R.Poongodi vs N.Kanagammal (Died)
2023 Latest Caselaw 2140 Mad

    2023/MHC/1101



                                                                                        A.S.(MD)No.147 of 2014


                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                  DATED : 09.03.2023

                                                          CORAM:

                                  THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

                                                 A.S.(MD)No.147 of 2014


                R.Poongodi                                            ... Appellant / plaintiff


                                                           Vs.
                N.Kanagammal (Died)
                2.N.Kamala
                 (Memo dated 07.12.0221 in USR No.27697
                  is recorded as R1 died and the 2nd respondent,
                  who is already on record, is recorded as LR of
                  the deceased R1, vide Court order dated
                  12.09.2022 made in A.S.(MD)No.147/2014)        ... Respondents / Defendants


                PRAYER: This Appeal Suit is filed under Section 96 of C.P.C. against the
                judgment and decree passed by the Additional District Judge cum Fast Track Court
                No.2, Madurai, in O.S.No.56/2008, dated 04.08.2010.


                                        For Appellant            : Mr.S.Natesh Raja
                                        For Respondents          : Mr.D.Malaichamy for R2




                1/16
https://www.mhc.tn.gov.in/judis
                                                                                         A.S.(MD)No.147 of 2014


                                                       JUDGMENT

Aggrieved over the decree and judgment of the Additional District Judge

cum Fast Track Court No.2, Madurai, in O.S.No.56/2008, dated 04.08.2010,

dismissing the suit filed for specific performance and granting only alternative

relief of refund of money, the present appeal has been filed by the unsuccessful

plaintiff.

2. For the sake of convenience, the parties are referred to herein, as per their

rank before the Trial Court.

3. The brief facts, leading to the filing of this Civil Miscellaneous Appeal,

are as follows:-

The defendants 1 and 2 are the mother and daughter. The first item of the

property belonged to the defendant No.1. Second item of the property belonged to

the second defendant. Both the defendants decided to sell the properties. As a

result, on 26.09.2007, both of them orally agreed to sell the suit properties to the

plaintiff for a total sale consideration of Rs.15,25,000/- and received a sum of

Rs.50,001/- as token advance, followed by an written sale agreement dated

11.10.2007 and received a sum of Rs.2 lakhs towards sale consideration. It is

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agreed between the parties that sale shall be completed within a period of three

months. Second defendant agreed to discharge the loan amount of Rs.2,52,000/-

borrowed from the Tamil Nadu Electricity Board. However, the second defendant

has not discharged the loan amount. The plaintiff has approached the defendants

on several occasions and requested them to execute a sale deed in favour of her

after receiving balance sale consideration, within a time. The second defendant

has not performed their part of obligations. As the defendants neither discharged

the loan nor executed the sale deed, the plaintiff has also gave a complaint before

the Sellur Police Station dated 05.03.2008. The second defendant, however, in

order to escape from the criminal complaint, issued a cheque for a sum of Rs.

1,25,000/- in favour of the plaintiff on 15.03.2008. The plaintiff received the

cheque under the compulsion of the defendants and presented the same through

her advocate on 18.03.2008. However, the payment was stopped by the drawer.

Thereafter, the second defendant also informed that they are ready to pay the

balance sale consideration as per the agreement. However, the defendants have

not come forward to receive the balance sale consideration and execute the sale

deed. Therefore, the plaintiff has sent a legal notice dated 01.04.2008, which was

replied by the defendant on 04.04.2008. Hence, the suit.

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4. Admitting the sale agreement, it is the contention of the defendants in the

written statement that the plaintiff has given a police complaint on 05.03.2008.

Thereafter, the second defendant issued a cheque for a sum of Rs.1,25,000/- to the

plaintiff on 15.03.2008. It is the contention of the defendants that the plaintiff

could not mobilize the fund to pay the balance sale consideration and to get the

execution of sale within the time fixed in the sale agreement, since time is the

essence of contract. The plaintiff also addressed two complaints to the Inspector

of Police levelling allegations against the defendants. The above complaints itself

clearly show that the plaintiff was not in a position to perform her part of the

contract. The plaintiff demanded refund of advance amount from the defendants

and accordingly, they issued a cheque for the part amount on condition that

balance should be paid within three months from 15.03.2008. Since the plaintiff

has not issued any receipt, the second defendant instructed the bank on 14.03.2008

to stop the payment. It is the further contention of the defendants that the plaintiff

never requested the second defendant and she never tendered the balance amount

of sale consideration and the plaintiff was never ready and willing to perform her

part of the contract.

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5. On the basis of the above pleadings, the trial Court framed the following

issues:

“1. Whether the plaintiff proves that she is entitled for the relief of specific performance of contract as prayed for?

2. Whether the defendants proves that the plaintiff failed to perform her part of contract within the stipulated period?

3. To what relief, the plaintiff is entitled to?”

6. On the side of the plaintiff, two witnesses were examined as P.W.1 and

P.W.2 and 16 documents were marked as Ex.A1 to A16. On the side of the

defendants, three witnesses were examined as D.W.1 to D.W.3 and 12 documents

were marked as Ex.B1 to Ex.B12 were marked.

7. Based on the evidence and materials, the trial Court found that there was

no enforceable contract between the parties on the basis of Ex.A3 and it is only a

mere receipt and not an agreement. The trial Court has also found that the plaintiff

was not ready and willing to perform the contract and also there is suppression of

material facts and ultimately dismissed the suit as far as the specific performance

and decreed the suit for alternative relief to refund the amount received by the

defendants with interest at the rate of 6% p.a., from the date of execution of

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Ex.A3, failing which the amount should carry the interest at the rate of 9% p.a.,

from the date of execution of Ex.A3. Aggrieved over the above judgment, the

unsuccessful plaintiff has filed the present appeal.

8. The main contention of the learned counsel appearing for the plaintiff

before this Court that the trial Court has erred in holding that Ex.A3 is only mere

receipt and it is incapable of enforcement. In fact, Ex.A3 is a written contract

between the parties, wherein the terms have been agreed between the parties,

which has not been noticed by the trial court. It is the contention of the learned

counsel appearing for the plaintiff that the agreement itself clearly indicates that

second defendant has to discharge the mortgage loan borrowed by her from the

Tamil Nadu Electricity Board and three months time has been granted in the

agreement only to discharge the mortgage loan. The advance amount has also paid

only to discharge the mortgage. However, having received the amount, the second

defendant neither paid that amount nor discharged the mortgage. Therefore, the

plaintiff has given police complaint-Ex.A5. It is the further contention of the

learned counsel appearing for the plaintiff that due to the compulsion in the Police

Station, the plaintiff has agreed to receive the amount. Second defendant issued a

cheque for a sum of Rs.1,25,000/- and when the cheque was presented, the same

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was dishonored on the ground that 'payment stopped by drawer' and the second

defendant agreed to execute the sale deed. Even after that they have not executed

the sale deed.

9. It is the further contention of the learned counsel appearing for the

plaintiff that the plaintiff has clearly spoken in her evidence that after getting the

original document only, she would arrange the loan from the LIC to pay the entire

sale consideration. According to the learned counsel for the plaintiff that P.W.1

and P.W.2 has clearly spoken about this aspect. Hence, submitted that the plaintiff

is always ready and willing to perform the part of her contract and the trial Court

has not considered the oral and documentary evidence on the side of the plaintiff

properly. It is the further contention of the learned counsel appearing for the

plaintiff that merely because P.W.2-husband of the plaintiff has filed a suit in

respect of the suit property not to evict them in due process of law, such

circumstances cannot be pitted against the plaintiff for suppression of material

facts. The learned trial Court has erred in concluding that there is suppression of

material facts. Hence, submitted that as the time is not an essence of contract, the

petitioner is entitled to specific performance. In support of his submission, he has

also placed reliance on the judgments of the Hon'ble Apex Court in

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A. Kanthamani v. Nasreen Ahmed, reported in (2017) 4 SCC 654 and Sukhbir

Singh Vs. Brij Pal Singh reported in (1996) 2 CTC 295.

10. The learned counsel appearing for the defendants / respondents would

submit that though the agreement was executed, the plaintiff was never ready and

willing to perform the part of her contract. There is no evidence to show that the

plaintiff has a capacity to raise the fund to pay the remaining balance sale

consideration. Having agreed to pay the remaining balance sale consideration,

within three months from the date of agreement, the plaintiff never shown ready

and willingness on her part to pay the remaining sale consideration. The theory of

obtaining loan from the LIC has been introduced for the first time in the evidence

without any pleadings. Therefore, that trial Court has rightly appreciated the

evidence and come to the conclusion that the plaintiff was never ready and willing

to perform the part of her contract. It is his further contention that P.W.2, who is

the husband of the plaintiff, has already filed a suit against the defendants in

respect of the same property. Plaintiff is also aware of the above fact, but the same

has been suppressed in the entire pleadings. Therefore, she has not come to this

Court with clean hands. Hence, at the judgment of the trial Court does not require

any interference and this Appeal Suit is liable to be dismissed.

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11. In the light of the above submissions, now the points arise for

consideration in the appeal are as follows:

1. Is there any enforceable contract between the parties?

2. If so, whether the plaintiff is always ready and willing to perform

the contract?

3. To what relief, the parties are entitled to?

12. It is relevant to note that Ex.A3 is an agreement dated 11.10.2007

entered between the defendants and the plaintiff. In fact, the defendants have not

denied the execution of the contract. The defendants also not disputed in their

pleadings that prior to Ex.A3, there was a oral agreement for sale. The total sale

consideration agreed between the parties was Rs.15,25,000/-. It is also not

disputed between the parties that the oral agreement was reached on 26.09.2007

and on that day, a sum of Rs.50,001/- had paid as token advance. Thereafter, the

parties entered into a written contract-Ex.A3. On a perusal of Ex.A3, it is seen

that not only the parties confirmed the oral agreement dated 26.09.2007, but also

entered a written contract and received further sum of Rs.2 lakhs and agreed to

complete the sale within a period of three months. It is also agreed that three

months time was granted to the second defendant in order to discharge the

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mortgage loan from the Tamil Nadu Electricity Board and the agreement was also

attested not only by the witnesses but also by the husband of the second defendant.

When there is no dispute with regard to the execution of this document by the

defendants, the finding of the trial Court that it is only a mere receipt and it is not

an agreement, cannot be countenanced. Though there is no specific schedule was

not given in the agreement, the parties understood that the sale is only in respect of

the suit schedule properties. Therefore, it cannot be said that Ex.A3 is only a

receipt and it is incapable of enforcement. Such conclusion of the trial Court is

not according to law. Even the oral agreement is capable of enforcement when the

same has been established before the Court of law. Such being a position, the

finding of the trial Court that Ex.A3 dated 11.10.2007 is only a mere receipt and

not an agreement is not correct. Accordingly, the first point is answered.

13. It is the case of the plaintiff that though the defendant No.2 agreed to

clear the mortgage within three months, she has not discharged the same. Though

it was agreed between the parties that three months time was granted only in order

to discharge the mortgage, it is no where agreed in the agreement that only after

handing over the original documents, the plaintiff would mobilize the funds

through LIC loan. In the agreement, it was specifically stipulated that the

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remaining sale consideration other than the advance amount should be paid within

three months. Three months time has been extended only for the purpose of

discharging the mortgage. The fact remains that the mortgage was not discharged.

Be that as it may. Merely because the mortgage was not discharged by the second

defendant, that will not inure the benefit to the plaintiff. Plaintiff should show the

readiness and willingness from the very inception of the agreement till the end. It

is the specific case of the plaintiff in her pleadings that she was tendering the sale

consideration on several times to the defendants, however, they avoided the same.

In para 6 of the plaint, it is the the specific pleadings of the plaintiff that after the

period of three months, she has tendered the balance sale consideration and the

defendants avoided the same. Similarly, it is her case that, she insisted the second

defendant to discharge the mortgage loan. It is to be noted that whereas in

evidence, the plaintiff has clearly admitted that she did not have any ready cash to

tender the balance sale consideration and she had to mobilize the fund only after

getting the original documents, through LIC loan and explanation has been given

in her evidence that since original documents have not been handed over, she

could not process the loan application.

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14. It is relevant to note that this oral evidence about raising the loan to

pay the balance sale consideration first time spoken only in the evidence. There is

no pleadings what so ever in the entire plaint. Whereas in the plaint, it is the

specific case of the plaintiff that she had tendered the balance sale consideration

on several times before sending the legal notice. However, the defendants avoided

the same. Therefore, any oral evidence introduced, without pleadings cannot be

given much importance. Be that as it may. The plaintiff has admitted that she

could not even process the LIC loan and she has also admitted in her evidence that

she has no independent bank account. It is to be noted that the plaintiff has filed

an application before the trial Court in I.A.No.217 of 2008 to deposit the balance

sale consideration, however, she has not deposited the same before the Court

despite the time granted by the trial Court. This fact clearly shows that the

plaintiff had no capacity to raise the fund at the relevant point of time and she had

no means to mobilize the fund to pay the balance sale consideration. Therefore,

now in the evidence she has come up with the explanation that since original

documents have not been handed over to her after discharging the mortgage, she

could not raise the loan to pay the remaining balance sale consideration. Such

explanation, without any pleadings, cannot be given much importance. It is also

relevant to note that the mortgage loan is only about Rs.2,50,000/-. If the plaintiff

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had really intention to purchase the property and she was ready to pay the balance

sale consideration as pleaded in the plaint, she could have very well cleared the

mortgage loan and got the property registered in her name.

15. Therefore, in the absence of readiness and willingness on her part

from the very inception, now she cannot contend that since the original document

has not been handed over to her, she could not mobilize the fund. The readiness is

the capacity of the plaintiff to pay the amount and the willingness is a mental

attitude to purchase the property. Both the words 'readiness and willingness' are

distinct and both should go together to get an equitable relief of specific

performance. The plaintiff has not even shown readiness and willingness and no

other bank accounts produced to show that she had sufficient means to pay the

balance sale consideration. No doubt, the plaintiff need not show the ready cash

in hand but that will not absolve the plaintiff from proving the capacity to raise

funds. The entire analysis of the facts, the plaintiff has failed to prove the

readiness and willingness on her part. If really, the plaintiff had an intention to

purchase the property, since the mortgage amount is only a small amount, the

plaintiff could have got the property registered in her name and could have cleared

the mortgage amount. It is always subject to the prior right created in the

mortgage, which was also not done so.

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16. In such view of the matter, this Court is of the view that the plaintiff

is miserably failed to establish the readiness and willingness. Accordingly, the

second point is answered. In the judgments relied upon by the learned counsel for

the plaintiffs, the Hon'ble Supreme Court considering the facts and circumstances

of that case, has granted specific performance, and therefore, the above judgments

are not applicable to the facts of the present case.

17. In the result, this Appeal Suit is dismissed and the judgment of the

Additional District Judge cum Fast Track Court No.2, Madurai, in O.S.No.56 of

2008, dated 04.08.2010 is confirmed and accordingly, the defendants are directed

to refund the amount i.e., a sum of Rs.2,50,001/- received by them to the plaintiff

with interest at the rate of 6% p.a., as ordered by the trial Court and failing which,

the amount shall be carried the interest as ordered by the trail Court. No costs.

09.03.2023 NCC : Yes Index : Yes/No Internet : Yes vsm

https://www.mhc.tn.gov.in/judis A.S.(MD)No.147 of 2014

To

1.Additional District Judge cum Fast Track Court No.2, Madurai,

2.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis A.S.(MD)No.147 of 2014

N.SATHISH KUMAR, J.

vsm

A.S.(MD)No.147 of 2014

09.03.2023

https://www.mhc.tn.gov.in/judis