Madras High Court
Kondachinna Boyan vs Chinnasamy on 13 April, 2023
S.A.No.1119 of 2011
THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.04.2023
CORAM:
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
S.A.No.1119 of 2011
Kondachinna Boyan ...Appellant
Vs.
1.Chinnasamy
2.Sarasal ...Respondents
Prayer: Second Appeal filed under Section 100 of C.P.C., against the
judgment and decree dated 29.04.2011 made in A.S.No.2 of 2011 on the file
of the Sub Court, Sathyamangalam confirming the judgment and decree
dated 19.04.2010 made in O.S.No.53 of 2005 on the file of the District
Munsif Court, Sathyamangalam.
For Appellant : Mr.N.Manokaran
For Respondents : No appearance
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S.A.No.1119 of 2011
JUDGMENT
The defendant in O.S.No.53 of 2005 on the file of the District
Munsif Court, Sathyamangalam who failed before the Sub-Court,
Sathyamangalam in A.S.No.2 of 2011 has filed the present appeal.
2. The appeal arises from a suit for agreement of sale dated
11.08.2004. The value of the agreement is Rs.25,000/-. The agreement
reads that Rs.23,000/- was paid on the date of agreement itself. Since the
time for execution of the sale deed was 6 months, notices were exchanged
between the parties on 05.02.2005 and 11.02.2005. Immediately on receipt
of the reply notice, the present suit was filed on 16.02.2005.
3. The defence taken by the appellant was that it was a loan
transaction for Rs.15,000/- alone, which he stated, he would re-pay together
with 9% per annum. In other words, it was not an agreement of sale, but, a
loan transaction. As already pointed out, the trial Court decreed the suit and
the lower appellate Court confirmed the same.
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S.A.No.1119 of 2011
4. Mr.N.Manokaran, learned counsel appearing for the appellant
would vehemently argue that the judgment and decree of the Courts below
have to be set aside on the following grounds:
1)The Court does not have jurisdiction to
compare the thumb impressions;
2)It has not given cogent reasons for comparison
of the thumb impressions and
3)The evidence of PW2 and PW3 to the effect that
there is a difference in the thumb impressions was ignored
and finally
4)The comparison was with respect of post suit
documents and not with documents of the admitted thumb
impressions which had come into being before the
presentation of the plaint.
5. He would then argue that in the reply notice as well as in
additional written statement filed on 21.06.2007, he had specifically stated
that on 11.08.2004 two persons viz., Velusamy and Natarajan were present
as witnesses and the plaintiffs have not examined both of them. He would
then argue that a specific issue whether the plaintiff was ready and willing
to execute the contract was not raised by the Courts below and on that short
point, the appeal has to be allowed.
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S.A.No.1119 of 2011
6. He would then argue that there is a contradiction in the
evidence regarding payment of amount and that is fatal to the plaintiff's
case. Finally he would state that the property was worth Rs.3,00,000/- on
the date of agreement and that is sought to be knocked of at Rs.25,000/- and
that the agreement having been entered into in 2004, if the appeal is
dismissed in 2023, due to the increase in price, it would be inequitable.
7. I have carefully considered the submission of Mr.N.Manokaran,
learned counsel for the appellant. The respondents, though have been
served, have not entered appearance.
8. This Court had not admitted the appeal but ordered notice of
motion on 30.08.2011. The following substantial questions of law were
suggested for admission of the appeal:
a) Whether the Courts below were justified
in comparing the disputed thumb impression with
admitted thumb impression and recording a finding
about the authenticity of the thumb impression without
the benefit of any opinion of an Expert?
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S.A.No.1119 of 2011
b) Whether the Courts below have
committed an error in not considering the issue
relating to time prescribed for taking steps or for
completion of the transaction while exercising the
discretion in a suit for specific performance,
particularly no explanation has been given for fixing
six months time to pay a meagre amount of Rs.2,000/-?
c) Whether the Courts below have applied
greater scrutiny and strictness when considering
whether the purchaser was always ready and willing
to perform his part of the contract?
d) Whether the Courts below have
committed an error in decreeing the suit for specific
performance which is purely based on equity and
discretionary relief especially when the plaintiffs took
advantage over the defendant unmindful of relative
hardship?
9. On the first submission that the Court should not have
examined the thumb impression, the learned counsel would rely upon the
judgment of the Supreme Court in Thiruvengadam Pillai Vs.
Navaneethammal and another reported in (2008) 4 SCC 530. According
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S.A.No.1119 of 2011
to the learned counsel, this judgment concludes the position of law that the
Courts should not venture into comparison of thumb impression and even if
it does so, it should give reasons for the same.
10. A careful perusal of the judgment especially paragraph Nos.15
to 17 would show that the Supreme Court had not held that there is a total
bar for comparing handwriting or thumb impression by Judicial Officers
while trying a suit or criminal proceeding, The Supreme Court has held that
while doing so, the Courts have to give their impression on the
comparisons. It is here that the facts of this case looms large. In the reply
notice dated 11.02.2005, the defendant had not taken a plea of forgery. In
the written statement filed before the Court, he had not taken a plea of
forgery. Nearly 2 years after the presentation of the plaint, by way of an
additional written statement, the defendant took a plea of forgery. In fact, in
this case, an application has been taken out under Section 45 of the Indian
Evidence Act to send the documents for comparison by an Expert. The said
application had been dismissed. Aggrieved by the same, the defendant
preferred a revision before this Court. The revision also met with an order
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S.A.No.1119 of 2011
of dismissal. Thus, those orders closed the door of the defendant to have
the documents examined through an Expert evidence by the process of
Court. Yet, nothing prevented the defendant from summoning an Expert as
evidence on his side, especially when there are several private Experts who
are always available.
11. Further, the plea of forgery seems to be an after thought
especially when in paragraph No.5 of his original written statement, the
plaintiff had admitted to the execution of the documents. He had taken a
plea that his thumb impressions were taken same was on a blank sheet of
paper. The factum that he has accepted that he had affixed his thumb
impression on blank sheet of paper goes against him. This is so beacause he
admits to his thumb impression, but, would take a plea that the same has
been affixed on a blank sheet of paper. It is one thing to say that the LTI
had been affixed on the blank sheet of paper and totally another to say that
the agreement itself was a forged one. To clarify, forgery implies that the
persons whose signature/ LTI that the document ostensibly contains is not
that of the said person. In case of signing or affixing of LTI on blank sheet
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S.A.No.1119 of 2011
of paper, the party and in this case, the defendant, admits to the documents
but would plead that it was a blank one. In the case of the former, the
affixture is not admitted but in the case of the latter the signature/ thumb
impression is admitted but the contents are denied. No evidence has been
let in by the defendant in order to substantiate this plea.
12. The argument that the Court should have given distinctive
discussion on the various similarities it found in the documents or
dissimilarities in the thumb impressions is not a straight jacket formula. The
Courts below have concurrently compared the thumb impression and come
to the conclusion that the same had been executed by the defendant. This
read in the light of the stand taken in the original written statement
convinces me that the plea of forgery of thumb impression is after thought
and does not deserve acceptance.
13. Mr.N.Manokaran would forcibly argue that the evidence of
PW2 and PW3 should have been considered for the purpose of rejecting the
documents on the genuinity of the thumb impression. PW2 and PW3 are
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S.A.No.1119 of 2011
not Experts in the field of thumb impression and therefore, the Courts below
have rightly not placed any weightage on their evidence.
14. As regards the argument that the Courts should not have
compared the thumb impression of post suit documents and that it should
have used only the pre-suit documents, I find this argument has been raised
only for the purpose of its rejection. It is too well settled that the thumb
impression does not change with age, whereas handwriting do. The
judgment of the Courts saying post suit documents must not be referred
applies to situations of handwriting which changes with age, temperament
or medical condition of the person. Unfortunately for the appellant, the
thumb impression stays the same from the time, it is formed clearly and
distinctly on the thumb till the time is no more with the concerned party. It
is too much for the appellant to argue that the thumb impression changes
with age. I am not willing to go down that garden path.
15. As regards the next argument that the alleged witnesses
Natarajan and Velusamy were not examined turns the concept of burden of
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S.A.No.1119 of 2011
proof on its head. It is not the plaintiffs case that Velusamy and Natarajan
were witnesses to the documents dated 11.08.2004. It was the stand taken
by the appellant in his additional written statement. Therefore, the burden
falls on him to either bring those witnesses to the Court or to summon them
in order to substantiate his case. Merely because he has taken this position
in the written statement, it does not convince me that the burden is on the
plaintiff to prove the agreement by summoning the concerned persons. The
defendant having taken the plea that on 11.08.2004, the aforesaid persons
were present, it was on him to do all necessary acts to prove the same. He
has failed to discharge the same. Hence, this argument fails.
16. The next point is on readiness and willingness. This argument
too is yet another smoke screen. A bare look at the dates involved in the suit
is sufficient for the purpose of being convinced that the plaintiff was always
ready and willing to execute the contract. The agreement was entered into
on 11.08.2004. Out of Rs.25,000/-, Rs.23,000/- has been paid. The balance
was a mere Rs.2,000/-. The suit notice was issued on 05.02.2005 [within a
period of six months stipulated in the agreement], reply notice was issued
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S.A.No.1119 of 2011
on 11.02.2005 and within 5 days, the suit was presented on 16.02.2005. A
perusal of the dates and payment of Rs.23,000/- out of Rs.25,000/- fixed
under the agreement shows that the plaintiff was ready and willing and in
fact had performed more than what was called upon by law to perform.
17. The contradiction in the evidence regarding payment, as to
whether it was paid in the presence of the attestor or whether it was paid in
the presence of the third parties does not make a difference, since the
payment has admitted. The defendants have taken a stand that only
Rs.15,000/- was paid and not Rs.23,000/-. This shows that the payment had
been made, but, there is a variation in the amount. When the defendant
pleads variation, it is up to him to prove that the amount specified in the
agreement was not paid at all. The hurdle that the defendant unfortunately
cannot cross is in the form of Section 91 and 92 of the Evidence Act.
Having signed the agreement, stating Rs.23,000/- have been paid under the
same, it is not open to him to let in oral evidence for the purpose of
contradicting the said written evidence.
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S.A.No.1119 of 2011
18. The futility of the argument continued in the submission that
the suit had been filed in the year 2005 and the present appeal is been heard
in 2023 and therefore there is escalation in price and consequently an appeal
should be accepted. No one can be blamed for the pendency of the legal
proceeding between 2005 and 2023. The blame for pendency of appeal lies
elsewhere and not on the plaintiff.
19. Be that as it may, no proof has been tendered before the Court
to show that there has been a drastic increase in the price of the property
concerned. Apart from that, the defendants though had taken a faint plea
that on the date of the agreement the value of the property was Rs.300,000/-
and not Rs.25,000/-, he had failed to file even easily accessible guideline
value of the property before the Court.
20. Now going to the authorities cited by the learned counsel for
the appellant, he would rely upon the judgment in Shenbagam and others
Vs. KK Rathinavel reported in 2022 SCC OnLine SC 71, in particular
paragraph Nos.28 and 29. I have already concluded that hardly within six
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S.A.No.1119 of 2011
months from the date of agreement, the suit has been presented and majority
of the amount liable to be paid, had been paid. In the facts before the
Supreme Court, the Court had specifically found that there was a
conspicuous absence with respect to the evidence let in by the plaintiff to
indicate his readiness and willingness. That is not the situation here.
Enough and more evidence is available in the form of the agreement, the
suit notice, the reply date, presentation of the plaint and deposit of balance
amount by the plaintiff.
21. The learned counsel would then invite my attention to the
recent judgment of this Court in Surendran Vs. G. Selladurai and others
reported in MANU/TN/7900/2022 to argue that readiness and willingness
had not been shown by the party. In paragraph 30 of the said judgment, the
Division Bench had held that the issue of readiness and willingness and the
finding of the issue is more a matter of content and it is not necessary to use
the exact terminology in the judgment. Over all reading of the judgment of
the trial Court and the lower Appellate Court shows that both the Courts
below have given such a finding. Apart from that, the judgment in that
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S.A.No.1119 of 2011
particular case turned on the facts that the plaintiff had not proved the
genuineness of the agreement of sale. The finding given in the judgment
must be looked into at that angle and the same cannot be read as a straight
jacket formula.
22. It is necessary to point out the view of the Punjab and Haryana
High Court in Lal Chand Vs. Tek Chand in RSA 1989 of 2012 (O&M)
dated 10.05.2012, following the previous judgment of that Court in Santa
Singh Vs.Binder Singh & Others reported in 2006(4) CCC 608 (P&H).
The High Court was pleased to hold that in case the defendant has denied
execution of the agreement, the statement of the plaintiff is sufficient to
infer that he was ready and willing to perform his part of the contract.
23. In this case, the plaintiff has not only mentioned regarding his
readiness and willingness in the plaint, but, he had proved the same by
examining himself and has stated in unambiguous terms that he was ready
and willing to perform his part of the contract. Similar view has been taken
by this Court in 2005 (1) LW 472, 2012 (5) SCC 712 and 2019 SCC Online
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S.A.No.1119 of 2011
Punjab and Haryana 709. Therefore, I am afraid, I am not able to accept
the arguments of the learned counsel for the appellant.
24. The question of law suggested by him does not arise for
consideration. Therefore, the judgment and decree in A.S.No.2 of 2011
dated 29.04.2011 in confirming the judgment and decree in O.S.No.53 of
2005 dated 19.04.2010 stands confirmed. The Second Appeal is dismissed.
Since the respondents were not called upon to answer the appeal, there shall
be no costs in the appeal.
13.04.2023
dsa
Index : Yes/No
Internet : Yes/No
Nuetral Citation : Yes/No
Speaking order / Non-speaking order
To:-
1. The Sub-Judge, Sathyamangalam.
2. The District Munsif, Sathyamangalam.
V.LAKSHMINARAYANAN, J.
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S.A.No.1119 of 2011
dsa
S.A.No.1119 of 2011
13.04.2023
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