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2023 DIGILAW 1593 (MAD)

Haja Mydeen (Died) v. K. S. Sanjayan

2023-04-06

N.SATHISH KUMAR

body2023
JUDGMENT : PRAYER: This Appeal Suit is filed under Section 96 of C.P.C. against the judgment and decree dated 04.01.2001 made in O.S.No.260 of 1994 on the file of the Additional Subordinate Judge, Nagercoil. Aggrieved over the decree and judgment of the trial Court granting specific performance in respect of the suit properties, the present appeal came to be filed by the first defendant. For the sake of convenience, the parties are referred to herein, as per their rank before the Trial Court. 2. The first defendant is the owner of the suit properties and he has agreed to sell the same to the plaintiffs 1 and 2 and second defendant for a sale consideration of Rs.4,00,000/- and executed a registered sale agreement on 07.07.1993 and received Rs.3,00,000/- advance on the same date of agreement. Time agreed for completion of sale is one year. On 04.07.1994, the first defendant, received another One Thousand Rupees towards sale consideration and made endorsement and agreed to execute sale deed before the end of the August 1994. The plaintiffs 1 and 2 and the second defendant were ready and willing to perform the part of the contract and pay sale consideration. However, the first defendant have been evading to execute the sale deed. Further legal notice dated 16.06.1994 27.09.1994 were issued to the first defendant by the plaintiffs 1 and 2 and the second defendant. They also issued publication in news paper on 24.08.1994. Thereafter, plaintiffs 1 and 2 sent another legal notice on 26.08.1994 requesting the first defendant to perform the part of the contract and execute the registered sale deed. In the mean time, the first defendant has filed caveat as against the plaintiffs 1 and 2. On receipt of the papers, the plaintiffs came to know that the first defendant is evading to execute the sale deed. In the mean time, the plaintiffs 1 and 2 also executed assignment deed in favour of the third plaintiff on 20.09.1994. As the second defendant is not co-operated with the plaintiffs 1 and 2, he was made as defendant. Hence, the suit filed for a specific performance and alternatively for decree for specific performance of agreement as regards 2/3 share of the plaint schedule properties and directing the first defendant to execute sale deed as regards 2/3 share of the suit schedule property in favour of the plaintiffs. 3.The second defendant remained ex-parte. Hence, the suit filed for a specific performance and alternatively for decree for specific performance of agreement as regards 2/3 share of the plaint schedule properties and directing the first defendant to execute sale deed as regards 2/3 share of the suit schedule property in favour of the plaintiffs. 3.The second defendant remained ex-parte. The first defendant denied the entire agreement in toto. It is his contention that he has not received any advance amount. He also denied the endorsement on the back side of the agreement. It is the contention of the defendant that the second defendant is the close relative of the first defendant and due to his ailment his hearing was completely down and therefore, the second defendant was collecting rent from the tenants on behalf of the first defendant. According to the first defendant, he also issued notice to the second defendant stating that he falsely obtained document in his favour. Hence, his contention is that agreement was never executed by him and the third plaintiff is a stranger to the lease and no assignment agreement given for him and hence, he disputed the very contract itself. 4. Based on the above pleadings, the trial Court has framed the following issues:- 1. Whether plaintiffs are entitled for specific performance or alternative prayer as prayed in the suit? 2.Whether the agreement dated 07.07.1993 is true and valid? 3.Whether the suit is maintainable? 5. On the side of the plaintiffs, P.W.1 to P.W.5 were examined and Ex.A1 to Ex.A35 were marked. On the side of the defendants, the first defendant examined as D.W.1 and exhibits Ex.B1 to Ex.B7 marked. Ex.C1 and Ex.C7 also marked. Based on the evidence adduced, the trial Court came to the conclusion that the agreement dated 07.07.1993 is valid and executed by the first defendant and granted specific performance as prayed for. Challenging the same, the present appeal came to be filed. 6. The learned Senior Counsel appearing for the appellant made submissions on three aspects. According to her, there is no issue framed with regard to the ready and willingness. Therefore, granting specific performance without assessing the ready and willingness on the part of the plaintiffs is not valid in the eye of the law. Further submission is that the plaintiffs have filed suit seeking for specific performance to perform the part of the contract. According to her, there is no issue framed with regard to the ready and willingness. Therefore, granting specific performance without assessing the ready and willingness on the part of the plaintiffs is not valid in the eye of the law. Further submission is that the plaintiffs have filed suit seeking for specific performance to perform the part of the contract. According to her, without identifying the properties, the part of the specific performance cannot be granted in respect of the part of the property. Next submission of the learned Senior Counsel is that as per the agreement, property to be conveyed only to purchaser. Therefore, assigning agreement to third parties, without consent of the vendor, is not valid in the eye of the law. Therefore, granting assignment in respect of the entire property, when the second defendant is not joined in the agreement is not valid in the eye of the law. In support of her submission, she has also placed reliance of the judgments of the Hon'ble Apex Court in a case of Kapilaben and others Vs. Ashok Kumar Jayantilal Sheth reported in (2020) 20 SCC 648 and in a case of Sharker Singh Vs. Narinder Singh and others reported in (2014) 16 SCC 662 and in a case of Khardah Company Ltd., Vs. Raymon & Co. (INDIA) Private Ltd., reported in (1963) 3 SCR 183 : AIR 1962 SC 1810 . 7. The learned counsel appearing for the respondent mainly contended that as far as the ready and willingness is concerned, there was no denial for the entire transaction. When the defendant not even denied the plea of the plaintiffs that they are always ready and willing, the question of framing issue does not arise at all. It is his contention that the plaintiffs are ready and willing to perform the part of the contract and also paid amount towards sale consideration on the date of agreement itself. Thereafter, also deposited remaining sale consideration in the Court and suit has also been filed within time as agreed in the agreement. Prior to that, legal notice was also issued requesting the defendant to execute sale deed. This will clearly shows that the plaintiffs are always ready and willing to perform their part of the contract from the inception of the contract. It is his further submission that the defendant has denied the entire agreement in toto. Prior to that, legal notice was also issued requesting the defendant to execute sale deed. This will clearly shows that the plaintiffs are always ready and willing to perform their part of the contract from the inception of the contract. It is his further submission that the defendant has denied the entire agreement in toto. Even he denied the registered document and he has not taken any steps to compare the signature. He refused to give thump impression when the same is sought for by the Court, whereas the plaintiffs have taken steps to compare the thump impression found in the Ex.A1 and Ex.A2 with the document of the defendant and the same was matched. The plaintiffs have also examined one of the attested witnesses and he has also clearly spoken about the execution of the agreement. Therefore, the very conduct of the defendant make it clear that except denial of entire agreement, he has not put forth any valid defence. When the defendant has taken false plea before the Court and come with unclean hands, the plaintiffs are certainly entitled to specific performance. It is his contention that unless there is specific bar in the terms of the contract for very assignment itself, it cannot said that assignment is not valid. The assignee step into the shoes of the plaintiffs as representatives, as contemplated under Section 15 of the Specific Relief Act as well as Section 40 of the Contract Act. Therefore, his contention is that there is no requirement under law to get consent before assignment of contract simpliciter. It is only when obligations and the duty is to be performed by both sides and consent of both sides is required for assignment. In the present case, the plaintiffs performed their part of the contract and the defendants is simply denied the contract itself. Such being the position, the assignment cannot be questioned in the appeal stage. It is his further contention that as far as the specific performance for 2/3 share of the plaintiffs 1 & 2 is concerned, it can be granted if the plaintiffs paid entire sale consideration and relinquished his right in respect of remaining part. According to the plaintiffs, the entire sale consideration paid. The plaintiffs are certainly entitled to get specific performance. According to the plaintiffs, the entire sale consideration paid. The plaintiffs are certainly entitled to get specific performance. Therefore, it is his contention that the trial Court has considered the entire evidence adduced on the side of the plaintiffs and defendant and rightly granted specific performance. 8. Now, points arises for consideration in the appeal are as follows: 1)Whether the plaintiffs are ready and willing to perform their part of the contract? 2)Whether the third plaintiff is entitled to get specific performance on the basis of the assignment deed executed by the plaintiffs 1 and 2 in respect of 2/3 share of the suit properties? 9. It is relevant to note that Ex.A1 and Ex.A2, registered sale agreements executed by the first defendant in favour of the plaintiffs 1 and 2 and the second defendant in the suit. Total sale consideration agreed is Rs.4 Lakhs. On the date of agreement, Rs.3 Lakhs has been paid and the time agreed to complete the payment is one year from the date of agreement. It is the specific case of the plaintiffs that they also paid another amount of Rs.1,000/-. After receipt of the same, the first defendant has extended further time till the end of the August 1994. The suit has been filed by the plaintiffs 1 and 2 and their assignee, namely plaintiff No.3. The second defendant was also agreement holder along with plaintiffs 1 and 2. He has not joined with the plaintiffs in filing the suit. 10. From the evidence and documents, it is clear that the second defendant is close relative of the first defendant and he remained ex-parte before the trial Court and also before this Court. Being relative of the first defendant, he conveniently remained ex-parte and not joined with the plaintiffs 1 and 2 and remained silent for some reason. Be that as it may, the defence of the first defendant before the trial Court is total denial of the entire agreement. It is relevant to note that having taken such plea of total denial of the execution and his signature and thump impression, he has not taken any steps to give his thump impression to prove his stand, whereas, the plaintiffs have, in fact, sought for expert opinion to compare signature of the defendant in Ex.A1 and Ex.A2 with the signature found in Ex.A35. The finger print expert, who have examined thump impression, gave opinion that the thump impression found in Ex.A1 and Ex.A2 and thump impression found in Ex.35 tallies with each other and also belong to the same person. 11. It is to be noted that the expert also deposed before the trial Court as P.W.4 . Apart from that, one attesting witness P.W.5 also examined on the side of the plaintiffs to prove the execution of the contract by the first defendant. No contra evidence adduced by the defendant, whereas the plaintiffs has established the execution of the contract not only by examining the attesting witness but also the expert. The first defendant examined himself and no other witnesses examined by him. In fact, when his specimen thump impression was sought by the Court for comparison, he has refused to give his thump impression. This fact also admitted by him in his cross-examination. Therefore, when the person take a stand of total denial of the execution of the document, and has refused to give thump impression, this Court can also draw adverse inference against him. On perusal of evidence of attesting witness/P.W.5 and finger print expert/P.W.4, this Court easily conclude that the plaintiffs proved the execution of the document by the first defendant. Once the document has been established, its contents to be taken as true. 12. It is relevant to note that one of the attesting witness in the document is none other than the son of the first defendant, which is also admitted by the first defendant. D.W.1 further admitted in the cross-examination that the case itself contested by his younger son and his evidence also indicated that at the time examination of P.W.1, he was present in the Court. When the endorsement and agreement are clearly established by the plaintiffs, the defendant cannot take a plea of total denial. Even the plea of ready and willingness made by the plaintiffs is not denied in the written statement. The plaintiffs sent legal notice dated 21.07.1994. Even in the cross examination, he has not denied the receipt of the legal notices and he has only answered as he did not remember. The same make it clear that receipt of legal notice is not denied. The plaintiffs 1 and 2 also deposited the remaining sale consideration of Rs.99,000/- before the Court. Even in the cross examination, he has not denied the receipt of the legal notices and he has only answered as he did not remember. The same make it clear that receipt of legal notice is not denied. The plaintiffs 1 and 2 also deposited the remaining sale consideration of Rs.99,000/- before the Court. The specific evidence of P.W.1 is that after execution of sale agreement, the first defendant received Rs.1,000/- and promised to execute sale deed at the end of the August 1994. The suit has been instituted on 31.08.1994 within the time agreed in the agreement and remaining sale consideration also deposited in the Court. The conduct of the plaintiffs in sending legal notice, instituted suit within time and deposited remaining amount, clearly shows that they were always ready and willing to perform their part of the contract. Therefore, ready and willingness on the part of the plaintiffs clearly established. Further as already discussed entire written statement plea of readiness and willingness on the part of the plaintiffs is not denied. Only defence was denial of agreement alone. Therefore, this Court is of the view that all the evidence adduced before the trial Court shows that the plaintiffs are ready and willing to perform their part of the contract. Therefore, this Court is of the view that mere non framing of specific issue in this regard by trial Court will not go to the root of the matter as the pleadings in the plaint not denied in the written statement. Now in the appeal stage, the defendant cannot take a plea that the plaintiffs are never ready and willing to perform their part of the contract. More over, legal notices were sent, publication was issued and thereafter, suit also filed within the time agreed as per the terms, which is also clearly established the mental attitude of the plaintiffs to perform their part of the contract. Therefore, ready and willingness on the part of the plaintiffs have been established and accordingly, point No.1 is answered. 13.The suit has been filed by the original agreement holders and plaintiff No.3, who was assignee. From the evidence of P.W.1 and P.W.2 it is seen that, though the relief has claimed for entire suit property, an alternative relief has been claimed for 2/3 share in the suit properties. 13.The suit has been filed by the original agreement holders and plaintiff No.3, who was assignee. From the evidence of P.W.1 and P.W.2 it is seen that, though the relief has claimed for entire suit property, an alternative relief has been claimed for 2/3 share in the suit properties. It is relevant to note that in Ex.A1 and Ex.A2, the first defendant has executed agreement of sale in favour of the plaintiffs 1 and 2 and the second defendant. The second defendant has not joined in filing the suit and he is the relative of the first defendant and remained ex-parte. The plaintiffs 1 and 2 executed assignment deed in favour of the third plaintiff. Hence, this Court is of the view that the assignment deed executed in favour of the third plaintiff bind only in respect of 2/3 share in the suit property. The execution of assignment deed is not disputed. The defendant not denied the execution of the assignment deed. The main argument of the learned Senior Counsel appearing for the appellant is that the agreement of contract cannot be assigned without consent of the vendor. The Hon'ble Apex Court in a case of Kapilaben Vs. Ashok Kumar Jayantilal Sheth reported in (2020) 20 SCC 648 has held that obligations under a contract cannot be assigned except with the consent of the promisee. On the other hand, rights under contract are assignable unless the rights are incapable of assignment either under the law or under an agreement between the parties. The above judgment makes it clear that the obligations and liabilities cannot be assigned without consent of other party. A Constitution Bench of Apex Court in Khardah Co.Ltd Vs. Raymon & Co. (India) (P) Ltd reported in AIR 1962 SC 1810 at 1819, in paragraph 19 held as follows:- “19. .. An assignment of a contract might result by transfer either of the rights or of the obligations thereunder. But there is a well-recognised distinction between these two classes of assignments. As a rule obligations under a contract cannot be assigned except with the consent of the promisee, and when such consent is given, it is really a novation resulting in substitution of liabilities. But there is a well-recognised distinction between these two classes of assignments. As a rule obligations under a contract cannot be assigned except with the consent of the promisee, and when such consent is given, it is really a novation resulting in substitution of liabilities. On the other hand, rights under a contract are assignable unless the contract is personal in its nature or the rights are incapable of assignment either under the law or under an agreement between the parties.” 14. The Hon'ble Supreme Court in a case of Shyam Singh Vs. Daryao Singh (Dead) By LRS. And others reported in (2003) 12 SCC 160 has held that as per Section 15(b) of the Specific Relief Act, any party to contract includes transferees and assignees from the contract, except when the contract falls under Section 15(b) that is, when the contract provides that “the interest shall not be assigned” and also held that unless contents of document in question and evidence thereto are so clear as to imply a prohibition against assignment or transfer, the right of repurchase has to be held to be assignable or transferable and cannot be treated as personal to the contracting parties. 15.The Hon'ble Supreme Court in a case Kapilaben Vs. Ashok Kumar Jayantilal Sheth reported in (2020) 20 SCC 648 has held that whether the assignee of the contract can seek specific performance would depend upon the construction of the contract in each case. The Court would have to determine the nature of interest sought to be transferred, whether such interest was meant to be enforceable only between the parties to the contract and whether the contract expressly or by necessary implication bars assignment of such interest. 16.From the above dictum laid down by the Apex Court in various judgments referred above, it is very clear that only obligations/liability cannot be assigned and rights under contract are assignable unless contract is personal in nature or the rights are incapable of assignment either under the law or under an agreement between the parties. 17.Therefore, it is clear that as there is no prohibition in the contract itself for assignment to transfer the right in favour of the assignee, the assignment is permissible. 17.Therefore, it is clear that as there is no prohibition in the contract itself for assignment to transfer the right in favour of the assignee, the assignment is permissible. On perusal of Ex.A1 and Ex.A2, it is seen that sale deed would be executed in favour of vendees and there is no prohibition in the entire contract to transfer the right to any other third party. In the absence of any prohibition in the terms of the contract for assignment of the mere right created in the agreement in favour of the assignee, assignment cannot be held to be invalid. The plaintiffs have already paid Rs.3 Lakhs and they have shown ready and willingness and also sent legal notices and suit also filed within time. At this stage, assignment deed executed in favour of the third plaintiff. Therefore, it cannot be said that the other obligations left un-performed by the plaintiffs. Section 15 of the Specific Relief Act stipulates that specific performance of a contract may be obtained by any party thereto; the representatives in interest or the principal, of any party thereto. As held by the Hon'ble Apex Court in Shyam Singh Vs. Daryao Singh (Dead) By LRS. And others reported in (2003) 12 SCC 160 that the word “representative-in-interest” of “any party to the contract include transferees and assignees from the contracting party, in whose favour the contractual right exists, except when the contract falls under proviso to Section 15(b), that is, when the contract provides that “the interest shall not be assigned”. Further, Section 15(b) also includes that where the contract provides that his interest shall not be assigned, his representative-in-interest or his principal shall not be entitled to specific performance of the contract, unless such party has already performed his part of the contract, or the performance thereof by his representative-in-interest, or his principal, has been accepted by the other party. 18. In the given case, the plaintiffs 1 and 2 along with the second defendant were always ready and willing to perform their part of the contract. They also paid substantial amount as advance and they also shown their willingness by depositing the remaining amount in the Court. 18. In the given case, the plaintiffs 1 and 2 along with the second defendant were always ready and willing to perform their part of the contract. They also paid substantial amount as advance and they also shown their willingness by depositing the remaining amount in the Court. When the specific obligations on the part of the plaintiffs were already performed and when the defendant simply denied the contract and even refused to give thump impression for expert opinion, now at this stage, the appellant cannot assail the very assignment deed itself. 19. In view of the fact that specific obligation already performed by the plaintiffs 1 and 2 and the third plaintiff also joined with them, in view of the assignment deed executed in his favour, the contention of the defendant that assignment is not entered with the consent of the vendor cannot be countenanced. Though the assignment executed by the plaintiffs 1 and 2, in respect of entire property, the same would bind only in respect of 2/3 share of the suit properties. Since the plaintiffs 1 and 2 were joined together and each paid Rs.1,00,000/- towards advance, as the second defendant has not joined in this regard, the assignment itself would be valid only in respect of 2/3 share in the suit properties. 20. The contention of the plaintiffs that they each paid Rs.1,00,000/- as advance and the same is not disputed and the second defendant remained ex-parte. Such being the position, the plaintiffs case has to be accepted. Accordingly, this Court holds that the plaintiffs certainly entitled to enforce the contract on the basis of the assignment deed for the 2/3 share in the suit properties. 21. The other contention raised by the learned Senior Counsel is that unless 2/3 share of the properties is identified and demarcated, the part of the agreement cannot be enforced. The part of the contract can be enforceable as per the Section 12 of the Specific Relief Act. 21. The other contention raised by the learned Senior Counsel is that unless 2/3 share of the properties is identified and demarcated, the part of the agreement cannot be enforced. The part of the contract can be enforceable as per the Section 12 of the Specific Relief Act. As per Section 12(3)(b)(i)(ii) of the Act, court may direct the party in default to perform specifically so much of his part of the contract as he can perform, if the plaintiffs pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and in a case falling under clause (b) of the Section 12, the consideration for the whole of the contract without any abatement. 22.Admittedly, in this case, though specific performance sought for only for 2/3 share, entire sale consideration agreed in the agreement has been paid by the plaintiffs. Therefore, as per Section 12(3)(b)(ii), to enforce the contract, if the plaintiff relinquishes all claims to the performance of the remaining part of the contract and all right to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant, the Court can very well enforce the part of the contract. 23.Though the plaintiffs sought the relief of specific performance for entire properties, now the plaintiffs filed an undertaking affidavit before this Court stating that they relinquished all the claim in respect of remaining part of the contract. It is well settled that the relinquishment of right in respect of remaining part can also be made even during the appeal. Such view of the matter, as the plaintiffs has fulfilled the conditions set out in Section 12, they are certainly entitled to get specific performance. 24.One of the submission of the learned Senior Counsel is that the properties has not been demarcated and hence, part of the contract cannot be enforced. It is to be noted that if part of the contract for 2/3 share is enforced, it is for the plaintiffs to workout their remedy by way of partition and separate possession. 25.Specific performance being discretionary relief, the Court has also to take into consideration of the conduct of the parties. The defendant having executed registered sale deed, totally denied and also did not examine his son. Further refused to give his specimen thump impression. 25.Specific performance being discretionary relief, the Court has also to take into consideration of the conduct of the parties. The defendant having executed registered sale deed, totally denied and also did not examine his son. Further refused to give his specimen thump impression. Therefore, this Court has to necessarily draw adverse inference against him. His conduct clearly exhibits his intention only to avoid lawful rights. In such view of the matter, the plaintiffs certainly entitled to decree of specific performance to enforce the contract to the 2/3 share in the suit properties. Accordingly, the points are answered. 26.In the result, the appeal is dismissed confirming the judgment and decree dated 04.01.2001 made in O.S.No.260 of 1994 on the file of the Additional Subordinate Judge, Nagercoil holding that the agreement is enforceable. However, the finding of the trial Court is modified to the effect that the plaintiffs are entitled to decree of specific performance in respect of 2/3 share of the suit properties.