Selvaraj v. Anand Babu & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 23-02-2010CoramTHE HONOURABLE MRS. JUSTICE R. BANUMATHIandTHE HONOURABLE MR. JUSTICE A. ARUMUGHASWAMYA.S. No. 179 of 2007 Selvaraj.. Appellant/PlaintiffVersus1. Anand Babu2. Citi Babu3. Umesh Babu4. Shoba5. Susheela.. Respondents/Defendants Appeal filed under Section 96 of CPC against the Judgment and Decree made in O.S. No. 137 of 2005 dated 20.11.2006 on the file ofthe Principal District Judge, Villupuram. For Appellant: Mr. T.R. Rajagopalan, Sr. Counselfor Mr. T.R. RajaamanFor Respondents :Mrs. Hema Sampath, Sr. Counselfor Ms. Meenal for RR1 to 3 & 5R4 given upJUDGMENTA. ARUMUGHASWAMY, JThe unsuccessful Plaintiff in O.S. No. 137 of 2004 is theappellant in this appeal. The suit in O.S. No. 137 of 2004 was filedby the Plaintiff for specific performane of the agreement of saledated 06.04.1997 said to have been executed between himself and thefather of the defendants/respondents herein namely ThulasiramanNaidu.

For the sake of convenience, the parties shall be referredto as they were arrayed before the trial court, as Plaintiff and Defendants.

The facts leadiing to the filing of the suit was that theplaintiff and the father of the respondents namely Thulasiraman Naidu https://hcservices.ecourts.gov.in/hcservices/ have entered into an agreement of sale dated 06.04.1997, Ex.A1,thereby the said Thulasiraman Naidu agreed to sell the suit propertyto the plaintiff for a total sale consideration of Rs.8,90,000/-. Onexecution of the sale agreement dated 06.04.1997, the saidThulasiraman Naidu also received a sum of Rs.7,50,000/-. Accordingto the plaintiff, the period for completion of sale was one year. But even after expiry of the period, the said Thulasiraman Naidu hasnot come forward to execute the sale deed in his favour. In themeantime, on 28.05.1998, the said Thulasiraman Naidu died leavingbehind the defendants/respondents herein as his legal heirs. Therefore, a notice dated 29.08.1998, Ex.A2 was issued by theplaintiff to the defendants calling upon them execute the sale deedin his favour by receiving the balance sale consideration ofRs.1,40,000/-. On receipt of the notice, a reply notice dated07.09.1998 was issued by the respondents by specifically claimingthat the sale agreement dated 06.04.1997, Ex.A1 said to have beenexecuted by their father is not true and it is a ranked forgery. Inview of the refusal by the respondents to execute the sale deed, theplaintiff has filed the suit.

Resisting the suit, the defendants filed written statementdenying execution of any agreement of sale. According to defendants, Thulasiraman Naidu had money transactions with the plaintiff and heused to borrow money from the plaintiff and as security for loanamount advanced by the plaintiff, the plaintiff has taken signatureof Thulasiraman Naidu and other Defendants only for the sake ofsecurity. The defendants further averred that the plaintiff has inhis custody some more stamp papers and the suit agreement has beenfabricated using such signed blank stamp papers. The defendants havealso averred that the property would fetch more than Rs.50,00,000/-and prayed for dismissal of suit.

Before the trial below, the plaintiff examined himself asPW1 and two other witnesses as PWs 2 and 3. On behalf of the Plaintiff, Exs. A1 to A3 were marked. On the side of the defendants, the first defendant examined himself as DW1 along with two otherwitnesses as Dws 2 and 3. The defendants have marked Exs. B1 to B4.Upon analysis of evidence, the trial court held that the plaintiffhas not proved Ex.A1 – agreement of sale and arrived at theconclusion that the plaintiff is not entitled to specificperformance. Insofar as alternative prayer for refund of advanceamount, the learned trial Judge held that the plaintiff has notproduced any document to show that he was in possession ofRs.7,50,000/- on the date of sale agreement and on those findings, learned trial Judge negatived the alternative prayer for refund ofadvance amount.

We have heard the counsel for both sides. The points forconsideration in this appeal are (i) Whether Ex.A1, agreement of sale said to https://hcservices.ecourts.gov.in/hcservices/ have been executed between the plaintiff andfather of the defendants namely Thulasiraman Naiducan be relied upon to grant a equitable decree forspecific performance in favour of the Plaintiff?ii)Whether the Plaintiff is entitled forthe alternative prayer for refund of the advanceamount, as prayed for?7. The learned Senior counsel appearing for theplaintiff/appellant has mainly made three-fold argument. The firstand foremost submission of the learned Senior counsel for theplaintiff/appellant is that the defendants have taken inconsistentstand in the reply notice, Ex.A3 and in the written statement asregards the execution of Ex.A1, Sale Agreement and that alone issufficient to decree the suit. Secondly, the defendants haveadmitted the signature of their father Thulasiraman Naidu in Ex.A1,agreement of sale and therefore, the appeal has to be allowed. Thethird contention of the learned Senior counsel for theplaintiff/appellant is that if this Court is not inclined to grantthe relief of specific performance, the alternative relief for refundof advance amount may be considered.

The learned Senior counsel appearing for thedefendants/respondents would contend that except the suggestion putby the counsel for the plaintiff before the court below and theconsequent admission of DW1 regarding the signature of his fatherThulasiraman Naidu in Ex.A1, sale agreement dated 06.04.1997, nothinghas been established by the plaintiff and the plaintiff wants adecree to be passed on the mere suggestion of the counsel for thedefendants regarding the signature contained in Ex.A1 irrespective ofso many laches on the part of the plaintiff.

The plaintiff in his evidence has stated that the deceasedThulasiraman Naidu has entered into an agreement of sale, Ex.A1 withhim thereby he specifically agreed to sell the suit property for asale consideration of Rs.8,90,000/- and on execution of Ex.A1, thesaid Thulasiraman Naidu has received Rs.7,50,000/- as sale advancefrom him. According to the plaintiff, he was always ready andwilling to perform his part of the contract to get the sale deedexecuted in his favour by tendering the balance sale consideration ofRs.1,40,000/-.

The first defendant in his evidence as DW1 has stated thatother defendants are his brother, sister and the fifth defendant isthe widow of Late. Thulasiraman Naidu. It is also admitted that hisfather Thulasiraman Naidu died on 28.05.1998. Further it was statedthat he is a native of Tindivanam and the suit property is theirancestral property. Further he would say that his mother, the fifthdefendant, is running a School at Bangalore and the Plaintiff is amoney lender. https://hcservices.ecourts.gov.in/hcservices/

In the backdrop of the evidence let in by PW1 and DW1, it isto be seen whether the defendants have raised inconsistent defenceand on that ground the suit has to be decreed or not. According tothe plaintiff, he has issued Ex.A2, legal notice to the defendantsfor which a reply was sent by the defendants, Ex.A3 specificallydenying the execution of agreement of sale and claimed it as a rankedforgery. Therefore, according to the plaintiff, the plea of forgerywas projected by the defendants only to escape from their liabilityto execute the sale deed. PW1 was also cross-examined on thisaspect.

The Plaintiff, who was examined as PW1, in his cross-examination by the defendant's counsel has deposed as follows::-th/rh/M/1 Mtzj; jpy; ifbaGj;Jf;fs; Vw;bfdnt bgwg; gl; Lthrf';fs; gpwF jl; lr;R bra; ag; gl; lJ vd; why; rhpay;y/ mjdhy; jhd; 2tJgf; fj; jpy; ,lk; tpl;L jl; lr;R bra; ag; gl; Ls;sJ vd; why; rhpay;;y///////// mJ nghy; th';fg; gl;l ifbaGj;ij gad; gLj;jp th/rh/M/1 tHf;fpw; fhf n$hof; fg; gl; lJvd;W brhd; dhy; rhpay;y/13. From the above deposition of PW1, it is clear that exceptthe aforesaid suggestion, the plaintiff could not prove his case. The vehement contention of the defendant is except the abovesuggestion, the plaintiff has miserably failed to prove his case. Further, the Plaintiff has also taken inconsistent stand through outthe case. The vehement contention of the defendants is Ex.A1, saleagreement is not reliable and it has not come into existence ascontended by the plaintiff. The defendants relied on threecircumstances to disprove the recitals found in Ex.A1. According tothe defendants, Ex.A1, sale agreement was dated 6th April 1997. Asper Ex.A1, the sale consideration agreement upon was Rs.8,90,000/-and the advance amount said to have been paid by the plaintiff wasRs.7,50,000/- and the balance sale consideration was Rs.1,40,000/-.The time for performance of the contract mentionex in Ex.A1 was oneyear. The father of the defendants namely Thulasiraman Naidu is asignatory to Ex.A1. The said Thulasiraman Naidu died on 28.05.1998.Thereafter, the notice, Ex.A2 dated 29.08.1997 was issued by theplaintiff for which the reply notice, Ex.A3 dated 07.09.1998 wasissued bythe defendants. In that reply notice, of course, thedefendants have stated that Ex.A1 is a ranked forgery. In the replynotice, it was specifically stated that "My clients state that thesale agreement dated 06.04.1997 alleged to have been executed by andbetween your client and Thulasiraman Naidu for himself and on behalfof my client No.3, a minor then and my clients 1 and 2 must be aranked forgery one. "

According to plaintiff, he has parted away Rs.7,50,000/- tothe father of the defendants at the time of execution of Ex.A1. In https://hcservices.ecourts.gov.in/hcservices/ Ex.A1, no reasons have been mentioned for specification of time ofone year for completion of sale. Even in his evidence, the plaintiffhas not stated as to why one year time was fixed for completion ofsale. Further, during cross-examination of PW1, he has admitted thathe has not measured the property or obtained Encumbrance Certificatefrom registration department to verify the encumbrance over the suitproperty. The Plaintiff pleaded ignorance when a suggestion was putto him as to whether the copy of the agreement of sale Ex.A1 wasfurnished to the deceased Thulasiraman Naidu. This creates suspicionas to whether really Ex.A1 was executed between the parties, aspleaded by the Plaintiff.

Yet another circumstance which led to suspicion is thatEx.A1, according to the plaintiff, was prepared by the advocate, whereas, during his cross-examination, he has admitted that it wasprepared in stamp paper having denomination of Rs.200/-. From thisevidence, it is clear that if Ex.A1 was really prepared by theadvocate, it would not have been typed under stamp paper forRs.200/-. Further, the plaintiff in his cross-examination hasdeposed as under:- "th/rh/M/1 xnu Mtzk; jhd;/ mjw;F efy; vJt[k; vGjg; gltpy; iy/,jd; b$uhf;!; efy; vJt[k; Jsrpuhkplk; bfhLf;fg; gl; lJ vdf;F bjhpahJ/thrf';fis gp/ r';fud; vd;w tHf;fwp"h; jahh; bra; jhh;/ ouhg;l; xg; ge; jk; cs; sjh vd; gJ bjhpahJ//////jhth brhj;J mse;J ghh;f;fg; gltpy; iy/ mjpfkhd bjhif bfhLj;Js;nshk; vd; gjhy; U:/200-? kjpg;g[s;sKj;jpiuj; jhs; th';fpndd;/ 16. It is evident from the deposition of PW1 that it is notnatural and trustworthy. It was contended by the learned seniorcounsel for the defendants/respondents that the evidence of PWs 2 and3 were not reliable and their evidence has to be discarded fromconsideration. PW2 in his evidence has admitted that he is doingmoney lending business. During his cross-examination, he admittedthat at the time of preparation of document, Ex.A1, he was notpresent. To a suggestion put to him, he has stated that theplaintiff is not a money lender. Further he has stated that he isnot aware of the sale transaction between the plaintiff and thefather of the defendants. Therefore, we hold that the evidence ofPW2 no way helps the plaintiff to sustain his claim and he can beranked as a chance witness. Moreover, the plaintiff himself hasadmitted that at the time of execution of Ex.A1, PW1 was not present.

To prove the execution of Ex.A1, the plaintiff relied on theevidence of PW3. The PW3 has deviated from the evidence of PW2 andstated that the agreement, Ex.A1 was prepared at the residence of theplaintiff. He further deposed that he was informed that it wasprepared by one Sankaran, Advocate. He further deposed that Sankaran, Advocate has prepared a draft and thereafter it was typed. Further, in Ex.A1, Sankaran advocate himself has signed, but he has https://hcservices.ecourts.gov.in/hcservices/ not seen the said Sankaran signing the Ex.A1. From the evidence ofPW3, who gave a different version regarding the execution of Ex.A1,we hold that the genesis of Ex.A1 creates suspicion through out.

Thulasiraman Naidu was working as Veterinary Doctor. Thedefendants are running a Nursery School, Higher Secondary School and Pre-University College at Bangalore. In his evidence, DW1 has statedthat for running the institution, they received some amount from PW1– plaintiff. The oral evidence of PW1 that they had moneytransactions with the defendants was strengthened by Exs. B1 toB4,discharge promissory notes. Further, the defendants have also put asuggestion to the plaintiff that whether the typing in Page No.2 ofEx.A1 has been made so as to suit the signature already made therein. On a perusal of Ex.A1, agreement of sale, we find that the defendantis justified in making such a suggestion. Therefore, we are of theview that the genesis of Ex.A1 is not as spoken to by PW1 and itcreates a doubt in the minds of this Court. Moreover, the plaintiffhas not discharged his burden to prove the execution of Ex.A1, saleagreement inasmuch as the defendant has specifically stated in thereply notice, Ex.A3 that the agreement of sale, Ex.A1 is a rankedforgery. Therefore, the burden of proving the execution of Ex.A1,sale agreement is fully cast upon the plaintiff, which in ourconsidered view was not satisfactorily discharged by the plaintiff. The findings of the trial court that the plaintiff has not proved thegenuineness of Ex.A1, sale deed, is based upon evidence and we do notfind any reason to take a different view.

The learned senior counsel for the defendants contended thatthe relief of specific performance is an equitable relief and it isleft to the discretion of the Court to grant such a remedy and itcannot be granted automatically. In this context, the learned Seniorcounsel brought to the notice of this Court the decision reported in(Parakunnan Veetil Joseph's son Mathew vs. Nedumbara Karuvila's Sonand others) AIR 1987 Supreme Court 2328 wherein it was held that"Section 20 preserves judicial discretion to Courts as to decreeingspecific performance. The Court should meticulously consider allfacts and circumstance of the case. The Court is not bound to grantspecific performance merely because it is lawful to do so. Themotive behind the litigation should also enter into the judicialverdict. The Court should take care to see that it is not used as aninstrument of oppression to have an unfair advantage to theplaintiff. "

It is clear from the aforesaid decision that as per Section20 of the Specific Relief Act, the relief of specific performance isa discretionary relief left to the Court. In this case, inasmuch theplaintiff failed to discharge his burden to prove the execution of https://hcservices.ecourts.gov.in/hcservices/ agreement of sale, Ex.A1, in our view, Ex.A1 cannot be accepted orrelied upon to base a conclusion and it has to be discarded. We areof the view that the learned trial Judge rightly declined to grantthe relief of specific performance.

The learned senior counsel for the plaintiff contended thatif the decree for specific performance cannot be ordered, atleast the Court can grant the alternative prayer for refund of advance amount.

In view of our aforesaid conclusion that Ex.A1 is notreliable and its execution has not been proved by the plaintiff, weare not inclined to grant the alternative prayer sought for by theplaintiff. Merely because the first defendant has admitted thesignature of his father Thulasiraman Naidu in Ex.A1, that by itselfwill not be sufficient to rely upon the agreement of Sale, Ex.A1 andone cannot come to the conclusion that the execution of Ex.A1 isadmitted by the defendants. The defendants have produced Ex.B1 toB4, discharge pronotes said to have been executed in favour of theplaintiff. Mere production of those discharge pronotes will not besufficient to hold that the defendants have executed the pronotes infavour of the plaintiff and on that basis, this Court cannot come tothe conclusion that the plaintiff advanced money of Rs.7,50,000/- to Thulasiraman Naidu, father of defendants. Likewise, the thirddefendant has not supported the case of the other defendants will notbe a ground in favour of the plaintiff to decee the suit. As pointedout by the learned trial Judge, the plaintiff has not produced anydocuments to show that he was in possession of Rs.7,50,000/- on thedate of sale agreement nor he has produced any evidence to show themode of payment of such huge amount of Rs.7,50,000/-. Therefore, wehold that the plaintiff failed to prove the execution of Ex.A1 andfurther, he has miserably failed to prove that on the date ofexecution of Ex.A1, he was having sufficient means of Rs.7,50,000/-which was said to have been paid to the father of the defendantsThulasiraman Naidu.

On consideration of all these factors, we hold that theplaintiff is not entitled to the discretionary relief of specificperformance and resultantly, we see no grounds to interfere with thedecree and judgment passed by the Court below. Consequently, weanswer both the points against the plaintiff.

In the result, the appeal fails and it is dismissed. In thefacts and circumstance of the case, there shall be no order as tocosts. Sd/- Asst. Registrar./true copy/ Sub Asst. Registrar.rsh https://hcservices.ecourts.gov.in/hcservices/ ToThe Principal District JudgeVillupuram+ 1 cc to M/S.R.Meenal, Advocate, Sr 12139+ 1 cc to Mr.T.R.Rajaraman, Advocate, Sr 12116 Judgment inAS No. 179 of 2007AR (CO)RH (19.3.10)