Madras High Court
Renu vs Murugan on 10 October, 2025
THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment reserved on : 18.09.2025 Judgment pronounced on : 10.10.2025
CORAM
THE HON'BLE MR. JUSTICE P.B.BALAJI
A.S.No.1135 of 2024
& CMP.No.28912 of 2024
Renu ..Appellant
Vs.
Murugan ..Respondent
Prayer: Appeal Suit filed under Section 96 of CPC, to set aside the judgment
and decree of the learned Additional District Judge, Kallakurichi in O.S.No.91
of 2020 dated 19.08.2024.
For Appellant : Mr.K.Sakthivel
For Respondent : Mr.N.Manoharan
JUDGMENT
The defendant in a suit for specific performance is the appellant in the
present appeal suit.
2.For the sake of convenience and reference, the respective pleadings of
the parties before the Trial Court, is culled out briefly hereunder:
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The case of the plaintiff in brief:
The defendant was the owner of the suit property. The defendant agreed
to sell the said property to the plaintiff for a total sale consideration of
Rs.13,12,500/-. On 04.10.2019, a registered sale agreement was executed
between the parties and the plaintiff paid a sum of Rs.7,50,000/- as advance.
For payment of balance sale consideration of Rs.5,62,500/-, one year time was
fixed under the agreement of sale. According to the plaintiff, he has been ready
and willing to perform his part of contract, but however the defendant evaded
to execute the sale deed. Therefore, on 01.09.2020, the plaintiff issued a notice
to the defendant and despite the said notice, the defendant neither chose to send
a reply nor comply with the demands in the said notice, thereby necessitating
the plaintiff to file the suit for specific performance.
3.The case of the defendant in brief:
The defendant was constrained to borrow Rs.5,00,000/- from third parties
for performing the marriage of his grand-daughter, Sivaranjani and it was only
to discharge the said loans, the defendant approached the plaintiff and the
plaintiff demanded interest at Rs.5/- for Rs.100/- per month and insisted upon a
sale agreement being entered into as security. It is therefore the case of the
defendant that only under compulsion, the defendant executed the sale
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agreement on 04.10.2019 and the amount of Rs.7,50,000/- was only a loan
received by him. According to the defendant, there was no necessity for him to
sell the suit property and even on the date of the agreement, the value of the
property was more than Rs.60,00,000/- and the defendant being a prudent land
owner would have never agreed to give away the property for a throw away
consideration of Rs.13,12,500/-. It is also contended that the defendant has paid
interest for 10 months. Insofar as the legal notice, the defendant states that on
receipt of the said notice, he approached the plaintiff and requested for further
time to settle the loan amount. However, despite the same, the plaintiff has
approached the Court and sought for specific performance.
4.Issues framed by the Trial Court:
Based on the pleadings, the trial Court has framed the following issues:
1) Whether the plaintiff is entitled for the relief of specific
performance as prayed for?
2) Whether the sale agreement was executed by the
defendant to getting hand loan of Rs.7,50,000/- as security?
3) Whether the sale agreement was executed out of
compulsion made by the plaintiff?
4) To what other relief, the plaintiff is entitled to?
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5.Witnesses examined and exhibits marked before the Trial Court:
During trial, on the side of the plaintiff, he examined himself as P.W.1
and marked Ex.A1 to A3. One Mr.Mani, an attestor to the sale agreement was
examined as P.W.2. On the side of the defendant, he examined himself as
D.W.1 and the witnesses, Mr.Palani and Mr.Suresh were examined as D.W.2
and D.W.3 and one Mr.Murthy was examined as D.W.4 and no exhibit was
marked on the side of the defendant.
6.The Trial Court, finding that the agreement of sale was true and not a
loan transaction as projected by the defendant and also that the plaintiff was
ready and willing to perform his part of the contract, decreed the suit.
7.The present appeal arises against the said judgment and decree for
specific performance of the suit agreement of sale.
8.I have heard Mr.K.Sakthivel, learned counsel for the appellant and
Mr.N.Manoharan, learned counsel for the respondent.
9.Arguments of the learned counsel for the appellant:
Mr.K.Sakthivel, learned counsel for the appellant would contend that the
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defendant had categorically pleaded and established that the agreement was
only a loan transaction and not an actually intended sale. He would refer to the
averments in the agreement of sale, where an unusual one year time has been
fixed for payment of the balance sale consideration and further, it was the
admitted case of the plaintiff that he did not have necessary funds to pay the
balance sale consideration and therefore he requested further time. He would
therefore state that these would clearly demolish the case of the plaintiff that
the plaintiff was ready and willing throughout.
10.Even as regards the lawyer's notice dated 01.09.2020, the learned
counsel for the appellant would contend that though the plaintiff had issued the
notice, calling upon the defendant to come forward to register the agreement on
07.09.2020 at the Sub-Registrar's Office, the notice itself was despatched only
on 07.09.2020 and received by the defendant on 10.09.2020. He would also
state that merely because the balance sale consideration was deposited before
the Trial Court, it would not imply readiness and willingness.
11.Referring to the contents of the lawyer's notice dated 01.09.2020, the
learned counsel for the plaintiff would state that the plaintiff, even in the said
notice, does not say that the balance sale consideration is ready and the
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language in the said notice only indicates that he is likely to get necessary
funds. He would also invite my attention to the averments in the plaint where
there is no whisper about whether the plaintiff was ready for registration on
07.09.2020, as indicated in the lawyer's notice dated 01.09.2020. Referring to
the cross-examination of P.W.1, the learned counsel for the appellant would
state that even though the admitted balance payable, according to the plaintiff,
was Rs.5,62,500/-, the plaintiff himself admitted that he had only Rs.2,50,000/-
lakhs as balance in his bank account and therefore, he would contend that the
plaintiff was not possessed of sufficient funds to meet the balance sale
consideration. It is his further contention that mere deposit of balance sale
consideration, in pursuance of directions of the Court, would not imply
readiness and willingness.
12.It is also the argument of the learned counsel for the appellant that
'resources' is different from 'means' and in a suit for specific performance, the
plaintiff has to necessarily prove readiness and willingness and in the instant
case, the plaintiff has miserably failed to establish that he was ready and willing
to pay the balance sale consideration and strong reliance is placed and
reiterated with regard to the plaintiff's admissions that he needed about 5 to 6
months to muster the balance sale consideration. In support of his contention,
the learned counsel for the appellant would rely on the following decisions:
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1.Abdul Hag Vs. Hafiz Abdul Rashid Khan and another,
reported in 1975 AIR (Del) 13.
2.K.P.Mohamed Ibrahim Vs. State Bank of Travancore,
reported in 1964 AIR (Mad) 233.
3.Gomathinayakam Pillai and others Vs. Pallaniswami
Nadar, reported in 1967 AIR (SC) 868.
4.Uma Bai and another Vs. Nilkanth Dhondiba Chavan,
reported in 2005 (6) SCC 243.
5.Sukhwinder Singh Vs. Jagroop Singh, reported in 2020
AIR (SC) 4865.
13.Arguments of the learned counsel for the respondent:
Per contra, Mr.N.Manoharan, learned counsel for the respondent would
firstly contend that the suit agreement is a registered agreement of sale and
there is a legal presumption under Section 114 of the Indian Evidence Act and
Sections 56 to 60 of the Registration Act, that the agreement was for the
intended purposes. He would further contend that even though it is open to a
party to such agreement to contend, taking advantage of Section 92 of the
Indian Evidence Act and state that the agreement was for a different purpose
altogether, at the same time, the recitals in the agreement cannot be
contradicted.
14.In any event it is the specific contention of the learned counsel for the
respondent that there is absolutely no iota of evidence adduced by the
defendant and even the witnesses, who spoke on behalf of the defendant, who
also clearly admitted the agreement of sale and therefore there was no
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requirement to even rely or fall back on the provisions of Section 92 of the
Indian Evidence Act in the present case.
15.As regards, the delayed despatch of the lawyer's notice, the learned
counsel for the respondent would contend that such a plea was never raised in
the written statement or even taken up during the trial and it is not open to the
appellant to raise the said contention in appeal for the first time, without even
back up pleading for the same. The learned counsel for the respondent would
contend that along with the suit that was filed on 29.10.2020, the plaintiff had
taken out a lodgement schedule and even before the written statement was filed
in the suit, the balance sale consideration was deposited on 30.09.2021. It is
therefore contended by the learned counsel for the respondent that the plaintiff
had clearly established readiness and willingness on his part.
16.Also referring to the explanation to Section 16(c), he would state that
there was no requirement to deposit the balance sale consideration and despite
the same, as already indicated above, the entire balance sale consideration was
deposited before the trial Court, even before pleadings were completed. He
would therefore state that the plaintiff had clearly discharged his burden
regarding readiness and willingness to perform his part of the contract. He
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would also invite my attention to the witnesses, who have been examined,
specifically D.W.2 and D.W.3, who are sons of the defendant himself and none
of the witnesses have challenged the sale agreement or the actual nature of
transaction. He would therefore state that the evidence of the sons of the
defendant was, in fact, fatal to the case of the defendant himself.
17.Referring to the entire oral evidence, the learned counsel for the
respondent would state that all the witnesses, who have been examined, have in
one voice admitted to the agreement of sale. As regards the contention
regarding readiness and willingness, as argued by the learned counsel for the
appellant, the learned counsel for the respondent would contend that even as on
the date of agreement, approximately 60% of the total sale consideration has
been paid and when the parties themselves had contemplated a years' time to
pay the balance sale consideration, much cannot be made out from the
admissions of the plaintiff that he needed 5 to 6 months time to arrange for the
balance sale consideration. He would also contend that not even a suggestion
was put to P.W.1 regarding his lack of readiness and willingness. He would
therefore state that the plaintiff had clearly established readiness and
willingness with the deposit of the entire balance sale consideration and
nothing remained to be performed on his side and rightly, the Trial Court has
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decreed the suit and no interference is warranted in this appeal. In support of
his contentions, the learned counsel for the respondent would rely on the
following decisions:
1.Madhkur Nivrutti Jagtap Vs. Pramilabai Chandulal
Prandekar, reported in 2020 15 SCC 731.
2.Bhavyanath Vs. K.V.Balan, reported in 2020 11 SCC
3.Lakshmi Ammal Vs. Gejaraj, reported in 2022 SCC
Online Mad 7211.
4.P.Ramasubbamma Vs. Vijayalakshmi and others,
reported in 2022 7 SCC 384.
5.Syed Dastagir Vs. T.R.Gopalakrishna Setty, reported in
(1999) 6 SCC 337.
6.Muddasani Venkata Narsaiah (dead) through LR's Vs.
Muddasani Sarojana, reported in (2016) 12 SCC 288.
18.I have carefully considered the submissions advanced by the learned
counsel on either side. I have gone through the pleadings, oral and documentary
evidence as well as the judgment of the trial Court.
19.Point for consideration:
On consideration of the arguments referred above, I frame the following
point for consideration.
(i) Whether the suit agreement of sale was actually a loan
transaction or an intended agreement of sale alone?
(ii) Whether the plaintiff has pleaded and proved readiness
and willingness, entitling him to a decree for specific
performance?
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20.Points 1 and 2:
The execution of the sale agreement dated 04.10.2019 is not in dispute. It
is the contention of the defendant that though the agreement of sale was entered
into, it was only as a security for the loan availed of by the defendant from the
plaintiff, to pay off debts incurred to meet the marriage expenses of his grand-
daughter. In such circumstances, the burden of proving that the agreement was
only a loan transaction and not a sale transaction was heavily on the defendant.
In this regard, I have gone through the oral evidence adduced by the parties.
21.Two of the sons of the defendant themselves have been witnesses to
the agreement of sale. Quite strangely, five witnesses have signed the
agreement of sale and all the witnesses, who have been examined, one on the
side of the plaintiff and the three on the side of the defendant, have clearly
stated that the suit agreement was only an agreement of sale. Though the
defendant claimed that he had paid 10 months interest, the defendant has not
been able to substantiate the said contention taken in the written statement. The
overall assessment of the oral and documentary evidence on record clearly
points out to the fact that the suit agreement was only an intended sale
agreement and not a loan transaction, as claimed by the defendant. There is also
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no explanation on the side of the defendant as to why he did not send any reply
to the lawyer's notice, Ex.A2, despite having acknowledged receipt of the same.
Except for bald denial and a weak explanation that the defendant contacted the
plaintiff and promised to repay the amount borrowed, there is nothing brought
on record to establish that the defendant actually met the plaintiff in person, as
contended in the written statement. In fact, there is not even a suggestion put to
P.W.1 that pursuant to the receipt of the notice, the defendant contacted the
plaintiff. Though non issuance of a reply per se may not be fatal to the party
who did not send a reply to the pre-suit notice, but however, such conduct and
the explanation offered read together would certainly have a bearing while
adjudicating the issues that arise for consideration in the suit.
23.In the present context, it is clear that if really, the defendant's case that
the amount was only borrowed from the plaintiff and it was only a loan
transaction and not a sale agreement as projected by the plaintiff, in such event,
a normal prudent property owner would not risk not replying to such a notice
calling upon the defendant to come forward to execute a sale deed in
furtherance and compliance of the agreement of sale in Ex.A1
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24.As already discussed, both P.W.2 as well as D.W.2, D.W.3 and
D.W.4, four out of five attesting witnesses to Ex.A1, sale agreement have
clearly admitted to the fact that the transaction was only an agreement of sale
and nothing has been brought out in cross-examination to indicate that the
transaction was only a loan transaction. The Trial Court has rightly assessed the
oral and documentary evidence and arrived at a finding that the case of the
defendant that it was a loan transaction and not an agreement of sale is
unsustainable. I do not find any grounds to disagree or interfere with such
reasoned findings arrived at by the trial Court.
25.Coming to the readiness and willingness of the plaintiff, it is not in
dispute that in a suit for specific performance under Section 16(c) of the
Specific Relief Act, it is mandatory for the plaintiff to plead as well as prove
that he has been always ready and willing to perform his part of the contract. In
this regard, there is no difficulty with regard to the pleadings. The plaintiff has
set out in the plaint that he has always been ready and willing to perform his
part of the contract. In order to establish his readiness and willingness, even
when the suit was instituted, he has filed a lodgement schedule with an intent to
deposit the balance sale consideration. However, it was much later after the suit
came to be registered, but however before even the defendant filed his defence
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that the trial Court permitted the plaintiff to deposit the balance sale
consideration and accordingly, on 30.09.2021, the entire balance sale
consideration was also deposited.
26.It is vehemently contended by the learned counsel for the appellant
that mere deposit, that too in furtherance of the directions of the Court would
not automatically imply readiness and willingness. In this regard, the learned
counsel for the appellant has strongly relied on the admission of P.W.1 that he
needed about 5 to 6 months time to get ready with the balance sale
consideration. I do not see that this admission being fatal to the plea of
readiness and willingness. Firstly, when the agreement of sale was entered into
itself the parties contemplated a period of one year for payment of the balance
sale consideration. Even on the date of sale agreement, the plaintiff has paid a
substantial sum of Rs.7,50,000/-.
27.It is not uncommon for the prospective purchaser to seek time to pay
the balance sale consideration and get the sale deed registered in his favour.
When the parties have expressly covenanted to a one year time period for
payment of balance sale consideration, the fact that the plaintiff required 5 to 6
months to get ready for the sale is of no consequence. The plaintiff, by issuing a
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lawyer's notice, before the lapse of the one year period and also following it up
with the filing of the suit without any further delay thereafter and also showing
his bonafides by seeking to deposit of the entire sale consideration, in my
considered opinion, would be sufficient to discharge his requirement of proving
his 'readiness and willingness'. In fact, it is admitted that subsequently on
30.09.2021, the plaintiff has also deposited the entire balance sale consideration
of Rs.5,62,500/- and merely because it was pursuant to Court directions does
not in any way impeach the readiness and willingness exhibited on the side of
the plaintiff.
28.As rightly contended by the learned counsel for the respondent, the
explanation to Section 16(c) of the Specific Relief Act also does not require a
mandatory deposit of the balance sale consideration. Therefore, this is only yet
another factor which would aid the Court to come to the conclusion as to
whether the plaintiff was ready and willing to perform his part of the contract.
Even as regards the argument of the learned counsel for the appellant that the
plaintiff had admitted that he had only a sum of Rs.2,50,000/- as available in
his bank account and it was not sufficient to meet the balance sale
consideration, when the plaintiff has deposited the entire balance sale
consideration, even before the defendant filed his written statement, the
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admission of P.W.1 that he had a sum of Rs.2,50,000/- in his bank account
pales into insignificance.
29.Coming to the decisions that have been relied on by the learned
counsel on either side, in Abdul Hags's case (stated supra), the Division Bench
of the High Court of Delhi held that the word ''means'' has no relation to source
and that it is wider in its scope than the word ''income''. I do not see this
decision applying to the facts of the case for the simple reason that the case
before the Delhi High Court was pertaining to the earning capacity of the tenant
in proceedings under Section 19 of the Slum Areas (Improvement and
Clearance) Act, 1956. It is in this context, the Division Bench of the Delhi High
Court discussed the word ''means'' and in fact, referring to Oxford English
Dictionary, the Division Bench of the Delhi High Court found that 'means'
would indicate resources at (one's) disposal for effecting some object, chiefly
(of a person's) pecuniary resources viewed with regard to the decree of
adequacy to the requirement or habits of expenditure”. In fact, the Division
Bench has also referred to the observation in Howard Vs. Howard (1945) P.I
(C.A.) Lord Greene, where it was observed that 'means' is meant what the
person concerned is in fact getting or can fairly assume to likely to get. In fact,
applying the said observation and also definition of means, it is clear that
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means would only be equated with resources at the disposal of a person,
including what he is getting or can fairly be assumed likely to get, irrespective
of the source. Therefore, this judgment, in fact, would only, in my considered
opinion, help the plaintiff and not the defendant.
30.The Division Bench of this Court in K.P.Mohamad Ibrahim's case,
(stated supra) while deciding an appeal arising out of the order of arrest in
execution proceedings and testing whether the judgment debtor had ''means'',
held that means would only mean realizable assets and it not be equated to cash
available with the judgment debtor. This decision also, in my opinion, does not
come to the aid of the appellant.
31.In Gomathinayakam Pillai's case, (stated supra) the Hon'ble Supreme
Court held that in a suit for specific performance, the plaintiff has to plead and
prove that he was ready and willing to perform his part of the contract
continuously between the date of the contract and the date of hearing of the
suit. There is no quarrel with regard to the above proposition and as I have
already discussed and found the plaintiff has not only pleaded but also
established that he was ready and willing to perform his part of the contract.
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32.In Uma Bai's case, (stated supra) the Hon'ble Supreme Court found
that the plaintiff had deposited the balance sale consideration only in the Court
of appeal and that the High Court had committed an error in taking that into
consideration to hold that the plaintiff was ready and willing to perform his part
of the contract. The facts of the present case are entirely different and
admittedly even before the written statement was filed, the entire balance sale
consideration has been deposited. Hence, this decision would also not help the
appellant.
33.In Sukhwinder Singh's case, (stated supra) the Hon'ble Supreme Court
held that even if the balance sale consideration was deposited or paid prior to or
at the time of filing of the suit, readiness and willingness and possession of sale
consideration as on date on which the parties contemplated registration should
have been established by the plaintiff. The Hon'ble Supreme Court further held
that even in the absence of any defence put forth, the plaintiff was required to
prove readiness and willingness. However, it was a case where the Supreme
Court noticed the fact that though the plaintiff and the defendant had agreed on
15.06.2004 to conclude the sale deed and according to the plaintiff, he had gone
to the Sub-Registrar's Office on the said date. In such circumstances, the
plaintiff's evidence was lacking as regards his possessing sufficient means to
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pay the balance sale consideration on the said date. This coupled with the fact
that the balance sale consideration was deposited only after the suit was
decreed at the first instance on 14.06.2007 was taken note of by the Hon'ble
Supreme Court and therefore, the background on which the said decision was
rendered being entirely in a different context and fact situation, the ratio laid
down in the said case cannot be applied to the facts of the present case.
34.In Madukar Nivrutti's case, (stated supra) the Hon'ble Supreme Court
held that even though there was a suggestion remotely available in the
document in question that it was a loan or borrowing transaction between the
parties, but when the recitals and stipulations in the agreement had only
affirmed the agreement of sale and receipt of part payment against sale
consideration, the transaction could have only been a sale transaction and not a
security for a loan availed of by the defendant.
34.In Lakshmi Ammal's case, (stated supra) this Court held that when
substantial amounts paid towards sale consideration have been established there
is nothing more to be proved by the agreement holder to establish readiness and
willingness to perform his part of the contract and natural consequence would
be that the plaintiff will be entitled to the relief of specific performance.
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35.In P.Ramasubbamma's case, (stated supra) the Hon'ble Supreme
Court held that when the execution of the agreement of sale was admitted and
payment of substantial advance sale consideration was also admitted, nothing
further was required to be proved by the plaintiff/vendee.
36.On applying the relevant principles enunciated by the Hon'ble
Supreme Court as well as this Court, the facts of the present case as well, I do
not see how the appellant can succeed in his plea that the transaction was only a
loan transaction and not an intended sale agreement. At the risk of repetition,
there is absolutely not a shred of evidence adduced by the defendant to
establish even a prima facie that the transaction was only a loan transaction and
the defendant never intended to sell the property.
37.Even though the plea of the value of the property being abysmally low
compared to the then prevailing market rates has been raised, there is absolutely
no evidence even on this ground. Even as regards the receipt of the belated
posting of the lawyer's notice in Ex.A2, the defendant has not even pleaded that
the notice was received by him after the date on which the plaintiff called upon
him to be present before the SRO for executing the sale deed. These coupled
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with the fact that along with the suit, the plaintiff has attempted to pay the
entire sale consideration and also subsequently, pursuant to the orders of the
trial Court, he has also deposited the entire balance sale consideration would
only go to show that the plaintiff has discharged all his obligations and nothing
remained on the side of the plaintiff to be performed.
38.The Trial Court has considered all the relevant material evidence in
this regard and rightly come to the conclusion that the plaintiff is entitled to a
decree for specific performance, having not only pleaded, but also established
'readiness and willingness'. In the light of the above, I do not find any necessity
or grounds arising to interfere with the well considered findings of the trial
Court. Accordingly, the points 1 and 2 are answered in favour of the respondent
and against the appellant.
39.In fine, the Appeal Suit is dismissed with costs. Connected Civil
Miscellaneous Petition is closed.
10.10.2025
Neutral Citation Case : Yes / No
Speaking / Non-speaking order
Index : Yes/No
ata
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P.B.BALAJI.J,
ata
To
The Additional District Judge, Kallakurichi.
Pre-delivery judgment made in
10.10.2025
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