Madras High Court
K.Lalitha vs Eswari Cubic Associates Pvt. Ltd on 10 December, 2021
A.S.No.514 of 2017
hIN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.12.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
A.S. No.514 of 2017
1.K.Lalitha
2.K.Hariharan
3.K.Anandhi ... Appellants
vs
1.Eswari Cubic Associates Pvt. Ltd.,
represented by its Managing Director,
G.G.Bharathidasan,
No.15, Vellalar Street,
Kodambakkam,
Chennai-600 024.
2.E.Selvam
3.A.G.Soundararajan ... Respondents
Prayer: Appeal Suit filed under Section 96 of C.P.C. against the judgment
and decree dated 21.11.2016 passed by the Principal District Court,
Kancheepuram at Chengalpattu in O.S. No.11 of 2009.
For Appellants : Ms.R.Ramya
For Respondents : Mr.M.S.Rishi for R1
No appearance for R2 and R3
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A.S.No.514 of 2017
JUDGMENT
[Judgment of this Court was delivered by T.RAJA, J.]
This appeal has been brought up by the appellants/defendants 1 to 3,
who are mother, son and daughter respectively, against whom, the suit for
specific performance has been decreed by the Principal District Court,
Kancheepuram at Chengalpattu vide judgment and decree dated 21.11.2016
in O.S. No.11 of 2009.
2.Learned counsel appearing for the appellants/defendants 1 to 3,
assailing the correctness of the findings and conclusion reached by the Trial
Court, argued that there was a sale agreement dated 18.01.2006 executed
between the appellants/defendants 1 to 3 and the first respondent/plaintiff
agreeing to sell the suit property at the rate of Rs.12,00,000/- per acre;
fixing the total sale consideration of Rs.37,32,000/-; and by fixing six
months time for execution of the sale deed. After paying a sum of
Rs.1,50,000/- as advance amount on the date of execution of the sale
agreement, the first respondent/plaintiff has obtained the signatures of
defendants 1 to 3 in Rs.20/- stamp papers and in one blank paper. However,
the first respondent/plaintiff, being the educated person, in an order to
deceive the appellants, who are illiterates, has forged the signatures of the
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appellants/defendants 1 to 3. Though the sale agreement dated 18.01.2006
has specifically and categorically mentioned that the plaintiff has to make
the entire sale price within six months time, the plaintiff has not shown his
readiness and willingness of the execution of the sale agreement till the
expiry of six months time and even after the expiry of time. Learned
counsel appearing for the appellants further submitted that as normally
cheques were issued one by one serially, in the present case, Cheque
Nos.786311 and 786252 were said to be issued on 22.12.2006 and
23.04.2007 for Rs.50,000/- and Rs.1,50,000/- respectively, which creates
huge suspicion and doubt on the case projected by the plaintiff/first
respondent. Moreover, when a detailed written statement was filed denying
the signatures of defendants 1 to 3, the Trial Court, in para 10 of the
judgment, erroneously given a finding that defendants 1 to 3 have not even
denied their signatures, which clearly shows the erroneous approach
adopted by the Trial Court.
3.Leaned counsel appearing for the appellants pleaded that when
appellants/defendants 1 to 3 have denied their signatures in the sale
agreement dated 18.01.2006 and specifically asked for handwriting expert
to find out as to whether the signatures, said to have been appended by
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A.S.No.514 of 2017
defendants 1 to 3 in the sale agreement, were true or otherwise, the findings
given by the Trial Court that defendants 1 to 3 have not even denied their
signatures in the endorsement dated 05.08.2007 and 26.09.2007 are
untenable and unacceptable. Secondly, it was specifically stated in the sale
agreement dated 18.01.2006 that the time fixed by them would expire
within six months namely, on 18.07.2006. Since there was no renewal of
the agreement after expiry of the time, it goes without saying that the sale
agreement automatically stood expired. Thirdly, before the expiry of the
time limit namely, 18.07.2006, when the plaintiff has not come forward to
issue any pre-suit notice showing his readiness and willingness, Section
16(c) of the Specific Relief Act would non suit the plaint. Even this crucial
aspect has been completely forgotten by the Trial Court. When Section
16(c) of the Specific Relief Act says that specific performance of the
contract cannot be enforced in favour of the person, who failed to prove
that he has performed the contract or always ready and willing to perform
the essential terms of the contract, the Trial Court, without taking a
minimum care and caution as to whether the plaintiff has complied with the
rudimentary legal aspect with regard to the test of readiness and
willingness, has decreed the suit in favour of the plaintiff. When the sale
agreement dated 18.01.2006 got automatically expired on 18.07.2006, the
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A.S.No.514 of 2017
plaintiff has not even thought of issuing pre-suit notice either showing his
readiness and willingness or asking for willingness from defendants 1 to 3.
Therefore, the Trial Court ought not to have entertained the suit filed by the
plaintiff. Moreover, when P.W.1/plaintiff, while stepping into the witness
box before the Trial Court, has clearly admitted that he has not taken steps
to show that he was ready and willing to deposit the money, which clearly
shows that the plaintiff has miserably failed to fulfill the test of readiness
and willingness, this aspect has been completely overlooked by the Trial
Court, as a result, the sale agreement dated 18.01.2006 is not enforceable
one because it is a time barred. Learned counsel appearing for the
appellants further submitted that as the sale of the property was arranged by
the first defendant to celebrate the marriage of her daughter, the third
defendant, due to the inordinate delay caused by the plaintiff in not
performing his part of the contract, namely, from 2006 till December 2008,
in order to meet out the expenses of the marriage, defendants 1 to 3 had
appointed the fourth defendant as their Power of Attorney with regard to the
suit property. Since all these aspects have been completely and deliberately
overlooked by the Trial Court, the impugned decree and judgment passed
by the Trial Court granting decree for specific performance are liable to be
set aside by allowing the appeal.
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A.S.No.514 of 2017
4.Per contra, learned counsel appearing for the first respondent/
plaintiff submitted that when there was a sale agreement dated 18.01.2006,
on the very day itself the plaintiff had paid a sum of Rs.1,50,000/- as an
advance amount and the same was accepted by defendants 1 to 3. On
receipt of the said money, when the sale agreement was executed,
defendants 1 to 3 have asked the plaintiff to mention the specific clause in
the sale agreement stating that the patta, chitta and adangal in respect of the
suit property would be handed over to the plaintiff at the time of executing
the sale deed. Therefore, the plaintiff thought that defendants 1 to 3 would
redeem the property and then, furnish the original documents. But, after the
execution of the sale agreement and before the expiry of the time limit,
defendants 1 to 3 have not come forward to furnish the copies of patta,
chitta and adangal. Secondly, they have not even come forward to produce
the legal heirship certificate. Thirdly, though they have mortgaged the
property, they have promised to recover the mortgaged property from the
mortgagee. When none of these conditions have been complied with by
defendants 1 to 3 before the expiry of the time, the blame of delay cannot be
put against the plaintiff. Proceeding further, learned counsel appearing for
the first respondent/plaintiff contended that it is the admitted case of
defendants 1 to 3 that they have received Cheque bearing No.786311 for
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Rs.50,000/- on 22.12.2006 and another Cheque bearing No.786252 for
Rs.1,50,000/- on 23.04.2007 and for which, they have also made an
endorsement. As the plaintiff is always ready and willing to perform his
remaining part of the contract from the date of agreement, he approached
defendants 1 to 3 for number of times in the presence of the third parties
with the balance sale consideration and registration expenses, but,
defendants 1 to 3 have evaded the same by assigning one reason or other.
Therefore, the plaintiff has filed the above Original suit in O.S. No.11 of
2009 on the file of the Principal District Judge, Chengalpattu seeking for
specific performance by directing defendants 1 to 3 to execute and register
the sale deed in favour of the plaintiff with regard to the suit property in
pursuance of the sale agreement dated 18.01.2006, after receiving the
balance sale consideration within a time to be specified by the Court.
5.For the sake of convenience, the parties are addressed as they were
arrayed before the Trial Court.
The short facts leading to the filing of the appeal are as follows:
It is the case of the first respondent/plaintiff that defendants 1
to 3 are the owners of the suit property and they have offered to sell the
same to the plaintiff, who has accepted to purchase the same. Pursuant to
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the offer and acceptance, there was a sale agreement dated 18.01.2006
executed by defendants 1 to 3 in favour of the plaintiff, with regard to the
suit property and thereby, they have agreed to sell the suit property in
favour of the plaintiff at the rate of Rs.12,00,000/- per acre and the total
consideration of the suit property was arrived to Rs.37,32,000/-. However,
the plaintiff paid a sum of Rs.1,50,000/- as a sale advance on the date of
sale agreement and it was duly mentioned in the sale agreement, as part
performance of the sale. Though the time mentioned in the agreement is six
months, the time was not agreed to be the essence of the contract.
Defendants 1 to 3 agreed to furnish titles viz. Patta, Chitta and Legal
heirship Certificate before the stipulated period of six months. In any event,
the time to be counted only after defendants 1 to 3 furnishing the said
documents. Defendants 1 to 3 received various amounts, namely,
Rs.50,000/-, Rs.1,50,000/-, Rs.10,000/- and Rs.10,000/- on 22.12.2006,
23.04.2007, 05.08.2007 and 26.09.2007 by way of cheque Nos.786311 and
786252. Thus, totally the plaintiff had paid Rs.3,70,000/- and that various
amounts detailed above were received by defendants 1 to 3 beyond the
statutory period indicating the fact that time was not treated as the essence
of the contract. Defendants 1 to 3 agreed to execute and register the sale
deed as and when they furnishing the title deeds, revenue records, legal
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heirship certificates as mentioned in the sale agreement. Since the plaintiff
is always ready and willing to perform his remaining part of the contract
from the date of agreement, he approached defendants 1 to 3 for number of
times in the presence of third parties with the balance sale consideration
and registration expenses, but, defendants 1 to 3 have been evading the
same by assigning one reason or other. While so, during the 1 st week of
January 2009, the plaintiff understand that defendants 1 to 3 have no
inclination to complete the contract and they have appointed the fourth
defendant as their Power of Attorney with regard to the suit property and
based upon the same, the fourth defendant said to have executed another
agreement dated 30.06.2007 in favour of the fifth defendant and received
Rs.2,00,000/- as an advance. The plaintiff submits that the power of
attorney as well as the alleged agreement in favour of the fifth defendant are
invalid and will not bind the plaintiff nor affect his right as specific
performance. Hence, the plaintiff issued a legal notice dated 09.01.2009 to
defendants 1 to 3. As there was no response, the plaintiff filed the above
Original suit in O.S. No.11 of 2009 on the file of the Principal District
Judge, Chengalpattu seeking for specific performance by directing
defendants 1 to 3 to execute and register the sale deed in favour of the
plaintiff with regard to the suit property in pursuance of the sale agreement
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dated 18.01.2006, after receiving the balance sale consideration within a
time to be specified by the Court.
Written statement has been filed by the first defendant denying the
averments made in the plaint stating that defendants 1 to 3 have entered
into an agreement of sale with respect to the suit schedule property and they
have received the amounts mentioned in the sale agreement, but, the said
payments were not made on the dates mentioned in the sale agreement. The
plaintiff has obtained signatures of defendants 1 to 3 in Rs.20/- stamp
papers and in one blank paper. After obtaining the signatures of defendants
1 to 3, the plaintiff prepared the sale agreement on his own terms. The first
defendant, being a poor illiterate, was able to sign her name alone. The
plaintiff, being an educated person, has fixed the time for completion of the
sale agreement as 6 months. Normally, when the cheques were issued one
by one serially, the cheques bearing Nos.786311 and 786252 were issued
on 22.12.2006 and 23.04.2007, which would show that the plaintiff has
cheated defendants 1 to 3. Therefore, the sale agreement has to be sent to
the handwriting expert for his opinion with respect to all the signatures.
Though the time was fixed for 6 months under the agreement, the plaintiff
has not paid the balance amount to the defendants and that the time fixed by
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them was expired on 18.07.2006 itself. Thereafter, there is no renewal of
the same. Since the alleged signatures for the receipt of the subsequent
money are forged one, the said sale agreement is not enforceable one. As
the sale of the property was arranged by the first defendant only to celebrate
the marriage of her daughter K.Anandi, the third defendant and for other
needs, since the plaintiff has not co-operated with the first defendant to
celebrate the marriage of her daughter, she had executed a power deed
dated 21.06.2007 in favour of the fourth defendant, who in turn, has entered
into an agreement of sale with the fifth defendant on 30.06.2007. Since the
plaintiff has wantonly caused the legal notice dated 09.01.2009 and filed
the suit on 14.02.2009 without giving reasonable time to explain the nature
of dispute, the suit filed by the plaintiff is liable to be dismissed.
With this background, the Trial Court, after framing the following
issues, has decreed the suit as prayed for by the plaintiff holding that
defendants 1 to 3 are directed to execute and register the sale deed in favour
of the plaintiff, after receiving the balance sale consideration of
Rs.33,62,000/- :
'a)Whether the plaintiff is entitled for specific performance of
contract in pursuance of sale agreement dated 18.01.2006
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executed by defendants 1 to 3 in favour of the plaintiff by
directing defendants 1 to 3 to execute and register the sale deed
in favour of the plaintiff with regard to the suit property, after
receiving the balance sale consideration amount?
b)Whether the defendants are liable to deliver vacant
possession of the suit property to the plaintiff?
c)Whether the sale agreement is not enforceable one, since it is
barred by limitation ?
d)Whether the fourth defendant is an unnecessary party to this
suit?
e)To what relief is the plaintiff entitled to?'
Aggrieved thereby, the present appeal has been filed by the appellant/
defendants 1 to 3.
6.It is seen from the records that when defendants 1 to 3, while filing
their written statement, has specifically denied their signatures or the
alleged endorsement made by them on 05.08.2007 and 26.09.2007 and
thereupon, they made a specific pleading in the written statement that to
prove their stand, the sale agreement should be sent to the handwriting
expert for getting opinion on the alleged signatures claimed by the plaintiff,
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the Trial Court, without considering the same as to whether the signatures,
said to have been appended by defendants 1 to 3 on 05.08.2007 and
26.09.2007, were their original signatures, in paragraph 10 of the judgment,
has wrongly mentioned that defendants 1 to 3 have not even denied their
signatures. Such a finding is not only erroneous, but, also outside the scope
of the pleading, which is unjustified and unwarranted.
7.With regard to the readiness and willingness, admittedly, when the
sale agreement dated 18.01.2006 was made between the plaintiff and
defendants 1 to 3 specifically mentioning the time limit as six months,
which expires on 18.07.2006, ironically, till the expiry of the said time
limit, the plaintiff, who is duty bound to ask for extension of time by
issuing pre-suit notice, has slept over the matter not only for 6 months or 1
year, but, for three long years. In this regard, Section 16(c) of the Specific
Relief Act, 1963 is extracted hereunder:
'Section 16(c) of The Specific Relief Act, 1963.
16.Personal bars to relief – Specific performance of a contract
cannot be enforced in favour of a person -
....
(c) who fails to aver and prove that he has performed or has
always been ready and willing to perform the essential terms
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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.
8.A perusal of the above would show that if a person fails to aver and
prove that he has performed the contract 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, the specific performance of a
contract cannot be enforced in favour of such a person. In the present case,
when the sale agreement dated 18.01.2006 fixing the time limit for six
months for the execution of the sale deed has not been extended at the
request of the plaintiff, it goes without saying that the sale agreement stood
automatically expired and extinguished. Therefore, the Trial Court ought
not to have entertained the suit. Secondly, when the parties have agreed for
sale of the suit property for a sum of Rs.37,32,000/-, admittedly, even
before the expiry of six months time, the plaintiff was said to have made a
sum of Rs.1,50,000/-. Thirdly, the plaintiff, who has stepped into the
witness box before the Trial Court, has admitted that he has not shown his
readiness or willingness by sending his letter to defendants 1 to 3 and not
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reminded them to come forward to receive the balance amount for
execution of the contract. Even as per the plaintiff's case, the endorsement
dated 26.09.2007 says that defendants 1 to 3 have received Rs.10,000/- and
thereafter, the plaintiff kept mum for a further long period of two years and
even during the extended period of two years, the plaintiff has not shown
any readiness or willingness to perform his part of the contract. Since all
these aspects have been completely ignored by the Trial Court, we are
unable to support the reasoning and the conclusion reached by the Trial
Court, which is full of perverse. Accordingly, the appeal is allowed and the
impugned judgment and decree are hereby set aside.
9.With the above observation, the appeal stands allowed. No costs.
10.Learned counsel appearing for the appellants/defendants 1 to 3
undertakes to return the admitted amount of Rs.3,50,000/- with interest at
the rate of 9% per annum within a period of four weeks time to the plaintiff.
[T.R.,J.] [D.B.C.,J.]
10.12.2021
Speaking/Non Speaking Order
Index:Yes/No
vga
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A.S.No.514 of 2017
T.RAJA,J.
and
D.BHARATHA CHAKRAVARTHY,J.
vga
To
1.The Principal District Court,
Kancheepuram at Chengalpattu.
2.The Section Officer,
V.R. Section,
High Court, Madras.
A.S. No.514 of 2017
10.12.2021
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