IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23-02-2010
Coram
THE HONOURABLE MRS. JUSTICE R. BANUMATHI
and
THE HONOURABLE MR. JUSTICE A. ARUMUGHASWAMY
A.S. No. 179 of 2007
Selvaraj .. Appellant
Versus
1. Anand Babu
2. Citi Babu
3. Umesh Babu
4. Shoba
5. Susheela .. Respondents
Appeal filed under Section 96 of CPC against the Judgment and Decree made in O.S. No. 137 of 2005 dated 25.06.2006 on the file of the Principal District Judge, Villupuram.
For Appellant : Mr. T.R. Rajagopalan, Sr. Counsel
for Mr. T.R. Rajaaman
For Respondents : Mrs. Hema Sampath, Sr. Counsel
for Ms. Meenal for RR1 to 3 & 5
R4 given up
JUDGMENT
A. ARUMUGHASWAMY, J
The unsuccessful Plaintiff in O.S. No. 137 of 2004 is the appellant in this appeal. The suit in O.S. No. 137 of 2004 was filed by the Plaintiff for specific performane of the agreement of sale dated 06.04.1997 said to have been executed between himself and the father of the defendants/respondents herein namely Thulasiraman Naidu.
2. For the sake of convenience, the parties shall be referred to as they were arrayed before the trial court, as Plaintiff and Defendants.
3. The facts leadiing to the filing of the suit was that the plaintiff and the father of the respondents namely Thulasiraman Naidu have entered into an agreement of sale dated 06.04.1997, Ex.A1, thereby the said Thulasiraman Naidu agreed to sell the suit property to the plaintiff for a total sale consideration of Rs.8,90,000/-. On execution of the sale agreement dated 06.04.1997, the said Thulasiraman Naidu also received a sum of Rs.7,50,000/-. According to the plaintiff, the period for completion of sale was one year. But even after expiry of the period, the said Thulasiraman Naidu has not come forward to execute the sale deed in his favour. In the meantime, on 28.05.1998, the said Thulasiraman Naidu died leaving behind the defendants/respondents herein as his legal heirs. Therefore, a notice dated 29.08.1998, Ex.A2 was issued by the plaintiff to the defendants calling upon them execute the sale deed in his favour by receiving the balance sale consideration of Rs.1,40,000/-. On receipt of the notice, a reply notice dated 07.09.1998 was issued by the respondents by specifically claiming that the sale agreement dated 06.04.1997, Ex.A1 said to have been executed by their father is not true and it is a ranked forgery. In view of the refusal by the respondents to execute the sale deed, the plaintiff has filed the suit.
4. Resisting the suit, the defendants filed written statement denying execution of any agreement of sale. According to defendants, Thulasiraman Naidu had money transactions with the plaintiff and he used to borrow money from the plaintiff and as security for loan amount advanced by the plaintiff, the plaintiff has taken signature of Thulasiraman Naidu and other Defendants only for the sake of security. The defendants further averred that the plaintiff has in his custody some more stamp papers and the suit agreement has been fabricated using such signed blank stamp papers. The defendants have also averred that the property would fetch more than Rs.50,00,000/- and prayed for dismissal of suit.
5. Before the trial below, the plaintiff examined himself as PW1 and two other witnesses as PWs 2 and 3. On behalf of the Plaintiff, Exs. A1 to A3 were marked. On the side of the defendants, the first defendant examined himself as DW1 along with two other witnesses as Dws 2 and 3. The defendants have marked Exs. B1 to B4. Upon analysis of evidence, the trial court held that the plaintiff has not proved Ex.A1 agreement of sale and arrived at the conclusion that the plaintiff is not entitled to specific performance. Insofar as alternative prayer for refund of advance amount, the learned trial Judge held that the plaintiff has not produced any document to show that he was in possession of Rs.7,50,000/- on the date of sale agreement and on those findings, learned trial Judge negatived the alternative prayer for refund of advance amount.
6. We have heard the counsel for both sides. The points for consideration in this appeal are
(i) Whether Ex.A1, agreement of sale said to have been executed between the plaintiff and father of the defendants namely Thulasiraman Naidu can be relied upon to grant a equitable decree for specific performance in favour of the Plaintiff?
ii) Whether the Plaintiff is entitled for the alternative prayer for refund of the advance amount, as prayed for?
7. The learned Senior counsel appearing for the plaintiff/appellant has mainly made three-fold argument. The first and foremost submission of the learned Senior counsel for the plaintiff/appellant is that the defendants have taken inconsistent stand in the reply notice, Ex.A3 and in the written statement as regards the execution of Ex.A1, Sale Agreement and that alone is sufficient to decree the suit. Secondly, the defendants have admitted the signature of their father Thulasiraman Naidu in Ex.A1, agreement of sale and therefore, the appeal has to be allowed. The third contention of the learned Senior counsel for the plaintiff/appellant is that if this Court is not inclined to grant the relief of specific performance, the alternative relief for refund of advance amount may be considered.
8. The learned Senior counsel appearing for the defendants/respondents would contend that except the suggestion put by the counsel for the plaintiff before the court below and the consequent admission of DW1 regarding the signature of his father Thulasiraman Naidu in Ex.A1, sale agreement dated 06.04.1997, nothing has been established by the plaintiff and the plaintiff wants a decree to be passed on the mere suggestion of the counsel for the defendants regarding the signature contained in Ex.A1 irrespective of so many laches on the part of the plaintiff.
9. The plaintiff in his evidence has stated that the deceased Thulasiraman Naidu has entered into an agreement of sale, Ex.A1 with him thereby he specifically agreed to sell the suit property for a sale consideration of Rs.8,90,000/- and on execution of Ex.A1, the said Thulasiraman Naidu has received Rs.7,50,000/- as sale advance from him. According to the plaintiff, he was always ready and willing to perform his part of the contract to get the sale deed executed in his favour by tendering the balance sale consideration of Rs.1,40,000/-.
10. The first defendant in his evidence as DW1 has stated that other defendants are his brother, sister and the fifth defendant is the widow of Late. Thulasiraman Naidu. It is also admitted that his father Thulasiraman Naidu died on 28.05.1998. Further it was stated that he is a native of Tindivanam and the suit property is their ancestral property. Further he would say that his mother, the fifth defendant, is running a School at Bangalore and the Plaintiff is a money lender.
11. In the backdrop of the evidence let in by PW1 and DW1, it is to be seen whether the defendants have raised inconsistent defence and on that ground the suit has to be decreed or not. According to the plaintiff, he has issued Ex.A2, legal notice to the defendants for which a reply was sent by the defendants, Ex.A3 specifically denying the execution of agreement of sale and claimed it as a ranked forgery. Therefore, according to the plaintiff, the plea of forgery was projected by the defendants only to escape from their liability to execute the sale deed. PW1 was also cross-examined on this aspect.
12. The Plaintiff, who was examined as PW1, in his cross-examination by the defendant's counsel has deposed as follows::-
VERNACULAR (TAMIL) PORTION DELETED
13. From the above deposition of PW1, it is clear that except the aforesaid suggestion, the plaintiff could not prove his case. The vehement contention of the defendant is except the above suggestion, the plaintiff has miserably failed to prove his case. Further, the Plaintiff has also taken inconsistent stand through out the case. The vehement contention of the defendants is Ex.A1, sale agreement is not reliable and it has not come into existence as contended by the plaintiff. The defendants relied on three circumstances to disprove the recitals found in Ex.A1. According to the defendants, Ex.A1, sale agreement was dated 6th April 1997. As per Ex.A1, the sale consideration agreement upon was Rs.8,90,000/- and the advance amount said to have been paid by the plaintiff was Rs.7,50,000/- and the balance sale consideration was Rs.1,40,000/-. The time for performance of the contract mentionex in Ex.A1 was one year. The father of the defendants namely Thulasiraman Naidu is a signatory to Ex.A1. The said Thulasiraman Naidu died on 28.05.1998. Thereafter, the notice, Ex.A2 dated 29.08.1997 was issued by the plaintiff for which the reply notice, Ex.A3 dated 07.09.1998 was issued bythe defendants. In that reply notice, of course, the defendants have stated that Ex.A1 is a ranked forgery. In the reply notice, it was specifically stated that "My clients state that the sale agreement dated 06.04.1997 alleged to have been executed by and between your client and Thulasiraman Naidu for himself and on behalf of my client No.3, a minor then and my clients 1 and 2 must be a ranked forgery one."
14. According to plaintiff, he has parted away Rs.7,50,000/- to the father of the defendants at the time of execution of Ex.A1. In Ex.A1, no reasons have been mentioned for specification of time of one year for completion of sale. Even in his evidence, the plaintiff has not stated as to why one year time was fixed for completion of sale. Further, during cross-examination of PW1, he has admitted that he has not measured the property or obtained Encumbrance Certificate from registration department to verify the encumbrance over the suit property. The Plaintiff pleaded ignorance when a suggestion was put to him as to whether the copy of the agreement of sale Ex.A1 was furnished to the deceased Thulasiraman Naidu. This creates suspicion as to whether really Ex.A1 was executed between the parties, as pleaded by the Plaintiff.
15. Yet another circumstance which led to suspicion is that Ex.A1, according to the plaintiff, was prepared by the advocate, whereas, during his cross-examination, he has admitted that it was prepared in stamp paper having denomination of Rs.200/-. From this evidence, it is clear that if Ex.A1 was really prepared by the advocate, it would not have been typed under stamp paper for Rs.200/-. Further, the plaintiff in his cross-examination has deposed as under:-
VERNACULAR (TAMIL) PORTION DELETED
16. It is evident from the deposition of PW1 that it is not natural and trustworthy. It was contended by the learned senior counsel for the defendants/respondents that the evidence of PWs 2 and 3 were not reliable and their evidence has to be discarded from consideration. PW2 in his evidence has admitted that he is doing money lending business. During his cross-examination, he admitted that at the time of preparation of document, Ex.A1, he was not present. To a suggestion put to him, he has stated that the plaintiff is not a money lender. Further he has stated that he is not aware of the sale transaction between the plaintiff and the father of the defendants. Therefore, we hold that the evidence of PW2 no way helps the plaintiff to sustain his claim and he can be ranked as a chance witness. Moreover, the plaintiff himself has admitted that at the time of execution of Ex.A1, PW1 was not present.
17. To prove the execution of Ex.A1, the plaintiff relied on the evidence of PW3. The PW3 has deviated from the evidence of PW2 and stated that the agreement, Ex.A1 was prepared at the residence of the plaintiff. He further deposed that he was informed that it was prepared by one Sankaran, Advocate. He further deposed that Sankaran, Advocate has prepared a draft and thereafter it was typed. Further, in Ex.A1, Sankaran advocate himself has signed, but he has not seen the said Sankaran signing the Ex.A1. From the evidence of PW3, who gave a different version regarding the execution of Ex.A1, we hold that the genesis of Ex.A1 creates suspicion through out.
18. Thulasiraman Naidu was working as Veterinary Doctor. The defendants are running a Nursery School, Higher Secondary School and Pre-University College at Bangalore. In his evidence, DW1 has stated that for running the institution, they received some amount from PW1 plaintiff. The oral evidence of PW1 that they had money transactions with the defendants was strengthened by Exs. B1 toB4, discharge promissory notes. Further, the defendants have also put a suggestion to the plaintiff that whether the typing in Page No.2 of Ex.A1 has been made so as to suit the signature already made therein. On a perusal of Ex.A1, agreement of sale, we find that the defendant is justified in making such a suggestion. Therefore, we are of the view that the genesis of Ex.A1 is not as spoken to by PW1 and it creates a doubt in the minds of this Court. Moreover, the plaintiff has not discharged his burden to prove the execution of Ex.A1, sale agreement inasmuch as the defendant has specifically stated in the reply notice, Ex.A3 that the agreement of sale, Ex.A1 is a ranked forgery. Therefore, the burden of proving the execution of Ex.A1, sale agreement is fully cast upon the plaintiff, which in our considered view was not satisfactorily discharged by the plaintiff. The findings of the trial court that the plaintiff has not proved the genuineness of Ex.A1, sale deed, is based upon evidence and we do not find any reason to take a different view.
19. The learned senior counsel for the defendants contended that the relief of specific performance is an equitable relief and it is left to the discretion of the Court to grant such a remedy and it cannot be granted automatically. In this context, the learned Senior counsel brought to the notice of this Court the decision reported in (Parakunnan Veetil Joseph's son Mathew vs. Nedumbara Karuvila's Son and others) AIR 1987 Supreme Court 2328 wherein it was held that "Section 20 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstance of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff."
20. It is clear from the aforesaid decision that as per Section 20 of the Specific Relief Act, the relief of specific performance is a discretionary relief left to the Court. In this case, inasmuch the plaintiff failed to discharge his burden to prove the execution of agreement of sale, Ex.A1, in our view, Ex.A1 cannot be accepted or relied upon to base a conclusion and it has to be discarded. We are of the view that the learned trial Judge rightly declined to grant the relief of specific performance.
21. The learned senior counsel for the plaintiff contended that if the decree for specific performance cannot be ordered, atleast the Court can grant the alternative prayer for refund of advance amount.
22. In view of our aforesaid conclusion that Ex.A1 is not reliable and its execution has not been proved by the plaintiff, we are not inclined to grant the alternative prayer sought for by the plaintiff. Merely because the first defendant has admitted the signature of his father Thulasiraman Naidu in Ex.A1, that by itself will not be sufficient to rely upon the agreement of Sale, Ex.A1 and one cannot come to the conclusion that the execution of Ex.A1 is admitted by the defendants. The defendants have produced Ex.B1 to B4, discharge pronotes said to have been executed in favour of the plaintiff. Mere production of those discharge pronotes will not be sufficient to hold that the defendants have executed the pronotes in favour of the plaintiff and on that basis, this Court cannot come to the conclusion that the plaintiff advanced money of Rs.7,50,000/- to Thulasiraman Naidu, father of defendants. Likewise, the third defendant has not supported the case of the other defendants will not be a ground in favour of the plaintiff to decee the suit. As pointed out by the learned trial Judge, the plaintiff has not produced any documents to show that he was in possession of Rs.7,50,000/- on the date of sale agreement nor he has produced any evidence to show the mode of payment of such huge amount of Rs.7,50,000/-. Therefore, we hold that the plaintiff failed to prove the execution of Ex.A1 and further, he has miserably failed to prove that on the date of execution of Ex.A1, he was having sufficient means of Rs.7,50,000/- which was said to have been paid to the father of the defendants Thulasiraman Naidu.
23. On consideration of all these factors, we hold that the plaintiff is not entitled to the discretionary relief of specific performance and resultantly, we see no grounds to interfere with the decree and judgment passed by the Court below. Consequently, we answer both the points against the plaintiff.
24. In the result, the appeal fails and it is dismissed. In the facts and circumstance of the case, there shall be no order as to costs.
rsh
To
The Principal District Judge
Villupuram
No comments:
Post a Comment