IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.03.2010 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR A.S.No.132 of 2002 and C.M.P.No.11732/2002 T.Krishnan S/o.Dhanapal ... Appellant/Defendant Vs. V.Balaji S/o.Venugopal ... Respondent/Plaintiff This appeal suit has been filed under Section 96 of the Civil Procedure Code as against the judgment and decree of the learned Principal Sub Judge, Villupuram dated 18.03.2002 made in O.S.No.268 of 1999. For Appellant : Mr.V.Raghavachari For Respondents : Mrs.Hema Sampath Senior Counsel for Mr.R.Subramanian J U D G M E N T The defendant in the Original Suit on the file of the trial court is the appellant herein and the plaintiff therein is the respondent herein. The respondent/plaintiff had filed the suit in O.S.No.268/1999 on the file of the trial court, namely the court of the Principal Sub Judge, Villupuram for specific performance of contract based on the suit agreement dated 10.11.1998. The plaintiff averred in the plaint that the appellant/defendant entered into an agreement with him for the sale of the suit property, namely a terraced house bearing door No.7, Thiruvalluvar Street, U.Keeranur village Gramanatham survey No.92/1B2 C2 of Ulundurpettai Sub-Registry, belonging to the appellant/defendant to the respondent/plaintiff for a total sale consideration of Rs.4,50,000/- and that the said agreement was signed by the parties on 10.11.1998. The respondent/plaintiff also pleaded payment of a sum of Rs.1,00,000/- in cash on the date of sale agreement and a further sum of Rs.1,50,000/- on 07.01.1998, besides undertaking to discharge a bank loan of Rs.70,000/- owed by the appellant/defendant towards the Ind Bank, Tindivanam and thus pleaded for the payment of a total sum of Rs.3,20,000/- as part payment of the sale consideration. https://hcservices.ecourts.gov.in/hcservices/ 2. Making usual allegations of default by refusal to execute the sale deed in accordance with the suit agreement despite the fact that the readiness and willingness of the respondent/plaintiff was made known to the appellant/defendant, the respondent/plaintiff had prayed for the relief of specific performance directing the appellant/defendant to execute a sale deed in respect of the suit property after receiving the balance consideration and get it registered at the cost of the respondent/plaintiff and in default on the part of the appellant/defendant directing execution of such sale deed by the court itself on behalf of the appellant/defendant. As an alternate relief, the plaintiff had also prayed for a decree directing the appellant/defendant to pay a sum of Rs.2,98,683.30P as damages together with future interest on the said amount @ 12% per annum, in case he would be non-suited for the relief of specific performance prayed as the principal relief. 3. The suit was resisted by the appellant/defendant by filing a written statement totally denying the alleged sale transaction. The plaint allegations regarding the alleged consensus arrived at for the sale of the suit property to the respondent/plaintiff for a sum of Rs.4,50,000/- and execution of the suit agreement dated 10.11.1998 had been stoutly denied. The appellant/defendant had also denied the alleged payment of Rs.1,00,000/- on the date of agreement and Rs.1,50,000/- on 07.01.1998 and the undertaking given by the plaintiff to discharge the debt owed by the defendant to Ind Bank, Tindivanam. On the other hand, the appellant/defendant contended before the trial court that on the recommendation of the appellant/defendant, the respondent/plaintiff had lent a sum of Rs.50,000/- to one Devaraj, a friend of the appellant/defendant; that at the time of advancing the said amount, the plaintiff had obtained the signatures of the said Devaraj in one rupee Revenue stamp affixed Promissory Note, in a patta transfer petition, an unfilled ten rupees stamp paper and in a one rupee stamp affixed conqure paper. According to the defendant's contention, the said Devaraj, who had agreed to pay an interest @ 72% per annum, later on left the village without discharging the plaintiff's debt, after alienating his properties to third parties and the same resulted in plaintiff obtaining signatures of the defendant in an unfilled ten rupees stamp paper, four white papers and four conqure papers after entrusting the unfilled papers containing the signatures of the said Devaraj to the defendant. Similarly, the defendant was directed by the plaintiff to discharge a debt of Rs.5,000/- advanced to one Viswanathan on the recommendation of the defendant, besides discharging the above said debt due by Devaraj. 4. Contending further that the suit property had been leased out to the plaintiff for a period of five years on 27.03.1997 on an agreed monthly rent of Rs.200/- after obtaining an advance of Rs.40,000/-; that the said advance amount of Rs.40,000/- and a further sum of Rs.5,000/- being the amount lent by the plaintiff to Viswanathan were repaid by the defendant on 07.01.1999 itself and obtained receipt for the said payments; that after https://hcservices.ecourts.gov.in/hcservices/ returning the advance amounts on 07.01.1999, the defendant insisted upon delivering vacant possession of the suit property to the defendant whereupon the plaintiff went on evading and that since the defendant had not discharged the debt due by Devaraj, the plaintiff created the suit agreement with the help of the unfilled stamp paper, white papers and conquer papers and filed the vexatious suit — the appellant/defendant had prayed for dismissal of the suit with exemplary costs. 5. Based on the pleadings of the parties, the trial court framed the following issues:- 1. Whether the suit agreement is genuine? 2. Whether the suit agreement has not been executed by the plaintiff? 3. Whether the plaintiff is entitled to the relief of specific performance? 4. Whether the plaintiff is entitled to the alternative relief of advance amount paid? 5. To what relief the plaintiff is entitled? 6. Three witnesses were examined as P.W.1 to P.W.3 and three documents were marked as Exs.A1 to A3 on the side of the respondent/plaintiff in order to substantiate his case. The appellant/defendant figured as the sole witness (D.W.1) and Ex.B1 to Ex.B4 were marked on the side of the defendant. After recording of evidence on both sides was closed, the learned trial judge heard the arguments advanced on either side, considered the evidence in the light of such arguments and upon such consideration, came to the conclusion that the suit agreement was genuine; that out of the total sale consideration of Rs.4,50,000/-, Rs.3,20,000/- had been paid by the plaintiff and only a sum of Rs.1,30,000/- was due under the agreement and that the appellant/defendant was bound to receive the balance consideration and execute a sale deed in accordance with the terms of the suit agreement in favour of the respondent/plaintiff and get it registered at the cost of the plaintiff. Thus the court below held that the plaintiff was entitled to the principal relief of specific performance and issued a decree in favour of the plaintiff accordingly. As the main relief was granted by the trial court, it did not consider the alternative relief of directing the defendant to pay the amount claimed in the plaint as damages. 7. Aggrieved by and challenging the said judgment and decree of the trial court dated 18.03.2002, the appellant/defendant has come forward with the present appeal on various grounds set out in the Memorandum of grounds of Appeal. 8. The points that arise for consideration in this appeal are:- https://hcservices.ecourts.gov.in/hcservices/ i)Whether the suit agreement dated 10.11.1998 is genuine? ii)Whether the suit agreement is the one created by the plaintiff in the circumstances stated by the defendant in his written statement? iii)Whether the respondent/plaintiff is entitled to the relief of specific performance? iv)Whether the plaintiff is entitled to the alternative relief of payment of damages as claimed in the plaint? 9. This court heard the arguments advanced by Mr.V.Raghavachari, learned counsel for the appellant and by Mrs.Hema Sampath, learned senior counsel representing the counsel on record for the respondent. The pleadings of the parties, entire evidence adduced on either side, the judgment of the court below and all other materials available on record were also taken into consideration by this court for answering the points in issues as indicated supra. 10. The case of respondent/plaintiff is a simple case of an agreement holder (purchaser under the agreement) suing for specific performance as the main relief and for damages as the alternate relief. The appellant's/defendant's case is total denial of such an agreement. The appellant/defendant had also contended in his written statement that his signatures were obtained by the plaintiff in a ten rupees stamp paper, four white blank papers and bond papers when Devaraj, who had borrowed a sum of Rs.50,000/- from the plaintiff, left the village after alienating his property, as a security for the discharge of the said debt owed by Devaraj, since the debt was advanced by the plaintiff on the recommendation of the appellant/defendant. He had also made a clear statement to the effect that the blank stamp papers and conquer papers containing the signatures of Devaraj had been returned to the defendant and instead the signatures of the defendant were obtained in the stamp papers and blank papers as stated supra. It is also the case of the appellamt/defendant that one Viswanathan had also borrowed a loan of Rs.5,000/- on the recommendation of the appellant/defendant and the plaintiff was insisting upon the return of the said amount by the defendant himself. 11. A close consideration of the said pleadings made by the appellant/defendant will make it amply clear that the execution of the suit agreement, produced and marked as Ex.A3 on the side of the plaintiff, was not admitted by the defendant. When execution was not admitted, as rightly contended by the learned counsel for the appellant/defendant, the trial court slipped in its approach at the very first instance itself, by framing issue Nos.1 and 2, as whether the suit agreement is a created one? and 2) whether the defendant did not execute the suit sale agreement in favour of the https://hcservices.ecourts.gov.in/hcservices/ plaintiff? — as if the burden of disproving the agreement was on the appellant/defendant when the suit is based on an agreement for sale and there is no implied or express admission of execution of the sale, then the initial onus shall be cast on the party, who bases his claim on such a document. In this case, despite the fact that the defendant specifically denied execution of the suit sale agreement, namely Ex.A3, the trial court chose to frame issue Nos.1 and 2 purporting to cast the burden of proof on the defendant that the suit agreement was a created one and he did not execute the same. As rightly contended by the learned counsel for the appellant/defendant, the initial approach of the trial court to the problem itself was erroneous and the same is reflected in the entire judgment, which consists of just ten paragraphs running to 10 pages. 12. The learned senior counsel appearing for the respondent/plaintiff made an attempt to show that there was admission of execution of the suit agreement for sale or at least there were evidence sufficient to shift the burden of proof regarding the genuineness of the suit agreement for sale and cast it on the appellant/defendant. As pointed out supra, there is no unambiguous admission on the part of the defendant that he ever executed any agreement for sale in respect of the suit property in favour of the plaintiff. On the other hand, clear allegations had been made to the effect that the suit agreement was a created one under the circumstances narrated in the written statement. Nowhere in the evidence of the defendant (D.W.1), he admitted the execution of Ex.A3-suit agreement for sale. However, during cross- examination, D.W.1 admitted that his signature was found at each page of Ex.A3-suit agreement. Whether the said admission that each page of the suit agreement contains the signature of the defendant, in the light of his defence statement that his signatures were obtained in blank papers under the circumstances stated in the written statement, could be construed to be an admission of execution of Ex.A3 agreement for sale? This court has to consider whether the shifting of the burden regarding the proof of the suit agreement as done by the court below is proper - when there is no such admission? 13. The contention of learned senior counsel appearing for the respondent/plaintiff is that since the signature found in Ex.A3 was admitted by D.W.1 and he did not even choose to inspect the document as per his own admission, the same shall be enough to draw a presumption that the document could be a genuine one. Per contra, the learned counsel for the appellant/defendant would contend that the arguments advanced by the learned senior counsel for the respondent/plaintiff cannot be accepted, as it is based on a snap answer of D.W.1, which also does not make it amply clear that the failure to inspect the documents would show that the defendant was lying. In this case, nothing has been elicited from D.W.1 as to whether any similar blank stamp papers were signed and given to anyone else by the defendant. In case he has not signed and delivered any blank stamp paper to any person other than the plaintiff, the defendant shall be justified in thinking that the https://hcservices.ecourts.gov.in/hcservices/ document should be either created with the help of the blank stamp paper containing the signatures of the defendant or should be a rank forgery. In either case, it shall not be necessary for the defendant to inspect the document. The fact that he did not inspect the document before entering into the box, will make it obvious that he was confident in his belief that he did not execute any sale agreement in favour of the plaintiff. Simply because the converse, namely the defendant was well aware that the document was genuine and that is the reason why he had not chosen to inspect the document, is also possible that alone shall not be the ground on which a presumption can be raised in favour of the plaintiff or against the defendant under Section 114 of the Evidence Act. 14. As rightly contended by the learned counsel for the appellant/defendant, the totality of evidence adduced in this regard on either side should be taken into consideration to decide whether the disputed document has been proved or not and whether the disputed document could be genuine. In this regard, the learned counsel for the appellant took the court through the testimonies P.Ws.1 to 3 and contended that shifting the stand taken by the respondent/plaintiff in this case will be enough to hold that he has not discharged his burden of proof sufficient enough to shift it and cast it on the appellant/defendant. 15. It is the further contention of the learned counsel for the appellant/defendant that it is a case in which the court should raise a presumption not in favour of the plaintiff but in favour of the defendant regarding the genuineness of the suit agreement. The learned counsel for the appellant pointed out the fact that the alleged payment of advance itself has not been proved and that the same has been disproved by contradictions found in the evidence adduced on the side of the plaintiff himself. Admittedly, the suit property belongs to the defendant and it was leased out to the plaintiff on 27.03.1997 for a period of five years on a monthly rent of Rs.200/- and a sum of Rs.40,000/- was paid as advance. Therefore, it is quite clear that as on the date of alleged agreement for sale, the suit property was in the actual possession of the respondent/plaintiff as tenant. It is the case of the defendant that subsequently the said advance amount was repaid and possession was demanded from the plaintiff, whereupon the plaintiff created the suit agreement and filed the vexatious suit. Though it has been admitted that the suit property was in possession of the plaintiff as on the date of the alleged suit agreement, the plaintiff has admitted that the said advance of Rs.40,000/- and a further sum of Rs.5,000/- obtained as hand loan were repaid by the defendant. P.W.1 also admitted that he issued a receipt for the refund of advance amount and payment of the said sum of Rs.5,000/- in discharge of the hand loan on 07.01.1999. If at all the defendant owed such an amount and the plaintiff entered into such a sale agreement under which a sum of Rs.3,20,000/- was paid out of the total consideration of Rs.4,50,000/-, then the above said amount of Rs.40,000/- + Rs.5,000/- would not have been received back by the plaintiff. On the other hand, the same could have been very well adjusted towards the balance sale consideration. That was https://hcservices.ecourts.gov.in/hcservices/ not done by the plaintiff. 16. The further case of the plaintiff is that on 10.11.1998 when the agreement was entered into, a sum of Rs.1,00,000/- was paid as advance. It has also been pleaded by the plaintiff that Rs.1,50,000/- had been paid ten months prior to the date of agreement, namely on 07.01.1998. The said amount of Rs.1,50,000/-, according to the recitals found in Ex.A3, was paid as mortgage loan based on a mortgage deed dated 07.01.1998. The relevant portion in the document reads as follows:- " 1tJ egh; fPH;f;fz;l brhj;ij Vw;fdnt 7/1/1998y; 2tJ eghplk; <Lfl;o mlkhdf;fld; gj;jpuk; vGjpf;bfhLj;J 2tJ eghplk; 1tJ egh; buhf;fk; bgw;Wf; bfhz;lJ U:gha; 1.50.000-= xU yl;rj;J Ik;gjhapuk;/" It is curious to note that such a mortgage deed was referred to in the agreement for sale, but no such mortgage deed or its copy has been produced by the plaintiff. On the other hand, P.W.1 would state that it was only an equitable mortgage by deposit of title deeds and the title deeds were handed over to the defendant on the date of agreement, whereupon the defendant again created an equitable mortgage in favour of a bank and borrowed an amount from the bank. The document Ex.A3 contains a recital to the effect that the third part of the sale consideration to the extent of Rs.70,000/- was an undertaking by the plaintiff to discharge a debt of Rs.70,000/- due by the defendant to Ind Housing Society. When the debt was quoted and it was either discharged or agreed to be discharged by the plaintiff himself as part payment of the sale consideration, it is quite improbable that the plaintiff would have allowed the defendant to create an equitable mortgage in favour of the bank after entering into an agreement for sale. Even if it is possible that the plaintiff would have allowed the defendant to raise funds as the plaintiff was not in a position to pay the entire sale consideration on the date of agreement, then the fact of creation of equitable mortgage in favour of the bank and the amount of loan would have been taken note of by the plaintiff and insisted upon necessary endorsement being made on the agreement for sale. No such thing has happened. A careful reading of the plaint pleadings and the evidence of P.W.1 will show that the plaintiff has made remarkable improvement and embellishment in his evidence over the plaint pleadings in order to prove the genuineness of the suit agreement for sale. 17. Furthermore, even as per the recitals found in Ex.A3- agreement the plaintiff had to discharge the Housing Society loan of Rs.70,000/-, which the plaintiff refers to as the bank loan. Till the date of filing of the suit and till the date of disposal of the suit, the plaintiff had not discharged the said loan. In fact, there is no document to show that there was such an amount due to any bank or Housing Society from the defendant as on the date of the agreement. If at all the same could have been true, the plaintiff would not have chosen to approach the court without https://hcservices.ecourts.gov.in/hcservices/ even making arrangements for discharging the said loan. It is also not the case of the plaintiff that the said amount due to the bank or Housing Society is withheld, as he was prepared to get the sale deed subject to the encumbrance created in favour of the bank/Housing Society. P.W.1 has stated in his evidence that he was not even aware as to whether the defendant was making payment towards the discharge of the said loan to the bank. 18. As it was pointed out supra, the possession of the suit property was with the plaintiff as its tenant as on the date of agreement. It is not the clear case of the plaintiff that he continued to be in possession of the said property from the date of agreement for sale only in part performance of the contract for sale. On the other hand, there is clear admission on the part of P.W.1 that a sum of Rs.40,000/- paid to the defendant as advance rent at the time of taking the property on lease was repaid by the defendant on 07.01.1998, for which the plaintiff chose to issue a receipt. After the defendant returned the advance amount, whether the property continued to be in possession of the plaintiff as agreement holder? - There is no clear-cut pleading. In the plaint at paragraph 4, plaintiff claimed that he continued to be in possession of the suit property in pursuance of the sale agreement even after the repayment of the rental advance, but the plaintiff has not stuck on to the said stand throughout. It is admitted on behalf of the respondent/plaintiff that at some point of time, possession was delivered to the defendant. The learned counsel for the appellant also submits that the possession of the suit property is now in the hands of the defendant. As it is admitted across the bar that the possession of the suit property is with the defendant and not with the plaintiff, it becomes obligatory on the part of the plaintiff to explain as to when and under what circumstances possession was delivered. A consideration of the entire evidence adduced on the side of the plaintiff will go to show that the pleadings found in paragraph 4 of the plaint is nothing but an attempt to make out a case of the purchaser being in possession in part performance of the agreement for sale. 19. One Rajan, son of Subbarayan and another person by name Rajendran, son of Periyasamy Padayachi are the attesters of the suit agreement for sale. Out of the said attesters, Rajan alone has been examined as P.W.2. Though he attempted to support the plaintiff's case in his chief examination, during cross- examination he would admit that he had no direct knowledge about the payment of Rs.1,50,000/- on 07.01.1998. What for the said amount had been paid nearly 10 months prior to the date of agreement, has not been adverted to by P.W.2. Furthermore, P.W.2 pleaded ignorance when it was put to him that on 27.03.1997, the plaintiff paid an advance of Rs.40,000/- and got the possession of the suit property as its tenant for a monthly rent of Rs.200/-. However, he would admit that he was aware of the fact that the plaintiff was a tenant in respect of the suit property and the monthly rent was Rs.200/-. It is the testimony of P.W.2, that at the time of execution of the agreement, they were informed by the defendant that the original title deeds had been deposited with Ind https://hcservices.ecourts.gov.in/hcservices/ Bank and an equitable mortgage had been created for the loan availed from the bank by the defendant. He has not supported the evidence of P.W.1 that defendant had borrowed a sum of Rs.1,50,000/- by depositing title deeds with the plaintiff and on the date of agreement he got back the title deeds and deposited with the bank for creating an equitable mortgage. If at all the defendant had already borrowed some amount from the bank by creating equitable mortgage depositing title deeds relating to suit property, the plaintiff's plea that the defendant had borrowed a sum of Rs.1,50,000/- by depositing title deeds, could not be true. Furthermore, the evidence of P.W.2 is