S.A.No.238 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.03.2022
CORAM :
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
Second Appeal No.238 of 2014
S.Vijaya Babu ... Appellant
-Vs-
T.P.Govindarajan ... Respondent
Prayer : Second Appeal under Section 100 of C.P.C., against the judgment and decree dated
dated 02.12.2012 made in A.S.No.142 of 2009 on the file of Additional District and Sessions
Judge, Fast Track Court No.III, Coimbatore confirming the judgment and decree dated
05.08.2009 made in O.S.No.612 of 2007 on the file of III Additional Subordinate Judge,
Coimbatore.
For Appellant : Mr.L.Mouli
For Respondent : Mr.R.Bharath Kumar
JUDGMENT
The plaintiff is the appellant in this Second Appeal.
2. The case of the plaintiff is that he entered into an agreement of sale with the defendant on 27.08.1999, marked as Ex.A.1. As per the sale agreement, the total sale consideration was fixed at Rs.5,00,000/- and the plaintiff paid a sum of Rs.1,00,000/- Page 1 of 12 https://www.mhc.tn.gov.in/judis S.A.No.238 of 2014 towards advance. A time limit of 11 months was also fixed under the agreement. Insofar as the obligation that was fixed on the defendant is concerned, he was expected to give the encumbrance certificate for a particular period, pay and settle all the taxes and dues and measure and fix the boundary stones in the property. The 11 month period expired on 26.07.2000. By then, the agreement was extended on 26.06.2000 for a further period of 11 months and a further advance of Rs.1,00,000/- was paid by the plaintiff to the defendant which is evident from Ex.A.2. The 11 months period that was fixed on 26.06.2000 came to an end on 25.05.2001. However, in the meantime, the second extension took place on 25.04.2001 and the time was extended upto 31.12.2001 and a further advance of Rs.2,00,000/- was paid by the plaintiff to the defendant. This is evident from Ex.A.3.
3. There was one more extension that took place on 15.12.2001 and this was the third extension, whereby the period of agreement was extended for one year and the plaintiff paid a further sum of Rs.75,000/- to the defendant. This is evident from Ex.A.4. By the time, the agreement was extended on the third occasion, the plaintiff had paid a sum of Rs.4,75,000/- out of the total sale consideration of Rs.5,00,000/-.
4. The further case of the plaintiff is that the defendant did not come forward to execute the sale deed and the agreement once again came to be extended for the fourth time on 10.12.2004 for a period of two years. This is evident from Ex.A.5. The two years period also expired on 09.12.2006. The plaintiff issued a legal notice on 10.08.2007, which Page 2 of 12 https://www.mhc.tn.gov.in/judis S.A.No.238 of 2014 was marked as Ex.A.8 and called upon the defendant to execute the sale deed and also expressed his willingness to pay the balance sale consideration of Rs.25,000/-. A reply was given by the defendant to the said legal notice on 20.08.2007 and this was marked as Ex.A.10. Left with no other option, the plaintiff proceeded to file the suit seeking for the relief of specific performance or in the alternative to repay back the advance amount of Rs.4,75,000/- with interest.
5. The defendant filed a written statement and took a stand that the sale agreement dated 27.08.1999 is not a genuine document. According to the defendant, he had taken a loan from a Cooperative Agricultural Bank and in order to repay back the same, he availed a loan from one Gopinath in the year 1998. Since Gopinath was demanding for the repayment of the loan, the defendant approached the plaintiff who was a money lender and a loan was arranged. According to the defendant, the plaintiff was demanding for execution of some documents as a pre-condition for the grant of loan. Hence, as a security, the sale agreement was executed and the defendant never had the intention to sell the property to the plaintiff. The further case of the defendant is that he was not able to repay back the loan with interest and hence the extension of the period was made on the reverse side of the sale agreement. Insofar as the extensions that took place in the year 2001 and 2004 as claimed by the plaintiff, the defendant had completely denied the same and had taken a stand that it is forged and fabricated. The defendant has also stated about the receipt of a legal notice dated 21.11.2002 from the plaintiff, marked as Ex.B.1. In short, the defendant has sought Page 3 of 12 https://www.mhc.tn.gov.in/judis S.A.No.238 of 2014 for the dismissal of the suit on the merits of the case as well as on the ground that there is a long lapse of eight years from the date of sale agreement and the date of filing of the suit and that by itself disentitles the plaintiff from getting the relief of specific performance.
6. Both the Courts below, after considering the facts and circumstances of the case and after analysing the oral and documentary evidence, concurrently held that the plaintiff is not entitled for the relief of specific performance and the alternative relief of refund of the advance amount of Rs.4,75,000/- along with interest was decreed. Aggrieved by the same, the plaintiff has filed this Second Appeal.
7. When the Second Appeal was admitted, the following substantial questions of law were framed.
i. Whether the Courts below erred in non-consideration of admissible documentary evidence exhibit A10 to prove that only Respondent is not ready and willing to perform his part of contract?
ii. Whether the Courts below erred in not considering the admissible documentary evidence Exhibit A13 to A15 to prove the conduct of the respondent to defeat the appellant's claim in the suit?
iii. Whether Courts below erred in recording the finding in holding that Exhibit A1 is a genuine document and it was executed, but no intention to sell the suit properties without any evidence on record?” Page 4 of 12 https://www.mhc.tn.gov.in/judis S.A.No.238 of 2014
8. Heard Mr.L.Mouli, learned counsel for the appellant and Mr.R.Bharath Kumar, learned counsel for the respondent.
9. This Court also carefully perused the materials available on record and the findings of the Courts below. Both the Courts below concurrently held that the sale agreement is genuine and it was executed by the defendant in favour of the plaintiff and the Courts below took into consideration the stand taken by the defendant in the reply notice wherein he had refused to execute the sale deed only due to the rise in the market price. Thus, the initial intent of the defendant to sell the property in favour of the plaintiff by virtue of the sale agreement was found in favour of the plaintiff.
10. Both the Courts below while considering the issue with regard to the readiness and willingness on the part of the plaintiff, concurrently held that there was lack of willingness on the part of the plaintiff. The readiness connotes the financial capacity and the willingness connotes the mental status. Insofar as the readiness is concerned, out of Rs.5,00,000/-, the plaintiff had settled a sum of Rs.4,75,000/- and what remained was only a small amount of Rs.25,000/-. Therefore there is no difficulty in concluding that there was readiness on the part of the plaintiff. The whole difficulty arose while assessing the willingness of the plaintiff to proceed further with the sale. Page 5 of 12 https://www.mhc.tn.gov.in/judis S.A.No.238 of 2014
11. The Courts below found that till the year 2002, the period of agreement got extended from time to time and the same is evident from Ex.A.2 to A.4. Ex.A.4 is dated 15.12.2001 and this was the third extension which took place whereby the period was extended for one year and a further amount of Rs.75,000/- was also paid by the plaintiff and by then, the plaintiff had paid a sum of Rs.4,75,000/- to the defendant. The incidents that took place thereafter was analysed in detail by the Courts below. The plaintiff, for reasons best known to him, did not reveal the issuance of the legal notice dated 21.11.2002 to the defendant. This document was also not marked on the side of the plaintiff. The issuance of such a notice came to light only after it was pleaded by the defendant in the written statement and it was marked on the side of the defendant as Ex.B.1. A careful reading of this notice shows that the plaintiff was in a state of mind where he understood that the defendant, in the guise of measuring the property and fixing the boundary stones, was in fact evading the receipt of the balance consideration and execution of the sale deed in favour of the plaintiff. The plaintiff has therefore called upon the defendant to comply with the terms and conditions of the sale agreement within 15 days from the date of receipt of the notice, failing which the plaintiff will be constrained to file a suit for specific performance. Between 2002 to 2004 there was a total silence on the part of the plaintiff. There is absolutely no explanation as to what happened during this period of two years. This is one fact which stares on the face of the plaintiff who is seeking for the discretionary relief of specific performance.
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12. It is seen that during December 2004 there is a fourth extension of the period of agreement for a period of two years and this is marked as Ex.B1. Surprisingly this document once again says that the extension is to enable the defendant to measure the property and to fix the boundary stones. The size of the property is not such that it will take eight years to measure the property and fix the boundary stones. Therefore, what is evident is that the defendant was not coming forward to execute the sale deed by citing the very same reason and for the reasons best known to the plaintiff, he was not approaching the Court of law and filing the suit immediately even though the plaintiff was able to read the mind of the defendant as early as in the year 2002 itself that the defendant is evading his obligations in the sale agreement and was not prepared to execute the sale deed in favour of the plaintiff.
13. The second legal notice came to be issued in the year 2007 and thereafter the plaintiff filed the suit during October 2007. Both the Courts below found that between the execution of the agreement of sale and the filing of the suit, eight years had expired. This was yet another issue that was put against the plaintiff. By then, the value of the property had increased and the defendant had also stated so in the reply notice and this was yet another factor which was taken into consideration by both the Courts below while exercising their discretion under Section 20 of the Specific Relief Act. It is true that the conduct of the defendant was not very genuine. Therefore when the Court exercised its discretion under Section 20 of the Act, the conduct of the defendant also played a part. The lower appellate Page 7 of 12 https://www.mhc.tn.gov.in/judis S.A.No.238 of 2014 Court specifically goes into this issue also in the judgment and the Court balances the equity and ultimately renders the finding to the effect that the plaintiff is not entitled for the relief of specific performance and confirms the decree of the trial Court insofar as the refund of the advance amount is concerned.
14. The learned counsel for the appellant, after taking through this Court with the pleadings and the evidence that was available on record, submitted that the findings of both the Courts below suffers from perversity. The learned counsel submitted that the readiness and willingness on the part of the plaintiff is quite evident from the fact that the plaintiff had already paid a sum of Rs.4,75,000/- out of a sum of Rs.5,00,000/- which is the total sale consideration fixed under the sale agreement. The learned counsel also submitted that the extension took place every time only on the request of the defendant who was not measuring the property and fixing the boundary stones as agreed under the sale agreement. The learned counsel submitted that even though the Courts below have commented upon the conduct of the defendant, had erroneously held against the plaintiff and the discretion that was exercised by both the Courts below does not satisfy the judicial standards and it is capricious.
15. Per contra, learned counsel for the respondent submitted that both the Courts below have rendered their findings after analysing the entire evidence available on record and the relief of specific performance being a discretionary relief, cannot be granted for the Page 8 of 12 https://www.mhc.tn.gov.in/judis S.A.No.238 of 2014 mere asking and the Courts must be absolutely satisfied that the plaintiff deserves to be granted the relief. The learned counsel submitted that while exercising the discretion under Section 20 of the Act, the Courts below have given their reasoning and unless such reasoning is based on surmises and conjectures, the same cannot be interfered by this Court in exercise of its discretion under Section 100 of C.P.C. The learned counsel therefore sought for the dismissal of the Second Appeal.
16. An inference on facts is a forbidden zone in a second appeal unless the appellant is able to make out a case that the appreciation of evidence suffers from any form of perversity. As a natural corollary, sans any perversity, merely because an alternative view is possible on a reading of the evidence, that by itself would not constitute a legally valid ground for interference under Section 100 of C.P.C. The Hon'ble Supreme Court in Dagadabai (dead) by legal representatives -Vs- Abbas (alias) Gulab Rustum Pinjari [2017 (13) SCC 705] has risen the standard while undertaking this exercise and has held that the perversity of finding on facts must be to such an extent that no average judicial person could ever record such a finding. The Hon'ble Supreme Court in Damodar Lal -Vs- Sohan Devi and Others [2016 (3) SCC 78] has also indicated the safest approach while analysing the perversity in findings. The Hon'ble Supreme Court has held that the safest approach or the classic approach would be on the reasonable man's inference on the facts. If for such a reasonable man, the conclusion on facts in evidence made by the Courts below is a possible conclusion, there is no perversity. If not, the finding is perverse. Page 9 of 12 https://www.mhc.tn.gov.in/judis S.A.No.238 of 2014 Inadequacy of evidence or a different reading of evidence is not perversity. This explanation sufficiently answers the substantial questions of law framed by this Court.
17. In the facts of the present case, it may be possible for this Court to reach a different conclusion based on the reading of the evidence available on record. However, that by itself is not a ground to interfere with the findings of both the Courts below since this Court does not find any perversity in their findings.
18. In view of the above discussion, this Court is not inclined to interfere with the judgment and decree of the Courts below and the substantial questions of law are answered against the appellant. As a result, the Second Appeal stands dismissed. However, considering the facts and circumstances of the case, there shall be no order as to costs.
19. It is however made clear that till the advance amount is repaid back with interest as awarded by the trial Court, there shall be a charge on the property. This is in view of the fact that the sale that had taken place in favour of the third party will not bind the plaintiff since his agreement was prior to the sale that took place in favour of the third party.
10.03.2022 Index : Yes Internet : Yes KST Page 10 of 12 https://www.mhc.tn.gov.in/judis S.A.No.238 of 2014 To
1.The 1st Additional District Judge, Tindivanam
2.District Munsif, Vanur.
Page 11 of 12 https://www.mhc.tn.gov.in/judis S.A.No.238 of 2014 N.ANAND VENKATESH, J.
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