Madras High Court

T.Subramani vs N.V.Karuppaiya on 15 September, 2022

                                                                               S.A.No.475 of 2022


                             IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED: 15.09.2022

                                                    CORAM

                                  THE HONOURABLE Ms. JUSTICE P.T. ASHA

                                               S.A. No.475 of 2022

                     T.Subramani                                        ...Appellant

                                                      Vs.

                     N.V.Karuppaiya                                     ... Respondent

                     Prayer: Second Appeal is filed under Section 100 of C.P.C., against
                     the Judgement and Decree dated 01.04.2021 passed in A.S.No.18 of
                     2018 on the file of the Sessions (Fast Track Mahila) Judge, Namakkal
                     confirming the Judgment and Decree dated 01.02.2018 passed in
                     O.S.No.416 of 2010 on the file of the Subordinate Judge, Namakkal.


                                   For Appellant   : Mr.P.Jagadeesan
                                   For Respondent : Mr.D.Shivakumaran




                     1/12



https://www.mhc.tn.gov.in/judis
                                                                                              S.A.No.475 of 2022


                                                          JUDGMENT

The unsuccessful plaintiff who has lost before the Courts below

in a suit for specific performance has filed the above appeal, the same

has been admitted on the following substantial questions of law:

''1) Whether the Lower Courts right in holding that the plaintiff failed to prove the due execution of the suit Agreement Ex.A1, especially, when the defendant categorically admitted his signature found in Ex.A1?

2) Whether or not the plaintiff proved the execution of Ex.A1 by examining the attestor of the document as PW2, who has spoken eloquently about the execution of the suit Sale Agreement Ex.A1?

3) Whether the Lower Courts right in holding that the plaintiff has not proved his readiness and willingness to perform his part of Contract, especially when he has paid almost the entire sale consideration and he issued the legal notice within the period of limitation calling upon the defendant to execute the Sale Deed in his favour?

4)Whether or not the Lower Courts right in not even considering the prayer for grant of permanent injunction restraining the defendant from alienating the suit property?''

https://www.mhc.tn.gov.in/judis S.A.No.475 of 2022

2. The brief facts which are necessary for disposing the second

appeal are as follows and the parties are referred to in the same

ranking as before the trial Court:

The plaintiff has filed the suit in O.S.No.416 of 2010 on the file

of the Subordinate Judge, Namakkal for specific performance of the

agreement of sale deed dated 10.01.2007. It is the case of the plaintiff

that under this agreement the plaintiff had agreed to purchase the suit

property belonging to the defendant for a total sale consideration of

Rs.2,00,000/-. On the date of the agreement Rs.1,90,000/- was paid as

advance and 18 months time was fixed for paying the balance sale

consideration of Rs.10,000/- and to have a sale deed executed. The

plaintiff would contend that the he has always ready and willing to

perform his contract and the defendant was reluctant to do so. The

plaintiff issued a legal notice on 28.11.2010 for which there was no

response. The plaintiff also came to learn that the defendant was

taking steps to sell the property to some third party. The defendant had

https://www.mhc.tn.gov.in/judis S.A.No.475 of 2022

filed a written statement inter-alia contending that the agreement of

sale executed in favour of the plaintiff was not intended to be a sale

and that apart the property in question was an ancestral property in

which the defendant had an undivided share. The defendant has

executed a settlement deed in favour of his wife on 28.07.2010 and

she has no right in that property.

3. The defendant would further submit that the documents had

been tampered with and an additional written statement was filed by

the defendant contending that the plaintiff and he were friends. As the

plaintiff was carrying on a money lending business the defendant had

borrowed Rs.50,000/- on 21.02.2007 and had signed 2 blank twenty

rupees stamp papers and two blank papers.

4. The defendant submitted that he had repaid the amount

borrowed with interest on 21.08.2007 and although he insisted upon

https://www.mhc.tn.gov.in/judis S.A.No.475 of 2022

the plaintiff to return the blank papers signed by him, however, the

plaintiff kept on buying time. It is with these papers that he has

created these documents. The defendant would further submit that he

has settled the property on his wife and the revenue Records has been

mutated in her name.

5. The Trial Court has framed the following issues:

i) Whether this suit sale agreement is true and genuine?

ii) Whether the plaintiff is entitled for the relief of specific

performance?

iii) To what other relief the plaintiff is entitled to?

6. The plaintiff has examined himself as P.W.1 and one Mohan

was examined as P.W.2 and Exs.A1 to A3 were marked on the side of

the plaintiff. On the side of the defendant, he examined himself as

D.W.1 and marked Exs.B1 to B13.

https://www.mhc.tn.gov.in/judis S.A.No.475 of 2022

7. The learned Subordinate Judge Namakkal on considering the

evidence had dismissed the suit. Challenging the said judgment and

decree, the plaintiff filed A.S.No.18 of 2018 before the Sessions

Court (Fast Track Mahila) Namakkal. The Appellate Court had also

confirmed the judgment and decree of the Trial Court. The learned

Sessions Judge had held that Ex.A1 sale agreement provided that the

balance amount of Rs.10,000/- has to be paid on or before 10.07.2008

(18 months). The plaintiff has not proved readiness and willingness

throughout. That apart, there is no pleading with reference to the fact

that the plaintiff has been ready and willing throughout to have the

sale deed executed. The first notice that has been issued on

28.11.2010 under Ex.A2 nearly 2 years and 4 months after the expiry

of 18 months and 3 years and 11 months after the date of the

agreement. Therefore, the Appellate Court had held that the plaintiff

has not proved his readiness and willingness and was therefore not

https://www.mhc.tn.gov.in/judis S.A.No.475 of 2022

entitled to the discretionary relief of specific performance. The

Appellate Court has also held that the genuineness of Ex.A1 is in

doubt. Challenging the same, the plaintiff is before this Court. This

Court had admitted the appeal on the substantial questions of law

stated supra.

8. Heard the learned counsel for the appellant and the learned

counsel for the respondent and perused the materials on record.

9. The case of the plaintiff is that the defendant had executed

Ex.A1 agreement of sale on 10.01.2007 agreeing to sell the suit

property for a sale consideration of Rs.2,00,000/- on the date of

agreement, a sum of Rs.1,90,000/- had been paid leaving just a

balance of Rs.10,000/-. For payment of this sum of Rs.10,000/- a

window of 18 months have been provided which ended on

10.07.2008. The plaintiff would contend that he has always been

https://www.mhc.tn.gov.in/judis S.A.No.475 of 2022

ready and willing and despite his repeated requests the defendant had

evaded to perform his part of the contract. The plaintiff has however

not shown any proof that he had been ready and willing from the date

of the agreement till the date of issue of the legal notice dated

28.11.2010, Ex.A2. This legal notice has been issued 3 years and 11

months after the execution of the agreement of sale. There has been no

response to the said notice and the suit has been filed only on

15.12.2010 i.e., 3 years and 11 months after the date of agreement of

sale. There is no explanation or proof on the side of the plaintiff to

show that after 10.07.2008 till the date of issue of the legal notice, he

has been requesting the defendant to come forward to execute the

agreement of sale or that he was ready with a balance amount.

Therefore, the finding of the Courts below that the plaintiff has not

proved the readiness / willingness has to be confirmed.

10. In addition, the appellate Court has found that there appears

https://www.mhc.tn.gov.in/judis S.A.No.475 of 2022

to be an interpolation in Ex.A1 agreement of sale and has observed as

follows:

''In exhibit A1 sale agreement the date of sale of

stamp paper is stated as 21.02.2017 with Serial

Number 4275. The number '2' in the month is erased

and it seems to be converted as '1'. The sale agreement

exhibit A1 is dated 10.01.2007, but the date in the sale

agreement exhibit even if it is taken as 21.01.2007 as

claimed by the plaintiff is before the date found in the

sale agreement and this discrepancy has not been

satisfactorily explained by the plaintiff as to why the

stamp paper in the sale agreement exhibit A1 is dated

after the date of execution of the sale agreement, this

throws a grave doubt as to whether the sale agreement

A1 is executed on the date and manner as claimed by

the plaintiff. Hence, it is decided that the plaintiff has

https://www.mhc.tn.gov.in/judis S.A.No.475 of 2022

not proved the genuineness and admissibility of exhibit

A1 sale agreement.''

There appears to be some substance in the said finding,

therefore the substantial questions of law are answered against the

plaintiff.