Madras High Court
P.Annathai vs M.Mala on 4 October, 2021
S.A.No.459 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.GOVINDARAJ
S.A.No.459 of 2014
and M.P.No.1 of 2014
P.Annathai ... Appellant
Vs.
M.Mala ... Respondent
PRAYER: The Second Appeal filed under Section 100 of the Civil Procedure
Code against the judgment and decree, dated 30.07.2013 in A.S.No.41 of 2011
passed by the District Court, Thiruvallur setting aside the judgment and decree
passed by the Sub Court, Poonamallee in O.S.No.102 of 2005, dated
07.01.2011.
For Appellant : Mr.J.A.S.Sathish Kumar
For Respondent : Mr.R.Kamesh Kumar
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JUDGMENT
The plaintiff in O.S.No.102 of 2005 whose suit for specific
peformance was decreed by the trial Court, upon its reversal by the lower
appellate Court in A.S.No.41 of 2011, has come up with this second appeal.
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S.A.No.459 of 2014
2. The plaintiff filed a suit for specific performance on the basis of the
sale agreement dated 27.10.2003. As per the agreement, the sale consideration
was fixed at Rs.5,00,000/- and the plaintiff has paid a sum of Rs.4,50,000/- on
the same day and registered the agreement vide document No.5638/2003 at the
Sub Register Office, Virugambakkam. Two years was fixed for completion of
the contract of sale. The plaintiff was always ready and willing to pay the
balance sale consideration of Rs.50,000/- and get the sale executed in her
favour. Though the defendant having received 90% of the sale price and
registered a general power of attorney in favour of the plaintiff's son
S.S.P.Mahesh in order to show the bonafide intention towards the plaintiff to
execute and register the sale deed, had failed to perform her part of the
contract. The plaintiff caused a lawyer's notice on 24.01.2005 calling upon the
defendant to perform the contract. The defendant having received the notice,
cancelled the power of attorney registered in favour of the plaintiff's son and
evaded to register the property in favour of the plaintiff. On 08.07.2005,
through the encumbrance certificate, the plaintiff came to know that the
defendant had cancelled an earlier mortgage over the suit property, which of
course was redeemed later. Therefore, on 16.08.2005, she lodged a compliant
before the Maduravoyal Police Station and the police advised the defendant to
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S.A.No.459 of 2014
honour the agreement. Still the defendant deliberately evade to complete the
sale transaction. Hence, the plaintiff sued for specific performance.
3. The defendant filed a written statement, denying all the averments
made in the plaint and contended that the plaintiff is a money lender and she
used to give money at exorbitant interest to everybody. The defendant
borrowed a sum of Rs.3 lakhs from the plaintiff and paid a sum of Rs.50,000/-
towards interest. As the defendant was not able to repay the principal amount
of Rs.3 kakhs, the plaintiff insisted the defendant to execute the sale agreement
in respect of the suit property, fixing a sale consideration of Rs.5 lakhs, adding
1.5 lakhs towards interest to the principle amount borrowed by her. The
plaintiff's son, S.S.P.Mahesh threatened the defendant with dire consequences
one week prior to the date of execution of the sale agreement. Therefore, the
defendant has no other option, except to sign the alleged sale agreement, dated
27.10.2003 and the defendant has not executed the same out of her own will,
but under threat, coercion and undue influence by the plaintiff. The averments
that after paying 4.5 lakhs out of total sale consideration of Rs.5 lakhs, fixing
unusual time of two years for balance sale consideration, would falsify the case
of the plaintiff. To the legal notice, dated 24.01.2005, the defendant has given a
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S.A.No.459 of 2014
reply on 20.04.2005 stating that she had cancelled her power of attorney in
favour of the plaintiff's son on 11.03.2005. Hence, the plaintiff is not entitled to
the discretionary relief sought for.
4. At trial, the plaintiff examined herself as P.W.1 and one Raja has
been examined as P.W.2. On the side of the defendants, the defendant
examined herself as D.W.1 and one Pandarisalem was examined as D.W.2.
Exs.A1 to A5 were marked on the side of the plaintiff and Exs.B1 to B5 were
marked on the side of the defendant.
5. The trial Court after framing appropriate issues decreed the suit in
favour of the appellant/plaintiff. On appeal, the first appellate Court set aside
the findings of the trial Court and dismissed the suit. Aggrieved over the same,
the plaintiff is before this Court.
6. On 20.07.2016, the following substantial questions of law are
framed by this Court at the time of admission:
i. Whether the lower Appellate Court is justified in law in
reversing the Judgment and decree of the trial court on
the reason that the suit agreement was not entered into for
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S.A.No.459 of 2014
the purpose of alienation of suit property when the
defendant has not discharged his onus of proving such
contention by adducing material evidence?
ii. Whether both the Courts below are right in law in not
considering the issue of readiness and willingness and
giving a finding on that aspect based on the evidence
adduced by the parties?
7. I have heard the submissions of the learned counsel appearing on
either side and perused the materials available on record.
8. The plaintiff as P.W.1 deposed that the plaintiff demanded
repayment of money on several occasions on daily basis. Even after several
demands, the defendant has not repaid the money and therefore she filed a suit.
The said evidence was strongly relied on by the first appellate Court to give a
finding that the transaction between the parties is not one for sale but it is a loan
transaction.
9. Admittedly, an agreement was entered on 27.10.2003 and on the
very same day, a power of attorney was also executed in favour of the plaintiff's
son. Normally when a sale agreement entered between the parties, the sale deed
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S.A.No.459 of 2014
will be registered on payment of balance sale consideration. It is an unusual
practice to execute the power of attorney in favour of the plaintiff's son without
receiving the balance sale consideration. The first entry found in Ex.A2 itself
shows the factum of discharge of loan with the defendant secured from one
C.Ramani and on the same date, the sale agreement as well as the power of
attorney came to be registered. As all the three transactions had happened on
the same day, the submissions made in the plaint that the plaintiff was aware of
the prior mortgage through encumbrance, only on 08.07.2005, cannot be said to
be proved. As contended by the defendant, to discharge the previous mortgage,
the defendant borrowed money from the plaintiff, stands proved.
10. It is also to be noted that the total sale consideration fixed is at
Rs.5,00,000/- and 90 % of sale consideration Rs.4,50,000/-was paid on the date
of agreement. For paying the remaining balance of Rs.50,000/- two years time
was fixed. The plaintiff in her evidence as P.W.1 deposed that she was doing
whole sale flower vending business in the whole sale market and was getting
good income from the business. In that event, fixing two years of time for
execution of the sale deed is unusual. In an usual circumstance, the buyer for
want of funds, will seek sometime for mobilizing funds. In this case, the
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S.A.No.459 of 2014
plaintiff had paid a sum of Rs.4,50,000/- out of the sale consideration of
Rs.5 lakhs. Inspite of having sound financial status as she was doing whole sale
flower vending business in a whole sale market, fixing two years time for
balance sale consideration is unusual.
11. Be that as it may, in a suit for specific performance, for exercising
the discretion infavour of the plaintiff, the plaintiff has to fulfill the mandatory
requirements provided under Section 16 (C) of the Specific Relief Act. Section
16 (C) of the Specific Relief Act mandates the plaintiff to prove that the plaintiff
was always ready and willing to perform her part of the contract on day to day
basis. In the instant case on hand, even though the sale agreement entered on
27.10.2003, the legal notice Ex.A3 was issued only on 24.01.2005. In between,
there was no demand on the side of the plaintiff to execute the sale deed in her
favour. No documents were produced to show that she had enough money for
paying the balance sale consideration and that the defendant had evaded the
receipt of money. On the other hand, the legal notice issued after a period of
two years, by itself proved that the plaintiff was not always ready and willing to
perform her part of contract. In order to comply with the requirements, she had
issued a notice as she was ready and willing and demanded performance of the
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S.A.No.459 of 2014
contract. Therefore, the Courts below have given concurrent finding that the
plaintiff has not proved the readiness and willingness in the manner expected in
law. In such circumstance, this Court is of the considered opinion that the
findings of the Courts below are correct and the question of law No.2 is
answered against the appellant/plaintiff.
12. As already discussed, the first appellate Court has considered the
issue of readiness and willingness, the nature of transaction on the basis of
evidence of PW1 for arriving at a right conclusion that the transaction between
the parties was not for the purpose of alienation of the suit property and it was
one for loan transaction. The admission of the plaintiff as P.W.1 that she
demanded money on several occasions and on daily basis and inspite of several
demands, the defendant had failed to repay the money and therefore she filed a
suit, would categorically prove that it was a loan transaction and not one for
selling the suit property. In that event, the 1st question of law is also answered
against the appellant and that the finding the first appellate Court reversing the
finding of the trail Court is legally correct and justified.
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S.A.No.459 of 2014
13. The respondent/defendant has come out with the memo that they
will repay the loan amount borrowed by her on 27.10.2003. According to the
respondent/defendant they had already paid a sum of Rs.50,000/- and the
balance amount is to be paid. With the consent of both sides, this Court directs
the defendant to deposit a sum of Rs.4 lakhs (Principal 3 lakhs + interest 1
lakh) within a period of one month from the date of receipt of a copy of this
order, failing which, the appellant/plaintiff is entitled to recover the money in
the manner known to law.
14. In fine, the Second appeal stands dismissed. However, there shall
be no order as to costs. Consequently, connected miscellaneous petition is
closed.
04.10.2021
vum
Index : Yes/No
Speaking order / Non speaking order
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S.A.No.459 of 2014
M. GOVINDARAJ, J.
vum
To
1.The District Court, Thiruvallur
2.The Sub Court, Poonamallee
3. The Section Officer,
VR Section,
Madras High Court,
Chennai.
S.A.No.459 of 2014
and M.P.No.1 of 2014
04.10.2021
https://www.mhc.tn.gov.in/judis
