Madras High Court
G. Umapathy vs B. Babu on 16 September, 2021
Author: P.T. Asha
Bench: P.T. Asha
A.S.No.411 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.09.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
A.S.No.411 of 2018
G. Umapathy ...Appellant/Defendant
Vs.
B. Babu ...Respondent/Plaintiff
PRAYER: Appeal Suit filed under Section 96 of the Code of Civil
Procedure against the Judgment and Decree dated 28.07.2017 in
O.S.No.19 of 2013 on the file of the learned III Additional District
Judge, Tirupattur, Vellore.
For Appellant : Mr.R.Subramanian
For Respondent : No appearance
JUDGMENT
The defendant is the appellant herein. He has challenged the Decree passed in O.S.No.19 of 2013 by the learned III Additional District Judge, Tirupattur, Vellore, which is a suit for Specific Performance directing the defendant to execute a Release Deed in https://www.mhc.tn.gov.in/judis 1/24 A.S.No.411 of 2018 respect of his 1/3rd share in favour of the plaintiff after receiving the balance sale consideration. The parties are referred to in the same array as in the trial Court.
2.The facts in brief which are necessary for disposing of the above First Appeal are hereinbelow narrated:
The plaintiff would submit that the suit property belonged to him, the defendant and one Manickavel and that from 24.04.1996 till 30.06.2001, the three of them were doing business in the suit property in the name and style of “Sri Ragavendira Bricks”.
Manickavel had executed an Agreement of Release on 01.07.2001 in favour of the plaintiff and the defendant. The said Manickavel had received amounts in respect of this Agreement of Release and the balance consideration payable was a sum of Rs.1,77,000/-. Though the plaintiff and the defendant had approached him on several occasions to complete his part of the Contract the said Manickavel evaded to perform his part of the Contract which constrained the plaintiff and the defendant to file O.S.No.175 of 2006 on the file of https://www.mhc.tn.gov.in/judis 2/24 A.S.No.411 of 2018 the learned District Munsif, Vaniyambadi, against the said Manickavel and the suit is pending. In the meanwhile, the defendant agreed to release his 1/3rd share to the plaintiff for a total consideration of Rs.12,35,000/- and had received an advance amount of Rs.50,000/-. On the very same day, he had executed a Partnership Business Release Deed. Thereafter, the defendant had received further amounts towards the consideration on various dates leaving a balance of Rs.75,000/-. These payments have been endorsed on the reverse of the Agreement. Under the Agreement, the time for performance is fixed as six months. Although the plaintiff had always been ready and willing to perform this Contract the defendant was evading the execution of the Release Deed which prompted the plaintiff to issue a Legal Notice dated 11.07.2007 and the defendants despite receiving notice had not sent any reply. Hence, the suit.
Written Statement of the Defendant:
3.The defendant had challenged the very maintainability of the suit on the ground of limitation and on the ground that the suit is hit https://www.mhc.tn.gov.in/judis 3/24 A.S.No.411 of 2018 by the provisions of Order 2 Rule 2 of the Code of Civil Procedure. He had denied the execution of the Release Deed and also the receipt of the money by him. He would contend that the suit O.S.No.175 of 2000 has been instituted by the plaintiff on the file of the learned District Munsif -cum- Judicial Magistrate, Vaniyambadi, on false allegations. He denied the execution of the Release Deed by Manickavel. Further, the defendant would submit that neither has he entered into any Agreement to sell his share nor received any advance amount as pleaded. The plaintiff from the formation of the Partnership had been reluctant to provide proper accounts and give them due share in the profits.
4.In fact, the defendant and Manickavel were demanding that the plaintiff furnishes the accounts in respect of the Firm and pay their share in the property of the Firm. In order to overcome the same, the alleged Agreement of Release has been created by forging the signature of the defendant. It is the categoric case of the defendant that the suit property and the partnership business continues to be in their joint possession and enjoyment. The plaintiff https://www.mhc.tn.gov.in/judis 4/24 A.S.No.411 of 2018 had filed the suit O.S.No.175 of 2006 and O.S.No.144 of 2007 on various grounds and these suits have been dismissed.
5.Without prejudice to the above contentions, the defendant had contended that the suit has not been filed within three years and that has been filed beyond the period of limitation and therefore, the suit is barred by limitation. It is also his defence that the plaintiff had filed the suit O.S.No.144 of 2007 on the file of the learned District Munsif -cum- Judicial Magistrate, Vaniyambadi for permanent injunction and when the suit was filed the cause of action pleaded in the suit had arisen. Despite which, the plaintiff has not sought the leave of the Court to sue for Specific Performance at a later point of time and therefore, the instant suit is clearly barred by the provisions of Order 2 Rule 2 of the Code of Civil Procedure as well. He therefore prayed for dismissal of the suit. Trial Court:
6.On the basis of the above pleadings, the learned III Additional District Judge, Tirupattur, Vellore, had framed the https://www.mhc.tn.gov.in/judis 5/24 A.S.No.411 of 2018 following issues:
“(1)Whether the plaintiff is entitled for release deed in respect of defendant's 1/3rd share of the suit property?
(2)Whether the suit Agreement for Release Deed dated 11.12.2008 is true and valid document and the same is enforceable one?
(3)Whether the plaintiff is in possession of the suit property?
(4)Whether there is no cause of action to try the suit?
(5)To what other relief the plaintiff is entitled to?
(6)Whether the suit is maintainable one?” Thereafter, on 21.06.2017, the learned Judge has framed an Additional Issue as to “Whether the suit is barred by limitation?.
7. After analysing both the oral and documentary evidence, the learned Judge came to the conclusion that since the last payment was made on 02.07.2007 the suit filed on 23.08.2007 is well within the https://www.mhc.tn.gov.in/judis 6/24 A.S.No.411 of 2018 period of limitation and therefore, the suit is not barred by limitation.
8.As regards the plea of the provisions of Order 2 Rule 2 of the Code of Civil Procedure, the learned Judge had stated that the cause of action pleaded in the suit O.S.No.144 of 2007 was on the basis of the attempts made by the defendant to dispossess the plaintiff from the suit property, however, the second suit is filed in view of the breach of the Contract of Sale and therefore, it cannot be said that the 2nd defendant, namely, the suit under appeal is barred by Order 2 Rule 2 of the Code of Civil Procedure and therefore, the learned Judge has decreed the suit as prayed for and directed to deposit the balance amount within a month. It is challenging the said Judgment and Decree that the defendant is before this Court.
9.The respondents had been served and Mr.T.Sundaravadanam had entered appearance on their behalf on 02.08.2018 and thereafter, a Memo came to be filed on 07.09.2021 wherein the learned counsel has stated that the plaintiff had taken back the brief along with https://www.mhc.tn.gov.in/judis 7/24 A.S.No.411 of 2018 change of vakalath on 14.08.2021, however, the plaintiff did not choose to engage the services of other counsel and today, the matter had been listed with the plaintiff's name being displayed in the cause list. It is also seen that the matter has been appearing in the list continuously from January 2020. The respondents were therefore aware that the appeal was to be taken upon hearing. However, despite taking a return of the brief from the earlier counsel the respondent has not taken steps to be represent before this Court. Hence, this Court proceeded to hear the counsel appearing for the appellant and perusing the records.
10.Point for Consideration:
“(1)Whether the finding of the trial Court that the suit is not barred by limitation is erroneous?
(2)Whether the observation of the learned Judge that the provisions of Order 2 Rule 2 would not apply as the relief claimed in both the suits are different, is correct?
https://www.mhc.tn.gov.in/judis 8/24 A.S.No.411 of 2018 (3)Whether the plaintiff has proved the readiness and willingness as contemplated under Section 16(c) of the Specific Relief Act?
SUBMISSIONS:
11.Mr.R.Subramanian, learned counsel for the defendant/ appellant would contend that the trial Court has totally lost sight of the fact that the suit in question is one for Specific Performance and therefore, the payment of the portions of the sale consideration without specifically extending the time for performance, will not automatically enlarge the period of limitation. It is his contention that when the last payment was made on 02.07.2007 and the endorsement was made on the reverse of the Agreement, the parties had not agreed to extend the period of performance. In fact, such an extension has not been made at the time when the payments were made earlier. As per the terms of the Agreement dated 11.12.2006 which has been marked as Ex.A.1, the time for performance was six months which ended on 10.06.2007.
https://www.mhc.tn.gov.in/judis 9/24 A.S.No.411 of 2018
12.The learned counsel would submit that a suit has to be filed within a period of three years from the date of Agreement or from the date fixed for performance. Going by the same, the suit ought to have filed on or before 10.06.2010, however, the suit has been filed only on 30.06.2010. Therefore, the suit is clearly barred by limitation. Even if the time is calculated from the date of the last payment the suit is barred by limitation. Unlike a suit for recovery of money the payment of installment does not automatically enlarge the period of limitation. He would therefore submit that the finding of the trial Court has to be set aside.
13.With reference to the second plea of the suit being barred by the provisions of Order 2 Rule 2 of the Code of Civil Procedure, the learned counsel would draw the attention of this Court to the pleadings in the suit O.S.No.144 of 2007 and the pleadings in the instant suit. He would submit that a mere perusal of the pleadings in both the suits would show they are identical and even when the earlier suit O.S.No.144 of 2007 was filed the cause of action for filing the present suit had arisen. In fact, in Paragraph 5 of the https://www.mhc.tn.gov.in/judis 10/24 A.S.No.411 of 2018 Plaint, the plaintiff has himself stated that as per the Agreement, six months period for executing the Release Deed had ended on 10.06.2007 and that despite his repeated requests, the defendant had not come forward to execute the Sale Deed. In the light of such a categoric statement, the cause of action for filing the suit for Specific Performance had arisen even on that date. While so, the plaintiff has not deemed it necessary to seek the leave of the Court to sue for the relief of Specific Performance at a later date and therefore, the instant suit is clearly barred by the provisions of Order 2 Rule 3 of the Code of Civil Procedure.
14.In support of the above arguments, the learned counsel would rely upon the Judgment of the Hon'ble Supreme Court reported in (2013) 1 SCC 625 as Virgo Industries (Eng.) Private Limited v. Venturetech Solutions Private Limited and the Judgment reported in 2020 (14) SCC 110 as Vurimi Puliarao v. Vemari Vyankata Radharani and others.
https://www.mhc.tn.gov.in/judis 11/24 A.S.No.411 of 2018
15.The learned counsel for the defendant/appellant would also contend that the plaintiff who has come forward with the suit for Specific Performance has not proved the main ingredient, namely, proving his readiness and willingness to proceed with the Release Deed. He would submit that except for a bald statement in the Plaint, no other documents have been filed to show the continuous readiness and willingness from the date of the Agreement till the date of filing of the suit. In fact, after the Legal Notice issued on 11.08.2007, there has been no further communication on the part of the plaintiff with the defendant. He would therefore pray that the suit to be dismissed by allowing the appeal.
DISCUSSION:
16.The plaintiff has filed the suit for Specific Performance contending that the defendant had entered into a Joint Business Release Agreement dated 11.12.2006, Ex.A.1 under which time for performance was fixed as six months. The plaintiff would further contend that he had been making payments in bits and pieces and the https://www.mhc.tn.gov.in/judis 12/24 A.S.No.411 of 2018 last payment was made on 02.07.2007 and thereafter, despite his requests, the defendant had not come forward to execute the Release Deed. In the earlier suit O.S.No.144 of 2007 as well as in the present suit which is the subject matter of the appeal, the plaintiff himself has categorically stated that the six months period for concluding the Contract had come to an end on 11.06.2007.
Identical pleas have been taken in Paragraph 5 of both the suits wherein the plaintiff has stated as follows:
“mt;thW vjph;thjp. thjpf;F vGjp
bfhLj;Js;s Tl;L tpahghu mf;hpbkz;oy;
fz;l MWkhjfhy tiuaiw 10/06/07
njjpa[ld; Kotile;J tpl;lJ”
Therefore, even as per the contention of the plaintiff the suit should have been instituted within a period of three years from that date, namely, on or before 09.06.2010, however, the suit has been instituted on 30.06.2010.
17.It is the argument of the plaintiff that an installment has been paid on 02.07.2007 as a result of which the period of limitation https://www.mhc.tn.gov.in/judis 13/24 A.S.No.411 of 2018 had been enlarged to 01.07.2010 and the suit filed on 30.06.2010 is well within the time.
18.The suit in question is one for Specific Performance and is covered by the provisions of Article 54 of the Limitation Act. Article 54 of the Limitation Act, 1963 reads as follows:
“For Specific performance of a contract:
Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”
19.Therefore, the time for filing the suit has been fixed as three years (a) from the date fixed for the performance which in the instant case was 10.06.2007 or (b)where no date has been fixed when the plaintiff has noticed that the performance is refused. In the instant case, the second clause would not be applicable since under the terms of Ex.A.1 the time for performance has been fixed at 6 months from the date of Agreement. Therefore, the finding of the learned III Additional District Judge, Tirupattur, Vellore that the https://www.mhc.tn.gov.in/judis 14/24 A.S.No.411 of 2018 limitation would start from 02.07.2007 is contrary to the language of Article 54 of the Limitation Act and therefore, the suit filed on 30.06.2010 is clearly barred by limitation and therefore, the Point for Consideration - 1 is answered against the appellant.
20.The other legal submission made by the defendant that the suit is barred by the provisions of Order 2 Rule 2 of the Code of Civil Procedure has to be considered. Order 2 rule 2 of the Code of Civil Procedure reads as follows:
“(2) Relinquishment of part of claim- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished.”
21.Admittedly, the plaintiff had filed a suit for bare injunction before the learned District Munsif -cum- Judicial Magistrate, Vaniyambadi in O.S.No.144 of 2007. The suit O.S.No.144 of 2007 proceeded on the basis that the defendant who was bound to execute https://www.mhc.tn.gov.in/judis 15/24 A.S.No.411 of 2018 the Release Deed as per Ex.A.1 had failed to do so despite several requests and the issue of a Legal Notice dated 11.08.2007. That on 18.08.2007, the defendant along with 15 men attempted to forcibly enter into the suit property which had been successfully prevented by the plaintiff. It is also his allegation that the defendant was not coming forward to execute the Release Deed despite receiving the Legal Notice dated 11.08.2007. The pleading to this effect is as follows:
“7/vjph;thjp mtUf;F nru ntz;oa
kPjp U:/75.000- - ia bgw;Wf; bfhz;L thjp
bgaUf;F. thjpapd; brytpy; tpLjiyg;
gj;jpuk; rl;lj;jpw;F cl;gl;L vGjp
bfhLf;fhky;. vjph;thjp. thjpf;F vGjp
bfhLj;Js;s Tl;L tpahghu tpLjiy
mf;hpbkz;oy; fz;Ls;s xg;ge;j bjhif
nghf nkYk; xU bghpa bjhif
rl;lj;jpw;F g[wk;ghf nfl;L fl;lg";rhaj;J ngRtjhf ,t;tHf;F brhj;jpy; fl;l g";rhaj;J bra;tjhf jfty; thjpf;F 09/08/07y; fpilj;jJ/ mjdhy; thjp https://www.mhc.tn.gov.in/judis 16/24 A.S.No.411 of 2018 mtUila tHf;fwp"h; K:yk; 11/08/07y;
njjpapl;L vjph;thjpf;F gjpt[ m";ry; K:yk;
mwptpg;g[ xd;iw mDg;gpdhh;/ mjid
vjph;thjp 13/08/07y; bgw;Wf; bfhz;lhh;/
bgw;Wf; bfhz;l ,e;ehs; tiu thjp
bgaUf;F tpLjiy gj;jpuk; vGjp
bfhLf;ftpy;iy/ gjpy; mwptpg;g[k;
bfhLf;ftpy;iy//////”
22.Therefore, even on the date of the filing of the suit O.S.No.144 of 2007, the plaintiff was well aware that the defendant was not coming forward to execute the Release Deed and further, the period of six months had also come to an end by then. The second relief that sought for in the said suit is as follows:
“(M)vjph;thjp tHf;F brhj;jpy;
mtUf;Fz;lhd KG g';ifa[k; thjpg;
bgaUf;F 11/12/06 njjpap;y; Tl;L tpahghu
tpLjiy mf;hpbkz;l; K:yk; chpik khw;wk;
bra;Js;sjhy; mjd;gpd;. vjph;thjp
rl;ljpl;l';fSf;F tpnuhjkhf K:d;whk; egh;
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A.S.No.411 of 2018
bgaUf;F ,t;tHf;F brhj;jpy; kWgoa[k;
mtUf;Fz;lhd KG g';ifa[k; chpik
khw;wk; ve;j tifapYk; ,e;j tHf;F
Koa[k; tiu bra;a TlhJ vd;W epue;ju
jil cj;juthd cWj;J fl;lis cj;jut[
gpwg;gpf;ft[k;/”
23.This is clear indicative of the fact that the plaintiff was aware that the defendant would not come forward to execute the Release Deed and therefore, the cause of action for filing the suit for Specific Performance was available even on the date of filling of the suit. However, the plaintiff has not sought the leave as contemplated under the provisions of Order 2 Rule 2 of the Code of Civil Procedure. Order 2 Rule 2 of the Code of Civil Procedure makes it very clear that where a person omits to file for a relief in respect of a cause of action that was available on the date of the filing of the earlier suit he cannot thereafter sue for the portion so omitted or relinquished. However, Rule 3 permits such the filing of the relief https://www.mhc.tn.gov.in/judis 18/24 A.S.No.411 of 2018 so omitted or relinquished if the plaintiff had sought the leave of the Court where the earlier suit is instituted.
24.Admittedly, in the instant case, such leave has not been obtained by the plaintiff. The Hon'ble Supreme Court in the Judgment in Vurimi Puliarao's case supra had brought out the purport of the provisions of Order 2 Rule 2 of the Code of Civil Procedure as follows:
“10.Order 2 Rule 2(1) is premised on the foundation that the whole of the claim which a Plaintiff is entitled to make in respect of a cause of action must be included. However, it is open to the Plaintiff to relinquish any portion of the claim in order to bring the suit within the jurisdiction of the Court. Order 2 Rule 2(1) adopts the principle that the law does not countenance a multiplicity of litigation. Hence, a Plaintiff who is entitled to assert a claim for relief on the basis of a cause of action must include the whole of the claim. A Plaintiff who omits to sue in respect of or intentionally relinquishes any portion of the claim, shall not afterwards be entitled to sue in https://www.mhc.tn.gov.in/judis 19/24 A.S.No.411 of 2018 respect of the portion omitted or relinquished. This is the mandate of Order 2 Rule 2(2), Order 2 Rule 2(3) stipulates that a person who is entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs. However, a Plaintiff who omits to sue for all the reliefs, without the leave of the Court, shall not afterwards sue for any relief so omitted. The leave of the Court will obviate the consequence which arises Under Order 2 Rule 2(3). In the absence of leave being sought and granted, a Plaintiff who has omitted to sue for any of the reliefs to which they were entitled to sue in respect of the same cause of action would be barred from subsequently suing for the relief which has been omitted in the first instance. The grant of leave obviates the consequence Under Order 2 Rule 2(3). But equally, it is necessary to note that Order 2 Rule 2(2) does not postulate the grant of leave. In other words, a Plaintiff who has omitted to sue or has intentionally relinquished any portion of the claim within the meaning of Order 2 Rule 2(2), shall not afterwards be entitled to sue in respect of the portion so omitted or relinquished.” https://www.mhc.tn.gov.in/judis 20/24 A.S.No.411 of 2018
25.The learned Judges ultimately upheld the Judgment of the Courts below dismissing the suit for Specific Performance stating that the suit is barred by Order 2 Rule 2 of the Code of Civil Procedure. The fact that both the suits are identical is evident from a mere perusal of the Plaint filed in both the suits which are identical. Therefore, 2nd Point for Consideration is also answered in favour of the appellant.
26.It is an axiomatic principle which has been time and again reiterated that the plaintiff in a suit for Specific Performance is bound to prove the readiness and willingness even in cases where the defendant has not raised the said plea. In the light of the above, we have to consider whether in the instant case the plaintiff has proved his readiness and willingness the answer would definitely be in the negative. The reason for the same being that although the plaintiff has made a semblance of plea that he was ready and willing throughout the period he has not been able to prove the same. The suit O.S.No.144 of 2007 had been filed on 23.08.2007 which was https://www.mhc.tn.gov.in/judis 21/24 A.S.No.411 of 2018 preceeded by a Legal Notice dated 11.08.2007. After the Legal Notice and the suit, there is nothing to show that the plaintiff had expressed his readiness and willingness to proceed with the execution of the Release Deed. In fact, the defendant in his Written Statement in O.S.No.144 of 2007 had denied the execution of Ex.A.1.
27.In the Written Statement filed to the above suit O.S.No.144 of 2007, the defendant had raised a defence that the suit for bare injunction was not maintainable without a prayer for Specific Performance. Thereafter, the plaintiff has not proved his continued readiness and willingness and neither has he taken steps to deposit the balance sale consideration which assumes significance since the defendant had questioned the very Agreement. Therefore, there is a clear failure to prove the readiness and willingness which sine qua non for a suit for Specific Performance. Therefore, the Point for Consideration 3 is also answered against the plaintiff. https://www.mhc.tn.gov.in/judis 22/24 A.S.No.411 of 2018 On a conspectus of the above discussion, this Court holds that the finding of the Court below is unsustainable and therefore, the First Appeal is allowed and the Judgment and Decree of the learned III Additional District Judge, Tirupattur at Vellore in O.S.No.19 of 2013 is set aside. However, there shall be no order as to costs.
16.09.2021
Index : Yes/No
Internet : Yes/No
mps
To
The III Additional District Judge,
Tirupattur,
Vellore.
https://www.mhc.tn.gov.in/judis
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P.T. ASHA, J,
mps
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16.09.2021
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