The unsuccessful plaintiff whose suit for specific performance or for the alternative relief of refund of advance amount was dismissed by the Trial Court, is the appellant.
2. The suit was filed for specific performance by the plaintiff in O.S.No.26 of 2005 on the file of Additional District Court-cum-Fast Track Court No.4, Coimbatore contending that the defendants 1 to 3 and one Pushpalatha, the daughter of the 1st defendant have entered into an agreement of sale with the plaintiff on 01.06.2001. Under the said agreement, the defendants 1 to 3 along with the said Pushpalatha had agreed to sell the agricultural land of an extent of 8 acres and 56 cents for a total consideration of Rs.13,00,000/. The plaintiff paid an advance amount of Rs.50,000/- on the date of agreement and six months' time was fixed for performance of the agreement. The plaintiff would contend that he had made several payments on various dates amounting to Rs.10,42,000/-. The above payments were made between 28.09.2001 to 11.10.2004. The 3rd defendant, who is the son of the 1st defendant had made endorsements in the sale agreement dated 01.06.2001 acknowledging the receipt of a total sum of Rs.10,42,000/-. The above payments along with the advance amount of Rs.50,000/- totalling a sum of Rs.10,92,000/- paid by the plaintiff shows that only a sum of Rs.2,80,000/- is payable by the plaintiff under the said agreement. Though six months period was fixed under the agreement, the conduct of the parties particularly the defendants in receiving monies after the expiry of six months, according to the plaintiff, would indicate that time is not the essence of the contract.
3. The plaintiff came to know that the defendants 1 to 3 were negotiating with defendants 4 and 5 for sale of the suit property and therefore, he met defendants 4 and 5 and informed them about the earlier agreement dated 01.06.2001. However, the defendants 4 and 5 had purchased the suit properties from the 1st defendant alone on 19.10.2004 under a sale deed registered as document No.4927/2004 in the Office of the Sub-Registrar, Sulur. The plaintiff had sent a telegraphic notice on 23.11.2004 calling upon the defendants to receive the balance sale consideration and to execute the sale deed. The defendants have not sent any reply. Hence, the plaintiff has come forward with the suit for specific performance or for an alternative relief of refund of advance amount.
4. The said suit was resisted by the 1st defendant contending that the agreement itself is false. According to the 1st defendant, none of the other defendants have any right over the suit properties, since the property devolved on her by succession. The 1st defendant denied the knowledge of the agreement and claimed that the agreement has been created with the help of stamp papers obtained from her by the 3rd defendant under the guise of getting Electricity connection. It is the further contention of the 1st defendant that she and her husband had migrated to Karnataka 10 years prior to filing of the suit and she had never met the plaintiff. The 1st defendant has also contended that the relationship with her son namely, 3rd defendant became strained and he in fact was living with his in-laws in Coimbatore. She has also pleaded that the sale agreement has been created by the 3rd defendant in collusion with the plaintiff. On the above pleadings, the 1st defendant sought for dismissal of the suit. The defendants 4 and 5 namely, subsequent purchasers have filed written statement. While reiterating the allegations by the 1st defendant, they have also claimed that they are bonafide purchasers for valid consideration without notice of the prior agreement. The defendants 2 and 3 remained exparte before the Trial Court.
5. On a consideration of the above pleadings, the learned Additional District Court (Fast Track Court No.4) Coimbatore at Tirupur, framed the following issues:
1.Whether the sale agreement dated 01.06.2001 is true and valid?
2.Whether the plaintiff has paid a sum of Rs.10,92,000/- as advance to the defendants 1 to 3?
3.Whether the plaintiff is entitled to the relief of specific performance?
4.Whether the plaintiff is entitled to the alternative relief of refund of advance amount?
5.To what other reliefs, is the plaintiff entitled to?
6.Whether the sale in favour of defendants 4 and 5 would bind the plaintiff?
6. PWs 1 to 5 were examined on the side of the plaintiff and Exhibits A1 to A23 were marked. DW1 to DW5 were examined on the side of the defendants and Exs.B1 to B23 were marked on the side of the defendants.
7. Upon consideration of oral and documentary evidence, particularly, the discrepancy in the evidence of PW1 to PW5 regarding the plea of execution of sale agreement dated 01.06.2001 marked as Ex.A2, the learned Additional District Court-cum-Fast Track Court No.4, Coimbatore, came to the conclusion that the claim of the plaintiff with reference to execution of agreement dated 01.06.2001 has not been established as required under law. The Trial Judge also found that the plaintiff was not ready and willing to perform his part of the contract even assuming the suit agreement to be true and valid.
8. As regards the prayer of refund of advance, the learned Trial Judge, relied upon the fact that the 3rd defendant alone made the endorsements of receipt of payments, which makes the case of the plaintiff highly improbable. On the above findings, the learned Additional District Court-cum-Fast Track Court No.4, Coimbatore dismissed the suit including the relief of refund of advance amount.
9. Aggrieved by the said judgement and decree, the plaintiff has field the above appeal.
10. I have heard Mr.V.Raghavachari, learned counsel appearing for the appellant and Mr.P.M.Duraisamy, learned counsel appearing for the respondents 4 and 5. Notice to the respondents 1 to 3 has been dispensed with, since, the respondents 2 and 3 have remained exparte before the Trial Court and the 1st respondent has sold the properties to respondents 4 and 5.
11. After hearing the learned counsel appearing for the appellant as well as learned counsel for the respondents 4 and 5, the following points emerge for determination in this appeal.
1)Whether the sale agreement dated 01.06.2001 is true and valid?
2)Whether the plaintiff has been ready and willing to perform her part of the contract?
3)Whether the plaintiff is entitled to the alternative relief of refund of advance amount?
4)Whether the defendants 4 and 5 are bonafide purchasers for value without notice of the prior agreement?
Point No.1
12. According to the plaintiff, the sale agreement dated 01.06.2001 was entered into and the same was signed by the parties in the residence of his co-brother namely one Kuppusamy at SV.Colony, Tirupur. PW2 and PW3 are attestors of the said agreement. PW2 would depose that the agreement was signed inside the Sub-Registrar Office, Sulur. PW3 would claim in cross-examination that the agreement was signed in the Office of the document writer, who was examined as PW5. Co-brother of the plaintiff, namely, Kuppusamy who was examined as PW4 would depose that he came to know that the document was signed in the Office of the Sub-Registrar, Sulur. The document writer Giri, who was examined as PW5 would depose that the document was signed in his office. Therefore, there are three different versions given by the plaintiff witnesses regarding the place of execution of the agreement of sale namely Ex.A2 dated 01.06.2001.
13. The plaintiff would further contend that he paid a sum of Rs.10,42,000/- on different dates and the endorsements acknowledging the same were made by the 3rd defendant alone in Ex.A2 agreement. Those endorsements have been marked as Ex.A3 to A12. They are in different hand writing.
14. The plaintiff as PW1 would depose that endorsements were written by himself, 3rd defendant and Manimekalai, daughter of PW4. The receipt of money and endorsements have been denied by the 1st defendant. The said Manimekalai, has not been examined by the plaintiff. Both the plaintiff as well as PW4 would claim that 1st defendant was present while five endorsements were made and only the husband of the 1st defendant was present while the remaining five endorsements were made. It would have been appropriate on the part of the plaintiff to have obtained the thumb impression of 1st defendant when the endorsements were made. Though voluminous evidence is on record, it is not helpful to the plaintiff to prove the execution of Ex.A2 sale agreement by the 1st defendant.
15. Admittedly, the property in question was inherited by the 1st defendant from her father. Therefore, her son would have no right over the suit property during the life time of the 1st defendant. Therefore, the fact that the 3rd defendant alone made the endorsements marked as Exs.A3 to A12 by itself shakes the foundation of the plaintiff's version.
16. As already stated each one of the plaintiff's witnesses have given different version relating to execution of Ex.A2. That by itself in my considered opinion would be sufficient to hold that the plaintiff has not established the execution of the Ex.A2 sale agreement by the 1st defendant. The plaintiff himself deposed that he has got the Karnataka address of the 1st defendant from the 3rd defendant. This itself would show that the 3rd defendant has been helping the plaintiff in conducting the proceedings.
17. Ex.A2 agreement has been typed in Rs.10/- Stamp Paper and it is dated 01.06.2001.
Article 5 (a) of the Stamp Act was amended by Tamil Nadu Act 9/2001, enhancing the stamp duty payable for an agreement of sale of immovable property to Rs.20/- with effect from 11.07.2001. However, I find, serious cross-examination has been made on the value of the stamp papers before the lower court and strangely the lower court has levied and collected stamp duty and penalty while marking the said agreement as Ex.A2. He has not been able to dislodge the mystry relating to execution of Ex.A2 and endorsements therein. I am therefore, constrained to answer point No.1 against the plaintiff.
Point No.2.
18. On the question of readiness and willingness, the following facts are noticed. The agreement is dated 01.06.2001. The period of six months was fixed for performance. The suit came to be filed on 30.11.2004. The last date for performance of the agreement was 30.12.2001. The first notice demanding performance was issued by the plaintiff on 23.11.2004. Though the plaintiff would claim that in view of the fact he has been making payments on various dates between 1.6.2001 and 11.10.2004 to the 3rd defendant, the period of performance of the contract would be automatically extended and he cannot be non-suited on the ground of absence of readiness and willingness. The law relating to time being the essence of contract and the requirement of the plaintiff to show that he is aways ready and willing to perform his part of the contract is now well settled.
19. On more than one occasion, the Hon'ble Supreme Court has categorically laid down that the time fixed under the agreement should be given some meaning. In Padmakumari and others vs. Dasayyan & others reported in 2015 (8) SCC 695, the Hon'ble Supreme Court had observed that once time is fixed for performance of contract, it should be strictly adhered to. Any delay would definitely have the effect of non-suiting the plaintiff. In the case on hand, the plaintiff as PW1 deposed that he had approached the Panchayatdars and sought for refund of advance. That be so, it is clear that the plaintiff was not atleast willing to perform his part of the contract and therefore, I am obliged to concur the findings of the Trial Court holding that the plaintiff has not established his readiness and willingness to perform his part of the contract.
Point No.3
20. Mr.V.Raghavachari, learned counsel appearing for the appellant would submit that the Trial Court was not justified in rejecting the alternative relief of refund of advance amount. The learned counsel would contend that though the 1st defendant has denied the execution of Ex.A2 and receipt of advance and the money acknowledged under the endorsements namely Exs.A3 to A12 made the 3rd defendant, the 3rd defendant had in fact admitted the receipt of the said amount. The learned counsel would place considerable reliance on the contents of Ex.A21, namely, reply notice issued by the 3rd defendant through his counsel dated 27.11.2004. In the said reply it is stated by the 3rd defendant as follows:
My client states that subsequent payments were made by your client in the presence of all the parties to the said agreement of sale dated 01.06.2001. But your client obtained only my client's signature in the endorsements made in the agreement. Though the other parties were present, your client did not obtain their signatures in the contract Contending that this amounts to categorical admission by the 3rd defendant for having received Rs.10,92,000/- paid by the plaintiff, the learned counsel would submit that denial of decree for refund of advance, even against the 3rd defendant is not correct. The learned counsel would also contend that the 3rd defendant having acknowledged the receipt of money, is liable to repay the money received by him. The learned counsel would also rely on the fact that even in the reply notice dated 27.11.2004 marked as Ex.A21, the 3rd defendant would claim that he is entitled to < share in the property. For the above foregoing reasons, the learned counsel would submit that the denial of decree for refund of advance amount even against the 3rd defendant, would amount to denial of just claim of the plaintiff.
21. No doubt the Trial Court had come to the conclusion that execution of Ex.A2 agreement has not been proved and I have also concurred with the said conclusion. The 3rd defendant in his reply notice would admit the execution of the agreement and receipt of the advance. He had not chosen to defend the suit. He is bound by his own admission. According to the Trial Court since the plaintiff's claim for the relief of specific performance has been rejected on the ground of execution of the agreement by the 1st respondent has not been established and that the plaintiff has not been ready and willing to perform his part of the contract, the plaintiff would loose the right to seek refund of advance atleast from the 3rd defendant. To this extent, the Trial Court misdirected itself in rejecting the relief of refund of advance even against 3rd defendant. Therefore, I am constrained to interfere with the said findings of the Trial Court, wherein it holds that the plaintiff is not entitled to the relief of refund of advance amount, from the 3rd defendant alone. The 3rd defendant has categorically admitted the receipt of a sum of Rs.10,92,000/- in his reply notice marked as Ex.A21.
Point No.4
22. Defendants 4 and 5 who are subsequent purchasers would contend that they have no knowledge of the earlier agreement. Though a claim is made in the plaint that the plaintiff has informed the defendants 4, and 5 about the existence of agreement and requested them not to purchase the property from the 1st defendant, there is no evidence to support the said claim. None of the witnesses examined by the plaintiff have spoken about the said fact. The sale deed in favour of the defendants 4 and 5 has been executed on 19.10.2004 and it has been registered on the same day. As already stated, the notice requiring specific performance was issued only on 13.11.2004. i.e. after the execution of the sale deed in favour of the defendants 4 and 5. The suit has been filed on 30.11.2004 within a week from the date of issuance of notice. It is also the case of the defendants 4 and 5 that the suit agreement has been prepared by the plaintiff in collusion with the 3rd defendant in order to defeat the rights of the defendants 4 and 5. In the absence of any evidence to impute knowledge of the earlier agreement to defendants 4 and 5, I am constrained to conclude that they are bonafide purchasers for value without notice of the prior agreement of sale, even assuming that the same has been validly entered into. Thus Point No.4 is also answered against the plaintiff.
23. In view of the above, the appeal is partly allowed and the judgement and decree of the Trial Court stands modified as follows:
1.The suit for specific performance will stand dismissed.
2.There will be a decree for refund of the advance amount of Rs.10,92,000/- with subsequent interest at 6% per annum from the date of the suit till date of payment as against the 3rd defendant alone.
3.In other aspects, the judgement and decree of the Trial Court stands confirmed. However, there shall be no order as to costs.
30 .01.2017 Index : Yes/No Internet: Yes/No vk To The Additional District Court-cum-Fast Track Court No.4, Coimbatore.
R.SUBRAMANIAN,J vk Predelivery Judgement A.S.No.849 of 2009 30.01.2017 http://www.judis.nic.in