SEKAR REPORTER

Court News from Madras High Court

In the result, the judgment and decree passed in O.S.No.111 of 2007, dated 06.08.2012, on the file of the II-Additional District Judge, Tiruchirappalli, is hereby set aside and this appeal suit is allowed accordingly. Considering the facts and circumstances of the case, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.                                                                                 [J.N.B, J.]  &   [N.A.V., J.]    28.10.2022. BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT      RESERVED ON :  20.10.2022    PRONOUNCED ON :   28.10.2022  CORAM : THE HONOURABLE MRS.JUSTICE J. NISHA BANU and THE HONOURABLE MR.JUSTICE N. ANAND VENKATESH A.S(MD)No.107 of 2012 and M.P(MD)No.1 of 2012     Surendran                                          .. Appellant / Defendant No.2                         For Appellant                                 : Mr.AR.L.Sundaresan                                                                 Senior Counsel                                                                 for Mr.K.Govindarajan                 For Respondents                                                : Mr.V.Ragavachari for R1                                                                 : Mr.S.Parthasarathy                                                          Senior Counsel                                                                                 for Mr.S.Pon Senthil Kumaran                                                                  for R2&R3                                                                 JUDGMENT J.NISHA BANU, J. and N.ANAND VENKATESH, J.                

by ·

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

 

   RESERVED ON :  20.10.2022

   PRONOUNCED ON :   28.10.2022 

 

CORAM :

 

THE HONOURABLE MRS.JUSTICE J. NISHA BANU

and

THE HONOURABLE MR.JUSTICE N. ANAND VENKATESH

 

A.S(MD)No.107 of 2012

and

M.P(MD)No.1 of 2012

 

 

Surendran                                          .. Appellant / Defendant No.2

 

-Vs-

 

1.G.Selladurai                                             .. 1st Respondent/Plaintiff

2.A.Sirajuddin

3.Rajkumari                                              .. Respondents 2 & 3/

Defendants 1 & 3

 

PRAYER: Appeal is filed under Section 96 of the Civil Procedure Code, against the Judgment and Decree dated 06.08.2012 made in O.S.No.111 of 2007 on the file of the II-Additional District Judge, Trichirappalli and dismiss the suit in favour of the appellant/Defendant No.2 with full costs.

 

For Appellant                                 : Mr.AR.L.Sundaresan

Senior Counsel

for Mr.K.Govindarajan

 

For Respondents                                                : Mr.V.Ragavachari for R1

: Mr.S.Parthasarathy

Senior Counsel

for Mr.S.Pon Senthil Kumaran

for R2&R3

 

JUDGMENT

J.NISHA BANU, J.

and

N.ANAND VENKATESH, J.

 

 

This appeal suit has been filed by the 2nd defendant/appellant against the judgment and decree passed by the II Additional District Judge, Tiruchirappalli in O.S.No.111 of 2007, dated 06.08.2012, decreeing the relief of specific performance sought for by the plaintiff/1st respondent.

 

  1. 2. For the sake of convenience, the parties will be addressed with the same rank assigned in the suit.

 

  1. The case of the plaintiff is that the 1stdefendant is the owner of the subject property and he appointed the 3rd defendant as his Power Of Attorney agent through registered Power Of Attorney deeds dated 22.08.2002 (marked as Ex.A1) and 09.06.2004 (marked as Ex.A2), empowering the 3rd defendant to sell the property. The further case of the plaintiff is that the 3rd defendant in her capacity as the agent, entered into an agreement of sale dated 01.07.2006 (marked as Ex.A3) with the plaintiff. As per the sale agreement, the total sale consideration was fixed as Rs.35,01,000/- and an advance of Rs.5,00,000/- was received by the agent on the date of agreement by way of cash. The agreement fixed a period of two years for the payment of the balance sale consideration of Rs.30,01,000/- and on receipt of the same, to execute the sale deed in favour of the plaintiff.

 

  1. 4. The plaintiff has alleged that a suit came to be filed by the 2nddefendant against the 3rd defendant in her individual capacity in O.S.No.79 of 2006 before the District Court, Tiruchirappalli, seeking for the relief of specific performance based on an agreement dated 26.04.2004. Since there was a dispute regarding this agreement, a new agreement was entered into on 26.07.2004 and this agreement was sought to be enforced in the said suit. It is stated that the plaintiff came to know about the filing of the suit and hence, he filed an application to implead himself as a party on 13.04.2007. The affidavit and impleading petition filed in O.S.No.79 of 2006 was marked as Ex.B7. Notice was ordered and the case was adjourned and it was posted on 17.06.2007. It is further alleged that the 3rd defendant filed an application in I.A.No.355 of 2007 on 04.06.2007 for advancing the hearing date from 17.06.2007. This application was marked as Ex.B4. On 14.06.2007, an Order was passed advancing the hearing from 17.06.2007 to 15.06.2007 and according to the plaintiff, this Order was passed behind his back. When the matter was posted on 15.06.2007, a joint memo was filed by the 2nd and 3rd defendants as if they have reached a settlement and a sale deed dated 27.4.2007 (marked as Exs.B2 and B3) was executed by the 3rd defendant in favour of the 2nd defendant and a prayer was made to dismiss the suit as settled out of Court by recording the memo. A full satisfaction memo was also filed by the 3rd defendant along with an affidavit and a petition, as if the 2nd defendant had deposited a sum of Rs.23,54,107/- to the account of the suit in O.S.No.79 of 2006 and to permit the 3rd defendant to withdraw the same. The I Additional District Judge, Tiruchirappalli passed an Order in the application on 06.07.2007 and directed a cheque for a sum of Rs.23,54,107/- to be issued in favour of the counsel who was appearing for the 3rd  The application filed by the plaintiff to implead himself was also dismissed on 15.06.2007 and the suit in O.S.No.79 of 2006 was closed. The applications, memo and the Order passed by the I Additional District Judge in O.S.No.79 of 2006 have been marked as Exhibits B4 to B7. The plaintiff has alleged that the 2nd defendant and 3rd defendant entered into a conspiracy to defeat the right of the plaintiff and the applications were filed in a hasty manner and the sale deed was executed in favour of the 2nd defendant in a hasty manner and none of these are binding on the plaintiff. It is further stated that the sale consideration as mentioned in the sale deed executed in favour of the 2nd defendant was only Rs.3,60,000/- and whereas the alleged agreement of sale entered into by the 3rd defendant in favour of the 2nd defendant mentioned the total consideration as Rs.27,47,217/-. According to the plaintiff, this fact will clearly establish that the 2nd defendant is not a bona fide purchaser for value.

 

  1. 5. The plaintiff has also made a further averment to the effect that he was always ready and willing to perform his part of the contract and he has sufficient money to pay the sale consideration. Before the suit was instituted, a notice dated 29.06.2007 (marked as Ex.A5) was issued to all the defendants and they were called upon to execute a sale deed in favour of the plaintiff after receiving the balance sale consideration. This notice was received by the 1stdefendant and the notice was evaded by the 2nd and 3rd defendants and they were marked as Exhibits A6 to A8. Ultimately, the suit came to be filed seeking for the relief of specific performance or in the alternative, for the return of advance amount with interest.

 

  1. The 3rd defendant filed a written statement and it was adopted by the 1stdefendant. The 3rd defendant took a stand that the so called agreement of sale dated 01.07.2006 is a forged and fabricated document and hence, the very claim made by the plaintiff was denied. The 3rd defendant had also explained the circumstances under which the agreement of sale was entered into with the 2nd defendant and the earlier suit filed in O.S.No.79 of 2006, the sale deed executed in favour of the 2nd defendant and the settlement recorded between the parties in O.S.No.79 of 2006. Accordingly, the 1st and 3rd defendants sought for the dismissal of the suit.

 

  1. The 2nddefendant filed a separate written statement and took a stand that the agreement dated 26.07.2004 was a genuine agreement and that he is a bona fide purchaser for value and the total consideration that was paid to the 3rd defendant was  Rs.27,47,217/-. The 2nd defendant made a further averment that the 3rd defendant never entered into any sale agreement with the plaintiff and it is a concocted document. The sale consideration shown in the sale deed dated 27.04.2007 was only for the purposes of stamp duty and registration charges and that is not the actual sale consideration paid by the 2nd defendant to the 3rd defendant. The 2nd defendant also issued a paper publication prior to the filing of the suit in O.S.No.79 of 2006 and the plaintiff chose not to give any objections. Hence, questioning the very claim made by the plaintiff, the 2nd defendant sought for the dismissal of the suit.

 

  1. The Court below based on the pleadings, framed the following issues:
  2. 01/07/2006k; njjpapy; thjpapd; bgaUf;F Vw;gl;ljhf brhy;yg;gLk; fpua xg;ge;jk; cz;ikahdjh>

2/ jhth brhj;jpd; RthjPdj;ij bfhLf;f gpujpthjp flikg;gl;ltuh>

3/ Kjy; gpujpthjp U:/50.00.000-? I 18# tPjk; gpd;tl;o nrh;j;J jpUg;gpf; bfhLf;f flikg;gl;ltuh>

4/ jhth bjhifia bgw jhth brhj;ijg; bghWj;J rhh;$; ghj;jpak; bgw thjpf;F chpika[s;sjh>

5/ thjpf;F fpilf;fj;jf;f ghpfhuk; vd;d>

 

  1. The Court below also framed the following additional issues:

1/ 1.3 gpujpthjpfspd; ifbahg;gj;ij cgnahfpj;J jhth fpua xg;ge;jk; nkhroahf jahhpf;fg;gl;Ls;sjh>

2/ jhth fpua xg;ge;jk; Fwpj;J bjhpahky; 2tJ gpujpthjp jhth brhj;ij cz;ikahf fpuak; bgw;w fpuajhuuh>

3/ thjp K/c/t/vz;/79-2006 tHf;fpy; jug;gpduhf nrh;f;f kD jhf;fy; bra;Js;sjhy;. 2tJ gpujpthjpf;F jhth fpua xg;ge;jk; Fwpj;J Vw;fdnt bjhpe;Js;sjh>

4/ thjp jd;id jug;gpduhf nrh;f;ff; nfhhp 7-6-2007k; njjpapy; kD jhf;fy; bra;Js;s epiyapy; Kjy; gpujpthjp K/c/t/vz;/79-2006 tHf;fpy; ntz;Lbkd;nw 17-6-2007k; njjpapypUe;J 15-6-2007k; njjpf;F khw;w nkhroahf kD bra;Js;shuh>

 

  1. The plaintiff examined himself as P.W-1 and examined the witnesses to the sale agreement dated 01.07.2006 as P.W-2 and P.W-3. Ex.A1 to Ex.A22 were marked on the side of the plaintiff. The 3rddefendant examined herself as D.W-1 and the 2nd defendant examined himself as D.W-4 and two other witnesses were also examined on the side of the defendant as D.W-2 and D.W-3. Exhibits B1 to B7 were marked on the side of the defendants.

 

  1. The Court below on considering the facts and circumstances of the case and after appreciating the oral and documentary evidence, answered the issues in favour of the plaintiff and ultimately, decreed the suit granting the relief of specific performance in favour of the plaintiff. Aggrieved by the same, this appeal suit has been filed by the 2nddefendant.

 

 

  1. Heard Mr.AR.L.Sundaresan, learned Senior Counsel for Mr.K.Govindarajan, learned counsel for the appellant, Mr.V.Ragavachari, learned counsel for R1 and Mr.S.Parthasarathy, learned Senior Counsel for Mr.S.Pon Senthil Kumaran, learned counsel for R2 & R3.

 

  1. The learned Senior Counsel appearing on behalf of the appellant and respondents 2 to 3 made the following submissions:
  • The sale agreement dated 01.07.2006 is a forged and fabricated document.
  • The plaintiff had concealed the existence of a subsequent agreement dated 06.07.2006 (marked as Ex.B1) and by virtue of this agreement, the earlier agreement marked as Ex.A3 ceases to exist.
  • The entire pleadings from paragraphs 6 to 12 does not anywhere explain about the readiness and willingness on the part of the plaintiff to perform his part of the contract, except a bald statement made at paragraph 11 of the plaint.
  • The 2nddefendant is a bona fide purchaser for value and he was not even aware about the existence of the so called agreement between the plaintiff and the 3rd
  • The total sale consideration that was paid by the 2nddefendant to the 3rd defendant was a sum of  23,54,107/- as can be seen from Ex.B6 and the sum of Rs.3,60,000/- mentioned in the sale deed dated 27.04.2007 was only for the purposes of stamp duty and registration.
  • A16 that was marked on the side of the plaintiff and relied upon by the Court below as if the plaintiff has paid an advance amount of Rs.5,00,000/-, is totally inadmissible, since the Income Tax Returns were filed only on 15.11.2007, subsequent to the filing of the suit on 31.08.2007.
  • The answers given by the plaintiff during the cross examination shows that he admits the signature found in Ex.B1 and he also denies any agreement entered into before Ex.B1 agreement. If that is so, Ex.A3 agreement becomes questionable and consequently, it cannot be enforced.
  • W-2 and P.W-3, who were examined as witnesses to the agreement, clearly shows that P.W-3 was not even aware about the presence of P.W-2 while signing as a witness and even though they were witnesses to Ex.B1(agreement of sale), they were not even aware about their signatures found therein.
  • The Court below did not even frame an issue on the readiness and willingness on the part of the plaintiff to perform the contract and there is no finding to that effect.
  • The original A3 agreement was not even produced before the Court and only the photocopy was marked on the ground that the original agreement that was filed while filing the impleading petition in O.S.No.79 of 2006 went missing, but whereas the endorsement found in Ex.B7 shows that the original document filed along with the petition was returned back to the plaintiff.
  • The Court below went wrong in comparing Ex.A3 and Ex.B1, when the original agreement marked as Ex.A3 was not even available.
  • The plaintiff who is seeking for an equitable remedy did not approach the Court with clean hands and the Court below went wrong in exercising its discretionary remedy in favour of the plaintiff.

 

  1. Per contra, the learned counsel appearing on behalf of the 2ndrespondent/plaintiff made the following submissions:
  • B1 is a concocted document and this document has been completely denied by the plaintiff and this document cannot be put against the plaintiff, who was only relying upon Ex.A3.
  • The earlier suit that was filed in O.S.No.79 of 2006 and the decree that was passed in the said suit is non-est in the eye of law, since the owner of the property was not made as a party and the agent contested the suit in her individual capacity. That apart, the suit itself is a concocted suit filed only to defeat the right of the plaintiff under the agreement of sale marked as Ex.A3.
  • When the plaintiff was attempting to implead himself as a party to the earlier suit, the 2ndand 3rd defendants took hasty steps to close the suit behind the back of the plaintiff by advancing the hearing and the plaintiff was not even put on notice. The Interlocutory Application was closed even without numbering and both the 2nd and 3rd defendants were very much aware that there was an agreement of sale dated 01.07.2006 (Ex.A3) and the same was filed in support of the impleading petition marked as Ex.B7.
  • The sale deed is said to have been executed in favour of the 2nddefendant on 27.04.2007 for a consideration of Rs.3,60,000/-  and whereas, all the subsequent applications and memo were filed only on 04.06.2007 and that by itself shows that the earlier suit in O.S.No.79 of 2006 and the hastiness shown in closing the suit behind the back of the plaintiff, demonstrates abuse of process of Court to defeat the rights of the plaintiff.
  • When the plaintiff had offered to purchase the property for a sum of Rs.35,01,000/-, it is very unnatural to execute a sale deed in favour of the 2nddefendant for a sum of Rs.3,60,000/- and ultimately compromise the dispute by showing a sum of Rs.23,54,107/-. All this was done by the agent in her individual capacity, even without adding the owner as a party to the suit.
  • The plaintiff, on coming to know about the concocted suit, took immediate steps to file the impleading petition and after the suit was closed behind the back of the plaintiff, issued legal notice and instituted the suit and hence, showed readiness and willingness in performing his part of the contract.
  • Even though 3rddefendant had denied the signature in Ex.A3, no steps were taken to send the document for expert opinion inspite of giving such a commitment before the Court.
  • A3 has been proved by the plaintiff by examining P.W-2 and P.W-3 and the signature in Ex.B1 has been denied.
  • When the defendants are denying the very agreement of sale, the issue of readiness and willingness takes a back seat and it does not lie in their mouth to raise the said ground.
  • The plaintiff has independently proved his readiness and willingness and even if there is no specific issue in that regard, the substance of the judgment passed by the Court below clearly shows that the Court below was satisfied on the readiness and willingness on the side of the plaintiff.

 

  1. This Court has carefully considered the submissions made on the either side and the materials available on record and also the judgment passed by the Court below.

 

  1. 16. The following points for consideration arise in this appeal:
  • Whether the plaintiff has proved the genuineness of the agreement dated 01.07.2006 marked as Ex.A3 and whether the agreement dated 06.07.2006, marked as Ex.B1 has set at nought the earlier agreement dated 01.07.2006?
  • Whether the earlier suit filed by the 2nddefendant against the 3rd defendant in O.S.No.79 of 2006 is a concocted suit filed to defeat the rights of the plaintiff and the compromise arrived at between the 2nd and 3rd defendants and recorded by the Court, will bind the plaintiff?
  • Whether the sale deed dated 27.04.2007 executed in favour of the 2nddefendant will bind the plaintiff and whether the 2nd defendant is a bona fide purchaser for value?
  • Whether the plaintiff had established readiness and willingness to perform his part of the contract under Ex.A3?
  • Whether the Court below was right in comparing the signatures in Ex.A3 and Ex.B1 and giving its findings, without referring the documents for expert opinion?
  • Whether the conduct of the plaintiff in not producing the original sale agreement marked as Ex.A3 when the genuineness of the said document was questioned, will disentitle him to get the equitable relief of specific performance?
  • Whether the conduct of the 2ndand 3rd defendants assumes significance and should be taken as an additional ground for granting the relief of specific performance in favour of the plaintiff?
  • Whether the Court below had rightly exercised its discretion under Section 20 of the Specific Relief Act, 1963 while decreeing the suit in favour of the plaintiff? and
  • To what other relief the parties are entitled to?
  1. The plaintiff came before the Court with a very specific case that he entered into an agreement of sale dated 01.07.2006 with the 3rddefendant, who acted as the agent of the 1st defendant. This agreement of sale has been marked as Ex.A3. The defendants have taken a very specific stand that the so called agreement of sale dated 01.07.2006 is a concocted and fabricated document. The 3rd defendant who filed the written statement has specifically pleaded that steps will be taken to send the agreement for expert opinion. Even at the time of cross examination, the 3rd defendant has stated that the signature found in the agreement is not her signature and that steps will be taken to get the expert opinion.

 

  1. The plaintiff has not admittedly filed the original agreement of sale dated 01.07.2006. In the original plaint filed on 31.08.2007, in the list of documents, the remarks column shows that original was filed. However, while filing the proof affidavit, the plaintiff has stated that the original agreement of sale was filed at the time of filing the impleading petition in the earlier suit in O.S.No.79 of 2006 and after the suit was closed as settled between the parties, the document was returned back and he was not able to trace this document thereafter. Hence, the photocopy of the document was filed along with the proof affidavit. It is quite surprising that the Court below has straight away admitted this document without passing an order under Section 65 of the Indian Evidence Act and satisfying itself that the document was actually lost by the plaintiff. This procedure ought to have been followed by the Court below since the defendants were taking a stand that it was a concocted document and that the signature found therein is not the signature of the 3rddefendant.

 

  1. 19. The Apex Court in Dhanpat Vs. Sheo Ram (Deceased) through L.Rs. and Ors. reported in 2021-1-LW 228, has held that there is no requirement to file an application under Section 65 (c) of the Evidence Act before secondary evidence is let in, if the party has already laid a foundation for leading secondary evidence either in the plaint or in the evidence. In the present case, the plaintiff has laid a foundation while filing the proof affidavit. Having done so, the Court below ought to have passed an order satisfying itself that the document was actually lost and without such an Order being passed, the photocopy of the agreement of sale dated 01.07.2006 cannot be acted upon. The Court below had the duty to see whether the stand taken by the plaintiff is sustainable, since the very document has been challenged. Insofar as photocopies are concerned, possibility of an interpolation cannot be ruled out and it has an inferior probative value.

 

  1. 20. In view of the above, there was no occasion for the defendants to send for expert opinion due to the non-availability of the original agreement of sale dated 01.07.2006.

 

  1. 21. The defendants marked Ex.B1 during the cross examination of P.W-1. Ex.B1 is an agreement of sale dated 06.07.2006, which was entered into between the plaintiff and the 3rddefendant in her capacity as the agent of the 1st  In this agreement, the total sale consideration was fixed as Rs.35,01,000/- and a sum of Rs.5,000/- was received as advance. It is further stated that there is a pending case before the Court pertaining to the property and after the completion of the case, within a period of 3 months thereafter, the balance sale consideration must be paid and the sale deed must be executed. This agreement pertained to 13 plots totally measuring an extent of 31,000 sq.ft, whereas the suit property totally measured an extent of 1.04 acres.

 

  1. 22. When the plaintiff was cross examined regarding this document, he has stated that the signature found in Ex.B1 is his signature and P.W-2 and P.W-3 have signed in the document as witnesses. He has further stated that even after Ex.B1 document, yet another document was entered into with the 3rd The plaintiff makes a very specific statement that prior to Ex.B1, there is no earlier document between him and the 3rd defendant. In view of this specific statement made by the plaintiff, the genuineness of the agreement of sale marked as Ex.A3 becomes even more doubtful.

 

  1. It is quite surprising that the Court below straight away undertook the exercise of comparing Ex.A3 and Ex.B1 documents and it has come to a conclusion that the signatures found therein are matching. In the first place, the Court below ought not to have compared the signature when only the photocopy of Ex.A3 was available. It is true that Section 73 of the Indian Evidence Act enables the Court to compare signatures and to render a finding. However, where the Court chooses to compare the signatures by itself, then the finding cannot be based on subjective satisfaction and there should be specific reasons set out for arriving at a conclusion. The law on this issue has been settled in the judgment in B.Radhamani vs. S. Charubala reported in 2018 (4) CTC 164 and SubbaiyaGounder vs. Velathal and Ors. reported in 2021-1-LW 421. Hence, the safest way to decide on disputed signatures is to refer the disputed signature and the admitted signature ante litem motam to an expert and get his opinion. The Apex Court in Thiruvengadam Pillai v. Navaneethammal and Another reported in (2008) 4 SCC 530 had made this position very clear. On carefully going through paragraph 7 of the judgment, it is seen that the Court below has not given any reason as to how it came to a conclusion that the signatures found in Ex.A3 and Ex.B1 are the same.

 

  1. If the agreement of sale marked as Ex.B1 has been admitted by P.W-1, obviously the earlier agreement dated 01.07.2006 marked as Ex.A3 ceases to exist. The points for consideration (a) and (e) are answered accordingly.

 

  1. The earlier suit filed by the 2nddefendant against the 3rd defendant in O.S.No.79 of 2006 and the various developments that took place in that suit, may not be sustainable in the eye of law. There is no dispute with regard to the fact that the 3rd defendant is the Power Of Attorney agent of the 1st defendant. However, the 3rd defendant was added in her individual capacity as a defendant. The compromise was arrived at between the 2nd and 3rd defendants and it is the 3rd defendant who had received the amount in her individual capacity which is evident from Exhibits B4 to B7. The entire proceedings have been conducted in a very hasty manner and obviously, the 2nd and 3rd defendants wanted to avoid the plaintiff who had filed an impleading petition and they managed to prepone the hearing from 17.06.2007 to 15.06.2007 and complete the proceedings. In the said process, the impleading petition was also dismissed. This was done even without notice to the plaintiff.

 

 

  1. 26. Section 230 of the Indian Contract Act specifically provides that an agent is not liable for the acts done by him on behalf of his disclosed principal subject to a contract to the contrary. In a case where the 3rddefendant who was acting in her capacity as the agent of the 1st defendant, she could not have prosecuted the suit without the 1st defendant being made as a party or she being shown as the agent of the 1st  An agent acts for and on behalf of the principal and Section 230 of the Indian Contract Act r/w Section 2 (2) of the Power Of Attorney Act, debars the agent from entering into an agreement or compromise with a third party without the authorisation of the principal. In view of the same, the earlier suit filed in O.S.No.79 of 2006 and the developments that took place during the pendency of this suit are not in accordance with law and consequently, stricto sensu may not bind the plaintiff. The point for consideration (b) is answered accordingly.

 

 

  1. The 2nddefendant is said to have entered into the agreement of sale with the 3rd defendant on 26.07.2004. As per the sale agreement, the 2nd defendant had agreed to pay a total sale consideration of Rs.27,47,217/-. The suit came to be filed by the 2nd defendant against the 3rd defendant in her individual capacity seeking for the relief of specific performance in O.S.No.79 of 2006 to enforce the agreement dated 26.07.2004. During the pendency of this suit, a sale deed came to be executed in favour of the 2nd defendant on 27.04.2007 and this document was marked as Ex.A22. On carefully going through this document, it is seen that the total sale consideration has been mentioned as Rs.3,60,000/-. This amount is far less than what was fixed through the agreement of sale dated 26.07.2004. To counter this under valuation, at the time when the earlier suit in O.S.No.79 of 2006 was compromised, the 3rd defendant is permitted to withdraw a sum of Rs.23,56,107/-. At the risk of repetition, the 3rd defendant was permitted to withdraw in her individual capacity and not as the agent of the 1st defendant.
  2. The 2ndand 3rd defendants cannot feign ignorance of the claim made by the plaintiff over the suit property, since the plaintiff had filed the impleading petition even during the pendency of the suit in O.S.No.79 of 2006 based on the agreement of sale dated 01.07.2006.

 

  1. In view of the above, the 2nddefendant cannot be held to be a bona fide purchaser for value and the conduct of the 2nd and 3rd defendants is far from satisfactory. The point for consideration (c) and (g) are answered accordingly.

 

  1. The Court below did not even frame an issue with regard to the readiness and willingness of the plaintiff to perform his part of the contract. The Court below has spent all its time in commenting upon the defendants and was swayed by their conduct and hence, the Court below did not even render a finding on readiness and willingness on the part of the plaintiff. The issue regarding readiness and willingness and the finding on the said issue is more a matter of content and it is not necessary to use the exact terminology of readiness and willingness in a judgment. In other words, it can be gathered from the pleadings, evidence and discussion made by the Court. In this case, the Court below has not satisfied even this requirement and has proceeded to decree the suit in favour of the plaintiff. The Court below has taken note of the Income Tax Return marked on the side of the plaintiff as Ex.A16. This document has come into existence after the filing of the suit and hence, the Court cannot act upon the same. Apart from this document, except for the ipsi dixit of the plaintiff, there is no material to conclude that the plaintiff was ready and willing to perform his part of the contract. The point for consideration (d) is answered accordingly.

 

  1. 31. The learned counsel for the plaintiff had submitted that where the defendants have denied the very agreement of sale, they cannot raise the question of readiness and willingness. Even taking this proposition to be correct, the Court has to be satisfied that the plaintiff is ready and willing to perform his part of the contract, irrespective of the stand taken by the defendant and in any event, the plaintiff is duty bound to prove that he was always ready and willing to perform his part of the contract. In the present case, since the very agreement of sale dated 01.07.2006 has been held to be questionable, the finding on readiness and willingness on the part of the plaintiff becomes more academic.

 

  1. 32. The conduct of the plaintiff in not producing the original sale agreement marked as Ex.A3 when its genuineness has been questioned and the subsequent agreement dated 06.07.2006 being admitted by the plaintiff in his evidence and not being revealed anywhere in the pleadings, clearly disentitles the plaintiff to get the equitable relief of specific performance. Inspite of the adverse findings rendered by this Court against the 2ndand 3rd defendants  supra, that by itself will not come to the aid of the plaintiff, for granting the relief in favour of the plaintiff. The point for consideration (f) is answered accordingly.

 

  1. 33. In the considered view of this Court, the Court below ought not to have exercised its discretion under Section 20 of the Specific Relief Act and granted the decree of specific performance in favour of the plaintiff. The relief of specific performance being an equitable relief, the Court is bound to satisfy itself about the existence of a sale agreement, conduct of the plaintiff and the plaintiff proving that he was always ready and willing to perform his part of the contract and in the absence of the same, the discretion cannot be exercised in favour of the plaintiff. The amendment brought into the Specific Relief Act through Act 18 of 2018, has virtually made the enforcement of the contract as a rule. However, it has been held by the Apex Court in a recent judgment in Katta Sujatha Reddy and Ors. Vs. Siddamsetty Infra Projects Pvt. Ltd. and Ors. reported in (2022) 6 MLJ 630 that this amendment has only a prospective effect and it cannot be applied to transactions that took place prior to the coming into force of the amendment. In view of the same, the discretion is available to the Court under Section 20 of the Specific Relief Act and the plaintiff is not entitled for that discretion to be exercised in his favour on the facts of the present case. The point for consideration (h) is answered accordingly.

 

  1. 34. This Court has already called into question the genuineness of the agreement of sale dated 01.07.2006 and the same not having been proved. In view of the same, this Court cannot even grant the alternative relief of refund of the advance amount of Rs.5,00,000/- said to have been paid by the plaintiff to the 3rddefendant since it is based on Ex.A3. Accordingly, the plaintiff is also not entitled for the alternative relief of refund of the advance amount. The point for consideration (i) is answered accordingly.

 

 

  1. 35. The conspectus of the above discussion leads to the conclusion that the judgment and decree passed by the Court below requires the interference of this Court.

 

  1. In the result, the judgment and decree passed in O.S.No.111 of 2007, dated 06.08.2012, on the file of the II-Additional District Judge, Tiruchirappalli, is hereby set aside and this appeal suit is allowed accordingly. Considering the facts and circumstances of the case, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.

                          

                                           [J.N.B, J.]  &   [N.A.V., J.]

          28.10.2022

Index           : Yes/No

Internet        : Yes/No

PJL

 

To

The II-Additional District Judge,

Trichirappalli.

J.NISHA BANU, J

AND

N.ANAND VENKATESH, J

 

PJL

 

 

 

 

 

 

 

 

Judgment made in

A.S(MD)No.107 of 2012

 

 

 

 

 

28.10.2022

 

 

 

 

You may also like...