IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.06.2010 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR Appeal Suit No.2 of 2003 & C.M.P.Nos.23 of 2003 and C.M.P.No.3645 of 2005 L.Selvaraj ...Appellant/Plaintiff Vs. T.Padmavathi ... Respondent/2nd Defendant Prayer: Appeal filed under Section 96 of Civil Procedure Code against the judgment and decree order dated 30.8.2001 made in O.S.No.7858 of 1996 on the file of the VII Additional Judge, City Civil Court, Chennai. For Appellant : Mr.D.Krishnakumar For Respondents : Mr.B.T.Seshadri Senior Advocate for M/s.K.Bhanumathi & Mr.V.Manohar JUDGMENT This appeal has been preferred against the judgment and decree of the VII Additional Judge, City Civil Court, Chennai dated 30.8.2001 made in O.S.No.7858 of 1996. 2.The plaintiff in the said suit is the appellant herein. The suit was filed against one S.N.S.Thirumal (since dead) and D.Padmavathi, the respondent herein arraying them as defendants 1 and 2 respectively, for the relief of specific performance based on an alleged agreement for sale dated 24.6.1988. Since the said S.N.S.Thirumal died during the pendency of the suit, the suit was continued against the respondent alone after getting her recorded also as the legal heir of the deceased S.N.S.Thirumal. 3.The plaint averments based on which the appellant/plaintiff had sought for the said relief can be summarised as follows: The house bearing Door No.1, 21st Avenue, Ashok Nagar, Chennai – 83, more fully described as the plaint schedule absolutely belongs to the respondent herein/2nd defendant. The deceased S.N.S.Thirumal (first defendant) was the father of the https://hcservices.ecourts.gov.in/hcservices/ respondent/2nd defendant. The respondent and her father entered into an agreement with the appellant/plaintiff on 24.6.1988 for the sale of the suit property to the appellant/plaintiff for a sale consideration of Rs.10,00,000/-. Even though the property absolutely belonged to the respondent herein/2nd defendant, by way of abundant caution her father viz., the first defendant was also made a party to the said agreement for sale. On the date of agreement itself a sum of Rs.3,00,000/- was paid by the appellant/plaintiff to the defendants as advance and part payment of sale consideration. On the date of agreement itself all the title deeds relating to the suit property were handed over to the appellant/plaintiff. As per the terms of the agreement, the defendants had to obtain and produce Income Tax clearance certificate within three months and execute a sale deed in favour of the appellant/plaintiff. However, the defendants failed to do so even though the appellant/plaintiff was ready and willing, right from the date of agreement, to pay the balance sale consideration and get the sale deed executed and registered in his name. Despite the oral demands made by the appellant /plaintiff, the defendants failed to produce Income tax clearance certificate and evaded execution of the sale deed. At last the appellant/plaintiff had to issue a notice through an advocate calling upon the defendants to produce Income tax clearance certificate and execute the sale deed in favour of the plaintiff after receiving the balance amount of sale consideration. But there was no response even for the said notice sent through the advocate. Therefore, the appellant/plaintiff was forced to approach the Court by filing the suit for the relief of specific performance. 4.The suit was resisted by the respondents/defendants who filed separate written statements. The averments found in the Written statement filed by the deceased first defendant in brief are as follows: All the plaint allegations except those that are admitted in the written statement are denied as false. The suit is not maintainable. No document, much less the document relied on by the appellant/plaintiff was executed by the defendants in favour of the appellant/plaintiff. It is an utter falsehood to state that the defendants executed an agreement for sale on 24.6.1988 in favour of the appellant/plaintiff in respect of the suit property. The first defendant was a Cine producer. The first defendant for the production of the Tamil feature film "Sandarppangal" (re;jh;g;g';fs;) approached a financier by name K.R.Venugopalan for providing financial assistance of Rs.3,00,000/-. At the time of advancing the said amount, the said financier K.R.Venugopalan obtained signatures of the first defendant and his daughter (2nd defendant) in a few blank stamp papers, promissory notes, blank white papers and blank letterheads, as security for the repayment of the said loan. The said financier also demanded and obtained the documents of title relating to the suit property belonging to the respondent/2nd defendant as security for the said loan with an assurance that the documents would be returned after the discharge of the loan. The said financier K.R.Venugopalan seems to have https://hcservices.ecourts.gov.in/hcservices/ filed the suit through the appellant/plaintiff, who is a close relative of the said financier, by creating an agreement with the help of the signatures of the defendants obtained in blank stamp papers and blank white papers. The property was worth two crores and the defendants would not have agreed to sell such a valuable property for a meager sum of Rs.10,00,000/-. The first defendant did not receive any notice allegedly sent by the appellant/plaintiff through his advocate. There is no privity of contract between the appellant/plaintiff and the first defendant. There is no cause of action for the suit and the one mentioned in the plaint is also absolutely false and untenable. The Court fee paid is also not correct. The appellant/plaintiff shall not be entitled to any of the reliefs sought for by him. The suit shall be dismissed with cost. 5.The averments found in the written statement filed by the respondent herein/2nd defendant in brief are as follows:- All the plaint allegations except those that are admitted in the written statement are denied as false. The suit is not maintainable either on facts or in law and the same is liable to be dismissed. The respondent/2nd defendant never had any transaction with the appellant/plaintiff. It is true that the respondent/2nd defendant is the absolute owner of the suit property, but the plaint allegation that she entered into an agreement with the appellant/plaintiff on 24.6.1988 agreeing to sell the same to the appellant/plaintiff for a sum of Rs.10,00,000/- and obtained a sum of Rs.3,00,000/- as advance is false. The deceased first defendant, the father of the respondent/2nd defendant, was a film producer. In respect of a Tamil feature film produced by him, he wanted to get financial assistance from some financier. Thus, he requested the respondent/2nd defendant to hand over the documents of title relating to the suit property on the assurance that the same would be again handed over to the respondent/2nd defendant shortly. One Mr.K.R.Venugopalan who was supposed to give loan to the first defendant for the production of the Tamil feature film "Sandarppangal" (re;jh;g;g';fs;) took the signatures of the respondent/2nd defendant also in a few blank stamp papers and blank white papers. When she confronted with the said Venugopalan as to why her signatures were being obtained in blank stamp papers and blank white papers, he informed her that they were obtained only as security. The value of the suit property shall be more than two crores and hence it is not even imaginable that the defendants would have agreed to sell the suit property worth more than two crores for a sum of Rs.10,00,000/-. Further allegations found in the plaint that on the date of execution of the suit sale agreement, the appellant/plaintiff paid a sum of Rs.3,00,000/- as advance and part payment of the sale consideration is absolutely false and untenable. The respondent/2nd defendant did not receive any amount either from the plaintiff or from the above said financier K.R.Venugopalan. What she did was to hand over the title deeds relating to the suit property to her father viz., the first defendant, so as to enable him to raise loans from the financier for the production of a Tamil cinema. The defendant did not hand https://hcservices.ecourts.gov.in/hcservices/ over the title deeds to the appellant/plaintiff. In fact she never met the plaintiff. The allegations regarding the readiness and willingness on the part of the appellant/plaintiff and the omission on the part of the defendants to get and produce the Income tax clearance certificate are false. There was no demand at any point of time for the production of Income Tax clearance certificate or any other document. As the respondent/2nd defendant denies the execution of the suit sale agreement, there is no question of her evading execution of the sale deed. The alleged notice sent by the appellant/plaintiff through his advocate was not received by the respondent/2nd defendant. The suit has not been properly valued and the Court fee paid is not correct. For the above said reasons, the suit should be dismissed with cost. 6.Based on the above said pleadings, the learned trial Judge framed 6 issues which are as followed: 1) Is it true that the defendants executed an agreement for sale in favour of the plaintiff? 2) Whether the alleged payment of a sum of Rs.3,00,000/- as advance and part payment of the sale consideration by the plaintiff to the defendants is true? 3) Whether the plaintiff was ever ready and willing to get the sale deed executed on the basis of the suit agreement for sale? 4) Whether the plaintiff is entitled to the relief of specific performance as prayed for in the plaint? 5) Whether the plaintiff is entitled to get vacant possession of the suit property? 6) To what relief the plaintiff is entitled? 7.Two witnesses were examined as Pws 1 and 2 and 12 documents were marked as Exs.A1 to A12 on the side of the appellant herein/plaintiff. One witness was examined as DW1 and three documents were were marked as Exs.B1 and B3 on the side of the respondent/2nd defendant. The learned trial Judge, on an appreciation of the evidence, believed the defence version of the defendants and disbelieved the plaint allegations made by the appellant/plaintiff and consequently dismissed the suit without cost holding the appellant/plaintiff not entitled to any of the reliefs sought for in the plaint. 8.Aggrieved by and challenging the decree of the trial Court dated 30.8.2001, by which the suit filed by the appellant/plaintiff in O.S.7858 of 1996 on the file of the trial Court was dismissed, the appellant/plaintiff has filed the present appeal on various grounds set out in the memorandum of appeal. 9. The points that arise for consideration in this appeal are as below:- i)Whether it is true that the defendants executed Ex.A1- sale agreement in favour of the appellant/plaintiff agreeing to sell the suit property for a sum of Rs.10,00,000/-? https://hcservices.ecourts.gov.in/hcservices/ iii)Whether the payment of Rs.3,00,000/- as advance under Ex.A1-agreement for sale is true? v)Whether the appellant/plaintiff is entitled to the relief of specific performance? vii)Whether the appellant/plaintiff is entitled to a direction for delivery of possession of the suit property? viii)To what relief the parties are entitled? 10.The arguments advanced by Mr.D.Krishnakumar, learned counsel appearing on behalf of the appellant and by Mr.B.T.Seshadri, learned counsel appearing on behalf of the respondent were heard. The entire materials available on record were also perused. Points i and ii 11.The unsuccessful plaintiff in the original suit is the appellant herein. The suit was filed by him against the respondent herein/2nd defendant and her father (deceased first defendant) seeking the relief of specific performance and consequential direction for putting him in possession of the suit property, based on an alleged agreement for sale between the appellant/plaintiff and defendants dated 24.6.1988. Necessary pleadings regarding readiness and willingness on the part of the appellant/plaintiff and the lack of such readiness and willingness on the part of the defendants were also made in the plaint. The case of the defendants is of total denial. They have denied the plaint allegation that the suit agreement for sale was executed by them in favour of the appellant/plaintiff. They have come forward with a clear plea that they did not have any contact with the appellant/plaintiff; that they never had any transaction with the appellant/plaintiff and that the suit sale agreement was not executed by them in favour of the appellant/plaintiff. It is their further contention that no amount was received from the appellant/plaintiff as advance as claimed by the appellant/plaintiff. Since the execution of the suit agreement for sale and the payment of advance under the said agreement are denied by the defendants, the appellant/plaintiff is bound to prove the same. In order to prove that the suit sale agreement was executed by the defendants in favour of the appellant/plaintiff and a sum of Rs.3,00,000/- was paid by the appellant/plaintiff as advance, the appellant/plaintiff besides examining himself as P.W.1, has also examined one K.R.Venugopalan, who has been cited by the defendants as the financier, who got the signatures of the defendants in blank stamp papers and blank papers. Let us now consider the oral evidence of P.Ws.1 and 2 regarding the execution of the sale agreement in favour of the appellant/plaintiff by the defendants and payment of a sum of Rs.3,00,000/- as advance. Ex.A1 is the suit agreement dated 24.06.1988 allegedly executed by the defendants in favour of the appellant/plaintiff. The defendants have taken a clear and definite stand that they did not execute any https://hcservices.ecourts.gov.in/hcservices/ agreement for sale in favour of the appellant/plaintiff and no amount was received by them as advance. It is also their clear contention that the defendants did not have any contact with the appellant/plaintiff and hence there was no occasion for entering into such a transaction with him. In the light of the above said pleadings of the defendants, the reliability of the testimonies of P.Ws.1 and 2 should be considered. 12. The appellant/plaintiff, who deposed as P.W.1, in his evidence during cross-examination, would admit that from 1991-1992, he is doing business as cable TV operator in Ranipet; that before that he was residing in Gandhi Avenue, Purasaiwakkam, Chennai and that at the time of entering into the transaction under Ex.A1-sale agreement he was residing in a rented house at Washermanpet, Chennai. It is also his evidence that while he was residing in Chennai, he worked as a plot engineer in Gummidipoondi earning a monthly salary of Rs.4,000/-. It is his admission during cross- examination that in 1989, while he was employed thus as plot engineer in Gummidipoondi, his monthly salary was just Rs.4,000/-. In the light of such statements made by P.W.1 in his evidence, it becomes doubtful whether the appellant/plaintiff would have got three lakhs of rupees to be paid as advance to the defendants on 24.06.1988, the date of suit agreement. It is not his case that the negotiation for the purchase of the property took place prior to 24.06.1988. On the other hand, he has admitted that he came into contact with the deceased first defendant only on 24.06.1988. However, in the latter part of his testimony in cross examination, he would state that he met the deceased first defendant along with his junior paternal uncle and conducted negotiation for the purchase of the suit property about a month prior to the date of suit agreement. The relevant parts of the testimony of P.W.1 in this regard are extracted here under:- "24/06/1988y; jhd; vdf;F Kjy; gpujpthjpia tPL th';FtJ rk;ge;jkhf mwpKfk; MdJ/" "xg;ge;jk; Vw;gl;l njjpapy; ehDk;. rpj;jg;ght[k; gpujpthjpaplk; jhth brhj;J rk;ge;jkhf ngrpf;bfhz;nlhk;/" "xg;ge;jk; Vw;gLtjw;F Kd;dhy; xU khjk; Kd; vd; rpj;jg;ghit ngha; ghh;j;njd;/ fpuak; xg;ge;jkhf ehDk;. rpj;jg;ght[k; ,uz;lhk; gpujpthjpaplk; ngrpndhk;/" The above said discrepancy found in the evidence of P.W.1 regarding when he came into contact with the deceased first defendant and when the negotiation for the purchase of the suit property was made by him with the first defendant, will greatly impair the credibility of his evidence and consequently the case of the appellant/plaintiff. 13. The suit sale agreement (Ex.A1) is dated 24.06.1988. According to the evidence of P.W.1, at the said point of time he https://hcservices.ecourts.gov.in/hcservices/ was residing in Washermanpet, Chennai and was working as a plot engineer in Gummidipoondi. But, it is curious to note that the address of the appellant/plaintiff was given as "No.21-A, Vandimettu Street, Ranipet, North Arcot District". P.W.1 has admitted that the said address was not his residential address. It is also his admission that the said address was the address of the shop in which he was doing cable TV business in Ranipet from 1991- 1992. However, he has come forward with a novel explanation that he had taken the shop at Ranipet on lease for five years in 1986- 1987 and that the same was the reason for his giving the address of the said shop as his address in Ex.A1-sale agreement. He has also stated that thinking that the said shop was his permanent address, the same was furnished as his address in the agreement for sale, namely in Ex.A1. Such an explanation is far from being either satisfactory or believable. 14. The plaintiff's case that he paid a sum of Rs.3,00,000/- as advance on the date of agreement also becomes improbable in the light of his admission during cross-examination. It is his clear admission that on the date of agreement he was not having any house or immovable property of his own and he was receiving financial help periodically from his father, who was residing at Ranipet and also from his junior paternal uncle, namely P.W.2. He was a person depending upon the financial help from his father and junior paternal uncle for his sustenance during the period when Ex.A1 was allegedly executed. It shall be improbable for him to have arranged for a sum of Rs.3,00,000/- to be paid as advance on the date of agreement. While narrating how he arranged the sid sum of Rs.3,00,000/- to be paid as advance under Ex.A1, P.W.1 has stated that he did not have any bank account and the entire amount of advance (Rs.3,00,000/-) was paid in cash and that the advance amount was made up of his own money, money borrowed from his uncle and also from others and that he had saved all those amounts and with the help of the same, the advance amount was paid. However, he would also state that he cannot say as to who were all the persons from whom he borrowed and the amount borrowed from each one of such persons. He would state that P.W.2 was present at the time of execution of Ex.A1-sale agreement but however he did not sign as a witness. He did not know the names of the persons who signed as witnesses in the suit sale agreement. However, he would say that he knew those persons. But, in the very next line he has also stated that he did not know whether the attestors were alive as on the date of his examination as P.W.1 and that he had to make enquiries regarding the same. The appellant would claim to have entered into an agreement with the defendants for purchasing the suit property for a sum of Rs.10,00,000/-. While deposing as P.W.1 he has stated that he did not get the encumbrance certificate regarding the suit property and he did not even verify the guideline rate / market rate before entering into the agreement for sale. It is also evident from his testimony that he did not even go through the parent deeds to get satisfied with the transferable title of the respondent/second defendant. There is a clear admission that the suit property absolutely belongs to the respondent/second defendant alone. There is no acceptable https://hcservices.ecourts.gov.in/hcservices/ explanation put-forth by P.W.1 for getting the sale agreement executed not only by the respondent/second defendant, but also by her father, the deceased first defendant. 15. It is not the evidence of P.W.1 that he was having the necessary funds to the tune of Rs.7,00,000/- to be paid as balance sale consideration for getting a sale deed executed in his name. On the other hand, he has simply stated that he entered into the suit sale agreement with the confidence that he could borrow Rs.7,00,000/- and repay the same subsequently. For the question whether he had arranged for the funds to make payment of Rs.7,00,000/- as balance sale consideration under Ex.A1, P.W.1 has stated initially that he could produce proof of his having arranged for the funds like bank statements and documents showing properties owned by him. Having stated that he was ready to produce such documents, in the very next line of his deposition, he has not specifically denied the suggestion that he was not having the capacity to pay the balance amount of sale consideration, namely Rs.7,00,000/-. On the other hand, he ventured to state that the said question was unwarranted. "vdf;F U:/7 yl;rk; Vw;ghL bra;tjw;F trjp ,y;iy vd;gJ jw;nghJ njitaw;w xd;whFk;/" Furthermore, it is the case of the appellant/plaintiff that all the documents produced as Exs.A2 to A9 were the documents handed over to the appellant/plaintiff by the defendants on the date of execution of Ex.A1-sale agreement. However, P.W.1 has stated that he did not prepare a list of documents thus handed over by the defendants. Though he would state that the title deeds were handed over by the defendants to him on the date of agreement, he has also stated that he was not aware of the fact whether those documents had already been handed over to P.W.2-Venugopal. Even though P.W.1 would state that a draft agreement was prepared and after approval of the draft, Ex.A1-agreement was typed, he is not in a position to say who was the scribe who prepared the draft. His evidence in this regard is evasive, as it is to the effect that draft should have been prepared by a person authorised to prepare it, meaning a document writer. The very fact that the plaintiff has not chosen to give any notice prior to Ex.A10, which was issued on 25.05.1991, just a month before the expiry of three years from the date of Ex.A1 will also have its effect improbablising the case of the appellant/plaintiff. The fact that Exs.A2 to A9, the title deeds and other documents relating to the suit property were produced by the plaintiff shall not improve the case of the appellant/plaintiff. As pointed out supra, there is clear evidence to the effect that those documents were handed over to P.W.2 as security for repayment of the loan. It has also been pointed out that P.W.2 has also admitted that those documents were handed over to him. Thus the circumstances under which the plaintiff happened to file those documents along with the plaint have been clearly explained and proved by the respondent/second defendant. Hence the fact that those documents were produced by the plaintiff shall not render any help to the appellant/plaintiff to prove that the suit sale agreement for sale is a genuine one. https://hcservices.ecourts.gov.in/hcservices/ 16. P.W.2 is none other than K.R.Venugopalan, the junior paternal uncle of the appellant/plaintiff. From his testimony, it is evident that the father of the plaintiff is the elder brother of P.W.2. According to P.W.2's evidence, when the negotiation for the agreement was made and the agreement was concluded, it was he who paid Rs.3,00,000/- to the defendants as advance. The said evidence is contrary to the evidence of P.W.1 who would say that the amount was paid by P.W.1. It is also the evidence of P.W.2 that the title deeds were handed over by the defendants to him (P.W.2), which is contrary to the stand taken by the appellant/plaintiff. 17. It is the case of the defendants that the father of the respondent/second defendant, namely the deceased first defendant was a film producer and he approached P.W.2 for financial assistance for the shooting of Tamil cinema "Sandarppangal" (re;jh;g;g';fs;); that at the time of advancing Rs.3,00,000/- as loan for the said purpose, P.W.2 took signatures of the defendants in white papers and blank stamp papers and also got the title deeds relating to the suit property stating that the same were obtained as security for the repayment of the loan and that using the said blank stamp papers and blank papers in which the signatures of the defendants had been obtained, the suit agreement has been created and the