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Ema Nadar v/s Paramasivan

    S.A.(MD) No. 499 of 2010
    Decided On, 22 January 2020
    At, Before the Madurai Bench of Madras High Court
    By, THE HONOURABLE MR. JUSTICE N. SATHISH KUMAR
    For the Appellant: A. Shahul Hameed, Advocate. For the Respondent: S.S. Thesigan, Advocate.


Judgment Text
(Prayer: Second Appeal is filed under Section 100 of C.P.C., praying to set aside the decree and Judgment of the learned Subordinate Judge, Sankarankoil, dated 23.04.2009 in A.S.No.48 of 2008, thereby confirming the judgment and decree, dated 24.01.2007 in O.S.No.27 of 2005 on the file of the District Munsif cum Judicial Magistrate Court, Sivagiri.)

1. Aggrieved over the concurrent finding of the Courts below, the appellant has filed the present second appeal.

2. The parties are arrayed as their own ranking before this Court.

3. The defendant by agreement, dated 14.08.2003, agreed to sell the suit property for a sale consideration of Rs.1,00,000/- and received a sum of Rs.81,000/- as advance and it is agreed by both the parties that the remaining sale consideration of Rs.19,000/- shall be paid on or before 15.02.2005 and the plaintiff is ready to purchase the property before 15.02.2005 and to pay the balance sale consideration of Rs.19,000/-. The plaintiff is always ready and willing to pay the balance sale consideration. The defendant had not come forward either to receive the balance sale consideration amount or to execute the registered sale deed in favour of the plaintiff. Hence, the plaintiff has issued a notice to the defendant and the defendant received the notice but did not sent any reply. Hence, the suit has been filed for the relief of specific performance to execute the sale deed as per the contract in favour of the plaintiff after receiving the balance sale consideration of Rs.19,000/-.

4. The defendant denied the sale agreement. It is the contention of the defendant that the plaintiff is a money lender, the defendant has borrowed amount from the year 1997 onwards, he borrowed a sum of Rs.30,000/- in the year 1997 and the same has been repaid in the year 1998. Again, he borrowed a sum of Rs.40,000/- with interest at the rate of 10% per annum, in the year 2002, for day-to-day expenses. After that, the plaintiff requested to execute a mortgage deed for a sum of Rs.40,000/-. Accordingly, the defendant had executed a mortgage deed on 14.08.2003. Only in the year 2004, the daughter of the defendant came from her college and read the mortgage document and at the time only he came to know that instead of obtaining mortgage deed, the plaintiff fraudulently obtained the sale agreement got registered. Hence, his contention is that the sale agreement was never intended for sale, fraudulently obtained by the plaintiff. Hence, prayed for dismissal.

5. Based on the pleadings, the following issues are framed by the trial Court:

1) Whether the sale agreement was created fraudulently by the plaintiff instead of mortgage deed executed by the defendant ?

2) To what other relief, the plaintiff is entitled?

6. On the side of the plaintiff, plaintiff examined himself as PW.1 and one independent witness was examined as P.W.2. Exs.A.1 to Ex.A.5 were marked. On the side of the Defendant, defendant examined himself as D.W.1. Exs.B.1 to B.3 were marked. Based on the evidence and materials, the trial Court decreed the suit. The First Appellate Court also confirmed the findings of the Trial Court. Aggrieved over the same, the second appeal came to be filed.

7. The learned Counsel for the appellant vehemently submitted that though the agreement is a registered one, it is fraudulently obtained by the plaintiff, taking advantage of the illiteracy of the defendant. At any event, the plaintiff has not proved his readiness and willingness from the very inception of the agreement. The manner in which terms incorporated to pay the remaining amount itself indicates that the agreement is not intended for sale. It is contended that the First Appellate Court has not gone into the issue of readiness and willingness. Further, there was no discussion as to any undue hardship that may be caused to the defendant, in the event of enforcing the contract. The discretion is not exercised properly, hence, prayed for allowing the appeal.

8. The learned Counsel for the respondent submitted that the main contention of the defendant that the sale agreement has not been executed and got it registered under the pretext of getting a mortgage deed. Such contention is not proved before the Trial Court. Both the Courts clearly found that the sale agreement has been executed and the plaintiff is entitled to the relief of specific performance. It is the contention that pursuant to the decree, the sale deed is executed by the Court and the remaining sale consideration is also paid. Such being the position, the contention of the defendant is that the plaintiff is always ready and willing to perform his part of contract, cannot be countenanced. The Trial Court has rightly invoked the jurisdiction and hence, prayed for dismissal of the appeal.

9. After hearing both sides, this Court has framed the following substantial questions of law :

1. Whether the Courts below had erred in granting specific performance without any issue and evidence as to the readiness and willingness on the part of the plaintiff ?

2. Whether the Courts below have not exercised the jurisdiction guided by the judicial principles ?

10. I have perused the entire records.

11. The suit has been filed to enforce Ex.A.1 contract, dated 14.08.2003. Ex.A.1 is a registered agreement, dated 14.08.2003, wherein, it is agreed by the defendant to execute a sale deed, for a sum of Rs.1,00,000/- and received a sum of Rs.81,000/- as advance. Though it is the contention of the defendant that the agreement got registered in the name of mortgage deed at the time of borrowal of loan, such contention has been negatived by the Courts below. P.W.1 and P.W.2 have clearly spoken about the execution of the sale agreement, when the document registered an agreement for sale, to contend that above document is not intended for sale, heavily the burden lies on the defendant to establish that the document in question was executed for different transactions other than the sale of the property. But the evidence available on record clearly indicate that the burden on the part of the defendant to prove that Ex.A.1 was not a sale agreement has not been discharged. Now, it has to be analysed whether the plaintiff has shown the readiness and willingness from the inception of the agreement to get the equitable relief of specific performance. It is also relevant to note that there was no issue framed by the Trial Court. The First Appellate Court not framed any points for consideration in this regard.

12. Except stating that the plaintiff is ready and willing to perform the part of contract, there is no other material to show that the plaintiff is all along ready and willing to perform the part of contract. Ex.A.1 indicate that on the date of agreement itself substantial sale consideration of Rs.81,000/- has been paid and to pay the remaining sale consideration of Rs.19,000/- and the time is agreed between the parties, i.e. on or before 15.02.2005. The agreement itself clearly stipulated the time i.e. 15.02.2005. The plaintiff has to purchase the stamp papers and to pay the remaining sale consideration. Therefore, it is clear that within the stipulated time the plaintiff ought to have purchased the stamp papers before 15.02.2005 and paid the remaining sale consideration, whereas, for the first time, the lawyer's notice was issued on 07.01.2005. Till issuance of legal notice, whether he has made any attempt to purchase stamp papers as agreed in the sale agreement and the remaining sale consideration paid, no evidence whatsoever adduced. Similarly, no pleading in this regard also. Thereafter, the suit has been filed, when the plaintiff has agreed to purchase stamp papers before 15.02.2005 and failed to purchase stamp papers and pay the remaining sale consideration, it cannot be said that he is always ready and willing to perform his part of contract.

13. Merely because the defendant denied the sale agreement in its entirety, it will not relive the plaintiff from establishing the ready and willingness as mandated under Section 16(c) of Specific Relief Act. It is further to be noted that the suit property is a house property, the evidence of the plaintiff clearly indicates that he has not made any attempt to know the encumbrance of the suit property and the value of the property has also not been ascertained. This fact clearly indicates that he is not ready and willing to perform the contract. Even if the agreement is valid and enforceable the specific performance is the equitable relief, the Court is not bound to enforce the contract merely on the basis of the contract had been proved. The discretion to be exercised by the Court while granting the specific performance. It is well settled that the discretion must be reasonable, guided by the judicial principles.

14. The terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into, are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff. Similarly, where the defendant entered into the contract under circumstances, which though not rendered the contract voidable, makes it inequitable to enforce specific performance. In the above circumstances, the Courts normally decline the relief of specific performance.

15. Admittedly, though execution of the agreement has been proved, the evidence of D.W.1 entirety read, it is the specific case that he has received several amounts from the plaintiff from the year 1997 onwards. Above evidence has not been denied in the cross-examination, that apart, the evidence of P.W.1 clearly indicate that the defendant is an illiterate and only able to sign the document and P.W.1 also admitted in his evidence that the defendant has three female daughters and he has no other property other than the suit property. This fact clearly shows that if the contract is enforced, it would involve some hardship on the defendant i.e. he and three female daughters will be deprived of the property, such hardship would be only on the defendant and not on the plaintiff. These aspects never touched by the Trial Court and First Appellate Court. Further the evidence of D.W.1 also clearly indicate that Ex.A.1 came to be executed when the defendant was in dire need of money and when he was in adversity.

16. Such being the position, the Courts below ought to have exercised the discretion properly, considering the circumstances, existing at the time of contract, both the Courts have not even gone into the above issue. Similarly readiness and willingness aspect has not been touched by the Trial Court as well as the First Appellate Court. There is no proper issue framed in this regard. The evidence of

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P.W.1 does not show that he is always ready and willing to perform the contract, no evidence to show that he has made an attempt to purchase stamp papers as stipulated in the contract on or before 15.02.2005. Therefore, in the absence of readiness and willingness established, specific performance relief cannot be granted. Accordingly, the substantial questions of law is necessary and the judgment of the Trial Court is set aside. 17. Having regard to the fact that in execution proceedings only sale deed alone executed. Though no alternative plea is made by the defendant to return of the advance amount, this Court is of the view that to compensate the plaintiff and the defendant is directed to return the amount of Rs.81,000/- with interest at the rate of 10% per annum from the date of agreement till the date of realisation. Till such payment is made, there shall be charge over the property. In view of the suit being dismissed, any sale deed executed by the Court in favour of the plaintiff will not convey any title, since the suit itself was dismissed. Accordingly, the substantial questions of law are answered. 18. In the result, the second appeal is allowed. However, there shall be no order as to costs.
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