Madras High Court
A.Devaraj vs Pechiammal on 14 November, 2024
Author: R.Hemalatha
Bench: R.Hemalatha
S.A.No.190 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.11.2024
CORAM
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
S.A.No.190 of 2021
A.Devaraj ... Appellant
Vs.
Pechiammal ... Respondent
Prayer : Second Appeal filed under Section 100 CPC, 1908 against the
decree and judgment dated 03.09.2020 passed in A.S. No.123 of 2018,
on the file of the Principal District Court, Coimbatore, upholding the
decree and judgment dated 27.07.2018 passed in O.S.No.1066 of 2011,
on the file of the II Additional Sub Court, Coimbatore.
For Appellant : Mr.N.Krishnakumar
for M/s.Sarvabhauman Associates
For Respondent : Ms.Chenthoori Pugazendhi
Page 1 of 16
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S.A.No.190 of 2021
JUDGMENT
The defendant who failed in both the Courts below has filed the
present second appeal. The respondent / plaintiff filed the suit in
O.S.No.1066 of 2011, on the file of the II Additional Sub Court,
Coimbatore, for specific performance of contract based on a registered
sale agreement dated 02.02.2007 (Ex.A1).
2. For the sake of convenience, the parties are referred to as per
their ranking in the trial court and at appropriate places, their rank in the
present second appeal would also be indicated.
3. According to the plaintiff, the defendant executed a
registered sale agreement dated 02.02.2007 (Ex.A1) in her favour in
respect of the land in survey number 269 of Upillipalayam Village,
Coimbatore, measuring 1300 sq.ft. The total sale consideration was fixed
as Rs.7,00,000/-, out of which, a sum of Rs.5,75,000/- was paid by the
plaintiff towards advance on the date of execution of the sale agreement.
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The time fixed for the contract was five years. The plaintiff was always
ready and willing to perform her part of the contract by paying the
balance sale consideration to the defendant and get the sale deed executed
in her favour. However, the defendant started evading the plaintiff and
therefore, she was constrained to issue a legal notice dated 28.11.2011
(Ex.A2) to the defendant. The defendant received the said notice as is
evidenced by the postal acknowledgment card (Ex.A3) and sent a reply
notice dated 07.01.2012 (Ex.A4) to the plaintiff. According to the
plaintiff, all the allegations contained in the reply notice are false.
Therefore, the plaintiff filed the suit for specific performance of the
contract.
4. The suit was resisted by the defendant on the following
grounds:
i. The suit property was leased out to the plaintiff for Rs.50,000/-
during 2004.
ii. The defendant was mentally ill during 2005 to 2008 and the
plaintiff taking advantage of the defendant's situation forcibly took
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him to the Sub Registrar Office, Singanallur, Coimbatore and
obtained his signature on the registered sale agreement dated
02.02.2007 (Ex.A1).
iii. The defendant came to know about the execution of the sale
agreement in favour of the plaintiff only after receipt of the legal
notice dated 28.11.2011 (Ex.A2) from the plaintiff.
iv. The plaintiff never paid a sum of Rs.5,75,000/- as alleged by her.
Therefore, the defendant had prayed for dismissal of the suit.
5. On the basis of the above pleadings, the trial Court framed
the following issues :
i. "Whether the plaintiff is entitled for a specific performance of the
contract ?
ii. Whether the sale agreement was forcibly obtained by the plaintiff
?
iii. To what relief the plaintiff is entitled?"
6. In the trial Court, the plaintiff examined herself and one
another witness and marked Ex.A1 to Ex.A4. However, no oral /
documentary evidence was adduced on the side of the defendant.
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7. The learned trial court judge after analysing the evidence on
record, decreed the suit in favour of the plaintiff vide her decree and
judgment dated 27.07.2018, on the following grounds:-
i. The contention of the defendant is that he was mentally ill during
the time when the sale agreement was executed and registered was
not substantiated by him.
ii. The plaintiff has proved her readiness and willingness to perform
her part of the contract by paying a sum of Rs.5,75,000/-, out of
the total sale consideration of Rs.7,00,000/-.
8. Aggrieved over the decree and judgment passed by the trial
court, the defendant filed an appeal in A.S. No.123 of 2018, before the
Principal District Court, Coimbatore. The learned Principal District
Judge, Coimbatore, after analysing the evidence on record, upheld the
findings recorded by the trial court vide his decree and judgment dated
03.09.2020, as against which the present second appeal is filed.
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9. At the time of admission the following substantial questions
of law were framed :
"(i)Whether the Courts below were right in
decreeing the suit when the respondent has not proved her
readiness and willingness to perform her part of the
contract?
(ii). Whether the Lower Appellate Court correct
in concluding that the sale agreement is true and valid
when the evidence is clear to the fact that the respondent
had taken the sale agreement fraudulently?”
10. Heard Mr.N.Krishnakumar, learned counsel for the
appellant and Ms.Chenthoori Pugazendhi, learned counsel for the
respondent.
11. Mr.N.Krishnakumar, learned counsel for the appellant
contended that the plaintiff had not proved her readiness and willingness
to perform her part of the contract and that she had not also paid a sum of
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Rs.5,75,000/- to the defendant as alleged by her. Both the Courts below
have not considered these aspects and wrongly decreed the suit. He also
drew the attention of this Court to the sale agreement dated 02.02.2007
(Ex.A1) and contended that there is a clause in the sale agreement itself
which stipulates that if the defendant does not come forward to perform
his part of the contract, the plaintiff should deposit the balance sale
consideration with the court and seek for a specific performance of the
contract. However, the plaintiff did not deposit the balance sale
consideration at the time of filing of the suit and therefore, the suit filed
by the plaintiff has to be dismissed. He relied on the decision of the
Division Bench of this Court in Saradammal alias Saradambal vs
G.S.Srinath reported in 2012 (3) MWN (Civil) 449 wherein it has been
held thus :
"26.It is the submission of the learned Counsel appearing for
the appellant, that Ex.A2 sale agreement, provides for
compulsory registration in the event of failure on the part of
the defendant to execute the sale deed after receiving the
balance of sale consideration and if really the plaintiff was
ready and willing and the defendant refused to perform her
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part of the contract, the plaintiff invoking the said Clause,
could have approached the Court by depositing the balance of
sale consideration and made a request for execution of the sale
deed by the Court; but, he has not done so. This submission is
well founded. Though such a right and privilege was available
to the plaintiff in the terms of Ex.A2 agreement of sale, he has
not exercised the said right, which would only show reluctance
on his part. In the circumstances stated above, we have to
conclude that the plaintiff has not proved that he was ready
and willing to perform the essential terms of the contract,
which are to be performed by him. The trial Court, though
failed to frame an issue as to whether the plaintiff was ready
and willing to perform his part of the contract, has considered
the above aspect; but, its conclusion in this regard, is not
based on proper appreciation of oral and documentary
evidence and is erroneous. Point No.1 is determined
accordingly. "
He further relied on the decision of the Division Bench of this Court in
Arunachala Mudaliar vs Jayalakshmi Ammal and another reported in
2003 (1) CTC 355 and contended that the plaintiff has not deposited the
balance sale consideration as provided under sale agreement (Ex.A1) and
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in the circumstances the appeal is liable to be allowed.
12. Per contra Ms.Chenthoori Pugazendhi, learned counsel for
the respondent / plaintiff contended that both the Courts below had
concurrently held that the plaintiff is entitled to a decree of specific
performance of contract and the findings are based on facts. Therefore,
there is no reason for this Court to interfere with the same. Her further
contention is that the defendant has not proved any of his contentions and
hence, the appeal is liable to be dismissed.
13. At the outset it may be observed that the sale agreement
dated 02.02.2007 (Ex.A1) is a registered document. The defendant has
not disputed his signature on the sale agreement. A perusal of the sale
agreement shows that the total sale consideration was fixed as
Rs.7,00,000/-, out of which, a sum of Rs.5,75,000/- was paid towards
advance. The contention of the defendant was that he was mentally ill
during the period 2005 to 2008 and that the plaintiff took him forcibly to
the Sub Registrar Office, Singanallur, Coimbatore, for getting the sale
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agreement executed in her favour. However, the defendant did not adduce
any documentary evidence to substantiate his contention in this regard.
He also did not get into the witness box to prove his allegations in the
written statement. According to the defendant, the suit property was
leased out to the plaintiff for a sum of Rs.50,000/- during 2004. This has
also not been proved by the defendant. The time fixed in the sale
agreement was five years from the date of the sale agreement. The
plaintiff, both in her pleadings as well as in her evidence, had averred that
she was ready and willing to perform her part of the contract and that
during the year 2010 she personally requested the defendant to execute
the sale deed in her favour and that the defendant refused to do the same.
Subsequently on 28.11.2011 she issued a legal notice (Ex.A2) calling
upon him to execute the sale deed in her favour for which the defendant
issued a reply notice dated 07.01.2012 (Ex.A4) refusing to execute the
sale deed in her favour and had also contended that the sale agreement
(Ex.A1) was obtained by force and coercion. This contention of the
defendant has not been substantiated by adducing acceptable evidence. It
is not known as to why the defendant did not take any action against the
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plaintiff. There is no evidence to show that the defendant was mentally ill
during the relevant period.
14. In the sale agreement there is a clause which stated that in
the event of the defendant's failure to perform his part of the contract, the
plaintiff should deposit the balance sale consideration in the Court and
get the sale deed executed. According to the learned counsel for the
appellant / defendant, the plaintiff did not pay the balance sale
consideration as per this clause in the sale agreement (Ex.A1), at the time
of filing of the suit.
15. In Ex.A1 the following conditions are mentioned
'Nkw;gb tPjk; Nkw;gb nfLTf;Fs; 1-
yf;fkpl;lth; fpuak; ngw;Wf;nfhs;s jtwpdhYk;,
kWj;jhYk;, 2-yf;fkpl;ltUf;Fr; nrYj;jpAs;s
ml;thd;]; njhifia ,oe;Jtpl Ntz;baJld;,
fpuak; NfhUk; chpikAk; ,oe;Jtpl Ntz;baJ.
Nkw;gb tPjk; Nkw;gb nfLTf;Fs; 1-
yf;fkpl;lth; fpuak; ngw;Wf;nfhs;s jahuhf
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,Ue;Jk;, 2-yf;fkpl;lth; fpuak; nra;J nfhLf;f
jtwpdhYk;, kWj;jhYk;, 1-yf;fkpl;lth;
tof;Fkd;wj;jpy; jhth njhlh;eJ
; 2-
yf;fkpl;lthpd; mDkjpapy;yhkNy ghf;fp cs;s
fpuaj;njhifia Nfhh;lb
; y; bghrpl; nra;J,
fl;lha hp[p];lN
; urd; nra;Jnfhs;tJld;
mjw;Nfw;gLk; epahakhd nryTj;
njhiffisAk;, Nkw;gb bghrpl; njhifapy;
fopj;Jf;nfhs;s Ntz;baJ.
,e;jr; nrhj;Jf;fs; Vw;nfdNt 2-
yf;fkpl;ltuhy; 1-yf;fkpl;ltUf;F RthjPdk;
nra;J nfhLf;fg;gl;L jw;NghJ 1-yf;fkpl;lthpd;
RthjPdj;jpNyNa cs;sd."
A perusal of the above conditions shows that it is not a mandatory
condition stipulated in the sale agreement for getting the sale deed
executed in favour of the plaintiff. It is pertinent to point out that the
plaintiff had paid more than 80% of the sale consideration on the date of
the sale agreement itself and the balance sale consideration was paid
immediately after the decree was passed by the trial court. In the decision
in Saradammal alias Saradambal vs G.S. Srinath (cited supra) the
plaintiff in the said decision did not issue any notice to the defendant to
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show that she was always ready and willing to perform her part of the
contract. In such circumstances, it was held that the plaintiff has not
proved her case and did not also deposit the balance sale consideration to
show her readiness and willingness. Therefore, the said decision would
not be applicable to the facts of the present case. In, the decision in
Arunachala Mudaliar vs Jayalakshmi Ammal and another (cited
supra) the plaintiff in the suit had contended that she was in possession
and enjoyment of the suit property and that the defendant attempted to
interfere with her peaceful possession. These contentions of the plaintiff
were found to be false and therefore, it was held that the plaintiff has not
come to the court with clean hands and did not also deposit the amount
as mentioned in the sale agreement. The facts of the present case are
totally different.
16. Both the Courts below after analysing the evidence on
record had concurrently held that the plaintiff was entitled to the relief of
specific performance of the contract as prayed for by her. All the
observations made by both the Courts below are based on the evidence
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and facts and therefore, the substantial questions of law 1 and 2 are
answered against the appellant.
17. In the result,
i. the Second Appeal is dismissed. No costs.
ii. The decree and judgment dated 03.09.2020 passed in A.S.
No.123 of 2018, on the file of the Principal District Court,
Coimbatore and the decree and judgment dated 27.07.2018 passed
in O.S.No.1066 of 2011, on the file of the II Additional Sub Court,
Coimbatore, are upheld.
14.11.2024
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
mtl
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To
1. The Principal District Court, Coimbatore.
2. The II Additional Sub Court, Coimbatore.
3. The Section Officer, VR Section, High Court, Madras.
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R. HEMALATHA, J.
mtl
14.11.2024
https://www.mhc.tn.gov.in/judis
