IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.1.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA S.A.No.364 of 2003 Angamuthu .. Appellant / I Defendant Vs. 1. R.Radhakrishnan ..Respondents/ Plaintiff 2. M.Gajalakshmi ..Respondent/2nd Defendant Second Appeal against the judgment and decree dated 25.11.2002 in A.S.No.66 of 2002 on the file of the Principal District Court, Villupuram, against the judgment and decree dated 21.12.2001 in O.S.No.206 of 1999 on the file of the Second Additional Sub-Court, Villupuram. For appellant : Mr.V.Girish Kumar For respondent : Mrs.Hema Sampath, Senior Counsel for M/s.R.Subramanian for R-1 R-2-Second Appeal Dismissed, vide Court order dated 28.4.2006 JUDGMENT The Second Appeal is filed by the second defendant against the judgment and decree dated 25.11.2002 in A.S.No.66 of 2002 on the file of the Principal District Court, Villupuram, reversing the judgment and decree dated 21.12.2001 in O.S.No.206 of 1999 on the file of the Second Additional Sub-Court, Villupuram. 2. The averments in the plaint are as follows: The suit property belongs to the defendants. The plaintiff entered a sale agreement with the defendants on 14.8.1997. The sale price has been fixed at Rs.2,50,000/-. Rs.2 lakhs has been paid as advance on the date of execution of sale agreement. Balance Rs.50,000/- is to be paid within two years from the date of agreement of sale and to obtain the sale deed from the defendants. https://hcservices.ecourts.gov.in/hcservices/ The plaintiff is always ready and willing to perform his part of the contract. But the defendants are postponing the same, even though time is not the essence of the contract. The plaintiff came to know that the defendants are making attempt to alienate the suit property and hence, he issued notice through his counsel on 3.8.1999. He received reply notice with a false and untenable allegations. Hence, he is constrained to file the suit for specific performance, or in the alternative, to pay Rs.2,49,399.96/- as damages, i.e. advance amount and interest @ 12% from the date of sale agreement till the date of filing the suit. He prayed for a decree. 3. The gist and essence of the written statement filed by the first defendant are as follows: There is no privity of contract between the plaintiff and the first defendant. The genuineness of the document is disputed. The first defendant never received any advance as alleged in the plaint. The first defendant has no intention to sell the property. The value of the property is worth several times. The suit agreement came into existence on the following facts: The second defendant's husband was running a lorry. The plaintiff seems to have advanced some amount to the husband of the second defendant for maintenance of the lorry. Since the second defendant's husband did not repay the instalments regularly, the plaintiff arranged to sell the said lorry and has released his dues by selling the lorry for Rs.4,50,000/- for himself. Only towards the security for the abovesaid dues, the plaintiff took the suit agreement from the defendants. After the discharge of the plaintiff's dues as aforesaid, the defendants sought for return of the document. The plaintiff under some pretext or the other, evaded to return the same. In order to make a capital gain out of the situation, the plaintiff has filed the suit for specific performance. The suit property was never intended to be sold to the plaintiff. The suit document was taken by coercion without any consideration as recited therein and it is unenforceable in law. The plaintiff has not come to Court with clean hands. There is no cause of action for the suit. Hence, he prayed for dismissal of the suit. 4. The trial Court, after considering the averments both in the plaint and in the written statement, has framed three issues and considering the oral evidence of P.W.1, D.W.1 and Exs.A-1 to A- 5, dismissed the suit, stating that Ex.A-1 has come into existence as alleged by the defendants. Against that, the plaintiff preferred appeal and the first appellate Court, after hearing the arguments of both the counsel, had framed four points for determination and came to the conclusion that Ex.A-1 is the sale agreement and since the first defendant is not performing his part of the contract and the appellant-plaintiff is always ready to https://hcservices.ecourts.gov.in/hcservices/ perform his part of the contract, the first appellate Court has granted the decree for specific performance, allowed the appeal and set aside the judgment and decree passed by the trial Court. Against that, the present Second Appeal has been preferred by the first defendant. 5. At the time of admission of the Second Appeal, the following substantial questions of law were framed for consideration: "(i) Whether on the facts and in the circumstances of the case, the lower appellate Court was right in holding that the appellant has not established the loan transaction of his son-in-law when it was admitted by the first respondent in his evidence to shift the burden of proof of contents of Ex.A1? (ii) Whether on the facts and in the circumstances of the case, the lower appellate Court was right in holding that the first respondent/plaintiff is entitled for specific performance of contract? (iii) Whether the lower appellate Court can grant the relief of specific performance when the first respondent/plaintiff had not established that he had been ready and willing to perform his part of the contract? (iv) Whether the lower appellate Court can grant the relief of specific performance without considering various circumstances as stated under Section 20(2) of the Specific Relief Act?" 6. The first respondent as plaintiff filed the suit for specific performance, stating that Ex.A-1 has been executed by the appellant herein. Since he refused to execute the sale deed, he has come forward with the suit for specific performance. 7. The appellant herein, as first defendant, resisted the suit stating that Ex.A-1 is executed only as security for the loan availed of by his son-in-law. 8. The trial Court, after framing necessary issues and considering the oral and documentary evidence, dismissed the suit, stating that Ex.A-1 was executed as security for the loan obtained by the son-in-law. Against that, the first respondent-plaintiff preferred appeal and the first appellate Court has set aside the judgment and decree of the trial Court and came to the conclusion that Ex.A-1 is the sale agreement and the first respondent- plaintiff was always ready and willing to perform his part of the contract. Since the appellant-first defendant has evaded to execute the sale deed, the first appellate Court decreed the suit. Against that, the Second Appeal has been preferred by the appellant- first defendant. https://hcservices.ecourts.gov.in/hcservices/ 9. Learned counsel for the appellant-first defendant would submit that Ex.A-1 was executed only as security for the loan obtained by his son-in-law, who is none other than the husband of the second defendant. He availed of the loan for maintaining the lorry in the financial firm and that the first respondent-plaintiff himself is one of the partners of the financial firm and since subsequently, the vehicle has been seized, the amount has been recovered. He further submits that the value of the suit property is several times more than what was stated in Ex.A-1. So, the intention of the parties is necessary while considering the suit for specific performance. He relied upon the decision of a Division Bench of this Court reported in 2007 (1) LW 309 (Kamireddi Sattiaraju and another Vs. Kandamuri Boolaeswari) and the decision of a Division Bench of this Court reported in 2008 (3) CTC 1 (Retnaswamy,P. Vs. A.Raja). He further submits that the appellant is having the suit property only and hence, there is no need for the appellant-first defendant to enter into a sale agreement. He prayed for allowing this Second Appeal and to set aside the judgment and decree passed by the first appellate Court and to restore the judgment and decree of the trial Court. 10. Per contra, learned Senior Counsel for the first respondent-plaintiff would contend that the suit property is absolutely belonging to the appellant-first defendant. The second defendant is the daughter of the appellant-first defendant. If Ex.A-1 is only given as security for the loan obtained by his son- in-law, he has not filed any single document to show that he obtained the loan and repaid the same. Moreover, as soon as the loan amount has been paid, he has not issued any notice for return of the sale agreement. On the date of sale agreement, the appellant-first defendant has received Rs.2 lakhs. The decisions relied upon by the learned counsel for the appellant are not relevant. Learned Senior Counsel for the first respondent-plaintiff relied upon the decision of a Division Bench of this Court reported in 2009 (7) M.L.J. 640 (S.Andal Vs. K.Chinnasamy) and stated that the first appellate Court has considered the evidence of both sides and documents and came to the correct conclusion. So, there is no material irregularity or perversity in the judgment and decree passed by the first appellate Court. Hence, she prayed for dismissal of the Second Appeal. Substantial question of law (i): 11. It is admitted fact that the suit property belong to the appellant-first defendant. The second appellant is his daughter. The appellant-first defendant is a Teacher by profession. The first and foremost question to be decided is whether Ex.A-1 is sale agreement or it was created as security for the loan amount obtained by his son-in-law who is none other than the husband of the second respondent-second defendant. https://hcservices.ecourts.gov.in/hcservices/ 12. It is relevant to consider the defence raised by the appellant-first defendant. In his defence, in paragraph 4 of the written statement, he has stated that, "...The suit document was taken by coercion, without any consideration as recited therein and it is unenforceable in law...." Since he has pleaded coercion, as per Order 6 Rule 4 C.P.C., he must furnish the particulars to be given as to who, when and how, coerced him for obtaining Ex.A-1. It is pertinent to note that except one sentence in the written statement, i.e. "... document was taken by coercion, without any consideration as recited therein and it is unenforceable in law .. ", nothing has been averred or pleaded in the written statement. 13. At this juncture, it is appropriate to consider the reply notice given by the appellant in Ex.A-5. In paragraph 4 of the reply notice, he has pleaded that since Murugan has not repaid the amount, and the vehicle stands in the name of the second defendant and so, at that time, the appellant-first defendant threatened and obtained the document. So, the sale agreement is not true. It is stated as follows in Ex.A-5: @4/ //// me;j tifapy; c KUfdhy; c';fs; fl;rpf;fhuUf;f bjhif nruntz;oapUe;jJ/ c KUfdhy; c';fs; fl;rpf;fhuUf;F nruntz;oa bjhifia jtizg;go c bjhifia rhpahf fl;lhjjpdhy; xU bghWg;gpw;F xU hpf;fhh;L vGjp juntz;Lk; vd;W c';fs; fl;rpf;fhuh; v';fs; fl;rpf;fhuh;fis nfl;L te;jhh;/ c yhhp v';fSila 2k; yf;fkpl;l fl;rpf;fhuhpd; bgahpy; ,Ue;J te;jJ/ , e;epiyapy; v';fs; fl;rpf;fhuh;fis c';fs; fl;rpf;fhuh; kpul;o c';fs; nehl;Orpy; gpu!;jhgpj;Js;s xU j!;jhnt$pia vGjp th';fpa[s;shh;/ c';fs; nehl;Orpy; Fwpg;gpl;Ls;s fpiua xg;ge;jk; cz;ikahdJ my;y/ mJ rl;lg;go bry;yf;Toajy;y/ ///@ 14. While considering the deposition, in the chief examination, D.W.1 has not stated that the document has been obtained either by coercion or by threat. In that, he has stated that his son-in-law has obtained loan from the plaintiff and he has not paid the same and hence, he stood as surety. One more peculiar circumstance is that the attestor of Ex.A-1 is his son-in-law Murugan. He was not examined before the Court. 15. It is also pertinent to note that Ex.A-1 is a registered document. The appellant-first defendant is a Teacher by profession. In his cross-examination, he has stated that the document has been registered, that his son-in-law also was one of the attestors. One Sudarson is also one of the attestors. The appellant-first defendant fairly conceded in his written statement that his son-in- https://hcservices.ecourts.gov.in/hcservices/ law has obtained loan from the plaintiff and in his evidence also, he conceded that his son-in-law obtained loan from the plaintiff, but he does not know as to when he obtained loan. Considering the fact that the appellant is a teacher by profession, and gone to the Registration Department and registered the document, now, he turned back and pleaded that the document has come into existence only as security for the loan obtained by his son-in-law. Now, the appellant-first defendant as D.W.1 has categorically admitted the execution of Ex.A-1. But he has mentioned as to in what circumstances, it came into existence. Hence, the onus is heavily upon him to prove that under what circumstances Ex.A-1 has come into existence. But to prove the same, he has not examined his son- in-law, who has obtained loan from the financial company in which the first respondent-plaintiff is one of the partners. He has not filed any scrap of paper before the Court to show that his son-in- law has obtained loan and repaid the same by way of seizing the vehicle. 16. In the above circumstances, there is no evidence to show as to when the loan has been discharged. Even if the loan has been discharged, it is not known as to what prevented him to issue notice to the first respondent-plaintiff to seek for return and cancellation of the document Ex.A-1. But the appellant-first defendant has not produced any document to substantiate the same. He has not given any reason for non-examination of his son-in-law Murugan, who is one of the attestors to Ex.A-1. 17. Considering all the above aspects, I am of the opinion that Ex.A-1 has come into existence as sale agreement and not as security for the alleged loan. 18. Learned counsel for the appellant-first defendant relied upon the decision of a Division Bench of this Court reported in 2007 (1) L.W. 309 (cited supra) and urged that in the light of the evidence available on record, both oral and documentary evidence as well as application of Section 92 of the Indian Evidence Act, there is no scope to permit the appellant-first defendant to contradict or subtract the terms containing in Ex.A-1 agreement. According to the appellant, the entire evidence let in both oral and documentary, was only to demonstrate that inspite of existence of Ex.A-1, it will have to be held that the parties had a different contract altogether and Ex.A-1 was never intended to be acted upon. Relevant portion of the said judgment reads as follows: "14. .... At the outset, it will have to be stated that existence of Ex.A-1 agreement was never in dispute. As far as application of Section 92 of the Indian Evidence Act is concerned, by virtue of Section 91, and having regard to the existence of Ex.A-1 agreement, the terms https://hcservices.ecourts.gov.in/hcservices/ contained in Ex.A-1 are to be considered without any reference to any other oral evidence insofar as it related to the terms contained therein. In that respect, Sections 91 and 92 of the Indian Evidence Act are inter- dependent. In the light of the evidence available on record, both oral and documentary, as well as the application of Section 92 of the Indian Evidence Act, there is no scope to permit the appellants to contradict, vary or subtract the terms contained in Ex.A-1 agreement. Therefore, even taking Ex.A-1 agreement on its face value, what has to be considered is whether the contention put forward on behalf of the appellants that it was never intended to be acted upon, requires consideration. On this aspect, we find that the decisions relied on by learned counsel for the appellants Mr.R.Subramanian as reported in 2003 (6) SCC 595 = 2003- 3-L.W. 261 (supra) and 2004 (4) SCC 794=2004-4-L.W. 53 (supra) fully support his contention. 15. In the judgment reported in 2003 (6) SCC 595, in paragraph 22, the Supreme Court has stated that the legal position as regards the substantive part of Section 92 of the Indian Evidence Act in the following words: "22. This Court in Gangabhai v. Chhabubai (1982 (1) SCC 4 : AIR 1982 SC 20 = (1982) 95 L.W. 15 & 138 S.N) and Ishwar Dass Jain v. Sohan Lal (2000 (1) SCC 434 : AIR 2000 SC 426 = 2000-1-L.W.425) with reference to Section 92(1) held that it is permissible to a party to a deed to contend that the deed was not intended to be acted upon but was only a sham document. The bar arises only when the document is relied upon and its terms are sought to be varied and contradicted. Oral evidence is admissible to show that document executed was never intended to operate as an agreement but that some other agreement altogether, not recorded in the document, was entered into between the parties." 16. In the decision reported in 2004 (4) SCC 794 = 2004-4-L.W. 53, the Supreme Court has held as under in paragraph 9: " ... An enquiry into reality of transaction is not excluded merely by availability of writing reciting the transaction. Tyagaraja Mudaliyar vs. Vedathanni (AIR 1936 PC 70 : 64 IA 126 = (1936) 43 L.W. 271) is an authority for the proposition that the oral evidence in departure from the terms of a written deed is admissible to show that what is mentioned in the deed was not the real transaction between the parties but it was something different. https://hcservices.ecourts.gov.in/hcservices/ ..." 17. From the above ratio laid down by the Supreme Court, when we analyse the stand of the parties, according to the appellants, irrespective of the fact that Ex.A-1 came into being, it was contended that the deed was never intended to be acted upon and that it was a sham document. When the said stand is probed into further, as held by the Supreme Court, the bar under Section 92 of the Indian Evidence Act vis-a-vis Ex.A-1 would operate if only the appellants attempt to rely upon Ex.A-1 agreement and simultaneously sought to vary and contradict its terms. Such is not the case of the appellants. The appellants are not attempting to contend that the terms contained therein are to be varied or that the evidence let in on their side was to contradict the terms contained therein. According to the appellants, the entire evidence let in both oral and documentary, was only to demonstrate that inspite of existence of Ex.A-1, it will have to be held that the parties had a different contract altogether and Ex.A-1 was never intended to be acted upon. At the risk of repetition, we state that applying the ratio laid down by the Supreme Court, such a stand of the appellants was certainly not prohibited under Section 92 of the Indian Evidence Act." 19. Learned counsel for the appellant-first defendant also relied upon the decision of a Division Bench of this Court reported in 2008 (3) CTC 1 (cited supra), wherein, in paragraphs 36 and 37, it was held as follows: "36. Moreover, the first respondent/first defendant in the said counter has also taken a categorical stand that it is true that he used to raise loans through the appellant/plaintiff and repay the same through him, for which the appellant/plaintiff used to obtain his signatures on blank Non-judicial Stamp Papers and Revenue Stamps as well as white papers and believing him, he used to issue such blank papers affixing his signatures and that there is no evidence to prove that the appellant/plaintiff has paid a sum of Rs.8,05,000/- (Rupees Eight Lakhs and Five thousand only) by cash in lumpsum and that he has already disposed of his property in order to discharge his debts. 37. A perusal of Ex.P.1-Agreement dated 10.7.1996 indicates that there are three stamp papers of value Rs.10/- each. There are two witnesses mentioned in the last page of Ex.P.1-Sale Agreement. No one has been examined as witness on the side of appellant/plaintiff in https://hcservices.ecourts.gov.in/hcservices/ the case. In fact, the recitals found in Ex.P.1-Sale Agreement are in typed form. No doubt, in Ex.P.1- Agreement dated 10.07.1996 the signature of the first respondent/first defendant finds a place. Even then, it is the burden of the appellant/plaintiff to prove that Ex.P.1-Agreement is a true and valid one in the eye of law. The fact that no one witness, as seen in Ex.P-1- Agreement is examined in the case is a circumstance which certainly goes against the appellant/plaintiff. In this connection, it is useful to refer to Ex.P.4, Lawyer Notice dated 06.07.1998 issued by the appellant/plaintiff's counsel addressed to the first respondent/defendant, wherein it is among other things stated that the first respondent/first defendant has approached the appellant/plaintiff for a compromise offering to return a sum of Rs.9,00,000/- (Rupees nine lakhs only) by issuing the nine cheques and out of these nine cheques, two cheques serial Nos.8 and 9 for Rs.2,00,000/- are dated 15.08.1998 and 30.08.1998 and that the appellant/plaintiff is not interested in getting back his amount given as part sale consideration in pursuance of the agreement dated 10.7.1996 and that the cheques were received in order to establish the appellant/plaintiff's case better in C.S.No.80 of 1997." 20. The appellant-first defendant in the written statement has stated that he never executed the sale agreement and he executed the document only as security for the loan obtained by his son-in- law Murugan, but Murugan has not been examined before the court. Hence, the above citations are not relevant, because in the above citations, the executant himself has admitted the execution of sale agreement, but he reveals that there is no intention to enforce the sale agreement. So, the abovesaid citations are not applicable to the facts of the case. 21. Learned Senior Counsel for the first respondent-plaintiff would rely upon the decision of a Division Bench of this Court reported in 2009 (7) MLJ 640 (cited supra) and argued that when the appellant-first defendant pleaded that the sale agreement was entered only as security for the loan, he failed to adduce the evidence to the effect and the transaction can only be taken as the sale transaction. Paragraph 22 of the said judgment reads as follows: "22. Learned counsel for the respondent argued that the amount of Rs.4 lakhs has been borrowed for the purpose of discharging the loan to the Bank as well as to others from whom the respondent borrowed money for the purpose of marriage of three daughters. Of course, a part of the amount of Rs.1,60,000/- has been established to be https://hcservices.ecourts.gov.in/hcservices/ paid to the Bank by evidence. But in respect of the balance amount, there is no acceptable evidence to support the contention. The respondent also has not established before the trial Court as well as before us when the daughters were got married and what was the amount borrowed and what was the amount unpaid during the relevant period of time when Exhibit P-1 was executed. Even assuming that the existence of the loan is true, the loan would have been paid back out of the sale consideration. We are of the view that there is no material worth consideration made available to accept the contention of the respondent that the Exhibit A-1 agreement was entered into with an intention not to act upon it and only for securing the loan borrowed." 22. While considering the citation in 2009 (7) MLJ 640, the fact that Ex.A-1 has been executed as security and it was obtained by coercion, has not been proved by the appellant-first defendant. It is the duty of the person to plead in accordance with Order 6 Rule 4 C.P.C. and to prove the same, the appellant-first defendant has not furnished the materials and he has not proved the same in accordance with law. 23. Moreover, the appellant-first defendant has pleaded that Ex.A-1 came into existence only as security for the loan obtained by his son-in-law and in his cross-examination as D.W.1, he has stated that the loan has been obtained by his daughter's husband, i.e. the second defendant's husband. As already stated, no scrap of paper has been placed before the Court to show as to who obtained loan, what is