(Judgment of the Court was delivered by P.KALAIYARASAN, J.) This appeal suit is directed against the judgment and decree passed by the District Judge, Kanyakumari District at Nagercoil dated 25.11.2011 in O.S.No.181 of 2009, decreeing the suit for specific performance of contract and permanent injunction.
2.The plaint averments are as follows:
2.1. The first defendant Sarjan Realities Private Limited is engaged in the business of purchasing, selling and otherwise dealing in land for itself and for others for setting up of wind farm projects. The second defendant is the Director of the first defendant company and third defendant is the power of attorney and authorised signatory of the first defendant company under power of attorney deed dated 27.06.2003. The third defendant, as the power of attorney of the first defendant company, entered into a sale agreement on 03.10.2009 with the plaintiff at the office of the first defendant at Koregoan Park, Pune. The time stipulated in that agreement dated 03.10.2009 is one month. When the plaintiff contacted the third defendant over phone on 31.10.2009, he demanded more money. So, the plaintiff immediately rushed very next day i.e. on 01.11.2009 by train to Pune.
2.2. The plaintiff met the third defendant in his office on 03.11.2009 and during his visit, the third defendant insisted more money towards advance. As the third defendant insisted to pay more advance even on 07.11.2009, he came back to Chennai and on 09.11.2009 went to Pune by flight. He met the third defendant in his office with his relative Madhavan with cash of Rs.7.5 lakhs. But, the third defendant insisted to pay atleast Rs.12.5 lakhs more. He got back the first agreement dated 03.10.2009 and a new sale agreement dated 09.11.2009 was entered into showing the balance as Rs.15,50,000/-. The plaintiff arranged another Rs.5 lakhs with the help of his relative Madhavan and paid Rs.12.5 lakhs on 10.11.2009 and got receipt. The balance amount of the sale consideration is only Rs.3 lakhs. The agreement dated 09.11.2009 was executed by the third defendant/the power of attorney of the first defendant company and the plaintiff with the said Madhavan as attestor. The agreement was attested by Advocate Notary at Pune.
2.3.The total consideration for the properties agreed and fixed by the executants of the agreement was Rs.25 lakhs and the sale deed is to be executed by the defendants to the plaintiff within three days from 09.11.2009, at the expenses of the plaintiff, receiving the balance amount of sale consideration from him. The defendants placed the plaintiff in possession and enjoyment and permitted to construct the compound wall or fencing in the land and permitted to develop the land.
2.4.The plaintiff was and is always ready and willing to take the sale deed from the first defendant in terms of the agreement for sale, paying the balance sale consideration of Rs.3 lakhs. Expressing the plaintiff?s readiness and willingness to the defendants, the plaintiff approached the third defendant over phone on 11.11.2009, requesting him to execute the sale deed on 12.11.2009 and the defendants were evading to perform their part of contract. The plaintiff was present in the Sub Registrar?s Office at Kottaram on 12.11.2009 and 13.11.2009 with money. But, the third defendant did not turn up. On 13.11.2009, the third defendant contacted the plaintiff over phone at 09.00 AM and asked the plaintiff to get back the advance of Rs.22 lakhs with Rs.25,000/- towards interest. It is reliably informed to the plaintiff that the defendants are searching for other purchasers to sell the property for higher price. Therefore, the present suit has been filed for the relief of specific performance and permanent injunction.
3. The contentions of the defendants in the written statement filed by the third defendant and adopted by the first and second defendants are as follows:
3.1. The entity of first defendant Sarjan Realities Private Limited is so wide which include dealing lands for wind farm project. The third defendant as the power of attorney of first defendant never entered into a sale agreement with the plaintiff dated 03.10.2009 and the agreement was not signed by the third defendant as he was already transferred to Pune office in the year 2007. The purchase or sale of the properties are negotiated and decided by G.M.-land and A.G.M.-land of the first defendant company and the sale deeds entered by the company from the year 2007 and afterwards are signed by Shri.S..Desh Pandi, Deputy Manager or Shi.N.Iyyakurry, Manager, who are authorised signatory of the company.
3.2.The sale agreement produced by the plaintiff is a forged and fabricated document. The third defendant has not signed in any agreement with the plaintiff. It is now understood that the plaintiff is a land grabber and was trying to create records for which, he seems to have come to Pune. The first defendant company received payment only by way of cheque/draft. The visitor?s pass filed along with the plaintiff is also a fabricated document with criminal intention on the part of the plaintiff.
3.3.The demand of more advance by third defendant and further demand in the first defendant?s office at Pune by third defendant are all denied. The market value is around Rs.30 lakhs per acre and hence, the company would not have agreed to sell 2.5 acres of land for a sum of Rs.25 lakhs. The suit is frivolous and vexatious and the plaintiff has no right to file a case against the defendants. In order to grab the property by illegal means, the plaintiff has created all documents and filed the suit. Therefore, the suit is to be dismissed.
4.The District Judge, after framing necessary issues, analysed both oral and documentary evidence and divergent contentions of both sides and decreed the suit as prayed for with cost. Aggrieved against the said judgment and decree, the defendants have preferred this appeal.
5.The learned counsel for the appellants contends that the sale agreement is forged one and the trial Court, without appreciating the evidence on this aspect, decreed the suit. It is further contended that the third defendant was transferred from Tirunelveli to Pune even in 2007 itself and there are other officers to manage the affairs in Tamil Nadu and therefore, the case of the plaintiff that he had been to Pune and entered into an agreement with the third defendant is shrouded with suspicion. Therefore, the suit is liable to be dismissed.
6.The learned counsel for the respondent/plaintiff, interalia contends that the plaintiff has established the sale agreement ss genuine through acceptable evidence and the trial Judge, has rightly decreed the suit by evaluating the evidence of both sides and the same does not require any interference.
7.The admitted facts are that the first defendant company is engaged in business including the business of purchasing, setting and otherwise dealing in land for itself and for others for setting up wind farm projects. Third defendant is the power of attorney and authorised signatory of the first defendant company and he was transferred to Pune from Tamil Nadu in the year 2007.
8.First, this Court has to see whether the third defendant is the power of attorney and authorised signatory of first defendant company on the date of alleged sale agreement. Copy of power of attorney deed dated 27.06.2003 is marked as Ex.A4. Third defendant examined as D.W.3 and the Director of the company examined as D.W.2 have categorically deposed that third defendant was the power of attorney and authorised signatory to the first defendant company and the power of attorney deed has not been revoked. They further deposed that power of attorney deed is still in force. Therefore, admittedly, third defendant is the power of attorney and authorised signatory of first defendant company on the date of sale agreement.
9.The plaintiff?s case is that the third defendant on behalf of the first defendant company entered into an agreement on 03.10.2009 and having failed to perform the same and demanded more money, he went to the office of the first defendant at Pune and entered into an agreement with third defendant on behalf of the first defendant company on 09.11.2009 and he also paid further advance amount on 10.11.2009 to the third defendant in his office and got receipt. The further case of the plaintiff is that the agreement was also notarised in Pune itself. But, the specific case of the appellants/defendants is that the third defendant never entered into a sale agreement with the plaintiff and the agreement as well as receipt are rank forgery.
10.To prove the execution of the agreement, the plaintiff examined himself, the attestor of the agreement and the advocate notary, who notarised the agreement as Pws.1 to 3. He has also filed entry pass to the first defendant company dated 03.11.2009 apart from air and train tickets for his visit to Pune twice within a week time.
11.P.Ws.1 and 2 have categorically deposed that the plaintiff went to the office of first defendant in Pune and agreement for sale dated 09.11.2009 was entered into between the third defendant on behalf of the first defendant company and the plaintiff. P.W.2 says that he attested to the agreement. Advocate Notary examined as P.W.3 has deposed that after verifying the identity card of the parties, he notarised the agreement and entry was also made in his notary register. The copy of notary register is marked as Ex.A.19.
12.No doubt, on the date of boycott of advocates, advocate notary coming from Pune was examined in chief and the defendants had not cross- examined him. The petition filed by the defendants to recall the witness was allowed and summons was also issued. But, advocate notary did not appear after receipt of summons. But, instead of taking steps to compel the witness to appear, the defendants filed petition to eschew the evidence of P.W.3 and the same has been dismissed by the trial court. The defendants have not taken further steps. Therefore, the contention of the appellant that evidence of P.W.2 should not be considered is not sustainable.
13.The properties were purchased for the first defendant company only by the third defendant as power agent and the copy of sale deed said to have been given to the plaintiff is marked as Ex.A5. It is pertinent to note that defendants had not raised any objection to mark the above document. This Court is conscious that though the Court has got power to compare the disputed handwriting, as a matter of prudence and caution, the Court should hesitate to examine handwritings and also render its finding based on mere comparison. The decision of this court is not going to be based on mere comparison of the signature alone and there are other corroborative evidence and factors.
14.This Court carefully compared the signature of the third defendant found in Ex.A5 with the signature in the disputed sale agreement Ex.A2 and the Receipt Ex.A3. Bearing in mind, the personal characteristics of the writings, similarities, dissimilarities, this Court compared the signatures found in the said documents and is satisfied that the signatures found in the agreement and Receipt (Exs.A2 and A3) are that of the third defendant. The evidence of third defendant as D.W.1 also lends support to the above opinion of this Court and corroborates. During cross examination of D.W.1, hiding the contents when the advocate questioned showing the signature alone in A2 and A3, he admitted them as his signatures. Though it is not an admission as to the execution of the agreement, it can be taken as corroborative factor to conclude that the signatures found in Exs.A2 and A3 are that of third defendant.
15.The learned counsel for the appellant also cited the Hon'ble Supreme Court judgment in Kapil Corepacks Private Limited Vs. Harbans Lal reported in (2010) 8 Supreme Court Cases 452, for the proposition that confronting of a signature alone to a witness without disclosing the document, the admission as to the signature cannot be taken as an admission of execution of the document. As already pointed out, this Court has not taken the admission of D.W.1 as the admission of the execution of the agreement and his admission has been taken as his admission of his signature alone that too as a corroborative evidence.
16.The plaintiff has also filed the visitor?s pass dated 03.11.2009. According to the plaintiff, he met third defendant in his office on 03.11.2009 and since, he demanded more money, he came back to his native place and again, he went to Pune on 09.11.2009 with money and entered into an agreement. Visitor?s pass is marked as Ex.A9. In this, third defendant signature is also found. Third defendant, in his evidence, admits that it is a pass given in their office. Thus, the plaintiff has established through both oral as well as documentary evidence that agreement was entered into between the third defendant on behalf of the first defendant company and the plaintiff. Though the defendants claim the agreement as rank forgery, they failed to cross-examine P.W.3 Advocate notary. It is also pertinent to note that having admitted the signature in the sale agreement even during cross- examination, the defendants have not taken steps to send the document to the handwriting expert for examination. Therefore, the trial Court has rightly decreed the suit and this Court does not find any reason to interfere with the judgment and decree of the trial Court.
17.For the aforesaid reasons, this appeal suit is dismissed. The judgment and decree dated 25.11.2011 passed in O.S.No.181 of 2009 by the District Judge, Kanyakumari District at Nagercoil are hereby confirmed. Consequently, connected miscellaneous petition is also dismissed. No costs.
To
1.The District Judge, Kanyakumari District at Nagercoil.
2.The Record Keeper, Madurai Bench of Madras High Court, Madurai..