The central legal point established in the judgment is the importance of readiness and willingness in a suit for specific performance, the burden of proof, and the futility of baseless arguments.

JUDGMENT :

Prayer: Second Appeal filed under Section 100 of C.P.C., against the judgment and decree dated 29.04.2011 made in A.S.No.2 of 2011 on the file of the Sub Court, Sathyamangalam confirming the judgment and decree dated 19.04.2010 made in O.S.No.53 of 2005 on the file of the District Munsif Court, Sathyamangalam.

The defendant in O.S.No.53 of 2005 on the file of the District Munsif Court, Sathyamangalam who failed before the Sub-Court, Sathyamangalam in A.S.No.2 of 2011 has filed the present appeal.

2. The appeal arises from a suit for agreement of sale dated 11.08.2004. The value of the agreement is Rs.25,000/-. The agreement reads that Rs.23,000/- was paid on the date of agreement itself. Since the time for execution of the sale deed was 6 months, notices were exchanged between the parties on 05.02.2005 and 11.02.2005. Immediately on receipt of the reply notice, the present suit was filed on 16.02.2005.

3. The defence taken by the appellant was that it was a loan transaction for Rs.15,000/- alone, which he stated, he would re-pay together with 9% per annum. In other words, it was not an agreement of sale, but, a loan transaction. As already pointed out, the trial Court decreed the suit and the lower appellate Court confirmed the same.

4. Mr.N.Manokaran, learned counsel appearing for the appellant would vehemently argue that the judgment and decree of the Courts below have to be set aside on the following grounds:

1) The Court does not have jurisdiction to compare the thumb impressions;

2) It has not given cogent reasons for comparison of the thumb impressions and

3) The evidence of PW2 and PW3 to the effect that there is a difference in the thumb impressions was ignored and finally

4) The comparison was with respect of post suit documents and not with documents of the admitted thumb impressions which had come into being before the presentation of the plaint.

5. He would then argue that in the reply notice as well as in additional written statement filed on 21.06.2007, he had specifically stated that on 11.08.2004 two persons viz., Velusamy and Natarajan were present as witnesses and the plaintiffs have not examined both of them. He would then argue that a specific issue whether the plaintiff was ready and willing to execute the contract was not raised by the Courts below and on that short point, the appeal has to be allowed.

6. He would then argue that there is a contradiction in the evidence regarding payment of amount and that is fatal to the plaintiff's case. Finally he would state that the property was worth Rs.3,00,000/- on the date of agreement and that is sought to be knocked of at Rs.25,000/- and that the agreement having been entered into in 2004, if the appeal is dismissed in 2023, due to the increase in price, it would be inequitable.

7. I have carefully considered the submission of Mr.N.Manokaran, learned counsel for the appellant. The respondents, though have been served, have not entered appearance.

8. This Court had not admitted the appeal but ordered notice of motion on 30.08.2011. The following substantial questions of law were suggested for admission of the appeal:

a) Whether the Courts below were justified in comparing the disputed thumb impression with admitted thumb impression and recording a finding about the authenticity of the thumb impression without the benefit of any opinion of an Expert?

b) Whether the Courts below have committed an error in not considering the issue relating to time prescribed for taking steps or for completion of the transaction while exercising the discretion in a suit for specific performance, particularly no explanation has been given for fixing six months time to pay a meagre amount of Rs.2,000/-?

c) Whether the Courts below have applied greater scrutiny and strictness when considering whether the purchaser was always ready and willing to perform his part of the contract?

d) Whether the Courts below have committed an error in decreeing the suit for specific performance which is pure