Lakhmiammal and another vs S. Sengamalai

Govardhan, J.—Defendants are the appellants herein. The averments in the plaint are briefly as follows: - The suit house belongs to the first

defendant. The second defendant had transaction with the plaintiff and a sum of Rs. 35,000/- was due from the 2nd defendant to the plaintiff.

Defendants 1 and 2 agreed to sell the suit house to the plaintiff for a sum of Rs. 47,000/- and executed an agreement for the same on 4.10.1980.

Out of the sale consideration, the sum of Rs. 35,000/- which was already due from the second defendant was agreed to be adjusted. A sum of Rs.

3,500/- was paid on the date of agreement as advance and a sum of Rs. 8,500/- was to be paid at the time of registration of the document. Time

fixed for completion of the sale deed is by one year. The defendants have not executed the sale deed as agreed in spite of the notice issued by the

plaintiff. But they have sent a reply containing false allegations. Hence the suit. In the written statement it is stated as follows:- The second

defendant owed a sum of Rs. 47,886/- to the plaintiff while acting as agent of the plaintiff. He repaid Rs. 17,000/- and there was a balance of Rs.

20,853.84 due from the second defendant to the plaintiff, after adjusting commission, lorry charges, etc. The allegation that a sum of Rs. 35,000/-

was due from the second defendant to the plaintiff, that Rs. 3,500/- was paid by the plaintiff as advance are not true. Out of compulsion and

coercion made by the plaintiff, the defendants 1 and 2 have executed a security agreement in respect of the house towards the amount due and

payable by the second defendant. The defendants have not entered into an agreement of sale. The property is worth more than Rs. 1,25,000/-.

The plaintiff is therefore not entitled to the relief of specific performance.

On the above pleadings, the trial court accepted that the defendants have entered into an agreement of sale with the plaintiff and the plaintiff was

ready and willing to perform his part of the contract, but not the defendants and, therefore, granted a decree for specific performance in favour of

the plaintiff, fixing a time limit. of two months for the first defendant to execute the sale deed. Aggrieved over the same, the defendants have come

forward with this appeal.

The plaintiff has filed the suit for specific performance of the agreement dated 4.10.1980 in which the defendants are said to have agreed to

execute the sale deed in favour of the plaintiff in respect of the suit property, for a sum of Rs. 47,000/-. The plaintiff''s further case is that out of the

sale consideration of Rs. 47,000/-, Rs. 35,000/- was adjusted towards the amount already due to him from the second defendant who was having

business transaction with him. The second defendant would contend that there was a balance due to the plaintiff from him but he has paid Rs.

17,000/- and there was a balance of Rs. 20,853.84/- alone remained to be paid and the version of the plaintiff that Rs. 35,000/- was due is not

correct. P.W.1 in cross- examination has stated that he is having ""Thari"" in Namakkal and he had transaction with the second defendant regarding

the same and he is having accounts for the same. It is specifically admitted by him that there are accounts maintained by him which would show that

a sum of Rs. 35,000/- was due by the second defendant to him. The payment of Rs. 17,000/- by the second defendant to him is not disputed by

the plaintiff. But he would contend that originally, a sum of Rs. 52,000/- was due from the second defendant to the plaintiff and after the payment

of Rs. 17,000/- by the second defendant, a sum of Rs. 35,000/- has become due. It is thus seen that both the plaintiff and the second defendant

are not agreeable with regard to the actual amount payable by the second defendant to the plaintiff. The plaintiff having come to court with the

version that a sum of Rs. 35,000/- is due to him from the second defendant, he has to prove the same by the best evidence available with him. In

the decision reported in Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and Others, . It has been held that even if the burden of proof does not

lie on a party the court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts in

issue. The Apex Court further held that it is not a sound practice for those desiring to rely upon a certain state of affairs to withhold from the court

the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus

of proof. Since the plaintiff who has come forward with this case that Rs. 35,000/-is due from the second defendant and since it is disputed by the

second defendant, the plaintiff ought to have filed the account books which are said to be in his possession in order to establish that a sum of Rs.

35,000/- is really due from the second defendant to him. The plaintiff having failed to do so in view of the decision referred above, we have to

draw an adverse inference that the claim of the plaintiff that a sum of Rs. 35,000 is due from the second defendant to him cannot be true.

According to the plaintiff, this amount of Rs. 35,000/- was adjusted towards the sale consideration in the agreement executed by the

defendants. The defendants 1 and 2 have contended in their written statement that by coercion and undue influence and threat the plaintiff has got

the agreement signed by them. D.W.1 in his evidence has stated that himself and his wife were invited to the house of the scribe by the plaintiff and

accordingly they went there and they were compelled and threatened to sign the agreement, for which they were not agreeable. He has also stated

that when he offered to execute a promissory note the plaintiff did not agree for the same, and insisted upon the defendants to sign in the suit

agreement which has already been kept executed. The version of the defendants that they have signed the agreement under threat and coercion is

not acceptable since the defendants have not taken any effort to cancel the same or given any police complaint against the plaintiff for obtaining a

document under threat and coercion. Therefore, I am of opinion that the version of the defendant that under threat and coercion they have

executed the document under, Exhibit A-1 cannot be accepted. Whether the agreement is enforceable even if it is one executed voluntarily by the

defendants is the only question that has to be considered by us. We have already seen that out of Rs. 47,000/- a sum of Rs.35,000/- was adjusted

towards previous debt. It is stated in the document that a sum of Rs. 3,500/- was paid as advance on the date of the execution of the document.

The defendants deny that they have received the sum of Rs. 3,500/- as advance in cash. P.W.1 in cross-examination has admitted that the

defendants have not received the said amount from him in cash, but it is the amount payable by the defendants towards the purchase of javuli. This

amount of Rs. 3,500/- also is only the amount which has been adjusted between the plaintiff and the defendants as seen from the evidence of

P.W.I. But the document reads, as if the consideration was paid in cash. That the plaintiff has not come to Court telling the truth is evidenced from

the evidence of P.W.1 himself. The relief sought for by the plaintiff is specific performance for agreement of sale which is an equitable remedy. In

order to get the same the plaintiff should come to Court with cleans hands. The relief being an equitable relief, it is in the discretion of the Court in

the light of the facts and circumstances of the case either to refuse or grant the relief of specific performance. At the same time, it should not be lost

sight of that the discretion to be exercised by the Court should not be arbitrary but based on judicial principles. In the present case we have

already seen that the plaintiff has not let in best evidence available with him to show that the second defendant owed a sum of Rs. 35,000/-. The

very admission of P.W.1 during cross-examination has disclosed that even the amount of Rs. 3,500/- said to have been paid in cash to the

defendants in the agreement was not actually paid in cash, but was adjusted towards javuli transaction. The plaintiff thus seems to have come

forward with this suit with false allegations in the plaint. The plaintiff has not come to court with clean hands. Therefore, I am of opinion that the

plaintiff is not entitled to the equitable relief of specific performance.

The plaintiff''s suit for specific performance is liable to be dismissed on one other ground also, namely, the adjustment of Rs. 35,000/- towards

the dues. In the plaint itself, it is stated by the plaintiff that out of a total consideration of Rs. 47,000/-, a sum of Rs. 35,000/- was adjusted towards

the dues payable by the second defendant in connection with the business transaction. In the decision reported in S. Rangaraju Naidu Vs. S.

Thiruvarakkarasu, it-has been held that in a case where an agreement of sale has been executed towards the amount due, the person who has

executed the agreement in his favour is not entitled to the specific performance of the agreement. The facts of the above referred case is identical to

the facts of the case on hand, and the Supreme Court held in that decision that the Courts are not bound to grant relief of specific performance in

cases where the agreement to sell the property has been made out only to recover the earlier dues. That the second defendant was not able to pay

the amount due to the plaintiff in the transaction he had with the plaintiff, is admitted by the second defendant. That the property for which the

agreement had been entered is a property of the first defendant, who is the wife of the second defendant. Time limit for the completion of the sale

deed has been fixed to be one year to enable to get vacant possession by evicting the tenant and also by finding out an alternative accommodation

for the defendants to reside. When all these facts are considered, we have to come to the conclusion that the plaintiff is not entitled to the relief of

specific performance and at the most he is entitled for the amount due to him from the defendants. Both the appellants have agreed to sell the

property to the respondent. The predominant object being the recovery of the dues by the plaintiff from the second defendant, the Court is not

bound to grant the relief of specific performance.

In that view I am of opinion that the judgment and decree of the trial court cannot be upheld by this Court and it has to be set aside.

Accordingly, the suit is liable to be dismissed. In the result, the appeal is allowed setting aside the judgment and decree of the trial court and

dismissing the suit with costs throughout.