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2011 Supreme(Mad) 4437
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K. MOHAN RAM & THE HONOURABLE MR. JUSTICE G.M. AKBAR ALI
R. Kumar
Versus
R. Sushilkumar
A.S.No.1035 of 2007 & M.P.No.1 of 2007
Decided On :Decided on: 11-11-2011
For the Appellant:R. Subramanian for A. Srinivasan, Advocates. For the Respondent:S.T.V. Sekar, Advocate.
Headnote:A. SPECIFIC RELIEF ACT, 1963 - SECTION 20 - Readiness and willingness - When payments were denied, failure of respondent to produce books of accounts to prove payments is fatal to respondents case - Initial burden of plaintiff to prove true construction of contract and execution thereof is not discharged - Appellant has succeeded in establishing that respondent was doing auto finance business and document was executed only as a security to discharge loan and not intended to be performed - Discretionary relief of performance granted by trial court, held incorrect. (Para 43).
B. SPECIFIC RELIEF ACT, 1963 - Readiness and willingness - The construction of agreement conduct of party and admission of respondent and his witness asto doing business of auto finance by respondent and his father, held, showed that Ex. A1, alleged sale agreement was not true and genuine document and that there is no intention of parties to perform contract. (Para 17).
Specific relief is a discretionary relief - In a suit for specific performance, plaintiff should not only place and prove terms of agreement, but also plead and prove his readiness and willingness to perform his obligation, under the contract in terms of the contract. (Para 38) - 1987 (Supp) SCC 340 and AIR 2001 SCC 2783, relied on.
Result : Appeal allowed.
G.M. AKBAR ALI,J.,
1. Appeal filed under Sec.96 C.P.C against the judgment and decree made in O.S.No.24 of 2005 dated 13.11.2006 on the file of the learned Principal District and Sessions Judge, Thiruvannamalai.
2. The defendant is the appellant. The suit was filed for specific performance of the contract dated 7.1.2002. The brief facts leading to the filing of the appeal are as follows:
3. The appellant had purchased the property by a sale deed dated 13.11.1998 and started Blue Metal Crusher Factory Hall, Shivasakthi Blue Metal. According to the respondent/plaintiff, the appellant proposed to alienate the property and the respondent expressed his willingness to purchase. After negotiations, it was mutually agreed that for a total value of Rs.15 lakhs the appellant agreed to sell the property and received a sum of Rs.4,95,000/-as advance and executed the agreement of sale dated 7.1.2002. It is a registered agreement.
4. As per the terms of the agreement, the respondent/plaintiff shall pay the balance sale consideration of Rs.10,05,000/- on or before 6.1.2005 and the sale deed has to be executed. The respondent was always ready and willing to pay the balance. However, while typing the agreement of sale, the balance amount payable was shown mistakenly as Rs.10,50,000/- instead of Rs.10,05,000/-.
5. On 17.1.2002, the respondent paid a sum of Rs.5,00,000/-and on 8.1.2004, the respondent paid a further sum of Rs.5,25,000/-. Both these payments were duly endorsed on the sale agreement and the said payment was also duly attested by the witnesses. However, as stated above, there was a typographical error in the agreement which made the respondent to pay a sum of Rs.20,000/-in excess. Therefore, there is no balance of sale consideration payable.
6. The respondent has been calling upon the appellant to execute the sale deed and the appellant was evading. Therefore, a suit notice was issued on 30.12.2004 for which there was no reply. Finding out the typographical error, the respondent sent a re-joinder, for which also, there was no reply. Therefore, a suit was filed for specific performance.
7. The appellant resisted the suit by filing writtenstatment, inter-alia stating as follows:
According to the appellant, there was no agreement of sale and the appellant has not received any consideration as stated in the sale agreement. The respondent was an automobile financier having business at Thiruvannamalai. During the year 1993 to 1996, the appellant obtained auto finance for purchase of lorries for the use of his blue metal crusher factory. He had purchased lorries bearing Registration Nos.TN 27-Z-2399, TN 51 2138 and TNU 1134 from the loan obtained from the respondent.
8. There was a due payable to the respondent for a sum of Rs.4,95,000/-. The respondent came with his henchmen and insisted the appellant to pay the balance immediately. The appellant agreed to pay the balance within six months. The respondent forced and coerced the appellant to execute the sale agreement as security. The appellant received no money towards sale consideration. Therefore, the allegation that the respondent was ready and willing to perform the contract is not true and the respondent has not come to the court with clean hands. The receipt of other amounts are also denied.
9. Based on the above averments, the parties went for a trial before the District Court, Thiruvannamalai in OS.No 24 of 2005. The learned District judge, Thiruvannamalai framed triable issues and found that the sale agreement dated 7.1.2002 was true and genuine and the appellant had obtained the entire sale consideration and the respondent is entitled for the specific performance of the contract and thereby decreed the suit. Aggrieved by the decree and judgment, the defendant is before this Court.
10. Mr.R. Subramaniam, the learned counsel who appeared for Mr. A. Srinivasan, the learned counsel for the appellant would submit that the sale agreement was executed only as a securi
