Madras High Court
B.Vasu vs Sethuraman on 25 April, 2025
Author: N.Senthil Kumar
Bench: N.Senthil Kumar
A.S..(MD)No.46 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 24.01.2025
PRONOUNCED ON : 25.04.2025
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
AND
THE HONOURABLE MR.JUSTICE N.SENTHIL KUMAR
A.S.(MD)No.46 of 2019
1. B.Vasu
2. Muniyammal
3. V.Vinoth ....Appellants
Sathiyavathi (Died)
....Vs....
1.Sethuraman
2.M.S.Ganesan
3.M.S.Venkataraman ....Respondents
Prayer: Appeal suit filed under Section 96 of the Civil Procedure Code,
1908, to set aside the judgment and decree made in O.S.No.26 of 2012 on
the file of the 1st Additional District Judge (PCR), Thanjavur, dated
18.09.2018.
For A1 : M/s.N.Krishnaveni
Senior Counsel
For Mr.S.Wilson
: Mr.Arun Prasad
For Respondents : Mr.B.Jamedarasu,
For Mr.V.Balaji
**********
JUDGMENT
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[Judgment of the Court was made by RMT.TEEKAA RAMAN, J.]
The defeated defendants are the appellants herein.
2. The respondents, as plaintiffs, filed a suit against the appellants
in O.S. No. 26 of 2012 before the I Additional District Judge, Thanjavur,
seeking specific performance of the sale agreement dated 03.04.2011,
recovery of possession, and the original parent document concerning the
suit properties comprised of 10 survey numbers. In the alternative, they
prayed for the return of a sum of Rs. 1,11,58,465.22 along with interest at
9% per annum and other reliefs.
3. The brief facts have been culled from the plaint and the evidence
are as follows :-
● The 1st plaintiff is the holder of the agreement.
• Due to the medical condition of the 1st plaintiff, she has affixed
her thumb impression in the plaint.
• On 30.05.2012, the 1st plaintiff executed a general power of
attorney in favor of the 2nd plaintiff, her husband.
• The 2nd plaintiff, as the registered power agent and a person
acquainted with the facts of the plaint, has also signed the plaint.
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• On 03.04.2011, the 1st plaintiff and defendants 1 and 2 entered
into an agreement for the sale of the suit properties.
• The total sale consideration was Rs. 1,31,51,250/-.
• A sum of Rs. 95,00,000/- was paid to the 1st defendant.
• It was specifically agreed that the 1st defendant would measure the
property with the help of a competent surveyor but failed to do so.
• Time was not the essence of the contract.
• The property was not measured by the defendant.
• The plaintiffs were always ready and willing to perform their
obligations.
• The notice dated 26.03.2012, terminating the sale agreement, is not
valid.
• On 30.05.2012, defendants 1 and 2 sold the property to the 3rd
defendant, and the sale is not valid.
• Hence, the suit was filed for specific performance.
• Alternatively, the plaintiffs seek the return of Rs. 1,11,58,465.22/-
with interest at 18%.
4. The appellants/defendants filed a written statement denying the
plaintiffs' readiness and willingness to perform their obligations. They
specifically contended that, by a legal notice dated 26.03.2012 (Ex.A7
[B1]), the suit sale agreement was terminated and that the notice was
duly served upon the plaintiffs under Ex.B2. The plaintiffs' reply was
marked as Ex.A8. The defendants also stated that, in response to the
termination notice (Ex.B7), the plaintiffs issued two cheques (Exs.A9
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and A10) indicating the balance of the sale consideration after the
termination of the suit sale agreement.
5. Regarding the legal notice, the written statement specifically
raised the plea that the suit sale agreement (Ex.A1) is an unregistered
sale agreement between the plaintiffs and the first defendant.
Consequently, the suit filed by plaintiffs 2, 3, and 4 is not maintainable. It
was further contended that the second plaintiff, being the husband of the
first plaintiff, cannot maintain a suit on behalf of his wife. Additionally,
the defendants argued that plaintiffs 2 to 4 have no locus standi to file the
suit in their individual capacities, as they were not parties to the sale
agreement. During the pendency of the suit, the first plaintiff passed
away, and plaintiffs 2 to 4 were recognized as the legal representatives
(L.Rs) of the deceased first plaintiff.
6. On the factual aspect, the appellants/defendants specifically
stated that, on 15.04.2011, an application was submitted before the
Kumbakonam Taluk office for the measurement of the suit property.
Subsequently, on 06.05.2011, the property was measured by the Firka
Surveyor in the presence of the plaintiffs and their son. The defendants
took the specific stand that the suit is not maintainable without a prior
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declaration that the termination notice (Ex.A7, dated 26.03.2012) is null
and void and not binding upon them.
7. In the written statement, the defendants denied that the plaintiffs
were ready and willing to execute the sale agreement after paying the
balance of the sale consideration. They contended that, due to the
medical expenses of the first plaintiff (the agreement holder), she was not
in a position to purchase the property. However, they conceded that the
plaintiffs were entitled to recover Rs. 95,00,000/- paid by them, and the
defendants expressed their willingness to repay the same. Additionally,
they claimed that the third defendant, who is none other than the son of
the first plaintiff, is a bona fide purchaser.
8. Points for Consideration based on the case :-
(i) Whether the plaintiffs are entitled to specific
performance of the contract?
(ii) Whether the sale deed executed in favor of the
3rd defendant is binding on the plaintiffs?
(iii) Whether the plaintiffs are entitled to recovery
of possession of the suit property?
(iv) Whether the suit is barred by limitation?
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(v) Whether plaintiffs 1 to 3 are entitled to obtain a
sale deed in their favor from the 1st defendant?
(vi)Whether the suit was properly valued and
whether the appropriate court fee was paid?
(vii) What reliefs, if any, the plaintiffs are entitled
to?
9. During the course of the trial, the plaintiff was examined as P.W.
1, through whom Ex.A1 to Ex.A18 were marked. Venkataraman and
Anbalagan were examined as P.W.2 and P.W.3, respectively. Ganesan was
examined as P.W.4, and through him, Ex.A19 to Ex.A23 were marked.
10. On the side of the defendants, the 1st defendant, Vasu, was
examined as D.W.1, through whom Ex.B1 to Ex.B12 and Ex.A28 and
Ex.A29 (marked during cross-examination) were introduced.
Venkataraman was examined as D.W.2, through whom Ex.B13 was
marked. Dr. Prasanna was examined as D.W.3, through whom Ex.X1 was
marked. Sundarsanam was examined as D.W.4, through whom Ex.X2
and Ex.X3 were marked.
11. Upon considering both oral and documentary evidence, the
learned Additional District Judge, Thanjavur, concluded that since the
first plaintiff had passed away, plaintiffs 2 and 4 were brought on record.
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Consequently, the question of misjoinder of unnecessary parties does not
arise due to this subsequent development.
12. The court noted that the suit sale agreement (Ex.A1) contained
a specific condition stating that the defendants had to measure the
property and agreed to adjust the sale consideration as per the available
measurement. The agreement also stipulated that the execution of the sale
deed should take place within three months. However, the defendants
failed to prove that the property was measured as per the terms of the
agreement. Additionally, the defendants' financial capacity was in
question, and they failed to take the necessary steps to measure the
property.
13. Since the plaintiffs were found to be ready and willing to
perform their part of the contract, the trial court decreed the suit for
specific performance, leading to the present appeal.
14. M/s. S. Krishnaveni, learned Senior Counsel appearing for the
first appellant, contended that:
(i) In the absence of any prayer seeking a declaration that the
termination notice (Ex.A7) is null and void, the suit is legally untenable,
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especially when a specific plea was raised in the written statement.
However, the trial court failed to consider this aspect and did not frame
any specific issues regarding the validity of the termination notice, apart
from determining whether the plaintiffs were entitled to specific
performance of the agreement. It was further contended that, until the
termination notices issued by the first defendant on 26.03.2012 and
03.07.2011, there was complete silence on the part of the plaintiffs. The
last payment was made on 03.07.2011, which was also the final date
fixed for completing the sale agreement. Thereafter, no further payment
was made for over eight months, justifying the defendants’ decision to
issue Ex.A7 to terminate the suit sale agreement.
(ii) Since the suit sale agreement was terminated, the trial court,
despite the specific plea raised in the written statement, ought not to have
granted the relief of specific performance without properly framing the
issue. Additionally, the plaintiffs never issued any notice calling upon the
defendants to measure the property. On the contrary, an actual
measurement of the property was conducted, as evidenced by Exs.P5 and
P6, which are reports from the Firka Surveyor regarding the survey of the
suit property. In this regard, D.W.3 was examined.
(iii) No specific issue was framed regarding the plaintiffs'
readiness and willingness to perform the contract. Additionally, no issue
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was framed concerning the locus standi of the second plaintiff at the time
of filing the suit. Further, Ex.A6 is merely a draft, as it is written on the
reverse side of a xerox copy of the family’s ration card, indicating that it
is a fabricated document. Therefore, the appellants pray for allowing the
appeal.
15. Mr. Wilson, learned Senior Counsel appearing for the second
and third appellants, contended that despite a specific plea raised in the
written statement regarding the termination notice (Ex.A7) terminating
the suit sale agreement (Ex.A1), the trial court failed to frame any issues
on this matter or provide a finding. As a result, the trial court misguided
itself and wrongly decreed the suit.
16. The last date for performance under the agreement was
03.07.2011, whereas the termination notice (Ex.A7) was issued on
26.03.2012. For more than eight months, no payment was made. It was
only after the issuance of the termination notice that the plaintiffs offered
to pay by way of a cheque on 03.04.2012. The learned counsel argued
that any offer to pay the balance of sale consideration after the
termination notice cannot be treated as readiness and willingness to
perform the contract.
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17. The learned counsel for the respondents/plaintiffs contended
that the trial court had formulated the necessary issues and arrived at the
correct conclusion that the plaintiffs were ready and willing to perform
their part of the contract. P.W.2 testified that P.W.1 was ready and willing
to execute the contract.
18. Additionally, the survey was conducted only for three survey
numbers, and P.W.1 was undergoing medical treatment at the time. Since
the first plaintiff, the wife of P.W.1 (second plaintiff), was also
undergoing medical treatment, the delay was justified. The plaintiffs
relied on Exs.A19 to A27 (medical records of the first plaintiff) to
support this contention.
19. After hearing both parties, the following points arise for
consideration :-
(i) Whether the suit is legally unsustainable for
failing to seek a declaratory relief to set aside the
termination notice (Ex.A7) dated 26.03.2012 issued
by the plaintiff?
(ii) Whether the plaintiffs were ready and willing to
perform their part of the contract?
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(iii) Whether the sale deed executed in favor of the
third defendant is binding upon the plaintiffs?
(iv) Whether the plaintiffs are entitled to recovery of
possession?
(v) Whether the plaintiffs are entitled to the relief of
specific performance?
(vi) Whether Ex.A6 is a true and legally binding
document, as pleaded by the plaintiffs, or a
fabricated document, as contended by the
appellants/defendants?
(vii) Whether the respondents/plaintiffs are entitled
to the primary relief of specific performance?
(viii) Whether the respondents/plaintiffs are entitled
to the alternative relief of a refund of the advance
amount with interest?
(ix) Whether the order passed by the trial court
granting the primary relief is legally sustainable?
(x) What other reliefs, if any, the plaintiffs are
entitled to?
20. Ex.A1, the suit sale agreement, is admitted.
21. Upon perusal of Ex.A1, it is found to be an unregistered sale
agreement executed between the first plaintiff and the first defendant on
03.04.2011. The second to fourth plaintiffs were not parties to this
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agreement. Therefore, this Court finds that at the time of filing the suit,
plaintiffs 2 to 4 were unnecessary parties.
22. Since the first plaintiff passed away during the pendency of the
suit, plaintiffs 3 and 4, being her legal representatives, were brought on
record. However, the second plaintiff, Sethuraman, who is the husband of
the first plaintiff, was an unnecessary party at the time of filing the suit.
Although a claim was made that the first plaintiff executed a power of
attorney in favor of the second plaintiff, no such document was filed
along with the plaint.
23. The power of attorney marked as Ex.A29 was not submitted as
a plaint document. Furthermore, no order was obtained for instituting the
suit in the capacity of a power of attorney holder. Since the first plaintiff
passed away during the suit, and the second plaintiff is her husband, this
Court does not delve into the maintainability of the suit at its initial stage,
except to state that it was legally flawed at the time of its institution.
Admitted factual matrix:-
24. The suit property belonged to defendants 1 and 2. The written
agreement (Ex.A1) dated 03.04.2011 is admitted. The sale consideration
was fixed at 83.50 per sq. ft. for a total land area of 1,57,500 sq. ft.,
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equivalent to 3 acres and 64 cents, amounting to a total consideration of
Rs.1,31,51,250/-.
• An advance payment of Rs.5 lakhs was made.
• The agreement stipulated a three-month period for execution.
• After payment, the vendor was required to procure the stamp paper
and execute the sale deed in favor of either the purchaser or a
nominee.
• Additional payments made to the first defendant were:
. Rs.20 lakhs on 14.05.2011
• Rs.10 lakhs on 16.05.2011
• Rs.30 lakhs on 03.07.2011
• The three-month period under the agreement expired thereafter.
25. The payments made on 14.05.2011, 16.05.2011, 03.06.2011, and
03.07.2011 are admitted by the defendants.
26. According to the respondent/plaintiff, the defendant terminated
the suit sale agreement through Ex.A7 on 26.03.2012. In response, the
plaintiff issued a reply on 03.04.2012 under Ex.A8, enclosing two
cheques (Exs.A9 and A10) for the balance sale consideration. However,
the defendant refused to accept the payment and returned the cheques.
27(a). After perusing the evidence of P.W.1 and P.W.2, as well as
the evidence of D.W.1 and D.W.2, along with Exs.A1 to A11 and Exs.B1
to B3, this Court has to find out whether the respondents have always
been ready and willing to perform their part of the contract and whether
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they are entitled to the relief of specific performance.
(b) It is an admitted fact that the Ex.A1 sale agreement dated
03.04.2011 was executed by the 1st defendant. The suit properties belong
to defendants 1 and 2, and the execution of the agreement in favor of the
1st plaintiff is also admitted by the 1st defendant. The 2nd plaintiff is the
husband of the 1st plaintiff. Furthermore, the 1st plaintiff executed a
registered general power of attorney deed on 30.05.2012, which is
marked as Ex.A29. During the pendency of the suit, the 1st plaintiff
passed away, and plaintiffs 3 and 4, being the sons of the deceased 1st
plaintiff, Sathiyavathi, and the 2nd plaintiff, were brought on record as
legal representatives. Similarly, the 2nd defendant executed a power of
attorney in favor of the 1st defendant. These facts are admitted by both
parties.
(c) Additionally, the total sale consideration was fixed at Rs.
1,31,51,250/-, with the rate set at Rs.83.50 per sq. ft.. On 03.04.2011, the
1st plaintiff paid an advance of Rs.5,00,000/-, which was duly
acknowledged and incorporated into the sale agreement.
(d) On 14.05.2011, the 1st appellant/defendant received a sum of
Rs.20,00,000/- as part of the sale consideration, which was duly endorsed
in the sale agreement.
(e) Furthermore, an additional Rs.10,00,000/- was received by the
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appellant/1st defendant on 16.05.2011. Another Rs.30,00,000/- was
received on 03.06.2011, which was also duly endorsed by the
appellant/1st defendant in the sale agreement. Again, on 03.07.2011, the
appellant/1st defendant received a further sum of Rs.30,00,000/- from the
appellant/1st plaintiff, and the same was duly endorsed on the back of the
sale agreement.
(f) The acknowledgment of these payments was marked as Exs.A2
to A5. In total, the appellant/1st defendant received Rs.95,00,000/-
towards the sale consideration, which was admitted by the appellant/1st
defendant in the written statement as well as during cross-examination.
(g) The appellant/defendant now contends that the
respondents/plaintiffs were never ready and willing to pay the balance
consideration, and they failed to do so and obtain the sale deed from the
1st defendant. As a result, the appellant/1st defendant issued a legal
notice on 26.03.2012, terminating the sale agreement and expressing
willingness to return the advance amount received. The 1st defendant
further argues that time was the essence of the contract, and the
agreement clearly stipulated that performance must be completed within
three months. The respondents/plaintiffs did not communicate their
readiness and willingness to perform their part of the contract, and
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therefore, they are not entitled to the relief of specific performance.
Consequently, the 1st defendant is willing to return the advance amount
to the respondents/plaintiffs.
28. The original records have been called from the trial Court, and
all documents have been filed as a typed set of papers by both parties.
29. The main contention of the respondents/plaintiffs is that the
defendants failed to measure the suit property as required under the Sale
Agreement (Ex.A1). However, the defendants argue that the plaintiffs
were never ready and willing to pay the balance sale consideration.
Despite the 1st defendant's request for the plaintiffs to pay the remaining
balance, the plaintiffs failed to perform their part of the contract by
making the necessary payment. Furthermore, the defendants assert that
the 1st plaintiff (the agreement holder) was unwilling to fulfill the
contract, while the other plaintiffs (non-agreement holder) alone were
willing to proceed with the sale deed. As a result, the defendants contend
that the plaintiffs are not entitled to specific performance. In this regard,
admission of P.W.1 assumes significance.
30. The 2nd plaintiff was examined as P.W.1. He has admitted in his
evidence during cross examination as follows:-
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,e;j fpua xg;ge;jj;jpy; epy msitjhd; gpur;rid/ vdf;F
brhj;ij th';f tpUg;gk; ,y;yhjjhy; ehd; brhj;jpd; mry;
Mtz';fis jpUk;g bfhLj;J tpl;nld; vd;why; rhpjhd;/
epyj;jpd; mry; Mtz';fis vd;dplk; fhl;odhh;fs;/
Mdhy; vd;dplk; bfhLf;ftpy;iy/
31. In other words, according to P.W.1 since the defendant failed to
measure the suit property as per the terms of the Ex.A1 sale agreement,
the sale transaction could not proceed further. Additionally, as the first
plaintiff (the agreement holder) was hospitalized, the transaction could
not be completed within the stipulated time. The plaintiffs have relied on
Exs.A19 to A27 to substantiate this claim.
32. Conversely, the appellants/defendant's specific contention is
that the Ex.A1 sale agreement was executed on 03.04.2011, with a three-
month time frame, which expired on 03.07.2011. By that date, the
plaintiffs had paid Rs.95,00,000/- (5+20+10+30+30 lakhs) out of the
total consideration of Rs.1,31,51,250/-. However, since the plaintiffs
remained silent for over eight months, the defendant issued a termination
notice (Ex.A7) on 26.03.2012. Only thereafter, the plaintiffs issued a
reply (Ex.A8) dated 03.04.2012, enclosing two cheques (Exs.A9 and
A10) for the balance amount. As the defendants had already terminated
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the sale agreement, they returned the cheques and expressed their
willingness to refund the Rs.95 lakhs received as part-payment. So is
evidence of D.W.1, supported by proper and necessary pleadings.
33. The lower court records indicate that the balance sale
consideration was deposited before the Court to the credit of in O.S.No.
26 of 2021 after the filing of the suit on 04.07.2012. The plaintiffs had
already paid Rs.95 lakhs within the three-month period stipulated in
Ex.A1, which constitutes 72% of the total sale price. However, for the
next eight months, the respondents/plaintiffs were completely silent, and
no payment or communication was made regarding the remaining 27% of
the sale consideration assumes significance. Besides, this Court has
noticed that the respondents/plaintiffs failed to issue any legal notice
expressing their readiness and willingness between 03.07.2011 (the
expiry date) and 26.03.2012 (the termination notice, Ex.A7). It is
pertinent to note that the first communication emerged on behalf of the
plaintiff by way of the plaintiffs’ reply (Ex.A8) dated 03.04.2012
enclosed two cheques (Exs.A9 and A10) for the balance amount, but this
was only after the appellants/defendants had already terminated the
agreement.
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34. The key issue for determination in this appeal is whether an
offer to pay the balance amount made after the termination of the sale
agreement can be construed as evidence of the plaintiffs' readiness and
willingness to perform their part of the contract.
35. To justify the delay in payment, the plaintiffs have relied on
medical records purportedly issued by a private hospital in Chennai. In
this regard, the evidence of D.W.3 assumes significance.
36. M/s. N. Krishnaveni, learned Senior Counsel, contended that
the medical records relied upon by the plaintiffs are fabricated
documents, created solely for the purpose of this case. She further argued
that the respondents/plaintiffs have not approached the Court with clean
hands, citing two key grounds:
1. The plaintiffs have falsely pleaded non-measurement of the suit
property, despite the fact that the exact measurement of the land
was already specified in the sale agreement (Ex.A1).
2. The defendants have disputed the plaintiffs' claim regarding the
land measurement, asserting that the agreement explicitly states
that in the event of any shortfall in land area, the purchaser would
accept a proportionate reduction in consideration. This clause,
according to the defendants, is not a reciprocal obligation on the
part of the vendor/landowner.
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37. Furthermore, the defendants assert that the land was duly
measured, and the plaintiff was present at the time of the survey. A notice
regarding the measurement was issued to the plaintiff, and the defendants
have relied on the testimony of D.W.2 – Venkatesan, Firka Surveyor, who
confirmed the measurement and whose survey report has been marked as
Exs.B5, B6, and B13.
38. At the outset, it is evident that the trial Court failed to properly
consider the evidence of D.W.2 (Venkatesan, Firka Surveyor), D.W.3 (Dr.
Prasanna, Hospital Authority), and Ex.B12, which was marked through
D.W.3.
39. The respondents/plaintiffs have come forward with a specific
case that they are ready and willing to perform their part of the contract.
As stated supra, the first plaintiff alone is the signatory to the Ex.A1
unregistered sale deed. The second plaintiff is examined as P.W.1, and the
son of the second plaintiff is examined as P.W.2. An attestor of the
document is examined as P.W.3, and another son of the first plaintiff is
examined as P.W.4.
40. During cross-examination, P.W.4 was specifically confronted
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with the question regarding the land measurement on 06.05.2013. To
counter this, a plea was raised that his mother was admitted for treatment
as an in-patient under I.P.No.7675 of 2013. However, it was alleged that
this document was forged, a claim which he denied. This matter is
discussed along with the evidence of D.W.4. The first defendant testified
as D.W.1, and the Firka surveyor was examined as D.W.2.
41. Regarding the plaintiffs' plea that, on the date of the alleged
land survey conducted by D.W.2, the plaintiff’s mother and family were
in a private hospital in Chennai, both P.W.1 and P.W.2 provided
supporting evidence. There was specific cross-examination on the point
that all documents, marked as Exs.A19 to A22, were false and fabricated.
On a court summons, the appellants/defendants examined D.W.3,
Prasanna. His testimony led to the marking of Ex.X1 and Ex.X2.
Additionally, Ex.B2 was also marked.
42. D.W.3 in his evidence is follows:-
Igp vz;/7675-2011 vd;w vz;zpy; v';fs;
kUj;Jtkidapy; Rkhh; 67 taJ kjpf;fj;jf;f
jpU/vd;/nfhtpe;juh$d; vd;gth; cs;nehahspahf
rpfpr;ir bgw;Ws;shh;/ th/rh/M/24 Mtzj;jpy;
rj;jpatjp vd;gth; rpfpr;ir bgw;wjhf fhl;lg;gl;Ls;sJ/
,uz;L Mtz';fspYk; Igp vz; xd;whfj;jhd;
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Fwpg;gplg;gl;Ls;sJ/ Igp vz; 7675-2011 vd;w
vz;zpy; rpfpr;ir bgw;w nehahspapd; kUj;Jt
nfhg;g[fspd; mriya[k;. rhd;wpl;l
efiya[k; ,d;W ,e;ePjpkd;wj;jpw;F bfhz;L
te;Js;nsd;/ kUj;Jt nfhg;g[fspd; rhd;wpl;l efiy
jhf;fy; bra;fpnwd;/ mJ K:/rh/M/1 th/rh/M/24
Mtzk; nghypahdjhf ,Uf;ff;TLk;/ Vbddpy;.
v';fs; kUj;Jtkidapy; xnu Igp vz;iz ,uz;L
nehahspfSf;F bfhLg;gjpy;iy/ gp/rh/M/12
Mtzj;jpYk; v';fs; kUj;Jtkidapy; nkw;brhd;d
Igp vz;zpy; nehahspahf rpfpr;ir bgw;w egh; bgah;
vd;/nfhtpe;juh$d; vd;W Fwpg;gpl;L jfty; mwpa[k;
chpikr; rl;lj;jpd;fPH; rhd;W tH';fpa[sn; shk;/
(emphasis supplied)
43. On a combined reading of the independent evidence of D.W.3,
who is the senior medical officer from Vijaya Hospital, a private hospital
in Chennai, it is evident that he deposed that in I.P.No.7675/7/2001, one
Mr. Govindarajan was an in-patient. The indication given under Ex.A24,
stating that Sathiyavathy (the original first plaintiff) had undergone
treatment, is a fabricated one. Ex.B12 is the certificate issued by Vijaya
Hospital, and Exs.X1 and X2 are in-patient records provided by Vijaya
Hospital. The Authorization Letter for D.W.3 is marked as Ex.X2.
44. On a combined reading of the evidence of D.W.3, along with
Ex.B12 and Exs.X1 and X2, this Court concludes that the plaintiff has
submitted a fabricated document before the Court to gain sympathy. The
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claim that the original plaintiff, namely Sathiyavathy, the purchaser under
the Ex.A1 agreement, was undergoing treatment in the hospital on the
date when the defendant alleged that a land survey was conducted by the
Firka surveyor is false. To counter this, the plaintiffs have produced these
documents that are fabricated, as found supra.
45. The evidence of D.W.3, who testified based on court
documents, exposes the plaintiff’s false claim. Therefore, we find that the
trial Court failed to consider the evidence of D.W.3, Ex.B12, and Exs.X1
and X2 from the proper perspective and did not even discuss them.
Hence, we conclude that the plaintiff has not approached the Court with
clean hands and has a flaw in his claim. Furthermore, this appears to be
an attempt to divert the Court’s attention and evade the fact that during
the survey conducted by the Firka surveyor (D.W.2), they were present
and that the survey of land for measurement was conducted for three out
of ten survey numbers.
46. At the risk of repetition, but for the sake of clarity, it is
necessary to state that the primary contention of the plaintiff for not
proceeding with the completion of the sale transaction is that the
defendant/landlady failed to measure the land as agreed. In this regard,
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the defendant testified as D.W.1, and on court witness summons, the
Firka surveyor, P.W.2 Venkatesan, was examined, through whom Ex.B13
was marked.
47. As per Ex.B5, the defendant, B. Vasu, remitted the necessary
challan before SBI Kumbakonam for the survey of the suit property,
amounting to Rs. 240, on 15.04.2011. Pursuant to this payment,
representing the required charges, D.W.2, from the office of the Firka
surveyor, accepted the requisition form submitted by D.W.1 on
15.04.2011, and the land was surveyed on 18.05.2011.
48. Based on Ex.B5, a document was issued by the relevant
department, and the challan was issued on 06.05.2011. Relying on these
records, the witness deposed the above statement. The petitioner was
present during the survey, and his signature was obtained under Ex.B13.
As per the document, Survey Nos. 369/5, 370/1B, and 373/2 were
examined, and during the survey, one Vasu was present. Thus, this Court
finds that the primary contention raised by the respondent/plaintiff—that
no survey was conducted and that the sale transaction was not completed
due to inaction on the part of the appellants/defendants—falls to the
ground.
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49. We are conscious of the fact that the survey was conducted only
for three survey numbers. In an attempt to suppress this fact, the
respondent/plaintiff appears to have made a false claim that, on the said
date, his wife, the purchaser under the document, was in the hospital and
relied on certain medical records, which have been nullified by the
evidence of D.W.3. The records confirm that I.P.No.7675/11 pertains to a
male patient, Govindarajan, aged 67, and not to the purchaser,
Sathiyavathy. Hence, we find that the second contention raised by the
respondents/plaintiffs—that the delay in approaching the court and the
failure to complete the sale transaction was due to the defendants—is
also baseless.
50. With regard to the plea of readiness and willingness, it is
axiomatic in law that readiness refers to being prepared with the money,
namely, the payment of the balance consideration, while willingness
denotes the intention to purchase the property within the stipulated time.
In the present case, as stated supra, after the payment made on
03.07.2011, until the termination notice issued by the first defendant
under Ex.A7 on 26.03.2012—approximately eight months later—there
was no positive evidence from the respondents/plaintiffs.
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51. The trial Court took into consideration the evidence of P.W.2,
P.W.3, and P.W.4. However, P.W.2 and P.W.3 are none other than the sons
of the plaintiffs, and P.W.3 is also the attestor of the document. It is
difficult to understand how the attestor’s testimony regarding readiness
with money can be accepted as proof of readiness under the Specific
Relief Act. The trial Court committed a serious error in accepting this
evidence as sufficient proof that the plaintiffs had the required funds
within the stipulated time to complete the transaction.
52. In this regard, the evidence presented by the appellants/defendants
assumes significance. Once again, we are compelled to state that the
testimony of D.W.4, the Bank Manager, regarding the plaintiff’s bank
account, is crucial in determining their financial capacity.
"01/04/2012 Kjy; 13/04/2014 tiuapyhd t';fp
fzf;F gl;oia bfhz;L te;Js;nsd;/ mjd; rhd;wpl;l
efiy jhf;fy; bra;fpnwd;/ me;j rhd;wpl;l efy;
K:/rh/M/3/ 03/04/2014?ypUe;J 13/04/2014 tiuapyhd
fhyj;jpy; mtuJ nrkpg;g[ fzf;fpy; cs;s
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mjpfgl;rkhd ifapUg;g[ bjhif vt;tst[ vd;why;
28/02/2014 Kjy; 29/06/2014 tiuapyhd fhyfl;lj;jpy;
mtuJ mjpfgl;rkhd ifapUg;g[ bjhif U:/12.364-?
MFk;/ X/o/fzf;fpy; nkw;brhd;d fhyfl;lj;jpy;
mjpfgl;r brYj;J bjhif vt;tst[ vd;why;
njhuhakhf U:/7.77/000-? MFk;/"
(emphasis supplied)
53. During cross-examination, the defendant suggested that the
second plaintiff, Sethuraman, had an O.D. account in two other branches.
However, he has not produced any document to substantiate this claim
before the trial court or this court.
54. According to the evidence of D.W.4, where the plaintiff holds an
account, the maximum deposit at the relevant time was only Rs.12,364.
Even including the O.D. account, the maximum amount was Rs.7,77,000.
However, the balance of the amount remained unpaid. The defendant,
through an independent witness, namely the branch bank official (D.W.
4), along with Ex.X3 (statement of accounts for the relevant period), has
demonstrated that the second plaintiff (husband of the first plaintiff) did
not have sufficient means to pay the balance sale consideration. This vital
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aspect appears to have been overlooked by the learned trial judge.
55. The learned counsel for the respondent/plaintiff has relied upon
Exs.A9 and A10. Admittedly, these are two cheques sent along with
Ex.A8 (reply notice) by the plaintiffs. For a better appreciation of the
documentary evidence, and for the sake of clarity, it is noted that on
26.03.2012, the first defendant terminated the suit sale agreement under
Ex.A7. The termination notice was received by the plaintiff under Ex.B2.
In the reply notice (Ex.A8), dated 03.04.2012, two cheques (Exs.A9 and
A10) were annexed by the plaintiffs. Whether showing financial capacity
after the termination of the notice can be treated as proof of readiness
with money is questionable. We have no hesitation in negating this claim
for more than one reason.
56. In view of the specific evidence of D.W.3, coupled with Ex.X3,
the appellants/defendants have categorically demonstrated that, at the
relevant time, until the expiration of the sale agreement, the plaintiffs had
no means to pay. After the termination of the agreement—eight months
after the stipulated time prescribed under Ex.A1 (suit sale agreement)
and one month after the termination notice (Ex.A7)—these two cheques
were presented. Hence, we conclude that any subsequent sending of
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cheque after the termination of the agreement cannot be construed as
proof of readiness with money. Moreover, the evidence of D.W.3 and
Ex.X3 clearly establishes that the plaintiff had "no means to pay" until
the termination notice under Ex.A7, as could be seen from Bank
statements, as stated supra. Therefore, we conclude that the plaintiffs
were not ready with money to demonstrate their readiness.
57. Admittedly, Ex.A1 (sale agreement) is dated 03.04.2011, with a
stipulated time of three months, expiring on 03.07.2011. By that time, the
plaintiffs had paid only Rs.95,000, which represents 72% of the total sale
price. The balance amount remained unpaid.
58. Based on the evidence of D.W.3 (Bank Manager) and Ex.X3
(Bank statement), it is evident that the plaintiffs "lacked the means to
pay". Only after the termination notice the respondents/plaintiffs has sent
the above-mentioned cheques to create an impression of readiness. We
are of the considered view that the plaintiffs failed to demonstrate their
readiness. Regarding their willingness to purchase, which is an indication
of their intent to buy during the term of the agreement, there was no
complaint by the plaintiffs against the defendants. The plaintiffs did not
raise any issue regarding non-measurement until 03.07.2011. After the
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time frame fixed in the agreement, Ex.A7 (termination notice) was
issued. Even during this eight-month period, the plaintiffs failed to issue
any notice calling upon the appellant/defendant to execute the sale deed
or expressing their readiness and willingness. Hence, we have no
hesitation in rejecting the said contention for the aforementioned reasons.
59(a). The learned counsel for the respondent/plaintiff relied upon a
snap response in the cross-examination of D.W.1, wherein the plaintiffs
were described as a "rich family." Based on this, the counsel further
developed the argument that the defendant had admitted the
respondents/plaintiffs were financially capable.
(b) In this regard, we rely on the decision in 2023 (3) MWN 465
[R.Jegadeesh vs.M.Amutha and others], where one of us was a party to
the Division Bench judgment. In that case, we held that the plaintiff must
independently prove their readiness and willingness to fulfill all
contractual obligations. Furthermore, a mere snap answer does not
constitute an admission. It is the plaintiff’s duty to prove that they had
the financial means to pay.
60. By an order dated 06.06.2024 in A.S. No. 876 of 2008 and 1062
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of 2012, (wherein one of us) held that once the defendant terminates the
suit sale agreement, in the absence of any prayer seeking declaratory
relief that the termination of the sale is bad in law, a suit for specific
performance is not maintainable.
61. Nextly, much reliance is placed on Ex.A6, which is said to be the
acknowledgment letter given by the defendant to complete the sale
transaction. We have perused the document. It is written on the reverse
side of a ration card.
62. According to the defendant, both in his pleadings and in the
testimony of D.W.1, Ex.A6 is merely a draft. Upon perusal of the said
document, we have noticed several irregularities. Additionally, at two
places, the document appears to be insertion of its intended context.
Furthermore, the placement and angular alignment of the signature
assume significance. Hence, we find that Ex.A6 is bereft of evidentiary
value and is inadmissible in evidence. Consequently, it does not advance
the case of the plaintiffs.
63. We have independently examined the pleadings and the evidence
available on record. The plaintiff has not demonstrated "financial means"
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to prove "readiness and willingness". In light of the relevant dates
discussed above, the plaintiff’s prolonged silence and delay in
approaching the court clearly work against their interests. The plaintiffs
have not even produced their passbook. In this case, the non-production
of the passbook is not the sole ground for questioning the plaintiff's
financial capacity. The only documents produced were two cheques
(Exs.A9 and A10), which were later returned. The plaintiffs have not
submitted any statement of accounts to show that, on the date of issuance
of Ex.A9 and Ex.A10, they had the necessary funds in their deposit to
honor the cheques. The failure to mark the passbook as evidence assumes
significance in this case.
64. Hence, Ex.A9 and Ex.A10 do not advance the plaintiff’s case in
proving readiness with money. Moreover, the plaintiff took no steps for
nine long months, not even calling upon the appellant/defendant to
complete the sale transaction, which also weighs against the plaintiffs.
Therefore, we find that the readiness and willingness of the plaintiffs are
significantly lacking. The statutory condition contemplated under Section
16(c) of the Specific Relief Act has not been complied with. The trial
court has erroneously relied upon the oral evidence of P.W.2's and P.W.3's
sons. Additionally, P.W.3 is merely an attesting witness, and no
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documentary evidence has been produced to establish that the plaintiffs
had the requisite financial capacity at the relevant time. On the contrary,
the defendant has categorically demonstrated through D.W.3 and Ex.X3
that the plaintiff did not have sufficient funds in his bank account at the
relevant time. Hence, we hold that the trial court’s finding that the
plaintiff was ready and willing to perform his part of the contract is
erroneous on facts, as discussed supra, and the same is hereby vacated.
65. In view of the preceding paragraphs, we hold that the plaintiffs
were not ready and willing to perform their part of the contract.
Furthermore, the plaintiffs have put forth a false claim that the first
plaintiff was undergoing medical treatment at the time of the land survey
conducted by D.W.2. To support this claim, they produced a fabricated
document, which was exposed by the evidence of D.W.3, a hospital staff
member from the concerned hospital, as evidenced by Ex.B12 and
Ex.X1. Additionally, the plaintiffs falsely claimed that no land survey
was conducted, whereas the lands were duly surveyed as required, and
the defendant was ready while the plaintiff was not. Based on the
aforementioned reasons, we find that the plaintiffs are not entitled to the
equitable relief of specific performance. Accordingly, the judgment of the
trial court is liable to be set aside.
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66. Accordingly, the judgment dated 18.09.2018 in O.S. No. 10 of
2016 is hereby set aside. In the written statement, as well as in his
evidence as D.W.1, the defendant has stated that he is ready to return the
amount paid by the plaintiff.
67. The learned counsel for the respondent/plaintiff argued that the
plaintiff is entitled to a refund of the amount with 18% interest. We have
given our anxious consideration to this submission by the
respondent/plaintiff’s counsel.
68. In view of Ex.A7 (termination notice), we find that the plaintiffs
are not entitled to interest for the period between 26.03.2012 and the date
of filing of the suit. The defendants had already offered to return the
amount, but the plaintiff refused to accept the advance amount.
Therefore, they are not entitled to any interest.
69. Accordingly, the alternative relief of a refund of the advance
amount alone is granted. However, by the terms of the contract, the
plaintiff is disqualified from claiming interest.
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70. In the result, the Appeal Suit is allowed. The judgment and
decree dated 18.09.2018 in O.S. No. 10 of 2018 are set aside. The appeal
is allowed only to the extent of granting the alternative relief of a refund
of the advance amount of Rs.95,000, without interest. The main relief of
specific performance stands dismissed to that limited extent. No costs.
[T.K.R.,J.] [N.S., J.]
25.04.2025
Internet : Yes/No
Index : Yes/No
NCC : Yes/No
nvi
To
1 1st Additional District Judge (PCR), Thanjavur
2.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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RMT.TEEKAA RAMAN, J.
AND
N.SENTHIL KUMAR, J.
nvi
Pre Delivery Judgment made in
25.04.2025
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