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[Cites 5, Cited by 3]

Madras High Court

K.Nirmala vs Sellamuthu on 16 April, 2014

Author: P.R.Shivakumar

Bench: P.R.Shivakumar

       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATE:   16.4.2014.

CORAM

THE HON'BLE MR.JUSTICE P.R.SHIVAKUMAR

S.A.No.1180 of 2008
and
M.P.No.1 of 2008

K.Nirmala								Appellant

		vs. 

Sellamuthu								Respondent
	
	Second Appeal against the judgment and decree dated 21.8.2007 in A.S.No.308 of 2003 on the file of the Additional District Judge (Fast Track Court), Namakkal as against the judgment and decree dated 30.9.2003 in O.S.No.54 of 1996 on the file of the Sub Judge, Namakkal. 

	For appellant	: Mr.S.Mukunthan for
				  M/s.Sarvabhauman Associates

	For respondent 	: Mr.T.Dhanyakumar

JUDGMENT

Defendant in O.S.No.54 of 1996 on the file of the Sub Court, Namakkal is the appellant in the second appeal.

2. Sellamuthu, the respondent herein filed the abovesaid suit for the relief of specific performance based on an agreement for sale dated 23.2.1993 executed by the appellant herein containing recitals to the effect that she had agreed to sell the suit property to the respondent herein for a sum of Rs.1,10,000/= and received Rs.1,00,000/= as advance on the date of agreement and that it was mutually agreed that the sale transaction would be completed within three months from the date of agreement. The respondent herein, in the plaint, contended that though he was ready and willing to perform his part of the contract by making the payment of balance amount of sale consideration and get the sale deed executed and registered in his name, the appellant was not ready within the stipulated period of three months. The respondent sent a telegraphic message to the appellant on 21.5.1993 to come and execute the sale deed which was not responded to by the appellant; that thereafter, when the appellant was contacted by the respondent, the appellant informed that the transaction would be completed within a few days and at last, the appellant informed the respondent that the sale document could be completed on 15.7.1993; that believing the said words of the appellant, the respondent prepared the sale deed with necessary recitals using the stamp papers that had already been purchased by him and waited for the appellant to come and execute the sale deed, but in vain; that thereafter, when the respondent contacted the husband of the appellant, he informed that the document prepared could be registered in four months and that thereafter, subsequently, the appellant showed no inclination to complete the transaction and that therefore, the respondent had to issue a notice through his lawyer on 15.10.1993 for which there was no response though the same was received by the appellant on 18.10.1993. Based on the abovesaid allegations, the respondent had filed the suit praying for the relief of specific performance directing the appellant to execute the sale deed accepting the balance amount of sale consideration to be deposited by the respondent into court in accordance with the directions of the court to get the sale deed registered and for possession of the property.

3. The suit was resisted by the appellant herein contending that the suit sale agreement was not intended to be acted upon and it was intended to be a security for the loan of Rs.1,00,000/= advanced by the respondent herein to the appellant herein. It was also contended by her in her written statement that there was no intention on her part to sell the suit property and likewise, there was no intention on the part of the respondent to purchase that on the other hand, when she approached the respondent for borrowing certain amount for discharge her loans towards other persons, the respondent insisted upon execution of a registered sale agreement as security for the repayment of the loan; that consequently she borrowed a sum of Rs.1,00,000/= from the respondent and executed the suit agreement for sale; that thereafter, the appellant paid a sum of Rs.7000/= towards interest. It is her further contention that subsequently, the respondent pressed for the discharge of loan even by selling the property to other persons; that all along, the respondent was bent upon getting back the amount with interest through the mediators like Chinnusamy son of Karuppannan and that only thereafter, he issued the notice dated 15.10.1993 which was properly replied by the appellant by reply notice dated 21.10.1993. It is her further contention that suppressing the reply also the respondent had approached the court with false and untenable allegations. Besides the abovesaid averments, the appellant also contended that the plaint averments regarding the readiness and willingness and also the telegraphic message were all false. With the said averments, the appellants had prayed for dismissal of the suit with cost.

4. The Trial Judge framed three issues which are as follows:-

1) whether the suit agreement for sale was acted upon?
2) Whether the cause of action stated in the plaint is correct?
3) To what other relief?

5. In the trial that followed framing of the issues, the respondent herein/plaintiff figured as the sole witness (PW1) on his side and produced 10 documents as Exs.A1 to A10. One Muthukrishnan, husband of the appellant herein, was examined as the sole witness (as DW1) and 5 documents were marked as Exs.B1 to B5 on the side of the appellant herein/defendant. At the conclusion of trial, the learned Trial Judge, on appreciation of evidence, came to the conclusion that the agreement was acted upon and it was a genuine transaction of sale agreement; that the respondent herein/plaintiff was ready and willing to perform his part of the contract and that he was entitled to the relief of specific performance as prayed for. Accordingly, the learned Trial Judge decreed the suit as prayed for with cost on 30.9.2003.

6. On appeal in A.S.No.308 of 2003 on the file of the Additional District Judge (Fast Track Court), Namakkal, the learned appellate Judge concurred with the abovesaid finding and confirmed the decree passed by the Trial Court dismissing the appeal with cost, by judgment and decree dated 21.8.2007. As against the decree of the learned lower appellate Judge dated 21.8.2007 confirming the decree of the Trial Court dated 30.9.2003, the present appeal has been filed.

7. The second appeal has been admitted identifying the following questions to be the substantial questions of law involved in the second appeal:

1) Whether the lower appellate court, which is the final court of fact, is correct in law in merely extracting the judgment of the Trial Court without independently appreciating the evidence on record?
2) Whether the lower appellate court is correct in law in assuming the jurisdiction under section 100 of the Code of Civil Procedure specifically when the appeal is one under section 96 of the Code?

8. At the outset, this court is at a loss to understand how the second question came to be projected as a substantial question of law forgetting the fact that the appeal filed before the court below was only entertained under section 96 of the Code of Civil Procedure and not under section 100 of the Code of Civil Procedure. Therefore, this court is of the view that the second substantial question of law has been wrongly formulated at the time of admission. I do not want to elaborate further on this aspect and it will be sufficient to state that the question framed as second substantial question of law does not deserve consideration in this second appeal.

9. Further, during the course of arguments, the learned counsel for the appellant submitted that though section 100 of the Code of Civil Procedure contemplates the formulation and incorporation of correct substantial questions of law in the grounds of second appeal and it requires the High Court to formulate the substantial questions of law on which the second appeal is to be admitted and also provides a bar for the appellant to raise any other question, the said provision contains a proviso making it subject to a rider that such bar will operate when the court does not permit the appellant to raise any other question and that in proper cases, the High Court, dealing with second appeal, can permit the appellant to raise the additional questions as substantial questions of law to be canvassed in the second appeal. Since this court is of the considered view that at the time of admission, a wrong question has been formulated as substantial question of law and a necessary question was not formulated by this court, this court is of the view that the facts and circumstances of the case require permission to raise an additional substantial question of law and accordingly, the appellant is permitted to raise the following substantial question of law which will be assigned question number '3':-

"Whether the courts below have rendered a perverse finding as to the readiness and willingness on the part of the respondent herein to perform his part of the obligation under the suit agreement for sale?

10. The arguments advanced by Mr.S.Mukunthan, learned counsel for the appellant and by Mr.T.Dhanyakumar, on behalf of the respondent are heard in detail. The materials available on record are also perused.

11. The defendant in the original suit, who suffered a decree for specific performance before the Trial Court which was confirmed by the lower appellate court, has approached this court with the present second appeal challenging the decree of the lower appellate court confirming the decree passed by the Trial Court. As pointed out supra, out of the three questions indicated as questions formulated as substantial questions of law, the second one does not require consideration as it was erroneously formulated and as such, the remaining substantial questions of law viz., substantial questions of law 1 and 3 alone are to be considered. The first of the said questions has been formulated on the assumption that the lower appellate court did not consider the evidence and simply extracted the observations made by the Trial Court and concurred with the findings of the Trial Court. Of course, it is true that the first appellate court, being the final court of appeal on facts, has to re-appreciate the evidence and arrive at a conclusion as to whether the finding of fact rendered by the Trial Court warrants interference either by reversing it or modifying it. That does not mean that the first appellate court, on re-appraisal of evidence, should render an independent finding of fact when it concurs with the finding of the Trial Court. If the appellate forum finds reasons in support of the inference made by the Trial Court and the conclusion made by the Trial Court, there is nothing wrong in incorporating the recital in the judgment that the reasons assigned by the Trial Court are correct and their findings are confirmed by the appellate forum. However, even a concurring judgment should not be bereft of discussions. The judgment itself shall indicate that the appellate court applied its mind to the evidence on record and re-appreciated the same and on re-appreciation, came to the conclusion that the finding rendered by the Trial Court is correct. Atleast, to that extent viz., to show that there has been a re-appreciation by application of mind, the discussion should be incorporated in the judgment of the appellate court.

12. In this case, this court, after going through the judgment of the Trial Court and also the judgment of the lower appellate court, does not find any substance in the contention of the appellant regarding the question formulated as the first substantial question of law. The appellate court, after referring to the respective pleadings of the parties and the evidence adduced in support of their case, discussed the merit in detail and incorporated reasons for the justification of its conclusion that the findings arrived at by the Trial Court are correct and they should not be interfered with. A perusal of the judgment of the lower appellate court shows that the learned lowr appellate Judge referred to the entire evidence and only thereafter, expressed its decision to concur with the findings of the Trial Court as a result of which, the appeal came to be dismissed.

13. However, the findings of this court that the lower appellate court has applied its mind and rendered a finding in concurrence with the findings of the Trial Court does not mean that the reasons assigned by the lower appellate court for arriving at such a conclusion are sustainable. Only in order to answer the first substantial question of law, which was formulated on the basis of the contention of the appellant that the appellate court did not apply its mind and it did not re-appreciate the evidence and on the other hand, simply extracted the portions of the judgment of the Trial Court and concluded its judgment, the said observations have been made. The foregoing discussions will show that the question formulated as first substantial question of law requires to be decided in the negative viz., against the appellant and in favour of the respondent. The answer to the first substantial question of law shall take us to the discussion on the third substantial question of law, which is more vital for the disposal of the present second appeal.

14. The suit is one for the relief of specific performance based on an agreement for sale relating to an immovable property. The suit agreement for sale is a registered agreement dated 23.2.1993. There is no dispute regarding the genuineness and execution of the suit agreement for sale. What the appellant/defendant contended in the suit was that it was only an arrangement between the respondent herein/plaintiff and the appellnt herein/defendant for securing a loan of Rs.1,00,000/= advanced by the respondent herein to the appellant herein. It was her further contention that though the agreement for sale was executed and registered, it was mutually agreed that the same would not be given effect to as an agreement and on the other hand, it would be held only as a security for the repayment of the loan. In addition to the said plea and as an attempt to substantiate the said plea, the appellant/defendant had also incorporated a plea in her written statement to the effect that she had paid a sum of Rs.7000/= as interest on the loan availed from the respondent/plaintiff. The appellant/defendant, being a party to the agreement, does not contend that she signed the document without knowing the nature of the document or without being appraised of the contents of the document. On the other hand, the appellant herself admits the fact that when she aproached the respondent for financial aid, the respondent agreed to part with a sum of Rs.1,00,000/= provided she would execute a registered agreement for sale; that accepting such a demand, she chose to execute the agreement for sale and that the same was produced before the Trial Court and marked as Ex.A1. Having executed Ex.A1 voluntarily, knowing fully well that it was an agreement for sale, the appellant/defndant shall be estopped from contending that it was not an agreement for sale and it was something else. Further, the attempt made by the appellant/defendant seems to be attempt to plead a collateral agreement between the parties not to give effect to the agreement, provided the loan was discharged by the appellant/defendant. Such a contention of the appellant may appear to be covered by the proviso No.4 of section 92 of the Evidence Act. Section 92 of the Evidence Act provides that no evidence of oral agreement between the parties to the document shall be admitted for the purpose of varying the terms of the contract. Proviso 4 says that the existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.

15. In this case, proviso 4 also will not be helpful to the appellant/defendant because the exception provided in proviso 4 shall be applicable to documents other than that are, by law, required to be in writing or documents that have been registered in accordance with the law in force for the time being as to the registration of documents. No doubt, the agreement for sale, at the relevant point of time, was not compulsorily registerable and was not required, by law, to be in writing. As such, if Ex.A1 happened to be an unregistered document, there will be some scope for the appellant/defendant to claim that by subsequent oral agreement or subsequent act, the respondent has agreed for rescinding the contract in the event of repayment of the amount obtained by the appellant from the respondent with interest. However, Ex.A1 happened to be a document registered in accordance with the law in force regarding registration of documents. Hence, the said defence is not available to the appellant/defendant. Of course, by a separate written document, such recession could have been brought into effect. Only in such an attempt, the appellant has chosen to contend that she had paid a sum of Rs.7000/= as interest. If at all, the same is in writing, then such a document could have been successfully projected as a document rescinding the contract for sale contained in Ex.A1 agreement. Apart from there being no document, there is no evidence, except the interested testimony of the husband of the appellant herein/defendant as DW1 to prove such plea. Hence, there is no scope for the appellant to contend that the transaction evidenced by Ex.A1 agreement for sale was subsequently rescinded by the acts of the parties viz., the payment and receipt of interest on the amount noted as advance paid under the agreement treating the same as a debt.

16. However, there is some substance in the contention of the learned counsel for the appellant that the courts below have committed an error in not considering the question of compliance with section 16(c) of the Specific Relief Act. The learned counsel for the appellant has brought to the notice of the court that neither the Trial Court nor the appellate court framed an issue regarding the readiness and willingness on the part of the respondent/plaintiff to perform his part of the obligations under the suit agreement for sale. In the beginning of the judgment itself, the issues framed by the Trial Court have been extracted. There is no specific issue framed by the Trial Court regarding the proof of readiness and willingness on the part of the respondent/plaintiff. Similarly, the learned lower appellate Judge has also failed to frame the same as a necessary point for consideration. Of course, the same shall be sufficient to hold that the judgment of the appellate court is not in total compliance of Order XLI Rule 31 of the Code of Civil Procedure. However, the same shall not be the sole ground on which the decree of the appellate court can be set aside. Though a necessary issue was not framed by the Trial Court, the parties let evidence knowing fullly well what their respective stands were and what the issues involved in the suit were. The Trial Court also permitted evidence to be let in respect of the issue which was not specifically framed and decided the same appreciating the evidence adduced on the said aspect. The same could be only an irregularity capable of being corrected by the appellate court by framing the same as necessary point for consideration. In case, the appellate court also has failed to frame the same as a specific point for consideration, but somehow or other chose to deal with the evidence regarding the said point also and decided that point alongwith other points for determination framed by it, then the same can also be considered to be an irregularity capable of being corrected by the second appellate court. The absence of framing of necessary point for determination alone shall not be a ground for setting aside the decree of the appellate court or remanding the case back to the court below for deciding the same after framing necessary points for determination, if the High Court is of the view that the evidence adduced by the parties are sufficient; that the parties let evidence knowing fully well that the said point for determination was one of the main issues involved in the suit and that the courts below have rendered a finding on that point also. In such cases, the High Court can test the sustainability of the said finding. If the said finding is a finding on a question of law or a mixed question of law and fact, it can correct an erroneous finding. If it is a finding on a pure question of fact, it can interfere with the same if it considers the finding to be perverse. The question of readiness and willingness on the part of the plaintiff in a suit for specific performance can be termed as a mixed question of law and fact.

17. Section 16(c) of the Specific Relief Act makes it clear that the plaintiff shall not be granted the relief sought for unless he pleads and proves that he has either performed his part of the obligations under the agreement in full or he has always been ready and willing to perform his part of the obligations under the agreement. Two conditions are made mandatory under section 16(c) of the Specific Relief Act, 1963 viz., (1) to specifically plead the fact of having performed or having been ready and willing to perform the plaintiff's part of the obligations under the agreement; (2) the proof of such plea of having performed or having been ready and willing to perform his part of the obligations under the agreement. In this case, the first part has been complied with substantially as the respondent/plaintiff has made a clear averment in his plaint that within three months stipulated in the agreement for the completion of the transaction (though there is no proof that time was the essence of the contract), the respondent/plaintiff was ready to pay the balance and take the sale deed executed and registered in his name and that on the other hand, the appellant/defendant alone was not ready and willing and she was postponing the same on one pretext or the other. He has also made a clear averment to the effect that even the stamp papers were purchased before the end of three months stipulated in the agreement and sale deed was prepared subsequently on the stamp papers purchased earlier on the assurance of the appellant/defendant to come and execute the sale deed. It was also averred that when the appellant/defendant did not turn up for the execution of the sale deed after the preparation of the same, he contacted the husband of the appellant herein who figured as DW1, and heinformed that the document could be registered within four months and that after waiting for a considerable time in the hope that the appellant would come forward to execute the sale deed, he lost the hope and was constrained to issue a lawyer's notice and then, filed the suit for specific performance. The said plea is enough to comply with the first requirement.

18. Next, we have to see whether the said plea has been substantiated by reliable evidence. Suppose the same has been admitted by the appellant/defendant, there shall be no need for the respondent/plaintiff to lead evidence in proof of his readiness and willingness since admitted facts need not be proved. As there is a specific denial by the appellant/defendant regarding the readiness and willingness on the part of the respondent/plaintiff, the burden of proving the same lies on the respondent/plaintiff. In order to prove his readiness and willingness, except the interested testimony of the respondent/plaintiff as PW1, there is no other oral testimony of any independent witness. Further, besides the oral testimony of PW1, the respondent/plaintiff has relied on Exs.A2 to A9. Ex.A2 is the lawyer's notice dated 15.10.1993 sent to the appellant/defendant which was received by the appellant/defendant as evidenced by Ex.A3 acknowledgment. In the plaint, the respondent/plaintiff has averred that the suit notice evoked no response. However, the appellant/defendant seems to have sent a lawyer's notice on 21.10.1993 itself. The said notice itself has been produced and marked by the plaintiff as Ex.A10. The implication of the contrary pleadings shall be discussed later. Ex.A8 is the postal receipt for sending a telegraphic message to the appellant/defendant. Ex.A9 is produced as the document containing the contents of the telegraphic message sent to the appellant/defendant. No one has signed it as a true copy of the telegraphic message. Normally, the Post Master in charge, shall certify such message. No such certification is found. Furthermore, on the backside of Ex.A9, certain notings were made not by the postal authorities, but by someone else and presumably, those notings could have been made by the respondent/plaintiff. Below the said notings, the name of DW2 and his designation as Junior Assistant came to be noted with the head note "your wife". The respondent/plaintiff has not proved having sent such a telegraphic notice by producing certified copy of the telegraphic contents obtained from the competent authority.

19. Furthermore, a notice came to be sent on 15.10.1993 and an office copy of the same has been produced as Ex.A2. In the said notice, the telegraphic message has not been referred to. The telegraphic message also conveys that he was disappointed after waiting at the Registrar's Office and detailed notice would follow. But, the notice came to be issued only after three months. Hence, Exs.A8 and A9 are not helpful to the respondent/plaintiff to prove his case that he was waiting at the Registrar's Office on 15.7.1993 on the assurance of the appellant/defendant to come and execute the sale deed and on the failure on the part of the appellant/defendant, he sent such a telegraphic notice. Exs.A6 and A7 are the certified copies of two sale deeds which are not related to the case on hand. However, in order to show that the persons who signed the originals of those documents were with the respondent/plaintiff to attest the sale deed in favour of the respondent/plaintiff, those documents were produced. But, the very fact that Ex.A4 sale deed prepared by the respondent/plaintiff has been attested by the attestors before the execution of the same by the appellant/deendant will show that the plaintiff wanted to create some evidence with some legal brain behind him. However, none of the attestors has also been produced as witness on the side of the respondent/plaintiff to speak about how he was made to sign as an attestor in the unexecuted document. Perhaps, as rightly contended by the learned counsel for the appellant, somebody might have been asked to sign as attestors in the unexecuted document to prove the case of the respondent/plaintiff of his readiness and willingness and they might not be willing to come to the court to depose in favour of the respondent/plaintiff fearing some consequences for having attested an unexecuted document. Therefore, the production of Ex.A4 with the attestation by two persons will not be helpful to the respondent/plaintiff to prove his readiness and willingness.

20. The learned counsel for the appellant has also brought to the notice of the court that there is a contradiction between Ex.A1 and A4 regarding the mode of payment and the persons to whom the amounts came to be paid. There is no acceptable explanation from the plaintiff in this regard. The same itself will prove the failure of attempt made by the plaintiff to prove that he was ready with the draft sale deed on 15.7.1993. Above all, there is no document to show that the appellant/defendant had been asked to come to the Registrar's Office on 15.7.1993 to execute the sale deed. Even assuming that the respondent/plaintiff could have been genuine in his averments in the lawyer's notice dated 21.10.1993, thereafter, the suit came to be filed not immediately, but, after three years viz., on 5.2.1996. While filing the suit, the reply given by the appelllant/defendant on 21.10.1993 was suppressed and in fact, it was averred that no reply was forthcoming from the appellant/defendant. Such an averment is proved to be false by the plaintiff's own document, Ex.A10. The cause of action for filing of the suit arose on receipt of Ex.A10 reply notice. Thereafter, there was no need for the respondent/plaintiff to have waited for three more years. He could have immediately approached the court with the suit for specific performance. The plea of subsequent promises made by the appellant/defendant and her husband and waiting in vain till he lost his patience is to be construed nothing but a cock and bull story to explain the inaction for three years from 21.10.1993.

21. A person, who approaches the court for specific performance, should prove that either he had performed his part of the obligations under the contract in full or he was continuously ready and willing to perform his part of the contract. Absolutely, there is no evidence, except the interested testimony of PW1, regarding his readiness and willingness after the receipt of the reply notice Ex.A10 till the filing of the suit. Even while filing the suit, he did not deposit the balance amount of consideration and he simply made an averment that the balance amount would be deposited only when directed by the court. The prayer is also couched in such a way that the defendant should be directed to execute the sale deed after receiving the sale consideration to be deposited in the court. The same would imply that he was not ready and willing even to pay the same to the defendant directly. For all the reasons stated above, this court comes to the conclusion that the respondent/plaintiff has failed to prove his readiness and willingness to perform his part of the agreement under Ex.A1 and he has failed to prove the second condtion under section 16(c) of the Specific Relief Act. Both the courts below have rendered a finding as if he was ready and willing and this court does not have any hesitation to hold such a finding to be perverse. Accordingly, the said finding is reversed and it is hereby held that the respondent/plaintiff is not entitled to the relief of specific performance as prayed for in the plaint.

22. In the result, the second appeal succeeds. The judgment and decree in A.S.No.308 of 2003 on the file of the Addititional District Judge (Fast Track Court), Namakkal and the judgment and decree in O.S.No.54 of 1996 on the file of the Subordinate Judge, Namakkal are set aside. The suit is dismissed. The connected miscellaneous petition is closed. However, there shall be no order as to costs.

16.4.2014.

Index: Yes.

Internet: Yes.

ssk.

To

1. The Addititional District Judge (Fast Track Court), Namakkal.

2. The Subordinate Judge, Namakkal.

3. The Section Officer, V.R. Section, High Court, Madras.

P.R.SHIVAKUMAR, J.

Ssk.

S.A.No.1180 of 2008

16.4.2014.