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2023 DIGILAW 2679 (MAD)

V. Subramanian v. M. Radhakrishnan

2023-08-02

T.V.THAMILSELVI

body2023
JUDGMENT (Prayer: Second Appeal filed under Section 100 of C.P.C., against the Judgment and Decree dated 22.01.2013 in A.S.No.95 of 2012 on the file of the Principal District Judge of Coimbatore, reversing the Judgment and Decree passed by the Principal Subordinate Judge of Coimbatore made in O.S.No.711 of 2008 dated 10.08.2012.) 1.The appellant herein is the plaintiff in the suit in O.S.No.711 of 2008 on the file of the Principal Subordinate Court, Coimbatore, filed against the defendant/respondent herein for the relief of specific performance, directing the defendant to execute the sale deed in his favour in respect of the suit property as per the sale agreement dated 07.07.2006. 2. The defendant contested the suit and denied the alleged sale agreement with the plaintiff and also contended that the sale agreement was executed only as security for the purpose of loan transaction. 3. On hearing both sides, the trial Court had decreed the suit in favour of the plaintiff. Aggrieved by the same, the defendant/respondent herein has preferred an appeal in A.S.No.95 of 2012 on the file of the Principal District Court, Coimbatore and the first appeal was allowed and the Judgment and decree passed by the trial Court was set aside. Feeling aggrieved, the plaintiff has filed this present Second Appeal. 4. The case of the plaintiff is that the defendant is the owner of the suit property and he entered into an agreement of sale with the defendant on 07.07.2006 in which the defendant agreed to sell the suit property for sale consideration of Rs.4,00,000/- and the defendant has received a sum of Rs.3,00,000/- as advance on the same day. The further case of the plaintiff is that the balance sale consideration of Rs.1,00,000/- must be paid to the defendant within a period of 11 months and on receipt of the same, the defendant has to execute the sale deed in favour of the plaintiff. Further, the plaintiff was ready and willing to perform his part of the contract, but the defendant was evading to execute the sale deed on one pretext or the other. From the date of agreement itself, the plaintiff has insisted the defendant to execute the sale deed in his favour by offering Rs.1,00,000/- being the balance of sale price. But the defendant expressed his inability to execute the sale deed. From the date of agreement itself, the plaintiff has insisted the defendant to execute the sale deed in his favour by offering Rs.1,00,000/- being the balance of sale price. But the defendant expressed his inability to execute the sale deed. Hence, a legal notice was issued by the plaintiff on 23.01.2008 to the defendant, calling upon him to execute the sale deed in his favour within a week from the date of receipt of the notice. Even though the notice returned with the endorsement as ''''not claimed.'''' Immediately, the defendant approached the plaintiff and requested him not to file suit in this regard and assured him that he would execute the sale deed on 11.04.2008 by receiving the balance sale price. Thereafter, the plaintiff learns that the defendant is making attempts to alienate the suit schedule property to 3rd parties for higher price by suppressing the existence of the registered sale agreement dated 07.07.2006 between the plaintiff and the defendant. Hence, the suit. 5. The case of the defendant is that he had money transaction with the plaintiff and instead of executing mortgage deed for a sum of Rs.1,25,000/- at the instance of the plaintiff, the suit sale agreement was executed. The defendant has paid interest every month at Rs.3,750/- from 08.06.2006. The plaintiff knowing well that the defendant was away from Coimbatore, sent a notice dated 23.01.2008 with mala-fide intention, Further, the plaintiff did not come forward to pay the balance sale consideration within 11 months that was fixed in the sale agreement itself and hence, the plaintiff is not entitled for the relief of specific performance. The defendant was ready to re-pay the amount of Rs.1,25,000/- with interest thereon. The plaintiff demanded exorbitant interest. The loan was obtained from the plaintiff to meet the urgent family needs of the defendant. The suit property is the only residential property belonging to the family of the defendant. In order to grab the property, the plaintiff had filed the suit. Therefore, the suit is liable to be dismissed. 6. Before the trial Court, on the side of the plaintiff, PW1 and PW2 were examined and Exs.A1 to A3 were marked. On the side of the defendant, DW1 was examined and no documents were marked. 7. In order to grab the property, the plaintiff had filed the suit. Therefore, the suit is liable to be dismissed. 6. Before the trial Court, on the side of the plaintiff, PW1 and PW2 were examined and Exs.A1 to A3 were marked. On the side of the defendant, DW1 was examined and no documents were marked. 7. Considering the submissions made on either side, the trial Court decreed the suit, directing the defendant to execute the sale deed in favour of the plaintiff in respect of the suit property. Aggrieved by the finding of the trial Court, the defendant has preferred first appeal in A.S.No.95 of 2012 on the file of the Principal District Court, Coimbatore, wherein, the lower Appellate Judge held that the plaintiff has not proved his readiness and willingness to perform him part of the contract and that the plaintiff is not entitled for the relief of specific performance. Accordingly, the defendant was directed to re-pay the advance amount of Rs.3,00,000/- to the plaintiff with interest at 12% p.a., from the date of suit till the date of realization. 8. Challenging the said findings of the lower Appellate Court, the plaintiff has preferred this Second Appeal and the same was admitted on 20.03.2019, the following substantial questions of law:- ''''1.Whether the lower Appellate Court had committed an error apparent on the face of the record by not looking into the conduct of the defendant/the respondent herein alleging that the suit transaction was loan transaction which disentities him to ask the Court for exercising discretion in his favour by refusing to grant a decree for specific performance?. 2. Has not lower Appellate Court committed error in reversing the Judgement of Trial Court while dismissing the suit by misreading of pleading and evidences both documentary and oral evidences in holding that the plaintiff was not ready and willing to perform the suit contract of sale totally overlooking the fact that the appellant herein had deposited the balance sale consideration before the Trial Court? 3. Whether the lower Appellate Court had committed an error in exercising its discretion under Section 20 of Specific Relief Act, 1963 in favour of the defendant/the respondent herein without pleading and evidence ?'''' 9. 3. Whether the lower Appellate Court had committed an error in exercising its discretion under Section 20 of Specific Relief Act, 1963 in favour of the defendant/the respondent herein without pleading and evidence ?'''' 9. The learned counsel appearing for the appellant/plaintiff submitted that, before the trial Court, the appellant herein/plaintiff has proved his readiness and willingness to perform his part of the contract by adducing sufficient material evidence and relied on the same. He further submitted that the trial Court had rightly appreciated all these facts and granted the relief of specific performance in his favour, but the lower Appellate Court failed to appreciate the evidence and erroneously concluded that the plaintiff has not proved his readiness and willingness to perform his part of the contract till the filing the suit. Hence, he prayed to set aside the findings of the lower Appellate Court. 10. Per contra, the learned counsel for the respondent herein/defendant submitted that as per the sale agreement, the balance amount of Rs.1,00,000/- was agreed to be paid within the stipulated period of 11 months. But the plaintiff has not taken any steps to pay the balance amount and he issued a legal notice after 15 months of sale agreement. Further, the plaintiff has not come forward with clean hands and with ulterior motive, he filed the suit in order to grab the property. But the trial Court failed to appreciate those facts. Therefore, plaintiff had no right to claim even the alleged advance amount of Rs.3,00,000/- by enforcing the alleged sale agreement, which was rightly appreciated by the lower Appellate Court stating that the plaintiff was not ready and willing to perform his part of the contract within the stipulated period. So, he prayed to dismiss the Second Appeal. 11. Considering the submission made on either sides, the fact reveals that as the alleged sale agreement/Ex.A1 within the stipulated period of 11 months, the plaintiff has not expressed his readiness and willingness to pay the balance sale consideration to the defendant, and after completion of the stipulated period, he issued the legal notice, calling upon the defendant to perform his part of the contract. Immediately, after the issuance of notice, he has not filed the suit, near about 3 months later he file the suit. Immediately, after the issuance of notice, he has not filed the suit, near about 3 months later he file the suit. Further, there is no evidence on the side of the plaintiff to show that he was ready and willing to perform his part of the contract at every stage till the filing of the suit. But, the trial Court concluded that issuance of notice by the plaintiff is itself sufficient to prove that his readiness and willingness to perform his part of the contract. However, mere issuance of notice to the defendant is not sufficient to prove his readiness and willingness and also there is no evidence on the side of the plaintiff to prove the said aspects. By relying on the ratio laid down by a Division Bench of this Court Judgment in Bafna Developers Vs D.K,Natarajan reported in 2010 (6) MLJ 113 , it has been held that:- ''''To obtain a decree for specific performance, the continuous readiness and willingness on the part of the plaintiff at all stages from the date of agreement till the date of hearing of the suit need to be proved and the mere statement in the plaint expressing readiness and willingness would not be sufficient.'''' As rightly concluded by the first appellate Court, the plaintiff has failed to prove his readiness and willingness to perform his part of the contract from the date of agreement till the date of realisation. 12. The following authorities are relied on by the learned counsel for the appellant/plaintiff:- (i) In Periyannan (Died) and Others vs Palanisamy (Died) and others, ( 2017 (3) MLJ 685 ), paragraph 36 is extracted hereunder 36. In case where the possession is already given to the purchasers as a part performance and when the parties explicitly put to notice about the readiness to complete the contract, there is no reason to disbelieve and suspect the readiness and willingness. While considering the merits of the plaintiff, it is also pertinent to point out the demerits of the defendants who have dis-entitled themselves by conduct and law to contest the case. As pointed out earlier, Natesa Pandaram and Suyamprakasam who are the respondents herein divided the family property on 13.06.1966 and acted upon it by mortgaging and alienating the property till 1983. They have entered into several transactions referring the partition held in the year 1966. As pointed out earlier, Natesa Pandaram and Suyamprakasam who are the respondents herein divided the family property on 13.06.1966 and acted upon it by mortgaging and alienating the property till 1983. They have entered into several transactions referring the partition held in the year 1966. They also litigated before the Court based on the said partition. Thereafter for the best reason know to them, they have cancelled the partition deed in the year 1983 and again entered into the partition within two weeks. (ii) In Santhamani Vs Usha (2018 (1) MWN (Civil) 472):- 13-A.The defendant herself examined as D.W.1. In her evidence she has introduced new facts in her evidence without any pleadings in her written statement in that regard. She has introduced evidence to the effect that the plaintiff was insisting to pay some amount to Karuppathal and also give some property. These facts never pleaded in the written statement. Further, she has also gone to the extent of saying on the date of agreement she has received only 1.50 lakhs as advance. This is also contradicted with her pleadings. But in the cross-examination she has admitted that agreed sale consideration was Rs.15,23,800/- and she is also aware of the fact that the plaintiff has deposited the remaining sale consideration in the bank. When the third party has set up some right over the property which is also suppressed by the vendor normal conduct of the human being in such situation would be to deposit the amount in the bank to show their bona fides. The plaintiff has done the same in this case also within the period of agreement. Ex.A30 and A31 shows that the plaintiff was also impleaded in the above suit by the Karuppathal. When somebody creates a cloud over the property which is the subject matter of the agreement, it is normal conduct of human being would be to purchase the remaining property other than the property against which some cloud has been created. Therefore, the plaintiff has rightly filed the suit to enforce the contract in respect of 2/3rd share of the defendant. This is based on the admission of the Karuppathal in the suit filed by her in O.S.No.210 of 2005, wherein she has called upon the defendant herein to allot her 1/3 share in the suit property. Therefore, the plaintiff has rightly filed the suit to enforce the contract in respect of 2/3rd share of the defendant. This is based on the admission of the Karuppathal in the suit filed by her in O.S.No.210 of 2005, wherein she has called upon the defendant herein to allot her 1/3 share in the suit property. Therefore, the plaintiff has rightly exercised her option to enforce the contract for execution of the sale for 2/3rd share by the defendant. Of course in the plaint and pleadings it is pleaded by the plaintiff that she has reserved right to enforce the contract in respect of the remaining 1/3rd share and presently she is enforcing the contract only in respect of 2/3rd share of the defendant. When such pleadings have been made and though the plaintiff has not relinquished her right to enforce contract in respect of the remaining 1/3rd share, during the trial the plaintiff has filed a memo relinquishing her right in respect of remaining 1/3rd share of the contract which is also noticed by the learned trial Court in the judgment the memo dated 22.9.2010 relinquishing her right in respect of 1/3rd share of the suit property. Recording the said memo in O.S.No.210 of 2005 taking into consideration of the relinquishment of the plaintiff the trial Court has decreed the suit. In this regard it is useful to refer the judgment of the Hon''ble Apex Court reported in Surinder Singh v. Kapoor Singh [ 2005 (5) SCC 142 ] (three Judges Bench of the Supreme Court), wherein the Hon''ble Apex Court dealing with Section 12 of the Specific Relief Act in para 8 held as follows:- 8. SECTION 12 (3) of the Act is a beneficial provision so far as the purchasers are concerned. In the instant case, in view of the findings of fact arrived at by the High Court, the decree for specific performance of contract in respect of the entire suit land could not have been granted as the Appellant herein was not authorized by his sister to enter into the agreement for sale. The relinquishment of claim as contemplated under Section 12 (3) (ii) of the Act as regard performance of the remaining part of the contract and all rights to compensation need not specifically be pleaded and can be made at any stage of the litigation. The relinquishment of claim as contemplated under Section 12 (3) (ii) of the Act as regard performance of the remaining part of the contract and all rights to compensation need not specifically be pleaded and can be made at any stage of the litigation. Such a plea can also be raised at the appellate stage. Delay by itself, it is trite, may not stand in the way of the plaintiff from claiming the relief unless the defendant establishes prejudice. The larger Bench of the Apex Court made it clear that the relinquishment of claim in respect of the remaining part of the contract can be made at any stage of the litigation. Such a plea can also be raised at the appellate stage. There cannot be any specific plea in that regard. Therefore, the above judgment makes it clear that once relinquishment is made by the party even during the trial, remaining part of the contract can be enforced 17. The fact remains in this case is only in respect of undivided property to be enforced. There is no question of identity of the property arise in this case. The plaintiff has also relinquished her share during the pendency of the suit. Though she has filed the suit to enforce the agreement in respect of remaining part of contract, subsequently she has given up by relinquishing the right and interest in remaining part of contract. Therefore, there will be no difficulty in enforcing the contract. The exhibits marked on the side of the plaintiff particularly Ex.A5 dated 10.10.2005 to show the deposit of amount in the bank, Ex.A33 statement of accounts and publication and encumbrance obtained by the plaintiff all are clearly prove the fact that she was all along ready and willing to perform her part of contract. Once the defendant alone has suppressed the material facts and projected false theory, though grant of specific performance is a discretionary relief, the plaintiff has clearly pleaded and established that she is intended to purchase the property only for the expansion of the business and she was always ready and willing to perform her part of contract. The above aspect is not even denied in the written statement. Besides this the plaint documents clearly prove that the plaintiff had all along ready and the defendant in fact suppressed the material facts by making false statements to mislead the Court. The above aspect is not even denied in the written statement. Besides this the plaint documents clearly prove that the plaintiff had all along ready and the defendant in fact suppressed the material facts by making false statements to mislead the Court. Therefore, taking into consideration of the readiness and willingness established on the part of the plaintiff by depositing the balance sale consideration in the bank and also depositing the amount in respect of 2/3rd share in the Court. The plaintiff has also made enquiry in the Sub-Registrar Office and had been in Sub-Registrar Office, Avinashi, to ascertain the guideline value of the suit property to purchase the stamp paper to draft the sale deed, it is also not denied in the written statement makes it clear that she was always ready and willing to perform her part of contract. (iii) In Narinderjith Singh vs North Star Estate Promoters Limited (2012) 5 SCC 712 ):- 22. In N.P. Thirugnanam v. R. Jagan Mohan Rao (Dr) (1995) 5 SCC 115 , the Court found that the appellant was dabbling in real estate transaction without means to purchase the property and observed: “5....Section 16(c) of the Act envisages that plaintiff must plead and prove that he had 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 those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his 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. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract.” 25. We are also inclined to agree with the lower appellate Court that escalation in the price of the land cannot, by itself, be a ground for denying relief of specific performance. In K. Narendra v. Riviera Apartments (P) Ltd. (supra), this Court interpreted Section 20 of the Act and laid down the following propositions: “Section 20 of the Specific Relief Act, 1963 provides that the jurisdiction to decree specific performance is discretionary and the court is not bound to grant such relief merely because it is lawful to do so; the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. Performance of the contract involving some hardship on the defendant which he did not foresee while non-performance involving no such hardship on the plaintiff, is one of the circumstances in which the court may properly exercise discretion not to decree specific performance. The doctrine of comparative hardship has been thus statutorily recognized in India. However, mere inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not constitute an unfair advantage to the plaintiff over the defendant or unforeseeable hardship on the defendant.” (emphasis supplied) 26. In the present case, the appellant had neither pleaded hardship nor produced any evidence to show that it will be inequitable to order specific performance of the agreement. Rather, the important plea taken by the appellant was that the agreement was fictitious and fabricated and his father had neither executed the same nor received the earnest money and, as mentioned above, all the Courts have found this plea to be wholly untenable. Rather, the important plea taken by the appellant was that the agreement was fictitious and fabricated and his father had neither executed the same nor received the earnest money and, as mentioned above, all the Courts have found this plea to be wholly untenable. The above Judgments are not applicable to the facts of the present case and the facts are distinguishable therein. 13. As discussed above, the plaintiff has not proved his readiness and willingness to perform his part of the contract continuously from the date of agreement till the date of filing of the suit. Hence, the learned lower Appellate Judge rightly concluded that the plaintiff is not entitled for the relief sought for. Accordingly, substantial question of law 2 is answered. 14. The learned counsel for the appellant/plaintiff submitted that during his evidence, defendant contended that for the purpose of loan transaction, the alleged sale agreement was executed on compulsion of the plaintiff, but the defendant admits his signature in the alleged sale agreement itself. 15. From the beginning itself, the defendant denied the agreement of sale with the plaintiff and contended that he borrowed money from him to the tune of Rs.1,25,000/- with monthly interest of Rs.3750 and paid the interest regularly, but with a view to grab the suit property, plaintiff forcedly executing the above sale agreement from the defendant. The trial Court has observed that since the defendant admitted his signature in the sale agreement/Ex.A1, the burden is on him to prove that it was executed only for the purpose of loan transaction. During the course of hearing, on the side of the defendant, there is no independent evidence to prove that it was executed for the purpose of loan transaction. But, the plaintiff examined himself as PW1 and one of the attester who was examined as PW2, deposed that the sale agreement was executed only by the defendant to sell the suit property to the plaintiff. With regard to sale agreement , both the Court below rightly concluded that the sale agreement is valid one, which needs no interference. 16. Further, the defendant is failed to establish that it was loan transaction with the plaintiff. As discussed above, reliefs of the specific performance is a discretionary one indeed it also depend upon the conduct of the parties. Hence, the burden is equally casted upon both the parties. 16. Further, the defendant is failed to establish that it was loan transaction with the plaintiff. As discussed above, reliefs of the specific performance is a discretionary one indeed it also depend upon the conduct of the parties. Hence, the burden is equally casted upon both the parties. In the instant case, as discussed above, the plaintiff himself has not proved his readiness and willingness to perform his part of the contract and failed to discharge the burden cast upon him. 17. Considering the facts and circumstances, the lower Appellate Court has rightly concluded that the value of the property is high and it is a shelter house of the defendant. Hence, the lower Appellate Court has allowed the appeal and directed the defendant to refund the advance amount of Rs.3,00,000/- to the plaintiff along with interest, which is legally sustainable, which needs no interference by this Court. 18. The relief of specific performance is an equitable remedy and hence, the plaintiff have to necessarily show their readiness and willingness in performing their part of the contract from the date of the agreement till the passing of decree. Hence, there is no illegality in the findings of the lower Appellate Court, the substantial question of law, Nos.1 and 3 are answered accordingly. 19. For the foregoing reasons, the Second Appeal is dismissed as devoid of merits and the Judgement and decree passed by the Principal District Judge, Coimbatore, in A.S.No.95 of 2012, dated 22.01.2013 is confirmed and the Judgment and Decree passed by the Principal Subordinate Judge of Coimbatore made in O.S.No.711 of 2008 dated 10.08.2012 is set aside. Thus, suit is partly decreed by awarding an alternative remedy for refund of advance amount of Rs.3,00,000/- with 12% interest from the date of suit till realization. Consequently, connected miscellaneous petition is closed. No costs.