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2019 Supreme(Mad) 1985
IN THE HIGH COURT OF MADRAS
N. Sathish Kumar, J.
Bhuvana - Appellants
Vs.
A.H. Bheeman and Ors. - Respondent
Second Appeal No. 1170 of 2010 and M.P. No. 1 of 2010
Decided On : 28-02-2019
For the Appellant : Balan Haridas
For the Respondents: M.L. Rames for G. Kumudh Jhabakh
Headnote:
Specific Relief Act - Section 12 - trial Court - balance sale consideration remains - entered into a lease agreement - evidence about such readiness and willingness - suit property has been originally leased to the plaintiffs brother Prabhu Peter on 22.01.2003. Thereafter, the defendant offered to sell the suit property, consisting of one acre, in favour of the plaintiff for a total sale consideration of Rs. one lakh, at the rate of Rs. 1000/- per cent and entered into an agreement on 21.05.2004 and received a sum of Rs. 25,000/- as an advance by cheque dated 19.05.2004. The time for making remaining sale consideration is six months. It is also agreed between the parties that the defendant should measure the land and produce the sketch and title deeds, encumbrance certificate etc. Subsequently, the plaintiff has paid a sum of Rs. 20,000/- on 08.08.2004 and Rs. 15,000/- on 10.09.2005 by cash towards the sale consideration. Thereby, the plaintiff paid total sale consideration of Rs. 60,000/-. As per the agreement, the defendant measured the property. After measurement, it was found that only 70 cents is available. Therefore, the plaintiff has to pay only Rs. 70,000/- as full sale consideration. Since, the plaintiff had already paid Rs. 60,000/-, the balance sale consideration remains to be paid is only Rs. 10,000/-. The plaintiff is prepared to pay the balance sale consideration – Held, The learned counsel for the appellant has produced the judgment in Nanjammal (died) and another Vs. Palaniammal reported in 1993 (2) L.W. 205. In the above judgment, the Division Bench of this Court disbelieved the contention of the defendant that the agreement is a loan transaction. In this case also, the first appellate Court and this Court has found that the agreement is not a result of loan transaction. Therefore, the judgment relied on the side of the appellant will not serve any purpose to the appellant. But at the same time, as discussed above, the readiness and willingness has not been established by the plaintiff. The first appellate Court has analysed the entire aspects. The suit has been filed not only to enforce the agreement but also for delivery of vacant possession of the suit property. The possession of the property is admittedly with P.W. 2 on the basis of the registered lease agreement in his favour. The lease, as per the registered lease deed was to expire only on 22.01.2013 and the interest has been created in favour of the lessee. Such being the position, seeking relief of delivery of possession in a suit for specific performance is also not maintainable. Absolutely, there is no evidence available on record to show that she has compelled the defendant to procure the property from the lessee namely the brother of the plaintiff and to validate the title of the plaintiff. Despite there is a specific clause in the agreement with regard to refund of the amount, there is no evidence available on record to show that the plaintiff has infact had made any attempts to compel the defendant to refund the lease amount to P.W. 2. Therefore, the above conduct of the plaintiff clearly infact prove that the plaintiff was not at all ready and willing from the inception of the contract - Appeal is dismissed
JUDGMENT :
N. Sathish Kumar, J.
1. Aggrieved over the judgment of the first appellate Court in allowing the appeal suit by setting aside the decree and judgment of the trial Court granting specific performance of the agreement dated 21.05.2004, the present Second Appeal came to be filed.
2. The parties are arrayed as per their own ranking before the trial Court.
3. The brief facts of the plaintiff case is as follows:
The suit property has been originally leased to the plaintiff's brother Prabhu Peter on 22.01.2003. Thereafter, the defendant offered to sell the suit property, consisting of one acre, in favour of the plaintiff for a total sale consideration of Rs. one lakh, at the rate of Rs. 1000/- per cent and entered into an agreement on 21.05.2004 and received a sum of Rs. 25,000/- as an advance by cheque dated 19.05.2004. The time for making remaining sale consideration is six months. It is also agreed between the parties that the defendant should measure the land and produce the sketch and title deeds, encumbrance certificate etc. Subsequently, the plaintiff has paid a sum of Rs. 20,000/- on 08.08.2004 and Rs. 15,000/- on 10.09.2005 by cash towards the sale consideration. Thereby, the plaintiff paid total sale consideration of Rs. 60,000/-. As per the agreement, the defendant measured the property. After measurement, it was found that only 70 cents is available. Therefore, the plaintiff has to pay only Rs. 70,000/- as full sale consideration. Since, the plaintiff had already paid Rs. 60,000/-, the balance sale consideration remains to be paid is only Rs. 10,000/-. The plaintiff is prepared to pay the balance sale consideration. However, the defendant did not produce the title deeds despite several requests made by the plaintiff. In the meanwhile, the defendant made an attempt to sell the property to third parties. Hence, the plaintiff issued legal notice dated 15.06.2006. After the receipt of the said notice, the defendant personally requested the plaintiff that he would execute the sale deed within three months. But, he did not do so. Hence, the suit.
4. Denying the sale agreement, it is the contention of the defendant that he has neither seen the plaintiff nor entered into a sale agreement. He has entered into a lease agreement dated 22.01.2003 with one Prabu Peter, who is son of Peter Masilamani, who is known to the father of the defendant. The defendant who was owning vehicle bearing registration No. TN - 45 - 3080 was seized by the finance company and to redeem that vehicle, the defendant had approached the said Peter Masilamani and he had given a loan of Rs. 25,000/- and obtained his signature in blank stamp papers and blank green sheets affixed with revenue stamps for security purpose for the amount given to the defendant. The alleged receipts for payment of amount on 08.08.2004 and 10.09.2005 were also denied by the defendant. Those receipts are fabricated. He had not agreed to measure the property and to produce the title deeds. Hence, disputed the sale agreement and prayed for dismissal of the suit.
5. The trial Court framed the following issues:
1. Whether the plaintiff is entitled for the relief of Specific Performance based on the sale agreement dated 21.05.2004?
2. Whether the plaintiff is entitled for vacant possession of the suit property?
3. To what relief the plaintiff is entitled?
6. On the side of the plaintiff, P.W. 1 to P.4 were examined and Ex. A.1 to A6 were marked. On the side of the defendant, D.W. 1 and D.W. 2 were examined. The trial Court has decreed the suit for specific performance. However, the first appellate Court set aside the decree of the trial Court for specific performance. However, decreed the suit for alternative relief for the return of advance with interest at the rate of 18% per annum from the date of agreement till the date of decree and thereafter at the rate of 6% per annum. As against which the present appeal has been filed.
7. The Second Appeal has been admitted on the following substan
