Madras High Court
M.Sakunthala Manuelraj vs / on 22 November, 2023
Author: S.Srimathy
Bench: S.Srimathy
S.A.(MD).No.339 of 2017
THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.11.2023
CORAM:
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
S.A.(MD).No.339 of 2017
and
C.M.P.(MD)Nos.7261 and 7262 of 2017
M.Sakunthala Manuelraj ... Appellant
/Vs./
T.Anbalagan Alexandar ...Respondent
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure Code
against the impugned Judgment and Decree passed by the Learned 1st Additional
District Judge, Thoothukudi, dated 09.02.2017, in A.S.No.9 of 2015 reversing the
impugned Judgment and Decree passed by the Learned Subordinate Judge,
Thoothukudi, dated 07.12.2012, in O.S.No.23 of 2006.
For Appellant : Mr.N.Dilip Kumar
For Respondent : Mr.S.Kumar
*****
JUDGMENT
The plaintiff has filed a suit for specific performance directing the
defendant to execute the sale deed by receiving the balance consideration of Rs.
50,000/-.
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2. The brief facts of the case are that the sale agreement was executed
on 03.06.2004 for the sale consideration of Rs.2,00,000/- and the same was
registered. On the date of sale agreement, the plaintiff has already paid 75% of the
sale consideration of Rs.1,50,000/-. The balance sale consideration payable by the
plaintiff is Rs.50,000/- and the period fixed is one year. The plaintiff has stated
that she has means to pay the same, since she has sufficient money in Canara
Bank, Nazareth Branch and also in Cooperative Bank, Prakasapuram. Apart from
the same, the plaintiff is having landed properties and she has cash in hand. The
plaintiff was repeatedly requesting the defendant to receive the balance sale
consideration Rs.50,000/- and to execute and register the sale deed in respect of
the suit schedule property at the expenses of the plaintiff. The plaintiff further
submitted that she and her daughter are at Bhilai and she used to come often to her
native place but the defendant was evading to receive the balance of sale
consideration Rs.50,000/- and to execute a sale deed. Further the defendant is
trying to sell the schedule property for higher price. Hence, the plaintiff has
issued suit notice dated 22.11.2005 and the defendant has received the same on
28.11.2005. Since the defendant has refused to execute the sale, the plaintiff has
filed the suit on 13.02.2006.
3. The defendant has filed written statement denying the transaction
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as sale agreement and stated the defendant had not agreed to sell the suit property.
But the transaction between the plaintiff and the defendant is only loan
transaction. The defendant has taken money from the plaintiff and the dispute
arose while calculating interest. The sale agreement is created for the sake of the
case and all the averments stated by the plaintiff ought to be proved by the
plaintiff. Further the defendant submitted that the defendant is challenging the
judgment of the Courts below only to the extent of adverse findings against him.
The defendant is relying on the judgment of the Hon'ble Supreme Court in the
case of Shri Saurav Jain and another Vs. A.B.P. Design and another reported in
2022 (1) CTC 235. Hence, the defendant submitted that his plea is against the
adverse finding of loan transaction alone and the same may be considered.
4. The Trial Court after considering the evidence had allowed the suit
and directed the plaintiff to pay the balance amount of Rs.50,000/- and on such
payment directed the defendant to execute the sale deed. Aggrieved over the same
the defendant has preferred an appeal. In the meanwhile, the plaintiff has filed an
execution petition and the sale has been executed by the Sub Judge, Thoothukudi
on 16.09.2014. The Appellate Court has reversed the finding and has directed the
plaintiff to repay the advance amount of Rs.1,50,000/- at 9% interest and from
09.03.2017 onwards with 12% interest. Aggrieved over the same, the plaintiff has
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preferred the present second appeal.
5. The second appeal was admitted on the following two substantial
questions of law:
“(A) Whether the First Appellate Court had correctly applied the
provisions under Section 16(c) and Section 20 of the Specific Relief Act to
reject the case of the plaintiff?
(B) Whether the First Appellate Court is correct in reversing the
Trial Court finding that the onus is upon the defendant to prove that the
appellant is not ready and willing to perform the contract rather than
demanding the plaintiff to prove readiness and willingness due to his denial
of the sale agreement and contending it as a security document?”
6. The first substantial question of law is whether the case of the
plaintiff has to be rejected under Section 16(c) and Section 20 of the Specific
Relief Act? The relevant provisions of the sections are extracted hereunder:
“Section 16:
Personal bars to relief.—Specific performance of a contract cannot be
enforced in favour of a person—
[(a) who has obtained substituted performance of contract under section
20; or]2
(b) who has become incapable of performing, or violates any essential term
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of, the contract that on his part remains to be performed, or acts in fraud of
the contract, or wilfully acts at variance with, or in subversion of, the
relation intended to be established by the contract; or
(c) 3[who fails to prove] that he has performed or has always been ready
and willing to perform the essential terms of the contract which are to be
performed by him, other than terms the performance of which has been
prevented or waived by the defendant.
Explanation.—For the purposes of clause (c),—
(i) where a contract involves the payment of money, it is not essential for
the plaintiff to actually tender to the defendant or to deposit in court any
money except when so directed by the court;
(ii) the plaintiff 4[must prove] performance of, or readiness and
willingness to perform, the contract according to its true construction.
Section 20:
20. 3[Substituted performance of contract.—(1) Without prejudice to the
generality of the provisions contained in the Indian Contract Act, 1872 (9
of 1872), and, except as otherwise agreed upon by the parties, where the
contract is broken due to non-performance of promise by any party, the
party who suffers by such breach shall have the option of substituted
performance through a third party or by his own agency, and, recover the
expenses and other costs actually incurred, spent or suffered by him, from
the party committing such breach.
(2) No substituted performance of contract under sub-section (1) shall be
undertaken unless the party who suffers such breach has given a notice in
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writing, of not less than thirty days, to the party in breach calling upon him
to perform the contract within such time as specified in the notice, and on
his refusal or failure to do so, he may get the same performed by a third
party or by his own agency:
Provided that the party who suffers such breach shall not be entitled to
recover the expenses and costs under sub-section (1) unless he has got the
contract performed through a third party or by his own agency.
(3) Where the party suffering breach of contract has got the contract
performed through a third party or by his own agency after giving notice
under sub-section (1), he shall not be entitled to claim relief of specific
performance against the party in breach.
(4) Nothing in this section shall prevent the party who has suffered breach
of contract from claiming compensation from the party in breach.”
7. Under Section 16(c) the person who is seeking specific
performance ought to prove that he had performed or has always been ready and
willing to perform the essential terms of the contract which are to be performed by
him. In the present case, the plaintiff had averred in the plaint that the plaintiff
was repeatedly requesting the defendant to receive the balance sale consideration
Rs.50,000/- and to execute and register the sale deed in respect of the schedule
property and further stated that she and her daughter are at Bhilai and she used to
come often to her native place but the defendant was evading to receive the
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balance of sale consideration Rs.50,000/- and to execute a sale deed. Except for
this averment there is no other evidence to show that the plaintiff is ready and
willing to perform his part of the contract. Even in the above averment the
plaintiff had not mentioned the dates, when she approached the defendant to
perform the contract and on which date the defendant refused to execute. It is only
bare statements.
8. Further the contract ought to be completed within a period of one
year i.e. on or before 02.06.2005 and the plaintiff has not stated any reason for not
completing her part of the contract within a period of one year. From the date of
completion of one year till the date of issuance of suit notice, the plaintiff has not
stated whether the plaintiff was ready and willing to complete the contract.
Moreover, the plaintiff had not taken any steps to issue notice during the contract
period of one year, which is an important aspect to determine the readiness and
willingness. It is only subsequently, after the period of one year, the plaintiff has
issued a suit notice on 22.11.2005 i.e. after five months of contract period.
According to the plaintiff, the defendant has received it on 28.11.2005. But the
defendant has stated that he has never received such notice from the plaintiff and
further submitted that the plaintiff was not ready and willing to complete the
contract. The learned Counsel appearing for the defendant (respondent herein)
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relied on the judgment rendered by this Court in the case of Durairaji and
another Vs. Nadarajan reported in (2021) 3 CTC 520 wherein the Learned Single
Judge has stated that merely stating in the plaint that he is ready and willing is not
sufficient, the Act mandates to prove certain things and it is the duty of the Court
to frame issue whether the party is ready and willing. In the above said case, the
contract was entered between the parties and the party was willing to complete it
within a period of two years and the Court held when the party was having means
to pay Rs.37,000/-, it is not believable that the party could not pay the balance of
Rs.10,500/-, hence the Learned Single Judge disbelieved the case of the party
thereunder. In the present case also the balance payable is only Rs.50,000/- and
the plaintiff is claiming that she is having means to pay the same, wherein the
plaintiff stated that she is having Bank accounts wherein she is maintaining more
than Rs.5,000/- in a month, the plaintiff is having landed properties and cash in
hand, the plaintiff is earning through agriculture activities and the plaintiff's
daughter is having a job at Bhilai. Hence submitted that the plaintiff has means to
pay the balance amount. Further the plaintiff had stated in the deposition that
every year through agriculture activities, she is earning Rs.50,000/- and had
deposited the said amount in the Bank account. With such amount, she has
already paid Rs.1,50,000/- and sought time to pay the balance amount within a
period of one year and had produced the passbook marked as Ex.A5 and Fixed
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Deposit Ex.A6. This Court has perused the passbook wherein it is seen that from
2004 onwards the plaintiff is maintaining more than Rs.1,00,000/- and odd.
Subsequently, the plaintiff has sought one year time to pay the balance amount
and to complete the transaction. On perusal of the Bank passbook, it is seen that
the plaintiff was maintaining minimum Rs.5,000/- in the Bank accounts until
2011. Moreover, she has pleaded in the plaint that she is having some landed
properties and also cash in hand. Further the plaintiff is having fixed deposits in
another bank. From these it is evident the plaintiff is having means to pay. In such
circumstances, this Court is of the considered opinion that the plaintiff has means
to pay the balance amount. When the plaintiff has means to pay balance of Rs.
50,000/-, then seeking one-year period for paying the balance of Rs.50,000/- is
unbelievable. Hence the said judgment is squarely applicable to the present case.
9. The Learned Counsel appearing for the appellant / plaintiff relied
on the judgment rendered in the case of George Kavalam Vs. P.Vijayalakshmi in
S.A.No.695 of 2006, vide judgment, dated 18.06.2015 and submitted that when
the defendant has not taken a plea that there is absence of readiness and
willingness and he has not adduced any evidence to that effect, then the case of
the defendant cannot be believed. This Court cannot accept the said contention
since the plaintiff ought to discharge his burden of proof first as per Section 16(c)
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of the Specific Relief Act. Even in the said judgment of George Kavalam the
Hon’ble Court had held that the plaintiff had discharged his duty and had relied on
the exhibits, it only thereafter proceeded to state that the defendant ought to have
taken a plea in the written statement that the plaintiff was not ready and willing.
The relevant portion of the judgment is extracted hereunder:
“16. In a suit for specific performance it shall not be enough
for the plaintiffs to prove the execution of the agreement and passing
of consideration in the form of advance. As per section 16(c) of the
Specific Relief Act, 1963 he has to plead and prove that he has either
performed his part of the obligations under the agreement for sale or
has been ready and willing to perform his part of the obligations
under the agreement for sale. In compliance with the mandate
provided in the said section, the plaintiff has made necessary plea to
the effect that right from the date of execution of the agreement for
sale he had been ready and willing to pay the balance amount of sale
consideration and get the sale deed executed and registered in his
name at his cost and that it was the respondent/defendant, who
postponed the same under one pretext or other. In fact under Ex.A5,
the appellant/plaintiff chose to issue a notice on 14.02.1998 calling
upon the respondent/defendant to be present at 10.00 a.m. on
19.02.1998 in the Registrar's office to collect the balance sale
consideration and execute the sale deed in terms of the agreement.
The said notice was received by the appellant/plaintiff on 16.02.1998
as evidenced by Ex.A6. The respondent/defendant did not turn up and
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she had not even chosen to send a reply to the said notice. In
addition, even in the written statement of the respondent/defendant,
there is no specific denial of the readiness and willingness on the
part of the appellant/plaintiff. In paragraph 5 of the written
statement, it has been stated that she was not aware of several
requests allegedly made by the plaintiff as averred in paragraph 3 of
the plaint. Nowhere in the written statement the
respondent/defendant had taken a specific plea that there was
absence of readiness and willingness on the part of the
appellant/plaintiff. There is also no such evidence adduce on the side
of the respondent/defendant, whereas PW1 (plaintiff) in his evidence
made it clear that he was having sufficient money for making
payment of the sale consideration. He has also produced Ex.A12, the
banker's certificate to show that he was having Rs.3,05,000/- in his
account as on 12.12.2002. By the cumulative effect of oral and
documentary evidence, the appellant/plaintiff proved his readiness
and willingness to perform his part of the obligations under the
agreement. He has also proved his capacity to make payment and the
same has not been disproved by the respondent/defendant by reliable
evidence. Hence the finding of the learned trial judge regarding the
readiness and willingness on the part of the plaintiff also ought not
to have been interfered with by the lower appellate judge and there is
no justification for such interference. For all the reasons stated
above, the third substantial question of law deserves to be answered
in favour of the appellant and against the respondent herein.”
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10. When the law states that the plaintiff seeking specific
performance ought to plead in the plaint that he was ready and willing. Thereafter
the plaintiff ought to submit proof that he was ready and willing. Then only the
burden would shift to the defendant, wherein the defendant ought to have pleaded
that the plaintiff was not ready and willing and also submit evidence to prove his
version of case. In the present case the plaintiff had pleaded that she was ready
and willing but has not submitted proof to substantiate her case. As stated supra
within one year of contract period the plaintiff had not issued any notice stating
that she was ready and willing to complete the contract. Subsequent issuance of
notice (i.e. after five months of contract period) would not prove the case of the
plaintiff that she was ready and willing. It should be within the contract period the
plaintiff ought to have issued notice, then only there would be sufficient proof of
ready and willingness. Therefore, by considering the aforesaid two judgments
stated supra and the relevant records along with deposition, this Court is of the
considered opinion that the readiness and willingness should be proved by the
person who is claiming that he is ready and willing. In the present case, since
there is five months delay in issuing notice calling upon the defendant to complete
the contract, then the same would prove that the plaintiff was not ready and
willing to complete the contract within the contract period of one-year. Hence
there is no readiness and willingness on the part of the plaintiff.
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11. The Learned Counsel appearing for the plaintiff / appellant tried
to convince this court by stating that the plaintiff was travelling frequently and
hence could not complete it within a period of one-year. And also submitted that
the parties are known to each other for more than eight years and the defendant
has accepted that the plaintiff's son is a friend of the defendant and hence the
delay in issuance of notice for five months cannot be taken for denying the prayer
of specific performance. But the Learned Counsel appearing for the defendant
submitted that there was no agreement to sale at all, since there was only loan
transaction between the parties. In the written statement the defendant had
submitted that there was dispute while arriving at interest to the loan transaction.
But the defendant / respondent had suffered a finding in the Court below, wherein
the Courts below had held that the defendant has accepted the sale agreement
during cross examination and hence there is no loan transaction. For which the
defendant is relying on the judgment of the Hon'ble Supreme Court in the case of
Shri Saurav Jain and another Vs. A.B.P. Design and another reported in 2022
(1) CTC 235, wherein it is held any adverse remarks can be challenged. The
principle in Order 41 Rule 22 is to do complete justice to party other than
aggrieved party to challenge any adverse findings against them. But the Hon’ble
Supreme Court had invoked Article 142 of the Constitution of India and had
granted the relief. But such power is not available to the High Courts and hence
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this plea of the defendant cannot be entertained.
12. Based on the above analysis both the substantial questions of law
are held against the plaintiff. The plaintiff is not entitled to the relief of specific
performance and hence the sale deed already executed by the Sub Court, Tuticorin
on 16.09.2014 is cancelled. Since this Court has held that the plaintiff is not
entitled to specific performance, at the same breath the defendant also is not
entitled to the relief to set aside the adverse remarks regarding the loan
transaction. Moreover, the defendant had not filed any appeal or cross appeal.
Therefore, the Judgement and Decree of the First Appellate Court directing the
plaintiff to return the amount of Rs.1,50,000/- with 9% interest and thereafter 12%
interest is also set aside. This would be appropriate, since the defendant has stated
in the written statement that there was dispute regarding calculating the interest
alone. Hence, the second appeal is partly allowed in above terms. No costs.
Consequently, connected miscellaneous petitions are closed.
22.11.2023
Index : Yes / No
NCC : Yes / No
Tmg
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TO:
1. 1st Additional District Judge, Thoothukudi.
2.Subordinate Judge, Thoothukudi.
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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S.SRIMATHY, J.
Tmg
Judgment made in
Dated:
22.11.2023
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