Madras High Court
K.S.A.Mohamed Mansoor vs S.Easwaran @ Easwaramurthy on 25 February, 2021
A.S.(MD)No.207 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 25.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
A.S.(MD)No.207 of 2018
and
C.M.P.(MD)No.12006 of 2018
1.K.S.A.Mohamed Mansoor
2.A.Mazooth Ansari ...Appellant/Defendants 1 & 2
Vs.
1.S.Easwaran @ Easwaramurthy
2.M.Liyagath Alienating ..1st respondent/plaintiff
3.A.Abdul Khadar ..2nd and 3rd respondents/
3rd and 4th defendants
PRAYER: This Appeal Suit is filed under Section 96 of the Civil Procedure
Code, against the judgment and decree dated 11.09.2018 passed in O.S.No.
50 of 2012 by the learned Additional District Judge/Fast Track Court, Palani.
For Appellant : Mr.A.Arumugam
Senior Counsel
for Mr.Kumaravel
For R1 : Mr.I.Sam Jegan
For R3 : Mr.P.Arumugam
JUDGMENT
Aggrieved over the decree and judgment of the trial Court granting
decree for specific performance, the present second appeal is filed.
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A.S.(MD)No.207 of 2018
2. For the sake of convenience, the parties are referred to herein,
as per their rank before the Trial Court.
3. The brief facts, leading to the filing of this Appeal Suit, are as
follows:-
The defendants 1 and 2 are the owners of the suit properties. They
offered to sell the property to the appellant for a sum of Rs.11,34,000/- and
accordingly, an agreement dated 10.07.2009 came into existence executed
by the power of attorney of the defendants 1 and 2. On the date of
agreement, an advance of Rs.1,00,000/- was received. It is agreed between
the parties to complete the sale within a period of four months. The plaintiff
was always ready and willing to perform his part of the contract. However,
the defendants evaded from executing the sale. Therefore, the plaintiff
issued a legal notice on 17.12.2012 calling upon the defendants to come to
Sub Registrar Office and execute the sale deed. As the defendants reluctant
to receive the said notice and the same was returned as 'unserved'.
Whereas the defendants took a stand denying the agreement. Hence, the
suit.
(ii) Before the trial Court, on the side of the plaintiff, P.W.1 and
P.W.2 were examined and Exs.A1 to A15 were marked and on the side of the
defendants D.W.1 was examined and Ex.B1 was marked.
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A.S.(MD)No.207 of 2018
4. The first and second defendants denying the agreement of sale
submitted that the fourth defendant is also one of the owners of the suit
property. The first and second defendant gave power of attorney to the
third defendant only to manage the property and the said power was
cancelled on 14.05.2009. Therefore, the agreement executed by the power
of attorney is not valid in the eye of law.
5. The third defendant also denying the agreement of sale
contended that the power of attorney executed in his favour by the first and
second defendant was cancelled on 14.05.2005 and the same was also
intimated to him. He further submitted that he has not received a sum of
Rs.1,00,000/- from the plaintiff. Only in order to claim interest over the suit
property, documents have been created.
6. Based on the above pleadings, the trial Court has framed the
following issues:-
1) Whether the sale agreement is true?
2) Whether the sale agreement was in accordance with the powre
of attorney?
3)Whether the plaintiff was ready and willing to perform his part of
contract?
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A.S.(MD)No.207 of 2018
4) Whether the plaintiff is entitled for the relief of specific
performance?
5) To what other reliefs?
7. The trial Court has answered the issue relating to readiness and
willingness, in favour of the plaintiff and granted the decree. As against the
same the present appeal is filed.
8. The learned counsel for the appellant submitted that though the
sale is agreed to be completed within a period of four months, the plaintiff
was never ready and willing to perform his part of contract and he has not
taken any steps even to verify the title deed. He kept silent for more than
two years and suddenly in the year 2012, issued a legal notice. This itself
clearly indicates that agreement is not related for sale of the propety and
only it is a loan transaction between the power agent and the plaintiff. The
trial Court has not considered these documents and merely on the basis of
Ex.A2, legal notice dated 17.02.2012 and subsequent legal notice, inferred
the readiness and willingness of the plaintiff. Hence, the finding of the trial
Court is not based on proper appreciation of evidence. Hence, prayed for
allowing this appeal.
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A.S.(MD)No.207 of 2018
9. The learned counsel appearing for the respondents would submit
that the alleged cancellation of power deed has not been established. Ex.B1
appears to be a created document, which has been taken note of the trial
Court. That apart, it is the contention that once the sale agreement is found
to be genuine, the plaintiff is certainly entitled for the relief of specific
performance. Exs.A12 and 13 were also produced to show that the plaintiff
had capacity to mobilise fund. All these facts were taken note of by the trial
Court. Besides, his readiness and willingness is not denied by the
defendant. Hence, it is contented that the plaintiff is entitled for specific
performance. In support of his submission, the he relied upon the following
judgments:-
1.M.Mohammed Ismail (died) and others vs. K.P.Subbiah
(died) and others [2015 (3) CTC 734]
2. Narinderjit Singh vs. North Star Estate Promoters Limited
[Civil Appeal No.4307 of 2012]
3. R.Leela Ammal vs. V.Gopal [Appeal Suit No.292 of 2011]
10. In the light of the above, now the points arise for consideration
in this appeal are:
(i) Whether the agreement was merely denied to
restrain the plaintiff from proving readiness and
willingness?
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A.S.(MD)No.207 of 2018
(ii) Whether the plaintiff had established readiness
and willingness from the very inception of the contract?
(iii) To what other reliefs?
11. Admittedly, the suit property belonged to the first and second
defendants. It is the contention of the plaintiff that the defendants 1 and 2
through their power agent, namely third defendant, agreed to execute the
sale deed in favour of the plaintiff in respect of the suit property within a
period of four months. Ex.A1, when carefully seen, it is clear that the third
defendant has executed an agreement as a power agent of the first and
second defendants. Though the first and second defendants had taken the
defence to the effect that the power was not in existence on the date of such
agreement, the same was rightly disbelieved by the trial Court. There was
no evidence to show that the power was cancelled prior to the agreement.
When the power deed is registered, proper way of cancellation by way of
registration followed by a legal notice. This has not been done in this case.
Therefore, the contention of the defendants that on the date of agreement,
the power was not in existence in favour of the third defendant cannot be
countenanced.
12. Be that as it may, now it has to be concluded that there is an
agreement between the parties. However, it is the contention of the third
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A.S.(MD)No.207 of 2018
defendant that as a power agent, he has received a sum of Rs.1,00,000/- at
the relevant point of time and the agreement, came into existence for the
said loan transaction. Normally, such contention has to be proved only by
the parties who take such plea. To prove the such contention there need
not be direct evidence. Probabilities and circumstances can be taken into
consideration to assess the respective pleadings.
13. On perusal of Ex.A1, dated 10.07.2009, it is clear that specific
time of four months has been agreed between the parties to complete the
sale by paying the remaining sale consideration of Rs.10,34,000/-. It is also
made clear that within such period, the defendants shall hand over all the
original documents to the plaintiff. However, no such things have been
taken place as per the contract. Despite specific time has been agreed and
the plaintiff was interested in purchasing the property, the plaintiff has not
taken any steps immediately after expiry of four months. Generally, though
the time is not an essence of contract, when the parties have consciously
agreed for such time as an essence of a contract, such time agreed between
them cannot be ignored altogether. Such agreement of time also plays vital
role in assessing readiness and willingness of the parties concerned to
enforce the contract. Similarly, conduct and attitude also assume
significance to assess readiness and willingness.
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A.S.(MD)No.207 of 2018
14. P.W.1, though in his evidence stated that the plaintiff intended
to purchase the property; he had not seen the original documents and
encumbrance over the property. To show that he has verified the
documents and he has taken steps from the very inception even to get the
certified copies, no evidence is available. Only certified copies of the sale
deed have been filed under Ex.A10. Perusal of Ex.A10 makes it very clear,
the plaintiff has applied for certified copies of the said documents only on
15.02.2012. This proves that though time of four months had been agreed
between the parties to complete the sale, the plaintiff kept silent and only in
the year 2012, had issued the legal notice. Further, there is no evidence to
show that reasonable inspection was made by the plaintiff before the
purchase of the property. Having entered into an agreement of sale,
without even putting any efforts to find out the nature of the property i.e.,
any other encumbrance attached to the property and keeping silent till
2012, the conduct of the plaintiff is against the normal human conduct.
That cannot be ignored altogether. If really the plaintiff was intended to
purchase the property, his normal conduct would be to verify or make
reasonable enquiry as to the nature of the property, atleast even after the
agreement came into existence. He has not done so. Therefore, sending
legal notice for the first time after more than 2 years of the contract, one
cannot contend that he is always ready and willing to perform his part of
contract. The readiness and willingness must be established from the very
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A.S.(MD)No.207 of 2018
inception of the contract till the end.
15. Further, Exs.A11 and A12 have been filed to show that the
plaintiff had capacity to mobilise money. Ex.A12 relates to the property of
his wife, which was sold for a sum of Rs.5,34,000/-. Ex.A13 is the
partnership agreement entered. These documents are not relevant to
assess the readiness and willingness. From the date of agreement till the
date of issuing legal notice and filing of the suit, there is no evidence
available on record to show that the plaintiff had capacity to mobilise funds.
This fact also cannot be ignored altogether. Keeping silent for more than
two years without making any enquiry even to verify the title deeds, the
readiness and willingness cannot be inferred. Ex.A14 would not prove the
fact that the plaintiff had capacity to mobilise fund in the year 2009 itself.
Therefore, the above documents, which came into existence latter the
agreement, will not be useful to assess the readiness and willingness.
16. It is the further contention of the learned counsel for the
respondents that readiness and willingness pleaded by the plaintiff has not
been denied. On perusal of the entire written statement, it is made clear
that the defendants have not only denied the agreement but also the
pleadings as to readiness and willingness to perform the contract.
Therefore, their contention cannot be countenanced.
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17. In the judgment in the case of M.Mohammed Ismail (died)
and others vs. K.P.Subbiah (died) and others [2015 (3) CTC 734] ,
relied upon by the learned counsel for the respondents, this Court has held
that there was no specific plea regarding the absence of readiness and
willingness on the part of the plaintiff. In addition, a plea was taken in the
written statement to the effect that since the suit itself had been filed based
on fabricated agreement, the question of readiness and willingness on the
part of the plaintiff would not arise.
18. The above judgment cannot be applicable for the present case
for the simple reason that here is the case, where not only the agreement is
denied, but also performance of obligation set out in the agreement is also
denied.
19. In view of the above, this Court is of the view that the plaintiff
has not established readiness and willingness. The very conduct of the
plaintiff in keeping silent for more than two years, despite specific time was
agreed in the agreement even without making any reasonable enquiry as to
the property and verifying any title deeds, shows that readiness and
willingness cannot be inferred merely on the basis of some weakness in the
defence case.
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A.S.(MD)No.207 of 2018
20. Such view of the matter, the finding of the trial Court that the
plaintiff was always ready and willing to perform his part of contract, is not
on proper appreciation of evidence. The trial Court in issue No.3, has
simply relied upon Exs.A1, A3 and A14 and held that the plaintiff has proved
readiness and willingness. There was no discussion as to the nature of the
documents and conduct of the plaintiff. Such view of the matter, the
judgment granting decree of specific performance has to be necessarily set
aside. Accordingly, these points are answered.
21. In the result, this appeal is allowed and decree and judgment of
the trial Court in granting specific performance is set aside. In the
alternative, the plaintiff is granted a decree for a sum of Rs.1,00,000/-
(Rupees One Lakh only) with interest at the rate of 7.5% from the date of
agreement till the date of realization. Till such payment is made, there shall
be a charge over the property. No costs. Consequently, connected
miscellaneous petition is closed.
25.02.2021
Index : Yes/No
Internet : Yes/No
ta
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A.S.(MD)No.207 of 2018
N.SATHISH KUMAR, J.
ta
To
1.The Additional District Judge/Fast Track Court,
Palani
2.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
A.S.(MD)No.207 of 2018
25.02.2021
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