M.Sekar ... Appellant / Defendant v. P.Madeshwaran... Respondent / Plaintiff

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:19.04.2012CORAMTHE HONOURABLE MR. JUSTICE S.TAMILVANANSecond Appeal No.1283 of 2011& M.P.No.1 of 2011M.Sekar ... Appellant / Defendant vs.P.Madeshwaran... Respondent / PlaintiffThis Second Appeal is preferred under Section 100 CPC against thejudgment and decree in A.S.No.6 of 2010 dated 15.03.2011 on the fileof the Principal District Judge, Namakkal, confirming the judgmentand decree made in the suit in O.S.No.429 of 2000 dated 10.12.2009 onthe file of the Sub Judge, Namakkal.For Appellant : M/s.T.DhanyakumarFor Respondent : Mr.P.ValliappanJ U D G M E N TThe Second Appeal has been preferred challenging the judgment anddecree passed in A.S.No.6 of 2010 dated 15.03.2011 on the file of thePrincipal District Judge, Namakkal, confirming the judgment anddecree made in the suit in O.S.No.429 of 2000 dated 10.12.2009 on thefile of the Sub Judge, Namakkal.2.It is seen that the appellant/defendant has raised thefollowing Substantial Questions of Law for consideration of thisSecond Appeal:"a. Whether the plaintiff has established his readiness andwillingness specifically to perform his part of theAgreement of saleb. Whether the Ex.A1 was executed for the loan transactionand the defendant had intention to sell the property."3.The respondent/plaintiff has filed the suit seeking a decreefor specific performance of contract based on an agreement of salemarked as Ex.A1. As per the averments of the plaint, the agreement https://hcservices.ecourts.gov.in/hcservices/ dated 27.05.1997 was entered into between the appellant and therespondent and admittedly, it is a registered document.4.Learned counsel appearing for the appellant/defendant submitsthat Ex.A1 was executed only as a supporting document for a loantransaction between the appellant and the respondent, though thedocument reads as an agreement for sale. Learned counsel appearingfor the appellant/defendant further submits that as per the documentEx.A1, sale consideration is stated at Rs.1,10,000/-, however,Rs.1,00,000/- was paid as advance and part of sale consideration, andtherefore, there is no need for the respondent/plaintiff to wait till03.05.2000 and to issue a legal notice dated 03.05.2000 seekingspecific performance based on the agreement of sale dated 27.05.1997to the appellant/defendant and according to him, during the abovesaid period, the value of the property was raised to Rs.3,00,000/-per acre. 5.Per contra, learned counsel appearing for therespondent/plaintiff submits that the sale agreement is a registereddocument and admittedly entered into between the respondent/plaintiffand the appellant/defendant, hence the averments and the genuinenessof the document cannot be disputed by the appellant/dependent. Whenthe document reads as an agreement for sale, it is not open to theappellant to raise a self- contradictory defence against the EvidenceAct, stating that it is not an agreement for sale, but only adocument relating to loan transaction. 6.Learned counsel appearing for the respondent/plaintiff drew theattention of this Court to Section 92 of the Indian Evidence Actand argued that it is made clear that the oral evidence cannotimpeach any documentary evidence. As contended by the learnedcounsel appearing for the appellant/defendant, the document Ex.A1reads as an agreement of sale, hence, the appellant/defendant isestopped from raising a oral plea that Ex.A1 is a document relatingto a loan transaction and not an agreement for sale against theaverments of the document. Pursuant to the agreement, theappellant/defendant received a sum of Rs.1,00,000/- as part of saleconsideration and the balance was only Rs.10,000/-. It is not indispute that the respondent herein had issued pre-suit legal noticedated 03.05.2000 demanding the appellant/defendant to execute saledeed after receiving the balance of sale consideration. On theaforesaid circumstances, the appellant/defendant cannot raise a pleathat the respondent/plaintiff was not ready and willing to performhis part of the contract. The first Substantial Question of Lawraised by the appellant/defendant is whether the respondent/plaintiffhas established his readiness and willingness to perform his part ofthe agreement of sale. However, the appellant/defendant has raised aplea that the registered agreement for sale is only a documentrelating to a loan transaction. Therefore, he cannot say that he wasready and willing to perform his part of the contract. Hence, the https://hcservices.ecourts.gov.in/hcservices/ first Substantial Question of Law cannot be construed as a realsubstantial question of law as contemplated under Section 100 ofCivil Procedure Code. The Second Substantial Question of law raisedby the appellant/defendant is that, Ex.A1 is only a document relatingto a loan transaction and there was no intention for the appellant tosell the property. On the side of the respondent/plaintiff arguedthat the aforesaid version cannot be accepted in view of theaverments available on record, since the documentary evidence cannotbe impeached by way of subsequent averments and oral evidence of theappellant. 7.Learned counsel appearing for the appellant/defendant submittedthat the respondent/plaintiff has not established his readiness andwillingness to perform his part of agreement for sale and, accordingto him, Ex.A1 was executed only towards a 'loan transaction' asstated in the written statement and the appellant/defendant had nointention to sell the property. In support of his contention,learned counsel for the appellant/defendant relied on the decision inVALLITHAI V. ARULRAJ, (2007) 5 MLJ 222, wherein, while dealing withSections 16 and 20 of Specific Relief Act (47 of 1963) and Section 92of Indian Evidence Act (1 of 1872) in a suit for specific performanceof contract, this Court (V.Dhanapalan, J) has held that when theplaintiff has not established the validity of sale agreement on thebasis of which the relief of specific performance is claimed and thedefendant has let in contra evidence raising a plea that thedocument in question is only a mortgage deed and that the plaintiffwould not be entitled to a decree for specific performance,notwithstanding the fact that the alleged sale agreement, wasregistered.8.It is seen that the suit relating to the Second Appeal wasfiled by the respondent herein as plaintiff based on the registeredsale agreement dated 27.05.1997. The respondent/plaintiff has statedthat the sale agreement was executed by the appellant/defendantgetting an advance amount of Rs.1,00,000/- as part of saleconsideration and after getting the balance amount of Rs.10,000/-, hehas to execute the sale deed as per the agreement. However, theappellant/defendant failed to perform his part of contract to executethe sale deed after receiving the balance of sale consideration,hence, the suit was filed. On the other hand, theappellant/defendant has stated that there is no agreement for salebetween the appellant and the respondent and according to him, theappellant was in need of money a sum of Rs.1,00,000/-, for which therespondent/plaintiff asked him to execute a registered sale agreementfor advancing the loan amount. Hence, on a compelling circumstances,the appellant/defendant had executed Ex.A1-registered agreement andtherefore, the respondent/plaintiff is not entitled to seek specificperformance of the contract. https://hcservices.ecourts.gov.in/hcservices/

9.Learned counsel appearing for the appellant/defendant, insupport of his contention relied on a decision in SHANTHI KAWARBAI V.SUSHILA, 2009 (4) CTC 842, whereunder, a Division Bench of thisCourt (M.Chockalingam and R.Subbiah, JJ) has held as follows:"It is well settled proposition of law that readiness andwillingness must be from the very commencement of theagreement till the completion of the contract. While thereadiness must actually indicate the financial position ofthe purchaser to make payment of consideration, thewillingness must speak of his frame of mind. In theinstant case, a careful scrutiny of the materials wouldindicate that they are contrary to the contentions putforth by the respondent/plaintiff's side that she wasready and willing to perform the contract."10.In N.P.THIRUGNANAM V. DR.R.JAGAN MOHAN RAO, 1995 (5) SCC 115,the Hon'ble Apex Court has held that Specific Performance is anequitable remedy and it is the discretion of the Court, however,such discretion requires to be exercised according to settledprinciples of law and not arbitrarily as adumbrated underSection 20 of the Specific Relief Act, 1963. The relevantportion of the decision reads as follows:"5... ... ... Under Section 20, the Court is not bound togrant the relief just because there was a valid agreementof sale. Section 16(c) of the Act envisages that plaintiffmust plead and prove that he had performed or has alwaysbeen ready and willing to perform the essential terms ofthe contract which are to be performed by him, other thanthose terms the performance of which has been prevented orwaived by the defendant. The continuous readiness andwillingness on the part of the plaintiff is a conditionprecedent to grant the relief of Specific Performance. Thiscircumstance is material and relevant and is required to beconsidered by the Court while granting or refusing to grantthe relief. If the plaintiff fails to either aver or provethe same, he must fail. To adjudge whether the plaintiff isready and willing to perform his part of the contract, theCourt must take into consideration the conduct of theplaintiff prior and subsequent to the filing of the Suitalong with other attending circumstances. The amount ofconsideration which he has to pay the defendant must ofnecessity be proved to be available. Right from the dateof the execution till date of the decree he must prove thathe is ready and has always been willing to perform his partof the contract. As stated, the factum of his readinessand willingness to perform his part of the contract is tobe adjudged with reference to the conduct of the party andthe attending circumstances. The Court may infer from the https://hcservices.ecourts.gov.in/hcservices/ facts and circumstances whether the plaintiff was ready andwas always ready and willing to perform his part of thecontract."11. In AZHAR SULTANA V. B.RAJAMANI AND OTHERS, 2009 (3) SCALE159, the Hon'ble Apex Court has held thus:"17. Section 16(c) of the Specific Relief Act, 1963postulates continuous readiness and willingness on the partof the plaintiff. It is a condition precedent for obtaininga relief of grant of Specific Performance of contract. TheCourt, keeping in view the fact that it exercises adiscretionary jurisdiction, would be entitled to take intoconsideration as to whether the Suit had been filed within areasonable time. What would be a reasonable time would,however, depend upon the facts and circumstances of eachcase. No hard and fast law can be laid down therefor."12.the written statement, the appellant/defendant has admittedthat he had executed a registered document dated 27.05.1997, markedas Ex.A1. However, he raised a plea that he had signed in thedocument considering it as a document relating to the loan obtainedby him. In the proof affidavit filed by the appellant/defendant asD.W.1, he had stated that he was in need of an amount ofRs.1,00,000/- and the said amount was advanced by therespondent/plaintiff, for which, he had agreed to pay interest at therate of Rs.2/- for Rs.100/- per month. For the same, the saleagreement for a consideration of Rs.1,10,000/- was executed by himand that he paid interest for about one year. However, he hasadmitted that he had not obtained any receipt for the alleged paymentof the interest.13. It is well settled that documentary evidence cannot beimpeached by oral evidence except in any abnormal circumstances wherethere is legally acceptable evidence available against the document.In the instant case, admittedly, Ex.A1-Sale agreement was executedand registered, hence, as per sub section (e) of Section 114 of theIndian Evidence Act, it has to be presumed that being an official acthas been regularly performed, until the contrary is proved. Ex.A1 isa registered sale agreement as per the averments and the registrationof the document. Admittedly, it was signed by theappellant/defendant, however, contrary to avements made therein, theappellant/defendant has stated that the same was executed by himtowards a loan transaction, for which, he paid interest at 24% p.a.for about one year. Even according to him, for the payment of allegedinterest, there is no supporting document. It is seen that theappellant/defendant has simply made his averments in the writtenstatement against the registered document and also deposed theevidence against the registered agreement for sale and as per hisoral evidence, the said document was executed towards loan https://hcservices.ecourts.gov.in/hcservices/ transaction. The brother of the appellant/defendant, who wasexamined as D.W.2 has also admitted that the aforesaid Ex.A1 wasexecuted on 27.05.1997 wherein he signed as one of the witnesses, forwhich, the appellant/defendant received a sum of Rs.1,00,000/-.However, he has deposed his oral evidence that it was a documentexecuted towards a loan transaction and his brother, the appellantherein had no intention to sell the suit property as per thedocument, Ex.A1. The appellant/defendant who executed Ex.A1,registered sale agreement and D.W.2, his brother, one of theattestors to the document are estopped from adducing oral evidenceagainst the document. 14.However, PW1 has deposed that Ex.A1 was executed by theappellant/defendant for which, he received an advance amount and partof sale consideration of Rs.1,00,000/- out of total saleconsideration fixed at Rs.1,10,000/- as stated in the document. InEx.A1 registered sale agreement, the appellant and the respondenthave signed as parties to the document. P.W.2 and D.W.2 have alsosigned as attestors to the said document. P.W.2 has deposed evidenceas per the averments of the document, supporting the case of therespondent/plaintiff whereas D.W.2, who is brother of theappellant/defendant though admitted that he was one of the attestorsto the registered document and also not disputing the passing ofsale consideration of Rs.1,00,000/- has given evidence against theaverments of the document, whereby, he has stated that his brother,the appellant/defendant had no intention to sell the suit property.Having admitted his signature as an attestor to a registereddocument, if a person turned round and adduce oral evidence againstthe document, in view of Section 114 (e) of Indian Evidence Act, eventhe conduct of such a person as improper and not trustworthy. It isnot the case of the appellant/defendant that Ex.A1, registereddocument was obtained under threat and coercion. Even if it is so, hecould have lodged a complaint immediately after the execution of thedocument. It is not in dispute that the document was executed by theappellant/defendant and registered before the concerned Sub RegistrarOffice in the presence of his brother, who was examined as D.W.2. Asper Ex.A1, the amount of Rs.1,00,000/- was received by theappellant/defendant and therefore, the unreasonable averments of theappellant/defendant that it was a document pertaining to a loantransaction and interest was paid to the respondent/plaintiffregularly for about one year, by the appellant/defendant, withoutgetting any receipt from the respondent/plaintiff could not beaccepted by any prudent man. The evidence available on record wouldclearly establish that the appellant/defendant has raised only anunreasonable and unsustainable defence against the suit claim. 15.Having considered the oral and documentary evidence and alsoconcurrent finding of the Court below, this Court is of the view that https://hcservices.ecourts.gov.in/hcservices/ the suit has been properly decreed by the trial Court and the samewas confirmed by the first Appellate Court. The respondent/plaintiffhad issued legal notice dated 03.05.2000, a copy of which was markedas Ex.A2, to the appellant/defendant, since the appellant/defendantwas not ready to receive the balance of consideration Rs.10,000/- andperform his part of contract by way of executing sale deed. Thelegal notice was received by the appellant/defendant under Ex.A3-Postal Acknowledgment. However, no reply was sent by theappellant/defendant for the reasons best known to him. Had the amountbeen received by the appellant/defendant from therespondent/plaintiff towards a loan transaction as alleged by theappellant/defendant, he could have executed only a promissory note ora mortgage deed and there could be no need to execute the registeredagreement for sale and to entrust his original sale deed relating tothe property to the respondent/plaintiff. After executing theagreement of sale, the appellant/defendant cannot raise a plea thatthe alleged document is only a loan transaction and not an agreementof sale though the document reads only a sale deed. As per theevidence, it is crystal clear that the appellant/defendant was notready to perform his part of contract whereas therespondent/plaintiff was ready and also issued legal notice seekingspecific performance of contract.16.On the side of the respondent/plaintiff, even the originalsale deed, dated 27.05.1997, entrusted to the respondent/plaintiff bythe appellant/defendant was also produced and marked. Had there beenno sale agreement, there could be no need for the appellant/defendantto hand over his original sale deed, dated 23.09.1989 to therespondent/plaintiff to be marked as Ex.A4.17.The aforesaid facts and circumstances of the case wouldclearly establish that the respondent/plaintiff was ready andwilling to perform his part of agreement of sale whereas theappellant/defendant was not ready and willing even after receivingthe legal notice. Having accepted the execution of the registereddocument, Ex.A1, the appellant/defendant is not entitled to disputethe averments of the document by his inconsistent and self-contradictory version and the oral evidence of theappellant/defendant would not impeach the documentary evidence. Thelegally unsupported self-contradictory version of theappellant/defendant would not prove any rebuttal presumption underSection 114(e) of the Evidence Act. Hence, this Court is of the viewthat there is no error or infirmity in the impugned judgment passedby the Court below. Accordingly, the Substantial Questions of Law(a) and (b) are answered against the appellant/defendant and infavour of the respondent/plaintiff. https://hcservices.ecourts.gov.in/hcservices/

18.In the result, the Second Appeal is dismissed with costs.Consequently, connected miscellaneous petition is closed. No order asto costs.Sd/Asst. Registrar.//true copy// Sub Asst. Registrar.To1. The Principal District Judge, Namakkal.2. The Sub Judge, Namakkal.+1 cc to Mr. P. Valliappan, Advocate, Sr. No.26372+1 cc to Mr. T. Dhanyakumar, Advocate, Sr. No.26280S.A. No.1283 of 2011 &M.P. No.1 of 2011nm (co)rnk/17.12.13