Madras High Court
Sarojini vs N.A. Kandaswamy .. ... on 9 April, 2013
Author: S.Palanivelu
Bench: S.Palanivelu
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.04.2013
CORAM
THE HONOURABLE Mr.JUSTICE S.PALANIVELU
A.S.No.988 of 2007
1.Sarojini
2.Lakshmi
3.Vellammal @ Velumani .. Defendants 2 to 4 /
Appellant
vs.
N.A. Kandaswamy .. Plaintiff/Respondent
Appeal Suit is filed under Section 96 of the Civil Procedure Code against the Judgment and Decree passed by the Learned Additioal District cum Sessions Judge (Fast Track Court No.111), Coimbatore, in O.S.No.634 of 2004 dated 26.7.2006.
For Appellant ... Mrs.P.T. Asha
for M/s. Sarvabhuman Associates
For Respondents ... Mr.T.R.Rajagopalan
Senior Counsel for
M/s.R.R. Rajaraman
JUDGMENT
1.The following are the averments contained in the plaint filed in O.S.No.634 of 2004:
1.(a) Plaintiff entered into an agreement of sale with the defendants on 29.11.1996 by and under which the defendants agreed to sell the property more fully described in the plaint schedule to the plaintiff for a sum of Rs.7,30,000/-. On the date of the agreement itself the plaintiff paid a sum of Rs.1,50,000/- which the defendants received and acknowledged receipt of the same in the agreement of sale itself. On the same day the defendants also delivered into the hands of the plaintiff the original registered will dated 17.12.1975 executed by one Subbanna Goundar, and also copies of chitta, adangal and encumbrance certificate relating to the suit property. They also delivered into the hands of the plaintiff a registration copy of a document of Exchange (Doc.No.700/65) and a Heirship certificate. As per the agreement, the time stipulated for the completion of the sale is four months, which expires with effect from 29.3.1997. The plaintiff has always been and is ready and willing to purchase the property from the defendants after paying the balance sale consideration and getting the sale deed registered at his expenses. He has been demanding from the defendants the execution of the sale deed of the suit property in his favour at his expenses all through.
1.(b) As the defendants were not complying with this demand, the plaintiff sent a telegraphic notice dated 18.1.1997, calling upon the defendants to execute the sale deed with reference to the suit property in his favour at his expenses. Though the telegram was received by the defendants, none directly responded to the telegram. But the 2nd defendant sent a copy of a notice that she had addressed to Sri.J.D.Socretes, Advocate, who apparently had sent a notice to Mrs.Sarojini on behalf of the 1st defendant.
1.(c) As the plaintiff did not receive any direct reply from any of the defendants, to the telegram that he sent, the plaintiff sent a detailed notice by registered post to all the defendants through his counsel on 8.2.1997. In that notice the plaintiff has called upon the defendants to execute the sale deed with reference to the plaint mentioned property in his favour at his expenses, after receiving the balance of sale price in order he could get it registered. Though this notice has been received by defendants 2 to 4, they have not sent any reply.
1.(d) The defendants have no right whatsoever to refuse to execute a sale deed in his favour as per the terms and conditions of the agreement. Plaintiff apprehends that the defendants are not willing to execute the sale deed in favour of the plaintiff because they are trying to sell the property to others for a higher price, than what has been stipulated under the sale agreement.
1.(e) The plaintiff has been ready and willing to play his part of the contract. The plaintiff is willing to deposit the balance purchase price as required under law and get the sale deed executed in his favour at his cost by the defendants. The defendants know that the plaintiff has always been ready and willing to play his part of the contract. The fact that none of the defendants had replied to either the telegram or the detailed notice that the plaintiff had sent to them shows that they have no excuse whatsoever in not executing the sale deed in favour of the plaintiff. The plaintiff had inserted a paper publication of warning on 11.2.97 in Dinakaran daily.
1.(f) For the reasons stated supra the plaintiff is entitled for a decree of specific performance directing the defendants to execute a sale deed in respect of the suit properties in his favour at his cost on his depositing the balance sale price into court at the appropriate time, as directed by this Hon'ble cour and hence the court may be pleased to pass a decree directing the defendants to execute a sale deed in respect of the suit schedule properties in favour of the plaintiff at his cost on his depositing the balance sale price of Rs.5,80,000/- within a time to be stipulated by this Hon'ble Court; directing the defendants to deliver vacant possession of the suit schedule property on the execution of the sale deed and to pay the costs.
2. In the written statement filed by the 2nd defendant adopted by 3rd and 4th defendants, it is averred as follows:
2.(a) The suit is false frivolous, vexatious and is not maintainable either in law or on facts of the case. The plaintiff is guilty of supprssio vesi and suggestion falsi. The averment in para 3 of the plaint about the agreement. Total consideration advance amounts handed over documents and other aspects are admitted by this defendant. The period of the agreement for sale is also admitted. But it is false to say that the plaintiff has always been ready and is ready and willing to purchase the property from the defendants after paying the balance sale consideration and getting the sale deed registered at his expenses. It is not correct to say that be has been demanding from the defendants the execution of the Sale Deed of the suit property in his favour. It is also not correct to say that the defendants were not complying with the demand. As soon as the receipt of the Telegram this defendant approached the plaintiff that she is ready to execute the sale deed. It is true that the copy of the reply notice addressed to J.D.Socretes sent to the plaintiff.
2.(b) This defendant approached the plaintiff after receipt of the legal notice, and expressed her willingness to perform her part of the contract. The remaining averments are not correct. The plaintiff must prove the same. This defendant never refused to execute the sale. It is not correct to say that the defendant not willing to execute the sale deed. It is not correct to say that they are trying to sell for high price to 3rd parties. He has no idea to pay the balance sale price and obtained the sale deed. He is not willing to perform his part of the agreement. He has no idea to deposit the balance amount. It is false to say that the defendants know that the plaintiff has always been ready and willing to play his past of contract. The non-reply will not in any way amounts to refusal to perform the part of this defendant. This defendant personally met the plaintiff and expressed her willingness to perform her part of the agreement. The defendants not aware of the paper publications. The copy of the paper publication not forwarded to the defendants.
2.(c) He is not entitled for specific performance as stated. He has no money at all. He wanted to drag on the matter as long as possible. This defendant without prejudice her contentions in written statement that she is prepared to execute the sale Deed even today. There is no cause of action for this suit. It lacks bonafide. The plaintiff has not come to court with true facts and the suit may be dismissed with costs.
3.After analyzing the evidence on record, the trial Court Judge has passed a decree for specific performance of contract directing the plaintiff to deposit the balance sale consideration into Court in two months and also directing the defendant to execute the sale deed within one month from the date of deposit. Aggrieved at the judgment of the lower Court the defendants are before this Court with this appeal. Pending trial of the suit first defendant Smt.Subbathal expired and hence defendants 2 to 4 were impleaded as legal heirs.
4. A scrutiny of the written statement would show that the main attack of the defendants against the claim of the plaintiff are, insisting payment of market value of the property for executionof sale deed and another is that the plaintiff was not ready and willing to perform his part of contract. In this context, the points which have arisen for consideration in this appeal are as follows:
1.Whether the plaintiff has established that he was ready and willing to perform his part of contract throughout?
2.Whether the defendants are entitled for market value of the suit property for execution of sale deed ?
3.To what relief are the parties entitled to?
Point No.1
5. It is the major contention of the defendants raised in the grounds of appeal that the plaintiff was not ready and willing to perform his part of contract. Almost all the grounds of appeal are devoted by the appellants to this plea. The execution of sale agreement Ex.A.1 dated 29.11.1996 is admitted by the defendants. The rights conferred upon the defendants has vested remainders became absolute rights on the death of first defendant who was a life interest holder as per the terms of Ex.A.10 Registered Will executed by Subbanna Gounder, the husband of first defendant and father of defendants 2 to 4. The above said factors are beyond debate.
6. The time for payment of balance amount of sale consideration was 4 months from the date of the sale agreement. On the date of agreement of sale, a sum of Rs.1,50,000/- was paid as advance to the defendants. The date of expiry stipulated in the Ex.P.1 was 29.3.1997, However, the plaintiff sent a telegram to the defendants on 18.01.1997, much earlier to the date expiry of period stipulated in Ex.A.1 calling upon them to specify the time and place at which they can meet him, within three days expressing his readiness and willingness to pay the balance sale price. Ex.A.2 is the certified true copy of the telegram along with postal receipt therefor. As the address of the defendants have been given properly in the telegram, it has to be presumed that the defendants should have received the same. But they did not respond to the telegram in any manner.
7. In this context, the learned Senior Counsel Mr.T.R.Rajagopalan appearing for the respondent relies upon a decision of Honourable Supreme Court (1997) 2 SCC 200 [Sukhbir Singh and others v. Brij Pal Sing and others] in which it is held that the conduct of parties in waiting the office of the Sub-Registrar to have the sale deed executed is a positive fact to prove that they had necessary funds to pass on consideration. The following is the operative portion of the judgment:-
"5. Law is not in doubt and it is not a condition that the respondents should have ready cash with them. The fact that they attended the Sub-Registrar's office to have the sale deed executed and waited for the petitioners to attend the office of the Sub-Registrar is a positive fact to prove that they had necessary funds to pass on consideration and had with them the needed money with them for payment at the time of registration. It is sufficient for the respondents to establish that they had the capacity to pay the sale consideration. It is not necessary that they should always carry the money with them from the date of the suit till the date of the decree. It would, therefore, be clear that the courts below have appropriately exercised their discretion for granting the relief of specific performance to the respondents on sound principles of law."
8. Citing the above said decision, the learned Senior Counsel appearing for the respondent would submit that before ever if the stipulated period of 4 months had lapsed, the respondent sent a telegram to the defendants revealing his willingness to have the sale deed executed and calling upon them to act positively by specifying place and time where they have to meet and that this circumstance is enough to discern that the plaintiff was ready and willing to perform his part of contract from the inception.
9. The learned counsel for the appellants Mrs.P.T.Asha would contend that in order to show the plaintiff was having ready money in his hands he has to produce documentary evidence, though he need not carry the money with him always. Following is the operative portion of the judgment of this Court delivered by B.Rajendran.J, reported in [2010[ 3 MLJ 1189 [S. Santha Rajagopal v. T.Sadasivam and others] in which the following is the relevant passage:
"36. ... ... ... To prove that the plaintiff is having sufficient money, the plaintiff has produced the income tax return, both of the firm as well as her individual return, which would categorically indicate that she is having sufficient source of income to perform her part of the obligation. To prove that the plaintiff is having sufficient funds to get the sale completed, she need not carry the money with her, but it has to be proved by documentary and oral evidence. In this case, the plaintiff has proved beyond reasonable doubt that she is having ready money with her."
10. The learned Senior Counsel appearing for the plaintiff would also garner support from various decisions of this Court and Honourable Apex Court. In the decision of this Court reported in 2010 (3) CTC 1 [A.Ramadoss Rao v. J.P. Builders and others] it is held that law does not enjoin the party seeking specific performance of contract to deposit the amount in the Court unless directed by the Court. The relevant portion in the decision goes thus:
"35. ... ... ... No adverse inference can be drawn against the plaintiff for not depositing the amount in the Court, whereas the Court did not give any direction to deposit the amount. However, we have kept in view the non-deposit of the amount in the court and deprivation of interest payable to Defendant Nos.1 and 2 for issuing suitable directions, which we would elaborate shortly."
11. The learned Senior Counsel appearing for the appellant also cited a decision in 2011(8) SCC 601 [Coromandel Indag Products Pvt. Ltd., v. Garuda Chit and Trading Company Private Limited and Another] wherein it is observed as follows:
"20. It is also relevant to point out the stand of the parties as reflected in their pleadings and evidence. In terms of Section 16(c) of the Specific Relief Act, 1963, it is incumbent on the party, who wants to enforce the specific performance of a contract, to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract. The Explanation appended to clause (c) makes it clear that if a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court. However, the plaintiff must aver performance of, or readiness and willingness to perform the contract according to its true construction. It is seen from the pleadings that necessary averments have been made in terms of clause (c) of Section 16."
12. The Supreme Court is of the view that as per explanation (c) to Section 16 of the Specific Relief Act, 1963, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court. However, the plaintiff must aver readiness and willingness to perform the contract.
13. In order to show that the plaintiff is capable of paying the balance of sale consideration, he has produced Exs.A.18 and A.19, xerox copies of bank pass books. Ex.A.18 is pertaining to the Savings Bank Account maintained by him in Union Bank of India, Thudialur Branch. Ex.A.19 is xerox copy of S.B. Account pass book in Canara Bank, Kavundampalayam Branch. From the entries in Ex.A.19 it transpires that the plaintiff was ready and willing to have the sale deed executed. It may be seen that the plaintiff was ready even before the expiry of the period stipulated in Ex.A.1. The trial of the case commenced on 17.8.2005, whereas it evident from the proof affidavit filed by the plaintiff for his chief examination on 22.8.2005, he has deposited a sum of RS.5,99,000/- in the above said Canara Bank Account. As on 22.8.2005 a sum of Rs.6,00,252.50 was available in his bank deposit. It shows that the plaintiff was capable of raising money for balance sale consideration. Hence, it has to be necessarily observed that the plaintiff was ready and willing to perform his part of contract from the beginning.
14. In view of the above said factual back drop of the case, in the light of the settled principles holding the field, it is held that the plaintiff is ready and willing to perform his part of contract. This point is answered in affirmative.
Point No.2
15. From the trial of the suit till the hearing of the appeal before this Court, the contention of the defendants is that they are ready and willing to execute the sale deed for the actual market value of the property. Only at the time of trial D.W.1, the 2nd defendant would say about this. The defendants have not pleaded in written statement that they are ready to execute the sale deed for the market value of the property. They have not also incorporated it as defence by filing additional written statement at any point of time after filing written statement and the hearing of this appeal. Hence, the said demand is not covered by the pleadings.
16. It has to be seen on whose lapse the case is being delayed from 1997 till date. Even though the defendants in their written statement have stated that they are ready to execute the sale deed, immediately after the filing of written statement they might have submitted to decree before the trial court itself, without allowing the suit to continue. But even after pleading that they are ready to execute the sale deed, they allowed the case to continue till the date of trial in 2005 by contesting hotly. The above said circumstances with regard to the chronological events would make it abundantly clear that at the instance of the defendants alone, case has been dragged on till date. In this regard, the plaintiff could not be found fault with. If at the behest of the plaintiff the case was procrastinated, then the Court can direct payment of actual market value of the property by him. Since the period of disposal of original suit and appeal have been elongated by the conduct of the defendants, they are not entitled for the market value of the suit property. They are bound to execute the sale deed after the receipt of balance sale consideration as per the terms of contract. This point is answered in negative.
Point No.3
17. An in depth study of the materials on record would show that the plaintiff has been ready and willing to have the sale deed executed from the beginning and the defendants are not entitled for market value of the property. The parties have to abide by the terms contained in Ex.A.1 as such and the defendants have to execute the sale deed after the receipt of balance sale consideration of Rs.5,80,000/- within the time as fixed by the Court. In such a view of the matter the decree and judgment passed by the Court below does not warrant any interference, which has to be confirmed and it is accordingly confirmed. The appeal suffers dismissal. This point is answered in favour of the defendants.
18. In fine, the appeal is dismissed without costs. The respondent is directed to deposit the balance sale consideration of Rs.5,80,000/- before the trial Court within four months and the appellants shall execute sale deed within one month from the date of such deposit. The appellants are at liberty to withdraw the amount deposited.
09.04.2013
Index : YES
Internet : YES
ggs
To
The Additioal District cum Sessions Judge,
Fast Track Court No.III,
Coimbatore,
S.PALANIVELU, J.
ggs
Pre-delivery Judgment in :
A.S.No.988 of 2007
09.04.2013