Madras High Court
A.J.Udhuman Ali vs C.Marutha Kutty (Died) on 14 June, 2023
A.S.No.323 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.06.2023
CORAM :
THE HONOURABLE MR. JUSTICE S.S. SUNDAR
AND
THE HONOURABLE MR. JUSTICE C. KUMARAPPAN
A.S.No.323 of 2013
A.J.Udhuman Ali ... Appellant
Vs.
1.C.Marutha Kutty (died)
2.C.M.Karki
3.M.Nirmala
4.M.Kalpana
5.M.Vidhya
6.M.Aruna ... Respondents
[R1 died, R3 to R6 are brought on record as LRs
of deceased R1, viz., C.Marutha Kutty, vide
order of Court dated 30.11.2022 made in
C.M.P.No.20715 of 2022 in A.S.No.323 of 2013]
Prayer : Appeal Suit filed under Section 96 r/w. Order 41 Rule 1 of Code of
Civil Procedure against the judgment and decree dated 08.10.2012 in
O.S.No.335 of 2007 on the file of the IV Additional District and Sessions
Court, Coimbatore.
Page 1 of 15
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A.S.No.323 of 2013
For Appellant : Mr.S.Venkatesh
R1 : Died (steps taken)
For R2 to R6 : Mr.D.Veerasekharan
JUDGMENT
(Judgment was delivered by S.S. SUNDAR, J.)
The Appeal is directed against the judgment and decree, dated
08.10.2012, in O.S.No.335 of 2007 on the file of the IV Additional District
and Sessions Court, Coimbatore. The plaintiff in the suit is the appellant in
the above Appeal.
2.Brief facts that are set out in the plaint filed by the appellant/plaintiff
in O.S.No.335 of 2007 are as follows :
2.1.The suit property was allotted to the 1 st defendant as per the
family partition dated 31.05.1971.
2.2.On 22.09.2006, the plaintiff and defendants entered into an
agreement to sell the suit property for a sum of Rs.95,50,000/- and the total
extent of property agreed to be conveyed was 1 Acre in S.No.154 in
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Kavundampalayam Village, Coimbatore North Taluk, Coimbatore. As per
the agreement, the defendants have to execute the sale deed within a period
of one month. On the date of agreement dated 22.09.2006, the plaintiff paid
a sum of Rs.50,00,000/- as advance and the receipt of the said amount was
acknowledged by the defendants in the agreement.
2.3.After the agreement, the defendants 1 and 2 executed a sale deed
in respect of 67 Cents of land in favour of nominee of plaintiff, by name
Sidhi Bowsiya Bibi, on 12.01.2007. With regard to the remaining 33 Cents,
the defendants agreed to convey the northern side of 33 Cents.
2.4.As regards 67 Cents, the advance amount was adjusted and the
plaintiff was ready and willing to perform his part of the contract by paying
the balance amount of Rs.31,51,500/-. However, one Shanmugham, who is
a neighbour of suit property, was creating problem by encroaching a portion
of the property and the defendants agreed to settle the dispute regarding the
said portion and therefore, delay was only on account of the encroachment
by a third party. Even after the expiry of period mentioned in the agreement,
the plaintiff was urging the defendants to execute the sale deed and the
execution was delayed on account of the encroachment by the third party by
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A.S.No.323 of 2013
name Shanmugham.
2.5.Stating that the defendants are trying to sell the property to third
parties, the suit came to be filed by the appellant for specific performance of
the agreement dated 22.09.2006 and for consequential reliefs.
3.The suit was resisted by the 1st defendant by filing a detailed written
statement. The suit was mainly contested on the ground that the plaintiff
was never ready and willing to perform his part of the contract by paying the
balance. It is contended by the 1 st defendant that the plaintiff did not have
further money and therefore, he insisted sale in respect of 67 Cents of land
in favour of his close relative and that therefore, by execution of sale deed on
12.01.2007 in respect of 67 Cents, the entire agreement had come to an end
and therefore, the 1st defendant specifically denied the enforceability of the
contract with regard to the balance extent. The case of plaintiff that the
property was under the encroachment by one Shanmugham, was specifically
denied by the 1st defendant in the written statement. The specific case of 1 st
defendant in the written statement is that plaintiff was never ready and
willing to perform his part of the contract in terms of the agreement and that
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A.S.No.323 of 2013
it is only because of the fact that the plaintiff did not have money to pay the
balance of sale consideration, there was modification of terms and by
execution of sale deed in respect of an extent of 67 Cents by adjusting the
advance amount, the original agreement of sale came to an end.
4.Before filing the suit, the plaintiff issued a notice and a reply was
sent on behalf of defendants on 12.02.2007. Based on the notice, reply
notice, and by considering the pleadings in the plaint and written statement,
the trial Court framed the following issues :
i. Whether the plaintiff is entitled for specific performance to
the agreement dated 22.09.2006 as prayed for ?
ii. To what relief ?
5.Before the trial Court, the plaintiff examined himself as P.W.1 and
examined one Thangavelu as P.W.2 to prove the transaction. Exs.A1 to A4
were marked on behalf of plaintiff. The 1st defendant was examined as
D.W.1. One Thangaraj was examined as D.W.2. On behalf of defendants,
Exs.B1 to B4 were marked.
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6.The trial Court, on the basis of evidence of D.W.2, came to the
conclusion that the agreement itself was on behalf of one Sheikh Moideen
under whom the plaintiff was an employee receiving a small salary of around
Rs.10,000/- per month. Based on the evidence of P.W.2, the trial Court
came to the conclusion that the plaintiff was not the person who really
entered into the agreement, but it was only on behalf of one Sheikh
Moideen, the plaintiff entered into an agreement. It is not in dispute that an
extent of 67 Cents was sold in favour of wife of Sheikh Moideen under
Ex.A2. The evidence of P.W.2 is to the extent that the said Rs.50,00,000/-
was paid only by Sheikh Moideen. Therefore, the sale deed in favour of wife
of Sheikh Moideen under Ex.A2 was considered by the trial Court to hold
that the sale deed under Ex.A2 was by way of settlement to adjust the
advance amount already paid under Ex.A1. The trial Court also held that
the plaintiff was never ready and willing to perform his part of the contract
as no evidence is let in to show the plaintiff's readiness. Having found that
the plaintiff was just an employee of Sheikh Moideen, the trial Court held
that the plaintiff miserably failed to prove his readiness and willingness as
required in law to seek specific performance. Having found that the plaintiff
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A.S.No.323 of 2013
was not a man of means, the trial Court also rendered a finding that his plea
that he was ready and willing to perform his part of the contract in terms of
the agreement cannot be believed. The trial Court rejected the contention of
the plaintiff that a portion of property was under encroachment and
therefore, there was some delay on the part of defendants to execute the sale
deed. The trial Court, from the facts of the case, inferred that the plaintiff
had abandoned the contract after execution of sale deed and that he has not
produced even a scrap of paper to show his readiness of having money to
pay the balance amount and willingness. The trial Court, therefore,
dismissed the suit.
7.Aggrieved by the judgment and decree of the trial Court, the above
Appeal is preferred by the plaintiff.
8.Learned counsel appearing for the appellant/plaintiff submitted that
the lower Court has refused to grant specific performance on the ground that
the plaintiff has not come forward to deposit the balance amount, ignoring
the law settled by this Court and Hon'ble Supreme Court to the effect that
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the plaintiff need not jingle the coin before Court unless deposit of money is
directed by the Court. Learned counsel submitted that Sheikh Moideen is
just the uncle of plaintiff and that the trial Court has erroneously believed the
story of defendants as if the plaintiff was an employee of Sheikh Moideen
and that the sale deed under Ex.A2 is by way of settlement. Learned
counsel then pointed out that the conclusion of trial Court that the suit
agreement itself was entered into on behalf of Sheikh Moideen, is neither
supported by plea nor evidence of defendants. Learned counsel also
submitted that the trial Court did not consider the oral and documentary
evidence in a proper perspective and erroneously held that the plaintiff was
not ready and willing to perform his part of the contract.
9.Considering the nature of pleadings, the issues raised before the trial
Court and the arguments advanced by learned counsel appearing for the
appellant and the respondents, this Court is of the view that the Appeal has
to be disposed of by finding answers to the following points :
i. Whether the suit agreement is enforceable by plaintiff ?
ii. Whether the plaintiff was ready and willing to perform his
part of the contract ?
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iii. Whether the sale deed under Ex.A2 was pursuant to the
settlement, as pleaded by the defendants ?
iv. Whether the plaintiff is entitled to the equitable relief of
specific performance ?
Point (i) :
10.This Court considered the pleadings and evidence as a whole. The
suit agreement is for an extent of 1 Acre and the total consideration is
Rs.95,50,000/-. A huge amount of Rs.50,00,000/- was paid under the
agreement and the balance payable was to be paid within one month from
the date of agreement. It is the evidence of P.W.2 that Sheikh Moideen is the
Manager of M/s.Ruby Textiles and he is working under him for the past
more than 30 years. He admits that plaintiff is working in Ruby Textiles for
about 15 and 20 years. P.W.2 is the person who is examined to prove the
actual transaction under Ex.A1. From the entire evidence, it is seen that the
sale transaction in respect of the suit property was as per the direction of the
owner of Ruby Textiles, by name Sheikh Moideen. P.W.2 admits that the
total amount of advance was paid by Sheikh Moideen to the defendants and
that only the agreement was executed in favour of plaintiff. It is his specific
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admission that Ex.A1 agreement was only for Sheikh Moideen and his wife.
Even though he denied the suggestion that the suit agreement Ex.A1 is for
Sheikh Moideen and his wife, his evidence as a whole would clearly
establish that the plaintiff is not a man of means and the whole agreement
was only at the instance of Sheikh Moideen for his benefit. The plaintiff
(P.W.1), in his evidence, admits that he did not see the title deed, but Sheikh
Moideen and his Managers verified the title deed. From the evidence of
plaintiff (P.W.1) himself, it is seen that the transaction as recorded under
Ex.A1 is not true. This accounts for the sale executed by defendants in
favour of wife of Sheikh Moideen in respect of an extent of 67 Cents. It is in
the circumstances, this Court can draw an inference that the agreement, as
such, is not enforceable by the plaintiff. It is true that there is no pleading.
However, Court can see whether the plaintiff is entitled to the relief on the
basis of plaintiff's evidence.
Points (ii) and (iii) :
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11.On the readiness and willingness, the plaintiff has admitted that he
has not produced any document to show his capacity to mobilize huge
amount to be paid towards balance of sale consideration. When the
substantial amount of Rs.50,00,000/- is paid by Sheikh Moideen, the
plaintiff should come forward to explain the real understanding between the
plaintiff and Sheikh Moideen for paying the entire advance amount of
Rs.50,00,000/-. P.W.2 admits that plaintiff is only an employee, even
though he is also a relative of Sheikh Moideen. The specific case of
defendants is that Ex.A2 sale deed was executed by way of settlement and
that, by execution of sale deed, the sale agreement was put an end to.
12.The plaintiff has come forward with a story that a portion of
property was under the encroachment of one Shanmugham and that
therefore, the sale deed could not be executed by defendants. The suit
property is a portion of an extent of 3 Acres and odd. At least, it is stated
that the properties lie in two different parcels and the extent of 1 Acre to be
sold is a part of extent of 1 ½ Acres. The contention of plaintiff that a
portion of suit property was encroached by a third party, is specifically
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denied and absolutely, no evidence is let in by plaintiff to prove his story.
When the surrounding circumstances clearly indicate that the suit property is
only a portion of larger extent, this Court is unable to accept the case of
plaintiff for justifying the delay. The plaintiff did not produce any witness or
document regarding encroachment by a third party. The plaintiff has not let
in any evidence that he had wherewithal or money that is required to be paid
by him as balance of sale consideration within the time stipulated in the
agreement. Admittedly, the plaintiff has not come forward to pay the
balance within the time stipulated. The contention of plaintiff that time is
not an essence of contract is based on the fact that the sale deed under
Ex.A2 was executed after the time specified in the agreement. This Court
finds that the case of defendants that by execution of sale deed, the suit
agreement came to an end, is probable. When the plaintiff's witness P.W.2
admits that the advance amount was paid only by Sheikh Moideen and
plaintiff is just an employee of Sheikh Moideen, the bona fides of plaintiff
and his ipse dixit regarding readiness and willingness cannot be believed.
Since the plaintiff has failed to prove readiness and willingness as required
in law, he is not entitled to seek specific performance. This Court also
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accepted the case of defendants that the defendants have executed Ex.A2
sale deed only by way of settlement by adjusting the advance paid under
Ex.A1 agreement.
Point (iv) :
13.In view of the conclusion which we have reached above, this Court
is of the view that the plaintiff is not entitled to the discretionary relief of
specific performance. The conduct of the plaintiff in suppressing material
facts would also be a factor to be considered while granting a decree for
specific performance. The trial Court has considered the oral and
documentary evidence in a proper perspective and therefore, the findings of
the trial Court regarding readiness and willingness cannot be assailed,
particularly when the same are supported by circumstances and valid
reasons. Therefore, all the points raised in this Appeal are answered against
the plaintiff. In view of the conclusions we have reached, we are unable to
interfere with the judgment and decree of the trial Court.
14.As a result, this Appeal is dismissed as devoid of merits. No
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costs.
(S.S.S.R., J.) (C.K., J.)
14.06.2023
mkn
Internet : Yes
Index : Yes / No
To
1.The IV Additional District and Sessions Judge,
Coimbatore.
2.The Section Officer, | with a direction to return
VR Section, High Court, | the records to the Court below,
Chennai. | if any, forthwith
S.S. SUNDAR, J.
and
C.KUMARAPPAN, J.
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A.S.No.323 of 2013
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