Madras High Court
L.Selvaraj vs T.Padmavathi on 16 June, 2010
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.06.2010 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR Appeal Suit No.2 of 2003 & C.M.P.Nos.23 of 2003 and C.M.P.No.3645 of 2005 L.Selvaraj ...Appellant Vs. T.Padmavathi ... Respondent Prayer: Appeal filed under Section 96 of Civil Procedure Code against the judgment and decree order dated 30.8.2001 made in O.S.No.7858 of 1996 on the file of the VII Additional Judge, City Civil Court, Chennai. For Appellant : Mr.D.Krishnakumar For Respondents : Mr.B.T.Seshadri Senior Advocate for M/s.K.Bhanumathi & Mr.V.Manohar JUDGMENT
This appeal has been preferred against the judgment and decree of the VII Additional Judge, City Civil Court, Chennai dated 30.8.2001 made in O.S.No.7858 of 1996.
2.The plaintiff in the said suit is the appellant herein. The suit was filed against one S.N.S.Thirumal (since dead) and D.Padmavathi, the respondent herein arraying them as defendants 1 and 2 respectively, for the relief of specific performance based on an alleged agreement for sale dated 24.6.1988. Since the said S.N.S.Thirumal died during the pendency of the suit, the suit was continued against the respondent alone after getting her recorded also as the legal heir of the deceased S.N.S.Thirumal.
3.The plaint averments based on which the appellant/plaintiff had sought for the said relief can be summarised as follows:
The house bearing Door No.1, 21st Avenue, Ashok Nagar, Chennai 83, more fully described as the plaint schedule absolutely belongs to the respondent herein/2nd defendant. The deceased S.N.S.Thirumal (first defendant) was the father of the respondent/2nd defendant. The respondent and her father entered into an agreement with the appellant/plaintiff on 24.6.1988 for the sale of the suit property to the appellant/plaintiff for a sale consideration of Rs.10,00,000/-. Even though the property absolutely belonged to the respondent herein/2nd defendant, by way of abundant caution her father viz., the first defendant was also made a party to the said agreement for sale. On the date of agreement itself a sum of Rs.3,00,000/- was paid by the appellant/plaintiff to the defendants as advance and part payment of sale consideration. On the date of agreement itself all the title deeds relating to the suit property were handed over to the appellant/plaintiff. As per the terms of the agreement, the defendants had to obtain and produce Income Tax clearance certificate within three months and execute a sale deed in favour of the appellant/plaintiff. However, the defendants failed to do so even though the appellant/plaintiff was ready and willing, right from the date of agreement, to pay the balance sale consideration and get the sale deed executed and registered in his name. Despite the oral demands made by the appellant /plaintiff, the defendants failed to produce Income tax clearance certificate and evaded execution of the sale deed. At last the appellant/plaintiff had to issue a notice through an advocate calling upon the defendants to produce Income tax clearance certificate and execute the sale deed in favour of the plaintiff after receiving the balance amount of sale consideration. But there was no response even for the said notice sent through the advocate. Therefore, the appellant/plaintiff was forced to approach the Court by filing the suit for the relief of specific performance.
4.The suit was resisted by the respondents/defendants who filed separate written statements. The averments found in the Written statement filed by the deceased first defendant in brief are as follows:
All the plaint allegations except those that are admitted in the written statement are denied as false. The suit is not maintainable. No document, much less the document relied on by the appellant/plaintiff was executed by the defendants in favour of the appellant/plaintiff. It is an utter falsehood to state that the defendants executed an agreement for sale on 24.6.1988 in favour of the appellant/plaintiff in respect of the suit property. The first defendant was a Cine producer. The first defendant for the production of the Tamil feature film "Sandarppangal"
[ VERNACULAR (TAMIL) PORTION DELETED ] approached a financier by name K.R.Venugopalan for providing financial assistance of Rs.3,00,000/-. At the time of advancing the said amount, the said financier K.R.Venugopalan obtained signatures of the first defendant and his daughter (2nd defendant) in a few blank stamp papers, promissory notes, blank white papers and blank letterheads, as security for the repayment of the said loan. The said financier also demanded and obtained the documents of title relating to the suit property belonging to the respondent/2nd defendant as security for the said loan with an assurance that the documents would be returned after the discharge of the loan. The said financier K.R.Venugopalan seems to have filed the suit through the appellant/plaintiff, who is a close relative of the said financier, by creating an agreement with the help of the signatures of the defendants obtained in blank stamp papers and blank white papers. The property was worth two crores and the defendants would not have agreed to sell such a valuable property for a meager sum of Rs.10,00,000/-. The first defendant did not receive any notice allegedly sent by the appellant/plaintiff through his advocate. There is no privity of contract between the appellant/plaintiff and the first defendant. There is no cause of action for the suit and the one mentioned in the plaint is also absolutely false and untenable. The Court fee paid is also not correct. The appellant/plaintiff shall not be entitled to any of the reliefs sought for by him. The suit shall be dismissed with cost.
5.The averments found in the written statement filed by the respondent herein/2nd defendant in brief are as follows:-
All the plaint allegations except those that are admitted in the written statement are denied as false. The suit is not maintainable either on facts or in law and the same is liable to be dismissed. The respondent/2nd defendant never had any transaction with the appellant/plaintiff. It is true that the respondent/2nd defendant is the absolute owner of the suit property, but the plaint allegation that she entered into an agreement with the appellant/plaintiff on 24.6.1988 agreeing to sell the same to the appellant/plaintiff for a sum of Rs.10,00,000/- and obtained a sum of Rs.3,00,000/- as advance is false. The deceased first defendant, the father of the respondent/2nd defendant, was a film producer. In respect of a Tamil feature film produced by him, he wanted to get financial assistance from some financier. Thus, he requested the respondent/2nd defendant to hand over the documents of title relating to the suit property on the assurance that the same would be again handed over to the respondent/2nd defendant shortly. One Mr.K.R.Venugopalan who was supposed to give loan to the first defendant for the production of the Tamil feature film "Sandarppangal"
[ VERNACULAR (TAMIL) PORTION DELETED ] took the signatures of the respondent/2nd defendant also in a few blank stamp papers and blank white papers. When she confronted with the said Venugopalan as to why her signatures were being obtained in blank stamp papers and blank white papers, he informed her that they were obtained only as security. The value of the suit property shall be more than two crores and hence it is not even imaginable that the defendants would have agreed to sell the suit property worth more than two crores for a sum of Rs.10,00,000/-. Further allegations found in the plaint that on the date of execution of the suit sale agreement, the appellant/plaintiff paid a sum of Rs.3,00,000/- as advance and part payment of the sale consideration is absolutely false and untenable. The respondent/2nd defendant did not receive any amount either from the plaintiff or from the above said financier K.R.Venugopalan. What she did was to hand over the title deeds relating to the suit property to her father viz., the first defendant, so as to enable him to raise loans from the financier for the production of a Tamil cinema. The defendant did not hand over the title deeds to the appellant/plaintiff. In fact she never met the plaintiff. The allegations regarding the readiness and willingness on the part of the appellant/plaintiff and the omission on the part of the defendants to get and produce the Income tax clearance certificate are false. There was no demand at any point of time for the production of Income Tax clearance certificate or any other document. As the respondent/2nd defendant denies the execution of the suit sale agreement, there is no question of her evading execution of the sale deed. The alleged notice sent by the appellant/plaintiff through his advocate was not received by the respondent/2nd defendant. The suit has not been properly valued and the Court fee paid is not correct. For the above said reasons, the suit should be dismissed with cost.
6.Based on the above said pleadings, the learned trial Judge framed 6 issues which are as followed:
1)Is it true that the defendants executed an agreement for sale in favour of the plaintiff?
2)Whether the alleged payment of a sum of Rs.3,00,000/- as advance and part payment of the sale consideration by the plaintiff to the defendants is true?
3)Whether the plaintiff was ever ready and willing to get the sale deed executed on the basis of the suit agreement for sale?
4)Whether the plaintiff is entitled to the relief of specific performance as prayed for in the plaint?
5)Whether the plaintiff is entitled to get vacant possession of the suit property?
6)To what relief the plaintiff is entitled?
7.Two witnesses were examined as Pws 1 and 2 and 12 documents were marked as Exs.A1 to A12 on the side of the appellant herein/plaintiff. One witness was examined as DW1 and three documents were were marked as Exs.B1 and B3 on the side of the respondent/2nd defendant. The learned trial Judge, on an appreciation of the evidence, believed the defence version of the defendants and disbelieved the plaint allegations made by the appellant/plaintiff and consequently dismissed the suit without cost holding the appellant/plaintiff not entitled to any of the reliefs sought for in the plaint.
8.Aggrieved by and challenging the decree of the trial Court dated 30.8.2001, by which the suit filed by the appellant/plaintiff in O.S.7858 of 1996 on the file of the trial Court was dismissed, the appellant/plaintiff has filed the present appeal on various grounds set out in the memorandum of appeal.
9. The points that arise for consideration in this appeal are as below:-
i)Whether it is true that the defendants executed Ex.A1-sale agreement in favour of the appellant/plaintiff agreeing to sell the suit property for a sum of Rs.10,00,000/-?
ii)Whether the payment of Rs.3,00,000/- as advance under Ex.A1-agreement for sale is true?
iii)Whether the appellant/plaintiff is entitled to the relief of specific performance?
iv)Whether the appellant/plaintiff is entitled to a direction for delivery of possession of the suit property?
v)To what relief the parties are entitled?
10.The arguments advanced by Mr.D.Krishnakumar, learned counsel appearing on behalf of the appellant and by Mr.B.T.Seshadri, learned counsel appearing on behalf of the respondent were heard. The entire materials available on record were also perused.
Points i and ii
11.The unsuccessful plaintiff in the original suit is the appellant herein. The suit was filed by him against the respondent herein/2nd defendant and her father (deceased first defendant) seeking the relief of specific performance and consequential direction for putting him in possession of the suit property, based on an alleged agreement for sale between the appellant/plaintiff and defendants dated 24.6.1988. Necessary pleadings regarding readiness and willingness on the part of the appellant/plaintiff and the lack of such readiness and willingness on the part of the defendants were also made in the plaint. The case of the defendants is of total denial. They have denied the plaint allegation that the suit agreement for sale was executed by them in favour of the appellant/plaintiff. They have come forward with a clear plea that they did not have any contact with the appellant/plaintiff; that they never had any transaction with the appellant/plaintiff and that the suit sale agreement was not executed by them in favour of the appellant/plaintiff. It is their further contention that no amount was received from the appellant/plaintiff as advance as claimed by the appellant/plaintiff. Since the execution of the suit agreement for sale and the payment of advance under the said agreement are denied by the defendants, the appellant/plaintiff is bound to prove the same. In order to prove that the suit sale agreement was executed by the defendants in favour of the appellant/plaintiff and a sum of Rs.3,00,000/- was paid by the appellant/plaintiff as advance, the appellant/plaintiff besides examining himself as P.W.1, has also examined one K.R.Venugopalan, who has been cited by the defendants as the financier, who got the signatures of the defendants in blank stamp papers and blank papers. Let us now consider the oral evidence of P.Ws.1 and 2 regarding the execution of the sale agreement in favour of the appellant/plaintiff by the defendants and payment of a sum of Rs.3,00,000/- as advance. Ex.A1 is the suit agreement dated 24.06.1988 allegedly executed by the defendants in favour of the appellant/plaintiff. The defendants have taken a clear and definite stand that they did not execute any agreement for sale in favour of the appellant/plaintiff and no amount was received by them as advance. It is also their clear contention that the defendants did not have any contact with the appellant/plaintiff and hence there was no occasion for entering into such a transaction with him. In the light of the above said pleadings of the defendants, the reliability of the testimonies of P.Ws.1 and 2 should be considered.
12. The appellant/plaintiff, who deposed as P.W.1, in his evidence during cross-examination, would admit that from 1991-1992, he is doing business as cable TV operator in Ranipet; that before that he was residing in Gandhi Avenue, Purasaiwakkam, Chennai and that at the time of entering into the transaction under Ex.A1-sale agreement he was residing in a rented house at Washermanpet, Chennai. It is also his evidence that while he was residing in Chennai, he worked as a plot engineer in Gummidipoondi earning a monthly salary of Rs.4,000/-. It is his admission during cross-examination that in 1989, while he was employed thus as plot engineer in Gummidipoondi, his monthly salary was just Rs.4,000/-. In the light of such statements made by P.W.1 in his evidence, it becomes doubtful whether the appellant/plaintiff would have got three lakhs of rupees to be paid as advance to the defendants on 24.06.1988, the date of suit agreement. It is not his case that the negotiation for the purchase of the property took place prior to 24.06.1988. On the other hand, he has admitted that he came into contact with the deceased first defendant only on 24.06.1988. However, in the latter part of his testimony in cross examination, he would state that he met the deceased first defendant along with his junior paternal uncle and conducted negotiation for the purchase of the suit property about a month prior to the date of suit agreement. The relevant parts of the testimony of P.W.1 in this regard are extracted here under:-
VERNACULAR (TAMIL) PORTION DELETED The above said discrepancy found in the evidence of P.W.1 regarding when he came into contact with the deceased first defendant and when the negotiation for the purchase of the suit property was made by him with the first defendant, will greatly impair the credibility of his evidence and consequently the case of the appellant/plaintiff.
13. The suit sale agreement (Ex.A1) is dated 24.06.1988. According to the evidence of P.W.1, at the said point of time he was residing in Washermanpet, Chennai and was working as a plot engineer in Gummidipoondi. But, it is curious to note that the address of the appellant/plaintiff was given as "No.21-A, Vandimettu Street, Ranipet, North Arcot District". P.W.1 has admitted that the said address was not his residential address. It is also his admission that the said address was the address of the shop in which he was doing cable TV business in Ranipet from 1991-1992. However, he has come forward with a novel explanation that he had taken the shop at Ranipet on lease for five years in 1986-1987 and that the same was the reason for his giving the address of the said shop as his address in Ex.A1-sale agreement. He has also stated that thinking that the said shop was his permanent address, the same was furnished as his address in the agreement for sale, namely in Ex.A1. Such an explanation is far from being either satisfactory or believable.
14. The plaintiff's case that he paid a sum of Rs.3,00,000/- as advance on the date of agreement also becomes improbable in the light of his admission during cross-examination. It is his clear admission that on the date of agreement he was not having any house or immovable property of his own and he was receiving financial help periodically from his father, who was residing at Ranipet and also from his junior paternal uncle, namely P.W.2. He was a person depending upon the financial help from his father and junior paternal uncle for his sustenance during the period when Ex.A1 was allegedly executed. It shall be improbable for him to have arranged for a sum of Rs.3,00,000/- to be paid as advance on the date of agreement. While narrating how he arranged the sid sum of Rs.3,00,000/- to be paid as advance under Ex.A1, P.W.1 has stated that he did not have any bank account and the entire amount of advance (Rs.3,00,000/-) was paid in cash and that the advance amount was made up of his own money, money borrowed from his uncle and also from others and that he had saved all those amounts and with the help of the same, the advance amount was paid. However, he would also state that he cannot say as to who were all the persons from whom he borrowed and the amount borrowed from each one of such persons. He would state that P.W.2 was present at the time of execution of Ex.A1-sale agreement but however he did not sign as a witness. He did not know the names of the persons who signed as witnesses in the suit sale agreement. However, he would say that he knew those persons. But, in the very next line he has also stated that he did not know whether the attestors were alive as on the date of his examination as P.W.1 and that he had to make enquiries regarding the same. The appellant would claim to have entered into an agreement with the defendants for purchasing the suit property for a sum of Rs.10,00,000/-. While deposing as P.W.1 he has stated that he did not get the encumbrance certificate regarding the suit property and he did not even verify the guideline rate / market rate before entering into the agreement for sale. It is also evident from his testimony that he did not even go through the parent deeds to get satisfied with the transferable title of the respondent/second defendant. There is a clear admission that the suit property absolutely belongs to the respondent/second defendant alone. There is no acceptable explanation put-forth by P.W.1 for getting the sale agreement executed not only by the respondent/second defendant, but also by her father, the deceased first defendant.
15. It is not the evidence of P.W.1 that he was having the necessary funds to the tune of Rs.7,00,000/- to be paid as balance sale consideration for getting a sale deed executed in his name. On the other hand, he has simply stated that he entered into the suit sale agreement with the confidence that he could borrow Rs.7,00,000/- and repay the same subsequently. For the question whether he had arranged for the funds to make payment of Rs.7,00,000/- as balance sale consideration under Ex.A1, P.W.1 has stated initially that he could produce proof of his having arranged for the funds like bank statements and documents showing properties owned by him. Having stated that he was ready to produce such documents, in the very next line of his deposition, he has not specifically denied the suggestion that he was not having the capacity to pay the balance amount of sale consideration, namely Rs.7,00,000/-. On the other hand, he ventured to state that the said question was unwarranted.
[ VERNACULAR (TAMIL) PORTION DELETED ] Furthermore, it is the case of the appellant/plaintiff that all the documents produced as Exs.A2 to A9 were the documents handed over to the appellant/plaintiff by the defendants on the date of execution of Ex.A1-sale agreement. However, P.W.1 has stated that he did not prepare a list of documents thus handed over by the defendants. Though he would state that the title deeds were handed over by the defendants to him on the date of agreement, he has also stated that he was not aware of the fact whether those documents had already been handed over to P.W.2-Venugopal. Even though P.W.1 would state that a draft agreement was prepared and after approval of the draft, Ex.A1-agreement was typed, he is not in a position to say who was the scribe who prepared the draft. His evidence in this regard is evasive, as it is to the effect that draft should have been prepared by a person authorised to prepare it, meaning a document writer. The very fact that the plaintiff has not chosen to give any notice prior to Ex.A10, which was issued on 25.05.1991, just a month before the expiry of three years from the date of Ex.A1 will also have its effect improbablising the case of the appellant/plaintiff. The fact that Exs.A2 to A9, the title deeds and other documents relating to the suit property were produced by the plaintiff shall not improve the case of the appellant/plaintiff. As pointed out supra, there is clear evidence to the effect that those documents were handed over to P.W.2 as security for repayment of the loan. It has also been pointed out that P.W.2 has also admitted that those documents were handed over to him. Thus the circumstances under which the plaintiff happened to file those documents along with the plaint have been clearly explained and proved by the respondent/second defendant. Hence the fact that those documents were produced by the plaintiff shall not render any help to the appellant/plaintiff to prove that the suit sale agreement for sale is a genuine one.
16. P.W.2 is none other than K.R.Venugopalan, the junior paternal uncle of the appellant/plaintiff. From his testimony, it is evident that the father of the plaintiff is the elder brother of P.W.2. According to P.W.2's evidence, when the negotiation for the agreement was made and the agreement was concluded, it was he who paid Rs.3,00,000/- to the defendants as advance. The said evidence is contrary to the evidence of P.W.1 who would say that the amount was paid by P.W.1. It is also the evidence of P.W.2 that the title deeds were handed over by the defendants to him (P.W.2), which is contrary to the stand taken by the appellant/plaintiff.
17. It is the case of the defendants that the father of the respondent/second defendant, namely the deceased first defendant was a film producer and he approached P.W.2 for financial assistance for the shooting of Tamil cinema "Sandarppangal"
[ VERNACULAR (TAMIL) PORTION DELETED ] that at the time of advancing Rs.3,00,000/- as loan for the said purpose, P.W.2 took signatures of the defendants in white papers and blank stamp papers and also got the title deeds relating to the suit property stating that the same were obtained as security for the repayment of the loan and that using the said blank stamp papers and blank papers in which the signatures of the defendants had been obtained, the suit agreement has been created and the suit has been filed by P.W.2 in the name of the appellant/plaintiff, a close relative of P.W.2. The learned counsel for the respondent/2nd defendant has rightly pointed out the discrepancies found in the evidence of P.Ws.1 and 2 and argued that the same was the reason why P.W.1 was not in a position to furnish particulars and why a discrepancy is found between the evidence of P.Ws.1 and 2 regarding who paid the amount as advance and to whom the title deeds were handed over by the defendants.
18. It is the contention of the learned counsel for the appellant/plaintiff that when the signatures found in the document relied on by the appellant/plaintiff are admitted to be that of the defendants, then the onus is on them to prove that the document is not a genuine one. In support of his contention, the learned counsel for the appellant/plaintiff relied on an observation made by a learned single judge of this court in Chokkammal and 3 others versus K.Balraj reported in (2009) 3 MLJ 1168, wherein the learned judge made the following observations:-
"As a measure of sound reasoning, it could be stated that the persons of full age and understanding who subscribe their signatures to a document, cannot be heard to say that they had affixed the signatures on blank papers or that they signed without appraising themselves about the recitals. If they had been so imprudent to affix the signatures in such a fashion, they have to take the consequence for such imprudence."
Of course the view that for the imprudence on the part of the persons in affixing signatures in blank stamp papers and blank papers or in documents without knowing the nature of the documents, they should bear the consequences flowing from it, can be accepted as a general view. But the same cannot have invariable application in all cases without exceptions. A document becomes evidence either when it is proved or when it is admitted. Admission of the signature shall not amount to admission of execution of the document. If the view expressed by the leanred single judge cited above is accepted to have general application without exception, then no defence based on the plea that a document was not at all executed by the defendant and that the same was created with the help of signatures obtained in blank stamp papers and blank papers can be taken. Such a plea is always available to the person against whom the document is sought to be proved. In fact, the above said view of the learned single judge is quite contra to the view expressed by a larger bench, namely a division bench of this court in N.Ethirajulu Naidu vs. K.R.Chinnikrishnan Chettiar reported in AIR 1975 MADRAS 333, wherein it has been observed as follows:-
"The lower court has overlooked the fact that the execution of a document implies intelligent and conscious appreciation of the contents thereof and the facts connected therewith; and where the defendant admitted only that he had put his signature in a blank piece of paper, which, he alleged, had possibly been utilised for fabricating Ex.A1, it cannot be regarded as his having admitted the execution of Ex.A1. The onus of proving that a particular paper, which is the basis of a suit was duly executed by the defendant, must, therefore, have been thrown upon the shoulders of the plaintiff."
19. In this case, since the defendants had not admitted the execution of Ex.A1-agreement for sale and they had taken a stand that the same was created by P.W.2 using the stamp papers and blank papers in which he had got the signatures of the defendants as security for repayment of the loan advanced by him to the deceased first defendant and that no amount was received by the defendants from the appellant/plaintiff either as advance or as part payment of the consideration, the same cannot be construed to be an admission of execution of Ex.A1-sale agreement. Therefore, the burden of proof of execution of Ex.A1 and passing of consideration under Ex.A1 lies on the appellant/plaintiff. Even if it is assumed that the admission of the signature shall be enough to cause the shifting of the burden on the defendant, in a civil case, the burden of proof shall not be applied as a straight jacket formula when parties have adduced evidence knowing fully well the points on which they are variance and such issues are to be decided on the probability of the totality of the evidence adduced on both sides. In this case, the clear evidence of D.W.1 coupled with the admission made by P.W.2 indicated supra regarding the loan transaction between P.W.2 and the deceased first defendant, shall be held sufficient to discharge the respondent/defendant of the initial burden of proof and for shifting the burden on the appellant/plaintiff to prove the genuineness of Ex.A1.
20. The evidence adduced on the side of the plaintiff is not enough to prove the genuineness of Ex.A1. It is the evidence of P.W.1 that he met the deceased first defendant only on the date of Ex.A1-sale agreement and before the said date, the negotiations were made with him by P.W.2 on his behalf. However, P.W.2, in his evidence in chief examination has stated that he did not meet the deceased first defendant before making the suit agreement for sale. But, P.W.1 pleaded ignorance as to whether there was any loan transaction between P.W.2 and the deceased first defendant. For a suggestion that P.W.2 had lent a sum of Rs.3,00,000/- to the first defendant for shooting a Tamil cinema and at that point of time, the title deeds of the suit property were handed over to him as security for the repayment of the loan, the plaintiff (P.W.1) has pleaded ignorance. Likewise, P.W.2 has totally denied any such loan transaction between himself and the deceased first defendant. The said evidence of P.W.2 is falsified by the documents produced by the respondent/second defendant, the authenticity of which has been admitted by P.W.2. Ex.B1 is the notice dated 17.05.1991 admittedly sent by Thiru.Veerabadran, Advocate, on behalf of and on the instructions of P.W.2. A copy of the reply sent by the defendants through their advocate has been produced as Ex.B2 and the acknowledgment for the same is Ex.B3. From Exs.B1 to B3, it is quite obvious that P.W.2 had caused the issuance of Ex.B1-notice and has ventured to depose against the contents of Ex.B1-notice. However, when Ex.B1-notice was produced by the counsel for the defendants during cross-examination of P.W.2, the authenticity of which was eventually admitted by P.W.2, he changed his version and stated that there was such a loan transaction at one point of time; that the defendants had borrowed from P.W.2 prior to 17.06.1998 on promissory notes and that regarding the said transaction alone he issued Ex.B1-notice. Even then he would deny that he provided financial assistance to the deceased first defendant for making a Tamil cinema. But, Ex.B1-notice was issued not only to the defendants 1 and 2, but also to "M/s.Thiruppathisami Pictures, by Prop. Mr.S.N.S.Thirumal". The cover under which the said notice was sent to Thiruppathisami Pictures has also been attached to Ex.B1. In fact in the notice, the said Thiruppathisami Pictures was shown to be first among the three persons to whom the notice was issued. In paragraph 2 of the said notice, it has been clearly stated that the deceased first defendant was producing a Tamil cinema titled as "Sandarppangal"
[ VERNACULAR (TAMIL) PORTION DELETED ] that a letter had also been written to Vijaya Colour Lab stating that P.W.2 had got a charge over the negatives and prints of the said picture and that Vijaya Colour Lab also in turn informed P.W.2 that he had got a charge over the negatives and prints of the said picture. Having caused issuance of such a notice, P.W.2 has chosen to totally deny such a loan transaction under which he paid an amount as loan to the deceased first defendant. Even after the production of Ex.B1-notice and even after going through the same, P.W.2 has pleaded ignorance regarding the contents of the notice dealing with the production of the said film and execution of a charge over the negatives and prints.
[ VERNACULAR (TAMIL) PORTION DELETED ] A consideration of the said answers of P.W.2 would show that he is not only an unreliable witness, but also a liar. The further evidence of P.W.2 that the sale consideration was fixed one day or two days prior to the date of Ex.A1-agreement, the same is quite contra to the evidence of P.W.1 that the negotiation was made only on the date of Ex.A1-agreement. P.W.1 has not stated the place at which Ex.A1 was prepared. That may be so because he was not aware of the place and preparation of Ex.A1. On the other hand, P.W.2, in his evidence would state that the document was prepared at his residence in Gandhi Avenue, Purasaiwakkam, Chennai. However, he has not chosen to sign as an attestor. No reason has been assigned as to why he had not signed as an attestor. Evidence is also lacking regarding the particulars of the persons who have attested the suit sale agreement as witnesses. None of the witnesses to Ex.A1-agreement has been examined on the side of the appellant/plaintiff.
21. Compared with the said evidence adduced on the side of the plaintiff, which are discrepancy-ridden, the evidence of D.W.1 is clear and cogent. She has re-stated and confirmed the stand taken by the defendant in written statement. Credibility of her testimony has not been, in any way, impaired by the test of cross-examination. There is no in-built contradiction in her evidence. It is quite natural, spontaneous and devoid of improbability. Whatever be the nature of evidence adduced on the side of the defendants, unless the plea raised or the evidence adduced on the side of the defendants amounts to an admission and unless the law casts the burden on the defendant to prove his case, the plaintiff shall either succeed or fail in getting the relief, according to the strength of his own evidence. In this case, as we have seen the evidence adduced on the side of the appellant/plaintiff does not instil confidence and there are improbabilities and in-built contradictions which would go to show that the appellant/plaintiff has failed to prove his case that Ex.A1 was the sale agreement executed by the defendants in favour of the plaintiff and that the same was supported by consideration, namely Rs.3,00,000/- paid as advance and by a promise to pay Rs.7,00,000/- being the balance sale consideration.
22. Of course it is true that the defendants had stated in their written statement that the property was worth more than Rs.2 crores and that hence it was unimaginable that they agreed to sell the land for a meagre sum of Rs.10,00,000/-. There is no proof that the property was worth rupees more than two crores as on the date of Ex.A1-agreement for sale. The sale deed under which the second defendant had purchased the property from one Ananthanarayanan is Ex.A3. Her vendor had purchased it from the Housing Board on 17.08.1982 for a sum of Rs.47,542/-. The land with the building was purchased by Ananthanarayanan from Tamil Nadu Housing Board in 1982 for the said amount. The same was sold by Ananthanarayanan to the second defendant on 04.02.1988 under Ex.A3 for a sale consideration of Rs.2,01,000/-. The suit sale agreement is dated 24.06.1988, within five months from the date of Ex.A3-sale deed. Therefore, the contention that the value of the property would have escalated to rupees two crores from Rs.2,01,000/-, within five months cannot be accepted. Therefore, the contention raised by the defendants that they could not have entered into such an agreement for sale agreeing to sell a property worth more than rupees two crores for a sum of Rs.10,00,000/- is liable to be rejected.
23. On the other hand, the plea of the respondent/second defendant that the deceased first defendant was a film producer and for the production of a Tamil cinema titled as "Sandarppangal"
[ VERNACULAR (TAMIL) PORTION DELETED ] he borrowed a sum of Rs.3,00,000/- from P.W.2-Venugopalan; that the said Venugopalan at the time of advancing the loan got the signatures of the respondent and her father (defendants 2 and 1) in blank stamp papers and blank papers; that the said stamp papers and blank papers were used for creating the suit agreement in the name of the appellant/plaintiff, a close relative of P.W.1 and that the suit itself has been filed in the name of the appellant/plaintiff (P.W.1), becomes probable and in fact proved not only by the evidence of P.W.1, but also by the admissions made by P.W.1 and P.W.2, especially the contents of the document Ex.B1.
24. For all the reasons stated above, this court comes to the conclusion that Ex.A1-suit agreement for sale has not been proved by the appellant/plaintiff to be an agreement executed by the defendants in favour of the appellant agreeing to sell the suit property for a sum of Rs.10,00,000/-. The plaintiff has also not proved the passing of consideration under Ex.A1-sale agreement. The payment of a sum of Rs.3,00,000/- as advance on the date of agreement has not been proved by reliable evidence. On the other hand, this court comes to the conclusion that the defence plea of the defendants that the signatures obtained in blank stamp papers and blank papers by P.W.2 while advancing a loan of Rs.3,00,000/- to the deceased first defendant for producing a Tamil cinema titled as "Sandarppangal"
[ VERNACULAR (TAMIL) PORTION DELETED ] were used by him for creating the suit sale agreement in the name of the appellant/plaintiff; that the suit has been filed on the strength of the suit agreement, which was thus created by P.W.2 and that the passing of consideration stated in the suit sale agreement was not true, have been clearly established.
25. For all the reasons stated above, this court holds that the suit sale agreement marked as Ex.A1 is not proved to be the one executed by the defendants and that the plaintiff had not paid Rs.3,00,000/- as advance under the said agreement for sale. The finding of the trial court in this regard is a sound one based on proper appreciation of evidence. There is no defect or infirmity in the same warranting any interference in this appeal. Hence the said finding is hereby confirmed.
Point No.iii
26. In the discussions regarding points 1 and 2 supra, it has been held that the suit sale agreement has not been proved to be genuine; that the plaintiff failed to prove his payment of Rs.3,00,000/- as advance under the agreement for sale and that on the other hand, the respondent/second defendant has proved that the suit agreement was created using the signatures of the defendants obtained by P.W.2 in blank stamp papers and blank papers as security for the repayment of a sum of Rs.3,00,000/- lent by him to the deceased first defendant for producing a Tamil cinema. Therefore, there is no question of the appellant/plaintiff succeeding in getting the relief of specific performance of the contract under Ex.A1 agreement for sale. Even assuming for argument sake that the suit sale agreement might be true, genuine and supported by consideration, unless the appellant/plaintiff is able to show that he was ever ready and willing and continues to be ready and willing to perform his part of the contract under the agreement, he shall not be entitled to the relief of specific performance. In this case, as we have seen in the foregoing discussions, the plaintiff did not have the financial capacity to pay even the advance amount mentioned in Ex.A1-agreement for sale. It is his admission that he entered into the agreement on the hope that he would be in a position to raise a fund of Rs.7,00,000/- to be paid as balance consideration by borrowing from others. He has not chosen to show that he had fixed the persons who would lend the amount to him. The suit agreement for sale says that the sale transaction should be completed within three months from the date of Ex.A1-sale agreement. However, such a condition stipulating time in sale agreement regarding sale of immovable properties, generally shall not be construed to be an essential condition of the agreement. However, the purchaser under the agreement should come forward to fulfill his part of the obligation within a reasonable time. In this case, for about three years from the date of agreement, the appellant/plaintiff did nothing and chose to issue a notice under Ex.A10, just a month prior to the end of the period of three years from the date of agreement, calling upon the defendants to produce income tax clearance certificate and execute the sale deed. The said notice was not served on the defendants. The returned covers are marked as Exs.A11 and A12. Ex.A10 is dated 25.05.1991. The very next day, namely 26.05.1991, the suit has been filed. Having sent a notice on the previous day and filed the suit on the very next day, an averment has been made in paragraph 7 of the plaint to the effect that for the notice sent on 25.05.1991 there was no response from the defendants. This court is at a loss to understand how the plaintiff expected the service of notice on the defendants and a reply from the defendants within 24 hours. Therefore, it is quite obvious that the said notice was issued just a day prior to the filing of the suit only for creating a cause of action to show that the appellant/plaintiff was ever ready and willing to perform his part of the contract under the suit agreement for sale.
27. Furthermore, by the statement made by the appellant/plaintiff as P.W.1 that the capacity of the appellant/ plaintiff to arrange for a sum of Rs.7,00,000/- to be paid as balance consideration is an unnecessary issue, shall make it clear that he has admitted that he was not ready and willing to perform his part of the contract. The relevant part of his deposition in the vernacular language reads as follows:-
[ VERNACULAR (TAMIL) PORTION DELETED ] The same itself shall be enough to hold that the appellant/plaintiff failed to prove his readiness and willingness to perform his part of the contract. Therefore, for that reason also the appellant/plaintiff is to be held not entitled to the relief of specific performance.
Point No.iv
28. As the plaintiff is held not entitled to the relief of specific performance, the other relief, namely a direction to hand over possession consequent to the execution of the sale deed also deserves to be refused.
Point No.v
29. The court below analysed the evidence with a clear vision, applied the correct principles of law and arrived at a just conclusion that the appellant/plaintiff is not entitled to the relief sought for in the plaint and that the suit was liable to be dismissed with cost. There is no defect or infirmity in the same warranting interference and on the other hand, the judgment and decree of the trial court deserve confirmation.
30. In the result, this appeal is dismissed with cost and the decree of the trial court dated 30.08.2001 dismissing O.S.No.7858 of 1996 with cost is confirmed. Consequently, connected miscellaneous petitions are closed.
asr To VII Additional Judge, City Civil Court, Chennai