Madras High Court
R. Leela Ammal vs V. Gopal on 6 June, 2017
Author: R. Subbiah
Bench: R. Subbiah, M.S. Ramesh
IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on : 20.04.2017 Pronounced on : 06-06-2017 CORAM: THE HONOURABLE MR. JUSTICE R. SUBBIAH and THE HONOURABLE MRS. JUSTICE M.S. RAMESH Appeal Suit No. 292 of 2011 --- R. Leela Ammal .. Appellant Versus V. Gopal .. Respondent Appeal filed under Section 96 of the Code of Civil Procedure, 1908 against the Judgment and Decree dated 31.03.2011 passed in O.S. No. 10 of 2010 on the file of the Additional District and Sessions Judge (Fast Track Court) Vellore. For Appellant : Mr. V. Raghavachari For Respondent : Mr. R. Abdul Mubeen JUDGMENT
R. SUBBIAH, J The defendant has come forward with this appeal as against the Judgment and Decree dated 31.03.2011 passed in O.S. No. 10 of 2010 on the file of the learned Additional District and Sessions Judge (Fast Track Court) Vellore by which the Court below decreed the suit filed by the plaintiff for specific performance of the agreement dated 05.04.2008.
2. For easy reference, the parties are referred to in this appeal as per their rank in the suit.
3. As per the averments contained in the plaint, the suit property is the absolute property of the defendant/appellant. She obtained the said property in the auction sale conducted in E.P. No. 458 of 1993 in O.S. No. 661 of 1975 as Plaintiff/Decree Holder on the file of the Court of Additional District Munsif, Vellore. The defendant has been in possession and enjoyment of the suit property by obtaining a separate Patta bearing No. 1263 and Patta passbook bearing No.353026 issued by the Tahsildar, Vellore. On 05.04.2008, she entered into an agreement of sale with the plaintiff not only on her own accord but also with the knowledge and consent of her brother P. Shanmugam and her sister P. Vanaja and one D. Jayaprakash, son of C.S. Dhanapal of Mathi Nagar, Vellore and in their presence, she agreed to sell the suit property, which belonged to her, to the plaintiff at the rate of Rs.580/- per square feet for a total sale consideration of Rs.22,73,310/-. On the same day, the defendant also received a sum of Rs.1,00,000/- from the plaintiff in the presence of her brother Shanmugam and sister Vanaja, who are witness to the agreement of sale. As per the said agreement of sale, the defendant has to execute the sale deed and register it in favour of the plaintiff after receiving the balance sale consideration of Rs.21,73,310/- within three months i.e., on or before 04.07.2008. While executing the agreement of sale dated 05.04.2008, in the said agreement itself, the defendant, on her own accord, had also cancelled the Registered Will dated 30.03.2000 executed by her in respect of the suit property in favour of one Vasanthi, which was registered as document No.111 of 2000 on the file of District Registrar, Vellore and such cancellation was made in the presence of her brother P. Shanmugam and her sister P. Vanaja, as witnesses. According to the plaintiff, though he was ready and willing to perform his part of the contract, inspite of his repeated demands, the defendant failed and neglected to perform her part of the contract by receiving the balance sale consideration and to execute the sale deed in his favour under some pretext or the other. Therefore, the plaintiff sent a letter dated 05.05.2008 under Certificate of posting expressing his readiness and willingness to perform his part of the contract and also wanted the defendant to intimate the date and time for execution of sale deed in his favour. Whereas, the defendant had sent a notice dated 05.05.2008 through her lawyer, which was received by him on 08.05.2008, admitting the execution of the agreement of sale dated 05.04.2008 and receipt of the sum of Rs.1,00,000/- as advance. However, in the said notice dated 05.05.2008, the defendant has made some allegations with ulterior and sinister designs, to alienate the suit property to some third party and called upon the plaintiff to receive back the advance amount from her. In such circumstances, the plaintiff has instituted the suit before the trial court for the following reliefs:-
a) directing the defendant to execute and register a sale deed for a sum of Rs.22,73,310/- thereby conveying the property morefully described in the schedule hereunder belonging to her to the plaintiff on receipt of the balance sale consideration of Rs.21,73,310/- by a decree of specific performance of the contract and in default of which, to have the sale deed executed and registered through the process of Court.
b) directing the defendant to deliver vacant possession of the schedule mentioned property to the plaintiff and in default of which, the delivery of possession through the process of Court
c) granting permanent injunction restraining the defendant, her men and agents from alienating the suit property to any third party or parties.
d) directing defendant to pay the costs of this suit to the plaintiff
e) granting such other relief as may be deemed fit and proper in the circumstances of the case
4. Resisting the case of the plaintiff, the defendant has filed written statement denying the averments in the plaint. It is the specific defence of the defendant that though she is the owner of the suit property and obtained patta in her name, she denied the execution of the agreement of sale dated 05.04.2008 with the plaintiff, with the knowledge and consent of her brother and sister, as alleged by the plaintiff. Further, it is stated that the defendant never offered to sell the suit property to the plaintiff. The alleged agreement was brought to the defendant by the plaintiff and her signature was obtained in her house. At that time, none of the alleged attestors were present except the plaintiff and the defendant. According to the defendant, the plaintiff is a real estate dealer and he approached the defendant and offered to purchase her property on the market rate. The plaintiff has also informed the defendant that the market value of the property is in between Rs.575 to Rs.580/- per square feet. But the defendant informed the plaintiff that she has already executed a document in favour of her sister's son since she has no issues. However, the plaintiff obtained the signature of the defendant in the document brought by him. At the time of obtaining the signature of the defendant in the document, the defendant has informed the plaintiff that the document is only a tentative and nominal document and she wants to consult her relatives and her sister's son in whose favour she had already executed a document and also to ascertain the real market value of the suit property in the area. However, suppressing the above facts, the plaintiff has obtained the signature of the defendant's brother and sister in their work place as attestors of the said document. None of the attestors were present or signed the document in the presence of the defendant. Further, the defendant ascertained on enquiry that one square feet of the property in that area is being sold at the rate of Rs.1,500/- per square feet. On coming to know the market value, the defendant immediately informed the plaintiff that she is not willing to sell the suit property. The defendant also sent a letter dated 05.05.2008, cancelling the document,,in which her signature was obtained by the plaintiff and called upon the plaintiff to take back the amount paid by him. On receipt of the said letter, the plaintiff said to have sent a letter putting anti-date as 05.05.2008 in which he has stated that the defendant evaded and avoided to perform her part of the contract and that he is ready and willing to perform his part of the contract. The defendant was not served any such letter, as alleged by the plaintiff in the plaint. The suit has been filed by the plaintiff with a view to compel the defendant to sell the property to him by making false and vexatious averments. The plaintiff has not come to the Court with clean hands. The Plaintiff is therefore not entitled for the relief sought for in the suit.
5. On the above pleadings, the trial court framed as many as five issues. During the course of trial, the plaintiff examined himself as PW1 and one Jayaprakash on his side as PW2. Exs. A1 to A4 were marked on the side of the plaintiff. The defendant examined herself as DW1 and one K. Yuvaraj was examined as DW2 and Ex. B1 was marked. The trial court, after analysing both oral and documentary evidence, decreed the suit as prayed for. Aggrieved by the same, the defendant has come forward with this appeal.
6. The learned counsel appearing for the defendant/appellant would contend that the defendant is an illiterate woman. On 05.04.2008, the plaintiff, a real estate broker, came to the house of the defendant, obtained her signature in a document brought by him. In the said document, sale consideration was fixed as Rs.22,72,310/- at the rate of Rs.580 per square feet for a total extent of 9 cents of land. The said document is also a tentative and nominal document and it will not bind the defendant in any manner. The time fixed for completion of the contract was three months and it expires on 04.07.2008. An advance of Rs.1,00,000/- was paid by the plaintiff and the balance sale consideration to be paid by him is Rs.21,72,310/-. At the time of obtaining the signature of the defendant, none of the attesting witness indicated therein were present and their signature was obtained by the plaintiff at a later point of time at their work place. Therefore, it is the specific defence of the defendant that the agreement dated 05.04.2008 was not executed with full knowledge of fact and consent by the defendant. The said agreement is only a nominal one. The Plaintiff is a real estate broker and his intention is to knock away the property of the defendant. The price indicated in the document is Rs.580/- per square feet which is very low especially when the market value of the property is Rs.1,500/- per square feet. Therefore, the defendant had sent the notice dated 05.05.2008 calling upon the plaintiff to cancel the agreement dated 05.04.2008. The said notice dated 05.05.2008, marked as Ex.A4, was sent by registered post with acknowledgment and the same had been received by the plaintiff. On receipt of the notice dated 05.05.2008, the plaintiff created a concocted letter dated 05.05.2008, marked as Ex.A2 and sent it by way of certificate of posting. Even though the plaintiff has marked the postal receipt, Ex.A3, for having sent Ex.A2 under Certificate of posting, the letter dated 05.05.2008 said to have been sent by the plaintiff has not been received by the defendant. Further, the sum of Rs.1,00,000/- paid by the plaintiff was deposited by the defendant into the Court on 22.09.2008 as soon as she entered appearance in the suit filed by the plaintiff.
7. The learned counsel for the defendant/appellant further submitted that the trial court has not framed any issue with regard to readines and willingness of the plaintiff to perform his part of the contract. In a suit for specific performance, the fundamental issue that may arise for consideration is as to the readiness and willingness of the plaintiff to perform his part of the contract. However, no such issue has been framed by the trial court. Therefore, in the absence of framing such an issue for determination, the Judgment and Decree passed by the trial Court is vitiated and on this ground alone, the judgment and decree of the trial court has to be set aside. In this regard, the learned counsel for the defendant/appellant invited the attention of this Court to Ex.A1, agreement of sale dated 05.04.2008 and submitted that it is specifically stated in the agreement that if the defendant failed to perform her part of the contract or refused to receive the balance sale consideration, the plaintiff shall deposit Rs.21,73,310/- in Court and initiate action for specific performance. In the present case, the plaintiff has not taken any such steps to deposit the amount before filing the suit, which would show that he was not ready and willing to perform his part of the contract. In this regard, the learned counsel for the defendant/appellant placed reliance on the decision of the Division Bench of this Court in the case of (Arunachala Mudaliar vs. Jayalakshmi Ammal and another) reported in 2003 (1) CTC 355 wherein it was held that as per Section 16 (c) of The Specific Relief Act, 1963, the Court cannot grant relief to a person who does not prove that he is ready and willing to perform the essential terms of the contract. The learned counsel appearing for the defendant/appellant would further submit that the recitals contained in the agreement of sale dated 05.04.2008, marked as Ex.A1 in this case and the agreement of sale, which was the subject matter of the appeal before the Division Bench of this Court mentioned in the judgment referred to in the decision reported in (2003) (1) CTC 355 are identical and similar. In that case, it was held by the Division Bench of this Court that if the purchaser failed to pay the balance sale consideration, as required, it is fatal to the case. In the present case, since the plaintiff failed to deposit the amount, as required under Ex.A-1, it would show the non-performance of the contract on his part. Therefore, according to the learned counsel for the appellant, the plaintiff is not entitled to the relief of specific performance and the trial Court ought to have dismissed the suit.
8. The learned counsel for the defendant/appellant would further contend that from the date of execution of the agreement dated 05.04.2008 till the date of decree passed by the trial court for specific performance, the plaintiff was not ready and willing to perform his part of the contract. No where, the plaintiff has stated that he is in possession of sale consideration and got the document prepared and invited the defendant to endorse her signature. The agreement under Ex.A-1 calls specifically upon the plaintiff to pay the sale price to the defendant. There are no letters or notices issued to the defendant offering the payment of balance sale consideration at any time between 05.04.2008 till 12.05.2008, the date of institution of the suit or even during the pendency of the suit. Again, it is not the case of the plaintiff that he had prepared the documents and called upon the defendant to endorse her signature on it or that she had declined to go over to the Sub-Registrar Office for presentation. These events should have preceded the institution of suit for specific performance. When the essential conditions remain unsatisfied, the trial court is expected to dismiss the suit. Shockingly, the trial court had shifted the burden of proof on the appellant/defendant to show that the plaintiff was not possessed of funds. It is made clear that the obligation to prove possession of funds and that the plaintiff has discharged his obligation is enjoined upon him. Even if the defendant had not spoken to or has remained exparte, it is for the plaintiff to prove his case to the satisfaction of the Courts' conscience. The contra opinion rendered by the trial judge is perverse and proves oblivity to the legal reasoning. Therefore, when such an essential condition has not been complied with, the trial court ought to have dismissed the suit. On the other hand, the trial court has shifted the burden on the appellant to show that the plaintiff was not in possession of money. The initial obligation rests on the shoulders of the plaintiff to prove that he was ready and willing to perform his part of the contract and only when it was discharged, the obligation shifts on the defendant to disprove the same. Further, the trial Court has given a finding that the plaintiff did not examine the attestors of the agreement of sale because they are none other than the brother and sister of the defendant and they will not support the case of the plaintiff. Merely because the attesting witnesses are brother and sister of the defendant, the trial Court itself cannot assume that they will not support the case of the plaintiff. Such a finding rendered by the trial Court is erroneous. The trial court failed to consider that the non-examination of the attesting witness to Ex.A-1, agreement of sale is fatal to the case of the plaintiff. In this context, the learned counsel for the defendant/appellant relied on the decision rendered in (K. Varadhan vs. I. Pattammal (died) and four others) reported in 1992 (2) Law Weekly 209 wherein it was held that when a contract is entered into with uneducated and illiterate women it should be established by one seeking it's enforcement. Further, when the defendant has specifically questioned about the capacity of the plaintiff to pay the balance sale consideration, it is for the plaintiff to prove, by producing bank details, that he is in possession of the ready money available with him. In this context, the learned counsel for the defendant/appellant invited our attention to the deposition of PW1 wherein he has admitted that even though he has stated in Ex.A2, letter dated 05.05.2008 that he was ready and willing to perform his part of the contract, he did not produce any document to prove the same. By placing reliance on this piece of evidence, the learned counsel for the defendant/appellant would contend that the plaintiff has not been ready and willing to perform his part of the contract besides that he has not proved the same in a manner known to law.
9. With regard to Ex.A2, letter dated 05.05.2008 said to have been sent by certificate of posting stating that the plaintiff was always ready and willing to perform his part of the contract, the learned counsel for the appellant submitted that Ex.A2 is a concocted document. Only on receipt of the letter dated 05.05.2008, Ex.A4, sent by the defendant, calling upon the plaintiff to cancel the agreement of sale, the plaintiff ought to have prepared a letter dated 05.05.2008 and is now saying that the said letter was sent by certificate of posting on 05.05.2008. Normally, such letter would be sent by registered post with acknowledgment due but for the reasons best known, the plaintiff said to have sent the letter dated 05.05.2008, Ex.A2, by certificate of posting. In this context, the learned counsel for the defendant/appellant submitted that service by certificate of posting is always unreliable when relationship between the parties is strained. When the fact of receipt of Ex.A2 is denied by the defendant/appellant, it is the obligation of the respondent/plaintiff to establish that it was duly sent and served on the defendant. Therefore, he prayed for setting aside the decree and judgment of the trial Court.
10. Countering the submissions of the learned counsel for the defendant/ appellant, the learned counsel for the plaintiff/respondent would contend that there was an agreement of sale entered into between the plaintiff and defendant and it is incorrect to say that the said agreement of sale is a tentative and nominal document. The said agreement of sale contains clause for forfeiture of advance amount in the event of failure on the part of the plaintiff to perform his part of the contract and a clause for enforcing the relief of specific performance by the plaintiff in the event the defendant fails to perform her part of the contract. Having entered into such an agreement of sale, it cannot be said that it is a tentative agreement. From the date of execution of the agreement of sale on 05.04.2008, the plaintiff was always ready and willng to perform his part of the contract and it is the defendant who evaded and avoided to execute the sale deed in his favour. In this context, a letter dated 05.05.2008 was sent by the plaintiff, Ex.A4 to the defendant in which it was clearly stated that the plaintiff was always ready and willing to perform his part of the obligation under the contract and called upon the defendant to fix a date to make the balance sale consideration and to execute the sale deed in his favour. This leter was sent by certificate of posting and to establish the same, the plaintiff has marked Ex.A3, postal receipt of Certificate of posting. It is alleged that the notice dated 05.05.2008, Ex.A2, sent by the plaintiff to the defendant is a fabricated one and it was sent after receipt of the notice dated 05.05.2008, Ex.A4 sent by the defendant. In this regard, the learned counsel for the plaintiff/ respondent invited the attention of this Court to Section 114 F and G of the Indian Evidence Act and also relied on the decision rendered in (Amrutlal Weljibhai Rathod vs. Vishwasrao Deorao Patil) reported in 1990 Mh.L.J. Page No.79 wherein it was held that the presumption available under Section 114 of Indian Evidence Act is also available to the effect that the letter must have reached the addressee in due course. The presumption must be stretched to its logical extent and the Court would be justified in presuming that the letter once posted must have reached the addressee. A mere denial is not potent enough to rebut the presumption. The learned counsel for the respondent also invited our attention to the evidence of DW1 to contend that though she has sent Ex.A4, letter dated 05.05.2008 by registered post with acknowledgment due, in the cross-examination, she has admitted that it was registered only on 07.05.2008 which would only go to show that only after receipt of the letter dated 05.05.2008, Ex.A2, sent by the plaintiff/respondent, the defendant had sent Ex.A4, letter dated 05.05.2008. In fact, the defendant has not filed the receipt or acknowledgment card to establish that Ex.A4 dated 05.05.2008 was served on the plaintiff and conveniently she has suppressed the same.
11. With regard to the submissions made by the learned counsel for the defendant/appellant that the plaintiff/respondent has violated one of the essential conditions contained in Ex.A1, agreement of sale to deposit the balance sale consideration into the Court, it is submitted that it is not necessary for the plaintiff to actually tender to the defendant or to deposit in Court any money unless he is directed to do so by the Court. In fact, in his evidence, PW1 has clearly stated that he is having funds and got it from his sambandhi and daughter. Therefore, it is not necessary for him to deposit the amount into the Court to show that he was ready and willingn to perform his part of the contract. In this case, the defendant had sent the letter dated 05.04.2008, Ex.A4 stating that she is unwilling to execute the sale deed and immediately thereafter, the plaintiff has filed the suit. In any event, immediately after the trial Court decreed the suit for specific performance on 31.03.2011, the plaintiff had remitted the balance sale consideration on 20.04.2011.
12. It is further submitted by the learned counsel for the plaintiff/ respondent that even though it is alleged by the defendant/appellant that the plaintiff/respondent is a real estate broker, even if it is so, it is not a ground to deny him the relief of specific performance or it is not a bar for him to file the suit for specific performance. Therefore, the learned counsel for the plaintiff/respondent prayed for dismissal of the appeal.
13. Having regard to the above submissions made by the counsel for both sides, the following questions arise for our consideration, namely
1.Whether Ex.A-1, Agreement of sale dated 05.04.2008 is only a tentative and nominal agreement, as claimed by the defendant
2.Whether Ex.A-2, letter is a concocted document created for the purpose of the case since it was said to have been sent by Certificate of Posting and no proof was produced by the plaintiff to show that it was served on the defendant
3.Whether the plaintiff has failed to establish that he was ready and willing to perform his part of the contract, as claimed by the defendant
4.Whether the conduct of the plaintiff would disentitle him to get the relief of specific performance
14. It is the specific case of the defendant/appellant that she never offered to sell the suit property to the plaintiff. The alleged agreement of sale dated 05.04.2008 was prepared and brought by the plaintiff to her house and her signature was obtained by the plaintiff, who is doing real estate business. At the time of signing the agreement, none of the attesting witnesses indicated in Ex.A-1, agreement of sale dated 05.04.2008 were present but their signatures were obtained by the plaintiff at a later point of time. Therefore, the said agreement was only a tentative and nominal one. Later, when the defendant made enquiries, she came to know that one square feet of land in that area is being sold at the rate of Rs.1,500/- per square feet. Therefore, she informed the plaintiff that she is not willing to sell the property by a letter dated 05.05.2008 inter alia calling upon the plaintiff to cancel the agreement of sale dated 05.04.2008 and to get back the advance amount of Rs.1,00,000/- which she has received from him.
15. Per contra, it is the case of the plaintiff that the agreement dated 05.04.2008, Ex.A-1 was signed by the defendant in the presence of her brother Shanmugam, sister Vanaja and one Jayaprakash. In the said agreement the brother of the defendant Shanmugam and sister Vanaja have signed as attesting witnesses. While executing the agreement of sale dated 05.04.2008, the defendant, on her own accord, in the said agreement itself, cancelled the registered Will dated 30.03.2000 executed by her in respect of the same property in favour of one Vasanthi and such cancellation was also made in the presence of her brother Shanmugam and sister Vanaja. As per the terms of the agreement of sale dated 05.04.2008, the defendant has to execute the registered sale deed in favour of the plaintiff after receiving the balance sale consideration of Rs.21,73,310/- within three months i.e., on or before 04.07.2008. The plaintiff was always ready and willing to perform, his part of the contract. The plaintiff has also made repeated demands to the defendant to execute the sale deed in his favour, but the defendant evaded and avoided to perform her part of the contract on some pretext or the other. Hence, the plaintiff sent a notice dated 05.05.2008 by certificate of posting expressing his readiness and willingness to perform his part of the contract and called upon the defendant to intimate him the date and time for execution of the sale deed in his favour. On receipt of the same, the defendant sent a notice dated 05.05.2008, through her lawyer, in which she admitted the execution of agreement of sale dated 05.04.2008 in his favour and also receipt of the sum of Rs.1,00,000/-. Therefore, according to the plaintiff, it is incorrect to say that the defendant has no intention to offer the property for sale to the plaintiff for a valid sale consideration.
16. In view of the above rival submissions made, it would be appropriate for us to look into the recitals contained in the agreement of sale dated 05.04.2008, marked as Ex.A-1. The relevant portion of Ex.A-1 sale agreement are as follows:-
vdf;F gp$uhh;$pjkha; ghj;jpag;gl;l brhj;ij Fwpj;J ntY}h; khtl;lk;. ntY}h; tl;lk; fhfpjg;gl;liu. iedpag;gd; ehaf;fh; bjU. nlhh; ek;gh; 54y; cs;s tPl;oy; trpj;j bghd;Du';fk; Fkhuh; gP/ uh$nfhghy; kw;Wk; ehy;th; bgahpYk; ehd; mry; tHf;F vz;/661-1975 vz;zhf tHf;F bjhlh;e;J me;j tHf;F ntY}h; khtl;l Tljy; chpikapay; ePjpkd;wj;jpy; ,/gp/be/458-1993 ,d; mry; tHf;F vz; 661-1975?d; go 14/10/1998?y; V bc&l;oa[y; 1tJ mapl;lk; fkpc&dh; gpshd; 2?y; fz;Ls;sgo D E F G khh;f;fpl;l ,lj;jpy; cs;s 11/ 1-3 brd;l;oy; thjpahfpa vd;id gpuntrpf;f bra;J 572-97y; 18/09/1998?k; njjpapy; nfhh;l; cj;jut[g;go 9 brd;l; epyj;ij nfhh;l;lhuhy; rhl;rpfs; Kd;ghf RthjPd jPh;g;g[ 14/10/1998?k; njjpapy; bfhLj;J RthjPdk; bra;jhh;fs;/ md;W Kjy; ehd; rfy chpikfSld; Mz;L mDgtpj;J bfhz;L tUk; brhj;ij. ,d;W Kjy; ehd; rfy chpikfSld; Mz;L mDgtpj;Jf; bfhz;L tUk; brhj;ij. ,d;W j';fSf;F xU rJuof;F U:/590-? TPjk; 3919 1-2 rJuof;F U:/22.73.310?00 (vGj;jhy; U:gha; ,Ugj;jp ,uz;L yl;rj;J vGgj;jp K:d;W Mapuj;J K:d;W E}w;wp gj;J kl;Lk;) vd;W eph;zak; bra;J nkw;go fpiuaj; bjhifapy; ,Ue;J ,d;W ehd; j';fsplkpUe;J buhf;fkhf ml;thd;!hf bgw;Wf;bfhd;l bjhif U:gha; 1.00.000-? vGj;jhy; U:gha; xU yl;rk; bgw;Wf;bfhd;nld;/ kPjp tpj;jpahrj; bjhifia jh';fs; ,d;W Kjy; K:d;W khj fhybfLtpw;Fs; mjhtJ 5/4/2008 Kjy; 4/7/2008?k; njjpf;Fs; buhf;fkhf vd;dplk; bfhLj;Jtpl;L. j';fs; brytpy; gj;jpuk; th';fp vGjp vd;Dila ifbaGj;J bgw;W mf;hpbkd;l; brhj;ij j';fs; bgahpnyh my;yJ jh';fs; nfhUk; eghpd; bgahpnyh gjpt[ bra;J bfhLf;f ehd; xg;g[f; bfhs;fpnwd;/ mt;thW jh';fs; gjptp bra;J bfhs;s jtwpdhy; ,e;j njjpapy; vd;dplk; bfhLj;j ml;thd;R bjhifia ,Hf;ftpl ntz;oaJ/ mt;thnw nkw;go fhybfLtpw;Fs; kPjp tpf;fpuaj; bjhifia jh';fs; vd;dplk; bfhLf;f Kd; te;Jk;. mij ehd; th';f kWj;Jk;. Vgjpa gj;jpuj;jpy; ehd; ifbaGj;J bra;J chpa rhh;gjpthsh; mYtyfk; te;J gjpt[ bra;J bfhLf;f ehd; ju kWj;jhYk;. fhyk; flj;jpf;bfhd;nl nghdhYk;. jh';fs; kPjp tpf;fpiuaj; bjhifahfa U:/21.73.310?00 ia nfhh;l;oy; brYj;jp nfhh;l; K:yk; jf;f eltof;if vLj;J (Suit for specific performance) mf;hpbkd;l; brhj;ij gjpt[ bra;J bfhs;s ehd; rk;kjpf;fpnwd;/
17. It is evident from the recitals in the agreement of sale that it contains a clause for forfeiture of advance amount in the event of failure on the part of the plaintiff to perform his part of the contract. The recitals further recite that if the defendant postpones or causes delay in executing the sale deed or refused to execute the sale deed within the time fixed under the agreement, then the plaintiff is entitled to take steps to seek the relief of specific performance through the competent Court. In our considered opinion, as per the recitals contained in the agreement for sale, there is absolutely no scope for concluding that the said agreement of sale, Ex.A-1 is only a tentative or nominal one or the defendant has no intention to offer the property for sale in favour of the plaintiff. Hence, we are of the opinion that Ex.A-1 is not a nominal or tentative document, as claimed by the defendant and such a plea is only an after-thought.
18. It is the further defence of the defendant that the agreement for sale was prepared and brought by the plaintiff to the house of the defendant and after obtaining her signature, the signature of the attesting witnesses was obtained at a later point of time at their work place. According to the learned counsel for the defendant/appellant, it is the specific defence of the defendant that at the time of signing agreement by her, the attesting witnesses were not present. However, the plaintiff has not chosen to examine the attesting witnesses to the agreement of sale to prove that the agreement was signed only in their presence. In this context, we have perused Ex.A-4, notice sent by the defendant to the plaintiff on 05.05.2008. In the said notice, the defendant had admitted the execution of the agreement of sale as also the receipt of sum of Rs.1,00,000/- towards sale advance. When a party to the document admits its due execution, then he cannot turn around and challenge the terms contained therein. Therefore, we do not find any infirmity in the reasons assigned by the trial court that since the attesting witnesses to the agreement of sale are none other than the brothers and sisters of the defendant, naturally, they will not support the case of the plaintiff, who is a stranger. Hence, we are of the opinion that since the signature in Ex.A-1, agreement of sale dated 05.04.2008 was admitted by the defendant, non-examination of the attesting witnesses to Ex.A-1 is not fatal to the case of the plaintiff. Moreover, the defendant in her cross-examinaton has admitted that she is residing along with her brother and sister in the same house. We therefore hold that the plaintiff has established his case beyond any shadow of doubt that Ex.A-1, agreement of sale dated 05.04.2008 was executed by the defendant only with the intention to sell the property to the plaintiff.
19. The learned counsel for the defendant/appellant would submit that the defendant is an illiterate women and she has entered into the agreement of sale, Ex.A-1 dated 05.04.2008 without knowing the real market value of the property covered under the agreement. When a contract is entered into with an illiterate women, the onus is on the plaintiff to prove that the defendant fully knew about the contents of the document. In the present case, the plaintiff has failed to prove that the agreement of sale was entered into by the defendant knowing fully well about the contents contained thereon. In support of this contention, the learned counsel for the defendant/appellant relied on the decision of the Division Bench of this Court in the case of (K. Varadhan vs. I. Pattammal (died) and four others) reported in (1992) 2 Law Weekly 209. We have considered the submissions of the learned counsel for the defendant/appellant on the above aspect. We find that the defendant has not raised this plea in her written statement. When the defendant herself has admitted the execution of agreement of sale dated 05.04.2008, Ex.A-1 and also the receipt of Rs.1,00,000/- as advance, the plea that she is an illiterate woman and as such the onus is on the plaintiff to prove that the defendant fully knows about the conditions cannot be accepted. It is also not the case of the defendant that she is an illiterate woman and she signed the document without knowing its contents. Hence, we answer Point No.1 in favour of the plaintiff/respondent herein and against the defendant/appellant herein.
20. It is the case of the respondent/plaintiff that after execution of Ex.A-1, agreement of sale dated 05.04.2008, he approached the defendant/appellant on two or three occasions and requested her to perform her part of the obligation under the agreement. As the defendant/appellant evaded to do so, the plaintiff/respondent sent the letter dated 05.05.2008, Ex.A-2 by certificate of posting. The Plaintiff also marked the postal receipt for having sent Ex.A-2 letter dated 05.05.2008 as Ex.A-3. However, the defendant denied having received the notice under Ex.A-2 and contended that she had sent a notice dated 05.05.2008, Ex.A-4 through her lawyer in which she has called upon the plaintiff to cancel the agreement and to come and get back the advance amount of Rs.1,00,000/- received by her. According to the defendant, Ex.A-2 letter dated 05.05.2008 said to have been sent by the plaintiff is a concocted document and it has emanated after receipt of the notice dated 05.05.2008, Ex.A-4 sent by her through her lawyer. According to the learned counsel for the defendant/appellant the normal procedure for despatching any registered post had not been resorted to by the plaintiff in this case. The Plaintiff, for the reasons best known, has said to have issued the letter dated 05.05.2008, Ex.A-2 by certificate of posting and failed to prove that it was served on the defendant. According to the counsel for the defendant/appellant service of notice through certificate of posting is always unreliable especially when relationship between the parties is embitterred. When the defendant has categorically denied the receipt of Ex.A-2 letter dated 05.05.2008 in her written statement, it is the obligation of the plaintiff to establish that it was duly sent and received by the defendant. However, the respondent/ plaintiff has not filed any reply statement to the written statement to prove that Ex.A-2 letter dated 05.05.2008 has been served on the defendant. When the plaintiff failed to prove the service of the letter dated 05.05.2008, Ex.A-2, the trial court ought not to have decreed the suit.
21. On the contrary, the learned counsel for the plaintiff/respondent herein would contend that the plaintiff has proved the service of letter dated 05.05.2008, Ex.A-2 by producing the postal receipt, Ex.A-3. In this context, the learned counsel for the plaintiff/respondent relied on the decision in the case of (Amrutlal Weljibhai Rathod vs. Vishwasrao Deorao Patil) reported in 1990 Mh.L.J. Page No.72 wherein it was held as follows:-
Once a letter is posted the fact likely to hapen is that the letter must have reached the addressee. With the address being correct, the presumption is available that the letter must have reached the addressee in the normal course once the fact of posting of the letter was proved by the certificate of posting. The presumption available under Section 114 of Indian Evidence Act is also available to the effect that the letter must have reached the addressee in due course. The presumption must be stretched to its logical extent and the court would be justified in presuming that the letter once posted must have reached the addressee. A mere denial is not potent enough to rebut the presumption.
22. By inviting the attention of this Court to the above decision, the learned counsel for the plaintiff/respondent would contend that the notice dated 05.05.2008, Ex.A-2 was posted by certificate of posting and the receipt for having sent the same was also produced under Ex.A-3 and therefore, the presumption is that the letter must have reached the defendant. The learned counsel for the plaintiff/respondent also placed reliance on Section 114 (f) and (g) of the Indian Evidence Act, which reads as follows:-
Section 114- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of native even, human contact and public and private business, in their relation to the facts of the particular case.
The Court may presume-
114 (f) That the common course of business has been followed in particular cases 114 (g) That evidence which could be and is not produced would, if produced,be unfavourable to the person who withholds it.
23. Applying the above provision of law to the facts of this case, it is evident that presumption of service of notice is raised in favour of the plaintiff/respondent and it is for the appellant to rebut the same. But, in the present case, we hold that the defendant/appellant has miserably failed to rebut such presumption. On the other hand, the evidence on record shows, particularly Ex.A4, notice dated 05.05.2008 sent by the defendant through her lawyer that it was in fact sent only on 07.05.2008 i.e., subsequent to Ex.A-2, letter dated 05.05.2008 sent by the plaintiff by certificate of posting. In this context, it would be appropriate to extract the evidence of DW1 which reads as follows:-
Kjy; rhl;rpapy; brhd;d r';fjpfis V4y; brhy;ytpy;iy/ th/rh/M/4. 5?k; njjp ,l;L 7?k njjp mDg;gg;gl;L 8?k; njjp bgwg;gl;lJ vd;why; vdf;F bjhpahJ/ njjpfis kiwg;gjw;fhf ngh!;ly; urPJ kw;Wk; xg;g[jy; ml;ila[k; kiwj;J tpl;nlhk; vd;why; rhpay;;y/ vd;dhy; mDg;gg;gl;l nehl;O!; rj;Jthr;rhhp m";ry; epiyaj;jpy; 7/5/08 md;W fhiy 10/36 kzpf;F mDg;gg;gl;lJ vd;W brhd;dhy; rhpjhd;/
24. Thus, it is evident that only after receipt of letter dated 05.05.2008, Ex.A-2 sent by the plaintiff/respondent under certificate of posting, the defendant sent the notice dated 05.05.2008, Ex.A-4 through her lawyer. For the reasons best known, the defendant did not mark the postal receipt for having allegedly sent the notice dated 05.05.2008, Ex.A-4 on that date. Accordingly, we answer point No.2 against the defendant/appellant and in favour of the plaintiff/respondent holding that Ex.A-2 is not a concocted document and it was served on the defendant even before she sent the notice dated 05.05.2008 under Ex.A-4.
25. It is the specific case of the defendant that the plaintiff was not at all ready and willing to perform his part of the contract. To prove that he was ready and willing to perform his part of the obligation, he has not produced any documentary evidence. According to the defendant, the plaintiff has no sufficient funds to fulfil his part of the obligation. The plaintiff also did not produce the income tax records or books of account or bank details to show that he is possessed of sufficient funds to pay the balance sale consideration. The plaintiff cannot merely say that he is in possession of sufficient money to pay the balance sale consideration without producing any documentary evidence to substantiate the same. The plaintiff, without proving his case by concrete evidence, is not entitled for a decree for specific performance of the agreement of sale. Though in the evidence the plaintiff has stated that his Sambandhi Mr. Manivannan and his daughter have given him money, they were not examined before the trial court to prove that the plaintiff was in a position to perform his part of the contract. In any event, the evidence given by the plaintiff in his examination alone is not sufficient without any documentary evidence to prove the readiness of the plaintiff to perform his part of the obligation. That apart, the learned counsel for the defendant/ appellant relied on the terms and conditions of the agreement of sale dated 05.04.2008, Ex.A-1 wherein it was recited that in the event of the purchaser (plaintiff) endeavouring to pay the balance of sale consideration and the seller (defendant) declines to receive it, or refuses to endorse her sign on the prepared document and refuses to go over to the registrar office, the purchaser (plaintiff) shall deposit Rs.21,73,310/- in Court and initiate action for specific performance. According to the learned counsel for the defendant, in the present case, no such steps were taken by the plaintiff. To substantiate this submission, the learned counsel for the defendant/appellant relied on the decision of the Division Bench of this Court in (Arunachala Mudaliar vs. Jayalakshmi Ammal and another) reported in 2003 (1) CTC 355 wherein it was held that Court cannot grant decree in favour of one who is not ready and willing to perform essential terms of the contract. In Para No.25, it was held as follows:-
25. The obvious lacunae in the plaintiff's case have been pointed out above. The plaintiff has not deposited the amount that she should have deposited as per Ex.A7 before filing the suit for specific performance. The defendant had raised the plea that the deposit was not made and it would show the plaintiff's lack of bona fide. In spite of that the plaintiff not only does not deposit the amount before filing the suit, but P.W.1 the plaintiff's husband glibly says in his evidence that he has deposited the amount. The plaint does not even refer to any readiness or willingness to deposit and the suit notice claimed to have been issued has not been proved to have been issued. In the particular circumstance of the case and in view of the specific recitals regarding the deposit, the plaintiff cannot be content with citing the explanation to Section 16 (c) of the Act without proving his readiness and willingness clearly and beyond doubt.
26. By relying upon the above decision, the learned counsel for the defendant submitted that the recitals in the agreement of sale dated 05.04.2008, Ex.A-1 requires the plaintiff to deposit the balance sale consideration into Court and thereafter seek for enforcement of the contract and his failure to deposit the balance sale consideration will disentitle him to seek for the relief of specific performance.
27. We are not impressed with such submission made by the learned counsel for the defendant/appellant considering the peculiar facts and circumstances of the case. In the present case, within a period of one month from the date of execution of agreement of sale dated 05.04.2008, Ex.A-1, the defendant sent the letter dated 05.05.2008, Ex.A-4 through her lawyer which was in fact sent only on 07.05.2008 after receipt of the notice dated 05.05.2008, Ex.A2 sent by the plaintiff under certificate of posting. In Ex.A-4, letter dated 05.05.2008 sent by the defendant, she has stated that she was unwilling to execute the sale deed because she wanted to construct a house with the help of her sisters and her sisters also have right of pre-emption over the said property and they object to sell the property to any one else. Therefore, the defendant has stated that she is not willing to execute the sale deed in favour of the plaintiff. We find from the letter dated 05.05.2008, Ex.A-4 that the defendant has not made any whisper with regard to the readiness and willingness on the part of the plaintiff to perform his part of the contract. We also find that immediately on receipt of the notice dated 05.05.2008, Ex.A-4 on 08.05.2008, the plaintiff has filed the suit for specific performance. We also find from the evidence that the plaintiff has categorically stated that he was having sufficient money to purchase the property and he has got such money from his Sambandhi and daughter. It is the contention of the counsel for the defendant/appellant that the plaintiff has neither examined his Sambandhi or daughter or produced any documentary proof to show his readiness and willingness. In this context, it is worthwhile to refer to Explanation (i) to Section 16 (c) of the Specific Relief Act, 1963 which reads as follows:-
16. Personal bars to relief. Specific performance of a contract cannot be enforced in favour of a person;-
...
(c) Who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of contract which are to be performed by him, other than terms of performance of which has been prevented or waived by the defendant.
Explanation : For the purpose of clause (c)
(i) Where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in Court any money except when so directed by the Court
(ii) The plaintiff must aver performance of, or readiness and willingness to perform the contract according to its true construction.
28. Thus, as per the explanation appended to Section 16 (c) of the Specific Relief Act, even though the recitals contained in the agreement of sale, Ex.A-1 dated 05.04.2008 requires the plaintiff to deposit the amount in the event of the failure or refusal of the defendant to come forward to execute the sale deed, It is not essential to deposit the amount by the plaintiff before filing the suit unless it is ordered by the Court. Further, in this context, the recent decision of the Honourable Supreme Court in the case of (Mrs. A. Kanthamani vs. Mrs. Nasreen Ahmed) Civil Appeal No.2714 of 2008 dated 6th March 2017 would be a fitting answer to the issue. The relevant portion of the order dated 06.03.2017 of the Honourable Supreme Court reads as follows:-
28. The expression readiness and willingnesshas been the subject matter of interpretation in many cases even prior to its insertion in Section 16 (c) of the Specific Relief Act, 1996. While examining the question as to how and in what manner, the plaintiff is required to prove his financial readiness so as to enable him to claim specific performance of the contract/agreement, the Privy Council in a leading case which arose from the Indian Courts (Bombay) in Bank of India and others vs. Jamsetji A.H. Chinoy and Chinoy and Company) AIR 1950 PC 50, approved the view taken by Chagla, A.C.J., and held inter alia that it is not necessary for the plaintiff to produce the money or vouch a concluded scheme for financing the transaction to prove his readiness and willingness.
29. In the light of the above decision of the Honourable Supreme Court and taking note of the evidence of the plaintiff, we hold that the plaintiff was always ready and willing to to perform his part of the contract. Moreover, it is not the case of the defendant that the plaintiff was never ready and willing to perform his part of the contract. Further, the evidence on record shows that it is the defendant who issued the notice dated 05.05.2008, Ex.A-4 calling upon the plaintiff to cancel the agreement even before expiry of the time stipulated under the agreement, Ex.A-1. Further, as observed earlier, in this case, in the oral evidence adduced by the plaintiff, he has stated that he is in possession of funds received from his sambandhi and daughter to perform his part of the contract and hence, considering the factual aspects of this case, we are of the opinion that this is sufficient to come to a conclusion that the plaintiff was always ready and willing to perform his part of the contract.
30. Yet another contention of the defendant is that the agreement of sale dated 05.04.2008, Ex.A-1 contains certain pre-conditions on the part of the plaintiff to deposit the amount into the Court in the event of failure on the part of the defendant to fulfil her part of the contract by either refusing or declining to execute the sale deed, however, the plaintiff did not deposit the amount as required and therefore he is not entitled for the relief of specific performance. In the instant case, none of the contingencies mentioned in the agreement of sale happened. Though three months time was indicated in the agreement for the plaintiff to perform his part of the contract, the defendant, within one month of execution of Ex.A-1, agreement of sale, has resiled from her agreement and issued Ex.A-4, notice dated 05.05.2008 on 07.05.2008 calling upon the plaintiff to cancel the agreement on the ground that she is intending to put up a construction in the land. In such event, when the defendant refused to perform her part of the contract, the plaintiff has immediately filed the suit and sought for the relief of specific performance. Therefore, it cannot be said that the plaintiff has failed to fulfil his obligations contained in the agreement of sale dated 05.04.2008. Accordingly, we answer point No.3 also in favour of the plaintiff/respondent and against the defendant/appellant.
31. It is the submission of the counsel for the defendant/appellant that within four days from the date of receipt of the notice dated 05.05.2008, Ex.A-4 received by the plaintiff on 08.08.2008, he has filed the suit before the Vacation Court, without even sending a reply notice to Ex.A-4. It is further stated that before filing the suit, the plaintiff did not deposit the balance sale consideration as contained in the agreement of sale dated 05.04.2008, Ex.A-1. We have already dealt with the above submission of the counsel for the defendant that it is not mandatory for the plaintiff to deposit the balance sale consideration without the direction of the Court, as contained in Explanation to Section 16 (c) of the Specific Relief Act. Moreover, when the defendant expressed her unwillingness to perform her part of the contract in the notice dated 05.05.2008, Ex.A-4, the plaintiff has no other alternative except to institute the suit. In such view of the matter, we answer point No.4 also in favour of the plaintiff/respondent and against the defendant/appellant.
32. In the result, we confirm the decree and judgment passed by the Court below and the appeal suit is dismissed. No costs.
(R.P.S.J.,) (M.S.R.J.,)
06-06-2017
rsh
Speaking Order
To
The Additional District and Sessions Judge
Fast Track Court
Vellore
R. SUBBIAH, J
and
M.S. RAMESH, J
rsh
Pre-delivery Judgment in
AS No. 292 of 2011
06-06-2017
http://www.judis.nic.in