Madras High Court
Unknown vs Baghiyaraj on 10 February, 2021
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
S.A.No.1598 of 2001
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 10.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
S.A.No.1598 of 2001
1.Palaniappan (Died)
2.Karuppannan
3.Sherfudeen
4.M.S.Mohammed Meeran (Died)
5.Asraf Ali
6.S.M.Advar Rahman
7.P.Parameshwari
8.P.Vijayaganesh
9.Nirmaladevei Ramkumar
(A7 to A9 are brought on record as LRs of the
deceased A1, vide Court order dated 03.06.2019 made
in C.M.P.No.4443 & 4444 of 2019 in S.A.No.1598/2001)
10.S.M.Najmunnisa
11.S.M.Bathruzaman
12.S.M.Habeeb Rahman
13.S.M.Sameem Fathima
A10 to A13 are brought on record as LRs of the
deceased A4, vide Court order dated 27.11.2019 made
in C.M.P.(MD)Nos.6411/2019 in S.A.No.1598/2001)
.... Appellants/Respondents/
Defendants
Vs.
1.Baghiyaraj
2.Gowasal Ambigai
3.Jeyanthi
4.Vijay Balraj ... Respondents/appellants/
plaintiffs
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S.A.No.1598 of 2001
PRAYER: Second Appeal filed under Section 100 of Civil Procedure Code,
against the judgment and decree, dated 22.12.2000 made in A.S.No.41 of 2000, on
the file of the Principal District Judge, Karur, reversing the judgment and decree,
dated 08.06.1999, made in O.S.No.424 of 1993, on the file of Sub Judge, Karur.
For Appellants : Mr.K.Suresh for Mr.E.K.Kumaresan
For Respondents : Mr.S.Anand Chandrasekar
for M/s.Sarvabhauman Associates
JUDGMENT
Aggrieved over the reversal finding of the first appellate Court allowing the appeal, thereby setting aside the decree and judgment of the trial Court dismissing the suit filed for specific performance, the present Second Appeal is filed.
2. The parties are referred to as per their rank before the trial Court.
3.The brief facts, leading to file this Second Appeal, are as follows:-
In an agreement dated 24.01.1992, the defendants agreed to sell the property measuring to an extent of 6 cents, out of 48 cents, for a total consideration of Rs.81,000/- (Rupees Eighty One Thousand only), which is shown as 'A' schedule in the plaint and received a sum of Rs.20,000/- (Rupees Twenty Thousand only) as advance. As the original documents of the property was 2/14 http://www.judis.nic.in S.A.No.1598 of 2001 impounded under Section 47 (A) of the Stamp Act, the defendants agreed to hand over the same within a period of 5 months and complete the sale. In respect of second schedule of the property, there is no consideration fixed in the agreement. Having agreed to hand over the original documents, which was impounded under Section 47 (A) of the Stamp Act, the defendants have not taken any steps to receive the document from the concerned department. Plaintiff was always ready and willing to perform his part of the contract. Despite the request made by the plaintiff, the defendants have not come forward to execute the sale deed in time. Thereafter, the defendants were demanding excess amount from the plaintiff, for which, the plaintiff was not amenable for the same. It came to the knowledge of the plaintiff that the defendants have received the original document from the Revenue Department. However, they have not informed the same to the plaintiff. Hence, the suit.
4. Admitting the execution of the suit agreement on 24.01.1992, it is the contention of the defendants in the written statement that the plaintiff is only a name lender. On the date of the agreement one Kaliappan and Karuppiah approached the defendants to purchase the entire extent of 48 cents, in the suit survey field and entered into two agreements. One agreement was executed in favour of one Kalimuthu and Karuppiah for an extent of 42 cents and in respect of 3/14 http://www.judis.nic.in S.A.No.1598 of 2001 remaining 6 cents, an agreement was executed in favour of the plaintiff. It is his further contention that after the receipt of the original documents, which was impounded under Section 47 (A) of the Stamp Act, the same was informed to Karuppiah and the xerox copy of the document was also handed over to the said Karuppiah and promised to register the sale deed in their favour within a week. Since, they have not turned up, a legal notice was issued to them on 27.03.1993. In reply, the said Karrupia and Kalimuth requested further two months time to register the sale. Thereafter, in the mediation, in the presence of one Vadivel, they have given up the contract. The plaintiff is none other than the son in law of the said Karuppiah. The plaintiff is fully aware of all these facts, however, he has not chosen to issue any notice prior to the filing of the suit. The plaintiff has filed the suit at the instigation of his father-in-law Karuppiah. The suit is bad for non- joinder of necessary parties and there is no cause of action for the suit. Hence, prayed for dismissal of the suit.
5. The trial Court, based on the above pleadings framed the following issues:
1. Whether it is true that the defendants have no sale agreement with the plaintiff and they have not received any amount as advance?
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2. Whether the time limit is the essence of sale agreement of the suit property?
3. Whether the suit is barred for non-joinder of necessary parties?
4. Whether the plaintiff is entitled for the relief of specific performance as prayed for?
5. To what other reliefs, the plaintiff is entitled to?
6. On the side of the plaintiff, he himself was examined as P.W.1 and one document was marked as Ex.A1. On the side of the defendants, fourth defendant was examined as D.W.1 and no exhibits were marked. Ex.C1 and Ex.C2 were marked on the side of the Court.
7. Based on the evidence and materials, the trial Court found that the plaintiff is not ready and willing to perform his part of contract and dismissed the suit. As against the same, an appeal was filed. The first appellate Court, after considering the evidence, allowed the appeal on the ground that the agreement was admitted by the defendants. As against which, the present Second appeal is filed.
8. While admitting the Second Appeal, the following substantial questions of law have been framed for consideration:- 5/14
http://www.judis.nic.in S.A.No.1598 of 2001 “1.Whether Ex.A1 is an agreement of sale when its execution on 24.01.1992 has been denied by the appellants/defendants?
2.Whether the lower appellate Court was right in rejecting the issues tried by the trial Court when the parties to the suit had subjected to the trial with the full knowledge of the issues being tried?
3.Has not the lower appellate Court erred in rejecting the issues “that time is the essence of contract”?
9. The learned counsel appearing for the appellants submitted that with regard to the other agreement executed in respect of 42 cents in the suit property, an appeal was filed before this Court in A.S.No.640 of 1999. The above appeal was allowed by this Court in a similar set of facts. Similarly, it is the contention of the learned counsel appearing for the appellants that though the time was fixed at five months, no legal notice whatsoever issued to the defendants at any point of time before filing the suit. That itself clearly indicates that the plaintiff is only a name lender and he is not ready and willing to perform his part of contract. The first appellate Court merely on the basis of the agreement, granted decree without going into the issue of readiness and willingness on the part of the plaintiff. Hence, submitted that the appeal deserves to be allowed.
10. The learned counsel appearing for the respondents submitted that the agreement has been accepted, advance has also been received and the suit has been 6/14 http://www.judis.nic.in S.A.No.1598 of 2001 filed within the period of limitation and after release of the original documents, which was impounded under Section 47(A) of the Stamp Act, suit has been filed within five months thereafter. That itself clearly indicates that the plaintiff is ready and willing to purchase the property. The defendants, having agreed to hand over the documents, have not taken any steps to hand over the same to the plaintiff. Merely because the xerox copy of the documents said to have been given to some other persons the same would not bind on the defendants. Hence, it is his contention that the lower appellate Court has analyzed the entire evidence and rightly found that the plaintiff was always ready and willing to perform his part of contract. Hence, it is his contention that the judgment of the first appellate Court does not require any interference.
11. Heard the learned counsel appearing for the appellants, the learned counsel appearing for the respondents and perused the materials available on record carefully.
12. The suit has been laid to enforce the contract-Ex.A1, dated 24.01.1992 to an extent of 6 cents. It is agreed to sell the same in favour of the plaintiff and a sum of Rs.20,000/- (Rupees Twenty Thousand only) was received as an advance as against the total consideration of Rs.81,000/- (Rupees Eighty 7/14 http://www.judis.nic.in S.A.No.1598 of 2001 One Thousand only). Though five months was fixed in the agreement for completing the sale, admittedly on the date of agreement, original document was impounded under Section 47 (A) of Stamp Act and therefore, the Defendants have agreed to release the document impounded and hand over the original documents within five months. However, the same has not been done in this case. Therefore, the condition in the agreement to complete the same within five months never intended as an essence of contract. The five months time agreed was subject to the release of the documents by the concerned Department, which has impounded the document under Section 47 (A) of the Stamp Act. Therefore, merely because five months time is stipulated in the agreement, it cannot be said that the said period was intended as an essence of contract between the parties. Be that as it may, it is the main contention of the defendants that the plaintiff was the name lender and his father-in-law viz., Karuppiah and another also entered into an agreement in respect of 42 cents, on the same date, on the same conditions of handing over the original documents. It is the contention that the original documents have been handed over to the Karuppiah, who is the father-in-law of the plaintiff herein. From the evidence of P.W.1, it can be seen that execution of the agreement in respect of another 42 cents in favour of Karuppiah, father-in-law of the plaintiff, on the same day has not been disputed.
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13. The main contention of the plaintiff that the defendants have not handed over the original document as agreed by them. Therefore, the sale could not be completed in time. It is to be noted that in the earlier judgment in A.S.No. 640 of 1999, this Court has found that the defendants, infact have received the original documents from the Collector and a xerox copy was also handed over to Karuppiah, who is none other than the father-in-law of the plaintiff and he has sought two months time to complete the sale. Therefore, it cannot be said that the plaintiff had no knowledge about the documents released from the authority. Be that as it may, it is the specific contention that though this Court has held that time was not an essence of contract, that will not relieve the plaintiff from proving the readiness and willingness from the date of inception. Even de hors the contention of the defendants that the plaintiff is only a name lender, the conduct of the plaintiff play a vital role to assess the readiness and willingness. It is specific case of the plaintiff that he was always ready and willing to perform his part of contract. As held in A.S.No.640 of 1999, his father-in-law sought two months further time, despite receipt of the copy of sale deed, which has also been considered by this Court in A.S.No.640 of 1999. The findings in the above judgment, makes it clear that the documents were released from the Collector in the month of August 1993.
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14. It is also relevant to note that no notice whatsoever was issued demanding execution of the sale by the defendants. Though plaintiff was aware of the release of document earlier, the suit was not filed immediately. That apart, from the date of inception the plaintiff has not established his readiness and willingness. Readiness virtually means the capacity to mobilise funds and willingness means intention and mental attitude to purchase the property. To show that the plaintiff is always ready and willing to perform his part of contract and he had a capacity to mobilise the funds, no evidence whatsoever is available on record. That apart, non-issuing of the notice has also fortified the fact that the willingness is also absent on his part. Therefore, merely on the basis of the agreement, which was admitted by the defendants, the plaintiff cannot claim that he was always ready and willing to perform his part of contract. Yet another fact also cannot be ignored simply. Though it is the contention of the plaintiff that he was in possession of the property, the defendants have taken a specific stand in their evidence that the property has been dealt with in favour of the third parties long back. The contention of the defendants has also been probablised by the Commissioner's Report. Commissioner's Report indicate that some buildings already exist in the suit property. It is not the case of the plaintiff that he has put up a construction and exercising his right. His evidence infact indicates that he himself admitted that there are some other buildings also came in the suit 10/14 http://www.judis.nic.in S.A.No.1598 of 2001 properties. All these facts clearly show that the plaintiff was never ready and willing to perform his part of contract.
15. It is further also to be noted that though the agreement was executed in respect of sale of 'A' schedule property, the suit is also filed for 'B' schedule property, which is admittedly a Government Poromboke land. The defendants have no title whatsoever in respect of the above property. Now the agreement sought to be enforced not only in respect of 'A' schedule property, but also 'B' schedule property' in which the defendants have no title to the property. Therefore, this Court is of the view that such agreement cannot be enforceable. The first appellate Court, without addressing the point as to the readiness and willingness, has simply allowed the suit on the basis of Ex.A1. Further, to show that the plaintiff has any other means to pay the balance sale consideration, absolutely, there is no evidence available on record. Therefore, this Court is of the view that the findings of the first appellate Court is not based on the proper appreciation of law and evidence and the same are nothing but erroneous. Accordingly, all these points are answered in favour of the appellants.
16. In the result, this Second Appeal is allowed. The judgment of the first appellate Court is set aside and the judgment and decree of the trial Court is 11/14 http://www.judis.nic.in S.A.No.1598 of 2001 hereby confirmed. Though the trial Court has not granted any refund of advance amount, taking note of the fact that advance amount has been received by the defendants, this Court is of the view that the same shall be refunded to the plaintiff with reasonable interest at the rate of 7% per annum from the date of agreement till the date of realisation. No costs.
10.02.2021 Index : Yes/No Internet : Yes/No vsm Note: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.
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1.The Principal District Judge, Karur
2.The Sub Judge, Karur.
3.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
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