Fathima Majeed v. Subhapratha Ravikumar

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 01.07.2008 CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE R.SUBBIAHO.S.A.NO.287 OF 2002Fathima Majeed.. Appellant/DefendantVs.Subhapratha Ravikumar.. Respondent/Plaintiff This O.S.A. has been preferred under Clause 15 of Letters Patentand Order 36 Rule 1 of O.S. Rules against the judgment and decree madein C.S.No.733 of 1995, dated 8.2.2001. For Appellant : Mr.T.V.Ramanujan, SC for Mr.M.Abdul NazeerFor Respondent : Mr.R.AnandJUDGMENT(The judgment of the Court was made by M.CHOCKALINGAM, J.)Challenge is made to the judgment of the learned Single Judge madein C.S.No.733 of 1995, whereby the Court granted the relief of specificperformance as asked for by the respondent/plaintiff.2.The respondent, who sought the said relief, came with thespecific allegations that the suit mentioned property belonged to thedefendant; that the plaintiff desired to purchase the same; that therewas an agreement entered into, as per which, the sale price was fixed atRs.13,63,500/-; that advance of Rs.2 lakhs was paid on 04.01.1995; thatthe same was actually incorporated in the written agreement entered intobetween the parties on 06.01.1995; that the property of the defendantwas originally mortgaged with Muthialpet Benefit Fund Limited and a sumof Rs.3,02,876.25 was due, which the plaintiff agreed to pay; thataccordingly, by way of demand draft, that amount was paid and themortgage was redeemed; that further, a sum of Rs.2 lakhs was paid on25.01.1995 towards balance sale consideration and thus, in total, a sumof Rs.7,08,876.25 has been paid by the plaintiff, but the defendant, whopromised to get back the original document and satisfy his marketableright to alienate the property within the stipulated time, did not doso; that despite many a demand made, the defendant did not perform herobligation either by giving the relevant documents or getting income tax https://hcservices.ecourts.gov.in/hcservices/ clearance certificate and under these circumstances, the plaintiff hadno option than to issue a notice calling upon the defendant to executethe sale deed, but she failed and therefore, the plaintiff had no optionthan to approach this court and accordingly, she made the suit.3.The defendant/appellant came with the written statement, statingthat it is true, there was an agreement entered into between theparties; that originally, there was payment of Rs.2 lakhs; thatthereafter, a sum of Rs.3,02,876.25 has been paid towards the dischargeof mortgage; that further a sum of Rs.2 lakhs has also been paid towardsthe sale consideration; that subsequently, there was a letter written bythe plaintiff, stating that Rs.1,97,123.75 was the balance and alsosought for acknowledgement; that the defendant lady refused toacknowledge the same; that immediately, when the cheque was placed forencashment, the plaintiff has instructed the Bankers to stop payment andaccordingly, the payment was stopped; that it is not correct to say thatthe original documents had not been surrendered to the plaintiff; thatthe documents, which were mortgaged with the Muthialpet Benefit FundLimited, on redemption, were handed over to the plaintiff and thosedocuments were in the custody of the plaintiff; that the non productionof income tax clearance certificate was nothing, but a concocted story;that the plaintiff was never ready and willing to perform her part ofobligation under the agreement and under these circumstances, theplaintiff was not entitled to get the discretionary relief and hence thesuit was to be dismissed. 4.On the said pleadings, four issues were framed. At the time oftrial, the plaintiff examined herself as P.W.1, while the husband of thedefendant was examined as D.W.1. Both sides have put forth theirdocumentary evidence. The learned Single Judge, on trial, took the viewthat the plaintiff is entitled to have the relief as prayed for anddecreed the suit as prayed for. Under these circumstances, this appealhas arisen.5.Advancing arguments on behalf of the appellant, the learnedSenior Counsel Mr.T.V.Ramanujan, would submit that in the instant case,though the plaintiff has averred that she was all along ready andwilling to perform her part of the contract, her conduct was otherwise.Admittedly, there was an agreement between the parties on 06.01.1995,whereby the total consideration was agreed at Rs.13,63,500/-. At thetime of agreement, there was payment of Rs.2 lakhs, which has also beenacknowledged by way of a receipt and was also incorporated in theagreement. Thereafter, on 24.01.1995, a letter under Ex.D.4 wasaddressed by the plaintiff to the defendant. The contents of the letterwould clearly indicate that the plaintiff had made an attempt to makepayment of Rs.1,97,123.75 as the balance sale consideration andaccordingly, the plaintiff did by way of annexing a cheque therefor andaccording to her, as per the letter, that was the balance saleconsideration, while the balance was nearly about Rs.7 lakhs and odd.This letter and the cheque for Rs.1,97,123.75 would clearly indicatethat the plaintiff had made an attempt to defraud, which was nothing butbreach of agreement. Apart from that, the plaintiff has also made anattempt to get acknowledgement therefor, but fortunately, the defendantlady has refused the same. Immediately, while the cheque was placed for https://hcservices.ecourts.gov.in/hcservices/ encashment, the plaintiff has issued a communication to the Bankers tostop payment and thus, the contents found in Ex.D.4 would indicate theconduct of the plaintiff.6.Added further the learned Senior Counsel that if the plaintiff,who seeks the relief of specific performance, is found to be not readyand willing to perform her part of the contract as found in theagreement, then she should be nonsuited and there is no question ofgranting the relief, but the learned Single Judge has not adverted toany attention on those aspects, but has granted the relief and hence thejudgment of the learned Single Judge has got to be set aside by allowingthis appeal.7.Contrary to the above, the learned counsel for the respondentwould submit that it is true, there was an agreement entered intobetween the parties. Original title deeds were never handed over. Thecommunication under Ex.D.4 cannot be put forth as defence. It is true,there was Rs.1,97,123.75, which was the balance amount and it was to becalculated. Further, in the instant case, the defendant neither gave theoriginal document nor the income tax clearance certificate and that allalong, the defendant is not willing to perform her part of the contract.Added further the learned counsel that when D.W.1, the husband of thedefendant was examined in Court, he states that the defendant is willingto perform her part of the contract, provided the consideration is to becalculated at Rs.2000/- per square feet, which would actually indicatethe avaricious of the defendant and the same was nothing but an attemptto get more consideration than what was actually agreed and under thesecircumstances, actually the defendant did not perform her part of thecontract and hence the learned Single Judge was perfectly correct ingranting the relief and therefore, the appeal has got to be dismissed.8.The Court has paid its anxious consideration on the submissionsmade and also looked into the materials available. It is not incontroversy that the appellant is the owner of the property in question;that there was an agreement entered into between the parties on6.1.1995, as could be seen under Ex.P.1, wherein the consideration wasfixed at Rs.13,63,500/-. An advance payment of Rs.2 lakhs was also madeand it was also incorporated in the agreement. Thus, the balance wasliable to be paid by the plaintiff. As could be seen under Ex.D.4, on24.1.1995, there was a letter from the plaintiff. The relevant part ofthe letter reads as follows:"... We will pay the balance of Rs.1,97,125.75 being thebalance sale consideration after receipt of the abovementioned documents and also an approval of the same by ouradvocate. Kindly proceed with your income tax clearance underSection 230 A at the earliest so that we can complete thetransaction."A reading of the said part of the communication under Ex.D.4 wouldclearly reveal that according to the plaintiff, the balance wasRs.1,97,125.75 only. But, except the payment already made, the balancewas actually Rs.7 lakhs and odd. 9.It is further to be pointed outthat the plaintiff has also sought for acknowledgement from the https://hcservices.ecourts.gov.in/hcservices/ defendant, but she refused to make so. Admittedly, Ex.D.4 letter wassent along with cheque for a sum of Rs.2 lakhs. But the letter was notacknowledged by the defendant. It is further curious to note that theplaintiff has not stopped her conduct with that, but she has sent ananother cheque for Rs.1,97,123.75 under Ex.D.2, which was the amountreferred to in Ex.D.4. The plaintiff has issued a communication to thebankers to stop payment. All would go to show that the plaintiff waspersistent to see that the balance sale consideration was Rs.1,97,123.75only. Though it is averred in the plaint that the plaintiff was readyand willing to perform her part of the contract, the conduct of theplaintiff was otherwise. The mere statement either in the notice or inthe plaint, seeking the relief of specific performance, would not besufficient, but it has got to be shown from the conduct of the parties.In the instant case, the conduct of the plaintiff would clearly indicatethat she was not at all ready and willing to perform her part of thecontract as agreed between the parties and as incorporated in theagreement entered into between the parties. 10.In a given case like this where the plaintiff came forward withthe relief of specific performance, she must show not only by pleadings,but also by her conduct that she is ready and willing to perform herpart of the contract. This court is able to see that the plaintiff isnot ready and willing to perform her part of the contract as it isunderstood by law. Under these circumstances, the plaintiff cannot getthe relief of specific performance as asked for by her. The contentionsput forth by the learned counsel for the respondent/plaintiff, thoughattractive, will not stand the scrutiny of law. Hence therespondent/plaintiff is not entitled to get the relief. 11.It is true, the plaintiff has not asked for any alternativerelief of recovery of money. Though it was not asked for, since it isfor the relief of specific performance, on the ground of equity, theCourt can order so. Accordingly, the defendant is directed to makepayment of Rs.7,02,876.25 (Rupees seven lakhs two thousand eight hundredand seventy six and twenty five paise only) to the plaintiff within aperiod of three months and those amount carries interest at the rate of12% per annum from the respective dates of payments by the plaintiff tothe defendant, till realisation. On payment of the entire amount, asstated above, the plaintiff is directed to hand over all the titledeeds, which were originally handed over to her, to the defendant. Thejudgment and decree made in C.S.No.733 of 1995 are set aside.Accordingly, this O.S.A. is disposed of. No costs. Sd/Deputy Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ vvkToThe Sub Assistant Registrar,Original Side,High Court, Madras.2 cc To Mr.V.Anand, Advocate, SR.33773.O.S.A.NO.287 OF 2002 SGL(CO)RVL 23.07.2008