Madras High Court
Tmt.Kanjana Baskaran (Deceased) vs R.Sundaram on 14 August, 2023
Author: R.Subramanian
Bench: R.Subramanian
2023:MHC:3768
A.S.No.4 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 31.07.2023
Pronounced on : 14.08.2023
CORAM
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE MRS.JUSTICE R.KALAIMATHI
A.S.No.4 of 2014
and
M.P.No.1 of 2014
1.Tmt.Kanjana Baskaran (Deceased) ... Appellant
2.M.Baskaran
3.Shiny Thadalil
4.Shailesh Baskaran
[Appellants 2 to 4 brought into record
as legal representatives of the deceased
1st appellant vide Court Order
dated 15.07.2021 passed in
C.M.P.No.8830 of 2020 in
A.S.No.4 of 2014 (MMSJ & RNMJ)
Versus
1.R.Sundaram
2.Seshasalraj ... Respondents
PRAYER : Appeal is filed under Section 96 of C.P.C., against the
Judgment and Degree of the learned IV Additional District and Sessions
Judge, Coimbatore in O.S.No.301 of 2010 dated 11.10.2013.
For Appellants : Mr.S.Parthasarathy
Senior Counsel
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for Mr.E.Martin Jayakumar
For Respondents : Mr.S.Doraisamy
Senior Counsel
for Mr.Kandhan Doraisamy
JUDGMENT
(Judgment was delivered by R.KALAIMATHI, J.,) Being aggrieved by the Judgment and Decree passed in O.S.No.301 of 2010, dated 11.10.2013, on the file of the IV Additional District and Sessions Court, Coimbatore, the sole defendant therein has preferred this appeal.
2. One Sundaram and Sheshasalraj filed a suit for specific performance to direct the defendant to execute the sale deed after receiving the balance sale consideration or in the alternative to direct the defendant to pay the plaintiffs a sum of Rs.45,00,000/- paid by them under the sale agreement dated 08.12.2009 together with interest at the rate of 18% per annum from 07.03.2010 till date of realisation and for permanent injunction, restraining the defendant from in any manner encumbering or alienating the suit property in favour of any third parties suppressing the sale agreement dated 08.12.2009, in favour of the plaintiffs and for costs.
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3. The learned Trial Judge after hearing both sides and upon consideration of oral and documentary evidence has decreed the suit for specific performance granting 3 months time for payment of balance amount and for execution of sale deed. Against this judgment, the defendant Smt.Kanchana Baskaran has preferred this appeal.
4. The leanred Senior Counsel Shri.S.Parthasarathy appearing for the appellant / defendant would vehemently contend that with regard to the suit property she entered into a sale agreement with the plaintiffs on 08.12.2009 fixing the sale consideration at Rs.75,00,000/- and on the date of sale agreement, an amount of Rs.25,00,000/- was received as an advance and at the instance of the plaintiffs, on 07.03.2010, an amount of Rs.20,00,000/- was paid. Three months time was fixed for sale. Therefore, the plaintiffs did not come forward to pay remaining sale consideration within the stipulated time as per the terms of the agreement. The further argument of the learned counsel for the appellant is that at the behest of the plaintiffs, a months time was extended to mobilize funds. The learned counsel would stress upon the fact that the plaintiffs' claim that the existene of 33 feet road which runs towrds north of the property and the 10 feet pathway which situate to the south of the suit property came to be known to him at a later point of 3/19 https://www.mhc.tn.gov.in/judis A.S.No.4 of 2014 time, are baseless as he has admitted during the cross examination to the effect that these details were known to him before entering into the sale agreement. The learned Senior Counsel Shri.S.Parthasarathy would further contend that it was only the defendant who issued the notice by way of telegram dated 16.04.2010, cancelling the agreement. As the address given was not correct, he issued a pucca notice on 21.04.2010 cancelling the suit sale agreement. Therefore, the plaintiffs did not stick on to the time stipulated as per the terms of the agreement and they were not at all ready and willing to perform their part of the contract and sought for setting aside the judment and decree of the trial Court.
5. To buttress his arguments, the following judgments were referred to :
i) The observations made by the Division Bench of this Court in Pachaiappan and two others v. S.P.Koon Mari reported in 1996-2-
LW-1, wherein, it has been held that a principle that the equitable relief of specific performance cannot be granted to a person who is put forward a false case is based on the doctrine of one who seek equity must do equity. But, the question whether the plaintiff is dis-entitled to claim the relief will depend on the facts of each case. 4/19 https://www.mhc.tn.gov.in/judis A.S.No.4 of 2014 Based on the above said proposition, the learned Senior Counsel would strongly contend that the relief sought for in the plaint is one for specific performance and the plaintiffs having put-forth false pleas as mentioned supra, are not entitled for the reliefs sought for.
ii) In Ramaswamy Gounder v. Venkatachalam and others reported in 1975 TLNJ 434, this Court has held that the plaintiff would not be entitled to the grant of the discretionary relief of specific performance in view of his conduct namely denying his own averments made in the plaint and ultimately the decree granted in the suit was set aside by allowing the appeal.
iii) A Division Bench of this Court in Arunachala Mudaliar v. Jayalakshmi Ammal and another reported in 2003 (1) CTC 355, it has been held that the plaintiff has not withdrawn the cases that he had agreed in Ex.A7 to withdraw. The recitals in Ex.A7 that she was to be in possession have been found to be false. The case of trespass on 25.04.1982 is also false. The presence of second defendant at the time of Ex-A7 did not find acceptance. It is true that not all false statements dis-entitle the suitor who comes to Court for specific performance, but in this case, the variance from truth is not negligible and on several material particulars the plaintiff's case has been found to be false. 5/19 https://www.mhc.tn.gov.in/judis A.S.No.4 of 2014
6. Per contra, the learned Senior Counsel appearing for the respondents/plaintiffs, Shri.S.Doraisamy, would vehemently argue that the sale consideration was fixed at Rs.75,00,000/-. On the date of sale agreement and on 07.03.2010, an amount of Rs.25,00,000/- and Rs.20,00,000/- respectively were received by the defendant. It is his argument that at the time of execution of the sale agreement, the defendant did not disclose about the 10 feet pathway situate on the southern side of the east-west property. So also the 33 feet east-west road situate on the northern side of the suit property has been fenced by the defendant. He would further contend that the plaintiffs were ready and willing to perform their part of the contract, it is he who sent the legal notice calling upon the defendant to execute the sale deed. It was further contended that the claim of the defendant that she was waiting in the Sub-Registrar Office, Gandhipuram for three days is false and put- forth for the purpose of the case and as the defendant was never ready to perform her part of the contract and prayed for dismissal of the appeal.
7. Heard the rival submissions of the learned Senior Counsel appearing for both sides and perused the materials available on record. 6/19 https://www.mhc.tn.gov.in/judis A.S.No.4 of 2014
8. At trial, to substantiate the claim of the plaintiffs, 1st plaintiff R.Sundaram has been examined as PW1. The first attesting witness in the suit sale agreement Mr.K.N.C.Rajendar, has been examined as PW2. One S.Nimalasamy and one Shanmugasundaram, son of the 1st plaintiff R.Sundaram were examined as PW3 and PW4 respectively. Exs.A1 to A16 have been marked. Sale agreement Ex.A1, Telegram issued by the defendant to the plaintiffs on 16.04.2010 – Ex.A4, reply for the same (Copy) dated 21.04.2010-Ex.A5, Office Copy of legal notice issued on behalf of the plaintiffs to the defendant – Ex.A7 and the reply for the same - Ex.A8 have been marked. On the side of the defendant, the defendant - Tmt.Kanchana Baskaran and her husband Mr.Baskaran have been examined as DW1 and DW2 respectively. Exs.B1 to B4 have been marked. Telegram has been marked as Ex.B1.
9. Based on both sides pleadings, the following issues were framed by the trial Court:
1) Whether the plaintiffs are entitled for Specific Performance as prayed for?
2) Whether the Plaintiffs are entitled for Permanent Injunction as prayed for?
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3) Whether the plaintiffs are entitled for alternative relief as prayed for?
4) Whether the plaintiffs are ready and willing to perform their part of contract by paying the balance sale consideration of Rs.30,00,000/-?
5) To what other relief?
10. The execution of sale agreement dated 08.12.2009 - Ex.A1 and the receipt of Rs.20,00,000/- on 07.03.2010 and the endorsement found in the sale agreement are not in dispute. To put it in nutshell, the arguments of the learned Senior Counsel appearing for the appellant is two fold:
(i) It was the defendant who issued a notice through telegram at the first instance which shows that the plaintiffs were not ready and willing to perform their part of the contract.
(ii) The 1st plaintiff has spoken falsehood to the effect that he came to know about the 10 feet east-west pathway running on the southern side of the suit property and the 33 feet east-west road situate on the northern side of the suit property has been fenced by the defendant are belied by his answers given during his cross-examination. 8/19
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11. Based on the afore mentioned details, the following points have arisen for consideration:
(i) Whether the plaintiffs were not ready and willing to perform their part of the contract since it was the defendant who issued the legal notice by way of telegram is correct or not?
(ii) Whether the fact that the plaintiffs have come to know about the 10 feet pathway runs on the southern side of the suit property and 33 feet road situate on the northern side of the suit property, details were known to him at the later point of time would amount to putting forward a false case which dis-entitle him for claiming relief of specific performance is to be accepted or not?
Pont No.1:
12. From a close perusal of sale agreement dated 08.12.2009, it appears that the defendant has executed the sale agreement in favour of the plaintiffs in respect of the property situate in :
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,jd; kj;jpapy; g[/V/0/79 1-2 tp!;jPuz';bfhz;l g[";ir tptrha khdhthup g{kpa[k; nkw;go g{kpf;Fz;lhd khK:y; tHpeil ghj;jpa';fSk; tz;o thfdhjpfs; brYj;jp g[H';fpf; bfhs;Sk; bghJ cgnahfg; ghj;jpa';fSk; rfpjj;jpy;. ek;kpy; 1tJ ghh;oahd fh";rdh gh!;fud; mth;fs; tpl;Ls;s 33 mo mfy nuhl;ow;Fk; bjd;g[w gFjpahd g[/V/0/50 brz;l; tp!;jPuz';bfhz;l g[";ir tptrha khdhthup g{kp kl;Lk; ,e;jf; fpiua xg;ge;jj;jpw;Ff; fl;Lg;gl;lJ/ For a sale consideration of Rs.75,00,000/-, stipulated time to execute the sale agreement was fixed three months and one week namely 08.12.2009 to 15.03.2010 and on the date of the sale agreement, an amount of Rs.25,00,000/- was paid as an advance by the 10/19 https://www.mhc.tn.gov.in/judis A.S.No.4 of 2014 plaintiffs to the defendant herein. It is also not in dispute that on 07.03.2010, an amount Rs.20,00,000/- was paid by the plaintiffs to the defendant towards sale consideration. PW1 contends that at the instance of the defendant only, he paid the said amount, whereas the defendant alleges otherwise. The relevant payment endorsement is found in the reverse page of 1st paper of Ex.A1.
13. In a suit for specific performance, the basic principle of law is that in order to succeed and to enable the plaintiffs to get entitled to the relief of specific performance of contract, plaintiff must aver or prove that he is continuously ready and willing to perform his part of the contract, since the date of agreement till the date of hearing of the suit. Therefore, the burden lies on the plaintiffs to prove the fact. It is also interesting to note that it is really the evidence that has to be appreciated and it may be oral, documentary or circumstantial and which may also be the evidence coming out of the conduct of both the parties which may have to be looked into.
14. The learned Senior Counsel Shri.S.Parthasarathy, appearing for the appellant drew our attention to the fact that as per law, the plaintiffs should plead and prove that they were ever ready and willing to 11/19 https://www.mhc.tn.gov.in/judis A.S.No.4 of 2014 perform their part of the contract. However, it is only the defendant who issued legal notice at the first instance in the form of telegram vide Ex.A4. Therefore, his further argument that it can easily be construed that the plaintiffs were not ready and willing to perform their part of the contract. Therefore, on that ground alone, the appeal has to be allowed.
15. As rightly pointed out by the learned Senior Counsel, it is the defendant who had sent the telegram at the first instance to the plaintiffs which was marked as Ex.A4. The details of the said telegram is extracted hereunder:
''SIR, I AM WAITING AT SUB REGISTRAR OFFICE, GANDHIPURAM TO EXECUTE SALE DEED AS PER THE AGREEMENT OF SALE DATED 08.12.09 FOR THE PAST THREE DAYS YOU FAILED TO PERFORM YOUR PART OF CONTRACT. THE SALE AGREEMENT STANDS CANCELLED AND THE ADVANCE AMOUNT FOREFEITED.
= B.KANCHANA W/O BASKARAN 251 FACT COLONY NEV SIDDHAPUDUR COIMBATORE=''
16. This was sent on 16.04.2010. For the said telegram, on 21.04.2010, the plaintiffs herein have sent a reply notice stating that they are ready to perform their part of the contract and requested to fix a 12/19 https://www.mhc.tn.gov.in/judis A.S.No.4 of 2014 convenient date within one week for execution of sale deed vide Ex.A5. On the same day, it appears that the plaintiffs have also caused legal notice calling upon the defendant to execute the sale deed after receiving the remaining sale consideration (Ex.A7), for which, the the reply notice was sent by the defendant dated 24.04.2010 through Ex.A8. Therefore, it is crucial that whether Ex.A4 telegram is to be construed as the legal notice which was issued by the defendant at the first instance or not.
17. With regard to the same, DW1-Smt.Kanchana Baskaran has stated as follows :
''24/04/2010 md;W thjpfs; vdf;F fhl;lg;gLfpd;w mwptpg;g[ mDg;gpapUf;fpwhh;fs; vd;W brhd;dhy; mJ vdf;F fpilf;ftpy;iy /// ,e;j je;jpia mDg;gpaJ ehd;jhd; ///''.
18. Whereas her husband Sri.Baskaran DW2 has stated that :
''fpua xg;ge;jj;jpy; fhy bfL Koe;j gpwFjhd; vd; kidtp je;jp mDg;gpdhu;/ thjp 13/19 https://www.mhc.tn.gov.in/judis A.S.No.4 of 2014 bfhLj;j gjpy; mwptpg;gpy; gpwF v';fs; tHf;fwp"h; bfhLj;j je;jp gw;wp vdf;F bjhpa[k;''.
19. Therefore, from the evidence of DW2-Baskaran, husband of the defendant that the telegram namely Ex.A4 was sent to the 1st plaintiff only by her counsel and not by the defendant. The total consideration is Rs.75,00,000/-. On the date of sale agreement, on 08.12.2009, an amount of Rs.25,00,000/- was paid by the plaintiffs to the defendant as an advance. On 07.03.2010, an amount of Rs.20,00,000/- was paid by the plaintiffs. Time is fixed till 15.03.2010. Suit was filed on 30.03.2010. More than 50% of the amount was paid by the plaintiffs. In view of the answer given by DW2 as mentioned supra, the claim that it was the defendant who sent the legal notice at the first instance is proved to be untrue. Therefore, viewing from all angles, we are of the considered opinion that the plaintiffs have proved that they were willing to perform their part of the contract and this point is answered accordingly.
Point No.(ii):
20. Whether the fact that the plaintiffs have come to know about the 10 feet pathway running on the southern side of the suit property 14/19 https://www.mhc.tn.gov.in/judis A.S.No.4 of 2014 and 33 feet road situate on the northern side of the suit property, details were known to him at the later point of time would amount to putting forward a false case which dis-entitle him for claiming relief of specific performance is to be accepted or not.
The above said details have been mentioned in the reply notice sent by the plaintiffs in Ex.A5 itself.
21. It is the case of the plaintiffs that the existence of 10 feet wide east-west road which runs on the southern side of the property was suppressed by the defendant and a mention is made about the fencing of 33 feet wide east-west road situate on the north of the suit property. In the legal notice, it is mentioned that these two details were known to the plaintiffs only at the later point of time and not on the date of execution of sale agreement (Ex.A1). Whereas, when the details of cross-examination of PW1 is seriously gone into, one can easily understand that PW1 had the knowledge about these two aspects even before the date of execution of the sale agreement. Now the crucial question is whether this would dis-entitle the plaintiffs from getting the relief of specific performance as it is equity based relief. 15/19 https://www.mhc.tn.gov.in/judis A.S.No.4 of 2014
22. The principle that the equitable relief of specific performance cannot be granted to a person who has put forward a false case is based on the doctrine that one who seeks equity must do equity. In this case, the plaintiffs have not set up a false claim. More so, though we find some variance in the evidence of PW1 that alone will not dis-entitle him to get the relief of specific performance. Our opinion is strengthened by the observations made by this Court in Pachaiappan and two others v. S.P.Koon Mari reported in 1996-2-LW-1, wherein the Division Bench of this Court has observed that if in a particular case, the false claim set up by the plaintiff is immaterial and does not affect the main case in any manner, Court shall not refuse the relief.
23. As long as the version put-forth by the plaintiffs even if it is false, if it is not lead to any injustice, he is entitled to the relief prayed for. To put it in other way, if the falsity impinges on the essential ingredients, then only it affects the plaintiffs case. Even assuming that the plaintiffs had knowledge about the above two issues even before the date of execution of sale agreement and they have stated that they came to know about the same after the date of execution of sale agreement the same cannot be construed as affecting material particulars of the contract and this point is answered accordingly. 16/19 https://www.mhc.tn.gov.in/judis A.S.No.4 of 2014
24. In fine, we are of the considered opinion that the plaintiffs were ready and willing to perform their part of the contract and they have proved the same satisfactorily. In the result, they are entitled to the relief of specific performance.
25. Based on the aforesaid observations, this appeal is dismissed with costs. Consequently, connected miscellaneous petition is closed.
[R.S.M., J.,] [R.K.M., J.,]
14.08.2023
Index : Yes / No
Internet : Yes / No
Neutral Citation : Yes / No
Speaking Order / Non-Speaking Order
ssn
To
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A.S.No.4 of 2014
IV Additional District and Sessions Judge,
Coimbatore.
R.SUBRAMANIAN, J.,
and
R.KALAIMATHI, J.,
ssn
Pre-delivery Judgment in
A.S.No.4 of 2014
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A.S.No.4 of 2014
and
M.P.No.1 of 2014
14.08.2023
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