Madras High Court
Guruswami Gounder vs Kesava Reddiar And Anr. on 3 November, 1995
Equivalent citations: (1996)2MLJ461
ORDER Raju, J.
1. Second defendant is the appellant in the above second appeal. First respondent herein has filed O.S.No. 510 of 1980 on the file of the Sub-Court, Gobichettipalayam seeking for specific performance of an agreement of sale entered into between the second respondent in this appeal and the first respondent-plaintiff on 23.10.1978 for the sale of the suit schedule property. The case of the plaintiff was that the second respondent herein has agreed to sell the property in question on 23.10.1978 to the plaintiff for consideration of Rs. 18,100 that various amounts were paid on the dates set out in detail in the plaint, that a balance of Rs. 8,100 was due towards the sale consideration, that the plaintiff was ready and willing to perform his part of the contract, that for a sum of Rs. 4,000 that was paid on 29.4.1979, there was no endorsement on the agreement, that even if the court comes to the conclusion that there is no proof for payment of the said sum of Rs. 4,000 the plaintiff is prepared to deposit the said amount also on a direction given by the court and that in spite of the readiness and willingness of the plaintiff to purchase the property, the second respondent has sold the property to the appellant, which necessitated the filing of the suit for specific performance.
2. The defendants contested the claim on several grounds.
3. After trial and after considering the oral and documentary evidence on record, the learned Subordinate Judge, Gobichettipalayam, in his judgment dated 17.10.1981 held that the suit agreement between the plaintiff and the first defendant was true, valid and banding on the second defendant also, that the second defendant is not a bona fide purchaser without notice of the suit agreement, that the petition alleged to have taken place between the first defendant and the second defendant was not true and that the suit agreement Ex.A-1, could be enforced against the defendants. On an additional issue framed as to whether the plaintiff could be said to have been ready and willing to perform his part of the contract, though the trial court held that there was no slackness on the part of the plaintiff to perform his part of the contract and that he was ready and willing, it also held that the claim of the plaintiff that he paid Rs. 4,000 on 29.4.1979 cannot be held to be true. Finally, the suit was decreed as prayed for on condition that the plaintiff should deposit the balance of sale consideration of Rs. 8,100 in ten days, with the usual stipulation normally and necessarily to be included in a decree for specific performance.
4. Aggrieved, the second defendant filed the appeal in A.S.No. 144 of 1981 before the District Court, Erode District at Erode. The learned District Judge also had gone into the matter at considerable length and detail formulating the necessary points to be adjudicated in the appeal. While confirming the judgment and decree of the trial court, the lower appellate court held that the plaintiff was ready and willing to perform his part of the contract and as such he is entitled to specific performance sought for and the second defendant-appellant before the lower appellate court cannot be considered to be a bona fide purchaser without notice of the suit agreement of sale in favour of the plaintiff. The lower appellate court ordered only modification of the decree to the extent that the amount to be deposited by the plaintiff towards the balance of consideration is due to the second defendant and not to the first defendant. Hence, the second appeal by the second defendant in the suit, who was unsuccessful before the courts below:
5. At the time of admitting the second appeal, it was considered necessary to deal with the question as to whether the courts below could be said to have committed an error in holding that the time was not the essence of the contract under Ex.A-1, that whether the second defendant was not a bona fide purchaser and that whether the courts below were right in decreeing the suit in spite of the finding that the plaintiff had not tendered the sum of Rs. 4,000 on 29.4.1979 as claimed by the plaintiff.
6. Mr. N. Thiagarajan, learned Counsel appearing for the appellant, apart from dealing with the merits of the contentions generally, also contended that on the very finding recorded by the courts below that the claim of the plaintiff that he had paid a sum of Rs. 4,000 on 29.4.1979 cannot be true, they committed an error in decreeing the suit for the specific performance and that the plaintiff, who according to the learned Counsel for the appellant, has not come to court with clean hands to seek the discretionary and equitable relief of specific performance, ought to have been denied the relief on account of the contumacrous conduct of pleading falsely the payment of a sum of Rs. 4,000 towards the part of the sale consideration itself. The learned Counsel, in order to support the said plea, has relied upon the decision in S.S. Chockalingam v. R.B.S. Mani (1994) 1 L.W. 321 and decision in S. Sankaran v. N.G. Radhakrishnan (1994) 2 L.W. 642.
7. The decision in S.S. Chockalingam v. R.B.S. Mani, (1994)1 L.W. 321 while dealing with the claim arising out of a suit for specific performance has dealt with this aspect in paragraphs 24 and 25 and it was held as hereunder.
It is not necessary to refer to the evidence of the respondents as the evidence of the appellant is wholly unsatisfactory. It is clear from what we have stated above that the appellant has never been ready and willing to perform his part of the contract. It is well settled that a person cannot claim the relief of specific performance unless he proves his readiness and willingness to perform his part of the contract, (vide H.O. Krishna Reddy & Co. v. M. Thimmiah A.I.R. 1983 Mad. 169 : 86 L.W. 88. It is also seen that the appellant has come to court with a false case that no time-limit was fixed for completion of the transaction and that he was permitted to pay the amounts in driblets. We have already referred to the letters which show that the appellant himself fixed the time limit and the respondents gracefully agreed for such extensions. In spite of such extensions, the appellant failed to perform his part of the contract. It is also seen that the appellant has put forward a false case that there was a panchayat. There is no evidence whatever to substantiate that case.
As regards the character of possession the appellant has again chosen to deny the tenancy. In fact, in the written statement filed by him in O.S.No. 3 of 1987 he has categorically asserted as follows:
This defendant specifically denies having executed a letter of tenancy either in favour of the plaintiffs or their vendor.
This written statement was filed on 26.3.1982. Six months latter, he has filed the suit for specific performance on 23.9.1982. Once again he has reiterated that there was no tenancy and he is in possession only pursuant to the contract of sale. That case is classified by the admission that there was a tenancy agreement before the agreement for sale. Thus, the appellant is guilty of making a false plea. It is well known that a person who has come to court with a false case is not entitled to the equitable relief of specific performance. Vide G. Chelliah Nadar (Died) and 4 Ors. v. Periaswamy Nadar and 3 others (1993) 2 L.W. 84 and Nallaya Gounder and another v. P. Ramaswami Gounder and others (1993) 2 L. W. 86.
8. In Sankaran v. N.G. Radhakrishna (1994) 2 L.W. 642, a Division Bench considered similar issue in paragraph 13 and held as hereunder:
We further find that the plaintiff has not come forward with clean hands. He was fully aware of the circumstances under which Ex.A-12 was executed. But in spite of the same, he has come forward to get a decree for specific performance in his own terms. The appellant, even in his reply as evidence by Ex.A-9 has offered to pay the entire amount due from him. In para 13 of Ex.A-9 he has offered to pay Rs. 30,000 with interest at 24% after adjusting the rent and electricity charges due to him. In that reply he had explained the circumstances under which he had to execute Ex.A-12 deed dated 1.3.1980. Long thereafter, the plaintiff has instituted the suit insisting on getting specific performance, there is no evidence in this case whether the plaintiff has paid Rs. 1,500 as alleged by him on 6.8.1980 and we also find that the averments in the notice and the plaint are inconsistent. He says in Ex.A-4, dated 9.7.1981 that he is occupying the portion of the building not as a tenant but as its owner. The said statement even according to the admitted case of the plaintiff cannot be true. Ex.A-12 does not say anything about the handing over possession of the building or that the relationship that existed on that date has changed. The claim that he is the owner of the suit house and that the is not liable to pay rent is false to his own knowledge. The allegation that the appellant has agreed to hand over possession of the first floor after evicting the tenant (para 7 of the plaint) is also not seen in Ex.A-12. Likewise there is no evidence in this case to show that the appellant has agreed to pay the amount which he borrowed from one Narasimhalu Chetty. After getting voluntary assignment of the promissory note, the plaintiff wants that case also to be settled. We do not find any justification in granting relief of specific performance especially when the plaintiff has come forward with false claim. It is settled by this Court in K. Krishnan Nair and three others v. V.K. Parameswaran Pillai and 23 others. (1993) 2 L. W. 411 that when the plaintiff has not come to ' court with clean hands, but put forward false case, he is not entitled to get specific performance. It is also held therein that the suit is not maintainable if the plaintiff wants to enforce a contract different from what was entered into between the parties. The same is the rule in Nallayya Gounder and another v. P. Ramaswami Gounder and three others (1992) 2 L.W. 86 where it was held that the false claim will disentitle the plaintiff from getting performance. Utmost good faith and honesty is expected from the parties who want the discretion of court to be exercised in his favour. We have meticulously considered all facts and circumstances of the case. The court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter the judicial verdict. The court is bound to see that it is not used as n instrument of oppression to have an unfair advantage to the plaintiff. If specific performance is allowed, the plaintiff will be getting an unfair advantage.
9. A careful consideration of the conclusions arrived at by the learned judges of the two Division Benches in the decisions cited supra, would go to show that the respective plaintiffs who approached the competent court in those cases have found to have not only pleaded false cases but tried to get a decree for specific performance of agreement in varied form (S.S. Chockalingam v. R.B.S. Mani. (1994) 1 L.W. 321) and that the plaintiffs attempted to plead part satisfaction of the consideration relying upon materials and liabilities totally unconnected with the suit agreement. Though there can be no dispute with reference to the position of law that good faith and honesty are expected from parties, who want discretion of the court to be exercised in their favour, and that too, in exercise of jurisdiction in equity, there is no comparison of the cases which were under consideration of the learned judges of the Division Benches referred to supra with the case before me. It is not every incorrect case pleaded or plea made and rejected by the courts that recoils on the plaintiff to be dubbed and castigated as having come with a false case or unclean hands to seek an equitable remedy available in the discretion of the court. It should depend upon the facts of each case and the peculiar circumstances substantiated in a particular case before court and there can be no standardised formula to uniformly deal with the plea in all matters. As noticed earlier, during the course of narration of facts, it is seen that though the plaintiff pleaded that a sum of Rs. 4,000 has been paid on 29.4.1979 without obtaining a receipt or endorsement therefor, he has also stated that if the court is not satisfied with the claim of such payment on that particular date, the plaintiff was ready and willing to deposit that amount also. In the context of the said plea and the conduct of the plaintiff, there is no scope for condemning the plaintiff as having come with unclean hands or with a false case merely because he could not establish his plea of payment on that particular date. In this view of the matter, I am unable to agree with the learned Counsel for the appellant that the plaintiff should be denied the relief of specific performance on the ground of his alleged approach to the court with unclean hands.
10. So far as the other contentions on merits are concerned, I have been taken through the judgments of both the courts below by the learned Counsel on either side in support of their respective standpoint. In my view, the court below have properly appreciated the oral and documentary evidence in their correct perspective in coming to the conclusion that the appellant was not a bona fide purchaser without notice of the suit agreement, that the suit agreement was legal and valid and binding on the defendants and that the plaintiff was always ready and willing to perform his part of the contract and therefore, he is entitled to the decree as prayed for. When such findings are concurrently recorded on a correct appreciation of facts and when the conclusion so recorded concurrently are not also shown to be vitiated by any patent error of law or perversity of approach, there is no scope for interference in this appeal. I do not see any merit whatever in the challenge to the well considered findings concurrently recorded by both the courts below. The second appeal, therefore, fails and shall stand dismissed. There will be no order as to costs.