In the High Court of Judicature at Madras Dated: 15.4.2008 Coram: The Honourable Mr.Justice M.JAICHANDREN S.A.No.824 of 1996 Rangan .. Appellant vs. Ramalingam Pillai .. Respondent The Second Appeal has been filed against the judgment and decree, dated 31.1.1995, of the Sub Court, Villupuram in A.S.No.110 of 1994, reversing the judgment and decree, dated 20.1.1990, of the Additional District Munsif, Kallakurichi, in O.S.No.539 of 1984. For Appellant : Mr.K.Kannan For Respondent : Mr.V.Raghavachari J U D G E M E N T
This Second Appeal has been filed against the judgment and decree, dated 31.1.1995, made in A.S.No.110 of 1994, on the file of the Sub Court, Villupuram, reversing the judgment and decree, dated 20.1.1990, made in O.S.No.539 of 1984, on the file of the Additional District Munsif, Kallakurichi.
2. For the sake of convenience, the parties are referred to as they have been arrayed in the original suit O.S.No.539 of 1984.
3. The plaintiff in the suit is the appellant in the second appeal. The plaintiff had filed the suit praying for the relief of specific performance with regard to the suit property.
4. It is the case of the plaintiff that the suit properties belonged to the defendant. The defendant had executed a written agreement, dated 27.9.1980, to sell the suit properties to the plaintiff and the said agreement had been registered. It was agreed between the plaintiff and the defendant that the defendant would sell his properties to the plaintiff for the sale consideration of Rs.9,000/-. The defendant having received the amount from the plaintiff on various occasions, had put the plaintiff in possession of the suit property. The plaintiff had also paid the kist and the patta pass book had also been given to the plaintiff. The total advance amount paid by the plaintiff is Rs.3,450/-.
5. It is the further case of the plaintiff that the plaintiff had undertaken to discharge a sum of Rs.2,000/- to Pukravari Society. The defendant had received a further sum of Rs.50/- on 27.9.1980, the date of the agreement and he had agreed to receive the balance amount of Rs.3,500/- on the date of the registration. It was agreed that the plaintiff should get the sale deed registered between 27.9.1980 and 25.9.1981. Since the defendant did not respond to the requests made by the plaintiff to register the sale deed, the plaintiff had issued a notice to the defendant, on 25.9.1981, which the defendant had refused to receive.
6. It is the further case of the plaintiff that the plaintiff has been ready and willing to pay the balance amount of Rs.3,500/- to the defendant and to get the sale deed registered at his cost. The period of limitation for specific performance was 3 years from 25.9.1981, under Article 54 of The Limitation Act. Thus, the suit is well within time. In such circumstances, the suit had been filed by the plaintiff praying for the relief of specific performance as stated therein.
7. In the written statement filed by the defendant, the claims made by the plaintiff had been denied. The defendant had stated that the agreement executed by the defendant in favour of the plaintiff had been obtained under duress and coercion. In fact, the defendant had originally executed an agreement, dated 15.7.1978. Since the plaintiff had not fulfilled the conditions stipulated in the said agreement, the defendant had demanded, by a notice, dated 16.8.1980, damages from the plaintiff, using his influence and power. The plaintiff had forcibly and fraudulently compelled the defendant, when he was ill, to execute the present agreement, dated 27.9.1980. In spite of the defendant issuing a registered notice to the plaintiff, on 2.10.1980, through his counsel and also a further notice having been issued by the defendant, on 20.11.1980, the plaintiff had remained silent.
8. The defendant had also denied receiving the advance amounts as alleged by the plaintiff. Further, the alleged sale price of Rs.9,000/- was also denied by the defendant. The defendant had further stated that the possession of the suit property had not been given to the plaintiff as claimed by him.
9. It has also been stated that the suit filed by the plaintiff is barred by limitation. It was further stated that the plaintiff had executed a release deed on stamped papers, expressing his inability to fulfill the conditions. As such, the defendant had continued to remain in possession of the suit properties. The plaintiff had also made an agreement on stamped papers, dated 21.12.1980, stating that the agreement stands cancelled. Even though the defendant had issued notices to the plaintiff, on 4.10.1981 and 19.10.1981, no reply had been received from the plaintiff.
10. The defendant had also denied the claim of the plaintiff that he had issued, a notice, dated 25.9.1981. The defendant had stated that the suit is frivolous in nature and it has to be dismissed with costs.
11. Based on the pleadings of the parties, the trial Court had framed the following issues for consideration:-
” 1. Whether the suit filed by the plaintiff is sustainable in law?
2. Whether the sale agreement filed by the plaintiff is valid?
(iii) Whether the plaintiff is in enjoyment of the suit property?
(iv) Whether the plaintiff is entitled to the relief as prayed for by him?”
12. The additional issue framed by the trial Court is whether the plaintiff was ready and willing to pay the sale consideration in accordance with the sale agreement? Whether the defendant had not come forward to fulfill the agreement?
13. The trial Court had found that the sale agreement entered into between the plaintiff and the defendant, dated 27.9.1980, marked as Exhibit A.1 is true, since the defendant had accepted the execution of the said agreement. P.W.2, examined on behalf of the plaintiff, was a witness to the sale agreement. In his evidence, he had stated that the defendant had executed the sale agreement willingly. It has also been stated that the sale consideration had been paid in installments and the plaintiff had also agreed to discharge the loan of Rs.2,000/- due to the society.
14. The trial Court had found, from the letters written by the plaintiff to the defendant that the defendant had offered to sell the suit properties to the plaintiff, in spite of the fact that the plaintiff was not ready to purchase the same as he did not have the money. The plaintiff and the defendant had entered into a sale agreement, on 15.7.1978. Subsequently, the sale agreement, dated 27.9.1980, had been entered into between the plaintiff and the defendant. In the said agreement, dated 15.7.1978 marked as Exhibit B.1 the sale consideration of Rs.9,000/- mentioned in the agreement had been corrected as Rs.19,000/-. Thereafter, the defendant had been asking the plaintiff to pay the amount of Rs.19,000/-. From the documents marked before the trial Court, it was found that it could not be proved that the suit properties were in the enjoyment of the defendant.
15. The trial Court had found that the Exhibits B.1 to B.52 marked by the defendant do not show that the sale agreement, dated 27.9.1980, marked as Exhibit A.1., is invalid.
16. It was also found by the trial Court that the suit properties were in the possession and enjoyment of the plaintiff, based on Exhibits A.4 and A.5 marked on behalf of the plaintiffs.
17. From the evidence available, the trial Court had come to the conclusion that the defendant was not ready and willing to execute the sale deed with regard to the suit properties, either in accordance with the sale agreement, dated 15.7.1978 or in accordance with the sale agreement, dated 27.9.1980, in spite of the fact that the plaintiff had been ready and willing to pay the sale consideration to the defendant and to discharge the liability as agreed in the sale agreement, dated 27.9.1980, marked as Exhibit A.1.
18. Based on such findings, the trial Court had decreed the suit as prayed for by the plaintiff, by its judgment and decree, dated 20.1.1990, made in O.S.No.539 of 1984.
19. Aggrieved by the judgment and decree of the trial Court, dated 20.1.1990, made in O.S.No.539 of 1984, the defendant had filed an appeal in A.S.No.110 of 1994, on the file of the Sub Court, Villupuram.
20. The first appellate Court had framed the following point for consideration:-
“(i) Whether the sale agreement marked as Exhibit A.1 is true? Whether the plaintiff had been ready and willing to act in accordance with the said agreement?”
21. The first appellate Court had come to the conclusion, based on the Exhibits B.18 and B.21, marked by the defendant that Exhibit A.1 sale agreement cannot be true. The first appellate Court had found that the documents, B.53 to B.55, sought to be marked by the defendant were relevant for deciding the case and therefore, the said documents were allowed to be marked in accordance with Order 41 Rule 27 of Civil Procedure Code, 1908.
22. The first appellate Court had also found that the fact that the suit properties belonged to the defendant was not in dispute. It was also found that the sale agreement marked as Exhibit A.1 has been entered into between the plaintiff and the defendant. However, from Exhibits B.1, B.24, B.31 and the additional document filed as Exhibit B.55, it was found that Exhibit A.1 is not true and that it was obtained by fraud. It was also found, relying on Exhibits B.18, B.21 and B.24, that the sale agreement Exhibit A.1 stood cancelled.
23. Thus, the first appellate Court, had set aside the judgment and decree of the trial Court, dated 20.1.1990, made in O.S.No.539 of 1984, by allowing the first appeal in A.S.No.110 of 1994, by its judgment and decree, dated 31.1.1995.
24. Aggrieved by the judgment and decree of the first appellate Court, dated 31.1.1995, made in A.S.No.110 of 1994, the present second appeal has been filed by the plaintiff.
25. The second appeal had been admitted on the following substantial questions of law:
“1. Whether the lower appellate Court did not err in coming to the conclusion that Exhibit A.1 was obtained by fraud and coercion, when the defendant had not discharged the burden of proof cast on him?
2. Whether the lower appellate Court did not err in placing reliance on Exhibits B.18, B.21 and B.24 to conclude that the agreement Exhibit A.1 was cancelled, when in fact, the exhibits were fabricated and self-serving documents brought about subsequent to trial?”
26. The main contention raised by the learned counsel appearing for the appellant/plaintiff is that the plea of coercion raised by the respondent/defendant to claim that the sale agreement, dated 27.9.1980, is invalid has to be proved by the respondent/defendant. Though the respondent/defendant had prayed for permission to file the additional documents as evidence in his favour, he had not chosen to do so. However, the documents had been filed and marked during the pendency of the first appeal. Relying on the said documents, the first appellate Court had come to the conclusion that the sale agreement, dated 27.9.1980, is not true and that it is invalid. There is no acceptable explanation given by the respondent/defendant for non filing of the documents before the trial Court. In such circumstances, adverse inference ought to have been drawn against the respondent/defendant. The requirements prescribed in Order 41 Rule 27 of the Civil Procedure Code, 1908, have not been complied with while marking the Exhibits B.53, B.54 and B.55 at the stage of the first appeal.
27. On the other hand, the main contention of the learned counsel appearing for the respondent/defendant is that the appellant/plaintiff has not been ready and willing to execute the sale deed by complying with the conditions stipulated in the sale agreement, dated 27.9.1980.
28. The learned counsel appearing for the respondent/defendant had relied on the decision of the Supreme Court in SITA RAM & OTHERS Vs. RADHEY SHYAM (2007-4-L.W.889), wherein, it has been held that any person seeking benefit of the specific performance of a contract must manifest that his conduct has been blemishless throughout. Further, it was also contended that the existing debts had not been cleared by the plaintiff as stipulated in the sale agreement, dated 27.9.1980.
29. It was also contended that the agreement in question had been executed, on 27.9.1980 and it was cancelled, on 3.11.1980. The cause of action having arising on the said date on 3.11.1980, the time prescribed by Article 54 of the Limitation Act is 3 years from the said date. Since the suit had been filed only on 24.11.1984 beyond the prescribed time, the suit is bad in law. Since the debts, as noted in the said sale agreement, dated 27.9.1980, had not been discharged by the appellant/plaintiff, it is the respondent/defendant who has paid the amounts and obtained the receipts marked as Exhibit B.31.
30. Based on the contentions raised by the learned counsels appearing for the parties concerned and in view of the evidence available and on a perusal of the records available before this Court, it is clear that the appellant/plaintiff had not fulfilled the conditions stipulated in the sale agreement, dated 27.9.1980. The documents marked as Exhibits in favour of the respondent/defendant would show that the appellant/plaintiff had coerced the respondent/defendant into executing the sale agreement, dated 27.9.1980, as held by the first appellate Court.
31. On appreciation of the documents marked before the first appellate Court by the respondent/defendant, the first appellate Court had come to the conclusion that the sale agreement, dated 27.9.1980, marked as Exhibit A.1, is not true and that it is invalid. Even though it was open to the appellant/plaintiff to have resisted marking of the documents before the first appellate Court and to agitate the matter thereafter in the manner known to law, he did not do so, as seen from the records.
32. In such circumstances, it is not open to the appellant/plaintiff to contend that such documents ought not to have been marked at the stage of the first appeal. Hence, this Court is of the considered view that the appellant/plaintiff has not shown sufficient cause or reason to interfere with the judgment and decree of the first appellate Court, dated 31.1.1995 made in A.S.No.110 of 1994. Accordingly, the second appeal stands dismissed. Consequently, connected C.M.P.No.5981 of 1998 is dismissed. No costs.
lan
To:
1. The Sub Court, Villupuram
2. The Additional District Munsif,
Kallakurichi