Madras High Court
Haridass vs Rajammal on 27 November, 2023
S.A.No.765 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.11.2023
CORAM
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
S.A.No.765 of 2017
Haridass ... Appellant
vs.
Rajammal ... Respondent
PRAYER: Second Appeal is filed under Section 100 of Code of Civil
Procedure, to set aside the Decree and Judgment in A.S.No.2 of 2005 dated
31.01.2007 on the file of Principal District Court, Perambalur confirming
the decree and judgment in O.S.No.6 of 2001 dated 10.01.2005 on the file
of Sub Court, Ariyalur.
For Appellant : Mr.R.Agilesh
For Respondent : Mr.R.Nalliyappan
JUDGEMENT
The unsuccessful defendant, who suffered a decree for specific
performance is the appellant. The suit for specific performance filed by the
respondent/plaintiff was decreed by the Trial Court and the findings of the
Trial Court were affirmed by the First Appellate Court. Aggrieved by the
concurrent findings, the unsuccessful defendant is before this Court.
2. According to the respondent/plaintiff, the suit property belongs to
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the appellant/defendant and respondent entered into a Sale Agreement with
the appellant on 04.01.2000 for purchase of suit property for a sale
consideration of Rs.1,55,000/-. As per the terms of Suit Sale Agreement, an
advance amount of Rs.1,30,000/- was paid by the respondent to the
appellant on 04.01.2000 and it was agreed by both the parties the balance
amount of Rs.25,000/- should be paid by the respondent within a period of
one year (i.e., on or before 03.01.2001) and get the sale transaction
completed. Though the respondent expressed her readiness and willingness
to pay the balance sale consideration and get the sale deed executed, the
appellant evaded her request under one pretext or other. Hence, the
respondent was constrained to issue a legal notice to the appellant on
12.12.2000 calling upon him to execute the sale deed in pursuance of the
Suit Sale Agreement, after receiving balance sale consideration of
Rs.25,000/-. However, having received the said legal notice, the appellant
failed to respond favourably and hence, the respondent was constrained to
file a suit for specific performance.
3. The appellant herein filed a written statement and denied the very
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execution of Suit Sale Agreement. It was his case that there was a separate
transaction between the respondent's husband-Raju and appellant's friend-
Vijayakumar and Suit Sale Agreement was executed as a security for the
amount paid by the respondent's husband to said Vijayakumar. It was
further contended by the appellant that at the time of payment of amount by
respondent's husband to the appellant's friend-Vijayakumar, the respondent
obtained signature of the appellant in blank stamp papers and pronote form
and the same could have been utilised to concoct the Suit Sale Agreement. It
was further averred by the appellant that after receipt of pre-suit notice, he
approached the respondent's husband and enquired him about the pre-suit
notice. It was agreed by him, if amount paid by him was repaid, he would
not proceed further. Believing the words of the respondent's husband, the
appellant had not issued any reply to the legal notice. On these pleadings,
the appellant sought for dismissal of the suit.
4. The Trial Court on consideration of oral and documentary
evidences available on record, came to the conclusion that due execution of
Suit Sale Agreement was proved by evidence of attestor to the documents
namely PW.2. The Trial Court also based on the evidence available on
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record, came to the conclusion that the respondent proved her continuous
readiness and willingness and accordingly, granted a decree for specific
performance. Aggrieved by the same, the appellant herein preferred an
appeal in A.S.No.2 of 2005 on the file of the District Court, Perambalur. The
First Appellate Court affirmed the findings of the Trial Court. Aggrieved by
the concurrent findings, the appellant is before this Court.
5. The learned counsel appearing for the appellant submitted that
there was no intention on the part of the appellant to enter into Suit Sale
Agreement and hence, the suit filed by the respondent based on the
document, which was executed as a security for separate transaction cannot
be basis for decree for specific performance. The learned counsel further
submitted that the respondent's husband entered the box without any
authorisation from the respondent and hence, the Courts below ought not to
have taken into consideration the evidence of respondent's husband. The
learned counsel further submitted that the failure of the respondent to enter
the box is also fatal to the case of the respondent.
6. It is the specific case of the respondent that she entered into Suit
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Sale Agreement with the appellant for purchase of agreement mentioned
property on 04.01.2000. As per the terms of agreement, the agreed sale
consideration was Rs.1,55,000/-. The respondent paid an advance amount of
Rs.1,30,000/- and the balance amount of Rs.25,000/- was agreed to be paid
within a period of one year. Before expiry of one year period, the respondent
issued a legal notice to appellant calling upon him to receive the balance sale
consideration and execute the sale deed in pursuance of the Suit Sale
Agreement. The said legal notice was marked by respondent as Ex.A2. The
receipt of legal notice was admitted by the appellant in his written statement
and it was pleaded by the appellant that after receipt of legal notice, he
approached the respondent's husband and on the basis of promise made by
him, he failed to give reply to the legal notice. If really the Suit Sale
Agreement was not intended to be treated as a sale agreement, immediately
after receipt of legal notice by the appellant, the appellant would have issued
a reply notice mentioning that the suit sale agreement was not intended to be
treated as an agreement. Failure of the appellant to issue reply to the legal
notice of the respondent is fatal to the defence of the appellant. If really, the
Suit Sale Agreement was not entered into, no ordinary person would keep
quiet after receipt of legal notice by respondent calling for enforcement of
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the Suit Sale Agreement.
7. In order to prove due execution of Suit Sale Agreement, the
respondent herein examined PW.2, who attested the document. The said
witness clearly deposed about the execution of Suit Sale Agreement by the
appellant and receipt of advance amount etc. The Courts below based on the
oral evidence of PW.1 and PW.2 and also admissions of DW.2 came to the
conclusion that Suit Sale Agreement was duly executed by the appellant
herein agreeing to sell the agreement mentioned property as per the terms
and conditions set out in the agreement. The said factual conclusion reached
by the Courts below are not vitiated by any perversity.
8. On behalf of the respondent, the husband of the respondent was
examined as PW.1. It is settled law that husband is competent to give
evidence on behalf of wife and for that purpose any authorisation from his
wife is not necessary. Therefore, the said submission made by the learned
counsel appearing for the appellant is also not acceptable to this Court.
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9. As per the terms of agreement, the balance sale consideration has to
be paid within a period of one year and the said period expires on
03.01.2001. Even before expiry of the said period, the respondent issued
legal notice under Ex.A2 on 12.12.2000 expressing her readiness and
willingness to perform her part of the contract. The appellant failed to
respond the legal notice. In such circumstances, the suit was filed on
03.01.2001 well within the period stipulated under the Suit Sale Agreement.
In such circumstances, the findings rendered by the Courts below that the
respondent proved her readiness and willingness to perform her part of the
contract, is also based on the evidence available on record and the same also
requires no interference by this Court.
10. In view of the discussions made earlier, the appellant has not
made any ground to interfere with the findings rendered by the Courts
below. Accordingly, the Second Appeal is dismissed by confirming the
judgement and decree passed by the Courts below.
In Nutshell:-
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(i) The Second Appeal is dismissed by confirming the judgement and
decree passed by the Courts below.
(ii) In the facts and circumstances of the case, there shall be no order
as to costs.
27.11.2023
Index : Yes/No
Speaking order : Yes/No
Neutral Citation : Yes/No
dm
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To
1.The Principal District Court,
Perambalur.
2.The Sub Court, Ariyalur.
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S.SOUNTHAR, J.
dm
27.11.2023
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