Madras High Court
Vijayalakshmi vs Surulivel on 4 September, 2023
S.A.(MD)No.468 of 2009
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 04.09.2023
CORAM
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
S.A.(MD)No.468 of 2009 &
M.P.(MD)Nos.2 & 3 of 2009
Vijayalakshmi ...Appellant
vs.
Surulivel ... Respondent
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the Judgment and Decree dated 21.02.2008 in A.S.No.
6 of 2007 on the file of the Additional District Court (Fast Track Court
No.4), Periyakulam confirming the Judgment and Decree dated
28.02.2006 in O.S.No.418 of 2002 on the file of the Subordinate Court,
Periyakulam.
For Appellant : Mr.R.Subramanian
For Respondent : Mr.Anand Chandrasekar
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S.A.(MD)No.468 of 2009
JUDGMENT
The appellant is the defendant in the suit in O.S.No.418 of 2002 on
the file of the Subordinate Court, Periyakulam. The respondent is the
plaintiff in the above suit.
2. The suit was filed by the respondent / plaintiff seeking for
equitable relief of specific performance and permanent injunction
restraining the appellant / defendant from alienating or encumbering the
suit properties.
3. The case of the plaintiff is that the suit properties belong to the
defendant. The defendant agreed to sell the properties to the plaintiff for
a sale consideration of Rs.2,25,000/- and both parties registered a Sale
Agreement dated 21.05.1998. On that day itself, the defendant received
a sum of Rs.2,00,000/- as advance. As per the Sale Agreement, the
defendant should receive the balance amount of Rs.25,000/- within a
period of two and half years i.e., on or before 21.11.2000 from the
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plaintiff and execute a Sale Deed in favour of the plaintiff or the persons
mentioned by the plaintiff at the cost of the plaintiff. The plaintiff sent a
telegraphic notice dated 11.11.2000 to the defendant stating that he
would wait in the Sub Registrar Office on 21.11.2000 and the defendant
should come and execute the Sale Deed as per the Agreement. However,
the defendant has not responded to the same. Though the plaintiff waited
at the Sub Registrar Office throughout the day on 21.11.2000, the
defendant has not come forward to execute the Sale Deed. Thereafter,
the defendant had come to the plaintiff and promised orally that she will
execute the Sale Deed and therefore, the plaintiff waited even after the
expiry of the Agreement. However, since the plaintiff came to know that
the defendant is about to execute a Sale Deed in favour of a third party,
he has filed this suit for specific performance on 18.11.2000. It is his
case that, in the meantime, the defendant and her husband filed a suit in
O.S.No.68 of 2002 on the file of the District Munsif Court, Periyakulam
against the plaintiff and his father seeking permanent injunction
restraining them from interfering with the peaceful possession and
enjoyment of the defendant and her family.
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S.A.(MD)No.468 of 2009
4. The case of the defendant is that for the past 14 years, for the
purpose of Pickle Business, the defendant and her husband have received
money from the plaintiff's family and they also used to execute Sale
Agreement as security. In a similar way, in the year 1995, Sale
Agreements were executed along with Power of Attorney and upon
Settlement of money, the Sale Agreements were not acted upon and the
Power of Attorney was also cancelled. Subsequently, a sum of Rs.
2,25,000/- was borrowed from the plaintiff, for which the Sale
Agreement dated 21.05.1998 came to be executed nominally at the Sub
Registrar Office, Bodi in favour of the plaintiff. There are two schedules
in the suit properties. The first schedule belong to the defendant and she
had no intention to sell the same. The second schedule is a poromboke
land measuring an extent of 30 cents. The defendant has settled the total
sum of Rs.2,25,000/- in the month of August 2001. Since the plaintiff
forced the defendant to execute the Sale Deed, the defendant and her
husband have filed a suit in O.S.No.68 of 2002 on the file of the District
Munsif Court, Periyakulam against the plaintiff and his father seeking for
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S.A.(MD)No.468 of 2009
permanent injunction. The readiness and willingness alleged by the
plaintiff is false, if so, the plaintiff would have filed the suit once he
received summon in O.S.No 68 of 2002. Further, on the date of filing the
present suit, the plaintiff has paid only a sum of Rs.1,000/- as stamp fee,
which shows that he was not ready and willing to perform his part of
contract. The contention that, subsequent to 21.11.2000, the defendant
approached the plaintiff and promised to execute the Sale Deed is false.
Therefore, the present case of specific performance is not maintainable
and the respondent / plaintiff is not entitled for any of the reliefs sought
for by him.
5. Before the Trial Court, the plaintiff has examined himself as
PW1 and marked 3 documents as Exs.A1 to A3 in order to substantiate
his case. The defendants examined three witnesses DW1 to DW3
including the defendant (DW1) and marked 4 documents as Exs.B1 to B4
in order to substantiate their case. In addition to the above, Ex.C1 was
also marked.
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6. After considering the oral and documentary evidence on both
sides, the Trial Court came to the conclusion that there was a valid Sale
Agreement dated 21.05.1998 between the plaintiff and the defendant and
as per the Agreement, the defendant is liable to execute the Sale Deed.
Therefore, the Trial Court granted Judgment and Decree in favour of the
plaintiff.
7. Aggrieved over the said Judgment and Decree, an appeal was
filed by the defendant in A.S.No.6 of 2007 before the Additional District
Judge (Fast Track Court No.IV), Periyakulam. After hearing both sides,
the first Appellate Court upheld the Judgment and Decree passed by the
Trial Court. Aggrieved over the same, the appellant / defendant filed the
present Second Appeal.
8. This Court admitted this appeal on 20.08.2009, by framing the
following substantial question of law.
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"Whether the Courts below are right in holding
that the plaintiff is entitled to get the equitable
relief of the specific performance while
exercising the power under Section 20 of the
Specific Relief Act?"
9. When this matter was taken up for hearing on 17.08.2023, after
hearing both the parties, this Court framed the following additional
substantial question of law.
"Whether the purchaser is ready and willing to
perform the contract throughout the period of
contract?"
10. The learned counsel appearing for the appellant / defendant
would submit that for the purpose of business, the appellant / defendant
used to borrow money from the respondent / plaintiff from time to time
and execute Sale Agreement as security. Similarly, in the year 1995, the
appellant / defendant borrowed money, executed a Sale Agreement along
with the Power of Attorney as security and upon repayment of money, the
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Agreement was not acted upon and the Power of Attorney also got
cancelled. The above facts are also supported by documentary evidence.
In a similar way, Sale Agreement dated 21.05.1998 was executed when
the appellant / defendant borrowed a sum of Rs.2,25,000/-. The
Agreement was executed nominally as a security for the handloan and the
appellant / defendant had no intention to sell her property. The learned
counsel would submit that the relief sought for in the suit is discretionary
relief. In a suit for specific performance, the plaintiff has to prove his
readiness and willingness to perform his part of Agreement from the date
of the Agreement till the date of the expiry of the Agreement. At this
juncture, the learned counsel would stress on the fact that the first
schedule of the suit properties belong to the appellant / defendant and the
second schedule is a poromboke land and it does not even belong to the
appellant / defendant. The respondent / plaintiff entered into the
Agreement without even verifying the title of the properties, which
would go to show that he had no intention to purchase the properties
from the beginning, which would eventually mean that he had no
intention of executing the Agreement.
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11. To substantiate his case, the learned counsel for the appellant /
defendant referred to the following Judgments.
(a) Judgment of the Division Bench of the Hon'ble Supreme Court of
India in the case of State of Rajasthan and others vs.
M/s.Khandaka Jain Jewellers reported in 2008 1 L.W. 705.
(b) Judgment of the Division Bench of the Hon'ble Supreme Court of
India in the case of Atma Ram vs. Charanjit Singh reported in
(2020) 3 SCC 311.
(c) Judgment of the Division Bench of the Hon'ble Supreme Court of
India in the case of Tarsem Singh vs. Sukhminder Singh reported
in (1998) 3 SCC 471.
(d) Judgment of the Principal Bench of this Court in the case of
Durairaji and another vs. Nadarajan reported in 2021 (3) CTC 520.
(e) Judgment of the Principal Bench of this Court in the case of
Paramanadham vs. A.G.Kannan in S.A.No.235 of 2021 dated
12.03.2021.
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(f) Judgment of the Division Bench of this Court in the case of
S.Palanivel vs. P.Natesan reported in 2018 1 MLJ 746.
(g) Judgment of the Karnataka High Court in the case of M.Rathnam
and others vs. Smt.Susheelamma reported in AIR 2009 Karnataka
12. The learned counsel appearing for the appellant / defendant
among the above Judgments specifically relied on the Judgment of the
Principal Bench of this Court in the case of Durairaji and another vs.
Nadarajan (cited supra) and submitted that it is mandatory requirement
for the respondent / plaintiff to prove his readiness and willingness to
perform the contract by adducing oral and documentary evidence for
granting specific performance of the contract. Therefore, the learned
counsel would submit that since proving the readiness and willingness to
perform the contract is a mandatory requirement, not proving the same
would be fatal to the case and therefore since in the present case the
respondent / plaintiff has not proved his readiness and willingness to
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perform the contract, he is not entitled for the relief of specific
performance sought for by him.
13. The learned counsel would therefore submit that both the Trial
Court as well as the Appellate Court without considering the above
aspects have proceeded to pass a Judgment and Decree based on the Sale
Agreement dated 21.05.1998 and granted the equitable relief of specific
performance in favour of the respondent / plaintiff. He fairly submitted
that the appellant / defendant is ready to return the sum of Rs.2,00,000/-
along with the reasonable rate of interest as this Court may find deem it
fit and prayed for allowing the present appeal.
14. Per contra, the learned counsel appearing for the respondent /
plaintiff would submit that the Sale Agreement dated 21.05.1998 is
admitted by both the parties. As per the said Sale Agreement, the sale
consideration was Rs.2,25,000/- and out of the said amount Rs.2,00,000/-
was paid as advance to the appellant / defendant. Since the appellant /
defendant requested time for constructing a new house and shifting to the
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same, time period of two and half years was provided to her to execute
the Sale Deed. The learned counsel fairly admitted that this aspect was
culled out during the course of oral evidence and cross examination of
PW1 and no pleading to this effect is available in the plaint or in the
proof affidavit filed during the course of chief examination. The learned
counsel would submit that the respondent / plaintiff sent a telegraphic
notice on 11.11.2000 calling upon the appellant / defendant to execute
the Sale Deed on 21.11.2000. However, the appellant / defendant has not
come forward to execute the Sale Deed. Thereafter, the appellant /
defendant had approached the respondent / plaintiff and promised that
she will execute the Sale Deed and therefore, the plaintiff waited even
after the expiry of the Agreement. The suit was filed within two years
from the date of expiry of the Sale Agreement, which is well within the
period of limitation. As stated above, only at the request of the appellant /
defendant, time was granted to her. According to the learned counsel, the
appellant / defendant had also demanded more money for execution of
the Sale Deed. The learned counsel would therefore submit that the Trial
Court as well as the Appellate Court after considering all the oral and
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documentary evidence and also the suit filed in O.S.No.68 of 2002 on the
file of the District Munsif Court, Periyakulam seeking for permanent
injunction, have passed a well reasoned Judgment and the same needs no
interference by this Court.
15. In order to support his case, the learned counsel relied upon the
Division Bench Judgment of the Hon'ble Supreme Court of India in the
case of Surya Narain Upadhyaya vs. Ram Roop Pandey and others
reported in AIR 1994 SCC 106 and submitted that in the said case the
Hon'ble Supreme Court found that the appellant was always ready and
willing to pay the balance consideration and therefore, the appellant is
entitled for the relief of specific performance. Therefore, he would
submit that since in the present case, the respondent / plaintiff was
always ready and willing to pay the balance sum of Rs.25,000/-, he is
also entitled for the relief of specific performance.
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16. I have given due consideration for the submissions made by the
learned counsel for the appellant / defendant as well as the learned
counsel for the respondent / plaintiff and perused the materials available
on record. I have also gone through the various Judgments placed before
this Court.
17. The issue to be determined in the present case is whether the
respondent / plaintiff is entitled for the equitable relief of specific
performance and whether such a relief granted by the Courts below is in
accordance with Section 20 of the Specific Relief Act, 1963.
18. The suit was filed by the respondent / plaintiff seeking for
specific performance and permanent injunction. There are two schedules
in the suit properties. The first schedule of the suit properties is a house
and the second schedule is 30 cents of land, which is a poromboke land.
The case of the respondent / plaintiff is that a Sale Agreement dated
21.05.1998 was entered for the purchase of the suit properties. However,
the case of the appellant / defendant is that the Sale Agreement was
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executed as security for the loan obtained by her from the respondent /
plaintiff and that she had no intention to sell the first schedule either at
the time of entering into the Agreement or subsequent to that.
19. As mentioned above the Sale Agreement, Ex.A1 was entered
into between the parties on 21.05.1998. Subsequently, on 11.11.2000
i.e., after a period of two years and five months, the respondent / plaintiff
had sent a telegraphic notice calling upon the appellant / defendant to the
Sub Registrar Office to receive the sum of Rs.25,000/- and execute the
Sale Deed on 21.11.2000, as per the terms of the Sale Agreement.
However, the appellant / defendant has not come forward to execute the
Sale Deed on 21.11.2000. Once the appellant / defendant refused to
execute the Sale Deed, the respondent / plaintiff ought to have filed a suit
and proved his readiness and willingness to perform his part of the
Agreement. However, the respondent / plaintiff has not done so. He has
filed the present suit only on 18.11.2002, that is nearly after two years
from the date of expiry of the Sale Agreement.
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20. A pleading is available in the plaint that since the appellant /
defendant promised to execute the Sale deed, the respondent / plaintiff
waited till 18.11.2002. However, this pleading is not supported by any of
the oral or documentary evidences. Admittedly, the telegraphic notice
was received by the appellant / defendant and she failed to execute the
Sale Deed on 21.11.2000. In such circumstances, contention of the
respondent/ plaintiff that only on the promise of the appellant /
defendant, he has not filed a suit and waited for execution of Sale Deed
for more than two years cannot be acceptable. Furthermore, the refusal
on the part of the appellant / defendant to execute the Sale Deed on
21.11.2000 would show that she was not at all ready and willing to sell
the property to the respondent / plaintiff.
21. At this juncture, it is pertinent to point out that readiness and
willingness does not mean the readiness and willingness to pay or
receive the money, but the intention of the parties to execute their part of
the Agreement from the date of Agreement till the date of its expiry. This
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aspect was not at all considered by the Trial Court as well as the
Appellate Court.
22. The appellant / defendant filed a suit in O.S.No.68 of 2002
seeking for permanent injunction restraining the respondent / plaintiff
from interfering with her peaceful possession and enjoyment of the
properties. From the above suit, it can be inferred that since the
appellant / defendant failed to repay the sum of Rs.2,00,000/-, the
respondent / plaintiff interfered with her possession and that is the reason
why the suit came to be filed. Filing of the suit would again prove that
the appellant / defendant had no intention to execute Sale Deed in favour
of the respondent / plaintiff and the transaction between the parties is
only financial. This aspect was not also considered by both the Courts
below.
23. One more significant thing to be looked into is that the second
schedule of the suit properties is a poromboke land. No prudent person,
who has real intention to purchase the property, will pay money and enter
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into Sale Agreement without even verifying the title of the property. If at
all, the respondent / plaintiff had genuine intention to purchase the suit
properties he would have verified the Encumbrance Certificate of the
properties. In the instant case, no such attempt was made to verify the
title of the properties and the sale Agreement was executed only based on
the possession of the properties during the relevant point of time. From
the above facts, it is crystal clear that the respondent / plaintiff had no
intention to purchase the properties at the time of entering into the
Agreement.
24. Both the parties have admitted the execution of Sale
Agreement dated 21.05.1998 for consideration of Rs.2,25,000/-.
According to the respondent / plaintiff, he paid a sum of Rs.2,00,000/- as
advance and for the payment of the balance of Rs.25,000/- and execution
of Sale Deed, at the request of the appellant / defendant, two and half
years time was provided. No prudent person will wait for a period of two
and half years for payment of sum of Rs.25,000/- when the respondent /
plaintiff paid a sum of Rs.2,00,000/- as advance at the time of entering
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into the Agreement. When the respondent / plaintiff approaches the
Court seeking equitable relief of specific performance, he has to clarify
as to why such long period of two and half years was granted for
payment of Rs.25,000/- and for execution of Sale Deed. However, there
was not even a specific pleading in the plaint with regard to the reason
for grant of two and half years time except for the provisions in the
Agreement for grant of two and half years time limit. Under such
circumstances, this Court is of the view that the time provided in the Sale
Agreement is for the repayment of the hand loan alone and not for the
execution of sale deed. Such presumption is possible under Section 114
of the Indian Evidence Act, 1872, owing to the existence of the available
facts in the present case.
25. Section 16 (c) of the Specific Relief Act, 1963, bars the relief
of specific performance of a contract in favour of a person, who fails to
aver and prove his readiness and willingness to perform his part of
contract. Therefore, it is the duty of the Court to see whether at the time
of entering into the Agreement and the throughout the period of
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Agreement, the parties were ready and willing to perform their part of the
Agreement. However, the facts and circumstances of the case and the
above discussions would go to show that the respondent / plaintiff was
all along had no intention to purchase the suit properties. It is pertinent
to point out that an Agreement can be entered into between the parties
with no intention to execute the same but until the occurrence of certain
event, however, the same has to be reflected in the Agreement itself. If
that fact is not reflected in the Agreement and at the time of entering into
the Agreement, the parties had no intention to execute the Agreement,
however, seek for execution of the same, subsequent to occurrence of
some event, then the equitable relief of specific performance is not
available to the parties since at the time of entering into the Agreement
and until the occurrence of particular event, the parties were not ready
and willing to perform the Agreement.
26. To avail the equitable relief of specific performance, the
plaintiff has to establish his readiness and willingness to pay the balance
amount and to execute the Sale Deed from the date of Agreement till the
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date of its expiry. In the present case, the time limit provided in the
Agreement was about two and half years, i.e, up to 21.11.2000 and the
respondent / plaintiff, after a period of two years and five months, has
sent a telegraphic notice to the appellant / defendant on 11.11.2000.
Certainly, there is no evidence available to prove the readiness and
willingness of the respondent / plaintiff from the date of Agreement till
11.11.2000. Even subsequent to the issuance of telegraphic notice, the
respondent / plaintiff did not take any effective step and the suit was filed
by him only in the month of November 2002, in between which, there
was no correspondence between the parties. This act of the respondent /
plaintiff would clearly confirm that he was not ready and willing to
execute the Agreement, but waiting for the repayment of the loan amount
by the appellant / defendant or for other reasons. In this suspectable
circumstances, this Court is of the view that the equitable relief of
specific performance sought for by the respondent / plaintiff is not
available to him. As stated above, the Court can have presumption under
Section 114 of the Evidence Act based on the materials available in the
present case. Precisely, for a period of four and half years from the date
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of Agreement, except for the telegraphic notice, no other other evidence
is available to substantiate the case of the respondent / plaintiff. The
readiness and willingness does not alone mean the readiness and
willingness to pay or receive the money, but the intention of the parties to
execute the Agreement at the time of entering into the Agreement. If the
parties had no intention to execute the Agreement at the time of entering
into the Agreement and it was executed as a security for the loan or for
some other purpose, in such case, unless and otherwise the real intention
of the parties have been reflected in the Agreement, no equitable relief of
specific performance would be granted.
27. The Judgment of the Principal Bench of this Court in the case
of Paramanadham vs. A.G.Kannan in S.A.No.235 of 2021 dated
12.03.2021 relied on by the learned counsel for the appellant / defendant
will squarely apply to the facts of the present case. In addition to the
above, the Judgment of the Principal Bench of this Court in the case of
Durairaji and another vs. Nadarajan (cited supra) referred by the
learned counsel with regard to the aspect of readiness and willingness
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would also apply to this case.
28. However, the Judgment relied upon by the learned counsel for
the respondent / plaintiff will not be applicable to the facts of the present
case since the respondent / plaintiff had no intention to purchase the
properties at the time of entering the Agreement.
29. Considering the following facts such as the Sale Agreement
was entered to purchase a poromboke land without even verifying the
title; O.S.No.68 of 2002 was filed by the appellant / defendant seeking
the relief of permanent injunction; the appellant / defendant refused to
execute the Sale Deed on 21.11.2000 and requested further time to
execute the same; and the respondent / plaintiff acceding to the promise
of the appellant / defendant and waiting for nearly two years to file the
suit, it is clear that the respondent / plaintiff was not ready and willing to
purchase the properties. Certainly, equitable relief of specific
performance is not available for the respondent / plaintiff.
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30. The Trial Court as well as the Appellate Court failed to
consider the above aspects with proper perspective and committed grave
error in the decision making progress. Therefore, this Court is of the
view that the Judgment and Decree passed by the Courts below are liable
to be set aside. Accordingly, the substantial questions of law framed by
this Court are answered in favour of the appellant / defendant.
31. The appellant / defendant is ready to return the sum of Rs.
2,00,000/- to the respondent / plaintiff. Therefore, while allowing the
appeal, this Court directs the appellant / defendant to return the sum of
Rs.2,00,000/- along with interest at the rate of 12% per annum from the
date of Agreement till the date of payment, to the respondent / plaintiff,
within a period of six months from the date of receipt of a copy of this
order.
32. In the result, the Judgment and Decree dated 21.02.2008 in
A.S.No.6 of 2007 on the file of the Additional District Court (Fast Track
Court No.4), Periyakulam confirming the Judgment and Decree dated
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28.02.2006 in O.S.No.418 of 2002 on the file of the Subordinate Court,
Periyakulam is set aside. The Second Appeal is allowed. No costs.
Consequently, the connected Miscellaneous Petitions are closed.
04.09.2023
(1/2)
NCC:Yes
Index:Yes
Speaking order
mbi
To
1.The Additional District Judge,
Fast Track Court IV, Periyakulam
2.The Subordinate Judge,
Periyakulam
3.The Section Officer,
Vernacular Records Section,
Madurai Bench of Madras High Court,
Madurai.
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KRISHNAN RAMASAMY, J.
mbi
S.A.(MD)No.468 of 2009
04.09.2023
(1/2)
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