{"id":22613,"date":"2008-02-12T00:00:00","date_gmt":"2008-02-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/r-balasubramaniam-vs-k-s-d-rajendran-on-12-february-2008"},"modified":"2018-03-08T16:40:22","modified_gmt":"2018-03-08T11:10:22","slug":"r-balasubramaniam-vs-k-s-d-rajendran-on-12-february-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/r-balasubramaniam-vs-k-s-d-rajendran-on-12-february-2008","title":{"rendered":"R.Balasubramaniam vs K.S.D.Rajendran on 12 February, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
R.Balasubramaniam vs K.S.D.Rajendran on 12 February, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED : 12\/02\/2008\n\nCORAM\nTHE HONOURABLE MR.JUSTICE G.RAJASURIA\n\nA.S.No.663 of 1992\nand\nCross Objection No.128 of 1993\n\n\nA.S.No.663 of 1992\n\n\nR.Balasubramaniam\t\t\t... Appellant\/Plaintiff\n\nVs.\n\nK.S.D.Rajendran\t\t\t... Respondent\/Defendant<\/pre>\n
Prayer in A.S.No.663 of 1992<\/p>\n
Appeal filed under Section 96 read with Order 41 Rule 1 of the  Code of Civil Procedure,
\nagainst the judgment and decree dated 08.07.1992 in O.S.No.8 of 1990 on the file of the Subordinate Judge,
\nRamanathapuram.\n<\/p>\n
!For Appellant \t\t… Mr.K.Vellaichamy<\/p>\n
^For Respondent\t\t… Mr.G.Sridharan for
\n\t\t\t    Mr.T.M.Hariharan<\/p>\n
Cross Objection No.128 of 1993<\/p>\n
#K.S.D.Rajendran\t\t\t… Cross Objector\/Respondent<\/p>\n
Vs.\n<\/p>\n
$R.Balasubramaniam\t\t\t… Respondent\/Appellant<\/p>\n
Prayer in Cross Objection No.128 of 1993<\/p>\n
Cross Objection filed under Order XLI Rule 22 of the  Code of Civil Procedure,
\nagainst the judgment and decree dated 08.07.1992 in O.S.No.8 of 1990 on the file of the Subordinate Judge,
\nRamanathapuram.<\/p>\n
\n\n!For Cross Objector \t\t... Mr.G.Sridharan for\n\t\t\t\t     Mr.T.M.Hariharan\t\n\n^For Respondent\t \t\t... Mr.K.Vellaichamy\n\n\n\n:COMMON JUDGMENT\n\n<\/pre>\n
\tA.S.No.663 of 1992 filed by the plaintiff and the Cross Objection No.128
\nof 1993 filed by the defendant, are focussed as against the judgment and decree
\ndated 08.07.1992 in O.S.No.8 of 1990 on the file of the Subordinate Judge,
\nRamanathapuram.\n<\/p>\n
\t2. The parties, for convenience sake, are referred to hereunder according
\nto their litigative status before the trial Court.\n<\/p>\n
\t3. Broadly but briefly, precisely but narratively, the case of the
\nplaintiff as stood exposited from the records could be portrayed thus:\n<\/p>\n
\t(i) The plaintiff and the defendant entered into an agreement to sell on
\n07.01.1983 whereby the latter agreed to sell in favour of the former an extent
\nof 70 cents of land at the rate of Rs.5.75 per sq. ft.  The time stipulated was
\nsix months.  A sum of Rs.10,000\/- was paid as advance under that agreement to
\nsell by the proposed purchaser to the owner of the land.  As per the terms of
\nthe contract, by the end of April, 1983, the plaintiff agreed to pay a sum of
\nRs.50,000\/- to the defendant as part of the remaining sale consideration.  The
\nbalance amount was agreed to be paid on or before 07.07.1983.\n<\/p>\n
\t(ii) It so happened that there were no exchange of notices between them.
\nAccording to the plaintiff, even though he was ready and willing to perform his
\npart of the contract and that he had necessary financial wherewithal to pay the
\nremaining part of the sale consideration, nevertheless the defendant was not
\nwilling to receive the remaining part of the sale consideration and come forward
\nto execute the sale deed.  The plaintiff at the first instance, has chosen to
\nfile the suit for injunction before the District Munsif, Paramakudi, so as to
\nrestrain the defendant from selling the suit property to third parties.
\nSubsequently, the plaint was returned on point of pecuniary jurisdiction and the
\nendorsement made thereon, is extracted hereunder for ready reference:
\n\t“Endorsement under Order VII Rule 10 C.P.C.\n<\/p>\n
\tIn the Court of the District Munsif
\n\t\tParamakudi O.S.175 of 1984<\/p>\n
Date of presentation: 23.05.1984
\nDate of Return\t: 28.04.1989
\nName of the parties
\npresenting it\t\t: R.Balasubramaniam
\nBrief reason for return: No pecuniary jurisdiction.”\n<\/p>\n
\t(iii) However, it has to be noted here that no  time was found specified
\ntherein for representing if before the proper Court.  It so happened that on
\n10.08.1989, it was represented before the Sub Court, Ramanathapuram, after
\nunilaterally amending the plaint as though it was one for mandatory injunction,
\nin addition to the prayer for permanent prohibitory injunction.\n<\/p>\n
\t(iv) The Sub Court numbered it and during the pendency of the said case,
\nI.A.No.32 of 1991 was filed for amending the prayer so as to incorporate the
\nrelief of specific performance and it was allowed, as against which Civil
\nRevision Petition was also filed before this Court in C.R.P.No.67 of 1997, which
\nwas disposed of with the finding that the objections could be raised by the
\ndefendant before the trial Court which was expected to decide it on merits.\n<\/p>\n
\t4. Denying and refuting, challenging and impugning the
\nallegations\/averments in the plaint, the defendant filed the refutatory written
\nstatement; the gist and kernel of it could be set out thus:
\n\tThe defendant had always been ready and willing to perform his part of the
\ncontract, whereas the plaintiff had not come forward to pay a sum of Rs.50,000\/-
\nby the end of April 1983 as contemplated in the suit agreement to sell, Ex.A.1.
\nFurthermore, on or before 07.07.1983, the date on which six months’ period
\nexpired for performing the contract, the plaintiff had not come forward to pay
\nthe remaining part of the sale consideration and get the sale deed executed by
\nthe defendant.  The plaintiff was not justified in simply representing the
\nplaint after unilaterally incorporating the prayer for mandatory injunction.
\nThe suit was barred by limitation as within three years from 07.07.1983, the
\nsuit ought to have been filed, but the said I.A for incorporating the prayer for
\nspecific performance, was filed only on 28.01.1991.  Accordingly, he prays for
\nthe dismissal of the suit.\n<\/p>\n
\t5. The trial Court framed the relevant issues.\n<\/p>\n
\t6. During trial, P.W.1 was examined and Exs.A.1 to A.11 were marked on the
\nside of the plaintiff.  D.W.1 and D.W.2 were examined and Exs.B.1 to B.6 were
\nmarked on the side of the defendant.\n<\/p>\n
\t7. Ultimately, the trial Court dismissed the suit by giving a specific
\nfinding that the plaintiff was not ready and willing to perform his part of the
\ncontract and that the suit was barred by limitation.\n<\/p>\n
\t8. Being aggrieved by, the judgment and decree of the trial Court, the
\nplaintiff filed the appeal and the defendant also filed Cross Objection.\n<\/p>\n
\t9. The grounds of appeal as found set out in the appeal filed by the
\nplaintiff, would run thus:\n<\/p>\n
\tThe trial Court committed error in not considering the evidence in proper
\nperspective, that the defendant was evading to receive the amount on the fond
\nhope that he could sell the property to third parties for better price. The
\nplaintiff was ready and willing to perform his part of the contract i.e, to pay
\na sum of Rs.50,000\/- on or before 30.04.1983.  The Court below failed to
\nappreciate the fact that the plaintiff was under the compulsion to revisit
\nMalaysia within six months from the date of entry into India and hence, he went
\nback to Malaysia and returned.  All these facts were not considered by the trial
\nCourt.  The plaintiff had enough financial wherewithal to pay the remaining part
\nof the sale consideration, but that was not considered by the trial Court.
\nVoluminous evidence was produced before the trial Court to prove that he was
\nhaving the capacity to pay the full sale consideration.  The time was not the
\nessence of the contract which fact was not considered by the trial Court at all.
\nThe trial Court failed to consider that the defendant entered into another
\nagreement to sell, Ex.B.1, with a third party relating to the same suit
\nproperty. Even though, the defendant alleged that one Siraimeetan informed the
\ndefendant that the plaintiff was not ready and willing to perform his part of
\nthe contract the said Siraimeetan was not examined.  Accordingly, he prayed for
\nsetting aside the judgment and decree of the trial Court and for decreeing the
\noriginal suit.\n<\/p>\n
\t10. Whereas the grounds of Cross Objection, would run thus:\n<\/p>\n
\tThe trial Court failed to apply Article 54 of the Limitation Act which
\ncontemplates three years’ period for filing a suit for specific performance.
\nBut, here the plaintiff failed to file the said suit for specific performance
\nwithin the time stipulated ie., within a period of three years calculating from
\n07.07.1983, the date on which six months’ period expired as per the agreement to
\nsell.\n<\/p>\n
\t11. The points for consideration in these matters would run thus:\n<\/p>\n
\t(i) Whether the plaintiff was always ready and willing to perform his part
\nof the contract?\n<\/p>\n
\t(ii) Whether the suit was barred by limitation or not?\n<\/p>\n
\t(iii) Whether there is any infirmity in the judgment and decree of the
\ntrial Court?\n<\/p>\n
\t12. Heard both sides.\n<\/p>\n
Point No:(i)<\/p>\n
\t13. The learned Counsel for the plaintiff would draw the attention of this
\nCourt to the last few lines of the written statement and develop his argument to
\nthe effect that the defendant unambiguously expressed his mind that he never
\nintended to accept the remaining part of the sale consideration and execute the
\nsale deed, because he clearly and categorically stated that in geometrical
\nproportion, the value of the suit land got increased over and above what is
\ncontemplated under Ex.A.1; the preponderance of probabilities would govern the
\nadjudication in civil cases and if accordingly viewed, it is crystal clear that
\nit was the defendant who never had the bent of mind to fulfil the contract.\n<\/p>\n
\t14. Whereas the learned Counsel for the defendant would try to torpedo
\nsuch an argument by pointing out that had the plaintiff intended to get the sale
\ndeed executed after paying the remaining part of the sale consideration, he
\nwould not have filed a suit for bare injunction before the Court which had no
\npecuniary jurisdiction to entertain it.  Furthermore, he also never sent any
\npre-suit notice expressing his desire to pay the remaining part of the sale
\nconsideration, in addition to having failed to pay a sum of Rs.50,000\/- on or
\nbefore 30.04.1983.\n<\/p>\n
\t15. It is a trite proposition of law that the witnesses might lie, but not
\nthe circumstances.\n<\/p>\n
\t16. Indubitably and indisputably, there were no exchanges of notices
\nbetween the parties.  Each one tries to raise his accusative finger as against
\nthe other for non-issuance of the notice.  On the other hand, the plaintiff
\nwould find fault with the defendant that because of his guilty conscience alone,
\nhe had not chosen to issue notice, whereas the defendant would state that the
\nplaintiff was not ready and willing to perform his part of the contract and that
\nwas why he did not issue any pre-suit notice. In matter of this nature, the
\nissuance of  the pre-suit notice is not sine quo non for filing  suit.\n<\/p>\n
\t17. In this factual matrix, I am of the considered opinion that non-
\nissuance of the notice by either of the parties need not be taken seriously.\n<\/p>\n
\t18. No doubt, in order to understand the intention behind such non-
\nissuance of notice, both sides would furnish various reasons.  The plaintiff on
\nsensing that the defendant was trying his level best to sell his property to the
\nthird parties, could have very well approached the Court with a suit for
\nspecific performance along with an I.A expressing that whenever the Court might
\norder him to deposit the remaining part of the sale consideration, he would
\ncomply with it. Instead of that, the plaintiff had chosen to file the suit for
\nbare injunction which goes against the plaintiff’s case that he was always ready
\nand willing to perform his part of the contract.  The trial Court after
\nanalysing the oral evidence on both sides got convinced that there was nothing
\non record to demonstrate that the plaintiff had made incessant demands to the
\ndefendant to come forward to receive the amount and execute the sale deed.\n<\/p>\n
\t19. At this juncture, it is just and necessary to recollect the principles
\nrelating to onus probandi. The onus of proof is on the plaintiff to prove his
\ncase.  It has to be seen, whether he discharged his burden of proof. Except his
\noral testimony, there is no other evidence or circumstance highlighted by him
\nthat he was ready and willing to perform his part of the contract and that the
\ndefendant alone was dragging of the matter or indulging in dilatory tactics.\n<\/p>\n
\t20. The learned Counsel for the plaintiff placing reliance on Exs.A.2 to
\nA.7, the documents in his favour viz., title deeds, tax receipts for his home
\nand also passbook, would develop his argument that the plaintiff was a man of
\nmeans and he had the financial wherewithal to raise money  and perform his part
\nof the contract and not that he was living in penury and suffering from
\nimpecunious circumstances.\n<\/p>\n
\t21. No doubt, voluminous documents marked on the side of the plaintiff
\nwould portray that he was a man having sufficient means.  But, the question
\narises as to whether he tendered or made any outward manifestation that he was
\nready and willing to pay the sale consideration, and that evidence is lacking.
\nAs such, in view of the above discussion, the judgment and decree of the trial
\nCourt based on oral and documentary evidence, requires no interference.\n<\/p>\n
\t22. At the time of representing the plaint, he has chosen to pray for
\nmandatory injunction directing the other side to perform his part of the
\ncontract and not for seeking  specific performance.  Once again, this factor
\ncould be taken as an adverse one against the plaintiff’s case.\n<\/p>\n
\t23. Accordingly, Point No.(i) is decided to the effect that the plaintiff
\nhas not proved that he had been ready and willing to perform his part of the
\ncontract.\n<\/p>\n
Point No:(ii)<\/p>\n
\t24. The learned Counsel for the defendant cited the decision in Tarlok
\nSingh v. Vijay Kumar Sabharwal<\/a> reported in 1996(I) CTC 738.  An excerpt from it,
\nwould run thus:\n<\/p>\n
\t“4. Shri Prem Malhotra, learned Counsel for the respondent, contended that
\nsince the respondent had refused performance the suit must be deemed to have
\nbeen filed on December 23, 1987 and, therefore, when the amendment was allowed,
\nit would relate back to the date of filing the suit which was filed within three
\nyears from the date of the refusal.  Accordingly, the suit is not barred by
\nlimitation.  Shri U.R.Lalit, learned Senior Counsel for the appellant, contended
\nthat in view of the liberty given by the High Court the appellant is entitled to
\nraise the plea of limitation.  The suit filed after expiry of 3 years from 1986
\nis barred by limitation.  The question is as to when the limitation began to
\nrun?  In view of the admitted position that the contract was to be performed
\nwithin 15 days after the injunction was vacated, the limitation began to run on
\nApril 6, 1986.  In view of the position that the suit for perpetual injunction
\nwas converted into one for specific performance by order dated August 25, 1989,
\nthe suit must be deemed to have been instituted on August 25, 1989 and the suit
\nwas clearly barred by limitation.  We find force in the stand of the appellant.
\nWe think that parties had, by agreement, determined that date for performance of
\nthe contract.  Thereby limitation began to run from April 6, 1986.. Suit merely
\nfor injunction laid on December 23, 1987 would not be of any avail nor the
\nlimitation began to run from that date.  Suit for perpetual injunction is
\ndifferent from suit for specific performance.  The suit for specific performance
\nin fact was claimed by way of amendment application filed under Order 6, Rule
\n17, CPC on September 12, 1979.  It will operate only on the application being
\nordered.  Since the amendment was ordered on August 25, 1989 the crucial date
\nwould be the date on which the amendment was ordered by which date, admittedly,
\nthe suit is barred by limitation.  The Courts below, therefore, were not right
\nin decreeing the suit.”\n<\/p>\n
\t25. A mere perusal of the aforesaid decision including the above excerpt,
\nwould clearly demonstrate that a suit for injunction is different from a suit
\nfor specific performance.  The above delineation of facts would categorically
\nevince that the suit for injunction was filed as early as on 28.04.1989 and
\nthere was a period of lull intervened and thereafter, it was represented only on
\n10.08.1989 by incorporating the additional prayer for mandatory injunction.
\nHowever, actually the I.A. for incorporating the prayer for specific performance
\nwas filed on 11.01.1991.  As such, it could only be taken that the suit for
\nspecific performance was filed on 11.01.1991, so to say, more than seven years
\nafter 07.07.1983.\n<\/p>\n
\t26. Article 54 of the Limitation Act is extracted hereunder for ready
\nreference:\n<\/p>\n
Description of suit
\nPeriod of limitation
\nTime from which period begins to run
\n54<\/span>
\nFor Specific Performance of a contract.\n<\/p>\n
Three years
\nThe date fixed for the performance, or, if no such date is fixed, when the
\nplaintiff has notice that performance is refused.\n<\/p>\n
\t27. The aforesaid provision would clearly contemplate that the suit could
\nbe filed within three years from the date of the arisal of the cause of action.
\nAs such, ex facie and prima facie, it is evident that the suit for injunction
\npresented on 23.05.1984, would not in any enure to the benefit of the plaintiff
\nto save the limitation period relating to the filing of the suit for specific
\nperformance.\n<\/p>\n
\t28. The learned Counsel for the plaintiff would argue that while
\nrepresenting the plaint, the prayer for mandatory injunction was incorporated
\nand it would virtually tantamount to a prayer for specific performance only.
\nEven assuming but without countenancing, it was so, it was represented only on
\n10.08.1989 which was long after the expiry of three years from 07.07.1983.\n<\/p>\n
\t29. The learned Counsel for the plaintiff would submit that the cause of
\naction cannot be taken as the one arisen with effect from 07.07.1983 only,
\nbecause there was continuous and incessant requests made by the plaintiff to the
\ndefendant for performing his part of the contract and in such a case, the cause
\nof action shall be deemed to have arisen from day to day that date and it cannot
\nbe assumed or presumed that the cause of action got barred by limitation.\n<\/p>\n
\t30. Such an argument cannot be countenanced, because limitation period
\ncontemplated under the Limitation Act will start running and get expired by the
\ntime stipulated in the relevant Article under the Limitation Act,
\nnotwithstanding any alleged demands made incessantly day after day ever since
\nthe arisal of the cause of action.  I could refer to the actual words used under
\nArticle 54 of the Act.  Article 54 of the Act would contemplate that the date
\nfixed for the performance of the contract, should be taken as the date of
\ncommencing of limitation period so to say, starting point of the limitation.
\nHere, according to the plaintiff’s case, even before filing the suit for
\ninjunction, the defendant had been postponing with the intention to sell the
\nsuit property to third parties.  In such a case, it is explicit and clear that
\nthe plaintiff was having knowledge of the fact of refusal to perform the
\ncontract by the defendant.  Accordingly, if viewed,  it is obvious that the I.A
\nfor incorporating the prayer for specific performance was filed on 11.01.1991 so
\nto say, more than seven years after the arisal of the cause of action.  As such,
\nin this view of the matter, it has to be held that the suit was miserably barred
\nby limitation, which fact was not considered by the trial Court in proper
\nperspective.\n<\/p>\n
\t31. The trial Court thought fit that the suit filed for permanent
\ninjunction before the District Munsif, Paramakudi, would enure to the benefit of
\nthe plaintiff for saving the limitation period which is not correct in view of
\nthe reasons set out supra.\n<\/p>\n
\t32. Hence, the point No.(ii) is decided in favour of the defendant that
\nthe suit was barred by limitation.\n<\/p>\n
Point No:(iii)<\/p>\n
\t33. In view of the findings above, it is held that appeal filed by the
\nplaintiff has to be dismissed and Cross Objection filed by the defendant has to
\nbe allowed.\n<\/p>\n
\t34. In the result, A.S.No.663 of 1992 is dismissed and Cross Objection
\nNo.128 of 1993 is allowed and the judgment and decree of the trial Court in
\ndismissing the original suit, are confirmed with the modification in the
\nfindings as set out supra.\n<\/p>\n
\t35. The learned Counsel for the plaintiff made an extempore submission
\nthat in this case, a sum of Rs.10,000\/- was paid by the plaintiff to the
\ndefendant as advance and that could be ordered to be returned to the plaintiff.
\nWhereas the learned Counsel for the defendant by drawing the attention to the
\nrelevant clause in the agreement to sell, Ex.A.1, submit that as per the
\nforfeiture clause,  the plaintiff got forfeited the said sum in favour of the
\ndefendant.\n<\/p>\n
\t36. I am of the considered opinion that without being too technical and
\nnot to pout too fine a point on it, the defendant could very well return the
\nadvance amount of Rs.10,000\/- (Rupees Ten Thousand only) without interest within
\na period of two months from the date of receipt of a copy of this order, failing
\nwhich it shall carry the interest at the rate of 6% from the date of such
\ndefault.  However, the parties shall bear their respective costs throughout.\n<\/p>\n
rsb<\/p>\n
To<\/p>\n
The Subordinate Judge, Ramanathapuram.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court R.Balasubramaniam vs K.S.D.Rajendran on 12 February, 2008 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-22613","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nR.Balasubramaniam vs K.S.D.Rajendran on 12 February, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/r-balasubramaniam-vs-k-s-d-rajendran-on-12-february-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"R.Balasubramaniam vs K.S.D.Rajendran on 12 February, 2008 - 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