Madras High Court
Thangaraj @ Santhanakrishnan vs Muthulakshmi on 12 June, 2025
S.A.(MD)No.204 of 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 12.06.2025
CORAM
THE HON'BLE MR.JUSTICE G.ARUL MURUGAN
S.A.(MD)No.204 of 2025
Thangaraj @ Santhanakrishnan ... Appellant/Appellant/
Plaintiff
Vs.
1.Muthulakshmi
Ramasamy (Died
2. M.Karuppusamy ... Respondents / Respondents 1&3 /
Defendants 1 & 3
PRAYER : Second Appeal filed under Section 100 Cr.P.C., against the
judgment and decree dated 05.02.2025 passed in A.S.No.2 of 2022 on
the file of the Additional District Court, Palani, confirming the judgment
and decree dated 15.12.2021 passed in O.S.No.194 of 2004 on the file of
the Additional Sub Court, Palani.
For Appellant : Mr.S.Anand Chandrasekar
for M/s.Sarvabhauman Associates
JUDGMENT
This second appeal has been filed challenging the judgment and
decree dated 05.02.2025 passed in A.S.No.2 of 2022 on the file of the
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Additional District Court, Palani, confirming the judgment and decree
dated 15.12.2021 passed in O.S.No.194 of 2004 on the file of the
Additional Sub Court, Palani.
2. The plaintiff is before this Court on Appeal. The parties are
referred, as per the litigative status before the trial Court.
3. It is the case of the plaintiff that he entered into sale agreement
on 06.11.2002 in Ex.A1 with the husband of the first defendants, viz.,
Subramanian. As per the agreement, the suit property was agreed to be
sold for a total sale consideration of Rs.5,00,000/- and on the date of
agreement itself, an advance of Rs.4,75,000/- was paid and for the
payment of balance consideration Rs.25,000/-, time period of 3 years was
fixed for payment and completion of the same. It is the case of the
plaintiff that since three years time has been fixed, they have time till
05.11.2005 to pay the balance consideration and complete the sale.
According to the plaintiff, the said Subramanian with whom the sale
agreement in Ex.A1 was entered into died on 23.09.2004 and thereafter,
the plaintiff was ready with the balance sale consideration and had issued
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a legal notice to the first defendant, who is the wife of the deceased
Subramanian on 05.10.2004 in Ex.A2, calling upon her to come and
execute the sale deed in the Registrar office on 11.10.2004. It is also
their claim that the plaintiff was ready and present in the Registrar office
to complete the sale, but, however, the first defendant did not turn up and
had subsequently issued a reply notice dated 18.10.2004 in Ex.A4,
denying the sale agreement. As such, the plaintiff had come forward
with the suit for specific performance of the sale agreement in Ex.A1.
Further, according to the plaintiff, since after the agreement in Ex.A1, the
first defendant’s husband had executed a power of attorney in favour of
his brother, the second defendant, who in turn had executed a sale
agreement in favour of the third defendant, had been added as parties in
the suit.
4. The defendants resisted the suit by filing a written statement
denying the transaction in Ex.A1. It is the case of the defendants that the
husband of the first defendant’s friend one Rajendran, who is an
employee in the Forest Department, obtained a loan and Subramanian
had stood as Guarantor and for that purpose as a security had executed
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blank promissory note and also stamp papers. It is also the case of the
defendants that no such sale agreement has been executed for the suit
property in Ex.A1 by Subramanian and further as the value of the
property even at the time of Ex.A1 was nearly One Crore, there was
absolutely no necessity for the said Subramanian to enter into sale
agreement for a meagre sum of Rs.5,00,000/-.
5. During trial, the plaintiff examined himself as P.W.1, one
Kanagaraj as P.W.2 and marked Ex.A1 to Ex.A4. On the side of the
defendants, the second defendant examined himself as D.W.1 and have
marked Ex.B1 to Ex.B6.
6. The trial Court, after analyzing the documents and evidences,
even though came to the conclusion that the execution of the sale
agreement in Ex.A1 is valid, but however, denied the relief of specific
performance on the ground that the plaintiff was not ready and willing to
complete his part of the contract and ultimately dismissed the suit.
However, even though there was no prayer seeking any alternative relief
of advance of refund, still the trial Court proceeded and granted a decree
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for an alternative relief of refund of the advance amount.
7. Aggrieved by the decree of the trial Court, the plaintiff
preferred an Appeal. On appeal the First Appellate Court by judgment
dated 05.02.2025, reappraised the evidence and also taking note of the
fact that the property had a higher value, in view of the document marked
in Ex.B6 and also considering the fact that even though the plaintiff had
issued a legal notice, calling for registration on 11.10.2004, he had not
even purchased the stamp paper as such he decided that he was not ready
on that date for completion of the sale, dismissed the appeal confirming
the judgment and decree of the trial Court. It is to be noted that as against
the grant of alternative relief to refund advance amount, the defendants
had not preferred any appeal. Assailing the judgment and decree of the
Courts below, the plaintiff is before this Court on appeal.
8. In view of the materials available on record, the second appeal
is taken up for hearing in the admission stage itself.
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9. The learned counsel appearing for the appellant vehemently
contended that there was no specific denial on the part of the first
defendant in respect of the sale agreement in Ex.A1, but, however, had
later shifted the stand by introducing a defence that the agreement was
executed for the purpose of security in respect of loan availed by her
husband’s friend. It is also the contention of the learned counsel that the
first defendant did not choose to examine herself as a witness, who had a
better knowledge of the transaction entered into by the husband and
therefore, sought that adverse interference to be drawn. The learned
counsel further contended that even though the second defendant was
examined as D.W.1, he is only the brother of the first defendant’s
husband and he had no knowledge about the transaction in Ex.A1, but,
however, since a power of attorney was executed in his favour, who in
turn registered a sale agreement in favour of the third defendant, the
subsequent agreement holder has also been made as a party. The learned
counsel further contended that having paid an advance of Rs.4,75,000/-
and the agreement was valid for a period of three years, the plaintiff had
time to complete the same by paying the sale consideration and within
the time fixed, the legal notice has been issued and the plaintiff had come
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up with the suit, which the Courts below had not considered in a proper
perspective and the decision arrived at is perverse and not based on
evidence on record and therefore sought for interference of this Court.
10. Heard the learned counsel for the appellant and perused the
materials available on record.
11. The plaintiff had come up with the above suit for specific
performance based on the sale agreement dated 06.11.2002 in Ex.A1. As
per the averments contained in the sale agreement, total sale
consideration has been fixed for a sum of Rs.5,00,000/- out of which, an
advance of Rs.4,75,000/- has been paid by the plaintiff on the date of sale
agreement itself and for the balance payment of Rs.25,000/- towards sale
consideration, time period of three years has been fixed in the sale
agreement. The first defendant’s husband, viz., Subramanian, who had
entered into the sale transaction with the plaintiff admittedly died on
23.09.2004.
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12. It is to be noted at this juncture that even though the parties are
free to enter into the agreement agreeing their own terms and condition,
in a suit filed for specific performance, the intention and conduct of the
parties in respect to the sale transaction is to be considered by this Court.
In that context, if the sale agreement in Ex.A1 is taken into
consideration, it is seen that out of a total sale consideration of
Rs.5,00,000/-, even on the date of the sale agreement itself, at least more
than 95% of the consideration amount, amounting to Rs.4,75,000/- has
been paid. However, for the meagre balance sum of Rs.25,000/-, time
period of three years has been fixed in the sale agreement. No reason has
been spelt out in the sale agreement for abnormally granting three years
time period for completion of the sale agreement. In the evidence, P.W.1
had admitted that there is no other reason for giving such a long time,
but, only since Subramanian, husband of the first defendant requested for
time, a period of three years had been fixed in the sale agreement. In this
context, in a normal sale transaction entered into, when the plaintiff
wanted to purchase the property and he had also paid a sum of
Rs.4,75,000/- on the date of agreement itself, it is highly improbable and
unacceptable that the plaintiff agreed to the first defendant’s husband and
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has fixed the period of three years to complete the sale, by paying the
balance sale consideration of Rs.25,000/-.
13. Though the claim was within the time of the sale agreement,
but the fact remains that till the date of death of the husband of the first
defendant, i.e., on 23.09.2004, which is nearly after two years from the
date of execution of the sale agreement, the plaintiff had not issued any
notice or called upon the defendant to complete the sale by paying the
balance sale consideration. The legal notice was issued only 05.10.2004
in Ex.A2, that is after the death of the first defendant’s husband. In the
legal notice, the plaintiff had called upon the defendant to be present in
the Sub Registrar office to complete the sale on 11.10.2004. In this
regard, the trial Court and the appellate Court had also considered the
admission of the plaintiff that on 11.10.2004, when it is claimed by the
plaintiff that he was ready to complete the sale consideration, admittedly
the plaintiff had not even purchased the stamp paper and prepared the
sale deed for completing the sale, which makes the claim of the plaintiff
doubtful.
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14. On receipt of the legal notice in Ex.A2, the first defendant had
issued a reply on 18.10.2004 in Ex.A4, disputing the sale transaction in
Ex.A1. It is the specific denial on the part of the defendants that this
agreement came into existence only when the first defendant’s husband
stood as a guarantor in respect of the loan availed by his friend, who was
working in the Forest Department.
15. In the suit for specific performance, when the plaintiff
approaches the Court claiming discretionary relief, the plaintiff is
expected to prove that he was always ready and willing to perform his
part of the contract. The plaintiff will be entitled to specific performance
only if he satisfies the condition as per Section 16(c) of the Specific
Relief Act, 1963. Section 16(c) of the Specific Relief Act, 1963 reads as
follows:
16.Specific performance of a contract cannot be
enforced in favour of a person,
(a) …
(b) …
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(c): who fails to prove that he has performed or has
always been ready and willing to perform the essential
terms of the contract which are to be performed by him,
other than terms the performance of which has been
prevented or waived by the defendant.
Explanation.—For the purposes of clause (c),—
(i) where a contract involves the payment of money,
it is not essential for the plaintiff to actually tender to the
defendant or to deposit in court any money except when so
directed by the court;
(ii) the plaintiff must prove performance of, or
readiness and willingness to perform, the contract
according to its true construction.
16. The issue of readiness and willingness, which is contained in
Section 16(c) of the Specific Relief Act has been considered by the
Hon’ble Supreme Court in the case of His Holiness Acharya
Swamiganesh V. Shri Sita Ram Thapar reported in 1996-SCC-4-526,
where the Hon’ble Supreme Court held that the readiness means the
financial capacity of the plaintiff to pay the balance sale consideration
and the willingness means the conduct of the plaintiff in completing the
sale transaction.
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17. In the case on hand, as referred earlier, though it is claimed
that an amount of Rs.4,75,000/- has been paid as advance, even on
06.11.2002, when the sale agreement was executed in Ex.A1, still for
payment of Rs.25,000/-, a period of 3 years has been fixed. Further, till
the legal notice was issued in Ex.A2, there was no claim on the part of
the plaintiff, to call upon the defendants to complete the sale transaction.
Apart from this, the plaintiff ought to have proved the readiness and
willingness from the date of execution of the agreement till the date of
decree. Here, even after the suit was filed, an ex-parte decree came to be
passed in the suit on 19.04.2005, whereupon, the Court had directed the
plaintiff to deposit the balance sale consideration within a period of two
months. However, even after ex-parte decree was passed and the
condition was imposed, the plaintiff has not come forwards to deposit the
balance sale consideration and the plaintiff choose to file an
Interlocutory Application in I.A.No.268 of 2008, seeking extension of
time to deposit the balance sale consideration of Rs.25,000/-. However,
that Interlocutory Application came to be dismissed only on 16.12.2019,
that is after a period of 14 years from the date of ex-parte decree. From
the above it is evident that the plaintiff was not ready and willing to
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perform his part of the contract, based on the sale agreement in Ex.A1,
even prior to filing of the suit and also post filing of the suit, when the
exparte decree came to be passed and the plaintiff was directed to deposit
the balance sale consideration within a period of two months. The
conduct of the plaintiff is established by the facts borne out from records.
The plaintiff has miserably failed to prove his readiness and willingness
to perform his part of the contract, entitling him for a decree for specific
performance, based on the sale agreement in Ex.A1.
18. Further, it is evident that it is the specific claim of the
defendants that the value of the property fetched more than One Crore,
even at the time of the sale agreement. In this regard, the defendants had
marked Ex.B6, which is the valuation register and the Appellate Court
based on this Ex.B6 had rendered a finding that the value of the suit
property even on the date of execution of the sale agreement was nearly
One Crore, as claimed by the first defendant. It is also seen that the suit
property is a vast extent of building and in the facts and circumstances of
the present case, where the sale agreement has been executed for a
meagre sum of Rs.5,00,000/- and the plaintiff even after the advance of
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the major amount, did not choose to complete the sale, all makes it
evident that the sale agreement in Ex.A1 has not been proved by the
plaintiff, to seek for decree of specific performance.
19. The Courts below have rightly analyzed the evidences in a
proper perspective and rendered a finding of fact which is based on the
materials available on record. This Court does not find any illegality or
perversity in the findings rendered by the Courts below, warranting any
interference. This Court is not able to find any substantial question of
law that arises in the appeal for consideration.
20. In fine, the Second Appeal is dismissed. However, there shall
be no order as to costs.
NCC : Yes / No 12.06.2025
Internet : Yes / No
Index : Yes / No
LS
To
1.The Additional District Court,
Palani.
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2.The Additional Sub Court,
Palani.
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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G.ARUL MURUGAN,J.
LS
SA.(MD)No.204 of 2025
12.06.2025
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