Bangaru Chettiar v. B.B.Lalitha (Died)

In the High Court of Judicature at MadrasDated:- 15.7.2009Coram :-The Honourable Mrs. Justice PRABHA SRIDEVAN and The Honourable Mr.Justice C.T.SELVAML.P.A.No.61 of 20021.Bangaru Chettiar2. B.Ravidhandran3. B.Kumar ... Appellants/Appellants/Defendants 2 to 4Vs.

B.B.Lalitha (Died)

M.N.Mothilal (Died)

B.B.Premnath4. B.B.Arunkumar... Respondents/Respondents/1st Defendant (Respondents 3 and 4 brought on record as legal representatives ofthe deceased R1 vide order of the court dated 17.6.2009 made inC.M.P.Nos. 867 to 869 of 2009. Recorded the death of 2nd respondentand appellants are permitted to proceed with the appeal vide orderof court dated 17.6.2009 made in memo dated 17.11.2008)Prayer: Letters Patent Appeal filed under Clause 15 of the Letters Patent against the judgment and decree of the learned singleJudge dated 30.4.2001 made in A.S.No.20 of 1988. For Appellant :- Mr.V.Raghavacharifor Mr.P.AnandakumarFor Respondent :- Mr.Chinnasamy, Senior Counsel for Mr.B.R.Ramesh Babu R3 and R4R1 - DiedR2 - Died https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT(Judgment of the Court was delivered by PRABHA SRIDEVAN ,J..) The defendants 2 to 3 in the suit for specific performanceare before us having lost both before the trial Court and thelearned single Judge.

A written statement was filed by the second respondentherein where the allegations in the plaint were denied relatingto the agreement dated 24.3.1979 and relating to the alleged fraud https://hcservices.ecourts.gov.in/hcservices/ played by the second respondent obtaining signature in two sets ofdocuments. In para 8 of the written statement filed by the secondrespondent it was pleaded that the allegation that the agreementdated 15.7.79 is not true and only the agreement dated 24.3.1979is true is not correct. According to him the first respondent wasnever ready and willing to perform her part of contract and thatthe alternate relief cannot be claimed by the first plaintiff. Shehad put up a totally false case for endlessly and fraudulentlycontinuing in possession of the property.

The second defendant who is the first appellant herein filedthe written statement denying all the allegations in the plaintand referring to an agreement with the second respondent dated3.8.1978. According to him he had a valid decree obtained in O.S.No.20 of 1982 and the sale deed had also been executed by the Court inhis favour on 20.12.1982 and duly registered.

A separate written statement was also filed by theappellants 2 and 3 who pleaded that the very fact that theplaintiff seeks to enforce one agreement after denying it showsthat there is no valid contract. An additional written statement wasfiled by the second respondent herein, where he had referred tothe agreement with the appellant and denied any collusion betweenthem. The first appellant also filed a written statement denyingthe collusion and fraud.

The learned Additional Subordinate Judge, Salem framed asmany as eight issues and decreed the suit. The learned single Judgealso confirmed the said decree.

The learned counsel appearing for the appellants submittedthat this was a case where the plaintiff denied the agreement dated15.7.1979 and when it is so, both the courts ought not to havegranted a decree for specific performance of the said agreement. The learned counsel submitted that both in the reply notice andas well as in the plaint she had attacked the agreement dated15.7.1979 as one obtained by fraud. In those circumstances neithercan specific performance be granted on the basis of an agreementthat has been denied by the plaintiff herself as fraudulent norcan there be any readiness and willingness to perform as per thesaid agreement which the plaintiff herself attacks as fraudulent.

The learned counsel submitted that the appellants hereinhad in their favour an agreement even prior to the agreement whichis the basis of the suit and had also obtained a decree in theirfavour and the title now stands in the name of the appellants. Therefore against the decree they have the right to appeal. Whenthere is a decree against them to execute the sale deed inaccordance with the agreement dated 15.7.1979, they can maintain an https://hcservices.ecourts.gov.in/hcservices/ appeal against the plaintiff.

The learned counsel submitted that whether the firstdefendant referred to the agreement in their favour at the earliestopportunity or not is not a relevant factor for the courts todecide whether there should be a decree for specific performancein favour of the plaintiff. The plaintiff must establish that shehas made out a case for the Court to direct the execution of thesale deed in her favour and for that she should prove that therewas an agreement in her favour and that she was ready and willingto perform in accordance with the agreement.

The learned counsel submitted that in the present case theplaintiff herself was uncertain that which was the agreement thathad to be specifically performed. So, the discretionary reliefof specific performance ought not to have been granted in herfavour.

The learned Counsel submitted that when as early as 1979performance was refused, the fact that the suit was filed only in1981 though within a period of limitation is a matter that shallbe considered by this court while granting specific performance. There cannot be any ambiguity in the pleadings regarding theagreement which has to be specifically enforced and the manner inwhich it came into existence.

The learned Senior Counsel appearing for the firstrespondent submitted that as early as 1954 in LALA DURGA PRASADAND ANOTHER VS. LALA DEEP CHAND AND OTHERS ( 1954 1SCR 360), the Supreme Court had held that it is possible to take alternatestands and though in that case it was the defendant who did sothat will not change the legal position. The learned SeniorCounsel also submitted that this is an equitable jurisdiction andthe court must take note of the fact that the agreement in favourof the appellants did not find a mention in the written statementfiled by the second respondent who is the first defendant. Thefirst defendant remained exparte. Therefore he was willing toexecute the sale deed in favour of the plaintiff and in thosecircumstances, these appellants whose agreement was disbelieved bythe trial court as well as the learned single Judge, cannot attackthe decree. They have no locus to challenge the finding regardingreadiness and willingness.

The learned Senior Counsel submitted that the decree inO.S.No.20 of 1982 need not weigh in the minds of the court sincethat was clearly a collusive suit and filed during the pendency ofthe suit. The learned Senior Counsel submitted that it is onlyafter the exparte decree was obtained by them that they took thecategoric stand regarding their rights. The learned counsel https://hcservices.ecourts.gov.in/hcservices/ referred the written statement filed by the second respondentherein where there was only a mention of the agreement dated15.7.1979 and not Ex.B1 the so called agreement in favour of theappellants and though this written statement is a detailed one thefact that there is no mention of the earlier agreement would go toshow that the agreement was false. The learned Senior Counselalso inferred that there is a clear finding that the appellants andthe second respondent have colluded to defeat the rights of theplaintiff .

The learned Senior counsel referred to the finding of thelearned single Judge who observed that the absence of pleadingregarding existence of Ex.B1 agreement would lead to strongpresumption that Ex.B1 was not at all in existence at that time andit must have come into being only after the filing of the writtenstatement filed by the first defendant. The learned Senior Counselsubmitted that though it is true that the jurisdiction of this courtin Letters Patent Appeal is wider than the jurisdiction under Section 100 CPC yet this court must be circumspect whileinterfering with factual findings.

The question is whether the plaintiff has proved hercase and even if she has proved it whether she is entitled to thediscretionary relief of specific performance ? It is well settledthat even if the plaintiff proves her case, the court need notexercise discretion in her favour, especially in a suit forspecific performance, as it is an equitable remedy. Ex.A10 isthe legal notice sent by the second respondent to the firstrespondent where there is a reference to the agreement dated 15.7.79in favour of the plaintiff and that the second respondent is evenready to execute the sale deed in her favour. To this Ex.A11 replywas sent in which, it is stated that it is false to say that sheagreed to purchase the property for Rs.70,000/- and that "the realagreement was only on 24.3.1979 and that the plaintiff is alwaysready and willing with the money to perform her part of thecontract dated 24.3.1979..." Therefore on the date of Ex.A11dated 13.8.1979 the plaintiff's readiness and willingness wasonly with regard tot eh agreement dated 24.3.1979. Ex.A13 is atelegram sent by the plaintiff in which it is stated that "she isalso ready to have the sale as per the agreement dated 24.3.1979".

Therefore on 14.8.1979 again the readiness andwillingness of the plaintiff is only with regard to the agreementdated 24.3.1979. Exs.A15 which is again a telegram sent byfirst respondent / plaintiff and here again she has stated that"tomorrow ready to have the sale deed as per agreement dated24.3.1979". Here too the readiness is with regard to agreementdated 24.3.1979. In Ex.A16 reply notice, the second respondentdenied that there was any agreement on 24.3.1979 in the following https://hcservices.ecourts.gov.in/hcservices/ words. " There is no agreement between your client and my client on24.3.1979. In Ex.A20 which is again a reply sent by the firstrespondent's counsel to the second respondent's counsel it isalleged as follows:-"... that on 15.7.79 my clientcontracted to purchase the said propertyfrom your client for a price of Rs.70,000/-is false. It is also false to say that the agreementwas written on 15.7.1979..The agreement dated 15.7.1979 is adocument which was prepared by yourclient without the knowledge and consentof my client. "Thereafter the plaintiff's counsel has asked the first defendant'scounsel to inform his client that he is bound by the agreementdated 24.3.1979 which is plaintiff is entitled to enforce. That isthe stand of the plaintiff prior to the suit. In the plaint too shehas stood by this, stating that the agreement dated 15.7.1979was brought about by fraud. After saying so peculiarly she pleadsthat if for any reason the Court should find that the agreementdated 15.7.1979 is true, valid and binding she is ready and willingto abide by the directions of this court.

The plaintiff therefore, seeks to enforce an agreementwhich the plaintiff herself had attacked as false. If the agreementis alleged to be fraud and brought about without her willingnessand consent, then there is neither readiness nor willingness toperform that agreement as far as 15.7.79 is concerned. Therefore, both the trial court and the learned single Judge ought not to havegranted a decree for specific performance of the agreement dated15.7.1979. If they were of the opinion that the agreement dated24.3.1979 was a concluded contract and it deserved to bespecifically performed, then the decree may have been granted inrespect of that agreement. They cannot grant a decree for specificperformance of a contract which the plaintiff herself had allegedto be fraudulent and obtained without her consent. An agreementis something where there is consensus ad idem and this is denied bythe plaintiff and therefore, we cannot grant a decree forspecific performance in favour of the first respondent in respectof the agreement dated 15.7.1979.

Once we have arrived at the conclusion that the agreementdenied by the plaintiff herself cannot be specifically performedit is not necessary for us to go into any other issues. Howeversince the decision in LALA DURGA PRASAD AND ANOTHER VS. LALA DEEPCHAND AND OTHERS (AIR 1954 SC 75) was referred to by the learned https://hcservices.ecourts.gov.in/hcservices/ Senior Counsel for the first respondent, we will deal with thatdecision. There the vendor was one Nawab. He was the firstdefendant. There was an agreement on 7.2.1942. The plaintiff's casewas that on that date the said Nawab agreed to sell the propertyto him and accepted the earnest money the same day. Later hesold the same property to the appellants on 4.4.1942. Theappellants' case was that the plaintiff's agreement dated 7.2.1942was not a concluded one as the parties never reached finality. TheNawab's plea was one of fraud and mis-representation.

In GANESH SHET VS.DR.C.S.G.K.SETTY (1998(5) SCC 381)the Supreme Court considered a case where the plaintiff pleaded thatthere was one agreement executed at Bangalore and another one at Delhi the Supreme Court was not impressed with the case of theplaintiff and specific performance was denied.

As regards the other contention that this court whilesitting in Letters Patent Appeal cannot interfere with the factualfinding, a Constitution Bench of the Supreme Court in ALAPATI KASIVISWANATHAM VS. A.SHIVARAMA KRISHNAYYA AND OTHERS (Civil AppealNo.232 of 1961) held that there is no doubt that in an appropriatecase a Letters Patent Bench hearing an appeal from a learnedSingle Judge of the High Court in a first appeal heard by him isentitled to review even findings of fact. The contention of theappellant therefore that the Letters Patent Bench was not in lawentitled to reverse the concurrent findings of fact must benegative. In this case, especially where the error pointed out bythe appellants goes to the root of the matter we have no hesitationto hold that we can interfere .

In UMABAI AND ANOTHER VS. NILKANTH DHONDIBA CHAVAN(2005 6 SCC 243) the plaintiff raised an alternative plea that hewas a debtor and the deed of mortgage was executed only becausethe appellants were not licensed money lenders and he even askedfor a decree of accounting. The Supreme Court held that theplaintiff in a suit for specific performance of contract mayraise an alternative plea that the transaction is a mortgage by wayof conditional sale and he must be ready and willing either to repaythe debt or pay the amount of consideration as agreed upon andthat the conduct of the parties must be determined having regardto the entire attendant circumstances. In the present case, we haveno doubt in our mind that the conduct of the plaintiff had at anypoint of time shown that she was ready and willing to perform thecontract dated 15.7.1979. Therefore, she is not entitled tospecific performance of the contract. 25 In ANIGLASE YOHANNAN VS. RAMLATHA AND OTHERS ( 2005 (7) SCC534) the Supreme Court had observed that Section 16(c) of the Actmandates the plaintiff to aver in the plaint and establish the factby evidence aliunde that he has always been ready and willing toperform his part of contract. In this case there is a denial thatthere was a contract on 15.7.1979. So there was no occasion for theplaintiff to aver that she was ready and willing to perform herpart of contract.

There were strenuous objections regarding the conductof the defendants since the agreements brought about by them cameto light only very late in the day and that it is only after theywere armed with exparte decree which was obtained collusively they https://hcservices.ecourts.gov.in/hcservices/ came forward with a definite stand in the suit.

We agree with the submissions made by the learned counselappearing for the appellants that when there is a decree against theappellants, they have the right to challenge it and once theappeal is before us we have to examine whether the decree grantedis sustainable. For the reasons given earlier, the discretion oughtnot to have exercised in favour of the plaintiff.