Madras High Court
Mariyappan vs Sakthivel on 22 November, 2023
S.A.No.183 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.11.2023
CORAM
THE HONOURABLE MR. JUSTICE S.SOUNTHAR
S.A.No.183 of 2017
and
CMP.No.3852 of 2017
1.Mariyappan
2.Jayalakshmi
3.Manimegalai ... Appellants
(R2 & R4 transposed as appellants
2 & 3 vide Court order dated 19/04/2022
made in CMP.No.6781 of 2022 in
S.A.No.183 of 2017)
Vs.
1.Sakthivel
2.Jayalakshmi
(Transposed as 2nd appellant)
3.Mallika
4.Manimegalai
(Transposed as 3rd appellant) ... Respondents
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure, against the judgment and decree dated 10.08.2016 made in
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1/8
S.A.No.183 of 2017
A.S.No.14 of 2013 on the file of the Additional District Court, Namakkal,
confirming the judgment and decree dated 29.02.2012 made in O.S.No.412 of
2010 on the file of the Sub-Court, Namakkal.
For Appellants : Mr.V.Perumal
For Respondents : Mr.C.Jagadish for R1
R2 to R4 – No appearance
JUDGMENT
The Second Appeal was originally filed by the unsuccessful first
defendant in the suit. Later on defendants 2 & 4 who were arrayed as
respondents 2 & 4 in the Second Appeal have been transposed as appellants 2
& 3. The first respondent herein filed a suit for specific performance of
agreement dated 06.06.2005 entered between him and the other parties in the
Second Appeal. The suit was decreed by the trial Court and the appeal filed by
the first appellant was dismissed. Aggrieved by the same, the appellants are
before this Court.
2. According to the first respondent, he entered into the suit sale
agreement on 06.06.2005 with the appellants and other respondents for
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purchase of the property covered under agreement for a sale consideration of
Rs.6,45,000/-. On the date of agreement itself an advance of Rs.4,00,000/- was
paid to the agreement vendor and the balance amount was agreed to be paid
within a period of one year. Later on 24.05.2006, the first respondent paid a
sum of Rs.45,000/- towards balance sale consideration and obtained
endorsement on the back side of the agreement. It was further averred that
during June 2006, the first respondent paid a further sum of Rs.25,000/- to the
agreement vendor and that the first respondent is ready and willing to perform
his part of contract and get the sale deed executed, but the agreement vendor
evaded the request and therefore, the pre-suit notice was issued on 04.06.2007
calling upon them to complete sale transaction after receiving balance sale
consideration. The agreement vendor/defendants sent a reply denying of
execution of suit agreement and contended that it was executed as a security
for loan transaction. In these circumstances, the first respondent was
constrained to file a suit for specific performance.
3. The appellants and other respondents, who were arrayed as
defendants in the suit, filed a written statement and denied the execution of
suit sale agreement. According to them the first appellant borrowed a sum of
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Rs.2,00,000/- to meet medical expenses of his wife and as a security for proper
repayment, he signed 10 rupees blank stamp papers and green papers and the
same could have been used by the first respondent to file a suit.
4. It was further averred by the appellants and the other
respondents/defendants that the actual value of the sale agreement mentioned
property would be Rs.5,00,000/- per acre and therefore, there is no occasion
for them to enter into sale agreement for a sum of Rs.6,45,000/-. On these
grounds the appellants and other respondents sought for dismissal of the suit.
5. Before the trial Court, the first respondent was examined as
PW1 and attestors to the suit sale agreement have been examined as PW2 and
PW3. On behalf of the first respondent, 7 documents were marked as Ex.A1 to
Ex.A7. On behalf of the defendants, the first appellant was examined as DW1
and no documentary evidence was let in by the defendants.
6. The trial Court on appreciation of oral and documentary
evidence available on record, came to the conclusion that due execution of suit
sale agreement was proved and hence, the first respondent was entitled to
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decree for specific performance. Aggrieved by the same, the first appellant
alone preferred an appeal in A.S.No.14 of 2013 on the file of the Additional
District Court, Namakkal. The first Appellate Court concurred with the
findings of the trial Court. Aggrieved by the same, the first appellant has come
up with this Second Appeal. After numbering of the Second Appeal, the
respondents 2 and 4 were transposed as appellants 2 & 3.
7. The learned counsel for the appellants submitted that the suit
sale agreement is only a security for loan transaction and therefore, the first
respondent is not entitled to seek specific performance of the same. The
learned counsel for the appellants further submitted that the time limit for
completion of sale transaction was mentioned as one year in the suit sale
agreement. However, the first respondent issued pre-suit notice only after
expiry of two years and hence, he failed to prove his readiness and willingness
to perform his part of the contract. As per Ex.A1 suit sale agreement, the sale
consideration was Rs.6,45,000/- and an advance amount of Rs.4,00,000/- was
paid on 06.06.2005. Subsequently, on 24.05.2006 a further sum of Rs.25,000/-
was paid and endorsement was also made regarding the said payment on the
back side of the first page of sale agreement. The agreement and endorsement
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thereon were marked as Ex.A1 and Ex.A2. The due execution of suit sale
agreement and endorsement made thereon were properly proved by the first
respondent by examining the attestors to the suit sale agreement and
endorsement as PW2 and PW3.
8. Both the Courts below based on the evidence of PW1 to PW3
came to the concurrent findings that due execution of suit sale agreement and
endorsement thereon were proved. The said factual findings are binding on
this Court, in the absence of any perversity in appreciation of the oral
evidence. The suit sale agreement is dated 06.06.2005 and as per the recitals
found in the suit sale agreement, the same was in occupation of tenant at the
time agreement and it was clearly mentioned that the tenant will occupy the
property for three years and the possession of the property will be delivered to
agreement vendor only after three years.
9. It is seen from Ex.A1 and Ex.A2, the first respondent pleaded
substantial portion of the sale consideration namely Rs.4,45,000/- was already
paid and the remaining amount to be paid is only Rs.2,00,000/-. It was
explained by the first respondent that since the suit property was in occupation
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of a tenant, he waited for some time and then issued pre-suit notice calling
upon the sale agreement vendor to execute the sale agreement after receiving
the balance sale consideration. Thus there is some delay on the part of the first
respondent in issuing pre-suit notice and filing of the suit. The same has been
clearly explained by the fact that the suit property was not in physical
possession of agreement vendor.
10. The Courts below on appreciation of evidence available on
record came to the correct conclusion that the first respondent proved his
continuous readiness and willingness from the date of the agreement to the
date of filing of the suit. The said factual conclusion reached by the Courts
below does not call for any interference by this Court while exercising
jurisdiction under Section 100 of the Code of Civil Procedure. Finding no
substantial question of law arises for consideration in this appeal, the Second
Appeal is dismissed.
11. a) In the result, the Second Appeal stands dismissed by
confirming the judgment and decree passed by the Courts below.
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S.SOUNTHAR, J.
dna
b) In the facts and circumstances of the case, there shall be no
order as to costs. Consequently, connected Miscellaneous Petition is closed.
22.11.2023
Index : Yes/No
Internet : Yes/No
Neutral Citation Case : Yes/No
dna
To
1.The Additional District Court, Namakkal
2.The Sub-Court, Namakkal.
and
https://www.mhc.tn.gov.in/judis
