Madras High Court
R.Ramadoss vs R. Chithra on 11 August, 2022
S.A.No635 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.08.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.635 of 2022
and
C.M.P.No.12752 of 2022
R.Ramadoss ...Appellant
Vs
R. Chithra ... Respondent
Prayer: Second Appeal is filed under Section 100 of C.P.C against the
decree and judgment dated 27.08.2020 in A.S.No.37 of 2018 on the file of
the I Additional District and Sessions Court, Cuddalore modifying the decree
and judgment dated 20.02.2018 in O.S.No.38 of 2010 on the file of the
Subordinate Court, Panruti.
For Appellant : Mr.N.R.Rajagopalan
1/9
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S.A.No635 of 2022
JUDGEMENT
The unsuccessful plaintiff in a suit for specific performance is before
this Court. The parties are referred to in the same rank as before the Trial
Court.
2. The facts, which have culminated in filing the above suit, are
herein below narrated:
The suit property belonged to the defendant under a Sale Deed dated
21.03.2005. The defendant had offered to sell the property to the plaintiff for
a total sale consideration of a sum Rs.1,15,000/-. The plaintiff had also
accepted the same. The defendant had received an advance amount of
Rs.60,000/- on 10.02.2007, for which, a registered Sale Agreement dated
10.02.2007 was executed. Thereafter, on 10.03.2008, the defendant had
received a further advance of Rs.40,000/- and a fresh Agreement of Sale
dated 10.03.2008 was executed between the plaintiff and the defendant. As
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S.A.No635 of 2022
per the terms of the agreement, the plaintiff was required to pay the balance
sale consideration of Rs.15,000/- within a period of two years i.e, on or
before 09.03.2010 and on receipt of the balance sale consideration, the
defendant was to execute and register the Sale Deed. It is the case of the
plaintiff that he has been always ready and willing to proceed with the sale,
but, however the defendant has not come forward to perform his part of the
contract. Thereafter, on 16.02.2010, the plaintiff had issued a legal notice
expressing his readiness and willingness to perform his part of the contract.
Though the defendant had received the said notice, she did not come forward
either to execute the Sale Deed in favour of the plaintiff or to reply to the said
legal notice. Therefore, the plaintiff has come forward to file the suit
O.S.No.38 of 2010 on the file of the Subordinate Court, Panruti.
3. The defence to the suit was that the defendant had no intention
to sell the property that too at a low price of Rs.1,15,000/-. It is her case that
she had borrowed a sum of Rs.1,00,000/- under two tranches, the first a sum
of Rs.60,000/- on 10.02.2007 and the second a sum of Rs.40,000/- on
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S.A.No635 of 2022
10.03.2008. She would contend that in the month of February 2007, the
defendant had approached the plaintiff with a request to extend her a loan.
The plaintiff insisted on a security in the form of a promissory note and a
registered Agreement of Sale in respect of the immovable property for the
borrowal amount and she never offered to sell the property. Moreover, the
price of land was Rs.10,00,000/- per acre and therefore, there was no
necessity for the defendant to sell the property for a meager sum of
Rs.1,15,000/-. She would therefore seek to have the suit dismissed.
4. The Trial Court had framed the following issues on considering
the pleadings:
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bgw mUfuh>
2/ fpiua cld;gof;if gj;jpuk; cz;ikahdjh> kw;Wk;
bry;yj;jf;fjh>
3/ thjpf;F ntW vd;d ghpfhuk;>
4/ thjp jug;gpy;. thjp uhkjh!; th/rh/1 Mft[k;. Mtz
vGj;Jf;fhuh; rk;kdfehjd; th/rh/2 Mft[k; tprhhpf;fg;gl;L.
th/rh/M/1 Kjy; th/rh/M/3 FwpaPL bra;ag;gl;Ls;sd>
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S.A.No635 of 2022
5. The plaintiff had examined himself as P.W1 and one
Samanaganathan as P.W2 and marked Exhibits A1 to A3. On the side of the
defendant, the defendant had examined herself as D.W1. One Rajendran and
Thirunavukarasu were examined as D.W2 and D.W3 respectively. She had
marked Ex.B1, which is the earlier Agreement of Sale dated 10.02.2007
entered into between herself and the plaintiff.
6. The Trial Court dismissed the suit, against which, the plaintiff
had filed an appeal in A.S.No.37 of 2018 on the file of the I Additional
District and Sessions Court, Cuddalore. The learned Judge, on considering
the evidence on record, came to the conclusion that the document and
surrounding circumstances would indicate that the Agreement of Sale was
executed as a security for the borrowal and was not intended to be acted
upon. Taking into account the admission of the defendant that she was ready
to pay the debt amount, the learned Judge had allowed the appeal and set
aside the decree passed by the Trial Court and directed the defendant to pay
the sum of Rs.1,00,000/- which the defendant admitted that he had borrowed
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S.A.No635 of 2022
with interest at the rate of 12% from the date of the execution of Ex.A1 till
the date of realizaion. Aggrieved by this judgment and decree, the plaintiff is
before this Court.
7. Heard the learned counsel for the plaintiff and perused the
materials available on record.
8. The plaintiff has come forward with a suit for specific
performance stating that he has entered into an Agreement of Sale with the
defendant on 10.03.2008 for a total sale consideration of Rs.1,15,000/-. The
plaintiff has not made any reference to the earlier Agreement of Sale, marked
as Ex.B1. Under the Agreement of Sale-Ex.A1, the balance sale
consideration payable was only a sum of Rs.15,000/-, for which a period of
two years i.e till 09.03.2008 is granted to the plaintiff to complete the
transaction. The records would indicate that there is absolutely no
explanation for the silence on the part of the plaintiff from the date of the
execution of the Sale Deed till 16.02.2010, when the legal notice was issued.
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S.A.No635 of 2022
The fact that two years period was given for a minuscule sum of Rs.15,000/-
would prima-facie indicate that the Agreement of Sale was not intended to be
an agreement, but has only been offered as a security. If really the agreement
was to be acted upon and when the amount outstanding was only a sum of
Rs.15,000/-, the plaintiff would have taken immediate steps to conclude the
contract. Therefore, it is obvious and clear that the document was intended
only as a security.
9. Be that as it may, even if it is taken to be an Agreement of Sale,
then the plaintiff is bound to prove the readiness and willingness from the
date of the Agreement till the date of the payment. Such readiness and
willingness is conspicuously absent in the instant case. There is not a single
reminder to the defendant to receive the balance sale consideration and
execute the Agreement of Sale from 10.03.2008 onwards. It is only on
16.02.2010, which is a few days prior to the time granted for making the
balance sale consideration (i.e 09.03.2010) that the legal notice came to be
issued. Therefore, there is a deafening silence on the part of the appellant to
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S.A.No635 of 2022
show that he had a necessary wherewithal and he has been ready and willing
to perform his part of the contract. The suit for specific performance is the
discretionary relief and unless the appellant is able to prove his readiness and
willingness, he is not entitled to a decree for specific performance.
Considering the fact that in the instant case, the above is absent, I see no
reason to interfere with the judgment and decree of the lower appellate Court
and further, the appellant / plaintiff has not made out any substantial question
of law. Accordingly, the Second Appeal is dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
11.08.2022
Index : Yes/No
Speaking order/non-speaking order
srn
To
1. The IV Additional District and Sessions Judge at Coimbatore.
2. The Principal Subordinate Judge, Coimbatore, Kodumudi.
3. The Section Officer, V.R.Section, High Court, Madras.
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S.A.No635 of 2022
P.T.ASHA, J.,
srn
S.A.No.635 of 2022
and
C.M.P.No.12752 of 2022
11.08.2022
https://www.mhc.tn.gov.in/judis
