Madras High Court
T.E.Varadharajan vs A.Sirajuddin (Died) on 11 July, 2008
Author: A.C.Arumugaperumal Adityan
Bench: A.C.Arumugaperumal Adityan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.07.2008 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN A.S.NO.130 of 1998 T.E.Varadharajan .. Appellant/Defendant -vs- 1. A.Sirajuddin (died) 2. Noorjahan 3. Masar Ali 4. Jarina Begum 5. Nawsath Ali 6. Samsud Begum 7. Amjad Ali 8. Fathima Begum 9. Saddiq Ali 10.Feroj Begum 11.Abudahir 12.Megarajuparveen 13.Sameem Banu .. Respondents/Plaintiffs R2 to R13 brought on record as L.Rs of the deceased sole respondent vide order of Court dated 14.9.2004 made in C.M.P.Nos.14183 to 14185/2004 This appeal is filed under Section 96 of C.P.C. against the Judgment and decree passed in O.S.No.54 of 1997 on the file of Subordinate Judge, Panruti. For appellant : : Mr.R.Gururaj, Advocate For respondents: : Mr.K.Kannan,Senior Counsel for Mr.R.Sunilkumar RR 2,3,5,7,9 and 11 No appearance-RR 4,6,8,10,12,and 13 JUDGMENT
This appeal has been directed against the decree and Judgment in O.S.No.54 of 1997 on the file of the Subordinate Judge, Panruti, South Arcot District.
2. The plaintiff has filed a suit for Specific Performance of Contract on the basis of an agreement of sale entered into between the plaintiff and the defendant dated 17.5.1993 which was renewed by another agreement of sale dated 12.8.1993 in respect of the plaint schedule property a building in T.S.No.1752 Block No.45, Ward No.5 of Thirupapuli Village.
3. The brief facts of the case of the plaintiff in the plaint relevant for the purpose of deciding this appeal are as follows:
The defendant had agreed to sell the plaint schedule property for a sale consideration of Rs.4,50,000/- to the plaintiff and entered into an agreement of sale on 17.5.1993 thereunder, the defendant had agreed to sell the superstructure in the plaint schedule land and in pursuance of the said agreement of sale, had received an advance of Rs.2,00,000/- and the time stipulated for execution of the sale deed under the sale agreement was three months ie., on or before 17.8.1993, after receiving the balance of sale consideration of Rs.2,50,000/-. The penal clause was also taged in the said agreement of sale as to the effect that the party who commits default is liable to pay a sum of Rs.50,000/- to the other party to the agreement. The plaintiff was always ready and willing to perform his part of the contract i.e, payment of the sale consideration of Rs.2,50,000/- and getting the sale deed executed at his cost. The defendant had agreed to hand over the letter of consent given by the temple for the construction of the building, the municipal approved plan for the construction and the rent receipt given by the temple for payment of rent by the defendant. Since the defendant could not hand over the said documents, he had executed a hand letter dated 17.5.1993 to the effect that he will hand over the consent letter of the temple, the Municipal approved plan for the construction of the building and also the rent receipts issued by the temple in favour of the defendant in respect of the land on which the superstructure stands. The defendant had received a sum of Rs.25,000/- out of the balance of sale consideration on 1.6.1993 and executed a hand letter in his letter head , totalling the plaintiff had paid a sum of Rs.2,25,000/- in terms of the agreement of sale and he is liable to pay only a sum of Rs.2,25,000/- towards balance of sale consideration. Under pretext of non-availability of the consent letter given by the temple for the construction of the building, which is the subject matter in the sale agreement and the Municipal approved plan for the construction and the rent receipts issued by the temple authorities in favour of the defendant, the defendant is taking time to perform his part of the contract and that the period of execution of the sale deed was also extended by three months upto 12.11.1993 and he undertook to execute the sale deed on or before 12.11.1993. Since the earlier sale of agreement dated 17.5.1993 was retyped with correction of dates only the payment of Rs.25,000/- on 1.6.1993 was omitted to be mentioned in the agreement dated 12.8.1993 by mistake and the plaintiff also overlooked the same. The balance payable is only Rs.2,25,000/-, if for any reason, the Court does not agree with the payment of Rs.25,000/- on 1.6.1993 towards the balance of sale consideration, the plaintiff is prepared to pay Rs.25,000/- if the Court so directs towards the balance of sale consideration. The plaintiff was always ready and willing to perform his part of the contract. The plaintiff sent a notice to the defendant on 22.6.1996 demanding the defendant to perform his part of the contract as per the agreement within ten days. The defendant, knowing the contents, evaded to receive the same. The said notice was returned as"not claimed". The plaintiff is already in possession of the property and is doing business under the name an style of "Noor Fancy Stores" and there is no dispute about the plaintiff's possession. Without prejudice to the claim of specific performance, the plaintiff alternatively submits that the defendant is liable to refund a sum of Rs.2.25 Lakhs, the amount received from him with interest at the rate of 12% p.a from 12.11.1993. Hence the suit.
4. The defendant in his written statement would contend that the suit is not maintainable and the defendant had executed an agreement of sale on 12.5.1993 for a sum of Rs.4,50,000/-, but he had not received an advance of Rs.2,00,000/- as stated in the plaint. The plaintiff has paid a sum of Rs.50,000/- only and not Rs.2,00,000/- towards advance under the agreement of sale. The plaintiff and the defendant had entered into "Varthamanam Patram" on 7.2.1992 in respect of the running of the shop belonging to the defendant and then an advance of Rs.1,50,000/- was paid. The period mentioned in the Varthamanam is over. The said amount of Rs.1,50,000/- advanced for the Varthamanam had been included and shown as Rs.2,00,000/- for the document which is wrong on the face of it. The period mentioned in the Varthamanam is already over and the advance amount of Rs.1,50,000/0 has to be adjusted towards the amounts due to this defendant under the terms of the Varthamanam and for the balance amount due by the plaintiff. The advance amount of Rs.1,50,000/- has been repeated in the agreement and really a sum of Rs.50,000/- alone was paid as advance. It is false to state that the advance amount of Rs.2,00,000/- was paid for the suit document. The construction put up by the plaintiff in respect of penalty clause is wrong and illegal. The penalty clause has been introduced for the purpose of securing performance of the contract and not for the purpose of giving the party in default an option of paying money in lieu of specific performance. There was no intention for the defendant to sell the plaint schedule property building to the plaintiff. The letter dated 17.5.1993 was executed by this defendant gave a lot of pressure and great amount of exertion. The defendant had received a sum of Rs.25,000/- on 1.6.1993 and issued the letter. The total amount received by this defendant is only a sum of Rs.75,000/- and not Rs.2,25,000/-. The plaintiff himself came up with another agreement mentioning the date as 12.8.1993 and asked the defendant to sign it. The other allegation in respect of omission of the figure of Rs.25,000/- is not correct. The plaintiff was never ready and willing to perform his part of the contract. The defendant has not received any suit notice from the plaintiff. This defendant never evaded to receive the notice. As per the terms of Varthamanam, the plaintiff ought to have handed over the possession of the plaint schedule building long back to the defendant. As per the terms of the agreement, the contract had to be performed before 17.5.1993 and as per the terms of the second agreement, the sale deed ought to have been executed on or before 12.8.1993. The said time was construed as essence of contract. The plaintiff has failed to perform his part of the contract within the time stipulated under the sale agreement and hence the advance amount paid by him is liable to be forfeited. There is no provision made in the agreement for the plaintiff to enforce the specific performance of contract. The plaintiff is not also entitled to ask for refund of the amount or any penalty since he has defaulted in part performance of the contract within the stipulated time. Due to his lapse , the advance amount stands forfeited and as such the plaintiff is not entitled to ask for refund of amount of advance paid under the agreement of sale. The suit as framed is not maintainable. Hence the suit is liable to be dismissed.
4. In the additional written statement, the defendant would submit that site in which the superstructure which is the subject matter in the agreement of sale belongs to Sri Pataleeswarar Temple, Cuddalore. The defendant is a tenant of the temple in respect of the site and the building alone belongs to the defendant. The tenancy has not yet been transferred in the name of the plaintiff who is in occupation of the property under a Varthamanam agreement. The temple has not yet recognised the plaintiff as its tenant. The temple comes within the purview of Hindu Religious Charitable Endowment Act(hereinafter referred to as"HR & CE Act). Unless the plaintiff's possession is proved and the department grants permission, the plaintiff cannot execute the said sale deed. The said transaction is prohibited by law and is in any event against public policy. Without the permission of the Hindu Religious Charitable Endowment Board, the transaction between the plaintiff and the defendant cannot be enforced through the Court. In this case, the time was essence of contract even after the subject matter of the suit is construed as immovable property. The suit is barred by time and the right of the plaintiff under the document stands extinguised.
5. The plaintiff has filed a reply statement contending that there is no question of waiver or abandonment of the right of the plaintiff and the plaintiff was insisting the defendant to perform his part of the contract but the defendant alone was evading to perform his part of the contract. The site scheduled to the plaint is not the subject matter of the suit, even though, it belongs to Arulmighu Padaleeswarar Temple, Cuddalore. The plaintiff's possession in respect of the superstructure of the plaint schedule property has been approved by the Department concerned. It is not correct to say that without permission of the Board by its competent authority, the transaction cannot be enforced through the Court,the subject matter of the suit, viz., the building belongs to the defendant. After agreeing the defendant's right and title in respect of the superstructure of the plaint schedule property only , the plaintiff has come forward to enter into an agreement of sale with the defendant in respect of the building in the suit property. A sum of Rs.1,50,000/- mentioned in the varthamanam letter was never adjusted with the suit transaction. The defendant never agreed for adjustment of the amount advanced on the varthamanam agreement towards the advance for the sale agreement. It was agreed that the amount due under Varthamanam agreement has to be deducted at the time of sale. The plaintiff was not pressurised the defendant to issue letter dated 17.5.1993. The defendant is not entitled to approbate and reprobate. The defendant has never ready and willing to perform his part of the contract.
6. On the above pleadings, the learned trial Judge had framed two issues and three additional issues on 8.7.1993 and three more additional issues subsequently for trial. On the side of the plaintiff, the plaintiff was examined as P.W.1 and exhibited Exs A1 to A6. On the side of the defendant, the defendant has examined himself as D.W.1 and Exs B1 to B11 were marked. After meticulously scanning the evidence both oral and documentary, the learned trial Judge has come to a conclusion that the plaintiff is entitled to a decree for specific performance of contract on payment of balance of sale consideration of Rs.2,25,000/- and accordingly decreed the suit granting the relief for specific performance of contract with costs. Aggrieved by the findings of the learned trial Judge, the defendant has preferred this appeal.
7. Heard the learned counsel appearing for the appellant and also learned senior counsel appearing for the respondents and considered their respective submissions.
8. The points that arose for determination in this appeals are
1) Whether there was any valid agreement of sale entered into between the plaintiff and the defendant in respect of the plaint schedule property?
2)Whether the parties have agreed to perform their contract within the stipulated time?
3) Whether the decree and Judgment in O.S.No.54 of 1997 on the file of the Subordinate Judge, Panruti is liable to be set aside for the reasons stated in the memorandum of appeal?
9. Point Nos.1 and 2:
Admittedly, the site on which the superstructure is situate in the plaint schedule survey number property belonged to Sri Pataleeswarar Temple and that the defendant is a lessee of the site alone of the plaint schedule property under the said temple. It is the case of the parties that after becoming lessee of the said temple, the defendant had put up a superstructure, which is the subject matter of the suit and had entered into an agreement of sale with the plaintiff under Ex A1 dated 17.5.1993 which is an unregistered one. The time stipulated for performance of the contract under Ex A1 is 17.8.1993 ie., three months from the date of Ex A1 agreement of sale. The sale consideration for the superstructure was Rs.4,50,000/- and as per the recitals in Ex A1, a sum of Rs.2,00,000/- was paid by the plaintiff to the defendant on the date of execution of Ex A1 sale agreement towards part of the sale consideration. There is a penal clause attached to Ex A1 which reads that in case, the defendant failed to execute the sale deed in favour of the plaintiff before 17.8.1993, he is liable to pay over and above the sale consideration Rs.20,000/- towards damages and in case of failure of the plaintiff to get the sale deed executed after paying the balance of sale consideration to the defendant, the plaintiff has to forego Rs.50,000/- out of Rs.2,00,000/- paid towards advance. Admittedly, the sale deed could not be executed before 17.8.1993, the time stipulated under Ex A1. Five days before the expiry of the time stipulated under Ex A1, ie., on 12.8.1993, both the parties have entered into another agreement of sale under Ex A4 . Ex A4 is nothing but a replica of Ex A1. Under Ex A4 , the time for performance of contract alone has been extended to another three months from 12.8.1993 ie., the date of execution of Ex A4 agreement. Under Ex A2, the defendant had admitted that under the sale agreement dated 17.5.1993, Ex A1 , he had received a sum of Rs.2,00,000/- towards advance for executing the sale deed in terms of Ex A1 sale agreement. But he would further add that as agreed by him, he could not furnish the documents relating to the permission given by the Thirupapuliyur Sri Pataleeswarar Temple Devasthanam permitting him to put up construction in the land leased out to him by the temple, the approved plan for the construction of the building, the rent receipts and also tax receipts to the plaintiff. He has further categorically stated in Ex A2 that if he could not furnish those document within 15 days from 17.5.1993, the sale agreement shall be treated as cancelled and that he is prepared to pay the damages. Ex A3 is an acknowedgment(receipt) for having received Rs.25,000/- from the plaintiff on 1.6.1993 in lieu of the sale agreement Ex A1. Admittedly, the defendant had not executed the sale deed within 12.11.1993, the time stipulated by the parties under Ex A4 sale agreement. So it goes without saying that even though the time has been stipulated under Ex A4, the parties have failed to act upon in terms of the agreement within the time stipulated under Ex A4 agreement. So it cannot be said that the parties considered the time as essence of contract.
9a) After a long duration of 34 months, the plaintiff in order to enforce the sale agreement entered into between the plaintiff and the defendant under Ex A4, had issued notice under the original of Ex A5 demanding the defendant to perform his part of the contract by executing the sale deed at his cost within ten days from the date of receipt of original of Ex A5 Notice. Ex A5 is dated 22.6.1996. The defendant has not received the notice and the same was returned by the postal department, as seen from Ex A6 returned postal cover.
9b) The defendant while deposing before the trial Court as D.W.1 would give a lame excuse for the non receipt of Ex A6 notice. According to him, at the time of Ex A6 notice, he was out of station in connection with a marriage of an Advocate at Tirunelveli by name Thiru R.Ayyamperumal, who is practising at Supreme Court. To substantiate this, he has produced Ex B6 wedding invitation for Thiru R.Ayyamperumal, Advocate. But apart from his Ipse Dixit, there is no other evidence like bus ticket or railway ticket or flight ticket to show that on 22.6.1996 the defendant had attended the marriage of Thiru R.Ayyamperumal, at Tirunelveli. The defendant while pleading alibi for non service of Ex A6 notice, is bound to prove that during the relevant point of time, ie., at the time of Ex A6 notice, he was out of station. The endorsement in Ex A6 by the postal department would go to show that inspite of intimation given to the defendant, the notice was not claimed by the defendant hence returned to the sendor. In a suit for specific performance, it is the bounden duty of the plaintiff as well as the defendant to prove that they are always ready and willing to perform their respective part of the contract. If we take the plaintiff in this case, he had issued Ex A6 notice, 34 months after expiry of the time for performance of contract under Ex A4 ie., 12.11.1993. If we take the conduct of the defendant, he had never cared to demand the plaintiff to perform his part of the contract by way of issuing any notice. Whereas, under Ex A2 , hand letter, he will furnish the relevant document within 15 days from 17.5.1993, in case of failure to produce those documents to the plaintiff, the plaintiff can treat the agreement of sale as cancelled and that he is prepared to pay the damages for the same as agreed under Ex A1 sale deed dated 17.5.1993.
9c) D.W.1 himself would admit in the chief examination that the site on which the superstructure , the subject matter of the suit belongs to Sri Padaleeswarar Temple, Cuddalore and that the said temple is under the control of HR & CE Department. But he would claim that the superstructure , the subject matter of the suit alone belongs to him . But to our dismay, there is absolutely no materials produced by the defendant to show that the superstructure , the subject matter of the suit belongs to him and that after getting necessary permission from the HR & CE Department/temple authorities, the defendant had put up the superstructure over the suit site.
9d) At this juncture, it is pertinent to note that the temple is also not a party to the suit. The learned counsel appearing for the respondent/plaintiff would contend that the temple is not a necessary party because the suit for specific performance of contract was filed under Ex A4, sale agreement entered into between the plaintiff and the defendant in respect of the building which belongs to the defendant and that the site in which the said building is situate alone belongs to Pataleeswarar temple. If it is so, then it is the bounden duty of the parties to the agreement under Ex A4 to show that the subject matter of the agreement under Ex A4 ie., the superstructure belongs to the defendant and that the Pataleeswarar temple had permitted the defendant to put up the building on the site which was leased out by the temple to the defendant. I am of the considered view that if a decree for specific performance is passed in favour of the plaintiff, then it will indirectly affect the interest of the temple over the suit property. In this connection, Section 34C of HR & CE Act has got some relevance to be referred. Section 34 C of HR & CE Act runs as follows:
"Alienation of immovable trust property:-
(1) Any exchange, sale or mortgage and any lease for a term exceeding five years of any immovable property, belonging to, or given or endowed for the purposes of, any religious institution shall be null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution.
Provided that before such sanction is accorded, the particulars relating to the proposed sanction shall be published in such manner as may be prescribed, inviting objections and suggestions with respect thereto; and all objections and suggestions received from the trustee or other persons having interest shall be duly considered by the Commissioner.
Provided further that the Commissioner shall not accord such sanction without the previous approval of the Government.
Explanation: Any lease of the property above mentioned though for a term not exceeding five years shall, if it contains a provision for renewal for a further term(so as to exceed five years in the aggregate) whether subject to any condition or not, be deemed to be a lease for a period exceeding five years.
(2) When according such sanction, the Commissioner may impose such conditions and give such direction, as (he) may deem necessary regarding the utilisation of the amount raised by the transaction, the investment thereof and in the case of a mortgage, regarding the discharge of the same within a reasonable period.
(3) A copy of the order made by the Commissioner under this Section shall be communicated to the Government and to the trustee and shall be published in such manner as may be prescribed.
(4) The trustee may, within three months from the date of his receipt of a copy of the order, and any person having interest may, within three months from the date of the publication of the order, appeal to the Court to modify the order or set it aside.
(4-A) The Government may issue such directions to the Commissioner as in their opinion are necessary, in respect of any exchange, sale, mortgage or lease of any immovable property, belonging to, or given or endowed for the purpose of, any religious institution and the Commissioner shall give effect to all such directions.
(5) Nothing contained in this Section shall apply to the inams referred to in Section 41."
The above Section 34 has subsequently been amended under Act 25/2003 and Section 34 A to 34 D were taged down to Section 34.
As per Section 34 B of the amended HR & CE Act(Tamil Nadu Act 25 of 2003),on the termination of the lease , the trustee or the Executive Officer, the Trustee or the Chairman of the Board of Trustees have every power to take possession of the property leased out building including building superstructure and trees. Section 34B runs as follows:
"Termination of lease of immovable property:-
1) The lease of immovable property belonging to, or given or endowed for the purpose of, any religious institution shall be liable to be terminated on the non-payment of the lease rent after giving a reasonable opportunity of being heard.
2) No proceeding to terminate the lease shall be initiated, if-
(i) the time for appeal or revision under Sub-section (3) or Sub Section(5), as the case may be, of Section 34-A has not expired; or
(ii) the order has been made the subject of such appeal or revision till the disposal of the matter.
3)On the termination of the lease under Sub Section (1), the property shall vest with the concerned religious institution free from all encumbrance and the Executive Officer, the Trustee or the Chairman of the Board of Trustees, as the case may be, of such religious institution shall take possession of the property including the building, superstructure and trees, if any.
So from the above said provision of law, it is crystal clear that even though a lessee under the temple of the site which belonged to the temple had put up a superstructure over it he cannot claim exclusive right against the superstructure put up by him on the land taken on lease by him from the temple. After the termination of the lease, the authorities of the public temple has got every right to take possession of the superstructure inclusive of fixtures put up by the lessee over the land which was leased out to him by the said temple. If such be the position of law, the agreement entered into between the plaintiff and the defendant under Ex A4 for sale of the building put up by the defendant on the land taken by him on lease from the Sri Pataleeswarar Temple of Cuddalore as lessee cannot be enforced under law.
10.On the side of the learned counsel appearing for the appellant reliance was based on a ratio decidenti in Gopal Krishnaj Ketkar-v- Mohamed Haji Latif(AIR 1968 Supreme Court 1413) for his stand that under Section 114(g) of the Evidence Act, the Court has to take adverse inference against the party who fails to produce the relevant document which is in his custody. The relevant observation in the said dictum of the Honourable Supreme Court runs as follows:
" It is not in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. In Murugesan Pillai.v. Gnana Sambandha Pandara Sannadhi, 44, Ind App 98 at P.103 = (AIR 1917 PC 6 at p.8) Lord Shaw observed as follows:
"A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to the Courts the best material for its decision. With regard to third parties, this may be right enough- they have no responsibility for the conduct of the suit but with regard to the parties thee suit it is, in their Lordships' opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition."
11. The learned counsel for the appellant/defendant would contend that it is the duty of the plaintiff to produce income tax records to show that he had paid Rs.2,00,000/- towards advance under Ex A4 and that the suppression of the said income tax records will derive the Court to take an adverse inference against the plaintiff as to that he has not paid Rs.2,00,000/- towards advance. But this contention of the learned counsel for the appellant cannot hold any water because both Ex A1 agreement of sale as well as under Ex A4 sale agreement which is nothing but a replica of Ex A1, the parties have admitted that the plaintiff had paid a sum of Rs.2,00,000/- towards part of sale consideration under the agreement of sale. Further Ex A2, a receipt for having received a sum of Rs.2,00,000/- from the plaintiff, was also issued by the defendant in favour of the plaintiff. Relying on a Division Bench of this Court in K.Kalianna Gownder-v-A.Kalianna Gownder(1986 II M.L.J 470) wherein the dictum is that under Section 114(G) of the Indian Evidence Act, if a scribe and attester to the document was not examined, the Court can presume that the said document was not proved in accordance with law and can take adverse inference against the said document. But the said dictum was relied on by the learned counsel for the appellant to show that no advance amount was paid under Ex A4 document since no witness to the said document was examined. But the facts of the said case are that under Ex A1 agreement in the said suit, the second respondent and his father Chinnappa Gounder had agreed to sell certain properties to the first respondent for a consideration of Rs.14,000/- and received Rs.1,500/- by way of advance. The first respondent had agreed to discharge certain mortgage and pronote debts due by the second respondent and his father to one Kandaswami Gounder amounting to Rs.11,272 within one year and the balance of Rs.1,228 was agreed to be paid and received at the time of execution of the sale deed. In November 1964, the second respondent and his father approached the first respondent and asked him to discharge the subsisting debt in respect of the property agreed to be sold under the agreement of sale. Since the first respondent declined to accede to the request of the second respondent and his father, the second respondent and his father entered into another agreement under Ex B1 for the sale consideration of Rs.15,000/-. In the said document, there was a recital to the effect that a sum of Rs.2,000/- towards advance to the second respondent and his father and the sale deed could be postponed till the disposal of that suit. Believing the representation made by the second respondent, the first respondent did not insist upon the execution of the sale deed within one year as stipulated under the terms of Ex A1. The first respondent, thereafter, instituted the suit for specific performance of Ex A1 impleading the appellants as defendants 6 to 8 contending that the sale deed in their favour executed on 9.5.1965 was not valid and supported by consideration and that Ex A1 was the only true and valid agreement of sale and that Ex B1 came into existence long after Ex A1.Now it has become the bounden duty of the plaintiff in that suit to prove Ex A1 dated 13.11.1964. There was two witnesses to Ex A1 present at the Sub Registrar's office at Mallasamudram at the time of registration of Ex A1 dated 13.11.1964 and they have also attested the document. But no one was examined to prove the execution of Ex A1. Only under such circumstances, the Bench of this Court has held that in the absence of examination of scribe or attestor to the document, adverse inference is to be taken by the Court under Section 114(G) of the Indian Evidence Act. But the said facts of the case will not be applicable to the present facts of the case because to prove the payment of advance of Rs.2,00,000/- under Ex A1 itself, the plaintiff has produced Ex A2, letter executed by the defendant in favour of the plaintiff.
12. The defendant further as D.W1 in his evidence in the cross examination at page 16 would admit that Ex A2 contained his signature. But he would state that since he is in urgent need of money, he had signed in Ex A2. But a recital in Ex A2 will go to show that in pursuance of the agreement of sale dated 17.5.1993, he had received Rs.2,00,000/- from the plaintiff towards part of the sale consideration and also undertook to produce the document like permission letter given by Sri Pataleeswarar Temple Devasthanam for the construction of the building, municipal approved plan for construction of the building and tax receipts. There is absolutely no materials placed before the trial Court to show that Ex A2 is a concocted document.
13. The learned counsel appearing for the appellant relying on a decision reported in Chand Rani(dead) by L.Rs-v- Smt Kamal Rani(dead) by L.Rs(AIR 1993 Supreme Court 1742)would contend that in case of sale of immovable property, there is no presumption as to time being the essence of the contract. There cannot be two opinions with regard to the said proposition of law. But in this case, even though under Ex A1 and Ex A4 specific time has been stipulated for performance of the contract, by act of parties, it was not given effect to. The defendant has also not issued any notice to the plaintiff demanding to perform his part of the contract and the plaintiff has also not issued notice within the time stipulated under Ex A4 to the defendant demanding to perform his part of the contract. Only after a lapse of 34 months from the date of Ex A4, the plaintiff has issued the original of Ex A5 notice. The relevant observation in the above said dictum runs as follows:
" Where in an agreement to sell the immovable property, it was stipulated that amount in part was to be paid within 10 days of the execution of the agreement and the balance has to be paid at the time of registration of deed and it was agreed that the vendor would redeem the property which was mortgaged and also obtain the income tax clearance certificate and the word 'only' was used twice ie. to qualify the amount and to qualify the period of payment of such amount ie., ten days it was held that the intention of the parties was to make time as essence of contract and in such case, when the purchaser was not ready and willing to pay the amount in part as agreed, before delivery of possession and income tax clearance certificate and redemption of property, it was contrary to the conditions of the agreement and the purchaser was not entitled to the specific performance of contract."
On the facts of the present case, the above said dictum will not be applicable.
13a) The learned counsel appearing for the appellant relying on J.J.Abdul Jabbar Rowther-v-V.J.Mani Raj(1994(1) MLJ 205(DB) would contend that as per Section 20(2) of Specific Performance Act, the Court has to exercise properly its discretion not to decree specific performance where the terms of the contract on the conduct of the parties are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant. According to the learned counsel, the learned trial Judge without considering the fact that the plaintiff was never ready and willing to perform his part of the contract and his notice of payment was made only after 34 months from the date of Ex A4 itself will go to show that the plaintiff was never ready and willing to perform his part of the contract, and under such circumstances,ought not to have decreed the suit for specific performance of contract. For the same proposition of law, the learned counsel for the appellant has also relied on the dictum in Parakunnan Veetill Joseph' son Mathew-v- Nedumbara Kuruvila's son (AIR 1987 Supreme Court 2328) wherein the relevant observation runs as follows:
" S.20 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff."
and Mrs Sandhya Rani Sarkar-v- Smt Sudha Rani Debi(AIR 1978 Supreme Court 537) wherein the ratio decidenti is that" in a suit for specific performance of contract for sale of immovable property it is incumbent upon the plaintiff to affirmatively establish that all throughout he or she, as the case may be, was willing to perform his or her part of the contract, and that the failure on the part of the plaintiff to perform her part of the contract or willingness to perform her part of the contract may in an appropriate case disentitle to her relief, one such situation being where there is inordinate delay on the part of the plaintiff to perform his or her part of the contract. The question whether relief of specific performance of the contract for the purchase of immovable property should be granted or not always depends on the facts and circumstances of each case and the Court would not grant such a relief if it gives the plaintiff an unfair advantage over the defendant." In N.P.Tirugnanam(died) by Lrs-v- Dr.R.Jagan Mohan Rao(1995 MLJR 118), the relevant observation is that it is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the Court which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under Sec.20 of the Specific Relief Act 1963. Under Sec.20, the Court is not bound to grant the relief just because there was valid agreement of sale. Sec16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstances is material and relevant and is required to be considered by the Court while granting or refusing to grant the relief. If the plaintiff fails either to aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration, the conduct of the plaintiff prior and subsequent to filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree, he must prove that he is ready and has always been willing to perform his part of the contract. As stated the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The Court may infer from the facts and circumstances whether the plaintiff was always ready and willing to perform his part of Contract." The other dictum relied on by the learned counsel appearing for the appellant for the same proposition of law is Jugraj Singh-v-Raj Singh(AIR 1995 Supreme Court 945) wherein it has been held by the Honourable Apex Court that the plea about ready and willingness of plaintiff is specifically available to the vendor or his legal representatives. It is personal to him. The subsequent purchasers have got only the right to defend their purchase on the premise that they have no prior knowledge of the agreement of sale with the plaintiff. They are bona fide purchasers for valuable consideration. Though they are necessary parties to the suit, since any decree obtained by the plaintiff- purchaser would be binding on the subsequent purchasers, the plea that the plaintiff must always be ready and willing to perform his part of the contract must be available only to the vendor or his legal representatives, but not to the subsequent purchasers."
13b) In R.Krishnasamy Naidu-v- Amt.Ambrose (1996 (1) M.L.J.566) the law laid down was that "in the present case, the fact that plaintiff was residing in the suit property even before the agreement, is seen from the very recital in the agreement. He continues to be in possession and enjoyment of the property without paying the rent for the use and occupation of the premises, even though he has paid a sum of Rs.10,000/- as advance, out of the sale consideration of Rs.30,000/-. The owner of the property is in France and the plaintiff has put up a false case that the power of attorney of the owner has agreed to produce the title deed and encumbrance certificate and failed to do so. When these aspects are taken into consideration, it is apparent that the plaintiff even though had stated that he was ready and willing to perform his part of the agreement, actually he was not ready and willing to perform his part of the contract. Sc.55(1)(b) of the Transfer of Property Act provides that the seller is bound to produce to the buyer on his request for examination all documents of title relating to the property which are in the seller's possession or power."
13c)In B.K.Jayaraman-v.K.Subramanian(1994(2)MLJ,465) while dealing with Section 20 of Specific Relief Act, a Bench of this Court has held that it is true that mere delay in seeking for the relief of specific performance by itself cannot be a ground for the Court to refuse to exercise its judicial discretion to grant the equitable relief. But in this case, there is wanton delay and unexplained silence even after the tenant vacated the premises. The course of conduct on the part of the appellant demonstrates an attitude of Wanton drift adopted by the appellant which itself is an indicia of his unwillingness to involve himself further in the bargain. In the view of the Court, abandonment of the contract could be presumed by reason of the course of conduct adopted by the appellant who is deliberately silent about his rights and wakes up only at a convenient time when he can have unfair advantage over the other."
13d) In K.S.Vidyanadam-v-Vairavan(1997(3) Supreme Court Cases 1), after the payment of advance under the sale agreement, the plaintiff kept quiet for 2/12 years from initiating any proceedings on the basis of the sale agreement entered into between him and the defendant . Under such circumstances, the suit filed by the plaintiff was dismissed with the following observations by the Honourable Apex Court:
"Agreement for sale of immovable property-discretionary power of Court to decree specific performance-circumstances to be considered in exercising the discretion- Readiness and willingness of plaintiff to perform his part of the contract- inference against- eventhough time not of the essence of contract of sale of immovable property and suit can be filed within the period of three years provided under Art.54 of Limitation Act, but it should be performed within a reasonable time having regard to terms of the contract prescribing a time limit and nature of the property- if property is a house located in an urban area, continuing steep rise in price thereof would be a relevant factor for the court to decide whether the delay or laches on the part of the plaintiff to perform his part of the contract would disentitle him the relief of specific performance- where agreement specifying period of 6 months within which plaintiff had to purchase the stamp papers, tender the balance amount of consideration and require the defendants to execute the sale deed, total inaction for 2 = years after initial payment of a small amount as earnest money by the plaintiff would be a circumstance which would weigh against exercise of discretion for grant of specific performance of the agreement in favour of the plaintiff."
13e)In Ajaib Singh-v- Tulsi Devi(2000(6) Supreme Court Cases 566), while discussing about the impact of Section 16(c) of Specific Relief Act ,1963, the Honourable Apex Court has held that "on facts,could not be said to have been proved where the record clearly showed that respondent-plaintiff had not made all the necessary instalment payments under the agreement-more so, when respondent- plaintiff had made averments without regard to the truth- Agreement in this case(i) was for transfer to respondent of one part of suit property, which was originally allotted to appellant by Govt., transfer to be carried out after full payment to Govt., from funds supplied by respondent;(ii) provided for loan to appellant to pay for the second part of the property; and(iii) included a condition that second part of property would also be transferred to respondent in case loan or any instalment not repaid-The fact that Govt.did not terminate the contract on account of non-payment held, would have no bearing on the fact of respondent not having performed her obligations under the agreement."
13f)In the following cases M/s Raval and Co.,-v- K.G.Ramachandran(AIR 1974 Supreme Court 818),Seeni Chettiar-v- Santhananathan Chettiar(1L.R.20 Madras 58), and Panchugopal Barua-v-Umesh Chandra Goswami(1997(2) M.L.J.27(SC) reliance has been placed by the learned counsel appearing for the appellant to show that since the plaintiff has not approached the Court with clean hands, he is not entitled to a decree for specific performance. But those dictums differ from the facts of the present case because there is absolutely no bonafides shown on the part of the parties to enforce the sale agreement entered into between them under Ex A4. In my view both of them have failed to prove that they were always ready and willing to perform their respective part of the contract.
14. The learned counsel appearing for the respondents would contend that the reason for the delay in sending notice under the original of Ex A5 by the plaintiff is that the defendant has not produced the relevant documents required for registration of the sale deed as agreed to by him under Ex A2. In support of the above contention the learned counsel for the respondent relied on a decision reported in Mademsetty Satyanarayana-v-G.Yelloji Rao(AIR 1965 Supreme Court 1405) wherein the dictum runs as follows:
"Under S.22 of the Specific Relief Act, relief of specific performance is discretionary but not arbitrary. Discretion must be exercised in accordance with sound and reasonable judicial principles. The cases providing for a guide to Courts to exercise discretion one way or other are only illustrative; they are not intended to be exhaustive. As Art.113 of the Limitation Act prescribes a period of 3 years from the date fixed thereunder for specific performance of a contract, it follows that mere delay without more extending upto the said period cannot possibly be a reason for a Court to exercise its discretion against giving a relief of specific performance. Nor can the scope of the discretion, after excluding the case mentioned in S.22 of the Specific Relief Act, be confined to waiver, abandonment or estoppel. If one of these three circumstances is established, no question of discretion arises for either there will be no subsisting right or there will be a bar against its assertion. So, there must be some discretionary field unoccupied by the three cases, otherwise the substantive section becomes otiose."
14a) The learned counsel appearing for the respondent relying on a decision reported in P.Kathavan Servai -v- Rahima Beevi(1989 (1) MLJ 279) would contend that "an efficacious remedy could not given for specific performance of contract, then the Court can grant an alternative remedy of refund of arrears of money or deposit paid by the plaintiff. The relevant observation in the said dictum is that the power of the Court to grant relief under clause(b) of Sub-section (1) shall be without prejudice to its powers to award compensation under Section 21. We are not concerned with clause(a) of Sub Section (1) thereof. The reliefs thereunder are in addition to specific performance . We are concerned with clause(b) of Sub Section (1), which speaks about the alternative reliefs the plaintiff could ask for . The alternative reliefs would include the refund of any earnest money or deposit paid or made by the plaintiff. The grant of the alternative relief would arise only in case the plaintiff's claim for specific performance is refused. When the plaintiff asks for the alternative relief, there is no legal presumption or assumption that he gives up the main or primary relief of specific performance of the contract. The plaintiff primarily wants the relief of specific performance of contract pleads that in case that primary relief is to be refused he should be granted the alternative relief." In the case on hand as I have already observed both the plaintiff and the defendant have failed to perform their respective part of the contract, and, there is absolutely no material placed before this Court to show that the subject matter of the sale agreement under Ex A4 viz., superstructure in the plaint schedule property site was put up by the defendant with the permission of Sri Pataleeswarar Temple, Cuddalore, admittedly, the owner of the site in which the alleged superstructure has been put up by the defendant and as per Section 34 B(iii) of HR & CE Act, the temple Devasthanam has got every right to take possession of the building which is the subject matter of Ex A4 agreement, I am of the view that the main relief of Specific Performance of the contract cannot be granted in favour of the plaintiff but the alternative remedy of refund of Rs.2,25,000/- alone with interest can be granted in favour of the plaintiff. For the same proposition of law, the learned counsel for the respondents would rely on a decision reported in K.V.Narasimhan(died) Kancheepuram-v- S.Salammal(2008(3) MLJ 1395). The facts in Ajit Prashad Jain-v-N.K.Widhani(AIR 1990 Delhi 42) has no bearing to the facts of the present case. In the above said case, the permission was obtained from the Urban Land (Ceiling & Regulation) Act whereas in the case on hand there is no material placed before this Court to show that the permission has been obtained from the temple authorities by the defendant to put up construction in the land which belongs to the temple.
14b) The other dictum relied on by the learned counsel for the respondents in Motilal Jain -v- Smt Ramdasi Devi (2000(3) M.L.J.202 (SC)also deals with Section 16(c) of the Specific Relief Act wherein the relevant observation is that " the language in Section 16(c) of the Specific Relief Act does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So , the compliance of readiness and willingness has to be in spirit and substance and not in letter or form. It is thus clear that an averment of readiness and willingness in the plaint is not a mathematical formula which should be in specific words. If the averments in the plaint was a whole do clearly indicate the readiness and willingness of the plaintiff to fulfill his part of the suit, the fact that they are differently worded will not initiate against the readiness and willingness of the plaintiff in a suit for specific performance of contract for sale." Since there is no material to show that the defendant is the owner of the superstructure the subject matter in Ex A4, I am of the considered view that the plaintiff is not entitled to the relief of specific performance of the contract. Point Nos 1 and 2 are answered accordingly.
15.Point No.3:
In view of my discussion in the earlier paragraphs, I hold that the decree and Judgment in O.S.No.54 of 1997 on the file of Subordinate Judge, Panruti is liable to be modified and the suit filed by the plaintiff is liable to be decreed only for the alternative relief of refund of the advance amount and is liable to be dismissed in respect of the relief of specific performance of the contract.
16. In fine, the appeal is allowed in part and the decree and Judgment in O.S.NO.54 of 1997 on the file of Subordinate Judge, Panruti in respect of grant of Specific Performance of contract is hereby set aside and the suit is decreed for refund of advance amount of Rs.2,25,000/- with interest at the rate of 9% per annum from the date of the suit till the date of realisation. No costs.
11.07.2008 Index:Yes Internet:yes sg To
1. The Subordinate Judge, Panruti
2.The Record Keeper, V.R.Section, High Court, Madras A.C.ARUMUGAPERUMAL ADITYAN,J sg A.S.NO.130/1998 11.07.2008