Madras High Court
Shanmuga Gramani vs Babu Gramani on 25 April, 2022
SA NO.324 OF 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25 / 04 / 2022
CORAM
THE HON'BLE MR.JUSTICE M.GOVINDARAJ
SA NO.324 OF 2016
AND CMP NOS.6035 & 6036 OF 2016
Shanmuga Gramani ... Appellant
VS.
Babu Gramani ... Respondent
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, 1908, against the judgment and decree passed in A.S.No.40 of
2013 dated 27.11.2015 on the file of the Principal District Judge at
Tiruvallur, reversing the judgment and decree passed in O.S.No.111 of
2010 dated 30.11.2012 on the file of the Subordinate Judge at Tiruvallur.
For Appellant : Mr.V.Manohar
For Respondent : Mr.K.Balaji
JUDGMENT
Aggrieved over the reversal of the decree granted in favour
of the appellant, by the First Appellate Court, the appellant preferred the
above Second Appeal.
https://www.mhc.tn.gov.in/judis
SA NO.324 OF 2016
2.For the sake of convenience, the parties are called as per
their litigative ranking before the Trial Court.
3.The case of the plaintiff is that he wanted to purchase 3.75
acres of lands from one Ramachandra Naidu and Tmt. Vijayammal. Since
he was in shortage of funds, he approached the defendant for loan and
borrowed a sum of Rs.2,00,000/- from him for interest @ Rs.2.50 per
Rs.100/- per month. At the time of registration of the Sale Deed for the
above said lands, the defendant insisted that the property must be
registered in his name as security for his loan and undertook to convey
the same to the plaintiff when he repays the same with interest.
Accordingly, a Sale Deed for an extent of one acre of land was registered
in the name of the plaintiff and remaining 2.75 acres of land, which is the
subject matter of the Suit was registered in the name of the defendant.
During July 2002, the plaintiff paid a sum of Rs.50,000/- towards
principal and Rs.5,000/- as interest and got a new consent letter from the
defendant on that day and requested the defendant to reduce the interest
rate from Rs.2.50 to Rs.2.00 per Rs.100/- per month. Accordingly, a
fresh consent letter dated 27.04.2002 was issued by the defendant in
https://www.mhc.tn.gov.in/judis
SA NO.324 OF 2016
favour of the plaintiff, in the presence of the witnesses. Thereafter, the
plaintiff approached the defendant to repay the loan amount with interest
and sought for execution of the Sale Deed, in his name. But however, the
defendant refused to do the same. Thereafter, in the presence of the
Mediators, namely Venkataraja, Gajendra Naidu and Kader Basha and
other village elders, a Settlement was arrived at between the parties on
10.10.2007. Further, a Deed of Sale Agreement was executed on
10.10.2007 wherein the defendant agreed to sell the property for a total
sale consideration of Rs.7,25,000/- and received Rs.1,25,000/- as
advance. It was agreed by the parties that the balance sale consideration
of Rs.6,00,000/- shall be paid within a period of one month and any
breach of this term of the vendor, the defendant will be liable to pay
twice the sale consideration. If any breach is committed by the purchaser,
the advance amount of Rs.1,25,000/- shall stand forfeited. According to
the plaintiff, the defendant evaded from performance of the contract in
spite of his efforts. Therefore, he issued a legal notice on 07.12.2007, to
which the defendant issued a reply notice. The plaintiff sent a rejoinder
notice on 02.01.2008 and filed the Suit for specific performance.
https://www.mhc.tn.gov.in/judis
SA NO.324 OF 2016
4.The defendant denied the averments made in the plaint and
stated that he purchased the property of entire 2.75 acres of lands by way
of a registered document from the original owners and he is in possession
and enjoyment of property by raising crops over the same. The
documents as produced by the plaintiff are cooked up, false and
fabricated. The plaintiff has no capacity to purchase any property, but he
is a Court bird and able to manipulate things and the Court Fee paid is
also defective and the Suit is liable to be dismissed.
5.The Trial Court, after framing appropriate issues, has held
that the consensus of ad-idem as well as the readiness and willingness
has been proved by the plaintiff and thus, decreed the Suit. On appeal,
the First Appellate Court has held that the consensus of ad-idem has been
proved, but readiness and willingness is not proved and hence, reversed
the judgment and decree of the Trial Court. Aggrieved over the same, the
plaintiff has preferred the above Second Appeal and the same was
admitted on 12.07.2016, on the following substantial questions of law:-
https://www.mhc.tn.gov.in/judis
SA NO.324 OF 2016
"i) Whether the Lower Appellate Court is right in
reversing the judgment and decree of the trial court and
dismissing the suit on the reason that the plaintiff was
not ready and willing to perform the contract in the
absence of detailed discussion on such issue and giving a
finding on facts and circumstances?
ii) Whether the learned Lower Appellate Court
Judge is empowered to reverse the judgment and decree of
the trial Court without assailing the said finding and
without rendering independent finding?
iii) Whether the judgment and decree of the Lower
Appellate Court is justified for the reason that there was
compliance of Section 16(c) of the Specific Relief Act
right through from the date of agreement is established
through records and evidence of competent person?"
6.From the evidence of the defendant, who examined as
D.W.1 it is found that he had admitted the execution of the consent letter
as well as the sale agreement which were marked as Exs.A1 and A2. He
would also categorically state that he had voluntarily executed the same
https://www.mhc.tn.gov.in/judis
SA NO.324 OF 2016
without any coercion. Relying on the clear admission, the First Appellate
Court has confirmed the findings of the Trial Court that there was
consensus of ad-idem. Therefore, it only remains as to whether the
plaintiff proved his readiness and willingness to perform his part of
contract or not.
7.Heard the submissions made on either side and perused the
materials available on record.
8.The learned counsel appearing for the defendant would
rely on a judgment of the Hon'ble Supreme Court in
N.P.THIRUGNANAM (D) BY LRS. VS. DR.R.JAGAN MOHAN RAO
AND OTHERS [1995 (5) SCC 115] wherein it is observed that the
continuous readiness and willingness on the part of the plaintiff is a
condition precedent for grant of relief. Since the plaintiff has not proved
that he was ready with the money within the specified time of one month
and filed the Suit with a delay, he is not entitled to the relief and it is not
applicable to the contending circumstances of the case.
https://www.mhc.tn.gov.in/judis
SA NO.324 OF 2016
9.The learned counsel appearing for the defendant would
also rely on a judgment of the Hon'ble Supreme Court in
H.P.PYAREJAN VS. DASAPPA (DEAD) BY LRS. [2006 (2) SCC 496]
to the point that the basic principles behind the claim of the discretionary
relief is that the plaintiff must manifest that his conduct has been
blemishless throughout. When the plaintiff has not proved his readiness
and he has no financial capacity to perform his part of the contract is well
established and he could not be granted with the relief.
10.The judgments relied on by the learned counsel for the
respondent are not applicable to the present case on hand for the
discussions to be made in the following paragraphs.
11.It is well settled legal principle that in a Suit for specific
performance, the averments as to readiness and willingness shall be
considered as a whole and if the conduct of the parties proves that the
plaintiff was ready and willing, the Court shall exercise its discretion in
his favour and it shall not reject it applying a mathematical formula
capable of being expressed only in specific terms and words.
https://www.mhc.tn.gov.in/judis
SA NO.324 OF 2016
12.In the instant case, the materials goes to show that the
plaintiff had consistently approaching the defendant for execution of the
Sale Deed. There was a mediation in the presence of three mediators and
Ex.A2 sale agreement was entered between the parties. This execution of
the Sale Agreement is admitted by the defendant himself as D.W.1. It is
averred that the plaintiff had continuously approached the defendant to
execute the Sale Deed by tendering the balance sale consideration. The
time fixed was only one month. A reading of the Ex.B3, the rejoinder
notice issued by the plaintiff will narrate the antecedents of the Sale
Agreement dated 10.10.2007, wherein it is clearly stated that the plaintiff
has entered into a sale transaction with the original owners and he has
registered 2.75 acres of land in the name of the defendant for the purpose
of security and that there is no transaction between the original owners
and the defendant at any point of time. From the date of registration of
the Sale Deed, in respect of the Suit property, the plaintiff is in
possession and he has planted Groundnut, Casuarina Trees and saplings
and he is rearing the same. The loan transaction between the plaintiff and
the defendant, the mediation held in the presence of P.W.2 to P.W.4 and
the Sale Agreement dated 10.10.2007 is also admitted. In the very same
https://www.mhc.tn.gov.in/judis
SA NO.324 OF 2016
rejoinder, it is categorically mentioned that the plaintiff has approached
the defendant with the balance sale consideration, but he only evaded and
therefore, on the advice of the mediators he deposited the money in
Andhra Bank vide Receipt No.183136 in Account No.20070175 in the
name of his son S.Srinivasan. Even though the defendant in the proof
affidavit and in the written statement has denied the execution of the
consent letter, sale agreement as false and fabricated, he has not come
forward with the specific denial that money was not deposited in the
particular account. On the other hand, the plaintiff who examined himself
as P.W.1 categorically stated that he mobilized the balance sale
consideration of Rs.6,00,000/- within one month and approached the
defendant for executing the sale agreement, to which he refused. Again
the mediators had interfered and requested the defendant to execute the
sale deed, to which also, the defendant evaded. The final mediation was
held on 07.12.2007 and thereafter, on the advice of the mediators he
deposited the money in Manavala Nagar Branch of Andhra Bank and
showed the receipt to the mediators. Absolutely, this evidence was not
challenged nor the witness was discredited on this point.
https://www.mhc.tn.gov.in/judis
SA NO.324 OF 2016
13.Further, P.W.1 during his cross examination, would state
that 10 days before the deadline, he approached the defendant to receive
the balance sale consideration and execute the sale deed. On the other
hand, the defendant demanded to reduce Rs.2,00,000/- and requested the
plaintiff to leave one acre of land in his favour. Refusing to the demand
of the defendant, the plaintiff has issued legal notice. He would further
reiterate that he has taken Rs.6,00,000/- in cash and approached the
defendant along with the mediators within one month. Even before the
mediators, the defendant demanded that the said one acre of land shall be
left to him after deducting Rs.2,00,000/-. Therefore, from the evidence of
P.W.1, it is categorically prove that the plaintiff has approached the
defendant with the balance sale consideration of Rs.6,00,000/- within the
specified period and the defendant wanted one acre of land to be left to
himself after deducting Rs.2,00,000/-. Thereafter, the plaintiff had
deposited Rs.6,00,000/- on 11.12.2007 in Andhra Bank and issued a
legal notice. The information regarding the deposit also made known to
the defendant with receipt number as well as account details.
https://www.mhc.tn.gov.in/judis
SA NO.324 OF 2016
14.As stated earlier, the defendant has made a general denial
that the documents are fabricated by the plaintiff and there is no specific
cross examination that the plaintiff was ready and willing to perform his
part of the contract in getting the sale deed executed. On the other hand,
the evidence of P.W.2 would substantiate the statement of the plaintiff
with regard to readiness and tendering the balance sale consideration
within a period of one month and that on failure of the final mediation on
07.12.2007, they advised him to deposit in a Bank. Accordingly, the
plaintiff has deposited Rs.6,00,000/- and produced the bank receipt to the
mediators. The further evidence of P.W.2 that from the date of
registration of the sale deed, with respect to the suit property in favour of
the defendant, possession is remained with the plaintiff and that he is
cultivating the lands. In spite of a specific deposition, there was no cross
examination to contradict the statement made by P.W.2. During cross
examination, it is affirmed that the balance sale consideration of
Rs.6,00,000/- was taken to the defendant and he has seen the bundles of
money placed before the defendant, but he has not counted. There was no
cross examination with regard to the credibility of the statement or any
suggestion to impeach the deposition made by P.W.2. Therefore, it is
https://www.mhc.tn.gov.in/judis
SA NO.324 OF 2016
clear that the plaintiff was not only ready to perform his part of contract,
but he actually jingled the coins in front of the defendant. P.W.2 also has
clearly stated that the money was deposited in Andhra Bank and there
was no cross examination on that point also.
15.The defendant who examined himself as D.W.1 would
make an "omni bus" denial as to the execution of the agreement and
deposit of money in the Bank. On the other hand, during his cross
examination, the defendant would state that in the case of the plaintiff's
brother Dakshinamoorthy, he advanced money for purchase of property
and registered the same in his name and on repayment of loan amount, he
has conveyed it in favour of him. Further, when he was confronted with
the receipt of depositing a sum of Rs.6,00,000/-, he would deny the
question as he was not aware of the deposit and marking of the receipt,
was objected by the defendant. On the other hand, there is no objection
by the defendant that the fact of deposit was false. The further deposition
of the defendant goes to show that he was not aware of the original
owners and the sale transaction made in his favour in respect of the suit
property and also about the cultivation of Casuarina trees in the suit land.
https://www.mhc.tn.gov.in/judis
SA NO.324 OF 2016
During further cross examination, he would depose that he was not aware
of the deposit of balance sale consideration of Rs.6,00,000/- and the
money is still lying in the deposit, but never denied that there is no such
deposit in spite of being informed as early as on 02.01.2008 vide Ex.B3
marked by him. Therefore, the finding of the First Appellate Court that
non-production of the deposit receipt or account details will disprove the
case of the plaintiff that he has not made any attempt to show that he was
ready and willing to perform his contract is erroneous and contrary to the
evidence. On the basis of the materials placed before this Court, I find
that the plaintiff has clearly proved his readiness and willingness as
contemplated under Section 16(c) of the Specific Relief Act, 1963.
16.It is well settled that the factum of readiness and
willingness to perform the plaintiff's part of the contract is to be assessed
with reference to the conduct of the parties and attending circumstances.
The Court may infer from the facts and circumstances whether the
plaintiff was always ready and willing to perform his part of contract.
The facts of this case would amply elucidate that the defendant is a
money lender and he is in the habit of getting the sale deed registered in
https://www.mhc.tn.gov.in/judis
SA NO.324 OF 2016
his name towards security of loan. The plaintiff had jingled the coins in
front of him, within the specified time, but it was not accepted by the
defendant and that he refused to perform his part of the contract. The
consistent case of the plaintiff that the defendant wanted one acre of land
left to him by deducting Rs.2,00,000/- and offered to execute the sale
deed in respect of the remaining extent of land that is to say 1.75 acres.
This undisputed fact goes to show that not only the plaintiff was always
ready and willing, but in fact both the parties were willing to perform
their part of contract, but for the hitches discussed above. This evidence
goes without any objection and establish the readiness and willingness of
the plaintiff beyond any doubt.
17.In view of the above discussions, the questions of law 1
and 3 are answered in favour of the appellant / plaintiff. The First
Appellate Court without considering the evidence has rendered a finding
on the readiness of the plaintiff. Hence, the reversal of the judgment by
the First Appellate Court without appreciating the evidence in proper
perspective is not sustainable and hence, the second question of law is
also answered in favour of the appellant / plaintiff.
https://www.mhc.tn.gov.in/judis
SA NO.324 OF 2016
18.Accordingly, the judgment and decree passed in
A.S.No.40 of 2013 dated 27.11.2015 on the file of the Principal District
Judge at Tiruvallur stands set aside and the Second Appeal stands
allowed. No costs. Consequently, connected Civil Miscellaneous
Petitions are closed.
25 / 04 / 2022
Index : Yes/No
Internet : Yes/No
TK
To
1.The Principal District Judge at Tiruvallur.
2.The Subordinate Judge at Tiruvallur.
https://www.mhc.tn.gov.in/judis
SA NO.324 OF 2016
M.GOVINDARAJ, J.
TK
SA NO.324 OF 2016
25 / 04 / 2022
https://www.mhc.tn.gov.in/judis
