Madras High Court
C.Senthamarai vs Vincent Mary on 7 July, 2021
Author: M.Sundar
Bench: M.Sundar
S.A.No.500 of 2021
and CMP.No.9861 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 07.07.2021
CORAM:
THE HONOURABLE Mr.JUSTICE M.SUNDAR
S.A.No.500 of 2021
and
C.M.P.No.9861 of 2021
C.Senthamarai
W/o.Chinnadurai ... Appellant
Vs.
Vincent Mary
W/o.Arokiasamy ... Respondent
Prayer:
Second Appeal has been filed under Section 100 of Code of Civil
Procedure, 1908, praying to set aside the Judgment and Decree passed in
A.S.No.2 of 2019 dated 13.10.2020 on the file of the Principal District
Judge, Thiruvarur, confirming the judgment and decree passed in granting
alternative relief to return the earnest money with interest in a suit for
specific performance in O.S.No.270 of 2016 dated 10.12.2018 on the file of
the Subordinate Court, Mannargudi, Thiruvarur District.
For Appellant : Mr.M.L.Ramesh
***
1/21
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S.A.No.500 of 2021
and CMP.No.9861 of 2021
JUDGMENT
In less than five months from today, the lis that has lead to the captioned second appeal would be half a decade old.
2. A plaint inter-alia with a specific performance prayer (qua immovable property) was presented in 'Subordinate Judge's Court, Mannargudi' [hereinafter 'trial Court' for the sake of convenience and clarity] on 03.12.2016 by the 'appellant' before this second appeal Court who shall hereinafter be referred to as 'plaintiff' for the sake of convenience and clarity.
3. Aforementioned plaint was taken on file by the trial Court as O.S.No.270 of 2016. A registered sale agreement dated 18.11.2013 (Ex.A1) is the fulcrum of the lis and specific performance of about '31 and 2/3 cents of land in Karaikottai Village, Mannargudi Taluk, Tiruvarur District, situate within Mannargudi Sub-Registrar jurisdiction and Nagapattinam Registrar jurisdiction' [hereinafter 'suit property' for the sake of convenience and clarity] is the subject matter of Ex.A1.
4. Respondent in captioned second appeal is the lone defendant in the 2/21 https://www.mhc.tn.gov.in/judis/ S.A.No.500 of 2021 and CMP.No.9861 of 2021 suit and from hereon, 'respondent' in captioned second appeal shall be referred to as 'defendant' for the sake of convenience and clarity.
5. In the aforementioned specific performance suit, there is an alternate prayer for refund of advance also, besides one limb of prayer for injunction against alienation. The usual costs limb and residuary limb also form part of prayer in the plaint.
6. Defendant entered appearance, filed a written statement and completed pleadings. The pivotal pleading on which, the defendant resisted the suit is that Ex.A1 sale agreement dated 18.11.2013 is not a sale agreement but it forms part of loan transaction. The burden of the song qua defendant's pleadings in the written statement is that there was a loan transaction with plaintiff, defendant borrowed monies from plaintiff and the suit property was given as security for such loan transaction on trust and on further trust, Ex.A1 was executed purely as security with no intention to enter into a sale agreement qua suit property.
7. On the aforementioned rival pleadings, the trial Court framed three 3/21 https://www.mhc.tn.gov.in/judis/ S.A.No.500 of 2021 and CMP.No.9861 of 2021 issues and parties went to trial on these three issues. The first of the three issues which turns on whether Ex.A1 sale agreement is one that was executed only as part of loan transaction and security for the same as contended by the defendant is the pivotal issue on which the lis turns.
8. Plaintiff examined herself as P.W.1 and one Govindarasu deposed as P.W.2. This Court is informed by the learned counsel for plaintiff that Govindarasu is plaintiff's father. Five documents were marked as exhibits i.e., Ex.A1 to Ex.A5 on the side of plaintiff. There was no oral evidence and no documents were marked on the side of defendant.
9. After full contest, the trial Court in and by judgment and decree dated 10.12.2018 believed the pleadings of defendant that Ex.A1 is only part of loan transaction and returned a finding that it was executed only as security for the loan taken by defendant from plaintiff and it is not a sale agreement. On returning such a finding, trial Court negatived the specific performance limb of prayer, but granted alternate prayer for refund of advance. This Court is informed that the defendant has given legal quietus to 4/21 https://www.mhc.tn.gov.in/judis/ S.A.No.500 of 2021 and CMP.No.9861 of 2021 the decree. In other words, defendant has not preferred any appeal against alternate prayer limb being decreed. On the contrary, plaintiff carried the matter in appeal by way of a regular First Appeal under Section 96 of 'The Code of Civil Procedure, 1908' [hereinafter 'CPC' for brevity] vide AS.No.2 of 2019 on the file of 'Principal District Judge's Court, Thiruvarur' [hereinafter 'First Appellate Court' for the sake of convenience and clarity] as against dismissal of specific performance limb of the prayer though alternate prayer was decreed and given legal quietus by the defendant. First Appellate Court, after full contest, in and by judgment and decree dated 13.10.2020 dismissed the first appeal confirming the judgment and decree of the trial Court. Post such trajectory in two Courts below i.e., after consecutive concurrent decrees the plaintiff is before this second appeal Court vide captioned second appeal.
10. Mr.M.L.Ramesh, learned counsel for plaintiff (appellant before this second appeal Court) is before this Virtual Court and learned counsel contended that judgments and decrees of the Courts below warrant interference under Section 100 of CPC as according to him substantial 5/21 https://www.mhc.tn.gov.in/judis/ S.A.No.500 of 2021 and CMP.No.9861 of 2021 questions of law arise in this matter.
11. Before this Court embarks upon the exercise of discussing the submissions and giving its dispositive reasoning, it is necessary to notice another factual aspects which according to this Court is of immense significance. That significant fact is, the admitted case of plaintiff is that the total sale consideration is Rs.8 Lakhs, out of which Rs.7,50,000/- was paid at the time of execution of Ex.A1 and two years time was stipulated for paying balance of Rs.50,000/- and completing the sale.
12. In his campaign in captioned second appeal against the consecutive concurrent decrees, learned counsel notwithstanding very many grounds and averments in the memorandum of grounds of appeal made pointed submissions, summation of which, is as follows:
(a) Both Courts below, failed to notice that the plaintiff was ready and willing qua Ex.A1 and all the ingredients/determinants of Section 16(c) of The Specific Relief Act, 1963 have been satisfied.6/21
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(b) The specific performance limb of the prayer has been negatived mainly by giving great importance to the factual position that the suit notice dated 22.12.2015 (Ex.A2) was issued by the plaintiff after two years from execution of Ex.A1 i.e., after the stipulated time had elapsed.
(c) Plaintiff examined herself as P.W.1 and her father Govindarasu deposed as P.W.2, but both were not cross- examined by the defendant.
(d) Courts below have gone into the aspect of financial ability of plaintiff to pay the balance Rs.50,000/- and findings in this regard are clearly untenable.
13. This Court, now proceeds to examine arguments advanced in the light of Section 100 CPC.
14. This Court is of the considered view that owing to rival pleadings as alluded to supra (details of which have been broadly captured supra) in the case on hand, it is necessary for the plaintiff to first get over the threshold 7/21 https://www.mhc.tn.gov.in/judis/ S.A.No.500 of 2021 and CMP.No.9861 of 2021 barrier and it is first necessary to establish that Ex.A1 is a sale agreement and is not a document that has been executed as security as part of a loan transaction. Only on this threshold barrier being cleared questions turning on readiness/willingness, financial ability etc., arise. In this regard, this Court turns to Section 92 of 'The Indian Evidence Act, 1872' [hereinafter 'said Act' for the sake of convenience and clarity] and exceptions to Section 92 of said Act that have been carved out in well settled case laws. The case laws are State Bank of India and another Vs. Mula Sahakari Sakhar Karkhana Ltd., reported in (2006) 6 SCC 293 and Anglo American Metallurgical Coal Pty. Limited Vs. MMTC Limited reported in (2021) 3 SCC 308. Without burdening this judgment with those judgments and extracts, suffice to say that in a case of this nature, it is imperative to establish that Ex.A1 is a sale agreement and not a document executed as part of loan transaction. A perusal of judgements of trial Court and First Appellate Court reveal that the plaintiff has not discharged her initial burden in this regard. If the plaintiff had discharged her initial burden in this regard the onus may have shifted to defendant but that itself did not happen in this case. This is clear from paragraph Nos.9 & 10 of the judgment of trial Court and paragraph No.25 of 8/21 https://www.mhc.tn.gov.in/judis/ S.A.No.500 of 2021 and CMP.No.9861 of 2021 the judgment of First Appellate Court, which read as follows:
Paragraph Nos.9 & 10 of the judgment of trial Court:
'9/ gpujpthjp jhf;fy; bra;Js;s vjph;tHf;Fiuapy; jhth fpiua xg;ge;jk; gpujpthjpahy; kWf;fg;gl;Lk;. thjpaplk; gpujpthjp U:/3.50.0000 fld; th';fpapUe;jhh;
vd;Wk;. me;j flid jpUk;g brYj;Jk; tifapy;
ek;gpf;if Vw;gLj;Jk; tpjkhf kd;dhh;Fo rhh;gjpthsh; mYtyf Mtz vz;/4888-2013 Mtzk; gpujpthjpahy; vGjpf;bfhLf;fg;gl;lJ vd;Wk;. tl;o brYj;jg;gl;L te;j epiyapy; jpObud;W thjp mriya[k; tl;oiaa[k;
jpUk;g nfl;lhh; vd;Wk;. gpujpthjpia Vkhw;w
ntz;Lbkd;w nehf;fj;Jld; tHf;F jhf;fy;
bra;ag;gl;Ls;sJ vd;W vjph;tHf;Fiuapy;
Fwpg;gplg;gl;Ls;sJ/
10/ th/rh/M/4 Md 04/06/1997 njjpapl;l
gpujpthjp bgahpYs;s mry; fpiua Mtzj;ij
ghh;itapLk;nghJ jhth brhj;jhd fhuf;nfhl;il
fpuhkk;. g[y vz;/607-3y; g["i
; r g{uh 0/37 Vh;!; gFjp
31 2-3 brz;l epyk; gpujpthjpf;F ghj;jpag;gl;l
brhj;J vd;gJ bjhpfpwJ/ th/rh/M/1 Mf FwpaPL
bra;ag;gl;Ls;s 18/11/2013 njjpapl;l gjpt[ bra;ag;gl;l
fpiua xg;ge;jj;ij ghh;itapLk;nghJ nkw;go fpiua
xg;ge;jj;ij gpujpthjp thjpf;F vGjpf;bfhLj;J
kd;dhh;Fo rhh;gjpthsh; mYtyfj;jpy; 18/11/2013
njjpad;W Mtz vz;/4888-2013 Mf gjpt[
bra;ag;gl;Ls;sJ vd;gJ bjhpfpwJ/ th/rh/M/1 Md
fpiua xg;ge;jj;jpy; gpujpthjpf;F ghj;jpag;gl;l jhth
9/21
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S.A.No.500 of 2021
and CMP.No.9861 of 2021
brhj;ij U:/8.00.000-?j;jpw;F fpiua bjhif eph;zak; bra;J mjpy; thjpaplkpUe;J gpujpthjp U:/7.50.000-?
j;ij Kd;gzkhf bgw;Ws;shh; vd;gJk; fpiua
ghf;fpj;bjhif U:/50.000-?j;ij thjp gpujpthjpaplk;
,uz;L tUl fhyj;jpw;Fs; bfhLf;f ntz;Lk; vd;Wk;
thjp gpujpthjp bgaUf;F fpiua rhrdk;
vGjpf;bfhLf;f ntz;Lk; vd;gjd; nghpy; thjpf;F
gpujpthjp fpiua xg;ge;jk; vGjpf; bfhLj;Js;shh;
vd;gJ bjhpfpwJ/'
Paragraph No.25 of the judgment of First Appellate Court:
'25. Since Ex.A1 sale agreement was a registered document and the execution of the said agreement had been admitted by the respondent and the respondent had failed to adduce oral and documentary evidence in support of the defence that Ex.A1 sale agreement had been executed as a security for loan transaction. Hence, the trial Court on consideration of the said facts had concluded that the appellant is entitled for alternative relief of recovery of money with 6% interest from the date of agreement till date of realisation. The decision of trial Court is fair and reasonable one and there is no necessity for interference in the well considered decision of the trial Court. The decisions relied upon by the appellant were not applicable to the facts and circumstances of the present case. The grounds of appeal has no merit and deserves only dismissal and the point numbers 1 to 3 are decided accordingly.' 10/21 https://www.mhc.tn.gov.in/judis/ S.A.No.500 of 2021 and CMP.No.9861 of 2021
15. The above are self explanatory and therefore, this by itself draws the curtains on the case of plaintiff with regard to specific performance limb of prayer in the plaint.
16. Only if above threshold barrier has been crossed, the question of readiness and willingness, suit notice being issued after two years from Ex.A1 having elapsed would have arisen and therefore, the first and second points urged by learned counsel for plaintiff get flattened. The plaintiff and her father who deposed as P.W.1 and P.W.2 respectively not being cross- examined does not make a difference as the documentary evidence and the depositions of P.W.1 and P.W.2 did not get past well carved out exceptions to Section 92 of said Act which have been settled. Therefore, the third point urged by learned counsel for plaintiff also fails to impress this Court. The fourth point turns on financial capacity and in the considered view of this Court this also does not come into play and the same also pales into insignificance as the plaintiff has not crossed the threshold barrier. 11/21 https://www.mhc.tn.gov.in/judis/ S.A.No.500 of 2021 and CMP.No.9861 of 2021
17. This Court is of the considered view that when the total sale consideration is Rs.8 Lakhs, it is extremely unusual and impracticable that a prospective purchaser i.e., agreement holder (plaintiff) would pay 93.75% of sale consideration (Rs.7,50,000/- in this case) to prospective vendee (defendant in this case) and for remaining meagre and minuscule 6.25% namely, Rs.50,000/- would take two years. This by itself, casts a shadow and cloud on Ex.A1 and these terms by itself, come to the aid of pleadings of defendant that Ex.A1 is not a sale agreement and it is a security qua a loan transaction. This is being articulated for the limited purpose of saying that the burden cast on the plaintiff in a case of this nature or in other words, rigour of burden cast on the plaintiff in a case of this nature is so high that it has to be discharged with absolute clarity and specificity. That has not happened in this case and therefore, that by itself is the end of the road for the plaintiff regarding specific performance limb of prayer. To be noted, as already alluded to supra, alternate prayer for repayment has been acceded/decreed and confirmed.
18. In other words, this Court notices that the trial Court has decreed 12/21 https://www.mhc.tn.gov.in/judis/ S.A.No.500 of 2021 and CMP.No.9861 of 2021 the alternate prayer for refund of monies paid by the plaintiff to defendant and that the same has been sustained by the First Appellate Court. This Court also notices the submission that the defendant has not preferred any appeal against that limb of prayer i.e., alternate prayer of returning money that has been decreed (to be noted, this has already been alluded to and captured supra elsewhere in this judgment). Be that as it may, as the captioned matter in second appeal is under Section 100 of CPC, it becomes necessary to peruse the questions that have been proposed as substantial questions of law by the protagonist of captioned second appeal. As many as five questions i.e., A to E have been proposed as substantial questions of law and the same as culled out from the memorandum of grounds of second appeal read as follows:
'A. Whether the Courts below are correct in holding that the plaintiff had not proved her readiness and willingness when the specific pleading of the plaintiff in this regard had not been denied in the written statement as per Order VIII Rule 3 of Civil Procedure Code?
B. Whether the Courts below are right in granting alternative relief for refund of the advance money with interest when the plaintiff had paid the substantial sale consideration and her readiness and willingness pleaded in the plaint and deposed in 13/21 https://www.mhc.tn.gov.in/judis/ S.A.No.500 of 2021 and CMP.No.9861 of 2021 evidence had not been contradicted by cross examining the witness?
C. Whether the Courts below are right in using the discretion for refund of the earnest money with interest when the same is not permitted under the amended Specific Relief Act 18 of 2018?
D. Whether the Courts below failed to appreciate the evidence of the plaintiff to arrive at the conclusion that she was not ready and willing to perform her part of the contract?
E. Whether the Courts below is entitled to used its discretion to give alternative prayer when the agreement for sale is admitted and the capacity to pay the balance sale consideration is not disputed?'
19. In the light of Kanailal case being Kanailal and others Vs. Ram Chandra Singh and others reported in (2018) 13 SCC 715, this Court deems it appropriate to set out sole point for determination that arises in the case on hand is whether substantial question of law arises in the captioned second appeal.
20. To examine whether the above would qualify as substantial questions of law, this Court reminds itself that the expression 'substantial question of law' occurring in Section 100 of CPC has been elucidatively 14/21 https://www.mhc.tn.gov.in/judis/ S.A.No.500 of 2021 and CMP.No.9861 of 2021 explained in a long line of authorities starting from celebrated Sir Chunilal Mehta's case [Sir Chunilal V.Mehta and Sons Ltd., Vs. Century Spinning and Manufacturing Co. Ltd., reported in AIR 1962 SC 1314] wherein a Constitution Bench of Hon'ble Supreme Court affirmed the view taken by a Full Bench of this Court (Madras High Court) in Rimmalapudi Subba Rao's case [Rimmalapudi Subba Rao Vs. Noony Veeraju And Others reported in AIR 1959 Madras 969 (FB)]. Suffice to say that this continues to be good law and is holding the field i.e., obtaining legal position as Hon'ble Supreme Court as recently as on 27.08.2020 has reiterated these principles in Nazir Mohamed case [Nazir Mohamed Vs. J.Kamala reported in 2020 SCC OnLine SC 676]. Relevant paragraphs in Nazir Mohamed case are Paragraph Nos.29, 30 and 35 to 37 and the same read as follows:
'29. The principles for deciding when a question of law becomes a substantial question of law, have been enunciated by a Constitution Bench of this Court in Sir Chunilal v. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd.1, where this Court held:— “The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by 15/21 https://www.mhc.tn.gov.in/judis/ S.A.No.500 of 2021 and CMP.No.9861 of 2021 this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.”
30. In Hero Vinoth v. Seshammal , this Court referred to and relied upon Chunilal v. Mehta and Sons (supra) and other judgments and summarised the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law.
35. Whether a question of law is a substantial one and whether such question is involved in the case or not, would depend on the facts and circumstances of each case. The paramount overall consideration is the need for striking a judicious balance between the indispensable obligation to do justice at all stages and the impelling necessity of avoiding prolongation in the life of any lis. This proposition finds support from Santosh Hazari v. Purushottam Tiwari .
36. In a Second Appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact is not open to challenge in second appeal, even if the appreciation of evidence is palpably erroneous and the finding of fact incorrect as held in Ramchandra v. Ramalingam . An entirely new point, raised for the first time, before the High Court, is not a question 16/21 https://www.mhc.tn.gov.in/judis/ S.A.No.500 of 2021 and CMP.No.9861 of 2021 involved in the case, unless it goes to the root of the matter.
37. The principles relating to Section 100 CPC relevant for this case may be summarised thus:
(i) An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the terms of a document is a question of law.Construction of a document, involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue.
(iii) A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.17/21
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(iv) The general rule is, that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the wellrecognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.'
21. The narrative, discussion and dispositive reasoning thus far coupled with the elucidation of expression 'substantial question of law' occurring in Section 100 of CPC makes it clear that the aforementioned five questions do not qualify as substantial questions of law much less substantial questions of law arising in the case on hand as nothing debatable, nothing that is res integra and no case of settled principle of law being disregarded has been made out. On the contrary, settled principles pertaining to exceptions to Section 92 of said Act have been adhered to and have been followed in the case on hand. This is not a case of misconstruction of a document or a wrong application of a principle of law in construing a 18/21 https://www.mhc.tn.gov.in/judis/ S.A.No.500 of 2021 and CMP.No.9861 of 2021 document as there is nothing demonstrable before this second appeal Court to show any perversity in appreciation of Ex.A1 by Courts below and the findings returned by the Courts below that it is only a document forming part of a loan document i.e., security for loan and not a sale agreement. Therefore, this Court has no difficulty in coming to the conclusion that no substantial question of law arises in the case on hand.
22. This takes us to Kirpa Ram principle being Kirpa Ram Vs. Surendra Deo Gaur reported in 2020 SCC OnLine SC 935, wherein Hon'ble Supreme Court reiterated the legal position qua a Section 100 CPC drill that a second appeal can be dismissed at the admission stage without formulating a substantial question of law if none arises.
23. Therefore, following Kirpa Ram principle, captioned second appeal is dismissed at the admission stage holding that no substantial question of law arises. Consequently, C.M.P.No.9861 of 2021 is also dismissed. Owing to the nature of the matter and owing to the nature of submissions made before this Court by learned counsel for plaintiff, there 19/21 https://www.mhc.tn.gov.in/judis/ S.A.No.500 of 2021 and CMP.No.9861 of 2021 shall be no order as to costs.
07.07.2021 Speaking order: Yes/No Index: Yes/No Internet : Yes/No mk 20/21 https://www.mhc.tn.gov.in/judis/ S.A.No.500 of 2021 and CMP.No.9861 of 2021 M.SUNDAR.J., mk To
1. The Principal District Judge, Thiruvarur District..
2. The Subordinate Judge Mannargudi, Thiruvarur District.
S.A.No.500 of 2021
07.07.2021 21/21 https://www.mhc.tn.gov.in/judis/