Madras High Court
N.Satheswaran vs Kavitha Gananshamdas Reported In on 9 January, 2023
Author: T.V.Thamilselvi
Bench: T.V.Thamilselvi
S.A No.94 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.01.2023
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
S.A.No.94 of 2018
N.Satheswaran
...Appellant
1.Christina Mary
2.R.Jeyaraj
3.J.Christopher Felicks
...Respondents
PRAYER: This Second appeal filed under Section 100 of the Code of Civil
Procedure to set aside the judgment and decree dated 09.11.2017 made in
A.S No. 62 of 2014 on the file of the learned First Additional District Court,
Erode, confirming the judgment and decree dated 22.07.2014 made in O.S
No. 199 of 2010 on the file of the learned Second Additional Sub Court,
Erode.
For Appellant : Mr.N.Manokaran
For Respondent : Mr.G.Purusothaman
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https://www.mhc.tn.gov.in/judis
S.A No.94 of 2018
JUDGMENT
The appellant herein is the plaintiff in suit O.S No. 199 of 2010 on the file of the II Additional Subordinate Court, Erode, filed for the relief of spe cific performance against the defendants/respondents to execute the sale deed as per terms of the sale agreement dated 08.08.2007 after receipt of balance consideration and or in the alternative direct the defendants to re fund the advance amount of Rs.3,62,602/- together with the interest at the rate of 12 % till date of repayment of amount.
2.The brief facts of the plaintiff are as follows:
The suit property belongs to first defendant she offered to sell the property and plaintiff agreed to purchase the same for a sum of rupees 6,50,000/- and one lakh rupee was paid as a advance to the first defendant and the sale agreement was executed between them, and the second and the third defendant are husband and son of the first defendant who signed as witness, as per the terms of the sale agreement within three months plaintiff has to paid the balance amount and on such payment first defendant bound to execute the sale deed within three months period which was end on Octo ber 2007. In the meanwhile, on 13.09.2007 the first defendant for his fami 2/13 https://www.mhc.tn.gov.in/judis S.A No.94 of 2018 ly needs received 1,05,000/- from the plaintiff to that effect got endorse ment on the back side of the said sale agreement. Thereafter, on 18.10.2007 the first defendant received a sum of Rs. 30,000/- from the plaintiff and first and second defendant made endorsement in the sale agreement. Again on 17.12.2007 the first defendant received a sum of Rs.15,000/- through the third defendant and again on 13.01.2008 received a sum of Rs. 10,000/-
through the second defendant, again on 10.03.2008 received a sum of Rs.7,000/- through the second defendant, and the defendants made endorse ment for all the receipts of the of amount in the sale agreement. Further the plaintiff made payments to the tune of Rs.52,036/- from 29.08.2007 to 23.01.2009 to the ICICI Bank, Erode for the loan amount obtained by the third defendant the son of the first defendant at the request of the first defen dant and obtained the receipts for the said payments totally he paid 3,19,036/-.Besides, as per the direction of the first defendant he paid 43,506/- to the said bank totally 3,62,602/- was paid by the plaintiff as a part of the sale advance. Plaintiff always ready and willing to perform his part of the agreement but the defendant failed to do so and filed O. S No. 3/13 https://www.mhc.tn.gov.in/judis S.A No.94 of 2018 64/09 also obtained interim order thereafter plaintiff issued notice on 22.12.2009 even then refused to execute the sale deed. Hence the suit.
3. The brief averments of the written statement filed by the defendants are as follows:
The defendants denied the alleged sale agreement with the plaintiff as he claimed in the suit.The contention of the defendant is that she has no in tention to sell the suit property (house) to the plaintiff, the market value of the suit property is more than 25,00,000/- on the date of the alleged sale agreement, the alleged agreement is only a loan agreement so that the plaintiff sought for the alternative relief for the return of loan amount rupees 3,92,602/-. Further, there is no cause of action for the suit and she prays that court may pass any decree for rupees 3,62,602/- without interest for the rea son that the suit property was house which is now under the possession of plaintiff. Thereafter the defendant filed additional written statement in which it was stated that the she never instructed the plaintiff to remit amount to the ICICI bank Erode branch and not tried to evict the plaintiff from the suit property. She further stated that she purchased the suit property as vacant site out of retirements benefit of her husband and constructed the house by 4/13 https://www.mhc.tn.gov.in/judis S.A No.94 of 2018 obtaining loan from the ICICI Bank, Erode branch. Meanwhile, she bor rowed a loan from the third parties for conducting marriage to the daughter. Thereafter the defendants struggled to repay the said loan and also unable to repay installment due to the LIC for their housing loan later LIC of India had been taken over by ICICI Bank, Erode Branch. Hence they decided to sell the property. Later the defendants approached the plaintiff for loan and he conveyed his intention to purchase the property, but defendant clearly re veal about the circumstances which forced them to pay off their debts and also informed the subsisting loan with said ICICI bank, then the defendant agreed to sell the property for a sum of Rs.6,50,000/-. Thereafter the sale agreement dated 08.08.2007 was entered between them and one lakh was paid as advance by the plaintiff and agreed to pay the balance amount within three months from the sale agreement without any default. But the plaintiff failed to comply his part of the agreement within three months as stipulated in the sale agreement. Latter the defendant came to know that plaintiff not having sufficient sums to pay balance consideration. But the plaintiff filed suit for permanent injunction in OS No.64 of 2009 against the defendants on the file of the I Additional District Munsif, Erode. Therefore the present suit 5/13 https://www.mhc.tn.gov.in/judis S.A No.94 of 2018 itself barred under order 2 rule 2 of CPC for the reason that cause of action for the specific performance arouse even at the time of filing of the said suit but he has not obtained any leave to file the present suit thereby the plain tiff is not entitled to claim relief of specific performance.
4. Before the Trial court five issues were framed documents were marked Ex. A1 toEx. A.23, and on the side of the defendants were marked as Ex. B1 to B4.
5. On considering the oral and documentary evidence available on records the Trial Court held that though the sale agreement is true, the plain tiff failed to prove his readiness and willingness to perform his part of the contract nor he established sufficient means to pay entire balance sale con sideration. However, he entitled only for amount a sum of Rs. 2,67,000/- which was paid to the defendants without any rate of interest for the reason that he occupied the house/suit property belongs to the first defendant which would fetch rent three thousand per month as per the evidence of the plain tiff thereby he is not entitled for interest. Accordingly the relief claimed by the plaintiff was dismissed and alternative remedy was granted. Further, the 6/13 https://www.mhc.tn.gov.in/judis S.A No.94 of 2018 Trial Court directed to hand over possession of the suit property to the de fendants within three months to the defendants.
6. Challenging the said findings plaintiff preferred an appeal in A.S No. 65/14, on the file of the I Additional District Court, Erode, which independently analysed the facts and evidence held that the plaintiff not per formed his part of the contract as agreed in the sale agreement and not paid entire balance sale consideration within a stipulated time period of three months, further he paid little by little amounts on various dates to the defen dants. Though he known about the terms of the agreement, he failed to per form his part of the contract within a stipulated time period. Therefore, he is entitled to file discrepancy relief and confirmed the findings of the Trial Court.
7. Aggrieved over the said findings the plaintiff preferred this Second Appeal and this Court admitted the second appeal with the following sub stantial questions of law;
i. When the Courts below are correct in dismissing the suit for specific performance in the absence of any evidence to show that the plaintiff was not ready and willing to perform his part of the contract or that he did not have the necessary funds for payments?
7/13 https://www.mhc.tn.gov.in/judis S.A No.94 of 2018 ii. When the plaintiff has performed, pleaded and proved his readiness and willingness in pitch and substances, have not the courts below commit ted an error in non-suiting the plaintiff by misquoting Section 16(c ) of the specific Relief Act?
Iii. Whether the suit in O.S No. 199 of 2010 filed for relief of specific performance is his by Order 2 Rule 2 C.P.C., when the earlier suit for perma nent injunction in O.S No. 64 of 2009 was based on a different cause of ac tion?
8. The learned counsel for the appellant submitted that both the Court below failed to take note of the fact that under Ex.A2 to A6 the plaintiff shows his readiness and willingness to perform his part of the contract but the same was not appreciated by the Court below already the plaintiff de posited the balance of Rs.3,33,000/- pending suit besides Rs. 1,97,657/- was paid under Ex.A21 shows his financial capacity as well as his willingness. Further argues that which itself proves the defendant not treated time is essence of the contract however plaintiff was ready and willing to perform his part of the contract but the defendants failed to execute the sale deed notwithstanding that the Court below dismissed the claim of the plaintiff as such is unjust and unfair liable to be set aside. To support his contention he relied following judgments:
i. Rathnavathi and Another Vs Kavitha Gananshamdas reported in 2015 (5) SCC 223.
8/13 https://www.mhc.tn.gov.in/judis S.A No.94 of 2018 25.3. In case of former, the plaintiff is required to make out the exis tence of prima facie case, balance of convenience and irreparable loss likely to be suffered by the plaintiff on facts with reference to the suit prop erty ia provided in Section 38 of the Specific Relief Act, 1963(is short ''the Act'') read with Order 39 Rules 1 and 2 CPC. Whereas, in case of the lat ter, the plaintiff is required to plead and prove hier continuous readiness and willingness to perform her part of the agreement and to further prove that the defendant failed to perform her part of the agreement as con tained in Section 16 of the Act.
ii. Aniglase Yohannan Vs Ramlatha and othrs reported in 2005 (7) SCC 534.
iii. Chand Rani Vs Kamal Rani reported in 1993 91) SCC 519(DB).
9. The learned counsel for the respondent submitted that in order to discharge the loan borrowed from the third parties as well as bank literally they approached the plaintiff and the same was expressed to the plaintiff when he agreed to purchase the property so that three months time was fixed to repay the balance consideration but the plaintiff not tender the balance sale consideration within three months as per the sale agreement. Instead he paid piece meal of amount on various occasions which itself proves that he was not ready and willing to perform his contract and same was correctly appreciated by both the Court which needs no intereference. He prayed to dismiss the second appeal.
10. The law is well settled, in transaction of sale of immovable proper ty time is not essence of the contract. But depend upon the facts of the cases 9/13 https://www.mhc.tn.gov.in/judis S.A No.94 of 2018 Court may infer whether time is essence of contract or not from the evidence as well as from the surrounding circumstances of the facts. In the instant case, as per the contention of the defendant that they forced to sell the suit house in order to discharge loan which they borrowed for perform their daughter's marriage, this facts also known to the plaintiff and he admitted the same during the cross examination. on perusal evidence of P.W.1, it clearly reveals that plaintiff was aware of the loans borrowed by the defen dants' family. But he has not tendered balance sale consideration within three months from the date of the agreement, nor taken any steps to dis charge loan amount to the bank which was borrowed by the defendant. Fur thermore, the suit property was under the occupation of the plaintiff with out paying any rent. Therefore the obligation on the part to the plaintiff is that to pay the balance consideration is time bounded. Furthermore the plaintiff ought to have established before the Trial Court that he had suffi cient means to perform his part of the contract but the plaintiff not produced any evidence to show that he possessed sufficient means to pay entire bal ance consideration within stipulated period of three months. Further, the evi dence on record reveals that on various dates he paid balance sale considera 10/13 https://www.mhc.tn.gov.in/judis S.A No.94 of 2018 tion on installments as the defendant bound due to discharge her loan, she received those amounts. Therefore, mere acceptance of piece meal of amount by the defendants would not amount to conclude that they extended the time to perform the agreement beyond three months period.
11. As discussed above, the plaintiff failed to prove his readiness and willingness from the date of the contract till filing of the suit. Indeed his own evidence reveals that after giving notice, one years later he filed the suit which itself proves that he was not ready and willing to perform his part of the contract from the date of the agreement till filing of the suit. That apart, the plaintiff filed suit O.S 64 of 2009 for the relief bare injunction before fil ing the present suit itself shows that he has not taken any steps to repay the balance sale consideration. Therefore, the above conduct of the plaintiff proves that he was not ready to perform his part of the contract. Hence he is not entitled to get relief of specific performance. The Court below rightly analysed all the evidence on record and held that plaintiff is not entitled for the relief of specific performance which needs no interference. Further, the ratio laid down in the judgment relied by the appellant is not applicable to 11/13 https://www.mhc.tn.gov.in/judis S.A No.94 of 2018 the facts of the present case. Accordingly question of law 1 and 2 are an swered.
12. When the plaintiff himself not entitled to avail equitable remedy of specific performance other issues with regard to Order 2 rule 2 of CPC need not be considered. Accordingly, question of law iii is answered. Hence, this second appeal is dismissed devoid of merits and the findings of the both the Court below is confirmed thereby the suit is dismissed. With regard to al ternative remedy as rightly held by the Courts below the defendants are di rected to deposit a sum of Rs. 2,67,000/- in the Trial Court to the credit of the suit within three months from the date of receipt of a copy of this judge ments. Further, the plaintiff is directed to withdraw the said amount and to hand over the key of the suit property to the defendants within three months.
13. In the result, the Second Appeal is Dismissed. No costs. There shall be no order as to costs. Consequentially connected miscellaneous petitions are closed.
09.01.2023.
12/13 https://www.mhc.tn.gov.in/judis S.A No.94 of 2018 pbl T.V.THAMILSELVI,J.
Pbl To
1. The I Additional Sub Court, Erode.
2.The II Additional Sub Court, Erode.
3.The Section Officer, V.R Section, High Court, Madras.
SA.No.94 of 2018
09.01.2023 13/13 https://www.mhc.tn.gov.in/judis