B. Ayyalu Chettiar, Kuppammal and Ramakrishnan vs D. Udayakumar

P.R. Shivakuma, J.—The Defendants in the original suit O.S. No. 202 of 2002, on the file of the Additional Subordinate Judge, Dindigul are the Appellants in the second appeal. The Respondent herein had filed the above said suit for the relief of specific performance based on a registered agreement for sale dated 27.03.2000 and for permanent injunction not to alienate the suit properties. It was contended therein that the Appellants herein/Defendants had agreed to sell the suit property to the Respondent herein for a sale consideration of Rs. 2,45,000/- and a sum of Rs. 2,40,000/- was paid to them towards advance and part payment of the sale consideration. In the plaint, the Respondent herein had also contended that the Appellants/Defendants had evaded execution of the sale deed and also demanded a sum of Rs. 1 lakh over and above the agreed amount for executing a sale deed in terms of the agreement for sale. Under the said circumstances as pleaded in the plaint, after issuing a notice calling upon the Appellants/Defendants to execute the sale deed in terms of the agreement for sale after receiving the balance sale consideration of Rs. 5,000/- , 3 which notice was received by the Appellants 2 and 3, but was not received by the first Appellant and no reply was issued by anyone of the Appellants/Defendants, the Respondent herein/Plaintiff approached the court for specific performance by filing the above said suit O.S. No. 202 of 2002.

The Appellants/Defendants contested the suit contending that the suit agreement for sale was not intended to be acted upon as an agreement for sale; that the same was executed as a security for the repayment of an amount borrowed by the Appellants/Defendants from the Respondent/Plaintiff; that the said amount secured was also subsequently repaid by the Appellants/Defendants and that the suit itself was filed with an intention to have a wrongful gain. Based on the above said pleadings, the Appellants/Defendants had prayed for the dismissal of the suit with costs.

The learned trial judge based on the above said pleadings framed the following issues and additional issues:

Issues:

1) Whether the Plaintiff is entitled to the relief of specific performance as prayed for?

2) Whether the Plaintiff is entitled to the relief of permanent injunction?

3) Whether the suit agreement for sale is a deed evidencing loan transaction?

4) Whether a sum of Rs. 40,000/- alone is due to be paid by the Defendants to the Plaintiff?

5) To what other reliefs, the Plaintiff is entitled to?

Additional Issues:

1) Whether the Plaintiff is entitled to the alternative relief sought for?

In the trial followed the framing of issues, totally three witnesses were examined as P.W.s 1 to 3 and six documents were marked as Ex.A1 to Ex.A6 on the side of the Plaintiff. Four witnesses were examined as D. Ws.1 to 4 and five documents were marked as Ex.B1 to Ex.B5 on the side of the Defendants. The report of the handwriting expert has been marked as Ex.X1.

The learned Trial Judge, on appreciation of evidence, came to the conclusion that the transaction evidenced by Ex.A1-agreement for sale was a real transaction of agreement for sale; that the Respondent/Plaintiff had not only made necessary plea regarding his readiness and willingness but also proved the same; that the Appellants/Defendants have not substantiated their case that Ex.A1 document was executed only as a security for repayment of loan; that the other documents produced by the Defendants, namely Ex.B2 to Ex.B5 purporting to be the receipts issued by the Plaintiff for the repayment of a sum of Rs. 2 lakhs were not genuine and that hence, the Respondent/Plaintiff was entitled to the relief of specific performance of contract. Since the main relief of specific performance was granted, the alternative relief of refund of the advance amount was declined. The relief of permanent injunction was also declined as it would be of no use since the relief of specific performance was granted.

Aggrieved by and challenging the decree of the trial court, the Appellants/Defendants preferred an appeal on the file of the District Court, Dindigul as A.S. No. 29 of 2009. The same came to be made over to the file of the Additional District Judge(FTC), Dindigul for disposal according to law. The learned first appellate Judge, after hearing both sides and upon reappraising the evidence available on record, concurred with the trial court in all respects, confirmed the decree passed by the trial court and dismissed the appeal with costs.

The judgment of the lower appellate court was passed on 20.03.2010. As against the decree of the lower appellate court confirming the decree passed by the trial court, the present second appeal has been filed.

The submissions made by Mr. M.V. Venkataseshan, learned Counsel for the Appellants were heard. The copies of the judgments of the courts below and other materials produced in the form of typed-set of papers were also perused.

An appeal from the decree of the appellate court subordinate to the High Court shall lie to the High Court u/s 100 of CPC only on a substantial question of law. However erroneous, a finding of fact may be, the same cannot be the basis on which the High Court can interfere with the decree of the lower appellate court, unless such a finding of fact is shown to be perverse, in which case, the above question of fact shall get elevated to the level of a substantial question of law. In this case, upon considering the submissions made by the learned Counsel for the Appellants and after perusing the records, this Court is of the considered view that no substantial question of law is proved to have arisen in the second appeal so as to warrant any interference with the concurrent judgments of the courts below.

The suit itself was filed for the relief of specific performance as the main relief. Since the main relief has been granted, the alternative relief of refund of advance amount did not arise. So far as the supplementary relief of permanent injunction is concerned, the Respondent herein/Plaintiff does not seem to be aggrieved, because as rightly pointed out by the trial court, such a decree would be of no use as the larger relief of specific performance was granted. The case of the Plaintiff is crystal clear. According to the Respondent/Plaintiff, the Appellants/Defendants agreed to sell the suit property for a sum of Rs. 2,45,000/- as sale consideration, received Rs. 2,40,000/- as advance and part payment of the consideration and executed the registered sale agreement, marked as Ex.A1 on 27.03.2000. He has also pleaded that he was not only ready and willing to perform his part of the contract and the Appellants/Defendants had been evading executing the sale deed in accordance with the agreement for sale. It is his clear contention that the same drove the Respondent/Plaintiff to issue a pre-suit notice for which no reply was received and hence he had to file the suit for the above said reliefs.

The Plaintiff, besides examining himself as P.W.1, has also examined one of the attestors of Ex.A1 as P.W.2 and also a third witness as P.W.3. All of them have deposed clearly in support of the Plaintiff''s case without there being any material contradiction. On the other hand, the Defendants have chosen to examine the third Defendant as D.W.1 and three more witnesses as D. Ws. 2 to 4. Of course, it is true that D.W.2 happened to be the other attestor of EX.A1. But, the courts below, considering the demeanor of the said witness and also making a comparison of the testimony of the said witness with D.W.1, came to the conclusion that he was not speaking the truth and he was not a reliable witness. In order to prove that the suit sale agreement was intended to be a security for repayment of a loan amount, it was contended by the Appellants/Defendants that they paid Rs. 2 lakhs and produced Ex.B2 to Ex.B5 purporting to be the receipts issued by the Plaintiff in favour of the third Defendant. The genuineness of those receipts was stoutly denied by the Respondent/Plaintiff. Therefore, in order to prove the same, D. Ws.3 and 4, the attestors of those receipts, were examined on the side of the Appellants/Defendants. Despite the stout denial of the Respondent/Plaintiff that the signatures found in Ex.B2 to Ex.B5 were not that of the Respondent/Plaintiff, the Appellants/Defendants had not chosen to move any application for referring the said documents for the opinion of a hand-writing expert. On the other hand, it was the Respondent herein/Plaintiff, who moved the petition for such a reference being made to the hand-writing expert. The hand-writing expert has given his opinion under Ex.X1, opining that the signatures found in Ex.B2 to Ex.B5 differ from the admitted signatures of the Respondent/Plaintiff.

The execution of Ex.A1-agreement has been admitted. The issuance of notice calling upon the Appellants/Defendants to execute the sale deed in accordance with Ex.A1-agreement has also been admitted. A copy of the notice, dated 01.03.2002 has been marked as Ex.A2. The Appellants 1 and 2/Defendants 1 and 2 have received the notice and the postal acknowledgements thereof are Exs.A4 and A5. The third Appellant/third Defendant did not receive the notice and the returned cover has been produced as Ex.A3. In order to show that the property had been mortgaged to one Selvam and the mortgage was cleared and the discharge receipt was handed over to the Plaintiff, the discharged mortgage deed has been produced and marked as Ex.A6. Considering the said oral and documentary evidence and especially, the fact that the Appellants/Defendants have not chosen to issue at least a reply putting forward their case that the suit agreement was not intended to be a real agreement for sale and it was intended to be a security for repayment of loan, the trial court came to the correct conclusion that the case of the Appellants/Defendants could not be believed.

The learned first appellate judge, also on reappreciation of evidence, came to the very same conclusion and concurred with the view taken by the trial court. The said concurrent findings of facts cannot be said to be either defective or infirm, much less perverse. Therefore, no interference can be made by this Court in exercise of its power of appeal against the first appellate court''s decree.

The only point that is sought to be urged by the learned Counsel for the Appellants is that the transaction could not be a genuine one, since out of Rs. 2,45,000/- , Rs. 2,40,000/- had been paid on the date of agreement itself as per the recitals found in Ex.A1 and for the payment of a meager sum of Rs. 5,000/- as balance consideration and for completing the sale transaction, a longer period was prescribed as the time for completion of the transaction. Pointing out the said aspect, the learned Counsel for the Appellants contended that the same would show that it was only intended to be a security for the repayment of the loan. The fact that two years period has been agreed upon as the time for completion of the transaction alone will not be enough to arrive at a conclusion that the transaction was intended to be a security for the repayment of loan. There is an averment in the plaint itself that the Respondent/Plaintiff was a business man doing business at Pudukkottai and he was visiting the place wherein the property is situated only once in fifteen days. Under such circumstances, there is no wonder in a purchaser being cautious to see that a longer period is prescribed for the completion of the transaction so that even the plea that time stipulated in the agreement is agreed to be the essence of the contract can also be avoided or can also be properly met with.

The further fact that the Appellants/Defendants, before entering into a sale agreement with the Respondent/Plaintiff had executed a mortgage deed within nine months prior to the date of Ex.A1-agreement and the same was subsequently redeemed and handed over to the Respondent/Plaintiff will also go against the Appellants/Defendants will also show that the transaction under Ex.A1-agreement for sale was real transaction of sale agreement. The courts below, on appreciation of evidence, have arrived at a concurrent finding that the Defendants plea regarding the nature of transaction cannot be sustained.

The learned Counsel for the Appellants made an attempt to show 12 that there was no proof of readiness and willingness on the part of the Respondent/Plaintiff from the date of agreement till the date of filing of the suit and that the long delay in filing the suit from the date of agreement till the date of filing of the suit will show his lack of readiness and willingness and on that ground also the discretion of grant of relief of specific performance ought not to have been exercised in favour of the Respondent/Plaintiff. This Court is not in a position to accept the contention of the learned Counsel for the Appellants/Defendants. The main contention of the learned Counsel for the Appellants/Defendants happened to be that the transaction was not intended to be a real sale transaction. Their attempt to show the transaction to be a loan transaction and that Rs. 2 lakhs out of Rs. 2,40,000/- was repaid ended in failure. Necessary pleading regarding readiness and willingness has been made and sufficient evidence has been adduced by the Respondent/Plaintiff to satisfy the condition stipulated in Section 16(c) of the Specific Relief Act. As against such a clear plea and evidence, there is no contra evidence, capable of being accepted, has been adduced on the side of the Appellants/Defendants.

Moreover, the very fact that the Defendants, after receiving the notice calling upon them to execute the sale deed in terms of the agreement had chosen to keep quiet and avoid giving any reply and that they have chosen to take such an ingenious evidence only in the suit will be enough to hold that the Defendants have not properly denied the readiness and willingness on the part of the Respondent/Plaintiff. The courts below have rightly disbelieved the defense theory of the Appellants/Defendants and held that the Respondent/Plaintiff was entitled to the relief of specific performance of contract as prayed for. As pointed out supra, this Court does not find any defect or infirmity, much less perversity in the finding of the courts below warranting interference. There is no merit in the appeal and the second appeal does not even merit admission.

Accordingly, the Second Appeal is dismissed at the stage of admission itself. Consequently, connected Civil Miscellaneous Petition is dismissed. No costs.