Madrasreserved High Court · 2025

A.S.No.566 of 2022No. 4/55, Big Street, Srivilasapuram Village,R.K. Pet Taluk, Tiruvallur District.... Respondents/DefendantsPrayer:- Appeal Suit has been filed under Section 96 read of C.P.C., pleased to against the Judgment and Decree dated 15.09.2022 made in O.S. No.445 of 2021 on the file of I Additional District Court, Tiruvallur.For Appellant: Mr.S.Kaithamalai KumaranFor Respondents: No appearanceJ U D G M E N TThe appeal is directed against the judgment and decree passed by the trial Court in O.S.No.455 of 2021 dated 15.09.2022, the relief of specific performance was rejected, but the alternate relief of refund of the advance amount of Rs.10,00,000/- was granted along with interest at the rate of 12% per annum from the date of the sale agreement (08.01.2019) till the date of the decree and thereafter at the rate of 6% per annum on the advance amount till the date of realisation.2. The suit was laid on the premise that one Perumal, the owner of the Page No.2/13 https://www.mhc.tn.gov.in/judis A.S.No.566 of 2022suit schedule property, along with his son Balaraman, agreed to sell the said property to the plaintiff, Gunasekaran, through the sale agreement dated 08.01.2019. They jointly executed the sale agreement, received an advance amount of Rs.10,00,000/- and agreed to receive the balance sale consideration of Rs.2,00,000/- and execute the sale deed. The time fixed for performance of the contract was three years.3. The plaintiff had demanded Perumal to receive the balance sale consideration of Rs.2,00,000/- and complete the sale transaction. The plaintiff had always been ready and willing to pay the balance amount, but due to illness, Perumal died on 20.02.2021, the defendants who are the wife and children of Perumal were requested to honour the agreement but they failed to perform their part of the contract. The plaintiff hence issued a legal notice on 02.07.2021, calling upon the defendants to perform their contract. The defendants received the notice and issued reply dated 06.07.2021 with false allegations. In their reply, the defendants referred about an earlier agreement with Perumal and claimed that the agreement was barred by limitation. The agreement dated 08.01.2019 alleged t have been executed by Perumal was false and fictitious document created by the plaintiff. Since, there was a typographical error in the notice regarding the date of Page No.3/13 https://www.mhc.tn.gov.in/judis A.S.No.566 of 2022the agreement, fresh legal notice was sent by the plaintiff on 14.09.2021, containing correct date and facts. The learned counsel for the defendants received the notice on 20.09.2021. At the time of execution of the agreement on 08.01.2019, Perumal had handed over the original sale deed dated 22.01.2015 to the plaintiff. 4. Having performed part of the contract and ready and willing to perform the remaining part by tendering the balance sale consideration of Rs.2,00,000/-, the plaintiff prayed for a decree of specific performance, directing the defendants to execute a regular sale deed in favour of the plaintiff on receipt of the balance sale consideration and to put the plaintiff in possession of the suit property or in the alternate, for a decree for refund of the earnest money deposit of Rs.10,00,000/- with interest at the rate of 12% per annum, from the date of the agreement till the date of realisation. The plaintiff also sought for relief of permanent injunction restraining the defendants from creating any encumbrance over the suit schedule property.5. The fourth defendant filed written statement denying the plaintiff's allegations as totally false. He contended that the suit is frivolous and vexatious. It Page No.4/13 https://www.mhc.tn.gov.in/judis A.S.No.566 of 2022is not sustainable either in the eye of law or on the facts of the case. The suit cause of action alleged is an imaginary one. The relief sought for is not maintainable. The suit claim is not properly valued and the Court Fees paid is not correct. 6. In fact, for the suit property, the plaintiff had entered into a sale agreement with the deceased Perumal on 20.09.2016, for total consideration of Rs.26,00,000/- and agreed to complete the sale within a period of three years, but the plaintiff did not turn up to pay the sale consideration and get the sale deed registered within the time prescribed. After the expiry of the three years period the plaintiff had lost right in the property based on the agreement dated 20.09.2016. While so, the plaintiff had created a false and fictitious document as if, Perumal and the 4th defendant had agreed to sell the property to the plaintiff and executed deed on 08.01.2019. The present suit has been filed based on a false document. Hence, no relief can be granted to the plaintiff and the suit is liable to be dismissed. 7. Based on the pleadings, the trial Court had framed the following issues:-1. Whether the plaintiff is entitled to the relief of specific performance of sale agreement?2. Whether the sale agreement dated 08.01.2019 is forged one?Page No.5/13 https://www.mhc.tn.gov.in/judis A.S.No.566 of 20223. Whether the plaintiff is entered into sale agreement with Perumal only on 20.09.2016 for consideration of Rs.26,00,000/-?4. Whether the plaintiff is entitled to the relief of recovery of earnest money as prayed for?5. To what other relief, the plaintiff is entitled to?8. The suit agreement is Ex.A1. The plaintiff, Gunasekaran and the attestor to the document marked as Ex.A1, Mr.Manjunatha were examined as P.W.1 and P.W.2 respectively. Eight documents (Ex.A1 to Ex.A8) were marked in support of the plaintiff’s case. The defendants did not contest the suit. 9. The Court below, on appreciating the evidence and considering the contents in the reply notice marked as Ex.A6 held the fact stated by the defendants that there was an earlier agreement between the plaintiff and Perumal, three years ago for consideration of Rs.26,00,000/-, which was not enforced and the subsequent agreement dated 08.01.2019 to sell the property for a lesser amount of Rs.12,00,000/- is probable. The consideration for the earlier agreement entered three years ago and for the later agreement, which is the subject matter of the present suit, clearly show that the later agreement with the lesser sale consideration is only a nominal document. Furthermore, the plaintiff has not taken any steps to Page No.6/13 https://www.mhc.tn.gov.in/judis A.S.No.566 of 2022enforce the contract during the lifetime or immediately, after death of Perumal on 20.02.2021. The legal notice was issued belatedly. Therefore, readiness and willingness on the part of the plaintiff to get the sale deed registered, on payment of the balance sale consideration is not existing. In the absence of such readiness and willingness, the plaintiff is entitled only for the relief of refund of the sale consideration.10. The plaintiff, not being satisfied with the alternate relief granted by the trial Court had preferred this appeal stating that he is entitled for the main relief of specific performance. When there is no contra evidence let in by the defendants either oral or through document, except a reply notice with a stray reference about an earlier agreement, is no document produced by the defendants to prove the existence of prior agreement in the year 2016 between the plaintiff and the deceased Perumal. While the time to perform the contract is fixed as three years and the suit was filed well within three years, the trial Court ought not to have declined to grant the decree of specific performance relief. The trial Court has erred in holding the plaintiff not ready and willing to perform his part of contract, despite there is a plea and proof for readiness and willingness. In such circumstances, the trial Court ought not to have rejected the relief of performance Page No.7/13 https://www.mhc.tn.gov.in/judis A.S.No.566 of 2022without taking note of the fact that defendants after filing the written statement, had not turned up to contest the suit.Point for consideration:-Whether the pleadings and evidence, on holistic appreciation, proves the plaintiff's readiness and willingness to perform the contract and the genuineness of the sale agreement dated 08.01.2019?11. The sale agreement which is the subject matter of the suit is dated 08.01.2019 and had been entered after the amended provisions of Section 16(c) of the Specific Relief Act, 1963. The plaintiff is holding the original title document which was handed over by the vendor Perumal at the time of entering the sale agreement. The original sale deed is marked as Ex.A1. The plaintiff had deposit the balance sale consideration in the suit account, to get the sale deed executed in his favour through the Court. 12. On the side of the defendants, to the notice issued by the plaintiff, they have replied through Lawyer which has been marked as Ex.A6. In the reply, Page No.8/13 https://www.mhc.tn.gov.in/judis A.S.No.566 of 2022there is a reference about earlier agreement for sale, between the plaintiff and Perumal, for a consideration of Rs.26,00,000/- in respect of the very same property. The period to complete the agreement fixed as three years. However, having referred to the earlier agreement, the defendants neither appeared before the Court to lead evidence nor produced the said sale agreement entered between the plaintiff and Perumal in the year 2016. There is no evidence produced by the defendants to substantiate their plea. In addition, even in the appeal, despite notice, there is no appearance for the respondents. The defendants denial in the reply notice and in the written statement is not sufficient to hold that there was earlier agreement for sale between the parties. After the amendment to the Special Relief Act, 2018, if there is ready and the agreement is true and valid, specific performance is the rule and refund of advance money is only an option and exception. The parties have agreed to fix three years time to complete the performance of the contract. If the intention of the parties to complete the transaction within three years period, the Court cannot substitute its own view regarding fixation of such a long period, unless there is evidence to show that the intention of the parties was not to convey property, but something else. Readiness and willingness can be shown through pleadings, documents or by conduct. Fixing three years period to complete the contract, though may be suspicious Page No.9/13 https://www.mhc.tn.gov.in/judis A.S.No.566 of 2022circumstances, the terms of the contract has to prevail.13. DW.4 is one of the signatory to the agreement. He had not entered into the witness box to deny the document or to claim that it was forged or unenforceable. On the contrary, the plaintiff had to examined P.W.2, one of the attesting witnesses, who identified the signature of Perumal. In the absence of any evidence, contrary to the plea of the plaintiff, the enforcement of the agreement for sale dated 08.01.2019, through the suit filed on 01.10.2021 cannot be denied merely on the assumption that the plaintiff has not proved the readiness and willingness. Ex.A3 and Ex.A7, the legal notices issued on 02.07.2021 and 14.09.2021, discloses the plaintiff's readiness and willingness. Whereas, the contention in the reply Ex.A7 sent by the defendant not proved. In the written statement, when the defendants did not dispute the plaintiff's readiness and willingness, except making allegations in respect of the earlier agreement, which has not even seen the light of the day. The trial Court ought not to have overlooked the oral and documentary evidence. The defendants failed to substantiate their plea of forgery and fabrication. In such circumstances, the trial Court has erred in not granting the relief of specific performance and by granting the alternate relief which is an exception and not the rule, after the amendment to the Special Relief Page No.10/13 https://www.mhc.tn.gov.in/judis A.S.No.566 of 2022Act, 2018. Hence, this Court of the view that the judgement and decree of the Court below needs interference. 14. Accordingly, the Appeal Suit is Allowed. The judgment and decree of the trial Court passed against defendants to return the earnest money of Rs.10,00,000/- with interest, is set aside. The relief of special performance to execute the sale deed is allowed. As a result, the defendants are directed to execute the sale in favour of the plaintiff on receipt of the Rs.2,00,000/-, being the balance sale consideration, failing which, the plaintiff shall deposit the balance sale consideration in the suit account and get the sale deed executed in his favour through the Court below. Accordingly, the Appeal Suit is allowed with costs.08.08.2025Index:Yes/No.Neutral citation:Yes/No.bsmTo,1. The I Additional District Court, Tiruvallur.2. The Section Officer, V.R.Section, High Court, Madras. Page No.11/13 https://www.mhc.tn.gov.in/judis A.S.No.566 of 2022Page No.12/13 https://www.mhc.tn.gov.in/judis A.S.No.566 of 2022Dr.G.JAYACHANDRAN,J.bsmPre-delivery judgment made inAppeal Suit No.566 of 202208.08.2025Page No.13/13