Madras High Court
S.Pachaimuthu vs Lalithamani on 29 June, 2021
S.A.No.516 & 517 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 29.06.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.Nos.516 & 517 of 2008
&
M.P.Nos.1 & 2 of 2008
S.Pachaimuthu ...Appellant
Vs.
B.Duraisamy (Died)
1.Lalithamani
2.D.Kalaiselvi
3.D.Subhasini ...Respondents
Prayer in S.A.No.516 of 2008: Second Appeal filed under Section
100 of the Code of Civil Procedure against the Judgment and Decree
in A.S.No.81 of 2005 on the file of the Principal District Judge at
Coimbatore dated 14.12.2007 thereby setting aside the Judgement and
Decree made in O.S.No.85 of 1996 on the file of the Sub Court at
1/24
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S.A.No.516 & 517 of 2008
Coimbatore dated 30.06.2004.
Prayer in S.A.No.517 of 2008: Second Appeal filed under Section
100 of the Code of Civil Procedure against the Judgment and Decree
in A.S.No.19 of 2006 on the file of the Principal District Judge at
Coimbatore dated 14.12.2007 thereby setting aside the Judgement and
Decree made in O.S.No.742 of 1998 on the file of the Sub Court at
Coimbatore dated 30.06.2004.
For Appellant : Mr.V.Ayyadurai
Senior Counsel
for Mr.V.B.Perumal Raj
For Respondents : Mr.T.R.Rajaraman
JUDGMENT
The appellant in S.A.No.516 of 2008 is the plaintiff in the
suit O.S.No.85 of 1996 on the file of the Subordinate Court,
Coimbatore, for specific performance of an agreement of sale dated
22.10.1990. The said suit was decreed. Challenging the same the
defendant had filed A.S.No.81 of 2005 on the file of the Principal
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District Judge, Coimbatore. The Appellate Court had allowed the
appeal and reversed the Judgement and Decree of the Trial Court and
challenging the same the Second Appeal has been filed.
2. The appellant in S.A.No.517 of 2008 is the defendant in
O.S.No.742 of 1998 (the plaintiff in O.S.No.85 of 1996 supra). The
suit is one for bare injunction restraining the defendant from
interfering with the plaintiff's peaceful possession and enjoyment of
the suit property and for mandatory injunction directing the defendant
to return the documents mentioned in the B- Schedule. The suit was
dismissed and the plaintiff therein had filed A.S.No.19 of 2006 on the
file of the Principal District Judge, Coimbatore challenging the said
Judgement. A.S.No.19 of 2006 was allowed thereby reversing the
Judgement and Decree in O.S.No.742 of 1998 and challenging the
said Judgement and Decree the defendant is before this Court.
3. O.S.No.742 of 1998 was originally filed before the
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District Munsif, Coimbatore and was numbered as O.S.No.933 of
1995. Since O.S.No.85 of 1996 was the comprehensive suit and
considering the fact that the plaint in O.S.No.85 of 1996 formed the
sum and substance of the written statement in O.S.No.742 of 1998
and the written statement in O.S.No.85 of 1996 broadly formed the
basis for the plaint in O.S.No.742 of 1998 the pleadings in O.S.No.85
of 1996 is referred to hereunder.
4.Plaintiff's case:
4.1. It is the case of the appellant that the suit property
belongs to the respondent. On 22.10.1990 they had entered into an
agreement of sale in and by which the appellant had agreed to
purchase the suit property for total sale consideration of Rs.3,15,000/-.
An advance of Rs.20,000/- was paid on the date of the agreement.
The terms of the agreement further stipulated that the entire contract
should be concluded within a period of 6 months and that within one
month from the date of the agreement a sum of Rs.55,000/- was to be
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paid by the appellant to the respondent. The balance sale
consideration of Rs.2,40,000/- was to be paid within the agreement
period. Time was never the essence of the contract.
4.2. Meanwhile the respondent had requested the plaintiff
to construct a building for him in his property at Railway Feeder Road
for which a sum of Rs.2,40,000/- was expended and the said sum was
set off towards the balance sale consideration. The construction was
also completed and on 17.11.1991 a bill for the entire amount was
submitted. In fact, the contention of the appellant is that the total cost
of construction came to be a sum of Rs.2,41,000/- and after adjusting
the advance already paid, which according to the appellant was a sum
of Rs.75,000/-, no further amounts were payable towards the cost of
the land.
4.3.The appellant had issued a legal notice dated
26.04.1993 calling upon the respondent to complete the contract. The
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appellant had also stated in the said notice that no further amounts
were payable by him since the sum of Rs.2,41,000/- was spent by the
appellant for constructing the house of the respondent. The
respondent sent a reply stating that only a sum of Rs.70,000/- has been
received as advance and the respondent had totally denied the
construction of the house by the appellant. The respondent had
submitted that he has been always ready and willing and it is the
appellant who was not ready with his part of the obligation.
4.4. The appellant has further stated that on receipt of this
notice the respondent had rushed to file O.S.No.933 of 1995
(thereafter re-numbered as O.S.No.742 of 1998, the subject matter of
S.A.No.517 of 2008). Therefore, left with no other alternative the
appellant was constrained to file the suit in question.
5.Written Statement:
5.1.The respondent had admitted the execution of the
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agreement of sale in his written statement and receipt of the initial
advance of Rs.20,000/-. The respondent would contend that two
cheques for Rs.20,000/- issued by the appellant got dishonored and
thereafter the appellant had made good the same by cash. Thereafter,
a sum of Rs.10,000/- was paid. Therefore, in all only a sum of
Rs.70,000/- was paid as an advance and not Rs.75,000/- as contended
by the appellant.
5.2.That apart, the respondent would contend that time
was essentially the essence of contract. The respondent had further
categorically contended that the balance sum of Rs.2,40,000/- was not
received by him and there was no agreement of construction entered
into between the appellant and respondent for putting up the
construction on behalf of the respondent and adjusting the cost of
construction to the balance sale consideration. The respondent had
contended that there was no cause of action and hence the suit should
be dismissed.
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5.3.The Trial Court had tried the two suits jointly, namely,
O.S.No.85 of 1996 and O.S.No.742 of 1998. Evidence was recorded
in the suit O.S.No.85 of 1996. The Trial Court had framed the
following issues in O.S.No.85 of 1996.
(i)Whether the plaintiff is entitled for a decree for specific
performance against the defendant?
(ii)Whether the plaintiff has the cause of action for filing
the said suit.
5.4. As regards O.S.No.742 of 1998, the following issues
were framed:
(i)Whether the plaintiff is entitled to a decree for
permanent injunction?
(ii)What other relief the plaintiff is entitled to?
5.5. On 30.06.2004 an additional issue was framed in
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O.S.No.85 of 1996 which read as follows:
(i)Whether the suit is barred by limitation.
5.6. The evidence was recorded in the suit O.S.No.85 of
1996 and on the side of the plaintiff five witnesses including the
plaintiff were examined and Ex.A.1 to Ex.A.13 were marked. On the
side of the defendant only one witness was examined. The learned
Trial Judge by his Judgement and Decree dated 30.06.2004 decreed
the suit O.S.No.85 of 1996 and dismissed the suit O.S.No.742 of
1998. The said order was taken up on appeal by the respondents
herein in A.S.Nos.81 of 2005 and 19 of 2006 respectively. The Lower
Appellate Court reversed the Judgement and Decree and hence the
appellant is before this Court.
6.Submissions:
6.1.Mr.Ayyadurai, learned Senior Counsel appearing on
behalf of the learned counsel for the appellant would submit that
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under Ex.A.1, Agreement of Sale, time was not the essence of the
contract. The appellant had paid a sum of Rs.75,000/- as advance and
put up construction for the respondent in his property at Railway
Feeder Road, for a sum of Rs.2,40,000/-. Ex.A.5 bill dated
17.11.1991 detailing the above was acknowledged by the respondent.
In fact after Ex.A.5 bill was submitted to the respondent there was a
panchayat in which the parties had agreed that the respondent would
execute the sale deed.
6.2. The learned senior counsel would further submit that
a perusal of Ex.A.7 reply notice would confirm the fact that even the
respondent had not considered time to be the essence of the contract.
In fact, in Ex.A.7 reply notice the respondent has clearly stated that he
was always willing to perform his part of the construction but the
respondent had denied the fact that the entire sale consideration had
been paid.
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6.3.The learned senior counsel would further contend that
the Trial Court has rightly held that the appellant was entitled to the
decree for specific performance. He would submit that the appellant
had proved the construction of the premises for the respondent by
examining P.W.3 who would submit that he had been engaged by the
appellant to supervise the work undertaken by the appellant for the
respondent and P.W.3 had deposed that he had been paid by the
respondent to act as Supervisor and for six months the construction
had continued.
6.4. The Trial Court on considering the evidence and oral
evidence of P.W.2 to P.W.4 had rightly come to the conclusion that
construction on behalf of the respondent had taken place. The Trial
Court had seen through the evidence of the respondent as D.W.1. The
respondent had produced Ex.B.1 letter from HDFC which would
indicate that only a sum of Rs.50,000/- had been taken as loan which
was impossible in the light of the evidence of P.W.5 Jagadheesan,
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Licensed Valuer, who had valued construction at Rs.1,90,000/-.
Therefore, the learned Trial Judge had disbelieved the document
produced on the side of the respondent.
6.5.He would further contend that the Appellate Court had
erred in coming to the conclusion that the suit was barred by
limitation. Under Ex.A.7 reply notice the respondent had expressed
his willingness to execute the sale deed and from that date the suit has
been filed within a period of three years. That apart, time was never
essence of the contract between the parties. The respondent had
received further sums much beyond the period of one month provided
under Ex.A.1 agreement. Therefore, the finding of the Appellate
Court that the suit is barred by limitation is totally false.
6.6.He would further contend that the Court below has
erred in coming to the conclusion that the appellant was not ready and
willing particularly when the appellant has proved the construction of
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the house on behalf of the respondent by examining P.W.2 to P.W.5
and marking Ex.A.5 bill which has not been countenanced by the
respondent herein.
6.7.Per contra, Mr.T.R.Rajaraman, learned counsel
appearing for the respondent would contend that the Appellate Court
had rightly dismissed the suit on the ground that the appellant had
failed to prove readiness and willingness. That apart, the suit was
barred by limitation. He would submit that as regards the issue of
limitation even under the reply notice Ex.A.7, the respondent had in
very categoric terms informed the appellant that period of 2 years 7
months had elapsed and that the appellant was still to execute the sale
deed provided the balance amount was paid by the appellant within a
period of 3 months after which the claim would become time barred.
6.8.The learned counsel would further contend that after
receiving the said notice two years later another notice has been
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issued under Ex.A.8, which was only a sequel to the earlier notice
issued under Ex.A.6 and in that notice for the 1st time the appellant
had inserted a new demand that the measurement was not as per area
stated in the agreement. This notice has been issued nearly two years
after the receipt of the reply notice issued under Ex.A.7 by the
respondent herein. He would therefore submit that considering the
contents of Ex.A.7 reply notice the suit filed is much beyond the
period of limitation and the Appellate Court has rightly held so.
6.9.As regards the issue of readiness and willingness he
would argue that the appellant has not proved the construction of the
building for the respondent. He would submit that in Ex.A.7 reply
notice the respondent had categorically denied the fact that the
construction of the house at Railway Feeder Road had been
undertaken by the appellant. He would argue that there is absolutely
no proof on the side of the appellant to show when he has commenced
construction and when the construction had come to an end. He would
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further argue that Ex.A.5 bill has not been accepted or acknowledged
by the respondent and any statement to the contrary is stoutly denied
by the respondent. He would submit that a mere perusal of Ex.A.5
would show that it is a fabricated document. The document does not
even describe the construction that had been undertaken and it is
rather strange that the construction has been completed within a
month when there was a balance payable by the appellant to the
respondent. The appellant has come forward with a false case and is
therefore not entitled to the decree for specific performance. He
would therefore submit that no exception can be taken to the
Judgement under appeal.
7.Discussion:
7.1.The appellant has come forward with a case that they
had entered into an agreement of sale Ex.A.1 in which a sum of
Rs.20,000/- was paid at the time of signing of the agreement. A sum
of Rs.55,000/- was payable within a period of one month and
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thereafter a sum of Rs.2,40,000/- was payable. All of which had to be
completed within a period of six months. However, it appears that the
second tranche of Rs.55,000/- was not paid as agreed. On the contrary
a sum of Rs.20,000/- was paid on 30.11.1990 and another sum of
Rs.10,000/- on 12.01.1991 and further sum of Rs.20,000/- on
27.09.1991. These payments have been marked as Ex.A.2 to Ex.A.4.
Therefore, on a perusal of Ex.A1 to Ex.A.4 it is clear that a payment
of a sum of Rs.70,000/- was completed only on 27.09.1991, which is
nearly a year after the agreement was entered into between the parties.
7.2.The appellant would contend that a sum of Rs.75,000/-
had been paid as an advance (no details of how and when the
additional sum of Rs.5,000/- has been paid has been provided by the
appellant) and the balance Rs.2,40,000/- was to be adjusted from out
of the cost of construction of the building that the appellant had put up
for the respondent at Railway Feeder Road. This construction by the
appellant is emphatically denied by the respondent who would
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contend that he had only used the appellant's professional services as
he was a Civil Engineer for which professional charges were also paid
to the appellant. Therefore, the onus is on the appellant to prove that
he has constructed the building for the respondent.
7.3.In the plaint the appellant would contend that after the
agreement of sale, the respondent had requested him to construct the
building that too for a value of Rs.2,40,000/-. In his cross
examination the appellant had stated that the agreement to construct
was made within 15 days of the sale agreement and the construction
was commenced as soon as the advance was paid. P.W.3 would
depose in cross that the agreement for construction was entered into
even prior to the agreement of sale. The appellant has not proved by
any documentary evidence the date on which the construction had
commenced and when the construction had come to an end. There is
no plan filed to show the nature of construction nor any document to
show the estimate that had been handed over to the respondent
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initially and accepted by him. That apart the details of how the
construction had to be undertaken and number of floors that was to be
constructed etc., are all the basic details / documents that would be
entered into between the parties if one had undertaken to construct a
building for another.
7.4. That apart, if really the construction had taken place
within 15 days from the date of sale agreement as deposed by P.W.1
then there was no necessity for the appellant to make the payment
under Ex.A.2 to Ex.A.4. There is no explanation for the same. In his
pleadings and chief examination the appellant had deposed that
Ex.A.5 bill has been acknowledged by the respondent. However,
there is no acknowledgment in the said bill. Further P.W.4 would, in
his cross examination, state that construction which commenced in the
end of 1991 was completed by the end of the year. It is not known as
to how residential construction can be completed within a month.
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7.5.Another piece of evidence which would give rise to
suspicion is Ex.A.6 notice issued by the appellant to the respondent.
In the said notice, the appellant had stated that he had constructed the
house building at Union Tank Road, Periyanaickenpalayam,
Coimbatore. This is the first notice that has been issued by the
appellant. This anomaly is sought to be rectified only two years later
in Ex.A.8 notice dated 30.05.1995 where the appellant would state
that the mention of the Union Tank Road was a mistake and that it
should be read as Railway Feeder Road. This despite the fact that in
Ex.A.7 reply the respondent has clearly stated that he has no property
in Union Tank Road.
7.6.Therefore, a conjoint perusal of the oral and
documentary evidence clearly shows that the appellant has miserably
failed to prove the construction and thereby the payment of sale
consideration of Rs.2,40,000/-. The Lower Appellate Court have
rightly come to the conclusion that the appellant has not proved the
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readiness and willingness.
7.7. The next ground of challenge was limitation. In this
regard the evidence of P.W.1 would clearly show that the suit is
barred by limitation. In his cross examination P.W.1 would state as
follows:
"17/11/1991yp U e ; J xU thuj;jpy; ngh a p gpujpthjpiar;
re;jpj;J fpiuak; v Gjpj;jUkh W nfl;lngh J mtu; k Wj;jhu;/ 5 tUl
fhyjhkjj;jpw; F fhuzk; e pi w a e g u;fis itj;J g";rhaj;J ngrp n d h k ;/
fpiua xg;g e ;jk; nghl;L 15 ehl;fs p y; gpujpthjp vd;
tPl;o w; F te;J kPjpf;fpiuaj; bjhiff;F tPL fl;oj;jUkh W nfl;lhu; ,e;j
tptu';fis eh d; jhf;fy; bra;j tHf;Fiu. gpujpthjpa p d ; tHf;fpd;
vjpu;tHf;Fiua p y; F w p g ; g plh k y; jw;ng h J bg h a; a h ff; TWf p n w d ;
vd;g J [email protected]
A perusal of the above would clearly show that the
appellant has himself admitted a delay of 5 years. It is his categoric
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case that a week after 17.11.1991 when he had visited the respondent
to execute the sale deed the respondent had categorically refused to
execute the sale deed. Therefore, the limitation would start from the
date of refusal and the suit ought to have been filed in the month of
November 1994 itself. However, the suit is filed only in the year
1995.
7.8. Further P.W.3 would submit that the agreement for
construction took place before the agreement of sale. P.W.3 would
state as follows:
@thjpaplk; jhd; ehd; ntiy bra;J tUfpnwd;/ 1990?91k;
tUlj;jpy; gpujpthjpf;F fl;olk; fl;Lk; ntiy bra;njhk;/ khjk;. njjp
TwKoahJ/ ePjpkd;wj;jpypUe;J rhl;rp brhy;y miHg;ghiz tutpy;iy.
thjp jhd; rhl;rp brhy;y Tl;ote;jhu;///
Kjypy; fl;olk;. fl;l tUk;nghJ gpujpthjp jd;dplk; xU ,lk;
,Ug;gjhft[k;. me;j ,lj;jpw;F gjpyhf jdf;F tPL fl;oj;jUkhWk; gpujpthjp
nfl;lhu;/ thjp mYtyfj;jpy; itj;J jhd; gpujpthjp nfl;lhu;/ thjp kw;Wk;
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gpujpthjpf;fpilna vd;d gpiua xg;ge;jk; vd;gjk;. vd;d ngrg;gl;lJ
vd;gJk; bjupahJ/@
Even the statement in Ex.A.7 reply notice clarifies the
respondent stand that the time started ticking from the sixth month
when the payment was due. The Appellate Court has rightly allowed
the appeal challenging the decree for specific performance.
8. Admittedly the respondent is in possession of the
property and therefore his possession has to be protected. The
Appellate Court has rightly reversed the Judgement of the Trial Court
and decreed the suit for injunction.
9. In the above circumstances, the appellant has not made
out any Substantial Question of law warranting the interference of this
Court and hence both the Second Appeals stand dismissed.
Consequently, connected Miscellaneous Petitions are also closed. No
costs.
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29.06.2021
Index : Yes/No
Internet : Yes/No
kan
P.T. ASHA, J,
kan
To
1. The Principal District Judge at Coimbatore.
2. The Sub Court at Coimbatore.
S.A.No.516 & 517 of 2008
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29.06.2021
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