The plaintiff in O.S.No.568 of 2007 on the file of the Additional District Judge and Fast Track Court No.IV Coimbatore at Tiruppur is the appellant. While dismissing the claim of specific performance, the Trial Court has granted a decree for refund of advance alone. Aggrieved by the same, the plaintiff has come forward with this appeal.
2. The defendants had entered into an agreement of sale on 28.11.2005 agreeing to convey the suit property for a consideration of Rs13,20,000/-. According to the plaintiff on the date of the said agreement, he had paid a sum of Rs.6,00,000/- and a period of 45 days from the date of changing the name in revenue records, was fixed for performance of the agreement. Since the defendants have transferred the patta in the name of 1st defendant on 14.03.2007, the plaintiff made a demand on 24.04.2007 for specific performance.
3. The defendants sent a reply stating that the agreement dated 28.11.2005 was not intended to be a sale agreement. The 2nd defendant Easwari was hospitalized during November 2005 and since money was required for the purpose of treatment, they had approached the plaintiff for financial assistance and in fact they borrowed a sum of Rs.6,00,000. At the time of said financial transaction, the plaintiff had obtained the thumb impression of the defendants in blank green papers, with which the suit agreement has been prepared. In view of the said denial in the reply, the plaintiff after having issued rejoinder, filed the above suit for specific performance on 14.06.2007.
4. The defendants resisted the suit contending that the agreement is not intended to be acted upon as a sale agreement. While the defendants have borrowed Rs.6,00,000/- from the plaintiff, the plaintiff has obtained their thumb impression in blank papers and created the suit agreement. The readiness and willingness of the plaintiff to perform his part of the contract was also questioned. On the basis of the above pleadings, the learned Trial Judge, framed the following issues:
1)Whether the defendants 1 and 2 have executed the suit agreement for sale and received an advance of Rs.6,00,000/-?
2)Whether the plaintiff is entitled to the relief of specific performance of the agreement for sale or in the alternative for refund of Rs.7,11,000/- from the defendants 1 and 2?
3)To what, if any, the plaintiff is entitled?
The following additional issues were framed on 31.08.2010.
1.Whether the defendants have signed in blank stamp papers and green papers in the circumstances alleged in the written statement?
2.Whether the plaintiff was ready and willing to perform his part of the contract?
3.Whether the plaintiff was always ready and willing to perform his part of the contract?
5. P.Ws.1 to 3 were examined on the side of the plaintiff. PW3 is the scribe of the document namely, the suit agreement dated 28.11.2005. D.Ws.1 to 3 were examined on the side of the defendants. While defendants 1 and 2 were examined as D.W.1 and D.W.2 respectively, one Duraisami, an attestor to the document, namely the suit agreement dated 28.11.2005 was examined as DW3.
6. Upon the consideration of evidence on record, the learned Trial Judge came to the conclusion that the suit agreement is not believable. However, upon the admission made by the defendants that they have borrowed a sum of Rs.6,00,000/- from the plaintiff, the Trial Court granted a decree for refund of advance amount and the learned Trial Judge also found that the plaintiff was not ready and willing to perform the part of the contract. 7. Aggrieved by the rejection of the claim for specific performance, the plaintiff has come forward with this appeal.
8. I have heard Mr.Kingston Jerald the learned counsel appearing for the appellant and Mr.Ma.P.Thangavel, learned counsel appearing for the respondents. The following points arise for determination in the appeal:
1.Whether the defendants have established their plea that the suit agreement was created by the plaintiff utilizing their signs in the blank papers?
2.Whether the plaintiff is ready and willing to perform his part of contract as required under
Section 16(c) of the Specific Relief Act?
3.Whether the Trial Court was justified in refusing to grant the suit for specific performance and granting the alternative relief of refund of advance?
9. In order to prove the agreement of sale, the plaintiff has examined Pws. 2 and 3 who are attestor and scribe of the agreement. Though it is claimed by the defendants that their thumb impressions were obtained in blank stamp papers, I find a total lack of evidence on the side of the defendants except the interested testimony of defendants and DW3 namely the husband of the 2nd defendant.
10. The learned Trial Judge has taken note of the fact that the 2nd defendant would normally sign and the reason given by the plaintiff for taking her thumb impression has not been properly explained, I am unable to accept the said finding in view of fact that there was absolutely no plea regarding the said fact. In fact the 2nd defendant had adopted the written statement filed by the 1st defendant and the written statement filed by the 1st defendant does not contain the plea relating to the ability of the 2nd defendant to sign and the circumstance under which she had affixed her thumb impression. It is seen from Ex.B1, the discharge summary, the 2nd defendant was in fact hospitalized on 21.11.2007 and 26.11.2007. The nature of the ailments is not known. In the above circumstances, the explanation of the plaintiff that since she was weak, her thumb impression was obtained instead of signature, is quite probable and acceptable.
11. The learned Trial Judge, had taken note of the fact that the agreement has been prepared in the office of the PW2, who is the document writer and observed that the 2nd defendant who was very weak, would not have gone to the document writer office to affix her thumb impression. I do not find any plea on this aspect also it is only based on conjectures and surmises.
12. A perusal of the evidence of DW2, namely the 2nd defendant would show that she herself admitted that she is not a literate and she herself admitted that she had affixed thumb impression in the agreement. Though she claimed that it was done on blank papers, the evidence of PWs.2 and 3 regarding the execution of the agreement are consistent and believable. No doubt true, the learned counsel for the respondent would contend that PW2 has deposed that he is known to the plaintiff for 10 years and his evidence should not have been considered. PW3 the scribe of the document has deposed about the execution of the document and no acceptable reason has been adduced to disbelieve the evidence of PW3 and therefore, I am constrained to hold that the agreement is true and the case of the defendants that it was created utilizing the signatures obtained in blank papers has not been established as required under law. Of course, the learned Trial Judge has concluded that the claim of the defendants that the agreement was signed in blank papers based on the fact that the 2nd defendant, who was in the habit of signing, has affixed her thumb impression. The said reasoning, in my opinion does not appear to be sound and reasonable.
13. For the above reasons I conclude that the claim of the defendants that the sale agreement has been created with the help of pre-signed blank papers cannot be believed. Having held that the agreement is true, it is to be seen as to whether the plaintiff has been ready and willing to perform his part of the contract. In Ex.A1 agreement, regarding the time for performance reads as follows:
Mf fPH;fz;l brhj;Jf;fis ehsJ njjp Kjy; vjph;tUk; itfhrp khj filrpf;Fs; mse;J mj;J Vw;gLj;jp nkw;go Kd;gzk; U:gha; MW yl;rk; eP';fyhf ghf;fp bjhif U:/7.20.000-? (U:gha; VG yl;rj;jp ,UgJ Mapuk;)?j;ij nkw;go 3 yf;fkplth; nkw;go 1.2 yf;fkpl;lth;fSf;F buhf;fkhf brYj;Jk; gl;rj;jpy; nkw;go ghf;fp gzj;ji bgw;W bfhz;L nkw;go 1.2 yf;fkpl;lth; nkw;go 3 yf;fkpl;lth;nfh my;yJ nkw;goahh; nfhUk; egUf;nfh egh;fSf;nfh jFe;j tpy;y';f Rj;jpaha; jFe;j thhpRfisf; fl;Lg;gLj;jp Rj;j fpiuak; bra;J bfhLf;f flikgl;lth;
14. It could be seen that the agreement stipulates that the defendants have to measure the suit property before the end of Tamil Month of Vikasi i.e. 15th March 2006 and upon such measurement, the plaintiff has to pay the balance consideration and take the sale deed. A close reading of Class-2 of the agreement would show that either within the time fixed under the previous class or within 45 days form the date of transfer of patta, the plaintiff will have to pay the balance sale consideration and take the sale deed. It could be seen that there are two periods contemplated in the agreement. One is to measure before 15th of March, 2006 and other is within 45 days from the date of transfer of patta. The plaintiff has not either in his evidence or in his plaint stated that the defendants failed to take steps to measure within 14 March 2006. He conveniently waited till 24.04.2007 and after knowing that patta has been known batta has been transferred in the name of the 1st defendant, would make a demand after the time for performance fixed under the agreement had expired. This by itself, according to me will non suit the plaintiff in respect of relief of specific performance. Further in his evidence, the plaintiff had deposed as follows:
mse;J fhz;gpf;fntz;Lk; vd;w fhuzj;ijj;jhd; xg;ge;jj;jpy; Kjypy; brhy;ypa[s;nsd;/ gl;lh gpujpthjpaplk; ,y;iy vd;gij bjhpe;J bfhz;L jhd; ehd; fpiuak; ngrpndd;@ fpiua xg;ge;jj;jpy; fhybfL tH';fpajw;F fhuzk; epyj;ij mse;J mj;J fhz;;;gpg;gjw;Fk; gl;lhit j';fs; bgahpy; khw;wpbfhs;tjw;Fk; jhd; me;j mtfhrk; tH';fg;gl;lJ/ Kjypy; Fwpg;gpl;l fhuzk; epyj;ij mse;J mj;J fhz;gpg;gJ jhd;/ th/rh/M/1 xg;ge;jj;jpy; mtfhrk; bfhLf;fg;gl;lJ/ epyj;ij mse;J mj;J fhz;gpg;gjw;fhft[k; gl;lhit j';fs; bgahpy; khw;wpf;bfhs;tjw;fhft[k; jhd; tH';fg;gl;lJ me;j ,uz;L fhuz';fisa[k; g{h;j;jp bras;jhy; jhd; kPjp gzj;ij bfhLj;J gj;jpuk; bra;J bfhs;tJ vd;why; rhpjhd;/@ @2 fhuz';fSk; g{h;j;jp bra;jhy; jhd; gj;jpuj;ij gjpe;J bfhs;tJ vd;W th/rh/M/1 xg;ge;jj;jpy; Fwpg;ghf Fwpg;gplg;gl;Ls;sJ vd;why; ,y;iy. Mdhy; mJ jhd; mh;j;jk;/@ @gl;lh khWjy; rk;ge;jkhf gpujpthjp ve;j njjpapy; kD bfhLj;jhh; vd;w tptuk; bjhpe;;Jbfhs;stpy;iy/ itfhrp khjj;jpw;F gpd; Vd; ,d;Dk; mse;J fhz;gpf;ftpy;iy vd;W vGj;JK:ykhf mwptpg;g[ vJt[k; bfhLf;ftpy;iy nehpy; jhd; nfl;nld;/ itfhrp khjj;jpw;F gpd; fpiua xg;ge;jj;ij gjpt[ bra;J bfhs;s ve;j eltof;ifa[k; vLf;ftpy;iy mjw;fhd mtrpaKk; ,y;iy/ bghJthf fpiua gj;jpuk; gjpt[ bra;tjw;F Kd;g[ epyj;ij mse;J fhz;gpg;ghh; vd;why; rhpjhd;/ mjw;F Kd;dhYk;k mse;J ghh;f;fyhk;/ epyj;ij msg;gjw;F Rkhh; miu ehs; Mfyhk;@/
15. From the above, it is clear that the plaintiff had not taken any steps to have the land measured by the end of Vikasi i.e. around 15th March, 2006.
Section 16(c) specifically requires the plaintiff to be always ready and willing to perform his part of the contract. Any delay has to be viewed seriously in view of the recent pronouncements of the Hon'ble Supreme Court in Saradamani Kandappan vs. S.Rajalakshmi and others reported in (2011) 2 SCC 18 and Padmakumari and others vs. Dasayyan & ors reported in 2015 8 SCC 695.
16. Failure on the part of the plaintiff to have taken steps to have the land measured within the time fixed under the agreement, in my opinion, dis-entitles him to the relief of specific performance. I also find that the plaintiff has not been ready and willing to perform his part of the contract as required under
Section 16(c) of the Act and therefore, he failed to qualify himself for the discretionary relief of specific performance.
17. Taking note of the above facts, I find the Trial Court was justified in rejecting the relief of specific performance and granting the refund of advance amount. The Trial Court has also granted interest at 12% per annum, which is the agreed interest even according to the defendants. I do not find any necessity to interfere with the conclusion of the Trial Court, though I have differed the finding of the Trial Court regarding validity of the Ex.A1 agreement.
18. In fine the appeal is dismissed confirming the judgement and decree dated 31.08.2010 passed in O.S.No.568 of 2007 on the file of the learned Additional District Judge and Fast Track Court No.IV Coimbatore at Tiruppur. However, taking into consideration of the circumstances of the case, there will be no order as to costs. Consequently connected M.P.No.1 of 2011 is closed.
31.01.2017 Index : Yes/No Internet: Yes/No vk To The Additional District Judge and Fast Track Court No.IV Coimbatore at Tiruppur R.SUBRAMANIAN,J vk A.S.No.47 of 2011 31.01.2017 http://www.judis.nic.in