Judgment · High Court · 2024

RESPONDENTS/ADDL.PLAINTIFFS 2 TO 4: 1 2 3 T.MAHALAKSHMI NO.14-2/58, NANDAGOPAL KOVIL, PANNAIPURAM, UTHAMAPALAYAM TALUK. R.T.PAPPITHA NO.14-2/58, NANDAGOPAL KOVIL, PANNAIPURAM, UTHAMAPALAYAM TALUK. T.GOPALAKRISHNAN NO.14-2/58, NANDAGOPAL KOVIL, PANNAIPURAM, UTHAMAPALAYAM TALUK. BY ADVS.SRI.T.I.ABDUL SALAM THIS REGULAR FIRST APPEAL HAVING COME UP FOR FINAL HEARING ON 12.1.2024, ALONG WITH RFA.22/2003, THE COURT ON 19.01.2024, DELIVERED THE FOLLOWING: R.F.A.Nos.22 and 51 of 2003 3 C.S.SUDHA, J. ---------------------------------------------------- R.F.A.Nos.22 and 51 of 2003 ---------------------------------------------------- Dated this the 19th day of January, 2024 J U D G M E N T The aforesaid appeals are against the common judgment and decree dated 19/07/2002 in O.S.No.258/1993 and O.S.No.237/1994 on the file of the Subordinate Judges' court, Kattappana. Defendants 1 to 3 in the suits are the appellants. The respondents herein are the additional plaintiffs in the suits. The parties and the documents will be referred to as described in O.S.No.258/1993.

O.S. No.280/1991 filed before the Munsiff Court, Devikulam, was transferred to the Subordinate Judges' Court, Kattappana and re- numbered as O.S.No.237/1994. As per the plaint, defendants 1 and 2 by way of Ext.A2 agreement dated 20/06/1990 agreed to sell the plaint schedule property to the plaintiff for a sale consideration of ₹2,27,010/-. An amount of ₹1,75,000/- was thereafter paid in different installments and the balance amount due was ₹52,010/-. Though the plaintiff was always ready and willing to pay the balance amount and take the sale deed, R.F.A.Nos.22 and 51 of 2003 4 defendants 1 and 2 failed to perform their part of the contract. The possession of the scheduled property was obtained by the plaintiff on the date of Ext.A2 itself and he continues to be in possession of the same. Defendants 1 and 2 in breach of Ext.A2 have sold the plaint schedule property to the third defendant and under the cover of the transfer, the third defendant is trying to trespass into the property and take forcible possession of the same. Hence, the suit for injunction.

Defendants 1 and 2 who jointly filed written statement, admitted the execution of the sale agreement and the receipt of amounts stated in the plaint. It was only on account of the breach committed by the plaintiff, the property was assigned in favour of the third defendant, who was put in possession of the property on the date of the sale.

The third defendant claimed to be a bona fide purchaser of the property for valuable consideration.

O.S. No.258/1993 was originally filed before the Subordinate Judges' court, Thodupuzha as O.S.No.1/1992. The case was later transferred to the Subordinate Judges' Court, Thodupuzha, where it was re- numbered as O.S.No.258/1993. The parties in this suit for specific performance are the plaintiff and the defendants in O.S.No.237/1994. In R.F.A.Nos.22 and 51 of 2003 5 addition, there are three more defendants, that is, defendants 4 to 6. According to the plaintiff, the plaint schedule property belonging to defendants 1 and 2 was agreed to be sold to him as per Ext.A2 agreement dated 20/06/1990 for a sale consideration of ₹2,27,010/-. On the date of the agreement, an amount of ₹50,000/- was given as advance. The plaintiff was allowed to cultivate the land and effect improvements in the property. The balance was agreed to be paid in three installments. The sale deed was to be executed on or before 31/01/1991.

Defendants 1 and 2 admitted the execution of Ext.A2 sale agreement and receipt of the amounts referred to in the plaint. According to them, it was because the plaintiff failed to perform his part of the contract, the sale agreement did not materialise. By virtue of a default clause contained in Ext.A2 agreement, they re-possessed the property and thereafter sold the property to the third defendant. The third defendant is a bona fide purchaser for value. As the default was committed by the plaintiff, he is not entitled to the reliefs prayed for.

The third defendant filed separate written statement contending that he is a bona fide purchaser for value without notice of Ext.A2 R.F.A.Nos.22 and 51 of 2003 7 agreement. According to him, he has been in possession of the property from the date of Exts.A5 and A6 sale deeds dated 15/10/1991 executed by defendants 1 and 2 in his favour. He has also effected valuable improvements in the property and hence he contended that the plaintiff is not entitled to the reliefs prayed for.

The fourth defendant conceded to a decree of specific performance in favour of the plaintiff. He limited his claim to the refund of the advance amount paid to defendants 1 and 2 and prayed that the amount may be charged on the plaint schedule items. Though such a contention was raised, no counter claim was raised in his written statement.

On completion of pleadings, necessary issues were raised by the trial court, pursuant to which the parties went to trial. Joint trial of the cases was allowed and O.S.No.258/1993 was taken as the main case in which evidence was recorded. PW1 and PW2 were examined and Exts.A1 to A10 were marked on the side of the plaintiff. DW1 and DW2 were examined and Ext.B1 was marked on the side of defendants 1 to 3. Exts.C1 to C1(b) were also marked. The sole plaintiff died during the pendency of the proceedings and hence his legal representatives were impleaded as additional plaintiffs 2 to 4 as per order dated 11/07/2002 in I.A.No.554/2002. The trial court on appreciation of the oral and R.F.A.Nos.22 and 51 of 2003 8 documentary evidence and after hearing both sides, decreed the suits. Aggrieved, defendants 1 to 3 have come up in appeal.

The point that arises for consideration in this appeal is whether there is any infirmity in the findings of the trial court calling for an interference by this Court.

Heard both sides.

It was submitted by the learned counsel for the defendants that the trial court grossly erred in decreeing the suits in spite of there being ample materials on record to show that the plaintiff was never ready or willing to perform his part of the contract. Though defendants 1 and 2 were always ready and willing and had also informed the plaintiff so, the latter failed to take the sale of the property. As the plaintiff committed breach of the agreement, the property was re-possessed by defendants 1 and 2 and sold to the third defendant as per Ext.A5 and Ext.A6 sale deeds and it is the third defendant who is in possession of the property from the date of the said sale deeds. As the plaintiff had clearly failed in establishing his readiness and willingness, the trial court ought not to have decreed the suit in his favour, contend defendants 1 to 3.

Per contra, it was submitted by the learned counsel for the R.F.A.Nos.22 and 51 of 2003 9 plaintiff that the plaintiff was all along ready and willing to perform his part of the contract. It was defendants 1 and 2 who had sought extensions one after the other. The liabilities on the property were never cleared though the plaintiff approached the defendants several times. Considering all these factors the trial court has rightly decreed the suits and so the impugned judgment calls for no interference.

The terms of Ext.A2 agreement dated 20/06/1990 are admitted. As per Ext.A2, the total sale consideration of the property is ₹2,27,010/-, that is, ₹21,000/- per acre. On the date of the agreement, an amount of ₹50,000/- was paid as advance. The plaintiff was liable to pay the remaining sale consideration in three installments, that is, ₹75,000/- on 15/07/1990; ₹50,000/- on 30/11/1990 and the final installment of ₹52,010/- on 31/01/1991, on which date the sale deed was to be executed. On the date of the agreement when ₹50,000/- was paid as advance, though possession of the property was not handed over to the plaintiff, the plaintiff is seen given the right to carry out improvements in the property which he could get it done at his expense through defendants 1 and 2. It is admitted that the first installment of ₹75,000/- was paid by the plaintiff on 11/07/1990. The endorsement seen made on the reverse side of page 1 of Ext.A2 shows that on the said date, possession of the property was handed over to the plaintiff.

It is true that after 31/03/1991 and till the filing of R.F.A.Nos.22 and 51 of 2003 11 O.S.No.1/1992 (which though seen filed on 21/12/1991, was taken on file and numbered only on 01/01/1992 as there were defects), later re-numbered as O.S.No.258/1993, no notice had been sent by the plaintiff calling upon the defendants to execute the sale deed. Pointing to this, the learned counsel for the defendants submitted that no reasons whatsoever have been given as to why the plaintiff had not taken any steps for getting the sale deed executed till the filing of the first suit. This itself is sufficient to show that the plaintiff was never ready and willing to perform his part of the contract. On the other hand, defendants 1 and 2 were always ready and willing to perform their part of the contract. On 25/03/1991, defendants 1 and 2 sent a letter under certificate of posting to the plaintiff requesting him to take the sale of the property as agreed to on or before 31/03/1991.

When the defendants have a case that in spite of them sending a notice on 25/03/1991 informing the plaintiff that all the liabilities pending R.F.A.Nos.22 and 51 of 2003 13 on the property had been cleared and also calling upon the plaintiff to come forward for the execution of the deed, it was their duty to prove the said case. No doubt, the primary burden is on the plaintiff to establish his case of readiness and willingness and only when the same is discharged, the onus would shift to the defendants. Here though defendants 1 and 2 say that all the liabilities pending on the property had been cleared by 25/03/1991, absolutely no evidence had been let in to substantiate the same. No reasons are also given as to why no evidence was produced if actually the liabilities had been cleared. There is also no evidence to show that as on 31/03/1991 or any day before the filing of the suit, the liabilities had been cleared. This coupled with the production of the photocopy of a certificate of posting of the letter alleged to have been sent to the plaintiff, prompted the trial Judge to reject or doubt the case of the defendants. To a query by this Court as to why the original of the certificate of posting evidencing the sending of the letter and notice as contended by the defendants had not been produced, it was submitted by the learned counsel for the defendants that same has been lost. If so, the defendants ought to have made out grounds for bringing in secondary evidence.

Under Section 64 of the Evidence Act, documents are to be proved by primary evidence. Section 65, however, permits secondary R.F.A.Nos.22 and 51 of 2003 14 evidence to be given of the existence, condition, or contents of documents under the circumstances mentioned therein. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section. In Ashok Dulichand v. Madahavlal Dube, (1975)4 SCC 664, it has been held that to admit a photocopy in evidence, it is necessary to lay the foundation of reception of secondary evidence. This burden has not been discharged by the defendants. They never had a case before the trial court that the original certificate of posting had been lost. Hence the trial court was justified in not admitting the photocopy of the document produced. Therefore, there is no evidence on record to show that the defendants had cleared the liabilities or had sent a letter/notice to the plaintiff informing him that the liabilities had been cleared.

My attention was drawn to Ext.B1, a copy of the order in I.A.No.545/1990 in O.S.No.163/1990. This suit was filed by the fourth defendant against the plaintiff and defendants 1 and 2. The fourth defendant contended that as per an agreement dated 21/03/1990, the plaint schedule property had been agreed to be sold to him by the first defendant for a total R.F.A.Nos.22 and 51 of 2003 15 sale consideration of ₹1,16,000/-. On the date of the agreement, he paid an amount of ₹25,000/- as advance. He was unable to pay the first installment of ₹50,000/- on 30/04/1990. However, on 08/05/1990, he paid ₹12,000/-, for which receipt was issued and it was agreed that the balance sale consideration would be paid by 24/05/1990. On the said day, though he was ready with the money, the first defendant failed to perform his part of the agreement. Attempts are being made by the first defendant to sell the property to the second defendant (who is the plaintiff in this case). Initially, an interim order of injunction had been granted. Thereafter the learned Munsiff found that breach of the agreement had been committed by the fourth defendant and hence the application was dismissed by Ext.B1 order dated 20/12/1990. Ext.B1 is apparently before the extensions to Ext.A2 agreement were granted at the behest of the defendants on 23/01/1991 and 25/02/1991. It is true that the pendency of O.S.No.163/1990 did not bar the plaintiff from seeking execution of the sale deed by defendants 1 and 2. But admittedly, the first defendant had received an amount of ₹62,000/- from the fourth defendant. This liability was pending. Even assuming that by the breach committed by the fourth defendant and as per the terms of the agreement, the first defendant was entitled to forfeit the said amount, there was still the liability owed by R.F.A.Nos.22 and 51 of 2003 16 defendants 1 and 2 to the fifth and sixth defendants herein. As noticed earlier, no evidence has been let in by the defendants to prove as to when the liability had been cleared. Liabilities were subsisting on 31/03/1991 and that appears to be the reason why Ext.A2 agreement did not materialise.

It is true that before the suit for specific performance was filed the plaintiff herein had moved O.S.No.280/1991, which is seen filed on 20/11/1991, apparently after the second extension of Ext.A2 expired on 31/03/1991. On 21/12/1991 the plaintiff filed O.S. No1/1992 which was later transferred and re-numbered as O.S.No.258/1993. Some defects were noted and hence after curing them, the suit was numbered on 01/01/1992. Therefore, there was a delay of about nine months in filing the suit for specific performance. That alone would not dis-entitle the plaintiff to the relief for specific performance. Article 54 of the Limitation Act, 1963 contemplates that when a date is fixed for the performance of the contract, then, the period of limitation begins to run from that date. When such a date is not fixed in an agreement to sell, then, refusal or breach by the vendor will start the clock ticking (Girish G.T. v. Y. Subba Raju (D), 2022 KHC 6045 : (2022)12 SCC 321). O.S.No.258/1993 for specific performance is certainly within the period of limitation provided under Article 54. R.F.A.Nos.22 and 51 of 2003 17

My attention was also drawn to Ext.A1, which according to the learned counsel for the defendants is only a photocopy of the power of attorney relied on by plaintiffs 2 to 4 and hence ought not to have been admitted in evidence. The document in the deposition of PW1 is described as a notarized copy of the power of attorney stated to have been executed by plaintiffs 2 to 4 in favour of PW1. This document was never challenged before the trial court. No objection was raised when the document was attempted to be marked as Ext.A1. Had a challenge been raised at the appropriate stage, the court certainly would have insisted, and the plaintiff could have produced a proper document. In not having raised that objection (and in having led the court to accept the same without objection and in having induced the plaintiff by their inaction not to take any further steps), the defendants have forfeited the option to raise any such objection at a later stage regarding the admissibility of the document. (Rajan v. Sharafudheen, 2003 KHC 422). If secondary evidence is allowed to be marked for one party without objection at the trial, no objection can be permitted to be raised by the opposite party at any later stage in the same Court or in appeal that conditions for adducing secondary evidence have not been made out initially. (See Land Acquisition Officer, Vijayawada Thermal Station v. Nutalapati Venkata Rao, AIR 1991 AP 31 and R.F.A.Nos.22 and 51 of 2003 18 P.C.Purushothama Reddiar v. S. Perumal, AIR 1972 SC 608). As the marking of Ext.A1 document was never objected to, the same cannot be raised at this stage.

It was further submitted on behalf of the defendants that PW1 is not a witness in Ext.A2 sale agreement. He does not say that he was present when Ext.A2 was executed. In the course of his deposition, he had never stated that he has knowledge of the transaction. Hence his evidence cannot be looked into. If the testimony of PW1 is ignored, there would be no evidence on behalf of the plaintiff and hence no decree could have been granted in favour of the plaintiff, goes the argument. When PW1 mounted the box, no objection is seen taken regarding his capacity to depose on behalf of the additional plaintiffs or as a witness to the transaction. His knowledge regarding the transaction is not seen challenged. When his status or knowledge regarding the transaction was never ever disputed, at this late stage, such a contention cannot be raised.

Another argument advanced is that time was the essence of the contract and as per Ext.A2, 31/03/1991 was the date within which the agreement ought to have been executed. In a contract for the sale of immovable property, normally it is presumed that time is not the essence of the contract. The Apex Court in Gomathinayagam Pillai v. Palaniswami R.F.A.Nos.22 and 51 of 2003 19 Nadar, AIR 1967 SC 868 held that fixation of the period within which the contract has to be performed does not make the stipulation as to time the essence of the contract. The intention to treat time as the essence of the contract may however be evidenced by circumstances which are sufficiently strong to displace the normal presumption that time is not the essence in contract for sale of land. The intention to make time stipulated for payment of balance consideration will be considered to be essence of the contract where such intention is evident from the express terms or the circumstances necessitating the sale, set out in the agreement. To find out whether time was the essence of the contract, reference has to made to the terms and conditions of the contract itself. The legal position is clear from the Constitution Bench decision in Chand Rani v. Kamal Rani, 1993 KHC 877: AIR 1993 SC 1742, wherein the Apex Court held that it is a well- accepted principle that in the case of sale of immovable property, time is never regarded as the essence of the contract. In fact, there is a presumption against time being the essence of the contract. Under the law of equity which governs the rights of the parties in the case of specific performance of contract to sell real estate, law looks not at the letter but at the substance of the agreement. It has to be ascertained whether under the terms of the contract the parties named a specific time within which completion was to R.F.A.Nos.22 and 51 of 2003 20 take place, really and in substance it was intended that it should be completed within a reasonable time. An intention to make time the essence of the contract must be expressed in unequivocal language.

In this case, there are no pleadings for either side that time was the essence of the contract. On the other hand, from the pleadings and from the evidence on record it appears that time was never treated as the essence of the contract and that appears to be the reason why extensions one after the other were agreed to by the parties. Therefore, the argument that time was the essence of the contract also is not correct.

One another argument advanced by defendants 1 and 2 is that they repossessed the property and thereafter they had executed the sale deed in favour of the third defendant. Though such a contention is seen taken, absolutely no evidence has been let in on behalf of the defendants to establish the same. Admittedly on 11/07/1990, possession was given to the plaintiff. To prove possession, the plaintiffs have examined PW2. Though the defendants contend that they had repossessed the property on 11/07/1991, there is absolutely no evidence to substantiate the same. Therefore, the said contention of the defendants also does not stand proved.

The evidence on record clearly shows that the plaintiff had paid all the installments within time and that extensions were granted at the R.F.A.Nos.22 and 51 of 2003 21 behest of defendants1 and 2. There is also no evidence to show that defendants 1 and 2 had cleared their liabilities outstanding on the property before 31/03/1991 or any time before the filing of the present suits. Hence in such circumstances, the trial court was right in concluding based on the evidence on record that the breach was committed by defendants 1 and 2 and so the plaintiff is entitled to the reliefs prayed for. I find no infirmity in the findings of the trial court calling for an interference by this Court. In the result, the appeals sans merit are dismissed. Interlocutory applications, if any pending, shall stand closed. Sd/- C.S.SUDHA JUDGE ami/