Madras High Court
R.Harikrishnan vs Kamalakannan on 4 September, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.09.2012 C O R A M THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.No.489 of 2008 R.Harikrishnan .. Appellant vs. Kamalakannan .. Respondent Appeal filed as against the judgment and decree dated 20.12.2007 passed by the learned VI Additional Judge, City Civil Court, Chennai in O.S.No.9334 of 2006. For Appellant : Mr.S.L.Sudarsanam For respondent : Mr.G.Saravanan JUDGMENT
This appeal is focussed at the instance of the unsuccessful plaintiff as against the judgment and decree dated 20.12.2007 passed by the learned VI Additional Judge, City Civil Court, Chennai in O.S.No.9334 of 2006.
2. For convenience sake, the parties are referred to here under according to their litigative status and ranking before the trial Court.
3. A thumb-nail sketch of the relevant facts as stood exposited from the plaint would run thus:
a] The plaintiff filed the suit for specific performance seeking the following reliefs:
To pass a decree and judgment against the defendant-
- for a direction against the defendant to execute the sale deed in favour of the plaintiff or his nominees in respect of the property, i.e., house, ground n premises bearing Door No.14/50, Ramaswamy Raja Street, Sanrorpalayam, Arumbakkam, Chennai 600 106 measuring 665 sq.ft and half share in the common passage measuring 6' x 35' more particularly described in the schedule on receiving the balance sale consideration of Rs.4,00,000/- (Rupees four lakhs only) in default the sale deed may be executed by this Court on behalf of the defendant and cause its registration.
- for a consequential injunction restraining the defendant not to alienate, transfer or create any encumbrance in respect of the property i.e., house, ground n premises bearing Door No.14/50, Ramaswamy Raja Street, Sanrorpalayam, Arumbakkam, Chennai 600 106 measuring 665 sq.ft and half share in the common passage measuring 6' x 35' more particularly described in the schedule and
- for costs.
(extracted as such) on the main ground that the registered agreement to sell, Ex.A1 dated 07.12.2005 emerged between the plaintiff and the defendant, whereby the latter agreed to sell in favour of the former the immovable property described in the schedule of the plaint for a total sale consideration of Rs.7,00,000/- (Rupees seven lakhs only) under the agreement to sell; a sum of Rs.1,00,000/- (Rupees one lakh only) was paid by the plaintiff to the defendant. The time stipulated for performance was upto the end of 30.05.2006. In the meanwhile, at the instance of the defendant, the plaintiff also paid additionally a sum of Rs.2,00,000/- (Rupees two lakhs only) on the following dates:
04.01.2006 - Rs.1,00,000/-
05.03.2006 - Rs. 70,000/-
13.05.2006 - Rs. 30,000/-
As per the terms of the agreement, the defendant was enjoined to vacate his tenants from the suit property and also discharge the mortgage debt. Inasmuch as the defendant was not taking steps in the proper direction and that he was delaying the execution of the sale deed in favour of the plaintiff even though the plaintiff was ready to pay the balance sale consideration of Rs.7,00,000/-, the pre-suit notice Ex.A2 was issued for which the defendant replied as per Ex.A4 with false and untenable pleas. Whereupon, the plaintiff filed the suit as above.
b] The defendant filed the written statement, challenging and impugning the genuineness of the plaintiff in seeking specific performance of the agreement to sell by setting out the following averments:
The plaintiff approached the court with unclean hands. Ex.B1 dated 07.12.2005, the receipt signed by both the parties would display and demonstrate that the actual sale consideration was Rs.9,00,000/-; whereas in the registered deed, Ex.A1 the total sale consideration was specified as Rs.7,00,000/- because the plaintiff, being a Bank official, was having some hesitation to disclose in the transaction the entire sale consideration of Rs.9,00,000/- lakhs. It is because of the plaintiff's mala fide approach to get the sale fructified by paying only a total sale consideration of Rs.7,00,000/- and not Rs.9,00,000/-, there erupted a rift in the relationship between the parties and ultimately, the defendant could not agree to the unjustifiable demand of the plaintiff.
Accordingly, he prayed for the dismissal of the suit.
c] The trial court framed the relevant issues.
d] During trial, the plaintiff examined himself as P.W.1 and marked Exs.A1 to A5 and the defendant examined himself as DW1 and marked Ex.B1.
e] Ultimately, the trial court dismissed the suit.
4. Being aggrieved by and dissatisfied with the judgment and decree of the trial court, this appeal has been filed on various grounds.
5. The learned counsel for the plaintiff/appellant placing reliance on the grounds of appeal would pyramid his argument, which could succinctly and precisely be set out thus:
(i) The lower court failed to take into account the real purport of Sections 91 and 92 of the Indian Evidence Act.
(ii) Ex.B1 the receipt should not have been given weightage by the lower court quite antithetical to the embargo as found contained in Section 92 of the Indian Evidence Act.
(iii) When the registered document is so clear and unambiguous relating to the total sale consideration in a sum of Rs.7,00,000/-, the question of explaining or expounding anything concerning it, would not arise.
(iv) The registered document can only be replaced by another registered document and not by a document like the receipt Ex.B1; but the lower court instead of addressing the issues properly, simply jumped to the conclusion as though the plaintiff approached the court with unclean hands and suppression of facts and accordingly, dismissed the suit, warranting interference in the appeal.
(v) Simply because the plaintiff did not issue rejoinder to Ex.A4 there is no presumption that the plaintiff had no explanation at all for the untenable pleas raised by the defendant in his reply notice.
(vi) The plaint was drafted purely based on Ex.A1, the agreement to sell and the plaintiff was not enjoined to explain and expound the false pleas raised by the defendant in his Ex.A4, the reply notice.
(vii) The defendant also did not take steps to evict the tenant. The defendant, with the said additional advance amount, discharged the mortgage; whereupon, on getting himself satisfied with his, the then requirement, turned turtle and had an volte face and simply refused to honour the agreement as found embodied in Ex.A1.
(viii) Accordingly, the learned counsel for the appellant/plaintiff by citing various decisions of the Hon'ble Apex Court would pray for setting aside the judgment and decree of the trial court and for decreeing the suit in toto. He would also submit that the lower court at least could have very well suo motu on finding that the sale consideration was Rs.9,00,000/- lakhs ordered specific performance mandating the plaintiff to pay such sum of Rs.9,00,000/- lakhs for getting the sale deed executed in his favour, but even that was not ordered by the lower court.
6. Whereas in a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the appellant/plaintiff, the learned counsel for the respondent/defendant would advance his argument, which could pithily and precisely be set out thus:
(a) The plaintiff, candidly and categorically during cross-examination admitted the fact that the original of the photocopy of the receipt, Ex.B1, was with him; even then, he did not disclose any fact relating to it in the plaint. Such suppression of fact would disentitle the plaintiff to seek for specific performance as per the dicta found enunciated in the various decisions of the Hon'ble Apex Court.
(b) The plaintiff also did not reply to the notice Ex.A4 by sending any rejoinder. At least in the plaint there should have been proper explanation, which was also not there.
(c) The defendant's categorical case was to the effect that even before the emergence of Ex.A1, there was consensus between the parties that the total sale consideration should be Rs.9,00,000/- and that alone got reflected in Ex.B1, which emerged soon after the registration of Ex.A1, the agreement to sell.
(d) If the plaintiff is going to insist upon the fact that the sale consideration was only Rs.7,00,000/- then that would connote there is no consensus ad idem between the parties at all.
(e) Only at the instance of the plaintiff, the sale consideration was put as Rs.7,00,000/- instead of Rs.9,00,000/- in Ex.A1 and he himself cannot try to capitalise his own fraud and the lower court considering the pros and cons, dismissed the suit, warranting no interference in the appeal.
7. The points for consideration are as under:
1. Whether the photocopy of the receipt Ex.B1 could be relied on as a piece of evidence in the wake of Ex.A1, the agreement to sell envisaging the total sale consideration as Rs.7,00,000/-?
2. Whether the plaintiff was guilty of not disclosing the true facts and seek for specific performance?
3. Whether the conduct of the plaintiff falls foul of Sections 16 and 20 of the Specific Relief Act and
4. Whether there is any perversity or illegality in the judgment and decree of the trial court?
8. All these points are taken together for discussion as they are inter-linked and inter-woven, inter-connected and entwined with each other.
9. At the outset itself, I would like to refer to the decisions of the Hon'ble Apex Court cited on the side of the plaintiff/appellant.
(i) (1974) 1 SCC 424 [M/s.Raval and Co. vs. K.G.Ramachandran and others].
(ii) (1996) 4 SCC 551 [Tamil Nadu Electricity Board and another vs. N.Raju Reddiar and another]
(iii) (2000) 1 SCC 586 [Lata Construction and others vs. Dr.Rameshchandra Ramniklal Shah and another]
(iv) (2010) 12 SCC 458 [H.R.Basavaraj (dead) by his LRs.and another vs. Canara Bank and others] The aforesaid precedents are mainly on the point that whenever there is a registered instrument, then the variation to it is possible only by an another registered document and not by any other means.
10. At this juncture, it is just and necessary to refer to Sections 91 and 92 of the Indian Evidence Act, which are extracted here under for ready reference:
"91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of document.
When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.
Exception 1. When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved.
Exception 2. Wills [admitted to probate in [India]] may be proved by the probate.
Explanation 1. This section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document, and to cases in which they are contained in more documents than one.
Explanation 2. Where there are more originals than one, one original only need be proved.
Explanation 3. The statement, in any document whatever, of a fact other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact.
92. Exclusion of evidence of oral agreement -
When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its items.
Proviso(1) Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party [want or failure] of consideration, or mistake in fact or law.
Proviso(2) The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the court shall have regard to the degree of formality of the document.
Proviso (3) The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.
Proviso (4) 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.
Proviso (5) Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved:
Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract.
Proviso (6) Any fact may be proved which shows in what manner the language of a document is related to existing facts."
and the decision of the Hon'ble Apex Court reported in (2003) 6 SCC 595 [RoopKumar v. Mohan Thedani]. An excerpt from it would run thus:
"17. It is likewise a general and most inflexible rule that wherever written instruments are appointed, either by the requirement of law, or by the contract of the parties, to be the repositories and memorials of truth, any other evidence is excluded from being used either as a substitute for such instruments, or to contradict or alter them. This is a matter both of principle and policy. It is of principle because such instruments are in their own nature and origin, entitled to a much higher degree of credit than parol evidence. It is of policy because it would be attended with great mischief if those instruments, upon which men's rights depended, were liable to be impeached by loose collateral evidence."
The general principle of law is that, whenever there is a document embodying the whole terms of the contract, then no oral evidence could be entertained, relating to which there could be no second thought.
11. This is a singularly singular case, in which the defendant has not come forward with a case that he wanted to adduce oral evidence to prove that the sale consideration was not Rs.7,00,000/- but Rs.9,00,000/-. However, he would put forth with a case that the original of Ex.B1 emerged between the plaintiff and the defendant after the emergence of Ex.A1, the registered agreement to sell, specifying the sale consideration as Rs.7,00,000/- for the purpose of binding both parties that the sale consideration was really Rs.9,00,000/- as agreed between the plaintiff and the defendant even earlier to the emergence of Ex.A1. As such, the evidence on record and my discussion supra would shed light on the point that subsequent to the emergence of Ex.A1, the registered agreement, the consensus between the plaintiff and the defendant was that the actual sale consideration should be Rs.9,00,000/- and this evidence can be used in support of the contention of the defendant that the plaintiff did not approach the court with clean hands, while seeking specific performance.
12. Based on the variation relating to sale consideration as contained in Ex.B1, the defendant is not seeking any relief except the one for dismissal of the suit filed by the plaintiff and to that much extent Ex.B1 could rightly be pressed into service and in that view of the matter Section 92 of the Indian Evidence Act is not an embargo.
13. However, in this case, Ex.B1 was marked during cross examination of the plaintiff at the instance of the defendant and at that time, PW1, the plaintiff pellucidly and palpably accepted that the original of Ex.B1 was with him only and such a receipt was signed by both the parties, wherein it is found specified that the total sale consideration was Rs.9,00,000/- lakhs.
14. It is the contention of the defendant that even before the emergence of Ex.A1, the consensus was that the total sale consideration should be Rs.9,00,000/- lakhs and since the plaintiff who happened to be the Bank employee, who had some reservation in getting the actual and true sale consideration specified therein, only a sum of Rs.7,00,000/- was found mentioned in Ex.A1. No doubt, the plaintiff might not agree to such a suggestion. But the plaintiff did not send any rejoinder to Ex.A4.
15. I am fully aware of the fact that a party is not bound to send rejoinder to any reply; but even then for the purpose of vindicating his stand, he could have sent such rejoinder, but that was not done so. Even in the plaint, there is no whisper about the factum of the emergence of the original of Ex.B1, soon after the execution of Ex.A1. Common or garden principle, as it is, witnesses might lie but circumstances would not lie. Had really the sale consideration agreed was not Rs.9,00,000/- then the receipt in Ex.B1 would not have emerged at all soon after the registration of Ex.A1, so to say, on the same day.
16. At this juncture, I would like to recollect the following decisions of the Honourable Apex Court emerged under Sections 16 read with Section 20 of the Specific Relief Act:
(i) 2010(10) SCC 512 [Man Kaur (Dead) By L.Rs. v. Hartar Singh Sangha]; certain excerpts from it would run thus:
"40. This contention has no merit. There are two distinct issues. The first issue is the breach by the defendant vendor which gives a cause of action to the plaintiff to file a suit for specific performance. The second issue relates to the personal bar to enforcement of a specific performance by persons enumerated in Section 16 of the Act. A person who fails to aver and prove that he has 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 the terms the performance of which has been prevented or waived by the defendant) is barred from claiming specific performance. Therefore, even assuming that the defendant had committed breach, if the plaintiff fails to aver in the plaint or prove that he was always ready and willing to perform the essential terms of contract which are required to be performed by him (other than the terms the performance of which has been prevented or waived by the plaintiff), there is a bar to specific performance in his favour. Therefore, the assumption of the respondent that readiness and willingness on the part of the plaintiff is something which need not be proved, if the plaintiff is able to establish that the defendant refused to execute the sale deed and thereby committed breach, is not correct. Let us give an example. Take a case where there is a contract for sale for a consideration of Rs.10 lakhs and earnest money of Rs.1 lakh was paid and the vendor wrongly refuses to execute the sale deed unless the purchaser is ready to pay Rs.15 lakhs. In such a case there is a clear breach by the defendant. But in that case, if the plaintiff did not have the balance Rs.9 lakhs (and the money required for stamp duty and registration) or the capacity to arrange and pay such money, when the contract has to be performed, the plaintiff will not be entitled to specific performance, even if he proves breach by the defendant, as he was not "ready and willing" to perform his obligations."
(ii) (2011) 1 SUPREME COURT CASES 429 J.P.BUILDERS AND ANOTHER V. A.RAMADAS RAO AND ANOTHER would run thus:
"27. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the Court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. "Readiness and willingness" to perform the part of the contract has to be determined/ascertained from the conduct of the parties."
A plain reading of the aforesaid decisions would clearly indicate that so far as specific performance suits are concerned, the plaintiff is enjoined to approach the court with utmost clean hands and even if there is any lack of bona fides or suppression of facts, then that particular plaintiff would not be entitled to specific performance of the agreement to sell.
17. In the plaint, at least there could have been some explanation as to what necessitated the parties to agree for specifying the total sale consideration in Ex.B1 as Rs.9,00,000/-. Absolutely, there is silence on the part of the plaintiff, who approached the court for specific performance. Despite knowing from Ex.A4, the reply notice given by the defendant to the plaintiff's notice Ex.A2, in the plaint, there is no reference at all to Ex.B1.
18. The learned counsel for the plaintiff would insist upon the fact that his client is entitled to get specific performance based on Ex.A1, the registered agreement to sell, which was not superseded by any other registered document; while so, there was no necessity for him to spell out any other fact quite against his own interest, which are not even germane for getting specific performance.
19. The learned counsel for the defendant would submit that the plaintiff failed to comply with the mandates as contemplated under Sections 16 and 20 of the Specific Relief Act and in such a case, he is not entitled to specific performance.
20. The lower court after going through the facts felt that there was suppression of facts. In fact, the following maxims could fruitfully be recollected:
(i) Suppressio veri suggestio false Suppression of the truth is equivalent to the suggestion of what is false.
(ii) Suppressio veri, expressio falsi Suppression of the truth is equivalent to the expression of what is false.
21. I am also fully aware of the popular adage "He who seeks equity must do equity and he who comes to equity must come with clean hands". As such, in the wake of the aforesaid maxims and principles as found enshrined in the Hon'ble Apex Court's judgment concerning Specific performance, I could see no perversity or illegality in the approach of the lower court in dismissing the suit.
22. It is not a mere case of variation from the registered document, the plaintiff suggested, but, it cuts at the very root of Ex.A1. The cumulative effect of the evidence adduced on both sides would reveal and demonstrate that they both agreed that the total sale consideration should be Rs.9,00,000/- and not Rs.7,00,000/-. In fact, the lower court extracted the relevant portion of the deposition of PW1, who would candidly and categorically admit that the agreed sale consideration was Rs.9,00,000/- and that was why, that was found specified in Ex.B1. When such is the categorical admission, placing reliance by the plaintiff on Ex.A1 and insisting for specific performance based on Rs.7,00,000/- as the sale consideration, would certainly smack that the plaintiff had no genuine intention in approaching the court.
23. The contention on the side of the learned counsel for the plaintiff that at least by mandating the plaintiff to pay the defendant a sum of Rs.9,00,000/- specific performance could have been ordered by the lower court, fails to carry conviction with this court and holds no water for the reason that once the conduct of the plaintiff falls foul of Sections 16 and 20 of the Specific Relief Act, the question of the court itself ordering specific performance for enhanced amount would be a well-neigh impossibility in the wake of the aforesaid precedents of the Hon'ble Apex Court.
24. Not to put too fine a point on it, I am of the considered view that the approach of the lower court would not be looked askance at and the lower court correctly dismissed the prayer for specific performance.
25. Accordingly, the points are decided in favour of the defendant and as against the plaintiff to the following effect:
A] Point No.1 is decided to the effect that the admitted photocopy of the receipt, Ex.B1 could be relied on as a piece of evidence that the sale consideration was Rs.9,00,000/- (Rupees nine lakhs only) in the wake of Ex.A1, the agreement to sell envisaging the total sale consideration as Rs.7,00,000/- (Rupees seven lakhs only) purely for the purpose of non-suiting the plaintiff who sought specific performance based on Ex.A1 suppressing Ex.B1.
B] Point No.2 is decided to the effect that the plaintiff is guilty of not disclosing the true facts and seek for specific performance.
C] Point No.3 is decided to the effect that the conduct of the plaintiff falls foul of Sections 16 and 20 of the Specific Relief Act.
D] Point No.4 is decided to the effect that there is no perversity or illegality in the judgment and decree of the trial court.
26. In the result, this appeal is dismissed. However, there shall be no order as to costs.
04.09.2012 vj2 Index: Yes/No Internet: Yes/No To The VI Additional Judge, City Civil Court, Chennai G.RAJASURIA,J., vj2 A.S.No.489 of 2008 04.09.2012