Madras High Court
M.Mohammed Basthu vs Mohammed Barook on 26 October, 2021
SA NO.762 OF 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.10.2021
CORAM
THE HON'BLE MR.JUSTICE M.GOVINDARAJ
SA NO.762 OF 2012
AND MP NOS.1 AND 2 OF 2012
M.Mohammed Basthu ... Appellant
VS.
Mohammed Barook ... Respondent
PRAYER: Second Appeal filed under Section 100 of Code of Civil
Procedure against the judgment and decree against the judgment and
decree made in A.S.No.16 of 2011 on the file of the District Judge,
Nagapattinam, dated 13.09.2011 confirming the judgment and decree
made in O.S.No.61 of 2009 on the file of the Principal Subordinate
Judge, Mayiladuthurai, dated 04.02.2011.
For Appellant : Mr.N.S.M.Md.Jafarullah
For Respondent : Mr.A.Muthukumar
1/10
https://www.mhc.tn.gov.in/judis
SA NO.762 OF 2012
JUDGMENT
The unsuccessful plaintiff is the appellant in the Second
Appeal.
2.The plaintiff filed a Suit for specific performance on the
basis of the Sale Agreement dated 01.07.2008. According to him, 10
Cents of land was agreed to be sold by the defendant at the rate of
Rs.13,500/- per kuli and three months time was fixed for performance of
contract. However, there is a clause in the agreement that it can be
relaxed mutually. Since the defendant refused to perform his part of
contract, the plaintiff issued a legal notice, complained to the Jamaath
and the mediation was conducted on 28.08.2009 and it could not be
concluded as the endorsement made in the agreement was not given
effect to. Therefore, the plaintiff issued a legal notice dated 04.09.2009
to complete the sale transaction on the terms of agreement dated
01.07.2008. Since the defendant did not come forward to perform his part
of contract, he filed a Suit for the relief of specific performance or in the
alternative, for the refund of a sum of Rs.2,30,000/- paid under the
Agreement.
https://www.mhc.tn.gov.in/judis
SA NO.762 OF 2012
3.In the written statement, the defendant denied all the
averments and has stated that it is only a loan transaction for the purpose
of solemnizing his daughter's marriage. It was agreed that after repaying
this loan along with 12% interest, the Sale Agreement can be taken back.
He is willing to repay the loan secured from the plaintiff. But, on the
other hand, to his shock and surprise, the plaintiff in the month of July
2009, demanded to execute the Sale Deed in his favour. Thereafter,
issued a legal notice dated 04.09.2009. Therefore, he has submitted the
legal notice issued by the plaintiff to the Jamathdhar. In spite of
Jamathdhar's mediation, the plaintiff refused to accept and filed a false
Suit. The plaintiff is not having financial resources to complete the sale,
on the other hand, he wants to get money from one Mohammed Ismail
and complete the sale transaction, suppressing the fact that it was only a
loan transaction and sought to dismiss the Suit.
4.The Trial Court framed appropriate issues and after trial,
dismissed the Suit for specific performance and decreed the Suit in
respect of the alternative prayer of refund of advance amount of
Rs.2,20,000/- along with interest @ 12% from the date of agreement till
https://www.mhc.tn.gov.in/judis
SA NO.762 OF 2012
the date of decree and 6% from the date of decree till the recovery of
money. Aggrieved over the same, the plaintiff filed an appeal.
5.The First Appellate Court, after elaborately discussing all
the observations, has held that the finding in respect of the consensus ad
idem by the Trial Court is not correct and set aside the same and
however, has given a categorical finding that the plaintiff was not ready
and willing to perform his part of contract. It is categorically found that
the evidence of the parties clearly shows that the plaintiff was not in
sound financial position to perform his part of contract and on the other
hand, brought third parties for the purpose of completing the sale
transaction. Therefore, he is not entitled to the discretionary relief of
specific performance and thereby, confirmed the judgment and decree
passed by the Trial Court. Aggrieved over the same, the plaintiff has
preferred the above Second Appeal.
6.This Second Appeal was admitted by this Court on
27.08.2012 on the following substantial question of law:
https://www.mhc.tn.gov.in/judis
SA NO.762 OF 2012
"Whether the lower Appellate Court has committed
an error in answering the question of readiness and
willingness against the plaintiff, despite the fact that the
defendant had contended that the suit transaction was
only a loan transaction and not a genuine sale agreement
implying the unpreparedness on the part of the defendant
which may give rise to an adverse inference?"
7.Heard the submissions. It is to be analysed as to whether
the plaintiff was ready and willing to perform his part of contract as
contended by him and despite the fact that he was ready and willing, the
defendant evaded specific performance on the pretext that it is a loan
transaction.
8.The learned counsel appearing on either side had drawn
the attention of this Court to the evidence of P.W.1 to P.W.3. From the
evidence of P.W.1, it is noted that the wife of the agreement holder
would depose that they have prepared a Sale Deed vide Ex.A1 after
purchasing stamp papers in her name and her brother's name and
approached the defendant. The so-called Mohammed Ismail is her
https://www.mhc.tn.gov.in/judis
SA NO.762 OF 2012
cousin. On the other hand, the evidence of P.W.2 would show that the
said Mohammed Ismail is the sister's husband of the agreement holder
namely the plaintiff. This Sale Deed was prepared on account of paucity
of funds by the plaintiff. It was deposed that the said Mohammed Ismail
agreed to pay the balance sale consideration and therefore, P.W.2 insisted
that his name also should be included in the Sale Deed. He would plead
ignorance with respect to the relationship between P.W.1 and
Mohammed Ismail. Therefore, the contradiction in respect of the
relationship between the plaintiff and the Mohammed Ismail looms large.
It leads the Court to infer that the Mohammed Ismail was brought in as a
party to the sale only for the purpose of payment of balance sale
consideration. In other words, the plaintiff was not in a position to pay
the balance sale consideration. The other part of the evidence goes to
show that even for the payment of the advance amount to the tune of
Rs.2,20,000/-, the plaintiff has borrowed from one Gajalakshmi
Enterprises and was paying it in installments as exhibited by Exs.A2 to
A7. Therefore, in order to show the readiness, the plaintiff must have by
sufficient evidence prove that he was having financial resources to pay
the balance sale consideration and he was mentally prepared for
https://www.mhc.tn.gov.in/judis
SA NO.762 OF 2012
performing his part of contract. This aspect has been elaborately
discussed by the First Appellate Court and a categorical finding has been
given that the plaintiff has not proved his readiness for performing his
part of contract. The willingness is different from being ready to
purchase the property. Therefore, the finding of the First Appellate Court
that the plaintiff has not proved his readiness is based on sound reasons
and unassailable evidence. In that view of the matter, this Court also is of
the considered opinion that the plaintiff has failed to prove his readiness
and willingness as mandated under Section 16(C) of the Specific Relief
Act to get the discretionary relief. Both the Courts are concurrently held
that the plaintiff is entitled to the alternative relief which the defendant is
ready to perform.
9.It is also submitted by the learned counsel for the
respondent that even now the defendant is ready to refund the loan
amount borrowed by him with interest as ordered by the Trial Court.
10.Accordingly, the appellant in this Second Appeal is
entitled to repayment of the advance amount of Rs.2,20,000/- along with
https://www.mhc.tn.gov.in/judis
SA NO.762 OF 2012
interest @ 12% from 01.07.2008 till the date of decree and @ 6% interest
after the date of decree till the payment is completed.
11.With the above observation, the Second Appeal is
dismissed. No costs. Consequently, connected miscellaneous petitions
are closed.
26.10.2021
Index : Yes/No
Internet : Yes/No
TK
https://www.mhc.tn.gov.in/judis
SA NO.762 OF 2012
To
1.The District Judge
District Court
Nagapattinam.
2.The Principal Subordinate Judge
Principal Subordinate Court
Mayiladuthurai.
https://www.mhc.tn.gov.in/judis
SA NO.762 OF 2012
M.GOVINDARAJ, J.
TK
SA NO.762 OF 2012
26.10.2021
https://www.mhc.tn.gov.in/judis
