S.K.M. Mohammed Amanullah represented by his Power Agent A. Ali Akbar Aziz vs T.C.S. Ramasangu Pandian and Others

Srinivasan, J.—The plaintiff, who lost in the trial court in a suit for specific performance, has preferred this appeal. The case of the plaintiff is

as follows: On 28.11.1977 he entered into an agreement with Sri Saravanaperumal Nadar, father of the first defendant and husband of the second

defendant, for purchasing the suit properties of an extent of 35 acres 12 cents at the rate of Rs. 5,000 per acre. The total consideration works out

to Rs. 1,75,600 out of which a sum of Rs. 10,006 was paid as advance on the date of agreement. The agreement provided that the sale deed

should be executed before 30.6.1978. Though the title deeds were given to the plaintiff on the date of agreement, they were taken back with the

promise that they will be handed over to the plaintiff a week before the date of sale deed. The plaintiff was always ready and willing to pay the

balance amount. But, Saravanaperumal Nadar was delaying the transaction by giving one excuse or other. His son was telling the plaintiff that his

father was unwell and would be executing the deed as soon as he recovered fully. On 28.2.1979 when the plaintiff pressed for early execution of

the sale deed, Saravanaperumal Nadar and his son promised to complete the sale positively on 19.3.1979 and the plaintiff arranged to measure the

properly through a surveyor and obtained encumbrance certificate. By the second week of March, 1979 when the plaintiff requested

Saravanaperumal Nadar to give the original title deeds, he was told that the same was with his son, the first defendant and the latter was

demanding higher amount for sale. He was also assured that the first defendant would be persuaded to hand over the documents in three or four

days i.e., positively before 18.3.1979, for preparation of the sale deed. Though thereafter the plaintiff and his brokers approached the vendor and

the first defendant several times to give the prior deeds and complete the sale they were evading. The plaintiff did not arrange to get the necessary

stamp papers in view of the reluctant attitude of the vendor and his son. The plaintiff learnt that the first defendant was negotiating with third parties

to sell the property for higher value and on 223.1979 sent a registered notice through his advocate to the vendor expressing his readiness to pay

the balance amount due and requiring completion of the transaction. On the same day, another copy was sent to the address of the vendor by

certificate of posting and a third copy was sent to his permanent address at Madurai. The vendor evaded to receive the same. The plaintiff learnt

that the property was sold to third defendant, who is a close relation and family friend of the vendor. Defendants 4 to 11 are family members of the

third defendant and sale deeds have been taken in their names. The consideration mentioned in the sale deeds is false and it is only a make believe

arrangement. The sale deeds are not bona fide. Saravanaperumal Nadar died later leaving his wife, son and daughter as his legal representatives.

They are respectively defendants 2,1 and 12. The plaintiff is entitled to enforce the specific performance and prays for the grant of the same.

In the written statement the first defendant contended that the plaintiff was never ready and willing to perform his part of the agreement and

within the time specified in the agreement, he did not tender the balance or offer to pay the same. It was found that the plaintiff had no separate

funds to finalise the transaction and had to rely upon his father-in-law and according to the service conditions with his employers, the plaintiff was

not authorised to buy any immovable property without getting the prior permission of the employers. Hence, the plaintiff never turned up for

completing the transaction. Thus, he has forfeited his rights under the agreement and the advance paid. The plaintiff was also aware of the sale

deeds executed in favour of defendants 3 to 11, who were bona fide purchasers for value without notice of the agreement. The plaintiffs father-in-

law was having an interest in the sale agreement and he was well versed in litigation and this suit has been filed with ulterior motive to blackmail the

defendants.

Defendants 3 to 11 have raised a plea that they are bona fide purchasers for value without notice of the agreement in favour of the plaintiff.

Pending suit, the second defendant died and defendants 1 and 12 are recorded as her legal representatives. The trial court considered the entire

evidence on record and held that the plaintiff was never ready and willing to perform his part of the contract. The trial court has also held that the

defendants have proved that they are bona fide purchasers for value and they had no notice of the suit agreement. Hence, the trial court dismissed

the suit.

The plaintiff has not entered the witness box to speak in support of his case, the reason for his absence from the witness box is said to be that he

was not in India at that time and he was in Saudi Arabia eking out his livelihood. This explanation cannot be accepted in view of the fact that the

plaintiff was admittedly in India at the time of filing the plaint. P.W.2 has stated in his evidence that he saw the plaintiff six months prior to the date

of his deposition. His evidence was recorded on 24.8.1982, which means the plaintiff was seen by him in February, 1982. He has also stated that

the plaintiff went outside the country about four months prior to that. That means the plaintiff left India in about April, 1982. Assuming that to be

true, the plaintiff has admittedly come back to India before the suit was concluded. He was present in India on 10.7.1985 as evident from the

power of attorney executed by him in favour of his father-in-law in supersession of his earlier power of attorney executed in favour of his brother-

in-law who has been examined as P.W.1. A copy of the power of attorney has been filed in this appeal. It is seen from the judgment of the trial

court that a copy was filed in the trial court also at the time of trial though it has not been marked as an exhibit. The suit was pending in July, 1985

and was dismissed only on 18.10.1985. In fact D.W.1 was recalled and examined and further cross-examined on 3.10.1985. There is nothing on

record to show as to why the plaintiff was unable to examine himself as a witness when the suit was pending before court.

It has been held in Sardar Gurbaksh Singh v. Gurdial Singh and another, 53 M.L.J. 392, by the Privy Council that it is the bounden duty of a

party, personally knowing the whole circumstances of the case, to give evidence on his own behalf and to submit to cross-examination and his non-

appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case. In H.G. Krishna Reddy and Co. Vs.

M.M. Thimmaiah and Another, , a Division Bench of this Court has laid down that in a suit for specific performance it is the duty of the plaintiff to

prove that he was always ready and willing to perform his part of the contract including the period of the suit. In that case, the plaintiff was absent

from the witness box and the court relied on the circumstance to hold against the plaintiff. The Bench observed:

In this case, there is absolutely no evidence on the side of the first respondent to prove that he was ready and willing to perform his part of the

contract and such readiness ""and willingness continued till the date of the decree. It is certainly the duty of the first respondent to have gone into the

box and given formal evidence that he was ready and willing to perform his part of the contract and subjected himself to cross-examination. In the

absence of the first respondent from the witness box, we are unable to find that the first respondent plaintiff has discharged the duty enjoined on

him u/s 16(c) of the Specific Relief Act 1963, entitling him to a decree for specific performance.

In the present case, in the absence of any valid explanation for the plaintiffs non-examination of himself as a witness, the court is entitled to draw

an adverse inference against him. Moreover, the evidence on record is hardly sufficient to prove that the plaintiff was always ready and willing to

perform his part of the contract. There is absolutely no evidence on record to prove the availability of sufficient funds with the plaintiff after the date

of the contract and before the date of suit. The plaintiff has not chosen to produce any document to support His claim that he had the necessary

money with him. It is argued by learned Counsel for the appellant that it was admitted on the side of the defendants that the father-in-law was a

rich man and the plaintiffs was depending on the plaintiffs father-in-law. It is contended that the plaintiff could have commanded the necessary

funds at any time and based on the admission of the defendants, the court below should have accepted the case of the plaintiff that he had

necessary wherewithal with him to complete the transaction. We are unable to accept this contention. There is absolutely no evidence to show

either the property owned by the plaintiffs father-in-law or the funds available with his father-in-law. It is not the case of the plaintiff that he was

depending on his father-in-law for the purpose of completing the transaction. He has not produced any evidence either to prove his own wealth or

the affluence of his father-in-law. Hence, the case of the plaintiff that he had sufficient funds to complete the transaction has to be rejected.

The conduct of the plaintiff as evident from the records will also show that he was never ready to perform his part of the contract. The total

consideration is Rs. 1,75,600. The plaintiff had paid only a sum of Rs. 10,000 as advance. He. was bound to pay the balance of Rs. 1,65,594.

The contract was entered on 28.11.1977. The last date fixed in the agreement was 30.6.1978. The plaintiff claims to have written a letter on

6.5.1978 to his vendor. A copy of the letter is marked as Ex.A-24. According to the letter, the vendor authorised the plaintiff to appoint a

watchman and take care of the trees on the land. The letter reads that the plaintiff had appointed a watchman by name Subbiah Thevar to take

care of the land. It is alleged that the vendor was postponing the execution of the sale deed. The letter is said to have been sent under certificate of

posting to the vendor. No doubt, there is a postal seal over the stamp affixed to the certificate of posting bearing the date 6.5.1978. But the

appearance of the letter as well as the certificate of posting creates a strong suspicion in the mind of the court. This letter has not been mentioned in

any of the subsequent notices, nor in the plaint. Apart from that, the matter mentioned in the letter would certainly have been set out in the notices

issued prior to the suit and the plaint if that is correct. If the plaintiff had appointed a watchman to take care of the property as authorised by the

vendor, he would have referred to that in the subsequent notices as well as in the plaint. There is absolutely no reference to it and there is no

explanation therefor. There is no evidence also to prove it. P.W.1, a brother-in-law of the plaintiff, who has also a power of attorney in his favour

at that time, has deposed that it was he who filled up the certificate of posting and posted the letter. But, he admits that there is no explanation as to

why the letter was not mentioned either in the lawyer''s notice issued prior to the suit or in the plaint. A specific suggestion was put to him in the

cross-examination that the certificate of posting as well as the letter have been fabricated. No doubt he has denied the same. But in the absence of

any explanation as to the failure to refer either to the letter or to the contents thereof in the plaint, we are not inclined to accept the case of the

plaintiff that the letter was really posted and was sent to the vendor. Assuming that the letter was sent to the vendor and it reached him and there

was no reply by the vendor to the plaintiff as alleged by the plaintiff, the latter would not have again sent another letter by certificate of posting. He

would have certainly sent the next letter by registered post so as to ensure the delivery of the letter to the vendor. According to him, he sent the

second letter on 15.6.1978 a copy of which is marked as Ex.A-25. P.W. 1 claims to have posted that letter also under certificate of posting. The

appearance of that letter as well as the certificate of posting creates a suspicion. The evidence of P.W.1 as regards the letter and certificate of

posting is not convincing. These two letters are obviously fabricated for the purpose of showing that the plaintiff was ready and willing to perform

his part even before the date fixed in the agreement. If for the sake of argument we assume that the plaintiff was ready to perform his part even

before 30.6.1978, there is no explanation as to why he waited till March, 1979. According to the plaintiff, the next letter written by him is on

15.12.1978 under Ex.A-26. That letter was also sent only under certificate of posting. In that letter it is alleged that the plaintiff heard that third

parties were giving bad advice to the vendor. It is stated that the plaintiff was hoping that the vendor would honour the agreement. There is no

explanation as to why that letter was not sent by registered post when according to the plaintiff he found that the earlier two letters had no

response. As the two prior letters, this letter as well as the certificate of posting give rise to suspicion. The next letter is said to have been written on

9.3.1979 under Ex.A-27. According to that letter, the vendor was making arrangements hurriedly to sell the property to Thangapandi Nadar and

others. It is also stated that the vendor had agreed when the plaintiff, P.W. 1 and P.W.2 met him. They were assured that the sale would be

completed before 19.3.1979. If the alleged meeting was true and the plaintiff was assured that the transaction would be completed by 19.3.1979

and if he came to know that the vendor was arranging to sell the property to third party by name Thangapandi Nadar and others, the plaintiff

would not have merely sent a letter under certificate of posting and on the other hand he would have issued a lawyer''s notice. He would have also

rushed to the court and sought for an injunction restraining the sale of the property, as rightly pointed out by the trial court. A curious feature in the

Certificate of Posting is that it bears the address of the third defendant also. If the plaintiff was aware of the addresses of the third defendant and

had sent a copy of his letter to the vendor, he would have certainly issued a notice through a lawyer or filed a suit as stated earlier. He would not

have contented himself by merely sending a copy of the letter under certificate of posting. Obviously, this document has been prepared for the

purpose of contending that the defendants were not bona fide purchasers without notice.

The first notice through lawyer is issued only on 22.3.1979 under Ex.A-3. The notice was sent to Madurai address as well as to Tuticorin

address. The other documents show that the plaintiff was aware that the vendor was residing only in Tuticorin. There is no reason why a notice

was sent to Madurai address. The notice sent to Tuticorin address has been received by the vendees on 28.3.1979 as evident from Exhibit. No

copy of the said notice was issued to the third defendant other purchasers. If the letter dated 9.3.1979 marked as Ex.A-27 is true, the plaintiff

would have instructed his lawyer to send notices to the purchasers also. A notice would have been sent to the third defendant through the lawyer

when Ex.A-3 has been sent to the vendor Saravanaperumal Nadar. There is no reason as to why such a notice was not sent to the purchasers.

There is not even a reference to the third defendant or any of the other purchasers in Ex.A-3. That itself falsifies the version that a letter was sent to

the third defendant on 9.3.1979.

The suit was filed only on 26.3.1980, more than a year after the issue of notice through the lawyer. There is no explanation by the plaintiff as to

why the suit was not filed earlier. If all the above circumstances are considered cumulatively, the conduct of the plaintiff shows that he was not

ready to perform his part of the contract at any time prior to the suit. There is no evidence to prove that after the filing of the suit he was ready to

perform his part of the contract. He has not chosen to make a deposit of the balance of consideration in court even though there is an allegation

that he is ready to deposit. Learned Counsel for the appellant contends that there is no need to deposit or tender the amount and only if a direction

is given by court, such a deposit need be made. Reliance is placed on a decision of .this Court in Ramani Ammal v. Susilammal (1991) 1 M.L.J. 1.

The ruling will have no application to this case, as on the facts we find that there is no evidence to prove the readiness and willingness on the part of

the plaintiff to perform his part of the contract.

It is submitted by the appellant''s counsel that time is not the essence of the contract in this case. It is not necessary for us to consider the

question whether time was the essence of the contract or not. The fact remains that the document fixed a specific date for completion of the

contract and the plaintiff was never ready, even after the expiry of that date, to perform his part of the contract. Hence, the judgment of the

Supreme Court in Gomathinayagam Pillai and Others Vs. Pallaniswami Nadar, and Govind Prasad Chaturvedi Vs. Hari Dutt Shastri and Another,

have no bearing in the present case.

Learned Counsel invited our attention to the rulings in Madamsetty Satyanarayana Vs. G. Yellogi Rao and Others, , R.C. Chandiok and

Another Vs. Chuni Lal Sabharwal and Others, , Prag Datt Vs. Smt. Saraswati Devi and Another, and Viswanathan v. K.M. Palaniswamy

Gaunder (1991) 2 L.W.140. Those rulings will not help the plaintiff in the present case in view of the facts found by us above.

The next question is whether defendants 3 to 11 are bona fide purchasers for value without notice of the said agreement D.W.2 is the third

defendant. He has spoken to the fact that the. agreement between himself and Saravanaperumal Nadar was entered on 19.2.1979 under Ex.B-69,

Nothing has been elicited in the cross-examination to make us disbelieve his version. He has also deposed that the stamp papers for completing the

sale transaction were purchased between 10th March, 1979 and 12th March, 1979. He has produced all the relevant accounts to show that

money was spent on the relevant dates for purchase of stamp papers as well as payment of advance of Rs. 10,001 to Saravanaperumal Nadar on

the date of the agreement viz., 19.2.1979. The books of account are regularly kept and nothing has been elicited in the cross-examination to

discredit the account books. The third defendant has also produced the reports of the auditors and the Income Tax certificates which show that the

accounts are kept in the regular course of business. The trial court has accepted those documents and we do not find any reason whatever to differ

from the same. The accounts also prove that consideration was paid for the purpose of sales in favour of defendants 3 to 11. The registration

copies of sale deeds have been marked as Exs.B-4 to B-12. The plaintiff has also marked similar copies as Exs.A-6 to A-l.4. As seen from the

documents, the entire consideration was paid before the Sub Registrar at the time of registration. It is also seen that the registration department

took proceedings against the purchasers for collecting deficit stamp duty on the ground that the value mentioned in the documents was lesser than

the market value of the property as per the Stamp Act. Thus, the evidence adduced by the third defendant proves that she transaction in favour of

defendants 3 to 11 are genuine and supported by consideration.

There is no evidence on the side of the plaintiff to show that defendants 3 to 11 had any notice of the plaintiffs agreement. The only document

relied on by the plaintiff is Ex.A-27. We have already said enough to show that Ex.A-27 cannot be true and no copy of the said letter would have

been sent to the third defendant as claimed. P.W. 1 says that the third defendant was present whenever he met Saravanaperumal Nadar or the first

defendant. But, this circumstance has not been mentioned either in the notice prior to suit or in the plaint. That is a crucial fact which would have

been mentioned in the plaint, if it is true. Obviously, it is an after-thought on the part of P. W. 1. A perusal of the evidence of P.W.1 and P.W.2

shows clearly that they are prevaricating. They are interested in the plaintiff and they are not speaking the truth. P.W.2 has blurted out that the

plaintiff sent notice to Saravanaperumal Nadar only after the conclusion of the sales in favour of defendants 3 to 11. P.W.2 claims to have been

present at the time of agreement in favour of the plaintiff, but there is no evidence as to why he did not attest it. The explanation is, because already

three other persons had attested the document, the plaintiff told him that it was not necessary for him to attest it. That explanation is not acceptable.

P.W.3 claims to have introduced P.W.2 to the first defendant. But, in the cross examination he gave contrary evidence by stating that he told

P.W.2 to go and meet the first defendant and that he never introduced P.W.2 to the first defendant directly. It is clear that P.Ws.1 to 3 have

foresword and their evidence cannot be accepted. In the result, there is no evidence whatever to show that defendants 3 to 11 had any notice of

the contract in favour of the plaintiff.

Learned Counsel for the appellant contended that there is no reference to the agreement dated 19.2.1979 (Ex.B-69) in the sale deeds in

favour of defendants 3 to 11. The other evidence on record is sufficient to prove that the agreement is true and just because it is not mentioned in

the sale deed, it cannot be rejected.

We have no hesitation to hold that the plaintiff is not entitled to the discretionary relief of specific performance on the facts and circumstances

of this case. Hence, the dismissal of the suit by the trial court is correct and it has to be upheld.

Ultimately, learned Counsel for the appellant put forward an alternative argument that the plaintiff should not be made to lose the sum of Rs.

10,006 paid as advance under the agreement. He prays for a decree for refund of the said amount as against defendants 1 and 12 We have found

in the course of our discussion that documents have been fabricated and prepared for the purpose of this case. We also found that the plaintiff has

come forward with a false case and did not have the courage to enter the witness box and face cross-examination. In those circumstances, we do

not think that this is a fit case of direct refund of the advance paid by the plaintiff. As per the contract, he has to forfeit the sum if the contract is not

completed on account of his delimit before 30.6.1978 We have found that the plaintiff has committed default and, therefore, the amount paid as

advance has to be forfeited.

In the result, the appeal fails and it is dismissed with costs.