Aggrieved over the concurrent findings made in A.S.No.11 of 2007 on the file of the Additional District Court/Fast Track Court No.1, Tuticorin and in O.S.No.25 of 2004 on the file of the Sub Court, Tuticorin, the appellant in this second appeal, who is the defendant in the suit, filed this appeal and seeking the relief to set aside the judgments and decrees passed by the Courts below.
2.Before the trial Court, the plaintiff/respondent filed the suit as against the defendant/appellant in O.S.No.25 of 2004, seeking the relief of specific performance directing the appellant to execute the sale deed in respect to the suit schedule property. The Courts below concurrently arrived at the same findings that the respondent is entitled the relief of specific performance. Feeling aggrieved by the same, the appellant/defendant has filed this present second appeal.
3.For the sake of convenience, the parties are referred to as, as described by the trial Court.
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4.The averments made in the plaint, in brief, are as follows:-
The suit schedule property belongs to the defendant. On 25.11.2002, the defendant agreed to sell the property to the plaintiff for a sum of Rs.2,00,000/-. On the agreed date itself, the defendant received a sum of Rs.1,65,000/- and entering into the settlement agreement with the plaintiff. As per the terms of contract, within two years from the date, i.e., 25.11.2002 the plaintiff has to pay the balance sale consideration of Rs.35,000/- and upon receiving the same the defendant has to execute a sale deed in favour of the plaintiff and on the date of sale agreement itself the defendant handed over the title deed to the plaintiff. In the balance consideration of Rs.35,000/-, the defendant received a sum of Rs.25,000/- and issued a receipt. Accordingly, the plaintiff has to pay only Rs.10,000/- to the defendant as a balance sale consideration. Ever since, from the date of sale agreement, the plaintiff insisted the defendant to receive the balance sale consideration and execute a sale deed. Since the defendant is evaded from the request made by the plaintiff, on 21.01.2004 the plaintiff issued a legal notice, in which, he demanded the defendant for fulfilling the contract as agreed on 25.11.2002. The said notice http://www.judis.nic.in 4 was received by the defendant on 22.01.2004. Even after receiving the said notice, the defendant was not ready to perform his part of the contract. Hence the suit.
5.The averments made in the written statement filed by the defendant, in brief, are as follows:-
In earlier, the defendant's husband was in dire need of money for celebrating his daughter's marriage. In the month of October 2002, he approached the plaintiff's husband and availed a loan of Rs.1,65,000/-. Taking advantage of the same, at the time of giving the loan amount, the husband of the plaintiff insisted the defendant to execute a sale agreement as security for the loan availed. Further, the plaintiff's husband obtained general power of attorney in respect to the suit schedule property. On 25.11.2002, the defendant and her husband had no other go, but to sign the documents for the loan of Rs.1,65,000/-. The defendant's husband was requesting the plaintiff and her husband to advance the balance of Rs.35,000/-. Only on 05.12.2003, the balance loan amount of Rs.25,000/- was given to the defendant. Later, the defendant understood that the plaintiff's husband was trying to sell the property by using the general power of attorney. Meanwhile, http://www.judis.nic.in 5 on 23.01.2004, the plaintiff's husband waylaid and threatened him. In this regard, the defendant's husband gave a complaint to the Police Station, Srivaikuntam. In the enquiry made by the police, the plaintiff's husband admitted that the defendant is liable to pay a sum of Rs.1,90,000/-. Thereafter, the plaintiff's husband once again caught the defendant's husband and beat him near the ankle, in both the legs, resulting in heavy swelling. After availing the loan, the defendant's husband has paid Rs.90,000/-. The suit properties are very valuable. On the guise of giving a loan, the plaintiff is trying to mock away such properties.
6.Based on the above said pleadings, the learned Subordinate Judge, Tuticorin, had framed necessary issues and tried the suit.
7.Before the trial Court, on the side of the plaintiff, the plaintiff examined herself as P.W.1, one Murugan was examined as P.W.2 and marked six documents as Ex.A.1 to Ex.A.6. On the side of the defendant, the defendant examined herself as D.W.1 and marked four documents as Ex.B.1 to Ex.B.4.
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8.Having considered all the materials placed before him, the learned Subordinate Judge, Tuticorin, came to the conclusion that the defendant is liable to execute a sale deed in favour of the plaintiff.
9.In the appeal, the learned Additional District Judge, Fast Track Court No.1, Tuticorin, confirmed the findings arrived by the learned trial Judge and dismissed the appeal. Feeling aggrieved by the same, the appellant/defendant has filed this present second appeal.
10.At the time of admitting the Second Appeal, this Court has formulated the following Substantial Questions of Law, for consideration:-
i).Whether the Courts below is not justified in decreeing the suit on the basis of Ex.A.1 sale agreement ignoring the Ex.B.2 and B.3 and its necessity of execution and hence the judgments of the Courts below warrants interference for not properly considering Ex.B.2 and Ex.B.3?
ii).When no issue was framed in respect of readiness and willingness as contemplated under
Section 16(3) of Specific Relief Act, 1963 and when the http://www.judis.nic.in 7 respondent/ plaintiff approached the Court for getting the discretionary relief of specific performance whether the Courts below are right in decreeing the suit and hence warrants interference?
Substantial question of law No.1
11.Before the trial Court, the sale agreement dated 25.11.2002 was marked as Ex.A.1. On the side of the defendant, the marriage invitation relates to the daughter of the defendant dated 08.12.2002, the power of attorney executed in favour of one Balasubramaniam, who is the husband of the plaintiff dated 25.11.2002, were marked as Ex.B.1 and Ex.B.2 respectively. When at the time of disposing the first appeal, the learned Additional District Judge, while discussing about those documents, came to the conclusion that Ex.A.1, sale agreement, is the relevant document for deciding the appeal and the documents Ex.B.1 and Ex.B.2 are not at all relevant. Further, it was not proved on the defendant side that on what purpose those documents were executed and thereby, the relief claimed by the plaintiff is entertainable.
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12.The learned counsel appearing for the appellant/ defendant would contend that even though there is a bar to take a plea that the sale advance amount was received by the defendant as a loan under
Section 92 of Evidence Act, it is necessary and relevant to see as under what circumstances the power of attorney was executed in favour of the husband of the plaintiff. Further, the period in which the family function of the defendant was performed, is relevant to hold that the suit advance amount was received from the plaintiff by the defendant only as a loan and not with intention to sell the suit property. It is true, in the judgment reported in 2015 (2) CTC 178 (Nanjappan Vs.Ramasamy and Ors.) our Hon'ble Apex Court in paragraph No.10 has held as follows:-
As per
Section 92 of the Indian Evidence Act, when the terms of any such contract have been reduced to the form of a document, no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument for the purpose of contradicting, varying, adding to or subtracting from terms. Courts have recorded concurrent findings rejecting the stand of the appellant that the actual sale price was rupees three lakhs and for the purpose of Stamp duty and Registration charges, lesser amount was written and this is well in accordance with
Section 92 of the Evidence act http://www.judis.nic.in 9 and we do not find any reason warranting interference in the said concurrent findings of the Courts below.
13.Further, he relied the judgment of this Court in the case of D.Ananda Moorthy Vs. P.Chandrakala reported in (2010) 5 MLJ 899, wherein this Court in paragraph No.41 has held as follows:
The learned counsel appearing for the respondent/plaintiff has also drawn the attention of the Court to the following decisions:-
(a) in Tamil Nadu Electricity Board and Another V.N.Raju Reddiar and Another AIR 1996 SC 2025: (1996) 4 SCC 551, the Honourable Apex Court has held that “at the outset it must be borne in mind that the agreement between the parties was a written agreement and therefore the parties are bound by the terms and conditions of the agreement. Once a contract is reduced to writing, by operation of
Section 91 of the Evidence Act it is not open to any of the parties to seek to prove the terms of the contract with reference to some oral or other documentary evidence to find out the intention of the parties. Under
Section 92 of the Evidence Act where the written instrument appears to contain the whole terms of the contract then parties to the contract are not entitled to lead oral evidence to ascertain the terms of the contract. It is only when the written contract does not contain the whole of the agreement between the parties and there is any ambiguity, then oral http://www.judis.nic.in 10 evidence is permissible to prove the other conditions which also must not be inconsistent with the written contract.
14.Accordingly, it is already settled that against the terms of contract, one cannot take a plea that the sale agreement was executed as a security or for availing the loan.
15.But in this case it is an admitted fact that on the date when the sale agreement was executed between the plaintiff and defendant, the very same defendant executed a power of attorney in favour of the husband of the plaintiff, in which she gave a power for alienating the suit schedule property. Being a common prudent man if he is having the intention to sell the particular property in favour of the particular person in a specified date, cannot execute a special power of attorney in a same day after executing the sale agreement. More over if the contract is genuine one, further power of attorney is not at all necessary for the plaintiff. Since in this case power of attorney has also executed on the date of agreement, the said situation creates a suspicious circumstance over the case of the plaintiff as whether at the time of entering with the contract with the plaintiff the defendant is having the intention and knowledge to sell the suit property to the plaintiff. Accordingly, the http://www.judis.nic.in 11 courts below without understanding the importance of Ex.B.2, mainly relied Ex.A.1 and granted decree. However, the reliability of those documents is nothing but factual aspects and the said circumstances, did not create any substantial question of law. Accordingly, substantial question of law No.1 is answered as above. Substantial Question of Law No.2
16.Before answering to the substantial question of law No.2 it is necessary and useful to extract the
Section 16(C) of the Specific Relief Act, which reads as follows:-
(c) Who fails to aver and prove that he has 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 terms the performance of which has been prevented or waived by the defendant.
17.Now, applying the said principle in the case in our hand, it is necessary to see the judgment of the learned Subordinate Judge, Tuticorin, in which before deciding the suit in favour of the plaintiff, there was no issue was framed as whether the plaintiff is having readiness and willingness to perform the contract with the defendant. The first appellate Court when at the http://www.judis.nic.in 12 time of deciding the appeal has also not looked into the matter perspectively and dismissed the appeal after confirming the judgment rendered by the learned Subordinate Judge, Tuticorin. The mode of approach taken by the learned Subordinate Judge and first appellate Court is nothing but against the well settled principle of law. Due the said aspect itself, the case of the respondent/plaintiff fails. Now, it is well settled principle that the relief of specific performance is nothing, but discretionary relief. Even though, there was a pleading available in the plaint filed by the plaintiff in respect to the readiness and willingness. Being the plaintiff he has to prove the case through the relevant evidence as he is always ready to pay the balance sale consideration and is willing to execute a sale deed. In fact, in the trial Court, on the side of the plaintiff two witnesses have been examined as P.W.1 and P.W.2. In the proof affidavit filed by P.W.1, the plaintiff has stated that after entering into a sale agreement dated 25.11.2002, on 05.12.2003 the defendant received a sum of Rs.25,000/- and issued a receipt (Ex.A.2). It shows after one year from the date of contract the plaintiff intended to pay the part of balance sale consideration.
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18.Further, it is relevant to see the contents of the sale agreement that in this case the total sale consideration was fixed as Rs.2,00,000/- and admittedly the plaintiff paid Rs.1,65,000/- as advance on the same day of date of execution of the agreement. In the said circumstances, there is no convincing reason stated on the side of the plaintiff as why the plaintiff sought for two years for paying balance sum of Rs.35,000/- and to get the sale deed. Let us, assume that there was some reason for fixing such two years time. It is to be noted at this juncture that the right to pay the balance amount and claim for execution of sale deed does not arise for the plaintiff at the eleventh hour of the two year and on the other hand, such right commences even from the date of the execution of the agreement.
19.But, In this case, after nearly one year from the date of agreement what prevented the plaintiff from paying the entire balance amount and seeking for the execution of sale deed, is not explained. Therefore, it is evident from the conduct of the plaintiff that she was not ready and willing to perform her part of the contract as contemplated under
Section 16(C) of the Specific Relief Act from the date of agreement. In this regard, it is useful to see http://www.judis.nic.in 14 the judgment of our Hon'ble Apex Court in the case of Jayakantham and others Vs. Abaykumar reported in 2017(2) CTC 647, in which the Hon'ble Apex Court has held as follows:-
It would be necessary to bear in mind the fundamental principles of law. The Court is not bound to grant the relief of Specific Relief Act, 1963 indicates that the jurisdiction to decree Specific Performance is discretionary. Yet, the discretion of the Court is not arbitrary but is “sound and reasonable”, to be “guided by Judicial Principles”. The exercise of discretion is capable of being corrected by a Court of Appeal in the hierarchy of Appellate Courts. Sub Section (2) of
Section 20 contains a stipulation of those cases where the Court may exercise its discretion not to grant Specific Performance.
20.So applying the said principles with case in our hand, as already discussed the plaintiff has not proved his readiness and willingness. Further, the cross examination of the plaintiff in respect to the execution of power of attorney in the name of her husband is also one of the consideration which creates a doubt whether the plaintiff approached the Court with clean hands. The lower Court without looking into the said proposition and without framing necessary issues, held that the plaintiff has proved his case. The said findings are against the well settled principles of http://www.judis.nic.in 15 our Hon'ble Apex Court as stated above. Accordingly, the substantial question of law No.2 is answered in favour of the appellant.
21.In the result, the Second Appeal is allowed and the Judgment and Decree dated 07.07.2009 passed in A.S.No.11 of 2007 by the learned Additional District Judge, Fast Track Court No.1, Tuticorin and the Judgment and Decree dated 21.04.2005 passed in O.S.No.25 of 2004 by the learned Subordinate Judge, Tuticorin are set aside and O.S.No. 25 of 2004 is dismissed without costs. Consequently, connected miscellaneous petition is closed.
11.06.2019 Index : Yes/No Internet: Yes/No cp To:
1.The Additional District Judge, Fast Track Court No.1, Tuticorin
2.The Subordinate Judge, Tuticorin.
3.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 16 R.PONGIAPPAN, J.
cp Judgment Made in S.A(MD)No.884 of 2009 11.06.2019 http://www.judis.nic.in