Madras High Court
V.Sekhar vs Muthusamy on 4 August, 2022
S.A.No.321 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.08.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.321 of 2022
and
C.M.P.No.6763 of 2022
V.Sekhar
... Respondent/ Plaintiff / Appellant.
Vs.
Muthusamy
... Appellant / Defendant/ Respondent
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the Decree and Judgement passed in A.S.No.70 of 2018 on
the file of the II Additional District Judge at Puducherry dated 19.08.2019
partly reversing the judgment and decree in O.S.No.103 of 2010 on the file of
the Principal Sub Judge at Puducherry.
For Appellant : Mr.P.Veeraraghavan
For Respondent : Mr.V.Vadivelou for Caveator
1/11
https://www.mhc.tn.gov.in/judis
S.A.No.321 of 2022
JUDGMENT
The unsuccessful plaintiff before the lower appellate Court is the
appellant before this Court. It is necessary to allude to the facts of the case in
order to appreciate the dispute on hand. The parties are referred to in the
same status as before the Trial Court.
2. The plaintiff had instituted O.S.No.103/2010 on the file of the
Principal Sub Judge, Puducherry seeking specific performance of an
agreement of sale entered into between him and the defendant on 21.05.2007.
It is the case of the plaintiff that under this agreement of sale the defendant
had agreed to sell the suit property to the plaintiff for a total consideration of
Rs.1,75,000/- and out of this, the plaintiff had paid a sum of Rs.1,65,000/- as
an advance on the very same day. The balance sale consideration that was
payable was a sum of Rs.10,000/- which was to be paid within a period of 3
months from the date of execution of the agreement of sale.
3. The plaintiff would submit that the defendant was bound to execute
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S.A.No.321 of 2022
the sale deed in his favour by producing the antecedent title deeds and Nill
encumbrance certificate in respect of the suit property. In case, the defendant
failed to execute the same, the plaintiff was at liberty to get it registered
through Court by paying the balance amount of Rs.10,000/- into the Court.
The plaintiff would submit that he has always been ready and willing to
perform his part of the agreement and had, on several occasions, approached
the defendant with the balance amount however, the defendant had been very
evasive. This constrained the plaintiff to issue a legal notice on 08.02.2008
calling upon the defendant to come forward to register the sale deed after
receiving the balance sale consideration. The notice had been received by the
defendant on the very next day and a reply notice was issued on 18.02.2008
containing untenable facts and allegations. Therefore, the suit.
4. The defendant on entering appearance had filed a written statement
inter alia denying the various allegations contained in the plaint. The
defendant would submit that he had never intended to sell the property to the
plaintiff and had never approached the plaintiff with such an offer. He would
submit that suit property worth more than Rs.5,00,000/- even in the year
2007. Therefore, the plaintiff would not have agreed to sell the property for a
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S.A.No.321 of 2022
lesser value. The defendant would contend that he and the plaintiff had been
doing business together and in the course of this business, the defendant had
to pay the plaintiff a sum of Rs.50,000/-. The defendant would submit that he
was ready to execute a simple mortgage deed for the said amount and the
plaintiff had obtained an unregistered simple mortgage deed in the year 2001
for the sum of Rs.50,000/-. The defendant would submit that he has been
regularly repaying a sum of Rs.1,000/- towards interest to the plaintiff. Since
the defendant had not repaid the principal amount a fresh unregistered simple
mortgage deed for a sum of Rs.50,000/- was executed in the year 2004. The
defendant would state that since he was not able to repay the principal
amount the plaintiff had asked the defendant to come over to put his
signature in the deed. However this time instead of a mortgage deed the
plaintiff had made ready a sale agreement and insisted on the defendant
affixing his signature. Since he had muscle power with him the defendant had
no other option except to sign the agreement. The plaintiff had assured the
defendant that he would not cheat him as he was aware that the property was
worth over a sum of Rs.5,00,000/-. The agreement is now sought to be
misused by the plaintiff. Therefore he prayed to dismiss the suit with costs.
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S.A.No.321 of 2022
5. The learned District Munsif had framed the following issues :-
"1. Whether the plaintiff is entitled for a Judgement
and Decree directing the defendant to execute the sale deed
in favour of the plaintiff in respect of the plaint schedule
mentioned property by receiving the balance sale
consideration of Rs.10,000/- (ten thousand only)?
2. Whether the Sale Agreement allegedly executed by
the defenant in favour of the plaintiff is true and valid?
3. To what relief the plaintiff is entitled for ? "
6. The plaintiff had examined himself as P.W.1 and one
Mr.Gopalakichenane as P.W.2 and Ex.A.1 to Ex.A.4 were marked. On the
side of the defendant D.W.1 was examined and Ex.B.1 to Ex.B.5 were
marked.
7. The learned Trial Court had decreed the suit as prayed for and the
plaintiff was directed to deposit the balance consideration of Rs.10,000/-
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S.A.No.321 of 2022
within a month. This Judgement and Decree was taken up on appeal by the
defendant to the II Additional District Judge, Puducherry in A.S.No.70 of
2018.
8. Pending the appeal, the defendant had filed I.A.No.38 of 2019 to
examine the officials of the revenue department to ascertain the guideline
value and registered value of the properties around the suit property for the
year 2007-2008 and the present value i.e., for the year 2018-2019. This
application was dismissed by the appellate Court and ultimately the learned
Judge had allowed the appeal and set aside the Judgement and Decree of the
Trial Court.
9. The learned District Judge had non-suited the plaintiff on the ground
that the plaintiff was not ready and willing to perform his part of the contract
particularly when only a sum of Rs.10,000/- remained to be paid. The
learned Judge held that the plaintiff had not taken any steps even after the
period of 3 months had elapsed to have the sale deed registered or the
balance amount deposited. Even after the reply notice had been received from
the defendant in the year 2008, the plaintiff had filed the suit only 2 years and
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S.A.No.321 of 2022
3 months thereafter. Therefore, the Appellate Court had stated that the
plaintiff had failed to prove his readiness and willingness. Challenging the
same the plaintiff is before this Court.
10. The Second Appeal has been admitted on the following Substantial
Questions of law:-
“[1]Whether the judgement and decree of the First
Appellate Court is sustainable in law when substantial
payment of more than 95% of sale consideration was paid as
advance tantamount to readiness and willingness to perform
is apparent?
[2]Whether the judgement and decree of the First
Appellate Court is against the judgment of the Supreme
Court held in Motilal Jain Vs Ramdasi Devi and Others
covering the matter ?
[3]Whether the decree and judgment of the First
Appellate Court is contrary to the question of law applicable
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S.A.No.321 of 2022
to the facts of the case?
[4]When the Trial Court correctly appreciated the
facts and evidence in determining the issue of specific
performance right and whether the First Appellate Court can
set aside the order of the Trial Court for reason of delay in
filing the suit after issuance of legal notice by
appellant/plaintiff ?”
11. Heard the counsels.
12. The admitted facts are that the plaintiff and defendant had signed a
document styled as an agreement of sale on 21.05.2007 and on the date of the
execution of the agreement a sum of Rs.1,65,000/- had been paid and leaving
balance of Rs.10,000/-. The defendant had stated that he had not entered into
an agreement of sale and that the plaintiff had taken advantage of the
signatures that he had obtained from the defendant to create the agreement of
sale. However, this argument has been found against the defendant, since the
defendant being an educated person has signed on the dotted lines. Under the
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S.A.No.321 of 2022
agreement of sale 95% was paid and only 5% was left to be paid. However,
though the agreement of sale stipulated a 3 months time for completing the
contract even after receiving the reply notice dated 18.02.2008 from the
defendant, where the defendant had refuted the plaintiff's claim and denied
the execution of the sale deed, the plaintiff has come forward with the suit
only 2 years and 3 months thereafter.
13. That apart, under the agreement of sale in case of a refusal by the
defendant to execute the sale deed it was open to the plaintiff to file a suit for
specific performance after depositing the said sum of Rs.10,000/-. However,
in the instant case, the defendant has not come forward to make the payment
but has filed the suit for specific performance. This itself would show that
though the sum of Rs.1,65,000/- had been paid, the defendant was not willing
to move forward with the sale agreement and therefore, the Substantial
Question of law no.1 is answered against the plaintiff.
14. The learned District Judge has considered the evidence both oral as
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S.A.No.321 of 2022
well as documentary and has come to the conclusion that the plaintiff has not
proved the readiness and willingness. Therefore all the substantial questions
of law are answered against the plaintiff and the Second Appeal is dismissed.
No costs. Consequently, the connected Civil Miscellaneous Petition is closed,
if any.
04.08.2022
Index : Yes/No
Internet : Yes/No
shr
To
1.The II Additional District Judge at Puducherry
2.The Principal Sub Judge at Puducherry.
P.T. ASHA, J,
shr
https://www.mhc.tn.gov.in/judis
S.A.No.321 of 2022
S.A.No.321 of 2022
and
C.M.P.No.6763 of 2021
04.08.2022
https://www.mhc.tn.gov.in/judis
