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
Coimbatore dated 30.06.2004.
1/22
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S.A.No.516 & 517 of 2008
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
District Judge, Coimbatore. The Appellate Court had allowed the
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S.A.No.516 & 517 of 2008
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
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
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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 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.
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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
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
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S.A.No.516 & 517 of 2008
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
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
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S.A.No.516 & 517 of 2008
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.
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
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S.A.No.516 & 517 of 2008
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
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
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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 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.
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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.
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.
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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,
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
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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
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
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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 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
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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 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
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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 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
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is emphatically denied by the respondent who would 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 initially
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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.
7.5.Another piece of evidence which would give rise to
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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
readiness and willingness.
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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:
"17/11/1991ypUe;J xU thuj;jpy; nghap
gpujpthjpiar; re;jpj;J fpiuak; vGjpj;jUkhW
nfl;lnghJ mtu; kWj;jhu;/ 5 tUl fhyjhkjj;jpw;F
fhuzk; epiwa egu;fis itj;J g";rhaj;J ngrpndhk;/
fpiua xg;ge;jk; nghl;L 15 ehl;fspy; gpujpthjp
vd; tPl;ow;F te;J kPjpf;fpiuaj; bjhiff;F tPL
fl;oj;jUkhW nfl;lhu; ,e;j tptu';fis ehd; jhf;fy;
bra;j tHf;Fiu. gpujpthjpapd; tHf;fpd;
vjpu;tHf;Fiuapy; Fwpg;gplhky; jw;nghJ bgha;ahff;
TWfpnwd; vd;gJ [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
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
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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; gpujpthjpf;fpilna vd;d gpiua xg;ge;jk;
vd;gjk;. vd;d ngrg;gl;lJ vd;gJk; bjupahJ/@
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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.
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.
29.06.2021
Index : Yes/No
Internet : Yes/No
kan
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S.A.No.516 & 517 of 2008
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
29.06.2021
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