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2025 DIGILAW 100 (MAD)

Varadan v. Govindasamy (Deceased)

2025-01-06

R.N.MANJULA

body2025
JUDGMENT : This Second Appeal has been filed to set aside the judgment and decree dated 31.01.2011 passed in A.S.No.98 of 2008 on the file of the Principal District Judge, Thiruvallur reversing the judgment and decree dated 29.08.2008 passed in O.S.No.4 of 2007 on the file of the Subordinate Judge, Poonamallee. 2 . The appellants are the plaintiffs. The suit has been filed by the plaintiffs for specific performance against the deceased defendant and that has been decreed by the Trial Court. However, on the First Appeal preferred by the legal heirs of the deceased defendant, the First Appellate Court has allowed the First Appeal and reversed the judgment and decree of the Trial Court. Aggrieved over the same, the plaintiffs have filed this Second Appeal. 3. Heard Mr.N.Sridhar, learned counsel for the appellants and Mr.C.T.Mohan, learned Senior Counsel for R2 to R6 and Mrs.P.Radhika, learned counsel for R7 to R9 and perused the materials available on record. 4. The short facts pleaded in the plaint are as under: The suit property was originally belonged to the deceased defendant. On 12.08.2004, the first plaintiff and his deceased brother Rangan have entered into a sale agreement with the deceased defendant to purchase the suit property for a sum of Rs.4,64,000/-. The suit property measures 1 acre and 45 cents and it has been agreed to be sold at the rate of Rs.3200/- per cent. The defendant had already obtained a loan from Rangan on 17.12.2001 and from the first plaintiff on 25.09.2002. In this regard, the defendant has to settle a sum of Rs.4,64,000/- and he was not in a position to repay the same and hence, the defendant had come forward to sell the suit property for the amount liable to be paid by him towards the loan availed by him from the first plaintiff and his brother Rangan. As the defendant had obtained a loan from the Land Development Bank, Poonamallee, he has sought 17 months time to discharge the loan. Later, the defendant has stated that the above loan has been waived by the Government. 4.1. As the first plaintiff and his brother Rangan had already paid the sale consideration, the question of readiness and willingness will not arise and it is for the deceased defendant to execute the sale deed. Later, the defendant has stated that the above loan has been waived by the Government. 4.1. As the first plaintiff and his brother Rangan had already paid the sale consideration, the question of readiness and willingness will not arise and it is for the deceased defendant to execute the sale deed. The first plaintiff's brother Rangan died on 24.09.2005 and the plaintiffs 2 to 5 are his legal heirs. As the deceased defendant did not come forward to execute the sale deed as per the sale agreement dated 12.08.2004, the plaintiffs have sent a legal notice on 19.12.2006 and the same was received by the defendant on 26.12.2006, but he did not send any reply. The plaintiffs were in enjoyment of the suit property as part performance and the defendant had attempted to sell the suit property. Therefore, the plaintiffs had filed a suit for specific performance. 5. The written statement filed by the defendant reads as under: The defendant never agreed to sell the suit property. It is false to state that the defendant has to repay a sum of Rs.4,64,000/- to the first plaintiff and his brother. The defendant did not avail any loan from the first plaintiff and his brother as stated. The defendant had availed a loan of Rs.30,000/- and Rs.50,000/- by executing a promissory note and another Rs.50,000/- through mortgage. The defendant's signature has been obtained by force and coercion. Therefore, the plaintiffs are not entitled to the relief of specific performance. 6. During the course of the trial, on the side of the plaintiffs, one witness has been examined as P.W.1 and Exs.A1 to A4 were marked. On the side of the defendant, three witnesses were examined as D.W.1 to D.W.3 and Exs.B1 to B5 were marked. 7 . On hearing both sides and on the basis of the above pleadings, the Trial Court has framed the following issues for consideration: 8. At the conclusion of the trial and on considering the evidence available on record, the Trial Court has decreed the suit. However, on the Appeal preferred by the legal heirs of the deceased defendant, the First Appellate Court has reversed the judgment and decree of the Trial Court by allowing the First Appeal. At the conclusion of the trial and on considering the evidence available on record, the Trial Court has decreed the suit. However, on the Appeal preferred by the legal heirs of the deceased defendant, the First Appellate Court has reversed the judgment and decree of the Trial Court by allowing the First Appeal. Now, the Second Appeal has been filed by the plaintiffs by raising the following substantial questions of law: "1.Whether the Lower Appellate Court being the final court of fact is correct in law in non-suiting the plaintiffs by not reversing the finding of fact rendered by the Trial Court, which is a sine qua non for coming to a different conclusion? 2.Whether the judgment and decree of the Lower Appellate Court is correct in failure to draw a presumption under Section 114 of the Indian Evidence Act, when the defendant, who is a party to Ex.A1, Agreement of sale does not enter into the witness box and states his own case on oath and does not offer himself to be cross-examined by the plaintiff? 3. Is the judgment and decree of the Lower Appellate Court is correct in law, when the defendant has miserably failed to plead and prove the alleged acts of fraud, coercion, misrepresentation and undue influence as contemplated under Sections 15, 16, 17 and 18 of the Indian Contract Act, 1872?" 9. The learned counsel for the appellants / plaintiffs submitted that the sale agreement Ex.A1 could not have been obtained by force or coercion in view of Ex.B3 which has been marked during the cross examination of P.W.1. Ex.B3 is an on-demand document wherein it has been stated that the first plaintiff has to give back the promissory note after the defendant had executed the sale deed. This itself will prove that Ex.A1 sale agreement is a genuine one and not a coerced one. But the First Appellate Court did not take into consideration of the said fact. In the chief examination of D.W.1, he has admitted the execution of Ex.A1. Despite the defendant has admitted the signature in the sale agreement, he did not come to the box. Despite the Trial Court has rightly appreciated the evidence on record, the First Appellate Court has misled itself and reversed the judgment of the Trial Court. The defendant did not examine himself as a witness and subject himself for cross examination. Despite the defendant has admitted the signature in the sale agreement, he did not come to the box. Despite the Trial Court has rightly appreciated the evidence on record, the First Appellate Court has misled itself and reversed the judgment of the Trial Court. The defendant did not examine himself as a witness and subject himself for cross examination. The same was also not properly appreciated by the First Appellate Court. 9.1. Though the Trial Court has given a cogent finding on this, the First Appellate Court has made a calculation unnecessarily and extended the scope beyond what is accepted in the sale agreement. P.W.1 has stated in his evidence that he has returned the promissory note to the defendant's son Venkatesan. The defendant did not examine Venkatesan, but he has examined only his first son as D.W.1. He has also admitted the execution of the sale agreement. D.W.2 is the attestor of the on-demand letter and D.W.3 is the attestor of Ex.A1. The First Appellate Court has also observed that there cannot be any sale agreement when there is a loan in the Land Development Bank. It is factually and legally wrong. Much fuss has been made by the First Appellate Court on the basis of Ex.B3 to dismiss the suit. The plaintiffs have been inducted into possession pursuant to the sale agreement. The First Appellate Court has made a wrong finding on this aspect. 10. The learned Senior Counsel for the respondents 2 to 6 submitted that in the agreement entered on 12.08.2004 there was a condition that the defendant should discharge the loan availed by him from the Land Development Bank at Poonamallee before executing the sale deed. The loan itself has been waived by the Government. The plaintiffs have not made out any attempt to find out whether the defendant has discharged the loan within 17 months from the date of the sale agreement. Only on 19.12.2006 the plaintiffs have issued a legal notice. However, the suit has been filed only on 11.01.2007. According to the defendant, he had borrowed only Rs.1,30,000/- from the first plaintiff. The plaintiffs are not ready to pay the balance sale consideration to get the sale deed executed in their favour. The Lower Appellate Court had accepted that the defendant was in a bad health condition and that he was not able to move out. According to the defendant, he had borrowed only Rs.1,30,000/- from the first plaintiff. The plaintiffs are not ready to pay the balance sale consideration to get the sale deed executed in their favour. The Lower Appellate Court had accepted that the defendant was in a bad health condition and that he was not able to move out. One of the sons of deceased defendant viz., Krishnamoorthy has been examined and he has stated in his evidence that his father is unable to move out and produced the medical document to prove the same. 10.1. The learned Senior Counsel further submitted that the first plaintiff has stated in his evidence that he had handed over the promissory note to the defendant in the later part of the evidence. In Ex.A3 on-demand document executed by the plaintiffs it has been stated that after executing the sale deed, the promissory note would be handed over to the defendant. The above evidence is contradictory to the on-demand notice and there is no clarity in the said evidence. The loan has not been given by offering the suit property as security. When there is already a loan for a sum of Rs.4,00,000/- with the Bank pending, it is impractical for the defendant to agree to sell the suit property for a sum of Rs.4,64,000/-. The relief of specific performance is an equitable and discretionary relief and it ought to have been granted only when the plaintiffs comes to the Court with clean hands. In this regard, it is appropriate to refer the judgments of the Hon'ble Supreme Court held in the cases of, (i) H.P.Pyarejan Vs. Dasappa (Dead) by Lrs. and Ors, reported in AIR 2006 SC 1144 . (ii) Kamal Kumar Vs. Premlata Joshi and Ors, reported in AIR 2019 SC 459. 11. The core submission of the learned counsel for the appellants is that the execution of Ex.A1 is not denied and the deceased defendant had avoided to enter into the witness box to subject himself for examination. The sale consideration agreed through Ex.A1 sale agreement is Rs.4,64,000/-. Premlata Joshi and Ors, reported in AIR 2019 SC 459. 11. The core submission of the learned counsel for the appellants is that the execution of Ex.A1 is not denied and the deceased defendant had avoided to enter into the witness box to subject himself for examination. The sale consideration agreed through Ex.A1 sale agreement is Rs.4,64,000/-. It is claimed by the respondents that the first plaintiff himself has stated in the evidence that the deceased defendant has availed only Rs.30,000/- on 22.08.2001 and Rs.50,000/- on 25.09.2004 and he had already availed another Rs.50,000/- and hence, the total loan amount availed by the deceased defendant was only Rs.1,30,000/- and the plaintiffs were not ready and willing to pay the balance sale consideration and come forward to execute the promissory note. 12. Even though the deceased defendant had not availed the loan to the tune of Rs.4,64,000/- from the first plaintiff and his brother, it is contended by the appellants that the sale amount of Rs.4,64,000/- would represent the interest on the loan amount given by the plaintiffs. But the fact remains that the deceased defendant who had signed the sale agreement did not come to the box while he was alive to speak that he has been coerced to execute the sale agreement and that it has been obtained from him by force. Even though his son who has been examined as D.W.1 has stated in his evidence that his father was bedridden, his evidence would reveal that his father was able to speak. In such case, the respondents could have sought the appointment of Court Commissioner to examine the deceased defendant. 13. D.W.1 is the person who has attested Ex.A1 sale agreement and he has stated the said fact in his evidence. His brother Venkatesan is the another attesting witness and he has also admitted that his father has affixed his signature in Ex.A1. Though the above evidence of D.W.1 is supportive to the case of the plaintiffs, the first plaintiff who was examined as P.W.1 has stated in his evidence that the defendant had intended to sell the suit property in view of the loan obtained from him and also from others. Even on the date of the sale agreement, there was an another bank loan to the tune of Rs.4,00,000/-. Even on the date of the sale agreement, there was an another bank loan to the tune of Rs.4,00,000/-. When the defendant was already having a loan for more than Rs.8,00,000 /- even according to the evidence of P.W.1, if the sale price for the suit property is fixed at a sum of Rs.4,64,000/-, no doubt there would have been the pressure on the vendor. 14. P.W.1 has further stated in his evidence that another person who had obtained loan from him has also executed a sale deed in his favour in respect of the property belonged to him. With the strength of the above evidence, it is contended by the learned Senior Counsel for the respondents that the first plaintiff was a money lender and he is in the habit of coercing the borrowers to sell their property for the defaulted loan, though the persons did not intend to sell. 15. The first plaintiff cannot be outrightly blamed for having lent money to the defendant and others and to get a sale deed in respect of their properties for the consideration of the defaulted loan along with the interest. The pressure on the party to the agreement to sell away the property on such circumstances is also understandable. The evidence of P.W.1 would reveal that he had demanded the defendant to repay the loan amount availed by him within 10 days of the sale agreement. But he was not able to settle the loan. So the cumulative reading of the evidence of P.W.1 would only show that the defendant was under tremendous pressure to execute the sale agreement as he was not able to pay back the loan availed by him from the plaintiffs. 16. When the defendant was not able to pay the loan availed by him from the plaintiff, it is impractical to expect that the defendant would discharge a sum of Rs.4,00,000/- outstanding in the loan availed by the defendant from the Land Development Bank. However, the loan availed by the defendant from the Land Development Bank has been waived by the Government later. Immediately thereafter, the first plaintiff had sent a legal notice to the defendant calling upon him to execute the sale deed. However, the loan availed by the defendant from the Land Development Bank has been waived by the Government later. Immediately thereafter, the first plaintiff had sent a legal notice to the defendant calling upon him to execute the sale deed. So it is submitted by the learned Senior Counsel for the respondents that the plaintiffs were not ready and willing all along to perform their part of contract and they kept quiet until 19.12.2006. 17. In the sale agreement Ex.A1, there is a condition that the defendant would discharge the loan pending in the Land Development Bank within 17 months from the date of the sale agreement. 17 months time expires by the end of 2005. However, the plaintiffs did not take any further steps to call the defendant to discharge the loan with the Land Development Bank or atleast to know what kind of steps he has taken to discharge the loan. It is difficult to presume that the date on which the loan with the Bank was waived and the date on which the legal notice was sent was one and the same. There is an inconsistency between the evidence of P.W.1 and Ex.B3 on-demand document wherein the plaintiffs have agreed to hand over the loan papers to the defendant immediately after the sale deed was executed. But the first plaintiff has stated in his evidence that he has already returned the loan documents to the defendant by considering the agreed sale consideration towards discharge of the loan amount. So the above contradictions and the fact that the first plaintiff was a habitual money lender would only show that the first plaintiff has obtained the sale agreement and got the consent of the defendant only on good intention. Under such circumstances, the interest of justice would serve better had the relief of refund of money has been granted to the plaintiffs instead of granting the relief of specific performance. 18. The sale agreement has come into existence at the time when the unamended Specific Relief Act was in force. As per the provisions found in the unamended Specific Relief Act, especially Section 20, the relief for specific performance is a discretionary relief and the Court has to weigh the equity and estimate the relative hardship caused to the parties in granting the relief of specific performance. As per the provisions found in the unamended Specific Relief Act, especially Section 20, the relief for specific performance is a discretionary relief and the Court has to weigh the equity and estimate the relative hardship caused to the parties in granting the relief of specific performance. The circumstances under which the defendant had executed the sale agreement and the dominating position of the plaintiffs at the time he got the sale agreement would clearly give a picture about the hardship caused to the defendant in granting the relief of specific performance. The hardship that would be caused to the plaintiffs in not getting the relief of specific performance would be in all probabilities is less than the hardship caused to the defendant in granting the said relief. In view of the above discussion, the substantial questions of law are not answered in favour of the appellants. 19. In view of the above stated reasons, this Second Appeal is partly allowed and the judgment and decree of the Principal District Judge, Thiruvallur, made in A.S.No.98 of 2008 dated 31.01.2011 is set aside and modified by granting the alternate relief of refund of Rs.4,64,000/- to the appellants by the respondents along with interest at the rate of 9% from the date of the suit till the date of realization and the suit is decreed in respect of the alternate relief of refund. The said amount along with interest shall be deposited by the respondents to the credit of A.S.No.98 of 2008, before the Principal District Judge, Thiruvallur, within a period of one month from the date of receipt of a copy of this order.