Madras High Court
Marimuthu Ammal (Died) vs A.Venkatesan on 27 August, 2021
SA NO.398 OF 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.GOVINDARAJ
SA NO.398 OF 2012
AND MP NO.1 OF 2012
Marimuthu Ammal (Died)
A.Nagarajan ... Appellant
Vs.
1.A.Venkatesan
P.Sando Murthy (Died) ... Respondent
PRAYER: The Second Appeal filed under Section 100 of the Civil
Procedure Code against the judgment and decree dated 09.08.2011 passed
by the learned Additional District Judge, Fast Track Court No.II,
Poonamallee, in A.S.No.27 of 2010 in confirming the judgment and decree
dated 30.09.2002 passed by the learned Subordinate Judge, Poonamallee,
in O.S.No.25 of 1991.
For Appellant : Mr.T.Karunakaran
For Respondent : Mr.J.Kalidas
https://www.mhc.tn.gov.in/judis
1/12
SA NO.398 OF 2012
JUDGMENT
Challenging the concurrent findings of the Courts below, the
defendant has preferred the above Second Appeal.
2.For the sake of convenience, the parties are called with respect
to their status in the Suit.
3.The brief facts leading to the case is as follows:
The first respondent / plaintiff had entered into an agreement of
sale of property situated in S.No.68/1B-2 in Nandambakkam Village,
measuring an extent of 0.03 Cents by way of an unregistered Sale
Agreement dated 15.12.1989. The total sale consideration was fixed as
Rs.40,000/- and the plaintiff has paid a sum of Rs.16,005/- on 15.12.1989
agreeing to pay the balance amount of Rs.23,995/- within a period of three
months and get the Sale Deed executed. According to the plaintiff, he was
put in possession. However, the second defendant in the Suit created
problem by claiming title to the Suit property and he made illegal attempts
to dispossess the plaintiff on 15.12.1989 and 28.12.1989. In the
https://www.mhc.tn.gov.in/judis
SA NO.398 OF 2012
meanwhile, the first defendant had given permission by letter dated
23.12.1989 to put up further construction. Thereafter, the plaintiff lodged
a police complaint against the second respondent and filed a Suit in
O.S.No.1478/90 on the file of District Munsif, Poonamallee and obtained
interim orders. Since the second defendant was claiming independent title,
the plaintiff, issued a legal notice dated 27.02.1990 calling upon the first
defendant to clear off her title as against the second defendant to the
satisfaction of the plaintiff. Inspite of receiving the notice, the first
defendant has not taken any steps. By notice dated 05.03.1990, a reply
was given. Thereafter, on 15.10.1990, the first respondent issued a legal
notice which was followed by another notice dated 26.11.1990 for a sum
of Rs.16,005/- which was paid by the plaintiff towards advance. On
10.12.1990, the plaintiff issued a reply notice and filed the Suit. On
04.01.1991, the plaintiff has returned the demand draft and filed the Suit
and deposited the balance sale consideration on 04.01.1991 before the
Trial Court. The Trial Court decreed the Suit in respect of specific
performance, however, dismissed the same in respect of permanent
injunction. The Lower Appellate Court has confirmed the findings of the
Trial Court. Against which, the appellant / first defendant has preferred the
above Second Appeal.
https://www.mhc.tn.gov.in/judis
SA NO.398 OF 2012
4.In fact, by an order dated 24.01.2014 the Second Appeal was
allowed by this Court. However, when it was taken on appeal before the
Hon'ble Supreme Court, the judgment of this Court was set aside with a
direction to this Court to frame substantial question of law and to hear the
appeal afresh and dispose of the same within a period of six months.
5.Accordingly, this Court has admitted the Second Appeal on
29.07.2019 and framed the following substantial question of law:-
“Whether both the Courts below are right in
concluding that the plaintiff was always ready and
willing to perform his part of the contract and whether he
was possessed of sufficient means.”
6.Today when the matter is taken up for hearing, the learned
counsel on either side have argued elaborately on the basis of the above
substantial question of law.
7.From the perusal of the materials, the undisputed fact remains
that there was an agreement of sale between the appellant / first defendant
https://www.mhc.tn.gov.in/judis
SA NO.398 OF 2012
and the first respondent/plaintiff on 15.12.1989 and the sale consideration
was agreed as Rs.40,000/-, out of which a sum of Rs.16,005/- was paid
towards advance. It is further agreed that the sale transaction shall be
completed within a period of three months, failing which, the advance
amount will be forfeited. Thereafter, it appears that there was some dispute
between the first respondent / plaintiff and the second defendant, pursuant
to which, the first respondent / plaintiff has issued a legal notice dated
27.02.1990, wherein he has called upon the first defendant to settle the
dispute between herself and her sister's son, the second defendant,
otherwise, he was unable to proceed further in the sale transaction and also
called upon the appellant / first defendant to furnish all the information
and particulars and also produce all relevant documents to support her title
within 10 days of the notice.
8.Thereafter, a legal notice was issued after a period of eight
months by the appellant / first defendant. On 05.03.1990, the appellant /
first defendant has issued a reply notice calling upon the first respondent /
plaintiff to pay the balance amount and complete the registration of sale
deed within the period stipulated in the agreement, failing which, the
advance amount shall be forfeited. After a period of seven months, on
https://www.mhc.tn.gov.in/judis
SA NO.398 OF 2012
15.10.1990, the appellant / first defendant has issued another notice
reiterating the same. The first respondent / plaintiff has issued a reply
notice dated 12.11.1990 vide Ex.A6 denying the claim of the first
defendant that time is the essence of the contract and demanded the first
defendant to clear off her title and get the sale deed registered. But, with an
ulterior motive, sent a notice forfeiting the advance amount though he was
ready and willing to have the sale deed executed in his name and he has
money ready with him. Thereafter, he called upon the first defendant to fix
a date for execution and registration of the sale deed, failing which, he will
take further legal action. Thereafter, the first defendant has issued a notice
on 27.11.1990 – Ex.A7, returning the advance amount to the tune of
Rs.16,005/-.
9.Even though the plaintiff in his reply notice, which was
marked as Ex.A6, has categorically stated that he was ready with the
money and called upon the first defendant to fix a date for execution and
registration of the sale deed, while deposing as P.W.1, would state that on
the date of entering into the sale agreement, he was not having any money
and he was only in possession of jewels. Other than this, there was no
evidence to prove the readiness and willingness of the plaintiff to get the
https://www.mhc.tn.gov.in/judis
SA NO.398 OF 2012
sale deed executed. Contrary to the contents of Ex.A6, in his cross
examination, he would depose that he has not applied for any loan and has
not taken any steps to mobilise the funds and he has not deposed anything
about his readiness and willingness to get the sale deed executed.
10.It is well settled that under Order VI Rule 3 of Code of Civil
Procedure, the pleading should be specific and the plaint shall contain
specific averments as to the conduct of parties. The plaint shall not have
loose words, without support of any concrete action. In this Suit, even
though the plaintiff has pleaded that he was ready and willing, it is not
specifically explained as to how he was ready and willing and the
possession of money to perform his part of contract was also not
explained. Further, in his evidence, the plaintiff as P.W.1 deposed that he
was not having any money other than the jewels and no specific details as
to whether he has liquidated the jewels and get the money ready or
mobilised the money through other sources. On the other hand, the
deposition shows that he has not taken any steps to secure loan or to
mobilise money.
https://www.mhc.tn.gov.in/judis
SA NO.398 OF 2012
11.It is well settled by very many judgments that the readiness
and willingness as specified under Section 16(c) of the Specific Relief Act,
1963, shall be explained in day today basis. Even though the plaintiff has
issued a legal notice vide Ex.A3 dated 27.02.1990, he kept quite and had
not taken any steps towards the performance of the contract. Even though
the legal notice issued in Ex.A3 was replied by the first defendant, calling
upon the plaintiff to complete the sale transaction within a period of three
months, he has not performed his part. Again on 15.10.1990, vide Ex.A5
the first defendant has issued a notice that she has not completed the
transaction within a period of three months and since the period has
expired, the amount of advance stood forfeited and she will sell the
property to someone else. Even after this, the plaintiff has not taken any
steps, which resulted in Ex.A7 equivalent to Ex.B11 by which the first
defendant has returned the advance amount. There is no explanation for
the period between 02.07.1990 and 12.11.1990 towards the steps taken by
the plaintiff to show his readiness and willingness. In spite of the legal
notice calling upon the plaintiff to get the sale transaction completed within
a period of three months and after issuance of legal notice forfeiting the
advance amount and till the receipt of the demand draft to the tune of
Rs.16,005/- paid towards advance, the plaintiff has not come forward to
https://www.mhc.tn.gov.in/judis
SA NO.398 OF 2012
pay the balance sale consideration and show his readiness and willingness
in performing his part of the contract. Mere pleading that the plaintiff is
ready and willing with money is not enough, but it should be proved by
action.
12.In the instant case, the plaintiff has not proved his readiness
and willingness. Therefore, I do not find that the plaintiff was ready and
willing in performing his part of contract. Hence, the question of law is
answered in favour of the appellant/defendant and against the first
respondent / plaintiff.
13.It is also submitted that during the pendency of the first
appeal, the first respondent / plaintiff filed an execution petition before the
Sub Court, Tambaram, which is not connected to the Suit proceedings.
14.In view of the above findings, the judgment and decree dated
09.08.2011 passed by the learned Additional District Judge, Fast Track
Court No.II, Poonamallee, in A.S.No.27 of 2010 confirming the judgment
and decree dated 30.09.2002 passed by the learned Subordinate Judge,
Poonamallee, in O.S.No.25 of 1991, stands set aside, as the sale
https://www.mhc.tn.gov.in/judis
SA NO.398 OF 2012
transaction is illegal. The appellant / first defendant is entitled to take
appropriate steps to cancel the sale deed.
15.The Second Appeal stands allowed. No costs. Consequently,
connected miscellaneous petition is closed.
27.08.2021
Index : Yes/No
Internet : Yes/No
TK
To
1.The Additional District Judge
Fast Track Court No.II,
Poonamallee.
2.The Subordinate Judge
Poonamallee.
https://www.mhc.tn.gov.in/judis
SA NO.398 OF 2012
https://www.mhc.tn.gov.in/judis
SA NO.398 OF 2012
M.GOVINDARAJ, J.
TK
SA NO.398 OF 2012
27.08.2021
https://www.mhc.tn.gov.in/judis
