Specific performance was sought under a disputed sale agreement executed by the owner's power agent in favour of his son. The court upheld refusal of relief for suppression of material facts and failure to establish the agreement's genuineness and continuous readiness and willingness. The second appeal was dismissed with costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 18.03.2021
PRONOUNCED ON : 30.03.2021
CORAM
THE HONOURABLE MR. JUSTIC E T.RAVINDRAN
S.A.No. 1709 of 2008
K. Murugan
S/o. Kunjupaiyan ...Appellant/1st Respondent/Plaintiff
Vs.
...2nd Respondent/2nd Respondent/2nd Defendant
Prayer: Second Appeal is filed under Section 100 of CPC, 1908 against the judgment and decree passed in A.S.No.39 of 2006 dated 04.07.2008 on the file of the Sub Court, Mettur, reversing the judgment and decree passed in O.S.No.240 of 2004 dated 22.08.2006 on the file of the District Munsif Court, Mettur.
For Appellant : Mr. S. Parthasarathy, Senior Counsel for M/s. A. Sundaravadhanam For Respondents For R1 : Mr. J. Ramakrishnan For R2 : No appearance. Set exparte vide order dated 18.03.2021.
JUDGMENT
Challenge in this second appeal is made to the judgment and decree dated 04.07.2008 passed in A.S.No.39 of 2006, on the file of the Subordinate Court, Mettur, reversing the judgment and decree dated 22.08.2006 passed in O.S.No.240 of 2004 on the file of the District Munsif Court, Mettur.
2.For the sake of convenience, the parties are referred to as per their rankings in the trial court.
on the abovesaid sale agreement. The suit property was worth more than two lakhs and therefore, it is false to state that the suit property was worth only Rs.70,000/- on the date of the alleged sale agreement and there is no cause of action for the suit and the suit is liable to dismissed.
Attorney deed in favour of the second defendant by way of the registered cancellation deed dated 17.08.2001 marked as Ex.B4 and further put forth the case that till the execution of Ex.B4, no sale agreement had been executed by the second defendant in favour of any one qua the sale of suit property and thereby contended that the sale agreement Ex.A2 had been created by the plaintiff and the second defendant in collusion, as the plaintiff is the son of the second defendant and further put for the case that he had not been apprised of the abovesaid sale agreement either by the second defendant or by the plaintiff as put forth by them in the matter and also put forth the case that he had not received Rs.60,000/- from the second defendant said to have been paid by the plaintiff towards the sale consideration to the second defendant on the date of Ex.A2 and therefore, it is the defence version of the first defendant that Ex.A2 sale agreement had been created by the plaintiff and the second defendant in collusion, with a view to defraud the first defendant and to obtain unlawful enrichment and therefore, it is his case that the plaintiff is not entitled to obtain the discretionary and equitable relief of specific performance.
same paper. However, as above pointed out, the sale agreement is dated 03.06.2001, whereas the stamp paper on which the same is engrossed is found to be purchased on 01.10.2000. Therefore, the abovesaid aspect throws a serious suspicion with reference to execution of the sale agreement as put forth by the plaintiff on 03.06.2001 in his favour by the second defendant. The attestor to the sale agreement examined as P.W.2 would depose in the cross examination that the sale agreement was completed at about 11 a.m. on 03.06.2001 and it had been engrossed on a 50 rupees stamp paper and he does not know who had purchased the stamp paper and according to him, the stamp paper was purchased 15 minutes prior to the typing of the sale agreement. Therefore, as per the evidence of the attestor, the stamp paper on which the sale agreement had been engrossed was purchased only on the date of the sale agreement i.e. 03.06.2001. However, it is found that, as above pointed out, the stamp paper is found to have been purchased on 01.10.2000. Therefore, it is highly doubtful whether the sale agreement would have been executed between the plaintiff and the second defendant on 03.06.2001 as put forth by them. When neither the plaintiff nor the attestor examined as P.W.2 are clear in their evidence with reference to the purchase of the stamp paper on which the sale agreement had been engrossed, the abovesaid aspect also had been rightly taken into consideration by the first appellate court in doubting the genuineness of the sale agreement, particularly, to hold that the same would not have been written on 03.06.2001 as claimed by the plaintiff and the second defendant.
several years as claimed by the plaintiff, as rightly contended by the first defendant's counsel, the plaintiff would not have gone ahead with the sale agreement with the estranged second defendant qua the sale of the suit property. Therefore, when according to the plaintiff, he is not having cordial relationship with the second defendant for several years and only a strained relationship has been existing between them, in such view of the matter, the very execution of the sale agreement on 03.06.2001 between them raises a serious doubt as to whether at all such an agreement would have been entered into between them. From the evidence of the plaintiff examined as P.W.1, from the case projected by the plaintiff, he would put forth that other than verifying the power deed Ex.A1, he had not verified the title of the first defendant qua the suit property and also though would claim that he had obtained the encumbrance certificate, had not endeavoured to produce the Encumbrance certificate obtained by him qua the suit property prior to the sale agreement. Therefore, to say that he had entered into the sale agreement with his estranged father based on Ex.A1 power deed alone qua the suit property without verifying the title of the first defendant, as such, cannot be believed and accepted.
concluded at the earliest point of time. However, quite strangely the plaintiff and the second defendant are said to have fixed the time limit of one year for completing the sale transaction from the date of the sale agreement, that too, for the payment of a paltry sum of Rs.10,000/-. As to why the period of one year was fixed for paying the paltry sum of Rs.10,000/- and complete the sale transaction, there is no proper explanation forthcoming on the part of either the plaintiff or the second defendant. Therefore, to say that as the plaintiff found it difficult to pay the sum of Rs.10,000/immediately, the time limit of one year was fixed, cannot be accepted readily. When assuming the case of the plaintiff that the relationship between the parties of the sale agreement is not smooth and cordial on the date of the sale agreement is true, if really the sale agreement had been brought about, the endeavour of the plaintiff would be only to complete the sale transaction at the earliest point of time and therefore, the fixation of one year period for completing the sale transaction is found to be totally strange and unacceptable and accordingly inasmuch as no sale agreement, as such, had been entered into between the plaintiff and the second defendant on 03.06.2001 as claimed by them and the same had been created by them only with the intention of defrauding the first defendant one way or the other and to obtain unlawful enrichment, the abovesaid inconsistencies and improbabilities had occured qua the sale agreement Ex.A1.
date of Ex.A2 and if according to the plaintiff he had been ready and willing to perform his part of his contract thereafter as claimed by him, in the normal course of events, the plaintiff should have only approached the second defendant with reference to the same. Though the plaintiff would claim that he had approached the second defendant and conveyed to him about his readiness to perform his part of the contract, however, when according to the plaintiff the second defendant had been evading to respond to his request, in such view of the matter, the plaintiff should have immediatley issued the legal notice calling upon the second defendant to come forward and execute the sale deed as per the terms of the sale agreement. The position being above, the case projected by the plaintiff that he had met the first defendant on 01.07.2001 regarding the sale of the suit property and that the first defendant had informed to him about the receipt of Rs.60,000/- from the second defendant and assured that he would execute the sale deed shortly are found to be totally unnatural and unacceptable. Particularly, when according to the plaintiff, the pucca power deed had been executed in favour of the second defendant qua the sale of the suit property, the plaintiff should have only endeavoured to meet the second defendant and complete the sale transaction as per law. Therefore, his case that he had met the first defendant on 01.07.2001 in the presence of the attesting witnesses and that the first defendant had acknowledged the receipt of Rs.60,000/- from the second defendant and assured to complete the sale transaction shortly are all found to have been projected only to add the colour of reality to the false case projected by the plaintiff one way or the other. The abovesaid case of the plaintiff, as rightly concluded by the first appellate court, creates a serious suspicion over the sale agreement.
balance sale consideration. Though the second defendant would also claim in the written statement that he had paid Rs.60,000/to the first defendant and that the first defendant had issued a voucher pursuant to the same, however, with reference to his abovesaid case, no material is forth coming whatsoever. In the abovesaid background, as rightly concluded by the first appellate court, when the execution of the sale agreement on 03.06.2001 between the plaintiff and the second defendant itself is found to be shrouded in mystery, as above discussed, merely from the recitals in Ex.A2 sale agreement we cannot safely presume that the plaintiff had really paid Rs.60,000/- to the second defendant based on Ex.A2 sale agreement and equally, it cannot be readily accepted that the said amount of Rs.60,000/had been subsequently tendered by the second defendant to the first defendant as claimed by him. In that context only it has been noted by the first appellate court that the plaintiff has failed to establish the payment of Rs.60,000/- to the second defendant by placing acceptable document such as receipt or any other record evidencing the abovesaid payment. Accordingly, it is found that, as above pointed out, it is very strange that the parties had set apart a time limit of one year for completing the sale transaction, that too, for the purpose of paying the paltry sum of Rs.10,000/-.
defendant and considering the factum of the parties to the sale agreement setting up the time limit of one year for completing the sale transaction,all put together, in toto, the first appellate court is right in coming to the conclusion that the plaintiff has suppressed the material facts and also unable to establish that the sale agreement Ex.A2 had really come into existence between him and the second defendant as claimed by him and that he had paid Rs.60,000/- on the date of sale agreement and furthermore has failed to establish convincingly that he had been always ready and willing to perform his part of the contract right from the inception of the sale agreement till the issuance of the legal notice which had come to be issued nearly 3 years after the execution of the sale agreement i.e. issued just before the expiry of the limitation period and though the suit has come to be laid by the plaintiff within the stipulated period, but when the plaintiff is expected to show his readiness and willingness in performing his part of the contract from the inception of the sale agreement and when the plaintiff has miserably failed to establish the same and as above discussed, when the very truth and execution of the sale agreement Ex.A2 has not been established by the plaintiff and when there are serious suspicions surrounding the sale agreement Ex.A2, as above pointed out, and when no proper and convincing explanation has been offered by the plaintiff to dispel the same, all put together, in my considered opinion, the first appellate court is justified in not extending the equitable and discretionary relief of specific performance in favour of the plaintiff, particularly, the plaintiff having come forward with the suit containing false facts and suppressing the true facts and in such view of the matter, I do not find any valid reason to interfere with the reasonings and conclusions of the first appellate court in declining the relief of specific performance. The reasonings and conclusions of the first appellate court for negativing the relief of specific performance claimed by the plaintiff are found to be based on a proper appreciation of the materials placed on record, both oral and documentary, both on factual matrix as well as on the point of law, and when they are not shown to be in any manner perverse, illogical and irrational, no interference is warranted with reference to the same. The substantial questions of law formulated in the second appeal are accordingly answered against the plaintiff and in favour of the first defendant.
23. In support of his various contentions, the first defendant's counsel placed reliance upon the decisions reported in
1) (2013) 4 Supreme Court Cases 546 (Garre Mallikharjuna Rao (dead) by Lrs. and others vs. Nalabothu Punniah)
2)
3)
The principles of law outlined in the abovesaid decisions are taken into consideration and followed as applicable to the case at hand.
Sd/Assistant Registrar (JJ Act)
//True Copy//
Sub Assistant Registrar
bga
To
3. Section Officer, VR Section, High Court, Madras
+1CC to Mr.J.Ramakrishnan, Advocate, Sr.No.20860
Judgment made in S.A.No.1709 of 2008
AD (CO) K.RK. (18.11.2021)
3 issues framed by the court
Did registration of the power-of-attorney cancellation deed itself establish proper communication to the agent?
Was specific performance warranted despite failure to establish the sale agreement's genuineness and continuous readiness and willingness?
Did the plaintiff's suppression of his relationship with the power agent justify refusal of equitable relief?
Colour shows how this judgement treated each authority
Garre Mallikharjuna Rao (dead) by Lrs. and others vs. Nalabothu PunniahFollowed¶62
(2013) 4 Supreme Court Cases 546 (Garre Mallikharjuna Rao (dead) by Lrs. and others vs. Nalabothu Punniah)
T. Basker vs. S. Venkatammal & othersFollowed¶65
2016 (6) CTC 58 (T. Basker vs. S. Venkatammal & others)
N. Sundaram vs. P. Kamalammal & othersFollowed¶66
2017 (3) CTC 711 (N. Sundaram vs. P. Kamalammal & others)
R. Lakshmi Bai and another vs. M.V. RaniFollowed¶67
2017(4) MLJ 318 (R. Lakshmi Bai and another vs. M.V. Rani)
B.V. Subramanian Proprietor of "Baggya Reka Exports" vs. VasanthaFollowed¶68
2018(1) MLJ 489 (B.V. Subramanian Proprietor of "Baggya Reka Exports" vs. Vasantha)
S. Sarojini and another vs. P. Mariappan and anotherFollowed¶69
2018 (4) CTC 13 (S. Sarojini and another vs. P. Mariappan and another)
Thangaraj (deceased) & Ors vs. Radhakrishnan & orsFollowed¶70
2018(4) MLJ 538 (Thangaraj (deceased) & Ors vs. Radhakrishnan & ors)
K. Narasiman (deceased) and others vs. C.P.Sanjeevi KudaliarFollowed¶70
2018(4) LW 622 (K. Narasiman (deceased) and others vs. C.P.Sanjeevi Kudaliar)
Deivanai vs. V.Sathyanarayana Chetty & othersFollowed¶71
S.A.No.722 of 2019 (Madras High Court) (Deivanai vs. V.Sathyanarayana Chetty & others)
S.Nazeer Ahmed vs. State Bank of Mysore and othersFollowed¶72
(2007) 11 Supreme Court Cases 75 (S.Nazeer Ahmed vs. State Bank of Mysore and others)
K. Murugan
R. Udayakumar
Kunju @ Kunjupaiyan
T.RAVINDRAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
