IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 23.11.2010 Coram :- The Honourable Mr.JUSTICE K. MOHANRAM and The Honourable Mr.JUSTICE S. PALANIVELU A.S.No.237 of 2007 and M.P.Nos.1 and 2 of 2007 G. Kuppusamy ... Appellant/Defendant vs. M.V. Kannabiran ... Respondent/Plaintiff Appeal Suit is filed under Section 96 of the Code of Civil Procedure against the judgment decree dated 31.07.2006 made in O.S.No.639 of 2004 on the file of the Additional District Judge/Fast Track Court No.II, Kancheepuram. For Appellant : Mrs. Srividya for M/s.N.S. Sivakumar For Respondent : Mr. Ramalingam for M/s.Ramalingam & Associates J U D G M E N T (Judgment of the Court was delivered by S.PALANIVELU,J.) 1. The following are the averments contained in the plaint: The defendant is absolute owner of the suit property. He entered into an agreement of sale with respect to his property with plaintiff on 22.5.2001 and the same was reduced to writing. The sale consideration was fixed at Rs.15 lakhs and a sum of Rs.11 lakhs was paid to the defendant as advance by the plaintiff, which was received on the same date. Time is not the essence of contract, even though six months time was fixed for the performance of the contract. The defendant had already mortgaged the suit property with the Big Kancheepuram Co-operative Town Bank Limited and he had agreed to discharge the same within six months, but he did not do so. The plaintiff had been ready and willing to perform his part of contract. The defendant was evading to execute the sale deed and has not chosen to discharge the mortgage debt in favour of the Bank. On 25.2.2004, he sent a lawyer's notice calling upon the defendant to execute the sale deed on receipt of the balance of Rs.4 lakhs. He sent a reply to notice on 01.03.2004 with false and defamatory allegations. Hence, this suit is filed for specific performance of contract. https://hcservices.ecourts.gov.in/hcservices/ 2. In the written statement filed by the defendant the following are stated: 2.(a) The suit is not maintainable in law or on facts. It is strongly denied that the defendant entered into an agreement of sale of the suit property in favour of the plaintiff on 22.5.2001, that the sale price was fixed at Rs.15 lakhs, that it was registered on the same date, that the time is not essence of contract and that he received a sum of Rs.11 lakhs as advance from the plaintiff. It is also not correct to state that he agreed to discharge the mortgage loan in Big Kancheepuram Co-operative Town Bank limited within 6 months, that he has been evading to perform his part of contract and that the plaintiff has suppressed real facts. 2.(b) The defendant is doing retail kerosene business and also owner of tanker lorries. For the said business, he used to borrow money from the plaintiff from 1992 onwards for interest. In 2001, a sum of Rs.7,40,000/- was due from the defendant towards principal only. He was paying interest regularly. One fine morning, the plaintiff came with 10 rowdy elements in Ambassador and Sumo cars along with his relatives, took him forcibly and detained him in a room. Under threat and coercion, with the help of rowdy elements, the plaintiff obtained signatures of defendant in some documents, took him to the Registrar office and obtained his signature under compulsion. Since the plaintiff and his relatives are highly influential persons with the Registrar office, the Registrar has not questioned the defendant at the time of getting signature. The defendant has not executed any sale agreement as stated by the plaintiff. Hence, the suit may be dismissed with costs. 3. After analysing the pleadings, oral evidence and documents, the learned Fast Track Court Judge decreed the suit by directing the defendant to execute a sale deed in favour of the plaintiff in respect of the suit property after discharging mortgage in Big Kancheepuram Co-operative Town Bank and handover the possession of the property to the plaintiff within two months, with costs. Hence the defendant is before this Court with this appeal. 4. Points for consideration: 1.Whether the suit sale agreement transaction is genuine? 2.Whether the plaintiff has been ready and willing to perform his part of contract from the inception? 3.To what reliefs are the parties entitled to? Point No.1 5. The suit property is a house situate in Kancheepuram Town, which belongs to the appellant. It is stated that he agreed to sell the property to the respondent for a sum of Rs.15 lakhs and https://hcservices.ecourts.gov.in/hcservices/ entered into a registered sale agreement Ex.A.1 on 22.5.2001 on receipt of an advance of Rs.11 lakhs. It was agreed interalia that the appellant has to discharge the mortgage loan which he obtained in respect of the suit property from Big Kancheepuram Co-operative Town Bank Limited, within six months before the execution of sale deed. The respondent has to pay Rs.4 lakhs within six months from the date of sale agreement to the appellant and to get the sale deed executed. The original title deeds for the property were agreed to be delivered to the respondent at the time of execution of sale deed. 6. The execution of the sale agreement is denied by the appellant. It is his contention that he is a retail kerosene business man and also owner of tanker lorries, that he used to borrow money from the respondent from the year 1992 onwards for his business and in 2001, Rs.7,40,000/- was due to the respondent towards principal alone, that one fine morning, the respondent came with 10 rowdy elements in Ambassador and Sumo cars with his relatives and took him forcibly and detained him in a room and under threat and coercion he obtained his signatures in some documents and took him to the Registrar office and obtained his signatures under compulsion. 7. There are two attesters in Ex.A.1, among whom the respondent has examined P.W.2, who is none other than his brother in law. P.W.1, the respondent would say about the execution of the sale deed, payment of Rs.11,00,000/- and Registration of the same. D.W.2 is son of appellant who has put his signature on the reverse of the first page of Ex.A.1 as identifying witness. P.W.1 in his cross examination has denied the suggestions put to him on behalf of the appellant that the appellant was forcibly taken from his house under coercion and threat and he put his signatures in the papers in the presence of his relatives and rowdy elements and that his signatures were obtained under compulsion in the said documents. Pertinent it is to note that after execution of sale agreement, the appellant has not taken any steps to set aside the same. He has also not lodged any complaint with the police. 8. In the written statement, the appellant has not pleaded that he used to get loans for his friends from the respondent, so also in the reply notice Ex.A.8 dated 1.3.2004. But in his evidence, he has given a detailed account of his friends for whom he helped to get loan from respondent. It is his evidence that he introduced about 8 persons to the respondent/plaintiff and on account of the transactions with the above said persons, there was outstanding of Rs.7,40,000/- due to the plaintiff. But in his written statement, the due was Rs.7,40,000/- to the plaintiff which he himself borrowed from him. He has furnished the names of 8 persons also in his oral evidence. He also says that the plaintiff used to advance loan even without getting any documents. But the written statement is silent with regard to this aspect. 9. In the written statement it is not stated that the appellant was taken to the house of the plaintiff in Kumara Chetty https://hcservices.ecourts.gov.in/hcservices/ Street and was compelled to pay the money advanced, otherwise he would be put to disgrace, that he told that he would execute a pro- note but the respondent did not accept it and his signature was obtained in a paper under threat and thereafter, he was taken to the District Registrar's Office. But the above said details are not found place in the written statement, wherein it is stated that the appellant was taken to his house and detained in a room and his signatures were obtained under compulsion. 10. D.W.2 is son of the appellant who would say that after he signed in the document, he asked him to lodge a complaint with the police, for which the appellant replied that there was no necessity to lay complaint and it was enough to pay back the loan. It is not stated so by the appellant either in his written statement and notice or in his oral evidence. 11. The appellant also deposed that the respondent told that if the amount were repaid, the document would be returned. But it is not mentioned in the written statement. He also stated in his cross examination that for over 15 years the respondent is known to him and he is his close friend, that he obtained loan on pro-note and in addition to the same, he also got hand loan from him, that he received Rs.1,00,000/- from the respondent on pro-note in 1992 and he discharged the same and got back the pro-note. But he has not produced the said pro-note. It is his further evidence that out of Rs.7,40,000/- Rs.3,00,000/- was received for his benefit and the balance was obtained from the respondent for his friends for which the respondent did not take any pro-note from them and that he has given 3 cheques to the defendant. The above versions are not available in the written statement. He has not produced the paper in which he has written down the amount which he arranged to get from the respondent for his friends. He has given the particulars in his evidence with reference to the amount as follows:- Thanigaivelu Rs.30,000/- Vadivelu Rs.80,000/- Ekambaram Rs.10,000/- Raju Rs.10,000/- Munusamy Pillai Rs.30,000/- Ramasamy Pillai Rs.40,000/- Mohan Rs.40,000/- Raju Rs.10,000/- Sampath Rs.15,000/- 12. Without any document, the above said amounts were stated to have been advanced to the friends of the appellant on many occasions. In the chief examination, he has stated the names of Vadivelu, Thanigaivelu, Ekambaram, Veeraraghavan, Munusamy, Ramasamy Pillai and Mechanic Krishnan. But in the cross examination he has has given the particulars of some other persons also with particular reference to amount which are received by them. Pertinent it is to state that they are not covered by pleadings. https://hcservices.ecourts.gov.in/hcservices/ 13. The plaintiff was not cross examined with reference to the amounts which he was alleged to have advanced to the above said persons. The respondent pleads ignorance of the names suggested in his cross examination, who are friends of the appellant. He also denied that he had transaction with them. He was also suggested that for the loan advanced to the appellant and his friends, the respondent took the document from the appellant as a security by compelling him. It is not the case of the appellant in his written statement. In view of the above said discrepancies between the written statement and oral evidence adduced on behalf of the appellant, we are unable to accept the contentions put forth by the appellant's side. 14. P.W.2 is brother in law of the respondent. He speaks about the case of the respondent. He says that he personally knows the execution of sale agreement and payment of Rs.11,00,000/- advanced to the appellant. Merely, because he is related to the respondent, his evidence could not be disbelieved. It has to be appreciated in the light of the other evidence available in this case. When it is subjected to a careful scrutiny, it comes to light that his evidence is true. 15. It is not believable that a person would advance heavy amount to third parties without taking any document. Further, when the respondent used to advance loan to the defendant and his friends reposing confidence on him, there would be no necessity for him to get a document from him under threat and compulsion with the aid of rowdy elements as narrated in the written statement. We are also slow in placing reliance upon the evidence of P.W.2, while he says that he searched his father in various places in the town and he located him the district Registrar's office, which is opposite to a hotel where the TATA Sumo vehicle belonging to the respondent was parked. 16. The respondent has produced Ex.A.2 series which are the balance sheet contained the statement of total income of the respondent for the assessment year 2002-2003 which show that Rs.11,00,000/- was paid to the appellant as property advance. The total taxable income arrived at therein is Rs.77,810/-. Exs.A.1 and A.2 contain SARAL forms duly prepared and authenticated by the Income Tax office, Kancheepuram, which pertains to the period from April 2001 to March 2002. The entries in both the SARAL form and statement of total income tally. Ex.A.3 is statement of Savings Bank Account of the respondent from 9.1.2001 to 18.2.2003 issued by City Union Bank, Kancheepuram. It is a computerised print out, which shows that on 18.5.2001 a cash of Rs.7,00,000/- was withdrawn by the respondent. The above said documents would strengthen the case of the respondent. They were helpful to come to a conclusion that Rs.11 lakhs was advanced to the appellant on the date of sale agreement. 17. The learned counsel for the respondent Mr. Ramalingam, would garner support from a Division Bench decision of this Court in AIR 2003 Madras 305 [M. Ramalingam vs. V.Subramanyam] in which https://hcservices.ecourts.gov.in/hcservices/ it is held that in view of the admission of the execution of the document along with receipt of Rs.35,000/- by the defendant coupled with the evidence of P.W.1 and also the clear and unambiguous terms and recitals found therein, the Court is of the considered view that no more proof could be expected to prove the document. 18. The appellant as D.W.1 would state in his cross examination that in 2002 he went to the respondent with Rs.50,000/- and asked him to receive the amount, for which he refused by stating that it was not enough even to meet the interest. This instance would show that after the sale agreement both the parties met. 19. D.W.3 is third party, who claims to be wife of a friend of the appellant. She says that her husband by name Ramasamy Pillai got loan of Rs.30,000/- from the respondent through appellant for her daughter's marriage, for which the respondent had not taken any document and her husband paid the interest amount. In her cross examination she says that after her husband's death, the respondent had not taken any steps to recover the amount. Her evidence in no way supports the case of the plaintiff. Her oral testimony is bristled with improbabilities. All probabilities in this case would indicate that the sale agreement is genuine. 20. On an overall consideration of the above said circumstances, we are of the considered opinion that the sale agreement transaction under Ex.A.1 is true and the defence raised in the written statement in this regard has not been established. This point is answered in affirmative. Point No.2 21. The sale agreement was executed on 25.2.2001. But the respondent issued notice to the appellant only on 20.2.2004 calling upon him to execute the sale deed under Ex.A.7, for which Ex.A.8 reply was sent by the appellant. It is contended by the appellant that when it is agreed in Ex.A.1 that the respondent has to get the sale deed executed from the appellant within 6 months, after a long time, the notice was issued and the suit was filed and that it indicates lapse on the part of the respondent which would disentitle him to get the discretionary relief of specific performance of contract. It is also contended that this instance would show that the respondent had not been ready and willing to perform his part of contract. 22. The respondent has produced Exs.A.4 and A.5 series Fixed Deposit Receipts in Indian Bank, Theradi Branch, Kancheepuram, for deposit of Rs.4 lakhs for a period of six months. Ex.A.6 series are Fixed Deposit Receipts numbering four each for Rs.1,00,000/- in his name and his wife and son's names. These documents would show that the respondent was prepared to pay the balance sale consideration of Rs.4 lakhs after the sale agreement. The appellant has categorically admitted in his cross examination that the plaintiff is capable of raising Rs.5 lakhs or Rs.10 lakhs in a day. Worthwhile it is to note that he has not disputed the https://hcservices.ecourts.gov.in/hcservices/ means possessed by the respondent either to pay advance amount in the sale agreement or the balance. Throughout his examination he was concentrating on the dispute with regard to circumstances surrounding the execution of Ex.A.1. He has not specifically pleaded in the written statement that the respondent had not been ready and willing to perform his part of contract nor had he deposed about it in his evidence. 23. The learned counsel for the appellant Mrs. Srividya, in support of her contention placed reliance upon a decision in 2009 (4) CTC 639 [S. Krishnamurthy vs. M. Venkateswara Rao @ M.V. Rao (died)] in which it is held that when the purchaser was found to follow evasive tactics, the refusal on the part of the court to grant relief of specific performanceand direction of refund could be justified. In the case on hand no evasive tactics could be inferred on the part of the respondent. 24. She also cites another Division Bench decision in 2009 (4) L.W. 756 [Shanthi Kawarbai& 3 others v. Sushila] in which it is held that the balance sale consideration kept without payment for a long time would indicate that the plaintiff was not ready and willing. In this case the balance sale consideration was deposited in the bank even in the year 2002. Hence, the said decision does not apply to the facts of the present case. 25. In (2007) 1 MLJ 479 [Senbagasundari v. Kothandapani Pillai] a learned single Judge of this Court has observed that when the suit for specific performance of contract was filed after a long gap of nearly 7 years, the plaintiff's explanation that major part of the sale consideration was paid would show that there were laches on his part and that it is not a fit case which would warrant granting the relief of specific performance. In this case, no inaction has been found on the part of the respondent. 26. In yet another decision of this Court rendered by a single Judge in (2009) 1 MLJ 457 [Vasantha Ammal vs. Babu Chettiar (died) and others] it is observed that it is absolutely necessary on the part of the plaintiff to prove his financial ability and when there is no financial wherewithal there can be no readiness and willingness. In this case there is no dispute with regard to the financial capacity of the respondent. 27. The learned counsel for the appellant placed strong reliance upon a decision of the Honoruable Apex Court reported in 1997 (3) SCC 1 [ K.S. Vidyanadam and others v. Vairavan] wherein there was a total inaction on the part of the plaintiff for 2 ½ years after the agreement of sale, where it was agreed that the sale deed should be executed within 6 months. The relevant portions in the said judgment are as follows: "10. ... .... ... We reject the story put forward by the plaintiff that during the said period of 2 1/2 years, he has been repeatedly asking the defendants to get https://hcservices.ecourts.gov.in/hcservices/ the tenant vacated and execute the sale deed and that they were asking for time on the ground that tenant was not vacating. The above finding means that from 15.12.1978 till 11.7.1981, i.e., for a period of more than 2 1/2 years, the plaintiff was sitting quiet without taking any steps to perform his part of the contract under the agreement though the agreement specified a period of six months within which he was expected to purchase stamp papers, tender the balance amount and call upon the defendants to execute the sale deed and deliver possession of the property. We are inclined to accept the defendant's case that the values of the house property in Madurai town was rising fast and this must have induced the plaintiff to wake up after 2 1/2 years and demand specific performance." ....... ....... ...... ........ ..... 13. In the case before us, it is not mere delay. It is a case of total inaction on the part of the plaintiff for 2 1/2 years in clear violation of the term of agreement which required him to pay the balance, purchase the stamp papers and then ask for execution of sale deed within six months. Further, the delay is coupled with substantial rise in prices - according to the defendants, three times - between the date of agreement and the date of suit notice. The delay has brought about a situation where it would be inequitable to give the relief of specific performance to the plaintiff." 28. In the above said case, the plaintiff after the sale agreement had been keeping quiet for about 2 ½ years without taking any initiatives to get the sale deed executed. But the facts in the present case are distinguishable. In this case, after the sale agreement, the respondent had deposited Rs.4 lakhs being the balance sale consideration in the bank in December 2002 and he has deposited the same in the Fixed Deposit in the names of his wife and son as evident from Exs.A.4 and A.5 series. Further only after the discharge of the mortgage loan by the appellant, the sale deed could be executed. There is no plea on the side of the appellant as to the rise in price of the property. The appellant has agreed in the sale agreement that he would discharge the mortgage loan subsisting over the suit property with Big Kancheepuram Co- operative Urban Bank. As per the evidence on record the outstanding loan amount is about Rs.4 lakhs. In the sale agreement, the appellant agreed to discharge the mortgage loan in the said bank within six months. Discharge of the mortgage loan over the property is condition precedent for getting the sale deed executed. Without discharge, there could be no execution of sale https://hcservices.ecourts.gov.in/hcservices/ deed. In the evidence, the respondent, as PW1 stated that he has been orally asking the appellant to execute the sale deed. the 29. The deposit of Rs.4 lakhs representing the balance sale consideration into the bank by the respondent and the inaction on the part of the appellant to get the mortgage loan discharged would show that there was no laches on the part of the respondent. In the cross examination of P.W.1, it was asked that he did not take any steps to discharge the mortgage loan. But it is not the responsibility of the respondent as per the sale agreement. In his cross examination, he replied to the queries to the effect that the defendant required six months time gap for vacating the tenants in the property, that he did not impose any condition in the agreement that the tenants had to be vacated , that the particulars of tenants and the amount payable to them are not stated in the sale agreement. When it is nobody's case that the tenants have to be vacated, specific questions have been put to P.W.1 as regards them. 30. It is specifically pleaded in the plaint that the failure on the part of the defendant to discharge the bank loan is wilful and wanton and he has to execute the sale deed without any encumbrance over the property as per the contract. 31. The foregoing discussion would clearly show that the respondent had been ready and willing to perform his part