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IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAVINDRAN, J.
N. Sankaran – Appellant
Versus
R. Shanmuga Raj – Respondent
S.A. No. 94 of 2008 & C.M.P. No. 24471 of 2019
Decided On : 19-04-2021
Civil Procedure Code, 1908 - Section 100 - Order 41 Rule 27(1) R/w. Section 151 - Contract Act, 1872 - Section 10 - Negotiable Instruments Act - Section 138 - Suit for specific performance - Decreed - Sale Agreement - Execution of - Readiness and willingness - Second Appeal - Whether document Ex.A1 could be treated as an agreement of sale even in absence of signature of plaintiff - Would there be any presumption that defendant had knowledge of contents of Ex.A1, just because he admitted signature subscribed by him in Ex.A1 - Defendant is owner of suit property defendant agreed to sell suit property to plaintiff and he entered into an agreement of sale on same date with plaintiff and total sale consideration was fixed and sale transaction had been agreed to be completed within 10 months therefrom and defendant received entire sale consideration had been paid by plaintiff towards purchase of suit property as per terms of sale agreement
Finding of the court: It is clear that intention of parties was that agreement should be complete on signature by only the vendor. Even though draftsman who prepared agreement might have used a format intended for execution by both vendor and purchaser, the manner in which parties had proceeded, clearly demonstrated that it was intended to be executed only by vendor alone. Thus in view of aforesaid it is held that agreement of sale signed only by vendors was valid and enforceable by the purchaser - Plaintiff has established that defendant had subscribed to sale agreement knowing contents of the same and thereby, had agreed to convey the suit property to the plaintiff for Rs.5,00,000/- as averred in Ex.A1 sale agreement and accordingly, the defendant is unable to dispute the signature made by him Ex.A1 sale agreement and as above pointed out, the defendant has also miserably failed to establish the loan theory projected by him
Result: Second Appeal is dismissed
JUDGMENT :
(Prayer: Second Appeal has been filed under Section 100 of CPC against the Judgment and Decree dated 29.09.2006 passed in A.S.No.112 of 2005 on the file of the Principal District Court, Coimbatore, confirming the judgment and decree dated 20.11.2004 passed in O.S.No.108 of 2001 on the file of the II Additional Subordinate Court, Coimbatore.)
1. Challenge in this second appeal is made to the Judgment and Decree dated 29.09.2006 passed in A.S.No.112 of 2005 on the file of the Principal District Court, Coimbatore, confirming the judgment and decree dated 20.11.2004 passed in O.S.No.108 of 2001 on the file of the II Additional Subordinate Court, Coimbatore.
2. For the sake of convenience, the parties are referred to as per their rankings in the trial Court.
3. The defendant in O.S.No.108 of 2001 is the appellant in this second appeal.
4. Suit for specific performance.
5. The case of the plaintiff, in brief, is that the defendant is the owner of the suit property and on 22.06.1998, the defendant agreed to sell the suit property to the plaintiff and he entered into an agreement of sale on the same date with the plaintiff and the total sale consideration was fixed at Rs.5,00,000/- and the sale transaction had been agreed to be completed within 10 months therefrom and the defendant received a sum of Rs.4,00,000/- as advance under the agreement on 22.06.1998. Subsequently, the defendant, on 03.08.1998, received a further sum of Rs.1,00,000/- and in respect of the said payment, due endorsement has been made in the sale agreement and thus, the entire sale consideration had been paid by the plaintiff towards the purchase of the suit property as per the terms of the sale agreement. Though a period of 10 months had been fixed for the completion of the sale transaction, the defendant has been repeatedly seeking time to perform his part of the contract representing that he had to pay and clear certain liabilities in respect of the suit property and also wanted time to vacate the tenant M/s.Sri Krishna Sweets from the suit property and the endorsements, evidencing the extension of time as sought for by the defendant, were made in the sale agreement by way of the endorsements dated 31.05.1999 and 30.03.2000. The plaintiff has been always ready and willing to take the sale deed as per the terms of the sale agreement but the defendant had been postponing the same for one reason or the other and the defendant also agreed to execute the sale deed along with the tenant on 30.01.2001 and based on the said assurance of the defendant, the plaintiff proceeded to prepare the sale deed and also waited for the defendant at the Registrar’s Office on 30.01.2001, but, contrary to the assurance, the defendant failed to turn up. The plaintiff issued a legal notice by way of a telegram dated 30.01.2001 setting out the facts and giving one more opportunity to the defendant to appear before the Registrar on 31.01.2001 at 4.00 p.m. and execute the sale deed in favour of the plaintiff and the plaintiff was waiting at the Registrar’s office on 31.01.2001, however, the defendant failed to appear and execute the sale deed in favour of the plaintiff qua the suit property. The defendant is wilfully avoiding and refusing to execute the sale deed and the defendant issued a reply telegram on 31.01.2001 contending that the agreement of sale was executed only by way of security for an alleged loan. The abovesaid contention of the defendant is false and hence, according to the plaintiff, he has been necessitated to lay the suit against the defendant for appropriate relief.
6. The defendant resisted the plaintiff’s suit contending that the suit laid by the plaintiff is not maintainable either in law or on facts and denied the case of the plaintiff that he had agreed to sell the suit property to the plaintiff for Rs.5,00,000/- and the parties had entered into the agreement of sale with reference to the same on 22.06.1998 and that the plaintiff had paid a sum of Rs.4,00,000/-
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