Madras High Court
S. Balan And T.S. Kothandan vs Srinivasalu, Adhilakshmi, Padmavathi ... on 15 October, 2004
Equivalent citations: AIR2005MAD216, (2004)4MLJ617, AIR 2005 MADRAS 216, (2004) 4 MAD LJ 617, (2005) 4 CURCC 120, (2005) 1 CIVLJ 860, (2005) 26 ALLINDCAS 873 (MAD)
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
JUDGMENT M. Karpagavinayagam, J.
1. The defendants 4 and 5 are the appellants herein.
2. Srinivasalu, the first respondent herein filed the suit for specific performance against other respondents and the appellants. The suit was decreed in favour of the plaintiff, the first respondent herein. Challenging the same, first defendant, the second respondent herein filed an appeal before the lower appellate Court, which in turn confirmed the decree and judgment of the trial Court and dismissed the appeal. Aggrieved by the finding against the defendants 4 and 5 claiming themselves to be the bona fide purchasers, they have filed this second appeal.
3. The case of the plaintiff/first respondent is as follows:
"The defendants 1 to 3 executed a sale agreement in favour of the plaintiff on 12.2.1993 agreeing to sell the suit property for the sale consideration of Rs. 22,000/- and an advance of Rs. 5,000/- was paid by the plaintiff. Three months time was given. The plaintiff sent notices on different dates to the defendants 1 to 3 expressing his willingness to perform his part of the contract as he was ready with the balance amount. However, no response was shown on the part of the defendants. Hence, the suit for specific performance."
4. During the pendency of the suit, the plaintiff came to know that the suit property was sold to one Balan and Kothandam and therefore, they were added as defendants 4 and 5. Ultimately, the prayer was amended seeking for the relief of specific performance as against the defendants who purchased the suit property.
5. The case of the first defendant is as follows:
" The sale agreement is a fabricated document. Taking advantage of the fact that the defendants 1 to 3 are illiterate, a false case has been filed against these defendants. Hence, the suit is liable to be dismissed."
6. The case of the defendants 4 and 5 is as follows:
"The defendants 4 and 5 are the bona fide purchasers for value without notice. The defendants 1 to 3 did not inform these defendants about the sale agreement and pendency of the suit. These defendants purchased the suit property for sale consideration of Rs. 15,000/- from the defendants 1 to 3 on 23.3.1994. Since then, they are in possession and enjoyment of the suit property. Therefore, the suit is liable to be dismissed."
7. On the above pleadings, the appropriate issues were framed. On the side of the plaintiff, P.Ws.1 to 3 were examined and Exs.A1 to A5 were marked. On the side of the defendants, 4 witnesses were examined and 11 documents were marked.
8. The trial Court on appreciation of the evidence available on record, decreed the suit in favour of the plaintiff holding that the sale agreement entered into between the plaintiff and the defendants 1 to 3 was valid and the defendants 4 and 5 are not the bona fide purchasers for value without notice. This finding has been confirmed in the appeal filed by the first defendant. Aggrieved by that, the defendants 4 and 5 has filed this second appeal.
9. Mr. AV.Elango, learned counsel appearing for the appellants would strenuously contend that both the Courts below did not go into the aspect as to whether the agreement dated 12.2.1993 is binding on the appellants when they are the bona fide purchasers. He would cite two judgments in RAM AWADH v. ACHHAIBAR DUBEY of the Supreme Court and RANGANATHA GOUNDER v. SAHADEVA GOUNDER (2004(4) M.L.J.112) rendered by the Division Bench of this Court, in which it is held that the relief of specific performance is though discretionary, the same must be exercised on sound and reasonable principles and merely because the party asks for the relief of specific performance, the Court is not bound to grant the said relief.
10. I have given my anxious consideration to the contentions urged by the counsel for the appellants.
11. There is no dispute in the legal position. It is settled law that the obligation imposed by Section 16 of the Specific Relief Act, 1963 on the plaintiff is to prove the requirements of clauses (a), (b) and (c) of the said section.
12. Though it is a bounden duty to prove that the plaintiff has always been ready and willing to perform his part of the agreement, in this case, the evidence of the witnesses and the documents clearly indicate, as held by both the Courts below, that two notices were sent by the plaintiff to the defendants 1 to 3 and despite that, there was no response on their part and therefore, they filed the suit and also deposited the required money in the Court. Therefore, in my view, the requirements of Section 16 have been complied with.
13. The question that arises in this case is as to whether the appellants/defendants 4 and 5 would be entitled to contend that they are the bona fide purchasers for value without notice.
14. It is to be noticed in this context that though the defendants 1 to 3 executed the agreement in favour of the plaintiff, the defendants 2 and 3 chose not to contest the matter and as such, they were set ex parte. The first defendant both in the written statement and in the evidence as D.W.1 merely stated that the document is a fabricated document.
15. The main argument advanced by the counsel for the appellants is that there are some corrections in the agreement. As correctly pointed out by both the Courts below, some correction with regard to the year would not affect or alter the core of the agreement and consequently, the defendants 4 and 5 who claim to be the bona fide purchasers cannot escape from their liability. The agreement was dated 12.2.1993. The notices were sent to the defendants on 15.11.1993 and again on 30.11.1993 and the same were served on the defendants on 4.12.1993. Despite that, there was no response from the defendants 1 to 3. Therefore, the plaintiff was constrained to file a suit.
16. Admittedly, when the suit is pending, the defendants 4 and 5 purchased the suit property by virtue of the sale deed dated 23.3.1994. The materials available on record would indicate that the defendants 4 and 5 are the brothers and the first defendant is their aunt. The sale consideration as per the agreement between the plaintiff and the defendants was Rs. 22,000/-. But, the sale amount mentioned in the sale deed dated 23.3.1994 is only Rs. 15,000/-. Admittedly, all the defendants are staying in the same street and the plaintiff also is staying in the opposite house.
17. When there are materials to establish that there is a lis pendens and the suit property has been purchased by the defendants 4 and 5 from their close relative when the suit is pending, it is for the defendants 4 and 5 to establish that they did not know anything about the earlier agreement as well as the pendency of the suit. Therefore, the finding which has been given by both the Courts below against the defendants including the defendants 4 and 5, in my view, is perfectly justified.
18. As there is no substantial question of law, the second appeal is dismissed even at the admission stage itself. Consequently, C.M.P. No. 15215 of 2004 is also dismissed.