Madras High Court
P.Narayana Reddy vs Mr.C.N.Ramesh on 7 February, 2020
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
A.S.No.275 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.02.2020
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
A.S.No.275 of 2013
and
M.P.No.1 of 2013
P.Narayana Reddy ..Appellant
vs.
Mr.C.N.Ramesh . .Respondent
Appeal filed under Section 96 of the Code of Civil Procedure,
against the judgment and decree passed in O.S.No.44 of 2012 on the
file of Principal District Court, Krishnagiri dated 12.04.2013.
For Appellant : Mr.C.Jagadish
For Respondent : Mr.H.Adaikala Arockiaraj
JUDGMENT
The appeal suit is directed against the judgment and decree dated 12.04.2013 passed in O.S.No.44 of 2012.
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2. The defendant is the appellant in the appeal suit and the respondent plaintiff instituted the suit for Specific Performance.
3. The facts in nutshell as narrated in the plaint are that the suit property belong to the defendant and he got it from his family partition through Registered Partition deed dated 05.02.1991. Since then the defendant became the owner of the suit schedule property and all Revenue records are also stands in the name of the defendant.
4. It is contended by the plaintiff that the defendant offered to sell the suit property and entered into an agreement for sale on 01.07.2010, by which, the sale consideration is fixed as Rs.11,70,000/-(Rupees Eleven Lakh and Seventy Thousand only) and out of the total sale consideration, Rs.10,00,000/-(Rupees Ten Lakh only) was paid by way of an advance. It was agreed between the parties that the balance sale consideration of Rs.1,70,000/-(Rupees One Lakh Seventy Thousand only) to be paid by the plaintiff within a 2/18 http://www.judis.nic.in A.S.No.275 of 2013 period of two years from the date of sale agreement i.e., on or before 01.07.2012 and to execute a Registered sale deed in favour of the plaintiff at his cost and to deliver possession of the suit lands to the plaintiff by the defendant. The plaintiff has stated that he was ready and willing to complete his portion of the contract. He demanded for the execution of the sale of the suit property by receiving the balance sale consideration of Rs.1,70,000/- and the defendant had given an evasive reply, which resulted in institution for suit for Specific Performance.
5. The defendant filed a written statement, denying the allegations set out in the plaint. The agreement dated 01.07.2010 is admitted by the parties. The advance sale consideration of Rs.10,00,000/- was also admitted by the parties. However, the defendant has stated that his signatures were obtained in the blank papers and the suit sale agreement was provided thereafter in his absence. Further, it is contended that the defendant had never intended to sell the suit schedule property and the agreement for sale 3/18 http://www.judis.nic.in A.S.No.275 of 2013 was signed in lieu of the loan transaction between the plaintiff and the defendant. In other words, the defendant borrowed a loan amount of Rs.10,00,000/-(Rupees Ten Lakhs only) from the plaintiff and signed certain blank papers and the blank papers are utilized for the preparation of the sale agreement and thereafter, at no point of time, the defendant had intended to sell the suit property to the plaintiff. Denying all other allegations, the defendant prayed for the dismissal of the suit.
6. The trial Court framed the issues as to whether the brother of the defendant borrowed a sum of Rs.10,00,000/- from the plaintiff and executed the suit sale agreement on 01.07.2010 or not; Whether the plaintiff was ready and willing to comply with his portion of the contract on receipt of the balance sale consideration as agreed between the parties and for what relief the plaintiff is entitled to.
7. With reference to the issues, the trial Court considered the documents as well as the evidences produced by the respective parties 4/18 http://www.judis.nic.in A.S.No.275 of 2013 and arrived a conclusion that the suit sale agreement dated 01.07.2010 is true and genuine and the signature of the defendant is also established by the plaintiff. The trial Court, while arriving a conclusion that the suit sale agreement is true and genuine one, proceeded on the basis that the plaintiff was ready and willing to perform his part of the contract and therefore, the plaintiff is entitled for the relief of Specific Performance. The property stands in the name of the defendant and the said fact was also established by the plaintiff and further, the suit sale agreement was also established. The defense on behalf of the defendant has not been accepted. The trial Court though considered the genuinity of the suit sale agreement, failed to consider the terms and conditions stipulated in the suit sale agreement. Plain acceptance of the sale agreement is insufficient as the intention of the properties to execute the sale in respect of the suit property is also to be considered by the Court. The practice prevailing in the locality is that in lieu of loan transaction, sale agreements are being executed between the parties, when a specific defense had been taken by the defendants in his written statement. The trial Court has 5/18 http://www.judis.nic.in A.S.No.275 of 2013 not gone deep into these issues and considered the suit sale agreement and granted the relief of Specific Performance.
8. This Court has gone through the document Ex.A1, Suit sale Agreement, wherein it is agreed between the parties as follows:
“ek;kpy; 2 yf;fkpll; tUf;F 05/02/1991 k; njjpapl;l Mtz vz; 232-1991 bfyk';fyk; rhh;gjptfj;jpy; gjpag;gl;l ghfg;gphptpid Mtzg;go ghj;ag;gl;L. RthjPd mDgtj;jpy; cs;s brhj;Jf;fis 1 yf;fkpl;ltUf;F tpw;f fpuak; bfhLg;gjhf tpiy ngrp Vf;fh; 1 f;F U:/3.25.000/00 (U:gha; K:dW ; yl;rj;J ,Ugj;ije;jhapuk; kl;Lk;) vd tpiyngrp bkhj;jk; gug;g[ 3/60 Vf;fUf;F U:/11.70.000/00 (U:gha; gjpbdhU yl;rj;J vGgjhapuk; kl;Lk;) vd tpiyngrp eph;zak;
bra;ag;gl;L. ,jpy; ehsJ njjpapy; 1 yf;fkpl;lthplkpUe;J 2 yf;fkpl;lth; Kd; gzk; U:/10.00.000/00 (U:gha; gj;J yl;rk; kl;Lk;) buhf;fkha; bgw;Wf;bfhz;lJ nghf. kPjp fpua ghf;fpj; bjhifahd U:/1.70.000/00 (xU yl;rj;J vGgjhapuk; kl;Lk;) g{uht[k; 1 yf;fkpl;lth; ,d;W 6/18 http://www.judis.nic.in A.S.No.275 of 2013 Kjy; ,uz;L tUlfhy bfLt[f;Fs; 2 yf;fkpl;lthplk; brYj;jp chpa fpua Mtzk; 1 yf;fkpl;lth; brytpy; bra;Jf;bfhs;s ntz;oaJ/ jtwpdhy; jhd; brYj;jpa Kd; gzj;ij ,Hg;gnjhL ,e;j cld;gof;ifa[k; bry;yhjjhfp uj;jhfptpLk;/”
9. As per the said suit sale agreement, the total sale consideration agreed between the parties is Rs.11,70,000/- and out of the said sale consideration, Rs.10,00,000/- had been paid towards advance on the date of agreement. It is further stated that the balance amount of sale consideration of Rs.1,70,000/- is to be paid within a period of two years. When the sale consideration is Rs.11,70,000/- and out of such sale consideration, Rs.10,00,000/- had been paid in advance at the time of agreement and fixation of two years period for the payment of the meagre balance consideration of Rs.1,70,000/- is an improbability which is to be considered by this Court to draw an inference that the defendant had not intended to sell his property in favour of the plaintiff. A factual inference is to be drawn with reference 7/18 http://www.judis.nic.in A.S.No.275 of 2013 to the conduct as well as the terms and conditions stipulated in the suit sale agreement. The Courts cannot adopt and approach with reference to the terms in a straight manner. The intention behind such terms and conditions are also to be considered in order to cull out the truth behind the defense taken by the defendant in the written statement. Various such loan transactions are done between the parties. However, the intention and the purpose for which certain documents are executed are entirely different. Therefore, in order to provide complete the justice, the intention of the parties, the nature of the terms and conditions, probabilities and factual inference, which is to be drawn are also to be considered by the Court.
10. The Hon'ble Supreme Court of India in the case of Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal, (1999) 3 SCC 35, held in unequivocal terms that “Faith of the business community dealing in mercantile and trade cannot be permitted to be shaken by resort to technicalities of law and the procedural wrangles as appears to have been done in the instant case.” 8/18 http://www.judis.nic.in A.S.No.275 of 2013
11. Therefore, the Courts cannot approach the issues in a straight angle and the probabilities and the possible factual inference are also to be considered, wherever the circumstances warrants.
12. Even recently, the Apex Court of India in the case of Surinder Kaur v. Bahadur Singh, (2019) 8 SCC 575, made an observation that “A perusal of Section 20 of the Specific Relief Act clearly indicates that the relief of specific performance is discretionary. Merely because the plaintiff is legally right, the court is not bound to grant him the relief. True it is, that the court while exercising its discretionary power is bound to exercise the same on established judicial principles and in a reasonable manner. Obviously, the discretion cannot be exercised in an arbitrary or whimsical manner. Sub-clause (c) of sub-section (2) of Section 20 provides that even if the contract is otherwise not voidable but the circumstances make it inequitable to enforce specific performance, the court can refuse to grant such discretionary relief. Explanation (2) to the section provides 9/18 http://www.judis.nic.in A.S.No.275 of 2013 that the hardship has to be considered at the time of the contract, unless the hardship is brought in by the action of the plaintiff.”
13. In the present case on hand, undoubtedly, the signature of the defendant is established before the trial Court. The sale consideration is also not disputed. Further, receipt of the substantial advance amount of Rs.10,00,000/- on the date of the sale agreement is not disputed. While so, the question arises, why the parties had agreed to complete the terms and conditions within a period of two years for the meagre balance sale consideration of Rs.1,70,000/-. This raises a doubt in the mind of the Court, whether the defendant had really intended to sell the property to the plaintiff or the sale agreement was executed in lieu of the loan transaction between the parties. Looking in any angle, possibility of factual inference cannot be brushed aside. The possible factual inference would be that when a person has paid Rs.10,00,000/- as advance and thereafter wait for two more years for payment of the meagre sale consideration cannot be accepted at no stretch of time.
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14. This being the factum established, this Court is of the considered opinion that the defendant had really not intended to sell his property and the loan obtained by him from the plaintiff is the cause for the suit sale agreement and therefore, the trial Court has committed a perversity in arriving a finding with reference to the terms and conditions stipulated in the suit sale agreement Ex.A1. This being the factum, the judgment and decree dated 12.04.2013 passed in O.S.No.44 of 2012 is to be set aside.
15. Reading of the plaint reveals that no alternate relief prayed for refund of advance amount with interest. Though such a prayer had not been prayed for, this Court has to consider the refund of advance as a consequential relief under the General Relief clause.
16. The alternate relief of return of advance in a suit for specific performance is a consequential relief and therefore, the same need not be construed as a different relief. Once the relief of specific 11/18 http://www.judis.nic.in A.S.No.275 of 2013 performance is rejected, then the refund of advance amount shall be consequential as no parties to the suit can be allowed to have an unjust enrichment. In other words, the dismissal of the relief of suit for specific performance, cannot stand in the way of granting the alternate relief to refund the advance amount with reasonable interest. The question arises in the absence of any such relief sought for in the plaint, whether the Court can grant the relief or not. This Court is of the considered opinion that the alternate relief to refund the advance amount is to be construed as a general relief, as such a relief is consequential to the rejection of the relief of specific performance. In the event of not considering the alternate relief under the umbrella of general relief, then one of the party to the civil suit would be prejudiced and the other party will get an unjust enrichment.
17. Keeping in mind the prejudice likely to be caused to one of the parties in the event of not granting the alternate relief of refund of advance amount, this Court has to adopt a pragmatic approach and constructive interpretation with reference to the Code of Civil 12/18 http://www.judis.nic.in A.S.No.275 of 2013 Procedure.
18. Order VII, Rule 7 of the Code of Civil Procedure enumerates that “every Plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement”.
19. The spirit of Order VII, Rule 7 of the Code of Civil Procedure is to be considered in the general format of the plaint. In the relief column, the plaintiffs used to pray for “grant such other relief or reliefs as the Hon'ble Court may deem fit and proper in the circumstances and thus render justice”. Such a relief is to be construed as a general relief sought for in the plaint, the facts and circumstances and the equity to be considered in the interest of justice and the general relief is to be molded, so as to grant the alternate relief of refund of advance 13/18 http://www.judis.nic.in A.S.No.275 of 2013 amount in the event of rejecting the relief of specific performance by the Courts.
20. Order XLI, Rule 33 of the Code of Civil Procedure enumerates that “the Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection”. Therefore, the Trial Court granted the general relief by molding the prayer for grant of the relief of refund of advance amount with interest in the event of rejection of the relief of specific performance and the Appellate Court by invoking Order XLI, Rule 33 also grant the similar relief in respect of the appeals preferred against the judgment and decree of the Trial Court. In either of the circumstances, both the Trial Court as well as the Appellate Court are 14/18 http://www.judis.nic.in A.S.No.275 of 2013 empowered to grant the consequential relief of return of advance amount in the event of rejection of the relief of specific performance on the basis of the principles of equity. Therefore, there is no impediment either for the Trial Court or for the Appellate Court to grant the alternate relief of refund of advance amount to either of the parties to the civil suit or an appeal in the event of rejecting the relief of specific performance in a suit or in an appeal suit.
21. Under these circumstances, the following judgment and decree dated 12.04.2013 passed in O.S.No.44 of 2012 is set aside.
22. The appellant defendant is directed to refund the advance amount of Rs.10,00,000/- (Rupees Ten Lakh only) along with the interest at the rate of 10%(ten percent) per annum from the date of plaint till the date of decree and thereafter, 6%(six percent) till the date of realisation. The said amount is to be calculated and the appellant defendant is directed to settle the said amount in favour of the plaintiff within a period of Six (6) Months from the date of receipt 15/18 http://www.judis.nic.in A.S.No.275 of 2013 of a copy of this judgment.
23. Accordingly, the appeal suit in A.S.No.275 of 2013 stands allowed. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
07.02.2020 Index : Yes Speaking order Kak To The Principal District Court, Krishnagiri.
16/18 http://www.judis.nic.in A.S.No.275 of 2013 S.M.SUBRAMANIAM, J.
Kak A.S.No.275 of 2013 17/18 http://www.judis.nic.in A.S.No.275 of 2013 07.02.2020 18/18 http://www.judis.nic.in