Marudakutti v. K.Arumugham & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 26.06.2007CORAM :THE HON’BLE MRS. JUSTICE PRABHA SRIDEVANA.S.No.905 of 1991Marudakutti .... Appellant/DefendantVs.1. K.Arumugham (Died)2. Chockkalingam (Died)3. K.Nallavaradan (Died)4. N.Subramaniam5. Solathal6. A.Balasubramanian7. Jayalakshmi8. A.Rangasamy9. A.Nataraj10. A.Kanagaraj11. N.Kamalam12. N.Balasubramanian13. N.Vijayakumar14. Vasuki ..... Respondents/Plaintiffs(RR5, 6, 7, 8, 9 10 brought on record as LRs of thedeceased first respondent, vide order of Courtdated 05.06.2007 made in C.M.P.Nos 9281 to 9286 of 2006)(RR7 brought on recorded as LR of thedeceased second respondent, vide order of Courtdated 05.06.2007 made in C.M.P.Nos 9281 to 9286 of 2006)(RR11 to RR14 brought on record as LRs of the deceased third respondent, vide order of Courtdated 05.06.2007 made in C.M.P.Nos.9281 to 9286 of 2006)Appeal filed against the Decree and Judgment, dated13.08.1991, made in O.S.No.472 of 1986 on the file of the IIIAdditional Sub Court, Coimbatore. https://hcservices.ecourts.gov.in/hcservices/ For Appellant: Mr.A.Sheik PeerFor Respondents : Mr.T.M.Hariharan for R4, R11 to R14J U D G M E N T The defendant is the appellant. The suit is for specificperformance of the agreement, dated 18.06.1985, under which twoacres of land were agreed to be sold for Rs.1,04,000/-, each,total sale consideration being Rs.2,08,000/-. Rs.50,000/- was paidin advance. 10 months time was fixed for performance. Under theagreement the defendant should survey the property, plant thestones and also obtain encumbrance certificate for a period of 30years. 10 months period expired on 18.04.1986. Ex.A.3, endorsementwas made on 21.04.1986, extending the period for performance to20.07.1986. In the meantime, on 28.04.1986, two sale deeds wereexecuted by the defendant in favour of the respondents, Ex.A4 andEx.A.5, under which one acre in aggregate was sold to theplaintiffs. Thereafter, under Ex.A.6, notice, the plaintiffscalled upon the defendant to perform his part of the agreement andexecute the sale deed in respect of the remaining one acre. Tothis, a reply was sent on 12.07.1986, under Ex.A.7, stating thatthe amount specified under Ex.A.6 does not represent the actualamount to be paid and that out of the advance of Rs.50,000/- andon 18.06.1985, the date of Ex.A.1, Rs.25,000/- was adjusted in thesale consideration for Ex.A.4 and Ex.A.5 and therefore, onlyRs.25,000/- remained as advance with the defendant and on thatbasis, the balance sale consideration must be paid. Thereafter,the suit was filed immediately by the plaintiff, expressing hisreadiness and willingness and specifically stating in paragraph 8that entire consideration has been paid for the two sale deeds,Ex.A.4 and Ex.A.5 " but without adjusting the advance ofRs.50,000/- given to the defendant on 18.06.1985." 2. The defendant in their written statement had specificallystated that the plaintiffs were not having sufficient funds topurchase the entire two acres and therefore, they wanted saledeeds to be executed for one acre, for which they also adjusted asum of Rs.25,000/-, from out of the amount paid as advance, underagreement, dated 18.06.985 and therefore, after calculating theamount paid and the amount adjusted, the defendant said that whatis due from the plaintiffs towards the sale consideration isRs.1,08,000/- and not Rs.54,000/-, as claimed by the plaintiffs.The written statement also specifically alleged suppression ofmaterial facts and therefore, claimed that the plaintiffs were notentitled to specific performance of the contract. https://hcservices.ecourts.gov.in/hcservices/

3. Before the trial court, third plaintiff was examined asP.W.1 and 7 documents were marked. The defendant examined himselfas D.W.1 and no document was marked on his side. The trial courtgave a specific finding that the plaintiffs have come to Courtwith a false case of non adjustment of Rs.25,000/- from out of theadvance money paid under Ex.A.1, while obtaining the sale deeds,Ex.A.4 and Ex.A.5. but, however, held that the plaintiffs haveproved readiness and willingness and therefore, entitled tospecific performance.4. The learned counsel for the appellant submitted thatEx.A.3, endorsement itself would show that the plaintiffs were notready and willing at all times and they are bound to plead asproved, because the words used in Ex.A.3, nghjpa trjpa[k; brsfhpaKk;,y;yhj fhuzj;jpdhy” and that this would itself dis-entitle theplaintiffs for getting the specific performance. The learnedcounsel also submitted that in spite of the specific statementmade in Ex.A.7 that Rs.25,000/- was adjusted from out of theadvance, while executing Ex.A.4 and Ex.A.5, the plaintiffs had notchosen to prove that the entire sale consideration for Ex.A.4 andEx.A.5 have been paid by the plaintiffs to the defendant and thatno amount was adjusted in the advance. The learned counsel reliedon Aniglase Yohannan vs. Ramlatha (2005 (5) CTC 800) andA.Ulaganatha Reddy vs. D.Nandagoppal Chetti (2005 (4) CTC 426). 5. The learned counsel for the respondents, on the other handwould submit that the court below was satisfied with the readinessand willingness. While it is true that there was an adversefinding against the respondent, the adverse finding was not basedon the materials on the record and therefore, that the finding iserroneous. The learned counsel, then read out the recitals inEx.A.4 and Ex.A.5, which is to the effect "18.06.1985k; njjpapy;vGjpf; bfhLj;j fpiua xg;ge;jg;go eh';fs; j';fsplkpUe;J fPH;fhQqk;rhl;rpfs; Kd;go buhf;fkhf Vw;fdnt bgw;Wf; bfhz;lJ Rs. 10,875/-(Ex.A.4) and Rs.14,125/- (Ex.A.5) . The learned counsel submittedthat the witnesses in Ex.A.4 and Ex.A.5 are totally different fromthe witnesses in Ex.A.1. Therefore, when the recitals in thedocument clearly show that these amounts were paid before thepersons, who had signed as witnesses in Ex.A.4 and Ex.A.5, who arenot witnesses in Ex.A.1, then the only conclusion that can bedrawn from them is that the amount of Rs.50,000/- that was paidbefore the witnesses in Ex.A.1 was not adjusted by the plaintiffs,but on the other hand, without adjusting that, they had givenentire consideration for Ex.A.4 and Ex.A.5 separately. https://hcservices.ecourts.gov.in/hcservices/

6. The learned counsel submitted that when the recitals areclear, there was no basis for the court below to come to theconclusion that the plaintiffs had come to Court with false facts.The learned counsel also submitted that another factor, whichshould be borne in mind is that in his evidence as P.W.1, theplaintiff has stated that the plaintiff is bound to pay only a sumof Rs.54,000/- and that if for some reason this court come to theconclusion that the defendant claim that they are entitled to moreis correct, then the plaintiff is willing to pay that amount also.The learned counsel would therefore submit that the plaintiff hadgone so far, as to accept the defendant’s case and showed hisbonafide by offering the extra sum. According to him, theplaintiff had paid entire sale consideration in Ex.A.4 and Ex.A.57. The relief of specific performance is an equitable one andit is purely discretionary and therefore, it is incumbent upon theplaintiffs to come to court with true facts, without suppressionof any materials and with bonafides on his part. Even if theplaintiffs had made out a case, it is still the discretion of thecourt whether to grant the relief of specific performance. In thiscase, the finding of the trial court is that the plaintiffs havegiven false details. In spite of that the court decides to givespecific performance only on the ground that he has provedreadiness and willingness, we will see whether the finding thatthe plaintiffs have come with a false case is correct. 8. Under Ex.A.1, what was received by the defendant was a sumof Rs.50,000/- as advance for the sale of two acres of land. Therecitals relating to payment of advance would show that it waspaid in the presence of the witnesses mentioned below. " moapy;fhQqk; rhl;rpfs; Kd;dpiyapy;". Ex.A.3 endorsement shows that on21.04.1986, the plaintiffs did not have sufficient funds andfacility to conclude the sale transaction and therefore, time wasgranted. On 28.04.1986, two sale deeds were executed in respect ofone acre of land. The recitals relating to payment of advance havealready been extracted above.9. The learned counsel for the respondent would submit that asum of Rs.50,000/- was paid on 18.06.1985 in the presence of thewitnesses mentioned therein, namely Venkatachalam, Vadugakonar andPonnusamy, where as the sums of Rs.10,875/- and Rs.14,125/- werepaid before the witnesses, who signed in Ex.A.4 and Ex.A.5, whoare V.M.Ramasamy and A.Velliyangiri. Therefore, the recitals inthe documents would themselves show that Rs.50,000/- was paidbefore three persons, who are other than the persons before whomthese two sums were paid. https://hcservices.ecourts.gov.in/hcservices/

10. It is difficult to accept this. In Ex.A.7, which is thereply to the suit notice, the defendant had stated that out of thesaid sum of Rs.75,000/-, payable for Ex.A.4 and Ex.A.5, a sum ofRs.25,000/- was adjusted from the advance of Rs.50,000/- paid on18.06.1985. Now the plaintiffs have to show that the advances ofRs.10,875/- under Ex.A.4 and Rs.14,125/- under Ex.A.5, were paidafter 18.06.1985, but before 28.04.1986. The recitals in Ex.A.4and Ex.A.5 merely use the word " Vw;fdnt" which means earlier. Ifthe plaintiffs' case was true, in the plaint they would havespecified the dates on which these two sums were paid. The plaintis bereft of particulars and it merely states that the entireconsideration for these has been paid without adjusting theadvance. In his evidence, P.W.1 has said "Ex.A.4 and Ex.A.5f;Fvt;tst[ gzk; bfhLj;njhk; vd;W "hgfk; ,y;iy Ex.A.4 and Ex.A.5 y;Kd;gzj;ij rhp fl;of; bfhs;stpy;iy ". He does not say on what dateprior to 28.04.2006 ( the dage of Ex.A.4 and Ex.A.5). He does notremember how much was paid. It is unlikely that a person partingwith more than Rs.10,000/- would have done so, without obtainingsome kind of receipt. For this, the learned counsel for therespondent would submit that the parties are known to each otherand trust each other and that in fact, D.W.1 had stated in hisevidence that the plaintiffs are honest persons " thjpfs;ehzakhdth;fs;" and that therefore, it did not occur to theparties to obtain receipt. Even assuming that this was the case,the plaintiffs should have been alerted on receipt of Ex.A.7 andthat was the occasion when they could have pleaded and placedbeyond the pale of controversy the fact of payment of entire saleconsideration for Ex.A.4 and Ex.A.5 without adjusting the advanceof Rs.50,000/- paid under Ex.A.1. The plaintiffs do not do so inthe pleading nor in their oral evidence. It would have been veryeasy for them to summon one of those witnesses in Ex.A.4 andEx.A.5 to show that those two sums were paid before them on adate, prior to Ex.A.4 and Ex.A.5. Such a case was never pleaded bythe respondent before the trial court. It is advanced for thefirst time at the appellate stage, for which there is no basis inthe pleading. The mere recital, which are perhaps the usualrecitals incorporated by scribes that " moapy; fhQqk; rhl;rpfs; "cannot by themselves prove the payment of the said sums in theface of the categoric denial in Ex.A.7. In fact in Ex.A.7, thedefendant does not evade his duty to execute the sale deed, allthat the defendant says is that "you will pay the entire amount onor before 21.07.1986, the sale deed would be executed". Theplaintiffs do not take advantage of this, but pressed their caseof non-adjustment of advance, which they do not prove. In factthis non-adjustment of advance is difficult to believe. On theother hand, when the agreement was for purchase of two acres ofland, it is natural that the purchasers would like to adjust 50%of the advance paid under the sale agreement, while purchasing one https://hcservices.ecourts.gov.in/hcservices/ acre, which is half of the extent of the lands agreed to bepurchased under Ex.A.1. The fact that the figures mentioned asadvance in Ex.A.4 and Ex.A.5, which are not round figures, but theagreegate of the sums mentioned, as paid as advance totals toRS.25,000/- also indicated this. It appears as if this Rs.25,000/-has been apportioned in the two sale deeds proportionately to theextent purchased under each of the sale deed. Of course, these arenot facts which have been elicited in the evidence or stated inthe written statement. But the probability of the defendant’s casethat Rs.25,000/- was adjusted by the plaintiffs in Ex.A.4 andEx.A.5 sums is more likely. This appears more in confirmity withordinary human conduct. The plaintiffs have not clearly proved thepayment of this amount and therefore, the finding of the trialcourt that the plaintiffs come with false case of non-adjustmentof advance of Rs.50,000/- in the sale deeds, Ex.A.4 and Ex.A.5 areconfirmed.11. In the decision, A.Ulaganatha Reddy vs. D.NandagoppalChetti (2005 (4) CTC 426), the learned Judge has cited severalauthorities and found that on a consideration of the conduct ofthe plaintiff, the refusal to grant the relief of specificperformance was well founded.12. In the decision, Aniglase Yohanna vs. Ramlatha, (2005 (5)CTC 800), the learned Judges have again dealt with many of theearlier cases, which declare how discretion should be exercised.The Supreme Court has held that a person seeking benefit of thespecific performance of contract “ must manifest that his conducthas been blemishless throughout entitling him to the specificrelief. The provision imposed a personal bar", referred theprinciple behind Section 16 (c) read with Explanation (ii). 16. Personal bars to relief : -(a).................(b).................(c) who fails to aver and prove that he hasperformed or has always been ready andwilling to perform the essential terms of thecontract which are to be performed by him,other than terms of the performance of whichhas been prevented or waived by thedefendant.Explanation : For the purpose of clause(c) :-(i) where a contract involves the payment ofmoney, it is not essential for the plaintiffto actually tender to the defendant or todeposit in Court any money except when sodirected by the Court.(ii) the plaintiff must aver performance of, https://hcservices.ecourts.gov.in/hcservices/ or readiness and willingness to perform, thecontract accordingly to its trueconstruction."13. As regard readiness and willingness, it has beenconsistently held by our Court that the plaintiff has to prove hisreadiness and willingness right through out, until the date hefiles the suit for specific performance.14. In this case, it is no doubt true that as per Ex.A.3, thetime has been extended, but when the defendant had stated thatRs.54,000/- is not the amount to be paid, but Rs.1,08,000/-containing with Rs.25,000/- advance was adjusted and still theplaintiffs come to the Court, committing himself payment ofRs.54,000/- and once the court has found that the plaintiffs hadin fact adjusted Rs.25,000/-, out of the advance paid in Ex.A.1towards purchase of Ex.A.3 and Ex.A.4, would show that hisreadiness and willingness is not correct and that he is not readyand willing to pay the balance payment, of course in his evidence,he has stated that he is ready to pay what ever the defendant asks"jahuhf cs;nsd;". But having come to the court with false case andhaving offered to pay a sum less than bound to pay will not helphim. 15. In 1999 (7) SCC 303 (Ramkumar Agarwal vs. Thawan Das),the Supreme Court held that the borrower who falsely claims tohave paid the sum of money and attempts to prove the plea at thetrial stage cannot be said to have been ever ready and willing topay the sum due under the contract in question. This decisionapplies to the present case. 16. For having come to court with the false case, which hasbeen rightly found against him by the trial court, the plaintiffhas clearly disentitled himself from getting a decree for specificperformance. The Judgment and Decree of the court below is setaside. The appeal is allowed with costs.TsvnSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ ToThe III Additional Sub CourtCoimbatore. 2. The Section Officer, VR Section, High CourtMadras+ one cc to Mr. K. Shahul Hameed, Advocate sr no. 37687+ one cc to Mr. T.M. Hariharan, Advocate sr no. 37627+ one cc to Mr. S. Kolandasamy, Advocate sr no. 38478vrk(cO)nm(18.08.07)A.S.No.905 of 1991