JUDGMENT
F.M. Ibrahim Kalifulla, J.
1. The plaintiff is the appellant. The suit having been dismissed with costs, the plaintiff has come forward with this Original Side Appeal.
2. The appellant/plaintiff filed the suit for specific performance to direct the respondent/defendant to execute a sale deed pursuant to the agreement dated 17.3.1996 on receipt of the balance sale consideration of Rs. 15 lakhs in respect of the suit schedule property, namely land and building situate at No. 68, Bazullah Road, T. Nagar, Chennai-17 and for a permanent injunction restraining the respondent/defendant from alienating the suit property.
3. As per the plaint averments, the appellant/plaintiff entered into an agreement for sale of the above said property on 17.3.1996 and paid a sum of Rs. 15 lakhs towards part consideration, while the total consideration was fixed at Rs. 30 lakhs. It is claimed that the respondent gave a stamped receipt dated 17.3.1996 for a sum of Rs. 15 lakhs. It is stated that the appellant was ready and willing to pay the balance sale consideration of Rs. 15 lakhs and called upon the respondent/defendant on number of occasions to accept the same and execute the sale deed as per the agreement. It is further stated that the respondent was evading, that he went on transfer to Tuticorin without any intimation to the appellant, that the appellant found out the whereabouts of the respondent at Tuticorin and approached him there for executing the sale deed after receipt of the balance sale consideration and that the respondent, instead of complying with the terms of the agreement, attempted to alienate the suit schedule property. It is also claimed by the appellant/plaintiff that pursuant to the agreement he was put in possession. Based on the above averments, the appellant/plaintiff laid the suit for specific performance and for permanent injunction.
4. The suit was resisted by the respondent/defendant by filing a written statement, contending that the respondent never entered into any agreement much less the one dated 17.3.1996 in respect of the suit schedule property, that the claim of the appellant about the agreement was fraudulent, mischievous and fabricated, that he never issued any receipt for the sum of Rs. 15 lakhs on 17.3.1996 as claimed by the appellant/plaintiff and since there was no agreement, there is no question of any relief being granted to the appellant/plaintiff. It is also stated that since there was no agreement, there is no question of the appellant/plaintiff being ready and willing nor has shown any proof for payment of any balance sale consideration of Rs. 15 lakhs. It is also stated that when he was in Tuticorin, the appellant set up one Ms. Sudha and coerced him to sign certain documents and that thereafter, on 17.3.1996, on the invitation of the said Sudha and her mother Mangai, he visited her house where the respondent coerced him to agree for a second marriage with the said Sudha and in that process, he was forced to sign on a blank revenue stamp paper and certain other stamp papers, apart from coercing him to write in a stamp paper as though he borrowed a sum of Rs. 2 lakhs from the said Sudha and agreed to repay the same on or before 17.3.1999. According to the respondent/defendant, he was forced to sign such blank documents and write down the matters out of coercion and undue influence. He is also stated to have lodged a complaint on 21.3.1996 against Sudha, her mother Mangai and the appellant with the Sub-Inspector of Police, Thattaparai Police Station, Tuticorin. According to the respondent, the suit schedule property was mortgaged by him with the State Bank of India for a sum of Rs. 96,000/-. He therefore prayed for dismissal of the suit.
5. Before the learned single Judge, the plaintiff examined himself as P.W. 1, besides P.Ws. 2 and 3 were examined, while the defendant examined himself as D.W. 1. Exs. P-1 to P-3 were marked on the side of the plaintiff, while Exs. D-1 to D-15 were marked on the side of the defendant.
6. The learned single Judge framed the following issues for determination:
(i) Whether the plaintiff is entitled for the specific performance in pursuance of an agreement of sale dated 17.3.1996, as set out in the plaint?
(ii) To what relief, the plaintiff is entitled to?
7. On an analysis of the evidence placed before the learned single Judge, the learned single Judge found that Ex. P-1 receipt, based on which the whole suit claim was laid, could not have been executed at Tuticorin on 17.3.1906 as claimed by the appellant/plaintiff, that it was highly doubtful whether possession of any part of the building was handed over to the appellant as claimed by him, that the evidence of P.Ws. 2 and 3 was not trustworthy, that there was no proof for payment of Rs. 15 lakhs by the appellant to the respondent and therefore, no agreement for sale could have been entered into either on 17.3.1996 or on any date earlier and therefore, the appellant/plaintiff is not entitled for the relief of specific performance or any other relief. So saying, the learned single Judge dismissed the suit with costs.
8. Assailing the judgment and decree of the learned single Judge, Mr. P. Jayaraman, learned Senior Counsel appearing for the appellant/plaintiff, in his submissions, stated that the respondent/defendant, having taken contradictory stand as regards the execution of Ex. P-1 receipt, namely that the said document was obtained from him under coercion on the one hand and his signature was forged therein on the other hand, by itself, would demonstrate the falsity of the stand of the respondent and that in the said circumstance, the learned single Judge ought to have accepted Ex. P-1 receipt in its entirety. The learned Senior Counsel also submitted that when under Ex. P-1, the payment of Rs. 15 lakhs is specifically mentioned, no further proof was required, as the said document itself stipulated the total consideration, namely, the sum of Rs. 30 lakhs as well as the fact of handing over of possession to the appellant. According to the learned Senior Counsel, the existence of Ex. P-1 read along with the evidence of P.Ws. 1 to 3, established the claim of the appellant/plaintiff. The learned Senior Counsel further contended that the rejection of the evidence of P.Ws. 1 to 3 by the learned single Judge was not proper and that the appellant, having expressed his readiness and willingness and the respondent having failed to fulfil his part of the agreement under the contract, is entitled to succeed. The learned Senior Counsel therefore prayed that the judgment of the learned single Judge should be set aside and the suit decreed as prayed.
9. As against the above submissions, Mrs. Chitra Sampath, learned Counsel appearing for the respondent/defendant contended that there was no proof as regards the nature of transaction as claimed to have emanated between the parties for the sale of the suit schedule property as pleaded before the learned single Judge, that the appellant did not explain in the plaint as to how he was put in possession, that a reading of the plaint averments vis-a-vis the evidence led before the learned single Judge, were conflicting with each other and that no such agreement as claimed to have been entered into on 17.3.1996, was ever produced by the appellant/plaintiff to support the plaint averments. The learned Counsel also brought to our notice the order passed by this Court on 4.7.2002 in C.M.P. No. 4293 of 2002 in O.S.A. No. 359 of 2001, wherein, the undertaking of the appellant that in the event of the appeal being dismissed, he would hand over the vacant possession, de-hors the First Appeal in A.S. No. 299 of 2000, which was also dismissed by the Division Bench of this Court on 3.7.2002 based on the said undertaking. The learned Counsel appearing for the respondent/defendant also referred to the evidence of the appellant/plaintiff as Prosecution Witness No. 2 in the Criminal Court in C.C. Nos. 4375 and 4376 of 1998 on the file of the Additional Chief Metropolitan Magistrate’s Court, Egmore, Chennai-8, wherein the appellant/plaintiff has deposed that the respondent gave an assurance that he would return the ransom received by him for securing employment to number of persons before March 1996. The learned Counsel appearing for the respondent contended that if in March 1996, the respondent had given such an undertaking, the claim of the appellant that an agreement for sale was entered in the said month by paying a sum of Rs. 15 lakhs to the respondent, can never be believed and having regard to such kind of evidence placed by the appellant/plaintiff before the learned single Judge, the learned single Judge was perfectly justified in dismissing the suit with costs.
10. In this appeal, the following issues arise for consideration:
(i) Whether the appellant/plaintiff is entitled for the relief of specific performance in pursuance of the agreement of sale, dated 17.3.1996, as set out in the plaint and the consequential prayer for permanent injunction and
(ii) To what relief, the plaintiff is entitled to?
11. Having heard the learned Counsel appearing for the respective parties, and on a detailed consideration of the pleadings, the documents as well as the oral evidence, we find that the appellant/plaintiff came forward with a specific case in the plaint that the agreement for sale for the suit schedule property was entered into on 17.3.1996 for a sale consideration of Rs. 30 lakhs and that a sum of Rs. 15 lakhs was paid on the same day towards part consideration. As rightly pointed out by the learned Counsel appearing for the respondent, even in the ’cause of action’ paragraph in the plaint, the appellant specifically pleaded that the agreement for sale was entered into on 17.3.1996. However, it is not in dispute that no such agreement was ever placed before the learned single Judge.
12. On a detailed consideration of the impugned judgment, we find that the learned single Judge has drawn the following conclusions based on the evidence placed before him:
(a) It is not the case of the plaintiff that any written agreement for sale was entered into between the parties.
(b) None of the witnesses on the side of the plaintiff stated that any sale agreement was entered into on 17.3.1996.
(c) While P.W. 1 would state that he received the information about the availability of the suit schedule property for sale on 1.1.1996 and that only thereafter, he negotiated with the respondent and settled the price at Rs. 30 lakhs and paid the first instalment of Rs. 5 lakhs on 7.1.1996, which version of P.W. 1 is also supported by the evidence of P.W. 2, according to PW. 3, the discussion regarding the purchase of the property was over by December 1995 itself.
(d) When it was claimed by the plaintiff that the sum of Rs. 15 lakhs was paid in three instalments of Rs. 5 lakhs each on 7.1.1996, 4.2.1996 and 17.3.1996, the same was not mentioned in the plaint.
(e) When it was the specific case of the plaintiff that separate receipts were issued for receipt of Rs. 5 lakhs each on 7.1.1996 and 4.2.1996, again, there is no reference about the said fact in the plaint.
(f) When the sale consideration was in a huge sum of Rs. 30 lakhs and the plaintiff parted with a substantial sum of Rs. 15 lakhs in three instalments of Rs. 5 lakhs each, there is no explanation as to why the terms of the transaction were not reduced into writing.
(g) In the light of the fact that P.Ws. 2 and 3 were known to the plaintiff (P.W. 1) for a long period, they were interested in the plaintiff and therefore, their evidence is not trustworthy.
(h) The evidence of P.Ws. 1 to 3 as regards the manner in which the plaintiff went to Tuticorin, is contradictory and therefore, their version cannot be relied upon.
(i) In Ex. P-1 receipt, nowhere it is stated that the same was executed at Tuticorin. Even in the plaint, it is not specifically stated that Ex. P-1 receipt was executed by the defendant at Tuticorin.
(j) When the plaintiff wanted to purchase the property worth Rs. 30 lakhs, it is unbelievable that he did not take any steps to enquire about the encumbrance over the suit property.
(k) The respondent took a conflicting stand that Ex. P-1 receipt was obtained under coercion and ill-treatment on 17.3.1996 and that the signature found in Ex. P-1 was a forged one. The plaintiff however cannot rely on the inconsistent stand taken by the defendant to prove his claim.
(l) While in Ex. P-1, it is claimed that the possession of the entirety of the suit property, namely 2533 sq. ft. was handed over to the plaintiff, in his oral evidence, he admitted that what was handed over was only 463 sq. ft.
(m) While the plaintiff claims that the entire built-up area was fully constructed, Ex. D-5, which is the report of the Advocate Commissioner, filed in the City Civil Court, Chennai, based on the visit made by him on 8.3.1998, discloses that the construction was incomplete, which falsifies the evidence of P.Ws. 1 to 3. Consequently, it was doubtful whether possession of any part of the building was handed over to the plaintiff.
(n) While the plaintiff claims that the sum of Rs. 15 lakhs was generated by him by mortgage of properties and by borrowings, no material was placed before the Court to support the said version. Therefore, it is difficult to accept that the plaintiff who had no funds of his own, could suddenly raise a loan of Rs. 15 lakhs within short time and paid the same to the defendant.
(o) The plaintiff himself was convicted under Section 420 IPC in C.C. No. 35 of 1994 on the file of the Judicial Magistrate’s Court, Padmanabhapuram, on 14.11.1995.
(p) Admittedly, the plaintiff knew the defendant through Sudha in the year 1994 itself, which was in connection with misrepresentation made by the defendant for securing jobs for number of persons and on which basis, he had collected a sum of Rs. 14.65 lakhs by cheating them, which resulted in a complaint preferred by Sudha as seen from C.C. No. 4375 of 1996. If that be so it was unbelievable that the plaintiff paid a sum of Rs 15 lakhs on 17.3.1996 to the defendant based on Ex. P-1 receipt.
13. When we examine the correctness of the above conclusions with reference to the oral and documentary evidence placed before the learned single Judge we find that everyone of the conclusions reached by the learned single Judge is supported by legal evidence and is therefore perfectly justified. In fact, in the plaint averments, the appellant/plaintiff has claimed that Ex. P-1 stamped receipt for receipt of Rs. 15 lakhs was executed by the respondent/defendant on 17.3.1996 and that he was put in possession of a portion of the suit schedule property. It is also claimed by the appellant/plaintiff that Ex. P-1 receipt was executed by the respondent/defendant at Tuticorin on 17.3.1996. In paragraph 8 of the plaint, the appellant/plaintiff would state that the respondent/defendant left Chennai by way of transfer to Tuticorin without any intimation to the appellant/plaintiff. It is also stated that it took some time for the appellant to find out the address of the respondent/defendant at Tuticorin. It is then slated that the Appellant called upon the respondent at Tuticorin and asked him to execute the sale deed on receipt of the balance sale consideration. If Ex. P-1 receipt itself was executed at Tuticorin on 17.3.1996 as claimed by the appellant/plaintiff, it is not known as to how there could have been any attempt at all by the appellant for payment of the balance sale consideration after tracing the respondent at Tuticorin. The said stand of the appellant in the plaint itself is self-contradictory in nature and thus falsifies the claim of the appellant/plaintiff as regards the nature of transaction said to have been entered into with the defendant.
14. That apart, Ex. D-4 is the deposition of Sudha in C.C. No. 4376 of 1998, wherein she has categorically stated that on 17.3.1996 she realised that the respondent has cheated her by not getting employment for various persons from whom monies were collected and paid to the respondent. The deposition of P.W. 1 (appellant/plaintiff) as deposed before the Criminal Court in C.C. Nos. 4375 and 4376 of 1998 is also part of Ex. D-4, wherein he has admitted that he along with Sudha met the respondent at Tuticorin and demanded for the return of the money which was paid to him by way of ransom for getting employment to different persons, which money was collected by P.W. 1 and paid to the respondent through Sudha. He has also stated therein that at that point of time, the respondent assured that he would get necessary appointment orders before March 1996 and if he fails to fulfil the said promise, he would return the money and that thereafter, the complaint was lodged by Sudha. P.W. 1 has also stated in his evidence before the Criminal Court that in April 1996, he realised that the respondent cheated him.
15. It is also stated in the evidence of P.W.1 before the Criminal Court that on 26.6.1994, he along with ore Pasuvaiah, went to the house of Sudha and handed over the sum of Rs. 2,15,000/- to the respondent by way of ransom for getting employment for the persons for whom applications were submitted. He also stated that in all, a sum of Rs. 14,65,000/- was paid by way of ransom to the respondent for getting employment for various persons which money was stated to have been collected from those persons who aspired for such employment.
16. A combined reading of the evidence of Sudha and P.W. 1 (appellant) as deposed in the Criminal Court discloses that the appellant knew the respondent in the year 1994 itself, that the respondent, under the guise of getting employment for various persons, collected the sum of Rs. 14,65,000/- from those persons through P.W. 1 and Sudha and that P.W. 1 and Sudha were convinced that the respondent cheated them by not fulfilling his promise of getting employment for those persons. Inspite of the said fact, the appellant in his evidence as P.W. 1 deposed before the learned single Judge that he had acquaintance with the respondent for the first time in January 1996 when he was introduced to him by P.W. 2 in connection with the sale of the suit schedule property. Therefore, it will have to be held that there is no truth in the claim of the appellant that an agreement for sale was entered into on 17.3.1996 for the suit schedule property. The said claim being untrue, the whole basis of the suit claim stands vitiated.
17. As rightly held by the learned single Judge, the evidence of P.Ws. 1 to 3 is prevaricating in all respects and it will be wholly unsafe to rely on the said evidence in order to grant the equitable relief of specific performance claimed by the appellant/plaintiff, in this context, it will be appropriate to refer to the following decisions:
(a) In 1937 The Madras Weekly Notes (i.e. MWN) 1158 Sirigineedi Subbarayadu v. Kopanathi Tatayya and Ors. a Division Bench of this Court has held as under in the penultimate paragraph of the judgment:
…The relief sought lies in the discretion of the court. The discretion of the court is not arbitrary but sound and reasonable, and must be guided by judicial principles. This is so declared by Section 22 of the Specific Relief Act. Now, in this case the appellant alleged that he tendered the full amount of the purchase consideration Rs. 6,000, within two months of the agreement having been entered into and he supported this allegation on oath in the witness box. The learned trial Judge refused to believe him and we consider that he was fully justified in so doing. A plaintiff who is capable of setting up a false case cannot expect a court of equity to grant him relief…. There are, therefore, two main reasons why specific performance should not be granted in this case. One is that the appellant has given false testimony in the witness box, and the other is that to grant him the relief which he asks for would be doing an injustice to the 4th respondent.
(b) In the decision S.V.R. Mudaliar (dead) by Legal Representatives and Ors. v. Rajabu F. Buhari (Mrs.) (dead) by Legal Representatives and Ors. the Supreme Court has held as under in paragraph 29:
29 …if the conduct of the respondents is also borne in mind, about which one could say that the same is tainted inasmuch as they departed from truth to bolster their case and went to the extent of not complying with the desire of the trial Judge in allowing aforesaid Kamal to be examined even as a court witness Such parties who play foul with equity cannot be allowed to use the shield of equity to protect them.
18. Moreover, in the light of our finding that, apart from Ex. P-1 receipt relied upon by the appellant there was no agreement placed before the Court to support the contractual terms said to have been reached on 17.3.1996 and the further fact that the various conclusions reached by the learned trial Judge disclose that there was no truth in the claim of the appellant that there was any such agreement for sale as claimed by him. In other words, it will have to be held that the appellant failed to establish the existence of any agreement for sale of the suit schedule property as between the appellant and the respondent in order to countenance his claim in the suit. Therefore, it will have to be necessarily held that Ex. P-1 receipt does not in any way advance the claim of the appellant as regards the so-called agreement for sale. Moreover, the respondent’s stand that Ex. P-1 receipt was not a true one has also been found to be true by the learned trial Judge with which finding we also fully concur.
19. In a case of specific performance of a contract, in the judgment repotted in Smt. Mayawanti v. Smt. Kaushalya Devi, the Supreme Court has held as under in paragraphs 8 and 11:
8. In a case of specific performance it is settled law, and indeed it cannot be doubted, that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. The Law of Contract is based op the ideal of freedom of contract and it provides the limiting principles within which the parties are free to make their own contracts. Where a valid and enforceable contract has not been made, the court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the court will be there even though the contract is otherwise valid and enforceable and it can pass a decree of specific performance even before there has been any breach of the contract, it is therefore necessary first to see whether there has been a valid and enforceable contract and then to see the nature and obligation arising out of it. The contract being the foundation of the obligation the order of specific performance is to enforce that obligation.
11. …It is settled law that if a contract is to be made, the intention of the offeree to accept the offer must be expressed without leaving room for doubt as to the fact of acceptance or to the coincidence of the terms of acceptance with those of the offer. The rule is that the acceptance must be absolute, and must correspond with the terms of the offer. If the two minds were not ad idem in respect of the property to be sold, there cannot be said to have been a contract for specific performance. If the parties themselves were not ad idem as to the subject matter of the contract the court cannot order specific performance….
20. Further, as pointed out by the learned Counsel for the respondent/defendant and as held by the learned single Judge, when it is specifically stated in the plaint that an agreement was entered into on 17.3.1996 for purchase of the suit schedule property for a sale consideration of Rs. 30 lakhs and P.W. 3 had admitted in his cross-examination in unequivocal terms that the sale agreement was entered into on 17.3.1996 and Ex. P-1 receipt is only a receipt and not an agreement, coupled with the other contradictions in the evidence of P.W. 1 vis-a-vis P.Ws. 2 and 3, the irresistible conclusion would be that there was no agreement at all as claimed by the appellant on 17.3.1996 and Ex. P-1 receipt is not a true document as claimed by the appellant, and therefore, the appellant/plaintiff was not entitled for the relief of specific performance.
21. Having regard to our above conclusions, we do not find any scope to interfere with the impugned judgment and decree of the learned single Judge in this appeal. The appeal fails and the same is dismissed with costs. C.M.P. No. 13141 of 2004 is closed. The issues are answered against the appellant/plaintiff.
22. While dismissing the appeal, we take note of the earlier order dated 4.7.2002 passed by a Division Bench of this Court in C.M.P No. 4293 of 2002 in O.S.A. No. 359 of 2001, wherein the appellant has given the following undertaking in the form of an affidavit, which was recorded in the said order:
I respectfully submit, that I will not carry out any alteration of the physical features of the 1st floor portion of the suit property which is the subject matter of O.S.A. No. 359 of 2001 without the permission of this Hon’ble Court.
I further undertake that in the event of the appeal being decided against me and the relief of specific performance is not granted in my favour I will delivery vacant possession of the 1st floor portion of the suit property which is in my possession to the respondent immediately.
23. Since we have found that the appellant has come forward with a false case and thereby abused the process of this Court, we are of the view that the appellant is not entitled for any further indulgence from this Court. Therefore, while dismissing the appeal and having regard to the undertaking of the appellant that he would vacate the portion of the suit schedule property which is in his possession, to the respondent immediately, we hereby direct the appellant/plaintiff to vacate and hand over the vacant possession of the said portion of the suit schedule property as undertaken by him, within one week from today.