BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 12/02/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.No.663 of 1992 and Cross Objection No.128 of 1993 A.S.No.663 of 1992 R.Balasubramaniam ... Appellant/Plaintiff Vs. K.S.D.Rajendran ... Respondent/Defendant
Prayer in A.S.No.663 of 1992
Appeal filed under Section 96 read with Order 41 Rule 1 of the Code of Civil Procedure,
against the judgment and decree dated 08.07.1992 in O.S.No.8 of 1990 on the file of the Subordinate Judge,
Ramanathapuram.
!For Appellant … Mr.K.Vellaichamy
^For Respondent … Mr.G.Sridharan for
Mr.T.M.Hariharan
Cross Objection No.128 of 1993
#K.S.D.Rajendran … Cross Objector/Respondent
Vs.
$R.Balasubramaniam … Respondent/Appellant
Prayer in Cross Objection No.128 of 1993
Cross Objection filed under Order XLI Rule 22 of the Code of Civil Procedure,
against the judgment and decree dated 08.07.1992 in O.S.No.8 of 1990 on the file of the Subordinate Judge,
Ramanathapuram.
!For Cross Objector ... Mr.G.Sridharan for Mr.T.M.Hariharan ^For Respondent ... Mr.K.Vellaichamy :COMMON JUDGMENT
A.S.No.663 of 1992 filed by the plaintiff and the Cross Objection No.128
of 1993 filed by the defendant, are focussed as against the judgment and decree
dated 08.07.1992 in O.S.No.8 of 1990 on the file of the Subordinate Judge,
Ramanathapuram.
2. The parties, for convenience sake, are referred to hereunder according
to their litigative status before the trial Court.
3. Broadly but briefly, precisely but narratively, the case of the
plaintiff as stood exposited from the records could be portrayed thus:
(i) The plaintiff and the defendant entered into an agreement to sell on
07.01.1983 whereby the latter agreed to sell in favour of the former an extent
of 70 cents of land at the rate of Rs.5.75 per sq. ft. The time stipulated was
six months. A sum of Rs.10,000/- was paid as advance under that agreement to
sell by the proposed purchaser to the owner of the land. As per the terms of
the contract, by the end of April, 1983, the plaintiff agreed to pay a sum of
Rs.50,000/- to the defendant as part of the remaining sale consideration. The
balance amount was agreed to be paid on or before 07.07.1983.
(ii) It so happened that there were no exchange of notices between them.
According to the plaintiff, even though he was ready and willing to perform his
part of the contract and that he had necessary financial wherewithal to pay the
remaining part of the sale consideration, nevertheless the defendant was not
willing to receive the remaining part of the sale consideration and come forward
to execute the sale deed. The plaintiff at the first instance, has chosen to
file the suit for injunction before the District Munsif, Paramakudi, so as to
restrain the defendant from selling the suit property to third parties.
Subsequently, the plaint was returned on point of pecuniary jurisdiction and the
endorsement made thereon, is extracted hereunder for ready reference:
“Endorsement under Order VII Rule 10 C.P.C.
In the Court of the District Munsif
Paramakudi O.S.175 of 1984
Date of presentation: 23.05.1984
Date of Return : 28.04.1989
Name of the parties
presenting it : R.Balasubramaniam
Brief reason for return: No pecuniary jurisdiction.”
(iii) However, it has to be noted here that no time was found specified
therein for representing if before the proper Court. It so happened that on
10.08.1989, it was represented before the Sub Court, Ramanathapuram, after
unilaterally amending the plaint as though it was one for mandatory injunction,
in addition to the prayer for permanent prohibitory injunction.
(iv) The Sub Court numbered it and during the pendency of the said case,
I.A.No.32 of 1991 was filed for amending the prayer so as to incorporate the
relief of specific performance and it was allowed, as against which Civil
Revision Petition was also filed before this Court in C.R.P.No.67 of 1997, which
was disposed of with the finding that the objections could be raised by the
defendant before the trial Court which was expected to decide it on merits.
4. Denying and refuting, challenging and impugning the
allegations/averments in the plaint, the defendant filed the refutatory written
statement; the gist and kernel of it could be set out thus:
The defendant had always been ready and willing to perform his part of the
contract, whereas the plaintiff had not come forward to pay a sum of Rs.50,000/-
by the end of April 1983 as contemplated in the suit agreement to sell, Ex.A.1.
Furthermore, on or before 07.07.1983, the date on which six months’ period
expired for performing the contract, the plaintiff had not come forward to pay
the remaining part of the sale consideration and get the sale deed executed by
the defendant. The plaintiff was not justified in simply representing the
plaint after unilaterally incorporating the prayer for mandatory injunction.
The suit was barred by limitation as within three years from 07.07.1983, the
suit ought to have been filed, but the said I.A for incorporating the prayer for
specific performance, was filed only on 28.01.1991. Accordingly, he prays for
the dismissal of the suit.
5. The trial Court framed the relevant issues.
6. During trial, P.W.1 was examined and Exs.A.1 to A.11 were marked on the
side of the plaintiff. D.W.1 and D.W.2 were examined and Exs.B.1 to B.6 were
marked on the side of the defendant.
7. Ultimately, the trial Court dismissed the suit by giving a specific
finding that the plaintiff was not ready and willing to perform his part of the
contract and that the suit was barred by limitation.
8. Being aggrieved by, the judgment and decree of the trial Court, the
plaintiff filed the appeal and the defendant also filed Cross Objection.
9. The grounds of appeal as found set out in the appeal filed by the
plaintiff, would run thus:
The trial Court committed error in not considering the evidence in proper
perspective, that the defendant was evading to receive the amount on the fond
hope that he could sell the property to third parties for better price. The
plaintiff was ready and willing to perform his part of the contract i.e, to pay
a sum of Rs.50,000/- on or before 30.04.1983. The Court below failed to
appreciate the fact that the plaintiff was under the compulsion to revisit
Malaysia within six months from the date of entry into India and hence, he went
back to Malaysia and returned. All these facts were not considered by the trial
Court. The plaintiff had enough financial wherewithal to pay the remaining part
of the sale consideration, but that was not considered by the trial Court.
Voluminous evidence was produced before the trial Court to prove that he was
having the capacity to pay the full sale consideration. The time was not the
essence of the contract which fact was not considered by the trial Court at all.
The trial Court failed to consider that the defendant entered into another
agreement to sell, Ex.B.1, with a third party relating to the same suit
property. Even though, the defendant alleged that one Siraimeetan informed the
defendant that the plaintiff was not ready and willing to perform his part of
the contract the said Siraimeetan was not examined. Accordingly, he prayed for
setting aside the judgment and decree of the trial Court and for decreeing the
original suit.
10. Whereas the grounds of Cross Objection, would run thus:
The trial Court failed to apply Article 54 of the Limitation Act which
contemplates three years’ period for filing a suit for specific performance.
But, here the plaintiff failed to file the said suit for specific performance
within the time stipulated ie., within a period of three years calculating from
07.07.1983, the date on which six months’ period expired as per the agreement to
sell.
11. The points for consideration in these matters would run thus:
(i) Whether the plaintiff was always ready and willing to perform his part
of the contract?
(ii) Whether the suit was barred by limitation or not?
(iii) Whether there is any infirmity in the judgment and decree of the
trial Court?
12. Heard both sides.
Point No:(i)
13. The learned Counsel for the plaintiff would draw the attention of this
Court to the last few lines of the written statement and develop his argument to
the effect that the defendant unambiguously expressed his mind that he never
intended to accept the remaining part of the sale consideration and execute the
sale deed, because he clearly and categorically stated that in geometrical
proportion, the value of the suit land got increased over and above what is
contemplated under Ex.A.1; the preponderance of probabilities would govern the
adjudication in civil cases and if accordingly viewed, it is crystal clear that
it was the defendant who never had the bent of mind to fulfil the contract.
14. Whereas the learned Counsel for the defendant would try to torpedo
such an argument by pointing out that had the plaintiff intended to get the sale
deed executed after paying the remaining part of the sale consideration, he
would not have filed a suit for bare injunction before the Court which had no
pecuniary jurisdiction to entertain it. Furthermore, he also never sent any
pre-suit notice expressing his desire to pay the remaining part of the sale
consideration, in addition to having failed to pay a sum of Rs.50,000/- on or
before 30.04.1983.
15. It is a trite proposition of law that the witnesses might lie, but not
the circumstances.
16. Indubitably and indisputably, there were no exchanges of notices
between the parties. Each one tries to raise his accusative finger as against
the other for non-issuance of the notice. On the other hand, the plaintiff
would find fault with the defendant that because of his guilty conscience alone,
he had not chosen to issue notice, whereas the defendant would state that the
plaintiff was not ready and willing to perform his part of the contract and that
was why he did not issue any pre-suit notice. In matter of this nature, the
issuance of the pre-suit notice is not sine quo non for filing suit.
17. In this factual matrix, I am of the considered opinion that non-
issuance of the notice by either of the parties need not be taken seriously.
18. No doubt, in order to understand the intention behind such non-
issuance of notice, both sides would furnish various reasons. The plaintiff on
sensing that the defendant was trying his level best to sell his property to the
third parties, could have very well approached the Court with a suit for
specific performance along with an I.A expressing that whenever the Court might
order him to deposit the remaining part of the sale consideration, he would
comply with it. Instead of that, the plaintiff had chosen to file the suit for
bare injunction which goes against the plaintiff’s case that he was always ready
and willing to perform his part of the contract. The trial Court after
analysing the oral evidence on both sides got convinced that there was nothing
on record to demonstrate that the plaintiff had made incessant demands to the
defendant to come forward to receive the amount and execute the sale deed.
19. At this juncture, it is just and necessary to recollect the principles
relating to onus probandi. The onus of proof is on the plaintiff to prove his
case. It has to be seen, whether he discharged his burden of proof. Except his
oral testimony, there is no other evidence or circumstance highlighted by him
that he was ready and willing to perform his part of the contract and that the
defendant alone was dragging of the matter or indulging in dilatory tactics.
20. The learned Counsel for the plaintiff placing reliance on Exs.A.2 to
A.7, the documents in his favour viz., title deeds, tax receipts for his home
and also passbook, would develop his argument that the plaintiff was a man of
means and he had the financial wherewithal to raise money and perform his part
of the contract and not that he was living in penury and suffering from
impecunious circumstances.
21. No doubt, voluminous documents marked on the side of the plaintiff
would portray that he was a man having sufficient means. But, the question
arises as to whether he tendered or made any outward manifestation that he was
ready and willing to pay the sale consideration, and that evidence is lacking.
As such, in view of the above discussion, the judgment and decree of the trial
Court based on oral and documentary evidence, requires no interference.
22. At the time of representing the plaint, he has chosen to pray for
mandatory injunction directing the other side to perform his part of the
contract and not for seeking specific performance. Once again, this factor
could be taken as an adverse one against the plaintiff’s case.
23. Accordingly, Point No.(i) is decided to the effect that the plaintiff
has not proved that he had been ready and willing to perform his part of the
contract.
Point No:(ii)
24. The learned Counsel for the defendant cited the decision in Tarlok
Singh v. Vijay Kumar Sabharwal reported in 1996(I) CTC 738. An excerpt from it,
would run thus:
“4. Shri Prem Malhotra, learned Counsel for the respondent, contended that
since the respondent had refused performance the suit must be deemed to have
been filed on December 23, 1987 and, therefore, when the amendment was allowed,
it would relate back to the date of filing the suit which was filed within three
years from the date of the refusal. Accordingly, the suit is not barred by
limitation. Shri U.R.Lalit, learned Senior Counsel for the appellant, contended
that in view of the liberty given by the High Court the appellant is entitled to
raise the plea of limitation. The suit filed after expiry of 3 years from 1986
is barred by limitation. The question is as to when the limitation began to
run? In view of the admitted position that the contract was to be performed
within 15 days after the injunction was vacated, the limitation began to run on
April 6, 1986. In view of the position that the suit for perpetual injunction
was converted into one for specific performance by order dated August 25, 1989,
the suit must be deemed to have been instituted on August 25, 1989 and the suit
was clearly barred by limitation. We find force in the stand of the appellant.
We think that parties had, by agreement, determined that date for performance of
the contract. Thereby limitation began to run from April 6, 1986.. Suit merely
for injunction laid on December 23, 1987 would not be of any avail nor the
limitation began to run from that date. Suit for perpetual injunction is
different from suit for specific performance. The suit for specific performance
in fact was claimed by way of amendment application filed under Order 6, Rule
17, CPC on September 12, 1979. It will operate only on the application being
ordered. Since the amendment was ordered on August 25, 1989 the crucial date
would be the date on which the amendment was ordered by which date, admittedly,
the suit is barred by limitation. The Courts below, therefore, were not right
in decreeing the suit.”
25. A mere perusal of the aforesaid decision including the above excerpt,
would clearly demonstrate that a suit for injunction is different from a suit
for specific performance. The above delineation of facts would categorically
evince that the suit for injunction was filed as early as on 28.04.1989 and
there was a period of lull intervened and thereafter, it was represented only on
10.08.1989 by incorporating the additional prayer for mandatory injunction.
However, actually the I.A. for incorporating the prayer for specific performance
was filed on 11.01.1991. As such, it could only be taken that the suit for
specific performance was filed on 11.01.1991, so to say, more than seven years
after 07.07.1983.
26. Article 54 of the Limitation Act is extracted hereunder for ready
reference:
Description of suit
Period of limitation
Time from which period begins to run
54
For Specific Performance of a contract.
Three years
The date fixed for the performance, or, if no such date is fixed, when the
plaintiff has notice that performance is refused.
27. The aforesaid provision would clearly contemplate that the suit could
be filed within three years from the date of the arisal of the cause of action.
As such, ex facie and prima facie, it is evident that the suit for injunction
presented on 23.05.1984, would not in any enure to the benefit of the plaintiff
to save the limitation period relating to the filing of the suit for specific
performance.
28. The learned Counsel for the plaintiff would argue that while
representing the plaint, the prayer for mandatory injunction was incorporated
and it would virtually tantamount to a prayer for specific performance only.
Even assuming but without countenancing, it was so, it was represented only on
10.08.1989 which was long after the expiry of three years from 07.07.1983.
29. The learned Counsel for the plaintiff would submit that the cause of
action cannot be taken as the one arisen with effect from 07.07.1983 only,
because there was continuous and incessant requests made by the plaintiff to the
defendant for performing his part of the contract and in such a case, the cause
of action shall be deemed to have arisen from day to day that date and it cannot
be assumed or presumed that the cause of action got barred by limitation.
30. Such an argument cannot be countenanced, because limitation period
contemplated under the Limitation Act will start running and get expired by the
time stipulated in the relevant Article under the Limitation Act,
notwithstanding any alleged demands made incessantly day after day ever since
the arisal of the cause of action. I could refer to the actual words used under
Article 54 of the Act. Article 54 of the Act would contemplate that the date
fixed for the performance of the contract, should be taken as the date of
commencing of limitation period so to say, starting point of the limitation.
Here, according to the plaintiff’s case, even before filing the suit for
injunction, the defendant had been postponing with the intention to sell the
suit property to third parties. In such a case, it is explicit and clear that
the plaintiff was having knowledge of the fact of refusal to perform the
contract by the defendant. Accordingly, if viewed, it is obvious that the I.A
for incorporating the prayer for specific performance was filed on 11.01.1991 so
to say, more than seven years after the arisal of the cause of action. As such,
in this view of the matter, it has to be held that the suit was miserably barred
by limitation, which fact was not considered by the trial Court in proper
perspective.
31. The trial Court thought fit that the suit filed for permanent
injunction before the District Munsif, Paramakudi, would enure to the benefit of
the plaintiff for saving the limitation period which is not correct in view of
the reasons set out supra.
32. Hence, the point No.(ii) is decided in favour of the defendant that
the suit was barred by limitation.
Point No:(iii)
33. In view of the findings above, it is held that appeal filed by the
plaintiff has to be dismissed and Cross Objection filed by the defendant has to
be allowed.
34. In the result, A.S.No.663 of 1992 is dismissed and Cross Objection
No.128 of 1993 is allowed and the judgment and decree of the trial Court in
dismissing the original suit, are confirmed with the modification in the
findings as set out supra.
35. The learned Counsel for the plaintiff made an extempore submission
that in this case, a sum of Rs.10,000/- was paid by the plaintiff to the
defendant as advance and that could be ordered to be returned to the plaintiff.
Whereas the learned Counsel for the defendant by drawing the attention to the
relevant clause in the agreement to sell, Ex.A.1, submit that as per the
forfeiture clause, the plaintiff got forfeited the said sum in favour of the
defendant.
36. I am of the considered opinion that without being too technical and
not to pout too fine a point on it, the defendant could very well return the
advance amount of Rs.10,000/- (Rupees Ten Thousand only) without interest within
a period of two months from the date of receipt of a copy of this order, failing
which it shall carry the interest at the rate of 6% from the date of such
default. However, the parties shall bear their respective costs throughout.
rsb
To
The Subordinate Judge, Ramanathapuram.