N. Mani vs R.S. Mahadevan

P.R. Shivakumar, J.—The Plaintiff in the original suit O.S. No. 240/2007 on the file of the learned District Munsif-cum-Judicial Magistrate, Kodaikanal is the Appellant in the second appeal. The Respondent herein was the Defendant in the said suit.

The facts leading to the filing of the second appeal are as follows: An agreement was entered into between the Appellant/Plaintiff and Respondent/Defendant on 21.07.2004 under Ex.A1. Under the said agreement the Respondent/Defendant agreed for selling the Silver Oak trees standing in his land having an extent of 11.00 acres comprised in Survey No. 1264 of Oothapallam, Pannaikadu village, Kodaikanal Taluk, for a sum of Rs. 7,70,001/-. On the date of agreement itself a sum of Rs. 1,00,001/- was paid by the Appellant herein/Plaintiff to the Respondent herein/Defendant. In the said agreement conditions were imposed to the effect that the purchaser, namely the Appellant/Plaintiff, should apply for and get the necessary cutting orders within six months from the date of agreement and thereafter should cut and remove the silver oak trees within six months so far as practicable. Since the silver oak trees sought to be sold were standing in the coffee estate of the Respondent/Defendant, certain conditions as to how the trees were to be cut without causing damage to the coffee plantation were also incorporated. Subsequent to the agreement on 15.09.2004 a sum of Rs. 50,000/- and on 03.10.2004 a further sum of Rs. 50,000/- were paid by the Appellant herein/Plaintiff and necessary endorsements were obtained in Ex.A1-agreement for the said payment. Thus, totally a sum of Rs. 2,00,001/- was paid as advance and part payment of the sale consideration of the silver oak trees.

According to the Appellant herein/Plaintiff he had some difficulties in getting the cutting orders from the government, though the Respondent/Defendant had signed all the documents to enable the Appellant/Plaintiff to apply for such cutting order and that when the Appellant/Plaintiff was about to get the cutting orders, the Respondent/Defendant unilaterally cancelled the agreement by issuing Ex.A2-letter on 24.08.2007 and enclosing a demand draft for a sum of Rs. 2,00,001/- purporting to repay the advance amount received by the Respondent/Plaintiff. Contending that the unilateral cancellation of the agreement was invalid and not binding upon the Appellant/Plaintiff, the Appellant/Plaintiff chose to file the suit not for the relief of specific performance but for a declaration that the cancellation of the agreement was invalid and for a consequential injunction not to prevent the Appellant/Plaintiff from cutting and removing the silver oak trees in terms of Ex.A1-Agreement.

The suit was resisted by the Respondent/Defendant that the agreement for selling the silver oak trees was entered into with the intention of maintaining uniform shadow and light for the protection of coffee plantation; that the same was the reason why a clause was incorporated in the agreement that the cutting order should be obtained within six months and that thereafter, the cutting and removing the tree should be completed within another six months. It is the further contention of the Respondent/Defendant that the Appellant/Plaintiff, being a timber merchant, made the Respondent/Defendant to believe that he could get the cutting order within a period of six months and that is why such a clause was incorporated; that the Appellant/Plaintiff after the agreement did not take necessary steps to get the cutting order in time and simply allowed a time of three years to lapse in the hope that the trees would have further grown up and fetch more value; that since the trees were not cut and removed in time, the coffee plantations were also affected; that hence Respondent/Plaintiff had to take his own steps to get the cutting order for himself and that in those circumstances alone the agreement was cancelled and subsequently the Respondent/Defendant got the cutting order. It is the further contention of the Respondent/Defendant that if at all there was bonafide on the part of the Appellant/Plaintiff he ought to have filed a suit for specific performance paying necessary court fee and the fact that he has chosen to file a suit for declaration that the cancellation of the agreement is invalid and for an injunction not to prevent the Appellant/Plaintiff from cutting and removing the silver oak trees would show the malafide on the part of the Appellant/Plaintiff and that the suit filed for mere declaration and injunction without seeking specific performance of the contract should be dismissed as not maintainable.

Based on the pleadings, the trial court framed four issues, which are as follows:

1) Is it correct to state that it was the Defendant who got the cutting order making his own efforts?

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

3) Whether the Plaintiff is entitled to the relief of declaration sought for?

4) To what other relief the Plaintiff is entitled?

Two witnesses including the Plaintiff were examined as P.W.1 and P.W.2 on the side of the Appellant herein/Plaintiff and two documents, namely the agreement and the letter of the Respondent/Defendant cancelling the agreement were marked as Exs.A1 and A2 respectively. The Defendant appeared as the sole witness as D.W.1 on his side and three documents were marked as Exs.B1 to B3 on the side of the Respondent herein/Defendant.

The learned trial judge, after considering the evidence, came to the conclusion that the Respondent/Defendant was not able to prove that the cutting order was obtained solely on the basis the efforts made by him; that the Respondent/Defendant, having waited till the efforts made by the Appellant/Plaintiff to get the cutting order to ripen into a cutting order, on the verge of such a cutting order being obtained, unilaterally cancelled the agreement by issuing Ex.A2-letter and such a cancellation of agreement is invalid. Based on the said finding, the learned trial judge decreed the suit as prayed for.

The said judgment of the trial court allowing the suit was challenged before the lower appellate court, namely the Subordinate Judge, Palani (Camp at Kodaikanal) in A.S. No. 3/2010. The learned first appellate judge, on a thorough re-appreciation of evidence, came to the conclusion that it was the Respondent/Defendant who took steps for getting the cutting orders and that the Appellant/Plaintiff had not proved his efforts to get the cutting order within the time stipulated in the agreement or within a reasonable time. The learned first appellate judge also discussed about the purpose of incorporating a clause in the agreement prescribing a time for getting the cutting order and for completing the cutting and also the safety measures to be taken while cutting and removing the trees, to ensure that no damage is caused to the coffee plantation. Based on such discussion, the learned first appellate judge came to the conclusion that the inaction or inability on the part of the Appellant/Plaintiff to get the cutting order for about three years was a justification for the cancellation of the agreement. It was also held by the learned first appellate judge that, if at all the Appellant/Plaintiff was having any bonafide, he could have filed a suit for specific performance rather than filing a suit for declaration declaring the cancellation of the agreement to be invalid and for an injunction. On the basis of the said finding, the learned first appellate judge reversed the judgment of the trial court with the result that the appeal was allowed and the suit was dismissed.

The records have been called for and the same are made available for reference in the second appeal. The submissions made by Mr. M.P. Senthil, learned Counsel appearing for the Appellant and by Mr. A.R. Sethupathy, learned Counsel appearing for the Respondent were heard. The materials available on record were also perused.

The substantial questions of law that arise for consideration in the second appeal are as follows:

1) Whether the suit for declaration and injunction without seeking the relief of specific performance is not sustainable?

2) Whether the lower appellate court has given a perverse finding that the Appellant herein/Plaintiff was not able to prove his efforts made to get the cutting order in time and on the other hand the Respondent/Defendant was able to prove that on the failure of the Appellant/Plaintiff, the Respondent/Defendant, due to his efforts got a cutting order and that in view of the long delay caused in getting the cutting order he was justified in cancelling the agreement?

The fact that the parties entered into an agreement on 21.07.2004 under Ex.A1 for the sale of the standing silver oak trees for a sale consideration of Rs. 7,70,001/- has been admitted. It is also an admitted fact that in all a sum of Rs. 2,00,001/- had been paid in three installments by the Appellant/Plaintiff as advance and part of the sale consideration. It is also an admitted fact that a condition has been incorporated in the agreement to the effect that the Appellant/Defendant should take all efforts to get cutting order within six months thereafter from the date of agreement and cut and remove the trees within six months without causing damage to the coffee plantation by cutting the branches at the first instance and then cutting the trunk. The bone of contention in this case is who took efforts to get the cutting order. It is the contention of the Appellant/Plaintiff that he took all the efforts to get cutting order and the issuance of cutting orders had been delayed due to the administrative delay in the office of the Collectorate and District Forest Officer; that when he was about to get the cutting order, with the intention of enjoying the fruits of such an order and denying such benefit to Appellant/Plaintiff, the Respondent/Defendant had chosen to unilaterally cancel Ex.A1-Agreement and hence the same is invalid. On the other hand, it is the contention of the Respondent/Defendant that though a period of six months was stipulated in the agreement, for about three years the Appellant/Plaintiff was not able to get cutting orders and he was causing delay only with a view to get more benefit since by then the trees would have become more valuable.

In this regard though the Appellant/Plaintiff has stated in his plaint and evidence, about several steps he had taken and the recommendations of the officials for granting cutting order for less number of trees, he has not chosen to produce even a scrap of paper to show that in fact he took such efforts and despite such efforts he could not get the cutting order in time. On the other hand, the Respondent/Defendant has chosen to produce Exs.B1 -Acknowledgements for having submitted applications twice on grievance days and Ex.B2-letter sent by Superintendent of the office of District Collector to the effect that his application was being considered and the orders would be passed in due course. Though the Respondent/Defendant would have chosen to produce Ex.B3 series as the postal saving certificates taken and submitted to the District Forest Office for getting the cutting order, they are not helpful to the Respondent/Defendant since they had been taken only on 07.01.2008, namely after the filing of the suit, whereas his case is that he was able to get cutting order much before that. Even if Ex.B7 is discarded from the purview of consideration as it is not helpful to the Respondent/Defendant to prove his case, the other documents coupled with the evidence of D.W.1, will show that it was he who took sincere efforts by giving applications on grievance days to get the cutting order and which resulted in getting such an order in favour of the Respondent/Defendant.

In this regard, there are several admissions made by the Appellant/Plaintiff in his evidence adduced when he was examined as P.W.1. He has clearly admitted that the price of the trees were fixed as on the date of agreement and that the value of the trees would have increased by the time of filing of the suit. Though the suit was not filed for the relief of specific performance, P.W.1 in his evidence in cross-examination has stated that the suit was filed for the relief of specific performance which is against the fact that the suit was not filed for specific performance and it was filed only for a declaration that the cancellation of the agreement was invalid and for injunction not to prevent him from cutting trees. It is also his clear admission that in case, the suit was filed for the relief of specific performance, the relief ought to have been valued at Rs. 7,70,001/- attracting much more amount as court fee. But still he would persist in his claim that the suit was filed for such a relief paying such court fee, which is not true.

He has also clearly admitted that as per the agreement, he should apply to get the cutting orders from the Revenue and other authorities. It is also his admission that since he was in the timber trade for more than ten years, he knew the procedure for getting cutting orders and that only with such knowledge he allowed a clause to be incorporated in the agreement that the cutting order should be obtained in six months. Though P.W.1 would have stated that he was having the documents evidencing the steps taken by him to get cutting orders and the same would be filed at the appropriate time, none of such documents has been filed by him. It is also the admission that only after a lapse of three years from the date of agreement, the Respondent/Defendant issued Ex.A2-Letter canceling Ex.A1-agreement. It is also admitted by P.W.1 that along with Ex.A2, a Demand Draft for the amount paid as advance, namely Rs. 2,00,001/- was also sent by the Respondent/Defendant to the Appellant/Plaintiff. From the above said facts and circumstances of the case, it is quite clear that the suit agreement was entered into under Ex.A1 for the cutting and removing of silver oak trees with the aim of providing uniform shadow and sunlight to the coffee plantations; that the price was fixed with reference to the date of agreement; that necessary safeguards were also provided in the agreement for the protection of the coffee plantations while cutting and removing the trees and that is the reason why a time limit was stipulated for getting cutting orders and a further time limit was stipulated for cutting and removing the trees.

Admittedly, the Appellant/Plaintiff was not able to get the cutting order within the time stipulated in the agreement. He was not able to get the cutting order even before the filing of the suit. It has also been admitted by P.W.1 that by the lapse of three years, the trees would have grown bigger and the value would have increased. That is the reason why the Respondent/Defendant chose to cancel the agreement, that too after waiting for a period of three years from the date of agreement. While cancelling the agreement, the Respondent/Defendant also showed his bonafide by returning the advance amount. The Respondent/Defendant has also proved by producing Ex.B1 and Ex.B2 that it was he who approached the revenue authorities by way of petitions on grievance days which resulted in the issuance of a cutting order. On the other hand, the Appellant/Plaintiff has not even produced a scrap of paper to show the steps taken by him to get the cutting order within the time stipulated in the agreement or within a reasonable time. Therefore the finding of the lower appellate court that the Appellant/Defendant failed to prove that he took effective steps within the time stipulated in the agreement or within a reasonable time to get the cutting orders and that on the other hand, it was the Respondent/Defendant who took efforts to get the cutting order deserves no interference.

For all the reasons stated above, this Court comes to the conclusion that there is no defect or infirmity in the finding of the lower appellate court that the Respondent Defendant had rightly cancelled the agreement on the failure of the Appellant/Plaintiff to get the cutting order within the time stipulated in the agreement or within a reasonable time thereafter and that the cancellation of the agreement made by the Respondent is perfectly valid and cannot have held invalid. This is so in view of the further fact that by the passage of time because of the growth of trees without they being cut and removed, damage would have been caused to the coffee plantation and the value of the trees would have increased considerably due to their further growth. Under such circumstances ,the Respondent/Defendant was very much justified in cancelling the agreement.

Coming to the question of sustainability of the suit for the relief of declaration and injunction without seeking the relief of specific performance, the lower Appellate court has rightly held that when the performance under the agreement was refused by the Respondent/Defendant, the Appellant/Plaintiff ought to have filed a suit for specific performance and the fact that the Appellant/Plaintiff had chosen to file a suit for declaration and injunction would show the lack of readiness and willingness on his part to perform his part under the agreement. The said finding cannot be found fault with. Moreover, admittedly the suit agreement was executed on 21.07.2004. Performance of the obligation of the Respondent/Defendant under the said agreement was refused on 24.08.2007 by the issuance of Ex.A2-Letter cancelling the agreement. For specifically enforcing the agreement, limitations started running from the said date of refusal, even if it is assumed that the time stipulated in the agreement was not the essence of the contract. Admittedly, till date, the Appellant/Plaintiff has not filed any suit for specific performance. By this time, the suit for specific performance would have got barred by limitation. Even otherwise, the long delay in seeking such relief shall be enough to exercise the discretion u/s 20 of the Specific Relief Act against the Appellant herein/Plaintiff. Only under such circumstances ,the lower appellate court has arrived at a conclusion that the Appellant/Plaintiff, having not chosen to file a suit for specific performance was not entitled to the relief of declaration that the cancellation of the agreement is invalid and for the relief of injunction not to prevent the Appellant/Plaintiff from cutting the trees. This Court finds no defect or infirmity in the finding of the lower appellate court. The judgment and decree of the lower appellate court non-suiting the Appellant/Plaintiff for the relief sought for in the plaint do not suffer from any defect or infirmity. There is no merit in the appeal and the same deserves to be dismissed.

In the result, the Second Appeal is dismissed. However, there shall be no order as to costs.