IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.08.2008 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN A.S.No.196 of 2001 1. Thangam Ammal 2. Ramalingam 3. Ramesh 4. Baskar 5. Minor Thyagarajan Rep by next friend and guardian 2nd Appellant Ramalingam .. Appellants/Defendants -vs- Rattan Chand .. Respondent/Plaintiff This appeal is filed under Section 96 of CPC against the Judgment and Decree dated 11.4.2000 passed in O.S.No.95 of 1998 on the file of the Court of Principal Subordinate Judge,Mayiladuthurai. For appellants : : Mr. S.Soundar,Advocate For respondent: : Mr.A.Muthukumar,Advocate JUDGMENT The decree and Judgment in O.S.No.95 of 1998 on the file of the Court of Principal Subordinate Judge, Mayiladuthuri is under challenge in this appeal. The defendants in the suit are the appellants herein. 2. The short facts of the case of the plaintiff in the plaint sans irrelevant particulars are as follows: The plaint schedule property belongs to the defendants, which is a residential house. The second defendant is the husband of the first defendant and defendants 3 to 5 are the sons. The site of the suit property was purchased in the name of the first defendant on 15.3.1980 and superstructure was constructed over the plot by the defendants 1 and 2. The family of the defendants wanted to dispose of the suit property with a view to purchase some other property and for the funds required for the trade in which defendants 3 and 4 were engaging themselves. The offer made by the defendants was accepted by the plaintiff and they entered into an agreement of sale on 9.2.1996. The said agreement of sale was executed in front of a Notary Public . As per the sale agreement, the first defendant had agreed to sell the property for a total sale consideration of Rs.2,26,000/-. On the date of sale agreement itself, a sum of https://hcservices.ecourts.gov.in/hcservices/ Rs.2,00,000/- was paid as an advance. The time stipulated under the agreement of sale for the performance of a contract was four months. The first defendant had handed over the title deed relating to the suit property along with the encumbrance certificate to the plaintiff. The plaintiff was always ready and willing to perform his part of the contract. When the plaintiff approached the defendants for the execution of the sale deed, the defendants wanted further time to fix a suitable alternative accommodation for them. However, even after a lapse of several months, the defendants did not show any inclination to vacate the suit property, the plaintiff caused registered notice on 7.7.1997 setting forth the above facts and calling upon them to express their willingness to perform their part of the contract. The defendants have not sent any reply . In view of the amended provisions of the Specific Relief Act, the plaintiff has asked for an alternative relief of the return of the advance with interest thereon at 24% per annum by way of damages and on a charge of the suit property. The plaintiff is ready and willing to deposit the balance of sale consideration into Court. Hence the suit. 3. The Defendants 2 to 5 have adopted the written statement filed by the first defendant which runs as follows: The suit is barred by limitation. The document dated 9.2.1996 is not true and valid and no consideration was passed under the said document. On 4.9.1995, the first defendant has borrowed a sum of Rs.50,000/- from the plaintiff. The plaintiff made a condition to the first defendant to make a "Agreement of Sale" before the Notorised to endorse the amount in double ie., Rs.1,00,000/-. Actually it is not an agreement of sale, it is only a document created by the plaintiff. The plaintiff is a professional moneylender. His business is to give loans with huge rate of interest. In fact, the first defendant has borrowed a sum of Rs.50,000/- from the plaintiff. The plaintiff followed the familiar formula "Agreement of Sale" at the time of executing the agreement. The plaintiff has filed a similar type of suit for Specific Performance before this Court. The second document dated 9.2.1996 is not true and valid. No consideration was passed under the said document. Only to get over the time of limitation , the second agreement is created and also added the interest for the amount borrowed by the first defendant on 4.9.1995. All these documents are part of the act of the defraud of the plaintiff. After receiving the notice on 7.7.1997, the first defendant immediately met the plaintiff, there was an oral compromise entered into between the plaintiff and the first defendant. One year time to be given by the plaintiff. The averments found in the plaint are scandalous in nature. The suit was not properly valid for Court fee and jurisdiction. Hence the suit is liable to be dismissed with costs. 4. On the above pleadings, the learned trial Judge has framed as many as five issues. On the side of the plaintiff, the plaintiff has examined himself as P.W.1 besides examining the Notary Public under Ex A1 as P.W2 and exhibited Exs A1 to A7. On the side of the defendants, the first defendant was examined as D.W.1 and Exs B1 to B3 were marked. After scanning the evidence both oral and documentary, the learned trial Judge has decreed the suit for Specific Performance of contract giving two months time for executing the sale deed after receiving the balance of sale consideration and https://hcservices.ecourts.gov.in/hcservices/ has dismissed the suit in respect of the alternative prayer. Aggrieved by the findings of the learned trial Judge, the defendants have preferred this appeal. 5. Now the points for determination in this appeal are i) Whether there was any valid demand from the plaintiff as to show that he has performed his part of the contract in terms of Ex A1 compelling the defendants to execute the sale deed in respect of the plaint schedule property under Ex A5? ii) Whether the grant of relief of Specific Performance of Contract by the trial Court, rejecting the alternative relief is sustainable? Iii)Whether the Judgment and decree in O.S.No.95 of 1998 on the file of the Court of Principal Subordinate Judge, Mayiladuthurai is liable to be set aside for the reasons stated in the memorandum of appeal? 6. Heard the learned counsel appearing for the appellants as well as the learned counsel appearing for respondent and considered their submissions. 7. Point No 1: The sale agreement entered into between the plaintiff and the first defendant in respect of the plaint schedule property is Ex A1 dated 9.2.1996. The default clause in Ex A1 reads as follows: " In case, the first defendant has failed to execute the sale deed in respect of the property scheduled to Ex A1 within four months from the date of Ex A1 ie., on or before 9.6.1996, she is liable to receive a sum of Rs.2,000/- less from the balance of sale consideration and in case, the plaintiff fails to perform his part of the contract in terms of Ex A1, ie., within four months time stipulated for executing the sale deed from the date of execution of Ex A1, Sale agreement, he is liable to pay a sum of Rs.2,000/- more than the balance of sale consideration. Admittedly, the parties have not performed their part of the contract within the time stipulated under Ex A1. The demand for performance of contract in terms of Ex A1,emanates from the plaintiff only after nearly one year and five months from the date of Ex A1 under Ex A5 notice. Under Ex A5 notice, the plaintiff has stated that he is ready and willing to tender the balance of sale consideration of Rs.26,000/- only and demanded the defendants to perform their part of the contract. Ex A5 notice is not in terms of Ex A1. The plaintiff having failed to perform his part of the contract within the time stipulated under the terms of Ex A1 is liable to pay the balance of sale consideration of Rs.28,000/- and not Rs.26,000/-. So Ex A5 itself is not in accordance with the terms of Ex A1 sale agreement. 7a) The learned counsel appearing for the respondent relying on a decision reported in Rajeswari -vs- K.M.Kumarasamy (2007(4) MLJ 442) would contend that since the defendants have not send any reply to Ex A5, the plaintiff is entitled to the main relief of Specific Performance of Contract. The relevant observation on which reliance was placed by the learned counsel for the respondent in the said ratio runs as follows: https://hcservices.ecourts.gov.in/hcservices/ "1) In case of defence of money dealing by the vendor, it is for the vendor to prove the transaction as one of money dealing by some modes. 2) Failure to prove the discharge of money dealing, an adverse inference has to be drawn against the vendor; 3) Not sending any reply to the notice of the agreement holder, an adverse inference has to be drawn against the vendor" Even though the first defendant in her written statement would totally deny Ex A1 sale consideration on the ground that there was an earlier agreement entered into between the plaintiff and the first defendant on 4.9.1995, the evidence of P.W.2, the Notary Public in the presence of whom Ex A1 was executed between the plaintiff and the first defendant will clearly go to show that Ex A1 was executed between the plaintiff and the first defendant and on the date of execution of Ex A1 , the plaintiff has offered to Rs.2,00,000/- towards advance of sale consideration for the total sale consideration of Rs.2,26,000/-. It is seen from the evidence of P.W.2, the Notary Public, the previous agreement dated 4.9.1995 was also a sale agreement in respect of the same suit property. But according to P.W.1, the said earlier agreement was not acted upon between the parties since the first defendant had returned the amount received by her under the earlier sale agreement. But , according to D.W.1, she had borrowed a sum of Rs.50,000/- and at the instance of the plaintiff, the sale agreement was entered into but the same was not registered and for the interest due for the previous loan which was borrowed by her on 4.9.1995, Ex A1 was executed and that she had received only Rs.10,000/- under Ex A1. But her evidence was falsified by the evidence of P.W.2, the Notary Public before whom Ex A1 was entered into between the plaintiff and the first defendant. A perusal of Ex A1 will go to show that there is an endorsement made in the presence of P.W.2 as to the effect that a sum of Rs.2,00,000/- was paid by the plaintiff to the first defendant. Further, there is no reference about the earlier sale agreement dated 4.9.1995 in Ex A1. In a case of this nature, ie., for enforcing the Specific Performance of Contract under an agreement of sale, it is the bounden duty of the party who seeks the relief of Specific Performance of Contract to prove that he was always ready and willing to perform his part of the contract. As I have already mentioned, Ex A5 suit notice as emanated from the plaintiff only after one year five months from the date of Ex A1. But as per the stipulation of terms contemplated under Ex A1, the plaintiff has not come forward to pay the balance of sale consideration of Rs.28,000/- but he has stated that he is liable to pay only Rs.26,000/- which is against the terms of Ex A1. Under such circumstances, I hold on point No.1 that there was no valid demand from the plaintiff as to show that he has performed his part of the contract in terms of Ex A1 compelling the defendants to execute the sale deed in respect of the plaint schedule property under Ex A5. Point No.1 is answered accordingly. 8.Point NO.2: The learned counsel appearing for the respondent relying on a decision reported in Balasaheb Dayandeo Naik(dead) through Lrs -vs- Appasaheb Dattatraya Pawar(2008(1) CTC 530) would contend that in all https://hcservices.ecourts.gov.in/hcservices/ suits for Specific Performance of Contract, the plaintiff is entitled to seek alternative relief in the event of decree for Specific Performance of Contract cannot be granted for any reason. The relevant observation in the above said dictum of the Honourable Apex Court runs as follows: "The Constitution Bench decision in Chand Rani.v Kamal Rani, 1993, (1)SCC 519, also makes it clear that mere fixation of time within which contract is to be performed does not make the stipulation as to the time as the essence of contract. Further, we have already pointed out that the defendant has not bothered to prove his claim on oath before the Court to the effect that it was the plaintiffs who avoided performing their part of contract. All the above-mentioned material aspects were correctly appreciated by the Trial Court and unfortunately the High Court failed to adhere to the well known principles and the conduct of the defendant. When the third plaintiff deposed before the Court explaining their case with reference to the recitals in the agreement of sale including the reference to the legal notice to the defendant, in the absence of contra evidence on the side of the defendant, we are unable to agree with the conclusion arrived at by the High Court in non-suiting the plaintiff. The High Court commented the conduct of the plaintiffs in praying for refund of the earnest money,namely, Rs.20,000/- paid as advance. As rightly pointed out the claim for refund of earnest money is only their alternative claim. It is not in dispute that in all suits for Specific performance, the plaintiff is entitled to seek alternative relief in the event of the decree for Specific Performance cannot be granted for any reason,hence there is no infirmity in the alternative plea of refund". Basing reliance on the above observation of the Honourable Apex Court, the learned counsel appearing for the respondent would contend that the conduct of the first defendant is to be viewed seriously by this Court. The first defendant even in the written statement as well as in the box before the trial Court would come to the extent of denying the passing of part of the sale consideration and also his execution of the sale agreement itself and the learned counsel would focus the attention of this Court to the conduct of the first defendant at the time when she filed this appeal as informa pauperis and at that time, the respondent/plaintiff had produced encumbrance certificate to show that while pending suit, the first defendant had encumbered the plaint schedule property with the third party and after encumbrance certificate was filed by the respondent/plaintiff, the appellant/first defendant had withdrawn her application for declaring informa pauperis and paid the necessary Court fee for the appeal. Nodoubt, the conduct of the first defendant is not fair before the trial Court, but the point for consideration in this appeal is whether in the absence of any valid demand in terms of Ex https://hcservices.ecourts.gov.in/hcservices/ A1 ie., the plaintiff coming forward to deposit the balance of sale consideration of Rs.26,000/- and not Rs.28,000/- as per the terms of Ex A1, the plaintiff is entitled to the main relief of Specific Performance of Contract. I am of the considered view that since apart from Ex A5, there is no proof for the plaintiff to show that he was ready and willing to perform his part of the contract, he is not entitled to the main relief of Specific Performance of Contract. But the plaintiff is entitled to an alternative relief of Rs.2,00,000/- being part of the sale consideration(Advance) paid by him to the first defendant under Ex A1 in the presence of P.W.2. I hold on point NO.2 that the grant of relief Specific Performance of Contract by the trial Court, rejecting the alternative relief is not sustainable. 9. Point No.3 In view of my discussion and finding in the earlier paragraphs, I hold on point No.3 that the Judgment and decree in O.S.No.95 of 1998 on the file of the Court of Principal Subordinate Judge, Mayiladuthurai is liable to be modified as hereunder. 10.In fine, the appeal is allowed in part and the plaintiff is entitled to a decree for Rs.2,00,000/-(Rupees Two Lakhs) Only with interest at 12% p.a, in the absence of any agreement for paying 24% p.a.interest, from the date of suit till the date of decree and with future interest at 6% p.a from the date of decree till the date of realisation on the principal amount of Rs.2,00,000/- with proportionate costs. The learned counsel appearing for the respondent/plaintiff would represent that the entire cost has already been paid to the petitioners/defendants before this Court. The decree and Judgment of the learned trial Judge in O.S.No.95 of 1998 on the file of the Court of Principal Subordinante Judge, Mayiladuthurai in respect of the main relief is hereby set aside. There will be a charge for the decree amount over the plaint schedule property. The learned counsel appearing for the respondent would further represent that the respondent/plaintiff had deposited the balance of sale consideration as per the direction of the trial Court before the Trial Court. If it is so, the plaintiff is entitled to withdraw the said amount with accrued interest, if any. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrarsg To 1. The Principal Subordinate Judge, Mayiladuthurai. 2. The Record Keeper, V.R.Section, High Court, Madras 1 cc To Mr.S.Sounthar, Advocate, SR.46922 1 cc To Mr.A.Muthukumar, Advocate, SR.46850 A.S.NO.196/2001 TEJ(CO) SRA(06/02/2009) https://hcservices.ecourts.gov.in/hcservices/