Madras High Court
Pakiyalakshmi vs Danalakshmi on 20 February, 2025
Author: N. Sathish Kumar
Bench: N. Sathish Kumar
A.S..No.544 of 2022
THE HIGH COURT OF JUDICATURE AT MADRAS
Date :20.02.2025
CORAM:
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
A.S.No.544 of 2022 &
CMP.Nos.20344 & 20345 of 2022
Pakiyalakshmi ... Appellant
Versus
Danalakshmi ... Respondent
PRAYER : This Appeal Suit has been filed under section 96 read with Orer
XLI Rule 1 of Code of Civil Procedure to set aside judgment and decree dated
22.08.2022 in O.S.No.182 of 2021 on the file of the Principal District Court,
Puducherry.
For Appellant : Mr.L.Abrar MD Abdullah
For Respondent : Mr.R.Shreedhar
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A.S..No.544 of 2022
JUDGMENT
Challenging the decree and judgment passed in the suit filed for specific
performance, the present appeal suit has been filed.
2. The parties are arrayed as per their own ranking before the trial
Court.
3. It is the case of the plaintiff that she came to know through brokers
that the defendant is going to sell the suit property. Accordingly, the plaintiff
approached the defendant and the defendant agreed to sell the suit property for
a total sale consideration of Rs.21 lakhs. The plaintiff had paid an advance of
Rs.10 lakhs in instalments in the presence of witnesses. Thereafter, the suit
agreement came to be registered on 28.10.2010. The defendant prayed one
year time to execute the sale deed by producing all the parent deeds, patta,
encumbrance certificate in respect of the suit property. The balance sale
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consideration to be paid in such time. Despite the defendant has agreed to
hand over all the documents, he has not handed over the documents and
defendant started adopting delaying tactics. Thereafter, the plaintiff came to
know that the defendant is trying to sell the property to some other person.
Therefore, the plaintiff had issued legal notice to the defendant calling upon
her to receive the balance sale consideration and complete the sale. The
plaintiff was always ready with the balance sale consideration. Hence, the suit.
4. The defence taken in the written statement to the effect that the
plaintiff was running a chit business and the defendant was known to the
plaintiff through her neighbour. The defendant subscribed a chit with the
plaintiff. Thereafter, she borrowed a loan for the purpose of construction of a
house in the suit property. For the said loan, the defendant had obtained
signatures in blank papers. One such document has been used as a suit
agreement. The defendants had also paid interest at the rate of Rs.25,000/- per
month and they had paid interest for several months. Hence, opposed the suit.
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5. On the basis of the above pleadings, the following issues have been
framed by the trial Court :
1. Whether the sale agreement dated 28.10.2020 is true,
valid and enforceable?
2. Whether the plaintiff is always ready and willing to
perform the contract?
3. Whether the defendant borrowed loan from the
plaintiff and as security gave the original deed as alleged?
4. Whether the defendant repaid the monthly interest of
Rs.25,000/- per month for several months as alleged?
5. Whether the plaintiff is entitled to the decree as prayed
for?
6. To what other relief, the plaintiff is entitled to?
6. On the side of the plaintiff, plaintiff examined herself as P.W.1 and
Ex.A.1 to Ex.A.4 have been marked. On the side of the defendant, her
husband has been examined as D.W.1 and no document has been marked on
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her side.
7. The trial Court considering entire evidence and documents granted
specific performance. Challenging the same, the present Appeal Suit came to
be filed.
8. The main contention of the appellant is that though the sale
agreement is a registered one, the parties have never intended to sell the
property. Infact, the said document has been executed in respect of a loan
transaction. The denial by the party indicate that the agreement is not
intended for sale of the property. As far as readiness and willingness is
concerned, the same has not been established. The plaintiff has not come to
the Court with clean hands. Hence, prayed to set aside the decree and
judgment of the trial Court.
9. Whereas, it is the contention of the learned counsel for the
respondent that the plaintiff has not entered into the witness box and only her
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husband has been examined as D.W.1. Further, while adducing additional
evidence before this Court, D.W.1 has admitted that he is not aware of the
nature of the contract. Therefore, it is his contention that once, a registered
document has been executed, the defendant cannot take a contrary plea other
than the contents of the documents. The trial Court after analysing entire
documents has decreed the suit in favour of the plaintiff. It is his further
contention that as the defendant has not entered into the witness box and only
her husband has been examined, adverse inference has to be drawn against the
defendant. In support of his submissions, he relied upon the judgement of the
Supreme Court in Vidhyadhar Vs. Manikrao and another reported in
[1993] 3 Supreme Court Cases 573.
10. On the basis of the above submissions, now the points that arise for
consideration are :
1. Whether the suit agreement is not intended for sale of
the suit property?
2. Whether the plaintiff is always ready and willing to
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perform her part of the contract?
3. Whether the plaintiff is entitled for specific
performance as prayed for?
11. Point No. 1 :
It is an admitted fact that the Ex.A.1 came to be executed between the
parties on 28.10.2020. Whereas, it is the contention of the defendant that the
agreement came to be executed in a loan transaction. But the fact remains that
the document has been registered. It is relevant to note that in the entire
written statement, it is not pleaded about the nature of loan availed by the
defendant at the relevant point of time. D.W.1 has stated in his evidence that
he had borrowed a sum of Rs.10 lakhs from the plaintiff. As a written contract
is printed and registered between the parties, unless convincing evidence is
brought on record, the parties cannot go beyond the terms of the contract. As
the agreement has been admitted, without any other materials to substantiate
the loan transaction which resulted in registration of the document, the plea of
the appellant cannot be countenanced and the defendant cannot take a contrary
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stand other than pleading, as per Section 92 of the Indian Evidence Act. The
Point No.1 is answered accordingly.
12. Point Nos.2 & 3 :
It is the specific case of the plaintiff that she came into contact with the
defendant only through a broker and the agreement has been finalised between
them. The entire plaint proceeded as if the defendant was known to the
plaintiff through a broker for the first time. Whereas, it is categorical
admission of the plaintiff in her evidence that the defendant was known to her
in a chit transaction. P.W.1 has admitted in her evidence that to finalise the
contract, she has not availed service of a broker. Further, she has admitted in
her evidence that the advance of Rs.10 lakhs has been paid in lumpsum on the
date of agreement itself, which is totally contradictory to her pleadings. In her
pleadings, it is the case of the plaintiff that she had paid the advance in
instalments, even before the agreement.
13. Whereas, in the evidence of P.W.1, she has stated that the amount
has been paid in lumpsum. Further the entire evidence of P.W.1 indicate that
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he has no idea about the suit property. She not even know the extent of the
property. Further, he is not aware of the nature of construction put up in the
suit property and he has not verified the title deeds. Further, it is also admitted
that the defendant had subscribed in a chit run by the plaintiff. These facts
clearly establish the falsity of the case of the plaintiff to seek specific
performance. Though a registered document cannot be assailed by way of oral
evidence as held in point No.1, the evidence of P.W.1 in fact makes her case
improbable for the simple reason, if really the plaintiff intended to purchase
the property, her normal conduct would be to know the nature of the property
going to be purchased. She does not even have an idea about the nature of the
property.
14. That apart, it is further to be noted that having entered into an
agreement on 28.10.2020, legal notice has been issued for the first time on
26.10.2021, which is two days prior to expiry of one year period. All these
days, the plaintiff has not taken any steps to perform her part of the obligation.
Therefore, merely sending a legal notice just before the expiry of the
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limitation period, one cannot contend that they were ready and willing to
perform their part of the contract. Further, scanning of P.W.1's entire
evidence, there is no materials whatsoever placed on record to show that the
plaintiff was always ready and willing to perform her part of the contract. Of
course, in view of the amendment of Section 16 of the Amended Act 18 of
2018, the mandatory provision of pleading about readiness and willingness is
dispensed with, but the same will not dispense with the proof of readiness and
willingness. Therefore, it is incumbent on the plaintiff to establish and prove
readiness and willingness to seek the relief of specific performance.
15. Further, a perusal of entire evidence, absolutely, there is no
materials available on record to show that the plaintiff had the capacity to
mobilize remaining sale consideration of Rs.11 lakhs after entering into a
contract. Further, to show that she had sufficient money to pay the remaining
sale consideration, no proof, whatsoever, has been filed. No bank accounts
have been filed. Therefore, unless the twin conditions of readiness and
willingness are established, the plaintiff cannot seek the relief of specific
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performance as a matter of right. Readiness is the capacity of a person to
mobilize funds and willingness is the mental attitude to complete the
transaction. Unless both readiness and willingness is established by
probabilities or in evidence, merely on the basis of the agreement, one is not
entitled to specific performance. The very conduct of the plaintiff that she has
not even visited the suit property and she has no idea about the property
sought to be purchased, it can be easily inferred that there is no mental attitude
on the part of the plaintiff to purchase the property. Accordingly, willingness
is totally absent on her part. Though after amendment by Act 8 of 2018, the
relief of specific performance is not a discretion one, but the fact remains that
it is incumbent upon the plaintiff to prove readiness and willingness, which
has not been done so. Considering the above fact, this Court is of the view
that the plaintiff is certainly not entitled to specific performance.
16. As far as the judgment relied on by the appellant in Vidhyadhar
Vs. Manikrao and another cited supra, a party who does not enter into the
witness box, adverse inference has to be drawn against him is concerned,
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absolutely, there is no dispute in this regard. But the fact remains that D.W.1
is none other the husband of the defendant, who is competent to give evidence
under section 120 of the Indian Evidence Act. In a civil proceedings, parties
to the civil suit, husband or wife shall be a competent witness. In such view of
the matter, merely on the ground that the defendant has not been examined,
adverse inference cannot be drawn against her.
17. In view of the admissions made by the defendant before this Court,
that she has borrowed a sum of Rs.10,00,000/-, this Court is of the view that
the plaintiff is entitled for the alternative relief of return of advance amount of
Rs.10,00,000- with interest at the rate of 2.5% per month as agreed between
them. This Court is of the view that such a rate of interest is usurious, taking
note of the admitted position of the parties, the plaintiff is certainly entitled to
return of Rs.10,00,000/- with interest at the rate of 12% per annum from the
date of agreement till the date of realization. The points are answered
accordingly.
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18. In the result, this appeal suit is partly allowed and the respondent is
directed to pay a sum of Rs.10,00,000/- to the appellant along with interest at
the rate of 12% per annum from the date of agreement till the date of
realization and the judgment and decree of the trial Court in O.S.No.182 of
2021 dated 22.08.2022 is set aside. It is made clear that till the amount is
realized, there shall be charge over the suit property. Consequently, connected
miscellaneous petitions are closed. There shall be no Order as to costs.
20.02.2025
Index : Yes / No
Internet: Yes
Speaking/non speaking order
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To,
The Principal District Judge,
Puducherry.
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N. SATHISH KUMAR, J.
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20.02.2025
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