S.Vijaya Babu vs T.P.Govindarajan
2022 Latest Caselaw 4793 Mad

                                                                                                  S.A.No.238 of 2014

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                         DATED : 10.03.2022

                                                              CORAM :

                                    THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH

                                                  Second Appeal No.238 of 2014

           S.Vijaya Babu                                                                ...   Appellant

                                                             -Vs-

           T.P.Govindarajan                                                             ...   Respondent


           Prayer : Second Appeal under Section 100 of C.P.C., against the judgment and decree dated
           dated 02.12.2012 made in A.S.No.142 of 2009 on the file of Additional District and Sessions
           Judge, Fast Track Court No.III, Coimbatore confirming the judgment and decree dated
           05.08.2009 made in O.S.No.612 of 2007 on the file of III Additional Subordinate Judge,
           Coimbatore.


                                  For Appellant      :    Mr.L.Mouli

                                  For Respondent     :    Mr.R.Bharath Kumar


                                                           JUDGMENT

The plaintiff is the appellant in this Second Appeal.

2. The case of the plaintiff is that he entered into an agreement of sale with the

defendant on 27.08.1999, marked as Ex.A.1. As per the sale agreement, the total sale

consideration was fixed at Rs.5,00,000/- and the plaintiff paid a sum of Rs.1,00,000/-

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towards advance. A time limit of 11 months was also fixed under the agreement. Insofar as

the obligation that was fixed on the defendant is concerned, he was expected to give the

encumbrance certificate for a particular period, pay and settle all the taxes and dues and

measure and fix the boundary stones in the property. The 11 month period expired on

26.07.2000. By then, the agreement was extended on 26.06.2000 for a further period of 11

months and a further advance of Rs.1,00,000/- was paid by the plaintiff to the defendant

which is evident from Ex.A.2. The 11 months period that was fixed on 26.06.2000 came to

an end on 25.05.2001. However, in the meantime, the second extension took place on

25.04.2001 and the time was extended upto 31.12.2001 and a further advance of

Rs.2,00,000/- was paid by the plaintiff to the defendant. This is evident from Ex.A.3.

3. There was one more extension that took place on 15.12.2001 and this was the

third extension, whereby the period of agreement was extended for one year and the

plaintiff paid a further sum of Rs.75,000/- to the defendant. This is evident from Ex.A.4. By

the time, the agreement was extended on the third occasion, the plaintiff had paid a sum of

Rs.4,75,000/- out of the total sale consideration of Rs.5,00,000/-.

4. The further case of the plaintiff is that the defendant did not come forward to

execute the sale deed and the agreement once again came to be extended for the fourth

time on 10.12.2004 for a period of two years. This is evident from Ex.A.5. The two years

period also expired on 09.12.2006. The plaintiff issued a legal notice on 10.08.2007, which

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was marked as Ex.A.8 and called upon the defendant to execute the sale deed and also

expressed his willingness to pay the balance sale consideration of Rs.25,000/-. A reply was

given by the defendant to the said legal notice on 20.08.2007 and this was marked as

Ex.A.10. Left with no other option, the plaintiff proceeded to file the suit seeking for the

relief of specific performance or in the alternative to repay back the advance amount of

Rs.4,75,000/- with interest.

5. The defendant filed a written statement and took a stand that the sale agreement

dated 27.08.1999 is not a genuine document. According to the defendant, he had taken a

loan from a Cooperative Agricultural Bank and in order to repay back the same, he availed a

loan from one Gopinath in the year 1998. Since Gopinath was demanding for the repayment

of the loan, the defendant approached the plaintiff who was a money lender and a loan was

arranged. According to the defendant, the plaintiff was demanding for execution of some

documents as a pre-condition for the grant of loan. Hence, as a security, the sale agreement

was executed and the defendant never had the intention to sell the property to the plaintiff.

The further case of the defendant is that he was not able to repay back the loan with

interest and hence the extension of the period was made on the reverse side of the sale

agreement. Insofar as the extensions that took place in the year 2001 and 2004 as claimed

by the plaintiff, the defendant had completely denied the same and had taken a stand that it

is forged and fabricated. The defendant has also stated about the receipt of a legal notice

dated 21.11.2002 from the plaintiff, marked as Ex.B.1. In short, the defendant has sought

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for the dismissal of the suit on the merits of the case as well as on the ground that there is a

long lapse of eight years from the date of sale agreement and the date of filing of the suit

and that by itself disentitles the plaintiff from getting the relief of specific performance.

6. Both the Courts below, after considering the facts and circumstances of the case

and after analysing the oral and documentary evidence, concurrently held that the plaintiff is

not entitled for the relief of specific performance and the alternative relief of refund of the

advance amount of Rs.4,75,000/- along with interest was decreed. Aggrieved by the same,

the plaintiff has filed this Second Appeal.

7. When the Second Appeal was admitted, the following substantial questions of law

were framed.

i. Whether the Courts below erred in non-consideration of admissible documentary evidence exhibit A10 to prove that only Respondent is not ready and willing to perform his part of contract?

ii. Whether the Courts below erred in not considering the admissible documentary evidence Exhibit A13 to A15 to prove the conduct of the respondent to defeat the appellant's claim in the suit?

iii. Whether Courts below erred in recording the finding in holding that Exhibit A1 is a genuine document and it was executed, but no intention to sell the suit properties without any evidence on record?”

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8. Heard Mr.L.Mouli, learned counsel for the appellant and Mr.R.Bharath Kumar,

learned counsel for the respondent.

9. This Court also carefully perused the materials available on record and the findings

of the Courts below. Both the Courts below concurrently held that the sale agreement is

genuine and it was executed by the defendant in favour of the plaintiff and the Courts below

took into consideration the stand taken by the defendant in the reply notice wherein he had

refused to execute the sale deed only due to the rise in the market price. Thus, the initial

intent of the defendant to sell the property in favour of the plaintiff by virtue of the sale

agreement was found in favour of the plaintiff.

10. Both the Courts below while considering the issue with regard to the readiness

and willingness on the part of the plaintiff, concurrently held that there was lack of

willingness on the part of the plaintiff. The readiness connotes the financial capacity and the

willingness connotes the mental status. Insofar as the readiness is concerned, out of

Rs.5,00,000/-, the plaintiff had settled a sum of Rs.4,75,000/- and what remained was only

a small amount of Rs.25,000/-. Therefore there is no difficulty in concluding that there was

readiness on the part of the plaintiff. The whole difficulty arose while assessing the

willingness of the plaintiff to proceed further with the sale.

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11. The Courts below found that till the year 2002, the period of agreement got

extended from time to time and the same is evident from Ex.A.2 to A.4. Ex.A.4 is dated

15.12.2001 and this was the third extension which took place whereby the period was

extended for one year and a further amount of Rs.75,000/- was also paid by the plaintiff and

by then, the plaintiff had paid a sum of Rs.4,75,000/- to the defendant. The incidents that

took place thereafter was analysed in detail by the Courts below. The plaintiff, for reasons

best known to him, did not reveal the issuance of the legal notice dated 21.11.2002 to the

defendant. This document was also not marked on the side of the plaintiff. The issuance of

such a notice came to light only after it was pleaded by the defendant in the written

statement and it was marked on the side of the defendant as Ex.B.1. A careful reading of

this notice shows that the plaintiff was in a state of mind where he understood that the

defendant, in the guise of measuring the property and fixing the boundary stones, was in

fact evading the receipt of the balance consideration and execution of the sale deed in

favour of the plaintiff. The plaintiff has therefore called upon the defendant to comply with

the terms and conditions of the sale agreement within 15 days from the date of receipt of

the notice, failing which the plaintiff will be constrained to file a suit for specific

performance. Between 2002 to 2004 there was a total silence on the part of the plaintiff.

There is absolutely no explanation as to what happened during this period of two years.

This is one fact which stares on the face of the plaintiff who is seeking for the discretionary

relief of specific performance.

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12. It is seen that during December 2004 there is a fourth extension of the period of

agreement for a period of two years and this is marked as Ex.B1. Surprisingly this document

once again says that the extension is to enable the defendant to measure the property and

to fix the boundary stones. The size of the property is not such that it will take eight years

to measure the property and fix the boundary stones. Therefore, what is evident is that the

defendant was not coming forward to execute the sale deed by citing the very same reason

and for the reasons best known to the plaintiff, he was not approaching the Court of law and

filing the suit immediately even though the plaintiff was able to read the mind of the

defendant as early as in the year 2002 itself that the defendant is evading his obligations in

the sale agreement and was not prepared to execute the sale deed in favour of the plaintiff.

13. The second legal notice came to be issued in the year 2007 and thereafter the

plaintiff filed the suit during October 2007. Both the Courts below found that between the

execution of the agreement of sale and the filing of the suit, eight years had expired. This

was yet another issue that was put against the plaintiff. By then, the value of the property

had increased and the defendant had also stated so in the reply notice and this was yet

another factor which was taken into consideration by both the Courts below while exercising

their discretion under Section 20 of the Specific Relief Act. It is true that the conduct of the

defendant was not very genuine. Therefore when the Court exercised its discretion under

Section 20 of the Act, the conduct of the defendant also played a part. The lower appellate

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Court specifically goes into this issue also in the judgment and the Court balances the equity

and ultimately renders the finding to the effect that the plaintiff is not entitled for the relief

of specific performance and confirms the decree of the trial Court insofar as the refund of

the advance amount is concerned.

14. The learned counsel for the appellant, after taking through this Court with the

pleadings and the evidence that was available on record, submitted that the findings of both

the Courts below suffers from perversity. The learned counsel submitted that the readiness

and willingness on the part of the plaintiff is quite evident from the fact that the plaintiff had

already paid a sum of Rs.4,75,000/- out of a sum of Rs.5,00,000/- which is the total sale

consideration fixed under the sale agreement. The learned counsel also submitted that the

extension took place every time only on the request of the defendant who was not

measuring the property and fixing the boundary stones as agreed under the sale agreement.

The learned counsel submitted that even though the Courts below have commented upon

the conduct of the defendant, had erroneously held against the plaintiff and the discretion

that was exercised by both the Courts below does not satisfy the judicial standards and it is

capricious.

15. Per contra, learned counsel for the respondent submitted that both the Courts

below have rendered their findings after analysing the entire evidence available on record

and the relief of specific performance being a discretionary relief, cannot be granted for the

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mere asking and the Courts must be absolutely satisfied that the plaintiff deserves to be

granted the relief. The learned counsel submitted that while exercising the discretion under

Section 20 of the Act, the Courts below have given their reasoning and unless such

reasoning is based on surmises and conjectures, the same cannot be interfered by this Court

in exercise of its discretion under Section 100 of C.P.C. The learned counsel therefore

sought for the dismissal of the Second Appeal.

16. An inference on facts is a forbidden zone in a second appeal unless the appellant

is able to make out a case that the appreciation of evidence suffers from any form of

perversity. As a natural corollary, sans any perversity, merely because an alternative view is

possible on a reading of the evidence, that by itself would not constitute a legally valid

ground for interference under Section 100 of C.P.C. The Hon'ble Supreme Court in

Dagadabai (dead) by legal representatives -Vs- Abbas (alias) Gulab Rustum

Pinjari [2017 (13) SCC 705] has risen the standard while undertaking this exercise and

has held that the perversity of finding on facts must be to such an extent that no average

judicial person could ever record such a finding. The Hon'ble Supreme Court in Damodar

Lal -Vs- Sohan Devi and Others [2016 (3) SCC 78] has also indicated the safest

approach while analysing the perversity in findings. The Hon'ble Supreme Court has held

that the safest approach or the classic approach would be on the reasonable man's inference

on the facts. If for such a reasonable man, the conclusion on facts in evidence made by the

Courts below is a possible conclusion, there is no perversity. If not, the finding is perverse.

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Inadequacy of evidence or a different reading of evidence is not perversity. This explanation

sufficiently answers the substantial questions of law framed by this Court.

17. In the facts of the present case, it may be possible for this Court to reach a

different conclusion based on the reading of the evidence available on record. However,

that by itself is not a ground to interfere with the findings of both the Courts below since this

Court does not find any perversity in their findings.

18. In view of the above discussion, this Court is not inclined to interfere with the

judgment and decree of the Courts below and the substantial questions of law are answered

against the appellant. As a result, the Second Appeal stands dismissed. However,

considering the facts and circumstances of the case, there shall be no order as to costs.

19. It is however made clear that till the advance amount is repaid back with interest

as awarded by the trial Court, there shall be a charge on the property. This is in view of the

fact that the sale that had taken place in favour of the third party will not bind the plaintiff

since his agreement was prior to the sale that took place in favour of the third party.

10.03.2022 Index : Yes Internet : Yes KST

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To

1.The 1st Additional District Judge, Tindivanam

2.District Munsif, Vanur.

https://www.mhc.tn.gov.in/judis S.A.No.238 of 2014

N.ANAND VENKATESH, J.

kst

S.A.No.238 of 2014

10.03.2022

https://www.mhc.tn.gov.in/judis