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2018 Supreme(Mad) 1274
IN THE HIGH COURT OF JUDICATURE AT MADRAS
PUSHPA SATHYANARAYANA, J.
M. Subramaniyam (Died) & Ors. - Appellants
Vs.
T. Abaranji Ammal - Respondent
S.A. No. 35 of 2015 & M.P. No. 1 of 2015
Decided On : 04-04-2018
Advocate Appeared:
For the Appellants : Mr. S.V. Jayaraman, Mr. K.M. Ramesh
For the Respondent: Mr. V. Ramesh, M/s. Sampathkumar Associates
Headnote:
Specific Relief Act – Section 20 – Suit for specific performance – Second Appeal is filed by the defendant challenging the judgment and decree made in A.S. on the file of the Principal District Court, Vellore, confirming the judgment and decree made in O.S. on the file of the Subordinate Court, Vellore – Case of the plaintiff is that the defendant agreeing to sell the suit property entered into an agreement dated 24.11.2004 for a sum of Rs.5,25,000/- with her and received an advance of Rs.5,00,000/-. – The defendant undertook to execute and register the sale deed at the time of receiving the balance of the sale consideration. It was agreed between the parties that time for performing their respective obligation under the contract was three years. – Though the plaintiff was ready and willing to perform her part of the obligation by paying the entire sale consideration and get the document executed and registered at the time of entering into the agreement itself, the defendant wanted to have three years time. – Since the defendant is not forthcoming to execute the sale deed, the plaintiff issued a notice calling upon him to perform his part of the obligation, which was responded to by the defendant via reply notice wherein, the defendant stated that since his son incurred loss in the business, he executed the agreement to sell for a loan of Rs.5,00,000/- as security, and it was not intended to be acted upon. – Plaintiff filed the suit for specific performance. – Held, Execution of the agreement to sell is not disputed. – Consistent case of the appellant/defendant is that it was only a loan transaction. – However, there is no evidence to substantiate his case. – The defendant had not even examined his son or his partner to speak about the same. – There is no piece of paper produced evidencing payment of interest, though pleaded inconsistently. Even so far as escalation is concerned, there is no pleading or relevant material produced before the Court to take judicial note of the fact before exercising discretion. – The trial Court as well as the appellate court had comprehensively analysed the pleading and evidence of the parties and held that the respondent was ready and willing to pay balance price. – There is a distinction between readiness to perform and willingness to perform the contract. – While readiness may mean the capacity of the plaintiff, including financial position, willingness would refer to the conduct of the parties. – In the present case, the appellant neither pleaded hardship nor produced any evidence to show that it will be inequitable to order specific performance of the agreement. – Rather the plea taken that it was intended to be a mortgage deed and that it was never intended to be acted upon is found to be wholly untenable. – Second Appeal Allowed
This Second Appeal is filed by the defendant challenging the judgment and decree dated 26.11.2014 made in A.S.No.32 of 2014 on the file of the Principal District Court, Vellore, confirming the judgment and decree dated 23.08.2011 made in O.S.No.96 of 2011 on the file of the Subordinate Court, Vellore.
2. The case of the plaintiff is that the defendant agreeing to sell the suit property entered into an agreement dated 24.11.2004 for a sum of Rs.5,25,000/- with her and received an advance of Rs.5,00,000/-. The defendant undertook to execute and register the sale deed at the time of receiving the balance of the sale consideration. It was agreed between the parties that time for performing their respective obligation under the contract was three years. Though the plaintiff was ready and willing to perform her part of the obligation by paying the entire sale consideration and get the document executed and registered at the time of entering into the agreement itself, the defendant wanted to have three years time. Since the defendant is not forthcoming to execute the sale deed, the plaintiff issued a notice on 19.09.2005 calling upon him to perform his part of the obligation, which was responded to by the defendant via reply notice dated 30.09.2005, wherein, the defendant stated that since his son incurred loss in the business, he executed the agreement to sell for a loan of Rs.5,00,000/- as security, and it was not intended to be acted upon. Hence, the plaintiff filed the suit for specific performance.
3. Resisting the suit, the defendant filed the written statement denying all the averments in the plaint. The defendant had also stated that he was a Electricity Board employee and he never intended to sell the suit property to the plaintiff. It is stated by him that his son one Ravi incurred loss in business and his partner one Shankar took the defendant and his son Ravi to the plaintiff for getting a loan and for the said loan transaction, as a security, he entered into the subject agreement with the plaintiff, who was a Financier, and it was not intended to be acted upon. It is also stated in the written statement that he was regularly paying the monthly interest to the plaintiff, which he continued, even after filing the suit and mediation was conducted on November, 2006 for settlement, which did not materialise. Hence, he sought for dismissal of the suit.
4. Before the trial court, the plaintiff examined herself as P.W.1 and examined P.Ws.2 and 3, and also marked Exs.A.1 to A.3. On the side of the defendant, the defendant examined himself as D.W.1 and he has not chosen to mark any document.
5. The trial court, upon considering the materials on record, decreed the suit, which was confirmed by the lower appellate court. Hence, the present Second Appeal is filed.
6. At the time of admitting the appeal, the following substantial questions of law were formulated for consideration by this Court :
"(i) Whether the respondent after paying the loan amount of Rs.5,00,000/- to the appellant and get a sale agreement for Rs.5,25,000/- is fair under Specific Relief act. The balance sale consideration amount of Rs.25,000/- would be paid on or before three years is fair or not ?
(ii) Whether the suit transaction is an unconstitutional (sic unconscionable) bargain and whether the suit can be decreed based on the same ?
(iii) Whether the sale agreement is true one or not and it is executable one or not ?"
7. Heard both sides and perused the materials on record.
8. The subject matter of the suit for specific performance is a property in S.Nos.508 and 509, Housing Board Phase II, Sathuvachari Village, Vellore. An agreement to sell was entered into between the appellant/defendant and the respondent/plaintiff on 24.11.2004. The consideration agreed upon was Rs.5,25,000/- and an amount of Rs.5,00,000/- was received as advance. The balance was to be paid when the sale deed was executed. Time for completion of the transaction was three years. A legal not
