Madras High Court
K.Muthusamy vs K.V.K.Subramaniam on 2 March, 2011
Author: R.Mala
Bench: R.Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.03.2011 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Appeal Suit No.97 of 2007 and M.P.Nos. 1,1 of 2007 and 2011 1.K.Muthusamy 2.M.Dhandapani .. Appellants Vs K.V.K.Subramaniam .. Respondent Prayer: This Appeal Suit (First Appeal) preferred under Section 96 of C.P.C., against the judgment and decree dated 07.04.2006 made in O.S.No.121 of 2004 on the file of Additional District Court (Fast Track Court No.I) Coimbatore. For Appellants : Mr.M.S.Krishnan, Senior counsel for M/S.Sarvabhauman Associates For Respondent : Mr.V.Bharathidasan JUDGMENT
This Appeal Suit (First Appeal) arises out of the judgment and decree dated 07.04.2006 made in O.S.No.121 of 2004 on the file of Additional District Court (Fast Track Court No.I) Coimbatore.
2.The averments made in the plaint are as follows:
(i) The suit property was allotted to the share of the first defendant under a registered partition deed dated 16.06.1993. The second defendant is the son of the first defendant. Both the plaintiff and the defendants were entered into a sale agreement on 16.02.1999. The sale price of the suit property was fixed at Rs.6,00,000/- and on the date of the agreement itself, Rs.5,00,000/- was paid by the plaintiff by way of cheque No.025018 of the Union Bank of India, Negamam Branch. The time for execution of the sale deed was fixed as three years from the date of agreement of sale. The balance sale consideration of Rs.1,00,000/- has to be paid by the plaintiff within three years to get the sale deed executed. The plaintiff was always ready to execute the sale deed.
(ii) The plaintiff was put in possession of the suit property on the date of agreement of sale itself and the plaintiff is in possession and enjoyment of the suit property. In spite of several oral request made by the plaintiff, the defendants failed to execute the sale deed. Hence the plaintiff issued a personal notice to the defendants on 13.02.2002 and also sent telegram on 14.02.2002.
(iii) On 14.02.2002, the defendants met the plaintiff and requested a sum of Rs.5,000/- towards additional part of the sale amount and prayed further two years time as extension for the execution of the sale deed, due to the ill health of the first defendant. The balance sale consideration of Rs.1,00,000/- was paid by the plaintiff on 16.08.2002 and also received the receipt for the same. Since the defendants were not executed the sale deed and attempted to dispossess the plaintiff by force, the plaintiff has come forward with the suit for specific performance and alternatively, directing the defendants to refund the amount that he paid as an advance, with interest and also for injunction not to interfere his possession and prayed for a decree.
3.The gist and essence of the written statement filed by the first defendant, adopted by the second defendant are as follows:-
(i) No sale agreement was entered into between the plaintiff and the defendants. The defendants never agreed to sell the suit property to the plaintiff. The alleged sale agreement was executed only for the security purpose. So, there was no question of readiness and willingness to perform his part of contract.
(ii) The defendants alone are in actual and physical possession and enjoyment of the suit property. This defendant denied that on 14.02.2002, the plaintiff met these defendants and requested to pay a sum of Rs.5,000/- towards additional part of sale amount and prayed further two years time as extension for the execution of the sale deed. In the said sale agreement, there was a material alteration in the endorsement.
(iii) This defendant was engaged in coconut business. In the month of February 1999, the first defendant approached one K.V.Kandasamy of Negamam, who is an ex-MLA and the father of the plaintiff for financial assistance to clear his debts and to continue his coconut business. Father of the plaintiff agreed to lend money to the defendants provided the defendants executed such documents as may be required by him. The defendants agreed to execute promissory note for the amount borrowed, but K.V.Kandasamy, who is the father of the plaintiff refused for the said proposal and insisted that an agreement of sale in respect of the suit property has to be entered into by the defendants in favour of his son K.V.K.Subramaniam (i.e.) the plaintiff. The defendants were in dire need of money and they had no other option but to succumb to the pressure of K.V.Kandasamy in collusion with his son K.V.K.Subramaniam. K.V.Kandasamy is politically very influential and has enormous men and material at his disposal. He is known to use strong-arm tactics and utilise his power fully while carrying on money lending business on usurious interest rates. Therefore, the sale agreement was only illusory and not real and it can only be treated as security. No legal rights flow from the said agreement of sale. The mere fact of registration of the agreement would not lend any credence or validity to the same.
(iv) The total extent of the suit property is 5 acres with a well fitted with 7.5 HP electric motor and pump set. The prevailing market value of the coconut thope is Rs.3,50,000/- per acre. Therefore, the total value of the suit property is more than Rs.17,50,000/-. While so, no person would sell the property for a song. It has become common practice today to convert loan transaction into agreement of sale.
(v) When an agreement is executed, one party should intend to buy and another party should intend to sell. But, unfortunately, it has become a matter of routine practice to obtain such agreements by force by taking advantage of the dire need of the borrower. The following factors would substantiate the case of the defendants:
a) The alleged extension on the reverse of the agreement has been materially altered from one year to two years, even the extension of one year was made at the compulsion of the plaintiff. b)Consideration fixed under the said agreement is far lower than the market value.
c)The advance amount is disproportionately high and the period of agreement is disproportionately long. No person would pay such a high advance and wait disproportionately long time.
d)The plaintiff's family is engaged in active money lending by utilising all the men and materials at their disposal including strong-arm tactics.
e)The plaintiff's father K.V.Kandasamy has also obtained a blank cheques from the defendants and has set up his benamies (i.e.) Idayathullah, Francis and Aruchamy to file cases against the defendants under Section 138 of Negotiable Instruments Act.
(vi)The plaintiff's father has received both principal and interest from the defendants and actually no amounts are due. While so, he is persisting with an agreement of sale with a view to grab the property. K.V.Kandasamy has also obtained a registered power of attorney from the defendants in the name of one Kalimuthu, who is also his benami. This defendant has revoked the power of attorney. Further some anti-dated stamp papers have been utilised for creating the lease agreement in favour of another benami Shanmugasundaram. The said Shanmugasundaram has filed a suit in O.S.No.282 of 2003 on the file of District Munsif Court, Pollachi for injunction. There was no cause of action for the suit and hence the defendants prayed for the dismissal of the suit.
4.The trial Court, after considering the averments both in the plaint and the written statement and arguments of both the counsel, framed seven issues and considering the oral evidence of P.W.1 and P.W.2 and D.W.1 and documentary evidence of Exs.A1 to A12 and B1 to B18, decreed the suit and granted the decree for specific performance, directing the plaintiff to deposit a sum of Rs.95,000/- to the defendants within 30 days from the date of receipt of the judgment and thereafter, the defendants are directed to execute the sale deed in favour of the plaintiff, against which, the appellants/ defendants have come forward with this First Appeal.
5.During the pendency of the First Appeal, the appellants as petitioners, come forward with M.P.No.1 of 2011 for reception of an additional evidence under Order 41 Rule 27 of C.P.C.
(i) The averments made in the petition are as follows:
The respondent as a plaintiff filed a suit for specific performance in O.S.No.121 of 2004. Since the petitioners /appellants /defendants are in dire need of money, on condition, they borrowed Rs.5,00,000/- from the father of the respondent/plaintiff and for the same, they executed the sale agreement in favour of the respondent/plaintiff for the security for the money transaction. So the sale agreement was executed only for the security purpose and it was only on the assurance and the urgent need for funds that had prompted the execution of the sale agreement. Therefore, there was no consensus-ad-idem about the document being given effect to. For this reason, the sale consideration was fixed at a very low rate of Rs.6,00,000/-.
(ii)The petitioners/appellants have received summons from District Munsif Court, Pollachi in O.S.No.282 of 2003, which was filed by one Shanmugasundaram for a bare injunction against one Kalimuthu and these petitioners/appellants. Further, the respondent/ plaintiff also filed one suit in O.S.No. 283 of 2003 for a bare injunction stating that he has been put into possession of the property on 16.02.1999 (i.e.) on the date of agreement of sale. But the petitioners/appellants never permitted the respondent/plaintiff to enjoy the property. They have lodged a private complaint, since the respondent/plaintiff has prevented the petitioners/appellants to enjoy the property. The trial Court has disbelieved the statement given by the respondent/plaintiff that he has paid Rs.95,000/- and also his possession of the suit property. Thereafter, yet another person Arumugasamy filed a suit in O.S.No.174 of 2004 on the file of Sub-Court, Pollachi against the petitioners/appellants for recovery of money and the same was dismissed after the contest. Therefore, the petitioners/appellants have come forward with this petition for reception of following documents as an additional evidence:
a)Plaint in O.S.No.283 of 2003
b)Judgment in O.S.No.174 of 2004
c)Judgment in O.S.No.283 of 2003
d)Deposition of one Eswaran in O.S.No.282 of 2003
e)Deposition of one Senthilkumar in O.S.No.282 of 2003
f)Judgment in O.S.No.282 of 2003
g)Decree in O.S.No.283 of 2003
(iii)The gist and essence of the counter affidavit filed by the respondent/plaintiff are as follows:
The aforesaid documents in the petition are not maintainable and not an admissible evidence. The suit in O.S.No.282 of 2003 filed by one Shanmugasundaram is not binding the respondent/plaintiff and also the respondent/plaintiff is not a party to that suit. The said Shanmugasundaram is also not a party in O.S.No.283 of 2003 and O.S.No.121 of 2004, the present suit. The plaint and the written statement in O.S.No.283 of 2003 were also marked as Exs.B8 and B9 respectively. Hence the Judgment in O.S.No.283 of 2003 is not an admissible evidence and hence it is not necessary for the disposal of the First Appeal.
6.After hearing the arguments of both sides counsel, the following points for consideration are framed:
1. Whether there is sufficient reason for filing M.P.No.1 of 2011 and whether the appellants/defendants are entitled to mark the additional documents along with M.P.No.1 of 2011 as an additional evidence?
2.Whether the additional documents are necessary for the disposal of the First Appeal?
3.Whether the trial Court is correct in held that Ex.A1 is a sale agreement?
4.Whether the defence raised by the appellants/defendants that Ex.A1-sale agreement is executed as security for the money transaction, is true?
5.Since the trial Court is rejecting the case that the respondent/plaintiff is in possession of the propertys and also payment of Rs.95,000/-, in such circumstances, whether the respondent/plaintiff is entitled to an equitable relief of specific performance?
6.Whether the judgment and decree passed by the trial Court are sustainable?
7.To what relief, the appellants/defendants are entitled to?
7.Heard both sides.
8.Point Nos.1 and 2:
(i)The learned counsel appearing for the petitioners/appellants submitted that the respondent/plaintiff herein has obtained the signature of the first petitioner/first appellant in blank papers when he lend money of Rs.5,00,000/- and got the registered sale agreement with an intention that the document was executed for the security for the amount of Rs.5,00,000/-. The respondent/plaintiff also obtained signatures from his son, who is the second petitioner/second appellant and fabricated the blank papers by executing power of attorney in favour of his benami, one Kalimuthu and the said Kalimuthu executed a lease deed in favour of one Shanmugasundaram, who is also the benami of respondent/plaintiff. The said Shanmugasundaram filed a suit in O.S.No.282 of 2003. The respondent/plaintiff also concocted one document under Ex.A3. In pursuance of Ex.A3, the respondent/plaintiff filed one suit in O.S.No.283 of 2003. So the plaint, judgment and deposition of the parties in respect of O.S.No.283 of 2003 are necessary and those documents were came into effect after the disposal of the present suit (i.e) O.S.No.121 of 2004. Hence the petitioners/appellants are not in a position to mark those documents before the trial Court and therefore, he prayed for the reception of those documents.
(ii) The learned counsel for the respondent/plaintiff submitted that the plaint in O.S.No.283 of 2003 was already marked as Exs.B8 and its written statement was also marked as Ex.B9. But the suit was dismissed as "not pressed". So the documents in respect of O.S.No.283 of 2003 are not necessary. Furthermore, the respondent/plaintiff is not a party to the other documents such as O.S.Nos.282 of 2003 and 174 of 2004. So those documents are not necessary and not relevant for the disposal of this appeal and hence he prayed for the dismissal of the petition.
(iii) Now it is appropriate to incorporate Order 41 Rule 27 of C.P.C., which reads as follows:
"Order 41 Rule 27 of C.P.C.:
Production of additional evidence in Appellate Court-
(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if -
(a) The Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) The party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, (or)
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
(iv) Admittedly, plaint in O.S.No.283 of 2003 was marked as Ex.B8 and its written statement was marked as Ex.B9. Plaint in O.S.No.282 of 2003 was marked as Ex.B14 and its written statement was marked as Ex.B15. So those documents are not relevant for the disposal of the First Appeal. The petitioners/appellants also filed a judgement in O.S.No.174 of 2004 between one Arumugasamy and themselves. They are not inter parties and it will not bind the petitioners/appellants. Hence the judgment in O.S.No.174 of 2004 is not necessary for the disposal of the First Appeal.
(v) The witnesses Eswaran and Senthilkumar in O.S.No.282 of 2003 are third parties, they are only witnesses and their evidences are not an admissible evidence as per law. Corroboration and contradiction in the evidence should be marked through the deponent, while the deponent is in witness box. So the entire depositions of Eswaran and Senthilkumar are not an admissible evidence. Moreover, the respondent/plaintiff herein is not a party to the suit in O.S.No.282 of 2003. In such circumstances, the documents in respect of O.S.No.282 of 2003 are not an admissible evidence and hence it is not necessary for the disposal of the First Appeal.
(vi) Since the suit in O.S.No.283 was dismissed as "not pressed". So the documents in respect of O.S.No.282 of 2003 are not necessary for the disposal of the First Appeal. So I am of the view, M.P.No.1 of 2011 deserves to be dismissed and hence it is hereby dismissed. Point Nos.1 and 2 are answered accordingly.
9.Point Nos.3 and 4:
(i)The learned counsel for the appellants/defendants submitted that the execution of Ex.A1-sale agreement is accepted. But it was executed only for the security for the amount they borrowed. Both the parties have no intention that Ex.A1 is a sale agreement. The learned counsel for the appellants/defendants has fairly conceded that the defendants have received the amount of Rs.5,00,000/- from the respondent/plaintiff. Since the appellants/defendants were in dire need of money, they have executed the sale agreement only for the security purpose. He further submitted that the appellants/defendants have given reason for the execution of Ex.A1 that it should not be a sale agreement and it is only for the security for the amount they borrowed from the respondent/plaintiff.
(ii)Per contra, the learned counsel for the respondent/plaintiff submitted that Ex.A1 is a registered document. He was always ready and willing to perform his part of contract. Admittedly, there was no money transaction between the appellants/defendants and the respondent/ plaintiff. So the trial Court had considered all the aspects in proper perspective and came to the correct conclusion. Hence the respondent/plaintiff prayed for the dismissal of the First Appeal.
(iii) Admittedly, Ex.A1 is a registered sale agreement. As per the said sale agreement, the sale price was fixed at Rs.6,00,000/- and a sum of Rs.5,00,000/- was paid by the respondent/plaintiff to the appellants/defendants as an advance and three years time was granted for execution of the sale deed and payment of balance sale consideration of Rs.1,00,000/-.
(iv) The learned counsel for the appellants/defendants submitted that Ex.A1-sale agreement is executed only for the security purpose for the amount they borrowed from the respondent/plaintiff for the following reason: More than 80% of the sale consideration was allegedly paid under Ex.A1, what prevented the respondent/plaintiff to pay the balance sale consideration of Rs.1,00,000/- and got the sale deed within a short period of time, instead of giving three years. So the granting of three years is fixed for repayment of Rs.5,00,000/- by the appellants/defendants.
(v)He further submitted that in Ex.A2, Rs.5,000/- was received and extension of two years time was granted. It is clearly proved that only for repayment of Rs.5,00,000/-, a further time has been extended for two more years. Furthermore, he submitted that in Ex.A2, one year was materially altered into two years. So the learned counsel for the appellants/defendants, to substantiate his argument, relied upon the decision reported in AIR 1997 Supreme Court 2702 (Tejram v. Patirambhau), in para-4, it reads as follows:
"4. .. .. It is seen that the High Court also accepted that the appellant had taken a loan in 1965 for a sum of Rs.1500/- and repaid Rupees 3500/-. Shri Deshpande says that the sum of Rs.15,000/- is not factually correct; it is actually only Rs.1,500/-. If it is true sale transaction and the respondent being a businessman and having purported to have paid Rs.48,000/-, one would expect that he would seek possession or he would pay the balance consideration and request for execution of the sale deed. Instead, he kept quite for full 3 years, be that as it may, it would appear that there was money transaction between the appellant and the respondent and the respondent, being money-lender, was taking documents, purporting to be an agreement of sale, from the loanees. In the event of the loanees failure to pay the loan amount along with interest stipulated by him, the documents would, obviously, be executed, with a view to enforce the repayment of loan and interest accrued thereon. It is unlikely that being a money-lender and having parted with Rs.48,000/-as cash, he would have kept quite either for seeking possession of the property or payment of Rs.2,000/- immediately and then sought specific performance; it would be unlikely in the normal circumstances that he would have waited for three years for issuing notice and then filing suit on the last date. Under these circumstances, the Courts below rightly came to the conclusion that it is not an agreement for sale or purports to be a sale in truth and in reality, but in view of the admission made by the respondent by way of endorsement that he had received Rs.48,000/- and in the absence of any specific circumstances and in view of the doubtful conduct of both the parties, it is not possible for us to reach any satisfactory conclusion on the basis of evidence as to what was the amount actually due and paid by the appellant to the respondent and what amount is still payable. Under these circumstances, we are of the considered view that the ends of justice would be met if the conclusion reached by the High Court that a sum of Rs.48,000/- was paid by the respondent to the appellant, is confirmed. However, respondent is not entitled to payment of any interest or cost, as ordered by the High Court. Under these circumstances, the order of the Division Bench of the High Court for payment of Rs.65,280/- is set aside. Instead, there will be a decree for a sum of Rs.48,000/- in lump-sum without any interest."
He further submitted that Rs.6,00,000/- was fixed as a sale consideration and Rs.5,00,000/- was paid as an advance on the date of sale agreement. But to pay the balance sale consideration of Rs.1,00,000/-, three years time was given. So it is only a security for the amount borrowed and there was no intention for selling and purchasing of the property.
(vi) Considering the above citation along with the facts of the present case, since the father of the respondent/plaintiff is a money-lender, the above citation is squarely applicable to the facts of the present case.
(vii) The learned counsel for the respondent/plaintiff submitted that the document is a registered sale agreement. So the intention of both the parties is selling and purchasing of the property. So the argument advanced by the learned counsel for the appellants/defendants is liable to be rejected. At this juncture, the learned counsel for the respondent/plaintiff relied upon the decision reported in (2007) 5 MLJ 222 (Vallithai and others v. Arulraj), it reads as follows:
"When the plaintiff has not established the validity of the sale agreement on the basis of which the relief of specific performance is claimed and the defendant has let in contra evidence to show that the document in question is only a mortgage, the plaintiff will not be entitled to a decree for specific performance, notwithstanding the fact that the alleged sale agreement, was registered."
He further submitted that mere registration of the sale agreement will not prove its veracity.
(viii) The learned counsel for the appellants/defendants relied upon the decision reported in 2008 (1) CTC page 86 (Sita Ram and Others v. Radhey Shyam), in para-10, it reads as follows:
"10.The basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be entitled the relief. "
He submitted that in the suit for specific performance, the grant of relief on the basis of the conduct of the person seeking relief.
(ix)He also relied upon the decision reported in (2008) 3 MLJ 796 (P.Sampoornam and Others v. L.T.Somasundaram and Others), it reads as follows:
"It is to be noted that though the defendants admitted their signatures under Exhibit A-11, they have specifically pleaded that at the time of signing on the reverse of Exhibit A-1 agreement of sale, nothing was filled up. The said fact clearly probablises the case of the defendants that the said endorsement is created later by the plaintiffs."
(x) Further, the learned counsel for the respondent/plaintiff relied upon the decision reported in JT 2001 (Suppl.1) SC 25 (Ramaswamy (dead) by Lrs v. M.Lobo (dead) by Lrs.), in para-3, it reads as follows:
"3.Heard counsel for the appellant. Learned counsel for the appellant urged that the land being an agricultural land, the suit filed by the respondent in the civil court was not maintainable. The First Appellate Court as well as the High Court have recorded concurrent finding of fact that what was sold to the respondent was houses and not the land and further the houses were assessed to the House Tax. This being the finding of fact, it is not open to challenge in this Court. Learned counsel then urged that the sale deed was in fact a security for the loan advanced by the respondent to the defendant-appellant and, therefore there is no relationship of landlord and tenant between the parties. This argument is noticed only to be rejected. It is not disputed that the sale deed is a registered document and therefore, no oral evidence could be adduced to show that no title passed on to the respondent under the sale deed."
He submitted that the sale deed being a registered document, no oral evidence can be adduced to show that no title is passed under Sections 91 and 92 of Indian Evidence Act. But the above citation is not applicable to the facts of the present case. Now it is appropriate to incorporate Section 92 of Indian Evidence Act, which are as follows:
92.Exclusion of evidence of oral agreement: When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:
Proviso (1): Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, (want of failure) of consideration, or mistake in fact or law.
Proviso (2): The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document.
Proviso (3) : The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.
Proviso (4): The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.
Proviso(5): Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved:
Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract.
Proviso(6): Any fact may be proved which shows in what manner the language of a document is related to existing facts."
(xi) Since as already mentioned in 2007 (5) MLJ 222, mere registration of sale agreement, will not prove its veracity. To prove the veracity of the sale agreement, a judgment in AIR 1997 SC 2702 is considered along with the facts of the present case. The sale consideration was fixed at Rs.6,00,000/- in the sale agreement and Rs.5,00,000/- was paid as an advance on the same day itself. The receipt of Rs.5,00,000/- is admitted and for the payment of Rs.1,00,000/-, three years time was given, but the respondent/plaintiff has not performed his part of contract. On 13.02.2002, the respondent/plaintiff issued a notice to the appellants/defendants under Ex.A4 and the said notice was alleged to be served under Ex.A5 on 13.02.2002 itself. The respondent/plaintiff also issued telegram to the defendants on 14.02.2002 under Ex.A6, calling upon them to execute the sale deed on 15.02.2002. On 14.02.2002, the appellants/defendants are alleged to be received Rs.5,000/- from the respondent/plaintiff and an endorsement was also made for the extension of further two years time to execute the sale deed. It shows that if really the intention of both the parties to execute the sale deed, that too the respondent/plaintiff is having sufficient money to execute the same and also he paid the balance sale consideration very well and got the sale deed to be executed in his favour within stipulated time, but he kept quiet till the third year came to an end (i.e.) on 15.02.2002. The respondent/plaintiff issued notice under Ex.A4 on 13.02.2002 and on the same day itself, an acknowledgement was received under Ex.A5. If it is real, what prompted the respondent/plaintiff to issue telegram on 14.02.2002 under Ex.A6.
(xii) Now it is worthwhile to mention the deposition of P.W.1/the respondent/plaintiff. P.W.1 in his deposition, he himself admitted that on 13.02.2002, the appellants/defendants were not appeared, but on 14.02.2002 only, they were appeared. In such circumstances, an endorsement made by the appellants/defendants in the acknowledgement under Ex.A5 on 13.02.2002 is not true and correct.
(xiii) Furthermore, the second appellant/second defendant was not examined before the Court. The trial Court fastening much liability upon Ex.A2 and came to the conclusion that non-examination of the second appellant/second defendant is fatal because he has disputed the signature in Exs.A2 and A5, but he has not appeared before the Court and putforth his case. Even though the trial Court came to the conclusion that an endorsement made in Ex.A2 is true, there is a material alteration in the further extension of time in Ex.A2 (i.e.) one year was altered into two years ( xU Mz;L (xU tUlk;) was altered into ( ,U Mz;L (,U tUlk;) ). Furthermore, in Ex.A2, it was specifically mentioned that due to the illness of the first appellant/first defendant, the time was extended for execution of the sale deed. But, admittedly on that day (i.e.) 14.02.2002, the respondent/plaintiff has not paid the balance sale consideration for executing the sale deed, but he paid Rs.5,000/- only. So it clearly shows that more than 80% of the amount was paid, even three years time was given for the payment of less than 20% of the amount, at the fag end of third year, one more year time was extended for executing the sale deed with the reason that the first appellant/first defendant was not doing well, which clearly shows that Ex.A1 is not a sale agreement and it was only for the security for the amount borrowed by the appellants/defendants. Because D.W.1/the first appellant/first defendant in his deposition, has stated that he has been in dire need of money since 1998. So he approached the father of the respondent/plaintiff and he was forced to register the sale agreement, but intention of the appellants/defendants is only for the security for the amount of Rs.5,00,000/- they borrowed. But one more adding point is that the total extent of the property is 5 acres (i.e.) coconut thope. The value of 1 acre coconut thope is Rs.3,50,000/- and 5 acre is Rs.17,50,000/-. The next point is that even though Ex.A1 is a registered sale agreement, in that it has not mentioned that the possession was handed over to the respondent/plaintiff. But the respondent/plaintiff stated that the possession was handed over to him on the same day of execution of Ex.A1-sale agreement.
(xiv) It is pertinent to note that the father of the respondent/plaintiff K.V.Kandasamy also obtained a registered power of attorney from the appellants/defendants in favour of one Kalimuthu, who is his benami. On the basis of said power of attorney deed, Kalimuthu has alleged to be entered into a lease agreement in favour of another benami of K.V.Kandasamy (i.e.) one Shanmuga Sundaram. The said Shanmuga Sundaram filed a suit in O.S.No.282 of 2003 on the file of District Munsif Court, Pollachi, stating that he has been in possession and enjoyment of the suit property. The plaint in O.S.No.282 of 2003 was marked as Ex.B14 and the written statement was marked as Ex.B15. It is also pertinent to note that the respondent/plaintiff also filed a suit in O.S.No.283 of 2003 stating that he is in possession and enjoyment of the same and the appellants/defendants herein have attempted to interfere the suit property. The plaint in O.S.No.283 of 2003 was marked as Ex.B8 and written statement was marked as Ex.B9. But the trial Court after considering the oral and documentary evidence, came to the conclusion that the possession of the suit property has not been handed over to the respondent/plaintiff. Further, the respondent/plaintiff herein has raised a plea that he has paid the balance sale consideration of Rs.95,000/- under Ex.A12 on 16.08.2002. The trial Court after considering the oral evidence of P.W.1 and D.W.1, came to the conclusion that the payment of Rs.95,000/- has not been proved by the respondent/plaintiff. As per Ex.A8-the respondent/plaintiff sent a notice to the appellants/ defendants and Ex.B8-plaint in O.S.No.283 of 2003, he was failed to mention the date of payment of Rs.95,000/-. Furthermore, the date of payment of Rs.95,000/- was written in hand in the plaint of the present suit and also in the plaint in O.S.No.283 of 2003 under Ex.B8. Ex.A12 is a receipt for payment of Rs.95,000/- by the respondent/plaintiff to the appellants/defendants on 16.08.2002. In order to prove Ex.A12, one Sivakumar was examined as P.W.2, who is the attestor of all the documents. In his cross-examination, he has stated as VERNACULAR (TAMIL) PORTION DELETED P.W.2 has fairly conceded that his father was running cycle stand in the place of respondent/plaintiff's father. He is the attestor of all the documents and he is an owner-cum-driver of the lorry. In Ex.B8-plaint in O.S.No.283 of 2003, in para-6, the following words are written in hand: "Subsequently the plaintiff has also paid the balance of sale consideration of Rs.95,000/- to the defendants". Here, the respondent/plaintiff has not mentioned the date that when he was paid Rs.95,000/- to the appellants/defendants. In para-6 of the plaint in the present suit, it was stated that "subsequently the defendants received the entire balance sale consideration on "16.08.2002" and executed a receipt for the same "in the presence of the witnesses"," . Here, the date "16.08.2002" and "in the presence of the witnesses" were written in hand. In the list of documents, the receipt for Rs.95,000/- was mentioned as Serial No.8, in which, it was also written in hand as "Photostat copy of the receipt issued by the defendants in favour of the plaintiff". If really the respondent/plaintiff paid Rs.95,000/- to the appellants/defendants and got the receipt in the date mentioned in Ex.A12, what prevented him to mention the date in the plaint in type. So the trial Court considered this aspect and came to the correct conclusion that the respondent/plaintiff herein has failed to prove that he has paid Rs.95,000/- under Ex.A12 on 16.08.2002. Hence the trial Court directed the respondent/plaintiff to pay the amount of Rs.95,000/- to the appellants/defendants and furthermore, the trial Court also came to the conclusion that the respondent/plaintiff was not in possession of the suit property, against which, no appeal or cross-objection has been filed.
(xv) The respondent/plaintiff also filed the document dated 16.02.1999 under Ex.A3, which is before the amendment of Registration Act. As per Section-17 of the Registration Act, new amendment came into existence and it was inserted as Section-1A by Act 48 of 2001, which reads as follows:
"17(1A): The documents containing contracts to transfer for consideration, any immovable property for the purpose of Section 53-A of the Transfer of Property Act, 1882, shall be registered if they have been executed on or after the commencement of the Registration and other Related Laws (Amendment ) Act, 2001, and if such documents are not registered on or after such commencement then, they shall have no effect for the purposes of the said Section 53-A."
The document under Ex.A3 came into existence on 16.02.1999, but the amendment came into effect by 48 of 2001. So before 2001, there was no necessity for registering the sale agreement. In such circumstances, no reason has been assigned by the respondent/plaintiff that why the possession was handed over to him by part performance and the same also has not been mentioned in Ex.A1. Even though Ex.A1 was executed on 16.02.1999, what prompted the respondent/plaintiff to get the separate deed under Ex.A3 on the same day itself for handing over the possession of the suit property.
(xvi) Considering the documents along with the evidence of D.W.1, it has clearly proved that at the time of borrowing Rs.5,00,000/-, the respondent/plaintiff got the sale agreement to be executed and registered and obtained signatures from the first appellant/first defendant in a blank paper and executed power of attorney deed in favour of one Kalimuthu. D.W.1-the first appellant/first defendant in his chief-examination, has stated that his signature was obtained by the father of the respondent/plaintiff in blank papers. At the time of execution of Ex.A3-document for handing over possession, he was not known about A.Muthusamy, who is the attestor of Ex.A3. But the said A.Muthusamy was not examined before this Court. In his cross-examination, he accepted his signature in Ex.A3, but he denied that the possession of the suit property was handed over to the respondent/plaintiff.
(xvii) Now it is appropriate to consider Ex.A4-notice. In Ex.A4, the respondent/plaintiff has not stated that the possession of the suit property was handed over to him. Considering the same, I am of the view that in pursuance of Ex.A4, the possession of the suit property was not handed over to the respondent/plaintiff. Hence the trial Court came to the correct conclusion that the possession was not handed over to the respondent/plaintiff.
(xviii) The trial Court has considered in para-13 of its judgment that the respondent/plaintiff was not put into possession of the suit property. Admittedly, no appeal or cross-objection has been filed by the respondent/plaintiff in respect of payment of Rs.95,000/- and his possession. So the cumulative effects of the document has clearly proved that Ex.A1 is only executed for the security for the amount borrowed and not an intention to execute the sale deed. As per the dictum of AIR 1997 SC 2702 and 2008 (1) CTC 86, conduct of the parties has clearly proved that it is only for the security for the amount received by the appellants/defendants. So the trial Court erred in concluding that Ex.A1 is a sale agreement. Point Nos.3 and 4 are answered accordingly.
10.Point No.5:
(i) The learned counsel for the appellants/defendants submitted that the trial Court ought not to have granted equitable decree of specific performance, Since it disbelieved Ex.A3 and Ex.A12, the appellants/defendants are not approached the Court with clean hands. Hence the respondent/plaintiff is not entitled to equitable relief. He further submitted that the respondent/plaintiff is in guilty on fabricated document (i.e.) Ex.A2 and there is an inordinate delay. In such circumstances, the trial Court ought to have dismissed the suit.
(ii) Considering the above argument, it is true that the trial Court has disbelieved Ex.A12-receipt for Payment of Rs.95,000/- and Ex.A3-agreement, which proved that the respondent/plaintiff has not paid Rs.95,000/- and also the respondent/plaintiff was not put into possession. It is pertinent to note that in the suit for specific performance, an intended purchaser/agreement holder must always ready and willing to perform his part of contract. As already stated that more than 80% of the sale consideration was paid, even three years time was given to pay the balance sale consideration, he kept quiet all along. Only on 13.02.2002 (i.e.) fag end of stipulated time, he issued notice under Ex.A4 and sent telegram on 14.02.2002 under Ex.A6. An endorsement made by the first appellant/first defendant on 13.02.2002 under Ex.A5 clearly shows that it is fabricated, as per the oral evidence of P.W.1, since the appellants/defendants have not met the respondent/plaintiff on 13.02.2002. It is stated as follows:
VERNACULAR (TAMIL) PORTION DELETED In Ex.A2, one year time was altered into two years (i.e.) material alteration. Due to the illness of the first appellant/first defendant, the sale deed was not executed and the appellants/defendants sought time for extension. But the first appellant/first defendant stated in his deposition that on 14.02.2002 only, he met respondent/plaintiff and made the endorsement. If Ex.A5 is true, what prompted the respondent/plaintiff to send the telegram on 14.02.2002 under Ex.A6 to get the sale deed to be executed on 15.02.2002, moreover, he got two years time as extension for executing the sale deed. So It is clearly proved that the respondent/plaintiff has not come to the Court with clean hands. In such circumstances, the trial Court ought not to have granted equitable relief of specific performance. Hence the trial Court has not considered the aspects in proper perspective. So I am of the view that the respondent/plaintiff is not entitled to equitable relief of specific performance. Point No.5 is answered accordingly.
11.Point Nos.6 and 7:
In view of the answers given to Point Nos.3 to 5, Ex.A1 is executed only for the security for the money transaction. As per the evidence of D.W.1, he already discharged the amount. So the respondent/plaintiff has not come to the Court with clean hands, he is not entitled to equitable relief of specific performance. So the judgment and decree passed by the trial Court are liable to be set aside. Hence they are hereby set aside. Point Nos.6 and 7 are answered accordingly.
12.In fine, M.P.No.1 of 2011 is dismissed.
The First Appeal is allowed with costs and consequently, connected M.P.No.1 of 2007 is closed.
The judgment and decree dated 07.04.2006 made in O.S.No.121 of 2004 on the file of Additional District Court (Fast Track Court No.I) Coimbatore, are hereby set aside.
In the trial Court, the suit is dismissed with costs.
kj To
1.The Additional District Court (Fast Track Court No.I) Coimbatore.
2. The Record Keeper, VR Section, High Court, Madras