Dismissed

S.Pachaimuthu v. Tmt.Laithamani

Madras HC29 Jun 2021SA/516/2008

Case brief

AI extract

What is this about?

The Second Appeals regarding agreements of sale and injunctions were dismissed. The High Court held that the appellant failed to prove readiness and willingness, specifically the construction of a building for the respondent. Additionally, the suit was found to be barred by limitation.

What did the court decide?

Both second appeals (SA Nos. 516 & 517 of 2008) and connected miscellaneous petitions were dismissed. Previous judgments allowing specific performance and reversing injunctions were restored.

S.Pachaimuthu Vs Tmt.Laithamani — Specific Performance | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 29.06.2021

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CORAM

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THE HONOURABLE MS.JUSTICE P.T.ASHA

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S.A.NOS.516 & 517 OF 2008 & M.P.NOS.1 & 2 OF 2008

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S.Pachaimuthu ...Appellant/Plaintiff / Defendant / Respondent in Both SA's

Vs.

B.Duraisamy (Died)

1.Lalithamani

2.D.Kalaiselvi

3.D.Subhasini ...Respondents/ Applenant 2 to 4 in Both SA's

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Prayer in S.A.No.516 of 2008: Second Appeal filed under Section 100 of the Code of Civil Procedure against the Judgment and Decree in A.S.No.81 of 2005 on the file of the Principal District Judge at Coimbatore dated 14.12.2007 thereby setting aside the Judgement and Decree made in O.S.No.85 of 1996 on the file of the 1^st Additional Sub Judge, Sub Court at Coimbatore dated 30.06.2004.

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Prayer in S.A.No.517 of 2008: Second Appeal filed under Section 100 of the Code of Civil Procedure against the Judgment and Decree in A.S.No.19 of 2006 on the file of the Principal District Judge at Coimbatore dated 14.12.2007 thereby setting aside the Judgement and Decree made in O.S.No.742 of 1998 on the file of the 1^st Additional Sub Judge, Sub Court at Coimbatore dated 30.06.2004.

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For Appellant : Mr.V.Ayyadurai Senior Counsel for Mr.V.B.Perumal Raj For Respondents : Mr.T.R.Rajaraman

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JUDGMENT

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The appellant in S.A.No.516 of 2008 is the plaintiff in the suit O.S.No.85 of 1996 on the file of the Subordinate Court, Coimbatore, for specific performance of an agreement of sale dated 22.10.1990. The said suit was decreed. Challenging the same the defendant had filed A.S.No.81 of 2005 on the file of the Principal District Judge, Coimbatore. The Appellate Court had allowed the appeal and reversed the Judgement and Decree of the Trial Court and challenging the same the Second Appeal has been filed.

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The appellant in S.A.No.517 of 2008 is the defendant in O.S.No.742 of 1998 (the plaintiff in O.S.No.85 of 1996 supra). The suit is one for bare injunction restraining the defendant from interfering with the plaintiff's peaceful possession and enjoyment of the suit property and for mandatory injunction directing the defendant to return the documents mentioned in the B- Schedule. The suit was dismissed and the plaintiff therein had filed A.S.No.19 of 2006 on the file of the Principal District Judge, Coimbatore challenging the said Judgement. A.S.No.19 of 2006 was allowed thereby reversing the Judgement and Decree in O.S.No.742 of 1998 and challenging the said Judgement and Decree the defendant is before this Court.

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O.S.No.742 of 1998 was originally filed before the District Munsif, Coimbatore and was numbered as O.S.No.933 of 1995. Since O.S.No.85 of 1996 was the comprehensive suit and considering the fact that the plaint in O.S.No.85 of 1996 formed the sum and substance of the written statement in O.S.No.742 of 1998 and the written statement in O.S.No.85 of 1996 broadly formed the basis for the plaint in O.S.No.742 of 1998 the pleadings in O.S.No.85 of 1996 is referred to hereunder.

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4.Plaintiff's case:

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4.1. It is the case of the appellant that the suit property belongs to the respondent. On 22.10.1990 they had entered into an agreement of sale in and by which the appellant had agreed to purchase the suit property for total sale consideration of Rs.3,15,000/-. An advance of Rs.20,000/- was paid on the date of the agreement. The terms of the agreement further stipulated that the entire contract should be concluded within a period of 6 months and that within one month from the date of the agreement a sum of Rs.55,000/- was to be paid by the appellant to the respondent. The balance sale consideration of Rs.2,40,000/- was to be paid within the agreement period. Time was never the essence of the contract.

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4.2. Meanwhile the respondent had requested the plaintiff to construct a building for him in his property at Railway Feeder Road for which a sum of Rs.2,40,000/- was expended and the said sum was set off towards the balance sale consideration. The construction was also completed and on 17.11.1991 a bill for the entire amount was submitted. In fact, the contention of the appellant is that the total cost of construction came to be a sum of Rs.2,41,000/- and after adjusting the advance already paid, which according to the appellant was a sum of Rs.75,000/-, no further amounts were payable towards the cost of the land.

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4.3.The appellant had issued a legal notice dated 26.04.1993 calling upon the respondent to complete the contract. The appellant had also stated in the said notice that no further amounts were payable by him since the sum of Rs.2,41,000/- was spent by the appellant for constructing the house of the respondent. The respondent sent a reply stating that only a sum of Rs.70,000/- has been received as advance and the respondent had totally denied the construction of the house by the appellant. The respondent had submitted that he has been always ready and willing and it is the appellant who was not ready with his part of the obligation.

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4.4. The appellant has further stated that on receipt of this notice the respondent had rushed to file O.S.No.933 of 1995 (thereafter re-numbered as O.S.No.742 of 1998, the subject matter of S.A.No.517 of 2008). Therefore, left with no other alternative the appellant was constrained to file the suit in question.

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5.Written Statement:

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5.1.The respondent had admitted the execution of the agreement of sale in his written statement and receipt of the initial advance of Rs.20,000/-. The respondent would contend that two cheques for Rs.20,000/- issued by the appellant got dishonored and thereafter the appellant had made good the same by cash. Thereafter, a sum of Rs.10,000/- was paid. Therefore, in all only a sum of Rs.70,000/- was paid as an advance and not Rs.75,000/- as contended by the appellant.

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5.2.That apart, the respondent would contend that time was essentially the essence of contract. The respondent had further categorically contended that the balance sum of Rs.2,40,000/- was not received by him and there was no agreement of construction entered into between the appellant and respondent for putting up the construction on behalf of the respondent and adjusting the cost of construction to the balance sale consideration. The respondent had contended that there was

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no cause of action and hence the suit should be dismissed.

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5.3.The Trial Court had tried the two suits jointly, namely, O.S.No.85 of 1996 and O.S.No.742 of 1998. Evidence was recorded in the suit O.S.No.85 of 1996. The Trial Court had framed the following issues in O.S.No.85 of 1996.

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(i)Whether the plaintiff is entitled for a decree for specific performance against the defendant?

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(ii)Whether the plaintiff has the cause of action for filing the said suit.

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5.4. As regards O.S.No.742 of 1998, the following issues were framed:

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(i)Whether the plaintiff is entitled to a decree for permanent injunction?

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(ii)What other relief the plaintiff is entitled to?

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5.5. On 30.06.2004 an additional issue was framed in O.S.No.85 of 1996 which read as follows:

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(i)Whether the suit is barred by limitation.

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5.6. The evidence was recorded in the suit O.S.No.85 of 1996 and on the side of the plaintiff five witnesses including the plaintiff were examined and Ex.A.1 to Ex.A.13 were marked. On the side of the defendant only one witness was examined. The learned Trial Judge by his Judgement and Decree dated 30.06.2004 decreed the suit O.S.No.85 of 1996 and dismissed the suit O.S.No.742 of 1998. The said order was taken up on appeal by the respondents herein in A.S.Nos.81 of 2005 and 19 of 2006 respectively. The Lower Appellate Court reversed the Judgement and Decree and hence the appellant is before this Court.

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6.Submissions:

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6.1.Mr.Ayyadurai, learned Senior Counsel appearing on behalf of the learned counsel for the appellant would submit that under Ex.A.1, Agreement of Sale, time was not the essence of the contract. The appellant had paid a sum of Rs.75,000/- as advance and put up construction for the respondent in his property at Railway Feeder Road, for a sum of Rs.2,40,000/-. Ex.A.5 bill dated17.11.1991 detailing the above was acknowledged by the respondent.In fact after Ex.A.5 bill was submitted to the respondent there was a panchayat in which the parties had agreed that the respondent would execute the sale deed.

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6.2. The learned senior counsel would further submit that a perusal of Ex.A.7 reply notice would confirm the fact that even the respondent had not considered time to be the essence of the contract. In fact, in Ex.A.7 reply notice the respondent has clearly stated that he was always willing to perform his part of the construction but the respondent had denied the fact that the entire sale consideration had been paid.

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6.3.The learned senior counsel would further contend that the Trial Court has rightly held that the appellant was entitled to the decree for specific performance. He would submit that the appellant had proved the construction of the premises for the respondent by examining P.W.3 who would submit that he had been engaged by the appellant to supervise the work undertaken by the appellant for the respondent and P.W.3 had deposed that he had been paid by the respondent to act as Supervisor and for six months the construction had continued.

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6.4. The Trial Court on considering the evidence and oral evidence of P.W.2 to P.W.4 had rightly come to the conclusion that construction on behalf of the respondent had taken place. The Trial Court had seen through the evidence of the respondent as D.W.1. The respondent had produced Ex.B.1 letter from HDFC which would indicate that only a sum of Rs.50,000/- had been taken as loan which was impossible in the light of the evidence of P.W.5 Jagadheesan, Licensed Valuer, who had valued construction at Rs.1,90,000/-. Therefore, the learned Trial Judge had disbelieved the document produced on the side of the respondent.

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6.5.He would further contend that the Appellate Court had erred in coming to the conclusion that the suit was barred by limitation. Under Ex.A.7 reply notice the respondent had expressed his willingness to execute the sale deed and from that date the suit has been filed within a period of three years. That apart, time was never essence of the contract between the parties. The respondent had received further sums much beyond the period of one month provided under Ex.A.1 agreement. Therefore, the finding of the Appellate Court that the suit is barred by limitation is totally false.

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6.6.He would further contend that the Court below has erred in coming to the conclusion that the appellant was not ready and willing particularly when the appellant has proved the construction of the house on behalf of the respondent by examining P.W.2 to P.W.5 and marking Ex.A.5 bill which has not been countenanced by the respondent herein.

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6.7.Per contra, Mr.T.R.Rajaraman, learned counsel

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appearing for the respondent would contend that the Appellate Court had rightly dismissed the suit on the ground that the appellant had failed to prove readiness and willingness. That apart, the suit was barred by limitation. He would submit that as regards the issue of limitation even under the reply notice Ex.A.7, the respondent had in very categoric terms informed the appellant that period of 2 years 7 months had elapsed and that the appellant was still to execute the sale deed provided the balance amount was paid by the appellant within a period of 3 months after which the claim would become time barred.

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6.8.The learned counsel would further contend that after receiving the said notice two years later another notice has been issued under Ex.A.8, which was only a sequel to the earlier notice issued under Ex.A.6 and in that notice for the 1st time the appellant had inserted a new demand that the measurement was not as per area stated in the agreement. This notice has been issued nearly two years after the receipt of the reply notice issued under Ex.A.7 by the respondent herein. He would therefore submit that considering the contents of Ex.A.7 reply notice the suit filed is much beyond the period of limitation and the Appellate Court has rightly held so.

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6.9.As regards the issue of readiness and willingness he would argue that the appellant has not proved the construction of the building for the respondent. He would submit that in Ex.A.7 reply notice the respondent had categorically denied the fact that the construction of the house at Railway Feeder Road had been undertaken by the appellant. He would argue that there is absolutely no proof on the side of the appellant to show when he has commenced construction and when the construction had come to an end. He would further argue that Ex.A.5 bill has not been accepted or acknowledged by the respondent and any statement to the contrary is stoutly denied by the respondent. He would submit that a mere perusal of Ex.A.5 would show that it is a fabricated document. The document does not even describe the construction that had been undertaken and it is rather strange that the construction has been completed within a month when there was a balance payable by the appellant to the respondent. The appellant has come forward with a false case and is therefore not entitled to the decree for specific performance. He would therefore submit that no exception can be taken to the Judgement under appeal.

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7.Discussion:

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7.1.The appellant has come forward with a case that they had entered into an agreement of sale Ex.A.1 in which a sum of Rs.20,000/- was paid at the time of signing of the agreement. A sum of Rs.55,000/- was payable within a period of one month

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and thereafter a sum of Rs.2,40,000/- was payable. All of which had to be completed within a period of six months. However, it appears that the second tranche of Rs.55,000/- was not paid as agreed. On the contrary a sum of Rs.20,000/- was paid on 30.11.1990 and another sum of Rs.10,000/- on 12.01.1991 and further sum of Rs.20,000/- on 27.09.1991. These payments have been marked as Ex.A.2 to Ex.A.4. Therefore, on a perusal of Ex.A1 to Ex.A.4 it is clear that a payment of a sum of Rs.70,000/- was completed only on 27.09.1991, which is nearly a year after the agreement was entered into between the parties.

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7.2.The appellant would contend that a sum of Rs.75,000/- had been paid as an advance (no details of how and when the additional sum of Rs.5,000/- has been paid has been provided by the appellant) and the balance Rs.2,40,000/- was to be adjusted from out of the cost of construction of the building that the appellant had put up for the respondent at Railway Feeder Road. This construction by the appellant is emphatically denied by the respondent who would contend that he had only used the appellant's professional services as he was a Civil Engineer for which professional charges were also paid to the appellant. Therefore, the onus is on the appellant to prove that he has constructed the building for the respondent.

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7.3.In the plaint the appellant would contend that after the agreement of sale, the respondent had requested him to construct the building that too for a value of Rs.2,40,000/-. In his cross examination the appellant had stated that the agreement to construct was made within 15 days of the sale agreement and the construction was commenced as soon as the advance was paid. P.W.3 would depose in cross that the agreement for construction was entered into even prior to the agreement of sale. The appellant has not proved by any documentary evidence the date on which the construction had commenced and when the construction had come to an end. There is no plan filed to show the nature of construction nor any document to show the estimate that had been handed over to the respondent initially and accepted by him. That apart the details of how the construction had to be undertaken and number of floors that was to be constructed etc., are all the basic details / documents that would be entered into between the parties if one had undertaken to construct a building for another.

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7.4. That apart, if really the construction had taken place within 15 days from the date of sale agreement as deposed by P.W.1 then there was no necessity for the appellant to make the payment under Ex.A.2 to Ex.A.4. There is no explanation for the same. In his pleadings and chief examination the appellant had deposed that Ex.A.5 bill has been acknowledged by the

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respondent. However, there is no acknowledgment in the said bill. Further P.W.4 would, in his cross examination, state that construction which commenced in the end of 1991 was completed by the end of the year. It is not known as to how residential construction can be completed within a month.

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7.5.Another piece of evidence which would give rise to suspicion is Ex.A.6 notice issued by the appellant to the respondent. In the said notice, the appellant had stated that he had constructed the house building at Union Tank Road, Periyanaickenpalayam, Coimbatore. This is the first notice that has been issued by the appellant. This anomaly is sought to be rectified only two years later in Ex.A.8 notice dated 30.05.1995 where the appellant would state that the mention of the Union Tank Road was a mistake and that it should be read as Railway Feeder Road. This despite the fact that in Ex.A.7 reply the respondent has clearly stated that he has no property in Union Tank Road.

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7.6.Therefore, a conjoint perusal of the oral and documentary evidence clearly shows that the appellant has miserably failed to prove the construction and thereby the payment of sale consideration of Rs.2,40,000/-. The Lower Appellate Court have rightly come to the conclusion that the appellant has not proved the readiness and willingness.

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7.7. The next ground of challenge was limitation. In this regard the evidence of P.W.1 would clearly show that the suit is barred by limitation. In his cross examination P.W.1 would state as follows:

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"17/11/1991ypUe;J xU thuj;jpy; nghap gpujpthjpiar; re;jpj;J fpiuak; vGjpj;jUkhW nfl;lnghJ mtu; kWj;jhu;/ 5 tUl fhyjhkjj;jpw;F fhuzk; epiwa egu;fis itj;J g";rhaj;J ngrpndhk;/

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fpiua xg;ge;jk; nghl;L 15 ehl;fspy; gpujpthjp vd; tPl;ow;F te;J kPjpf;fpiuaj; bjhiff;F tPL fl;oj;jUkhW nfl;lhu; ,e;j tptu';fis ehd; jhf;fy; bra;j tHf;Fiu. gpujpthjpapd; tHf;fpd; vjpu;tHf;Fiuapy; Fwpg;gplhky; jw;nghJ bgha;ahff; TWfpnwd; vd;gJ jtW@

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A perusal of the above would clearly show that the appellant has himself admitted a delay of 5 years. It is his categoric case that a week after 17.11.1991 when he had visited the respondent to execute the sale deed the respondent had categorically refused to execute the sale deed. Therefore, the limitation would start from the date of refusal and the suit ought to have been filed in the month of November 1994 itself. However, the suit is filed only in the year 1995.

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7.8. Further P.W.3 would submit that the agreement for construction took place before the agreement of sale. P.W.3 would state as follows:

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@thjpaplk; jhd; ehd; ntiy bra;J tUfpnwd;/ 1990?91k; tUlj;jpy; gpujpthjpf;F fl;olk; fl;Lk; ntiy bra;njhk;/ khjk;. njjp TwKoahJ/ ePjpkd;wj;jpypUe;J rhl;rp brhy;y miHg;ghiz tutpy;iy. thjp jhd; rhl;rp brhy;y Tl;ote;jhu;///

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Kjypy; fl;olk;. fl;l tUk;nghJ gpujpthjp jd;dplk; xU ,lk; ,Ug;gjhft[k;. me;j ,lj;jpw;F gjpyhf jdf;F tPL fl;oj;jUkhWk; gpujpthjp nfl;lhu;/ thjp mYtyfj;jpy; itj;J jhd; gpujpthjp nfl;lhu;/ thjp kw;Wk; gpujpthjpf;fpilna vd;d gpiua xg;ge;jk; vd;gjk;. vd;d ngrg;gl;lJ vd;gJk; bjupahJ/@

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Even the statement in Ex.A.7 reply notice clarifies the respondent stand that the time started ticking from the sixth month when the payment was due. The Appellate Court has rightly allowed the appeal challenging the decree for specific performance.

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Admittedly the respondent is in possession of the property and therefore his possession has to be protected. The Appellate Court has rightly reversed the Judgement of the Trial Court and decreed the suit for injunction.

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In the above circumstances, the appellant has not made out any Substantial Question of law warranting the interference of this Court and hence both the Second Appeals stand dismissed. Consequently, connected Miscellaneous Petitions are also closed. No costs.

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Sd/-

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Assistant Registrar(CS-II)

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//True Copy//

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Sub Assistant Registrar

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kan

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The Principal District Judge Coimbatore.

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The 1^st Additional Sub Judge, Sub Court at Coimbatore.

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Copy to :

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The Section Officer, VR Section,High Court, Madras.

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+2cc to M/s.V.B.Perumalraj, Advocate, S.R.No.30615 +2cc to M/s.T.R.Rajamani, Advocate, S.R.No.30112

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S.A.No.516 & 517 of 2008

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VSN-II(CO) RGA(29/07/2021)

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S.Pachaimuthu v. Tmt.Laithamani

Case brief

What is this about?

What did the court decide?

S.Pachaimuthu v. Tmt.Laithamani

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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