M.K.Majeeth Kamal Batshah (Died) vs M.K.Atham
2022 Latest Caselaw 18233 Mad

                                                                               A.S.(MD)No.1 of 2022




                        BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                   Dated : 19.12.2022

                                                       CORAM

                                    THE HONOURABLE MRS.JUSTICE N.MALA

                                              A.S.(MD)No.1 of 2022
                                                     and
                                        C.M.P(MD)Nos.77 and 4867 of 2022

                1.M.K.Majeeth Kamal Batshah (Died)
                2.Abdulla Beevi
                3.Abdul Hameed
                4.Kaja Maideen
                5.Sabina Begam                                          ... Appellants/Defendants
                (Appellants 2 to 5 are brought on
                record as LRS of the deceased sole
                appellant vide Court order dated
                13.12.2022 in CMP(MD)No.9907 of
                2021 in AS(MD)SR.No.12037 of 2019)

                                                          Vs

                M.K.Atham                                                ...Respondent/Plaintiff

                PRAYER: Appeal Suit filed under Section 96 of Code of Civil Procedure, to
                set aside the judgment and decree dated 21.10.2013 passed in O.S.No.20 of
                2010 on the file of the District Judge, Sivagangai.

                                  For Appellant     : Mr.N.Rahamadullah
                                  For Respondent    : Mr.J.Jeyakumaran




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                                                                              A.S.(MD)No.1 of 2022

                                                    JUDGMENT

The appeal arises out of a suit for specific performance of an agreement

of sale dated 22.08.2007 The defendants are the appellants in the above first

appeal. The plaintiff and first defendant are brothers. The defendant is the

owner of the suit property having purchased the same under a sale deed, dated

12.05.2005 (Exhibit B.6). The plaintiff and defendant entered into an

agreement of sale of the suit property which is a coconut garden admeasuring

6 acres and 8 cents in S.Nos.19/7, 19/8A, 19/8B, 19/9, 19/10, 19/11, 19/12A,

19/12B and 19/13 on 22.08.2007 for a sale considertion of Rs.20,00,000/-

(Rupees Twenty Lakhs only). An advance of Rs.15,00,000/- (Rupees Fifteen

Lakhs only) was paid by the plaintiff to the defendants on the date of the

agreement and the balance of Rs.5,00,000/- (Rupees Five Lakhs only) was

agreed to be paid within a period of 1 year from the date of agreement. The

suit agreement was a registered agreement. As the defendant was evading

performance, the plaintiff issued an advocate notice on 06.08.2008

demanding performance to which the defendant replied on 19.08.2008 raising

untenable pleas, therefore the plaintiff filed the suit for specific performance

of the agreement of sale deed dated 22.08.2007.

2. The defendant contested the suit and in his written statement referred

to the back drop of facts leading to the purchase of the suit property by him https://www.mhc.tn.gov.in/judis

A.S.(MD)No.1 of 2022

vide sale deed dated 12.05.2005. The defendant while denying all the

contentions raised in the plaint stated that the sale agreement was executed to

enable the plaintiff to raise bank loan for setting up poultry and Diary farm

business and that no consideration passed under the agreement. The defendant

therefore submitted that the suit deserved to be dismissed.

3. The trial Court on the basis of the pleadings of the both parties

framed the following issues:

1. Whether the plaintiff is entitled to the relief of specific performance of the sale agreement, dated 22.08.2007 as prayed for?

2. To what other relief, the plaintiff is entitled?

4. The trial Court on the basis of the pleadings of the parties and the

evidence on record decreed the suit. Aggrieved by the judgment and decree of

the trial Court, the defendant has filed the above appeal.

5. The learned counsel for the appellants submitted that the suit

agreement was executed for enabling the plaintiff to raise loan from the Bank

for setting up poultry and Dairy farm business. The learned counsel submitted

that absolutely no consideration passed under the agreement. The learned

counsel for the appellant further submitted that the lower Court failed to note

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A.S.(MD)No.1 of 2022

that the plaintiff did not satisfy the mandatory requirements of Section 16(C)

of the Specific Relief Act and hence ought to have non-suited the plaintiff.

The learned counsel referred to the inconsistencies in the plaintiff's side

evidence in support of his submissions and prayed that the appeal be allowed.

6. In reply, the learned counsel for the respondent submitted that the

suit sale agreement was a registered agreement and that the submission of the

appellant's counsel that the suit sale agreement was executed for enabling the

respondent to raise Bank loan is frivolous submission because no Bank would

advance loan on a mere agreement of sale. The learned counsel for the

respondent further submitted that the plaintiff satisfied the mandatory

requirements of Section 16 (C) of Specific Relief Act and in any event neither

any plea was raised by the appellant in this regard nor was an issue framed by

the trial Court. The learned counsel for the respondent referred to the

defendant's evidence to support his submissions and prayed that there are no

merits in the appeal and hence the trial Court judgment and decree should be

affirmed.

7. I have heard both side counsels and perused the materials on record.

The issues that raise for determination in this appeal are as under:

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(1) Whether the suit sale agreement is valid and enforceable in law?

(2) Whether the plaintiff has satisfied the mandatory requirements of

Section 16(C) of the Special Relief Act?

(3) To what other relief is the plaintiff entitled?

The parties will be referred to as per their rank in the suit for sake of

convenience.

Back drop of facts:

8.The undisputed facts of the case are that the plaintiff and defendant

are own brothers and that the defendant is the owner of the suit property.

According to the plaintiff, he entered into a registered agreement for sale of

the suit property with the defendant on 22.08.2007 for a sale consideration of

Rs.20,00,000/- and an advance of Rs.15,00,000/- was paid on the date of the

sale agreement. The time for performance was one year. As the defendant

evaded performance the plaintiff sent a notice on 06.08.2008 and the

defendant sent a reply on 19.08.2008 making false and frivolous averments

therein and hence the plaintiff filed the suit. The defendant, on the other hand,

though admitted the execution of the suit sale agreement submitted that it was

executed only to facilitate the plaintiff to raise bank loans for setting up

poultry and Dairy farm business. The defendant denied the receipt of any https://www.mhc.tn.gov.in/judis

A.S.(MD)No.1 of 2022

consideration under the sale agreement. The defendant therefore prayed for

the dismissal of the suit.

DISCUSSION:

9.As far as the first aspect of validity of the suit sale agreement is

concerned, the learned counsel for the appellant has raised three grounds. The

first objection is that the agreement was a sham and nominal transaction and

was entered into for the purpose of enabling the plaintiff to raise loan from

the Bank. The second objection is as to passing of consideration and third

objection is with regard to limitation. I will consider each of the objections

separately.

(i) Agreement sham and Nominal Transaction:

It is the case of the defendant that the suit sale agreement was sham and

the real intention was only to facilitate the plaintiff to raise loan from the

Bank for starting a poultry and Diary farm business. It is unfathomable as to

how a mere sale agreement would enable the plaintiff to raise loan. It is well

settled that no title passes under a mere sale agreement. Therefore this

contention of the learned counsel for the appellant cannot be accepted. The

defendant in his cross examination has stated as follows:

“th.rh.M.1. fpua xg;ge;jj;jpw;F gpwF vd; jk;gp thjp nrhj;jpd; kPJ tq;fpapy; fld; vJTk; thq;fpdhuh vd;why;

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A.S.(MD)No.1 of 2022

vdf;F njhpatpy;iy. ghy; gz;izNah Nfhop gz;izNah thjp itj;jpUe;jhuh vd;why; vdf;F njhpa ,y;iy.”

From the evidence of the defendant, it is lucid that the defense is set up

only to wriggle out of the sale agreement. It is admitted that the plaintiff and

defendants are own brothers and if really the sale agreement was entered into

for the purpose of availing loan the defendant would have enquired about it. I

am therefore of the view that the plea that the sale agreement is sham and

nominal transaction is untenable and hence rejected.

(ii) Passing of consideration:

It is the contention of the learned counsel for the appellant that the

defendant did not receive any consideration under the sale agreement. The

initial burden is on the plaintiff to prove the passing of consideration. In this

regard, the evidence of the plaintiff as P.W.1, P.W.2 and P.W.3, who are the

attestors of the sale agreement is cogent and consistent. All the three

witnesses consistently state that the consideration was paid in the Sub-

Registrar's office after signing the sale agreement. The evidence of the

plaintiff's witnesses is extracted to show how consistently they have deposed

on passing of consideration.

“Evidence of P.W.1: Nkw;nrhd;d &.15 yl;rKk; rhh;gjpthsh; Kd;dpiyapy; nfhLf;fg;gl;ljh vd;why; ,y;iy. ntspapy; itj;J nfhLf;fg;gl;lJ. Mdhy; rhh;gjpthshplk; gzk; https://www.mhc.tn.gov.in/judis

A.S.(MD)No.1 of 2022

ngw;Wf;nfhs;sg;gl;ljh vd Nfl;lhh;. mg;NghJ gpujpthjpAk; xg;Gf;nfhz;lhh;.

Evidence of P.W.2: fpiuaj;njhif &.20 yl;rj;ij vq;F itj;Jf;nfhLj;jhh; vd;why; &.15 yl;rk; jhd; thjp Mjk; nfhLj;jhh;. vq;F itj;J nfhLj;jhh; vd;why; rpq;fk;Gdhp rhh; gjpthsh; mYtyfj;jpd; Kd;G fpiua Mtzj;jpy; ifnaOj;J Nghl;L tpl;L te;J gzj;ij ngw;Wr;nrd;whh;. Gpujpthjp rhh;gjpthsh; mYtyfj;jpy; ifnaOj;J Nghl;Ltpl;L ntspapy; tuhz;lhtpw;F te;J gzj;ijg; ngw;Wf;nfhz;lhh;.

Evidence of P.W.3: gjpAk;NghJ gzk; nfhLf;ftpy;iy vd;why; rhpjhd;. mYtyfj;jpy; gj;jpuj;ij gjpT nra;jgpd; mYtyfj;jpw;F ntspapy; te;J 15> 20 epkpl Neuj;jpy; gzj;ij nfhLj;jhh;fs;. vq;Nf itj;J nfhLj;jhh;fs; vd;why; gjpthsh; mYtyfj;jpw;F ntspNa thuhz;lhtpy; itj;J nfhLj;jhh;fs;.”

From the evidence of the plaintiff, it is clear that the part consideration

of Rs.15,00,000/- was paid by the plaintiff. The evidence of the defendant in

contrast is not trust-worthy. The defendant has not examined any other person

except himself. The defendant as D.W.1 states as follows in his cross-

examination.

“fpuk xg;ge;jk; th.rh.M.1id gbj;Jg; ghh;j;J jhd; ifnaOj;Jg;Nghl;Nld;. th.rh.M.1y; gzk; ngw;Wf;nfhz;ljhf vOjg;gl;bUg;gij ehd; gzk; ngwhky; ifnaOj;J NghLNtd; vd;W Ml;Nrgid nra;atpy;iy. rhl;rp jhdhf vd; jk;gp vd;gjhy; Ml;Nrgid nra;ahky; ifnaOj;J Nghl;Nld; vd;W $Wfpwhh;.”

This evidence when read with his evidence that he has entered into

several transaaction and that he used to sign only after reading will clearly

establish that the defendant's evidence is unnatural and unbelievable.

Therefore, from the evidence on record, it is clear that the agreement of sale is

supported by consideration and the contentions to the contrary are rejected.

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(iii) Limitation:

The learned counsel for the defendant made a feeble attempt to contend

that the plaintiff has abandoned the contract as he has filed the suit 1 ½ years

after the reply notice declining performance. At the outset, it is to be noted

that no such ground is raised in the grounds of appeal. A plea of limitation

was raised in the written statement and the same was rejected by the Trial

Court on the factual finding that the suit was filed within three years both

from the date of agreement as also the time fixed for performance. It is seen

that the delay in filing the suit was properly explained by the plaintiff in the

plaint. The plaintiff stated that as the defendant was his own brother, he was

trying to amicably settle the matter with the defendant through negotiations in

the presence of relatives and friends. I am therefore of the view that the said

objection cannot be entertained.

10. The next aspect is the contention of the appellant's counsel that the

plaintiff has neither averred nor proved that he was ever ready and willing to

perform his part of the contractual obligations. The learned counsel therefore

submits that the plaintiff's suit should be dismissed for non-compliance of the

mandatory requirements of Section 16(C) of the Specific Relief Act as it goes

to the root of the matter. The learned counsel for the respondents on the other

hand submitted that there are pleadings satisfying the requirements of the https://www.mhc.tn.gov.in/judis

A.S.(MD)No.1 of 2022

statute but the form and letter of the statute are not replicated. The learned

counsel for the respondent drew my attention to paragraph 5 of the plaint. The

learned counsel for the respondent further submitted that there is no plea in

the written statement regarding non-compliance of Section 16(C) of the

Specific Relief Act and further no issue was also framed by the trial Court in

this regard.

11. Therefore, it is to be seen if on facts, the plaintiff has satisfied the

requirements of the statute on readiness and willingness to perform his part of

the contractual obligations. Before launching on the factual matrix with

respect to this issue, I would like to delve into the legal aspect first.

12. In Ramesh Chandra Chandiok Vs Chuni Lal Sabharwal reported

in AIR 1971 SC 1238, the Hon'ble Supreme Court has held as follows:

“6......Readiness and willingness cannot be treated as a straight jacket formula. These have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned.”

In Syed Dastagir Vs T.R.Gopalakrishna Shetty reported in 1996 (6)

SCC 337, it was observed as:

“9....Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section https://www.mhc.tn.gov.in/judis

A.S.(MD)No.1 of 2022

16(c) of the Specific Relief Act, 1963 does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of 'readiness and willingness' has to be in spirit and substance and not in letter and form.”

In Motilal Jain Vs Ramdasi Devi reported in 2000 (6) SCC 420, it was

held as follows:

“9...It is thus clear that an averment of readiness and willingness in the plaint is not a mathematical formula which should only be in specific words. If the averments in the plaint as a whole do clearly indicate the readiness and willingness of the plaintiff to fulfil his part of the obligations under the contract which is the subject-

matter of the suit, the fact that they are differently worded will not militate against the readiness and willingness of the plaintiff in a suit for specific performance of contract for sale.”

13. Keeping in mind the above legal principles, let me now scrutinise

the facts, I would pre-empt the exercise by stating that there is a difference

between total lack of pleading and unartful expression in pleading. It is to be

noted that if from the reading of the entire plaint, the statutory requirements

are found to be satisfied, then the plaintiff cannot be non-suited. In this

regard, paragraph 5 of the plaint is relevant and it reads as follows:

“5.Nkw;gb fpiua vf;hpnkd;by; fz;lgbAk; thjpAk; jhd; nrhe;j nrytpy; fpiuag;gj;jpuk; vOjpAk; gjpe;J nfhLf;ff;NfhhpAk;> ,e;jg;gpujpthjpiaAk; mZfpAk;> Nfl;ljw;Fk;> mjw;Fk; gjpe;J jUtjhff; $wpAk;> tPz; fhyk; flj;jp tUtijAk;> mwpe;Jk;> ,e;j thjpAk;

tof;FiuQh; %yk; gpujpthjpf;Fk; 06.08.2008k; Njjpad;W

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yhah; Nehl;lPRk; mDg;gpaijAk; ngw;Wf;nfhz;Lk;> gjpy; Nehl;lPRk; ngha;ahd tpguq;fisf;fz;Lk; 19.08.2008k; Njjpad;Wk; mDg;gpAs;shh;. ,jw;fpilNa cwtpdh;fs;

Ngr;R thh;j;ijfs; elj;jp te;jijAk; gpujpthjp jl;bf;fopj;J tpl;Lk;> jw;nghOJk; nrd;w 09.04.2010k; Njjpad;Wk; vf;fphpnkz;Lf;Fk; khwhf mijAk; kiwj;Jk; tpw;fpiuaq;fs; gpwj;jpapy; nra;aTk; jPtpu K];jpGld; nray;gl;Lk; tUfpwhh;. mt;thW nra;J tpLk;gl;rj;jpy;

thjpf;Fk; mstpl Kbahj f\;l> e\;lk; Vw;gl;LtpLk;.”

A reading of the particular paragraph with the entire plaint shows that

the plaintiff was ever ready and willing to perfom his part of the contract. It is

to be borne in mind that the plaintiff paid substantial amount of

Rs.15,00,000/- out of the total sale consideration of Rs.20,00,000/-, even at

the time of the agreement. Further, the learned counsel for the respondent has

rightly contended that absolutely no plea was raised in the written statement

on readiness and willingness by the defendant and therefore, the trial Court

had also not framed any issue. The learned counsel for the appellant relied on

the judgment of the High Court of Delhi in the case of Dinesh Kumar Jain vs

Sanjeev Chaudhary and on the judgment of this Court in the case of Jugraj Vs

P.Sankaran in support of his submission that plaintiff has not established that

he was ready and willing to perform his part of the contract.

14. I have gone through the judgments and I am of the opinion that they

do not apply to the facts of the case.

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15. In my view, an error, mistake, in advertence of the learned counsel,

who drafted the plaint should not prejudice the plaintiff. It is true that the

statute obligates the plaintiff to aver readiness and willingness, but can such

statutory requirement he fulfilled by parroting the exact words or by verbal

loyalty to the statue. I think not, in my view, if on a construction of the entire

plaint averments readiness and willingness can be inferred, the plaintiff

cannot and should not be non-suited. The facts of the case as disclosed by the

pleadings and evidence clearly establish that the plaintiff has performed his

part of the contract by paying substantial portion of the consideration on the

date of the agreement itself and by sending the legal notice within the time

stipulated under the agreement demanding the defendant to execute the sale

Deed. It is settled legal proposition that procedure is handmaid of justice. The

form prescribed under Order 6 Rule 3 of Civil Procedure Code is procedural

in nature. Even the form prescribed has for its object the advancement of

cause of justice and it is not intended to defeat or short circuit the decision on

merits. When there is a choice between form and substance, substance should

always prevail. The facts as disclosed would clearly show that the averments

in the plaint when constructively read as a whole establish that the statutroy

requirements are fulfilled. I therefore answer this issue in favour of the

plaintiff and against the defendant.

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What Relief:

16.On a conspectus of the entire evidence, it is seen that the breach of

contract is by the defendant and not the plaintiff. The learned counsel for the

plaintiff at the time of argument submitted that the defendant filed the appeal

belatedly and in the interregnum the plaintiff filed Execution Petition and got

the sale deed executed through Court and only at the time of delivery of

possession the defendant pressed the appeal. The learned counsel for the

defendant on the other hand submitted that as the plaintiff instituted the

execution proceedings, he was contesting the same and therefore the appeal

could not be prosecuted diligently. I am of the view that here also the conduct

of the defendant is suspect. The defendant wanted to some how drag on the

proceedings and has approached this Court at the eleventh hour. This is

evident from the fact that though the appeal was filed in the year 2019, it was

numbered after three years (ie) in 2022 only. It is to be noted here that the

plaintiff paid 75% of the sale consideration even on the date of agreement and

it is the defendant who has been evading to execute the sale. I am therefore of

the considered view that the defendant is solely responsible for the breach of

contract and so the plaintiff cannot be non-suited. I am therefore of the view

that there are no merits in the appeal.

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17. For all the foregoing reasons, the appeal is dismissed with costs.

Consequently, connected miscellaneous petitions are closed.

19.12.2022 Index : Yes / No Internet : Yes / No sn

To

1.The District Judge, Sivagangai.

2.The Record Keeper, Vernacular Records, Madurai Bench of Madras High Court, Madurai.

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N.MALA, J sn

A.S.No.1 of 2022

19.12.2022

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