Madras High Court
Poongavanam vs Venkatarama Chettiar on 30 September, 2021
S.A.No.365 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.GOVINDARAJ
S.A.No.365 of 2013
and M.P.No.1 of 2013
Poongavanam ... Appellant
Vs.
Venkatarama Chettiar ... Respondent
PRAYER: The Second Appeal filed under Section 100 of the Civil Procedure
Code against the judgment and decree, dated 13.10.2011 in A.S.No.48 of 2009
on the file of the Principal Subordinate Court, Krishnagiri, confirming the
Judgment and Decree, dated 31.10.2008 in O.S.No.57 of 2006 on the file of the
District Munsif Court, Krishnagiri.
For Appellant : Mr.V.Raghavachari
For Respondent : Mr.B.Bharath kumar for
Mr.V.Nicholas
1/12
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S.A.No.365 of 2013
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JUDGMENT
The defendant in O.S.No.57 of 2006 who had suffered a decree for
specific performance at the hands of the District Munsif, Krishnagiri, upon its
confirmation by the Principal Subordinate Court, Krishnagiri in A.S.No.48 of
2009, has come up with this second appeal.
2. The plaintiff filed a suit for specific performance and delivery of
possession. According to the plaintiff, the defendant offered to sell the property
for a sum of Rs.40,000/- for which the defendant received a sum of Rs.10,000/-
as advance on 24.11.2000 and agreed to receive the balance sale consideration
within a period of one year from the date of agreement. Thereafter, on
02.12.2001, the defendant received a sum of Rs.20,000/- as part of the sale
price and endorsed at the back of the sale agreement and offered to execute and
register the sale deed as and when demanded by the plaintiff. On 31.07.2002,
the plaintiff issued a legal notice requiring the defendant to receive the balance
sale price of Rs.10,000/- and execute and register the sale deed. After receipt of
the legal notice, the defendant met the plaintiff on 30.08.2002 and received
Rs.10,000/- being the balance sale price and assured that he would perform his
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S.A.No.365 of 2013
part of the contract on 10.09.2002 and failed to keep up the promise.
Thereafter, the plaintiff issued another legal notice on 02.12.2002 calling upon
the defendant to perform his part of the contract within seven days. But as
there was no reply, the plaintiff sued for specific performance.
3. The defendant filed a written statement denying all the averments
stated in the plaint. The defendant denied the very execution of the sale
agreement in favour of the plaintiff. According to the defendant, he is the eldest
son of the joint family and for the purpose of marriage of his sister in the year
2002, he borrowed a sum of Rs.10,000/- from the plaintiff and the plaintiff
demanded 4% of interest per month. As there was a default in paying interest,
the plaintiff sent a legal notice. On receipt of legal notice, the defendant
approached the plaintiff in turn the plaintiff informed him that if he pays the
entire interest which is calculated totally at Rs.9,600/-, he would not take any
further action and consequently would close the account. Accordingly two
months time was fixed to pay the said amount. However, due to severe
drought, the defendant could not pay principle and interest. Therefore, the
plaintiff using the signature of the defendant for execution of the forged sale
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S.A.No.365 of 2013
agreement and thus it is a fabricated one.
4. At trial, the plaintiff examined himself as P.W.1 and one Kishore
kumar, document writer has been examined as P.W.2. On the side of the
defendant, the defendant examined herself as D.W.1 and one Krishnan has
examined as D.W.2. The plaintiff produced Exs.A1 to A6 and the defendants
produced Ex.B1.
5. The trial Court upon framing appropriate issues and on
appreciating the evidence on record, decreed the suit in favour of the plaintiff.
Aggrieved over the same, the defendant filed an appeal before the Principal
Subordinate Court, Krishnagiri. On appeal, the first appellate court, confirmed
the Judgment and decree of the trial Court and directed the execution of the sale
deed within a period of one month and to hand over possession of the suit
property.
6. Aggrieved over the concurrent findings of the Courts below, the
defendant preferred this Second Appeal. On 06.03.2019, the following
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S.A.No.365 of 2013
substantial questions of law were framed at the time of admission of this Second
Appeal:
i. Whether the Courts below are right in decreeing the suit
for specific performance, when the plaintiff had failed to
prove his continued readiness and willingness in
performance of the contract?
ii. Whether the Courts below are right in overlooking the fact
that time is the essence of contract, assuming Ex.A1 is
true, and there is no explanation for the delayed
institution of the suit and further delay of 27 months in
representing the papers?
iii. Whether the Courts below are right in shifting the burden
of proof of disproving Exs.A3 and A4 on the appellant,
when the obligation of proving the document is upon the
plaintiff?
7. Heard the learned counsel on either side and perused the materials
available on record.
8. The entire suit is based on Ex.A1, sale agreement. A perusal of
Ex.A1 shows that the defendant has affixed his signature at each and every page
of the agreement. The signature and the thumb impression are admitted by the
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S.A.No.365 of 2013
defendant. It is the case of the defendant that his signature was obtained in the
blank paper. According to the plaintiff, the defendant received a sum of
Rs.20,000/- on 02.12.2001 and Rs.10,000/- on 30.08.2002 and made an
endorsement at the back side of the agreement. A bare perusal of the signature
of the defendant shows that the signature found on the 4 th page of the agreement
and the endorsement made on 30.08.2002 are clearly different and it was not
affixed by the defendant. In that event, the burden lies on the plaintiff to prove
that the defendant has actually received a sum of Rs.10,000/- and affixed his
signature by taking the same into the forensic examination for getting expert
opinion. But, from the perusal of the evidence, I do not find any material to
prove the factum other than the pleading and evidence of PW1. PW1 in his
chief examination stated that on 24.11.2000, the defendant agreed to sell the
property for total sale consideration of Rs.40,000/- and entered into a sale
agreement and received a sum of Rs.10,000/- as advance. He agreed to receive
the balance consideration within a period of one year and register the sale deed
in his favour. On 02.12.2001, he received a sum of Rs.20,000/- towards sale
consideration and made an endorsement and on 30.08.2002, he received the
balance sale consideration of Rs.10,000/- and again made an endorsement to
that effect. However, there is no evidence as to why the sale deed was not
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S.A.No.365 of 2013
registered after paying total sale consideration. On 30.07.2002, the legal notice
was issued to the defendant to receive the balance sale consideration. On
30.08.2002 the defendant met the plaintiff and received a sum of Rs.10,000/-
and agreed to execute the sale deed on 10.09.2002. However, the defendant
failed to do the same. The plaintiff was always ready and willing to get the sale
deed executed in his favour. Denying the allegations of the defendants, during
the cross examination, it was admitted by the plaintiff that the plaintiff has
enough financial resources to make the entire payment on the date of agreement
and get the sale deed executed. He further deposed that eventhough he offered
to pay the balance sale consideration of Rs.30,000/-, it was not paid at the
request of the defendant. Even on 02.12.2001, when the defendant received
another sum of Rs.20,000/-, he had enough resource to pay the entire amount to
get the sale deed. However, the defendant had taken time. In this regard, there
is no explanation given by the plaintiff in respect of not getting the sale deed
executed inspite of sound financial resources and his readiness and willingness
to execute the sale agreement.
9. On the other hand, there was a delay of two years from the date of
agreement till the date of issuance of legal notice. The document writer who
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S.A.No.365 of 2013
prepared the sale deed was examined as PW2 and admitted that there is
difference in signature found at the 2nd and 3rd page of the sale agreement and
further stated that the plaintiff is a money lender. The above evidence will
categorically prove that Exs.A3 and A4 are forged and fabricated. Hence, the
onus is on the plaintiff to prove that the sale agreement and the endorsement
which were said to have been executed by the defendant is valid and created
with an intention to sell the property for a valid consideration. On the other
hand, the Courts below have erroneously found that the onus is on the
defendant to prove the negative.
10. In the instant case, the validity of the sale agreement itself is
doubtful. As admitted by P.W.2, the signatures found in the endorsement for
receiving a sum of Rs.20,000/- towards sale consideration raises serious
suspicion over the sale agreement. On the other hand, from the admission of
PW2, it is clear that the plaintiff is a money lender and the evidence of PW1
also clearly establish that the plaintiff had enough financial resource to pay the
sale consideration at one stroke to register the sale deed. In such circumstance,
there is no explanation as to why he has waited for one year to pay the balance
sale consideration of a meagre sum of Rs.10,000/- to execute the sale deed,
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S.A.No.365 of 2013
which would clearly prove that it is a loan transaction between the plaintiff and
the defendant. In that event, the trial Court ought not to have exercised its
discretion in the absence of readiness and willingness on the part of the plaintiff,
moreso when the validity of the sale agreement is doubtful.
11. It is also relevant to note that the suit was filed on 06.11.2003,
returned for compliance on 10.11.2003 and the same was represented only on
31.01.2006. There was a delay of 27 months in representing the suit and there
is no explanation for the huge delay. However, the delay was condoned by the
first appellate Court. The delay of 27 months in representing the plaint would
prove the fact that the suit was used as a tool for recovering the money and
there was no intention for getting the sale deed executed. The delay by itself
would disentitle the plaintiff for the discretionary relief of specific performance.
The person who is seeking specific performance shall prove his readiness and
willingness throughout from the date of sale agreement till the date of decree.
The Hon'ble Supreme Court in the Judgment reported in AIR 1996 SC 116 in
N.P.Thirugnanam vs. R.Jagan Mohan Rao has held as under:
“Right from the date of the execution till date of the
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S.A.No.365 of 2013
decree he must prove that he is ready and has always been
willing to perform his part of the contract.”
12. In the present case on hand, there is no explanation as to why the
plaintiff sought one year time to execute the sale deed, though he has a sound
financial status, to pay and get the sale deed executed on the same day. The
very sale agreement entered into between the plaintiff and the defendant itself is
doubtful. Further, the plaintiff has not proved his genuineness to get the
discretionary relief of specific performance by adducing appropriate evidence.
Hence, the questions of law are answered in favour of the appellant/defendant.
13. The concurrent findings of the Courts below are not sustainable in
law. Thus the decree and Judgment passed in A.S.No.48 of 2009, dated
13.10.2011, on the file of the Principal Subordinate Court, Krishnagiri
confirming the decree and Judgment passed in O.S.No.57 of 2006, dated
31.10.2008, on the file of the District Munsif Court, Krishnagiri are set aside
and the suit filed by the plaintiff stands dismissed.
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S.A.No.365 of 2013
14. In fine, the Second Appeal is allowed. There shall be no order as
to costs. Consequently, connected miscellaneous petition is closed.
30.09.2021
vum
Index : Yes/No
Speaking order / Non speaking order
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S.A.No.365 of 2013
M. GOVINDARAJ, J.
vum
To
1. The Principal Subordinate Court,
Krishnagiri
2. The District Munsif Court,
Krishnagiri.
3. The Section Officer,
VR Section,
Madras High Court,
Chennai.
S.A.No.365 of 2013
and M.P.No.1 of 2013
30.09.2021
https://www.mhc.tn.gov.in/judis
