T. Janagan vs A. Nandagopal

G. Rajasuria, J.—This appeal is focussed by the plaintiff, as against the judgment and decree dated 12.4.2007 passed by the Principal

District Judge, Vellore, O.S. No. 59 of 2005, which was for specific performance of an agreement to sell. The parties, for the sake of

convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.

The epitome and the long and short of the germane facts absolutely necessary for the disposal of this appeal would run thus:

The appellant herein, as plaintiff, filed the suit O.S. No. 59 of 2005 as against the defendant for specific performance of an agreement to sell with

the following prayer:

(a) directing the first defendant to execute a registered sale deed in favour of the plaintiff over the suit property.

(b) directing the defendant to deliver the suit property lawfully and in the event of refusal to do so, order to deliver of the suit property through

process of law.

(c) granting permanent injunction against the respondent from alienating the suit property to any one till the disposal of the suit.

(d) directing the defendant to apy the cost of the suit.

(extracted as such)

in respect of a land measuring 3.89 acres.

The gist and kernel of the averments in the plaint would run thus:

(i) Exhibit A-1-the agreement to sell dated 31.3.2002, emerged between the plaintiff and the defendant, whereby the latter, who happened to be

the owner of the land described in the schedule of the plaint, agreed to sell it in favour of the former, for a total sale consideration of Rs. 9,50,000/-

(Rupees nine lakhs fifty thousand), which amount was paid on the date of agreement to sell itself by the former to the latter.

(ii) No specific time for performance was stipulated, however, it is found specified therein that as and when the plaintiff would be demanding the

defendant to execute the sale deed, the latter should execute the same.

(iii) It is the case of the plaintiff that Exhibit A-5-the notice, was sent by the plaintiff to the defendant calling upon him to perform his part of the

contract, for that there was no response and no reply also was given. Hence, the suit.

In a bid to torpedo and pulverise the averments in the plaint, the defendant filed the written statement, the pith and marrow of the same would

run thus:

(i) Exhibit A-1-the agreement to sell dated 31.3.2002 is a fabricated document. The plaintiff and the defendant had money transactions. The

former, was a partner in the firm called ''Bharath Finance Arcot'', which was running unauthorised chits; while so, the defendant was one of the

subscribers to an unauthorised chit during the year 2000; at that time, the defendant was constrained to hand over the original sale deed, patta

passbook and the kist receipts relating to the suit property and he also signed the blank stamp papers, blank cheques and blank pro-note formates

and handed over the same to the plaintiff.

(ii) The plaintiff misused two such blank signed stamped papers and converted them into Exhibit A-1-the false agreement to sell and filed the suit.

In fact, the defendant was liable to pay only a sum of Rs. 40,000/-(forty thousand) for which 60% interest per annum was demanded by the

plaintiff and because of that, rift ensued and ultimately resulted in the filing of the vexatious suit.

(iii) The trail Court framed the issues. Up went to the trial, during which, the plaintiff examined himself as P.W.1 along with P.W.2 and Exhibits A-

1 to A-7 were; marked on his side. On the defendant''s side, the defendant examined himself as D.W.1 and marked Exhibits B-1 to B-11.

(iv) Ultimately, the trial Court dismissed the suit.

Challenging and impugning the judgment and decree of the trial Court, this appeal has been filed on various grounds.

The learned counsel for the plaintiff, placing reliance on the grounds of appeal would submit her arguements, which could pithily and precisely be

set out thus:

(i) The oral and documentary evidence adduced on both sides were not considered properly by the lower Court.

(ii) The lower Court failed to take note of the fact that the defendant clearly and categorically admitted the execution of the agreement to sell

Exhibit A-1 in his deposition and that too, during cross-examination. As such, the onus probandi was on the defendant to prove that there was no

proper execution of the agreement to sell. But he failed to discharge the burden. Inasmuch as there was no time limit fixed for performance, the

Court should have ordered enforcement of the agreement to sell as contained in Exhibit A-1.

Accordingly, the learned counsel for the appellant/plaintiff would pray for setting aside the judgment and decree of the trial Court and for decreeing

the suit as prayed for.

Per contra, in a bid to extirpate and pulverise, torpedo and impugne the arguements as put forth and set forth on the side of the plaintiff, the

learned counsel for the defendant would pyramid his arguements, which could succinctly and precisely be set out thus:

(i) Exhibit B-11-the agreement to sell, which emerged between the defendant and one Chockalingam in respect of the same suit property, on

26.8.2002, would display and demonstrate that the plaintiff herein signed as one of the attesting witnesses and that fact was admitted by him earlier

during trial. In such a case, if really Exhibit A-1-the agreement to sell emerged on 31.3.2002, then the plaintiff would not have attested Exhibit B-

11.

(ii) There is nothing to indicate that the plaintiff had been ready and willing to perform his part of the contract ever since 31.3.2002-the alleged

agreement to sell.

(iii) There is not even any itsy-bitsy evidence to show that the plaintiff had been ready and willing to perform his part of the contract ever since the

emergence of the alleged agreement to sell dated 31.3.2002.

(iv) As revealed by Exhibit A-5, notice was issued by the plaintiff as such after a year and nine months. Had really the entire sale consideration and

that too, such huge sale consideration of Rs. 9.50 lakhs been paid by the plaintiff to the defendant then the plaintiff would not have kept quiet for

such a long time, without insisting for a sale deed being executed by the defendant. That itself is indicative of the fact that Exhibit A-1 is not really

an agreement to sell and it is a fabricated document, as set out by the defendant in his written statement

(v) The lower Court taking into account the pros and cons of the matter correctly dismissed the suit warranting no interference in appeal.

Accordingly, the learned counsel would pray for dismissing the appeal.

The points for consideration are as under:

(i) Whether Exhibit A-1-the agreement to sell dated 31.3.2002 could be construed strictly as an agreement to sell, in view of a sum of Rs.

8,00,000/- (Rupees eight lakhs) having been allegedly availed by the plaintiff from different sources as loan in paying the alleged sale consideration,

and also in view of the plaintiff having admittedly signed Exhibit B-11 as a witness on 26.8.2002, subsequent to the alleged emergence of Exhibit

A-1?

(2) Whether there is any evidence on record to show that the plaintiff has been ready and willing to perform his part of the contract ever since the

date of emergence of Exhibit A-1?

(3) Whether the conduct of the plaintiff falls foul of Sections 16 and 20 of the Specific Relief Act?

(4) Whether there is any perversity or illegality in the judgment and decree of the trial Court?

All these points are taken together for discussion as they are interwoven and interconnected, interlinked and entwined with one another.

At the outset itself, I would like to fumigate my mind with the following decisions of the Honourable Apex Court:

(i) Man Kaur (dead) by LRS. Vs. Hartar Singh Sangha, certain excerpts from it would run thus:

This contention has no merit. There are two distinct issues. The first issue is the breach by the defendant vendor which gives a cause of action

to the plaintiff to file a suit for specific performance. The second issue relates to the personal bar to enforcement of a specific performance by

persons enumerated in Section 16 of the Act. A person who fails to aver and prove that he has performed or has always been ready and willing to

perform the essential terms of the contract which are to be performed by him (other than the terms the performance of which has been prevented

or waived by the defendant) is barred from claiming specific performance. Therefore, even assuming that the defendant had committed breach, if

the plaintiff fails to aver in the plaint or prove that he was always ready and willing to perform the essential terms of contract which are required to

be performed by him (other than the terms the performance of which has been prevented or waived by the plaintiff), there is a bar to specific

performance in his favour. Therefore, the assumption of the respondent that readiness and willingness on the part of the plaintiff is something which

need not be proved, if the plaintiff is able to establish that the defendant refused to execute the sale deed and thereby committed breach, is not

correct. Let us give an example. Take a case where there is a contract for sale for a consideration of Rs. 10 lakhs and earnest money of Rs. 1 lakh

was paid and the vendor wrongly refuses to execute the sale deed unless the purchaser is ready to pay Rs. 15 lakhs. In such a case, there is a clear

breach by the defendant. But in that case, if the plaintiff did not have the balance Rs. 9 lakhs (and the money required for stamp duty and

registration) or the capacity to arrange and pay such money, when the contract has to be performed, the plaintiff will not be entitled to specific

performance, even if he proves breach by the defendant, as he was not ""ready and willing"" to perform his obligations.

(ii) J.P. Builders and Another Vs. A. Ramadas Rao and Another, would run thus:

It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply

with Section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the Court is not bound to grant specific

performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the

relevant points of time. ""Readiness and willingness"" to perform the part of the contract has to be determined/ascertained from the conduct of the

parties.

A mere running of the eye over those precedents would unambiguously and unequivocally, pellucidly and palpably highlight and spotlight the

fact that the person who seeks specific performance of the agreement to sell should prove before the Court that he has been ready and willing to

perform his part of the contract ever since the emergence of the contract de hors the period of limitation contemplated for enforcing such

agreement to sell.

Indubitably and indisputably, unarguably and unassailably according to the plaintiff, Exhibit A-1-the agreement to sell emerged on 31.3.2002,

whereby a huge sum of Rs. 9,50,000/- was paid as consideration, so to say, the full consideration, to the defendant for purchasing the suit

property. In such a case there is no knowing of the fact as to what prevented the plaintiff from getting the sale deed itself executed on the same

date or within a short span of time. It has become all the more significant and important to view it seriously because, while deposing before the

Court, P. W. 1, without mincing words and pulling no punches would portray and narrate as to how he got the huge sale consideration of

9,50,000/-. He would detail and delineate that he raised from not less than three persons a huge loan of Rs. 8,00,000/- and the remaining amount

he had with him and paid the total sale consideration of Rs. 9.5 lakhs to the defendant.

It is a common or garden principle that a person who raised loan to a tune of Rs. 8,00,000/- would not keep quiet and that too, after paying

the entire sale consideration contemplated in Exhibit A-1-the agreement to sell, for a period of one year and nine months, for the defendant to

execute the sale deed. This conduct of the plaintiff would certainly falls foul of Sections 16 as well as 20 of the Specific Relief Act.

The aforesaid precedents in cases of this nature looked askance at the conduct of the party like the plaintiff herein and unambiguously and

unequivocally held that such persons are not entitled to get specifically enforced their agreements to sell.

A plain poring over and perusal of the plaint would show up that in paragraph No. 6, the plaintiff simply reproduced the ingredients of Sections

16 of the Specific Relief Act to the effect that he had been ready and willing to perform his part of the contract, which averment is totally

antithetical to the conduct as well as his own admissions of facts in this case, as set out supra. There should have been specific pleading in the plaint

itself as to why the plaintiff had kept quiet for one year and nine months without insisting for the sale deed executed in his favour.

Over and above that, the learned counsel for the defendant would appropriately and appositely correctly and legally draw the attention of this

Court to the deposition of P. W. 1 himself to the effect that he attested Exhibit B-11, which is an agreement to sell, which emerged between the

defendant and one Chockalingam in respect of the same suit property. Had really Exhibit A-1 been in existence anterior to the emergence of

Exhibit B-11, the plaintiff would not have attested Exhibit B-11.

No doubt, I am fully aware of the fact that the attestation would not clothe the attestor with the knowledge of the contents. But in this case,

according to the plaintiff Exhibit A-1 emerged almost a year and a few months anterior to the emergence of Exhibit B-11. Till that time there was

non-compliance on the part of the defendant in executing the sale deed. In such a case, the plaintiff, being a friend of the defendant, while attesting

Exhibit B-11, would have very well in all probabilities known about the contents. It is not the case of the plaintiff that he attested Exhibit B-11,

assuming or believing as though he was attesting some other document other than an agreement to sell

I recollect the trite proposition of law that the plaintiff who approaches the Court for getting specific performance of his agreement to sell,

should have good faith and there should not be even a little bit of falsity or mendacity on his part in seeking such relief.

In this factual matrix the aforesaid precedent of the Honourable Apex Court could rightly be pressed into service. Here even as per the

plaintiffs own narration of the facts, he is not entitled to specific performance of the agreement to sell and the lower Court correctly considering the

pros and cons of the matter dismissed the suit for specific performance, warranting no interference in appeal.

Over and above that I would also like to comprehensively deal with the other aspects involved in this case.

The lower Court took pains to meticulously point out that the two stamp papers constituting the agreement to sell Exhibit A-1 bears the date of

purchase of stamp papers as 31.3.2000. Those papers were purchased in the name of the plaintiff. The plaintiff must have given such papers to the

scribe concerned, whereupon only the scribe could have scribed the agreement on such papers. There is no knowing of the fact as to what

prevented the plaintiff from purchasing currently the stamp papers at the relevant time and got scribed thereon the agreement to sell.

The answer is quite obvious because the plaintiff presumably got such signatures of defendant in the blank stamped papers, which he

purchased during the year 2000.

However, the learned counsel for the plaintiff would draw the attention of this Court to the following version in the cross-examination of

D.W.1.

No doubt in isolation, if the sentence is read it would connote and denote, display and demonstrate as though the defendant candidly and

categorically admitted about the emergence of Exhibit A-1.

The learned counsel for :he defendant would try to explain and expound by pointing out that one stray sentence or stray answer during cross

would not torpedo the entire edifice of the case of the defendant that he signed only blank papers.

Trite the proposition of law is that in order to understand the stand of a witness as well as his attitude and his conduct, the entire deposition

should be read and no part of the deposition should be read in isolation.

Here, in the written statement as well as in the chief examination and also in the cross-examination, it is the consistent case of the defendant that

he signed Exhibit A-1 while it was blank. In such a case, it cannot be assumed or presumed as though that stray answer would amount to clear and

categorical admission on the part of the defendant.

The one other fact also cannot be lost sight of. The defendant would try to gloss over and also camouflage and conceal by pointing out that

after receipt of Exhibit A-5-notice, he met the plaintiff and asked him about it for which the latter allegedly stated as though the defendant need not

worry about at. Such an explanation is totally unacceptable and it is too big a pill to swallow. The non giving of reply is really a serious affair. The

party who failed to give reply to the notice, normally, would have a stock explanation to the effect that on receipt of notice he personally met the

author of the notice and explained about it etc. The defendant should have replied suitably to the notice of the plaintiff, but he failed to do so.

However, in view of the ratiocination adhered to above in this matter, I am of the view that the non-reply to the plaintiffs advocate''s notice in the

factual narration of this case is not fatal to the defence of the defendant.

In this case, the plaintiff virtually fails because of the weakness of his case and in such a situation, the weakness of the defendant''s case

relegates to a pococurante level.

My mind is reminiscent and redolent of the maxim ""In re dubia magis infitiatio quam affirmatio intelligenda - In a doubtful matter, the negation is

to be understood rather than the affirmation. When evidence is lacking it is the negative which should be presumed and not the affirmative, in the

wake of the maxims ''(i) Affirmatis est probare - He who affirms must prove (ii) Affirmanti, non neganti incumbit probatio - The burden of proof

lies upon him who affirms, not upon one who denies.

It has to be held that the plaintiff failed to discharge the onus probandi cast upon him and in such a case, the weakness of the defence cannot

be made use of by the plaintiff. Wherefore, considering the pro et contra, I am of the view that there is no merit in the appeal.

Accordingly, the points are answered as under:

Point No. (i) is decided to the effect that Exhibit A-1-the agreement to sell dated 31.3.2002 could not be construed strictly as an agreement to sell.

Point No. (2) is decided to the effect that there is no evidence on record to show that the plaintiff had been ready and willing to perform his part of

the contract ever since the date of emergence of Exhibit A-1.

Point No. (3) is answered to the effect that the conduct of the plaintiff falls foul of Sections 16 and 20 of the Specific Relief Act.

Point No. (4) is decided to the effect that there is no perversity or illegality in the judgment and decree of the trial Court.

In the result, the appeal is dismissed. However, there is no order as to costs.