Madras High Court
M.Kanniyappan vs Mr.G.Babu on 30 March, 2022
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.03.2022
CORAM:
THE HONOURABLE MR. JUSTICE N.ANAND VENKATESH
SA.No.168 of 2014
and
MP No.1 of 2014
M.Kanniyappan ... Appellant
Vs.
Mr.G.Babu ... Respondent
Prayer: Second Appeal filed under section 100 of the Code of
Civil Procedure to set aside the Judgement and decree passed in
A.S.No.8 of 2012 dated 23.08.2013 on the file of the II Additional
District and Sessions Judge, Vellore at Ranipet, Vellore District
revising the judgement and decree passed in O.S.No.93 of 2005
dated 20.09.2010 on the file of the Sub-Court Ranipet, Vellore
District.
For Appellant : Mr.K.Mohanamurali
For Respondent : Mr.T.R.Rajaraman
https://www.mhc.tn.gov.in/judis
2
JUDGMENT
The defendant is the appellant in this second
appeal.
2. The respondent / plaintiff filed a suit seeking
for the relief of specific performance based on the agreement of
sale dated 07.09.2002.
3. The case of the plaintiff is that the defendant is
the owner of the suit property and they entered into an
agreement of sale on 07.09.2002 marked as Ex.A1. As per the
agreement, the total sale consideration was fixed as
Rs.2,00,000/- and even on the date of agreement, the plaintiff
had paid a sum of Rs.1,75,000/- as advance. Therefore, what
remained was the balance sale consideration of Rs.25,000/- to be
paid by the plaintiff to the defendant and thereafter, the
defendant was expected to execute the sale deed in favour of
the plaintiff.
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4. The further case of the plaintiff is that the
defendant was repeatedly approached by stating that the
plaintiff is ready and willing to perform his contract and inspite
of the same, the defendant is said to have evaded to accept the
balance sale consideration and execute the sale deed in favour of
the plaintiff. Hence, a legal notice came to be issued to the
defendant on 30.08.2005, marked as Ex.A2. This was received by
the defendant on 01.09.2005 and the acknowledgment was
marked as Ex.A3. The defendant did not act upon the legal
notice and hence, the suit came to be filed by the plaintiff on
06.09.2005, seeking for the relief of specific performance.
5. The defendant took a stand that there was no
agreement of sale between the parties and that the plaintiff had
misused the signature made in the blank stamped papers when
the defendant had taken a loan from the plaintiff. The defendant
specifically pleaded that he had obtained a loan of Rs.10,000/-
from the plaintiff and had signed in some empty stamped papers
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which was retained as a security. The defendant further stated
that the entire loan amount was repaid with interest and inspite
of the same, the signed papers were not returned back and these
papers were utilized for the purpose of fabricating a sale
agreement. Hence, the defendant rejected the very claim made
by the plaintiff and sought for the dismissal of the suit.
6. The Trial Court on considering the facts and
circumstances of the case and on appreciation of oral and
documentary evidence, dismissed the suit through judgement
and decree dated 20.09.2010 after finding that Ex.A1 was only
given as a security for the debts and it cannot be treated as an
agreement of sale.
7. Aggrieved by the same, the plaintiff filed an
appeal in A.S.No.8 of 2012 before the IInd Additional District and
Sessions Judge, Vellore. The Lower Appellate Court on re-
appreciation of the oral and documentary evidence and after
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considering the findings of the Trial Court, allowed the appeal
and setaside the judgement and decree of the Trial Court. As a
consequence, the suit was decreed as prayed for. Aggrieved by
the same, the defendant has approached this Court and filed the
present Second appeal.
8. When the second appeal was admitted, the
following substantial questions of law were framed by this Court
:-
(a) Whether the First Appellate Court is correct
in reversing the judgement and decree in
O.S.No.93 of 2005 when the plaintiff fail to prove
his ready and willingness from the date of
agreement to sell dated 07.09.2002 and further
failed prove his ready and willingness even by an
order dated 19.10.2005.
(b) Whether the learned Appellate Court is
correct in shifting the burden of the defendant
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when the plaintiff will have to establish in his
case.
9. Heard the learned counsel for the Appellant and
the learned counsel for the respondent and this Court has also
carefully perused the materials available on record and the
findings rendered by both the Courts below.
10. There are two issues that requires the
consideration of this Court. The first issue is with regard to the
nature of document that was marked as Ex.A1. The 2nd issue is as
to whether the plaintiff was ready and willing to perform his part
of the contract, if ultimately Ex.A1 is held to be a sale
agreement.
11. It is pertinent to note that the defendant
pleaded in the written statement as if he obtained a loan of a
sum of Rs.10,000/- from the plaintiff and he had signed in blank
stamped papers as a security. Thereafter, the defendant filed an
additional written statement to the effect that the suit is time
barred, if the alleged document is taken to be a sale agreement.
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During the evidence, the defendant who examined himself as
DW1 came up with a stand that he received a sum of
Rs.2,00,000/- from the plaintiff as loan and had signed in blank
stamped papers as security. Yet another issue that requires the
consideration of this Court is the fact that the first witness in the
sale agreement is none other than the son of the defendant.
12. The Lower Appellate Court after considering all
these factors came to a categoric conclusion that the defendant
has not established that Ex.A1 was given as a security for the
loan transaction and hence, gave a finding to the effect that
Ex.A1 is an agreement of sale.
13. The above findings rendered by the Lower
Appellate Court was based on appreciation of evidence and this
Court does not find any perversity in the findings of the Lower
Appellate Court. The plaintiff had proved Ex.A1 to be a sale
agreement by examining one of the attesting witness as PW2.
Therefore, this Court holds that Ex.A1 is a sale agreement and to
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that extent, the findings of the Lower Appellate Court is upheld.
14. In a suit for specific performance, it is the duty
of the plaintiff to establish readiness and willingness on his part.
The Court while exercising its discretionary power has to satisfy
itself by assigning proper reasons as to whether the plaintiff has
proved readiness and willingness in performing his part of
contract. A careful reading of the judgement of the Lower
Appellate Court shows that the Lower Appellate Court has made
a passing remark to the effect that the plaintiff is ready and
willing to perform his contract and the same has been proved
sufficiently. The Lower Appellate Court has not made any
discussion as to how the plaintiff has proved the readiness and
willingness on his part. This is more so since the sale agreement
is dated 07.09.2002 and the legal notice was issued only on
30.08.2005. As to what happened during this interregnum period
between 2002 to 2005, the legal notice states that the plaintiff
had approached the defendant many times and expressed his
readiness and willingness to pay the balance sale consideration.
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There were certain questions which were put during the course
of evidence in this regard. The Lower Appellate Court ought to
have discussed the evidence available on record and should have
rendered a finding on the issue of readiness and willingness by
assigning proper reasons. The judgement of the Lower Appellate
Court is completely bereft of reasons in an issue which is the very
basis while granting a decree for specific performance. Hence,
this Court holds that the finding of the Lower Appellate Court on
the issue of readiness and willingness requires interference. The
1st substantial question of law is answered accordingly.
15. This Court does not want to answer the 2nd substantial
question of law since to answer this question, this Court will have
to deal with the merits of the case. Since this Court is intending
to remand the matter back to the file of the Lower Appellate
Court, this Court does not want to render any findings on merits.
16. In view of the above discussion, this Court upholds the
finding of the Lower Appellate Court to the effect that Ex.A1 is
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an agreement of sale which is capable of being acted upon to
seek for the relief of specific performance. However, insofar as
the findings with respect to readiness and willingness is
concerned, the same requires the interference of this Court,
since the Lower Appellate Court did not deal with the evidence
available on record and assign proper reasons to come to a
conclusion that the plaintiff was ready and willing to perform his
part of the contract. For this limited purpose, the matter is
remanded back to the file of the Lower Appellate Court and the
Lower Appellate Court is directed to hear both the sides only on
this issue and shall pass final judgment within the time stipulated
by this Court.
17. In the result, this Second appeal is partly
allowed. The matter is remanded back to the file of the IInd
Additional District Judge, Ranipet. The learned Judge shall fix a
date for final arguments in the appeal and the arguments shall be
confined only to the issue of readiness and willingness. The final
judgment shall be passed on or before 30.06.2022. After the final
judgment is passed, a compliance report shall be sent to this
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Court.
18. The Registry is directed to immediately send
back the original records to the IInd Additional District Judge,
Ranipet. Consequently, the connected miscellaneous petition is
closed.
30.03.2022
Speaking Order
Index : Yes / No
Internet : Yes / No
rka
https://www.mhc.tn.gov.in/judis
N.ANAND VENKATESH.,J
rka
To
1. The Sub-Court Ranipet, Vellore District.
2. The II Additional District and Sessions Judge
Ranipet, Vellore
Copy To:-
The Section Officer
VR Section, High Court
Madras.
SA.No.168 of 2014
30.03.2022
https://www.mhc.tn.gov.in/judis
