IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20 -4 -2006 CORAM: THE HONOURABLE MR.JUSTICE P.K.MISRA AND THE HONOURABLE MR.JUSTICE R.SUDHAKAR L.P.A.No.21 of 2000 P.Panneerselvan .. Appellant/ Defendant vs. 1. A.Baylis (deceased) 2. Sarojini 3. Auspin Anburaj 4. Marvin Baylis (Respondents 2 to 4 brought on record as LRs. of the deceased sole respondent – vide Order of Court dated 29.9.2005 made in C.M.P.No.15517 of 2005) ..Respondents/ Plaintiff Letters Patent Appeal under Clause 15 of the Letters Patent against the judgment and decree dated 14.12.1999 in A.S.No.600 of 1987 on the file of this Court. For appellant: Mr.T.R.Rajagopalan, Senior Advocate for Mrs.Chitra Sampath For respondents : Mr.K.V.Ananthakrishnan for RR-2 to 4 JUDGMENT R.SUDHAKAR,J. The appellant before this Court is the defendant in the Original Suit in O.S.No.156 of 1984 before the Sub-Court, Madurai. The present L.P.A. is against the judgment and decree of the learned single Judge in A.S.No.600 of 1987, confirming the judgment and decree passed in O.S.No.156 of 1984 on the file of the Sub-Court, Madurai. The parties will be referred to as they are arrayed in the Original Suit. 2. The plaintiff has filed the suit for specific performance of contract to execute the sale deed in respect of 1 acre 30 cents in R.S.No.174/5 in Uthagudi Village in Madurai District or in the alternative, for recovery of a sum of Rs.1,00,000/- with 18% interest from the defendant. 3. The case of the plaintiff is as follows: The plaintiff and the defendants were good friends. The defendant was engaged in development and sale of land and he is https://hcservices.ecourts.gov.in/hcservices/ the owner of the land in R.S.No.174/4 measuring 60 cents, R.S.No.174/5 measuring 1 acre 30 cents in Uthangudi Village, Madurai District. The defendant intended to purchase further extent of 4 acres 15 cents from the same village adjacent to the abovesaid lands in R.S.No.175/2 measuring 69 cents, R.S.No.174/2 measuring 1 acre 31 cents, R.S.No.175/1 measuring 74 cents, R.S.No.174/3 measuring 85 cents and R.S.No.173/5 measuring 58 cents, for which, some advance have been already paid and for the execution of the said sale, the defendant required further funds. In view of the above, the defendant offered to sell 1 acre 30 cents either out of the land bearing R.S.No.174/5 or an equal extent of 1 acre 30 cents out of 4 acres 15 cents which was proposed to be purchased and therefore, the defendant wanted the plaintiff to pay the entire sale price of Rs.1,00,000/-. The plaintiff further states that a sum of Rs.1,00,000/- as agreed was paid by the State Bank of India Cheque dated 10.10.1983 and the defendant received the same and encashed the cheque. It is also stated that the defendant represented to the plaintiff that the land to an extent of 4 acres 15 cents would be purchased within a few months and the sale deed will be executed in favour of the plaintiff within a period of three months and that the defendant has executed an agreement in favour of the plaintiff on 10.10.1983. However, since the defendant did not purchase 4 acres 15 cents, the plaintiff called upon the defendant to execute the sale deed in respect of R.S.No.174/5 measuring 1 acre 30 cents, since he had already paid the full sale consideration of Rs.1,00,000/- to the defendant. The defendant was postponing the execution of the sale deed on some pretext or the other. That on 14.12.1983, the defendant refused to execute the sale deed in favour of the plaintiff in a personal meeting held on that day. The plaintiff was always ready and willing to get the sale deed executed in his favour and that the defendant was evading the sale. Therefore, the plaintiff issued the lawyer's notice to the defendant on 16.12.1983 and a paper publication was made on 17.12.1983. The defendant sent a reply dated 27.12.1983 refuting the contentions of the plaintiff and the rejoinder was sent by the plaintiff on 5.1.1984. Hence, the plaintiff was constrained to file the suit for specific performance of the contract of sale. The plaintiff also made a prayer that in the event of the Court finding that the plaintiff was not entitled to the specific performance of the contract, the plaintiff pleaded that he was entitled to a sum of Rs.1,00,000/- paid by him to the defendant. The plaintiff also prayed for interest @ 18% by way of damages to him from 10.10.1983 on the abovesaid sum of Rs.1,00,000/-. The schedule of property as per the plaint is R.S.174/5 measuring 1 acre 30 cents in Madurai District, Madurai North Taluk, Uthangudi Village. 4. A written statement was filed by the defendant wherein it was categorically stated that he did not offer to sell 1 acre 30 cents from R.S.No.174/5 or an equal extent of 1 acre 30 cents out of 4 acres 15 cents. The specific case of the defendant is that there was no agreement to sell a specified extent of land. In sum and substance, the contention of the defendant was that the so-called agreement was only in the draft stage which was corrected by the plaintiff and that a bare reading of the so- https://hcservices.ecourts.gov.in/hcservices/ called agreement would disclose that the rate per cent was not decided and that it will have to be arrived subsequently and nowhere in the said draft agreement, an extent of 1 acre 30 cents was mentioned to be sold to the plaintiff. There was no consensus between the parties on the terms and conditions in the so-called agreement. The defendant would further go on to state that there was no date on the said agreement. It was contended by the defendant that in the subsequent negotiations between the parties which had happened on several dates in December 1983, the parties could not arrive at the value per cent or the extent and therefore, the matter was left at that. 5. In the Original Suit before the Sub-Court, the learned trial Judge held in favour of the plaintiff and decreed the suit to the effect that there was an agreement between the parties on 10.10.1983 for sale of 1 acre 30 cents and the defendant having received the entire sale consideration of Rs.1,00,000/-, was bound to execute the sale deed. As against this, appeal in A.S.No.600 of 1987 was filed before this Court by the defendant and in A.S.No.600 of 1987, the judgment and decree of the trial Court were confirmed and consequently, the defendant is now before this Court as appellant in this appeal under Clause 15 of the Letters Patent. 6. The contention of the appellant/defendant in the case is as follows: There was no concluded agreement between the parties and assuming that there was such an agreement, the same is uncertain with regard to the extent of land to be sold, the amount to be paid per cent and the identity of the land to be sold. The whole case depends on the interpretation of Ex.A-2 agreement, which agreement is said to be dated 10.10.1983, in which the defendant alone has signed and there is no date on the so-called agreement. It is only in the plaint that the date 10.10.1983 is referred to. The specific case of the plaintiff that the defendant would sell 1 acre 30 cents in R.S.No.174/5 is also not specified in the said agreement and therefore, the so-called agreement is vague and unenforceable and in any event, the pleadings in the plaint are contrary to the terms contained in the so-called agreement Ex.A-2 said to be dated 10.10.1983. The findings of the Courts below are totally erroneous and on total misreading of the so-called agreement said to be dated 10.10.1983. According to learned counsel, it is not an agreement enforceable in law. 7. It is the further case of the appellant/defendant that there was no concluded contract enforceable under law. The learned single Judge misconstrued the so-called agreement Ex.A-2 and supplied facts and figures in order to uphold the decree in the suit. It is also contended that in a suit for specific performance of an agreement to sell immovable property, what is required to be gone into by the Courts is to interpret the terms of the agreement and there is no scope for considering extraneous materials to interpret the terms of the contract. Such an exercise has been done in this case by the Courts below, which is on the face of it, erroneous. Further irrelevant materials have been taken into consideration for the purpose of interpreting https://hcservices.ecourts.gov.in/hcservices/ Ex.A-2, the so-called agreement. The reasoning given by the learned single Judge on the so-called agreement Ex.A-2 is perverse and unreasonable. It is further contended that the so-called agreement was only offer by the defendant to sell the land in future while reserving the question of fixing the rate per cent for the land, to a subsequent date and therefore, there was no concluded enforceable contract in order to lay a claim for specific performance. 8. It is further contended by the appellant/defendant that certain terms contained in Ex.A-2 were contingent on the defendant purchasing property from third party. None of the parties were aware of the value of the land that would be finally purchased. Therefore, there was no occasion for the defendant to agree for a specific price at Rs.769/- per cent and therefore, the reasoning of the Courts below that the value of the land to be sold per cent is Rs.769/-, is imaginary, arbitrary, illogical and incorrect. 9. The appellant/defendant also contended that the criminal complaint filed by the respondent/plaintiff to the Superintendent of Police after the disposal of the suit, which was brought to the knowledge of the learned single Judge, in C.M.P.No.1443 of 1991, the details of the police complaint was referred to, but materials relevant to the case were overlooked and the petition was rejected by the learned single Judge. However, if such document was considered, it would fairly go to establish the admission of the plaintiff that the so-called agreement was only given as a security and it was not entitled to be acted upon in the manner claimed by the plaintiff. In fine, learned counsel for the appellant/defendant would submit that so many inferences have been made by the learned single Judge to read into the agreement Ex.A-2 in the manner in which the plaintiff wanted it to be read. 10. It is also contended by the defendant that the fact that the plaintiff had not signed Ex.A-2 agreement would only go to show that so many conditions were left open to be decided in future and there was no conclusion of the said agreement. Further, when the plaintiff has not indicated in the suit notice or in the plaint or in the chief examination about the determination of price at Rs.769/- per cent, it is not fair on the part of the Courts below to fix the rate at Rs.769/- per cent based on the value of the other properties, which the Court is not called upon to do. 11. Learned counsel for the respondent/plaintiff on the other hand would contend that both the trial Court and the first appellate Court have given cogent reasons in support of the case of the respondent/plaintiff and therefore, this Court, sitting in appeal under Clause 15 of the Letters Patent, should not interfere with the questions of fact and law, especially when concurrent findings are rendered by the Courts below and would rely upon the case reported in 2005 (4) M.L.J. 24 (SC) = 2005 (6) SCC 243 (Umabai vs. Nilkanth Dhondiba Chavan). 12. The present case primarily revolves around the interpretation of the agreement said to have been signed on https://hcservices.ecourts.gov.in/hcservices/ 10.10.1983 and marked as Ex.A-2 and signed by the appellant/defendant. Therefore, it will be most appropriate if the said document is considered before we proceed any further to adjudicate the issues involved in the present appeal. The said agreement reads as follows: “I, P. Paneer Selvan, S/o. late S. Ponmuthu Nadar, 21. East Vadam Bokki Street, Madurai -1. have purchased 1 acre 90 cents of land which is locate at 92 Uthangudi Village, Madurai R.S.No.174/4 – 60 cents and 174/5 – 1 acre 30 cents from Mr.D.K. Dhurwasan S/O. late S. Krishnasamy Iyer Door No.94.A, East Veli Street, Madurai and from his younger brother Mr.D.K. Sundara Rao, Door No.172. East Veli Street, Madurai. And the document was registered on the date of 6-10-83 at Madurai Mahal register office. And I also intend to purchase 4 acres 15 cents of land which is located at the same area R.S.No.173/2 – 69 cents, 174/2 – 1 acres 31 cents, 175/1 – 74 cents, 174/3 -83 cents and 173/5 -58 cents from the above mentioned party. And I have taken a State Bank of India cheque No.A85 567448 dated 10-10-83 for rupees one lakh from SB A/C No.32881 of Mr.Baylis, 7/255, Alwar Nagar, Nagamalai, Madurai 19, assuring him that I will offer the lands worth the full amount of rupees one lakh at the rate we have mutually agreed upon on individual integrity, either from the purchased land 1 acre 90 cents or from the land which I intend to purchase i.e 4 acres 15 cents of land. If it is not possible to purchase the 4 acres 15 cents, the lands will be provided to Mr. Baylis only from the purchased land i.e. 1 acre 90 cents within a period of three months.” 13. On a perusal of the so-called agreement, the following relevant factors are apparent: (a) There is no mention anywhere in the said agreement that the appellant/defendant had agreed to sell 1 acre 30 cents of land and in particular in R.S.No.174/5. (b) The so-called agreement speaks only about the defendant offering a land worth Rs.1,00,000/-. (c) In the so-called agreement, it is mentioned as, " .. at the rate we have mutually agreed upon on individual integrity .. ". (d) The agreement does not state the rate per cent of the land sought to be sold. (e) The extent of land offered for sale has not been specified. 14. The abovesaid factors give rise to certain vital questions as to the nature and intent of the agreement and the intention of the parties at the time of signing the agreement. Except stating that the land will be sold for a sum equivalent to Rs.1,00,000/-, the other details as claimed by the respondent/plaintiff in the plaint or in the legal notice, do not find a place in the agreement. Therefore, on the face of the so- called agreement, it is seen that the relevant factors as https://hcservices.ecourts.gov.in/hcservices/ enumerated above are absent, which necessarily give rise to an element of doubt as to the intention of the parties to the so- called agreement. The said agreement has to be examined with regard to the plea of the appellant/defendant that the agreement is vague and also is bereft of material particulars and it is not a concluded agreement. 15. The plaintiff has to establish his case for specific performance of the contract of sale with regard to the terms as contained in the agreement. It is therefore necessary to find out whether the agreement relied upon by the plaintiff is a definite, specific and a concluded contract which can be specifically enforced. 16. In the present case, the only factor which apparently seems to be certain is that a sum of Rs.1,00,000/- was paid to the appellant/defendant. However, several other factors as enumerated above are silent in the said agreement. It therefore gives room for doubt regarding the conclusive nature of the agreement which is sought to be specifically enforced. Merely because the defendant had signed the so-called agreement, certain observations as to the conduct of the defendant cannot by itself give rise to a conclusion that the plaintiff's case would succeed. The plaintiff must establish that the suit for specific performance is maintainable based on the so-called agreement said to be dated 10.10.1983 and the agreement for sale is specifically for a specified rate and to sell a specific extent. The plaintiff has to succeed on the strength of his own case and not based on the weakness of the case, if any, on the part of the defendant. 17. Another contention on behalf of the respondent/plaintiff is that certain lands were purchased by the appellant/defendant at the rate of Rs.300/- Rs.400/- per cent at about the same time in the vicinity and also by the respondent/plaintiff for the same rate and therefore, there was a definite understanding that the defendant would sell 1 acre 30 cents of land for the abovesaid sum of Rs.1,00,000/-. Even as per this calculation, the rate per cent comes approximately to Rs.769/- and odd. If the rate as specified by the respondent/plaintiff is approximately Rs.300/- to Rs.400/- per cent and the extent of land for the abovesaid Rs.1,00,000/- would be 2.50 acres approximately. Hence, the extent of the land, namely 1.30 acres for the value of Rs.1,00,000/-, the rate per cent Rs.769/-, seems to be an inappropriate figure. 18. Yet another factor which would appear to be relevant for the purpose of determining the contention that no rate has been concluded, can be inferred from the following narration of events: (i) As per the plaintiff’s case, on 14.12.1983, the defendant refused to complete the transaction and, on 16.12.1983, notice was issued by the lawyer on behalf of the plaintiff. In such notice, it is indicated as if the defendant offered to sell 1 acre 30 cents either in the land bearing R.S.No.174/5 or an equal extent of land in 4 acres 15 cents to be purchased by the defendant. A reply dated 27.12.1983 to the aforesaid notice was sent by the defendant, wherein it was indicated: https://hcservices.ecourts.gov.in/hcservices/ “It is incorrect and mischievous to state as if there was an agreement to sell any specific extent for definite and ascertained consideration.” It is further indicated : “... The draft of the alleged agreement, which was corrected by your own client himself, will clearly disclose that the rate per cent will have to be arrived at only subsequently after talk between the parties. Hence without ascertaining or arriving at the consideration or price for arriving at the extent for one lakh, as alleged by your client (but which is denied) unless the rate per cent is negotiated and fixed, the exact extent could not be fixed. It is significant that there is no whisper in your client’s notice with regard to the fact whether the rate per cent was arrived at and much less at what rate.” In this reply, it is stated that the plaintiff had come to the defendant’s shop on 15.12.1983 and the conversation between them had been tape recorded separately by both the parties. Subsequently, even though a reply to the aforesaid reply dated 27.12.1983 was sent by the Advocate of the plaintiff on 5.1.1984, the date of agreement was not mentioned, there was no denial that rate was not fixed as well as the extent and survey number. (ii) Further, Ex.B-1, which is the corrected draft, on the basis of which Ex.A-2 is said to be typed out in a stamp paper and signed by the defendant shows that the draft, which had been typed out by the defendant, was admittedly corrected by the plaintiff in his own handwriting. It is significant to note that the draft initially contained the expression, “ I will offer the lands worth around rupees 2500/- per cent to the total value of rupees one lakh which I have taken”. Such expression was scored off, and in the plaintiff’s handwriting it was corrected to read : “I will offer the lands worth to the full amount of Rs.one lakh at rate we have mutually agreed upon on individual integrity.” As stated above, the corrected draft was typed on a stamp paper and signed by the defendant alone. Even though the rate is stated to have been mutually agreed upon, there is no material to come to a conclusion that in fact the parties had agreed upon to a particular rate and, if so, at what rate. If the rate had been concluded as stated emphatically, there was no explanation for not incorporating it in the so-called agreement. 19. It is therefore clear that there was no consensus on the rate per cent, as also the extent of land, which will clearly give rise to only one conclusion that the so-called agreement dated 10.10.1983 was not definite. On the contrary, the so-called agreement Ex.A-2 is vague and bereft of particulars and consequentially, an inconclusive document. https://hcservices.ecourts.gov.in/hcservices/ 20. Learned single Judge determined the following points for consideration: "(i) Whether the agreement dated 10.10.1983 is a concluded contract or it is only an offer of sale made by the defendant? (ii) Whether there was no mutual agreement between the parties in respect of price and extent to be sold by the defendant? and (iii) Whether the plaintiff is entitled for specific performance of the contract or whether the plaintiff is entitled to return of advance amount paid by him treating it as borrowing done by the defendant?" 21. While discussing the above points, the learned single Judge observed in paragraph 8 of the judgment that, "the theory of loan even according to the defendant came only subsequently when according to him controversy arose with regard to fixation of price or rate for the land to be sold to the plaintiff." In paragraph 9 of the judgment, the learned single Judge observed that, "whether there was mutual agreement between the plaintiff and the defendant and whether there was consensus between the parties with regard to price and extent has to be gathered from the terms found in Ex.A-2 agreement and also from the evidence adduced by both sides." In paragraph 11 of the judgment, the learned single Judge would consider Ex.A-8 which is the sale deed in respect of 1.90 acres of land purchased prior to so-called Ex.A-2 agreement and the sale value in respect of Ex.A-8 is Rs.45,000/-. The learned single Judge placed reliance on this document to come to the conclusion that the amount of Rs.1,00,000/- was given by the plaintiff to the defendant only for the purchase of 1.30 acres of land. The learned single Judge further proceeds to hold that the plaintiff having parted with the huge amount, would not leave anything vague. Having observed that Ex.A-2 has to be considered for resolving the dispute in relation to the rate per cent and the land which is to be sold, the learned single Judge relies on Ex.A-8 to conclude that the plaintiff gave Rupees one lakh only for purchase of 1.30 acres and nothing was vague. This finding is not supported by Ex.A-2. What is offered is land in any one of the properties to be purchased, (i.e) to say, it could be even from the 4.15 acres to be bought subsequently. In such a case, the values will have to be determined in future only. Therefore, there is no reason to hold that the so-called agreement is complete and final in all respects. 22. In paragraph 12, the learned single Judge discusses Ex.B- 1, the draft agreement with regard to certain corrections made (of which, we have already referred to) and hold that the defendant admits Ex.B-1 draft agreement as the first document and Ex.B-1 draft agreement was prepared in singular manner and thereafter, Ex.A-2 agreement was signed by the defendant alone and therefore, there was no difficulty in holding it as valid, because the plaintiff who has not signed the agreement, has accepted the same. The learned single Judge also rejects the contention that Ex.B-1 draft agreement was prepared by the plaintiff as not probable, https://hcservices.ecourts.gov.in/hcservices/ because the defendant had admitted that the discussion with regard to the so-called agreement was held at his office and therefore, it was probable that it was typed by the defendant. The tenor of the draft agreement shows that it had been prepared by the