Madras High Court
K. Annadurai vs N. Suresh on 2 June, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
A.S.No.17 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 02.06.2025
CORAM :
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
Appeal Suit No. 17 of 2014
---
K. Annadurai .. Appellant
Versus
N. Suresh .. Respondent
Appeal Suit is filed under Section 96 of Civil Procedure Code against
the judgment and decree dated 30.08.2013 made in O.S. No. 212 of 2011 on
the file of the II Additional District Court, Erode.
For Appellant : Mr. N. Manokaran
For Respondent : Mr. V. Raghavachari, Senior Advocate
for Ms. V. Srimathi
JUDGMENT
This Appeal Suit has been filed to set aside the Judgment and Decree
dated 30.08.2013 passed in O.S. No. 212 of 2011 on the file of the learned
Second Additional District Judge, Erode.
2. The brief fact, which are necessary for the disposal of this Appeal
Suit, are as follows:-
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2.1. As per the plaint averments, the Defendant was the owner of the
plaint schedule property having acquired it by means of a registered settlement
deed dated 13.07.2009 registered as document No. 3398 of 2009. Two years
later, during March 2011, through a real estate broker, the Defendant offered
to sell the suit property to a prospective purchaser. The Plaintiff evinced his
interest to purchase the same and in the course of deliberation it was disclosed
that the property is subjected to mortgage with one Krishnan of Rajajipuram,
Erode for a sum of Rs.5,00,000/-. Therefore, it was stated by the Defendant
that the debt has to be cleared and then conveyance of the property would be
completed. Under such circumstances, the Plaintiff and the Defendant entered
into an agreement of sale on 15.03.2011 whereby the Defendant agreed to sell
the plaint schedule property for a total sale consideration of Rs.21,53,250/-.
On the same date, a sum of Rs.2,00,000/- was paid as advance to the
Defendant. The time for completion of the sale was stated as 15.09.2011. The
Defendant's brother Ravi and broker Kaliappan signed as witnesses in the sale
agreement. On 30.04.2011, the Plaintiff paid Rs.20,000/- to the Defendant and
an endorsement was made on the sale agreement deed. The Plaintiff was
always ready and willing to purchase the suit property as per the sale
agreement deed. The Defendant however sought time to vacate the tenants in
the suit property and deliver vacant possession. The Plaintiff Therefore, agreed
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for taking possession of the property free of any encumbrance. Inspite of the
Plaintiff being ready and willing, the Defendant has not shown any sign of
evicting the tenants from the suit property and to handover the vacant
possession. In the meanwhile, the Defendant and his wife started to spread
mis-information as though the suit properties are still available for sale. The
Plaintiff on coming to know about the same through real estate broker tried to
contact the Defendant through phone during the second week of August 2011
but the Defendant avoided it. The Plaintiff understood that the Defendant is
not honoring the commitment and terms of the sale agreement deed entered
into with the Plaintiff. Therefore, the Plaintiff had filed the suit for specific
performance of contract. The Plaintiff has enough resources and wherewithal
for meeting the fiscal commitment under the sale agreement. Therefore, the
suit had been filed seeking specific performance of contract for sale of the
property.
2.2. On notice, the Defendant entered appearance and filed written
statement. The Defendant denied that the suit property was offered for sale to
the Defendant through real estate broker during March 2011. The claim of the
Plaintiff that there was deliberation between Plaintiff and Defendant for sale of
the property was also denied by the Defendant. The Plaintiff is a financier who
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lends money only to persons who own immovable property. While lending
money, he takes all types of precautions to collect the money by getting
several signatures and thumb impressions on blank Rs.20 stamp papers, blank
promissory note and concur sheets. The Defendant stated that he had
mortgaged suit property for Rs.5,00,000/- with one Krishnan and he is paying
interest at the rate of 2 ½ % per Rs.100/-. The Defendant with a view to
minimise the interest rate approached the Plaintiff and enquired about the rate
of interest for mortgage debt. After verifying the details of the property to be
mortgaged, the Plaintiff assured him of a mortgage loan of Rs.5,00,000/- at the
rate of Rs.2/- per Rs.100/- but he demanded that the Defendant should, apart
from execution of registered mortgage deed, should execute a promissory note
in Rs.20/- stamp paper, blank promissory note and blank green sheets (concur
sheets) with his signature and thumb impression as security for proper
repayment of loan. He also assured that the signed papers would not be
misused at any point of time if the mortgage debt is cleared by the Defendant.
Believing the words of Plaintiff, the Defendant executed mortgage deed
mortgaging the suit property for Rs.5,00,000/- with an interest of Rs.2/- per
Rs.100/- per month on 15.03.2011 registered as Document No.1767 of 2011
on the file of the Joint Sub-Registrar Office, in the name of business partner of
the Plaintiff, S. Mani. On the same day the prior mortgage with Mr. A.
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Krishnan was discharged. A receipt to that effect was registered as document
No.1766 of 2011 in the office of the joint Sub-Registrar Erode.
2.3. According to the Defendant he was unable to pay interest of
Rs.10,000/- for subsequent three months. While so, the Plaintiff and his
partner Mani, one Kalliappan and Maruthamuthu came to the house of the
Defendant during the absence of the Defendant and demanded the Defendant's
wife Kasthuri and his daughters (1) Venilla, aged 15 years and Ragavi aged
14 years to vacate the suit property. The wife of the Defendant, sensing the
foul play, approached the District Collector in the Public grievance day dated
20.06.2011 with a petition praying for protection of their personal property
from the Plaintiff and his associates. The Police conducted an enquiry and the
Plaintiff afraid of being booked under land grabbing case rushed to file this
vexatious suit on the basis of sham and nominal fabricated agreement of sale
as though the Defendant voluntarily executed it. According to the Defendant,
no sale agreement was executed within an intention to sell the suit property.
Neither it was intended to be purchased by the Plaintiff. The signed stamped
papers, concur sheets and blank promissory notes were received by the
Plaintiff only as a security for the mortgage loan. There is only mortgage
debtor and creditor relationship between the Plaintiff and Defendant. The
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mortgagee S. Mani who is named in the mortgage deed dated 15.03.2011 and
the Plaintiff are partners. Hence the said Mani is also a necessary party to the
suit for proper adjudication. Except Rs.5,00,000/- received on 15.03.2011, the
Defendant had not received any amount as alleged as advance from the
Plaintiff. The market value of the suit property is about Rs.45,00,000/-
whereas the alleged agreement of sale fixed sale price at a through away rock
bottom price for which no sane and prudent man would agree to sell. The suit
property is situated in the heart of Erode Corporation limit. There is no
necessity for the Defendant to sell the suit property as it would amount to
throwing away his grown up minor daughters and wife onto the streets which
is unimaginable to the Defendant. Therefore, the Defendant seeks to dismiss
the suit.
2.4. Based on the above pleadings, the following issues were framed
by the learned II Additional District Judge, Erode.
(i) Whether the Plaintiff is entitled to specific
performance of contract for sale of the property after paying
Rs.19,33,250/- to the Defendant.
(ii) Whether the Plaintiff is entitled to the alternate relief
of refund of advance amount of Rs.2,32,186/- towards interest
for Rs.2,20,000/- paid as advance @ 12% interest.
(iii) Whether the Plaintiff was ready and willing to
perform his part of the contract.
(iv) Whether the sale agreement deed is a Sham and
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nominal?
(v) What other reliefs the Plaintiff is entitled to?
2.5. During the course of trial, the Plaintiff examined himself as P.W-
1 and marked documents Ex.A-1 to Ex.A-3. Ex.A-1 is the registered sale
agreement deed dated 15.03.2011. Ex.A-2 is the Encumbrance certificate dated
15.03.2011. Ex.A-3 is the endorsement made on the sale agreement deed dated
15.03.2011. Apart from PW1, Kaliappan, real estate broker was examined as
P.W-2 who had introduced the Plaintiff to the Defendant. The Defendant
examined himself as D.W-1, his wife Kasthuri was examined as D.W-2 and
Ravi, brother of the Defendant and one of the witness to the sale agreement
was examined as D.W-3.
2.6. On appreciation of the oral and documentary evidence, the
learned II Additional District Judge, Erode by judgment dated 30.08.2013
made in O.S.No.20 of 2011 decreed the suit for specific performance and
directed the Plaintiff to deposit Rs.19,33,250/- within 15 days from the date of
judgment in the Court deposit and on such deposit, the Defendant was directed
to execute the sale deed in terms of the sale agreement deed marked as Ex.A-1,
failing which the Court, on its own, will execute the sale deed and hand over
the possession of the suit property to the Plaintiff. Aggrieved by the same, the
Defendant had filed this Appeal Suit.
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3. Mr. N. Manokaran, learned Counsel for the Appellant submitted
that the Plaintiff had filed the suit for specific performance of the agreement of
sale under Ex.A-1. The suit property comprised of two tenements. The
Defendant is in occupation of one such tenement and had leased out the
another portion to a tenant. The learned Counsel for the Defendant-Appellant
further submitted that the Defendant admits his signature in the sale agreement
Ex.A-1 and the endorsement in Ex.A-3. However, he had executed Ex.A-1
purported to be a mortgage deed. The Defendant was made to believe that he
is executing only a mortgage deed, but what was actually executed was the
agreement of sale. There was no intention to sell the suit property and the
intention was only to redeem the mortgage made with one Krishnan. Apart
from Ex.A-1, the Plaintiff also obtained the signature in blank stamp papers
towards security and created Ex.A-1. Such an admission made by the
Defendant, admitting his signature in the agreement, Ex.A-1 can be made by
him as contemplated under Sections 91 and 92 of the Indian Evidence Act.
4. According to the learned Counsel, the Defendant has signed
Ex.A-1 without any intention to sell his only house property whereas the
Plaintiff had obtained his signatures in blank stamp papers towards security
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and created Ex.A-1. Such a plea is open to the Defendant in a suit for specific
performance. It is not barred under Section 91 and 92 of the Indian evidence
Act. Thus, the Defendant has not admitted Ex. A-1 and simultaneously sought
to vary and contradictory the terms on which it was written.
5. With reference to readiness and willingness, the learned Counsel
submitted that it cannot be presumed or assumed. There must be strong
evidence to infer that the Plaintiff was always ready and willing to perform his
part of the contract. In this case, in the entire evidence of P.W-1 he remained
silent about his readiness and willingness. There is no piece of evidence
available even to infer readiness and willingness on his part. The readiness
and/or willingness of the Plaintiff must be established from the very inception
of the contract under Ex.A-1 and it is a continuous process. Further, the
financial resourcefulness of the Plaintiff for paying the balance sale
consideration is also absent in his evidence. His capacity to mobilise the funds
also has not been established. Whereas the pleadings of the Defendant would
show that inspite of existence of Ex.A-1, the parties had different transaction
and Ex.A-1 was no where intended to be acted upon. In support of his
submission, the learned Counsel for the Appellant relied on the reported
decision in 2007 (3) LW 580 (DB) paragraphs 14 to 17, 2018 (5) LW 84
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paragraphs 15, 16 and 19 and 2017 (1) MWN 187 paragraphs Nos.13 and 17.
6. Referring to the requirement of the expression 'readiness and
willingness', the learned Counsel elaborated that readiness refers to financial
capacity while willingness refers to conduct of the Plaintiff to perform his
obligation. Section 16(c) of the Specific Relief Act mandates that the Plaintiff
must 'plead and prove' that he had performed or has always been ready and
willing to perform the terms of the contract in express terms. The continuous
readiness and willingness on the part of the Plaintiff is a condition precedent
to grant the relief of specific performance. In this case, from the date of
execution of Ex.A-1 till the date of decree and even thereafter, the Plaintiff has
not asserted his continuous readiness and willingness. Even in the absence of
any specific plea in the written statement, it is mandate that the Plaintiff has to
comply with Section 16(c) of the Specific Relief Act and when there is no
proof of compliance of his statutory mandate, the suit has to be dismissed.
Thus, absolutely there is no oral or documentary evidences to prove the
financial capacity of the Plaintiff to pay the balance amount of Rs.19,53,250/-.
The Plaintiff has neither produced his bank statement nor any document to
show that he has sufficient wherewithal or financially capable to raise the
balance money in time. For exhibition of readiness and willingness, mere
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averments in the plaint is not enough. There must be some legal evidence to
show the financial capacity of the Plaintiff to mobilise the balance money. In
this case, not even a Iota of evidence had been produced. In support of his
submission, the learned Counsel for the Appellant relied on the reported
decision in 2011 (1) SCC 429 paragraph 22 to 27, 2018 (1) CTC 701
paragraph 13 and 2018 (5) LW 84 (paragraph 20 and 22).
7. The learned Counsel proceeded to contend that the suit property
was under mortgage with one Mr. Krishnan. The mortgage was a registered
mortgage dated 25.02.2010, registered as document No.1381/2010 for
Rs.5,00,000/-. It was cancelled on 15.03.2011 vide document No.1766/2011
under Ex.B-1. Immediately on the very same date and time, another mortgage
deed dated 15.03.2011 document No.1767/2011 under Ex.B-2 was created in
the name of S. Mani who is a partner of the Plaintiff. That apart, the Plaintiff
had also obtained signatures of the Defendants in the blank non judicial stamp
paper and other green sheets which were later exploited to create Ex.A-1 sale
agreement deed dated 15.03.2011. P.W-2 Kaliappan is a witness to Ex.B-1 and
also Ex.A-1 and Ex.A-3. Similarly D.W-3 K. Ravi signed as witness in Ex.B-2
and Ex.A-1. DW3 has categorically deposed that Ex.A-1 was not intended to
sell the property, whereas it was for a loan transaction. The execution of Ex.B1
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and Ex.B-2 and creation of Ex.A-1 on 15.03.2011 would cumulatively prove
that they are the brainchild of the Plaintiff. From the tenor of Ex.B-1, Ex.B-2
and Ex.A-1 it can be inferred that the Defendant wanted to raise money to get
rid of his high rate of interest. This situation of the Defendant was taken
advantage of by the Plaintiff in a deceitful manner. The subject matter of the
house is the only property for the Defendant to accommodate his family
consist of himself, wife and two daughters measuring 2610 sq.ft. While so,
there may not be any intention to sell the one and only property and there was
no necessity for the Defendant from doing so. On the other hand, the intention
of the Defendant was to get rid of a huge rate of interest with which the suit
property was mortgaged for Rs.5,00,000/- with one Krishnan. This can also be
inferred from the fact that on the same date of execution of Ex.A-1, the
Defendant also redeemed the mortgage with Mr. Krishnan. In support of his
submission, the learned Counsel for the Appellant relied on the reported
decision in the case of 2001 (6) SCC 600 paragraph No 7 to 14, 2018 (5) LW
84 paragraph 19 and 2012 (4) CTC 100 paragraphs 20, 26 and 35.
8. The learned Counsel further stated that the Defendant has
categorically denied the due execution and genuineness of Ex.A-1 and Ex.A-
3. When the execution of unregistered document putforth by the Plaintiff was
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denied by the Defendant, it is for the Plaintiff to prove the due execution and
there is no obligation on the part of the Defendant to prove the negative. The
trial Court is Therefore, not correct in holding that the Defendant has failed to
prove that Ex.A-1 was not intended for sale. In support of his submission, the
learned Counsel for the Appellant relied on the reported decision in the case of
2008 (4) SCC 530 paragraph 19.
9. It is further pointed out that there is no consensus ad idem for the
Defendant to sell his property by executing a deed for Rs.5,00,000/-. The
mere admission of signature of the Defendant in Ex.A-1 is not sufficient to
prove the genuineness of Ex.A-1 agreement. The Plaintiff has to establish that
there was a consensus ad-idem between the parties for transfer of property for
a valuable sale consideration and only then, Ex.A-1 can be termed as valuable
contract, capable of enforcing it before the Court. When two elements namely,
the free consent and lawful consideration is absent in the document, such
document cannot be treated as an agreement for lawful consideration in the
eyes of law. The evidence of P.W-2 would show that he is a real estate broker
and a tenant of the Plaintiff. Merely because P.W-1 and P.W-2 have stated
about the execution of Ex.A-1, one cannot come to a conclusion that the
transaction under Ex.A-1 was genuine. The evidence of P.W-1 and P.W-2 does
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not satisfy the requirement of law to believe the genuineness of the transaction
projected under Ex.A-1. In this context, reference was made by the learned
Counsel for the Appellant to the reported decision in the case of 2018 (1) CTC
701 paragraphs 12 and 13.
10. Referring to Section 16 and 20 of The Specific Relief Act the
learned Counsel contended that the Court is not bound to grant relief of
specific performance merely because it is lawful to do so. Section 20(1)
indicates that the jurisdiction to decree the specific performance is
discretionary. Section 20 (2) has been couched in a way not to decree specific
performance when (i) the Plaintiff takes unfair advantage over the
Defendants (ii) the performance would involve some hardship on the
Defendant which he did not foresee and (iii) the circumstances make it
inequitable to enforce specific performance. Merely because the Plaintiff had
proved his case, the Court need not grant decree of specific performance. The
Plaintiff has to touch the conscience of the Court to invoke the discretion in
his favour. The discretion should be based on sound, reasonable and guided by
judicial principles. In this connection, the learned Counsel for the Appellant
relied on the reported decision in the case of 2017 (5) SCC 178 paragraphs 7
to 12, 1987 (supp) SCC 340 paragraph 14 and 2018 (1) CTC 701 (DB) Para
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Nos. 12 and 13.
11. Thus, it is the assertive submission of the learned Counsel for the
Defendant/Appellant that the Judgment and Decree of the trial court is
perverse. The Appeal is to be allowed and the judgment and decree granting
specific performance of contract for sale of the property by the learned II
Additional District Judge, Erode in O.S.No.212 of 2011 dated 30.08.2011 is
to be set aside.
12. Opposing the submissions made by the learned Counsel for the
Defendant/Appellant, Mr. V. Raghavachari, learned Counsel for the Plaintiff-
Respondent would vehemently contend that the execution of Ex.A-1
agreement had been proved by the Plaintiff by examining himself as P.W-1
and the attestor as P.W-2 and thereby satisfied the requirements under law. On
the other hand, though DW1 and DW2 were examined, there are material
contradictions between their in respect of the complaint given on 20.06.2011
under Ex.B-4. Therefore, their testimony has to be rejected as unreliable. In
fact, after executing the sale agreement, the Defendant and his wife joined
together solely with a view to avoid execution of the sale deed and to cause
loss to the Plaintiff. The Defendant, having executed Ex.A-1 turned against
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his obligation in view of the pressure given by his family members. The
Defendant also voluntarily signed and has even admitted the execution of
signing blank papers, while so, he is estopped from complaining that Ex.A-1
was created by utilising the signatures made by him in blank. The fact remains
that after Plaintiff as well as the Defendant, along with their respective
witnesses have signed Ex.A-1 only after taking a print out from the computer.
Even otherwise, there is no illegality in using stamp papers purchased on
26.11.2010 for preparing Ex.A-1 agreement dated 15.03.2011 and Therefore, it
cannot be said that Ex.A-1, agreement of sale is ingenuine.
13. The learned Counsel for the Respondent further submitted that the
sale agreement dated is 15.02.2011. In the same sale agreement deed, it is
stated that by 30.04.2011, the tenant has to vacate and hand over possession.
Further it was stated that only Rs.19,00,000/- is to be paid towards the balance
sale consideration. In this context, the learned Counsel for the Respondent
invited the attention of this Court to the endorsement made on the backside of
the sale agreement by the Defendant agreeing to vacate and hand over
possession by 30.04.2011 after receipt of Rs.20,000/- and handover possession
by 05.05.2011 in which the brother of the Defendant signed as a witness.
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14. The learned Counsel for the Respondent also invited the attention
of this Court to the recitals in the sale agreement deed. As per the clause in the
sale agreement, the Defendant agreed to execute the sale deed on or before
15.09.2011. If the Plaintiff is not ready and willing to perform his part of the
contract within such date, he shall forfeit the advance amount paid already. On
the other hand, if the Plaintiff was willing and ready to perform his part of the
contract and the Defendant having not come forward to execute the sale deed,
the Plaintiff can enforce the contract of sale through Court and the Defendant
is bound by the legal action that may be initiated by the Plaintiff, both before
the civil and criminal Forum. When such statements have been clearly made
in the agreement of sale, it cannot be gainsaid that the Plaintiff, by misusing
one of the signed stamp papers, written the agreement under Ex.A-1, without
the knowledge or consent of the Defendant. The Defendant, having signed
Ex.A-1 is precluded from questioning it's genuineness on specious reasons.
Therefore, the submission of the learned Counsel for the Appellant has to be
rejected in the light of the specific recitals in the sale agreement deed.
15. The learned Counsel also submitted that on perusal of Ex.A-1, it
will be clear that it was not a document subsequently created. After preparing
the deed, the parties have signed it. Subsequent to the sale agreement, the
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Defendant made endorsement agreeing to vacate the tenant and handover the
vacant possession on 05.05.2011. When the Plaintiff approached the
Defendant for enforcing the specific performance of contract, the defendnat
lodged a criminal complaint against the Plaintiff through his wife, which was
marked as Ex.B-3. Ex.Ex.B3, it was alleged that the Plaintiff and his
henchmen attempted to dispossess the Defendant, his wife and daughters. It
was further complained that the agreement under Ex.A-1 was made to be
executed by utilising the liquor addiction of the Defendant. The complaint
under Ex.B-4 was forwarded to the Superintendent of Police by the District
Collector, Erode under Ex.B-5 based on which an enquiry was conduced by
the Police officials. During such enquiry, it unfolded that the Defendant had
executed a valid sale agreement but after receipt of advance money of
Rs.2,00,000/-, agreeing to execute a sale deed for a total sale consideration of
Rs.21,53,250/- the complaint was given. The complaint was given to the
District Collector on 20.06.2011. In such circumstance, the Plaintiff, in order
to assert his right as an agreement holder, filed the suit without any pre-suit
notice directing the Defendant to comply the condition in the sale agreement.
The sale agreement expires on 15.09.2011. The suit was instituted on
06.09.2011 before the expiry of the sale agreement. After full trial, the suit was
decreed on 30.08.2018.
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16. The learned Counsel for the Respondent invited the attention of
this Court to the cross examination of D.W-1 wherein he admitted that he
knew the Plaintiff who is having motor work shop and electrical shop. Thus,
the Defendant deposed that the Plaintiff is having a commercial shop and
indirectly admitted that the Plaintiff is a resourceful person to purchase the
property. It was further deposed that the Defendant approached P.W-2
Kalliappan, a real estate broker for sale of the property. However, it is
contended that before the trial court as well as this Court that the Defendant
approached P.W-2 only for mortgage of the property. DW1 also denied having
made the endorsement on 30.04.2011. But, he agreed his signature in Ex.A-1.
He also admitted the signature under Ex.A-3, signature on the revenue stamp
and thumb impression. He further deposed that he had not informed it to his
wife. He denied the suggestion put to him in cross examination regarding the
execution of the endorsement undertaking to vacate and hand over vacant
possession of the property. He also denied the suggestion that he along with
his brother Ravi instigated his wife to give complaint to the District Collector
against the Plaintiff. He admitted that he had executed mortgage deed in
favour of Mani, after cancellation of the earlier mortgage executed in favour of
Krishnan for Rs.5,00,000/-. He had denied the suggestion that he had made
false averments knowing that he had executed bonafide and genuine sale
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agreement deed with an intention to sell the property to the Plaintiff.
17. Further, the learned Counsel for the Respondent invited the
attention of this Court to the deposition of the wife of the Defendant as D.W-2.
She, in her cross examination, admitted that in the Police Station, the Inspector
of Police, asked her to peruse the sale agreement under Ex.A-1 and only then
she came to knew about it. She admitted in cross examination that her husband
accompanied her to the office of the District Collector. She admitted that there
was no dispute with her husband and both of them are residing in the same
house. She admitted that her Husband is a worldly wise man and he is
involved in business. Also she admitted that her husband had not given any
complaint to the Police directly or before the Court against the Plaintiff. After
enquiry in the Police Station, the Police directed both parties to approach the
Civil Court. She had in her cross examination further stated that all the details
of the transaction is known to her husband only and she does not know the
details of the properties or the transaction. She denied the suggestion that she
had deposed false evidence at the instigation of her husband.
18. The learned Counsel for the Respondent referred to the evidence
of the Plaintiff as P.W-1, the real estate broker as P.W-2 and the cross
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examination of the D.W-1 and D.W-2 and submitted that it can be concluded
that the sale agreement deed under Ex.A-1 was genuine and bonafide. The
learned Trial Judge on perusal of Ex.A-1 had clearly arrived at a conclusion
that what was stated by the Defendant in the written statement that at the time
of availing loan, the Plaintiff obtained signature of the Defendant on stamp
paper and on concur paper and green sheets which was subsequently exploited
to create Ex.A-1 was not true and rejected the said contention of the
Defendant.
19. The learned Counsel for the Respondent also submitted that
pending this appeal, C.M.P. No. 24050 of 2019 was filed by the Defendant-
Appellant seeking to produce additional documents. According to the learned
Counsel, the said application has to be dismissed as the Defendant is
attempting to mark documents which were not furnished during trial. If those
documents are permitted to be marked in this appeal, the Respondent will be
deprived of a chance to cross-examine the witness on the basis of the
additional documents. Furthermore, there was no reason assigned by the
Defendant as to why those documents have not been marked during trial. Even
otherwise, the Defendant is attempting to mark some documents that came into
existence after the trial which cannot be accepted.
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20. The learned Counsel for the Respondent relied on the following
reported decisions:
(1) Sahu Madho Das and Others v. Pandit Mukand Ram and another
reported in 1955 AIR 481;
(2) N.L.Devender Singh & Others v. Syed Khaja reported in 1973
AIR 2457;
(3) Prakash Chandra v. Angadlal and Others reported in AIR 1979 SC
1241;
(4) Nanjammal and Others v. Palaniammal reported in
MANU/TN/0467/1993;
(5) Aniglase Yohannan v. Ramlatha and Others reported in
MANU/SC/0653/2005;
(6) P.S.Ranakrishna Reddy v. M.K.Bhagyalakshmi and Others
reported in MANU/SC/7148/2007
(7) Silvey and Others v. Arun Varghese and Others reported in
MANU/SC/7223/2008;
(8) T.G.Pongiannan v. K.M.Natarajan and Others reported in
MANU/TN/4124/2009;
(9) D.Ananda Moorthy v. P.Chandrakala reported in
MANU/TN/0304/2010;
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(10) A.Natarajan v. Chitra Mills reported in MANU/TN/4469/2010;
(11) Laxman Tatyaba kankate and Others v. Taramati Harishchandra
Dhatrak reported in MANU/SC/0477/2010;
(12) J.Baskaran v. T.Pappa reported in 2012 (2) MWN (Civil) 342;
(13) P.Vaidyanathan v. K.Sundaram in A.S.No.34 of 2010.
(14) Sughar Singh v. Hari Singh (Dead) through L.Rs reported in
MANU/SC/0985/2021;
(15) N. Parimala v. S. Lalitha reported in MANU/TN/9078/2021;
(16) Ramathal v. Maruthathal and Others reported in (2018) 18
Supreme Court Cases 303;
21. Among the several decisions cited by the learned Counsel for the
Respondent, in the ruling reported in the case of Sahu Madho Das and
Others Vs. Pandit Mukund Ram and another reported in 1955 AIR 481, the
relevant portion reads as follows:
“ the Plaintiff cannot be punished where refusing the
relief of specific performance. Despite the fact that the
execution of agreement to sale in his favour has been
established and proved and that he is found to be always ready
and willing to perform his part of contract”. Not to grant the
decree of specific performance, despite the execution of the
agreement to sale is proved and part sale consideration is
proved and the Plaintiff is always ready and willing to perform
his part of contract would engage dishonesty in such a
suggestion the balance is dilt in favour of the Plaintiff rather
than in favour of the Defendant.
22. By inviting the attention of this Court to the above referred
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decisions, the learned Counsel for the Respondent submitted that in the light
of the reported decisions, the judgment of the learned II Additional District
Judge, Erode rejecting the contention of the Defendant before the trial Court
and granting the relief of specific performance has to be affirmed as well
reasoned. It is further submitted that there is no infirmity in the judgment of
the trial court and it does not warrant any interference by this Court. The
Appeal lacks merit and it is to be dismissed with costs for the Plaintiff,
throughout.
Point for determination:
Whether the learned Second Additional District
Judge, Erode by Judgment in O.S.No.212 of 2011 dated
30.08.2013 ignoring the Provisions of Specific Relief Act had
decreed the Suit for specific performance when the Plaintiff had
not proved the contention of the Plaintiff?
23. Heard the learned Counsel for the Appellant and the learned
Counsel for the Respondent. Perused the deposition of P.W-1 and P.W-2 and
the documents marked on the side of Plaintiff as Ex.A-1 to Ex.A-3 and the
deposition of D.W-1 and D.W-3 and the documents marked on the side of
Defendant as Ex.B-1 to Ex.B-5 and also the judgment dated 30.08.2013 passed
in O.S.No.212 of 2011 by the learned Second Additional District Judge, Erode.
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24. It is the contention of the learned Counsel for the
Defendant/Appellant that he had already borrowed a sum of Rs.5 lakhs from
one Krishnan and executed a mortgage deed in his favour. As the rate of
interest that is being paid to the said Krishnan was on the higher side, the
Defendant thought of redeeming it and to execute another mortgage deed for a
lesser rate of interest. It is in this context, the Defendant, through a land
broker, the Defendant got introduced to the Plaintiff. The Defendant
expressed his intention to mortgage the property in favour of the Plaintiff after
redeeming the mortgage in favour of the said Krishnan. Thus, the intention of
the Defendant is to re-mortgage the land in favour of the Plaintiff so that he
can be relieved of the burden of paying more amount towards interest.
25. It is evident that on the date when Ex.A-1 was executed in favour
of the Plaintiff, the Defendant, by utilising the sum of Rs.5 lakhs received from
the Plaintiff, redeemed the mortgage with the said Krishnan and the property is
free from any subsisting encumbrance.
26. It is seen from Ex.A-1, agreement of sale dated 15.03.2011 that it
was not registered. It is further seen that Ex.A-1 was executed between the
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Plaintiff and Defendant. Further, on the same day namely 15.03.2011, the
mortgage subsisting with Mr. Krishnan was redeemed and it was marked as
Ex.B1. On the same day namely 15.03.2011, yet another agreement came to be
executed between the Defendant and Mr. Mani, friend of the Plaintiff. While
Ex.A-1 agreement of sale was prepared in a stamp paper having a value of
Rs.20/-, the agreement between the Defendant and Mr. Mani, friend of the
Plaintiff, was registered as document No. 1767 of 2011. Further, the document
entered under Ex.A-1 was titled as “Agreement for sale” between the Plaintiff
and Defendant and it was not registered but the other document entered into
between the Plaintiff and Mr. Mani, friend of the Plaintiff was registered as
document No. 1767 of 2011 was titled as “Mortgage Deed for Rs.5,00,000/-”.
Thus, in connection with the same property, on the same day namely
15.06.2011, two agreements came to be executed, one styled as agreement of
sale between Plaintiff and Defendant and another document registered with the
nomenclature 'mortgage deed for Rs.5,00,000/-. It is not known as to whether
the document titled as 'mortgage deed for Rs.5,00,000/-' executed in favour of
Mr. Mani was enforced by Mr. Mani, friend of Plaintiff. Even in the plaint or
in the other documents, there is no reference made as to whether the so called
registered mortgage deed for Rs.5,00,000/- was enforced, whether the
Defendant paid the mortgage amount of Rs.5,00,000/- or any part thereof to
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Mr. Mani, whether any demand was made by Mr. Mani against the Defendant
for payment of mortgage money. The mortgage deed for Rs.5,00,000/- was
registered and there is no document to show that it was enforced. On the other
hand, the other document which emanated on the same day namely 'agreement
of sale' and which is an unregistered document, is sought to be enforced
through the instant suit by the Plaintiff.
27. On going through the two documents which came to be executed
on the same day on 15.03.2011, it is glaringly evident that fraud has been
played by the Plaintiff in collusion with his friend Mr. Mani. It appears that
the mortgage deed executed by the Defendant in favour of Mr. Mani and
which was registered has not been enforced or sought to be enforced.
However, the agreement of sale entered into with the Plaintiff alone is sought
to be enforced. Therefore, this Court is of the view that the defence of the
Defendant that his signature was obtained in blank stamp papers and it was
utilised, rather abused and misused, to create the document under Ex.A-1 is
absolutely legal and valid and consequently, Ex.A-1, agreement of sale has to
be declared as sham, nominal and ingenuine.
28. In the agreement under Ex.A-1, there are recitals to the effect that
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if the Plaintiff pays the balance money within time, a sale deed will be
executed by the Defendant to the Plaintiff. In the event of failure to pay the
amount, the Plaintiff has to forfeit the amount. This negative covenant in the
agreement of sale, Ex.A-1 was brought to the notice of this Court to project as
if the Plaintiff, being the purchaser of the property, has even agreed for such a
clause to be incorporated. This Court is not inclined to go into these
contentions inasmuch as it is glaringly clear that Ex.A-1, agreement of sale is
an act of deceit and it was fabricated to alienate the property of the Defendant.
29. On the date of the alleged sale agreement deed dated 15.03.2011
the amount fixed as sale consideration was Rs.21,53,250/- and it was made as
if advance amount of Rs.2,00,000/- was paid. In the agreement of sale dated
15.03.2011, the time for completion of the contract was till 15.09.2011. It is
further contended that in the reverse of Ex.A-1, an endorsement was allegedly
made by the Defendant to the effect that he will vacate the tenants in the
property on or before 05.05.2011. While saying so, it is alleged that while
making such endorsement on 30.04.2011, the Defendant received further sum
of Rs.20,000/-. Curiously, in the agreement of sale dated 15.03.2011, the
Defendant has signed his name in Tamil as 'N. Rnuc&;' but in the so-called
endorsement, the thumb impression of the Defendant is obtained. This raised
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suspicion that the endorsement said to have been made by the Defendant is
forged. When the Defendant could sign in the agreement of sale, there is no
reason as to why his thumb impression alone has been made in the so-called
endorsement.
30. It is the contention of the Defendant that by utilising the
signatures made in the blank sheets the above suit was instituted. Further,
before filing the suit, no pre-suit notice has been issued but straight away the
suit was instituted. This defence of the Defendant deserves consideration.
Normally, in a suit for specific performance, the purchaser will issue a notice
to the owner expressing his readiness and willingness to honour the terms and
conditions contained in the agreement of sale. If such a notice is issued in this
case by the Plaintiff, the Defendant would have immediately sent a reply
repudiating the same. As the agreement of sale, Ex.A-1 itself is not genuine,
rather it is fabricated, it is no surprise that the Plaintiff has straightaway filed
the present suit without any pre-suit notice to the Defendant.
31. It is seen from Ex.B5, a notice for enquiry issued by the office of
the District Superintendent of Police, Erode that an enquiry was conducted
pursuant to the complaint dated 20.06.2011 submitted by the wife of the
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Defendant. The complaint was given by stating that the Plaintiff, along with
his men, have threatened her with dire consequences if they did not vacate and
handover the vacant possession of the house in which they reside. It is to be
noted that even assuming that the agreement of sale under Ex.A-1 dated
15.03.2011 is valid and absolutely genuine, if the Defendant did not honour
the terms and conditions thereof and refused to execute the sale deed, the
Plaintiff ought to have issued a notice calling upon the Defendant to comply
with the agreement of sale. However, the Plaintiff along with his men, within
three months of the execution of the so-called notice dated 15.03.2011,
trespassed into the house of the Defendant and threatened the inmates, who are
women viz., wife and two daughters of the Defendant. It is in those
circumstances, the complaint was given. It is also needs to be mentioned that
even as per the fabricated agreement of sale dated 15.03.2011, two months
time was given for execution of the sale deed. Further, on 30.04.2011, the
Plaintiff alleged to have paid Rs.20,000/- to the Defendant on his assurance
that he will vacate the tenants on or before 05.05.2011. Assuming that such an
undertaking given by the Defendant has not been complied with, the Plaintiff
ought to have taken recourse to law by issuing a notice or filed the suit for
specific performance. However, within a month thereafter, the Plaintiff
descended on the house of the Defendant and threatened the inmates. Thus,
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even assuming that Ex.A-1 is genuine, it is evidently clear that there is no
enormous delay on the part of the Defendant in complying with the same.
However, within two or three months the Plaintiff and his men barged into the
house of the Defendant and threatened the inmates to vacate. The gay
abandon with which the Plaintiff acted upon or intended to enforce the
fabricated and ingenuine agreement of sale under Ex.A-1 is to be deprecated.
The wife of the Defendant, scared of such threat and ultimatum given by the
Plaintiff and his henchmen, given the complaint to the District Collector
during the public grievance day which was forwarded to the Superintendent of
Police. The Superintendent of Police forwarded it to the Inspector of Police
who conducted an enquiry. Soon after the enquiry, the Plaintiff had instituted
the present suit for specific performance.
32. It is contended that the Plaintiff has not deposited the balance sale
consideration to show his bona fides that he is ready and willing to perform his
part of contract. This Court is not inclined to go into this aspect inasmuch as
Ex.A-1 itself is fraudulent and fabricated. Further, a purchaser who entered
into an agreement of sale will only express his readiness and willingness by
way of a statutory notice and calls upon the owner to perform his part of the
obligations under the agreement of sale. In this case, readiness and
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willingness was not expressed by the Plaintiff in a manner known to law.
However, the Plaintiff and his henchmen trespassed into the house of the
Defendant and threatened the inmates. Therefore, the question of readiness
and willingness need not be adjudicated upon by this Court in this appeal. If
the intention of the Plaintiff was bona fide, he could have issued a lawyer's
notice directing the Defendant to execute the sale deed and honour the
agreement of sale, Ex.A-1. If any such notice would have been issued, there
may not be any occasion for the Defendant's wife to approach the Police
authorities. Instead, a reply would have been issued repudiating the execution
of an agreement of sale. Therefore, in the absence of any pre-suit notice in this
case, the Plaintiff is not entitled to the equitable relief of specific performance.
33. It is stated that the property covered under Ex.A-1, agreement of
sale is worth more than Rs.45,00,000/- and it is the only property owned by the
Defendant. According to the Defendant, if the same is sold, he Defendant and
his family consisting of wife and daughters have to remain without a shelter.
The circumstances under which the Defendant borrowed money from the
Plaintiff by cancelling mortgage deed executed by him in favour of one
Krishnan for Rs.5,00,000/- was exploited and taken advantage to by the
Plaintiff with the aid of his friend Mr. Mani. The learned II Additional District
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Judge, Erode without appreciating the above facts, has mechanically granted a
decree for specific performance which is nothing but a perverse and
perfunctory Judgment, which should not be allowed to continue.
34. The learned Counsel for the Appellant invited the attention of this
Court to the cross-examination of P.W-1/Plaintiff and also PW2, the broker
who is alleged to have informed the Plaintiff of the availability of the property
for sale and they have merely denied the suggestion put on behalf of the
Defendant. When D.W-1 and his wife/D.W-2 were examined they stoutly
denied the suggestion put by the learned Counsel for the Plaintiff. The
Defendant also, during the course of argument, contended that the Plaintiff had
instituted the Suit without depositing the balance sale consideration on the
date of institution of Suit or during the pendency of trial. However, this was
ignored by the learned Second Additional District Judge while granting a
decree for specific performance inter alia directing the Plaintiff to deposit the
balance sale consideration. This approach of the Trial Court cannot be
appreciated and it has to be interfered with.
35. The submission of the learned Counsel for the Appellant that the
Suit property fetch about Rs.45,00,000/- even as on the date of Ex.A-1 and it is
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sought to be grabbed by the Plaintiff also cannot be brushed aside. The
attempt of the Plaintiff to grab a valuable property is explicit from the fact that
with the documents signed by the Defendant in the office of the Sub-Registrar,
a Mortgage Deed was registered. But on the same day, Ex.A-1 was created
and fabricated by the Plaintiff with the help of the signatures obtained from the
Defendant. In such view of the matter, the Plaintiff is not entitled to any relief
in the vexatious suit filed by him. The Plaintiff has not approached the Court
with clean hands. The intention of the Plaintiff in filing the suit is to save
himself from being proceeded with a criminal investigation inter alia to
compel, coerce and force the Defendant to execute the sale deed by adopting
all deceitful tactics.
36. In the light of the above discussion, the point for determination is
answered in favour of the Appellant and against the Respondent. The
Judgment and decree dated 30.08.2013 made in O.S. No. 212 of 2011 by the
learned II Additional District Judge, Erode, is found perverse and the same is
liable to be set aside. At the same time, having regard to the fact that the
Defendant admitted having received the amount from the Plaintiff, purporting
it to be a mortgage money, he has to repay the same to the Plaintiff with
interest. Accordingly, the decree and judgment of the trial Court has to be set
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aside with a direction to the Defendant to repay the so-called advance amount
with interest at the rate of 9% per annum. Accordingly, the Appeal is allowed
with a direction to refund the advance amount.
37. Pending appeal, the Defendant-Appellant has filed CMP No.
24050 of 2019 seeking to produce additional documents. In view of the fact
that the defence raised by the Defendant/Appellant is accepted by this Court
by setting aside the Judgment and Decree of the Trial Court, no further order is
necessary to be passed in C.M.P. No. 24050 of 2019.
In the result, this Appeal Suit is allowed. The Judgment and Decree
dated 30.08.2013 passed in O.S. No. 212 of 2011 by the learned II Additional
District Judge, Erode, is set aside, however, the Defendant/Appellant is
directed to refund the advance amount to the Plaintiff within a period of three
months from the date of receipt of a copy of this Order with interest at the rate
of 9% per annum. No costs. Consequently, connected C.M.P. No. 24050 of
2019 stands closed.
02.06.2025
shl
Index : Yes/No
Internet : Yes/NO
Speaking/Non-speaking order
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SATHI KUMAR SUKUMARA KURUP, J
shl
To
1.The II Additional District Court,
Erode.
2.The Section Officer,
V.R. Section,
High Court Madras.
Judgment in
02.06.2025
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