Madras High Court
V. Banumathi vs Mir. Afsal Hussain on 15 September, 2023
S.A.No.1465 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE P.B.BALAJI
S.A.No.1465 of 2011
V. Banumathi W/o. Venugopal ... Appellant
Vs.
1. Mir. Afsal Hussain S/o.Mir Jaffar Hussain
2. Sukal @ Mir. Mohab Hussain S/o. Afsal Hussain
3. Mir. Mohamed Ali @ Gunal S/o. Afsal Hussain
4. Minor Bisa Fathima D/o. Afsal Hussain
[Minor is represented by her father and guardian
Mir. Afsal Hussain] ... Respondents
PRAYER: The Second Appeal has been filed under Section 100 of the Civil
Procedure Code against the decree and judgment in A.S.No.17 of 2009 passed
by the learned Additional District Judge, Krishnagiri dated 28.01.2011
confirming the decree in O.S.No.251 of 2003 dated 07.05.2009 on the file of
the learned Additional Special Judge, Krishnagiri.
1/15
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S.A.No.1465 of 2011
For Appellant : Mr. M. Santhana Raman
For Respondents : Mr. S.D.S. Philip
JUDGMENT
1. The unsuccessful plaintiff in a Suit for specific performance, is the
appellant, who has preferred the present second appeal.
2. In order to adjudicate the second appeal, I am briefly extracting
the pleadings before the Trial Court:
The plaintiff's case is that she entered into an agreement of sale with
the defendants on 27.12.2001 and also paid an advance of Rs.1 lakh. It is the
case of the plaintiff that the balance consideration of Rs.2 lakhs was to be paid
within 3 months and at the cost of the plaintiff, a sale deed would have to be
executed and registered. It is the further case of the plaintiff that she was ready
to pay the balance consideration of Rs.2 lakhs, but the defendants were
postponing the execution of sale deed under some pretext or the other. The
plaintiff came to know that the 1st defendant has applied for lease of granite
quarry in the suit property on 15.02.2000 and had also filed a revised quarry
lease application on 27.07.2001 for quarrying granite in the suit property.
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S.A.No.1465 of 2011
According to the plaintiff, the 1st defendant never disclosed the same to the
plaintiff while entering into the agreement of sale on 27.12.2001.
3. It is the further case of the plaintiff that she has already purchased
lands adjoining the suit property from the defendants under two registered Sale
Deeds dated 15.02.2001 and 07.06.2001 and only in order to conveniently
enjoy the properties, she had evinced interest to purchase the suit property as
well. Pleading readiness and willingness to pay the balance sale consideration,
the plaintiff filed the suit seeking relief of specific performance by execution of
sale deed in respect of the suit property in her favour and also delivery of
possession.
4. The 1st defendant filed a written statement stating that the suit
property belongs to the 1st defendant and defendants 2 to 4, who were minors
and therefore the defendants cannot sell the minors' share and the suit
agreement to the contrary was not binding on the defendants 2 to 4 and that the
same was unenforceable against them.
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S.A.No.1465 of 2011
5. It is the case of the 1st defendant that the suit agreement was not
entered into with an intention to actually convey the suit property to the
plaintiff. It is the specific stand of the 1st defendant that he had applied for
quarry lease to the Government and he was in urgent need of a sum of Rs.1 lakh
and considering that he had already dealings with the plaintiff's husband and
the plaintiff, he requested the plaintiff's husband to advance a sum of Rs.1 lakh
to which the plaintiff's husband agreed, on condition that an agreement of sale
should be executed in favour of the plaintiff as a security for repayment of the
said sum of Rs.1 lakh. According to the 1st defendant, on the date of alleged
agreement of sale, the prevailing market value was not less than Rs.2.5 lakhs
per acre and no prudent owner of property would agree to sell his / her property
at a throw way the price of Rs.3 lakhs. The 1 st defendant has also denied that
the plaintiff was ready and willing to pay the balance sale consideration. In so
far as the 1st defendant's application for quarrying lease, it is contended that the
plaintiff was fully aware of the same and only for the said purpose, a sum of
Rs.1 lakh was taken as loan from the plaintiff. Further according to the
defendants, the plaintiff has been set up by one Mr. Karunakaran, who is
granite quarry owner in the vicinity of the suit land and his agenda was to
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S.A.No.1465 of 2011
prevent the 1st defendant from getting a quarry lease.
6. Before the trial Court, the plaintiff was examined as PW1 and one
Mr. Seethapathy was examined as PW2. Ex.A1, namely the original Sale
Agreement was exhibited as the only document on the side of the plaintiff.
7. On the side of the defendants, the 1st defendant was examined as
DW1 and Mr. Muthusamy was examined as DW2 and Ex.B.1 to Ex.B.4 were
exhibited. The Trial Court's finding was that the plaintiff had failed to establish
her readiness and willingness and dismissed the suit.
8. Aggrieved by the said dismissal of the suit against the plaintiff,
the plaintiff had preferred a first appeal on the file of Principal District Judge,
Krishnagiri. The 1st Appellate Court, on independent assessment of the
findings, concurred with the findings of the trial Court and dismissed the
appeal.
9. As against the concurrent findings rendered by the Trial Court as
well as the 1st Appellate Court, the plaintiff, as appellant, is before this Court.
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S.A.No.1465 of 2011
10. Considering the above pleadings and findings of the Courts
below, I frame the following substantial questions of law:
(i) Whether the concurrent findings rendered by the Trial
Court as well as by the 1st Appellate Court regarding the absence of readiness
and willingness on the part of the plaintiff, is perverse.
(ii) whether the Trial Court as well as the 1st Appellate
Court failed to place the burden of proving the loan transaction, on the
respondents.
(iii) whether the Courts namely, the Trial Court as well as
the 1st Appellate Court were justified in placing reliance on the recitals of
previously exhibited documents between the parties in order to non suit the
plaintiff, denying the relief of specific performance.
11. I have heard Mr. M. Santhana Raman, counsel for the appellant
and Mr. S.D.S. Philip, counsel for the respondents. I have also perused the
original records and also pleadings of the respective parties and also the oral
and documentary evidence adduced before the Trial Court. I have also
carefully perused the judgments of the Trial Court and also the 1st Appellate
Court.
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S.A.No.1465 of 2011
12. The counsel for the appellant would mainly revolve his
arguments on three grounds namely:
Firstly, the plaintiff was always ready and willing to perform her part
of the contract and the Courts below have not objectively considered the
pleadings and evidence in this regard.
Secondly he would contend that when the defendants had taken up a
plea that agreement of sale was only a loan transaction, the burden ought to
have been placed on them to establish the said defence. However, according to
the counsel for the appellant, the Courts below have placed the burden
erroneously on the plaintiff and thereby denied the relief of specific
performance.
Thirdly, the counsel for the appellant would also submit that the
Courts ought not have placed any reliance whatsoever on the sale deeds
executed by the defendants in favour of the plaintiff in respect of adjoining
lands to hold that against the plaintiff and thereby deny her the relief of specific
performance.
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S.A.No.1465 of 2011
13. Per contra, the learned counsel for the respondents would submit
that the Courts below have rightly dismissed the suit for specific performance
as the Courts have elaborately considered all the contentions and pleas put forth
by the appellant and negatived the same. According to the counsel for the
respondents, no interference is warranted from this Court.
14. At the outset, it is the settled position of law that in a suit for
specific performance, the plaintiff is obligated to prove readiness and
willingness to perform the contractual obligations under the agreement of sale.
The suit agreement of sale was entered into on 27.12.2001 and according to the
plaintiff, the total sale consideratioin agreed upon between the parties was Rs.3
lakhs and a sum of Rs.1 lakhs was paid as advance and that it was agreed
between the parties that the balance sum of Rs.2 lakhs shall be paid by the
plaintiff within 3 months from the date of agreement of sale. There is no
dispute with regard to the payment of sum of Rs.1 lakh.
15. Though it is the specific case of the defendants that the said sum
of Rs.1 lakh was not an advance under any sale agreement, but only received as
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S.A.No.1465 of 2011
a loan to meet urgent business needs of the 1st defendant and it is also stated
that the said agreement was entered into only for the purpose of securing the
amount of Rs.1 lakh and that the defendants agreed for execution of the suit
agreement of sale as the 1st defendant was hardpressed for money at the relevant
point of time and this was a condition that was laid by the husband of the
plaintiff, at the outset, I am unable to accept the said contention raised by the
defendants that it was only a loan transaction and not an agreement of sale.
Once the defendants admitted the execute the agreement of sale, it is not open
to them to go back and take a different stand or plead a different story all
together, especially in the light of Sections 91 and 92 of Indian Evidence Act.
It is not open to the defendants to plead anything contrary to the written
contract, namely, the suit agreement of sale.
16. The counsel for the appellant relied a Division Bench judgment
of this Court reported in (1993) 2 LW 205 .
I respectfully agree with the ratio laid down by the Division Bench of
this Court holding that "it is not open to the defendant to raise a plea that the
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S.A.No.1465 of 2011
terms of the agreement should be ignored as the real purpose was to secure
the loan transaction.
17. Placing further reliance on the said judgment, the counsel for the
appellant would state that the Divison Bench of this Court has granted relief of
specific performance holding that normal rule is that once the agreement of
sale is made out, the Court should enforce the agreement of sale. However, on
perusal of the said judgment, I find that the Division Bench has clearly
mentioned “unless there are circumstances........” meaning it is not an absolute
proposition of law.
18. The law does not absolve the plaintiff from proving the
mandatory requirements of readiness and willingness as required under Specific
Relief Act, 1963. In testing the readiness and willingness of the plaintiff, the
facts that
(a) the plaintiff did not even issue a pre-suit notice calling the
defendants to come forward to execute a sale deed, expressing her readiness
and willingness to pay the balance sale consideration amount of Rs.2 lakhs;
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S.A.No.1465 of 2011
(b) not taking any steps whatsoever to fulfill her part of the
agreement of sale within the stipulated period of 3 months, which ended on
26.03.2002;
(c) having filed the suit only on 17.09.2003, well beyond the expiry
of the period contemplated under the agreement namely 3 months from the date
of agreement of sale.
The above facts clearly would show that the plaintiff has miserably
failed to estabish both readiness as well as willingness on her part to have the
agreement of sale concluded by paying the balance sale consideration of Rs.2
lakhs. Though the counsel for the plaintiff / appellant would contend that the
financial capacity of the plaintiff was never disputed by the defendants since
the defendants have themselves sold adjoining properties to the plaintiff in the
recent past, however, this specific argument of the counsel for the appellant
cannot be accepted for the simple reason that the law of specific performance
has marched to a longway since the early decisions rendered under the act.
Today the law has been settled and the Hon'ble Apex Court and this Court, in
very many cases, have held that a plaintiff who seeks to enforce an agreement
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of sale is bound to establish both readiness and willingness and cannot pick
holes in the case of the defendants or weaknesses in the pleadings and evidence
on the defendants' side to claim entitlement to a decree for specific
performance.
19. A Division Bench judgment of our Court in Elango vs. K.
Kamalaveni and others reported in 2023 (2) CTC 535, where, speaking for the
Division Bench, I had an occasion to discuss the scope of readiness and
willingness in a suit for specific performance, analysing the ratio laid down by
the Hon'ble Supreme Court in several cases. In the said decision of the Divion
Bench, it has been held that empty pleadings of readiness and willingness
would not take the plaintiff any where and that such pleadings are to be
supported by concrete proof by way of evidence adduced at trial. Applying the
said ratio of the Division Bench to the facts of the present case, the plaintiff is
not entitled to the equitable and discretionary relief of specific performance.
20. No doubt, the Courts below were not justified in looking into the
previous registered sale deeds to non suit the plaintiff, in so far as the suit
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S.A.No.1465 of 2011
agreement of sale is concerned. However, this does not, in any way, dilute the
other well considered findings of the Courts below regarding the plaintiff not
being ready and willing to perform her part of the agreement of sale.
21. The relief of specific performance is equitable and also
discretionary. Therefore, the plaintiff who seeks such relief has to establish &
fulfill the mandate of Section 16(c) of the Specific Relief Act, 1963 that he /
she has been ready and willing at all relevant points of time, to conclude the
transaction, by completing / complying all the obligations that remained to be
fulfilled on his / her part under the agreement of sale. Here admittedly, the
plaintiff has not taken any diligent steps either during the 3 months period fixed
under the agreement of sale or for a period close to a year and a half thereafter,
before which she came to Court seeking the relief of specific performance. The
Courts below have rightly discussed the oral evidence adduced by the parties
and also the documentary evidence filed by them in a proper perspective before
coming to the conclusion that the plaintiff is not entiled to any discretionary
relief of specific performance.
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22. Here, in the instant case, the truth of the agreement of sale is one
aspect only and the other aspect which needs to be established by the plaintiff is
her readiness and willingness, which she has miserably failed to do and as
rightly found by the Trial Court as well as the 1st Appellate Court. The plaintiff
is not entitled to the decree of specific performance and permanent injuction.
23. From the above discussions, I do not find any justifiable ground
or reason warranting interference with the concurrent findings rendered by the
trial Court as well as the 1st Appellate Court. The substantial questions of law
are accordingly answered.
24. In fine, the Second Appeal stands dismissed. There is no order
as to costs.
15.09.2023.
Internet:Yes
Index:Yes/No
mjs
To
1. The Additional District Judge, Krishnagiri
2. The Additional Special Judge, Krishnagiri.
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S.A.No.1465 of 2011
P.B.BALAJI,J
mjs
S.A.No.1465 of 2011
15.09.2023
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