Rangan v. Ramalingam Pillai

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 15.4.2008Coram:The Honourable Mr.Justice M.JAICHANDRENS.A.No.824 of 1996Rangan .. Appellant/ Plaintiffvs.Ramalingam Pillai (died) .. Respondent / Defendant The Second Appeal has been filed against the judgment anddecree, dated 31.1.1995, of the Sub Court, Villupuram inA.S.No.110 of 1994, reversing the judgment and decree, dated20.1.1990, of the Additional District Munsif, Kallakurichi, inO.S.No.539 of 1984. For Appellant : Mr.K.Kannan For Respondent : Mr.V.Raghavachari J U D G E M E N TThis Second Appeal has been filed against the judgment anddecree, dated 31.1.1995, made in A.S.No.110 of 1994, on the fileof the Sub Court, Villupuram, reversing the judgment and decree,dated 20.1.1990, made in O.S.No.539 of 1984, on the file of theAdditional District Munsif, Kallakurichi. 2. For the sake of convenience, the parties are referred toas they have been arrayed in the original suit O.S.No.539 of 1984.3. The plaintiff in the suit is the appellant in the secondappeal. The plaintiff had filed the suit praying for the relief ofspecific performance with regard to the suit property. 4. It is the case of the plaintiff that the suit propertiesbelonged to the defendant. The defendant had executed a writtenagreement, dated 27.9.1980, to sell the suit properties to theplaintiff and the said agreement had been registered. It wasagreed between the plaintiff and the defendant that the defendantwould sell his properties to the plaintiff for the sale https://hcservices.ecourts.gov.in/hcservices/ consideration of Rs.9,000/-. The defendant having received theamount from the plaintiff on various occasions, had put theplaintiff in possession of the suit property. The plaintiff hadalso paid the kist and the patta pass book had also been given tothe plaintiff. The total advance amount paid by the plaintiff isRs.3,450/-. 5. It is the further case of the plaintiff that the plaintiffhad undertaken to discharge a sum of Rs.2,000/- to PukravariSociety. The defendant had received a further sum of Rs.50/- on27.9.1980, the date of the agreement and he had agreed to receivethe balance amount of Rs.3,500/- on the date of the registration.It was agreed that the plaintiff should get the sale deedregistered between 27.9.1980 and 25.9.1981. Since the defendantdid not respond to the requests made by the plaintiff to registerthe sale deed, the plaintiff had issued a notice to the defendant,on 25.9.1981, which the defendant had refused to receive. 6. It is the further case of the plaintiff that the plaintiffhas been ready and willing to pay the balance amount of Rs.3,500/-to the defendant and to get the sale deed registered at his cost.The period of limitation for specific performance was 3 years from25.9.1981, under Article 54 of The Limitation Act. Thus, the suitis well within time. In such circumstances, the suit had beenfiled by the plaintiff praying for the relief of specificperformance as stated therein. 7. In the written statement filed by the defendant, theclaims made by the plaintiff had been denied. The defendant hadstated that the agreement executed by the defendant in favour ofthe plaintiff had been obtained under duress and coercion. Infact, the defendant had originally executed an agreement, dated15.7.1978. Since the plaintiff had not fulfilled the conditionsstipulated in the said agreement, the defendant had demanded, by anotice, dated 16.8.1980, damages from the plaintiff, using hisinfluence and power. The plaintiff had forcibly and fraudulentlycompelled the defendant, when he was ill, to execute the presentagreement, dated 27.9.1980. In spite of the defendant issuing aregistered notice to the plaintiff, on 2.10.1980, through hiscounsel and also a further notice having been issued by thedefendant, on 20.11.1980, the plaintiff had remained silent. 8. The defendant had also denied receiving the advanceamounts as alleged by the plaintiff. Further, the alleged saleprice of Rs.9,000/- was also denied by the defendant. Thedefendant had further stated that the possession of the suitproperty had not been given to the plaintiff as claimed by him. https://hcservices.ecourts.gov.in/hcservices/

9. It has also been stated that the suit filed by theplaintiff is barred by limitation. It was further stated that theplaintiff had executed a release deed on stamped papers,expressing his inability to fulfill the conditions. As such, thedefendant had continued to remain in possession of the suitproperties. The plaintiff had also made an agreement on stampedpapers, dated 21.12.1980, stating that the agreement standscancelled. Even though the defendant had issued notices to theplaintiff, on 4.10.1981 and 19.10.1981, no reply had been receivedfrom the plaintiff. 10. The defendant had also denied the claim of the plaintiffthat he had issued, a notice, dated 25.9.1981. The defendant hadstated that the suit is frivolous in nature and it has to bedismissed with costs. 11. Based on the pleadings of the parties, the trial Courthad framed the following issues for consideration:-" 1. Whether the suit filed by theplaintiff is sustainable in law? 2. Whether the sale agreement filed bythe plaintiff is valid?(iii) Whether the plaintiff is inenjoyment of the suit property?(iv) Whether the plaintiff is entitled tothe relief as prayed for by him?"12. The additional issue framed by the trial Court is whetherthe plaintiff was ready and willing to pay the sale considerationin accordance with the sale agreement? Whether the defendant hadnot come forward to fulfill the agreement?13. The trial Court had found that the sale agreement enteredinto between the plaintiff and the defendant, dated 27.9.1980,marked as Exhibit A.1 is true, since the defendant had acceptedthe execution of the said agreement. P.W.2, examined on behalf ofthe plaintiff, was a witness to the sale agreement. In hisevidence, he had stated that the defendant had executed the saleagreement willingly. It has also been stated that the saleconsideration had been paid in installments and the plaintiff hadalso agreed to discharge the loan of Rs.2,000/- due to thesociety. 14. The trial Court had found, from the letters written bythe plaintiff to the defendant that the defendant had offered tosell the suit properties to the plaintiff, in spite of the factthat the plaintiff was not ready to purchase the same as he didnot have the money. The plaintiff and the defendant had entered https://hcservices.ecourts.gov.in/hcservices/ into a sale agreement, on 15.7.1978. Subsequently, the saleagreement, dated 27.9.1980, had been entered into between theplaintiff and the defendant. In the said agreement, dated15.7.1978 marked as Exhibit B.1 the sale consideration ofRs.9,000/- mentioned in the agreement had been corrected asRs.19,000/-. Thereafter, the defendant had been asking theplaintiff to pay the amount of Rs.19,000/-. From the documentsmarked before the trial Court, it was found that it could not beproved that the suit properties were in the enjoyment of thedefendant.15. The trial Court had found that the Exhibits B.1 to B.52marked by the defendant do not show that the sale agreement, dated27.9.1980, marked as Exhibit A.1., is invalid. 16. It was also found by the trial Court that the suitproperties were in the possession and enjoyment of the plaintiff,based on Exhibits A.4 and A.5 marked on behalf of the plaintiffs.17. From the evidence available, the trial Court had come tothe conclusion that the defendant was not ready and willing toexecute the sale deed with regard to the suit properties, eitherin accordance with the sale agreement, dated 15.7.1978 or inaccordance with the sale agreement, dated 27.9.1980, in spite ofthe fact that the plaintiff had been ready and willing to pay thesale consideration to the defendant and to discharge the liabilityas agreed in the sale agreement, dated 27.9.1980, marked asExhibit A.1. 18. Based on such findings, the trial Court had decreed thesuit as prayed for by the plaintiff, by its judgment and decree,dated 20.1.1990, made in O.S.No.539 of 1984. 19. Aggrieved by the judgment and decree of the trial Court,dated 20.1.1990, made in O.S.No.539 of 1984, the defendant hadfiled an appeal in A.S.No.110 of 1994, on the file of the SubCourt, Villupuram. 20. The first appellate Court had framed the following pointfor consideration:-"(i) Whether the sale agreement marked asExhibit A.1 is true? Whether the plaintiff hadbeen ready and willing to act in accordancewith the said agreement?"21. The first appellate Court had come to the conclusion,based on the Exhibits B.18 and B.21, marked by the defendant thatExhibit A.1 sale agreement cannot be true. The first appellateCourt had found that the documents, B.53 to B.55, sought to be https://hcservices.ecourts.gov.in/hcservices/ marked by the defendant were relevant for deciding the case andtherefore, the said documents were allowed to be marked inaccordance with Order 41 Rule 27 of Civil Procedure Code, 1908.22. The first appellate Court had also found that the factthat the suit properties belonged to the defendant was not indispute. It was also found that the sale agreement marked asExhibit A.1 has been entered into between the plaintiff and thedefendant. However, from Exhibits B.1, B.24, B.31 and theadditional document filed as Exhibit B.55, it was found thatExhibit A.1 is not true and that it was obtained by fraud. It wasalso found, relying on Exhibits B.18, B.21 and B.24, that the saleagreement Exhibit A.1 stood cancelled. 23. Thus, the first appellate Court, had set aside thejudgment and decree of the trial Court, dated 20.1.1990, made inO.S.No.539 of 1984, by allowing the first appeal in A.S.No.110 of1994, by its judgment and decree, dated 31.1.1995. 24. Aggrieved by the judgment and decree of the firstappellate Court, dated 31.1.1995, made in A.S.No.110 of 1994, thepresent second appeal has been filed by the plaintiff. 25. The second appeal had been admitted on the followingsubstantial questions of law:"1. Whether the lower appellate Court didnot err in coming to the conclusion thatExhibit A.1 was obtained by fraud andcoercion, when the defendant had notdischarged the burden of proof cast on him?2. Whether the lower appellate Court didnot err in placing reliance on Exhibits B.18,B.21 and B.24 to conclude that the agreementExhibit A.1 was cancelled, when in fact, theexhibits were fabricated and self-servingdocuments brought about subsequent to trial?"26. The main contention raised by the learned counselappearing for the appellant/plaintiff is that the plea of coercionraised by the respondent/defendant to claim that the saleagreement, dated 27.9.1980, is invalid has to be proved by therespondent/defendant. Though the respondent/defendant had prayedfor permission to file the additional documents as evidence in hisfavour, he had not chosen to do so. However, the documents hadbeen filed and marked during the pendency of the first appeal.Relying on the said documents, the first appellate Court had come https://hcservices.ecourts.gov.in/hcservices/ to the conclusion that the sale agreement, dated 27.9.1980, is nottrue and that it is invalid. There is no acceptable explanationgiven by the respondent/defendant for non filing of the documentsbefore the trial Court. In such circumstances, adverse inferenceought to have been drawn against the respondent/defendant. Therequirements prescribed in Order 41 Rule 27 of the Civil ProcedureCode, 1908, have not been complied with while marking the ExhibitsB.53, B.54 and B.55 at the stage of the first appeal. 27. On the other hand, the main contention of the learnedcounsel appearing for the respondent/defendant is that theappellant/plaintiff has not been ready and willing to execute thesale deed by complying with the conditions stipulated in the saleagreement, dated 27.9.1980. 28. The learned counsel appearing for therespondent/defendant had relied on the decision of the SupremeCourt in SITA RAM & OTHERS Vs. RADHEY SHYAM (2007-4-L.W.889),wherein, it has been held that any person seeking benefit of thespecific performance of a contract must manifest that his conducthas been blemishless throughout. Further, it was also contendedthat the existing debts had not been cleared by the plaintiff asstipulated in the sale agreement, dated 27.9.1980. 29. It was also contended that the agreement in question hadbeen executed, on 27.9.1980 and it was cancelled, on 3.11.1980.The cause of action having arising on the said date on 3.11.1980,the time prescribed by Article 54 of the Limitation Act is 3 yearsfrom the said date. Since the suit had been filed only on24.11.1984 beyond the prescribed time, the suit is bad in law.Since the debts, as noted in the said sale agreement, dated27.9.1980, had not been discharged by the appellant/plaintiff, itis the respondent/defendant who has paid the amounts and obtainedthe receipts marked as Exhibit B.31. 30. Based on the contentions raised by the learned counselsappearing for the parties concerned and in view of the evidenceavailable and on a perusal of the records available before thisCourt, it is clear that the appellant/plaintiff had not fulfilledthe conditions stipulated in the sale agreement, dated 27.9.1980.The documents marked as Exhibits in favour of therespondent/defendant would show that the appellant/plaintiff hadcoerced the respondent/defendant into executing the saleagreement, dated 27.9.1980, as held by the first appellate Court. 31. On appreciation of the documents marked before the firstappellate Court by the respondent/defendant, the first appellateCourt had come to the conclusion that the sale agreement, dated27.9.1980, marked as Exhibit A.1, is not true and that it is https://hcservices.ecourts.gov.in/hcservices/ invalid. Even though it was open to the appellant/plaintiff tohave resisted marking of the documents before the first appellateCourt and to agitate the matter thereafter in the manner known tolaw, he did not do so, as seen from the records. 32. In such circumstances, it is not open to theappellant/plaintiff to contend that such documents ought not tohave been marked at the stage of the first appeal. Hence, thisCourt is of the considered view that the appellant/plaintiff hasnot shown sufficient cause or reason to interfere with thejudgment and decree of the first appellate Court, dated 31.1.1995made in A.S.No.110 of 1994. Accordingly, the second appeal standsdismissed. Consequently, connected C.M.P.No.5981 of 1998 isdismissed. No costs. Sd/-Asst. Registrar./true copy/Sub Asst. RegistrarTo:1. The Sub Court, Villupuram2. The Additional District Munsif, Kallakurichi3. The Section OfficerVR Section,High Court, Madras1 cc to Mr.V. Raghavachari, Advocate, Sr. 21399S.A.No.824 of 1996SP (CO)kk 21/11