Madras High Court
Chitra Finance Agencies vs Kalimuthu on 2 September, 2014
Author: Pushpa Sathyanarayana
Bench: Pushpa Sathyanarayana
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.09.2014
Coram:
The Hon'ble Mrs. Justice PUSHPA SATHYANARAYANA
Second Appeal No.860 of 2006
Chitra Finance Agencies
by its Proprietrix,
Jothi Ammal,
W/o.Dhanavel,
Vadalur-Panruti Road,
Vadalur. ... Appellant/Appellant/
Plaintiff
vs.
1.Kalimuthu
2.Thilagavathi ... Respondents/Respondents
Defendants
Second Appeal is filed under Section 100 of the Code of Civil Procedure against the Judgment and Decree dated 08.11.2005 passed in A.S.No.120 of 2004 on the file of the Principal District Judge, Cuddalore, confirming the Judgment and Decree dated 24.9.2004 passed in O.S.No.272 of 2002 on the file of the I Additional Subordinate Judge, Cuddalore.
For Appellant : Mrs.R.Meenal
For 1st
Respondent : Mr.G.K.Ilanthirayan
For 2nd
Respondent : Mr.R.Sunil Kumar
=============
JUDGMENT
The Second Appeal is filed against the against the Judgment and Decree dated 08.11.2005 passed in A.S.No.120 of 2004 on the file of the Subordinate Judge, Cuddalore, confirming the Judgment and Decree dated 24.9.2004 passed in O.S.No.272 of 2002 on the file of the I Additional Subordinate Judge, Cuddalore..
2.The plaintiff is the appellant herein and the defendants are the respondents herein. The plaintiff, who has lost before both the Courts below filed a suit in O.S.No.272 of 2002 for specific performance.
3.The brief facts that led to the filing of the suit are as follows:
There was an agreement of sale dated 19.9.2001 entered into between the plaintiff and the first defendant. As per the said agreement, the first defendant agreed to sell the suit property in favour of the plaintiff for a sum of Rs.5,00,000/- and the first defendant also received a sum of Rs.3,00,000/- as advance and the parties agreed to execute the sale deed within nine months of the said sale agreement. The plaintiff also agreed to pay the balance sale consideration of Rs.2,00,000/- within a stipulated period and to get the sale deed executed in her favour. As the first defendant was not ready and willing to receive the balance sale consideration and execute the sale deed, the plaintiff issued a lawyer's notice dated 2.5.2002 and thereafter, filed a suit for specific performance.
4.Per contra, the respondents/defendants therein contested the suit by filing separate written statements. The first respondent/first defendant filed a separate written statement wherein it is stated that the alleged sale agreement dated 19.9.2001 was rank forgery and the same was never agreed upon by both the parties to sell the suit property, which was alleged to have been reduced into sale agreement. The first defendant also denied that he had received a sum of Rs.3,00,000/- under the said sale agreement. It was contended by the first defendant that he was doing business in limestone. As he shifted his business from there, he sold the suit property to the second defendant. In respect of the suit property one Kannan filed appeal No.1 of 1993 before the District Registrar, Cuddalore alleging that the first defendant's father executed the sale deed. Ultimately, the appeal was dismissed on 14.12.2001. When such proceeding was pending, the agreement could not have been entered into between the parties. The second defendant was a bona fide purchaser for value without notice of any defect in title. It was further contended by the first defendant that the plaintiff was having finance business and it was carried over by her husband. The first defendant was in the habit of borrowing money now and then. At the time of borrowing the money, the plaintiff and her husband used to get signatures on blank papers and also on papers affixed with stamps. The plaintiff used one such paper and fabricated the said sale agreement. On 12.05.2001, the first defendant borrowed money from the plaintiff and it was repaid. However, the signed papers, which were obtained by the plaintiff for the said transaction, were not returned to the first defendant. Therefore, the first defendant contended that the plaintiff had not come to the Court with clean hands. Hence, the suit has to be dismissed.
5.The second defendant, who is the purchaser from the first defendant also had filed the written statement alleging that she was not aware of the sale agreement. The father of the first defendant Pakkiri Padayachi purchased 0.06 cents of land in old Survey No. 636/1 (New Survey No.31/3) under the sale deeds dated 9.10.1985 and 19.10.1987. After the death of the said Pakkiri Padayachi, his wife Rajambal Ammal and daughter Palani Ammal had executed a registered deed in favour of the first defendant for valid consideration. Later, the first defendant and his elder brother Kathirvel had divided the properties by a registered partition deed dated 28.3.2001. As per that, B schedule property therein was given to the first defendant. The second defendant after verification of the encumberance etc. had purchased to an extent of 1317-3/4 sq.ft under the registered sale deed dated 14.4.2002 from the first defendant. On the same day, the second defendant also purchased 865 sq.ft of land in new Survey No.31/2 from the first defendant's brother Kathirvel. While so, a notice dated 2.5.2002 was received by the second defendant from the counsel for the plaintiff claiming right under the sale agreement dated 19.9.2001. The second defendant sent a reply to the counsel for the plaintiff on 7.5.2002 stating that the claim made by the plaintiff in respect of the sale agreement dated 19.9.2001 is not acceptable and the said sale deed is a fabricated one and she is a bona-fide purchaser of the suit property. Hence, she prayed for dismissal of the suit.
6.Before the trial Court, Exs.A.1 to A.4 were marked on the side of the plaintiff and the witnesses P.W.1 to P.W.4 were examined on the side of the plaintiff. Exs. B.1 to B.29 were marked on the side of the defendants and the first defendant was examined as D.W.1 and other witnesses were examined as D.W.2 and D.W.3.
7.The trial Court, after scrutinising the materials available on record and after considering the facts and circumstances of the case, dismissed the suit. Aggrieved by the same, the plaintiff preferred an appeal in A.S.No.120 of 2004 on the file of the Principal District Judge, Cuddalore. The lower appellate Court also dismissed the appeal. As against the same, the present second appeal has been preferred.
8.Heard Mrs.R.Meenal, learned counsel appearing for the appellant, Mr.G.K.Ilanthirayan, learned counsel appearing for the first respondent and Mr.Sunil Kumar, learned counsel appearing for the second respondent.
9.At the time of admission of the above second appeal, the following substantial question of law was framed by this Court:
"Whether in law, the Courts below are right in failing to see that once signature in Ex.A.1 sale agreement was admitted, it was for the executant to prove that it was for a different purpose and that the first respondent had not discharged this burden?
10.From the facts narrated above, it is found that originally, the suit property belonged to the first defendant/first respondent. The first respondent and the plaintiff/appellant entered into an agreement of sale dated 19.09.2001, Ex.A.1. On the contrary, the first defendant denied Ex.A.1, agreement of sale and claimed that it was a forged document and the same was created for the purpose of the suit. In the plaint, the plaintiff was described as Chitra Finance Agencies, represented by its Proprietrix Jothi Ammal. However, the said Jothi Ammal has not been examined as witness. Mr.Dhanavel, who is the husband of the plaintiff was examined as P.W.1 on behalf of the plaintiff. But, there is no valid reason given by the plaintiff for non-examination of herself as witness and the evidence of P.W.1 cannot be equated with the evidence of the plaintiff. When the first defendant categorically denied the privity of contract between him and the plaintiff and Ex.A.1, the agreement of sale is a disputed and fabricated one, it is incumbent upon the plaintiff to examine herself. Such non-examination of the plaintiff in this case is certainly fatal. In the suit for specific performance it is an equitable relief and it cannot be decided on the preponderance of probabilities. The plaintiff is expected to establish his or her case independent of the probabilities. If the plaintiff examined herself, it would be the best evidence available in the case for specific performance.
11.In the process of proving Ex.A.1, besides examining the husband of the plaintiff as P.W.1, one Chakravarthy also had been examined as P.W.2, who claimed to be attesting witness to Ex.A.1. Ex.A.1 is the unregistered document. While so, regarding the payment of advance amount, P.W.2 had categorically deposed that it was paid at the Sub Registrar's Office. When the document was not registered, the plaintiff has not explained as to why there was an occasion, to go to the Sub Registrar's Office to pay the advance amount. Therefore, the evidence of P.W.2 was correctly discredited by the Courts below. Even in the deposition of P.W.2, there is no specification as to the payment of Rs.3,00,000/- as advance. The scribe of the alleged document, who was examined as P.W.4, also simply stated that the first defendant received a sum of Rs.3,00,000/- To substantiate the claim of the first defendant, the notice was issued by the first defendant to the plaintiff and her husband was marked as Ex.B.7 dated 6.6.2001. In the said letter, the counsel for the first respondent/first defendant had demanded to return the two empty pronotes with his signature, two signed bond papers, two signed blank papers and two blank cheque leafs as he had paid the entire borrowed sum with interest. The third paragaraph of Ex.B.7, dated 6.6.2001 reads as follows:
My client approach you to return the documents for security of the principal and with interests. My client paid the principal with interest duly. Inspite of repeated demands made by my client to you after clearing the loan to handed over the documents given by my client. Several times my client approach to you to handed over the documents to my client.
12.In response to the same, the plaintiff's husband had sent a reply dated 2.7.2001 namely, Ex.B.8 wherein it is stated that he was not the owner or Proprietor of M/s.Chitra Finance and there was no connection for him with the said Finance Company. Thereafter, the first defendant issued another notice dated 7.11.2011, which was marked as Ex.B.9. In the said notice, the first defendant had called upon the plaintiff and her husband to return the blank Promissory Notes, blank bond papers and blank papers in which the first defendant had signed and given to the plaintiff towards earlier money transactions. The first defendant had also sent a notice dated 13.2.2002 under Ex.B.11 again for return of the signed papers. In the reply notice issued by the plaintiff's husband, there was a mention about the sale agreement. Besides Exs.B.7, 8, 9 and 11 came to prove that there was an earlier transaction between the plaintiff and the first defendant. The defendant also examined D.W.2 and D.W.3, who had confirmed the sale in favour of the second defendant for a valid consideration as evidenced by Ex.B.19 dated 14.04.2002. From the above facts it is clear and evident that the first defendant had prior transactions with the plaintiff and her husband and issued signed pro-notes, bond papers and also blank papers. When the same were demanded to be returned as per Ex.B.7 on a second thought the plaintiff has made use of the signed papers to prepare an unregistered agreement Ex.A.1. Therefore, the plaintiff is trying to take advantage of his own mistake of not returning the signed documents and created the Ex.A.1.
13.The relief of specific performance being an equitable relief, the plaintiff has not established the execution of the sale agreement dated 19.9.2001 at the first instance despite the objection taken that Ex.A.1, the sale agreement was fabricated document. To speak about the same, the defendants beyond the doubt had proved the existence of previous money transactions with the plaintiff's Finance Company and the first defendant sold the property to the second defendant, who is the bona-fide purchaser without notice. Therefore, the plaintiff, who had come to the Court with the bogus claim based on a fabricated document, cannot be allowed to succeed. Therefore, in the above said circumstances, it can be held that the signature found in Ex.A.1, the sale agreement of the first defendant though is admitted that it has been proved beyond doubt, it was signed for a different purpose. The relief sought for specific performance being discretionary, this Court is not bound to give such relief merely based on the document, which was executed for a different purpose.
14.It is a settled principle that the exercise of discretion to grant the relief of specific performance should not be arbitrary, but, it should be based on sound and reasonable judicial principles. A suitor, who comes to Court with mutually conflicting versions in the pleadings and evidence cannot claim or obtain an equitable remedy. In view of the above facts and circumstances of the case, it is very clear that the plaintiff has not come to the Court with genuine case and the Courts below are right in dismissing the suit. Accordingly, the substantial question of law is answered.
15.In the result, the second appeal is dismissed by confirming the judgments and decrees passed by the first appellate Court as well as the trial Court. No costs. Consequently, M.P.No.1 of 2006 is closed.
02.09.2014 Index:yes/No Internet:Yes/No cla To
1.The Principal District Judge Cuddalore.
2.The I Additional Subordinate Judge, Cuddalore.
3.The Section Officer, V.R. Section, High Court, Madras.
PUSHPA SATHYANARAYANA,J cla Judgment in S.A.No.860 of 2006 02.09.2014