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IN THE HIGH COURT OF JUDICATURE AT MADRAS
KRISHNAN RAMASAMY, J.
Durairaji & Another – Appellant
Versus
Nadarajan – Respondent
S.A. No. 130 of 2017 & C.M.P. Nos. 2653 & 9124 of 2017
Decided On : 23-03-2021
Indian Evidence Act, 1872 – Section 114 – Code of Civil Procedure, 1908 – Section 100, Order VIII Rule 4 and 5, Order 14 Rule 1 – Specific Relief Act, 1963 – Section 16 – Specific Performance – Second Appeal has been filed to set aside the judgment and decree made in A.S. on the file of the Subordinate Judge, confirming the judgment and decree made in O.S. on the file of the Principal District Munsif – Appellants herein are the defendants in the suit – Respondent herein is the plaintiff in the suit – Suit was filed for specific performance
Finding of court: Available facts, oral and documentary evidences are sufficient to prove the readiness and willingness of the plaintiff in terms of 103 of the Code of Civil Procedure, thus this Court examined the aspect of ready and willingness of the plaintiff to pay the balance sale consideration. – There is no iota of evidence which would prove that the plaintiff was ready and willing to pay the balance consideration over the period of two years as stated in the agreement. – In the present case, the legal notice was issued after four months from the date of expiry of two years period provided in sale agreement for the execution of the sale deed. – The said legal notice was marked as Ex.A2. – Apart from the said legal notice, throughout the period of sale agreement and even after the expiry of the sale agreement and upto the date of legal notice, there is no evidence which would prove the ready and willingness on the part of the plaintiff to perform the contract. – Though he has merely averred in the plaint, the said averments were not proved by letting the oral and documentary evidence. – Thus, there is no difficulty for this Court to come to the conclusion that the plaintiff has failed to prove his readiness and willingness in terms of provision of 16(c) of the Specific Relief Act. – Two years time was granted for the payment of balance consideration of Rs.10,500/-. – When a person was able to pay a sum of Rs.37,000/- as advance, there is no need for him to take another two years to pay the balance consideration of Rs.10,500/-, which is also to be noted. – No prudent man will take two years time to execute the sale deed. – The reason for taking two years time was not explained properly and there was no discussion in this aspect by both the Courts below. – Under such circumstances, this Court is of the view that, the two years time provided in the sale agreement was granted for the repayment of the hand loan alone but not for the execution of sale deed. – Such presumption is possible under Section 114 of the Indian Evidence Act, 1872, owing to the existence of the available facts in the present case. – Plaintiff cannot take a stand that merely for want of objection in the written statement which is hardly any effect or consequence, without the plaintiff prove his case by letting evidences and he cannot be allowed to take advantages in the defects in the written statement. – It is the duty of the plaintiff to prove the averments in the plaint through his own evidences – Counsel for the respondent also produced the case laws and submitted that, when the execution of the sale agreement was admitted by both the parties, the plaintiff is entitle to demand for execution of the sale deed. – But the said case laws will not be applicable for the fact of the present case – Court is of the view that the plaintiff is not entitled for the relief of specific performance. – Therefore the judgment and decree of the Courts below is liable to be set aside.
Result: Second Appeal Allowed
JUDGMENT :
(Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree dated 02.09.2013 made in A.S.No.18 of 2012 on the file of the Subordinate Judge, Kallakurichi confirming the judgment and decree dated 21.11.2011 made in O.S.No.420 of 2009 on the file of the Principal District Munsif, Kallakurichi.)
1. This Second Appeal has been filed to set aside the judgment and decree dated 02.09.2013 made in A.S.No.18 of 2012 on the file of the Subordinate Judge, Kallakurichi confirming the judgment and decree dated 21.11.2011 made in O.S.No.420 of 2009 on the file of the Principal District Munsif, Kallakurichi.
2. The appellants herein are the defendants in the suit. The respondent herein is the plaintiff in the suit.
3. The suit was filed for specific performance. The plaintiff and the 1st defendant are brothers.
4. According to the plaintiff, the 1st defendant has agreed to sell the suit schedule property for a consideration of Rs.47,500/-. Accordingly the 1st defendant received a consideration of Rs.37,000/- as advance from the plaintiff and executed a registered agreement of sale on 01.03.2007. The 2nd defendant is the daughter of the 1st defendant, who was minor at the time execution of the sale agreement. As per the sale agreement, the balance sale consideration of Rs.10,500/- has to be paid on or before 02.03.2009. The plaintiff had appointed his wife as Power of Attorney as he has to go frequently for the Foreign Country for employment purpose. The plaintiff was ready and willing to pay the balance sale consideration throughout the period of sale agreement. But, the defendants took time whenever the plaintiff approached him for executing the sale deed and consequently, the 1st defendant has not kept his promise, therefore the plaintiff issued the legal notice on 04.07.2009, which was marked as Ex.A2. The legal notice was returned as unserved and the returned cover was marked as Ex.A3. Hence, without any option the plaintiff filed the suit for specific performance.
5. The case of the 1st defendant was that he has executed the sale agreement on 01.03.2007 at the request of the plaintiff, as a security for the hand loan. The 1st defendant used to get hand loan from his brother/the plaintiff from time to time for which, the plaintiff requested to provide security for the repayment of loan. Therefore, the sale agreement was executed. According to the 1st defendant he received a sum of Rs.12,000/- on 08.08.2005, Rs.5,000 on 17.01.2006, Rs.3,000/- on 15.07.2007, Rs.10,000/- on 19.07.2007 from the plaintiff as hand loan. Except the above averment, the defendant has denied all other averments in his written statement. The plaintiff by taking advantage over the delay in discharging the hand loan, has fraudulently filed the suit to grab the property. The defendants are away from the village, therefore, the legal notice could not be received and reply was not given. The defendants are ready to settle the hand loan. Therefore, he submitted that there was no cause of action for filing the suit and the same is liable to be dismissed.
6. Before the Trial Court, the plaintiff himself examined as P.W.1 and were marked Exs.A1 to A3. On the defence side, the 1st defendant examined as D.W.1 and no documents were marked.
7. The Trial Court framed four issues and the four issues were answered in favour of the plaintiff and ultimately held that there was a valid registered sale agreement entered between the plaintiff and the defendants. The contention of the defendant that he has obtained only a hand loan from the plaintiff was rejected by the Trial Court by relying on the exhibits. Therefore, the Trial Court passed the judgment and decree stating that the plaintiff is entitled for decree as prayed for.
8. Aggrieved by the said judgment passed by the Trial Court on 21.11.2011 in O.S.No.420 of 2009, the appellant herein filed an appeal in A.S.No.18 of 2012. After hearing both the parties, the First Appellate
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