IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 28.9.2011 Coram The Hon’ble Mr.Justice R.S.RAMANATHAN Second Appeal No.1099 of 2010 and M.P.No.1 of 2010 Muthuvenkatasalam Appellant/Defendant vs. Bhaskarane Respondent/Plaintiff Prayer:- Second Appeal against the judgment and decree dated 14.6.2010 in A.S.No.22 of 2008 on the file of the III Additional Judge, Puducherry confirming the judgment and decree dated 23.1.2008 in O.S.No.334 of 2004 on the file of the Additional Sub Judge, Puducherry. For appellant : Mr.Yashod Vardhan, Senior Counsel for Mr.K.Raja Shrinivas For respondent : Mr.D.Ravichander JUDGMENT The unsuccessful defendant is the appellant. The respondent/plaintiff filed the suit for specific performance of agreement of sale. The case of the respondent/plaintiff was that the appellant entered into an agreement of sale with the respondent agreeing to sell the property for a sum of Rs.6,00,000/= and received and advance of Rs.1,00,000/= and the agreement was executed on 26.4.2003 and one year time was fixed for completing the sale transaction. Though the appellant agreed to provide the documents of title to the respondent, he failed to hand over the same despite request made by the respondent and therefore, the respondent applied for certified copies of the documents of title on 6.4.2004, 7.4.2004 and also obtained Encumbrance Certificate on 17.4.2004. The https://hcservices.ecourts.gov.in/hcservices/ respondent was not able to get the copy of the family arrangement deed dated 27.8.1979 as it was an unregistered document. Therefore, the respondent called upon the appellant to produce the family arrangement deed and asked him to register the sale deed on 27.4.2004 and the respondent was also ready at the Registrar's Office and the appellant did not appear and therefore, a notice dated 27.4.2004 was issued calling upon the appellant to execute the sale deed and as the appellant did not come forward, the suit was filed on 9.8.2004 for specific performance. 3. The appellant contested the suit stating that the respondent had no means to pay the sale consideration and the respondent is a coolie and he is running only a tailoring shop and at the request of the respondent, he subscribed to a chit conducted by the respondent and in connection with the chit, his signature was obtained in various unfilled stamp papers and also in blank papers and those were fabricated as if the appellant had executed the agreement of sale and the appellant denied the execution of the agreement of sale. 4. Both the courts below concurrently held that the agreement of sale was executed by the appellant and the same was proved by the respondent by examining P.Ws.2 and 3 and the respondent also proved his readiness and willingness by applying various documents of title and the appellants failed to give the same and also the respondent filed the suit immediately on the appellant's failure to execute the sale deed. Hence, this second appeal. 5. Mr.Yashod Vardhan, learned Senior Counsel appearing for the appellant submitted that the respondent failed to prove his readiness and willingness and he did not have the means to pay the amount and hence, he is not entitled to the relief of specific performance. He, therefore, submitted that the courts below, without properly appreciating section 16(c) and section 20 of the Specific Relief Act, erred in decreeing the suit. 6. On the basis of the above arguments, the following substantial questions of law are framed for consideration:- "1. Whether the respondent was ready and willing to perform his part of the contract? 2. Whether the courts below were justified in granting the relief of specific performance when the respondent did not have means to pay the balance sale consideration?" https://hcservices.ecourts.gov.in/hcservices/ 7. The learned Senior Counsel for the appellant relied upon the judgment reported in MAN KAUR V. HARTAR SINGH SANGHA ((2010) 10 SCC 512) and submitted that in the absence of any plea and proof that the respondent was ready and willing to perform his part of the contract, he is not entitled to the relief of specific performance. 8. The case of the appellant was that the respondent is only a coolie and he is running a petty tailoring shop and therefore, he did not have the means to pay the balance sale consideration of Rs.6,00,000/= and by practising fraud, the agreement of sale was obtained and the appellant did not execute the agreement of sale and his signatures were obtained in blank stamp papers and therefore, the respondent is not entitled to the relief of specific performance. The respondent examined P.Ws.2 to 4 to prove the execution of the agreement of sale. The appellant was not able to elicit any worthwhile contradiction in the evidence of P.Ws.2 to 4 regarding the execution of the agreement of sale. As per the agreement of sale, after the appellant hands over the documents relating to the electricity charges, water tax and municipal tax, the agreement can be enforced by the respondent and it is the specific case of the respondent that he is satisfied with the title of the appellant and he also obtained documents of title from various authorities in April 2004 and thereafter, requested the appellant to execute the sale deed and as the appellant did not come forward, after issuing notice, the suit was filed. 9. The contention of the learned Senior Counsel for the appellant that the respondent was not having means and he is only running a petty tailoring shop cannot be accepted having regard to the admissions made in the written statement. It is admitted by the appellant that the respondent is running a chit and he was one of the subscribers. If really, the respondent is not having means and he is running only a tailoring shop, the appellant would not have subscribed to the chit conducted by the respondent. Further, no proof was adduced by the appellant that towards the amount payable by him in respect of the chit transaction, his signatures were obtained in blank stamp papers and he has not produced any document except the identity card of the respondent and his bank account. 10. Both the courts below have considered Ex.B2 statement of accounts of the appellant and held that Ex.B2 did not disclose any amount paid by the appellant towards the transaction in favour of the respondent. Further, in the judgment reported in CHOKKAMMAL v. K.BALRAJ (2008 (5) CTC 690), it has been held as follows:- https://hcservices.ecourts.gov.in/hcservices/ "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." 11. Therefore, having regard to the fact that the appellant admitted the signature and failed to prove the defence regarding the circumstances under which, his signatures in the agreement of sale was affixed and the fact that the agreement of sale was proved by the respondent by examining P.Ws.2 to 4 and also by getting certified copies of the documents of title, both the courts below have rightly held that the respondent proved his readiness and willingness to act according to the terms of the contract and he had means to pay the balance sale consideration and his conduct also would prove that he was ready and willing to perform his part of the contract and rightly decreed the suit. 12. Further, in the decision reported in (2010) 10 SCC 512, the Honourable Supreme Court also considered the scope of section 16(c) of the Specific Relief Act and relying upon the judgment in N.P.THIRUGNANAM v. Dr.R.JAGAN MOHAN RAO ((1995) 5 SCC 115), held as follows:- "12. Section 16(c) of the Specific Relief Act, 1963 ("the Act", for short) bars the specific performance of a contract in favour of a plaintiff "who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms of the performance of which has been prevented or waived by the defendant" Explanation (ii) to Section 16 provides that for purposes of clause (c) of Section 16, "the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true https://hcservices.ecourts.gov.in/hcservices/ construction." Thus, in a suit for specific performance, the plaintiff should not only plead and prove the terms of the agreement, but should also plead and prove his readiness and willingness to perform his obligations under the contract in terms of the contract. (See N.P.Thirugnanam v. Dr.R.Jagan Mohan Rao((1995) 5 SCC 115); Pushparani S. Sundaram v. Pauline Manomani James ((2002) 9 SCC 582) and Manjunath Anandappa v. Tammanasa.((2003) 10 SCC 390)). 13. In the first case, this Court held: (NP.Thirugnanam case, SCC p.118, para 5) "5. ... The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract." https://hcservices.ecourts.gov.in/hcservices/ 13. Hence, I do not find any reason to interfere with the judgment and decree of the courts below. The substantial questions of law are answered against the appellant. The second appeal is dismissed. No costs. The connected miscellaneous petition is also dismissed. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar ssk. To 1. The III Additional Judge, Puducherry. 2. The Additional Sub Judge, Puducherry. 1 cc to Mr.D.Ravi Chander , Advocate, Sr.No.60672 2 cc to Mr.K.Raja Shrinivas , Advocate, Sr.No.60971 S.A.No.1099 of 2010 bky(co) pmk.11.11.2011 https://hcservices.ecourts.gov.in/hcservices/