S.M.Sivasamy (Died) Vs S.Nagarajan

Suba Sivasamy [Sole appellant died. A2 to A4 are brought on record as LRs of deceased sole appellant vide order dated 21.06.2024 made in CMP.No.8431/2023]

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... Appellants/Plaintiff

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-Vs-

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S.Nagarajan

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... Respondent/Defendant

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PRAYER: First Appeals filed under Section 96 of the Code of Civil Procedure praying to set aside the Judgment and decree dated 14.02.2018 and made in O.S.No.68 of 2013 on the file of the III Additional District Judge, Gobichettipalayam, Erode District.

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For Appellants : Mr.Kandhan Duraisami

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For Respondent : Mr.B.Gopalakrishnan for Mr.B.Kumarasamy *****

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https://www.mhc.tn.gov.in/judis 1/11

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AS.No.4 of 2019

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J U D G M E N T

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The plaintiff is the appellant, and the sole defendant is the respondent herein.

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For the sake of convenience, the parties will be referred according to their litigative status before the Trial Court.

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The brief facts which give rise to the instant First Appeal is that, the plaintiff and the defendant entered into a unregistered Sale Agreement on 20.04.2010 agreeing to purchase the suit property for a total sale consideration of Rs.12,86,500/- and on the date of the agreement, the plaintiff has paid an advance of Rs.60,000/- and again on 28.10.2010, an additional advance amount of Rs.1,00,000/- was paid. According to the plaintiff, the period for performance was not fixed. It was agreed between the parties that within 3 months from the date of disposal of O.S.No.33 of 2008, as and when the plaintiff pays the balance sale consideration, it is the responsibility of the defendant to execute the sale deed. However, the defendant did not execute the sale deed. It was further stated that the plaintiff has issued a legal notice

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https://www.mhc.tn.gov.in/judis 2/11

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AS.No.4 of 2019

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on 17.04.2013 and in spite of the same, the defendant did not come forward to execute the sale deed. On the contrary, he has sent a reply notice containing the false allegations.

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Disputing the above contentions, the defendant filed a written statement with a defence that the alleged Agreement dated 20.04.2010 was never intended to operate as an agreement and it was executed only as a security for the loan transaction. It was further contended that, if really there was a Sale Agreement, there would not have been receipt of a small amount of Rs.60,000/-, being 5% of the total sale consideration. It was also further pleaded that the suit was barred by limitation.

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At trial, the plaintiff examined two witnesses and on behalf of the defendant, 4 witnesses were examined. The plaintiff and the defendant each

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relied as many as 7 documents and as a Court document, 2 documents were marked.

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The Trial Court framed the following issues:-

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“1/ 20/04/2010k; njjpapl;l jhth fpua xg;ge;jk; cz;ikahdjh> rl;lg;go bry;yj;jf;fjh>

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https://www.mhc.tn.gov.in/judis 3/11

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AS.No.4 of 2019

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2/ jhth fhyf;bfLtpdhy; ghjpf;fg;l;Ls;sjh>

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https://www.mhc.tn.gov.in/judis 4/11

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AS.No.4 of 2019

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3/ thjp jhthr;brhj;ij fpuak; bgWk; nehf;fpy; jd; g';F xg;ge;jj;ij epiwntw;Wtjw;F jahuhft[k; tpUg;gkhft[k; ,Ue;jhuh>

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4/ thjpf;F mth; nfhhpa[s;s Vw;wij Mw;Wf ghpfhuk; fpilf;fj;jf;fjh>

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5/ ntW vd;d ghpfhuk; thjpf;F fpilf;fj;jf;fJ>”

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(Extracted as it is)

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In respect of the issue no.2, viz., the validity of the Agreement, the

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Trial Court has given an affirmative finding on the basis of admission of the defendant. In respect of the limitation, the Trial Court found that since there was no period for performance fixed, the Agreement is not barred by limitation. In respect of the other issues, viz., issue nos.1, 3 and 4, the Trial Court has elaborately considered various aspects and was of the view that the plaintiff did not verify the title of the defendant and not even verify the status in respect of the disposal of the suit. Therefore, ultimately found that the plaintiff was not ready and willing to perform his part of the contract, and as a concomitant, the Trial Court granted the alternate relief directing the defendant to repay a sum of Rs.2,07,833/- and advance amount of Rs.1,60,000/- with interest at the rate of 6% per annum.

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Heard Mr.Kandhan Duraisami, learned counsel for the appellants and Mr.B.Gopalakrishnan, learned counsel for the respondent.

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https://www.mhc.tn.gov.in/judis 5/11

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https://www.mhc.tn.gov.in/judis 6/11

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The learned counsel for the appellants would vehemently contend

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that the defendant had categorically admitted the sale agreement, and that when the agreement itself stipulates that it was the responsibility on the part of the defendant to execute the Sale Deed immediately after disposal of the suit in O.S.No.33 of 2008, the conduct of the defendant not executing sale deed, knowing fully well the suit in O.S.No.33 of 200 was already disposed, cannot be put against the plaintiff. It was also contended that having the defendant admitted the agreement and denying the relief of specific performance is contrary to law. It was further contended that the plaintiff has always been ready and willing to perform his part of the contract.

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Per contra, the learned counsel for the respondent would

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vehemently contend that the very agreement was never intended to operate as a Sale Agreement and it was only executed as a security for the loan transaction. Such nature of security would manifest from the conduct of the plaintiff, as the plaintiff has entered into a contract only after disposal of suit, and that the plaintiff did not verify the title of the defendant. It was also contended that the receipt of very paltry sum of Rs.60,000/- would also be an indication to show the suit agreement as a security.

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https://www.mhc.tn.gov.in/judis 7/11

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From the submissions made by either side, the following points

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arise for consideration:-

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Whether the plaintiff was ready and willing to perform his part of the contract?

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Whether the plaintiff is entitled for specific performance as prayed for?

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Whether the suit is barred by limitation?

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To what other relief?

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Point No.3

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In respect of limitation, as rightly found by the Trial Court, the Agreement did not stipulate the period for performance. If there is no period fixed for performance, it is settled principle of law that the cause of action to file a specific performance suit would commence from the date of refusal to execute the sale deed. In this case, the refusal came into existence through reply notice on 20.04.2013. In the reply notice, the defendant has disputed the agreement. Therefore, the cause of action for filing the specific performance suit commences only from the date of receipt of the reply notice. Here, the suit was filed in the year 2013. Therefore, the finding rendered by the Trial Court that the suit is not barred by limitation is perfectly in order.

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https://www.mhc.tn.gov.in/judis 8/11

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Point Nos.1, 2 & 4 : In respect of ready and willingness and

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entitlement of specific performance, the sale agreement stipulates that, as and when the plaintiff makes the payment, within three months from the date of disposal of the suit in O.S.No.33 of 2008, the defendant has to execute the sale deed. Even according to the plaintiff, on the date of execution of the sale agreement, the suit in O.S.No.33 of 2008 has already been disposed off. Therefore, as rightly contended by the learned counsel for the defendant, if the plaintiff was really intended to have the Sale Agreement with the defendant, he would have verified the pendency of the suit. The absence of verification with regard to the pendency of the suit would manifest the absence of intention to have the sale deed of the suit property. As the Trial Court rightly found, when the plaintiff comes forward to purchase a property, it is expected

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from him a thorough verification of title. From the proclivity of the transaction, this Court could not find any efforts made by the plaintiff to verify the title of the defendant. In such view of the matter, this Court does not find any infirmity in the order passed by the Trial Court. Accordingly, this Appeal lacks merits.

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