Durairaji vs Nadarajan

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 23.03.2021

CORAM

THE HON'BLE MR. JUSTICE KRISHNAN RAMASAMY

S.A.No.130 of 2017 and C.M.P.Nos.2653 & 9124 of 2017

1.Durairaji 2.Muthamizhiselvi ... Appellants Vs.

Nadarajan ... Respondent

Prayer:Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree dated 02.09.2013 made in A.S.No.18 of 2012 on the file of the Subordinate Judge, Kallakurichi confirming the judgment and decree dated 21.11.2011 made in O.S.No.420 of 2009 on the file of the Principal District Munsif, Kallakurichi. For Appellants : Mr.N.Ramesh For Respondent : Mr.N.Suresh for Mr.P.Rajavel

JUDGEMENT

This Second Appeal has been filed to set aside the judgment and decree

dated 02.09.2013 made in A.S.No.18 of 2012 on the file of the Subordinate

Judge, Kallakurichi confirming the judgment and decree dated 21.11.2011 made

1/24

https://www.mhc.tn.gov.in/judis/ SA.No.130 of of 2017

in O.S.No.420 of 2009 on the file of the Principal District Munsif,

Kallakurichi.

2.The appellants herein are the defendants in the suit. The respondent

herein is the plaintiff in the suit.

3.The suit was filed for specific performance. The plaintiff and the 1st

defendant are brothers.

4.According to the plaintiff, the 1st defendant has agreed to sell the suit

schedule property for a consideration of Rs.47,500/-. Accordingly the 1st

defendant received a consideration of Rs.37,000/- as advance from the plaintiff

and executed a registered agreement of sale on 01.03.2007. The 2nd defendant is

the daughter of the 1st defendant, who was minor at the time execution of the

sale agreement. As per the sale agreement, the balance sale consideration of

Rs.10,500/- has to be paid on or before 02.03.2009. The plaintiff had appointed

his wife as Power of Attorney as he has to go frequently for the Foreign

Country for employment purpose. The plaintiff was ready and willing to pay the

2/24

https://www.mhc.tn.gov.in/judis/ SA.No.130 of of 2017

balance sale consideration throughout the period of sale agreement. But, the

defendants took time whenever the plaintiff approached him for executing the

sale deed and consequently, the 1st defendant has not kept his promise, therefore

the plaintiff issued the legal notice on 04.07.2009, which was marked as Ex.A2.

The legal notice was returned as unserved and the returned cover was marked as

Ex.A3. Hence, without any option the plaintiff filed the suit for specific

performance.

5.The case of the 1st defendant was that he has executed the sale

agreement on 01.03.2007 at the request of the plaintiff, as a security for the

hand loan. The 1st defendant used to get hand loan from his brother/the plaintiff

from time to time for which, the plaintiff requested to provide security for the

repayment of loan. Therefore, the sale agreement was executed. According to

the 1st defendant he received a sum of Rs.12,000/- on 08.08.2005, Rs.5,000 on

17.01.2006, Rs.3,000/- on 15.07.2007, Rs.10,000/- on 19.07.2007 from the

plaintiff as hand loan. Except the above averment, the defendant has denied all

other averments in his written statement. The plaintiff by taking advantage

over the delay in discharging the hand loan, has fraudulently filed the suit to

3/24

https://www.mhc.tn.gov.in/judis/ SA.No.130 of of 2017

grab the property. The defendants are away from the village, therefore, the

legal notice could not be received and reply was not given. The defendants are

ready to settle the hand loan. Therefore, he submitted that there was no cause

of action for filing the suit and the same is liable to be dismissed.

6.Before the Trial Court, the plaintiff himself examined as P.W.1 and

were marked Exs.A1 to A3. On the defence side, the 1 st defendant examined as

D.W.1 and no documents were marked.

7.The Trial Court framed four issues and the four issues were answered

in favour of the plaintiff and ultimately held that there was a valid registered

sale agreement entered between the plaintiff and the defendants. The contention

of the defendant that he has obtained only a hand loan from the plaintiff was

rejected by the Trial Court by relying on the exhibits. Therefore, the Trial Court

passed the judgment and decree stating that the plaintiff is entitled for decree as

prayed for.

4/24

https://www.mhc.tn.gov.in/judis/ SA.No.130 of of 2017

8.Aggrieved by the said judgment passed by the Trial Court on

21.11.2011 in O.S.No.420 of 2009, the appellant herein filed an appeal in

A.S.No.18 of 2012. After hearing both the parties, the First Appellate Court

held that there is a legally valid sale agreement executed by the defendants in

favour of the plaintiff for the sale of the suit schedule property on 01.03.2007.

Once again, the contention of the defendants that the amount was borrowed as

hand loan from the plaintiff, was rejected by the First Appellate Court. The

First Appellate Court heavily relied on Ex.A2 and held that the plaintiff was

ready and willing to pay the balance consideration as per the sale agreement and

upheld the judgment of the Trial Court. Subsequent to the dismissal of the

appeal, the Execution Petition was filed and sale deed was executed in favour

of the plaintiff on 13.08.2016 by the District Munsif, Kallakurichi, pending the

present Second Appeal in S.A.No.130 of 2017. Aggrieved by the judgment and

decree passed by the First Appellate Court, the present Second Appeal has been

filed. However, at the time of execution of the sale deed the present Second

Appeal was not numbered.

5/24

https://www.mhc.tn.gov.in/judis/ SA.No.130 of of 2017

9.When the matter came up for hearing on 04.02.2021, this Court

admitted the Second Appeal on the following Substantial Question of Law:

“Whether the judgment and decree of the Trial Court as well as the Appellate Court is perverse due to the reason of failure to give findings on the aspect of readiness and willingness of the plaintiff?”

10.Mr.N.Ramesh, learned counsel for the appellants/defendants

submitted that the present appeal has been filed challenging the judgment and

decree dated 02.09.2013 passed by the First Appellate Court in A.S.No.18 of

2012. The suit was filed by the respondent/plaintiff for specific performance of

the contract. He further submitted that the defendants have executed the sale

agreement in favour of the plaintiff on 01.03.2007 towards the security for the

hand loan. The plaintiff and the 1st defendant are brothers, therefore, the 1st

defendant used to borrow hand loans from the plaintiff. Due to the frequency of

the transaction, the plaintiff insisted to execute the sale agreement as a security

for the repayment of loan. Therefore, the 1st defendant executed the sale

agreement as a security for the hand loans. In order to prove the contention, the

1st defendant stated that on various dates he has borrowed money from the

6/24

https://www.mhc.tn.gov.in/judis/ SA.No.130 of of 2017

plaintiff as hand loan as narrated above in Paragraph No.5. Even some of the

transaction appears prior and subsequent to the execution of the sale agreement.

However, the plaintiff filed the suit for specific performance to execute the sale

deed.

11.The learned counsel for the appellants further submitted that the

plaintiff's contention was that he paid a sum of Rs.37,000/- as advance for

executing the sale deed and two years time limit fixed for the payment of

balance consideration of Rs.10,500/-. The person who paid a sum of

Rs.37,000/- to purchase the land will not wait to pay the balance consideration

of Rs.10,500/- for another two years. From this, the Court can construed that

the agreement was not entered for sale of the property but as a security for the

repayment of the loan. The two years time was granted only for the purpose of

repayment of loan and not for the purpose of execution of sale deed after the

receipt of Rs.10,500/-.

7/24

https://www.mhc.tn.gov.in/judis/ SA.No.130 of of 2017

12.He further submitted that even assuming that the agreement was

executed for the sale of the property. The plaintiff is liable to prove his ready

and willingness throughout the period of two years, fixed for the balance

payment of Rs.10,500/-. He was not ready and willing to pay the balance sale

consideration on or before 02.03.2009 as stated in the agreement for sale. On

the other hand, he issued the legal notice through Ex.A2 on 04.07.2009

expressing his willingness to pay the balance sale consideration of Rs.10,500/-

and requested the defendant to execute the sale deed which is subsequent to the

expiry of the agreement period. Therefore, the plaintiff has failed to prove his

readiness and willingness to perform the contract.

13.Further, in terms of Section 16(c) of the Specific Relief Act, 1963,

(hereinafter also referred to as 'the Act') the plaintiff has to prove his readiness

and willingness to pay the balance consideration of Rs.10,500/- throughout the

period of agreement. These aspects were not considered by both the Court

below. Therefore, the learned counsel submitted that the judgment and decree

passed by both the Courts below is perverse and vitiated for the failure to

consider the plaintif's readiness and willingness to perform the contract in terms

8/24

https://www.mhc.tn.gov.in/judis/ SA.No.130 of of 2017

of 16 (c) of the Act. Hence, prayed to allow the appeal.

14.Per contra, Mr.N.Suresh, learned counsel for the respondent/plaintiff

strongly opposed the contention of the learned counsel for the appellant. He

submitted that as far as the execution of the sale agreement is concerned, it is

admitted by both the parties. The plaintiff has categorically stated in the plaint

at Paragraph No.3, that throughout the period of agreement and after the period

of agreement he was ready and willing to pay the balance consideration of

Rs.10,500/- to the defendants and only at the request of the defendants the

execution of sale deed was postponed from time to time. The defendants sought

time for execution of sale deed whenever the plaintiff approached him. Even

after the completion of two years period, at the instance of the defendants only

the plaintiff granted time for the execution of the sale deed. However, the

defendants failed to execute the sale deed. Thus, the plaintiff sent a legal notice

on 04.07.2009, expressing his ready and willingness to pay the balance sale

consideration of Rs.10,500/- and called upon the defendant to execute the sale

deed. The said notice was returned deliberately and returned cover was also

marked as Ex.A3. Therefore, without any other option he has filed the present

9/24

https://www.mhc.tn.gov.in/judis/ SA.No.130 of of 2017

suit for specific performance. The Court below after hearing both side

arguments decreed the suit and the First Appellate Court also upheld the

judgment of the Trial Court.

15.The learned counsel further submitted that in the present case at the

Paragraph No.3 of the plaint, the plaintiff has stated that he is ready and willing

to pay the balance consideration throughout the period and for the said

averment the defendant has not made any specific denial, which clearly shows

that the fault is on the part of the defendants. When the facts which are averred

by the plaintiff in the plaint are not denied by the defendants specifically, the

same need not be proved by letting in evidence. He further submitted that both

the Trial Court as well as the First Appellate Court have not framed any issue

with regard to the ready and willingness to perform the contract between the

parties in terms of Section 16 (c) of the Act, due to the reason of admission on

the part of the defendants. Therefore, he contended that the facts which were

admitted need not be proved. In this regard he referred Order VIII Rule 4 and 5

C.P.C, by referring the said order he submitted that every allegation of the fact

in the plaint needs to be specifically denied. Further he referred Order 14 Rule

10/24

https://www.mhc.tn.gov.in/judis/ SA.No.130 of of 2017

1 C.P.C and submitted that there is no need for framing the issue on all the facts

admitted, the issue has to be framed only on the disputed facts and that alone

needs to be proved.

16.Further, he contended that by virtue of the recent amendments to the

Specific Relief Act, the scope of Section 10 that the power of the Court to grant

the discretionary relief on the suit for specific performance is restricted.

17.In support of his contention he referred the following citations:

(i) Jaspal Kaur Cheema & Another Versus M/s.Industrial Trade Links

& Others reported in CDJ 2017 SC 747.

(ii) Thirugnanasambandam Versus Kannan & others reported in CDJ

2018 MHC 5909.

18.By referring the above judgments, the learned counsel submitted that

the defendants are required to deny or dispute the statements made in the plaint

categorically in the written statement, as evasive denial would amount to an

admission of theaverments made in the plaint in terms of Order 8 Rule 5 C.P.C 11/24

https://www.mhc.tn.gov.in/judis/ SA.No.130 of of 2017

19.To support his contention that since the sale agreement was not

disputed by the defendants, they are bound to execute the Sale Deed, he has

referred the following judgments:

(i)Shanmugasundaram Versus A.K.Sivajeyam & Others reported in

CDJ 2019 MHC 3123.

(ii)M.Mohansundaram Verus K.Kandasamy & Another reported in

CDJ 2019 MHC 4025.

(iii)K.Santhi Versus N.A.Chinnappan reported in CDJ 2019 MHC

4200.

(iv)Lakshmi Versus Sundari reported in CDJ 2020 MHC 642.

20.Therefore, he submitted that there is no merits in the present appeal.

Both the Trial Court as well as the First Appellate Court have elaborately

considered the facts on merit and they have categorically came to the

conclusion that there was a valid sale agreement and the plaintiff was ready and

willing to pay the balance amount and the same was communicated to the

12/24

https://www.mhc.tn.gov.in/judis/ SA.No.130 of of 2017

defendants by virtue of Ex.B2. Therefore, such a well considered judgment

need not be interfered with and prayed for dismissal of the appeal.

21.In reply, the learned counsel for the appellants submitted that the

defendants have denied all the averment in the plaint specifically at Paragraph

Nos.1 and 2 of the written statement. Therefore, there was clear cut denial on

the part of the defendants with regard to the plaint averments. Even assuming

that there was no denial, the plaintiff cannot take the defendant's weakness in

his favour. The averments in the plaint needs to be proved by the plaintiff by

virtue of the oral and documentary evidences. In this regard, he relied on the

judgment of the Hon'ble Supreme Court in the case of Mehboob-Ur-Rehman

(Dead) Through Lrs. Verus Ahsanul Ghani reported in CDJ 2019 SC 171 and

submitted that mere want of objection for the averments by the defendants in

the written statement is hardly of any effect or consequence. Therefore, he

submitted that in the specific performance suit, it is for the plaintiff to prove his

part of performance of contract by evidence. The essential requirement of

Section 16 (c) of the Act has not been accomplished in the present case. The

said aspect was completely undecided by both the Courts below and no issues

13/24

https://www.mhc.tn.gov.in/judis/ SA.No.130 of of 2017

were framed with regard to the readiness and willingness as required by Section

16(c) of the Act. Hence, he submitted that the judgment and decree passed by

the Courts below is liable to be set aside.

22.Heard the learned counsel for the appellants and the respondent and

perused the materials available on record.

23.The admitted fact in the present case is that there was a sale agreement

dated 01.03.2007 executed by the 1st defendant in favour of the plaintiff. The

suit schedule property was settled by the 1st defendant in favour of his daughter

who is the 2nd defendant. The 2nd defendant was minor at the time of execution

of the sale agreement. The argument was also made that since the 2 nd defendant

was a minor, two year time was fixed for the execution of the sale deed. As per

the sale agreement, the total sale consideration was Rs.47,500/-, the defendant

received a sum of Rs.37,000/- as advance and for the payment of balance

consideration of Rs.10,500/-, time was granted for a period of two years (i.e) on

or before 02.03.2009. Therefore, the plaintiff supposed to pay the balance

consideration within the time limit in which case the defendant is liable to

14/24

https://www.mhc.tn.gov.in/judis/ SA.No.130 of of 2017

execute the sale deed.

24.In a suit for specific performance, as per Section 16(c) of the Specific

Relief Act, the plaintiff has to prove his readiness and willingness to get a

decree in his favour. For better appreciation, Section 16(c) of the Specific

Relief Act is extracted hereunder:

"Clause(c) – Readiness and willingness- An averment of readiness and willingness in the plaint is not a mathematical formula which should only be in specific words. If the averments in the plaint a a whole do clearly indicate the readiness and willingness of the plaintiff to fulfil his part of the obligations under the contract which is subject-matter of the suit, the fact that they are differently worded will not militate against the readiness and willingness of the plaintiff in a suit of specific performance of contract for sale:

It is not necessary that entire amount of consideration should be kept ready by the plaintiff to show his readiness and willingness to perform contract:”

15/24

https://www.mhc.tn.gov.in/judis/ SA.No.130 of of 2017

25.It is well settled that the conduct of the parties, with a view to arrive at

a finding as to whether the plaintiff/respondents was all along throughout the

agreement period, ready and willing to perform the contract as is mandatorily

required under Section 16 (c) of the Specific Relief Act, must be determined

having regard to the entire attending circumstances. A bare averment in the

plaint or the statement made in the examination-in-chief would not suffice. The

conduct of the plaintiff/respondent must be judged having regard to the entirety

of the pleadings as also by the evidences brought on records. Therefore, a

requirement of necessary averment in the plaint that has already performed or

has always been ready and willing to perform the essential terms of the contract

which are to be performed by the plaintiff, essentially needs to be proved

independently by letting evidences, therefore, mere want of objection by the

defendant in the written statement is hardly of any effect or consequence.

The plaintiff has to prove his averment in the plaint through oral and

documentary evidences and he cannot be allowed to take any advantages or the

reasons of non-availability of specific denial in the written statement.

16/24

https://www.mhc.tn.gov.in/judis/ SA.No.130 of of 2017

26.In the present case, the respondent/plaintiff made a submission that

there was an averment in the plaint about the readiness and willingness, since

the appellants/defendants failed to specifically deny the above said averment, it

will amounts to admission of the averments in the plaint by the

appellants/defendants. Whereas, on the perusal of the written statement filed by

the appellants/defendants, in paragraph No. 1 and 2, it appears that they have

denied all the averment in the plaint. Consequently, in the written statement the

appellants/defendants took a stand that the agreement was entered only as the

security for the hand loan received from the respondent/plaintiff, which clearly

amounts to the denial of ready and willingness averred in the plaint. In case, if

the defendants accepted the sale agreement was made with an intention to sell

the property and subsequently denied on the ground that the plaintiff was not

ready and willing, the specific denial would arise. Whereas, in the present case,

the appellants/defendants states that the agreement was entered only for the

purpose of the security for providing loan and the said stand itself amounts to

denial for the averment in Paragraph No.3.

17/24

https://www.mhc.tn.gov.in/judis/ SA.No.130 of of 2017

27.Even assuming that the contention of the plaintiff that there was no

specific denial on the part of the defendants in the written statement with regard

to the averment at paragraph No.3 of the plaint in connection with the readiness

and willingness, the plaintiff has to prove his ready and willingness by oral and

documentary evidences and the same was not proved in the manner known to

law. The plaintiff cannot take advantage on the weakness of the defendants.

Thus, this Court is unable to find any substance in the stand taken by the

plaintiff that the defendant has not made any specific denial in the written

statement. When the plaintiff laid the suit for specific performance, it is the duty

of the plaintiff to prove his ready and willingness in terms of Section 16 (c) of

the Specific Relief act and it is a mandatory requirement to be complied in a suit

for specific performance.

28.The Courts below have not even framed any issue with regard to the

ready and willingness to prove the contract on the part of the plaintiff. In terms

of Section 16(c) of the Specific Relief Act, it is a mandatory requirement. When

the Act mandates to prove certain things, it is the duty of the Court to frame the

issue, and decide the same, without framing the issue the Court cannot decree

18/24

https://www.mhc.tn.gov.in/judis/ SA.No.130 of of 2017

the suit in favour of the plaintiff, in a suit for specific performance of contract.

29.The available facts, oral and documentary evidences are sufficient to

prove the readiness and willingness of the plaintiff in terms of 103 of the Code

of Civil Procedure, thus this Court examined the aspect of ready and

willingness of the plaintiff to pay the balance sale consideration. There is no

iota of evidence which would prove that the plaintiff was ready and willing to

pay the balance consideration over the period of two years as stated in the

agreement. In the present case, the legal notice was issued after four months

from the date of expiry of two years period provided in sale agreement for the

execution of the sale deed. The said legal notice dated 04.07.2009 was marked

as Ex.A2. Apart from the said legal notice, throughout the period of sale

agreement and even after the expiry of the sale agreement and upto the date of

legal notice, there is no evidence which would prove the ready and willingness

on the part of the plaintiff to perform the contract. Though he has merely

averred in the plaint, the said averments were not proved by letting the oral and

documentary evidence. Thus, there is no difficulty for this Court to come to the

conclusion that the plaintiff has failed to prove his readiness and willingness in

19/24

https://www.mhc.tn.gov.in/judis/ SA.No.130 of of 2017

terms of provision of 16(c) of the Specific Relief Act.

30.Further, two years time was granted for the payment of balance

consideration of Rs.10,500/-. When a person was able to pay a sum of

Rs.37,000/- as advance, there is no need for him to take another two years to

pay the balance consideration of Rs.10,500/-, which is also to be noted. No

prudent man will take two years time to execute the sale deed. The reason for

taking two years time was not explained properly and there was no discussion

in this aspect by both the Courts below. Under such circumstances, this Court

is of the view that, the two years time provided in the sale agreement was

granted for the repayment of the hand loan alone but not for the execution of

sale deed. Such presumption is possible under Section 114 of the Indian

Evidence Act, 1872, owing to the existence of the available facts in the present

case.

31.With regard to the specific denial in the written statement, the learned

counsel for the respondent/plaintiff referred various judgment. In all those

judgments, the principle laid down by the Court is acceptable but the principle

20/24

https://www.mhc.tn.gov.in/judis/ SA.No.130 of of 2017

laid down by the Hon'ble Apex Court in the case of Mehboob-Ur-Rehman

(Dead) Through Lrs. Versus Ahsanul Ghani reported in CDJ 2019 SC 171,

will squarely applicable for the present case.

32.The plaintiff cannot take a stand that merely for want of objection in

the written statement which is hardly any effect or consequence, without the

plaintiff prove his case by letting evidences and he cannot be allowed to take

advantages in the defects in the written statement. It is the duty of the plaintiff

to prove the averments in the plaint through his own evidences.

33.The learned counsel for the respondent also produced the case laws

and submitted that, when the execution of the sale agreement was admitted by

both the parties, the plaintiff is entitle to demand for execution of the sale deed.

But the said case laws will not be applicable for the fact of the present case.

34.In view of the above finding, this court is of the view that the plaintiff

is not entitled for the relief of specific performance. Therefore the judgment and

decree of the Courts below is liable to be set aside.

21/24

https://www.mhc.tn.gov.in/judis/ SA.No.130 of of 2017

35.The learned counsel for the appellants/defendants admitted the fact

that a sum of Rs.37,000/- was received by the appellants/defendants from the

plaintiff. Therefore, while rejecting the plaintiff's case for specific performance,

by applying the principle of equity, it would be appropriate to direct the

appellants to pay the advance amount of Rs.37,000/- along with 9% interest

from the date of filing the suit till the date of payment to the plaintiff.

36.Accordingly, the judgment and decree passed by both the Courts

below is set aside. In the result, the Second Appeal is allowed with the

following directions:

(i) The appellants/defendants are directed to return the advance amount

of Rs.37,500/- along with 9% interest from the date of suit till the date of

payment within the period of three months from the date of receipt of the copy

of this judgment.

22/24 https://www.mhc.tn.gov.in/judis/ SA.No.130 of of 2017

(ii) The sale deed executed by the District Munsif, Kallakurichi is set

aside.

37.The connected miscellaneous petition is closed. No costs.

23.03.2021 Index:Yes Internet:Yes Speaking order

rst

To:

1.The Subordinate Judge, Kallakurichi.

2.The Principal District Munsif, Kallakurichi.

23/24 https://www.mhc.tn.gov.in/judis/ SA.No.130 of of 2017

KRISHNAN RAMASAMY,J.

rst

S.A.No.130 of 2017 and C.M.P.Nos.2653 & 9124 of 2017

23.03.2021

24/24

https://www.mhc.tn.gov.in/judis/