Madras High Court
Praba vs Chithya Mooppan on 17 October, 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.10.2024
CORAM
THE HONOURABLE MR.JUSTICE N.SENTHILKUMAR
Second Appeal No.756 of 2013
and
M.P.No.1 of 2013
Praba .. Appellant
Versus
1.Chithya Mooppan
2.Saraswathi
3.Selvan
4.Eswaran .. Respondents
Second Appeal filed under Section 100 of the Civil Procedure Code,
1908, against the Judgment and decree dated 02.04.2013 passed in A.S.No.131
of 2012 on the file of the learned Principal District Judge, Erode, confirming
the decree and judgment dated 15.10.2012 passed in O.S.No.62 of 2009 by the
learned Subordinate Judge, Gobichettipalayam.
For Appellant : Mr.R.T.Doraisamy, Senior Counsel,
for Mr.A.V.Arunkumar
For Respondents : Ms.M.Adhishree
for Mr.N.Manokaran
JUDGMENT
The plaintiff, having lost before the Trial Court as well as before the First Appellate Court, has filed the present Second Appeal. https://www.mhc.tn.gov.in/judis 1/27
2. For the sake of convenience, the parties are referred as Plaintiff and defendants as referred in the original Suit.
3. The case of the plaintiff is that the defendants 1 to 4 have entered into an agreement with her on 05.09.1999. Under the said agreement, the defendants 1 to 4 agreed to sell the suit schedule property for a sale consideration of Rs.2,50,000/-. On the date of agreement, the defendants received a sum of Rs.2,40,000/- from the plaintiff and the defendants agreed to receive the balance sale consideration of Rs.10,000/- from the plaintiff at the time of executing the sale deed within a period of seven years.
4. The defendants had furnished a copy of a sale deed dated 27.11.1995 to the plaintiff at the time of entering into the agreement and they have also agreed to give the original sale deed dated 27.11.1995 at the time of execution of the sale deed in favour of the plaintiff. When the period of contract expired on 06.10.2006, the defendants requested the plaintiff for another period of 2 ½ years to execute the sale deed in favour of the plaintiff by stating that they need time to purchase some other properties. After completion of the said 2 ½ years, on 03.04.2009, the plaintiff had again approached the defendants to https://www.mhc.tn.gov.in/judis 2/27 execute the sale deed in her favour. Subsequently, on 27.04.2009, the plaintiff issued a legal notice calling upon the defendants to execute the sale deed as per the agreement. The defendants 1 to 3 refused to receive the legal notice. The fourth defendant alone received the Legal notice and issued reply notice on 11.05.2009 with false allegations. According to the plaintiff, she was ready and willing to perform her part of the contract and it was the defendants who sought excuse and delayed the execution of the sale deed. Therefore, the plaintiff has filed the suit for specific performance.
5. The 4th defendants filed his written statement denying the contentions made in the plaint and the same was adopted by the defendants 1 to
3. The specific case of the defendants as per the written statement is that, the alleged sale agreement was forged and fabricated one. The defendants disputed the payment of advance amount as the plaintiff being a house wife, has no means to pay the sum of Rs.2,40,000/-. The defendants denied the allegations that they had approached the plaintiff and sought 10 days time to settle the issue between them. Even assuming that if the plaintiff is ready and willing to perform the agreement dated 05.09.1999 she would not have waited for a period of 9 ½ years without taking any steps to get the sale deed executed in her https://www.mhc.tn.gov.in/judis 3/27 favour and it goes without saying that the agreement of sale produced by the plaintiff is a false and fabricated document.
6. The specific case of the defendants is that the first defendant had obtained a loan of Rs.20,000/- in the year 1999 from the plaintiff's husband namely, Palanisamy for his urgent family expenditure. The plaintiff's husband was a Veterinary Doctor and also doing money lending business. The specific plea of the defendants is that, at the time of receiving the sum of Rs.20,000/-, the plaintiff's husband Palanisamy obtained signatures of the defendants in the stamped and unstamped blank papers. They had also affixed their thumb impression on Rs. 10/- stamped blank papers and gave their property documents as security for the loan amount. In this context, the first defendant had given a copy of the sale deed dated 27.11.1995 and agreed to repay the said loan with interest at the rate of 24% per annum to the said Palanisamy. There is no privity of contract between the plaintiff and the defendants as alleged by the plaintiff to execute sale of the suit property and the defendants had received the money from the plaintiff's husband only towards loan and the same was also returned within 2 years as agreed by them. In view of the same, there was no cause of action for initiation of the suit.
https://www.mhc.tn.gov.in/judis 4/27
7. The Trial Court upon considering the averments in the plaint and the written statement had formulated the following 10 issues:-
“(i) Whether the plaintiff is entitled for the relief of specific performance as prayed for?
(ii) Whether the plaintiff is entitled for the alternative relief of return of advance amount of Rs.2,40,000/- with interest as prayed for?
(iii) Whether the plaintiff is entitled to a charge over the suit property as prayed for?
(iv) Whether the plaintiff is entitled to the relief of permanent injunction as prayed for?
(v) Whether the suit sale agreement is fabricated as contended by the defendants is true?
(vi) Whether the plaintiff has no means to pay the advance amount of Rs.2,40,000/- as contended by the defendants is true?
(vii) Whether the plaintiff was not ready and willing to perform her part of contract?
(viii) Whether the sale agreement was executed by the defendants as security for the loan obtained?
(ix) Whether the plaintiff has not come to court with clean hands?
(x) To what other relief the plaintiff is entitled to? ” https://www.mhc.tn.gov.in/judis 5/27
8. The Trial Court considered the defence raised by the defendants that their signatures and thumb impressions were obtained by the plaintiff's husband in blank stamp papers and white papers. The Trial Court struck off the Issue Nos.6 and 8 under Order XIV Rule 5 of C.P.C., and proceeded to consider the remaining issues.
9. On the side of the plaintiff, apart from the plaintiff, two other persons were examined as P.W.1 to P.W.3 and Exs.A1 to A8 were marked. On the side of the defendants, the fourth defendant alone was examined as D.W.1 and no document was marked.
10. After evaluating the evidence on record and deposition of P.W.1 to P.W.3, the Trial Court had come to the conclusion that mere furnishing of Xerox copies of the Sale deed/Ex.A2 by itself would not suffice to hold that there was an agreement between the plaintiff and the defendants for sale of the suit property vide ExA1.
11. Further, the Trial Court while analysing Ex.A1 agreement for sale, has noted that the four side boundary of the property has not been https://www.mhc.tn.gov.in/judis 6/27 mentioned in Ex.A1. The scrampling found in page 2 of Ex.A1 also created a doubt that the recitals in Ex.A1 has been typed after obtaining the signatures/thumb impression from the defendants and that the arguments put forth by the defendants’ counsel in this regard is sustainable. The Trial Court considered the fact that the recitals could have been continued in another sheet and that there is no necessity to scramp the recitals in page 2. The Trial Court also noted that, though the defendants contended that they have received Rs.20,000/- by way of loan from the husband of the plaintiff, they did not furnish any documents before the Trial Court to establish the loan transaction and that they have repaid the entire loan amount as contended by them.
12. The Trial Court disbelieved the contents of Ex.A1 sale agreement and has taken note of the period of 7 years fixed for executing the contract between the plaintiff and the defendants. The reason for fixing the long duration of 7 years was not properly explained by the plaintiff. Accordingly, the Trial Court held that the plaintiff was not ready and willing to perform her part and dismissed the suit.
https://www.mhc.tn.gov.in/judis 7/27
13. Aggrieved by the same, an appeal was filed by the plaintiff in A.S.No.131 of 2012 before the Principal District Court, Erode. The First Appellate Court while examining the correctness of the judgment passed in O.S.No.62 of 2009 by the Subordinate Court, Gobichettipalayam, had come to the conclusion that, though the defendants did not produce any record to show that the sum of Rs.20,000/- was borrowed and repaid to the plaintiff's husband by the first defendant, the same itself is not a ground for the plaintiff to establish the execution of sale agreement between the plaintiff and the defendants. The onus to prove the genuineness of the sale agreement is on the plaintiff. The First Appellate Court found that, when a sum of Rs.2,40,000/- i.e., 95% of the sale consideration was paid, there was no necessity for the plaintiff to wait for 9 years to get the sale deed executed in her favour and this fact has created serious doubt about the execution of sale agreement.
14. Apart from that, the plaintiff has not furnished any document before the Trial Court or before the First Appellate Court to show that the plaintiff had paid Rs.2,40,000/- to the defendants and the evidence of D.W.1 would clearly show that the plaintiff is a house wife and she has no independent income except the income of her husband. Though the plaintiff contended that https://www.mhc.tn.gov.in/judis 8/27 she is having bank account, the plaintiff's bank statement was not produced to prove that the plaintiff had paid the amount of Rs.2,40,000/- to the defendants from her bank account. The First Appellate Court disbelieved the contention of the plaintiff that the said amount was received by her from her as Sridhana and had come to the conclusion that Ex.A1/sale agreement itself is a false and fabricated one. Therefore, the First Appellate Court held that the plaintiff is not entitled for specific performance or alternative relief and dismissed the appeal. Aggrieved by the same, the present Second Appeal was filed before this Court.
15.Mr. R.T. Doraisamy, learned Senior Counsel for the appellant would contend that when there was an agreement between the plaintiff and the defendant which was marked as Ex.A1 and the court fee was paid for the alternative prayer for refund of Rs.2,40,000/-, the Trial Court as well as the First Appellate Court while rejecting the main prayer with regard to specific performance in respect of the suit schedule property, has also not considered the alternative prayer of refund of Rs.2,40,000/-.
16. The next contention of the learned Senior Counsel for the appellant is that when the fourth defendant had admitted the signature in https://www.mhc.tn.gov.in/judis 9/27 Ex.A1/agreement, it cannot be disputed on the reason of long period of time fixed for execution of sale deed. It is for the parties to fix any period of time for execution of sale deed as per their convenience. Though the sale agreement is scrampled, there is no proof to show that it is a fabricated document, when the defendants had accepted their signature in the sale agreement/Ex.A1.
17. Per contra, Ms.M.Adhishree, learned counsel appearing for the respondents would contend that the respondents had only received a sum of Rs.20,000/- by way of loan from the husband of the plaintiff who was working as Veterinary Doctor and the same was repaid to him. The Courts below had therefore, rightly disbelieved the sale agreement as false and fabricated document.
18. Learned counsel for the respondents pointed out that when the period of contract itself expired on 06.10.2006, the appellant would not have accepted for further extension of 2 ½ years for execution of sale deed. The appellant has not established the genuineness of Ex.A1/ sale agreement and the suit is filed only to compel the defendants to execute the sale deed in her favour. Learned counsel for the respondents would contend that the scrampled https://www.mhc.tn.gov.in/judis 10/27 content in Ex.A1 sale agreement itself is a conclusive proof sufficient to disprove the case of the appellant.
19. Heard the arguments advanced by the learned Senior Counsel for the appellant and the learned counsel appearing for the respondents and also perused the materials available on record.
20. Mr.A.V.Arunkumar, learned counsel for the appellant relied upon the judgment of this Court, in the case of Jayalakshmi Ammal and 8 Ors., v. Chinnasamy Gounder and Anr., reported in 2007 (1) CTC 449, by referring to paragraphs 13 to 15. The relevant portion of the said judgment is extracted hereunder:-
“ 13. Question No. 1: As per the plaintiff's case, there was an unregistered agreement on 14.07.1984. Such agreement was scribed by P.W.2 and was signed by Defendant No.1 after understanding the contents thereof. The plea of Defendant No.1 on this score is that being pressurised by Velu and Kannan he had given signatures on few blank papers which have been converted into an agreement in favour of the plaintiff and no amount had been paid by the plaintiff to Defendant No. 1. Defendant No. 1 in his evidence as D.W.1 had admitted that Velu was his own brother-in-law and Kannan was his co-brother. Even though he has specifically taken the plea of coercion, except his bald statement that being pressurized by https://www.mhc.tn.gov.in/judis 11/27 Velu and Kannan he had given signatures on blank papers, there is no other material on record to substantiate such a stand. There is no material on record to show as to why Velu and Kannan, who were related to Defendant No.1 himself, had forced him to sign in blank papers for creating an agreement in favour of the plaintiff. It is of course true that the plaintiff has stated while deposing as P.W.1 in his cross-examination that Defendant No.1 has signed in one or two places in a blank paper. This by itself cannot be held sufficient to come to a conclusion that in fact Defendant No.1 had signed separately in three blank papers, two of which were on stamp papers, which were subsequently converted into agreement dated 14.7.1984. Even though it is for the plaintiff to prove that there was an agreement duly executed by Defendant No.1 for sale of the property in favour of the plaintiff, burden of proving the specific plea that signatures had been obtained by coercion on blank papers, which were subsequently converted into an agreement, was obviously on Defendant No.1. The mere uncorroborated testimony of Defendant No.1 is not sufficient to come to a conclusion that in fact Defendant No.1 has been forced to put his signatures on blank stamp papers which have been subsequently converted into agreement.
14. So far as the agreement Ex.A-1 is concerned, it has been proved through the evidence of P W 2, the scribe. It is of course true that evidence of the scribe P.W.2 reads as if the consideration amount was Rs 9,500/-, whereas according to the plaintiff's case, the consideration fixed for the sale was Rs.30,500/-. There is no other significant aspect on record to discard the execution of Ex.A-1 agreement.
Learned Single Judge has cast doubt on such execution as there was discrepancy regarding the place where https://www.mhc.tn.gov.in/judis 12/27 such Ex.A-1 was executed.
15. Learned Single Judge has interpreted the pleadings to mean as if the said agreement was executed in Kumarakuppam. A careful reading of the pleadings merely indicates that the agreement was executed in respect of the land in Kumarakuppam village and it does not specifically indicate that the place of execution of the document was Kumarakuppam. In evidence, P.Ws. 1 and 2 have stated that the agreement was executed at Valavanoor. It is not dispute that in fact Kumarakupam is an hamlet of Valavanoor. In our opinion, there is no inconsistency about the place where Ex.A-1 was executed. Moreover, once the specific plea of Defendant No.1 that his signatures had been obtained by force on blank papers is discarded, the plaintiff's case that an agreement was executed for sale of the property gains ground. In such view of the matter, we are inclined to accept the contention that an agreement was executed, whereunder Defendant No.1 agreed to sell the disputed property in favour of the plaintiff for a sum of Rs.30.500/- out of which a sum of Rs.4,000/- had been received by Defendant No. 1 and the balance amount was to be paid by the plaintiff before getting the sale deed executed. ”
21. He also relied upon another judgment of this Court, in the case of M. Ramalingam (Died), by LRs v. V. Subramanyam (Died), S. Perma reported in AIR 2003 Mad 305, by referring to paragraph 8 of the judgment. It is useful to extract the relevant portion of the said judgment hereunder:-
“ 8. Contrary to the above contentions, the learned Senior Counsel appearing for the respondents would https://www.mhc.tn.gov.in/judis 13/27 argue that Ex.A1 was a registered agreement for sale;
that the plaintiff has clearly deposed about the negotiations between the parties, which were subsequently reduced to an agreement under Ex.A1; that a part payment of consideration of Rs. 35,000/- was made; that the parties agreed to complete the sale transaction within a period of six months, since the property was occupied by a tenant at the time of Ex.A1; that it is true that there were earlier loan transactions between the parties, and the first appellant/defendant had borrowed moneys on different occasions, but on promissory notes; that it was the defendant who came forward to sell his property, since he was in need of money; that in view of the consensus between the parties, an agreement for sale under Ex.A1 was entered into; that the plea of the defendant that it was only a loan transaction and Ex.A1 was never intended to be acted upon was an after thought to defeat the rights of the plaintiff under Ex.A1 agreement; that it was the defendant, who came forward with a case contrary to the contents found in Ex.A1 agreement, and hence, the burden of proof lies on him to prove the same, but he has thoroughly failed to do so, and thus, the lower Court only on proper appreciation of evidence both oral and documentary has arrived at a correct conclusion and has granted a decree, and hence, the judgment of the trial Court has got to be sustained.” [Emphasis supplied]
22. Both these judgments had explained that once the signature is admitted by the defendants, the contents of the agreement cannot be gone into by the Court and the defendants who are disputing the contents of the sale agreement are duty bound to prove their contention. https://www.mhc.tn.gov.in/judis 14/27
23. Ms.M.Adhishree, learned counsel appearing for the respondents distinguished the judgment cited by the learned counsel for the appellant and the present case on the factual aspect that the defendants, in the case of M. Ramalingam (Died), by LRs v. V. Subramanyam (Died), by LRs reported in AIR 2003 Mad 305, had given all the original documents, whereas, in the present case, only Xerox copy of the document was given to the plaintiff.
24. Learned counsel for the respondents would contend that the other judgment relied on by the learned counsel for the appellant, in Jayalakshmi Ammal and Ors., v. Chinnasami Gounder reported in 2007 (1) CTC 449, reported in 2007 (1) CTC 449, is the case of coercion, whereas in the present case, the defendants denied the execution of sale agreement altogether and they have only affixed their signatures in blank papers, stamped papers and unstamped papers while availing loan from the husband of the plaintiff, and denied the execution of Ex.A1/agreement. Therefore, the citations relied upon by the learned counsel for the appellant is not relevant to the facts of the present case.
https://www.mhc.tn.gov.in/judis 15/27
25. Learned counsel for the respondents also relied upon the following judgments in the aspect of readiness and willingness. Relevant paragraphs of the said judgments are extracted hereunder:-
(a) Shenbagam and Others vs. KK Rathinavel reported in 2022 SCC Online SC 71
40. In KS Vidyanadam v. Vairavan16, an agreement to sell immovable property was entered into between the plaintiff-buyer and the defendant-seller for a consideration of Rs. 60,000, where earnest money of Rs. 5,000 had been paid in advance.
The agreement stipulated that the plaintiff had to purchase stamp papers and pay the balance amount within six months and call upon the defendants to execute the sale deed. The plaintiff filed a suit for specific performance after a lapse of two and a half years seeking performance of the contract. The Court held:
“10. It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immov- able property, time is not of the essence of the con- tract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two cir- cumstances, it does not follow that any and every suit for specific performance of the agreement (which does not provide specifically that time is of the es- sence of the contract) should be decreed provided it is filed within the period of limitation notwithstand- ing the time-limits stipulated in the agreement for do- ing one or the other thing by one or the other party. That would amount to saying that the time-limits pre-
https://www.mhc.tn.gov.in/judis 16/27 scribed by the parties in the agreement have no sig-
nificance or value and that they mean nothing. […] In this case, the suit property is the house prop- erty situated in Madurai, which is one of the major cities of Tamil Nadu. The suit agreement was in December 1978 and the six months' period specified therein for completing the sale expired with 15-6- 1979. The suit notice was issued by the plaintiff only on 11-7-1981, i.e., more than two years after the ex- piry of six months' period. The question is what was the plaintiff doing in this interval of more than two years? […] There is not a single letter or notice from the plaintiff to the defendants calling upon them to get the tenant vacated and get the sale deed executed until he issued the suit notice on 11-7-1981. It is not the plaintiff's case that within six months’, he pur- chased the stamp papers and offered to pay the bal- ance consideration.
[…]
13. In the case before us, it is not mere delay. It is a case of total inaction on the part of the plaintiff for 2½ years in clear violation of the terms of agreement which required him to pay the balance, purchase the stamp papers and then ask for execution of sale deed within six months. Further, the delay is coupled with substantial rise in prices — according to the defend-
ants, three times — between the date of agreement and the date of suit notice. The delay has brought about a situation where it would be inequitable to give the relief of specific performance to the plaintiff.” https://www.mhc.tn.gov.in/judis 17/27
(b) U.N.Krishnamurthy vs. A.M.Krishnamurthy reported in 2022 SCC OnLine SC 840
25. In Man Kaur v. Hartar Singh Sangha [Man Kaur v. Hartar Singh Sangha, (2010) 10 SCC 512 : (2010) 4 SCC (Civ) 239] , this Court held that : (SCC p. 531, para 40) “40. … A person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be per- formed by him (other than the terms the performance of which has been prevented or waived by the defendant) is barred from claiming specific performance. Therefore, even assuming that the defendant had committed breach, if the plaintiff fails to aver in the plaint or prove that he was al- ways ready and willing to perform the essential terms of contract which are required to be performed by him (other than the terms the performance of which has been prevented or waived by the plaintiff), there is a bar to specific per- formance in his favour. Therefore, the assumption of the re- spondent that readiness and willingness on the part of the plaintiff is something which need not be proved, if the plaintiff is able to establish that the defendant refused to ex- ecute the sale deed and thereby committed breach, is not correct. Let us give an example. Take a case where there is a contract for sale for a consideration of Rs 10 lakhs and earnest money of Rs 1 lakh was paid and the vendor wrongly refuses to execute the sale deed unless the pur- chaser is ready to pay Rs 15 lakhs. In such a case there is a clear breach by the defendant. But in that case, if the plaintiff did not have the balance Rs 9 lakhs (and the money required for stamp duty and registration) or the capacity to arrange and pay such money, when the contract had to be performed, the plaintiff will not be entitled to specific per- https://www.mhc.tn.gov.in/judis 18/27 formance, even if he proves breach by the defendant, as he was not “ready and willing” to perform his obligations.”
26. In Prem Raj v. DLF Housing Co. Construction (P) Ltd. [Prem Raj v. DLF Housing Co. Construction (P) Ltd., 1968 SCC OnLine SC 151 : AIR 1968 SC 1355] cited by Mr Venugo- pal, this Court speaking through Ramaswamy, J. held that :
(AIR p. 1357, para 5) “5. … It is well settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract.…” and if the fact is traversed, he is required to prove a continuous readiness and willingness from the date of the contract to the time of the hearing, to perform the contract on his part. For such conclusion the learned Judge relied upon the opinion of Lord Blanes- burgh, in Ardeshir Mama v. Flora Sassoon [Ardeshir Mama v. Flora Sassoon, 1928 SCC OnLine PC 43 :
(1927-28) 55 IA 360 at p. 372 : AIR 1928 PC 208] .
34. Even in a first appeal, the first appellate court is duty-bound to examine whether there was continuous readiness and willingness on the part of the plaintiff to perform the con-
tract. This proposition finds support from Balraj Taneja v. Sunil Madan [Balraj Taneja v. Sunil Madan, (1999) 8 SCC 396] and H.P. Pyarejan v. Dasappa [H.P. Pyarejan v. Dasappa, (2006) 2 SCC 496] where this Court approved the views taken by the Privy Council in Ardeshir Mama v. Flora Sassoon [Arde- https://www.mhc.tn.gov.in/judis 19/27 shir Mama v. Flora Sassoon, 1928 SCC OnLine PC 43 : (1927-
28) 55 IA 360 at p. 372 : AIR 1928 PC 208] .
45. It is settled law that for relief of specific performance, the plaintiff has to prove that all along and till the final decision of the suit, he was ready and willing to perform his part of the contract. It is the bounden duty of the plaintiff to prove his readiness and willingness by adducing evidence. This crucial facet has to be determined by considering all circumstances including availability of funds and mere statement or averment in plaint of readiness and willingness, would not suffice.
46. In this case, the respondent-plaintiff has failed to discharge his duty to prove his readiness as well as willingness to perform his part of the contract, by adducing cogent evidence. Acceptable evidence has not been placed on record to prove his readiness and willingness. Further, it is clear from the respondent-plaintiff's balance sheet that he did not have sufficient funds to discharge his part of contract in March 2003. Making subsequent deposit of balance consideration after lapse of seven years would not establish the respondent-plaintiff's readiness to discharge his part of contract. Reliance may be placed on Umabai v. Nilkanth Dhondiba Chavan [Umabai v. Nilkanth Dhondiba Chavan, (2005) 6 SCC 243] wherein this Court speaking through S.B. Sinha, J. held that deposit of amount in court is not enough to arrive at conclusion that plaintiff was ready and willing to perform his part of contract. Deposit in court would not establish plaintiff's readiness and willingness within meaning of Section 16(c) of Specific Relief Act. The relevant part of the judgment is reproduced below : (SCC p. 260, para 45) https://www.mhc.tn.gov.in/judis 20/27 “45. … Deposit of any amount in the court at the appellate stage by the plaintiffs by itself would not es- tablish their readiness and willingness to perform their part of the contract within the meaning of Sec- tion 16(c) of the Specific Relief Act.”
47. It is, therefore, patently clear that the respondent- plaintiff has failed to prove his readiness to perform his part of contract from the date of execution of the agreement till date of decree, which is a condition precedent for grant of relief of spe- cific performance. This Court finds that the respondent-plaintiff was not entitled to the relief of specific performance.
48. The respondent-plaintiff may have been willing to per- form his part of contract. It however appears that he was not ready with funds. He was possibly trying to buy time to dis- charge his part of contract.
49. In Bhavyanath v. K.V. Balan [Bhavyanath v. K.V. Balan, (2020) 11 SCC 790] cited by Mr Raju to contend that the re- spondent-plaintiff was entitled to relief of specific performance and the courts had rightly granted such relief, the plaintiff had filed the suit for specific performance three days after the last day for execution of the sale deed. In this case however, the re- spondent-plaintiff waited for nearly 3 years and filed the suit for specific performance just before expiry of the limitation period. Furthermore, in Bhavyanath v. K.V. Balan [Bhavyanath v. K.V. Balan, (2020) 11 SCC 790] the plaintiff had adduced cogent https://www.mhc.tn.gov.in/judis 21/27 evidence to prove his readiness and willingness to discharge his part of the contract and to prove that he had sufficient funds to discharge his obligation. No such evidence has been adduced by the respondent-plaintiff in this case either to show his readiness or to prove that sufficient funds were available with him to en- able him to discharge his part of contract. Therefore, Bhavy- anath v. K.V. Balan [Bhavyanath v. K.V. Balan, (2020) 11 SCC 790] is of no assistance to the respondent-plaintiff.
50. In view of foregoing, this Court is of the considered opinion that the respondent-plaintiff was not entitled to the relief of specific performance. The trial court and the High Court erred both in law and on facts in granting such relief.
(c) C.S.Venkatesh vs. A.S.C.Murthy reported in (2020) 3 SCC 280
15. The next question for consideration is in relation to compliance of Section 16(c) of the Act by the plaintiff. Though a question was raised before the trial court that there are no pleadings as regards the plaintiff's readiness and willingness to perform the contract, the trial court has rightly held that there is sufficient compliance of Section 16(c) of the Act to the extent of pleadings. Therefore, the question to be considered is whether the plaintiff was ready and willing to perform his part of the contract.
16. The words “ready and willing” imply that the plaintiff was prepared to carry out those parts of the contract to https://www.mhc.tn.gov.in/judis 22/27 their logical end so far as they depend upon his performance.
The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of performance. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of contract, the court must take into consideration the conduct of the plaintiff prior, and subsequent to the filing of the suit along with other attending circumstances. The amount which he has to pay the defendant must be of necessity to be proved to be available. Right from the date of the execution of the contract till the date of decree, he must prove that he is ready and willing to perform his part of the contract. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready to perform his contract.
17. In N.P. Thirugnanam v. R. Jagan Mohan Rao [N.P. Thirugnanam v. R. Jagan Mohan Rao, (1995) 5 SCC 115] , it was held that continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant of the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior to and subsequent to the filing of the suit along https://www.mhc.tn.gov.in/judis 23/27 with other attending circumstances. The amount of consideration which he has to pay to the defendant must necessarily be proved to be available.
18. In Pushparani S. Sundaram v. Pauline Manomani James [Pushparani S. Sundaram v. Pauline Manomani James, (2002) 9 SCC 582] , this Court has held that inference of readiness and willingness could be drawn from the conduct of the plaintiff and the totality of circumstances in a particular case. It was held thus: (SCC p. 584, para 5) “5. … So far these being a plea that they were ready and willing to perform their part of the contract is there in the pleading, we have no hesitation to conclude, that this by itself is not sufficient to hold that the appellants were ready and willing in terms of Section 16(c) of the Specific Relief Act. This requires not only such plea but also proof of the same. Now examining the first of the two circumstances, how could mere filing of this suit, after exemption was granted be a circumstance about willingness or readiness of the plaintiff. This at the most could be the desire of the plaintiff to have this property. It may be for such a desire this suit was filed raising such a plea. But Section 16(c) of the said Act makes it clear that mere plea is not sufficient, it has to be proved.” https://www.mhc.tn.gov.in/judis 24/27
26. While examining the judgments passed by the Courts below, it is clear that the sale agreement marked as Ex.A1 by the appellant, which is the basis for seeking the relief of specific performance of contract itself is found with many discrepancies. The Courts below have clearly pointed out that the scrampling found in the second page of Ex.A1 sale agreement has created a serious doubt that the recitals in Ex.A1 has been typed after obtaining signatures/thumb impressions from the defendants for the purpose of obtaining loan. The forged sale agreement is created to grab the property of the respondents. Though, the genuineness of Ex.A1 sale agreement has been questioned before the Courts below, the appellant is not in a position to prove the genuineness of the sale agreement relied upon by her to pray for specific performance of contract and the alternative relief of refund of advance sale consideration.
27. It is pertinent to note that the payment of advance amount by the appellant was not proved through documentary evidence. Therefore, this Court is of the view that the Courts below have properly appreciated the oral and documentary evidence produced by the appellant and rightly rejected the relief sought for by the appellant. The appellant has failed to establish her case https://www.mhc.tn.gov.in/judis 25/27 before the Courts below and the appellant is not entitled to the reliefs sought for in the suit.
28. As per the records, at the time of admission of the Second Appeal, this Court has only issued notice to the respondents and the Second appeal was not admitted on any substantial question of law. The Hon'ble Supreme Court of India, has time and again held that this Court shall not embark to interfere in the judgment of the First Appellate Court in the absence of any substantial question of law to be decided in the Second Appeal. The case on hand arises out of concurrent finding of both the courts below on facts. This Court has not admitted the Second Appeal.
29. In view of the above, the Second Appeal is dismissed. The judgment and decree in A.S.No.131 of 2012 dated 02.04.2013 passed by the learned Principal District Judge, Erode is hereby confirmed. No costs. Consequently, the connected miscellaneous petition is also closed.
17.10.2024 Index :Yes/No Speaking/Non-Speaking Order Neutral Case Citation : Yes/No klt https://www.mhc.tn.gov.in/judis 26/27 N.SENTHILKUMAR, J.
klt To:
1. The Principal District Judge, Erode.
2. The Subordinate Judge, Gobichettipalayam.
3. The Section Officer, V.R.Section, High Court of Madras.S.A. No.756 of 2013
and M.P.No.1 of 2013 17.10.2024 https://www.mhc.tn.gov.in/judis 27/27