Madras High Court
P.V.Thavamani vs Maragadham on 4 January, 2024
S.A.No.1095 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.01.2024
CORAM
THE HONOURABLE MR.JUSTICE V.LAKSHMINARAYANAN
S.A.No.1095 of 2013
and
M.P.No.1 of 2013
P.V.Thavamani ...Plaintiff/Respondent/Appellant
Vs.
Maragadham ... Defendant/Appellant/Respondent
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the Judgment and Decree dated 02.04.2013 in A.S.No.8
of 2013 (A.S.No.51 of 2012) on the file of the Learned III Additional
District Judge, Vellore at Thirupattur, reversing the Judgment and Decree
dated 24.04.2012 in O.S.No.111 of 2009 on the file of the Subordinate
Judge, Vaniyampadi, Vellore District.
For Appellant : Mr.Surya Senthil
for M/s Surana and Surana
For Respondent : Mr.Bala Ganesh
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S.A.No.1095 of 2013
JUDGMENT
The plaintiff in O.S.No.31 of 2007 on the file of the Sub Court,
Thirupattur, is the appellant before me. The said suit was transferred from
the file of the Sub Court, Thirupattur to the file of the Sub Court,
Vaniyambadi, Vellore District and re-numbered as O.S.No.111 of 2009.
2. The suit is one for specific performance of an agreement of sale
dated 25.04.2006. The learned Trial Judge by a Judgment dated 24.04.2012
decreed the suit. Aggrieved by the same, the defendant preferred an appeal in
A.S.No.50 of 2012 on the file of the Principal District Judge, Vellore and
subsequently the appeal was transferred to the file of the III Additional
District Court, Vellore at Thirupattur and re-numbered as A.S.No.7 of 2013.
In and by way of a Judgment dated 02.04.2013, the Appeal Suit was allowed,
against which the present Second Appeal has been preferred.
3. This Court admitted the present Second Appeal on 14.02.2022 on
the following substantial questions of law:-
a)Whether the lower Appellate Court was
right in doubting the genuineness of Ex.A1 Sale
Agreement which was duly proved by the plaintiff
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by examining P.W.2 and P.W.3 without there
being any substantial material to disregard the
same ?
b) Whether the lower Appellate Court was
right in assuming that Exhibits A4 to A6 which
are the original title deeds was obtained by the
plaintiff from the husband of the defendant,
without there being any pleading to that effect in
the written statement ?
c) Whether the findings of the lower
Appellate Court can be termed as perverse due
to improper appreciation of the oral and
documentary evidence available on record ?
4. Heard, Mr.Surya Senthil, learned counsel appearing on behalf of the
appellant and Mr.Bala Ganesh, learned counsel appearing on behalf of the
respondent.
5. For the sake of convenience, parties are referred to as plaintiff and
defendant.
6. The case of the plaintiff is that he entered into an agreement of sale
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on 25.04.2006, which was marked as Ex.A1, with the defendant. The terms
of the agreement is that the property which belongs to the defendant would
be sold to the plaintiff for a sum of Rs.2,25,000/-. The defendant received a
sum of Rs.2 Lakhs as advance on 25.04.2006 and the remaining amount of
Rs.25,000/- would be paid within a period of 11 months. It was also agreed
that in case, an amount of Rs.25,000/- is not paid within a period of 11
months, then the amount would be fortified. From 25.04.2006 till 08.03.2007
there has been a deathly silence maintained by the plaintiff. It was for the
first time, i.e., on 09.03.2007, the plaintiff issued a notice through an
Advocate, which was marked as Ex.A2. In the said notice, the plaintiff had
called upon the defendant to appear before the Office of the Sub-Registrar
on 14.03.2007, to execute the sale agreement.
7. On receipt of the notice, the defendant sent her reply on 16.03.2007
denying the agreement. Her specific stand is that it is a concocted one and
therefore, the question of executing the sale deed does not arise. Before the
Trial Court, the plaintiff examined himself as P.W.1, the witness to the
document as P.W.2 and the scribe as P.W.3. Similarly, the defendant
examined herself as D.W.1 and the other witness as D.W.2, in support of her
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case.
8. Mr.Surya Senthil, learned counsel appearing on behalf of the
appellant would invite my attention to the Judgment of the Trial Court and
would vehemently contend that the Trial Judge appreciated the signatures of
the defendant in the agreement and had come to a conclusion that the
agreement infact been executed by the defendant and that has been
erroneously interfered with by the Judgment of the lower Appellate Court.
He would further contend that once the lower appellate Court having come
to the conclusion that the document had in fact been executed by the
defendant, ought to have decreed the suit. He would further state that the
plaintiff has proved his case in execution of agreement through P.W.2 and
the scribe P.W.3 and the fact that the defendant had not examined Haridoss is
fatal to her case. In fine, as the argument I understand, since the signature
has been proved, agreement has been proved. In the alternative he would
also plead that in case, this Court is not inclined to grant the specific
performance, the amount of Rs.2 lakhs which had been paid by the plaintiff
to the defendant should be returned. The learned appellate Judge committed
an error in not directing defendant to refund the advance amount which had
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been paid by the plaintiff. The learned counsel further add that the original
of the title deeds that were available with the plaintiff had not been properly
explained by the defendant. He would contend that the title deeds had been
handed over to the plaintiff, which reflects that the property had been agreed
to be sold by the defendant to the plaintiff.
9. Mr.Bala Ganesh, learned counsel appearing on behalf of the
defendant in an attempt to torpedo these arguments would submit that at the
earliest point of time, i.e., on 16.03.2007 the categorical case of the
defendant was that the agreement is forged and concocted. He would also
draw my attention to the fact that the date of stamp paper was only on
10.03.2000, whereas the agreement had been executed in the year 2006. He
would further state that there is absolutely no transaction between the
plaintiff and the defendant and therefore, the decree of the lower Appellate
Court requires confirmation.
10. I have carefully considered the arguments made on either side. All
the substantial questions of law are taken up together and answered as
follows:-
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One of the fundamental principles that has to be applied in a suit for
specific performance is that the plaintiff must not only plead but also prove
that he was ready and willing to have the sale agreement converted into a
sale deed. These two are legal terminologies, mean the plaintiff should have
sufficient means and has true intention or urgency to convert the sale
agreement into a sale deed. As per Section 16 (c) of the Specific Relief Act,
unless and until both the tests are satisfied, a suit for specific performance
cannot be decreed. This is a condition precedent that has to be tried by the
Court, while dealing with the suit.
11. A perusal of the Judgment of the learned Trial Judge shows that he
had not even framed an issue, 'whether the plaintiff is ready and willing in
order to convert the sale agreement into a sale deed'. The learned Trial Judge
has proceeded on the fact that since the signature in Ex.A-1 has been
proved, the agreement has been proved and consequently decreed the suit.
This approach is contrary to Section 16 (c) and hence perverse.
12. Both the Courts below, in this case have taken upon themselves to
compare the signatures, in exercise of the powers vested with them, under
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Section 73 of the Indian Evidence Act. The lower Appellate Court also came
to the conclusion that the signature found in Ex.A-1 is the signature of the
defendant, but had taken a diametrically different view, saying that the mere
fact that the signature is found in the agreement does not mean the
agreement stands proved. The lower Appellate Court also had come to the
conclusion that the plaintiff had not proved the fact that he was possessed of
sufficient funds, viz., of paying the balance of Rs.25,000/-.
13. It is here, I have to take note of the period that had lapsed between
the date of alleged agreement and the date on which the Advocate notice had
been issued. The agreement had been entered into as stated above on
25.04.2006, but the suit notice itself was issued only on 09.03.2007. There is
absolutely no explanation from the plaintiff as to what was his conduct
between the period from April 2006 to March 2007.
14. The argument of Mr.Suriya Senthil that as there were 11 months
period available to the plaintiff, to exercise his option and the plaintiff did so
within a period of 11 months. This does not appeal to me for the simple
reason that the balance amount that had to be paid was a mere Rs.25,000/-.
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The factum that the plaintiff has not produced any evidence to show his
financial capacity to repay the balance of the amount looms large. There is
absolutely no evidence on the part of the plaintiff as to why he kept quiet for
a period of nearly 11 months. The urgency that should have been shown by
the plaintiff is lacking in the present case.
15. I need not trouble myself with the factum, 'whether the Ex.A-1 had
been signed by the defendant or not?', for which I premise my judgment on
the fundamental principles enunciated under the then Specific Relief Act,
under Section 16(c). If the plaintiff has failed to prove the readiness and
willingness to execute the sale agreement, the suit has to fail.
16. This leaves out one other aspect which has to be dealt with by me,
viz., the passing of the original title document that belongs to the defendant
to the plaintiff. A reading of evidence of P.W.1 and D.W.1 shows that there
was an existing business relationship for several years between the
defendant’s husband – Haridoss and the plaintiff. It is also on record that the
plaintiff was doing money lending business. Therefore, there is a possibility
that the documents might have been handed over by the defendant’s husband
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to the plaintiff, as security. This is the presumption, which the learned lower
Appellate Judge had drawn.
17. Sitting in Second Appeal, I am not inclined to reappreciate the
evidence on whole. If two possible conclusions are plausible and the learned
lower Appellate Court had taken one of the plausible conclusion, it is not
open to me to interfere with it, in a Second Appeal. The lower Appellate
Court having taken a view thus, the defendant's husband -Haridoss could
have handed over the documents to the plaintiff, which I find as plausible in
the present situation, as the evidence discloses a long business relationship
between the defendant’s husband and the plaintiff, I am not inclined to
interfere with that finding of the lower Appellate Court.
18. In fine, the substantial questions of law are answered against the
plaintiff and the Second Appeal stands dismissed. No costs. Consequently,
connected miscellaneous petition is closed.
04.01.2024
Jer
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Index : Yes/No
Neutral Citation : Yes/No
Speaking order / Non-speaking order
To:
1.The III Additional District Judge,
Vellore at Thirupattur
2.The Subordinate Judge,
Vaniyampadi, Vellore District.
3.The Section Officer
V.R.Section
High Court of Madras.
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Page No 11 of 12
V.LAKSHMINARAYANAN, J.
Jer
and
04.01.2024
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Page No 12 of 12
