it is pending. The defendant's brother also agreed to sell the remaining portion of the suit property to the plaintiff and executed a sale agreement to the plaintiff on 23.04.2004. Since the defendant's brother did not execute sale deed, the plaintiff filed a suit in O.S.No.330 of 2006 and it is pending. Though the plaintiff is always ready and willing to perform his part of contract, the defendant wantonly delayed the execution of sale deed. Hence, the suit. 5. The defendant filed a written statement denying the averments made by the plaintiff in the plaint. According to the defendant, the suit is not maintainable both in law and on facts. The defendant never intended to sell the suit property to the plaintiff. There is no necessity for him to sell the suit property. The defendant was taken to Uppiliyapuram Sub Registrar Office under the guise of registering mortgage deed, but the plaintiff fraudulently created a sale agreement and obtained his signature. The defendant denied the execution of sale agreement dated 03.03.2004. As the alleged sale agreement is null and void, the plaintiff cannot claim specific performance based on the illegal document. The defendant is having two sons and since the suit property is an ancestral property, his sons are entitled to half share in the suit schedule property. Hence, it is not possible for the defendant to execute a sale agreement. Further, when a huge sum of Rs.1,00,000/- was alleged to have been paid as advance, fixing two years time for the payment of remaining meagre amount of Rs.25,000/- itself raises a doubt. Even during the year 2004 itself, the value of the suit property was worth about Rs.3,00,000/-. In such circumstances, no prudent man would agree to sell the property for the meager amount of Rs.1,25,000/-. As alleged by the plaintiff, no legal notice was issued within the contract period of two years and in fact, he met the plaintiff's advocate after receipt of the notice. Since the plaintiff demanded 3% interest for the loan amount lent by him, no compromise was effected. In fact, the defendant borrowed a sum of Rs.1,00,000/- from the plaintiff and for security purpose, the plaintiff obtained the defendant's signature in an empty pronote and stamp papers. For precaution, the plaintiff brought the defendant to the Sub Registrar Office and created a fraudulent sale agreement. In fact, the defendant borrowed a sum of Rs.1,00,000/- from the plaintiff and for security purpose, the plaintiff obtained the defendant's signature in an empty pronote and stamp papers. For precaution, the plaintiff brought the defendant to the Sub Registrar Office and created a fraudulent sale agreement. The pronote was executed for security purpose only, but not for agreement of sale. If the plaintiff fails in the suit, he will file another suit by using the empty pronote. That apart, the plaintiff has not come forward to the Court with clean hands. 6. The following issues were framed for consideration before the Trial Court: (i) Whether the plaintiff is entitled to get the relief of specific performance as prayed for? and (ii) To what other relief, the plaintiff is entitled? 7. Before the Trial Court, the plaintiff himself was examined as P.W.1 and marked thirteen documents as Exs.A1 to A13. On the side of the defendant, he himself was examined as D.W.1 and no document was marked. 8. The Trial Court granted the relief of specific performance as prayed for by the plaintiff and decreed the suit with costs. 9. Challenging the Judgment and Decree of the Trial Court, the defendant filed first appeal in A.S.No.19 of 2017. Before the First Appellate Court, the following issues were framed for consideration: (i) Whether the appellant's contention is sustainable one regarding that the suit sale agreement was obtained by the respondent by fraudulent manner by way of misrepresentation. (ii) Whether the appellant's contention is sustainable one regarding that the alleged document has been executed only for security purpose and not for valid consideration? (iii) Whether the judgment and decree of the trial court is sustainable one or not? (iv) To what other relief, the appellant is entitled? 10. The First Appellate Court concurred with the findings of the Trial Court mainly on the ground that it is an admitted fact that the defendant and his brother had executed two separate agreements in respect of their half share. Subsequently, the defendant has not come forward to execute the sale deed and his brother Shanmugam has also refused to execute the sale deed in favour of the plaintiff. Thus, the plaintiff instituted another suit in O.S. No. 3330 of 2006, on the file of the Subordinate Court, Tiruchirappalli. Subsequently, the defendant has not come forward to execute the sale deed and his brother Shanmugam has also refused to execute the sale deed in favour of the plaintiff. Thus, the plaintiff instituted another suit in O.S. No. 3330 of 2006, on the file of the Subordinate Court, Tiruchirappalli. Accordingly, the First Appellate Court opined that since the defendant and his brother entered into two separate sale agreements on different dates for their respective shares, there is no necessity to implead the averments in the plaint. 11. The genuineness of the sale agreement (Ex.A1) dated 03.03.2004 was disputed by the defendant. It is contended that the sale agreement (Ex.A1) was surrounded by suspicious circumstances. If at all there was any intention to sell the suit property by the defendant and his brother, there is no necessity for entering two separate sale agreements on different dates. Further, it is contended that the plaintiff was having enough money to purchase the shares of the defendant as well as his brother and therefore, there was no necessity to enter into two separate agreements with the defendant and his brother. In respect of the suspicious circumstances raised by the defendant, the First Appellate Court formed an opinion that there is no piece of evidence available on the side of the defendant. Since there is no document or evidence to establish the suspicious circumstances, the contention of the defendant, in this regard, was rejected by the Courts below. Though several allegations of suspicious circumstances and fraudulent execution of agreement are stated by the defendant before the Courts below, there is absolutely no evidence available on record to establish the said suspicious circumstances in respect of the sale agreement entered into between the plaintiff and the defendant. In the absence of any such evidence to establish the same, the Courts below have concurrently formed an opinion that the defendant has not established his case and accordingly, granted the relief of specific performance. 12. Once the defendant raised certain allegations or contentions regrading genuinity of the documents, then it is to be established by him through oral and documentary evidence. However, in the present case, the defendant has not proved his case through oral and documentary evidence. Under those circumstances, the Courts below have arrived at a conclusion that the defendant's contentions cannot be accepted. However, in the present case, the defendant has not proved his case through oral and documentary evidence. Under those circumstances, the Courts below have arrived at a conclusion that the defendant's contentions cannot be accepted. Therefore, the decisions relied on by the defendant were also of no avail to him for the purpose of getting the relief. 13. Per contra, the plaintiff established his case with reference to the agreement entered into between the defendant and his brother. The plaintiff has complied with his portion of contract. In spite of such compliance, the defendant has failed to execute the sale deed, which resulted in institution of the suit for specific performance. 14. Thus, this Court is of the considered opinion that the defendant has failed to establish that the agreement was fraudulent and surrounded by suspicious circumstances. Contrarily, the plaintiff could establish that he has complied with his portion of contract and the suit was instituted on account of the failure on the part of the defendant for complying with his portion of the contract. 15. Perusal of the entire findings of the Courts below reveals that throughout the proceedings before the Court below, the defendant has not established his case through oral or documentary evidence. This being the factum, this Court do not find any merit in this second appeal. 16. As far as the question of law raised in this second appeal are concerned, they are relatable to the facts and circumstances, which were adjudicated before the Courts below and concurrent findings were recorded. Thus, there is no substantial question of law for the purpose of further adjudication in this second appeal and once the facts are settled by an elaborate adjudication by the Courts below, the scope of interference by this Court in this second appeal is undoubtedly limited. In the absence of any substantial question of law, the findings recorded by the Courts below need not be interfered with, unless there is any incriminating material to reconsider the facts. 17. In view of the facts and circumstances, the Judgment and Decree, dated 28.06.2018, passed in A.S.No.19 of 2017, on the file of the learned Principal District Judge, Tiruchirappalli, confirming the Judgment and Decree, dated 25.01.2017, passed in O.S.No.19 of 2016, on the file of the learned Subordinate Judge, Thuraiyur, are confirmed. 18. Accordingly, the second appeal is dismissed. No costs.