The appellate court determines that non-disclosure of an earlier mortgage does not impede specific performance claims if the plaintiff proves readiness and willingness.

JUDGMENT :

P.B.BALAJI, J.

The plaintiff in the suit for specific performance is the appellant, aggrieved by the concurrent findings rendered by the trial Court as well as the appellate Court, dismissing the suit for specific performance.

2.The brief facts that are necessary for disposal of the Second Appeal are as hereunder:

2.1.The plaintiff entered into a registered agreement of sale with the deceased sole defendant on 23.01.2017, for purchase of the suit property, for a total sale consideration of Rs.7,60,000/-. A sum of Rs.4,91,000/- was paid as advance on the date of agreement of sale. The balance sale consideration of Rs.2,69,000/- was agreed to be paid at the time of execution of the sale. The agreement stipulated 22.06.2017 as the date within which the agreement was to be performed, by executing / registering necessary sale deed in favour of the plaintiff. As the defendant did not come forward to execute the sale deed, plaintiff issued pre-suit notice on 06.06.2017, which was received by the defendant on 08.06.2017. Though the plaintiff was waiting at the Sub-Registrar's office at Theni, with balance sale consideration of Rs.2,69,000/- as indicated in the pre-suit notice dated 06.06.2017, the defendant did not turn up. Plaintiff, expressing readiness and willingness, filed the suit for specific performance.

2.2.The defendant though admitted to the execution of the registration of the sale agreement, took up a plea that the agreement of sale was executed only as security for loan transaction. The defendant also contended that the plaintiff was not ready and willing to perform his obligations under the agreement of sale and sought for dismissal of the suit.

3.Before the trial Court, plaintiff examined himself as P.W.1 and one Senthil Kumar as P.W.2 and Exs.A1 to A7 were marked. On the side of defendants, defendant examined herself as D.W.1 and one Ravi as D.W.2 and Exs.D1 to D4 were marked.

4.The trial Court as well as the first appellate Court non-suited the plaintiff on the ground that the plaintiff had suppressed the mortgage deed which had been executed in respect of the suit property by the defendant in favour of the third party and the Court below found that in view of the earlier transaction, namely loan availed of by the defendant, the agreement could have only been a loan transaction and not an intended sale transaction. On this sole ground, the Courts below have dismissed the suit for specific performance.

5.I have heard Mr.J.Barathan, learned Counsel appearing for the appellant and Mr.K.Sudalaiyandi, for Mr.N.Vallinayagam, learned Counsel for the respondents.

6.The second appeal is admitted on the following substantial questions of law:

“1) Whether the non-disclosure of the earlier mortgage transaction would amount to plaintiff approaching the Court with unclean hands when the registered sale agreement which is subject matter of the suit was totally an independent contract?

2) Whether the Courts below were right in finding the subject suit sale agreement to be a loan transaction based on oral and documentary evidence alone, contrary to Sections 91 and 92 of the Indian Evidence Act?”

7.Mr.J.Barathan, learned Counsel for the appellant would submit that the plaintiff, has not only pleaded readiness and willingness, but has also proved the same by examining P.W.1 and P.W.2 and also by marking Exs.A1 to A7. He would further contend that the pre-suit notice, calling upon the defendant to come to the Sub-Registrar's office to receive the balance sale consideration and execute the sale deed, was not even replied to by the resp