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2012 Supreme(Mad) 774
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE G. RAJASURIA
S. Palanisamy
Versus
Malliga
A.S.No.764 of 2009 & M.P.No.1 of 2011 & M.P.No.1 of 2009
Decided On : 14-02-2012
For the Appellant:D. Selvam, Advocate.
For the Respondent:C. Deivasigamani, Advocate.
The burden of proof lies with the party making the assertion, readiness and willingness to perform a contract must be established, and non-examination of a party may not be fatal if the burden of proof is not discharged by the opposing party.
Headnote:
specific performance - agreement to sell - Indian Evidence Act - Sections 91 - burden of proof - readiness and willingness to perform - Specific Relief Act - Sections 16 and 20
Fact of the Case:
The plaintiff filed a suit for specific performance with regard to an immovable property. The defendant resisted the suit, claiming that the agreement to sell was not intended to be acted upon and that the plaintiff was not ready and willing to perform her part of the contract.
Finding of the Court:
The trial Court decreed the suit ordering specific performance. The appellate Court dismissed the appeal, upholding the trial Court's decision.
Issues: (1) Whether the agreement to sell was not intended to be acted upon, as alleged by the defendant and whether the trial Court properly appreciated and decided the case? (2) Whether the plaintiff was ready and willing to perform her part of the contract throughout? (3) Whether the non-examination of the plaintiff before the trial Court is fatal to her case? (4) Whether there is any perversity or illegality in the judgment of the trial Court?
Ratio Decidendi: The burden of proof was on the defendant to establish that the agreement to sell was not intended to be acted upon. The plaintiff's readiness and willingness to perform her part of the contract was established through the issuance of notices and the defendant's delaying tactics. The non-examination of the plaintiff did not affect the case as the burden of proof was on the defendant.
Final Decision: The appeal stands dismissed, and there shall be no order as to costs.
1. This appeal is focussed by the defendant as against the judgment and decree dated 26.11.2008 made in O.S.No.387 of 2006, which was one for specific performance, on the file of the I Additional District and Sessions Judge/Fast Track Court No.I, Coimbatore.
2. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.
3. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this appeal would run thus:
The respondent/plaintiff filed the suit for specific performance with regard to the immovable property described in the schedule of the plaint with the following prayers:
"(a) To direct the defendant to receive the balance sale consideration of Rs.50,000/- and to execute sale deed in favour of the plaintiff in respect of the Schedule property within a time fixed by the Court and on failure sale deed may be executed by this Hon'ble Court; alternatively
(b) To direct the defendant to pay Rs.5,05,875/-with future interest at the rate of 12% per annum on Rs.3,75,000/- from the date of suit till the realisation;
(b) To create a charge over decree in the Schedule property for payment of amount due under clause (b) above; and
(c) For costs. " (extracted as such)
4. The defendant resisted the suit by filing written statement and contending that the said agreement to sell was not intended to be acted upon, but emerged only by way of securing prompt repayment of the loan of Rupees two lakhs and fifty thousand borrowed by the defendant from the plaintiff, and that the plaintiff and the defendant are close relatives.
5. Whereupon, the trial Court framed the relevant issues.
6. During trial, on the side of the plaintiff, P.W.1 to P.W.3 were examined and Exs.A1 to A7 were marked. The defendant-Palanisamy examined himself as D.W.1.
7. Ultimately the trial Court decreed the suit ordering specific performance. Being aggrieved by and dissatisfied with the judgment and decree of the trial Court, the defendant preferred this appeal on various grounds.
8. The learned counsel for the appellant/defendant placing reliance on the grounds of appeal, would develop his arguments, which could tersely and briefly be set out thus:
(a) The trial Court failed to apply the principle of burden of proof properly in the facts and circumstances of the case and decided the original suit, warranting interference in the appeal.
(b) The plaintiff did not examine herself, but only her husband, who is her power of attorney was examined and that would not satisfy the requirements of the law.
(c) The plaintiff has not been ready and willing to perform her part of the contract, as she took enormous time to file the suit, despite having given telegraphic notice for name sake.
Accordingly, the learned counsel for the appellant/defendant would pray for setting aside the judgment and decree of the trial Court.
9. In a bid to shoot down and torpedo, pulverise and mince meat of the arguments as put forth on the side of the appellant/defendant, the learned counsel for the respondent/plaintiff would pilate his arguments inviting the attention of this Court to various portions of the records, a thumb nail sketch of the same would run thus:
(a) Ex.A2-the agreement to sell is a registered one. The contention on the side of the defendant that only mortgage was intended to be executed, but instead at the last minute, the plaintiff managed to obtain the registered agreement to sell, is nothing but a ploy which could be equated to a square block in a round hole. Had really such an alleged fraud been committed by the plaintiff as against the defendant, the latter would have not kept quiet, he would have at once took steps to issue atleast notice complaining about all those facts, but that was not done so.
(b) The husband of the plaintiff was examined as her power agent and the power of attorney deed amply empowers him to depose as a witness. There was nothing in thi
