2021 Supreme(Mad) 765

IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAJA, G. CHANDRASEKHARAN, JJ.
T. Senthilkumar & Others – Appellant
Versus
K. Palanisamy – Respondent
A.S. No. 98 of 2013
Decided On : 19-03-2021

Point of law: Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16(c) of the Specific Relief Act, 1963 does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of readiness and willingness has to be in spirit and substance and not in letter and form. It is thus clear that an averment of readiness and willingness in the plaint is not a mathematical formula which should only be in specific words. If the averments in the plaint as a whole do clearly indicate the readiness and willingness of the plaintiff to fulfil his part of the obligations under the contract which is subject- matter of the suit, the fact that they are differently worded will not militate against the readiness and willingness of the plaintiff in a suit of specific performance of contract for sale.”

Headnote:

Evidence Act – Section 73 – Specific Relief Act, 1963 – Section 16 – Civil Procedure Code, 1908 – Section 96, Order 41 Rule 1 – Decree for specific performance – Defendants in the suit are the appellants and the plaintiff in the suit is the respondent. – The defendants/appellants herein, having suffered the decree for specific performance granted by the learned trial Court in favour of the plaintiff/respondent herein, has filed this first appeal. – Whether the plaintiff/respondent has established the execution of the sale agreement – Whether the findings and conclusions reached by the learned trial Court on the readiness and willingness of the plaintiff as per Section 16(c) of the Specific Relief Act deserve to be confirmed or not – Whether the parties to the suit have come to the Court with clean hands

Finding of court: To establish the execution of the sale agreement and the part of sale consideration made on three different dates, P.W.1 and P.W.3have deposed about the manner in which the sale agreement was entered into between the parties. – Since both of them were witness to the sale agreement and also for the subsequent endorsement about the receipt of further payment, learned trial Court, accepting the said evidence, gave a finding that the execution of the sale agreement has been sufficiently proved. – In addition thereto, P.W.5-Velliangiri, who is the scribe of the sale agreement, also deposed that he has scribed the said sale agreement and in his presence, Late Thangavelu and his son/first defendant have received the first advance amount of Rs.20 lakhs on the date of execution of sale agreement by appending their signatures. – Moreover, P.W.1 also deposed that Late Thangavelu alone purchased the stamp papers and this deposition was also corroborated by PW5 stating that the stamp papers were purchased by the first defendant in the name of the plaintiff as this fact was informed by the first defendant on the date of execution of sale agreement. – Therefore, the finding given by the learned trial Court accepting the execution of sale agreement on the strength of evidence given by P.Ws.2, 3 and 5, is perfectly in order and accordingly, the first issue is answered in favour of the plaintiff. – Plaintiff filed a suit for specific performance, but, on the said date only, the defendants issued a reply notice which was marked as Ex.A23 denying the execution of the sale agreement by the first defendant and his father/Late Thangavelu, besides stating that the plaintiff was a total stranger. – When the plaintiff has issued two pre-suit notices calling upon the defendants to come forward to receive the balance amount of Rs.5 lakhs and to execute the sale deed in respect of the suit properties, giving a reply notice only on the date when the suit was filed by the plaintiff does not sound good, hence, the allegation of the defendants that the plaintiff has suppressed the reply notice indicates that the defendants have set up a false case. – Thus, the payment of Rs.45 lakhs on three different dates as stated supra coupled with endorsement made by the first defendant on the back side of the sale agreement acknowledging receipt of the said amount and the issuance of pre-suit notices followed by paper publication would show that the plaintiff has been always willing and ready to discharge his part of contractual obligation. – Court do not find any merit on the stand taken by the defendants that the plaintiff was not ready and willing to perform his part of the contract as he filed the suit after two years from the date of sale agreement – Accordingly, the second issue is also answered in favour of the plaintiff. – Court is also fully aware of the popular legal maxim “He who seeks equity must do equity and he who comes to Court must come with clean hands”. – As such, in view of repeated falsehood one after another willfully made by the defendants, namely, giving of false public notice, false police complaint and fraudulent execution of settlement deed and the partition deed to defraud the plaintiff's legal right over the suit properties and thereafter wasting the precious time of the Court playing hide and seek with all forms of manipulation to deceive the plaintiff, police, trial Court and this Court too, this Court, taking note of such bad and troublesome conduct of the defendants and also considering the fair presentation of the case by Mr.N.Manokaran, learned counsel for the defendants, instead of imposing exemplary costs, hereby imposes a token costs of Rs.2 lakhs against the defendants/appellants herein payable to the plaintiff/respondent herein within a period of four weeks from the date of receipt of a copy of this judgment.

Result: Appeal Dismissed