IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.03.2011 CORAM THE HONOURABLE MS. JUSTICE R. MALA Appeal Suit No.1060 of 2007 Ravikumar .. Appellant/Plaintiff Vs 1.N.Sivagnanam 2.K.Palaniraja 3.Vasanthi .. Respondents/Defendants Prayer: This First Appeal (Appeal Suit) preferred under Section 96 of C.P.C., against the judgment and decree dated 03.09.2007 made in O.S.No.5 of 2006 on the file of the District Court, Nilgiris at Udagamandalam. For Appellant : Mr.C.A.Diwakar For Respondents : Mr.J.Anandakumar for R1 Mr.N.Umapathi for R2 Mr.M.Baskar for R2 and R3 (For RR1 to 3-No appearance) JUDGMENT This First Appeal (Appeal Suit) arises out of the judgment and decree dated 03.09.2007 made in O.S.No.5 of 2006 on the file of the District Court, Nilgiris at Udagamandalam. 2. The averments made in the plaint are as follows: (i) The plaintiff is the first defendant's neighbour and also his former employer. The plaintiff, who helped the first defendant out financially to acquire the property and the first defendant has agreed to sell the same to the plaintiff. (ii) On 07.04.2005, the first defendant agreed to sell the property to the plaintiff for Rs.8,00,000/- and received Rs.6,00,000/- as an advance from the plaintiff and promised to execute the sale deed within six months from the date of agreement. Since the plaintiff had paid the major portion of the sale consideration, the first defendant also handed over the original documents. Due to the urgency of the first defendant, the sale https://hcservices.ecourts.gov.in/hcservices/ agreement was executed on a white paper. (iii) On 01.06.2005, the first defendant requested the plaintiff for the balance sale consideration and he also promised to hand over the possession on or before 31.12.2005. The plaintiff believed the first defendant and paid him the balance sale consideration of Rs.2,00,000/- and the first defendant had given a stamped receipt for the said amount that he received from the plaintiff on 01.06.2005 in full settlement of the full sale consideration. Thereafter, the first defendant left ostensibly for his village, leaving his wife in the premises and promising to return shortly. (iv) To the utter shock of the plaintiff, he discovered that the first defendant has left for Singapore, where he is working in a hotel/restaurant. The first defendant has cheated the plaintiff with an intention of leaving the country and for obtaining funds, he has played the drama of coming back and handing over possession of the property and registering the document. The first defendant's wife has also been cleverly concealing this fact. (v) The plaintiff was afraid that the suit property should not be sold to any third person as it abuts the plaintiff's property and hence he agreed to buy the same. What the first defendant has committed is criminal breach of promise and breach of trust. So the plaintiff issued a legal notice dated 04.01.2006 to both Singapore and Kattabettu addresses, calling upon the first defendant to come here to execute and register the sale deed in favour of the plaintiff, as the plaintiff is always ready and willing to perform his part of contract. The first defendant evaded both the notices, since the Singapore cover was returned as "no such name" and the Kattabettu cover was returned as "unclaimed". (vi) After filing the suit, the plaintiff came to know that the first defendant, through a power of attorney given to his wife, the third defendant has executed a sale deed in respect of the suit property to the second defendant, who is none other than her brother, under the registered sale deed dated 01.02.2006. This sale deed was engineered by the first defendant with the help of his brother-in-law and his wife, with full knowledge of the legal notice dated 04.01.2006. The second defendant as a purchaser with full knowledge of the sale agreement, is bound to sell the suit property to the plaintiff under Section 19 of the Specific Relief Act. Hence the second and third defendant were impleaded as parties to the suit. The plaintiff also filed a suit in O.S.No.19/2006 before the Sub-Court, Ootacamund, to restrain the defendants 2 and 3 from making any further alienation. Hence the plaintiff come forward with the suit for specific performance and prayed for a decree. 3. The gist and essence of the written statement filed by the first defendant are as follows: https://hcservices.ecourts.gov.in/hcservices/ (i) It is true that this defendant is presently a neighbour and former employee of the plaintiff. In the year 1988, when this defendant was working in Wellington Tea Estate at Coonoor, the plaintiff had requested this defendant to purchase an estate and accordingly an extent of 24 acres of Tea Garden at Kannerimukku, Kotagiri was purchased and however, the plaintiff has been persistently requesting this defendant to joint with him to look after the Tea Garden in view of the plaintiff's previous experience in Tea field and though initially this defendant was not willing to joint the plaintiff, but subsequently he joined with the plaintiff. Out of his own earnings, this defendant had purchased an extent of 0.17 ½ acres of land in R.S.No.499/1 and 0.07 ½ acres in R.S.No.498 at Naduhatty Village in the year 1990. Thereafter, this defendant constructed a residential building in Rs.No.499/1 being the suit property. After the said construction, this defendant shifted his residence to the new house in the year 1992. This defendant had availed loan from LIC for the purpose of constructing the building and spent almost Rs.1,00,000/- to complete the construction in the year 1991-1992. So the allegation that the plaintiff had helped this defendant financially to build the house and that this defendant agreed to sell the property to the plaintiff are all figment of imaginations. The plaintiff had actually purchased the site adjoining the property purchased in the year 1993 by this defendant, who helped the plaintiff to acquire the site measuring an extent of 0.50 acres in the said R.S.No.499/1 and the plaintiff had constructed a residential building there in the year 1995. Since the plaintiff was his employer, this defendant out of gratitude allowed the plaintiff to use his road till the plaintiff makes his own arrangements. (ii) At no point of time, this defendant had neither entered into any agreement to convey the suit property nor received any advance sale consideration from the plaintiff. There was no sale agreement on 07.04.2005 for Rs.8,00,000/- and he never received Rs.6,00,000/- and he never agreed to execute the sale deed within six months from 07.04.2005. In or about January/February 2001, this defendant's mother was unwell and for her treatment, this defendant required substantial funds and has been looking for finance. Since the plaintiff being his former employer, he had represented that he knows somebody in Tamil Nadu Mercantile Bank, Mettupalayam and he can arrange a loan from the said Bank in favour of this defendant for which, he had obtained this defendant's signatures in three blank white papers and Rs.10/- stamp paper and a revenue stamp affixed blank papers. Next day, the plaintiff returned from Mettupalayam and represented to this defendant that the Tamil Nadu Mercantile Bank refused to advance the loan and however the plaintiff will give Rs.2,00,000/- as loan and this defendant should pay the said amount in due course. The plaintiff had made an arrangements to pay a loan of Rs.2,00,000/- and paid the same to this defendant on 26.02.2001 and the plaintiff had retained with him the said three blank white https://hcservices.ecourts.gov.in/hcservices/ papers and Rs.10/- stamp paper and the revenue stamp affixed white papers duly signed by this defendant. This defendant with the bona- fide believed that the plaintiff being his employer did not bother much about the said signed papers which were retained by the plaintiff. (iii) However, this defendant has repaid Rs.2,65,000/- on various nine occasions. This defendant had settled the entire principal amount apart from Rs.65,000/- towards interest to the plaintiff and the balance amount if any, payable is only a minor amount being the difference in interest amount. Since the plaintiff was paying unremunerative salary, this defendant was looking for a job at Singapore. This defendant also borrowed money from one Sundara Vinayagam to meet the expenses in connection with his treatment for shoulder pain and since this defendant could not repay the said amount and also in view of the said Sundara Vinayagam's family had pressed for the repayment, this defendant had no other alternative but to offer the suit property to his family and for a matter of fact, a sale agreement was also entered into on 09.02.2005. When this defendant was confirmed with a job at Singapore, this defendant had carried all the important documents including the original sale deed and revenue records with him to Singapore to show the documents to Sundara Vinayagam, who is in Singapore. On perusal of the said documents and at the instructions of the said Sundara Vinayagam, this defendant had sent the original sale deed, chitta extract and encumbrance certificate to his wife to the Kattabettu address with instructions to hand over the said documents to one Palaniraja, the brother of Sundara Vinayagam for preparing the sale deed. However, the plaintiff had high handedly received the cover containing the documents sent by this defendant to his wife from the postman on the promise that the same will be handed over to her. However, this defendant retained the said cover and taken away all the original documents and now falsely claiming that this defendant had handed over the said documents to the plaintiff. This defendant's wife had already preferred necessary complaint before the postal authorities for the non-receipt of the said cover. At no point of time, this defendant had ever entrusted any documents and revenue records to the plaintiff. The plaintiff had cooked up, fabricated as the alleged sale agreement as if this defendant had agreed to convey the suit property and that this defendant received the alleged sum of Rs.6,00,000/- as an advance. (iv) While this defendant was working with the plaintiff, the plaintiff was in the habit of getting signatures on white blank paper at the time of disbursement of salary. When this defendant decided to seek employment at Singapore, the plaintiff has been behaving indifferently as the plaintiff does not want to loose a hard and loyal worker and however the moment, this defendant took the employment at Singapore, the plaintiff with fraudulent intention to wreck vengeance against this defendant and taking advantage of the https://hcservices.ecourts.gov.in/hcservices/ available blank papers and also by fraudulently receiving the postal cover containing the original documents, has cunningly fabricated the documents. This defendant had already conveyed the suit property in favour of Palaniraja, the brother of the said Sundara Vinayagam through his wife, being the power agent under the registered sale deed dated 01.02.2006. On several occasions, it was the plaintiff who used to receive the postal covers as the main gate is very much visible from the plaintiff's house and taking advantage of the same, the plaintiff received the cover, opened and found the original document, had fraudulently retained with him and attempted to give a different picture as if this defendant had entrusted the original documents. This defendant had never issued any receipt for Rs.2,00,000/- on 01.06.2005. (v) On the alleged date of execution of sale agreement dated 07.04.2005, this defendant was actually taking physiotherapy treatment at Aranthangi near Thanjavur. On 01.06.2005, he was at Aranthangi and returned to Kattabettu on 02.06.2005. This defendant pledged his jewelleries in the Central Bank of India, Kattabettu on 02.06.2005 and withdrawn the amount from the Bank on 07.06.2005 and also purchased T.V.S.50 Motor Cycle on 03.06.2005 on instalment basis. On 11.04.2005, this defendant's wife had already pledged the jewelleries in the Central Co-operative Bank, Kattabettu. If this defendant had received substantial amount of Rs.6,00,000/- as alleged by the plaintiff, there is no necessity for this defendant to pledge the jewelleries in the Bank. The plaintiff was very much aware of this defendant's departure to Singapore. Since this defendant was at Singapore, there is no necessity to send the legal notice to his Kattabettu address and this defendant had never received any such notice. (vi) It is strange to note that the plaintiff has paid the entire sale consideration of Rs.8,00,000/- without obtaining the registered sale deed. The plaintiff is doing illegal money lending business in and around Kotagiri including advancing loan to close friends and only to earn interest, the plaintiff had advanced the said sum of Rs.2,00,000/- during the year 2001 to this defendant. The plaintiff has a consistent feeling that this defendant is living within the campus of his residence which is hindrance for the plaintiff in running the cottage business wherein several foreigners and outsiders used to visit and the plaintiff is trying his level best to some how chase this defendant out of the suit property and as such he had cunningly fabricated and cooked up the alleged sale agreement with an illegal intention to knock away the property. (vii) No cause of action for the suit. The total value of the suit property as on the alleged date of agreement will be less than Rs.3,00,000/- and however, the plaintiff had abnormally inflated the rate to Rs.8,00,000/-. Hence he prayed for the dismissal of the suit. https://hcservices.ecourts.gov.in/hcservices/ 4.The gist and essence of the written statement filed by the second defendant, adopted by the third defendant are as follows: (i) This defendant is not aware of the alleged sale agreement said to have been executed by the first defendant and however to the knowledge of this defendant, no such agreement was executed by the first defendant. (ii) This defendant had purchased the suit property under the registered sale deed dated 01.02.2006. Only to the purpose of execution of the sale deed in favour of this defendant, the first defendant had sent all the original documents from Singapore through post and however, the plaintiff is having received the said documents stealthily and now claiming that the first defendant had handed over the said original deed at the time of alleged execution of the sale agreement. This defendant is a bona-fide purchaser for valid consideration. This defendant's brother K.Sundara Vinayagam paid the consideration at Singapore to the first defendant, who is also in Singapore. The plaintiff has no cause of action to file a suit against this defendant. Hence he prayed for the dismissal of the suit. 5. The trial Court, after considering the averments both in the plaint and the written statement and arguments of both the counsel, framed six issues and considering the oral evidence of P.W.1 to P.W.3 and D.W.1 to D.W.3 and documentary evidence of Exs.A1 to A32, Exs.B1 to B20 and Ex.X1 series and Exs.C1 and C2, dismissed the suit, against which, the appellant/plaintiff has come forward with this First Appeal. 6.Even though the respondents/defendants were served with notice, no one represented on behalf of them. 7.After hearing the arguments of the learned counsel for the appellant/plaintiff, the following points for determination are framed: 1.Whether the trial Court is correct in held that Ex.A1 is a fabricated document? 2.Whether the appellant/plaintiff is entitled to equitable relief of specific performance? 3.Whether the judgment and decree passed by the trial Court are sustainable? 4.To what relief, the appellant/plaintiff is entitled to? https://hcservices.ecourts.gov.in/hcservices/ 8.Point No.1 (i) The learned counsel for the appellant/plaintiff submitted that both the appellant/plaintiff and the first respondent/first defendant are neighbours. The third respondent/third defendant is the wife of the first respondent/first defendant. The second respondent/second defendant is the brother-in-law of the first respondent/first defendant and brother of the third respondent/third defendant. The title of the suit property is not disputed. (ii) The case of the appellant/plaintiff is that the first respondent/first defendant herein was in dire need of money. So he borrowed an amount of Rs.6,00,000/- from the appellant/plaintiff on 07.04.2005 and agreed to sell the suit property for Rs.8,00,000/- and executed the sale agreement under Ex.A1 and six months time was granted for the execution of the sale deed. On 01.06.2005, the first respondent/first defendant received the balance sale consideration of Rs.2,00,000/- from the appellant/plaintiff, which was marked as Ex.A7. So the entire sale consideration was received by the first respondent/first defendant. There was an employer-employee relationship between both the appellant/plaintiff and the first respondent/first defendant. At the time of execution of Ex.A1, the first respondent/first defendant handed over all the original title deeds and other documents such as Encumbrance Certificate, chitta extract and approved building plan to the appellant/plaintiff. Since the first respondent/first defendant has without intimated the appellant/plaintiff, he left for Singapore for his avocation and thereafter, difference of opinion arose between both the parties. Hence the appellant/plaintiff issued a notice. (iii) The first respondent/first defendant raised a plea that the title deeds were sent by registered post by him to the third respondent/third defendant, who is his wife and the said postal cover was received by the appellant/plaintiff's daughter and that was retained by the appellant/plaintiff for the purpose. Since the first respondent/first defendant disputed the genuinety of Ex.A1, the burden is upon the appellant/plaintiff to prove that Ex.A1 is true and genuine document. (iv) Admittedly, Ex.A1 was written in white paper, not in stamp paper and it was a typed matter. But at the time of trial, stamp duty penalty was collected. In Ex.A1, signatures of both the appellant/plaintiff and the first respondent/first defendant were found place. The defence of the first respondent/first defendant is that Ex.A1-sale agreement was concocted. While the first respondent/first defendant need financial help, at that time, the appellant/plaintiff obtained his signatures from blank papers, stamp papers and blank promissory notes for assisting him to obtain a loan from Tamil Nadu Mercantile Bank, Mettupalayam in the year January/February 2001. A very next day, he informed to the first https://hcservices.ecourts.gov.in/hcservices/ respondent/first defendant that Tamil Nadu Mercantile Bank was not willing to advance a loan. But the appellant/plaintiff has not handed over the papers to him and he used those signed blank papers, fabricated and concocted Exs.A1 and A7. (v) The learned counsel for the appellant/plaintiff submitted that it is a well known practice that while applying loan at Bank, each and every Bank has its own printed formats for lending loan to its customers. So the theory that the appellant/plaintiff herein has obtained a signature in white papers to assist the first respondent/first defendant for obtaining a loan from Tamil Nadu Mercantile Bank is only a cock and bull story. The appellant/plaintiff has made the grounds:4,5 and 8 in the appeal are only on this regard. It is true that each and every nationalised and scheduled Banks are their own printed formats for lending loans to customers. So the defence raised by the first respondent/first defendant that the signature obtained by the appellant/plaintiff for assisting to obtain loan from Tamil Nadu Mercantile Bank was utilised for fabricating of Ex.A1 is unacceptable one. (vi) The first respondent/first defendant is a worldly wise person. As per the evidence, he was already worked in Wellington Tea Estate at Coonoor and thereafter, the appellant/plaintiff joined with him. So, it is unbelievable that the appellant/plaintiff has got signatures from him in three blank white papers, Rs.10/- stamp paper and a revenue stamp affixed blank paper for arranging a loan from Tamil Nadu Mercantile Bank, Mettupalayam. So the defence raised by the first respondent/first defendant that the papers, where he put his signatures were used for fabricating Ex.A1 by the appellant/plaintiff, is unacceptable. (vii) It is appropriate to consider the arguments advanced by the learned counsel appearing for the appellant/plaintiff that the persons of full age and understanding, who subscribe their signatures to a document, cannot be heard to say that they had affixed the signatures on blank papers or that they signed without appraising themselves about the recitals. To substantiate the above arguments, he relied upon the decision reported in 2008(5) CTC 690 (Chokkammal and 3 others v. K.Balraj), in para-7, it reads as follows: "7.As a measure of sound reasoning, it could be stated that the persons of full age and understanding who subscribe their signatures to a document, cannot be heard to say that they had affixed the signatures on blank papers or that they signed without appraising themselves about the recitals. If they had been so imprudent to affix the signatures in such a fashion, they have to take the consequence for such imprudence. In this case, there is nothing to suspect that the document could have been brought about under vitiating https://hcservices.ecourts.gov.in/hcservices/ circumstances. The Trial Court has found that on a wholesale consideration of evidence that Ex.A3 was true and it has also considered the evidence of witnesses to the transaction viz. the scribe under Ex.A1 and also one of the witnesses Chellappa, who is PW2. The said Chellappa is the witness in Ex.A3. I, therefore, confirm the finding recorded by the Trial Court that Ex.A1 and A3 are true and the defendants have obligated themselves under this document to execute the sale in favour of the plaintiff." He submitted that the first respondent/first defendant is a worldly wise person, who subscribe his signature to a document, cannot be heard to say that he had affixed the signatures on blank papers or that he signed without appraising himself about the recitals. For the said reason, he also relied upon the decision reported in 1993 (II) MLJ 144 (Kumarasamy and others v. S.K.John(died) and others), in paragraphs-5 and 6, it read as follows: "5. Even the appellants 1 and 2 in their pleadings do not deny their thumb impression and signature in Ex.A1 agreement. They would only say that in connection with the sale of another piece of land measuring 40 cents, they were constrained to affix their signature and thumb impression on a number of papers and the first respondent has fabricated Ex.A1 agreement by utilising one such paper. But in the witness box, the first appellant as D.W.1 merely states that he sold 40 cents of land to the first respondent and the sale deed was registered at the Registrar's Office at Poonamallee. He never entered into any agreement with the first respondent. This witness nowhere deposes that he had signed on a number of sheets along with the second appellant and handed them over to the first respondent. Besides there is practically no evidence to substantiate the plea of the appellants that there was any exercise of fraud, or misrepresentation on the part of the first respondent in getting Ex.A-1 agreement executed. The onus is on the appellants 1 and 2 to explain how their signatures are found in Ex.A-1. The explanation offered by them is not proved to be true. Both the appellants are worldly wise though they are not educated. Both are employed. D.W.1 admits that he is a former employee of vehicle department. The second appellant is an employee of Madras Electricity System. So the claim of the appellants that first respondent played fraud on them and obtained their signature and thumb impression on blank papers representing that they were required for the purpose of sale of another piece of 40 cents land https://hcservices.ecourts.gov.in/hcservices/ cannot be accepted. 6.D.W.1 further states that he entered into Ex.B.5 agreement with the third appellant on 10.09.1992 to sell the suit property to him. Though the averments in the written statement are to the effect the pursuant to Ex.B-5 agreement, he delivered possession of the suit property to the third appellant and handed over the original title deeds, in the witness box he is conspicuously silent on this aspect. In the cross- examination, it was elicited from him that he handed over the title deeds to the third appellant as per the recital in Ex.B-5. Even in his chief examination he merely states that the advance was paid by the third appellant to his wife. He does not know what was the amount paid as advance. Though he claims to have handed over three prior title deeds and three patta books to the third appellant pursuant to the sale agreement, he has not chosen to say