IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.01.2011 CORAM THE HONOURABLE MS. JUSTICE R. MALA Appeal Suit No.140 of 2007 and M.P.No.1 of 2007 M.Shanmugham . Appellant/1st Defendant Vs 1.S.Murugadass 2.K.Anandan (R2 ex-parte in the Court below and hence given up) .. Respondents/Plaintiff of 2nd Deferdent Prayer: This First Appeal has been filed under Section 96 CPC against the judgment and decree dated 29.06.2006 passed in O.S.No. 359 of 2004 by the learned Additional District Judge (Fast Track Court No.4), Coimbatore at Tiruppur. For Appellant : Mr.A.K.Kumaraswamy For Respondents : Mr.S.K.Rakhunathan for R1 R2 – Given up JUDGMENT This appeal has been arising out of the judgment and decree dated 29.06.2006 passed in O.S.No. 359 of 2004 on the file of the Additional District Court (Fast Track Court No.4), Coimbatore at Tiruppur. 2. The averments made in the plaint are as follows: (i) The plaintiff and the first defendant entered into a sale agreement on 24.04.1998. The first defendant agreed to sell the same to the plaintiff for Rs.6,00,000/-. He received an advance amount of Rs.5,00,000/- from the plaintiff. The plaintiff and the first defendant have signed the agreement and have also affixed their Left Thumb Impressions. (ii) The balance amount of Rs.1,00,000/- has to be paid within the period of 2 ½ years and on such payment, the first defendant has to execute and register a sale deed for Rs.6,00,000/- in favour of the plaintiff/his nominee. The long period of 2 ½ years was fixed for performance only to enable the first defendant to find alternative accommodation and to facilitate delivery of possession to the plaintiff. (iii) The plaintiff was always ready and willing to perform his part of contract. Whenever the plaintiff approached the first defendant, https://hcservices.ecourts.gov.in/hcservices/ he has given an evasive reply. But he sold the same to the second defendant on 08.03.2000. The sale deed executed in favour of the second defendant is void. So the plaintiff issued a notice through his counsel on 05.08.2000. The first defendant sent an interim reply dated 11.08.2000 through his counsel with a false allegations and he sought for a xerox copy of the sale agreement dated 24.04.1998. So the plaintiff once again sent the detailed reply and rejoinder. Since the first defendant again evaded to execute the sale deed, the plaintiff has constrained to file a suit for specific performance and alternatively for recovery of amount he paid as an advance and prayed for a decree. 3. The gist and essence of the reply statement filed by the plaintiff is as follows: The plaintiff has never issued a notice on 05.02.2000 to the first defendant through his Advocates Mr.Jayabalan and A.Ranganathan, Coimbatore demanding repayment of a sum of Rs.2,10,000/-. He also not aware of the alleged reply notice dated 03.03.2000. The notices are only handy work of the first defendant. The plaintiff lives in Thiruchengode. It is unbelievable that the plaintiff would have come down to Coimbatore for issuing notice demanding repayment of money. In order to create a defence for a possible legal action, the first defendant has created the notice and reply. Hence, he prayed for a decree as prayed for in the plaint. 4. The gist and essence of the written statement filed by the 1st defendant is as follows: (i) The first defendant never entered into a sale agreement with the plaintiff. He sold the property to the second defendant on 08.03.2000. After that only, the plaintiff fabricated the sale agreement. Now the suit property is with the possession and enjoyment of the second defendant. After receipt of the notice dated 05.08.2000, this defendant has given a suitable reply notice on 11.08.2000. In the reply notice, this defendant requested the plaintiff's counsel to furnish a xerox copy of the sale agreement. But the plaintiff issued a rejoinder and refused the defendant's request. Even after receipt of the reply notice dated 11.08.2000, the plaintiff came to know that this defendant totally denied the execution of the sale agreement. There was no necessity to issue final notice on 31.01.2001. (ii) The defendant was a subscriber in an unregistered chit run by the plaintiff in the name and style of "BHOOPATHY" and he paid all chit amounts to the plaintiff and after that the plaintiff has demanded interest from this defendant for delayed payment and he refused to pay the interest as claimed by the plaintiff. At that time, the plaintiff openly threatened the defendant and challenged that he knows how to collect the interest amount from this defendant. Hence for illegal gain, after knowing that this defendant has sold the said property to the second defendant, the plaintiff has fabricated the alleged sale agreement dated 24.04.1998. The plaintiff also set up one https://hcservices.ecourts.gov.in/hcservices/ Haripadrinath, Thiruchengode and issued a vexatious notice alleged that this defendant has executed a promissory note on 09.10.1998 for Rs.2,00,000/- and filed a insolvency petition against this defendant in I.P.No.12 of 2000 before this Court. Hence, he prayed for dismissal of the suit. 5. The gist and essence of the additional written statement filed by the first defendant is as follows: Even before issuing the notice dated 05.08.2000, the plaintiff has issued another notice dated 05.02.2000 through his Advocates Mr.Jayabalan and Mr.A.Ranganathan, Coimbatore alleged that this defendant has borrowed a sum of Rs.2,10,000/- from the plaintiff and for the said notice, this defendant has issued a detailed reply notice dated 03.03.2000 through his Advocate Mr.S.Ramamurthy, Tiruppur. These facts will clearly prove that there was no sale agreement between the plaintiff and this defendant on 24.04.1998. Hence, he prayed for dismissal of the suit. 6. The trial Court, after considering the averments both in the plaint and the written statement and arguments of both the counsel, has framed three issues and considering the oral evidence of P.Ws.1 and 2 and D.Ws.1 and 2 and Exs.A1 to A12 and Ex.B1, decreed the suit as prayed for in the plaint and granted two months time for execution of the sale deed. Against which, the present appeal has been preferred by the appellant/first defendant. 7.After hearing the arguments of both sides counsel, the following points for determination are framed: 1.Whether the trial Court is correct in held that Ex.A1- sale agreement is true and genuine? 2.Whether the trial Court is correct in granting decree of specific performance instead of granting alternative prayer for recovery of amount advanced? 3.Whether the judgment and decree of the trial Court are sustainable? 4.To what relief, the appellant is entitled to? 8.Point No.1: (i) The learned counsel appearing for the appellant/first defendant submitted that admittedly the suit property is belonging to the appellant and he never executed a sale agreement Ex.A1. So, Ex.A1 is not true and genuine document. The sale price fixed in Ex.A1 is not a prevailing market value fixed on the alleged date of sale agreement Ex.A1. As per Ex.A1, the sale price has been fixed at Rs.6,00,000/- and an advance of Rs.5,00,000/- has been paid by the plaintiff/first respondent. But, why should he has taken 2 ½ years time for payment of balance amount of Rs.1,00,000/- for execution of the sale deed. The stamp paper in Ex.A1 was issued only in the year 1999, but the sale agreement is executed on 24.04.1998. So it is a fabricated document. https://hcservices.ecourts.gov.in/hcservices/ (ii)The plaintiff/first respondent has sought for an alternative prayer for recovery of advance amount he paid. In such circumstances, the trial Court has erred in granting discretionary relief of decree of specific performance instead of decreeing the alternative prayer for recovery of an advance amount. (iii) To substantiate his arguments, the learned counsel for the appellant/first defendant relied upon the decisions of Apex Court and this Court. He also relied upon Ex.B1-a reply notice issued through his Advocate to the plaintiff/first respondent's Advocate. In the said notice, he has not mentioned the sale agreement and he has mentioned only promissory note. So the trial Court has not considered Ex.B1. (iv)He culled out some portions of oral evidence of P.Ws.1 and 2 and D.Ws.1 and 2 and submitted that Ex.A1 sale agreement is forged one. He further submitted that the suit is barred by limitation and hence he prayed for allowing the appeal. (v)Per contra, refuting the same, the learned counsel for the first respondent/plaintiff submitted that Ex.B1 was concocted for the purpose of this case. If really Ex.B1 is true and genuine document, why should the original notice received by the appellant/first defendant is not produced before the Court. So, D.W.2-Mr.S.Ramamoorthy, who is the Advocate for appellant/first defendant's evidence is not trustworthy. (vi)The first respondent/plaintiff is residing only at Thiruchengode. So there is no money transaction between the appellant/first defendant and first respondent/plaintiff. Hence, there is no need to issue notice to the appellant/first defendant. (vii) The additional written statement filed by the appellant/first defendant is only to escape from the liability of executing the sale agreement. (viii) He further submitted that reason for giving a long period of 2 ½ years for payment of balance amount of Rs.1,00,000/- and for execution of sale deed has also been pleaded in the plaint itself and the plaintiff/first respondent was always ready and willing to perform his part of contract. (ix) As per the evidence, the value of the property has been accepted by him. So the trial Court has considered all the aspects in proper perspective and decreed the suit. There is no illegality or infirmity in the judgment and decree passed by the trial Court and there is no delay in filing the suit. Hence he prayed for dismissal of the appeal. (x) To substantiate his arguments, he has relied upon the decisions of Apex Court and this Court. 9.The admitted facts are as follows: (i) The suit property is absolutely belonging to the appellant/first defendant, which is a residential house property at Tiruppur. The plaintiff/first respondent is doing vessel business. He is having Aluminium factory at Thiruchengode and residing at Thiruchengode. (ii) The appellant/first defendant herein has raised a plea https://hcservices.ecourts.gov.in/hcservices/ that the plaintiff/first respondent was running a chit transaction in the name and style of "Bhoopathi", which was denied by him. In his cross, he has deposed that he knows the appellant/first defendant just 15 days prior to the execution of the sale agreement Ex.A1 and he was introduced by one Palanisamy, who was examined as P.W.2. So this Court has to decide whether the sale agreement Ex.A1 is true and genuine? (iii) On perusal of Ex.A1, the stamp paper was purchased on the date of execution of the sale agreement (i.e.) 24.04.1998 and the stamp paper was issued by the Treasury in the year 1998. So the arguments advanced by the learned counsel for the appellant/first defendant that the stamp paper was released by the Treasury only in the year 1999, does not merit acceptance. (iv) Now this Court has to consider Ex.B1. Ex.B1 is an alleged reply notice given by the appellant/first defendant on 03.03.2000. Since the reply notice was sent by him for the original notice dated 05.02.2000, which was allegedly issued by the plaintiff/first respondent, was not produced before the Court. Furthermore, there is no document to show that the original of Ex.B1 has been served to the plaintiff/first respondent herein or his counsel. The appellant/first defendant has not taken any steps to send for the original of Ex.B1 and copy of the notice mentioned in Ex.B1. He has not given any notice to the first respondent/plaintiff to produce the document and he has not taken steps to issue summon to Mr.Ramamoorthy, Advocate to produce the notice mentioned in Ex.B1 and original of Ex.B1. So I am of the view that Ex.B1 is not true and genuine document and it was concocted for the purpose of the case. (v) The learned counsel for the appellant/first defendant submitted that he issued a detailed reply notice through his Advocate Mr.Ramamoorthy, who was examined as D.W.2 before the Court. But he has not produced the original notice dated 05.02.2000 issued by the plaintiff/first respondent through his Advocate Mr.Ranganathan and he has not taken any steps to examine Mr.Ranganathan to prove that he had issued a notice mentioned in Ex.B1 dated 05.02.2000 on behalf of the first respondent/plaintiff herein. He has also not filed the acknowledgement card for reception of the original of Ex.B1 by Mr.Ranganathan, Advocate. (vi) D.W.2 is the Advocate Ramamoorthy, who stated in his deposition that he has issued a reply notice dated 03.03.2000 to the Advocate of the plaintiff/first respondent. In his cross- examination, D.W.2 has fairly conceded that he does not know whether the original notice dated 05.02.2000 was issued by the plaintiff/first respondent. He further stated that he does not possess any document relating to the reply notice, since notice has been issued five years before on the basis of the instruction given by the appellant/first defendant. (vii) At this juncture, it is appropriate to consider the arguments advanced by the learned counsel for the first respondent/plaintiff that in para-3 of Ex.B1, he has stated that the present respondent is stranger to the appellant. Para-3 of reply notice Ex.B1 is stated as follows: https://hcservices.ecourts.gov.in/hcservices/ "3.Our client says that your client is a stranger to him. He further says that he was not knowing anybody by name S.Murugadas in Thiruchengode." But whereas in para-6 of reply notice Ex.B1, it was stated as follows: "6.Our client was a subscriber in the auction chit conducted by one Mr.Ravi of Tiruchengode in the name and style of M/S.Bhoopathi. At the time of bitting the chit, the said Ravi had obtained our client's signatures in the blank promissory notes. Our client think that, your client is only lending his name to the said Ravi to recover the balance chit amount from our client. If that being the case, kindly instruct your client suitably and further instruct him to refrain from doing such acts." But in para-8 of the written statement filed by the appellant/first defendant, which stated as follows: "8.This defendant submits the truth that this defendant was a subscriber in an unregistered chit run by the plaintiff in the name and style of "BHOOPATHY" and this defendant paid all chit amounts to the plaintiff and after that the plaintiff has demanded interest from this defendant for delayed payment and he refused to pay the interest as claimed by the plaintiff. At that time, the plaintiff openly threatened this defendant and challenged that he knows how to collect the interest amount from this defendant. Hence for illegal gain, after knowing that this defendant has sold the said property to the second defendant, the plaintiff has fabricated the alleged sale agreement dated 24.04.1998. The plaintiff also set up one Haripadrinath, Thiruchengode and issued a vexatious notice alleged that this defendant has executed a promissory note on 09.10.1998 for Rs.2,00,000/- and filed a Insolvency petition against this defendant in I.P.No.12 of 2000 before this Hon'ble Court and the same is pending." So the above para-8 shows that the appellant/first defendant herein has made a contradictory statement one in the written statement and another in the reply notice to escape from the clutches of law. So no reliance can be placed upon Ex.B1. So the arguments advanced by the learned counsel for the appellant/first defendant that Ex.B1 is genuine document is unacceptable one. (viii) Furthermore, It is pertinent to note that Ex.A1 has not only contained the signatures, it has also contained Left Thumb Impressions of both the parties to the agreement. If https://hcservices.ecourts.gov.in/hcservices/ really the appellant/first defendant herein has not executed Ex.A1 and put his Left Thumb Impression, he could have taken steps for sending the document to Forensic Department to find out whether Ex.A1 contained his Left Thumb Impression. But he kept quiet all along. (ix) Per contra, he raised inconsistent defence one in the reply notice and another in the written statement. In such circumstances, the arguments advanced by the learned counsel for the appellant/first defendant that Ex.A1 was never executed by him, does not merit acceptance. (x) At this juncture, it is appropriate to consider the oral evidence of both the parties. In the cross-examination of P.W.1-the plaintiff/first respondent, he has fairly deposed that P.W.2-one Palanisamy alone acted as broker and he introduced the appellant/first defendant to him. Further he has stated that before entering sale agreement, the extent of the property was measured as 2,100 sq.ft. and its value was Rs.7,00,000/-. They fixed the sale price at Rs.6,00,000/- and he paid Rs.5,00,000/- as an advance. He has also given an explanation that why 2 ½ years time was given for payment of balance amount of Rs.1,00,000/- for execution of the sale deed, after paying the major portion of Rs.5,00,000/-. Since the appellant/first defendant has intended to sell the house property, he wants to purchase another property and for vacating the building, he seeks 2 ½ years time and the same was granted. P.W.2 has also corroborated the evidence of P.W.1. (xi) Considering the cross-examination of P.W.2, there is no reason for discarding the evidence of P.W.2. While considering the oral evidence of D.W.1-the appellant/first defendant in his cross-examination has fairly conceded that in the year 1998, the value of the house was only Rs.3,00,000/-. In the year 2000 also, the value of the house was only Rs.3,00,000/-. (xii) Considering the evidence of P.Ws.1 and 2 and D.W.1, it is clearly proved that Ex.A1 is true and genuine document. The sale consideration mentioned in Ex.A1 is correct and it is not an under valuation. D.W.1 himself admitted that in the year 1998, the value of the house was Rs.3,00,000/-, but it was fixed at Rs.6,00,000/-. He has received Rs.5,00,000/-. The reason for giving 2 ½ years time also mentioned. In such circumstances, I am of the view that the trial Court has considered all the aspects in proper perspective and came to the correct conclusion that Ex.A1 is true and genuine document. (xiii) In Ex.B1, the appellant/first defendant has stated that one Ravi has conducted Bhoopathi chit fund and he is one of the subscriber. But whereas in the written statement, he has stated that Bhoopathi chit fund has been conducted by the plaintiff/first respondent and the appellant/first defendant is one of the subscriber. Since he has not paid the interest, Ex.A1 is concocted for the purpose of this case. Since there is contradictory statement in the reply notice and written statement, the defence raised by the appellant/first defendant is unacceptable. https://hcservices.ecourts.gov.in/hcservices/ (xiv) Furthermore the learned counsel for the appellant/first defendant has not filed any scrap of paper before this Court to show that he is the subscriber of that unregistered chit fund by name and style "Bhoopathi", which was alleged to be run by the plaintiff/first respondent herein. (xv) Furthermore, considering the evidence of P.Ws.1 and 2, there is no reason has been assigned by the appellant/first defendant to discard the evidence of P.W.2. In such circumstances, the evidence of P.W.2 is reliable. P.W.2 has corroborating and fortifying the evidence of P.W.1, which has clearly proved that Ex.A1 is true and genuine document. (xvi) It is true that before filing the suit, the plaintiff/first respondent herein has issued a notice, directing the appellant/first defendant to execute the sale deed after receiving balance sale consideration of Rs.1,00,000/-. The appellant/first defendant sent a reply that he denied the execution of the sale agreement and he sought for xerox copy of the sale agreement. Admittedly the plaintiff/first respondent herein has never sent any xerox copy of the sale agreement to the appellant/first defendant. As already stated that Ex.A1 has not only contained his signature and it has also contained the Left Thumb Impression of both the parties to the sale agreement Ex.A1. Even though the second respondent/second defendant has impleaded, he never filed any written statement. Even though the decree of specific performance has been passed against him, he never preferred any appeal. So it has clearly proved that the appellant/first defendant has concocted the document in favour of the second respondent/second defendant to escape from civil liability for execution of the sale deed on the basis of Ex.A1 sale agreement. If really the second respondent/second defendant had purchased the property without knowledge of the sale agreement, he may very well appeared before the trial Court and put forth his defence. But he remained ex-parte. The sale deed executed in favour of the second respondent/second defendant was only a sham and nominal document and it has been created by the appellant/first defendant for defrauding the plaintiff/first respondent's legitimate claim. So the cumulative facts discussed above have proved that the sale agreement Ex.A1 is true and genuine document. The trial Court is correct in held that Ex.A1 is true and genuine document. Point No.1 is answered accordingly. 10.Points No.2 to 4: (i) The learned counsel appearing for the appellant/first defendant submitted that since the plaintiff/first respondent is claiming for alternative prayer for recovery of money, the trial Court has committed an error in granting discretionary relief of specific performance. (ii) He further submitted that the conduct of the plaintiff/first respondent would show that he has not entitled specific performance and he also relied upon some citations to substantiate his arguments. (iii) Considering the arguments as well as the citations, https://hcservices.ecourts.gov.in/hcservices/ Ex.A1-sale agreement is true and genuine document. The reason for granting 2 ½ years for execution of sale deed has been properly explained. Since the appellant/first defendant herein has not executed the sale deed, the plaintiff/first respondent issued the notice. Then only he came to know that the appellant/first defendant has executed the sale deed in favour of the second respondent/second defendant. He issued another notice to both the appellant/first defendant and second respondent/second defendant for the execution of the sale deed. Hence he prayed for specific performance and alternatively for recovery of amount advanced in the suit. (iv) It is pertinent to note that even though the second respondent/second defendant was alleged to be the purchaser of the suit property, the second respondent/second defendant has entered his appearance neither in the trial Court nor in the appellate Court by way of filing appeal before this Court. The sale deed in favour of him was not filed. In such circumstances, the trial Court has considered these aspects in proper perspective and granted a discretionary relief of decree of specific performance. (v) Now it is appropriate to consider the decisions relied upon by both sides. The learned counsel appearing for the plaintiff/first respondent relied upon the decision reported in 1999 (III) CTC 394 in (Rathinam Chettiar v. Embar Naidu and another), in para-11, it is held as follows: "11. .. .. it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court. .. .. " (vi) He also relied upon the decision reported in 1998 (III) CTC 25 in (K.M.Rajendran v. Arul Prakasam and another) in para-17, it is held as follows: "17.By relying on Appa Rao v. Balasubramania Gramani, 1976(1) MLJ 96, it is contended that if the amount is grossly inadequate, specific performance cannot be granted. I have already demonstrated that there is no material to hold that amount mentioned in Ex.A-1 is inadequate. By relying on a decision of this Court reported in Nallaya Gounder v. P.Ramaswami Gounder, AIR 1993 Mad. 275, it is submitted that the relief of specific performance cannot be granted since the plaintiff has not come forward with clean hands. In the light of the factual position discussed above. I am unable to accept his contention. For the very same reasons, the decisions cited by the learned counsel for the appellant, namely, Amirtham v. Subbian, 1997 (2) CTC 417 is also distinguishable. The learned counsel for the appellant has also submitted that on the ground of delay, the plaintiff has to be non-suited for which he relied on a decision reported in Sriram https://hcservices.ecourts.gov.in/hcservices/ Cotton Pressing Factory v. Narayanaswamy, AIR 1965 Madras 352. For this, relying on a decision of this Court reported in