Madras High Court
Gunasekaran vs Dhanasekaran on 1 December, 2023
S.A.No.1670 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 01.12.2023
CORAM :
THE HONOURABLE Mr. JUSTICE C.KUMARAPPAN
S.A.No.1670 of 2008
and M.P.Nos.1,2 of 2008
Gunasekaran ...Appellant
Vs.
Dhanasekaran ...Respondent
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure, against the judgment and decree dated 24.06.2008 in
A.S.No.27 of 2006, passed by the learned Principal District Judge,
Villupuram, confirming the judgment and decree dated 01.07.2004 made
in O.S.No.205 of 1999, passed by the learned Subordinate Judge,
Kallakuruchi.
For appellant : Mr.K.S.Navin Balaji
For respondent : Mr.R.Bharath Kumar
****
Page 1 of 10
https://www.mhc.tn.gov.in/judis
S.A.No.1670 of 2008
JUDGMENT
The instant second appeal has been filed at the instance of the
defendant. The appellant herein is the defendant and the respondent
herein is the plaintiff before the Trial Court.
2. For the sake of convenience, the parties will be referred
according to their litigative status as before the Trial Court.
The brief facts which give rise to this second appeal are as follows:
3. The plaintiff and the defendant entered into a sale agreement
on 15.07.1999 to sell the suit property to the plaintiff, for a total sale
consideration of Rs.3,50,000/-. At the time of execution of the sale
agreement, a sum of Rs.1,62,000/- was paid as advance and another sum
of Rs.1,68,000/- was paid to the defendant as to the discharge of the
mortgage deed, dated 13.07.1998, which was entered between the
defendant and one Kalaiselvi. Thus, according to the plaintiff, he has paid
a sum of Rs.3,30,000/- to the defendant and the remaining amount of
Rs.20,000/- alone has to be paid, which, the plaintiff agreed to pay within
four months. The plaintiff has further stated that within the agreement
https://www.mhc.tn.gov.in/judis
period, he has issued a notice on 13.10.1999, for which, the defendant
issued a false reply stating that the sale agreement is not supported by
consideration. Hence, the plaintiff has filed the suit for specific
performance.
4. The said suit was resisted by the defendant with a specific
plea that on 15.07.1999, the sale agreement was executed, however, the
sale consideration of Rs.1,62,000/- has not been paid. Therefore, it is the
submission of the defendant that the plaintiff is not entitled to specific
performance. Hence, he prayed to dismiss the suit.
Evidence and documents:
5. Before the Trial Court, on behalf of the plaintiff, the plaintiff
himself was examined as P.W.1 and the scribe as P.W.2. Three
documents were marked as Exs.A1 to A3. On behalf of the defendant, the
defendant was examined himself as D.W.1 and two documents were
marked as Exs.B1 to B2.
https://www.mhc.tn.gov.in/judis
6. Before the First Appellate Court, on the side of the
defendant, five more documents were marked as Exs.B3 to B7.
Findings of the Trial Court:
7. The Trial Court, after having considered the oral and
documentary evidence, has found that the plaintiff was ready and willing
to perform his part of the contract and found that he is entitled for
specific performance. Hence, decreed the suit. Aggrieved by the same, the
defendant has approached the First Appellate Court. The First Appellate
Court has confirmed the finding of fact recorded by the Trial Court and
dismissed the appeal. Aggrieved by the same, the defendant is now before
this Court by way of filing this second appeal.
Submissions on both sides:
8. The learned counsel for the appellant/defendant vehemently
submits that a reciprocal promise arose between the plaintiff and the
defendant, whereas the plaintiff has miserably not discharged the
mortgage between the defendant and one Kalaiselvi; therefore, he has not
https://www.mhc.tn.gov.in/judis
complied with the reciprocal promise under Section 51 of the Indian
Contract Act, 1872; hence, the plaintiff is not entitled to specific
performance. It is the further contention of the learned counsel for the
appellant that it is the normal propensity of purchaser to scrutinize the
title; whereas the plaintiff did not have any interest in verifying the title.
Thus, the learned counsel for the appellant would contend that the
plaintiff is not entitled to specific performance. Therefore, he prays to
interfere with the judgment and decree of both the Courts below.
9. In support of his contention, the learned counsel for the
appellant has relied upon the following judgments of this Court.
1. T.R.Murugesan vs. S.Balakrishnan and other [2018 (6) CTC
56],
2. Sekar vs. Sivakumaran and other [2011 (2) MWN (Civil) 472]
and
3. S.K.Gangatharan and others vs. Mariammal [S.A.No.5 of 2014,
decided on 11.03.2020].
10. Per contra, the learned counsel for the respondent/plaintiff
https://www.mhc.tn.gov.in/judis
would submit that even according to the sale agreement, a sum of
Rs.3,30,000/- has been fully discharged and the plaintiff is entitled to pay
only the remaining amount of Rs.20,000/-, whereas, the suit has been
filed within the period of four months and on the date of filing of the suit,
the remaining sum of Rs.20,000/- has been paid before the Trial Court.
Therefore, the plaintiff has established his ready and willingness to
perform his part of contract, from the date of execution of the sale
agreement till the date of filing of the suit. Therefore, the decree granted
by both the Courts below is liable to be confirmed.
11. I have given my anxious consideration to the submissions
made on both sides.
Analysis of the submissions:
12. The main submission put forth by the learned counsel for the
appellant/defendant is in respect of the reciprocal promise. In order to
consider the submission made by the learned counsel for the appellant,
this Court would like to examine the reciprocal promise of the agreement.
On harmonious reading of Ex.A1/sale agreement, it is seen that nowhere
https://www.mhc.tn.gov.in/judis
they had stated about the discharge of mortgage prior to the execution of
the sale deed. According to the Ex.A1/sale agreement, the plaintiff agreed
to discharge the mortgage with one Kalaiselvi, and on that aspect, a sum
of Rs.1,68,000/- was adjusted towards part of sale consideration. Even,
on further reading of the said agreement, it appears that the remaining
amount of Rs.20,000/- alone has to be paid by the plaintiff. Therefore, the
submission made by the learned counsel for the appellant regarding
reciprocal promise by relying upon the judgments of this Court in
T.R.Murugesan's case (cited supra) and in S.K.Gangatharan's case
(cited supra) has no application to the present case.
13. The learned counsel for the appellant, though, has not raised
any defence in respect of readiness and willingness before this Court,
still it is the duty of the plaintiff to prove his readiness and willingness. It
is pertinent to mention that the readiness is nothing but the capacity of
the plaintiff to pay the remaining sale consideration, and willingness is
nothing but the conduct of the plaintiff in getting the sale deed executed.
On a perusal of the facts, it is evident that the plaintiff has unequivocally
established his readiness by depositing the remaining sale consideration
https://www.mhc.tn.gov.in/judis
of Rs.20,000/- before the Trial Court, and through his conduct of filing of
the suit and issuance of notice within the performance period, would
exemplify the plaintiff’s willingness. Therefore, this Court is of the view
that the plaintiff, notwithstanding any other facts, has independently
established his readiness and willingness to have the sale deed executed
in his favour.
14. The learned counsel for the appellant would further contend
that the non-scrutinizing of the title over the suit property is also a factor
to consider the mala fides on the part of the plaintiff. This Court is not
able to persuade with the submissions made by the learned counsel for
the appellant for the simple reason that the defendant has not raised such
defence in his written statement and his only defence is that he has not
received the sale consideration, in other words, the sale agreement is not
supported by consideration. However, the plaintiff, by examining the
scribe, who was present at the time of payment of the advance amount,
has established the passing of consideration for the agreement.
15. Therefore, this Court is of the firm view with the finding of
fact recorded by both the Courts below that the plaintiff was ready and
https://www.mhc.tn.gov.in/judis
willing to perform his part of the agreement and is entitled for specific
performance is based upon merits. In such view of the matter, this Court
cannot find any infirmity in the well-merited findings of the Courts
below. Thus, no substantial question of law arises in this case.
16. In the result, this second appeal is dismissed by confirming
the judgment and decree passed by both the Courts below. Consequently,
connected miscellaneous petitions are closed. There shall be no order as
to costs.
01.12.2023.
Internet : Yes/No
Index: Yes/No
apd
To
1.The Principal District Judge, Villupuram,
2.The Subordinate Judge, Kallakurichi,
3.The Section Officer, V.R.Section, High Court, Madras.
C.KUMARAPPAN,J.
https://www.mhc.tn.gov.in/judis
apd
and M.P.Nos.1,2 of 2008
01.12.2023
https://www.mhc.tn.gov.in/judis
