Madras High Court
R.Gnana Arulmoni vs R.S.Maharajan on 24 January, 2019
Author: S.S.Sundar
Bench: S.S.Sundar, C.Saravanan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 24.01.2019
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
AND
THE HONOURABLE MR.JUSTICE C.SARAVANAN
A.S.(MD)No.118 of 2013
and
M.P.(MD) No.1 of 2014
R.Gnana Arulmoni ... Appellant/Defendant
Vs.
R.S.Maharajan ... Respondent/Plaintiff
PRAYER: Appeal filed under Section 96 of the Code of Civil Procedure,
praying to set aside the judgment and decree dated 28.07.2011 passed in
O.S.No.17 of 2009 on the file of the First Additional District Judge,
Tirunelveli with costs.
For Appellant : Mr.K.Srinivasan
Senior Counsel
for M/s.Jayapaul Associates
For Respondent : Mr.V.Meenakshi Sundaram
for Mr.R.Murugan
******
http://www.judis.nic.in
2
JUDGMENT
[Judgment of the Court was delivered by S.S.SUNDAR, J.] The defendant in the suit in O.S.No.17 of 2009 on the file of the First Additional District Judge, Tirunelveli, is the appellant in this appeal. The respondent filed the suit in O.S.No.17 of 2009 for specific performance of an agreement of sale. The suit property consists of two items and the first item is an extent of 10 acres 47 cents and the second item is an extent of 19 acres 94 cents. It is not in dispute that the sale agreement dated 28.02.2005 was executed by the appellant in favour of the plaintiff. As per the sale agreement, the sale consideration for the first item was Rs.60,20,250/- and the sale consideration for the second item was fixed at Rs.84,74,500/-. The sale consideration for the first item was fixed at the rate of Rs.5,750/- per cent and for the second item, the sale consideration was fixed at the rate of Rs.4,250/- per cent. It is admitted that the entire land shown as item 1 of the plaint schedule was developed as Maharaja Nagar with 173 housing plots. Similarly, the second item of plaint schedule was formed out as a layout. Based on the power of attorney deed executed by the defendant in respect of first item of property, the respondent/plaintiff has also sold the plots. It is admitted that a sum of Rs.1,00,000/- was paid as advance and as per the agreement, a further sum of Rs.4,00,000/- was payable on or before 30.04.2005. It was also stated that the remaining balance sale consideration shall be paid within a http://www.judis.nic.in period of one year i.e., 28.02.2006. For the purpose of disposing this 3 appeal, we need not traverse into various allegations as this Court is inclined to decide the appeal on the admitted facts.
2.The plaintiff came forward with the suit to direct the appellant to execute the sale deed for the second item of suit property after receiving the balance sale consideration of Rs.47,30,000/-. In the plaint, it is alleged that the plaintiff had paid a sum of Rs.37,45,000/- out of the total sale consideration of Rs.84,74,500/- for second item. The plaintiff has given the particulars of payment. It is not in dispute that out of a sum of Rs.97,65,250/- alleged to have been paid by the plaintiff to the defendant both parties without any dispute agreed that a sum of Rs.60,20,250/- towards the sale consideration of the first item of property is admitted. However, it is the specific case of the appellant that the plaintiff has paid only a sum of Rs.23,25,000/- and not Rs.37,45,000/- as alleged by the plaintiff. Though the plaintiff admits that he has to pay a sum of Rs.47,30,000/- towards the balance, on the assumption that a sum of Rs.37,45,000/- had already paid, the main issue in this case is with regard to the actual payment made by the plaintiff towards the sale agreement. As against the claim of plaintiff, the appellant/defendant admitted the payment on several occasions to the tune of Rs.23,25,000/- towards the sale consideration of item No.2. The trial Court has categorically found that the plaintiff though claimed to have paid a sum of Rs.47,00,250/-, he failed to prove some of the payments and that as against the plaintiff's http://www.judis.nic.in 4 claim that the balance payable was only Rs.47,30,000/-, the plaintiff is liable to pay a sum of Rs.61,49,500/-. Since the plaintiff has agreed to pay the balance as per the statement of the defendant, the suit was decreed by the trial Court. The trial Court has specifically found that the plaintiff has failed to prove the payments that were made according to him. The plaintiff himself has admitted in the course of evidence that he has not made some payments which were stated to have been paid by the plaintiff in the plaint. Despite the finding by the trial Court that the plaintiff has not proved the payments by receipt or other evidence to the tune of Rs.14,19,500/-, the trial Court decreed the suit without any explanation from the plaintiff as to how the plaintiff has proved his readiness and willingness. The plaintiff has filed a suit for the following relief:
“(A) Directing the defendant to execute the sale deed for the item No.2 of the plaint scheduled properties in favour of the plaintiff after receiving the balance sale amount of Rs. 47,30,000/- (Rupees fourty seven lakhs and thirty thousand only) from the plaintiff and failing which the liberty may be given to the plaintiff to get the sale deed executed to the plaintiff through court;
(B) For a permanent prohibitory injunction restraining the defendant, his men, agents and anybody claiming right under him from making any encumbrance over the item No.2 plaint schedule properties and from making any disturbance, hindrance, nuisance etc., to the plaintiff's possession and enjoyment over the plaint schedule item No.2 and (C) Awarding Cost.”
3.From the plaint averments and the relief, it can be seen that the http://www.judis.nic.in 5 plaintiff has come forward seeking specific performance of agreement and to direct the appellant to execute the sale deed for the suit second item after receiving the balance amount of Rs.47,30,000/-. After elaborate arguments it is admitted before this Court that the plaintiff has to pay the balance sale consideration of Rs.61,49,500/-.
4.Though the learned Counsel appearing for the respondent made an attempt to establish the payment as per the plaint when he was confronted with the admission of the plaintiff in the course of evidence and the absence of any other evidence or material to prove payment to the tune of Rs.14,19,500/- he finally conceded that the finding of lower Court on the balance payable is well founded. It is relevant to point out that there is no explanation offered by the plaintiff for the miscalculation before coming to Court.
5.It is well settled that the plaintiff has to prove readiness and willingness to perform his part of the contract as per the terms of the agreement right from the date of suit. Though an issue was framed by the trial Court as to whether the plaintiff has been always ready and willing to perform his part of contract and performed his part of the contract, based on the fact that the plaintiff had performed his part of the contract in respect of item No.1 and that he is willing to pay a further sum of Rs.61,49,500/- decree for specific performance has been granted by the http://www.judis.nic.in 6 trial Court. The conclusion with regard to the readiness and willingness by the trial Court is unacceptable having regard to the settled position.
6.The Hon'ble Supreme Court in the case of Pushparani S. Sundaram v. Pauline Manomani James reported in (2002) 9 SCC 582 has held as under:
“5. For this, the appellants rely on two circumstances, one that immediately after the exemption was given by the Ceiling Authorities on the 31st March, 1982, the present suit was filed in April, 1982 and the other the tendering of further sum of Rs. 5,000/- to the defendant after execution of the agreement of sale. He also reiterates with reference to Para 11 of the plaint which pleads that the appellant was and is ready and willing to perform his part of the contract. So far these are 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 first of the two circumstances, how could mere filing of this suit, after exemption was granted could 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.
6. Next and the only other circumstance relied is about the tendering of Rs. 5,000/, which was made on the 2nd March, 1982 which was even prior to the grant of the exemption. Such small feeder to the vendor is quite often made to keep a vendor in good spirit. In this case only other payment made by the plaintiff was Rs. 5,000/-at the time of execution of the agreement of sale. Thus, total amount paid was insignificantly short of the balance amount for the execution of the sale deed. Thus, in our considered opinion the said two circumstances taken together, is too weak a filament to stand even to build an image of readiness and willingness.
Section 16(c) of the Specific Relief Act, requires that not only there be a plea of readiness and willingness but has to be proved so.”
7.In the case of H.P.Pyarejan v. Dasappa reported in (2006) 2 SCC 496 the Hon'ble Supreme Court has held that the basic principle behind Section 16(c) read with Explanation (ii) is that any person seeking http://www.judis.nic.in 7 benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief.
8.Further, the Hon'ble Supreme Court in the case of Jagjit Singh v. Amarjit Singh reported in (2018) 9 SCC 805 has observed as follows:
“4.It is settled law that a plaintiff who seeks specific performance of contract is required to plead and prove that he was always ready and willing to perform his part of the contract1. Section 16(c) of the Specific Relief Act mandates that the plaintiff should plead and prove his readiness and willingness as a condition precedent for obtaining relief of grant of specific performance. As far back as in 1967, this Court in Gomathinayagam Pillai and Ors. v. Pallaniswami Nadar [AIR 1967 SC 868] held that in a suit for specific performance the plaintiff must plead and prove that he was ready and willing to perform his part of the contract right from the date of the contract up to the date of the filing of the suit. This law continues to hold the field and has been reiterated in the case of J.P. Builders and Anr. v. A. Ramadas Rao and Anr. [(2011) 1 SCC 429] and P. Meenakshisundaram v. P. Vijayakumar & Ors. [(2018) 15 SCC 80]. It is the duty of the plaintiff to plead and then lead evidence to show that the plaintiff from the date he entered into an agreement till the stage of filing of the suit always had the capacity and willingness to perform the contract.”
9.The Hon'ble Supreme Court in the case of P.Meenakshisundaram v. P.Vijayakumar and another reported in 2018-2-LW.887 has observed as follows:
“8. As regards suit for specific performance, the law is very clear that the plaintiff must plead and prove his readiness and willingness to perform his part of the contract all through i.e., right from the date of the contract till the date of hearing of the suit.”
10.Hence, consistently this Court and the Hon'ble Supreme Court has repeatedly held that the plaintiff, who has not pleaded and proved readiness http://www.judis.nic.in and willingness, is not entitled to the relief of specific 8 performance. The plaintiff even as per the plaint averments is ready and willing to pay only a sum of Rs.47,30,000/- even though the amount payable by him is a sum of Rs.61,49,500/-. It is to be noted that the conduct of the plaintiff in a suit for specific performance is the most important factor as the relief is an equitable relief. Even though this Court found there are other reasons for denying specific relief to the plaintiff, the core fact that the plaintiff was not ready to perform his part of the contract in terms of the agreement when the suit was filed is established on the admitted facts. Hence, the plaintiff is not entitled to the relief. Hence, the judgment and decree of the trial Court is liable to be set aside on this short ground.
11.The defendant has proved his case that the plaintiff is liable to pay a sum of Rs.61,47,500/- as per the agreement and the plaintiff was not ready and willing to pay when the suit was filed. Though the plaintiff has not sought for any alternative relief for refund of money paid towards suit agreement, Court of equity is entitled to give appropriate relief to render justice between parties. In the course of argument, the learned Senior Counsel appearing for the appellant agreed for granting a decree for refund of a sum of Rs.23,25,000/- along with interest at the rate of 6% from the date of plaint, though according to him the plaintiff is not entitled to seek any further relief, having regard to the conduct of plaintiff in this case. It is admitted that a sum of Rs.23,25,000/- is lying with the http://www.judis.nic.in 9 defendant from the date of receipt of payments from April 2006 to March, 2007. This Court, having regard to the development of land and other circumstances, is inclined to direct the appellant to pay a sum of Rs.60,00,000/-. The above appeal is, therefore, allowed and the decree of the trial Court for specific performance in O.S.No.17 of 2009 on the file of the first Additional District Court is set aside. However, the appellant is directed to pay a sum of Rs.60,00,000/- within a period of four months from the date of receipt of a copy of this judgement either directly to the plaintiff or to deposit to the credit of the suit in O.S.No.17 of 2009 on the file of the First Additional District Court, Tirunelveli. On such deposit, the respondent/plaintiff is permitted to withdraw the entire amount. Though the suit property is stated to have been developed by the plaintiff, the plaintiff shall have no right to claim any right of possession over any portion of the suit second item. However, the plaintiff is also entitled to have a charge over the suit second item to recover the amount as directed by this Court. Therefore, the plaintiff is also entitled to a decree to recover a sum of Rs.60,00,000/- from the defendant as per the judgment in this appeal. The parties are directed to bear their respective costs. Consequently, the connected miscellaneous petition is closed.
Index :Yes/No (S.S.S.R.,J) (C.S.N.,J.)
Internet :Yes/No 24.01.2019
SRM
http://www.judis.nic.in
10
S.S.SUNDAR, J.
AND
C.SARAVANAN, J.
SRM
To
1.The First Additional District Judge,
Tirunelveli.
2.The Section Officer,
Record Section,
Madurai Bench of Madras High Court,
Madurai.
JUDGMENT MADE IN
A.S.(MD)No.118 of 2013
and
M.P.(MD) No.1 of 2014
24.01.2019
http://www.judis.nic.in