M.Unnamalai @ Sivagami Ammal v. Sagayamari (Died)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 13.06.2016
CORAM:
THE HONOURABLE MS.JUSTICE R.MALA Second Appeal (MD) No.483 of 2016 and C.M.P.(MD) No.5192 of 2016 M.Unnamalai @ Sivagami Ammal ... Appellant/Appellant/ Defendant versus Sagayamari(Died) 1.S.J.Gayas 2.Joyci 3.Jayaprakash 4.Rajesh Pandiyan ... Respondents/Respondents/ Legal Heirs of original plaintiff Prayer: Second Appeal is filed under Section 100 of CPC., against the judgment and decree, dated 29.01.2016 passed in A.S.No.29 of 2013 on the file of 1st Additional District Court, Tuticorin confirming the judgment and decree, dated 15.12.2011 passed in O.S.No.148 of 2011 on the file of the Sub-Court, Tuticorin. For Appellant :Mr.V.Meenakshisundaram For Respondents :Mr.P.S.Sundaram
JUDGMENT
The defendant, who lost her battle before both the Courts below has come forward with this second appeal.
2. The respondents' mother one Sagayamari has filed the suit on the basis of sale agreement, dated 08.03.1997 stating that she was entered into a sale agreement with the defendant for purchasing nine cents of lands, for a total sale consideration of Rs.8,01,000/-, at the rate of Rs.89,000/- per cent. A sum of Rs.1,50,000/- has been paid towards advance amount and the property was handed over to the plaintiff on 09.09.1997. The plaintiff was always ready and willing to perform her part of contract. She issued a notice to the defendant. Even then, the defendant was not ready and willing to perform her part of contract and attempted to alienate the property. Hence, the
plaintiff has given a complaint and thereafter filed the suit for specific performance.
3. The appellant/defendant herein has raised the pleading that the suit sale agreement is not a sale agreement and it was given only as security for the amount of Rs.1,50,000/- borrowed by her from the plaintiff. It is further pleaded that the document has been concocted and the plaintiff has no means to purchase the land by paying such huge amount.
4.The trial Court, after considering both the plaint pleadings, written statement and the submission made on either side, has framed necessary issues and after considering the oral and documentary evidence, decreed the suit. Against the said judgment and decree, the defendant has preferred an appeal and the first appellate Court has also after considering the arguments of both sides confirmed the decree and judgment, against which, the appellant/defendant has come forward with this second appeal. 5.The appellant/defendant has raised two grounds. The first ground is that there must be averment in the plaint in respect of ready and willingness on the part of the plaintiff to perform her part of contract as per Section 16(c) of the Specific Relief Act.
6. For that, he has also relied on the judgment of the Honourable Supreme Court of India in Padmakumari & others vs. Dasayyan & others reported in 2015(6) CTC 545 to state that the averment is not as per Order 6, Rule 3, C.P.C., Clause 3 of Form No.47 in Appendix 'A'.
7. Paragraph Nos.21 and 22 of the above said judgment reads as follows:
21.The second important legal contention raised by defendant Nos.12 to 15 is that the pleadings of the plaintiff is not in conformity with Order 6, Rule 3, C.P.C., Clause 3 of Form No.47 in Appendix 'A', extracted hereinabove. By a careful reading of Paragraph 6 of the Plaint makes it very clear that the averment as provided under Clause 3 is not in stricto sensu complied with by the plaintiff. The same is evidenced from the averments made at paragraph 6 of the plaint which reads thus:
"6.The plaintiff is ready and and willing to perform his part of Contract by paying the balance of Sale consideration of Rs.63,000/- and take the sale deed in accordance with the provisions of the Agreement Deed, dated 19.04.1992."
22.Upon a careful reading of the abovesaid Paragraph, we have to hold that the plaintiff has not complied with the legal requirement. Which is mandatory as provided under Section 16(c) of the Specific Relief Act. Section 16(c) fell for consideration and has been interpreted by this Court in a number of cases, referred to supra, upon which reliance has rightly been placed and the said decisions are applicable to the fact situation in support of defendant Nos.12 to 15 and, therefore, we have to hold that the concurrent finding of fact recorded by the High Court on Issue No.1 is erroneous in law and is liable to be set aside. 8.
The second ground raised by the learned counsel for the appellant/defendant is that even though the defendant/appellant herein had not taken the defence of readiness and willingness, it is the duty of the Court to decide the fact whether the plaintiff was always ready and willing to perform her part of contract. But the trial Court has not given a finding to that effect. Hence, he relied on the judgment of this Court in Farooque Dadabhoy vs Dr.Usha S.Bhat reported in 2014(4) CTC 290 and prayed for admission.
9. Paragraph Nos.15(d) and (e) of the above said judgment reads as follows:
"(d) It is true that there is no requirement to keep liquid cash with the plaintiff to show that he has been ready and willing to perform his part of the contract. However, in this case the nonavailability of money plays a crucial role, inasmuch as in all his letters marked as Exs.P6, P9, P12, P15, the plaintiff has stated that he had the funds in his account and he was losing interest. However, in his evidence, it was stated that by the term "deposit" what he meant was the availability of shares with him which could be sold to raise money. The false representation made by the plaintiff in various exhibits regarding availability of sale consideration in Bank would disentitle him from seeking the decree of Specific Performance.
(e) The plaintiff in his evidence as P.W.1 admitted that he met the defendant on 23rd November, 2005. However, in Ex.P23-notice he has stated that the defendant avoided him in November, 2005.
Therefore, it is clear that PW1 wanted to manipulate records to appear as if he was ready to conclude the transaction before the cut off date and it was only the defendant, who avoided him during the month of November, 2005."
10.I have heard the learned counsel for the appellant and perused the materials available on record.
11. The respondents herein are the legal heirs of the original plaintiff. The plaintiff had filed a simple suit for specific performance. In paragraph Nos.4 and 5 of the plaint, she has specifically averred that she was always ready and willing to perform her part of contract.
12. It is pertinent to note that even though the defendant received notice and not chosen to give a reply, in the written statement fairly conceded and disputed that the sale agreement was entered into between them only as a security for the amount borrowed from the plaintiff.
13. But perusal of the decision relied on by the learned counsel for the appellant reported in 2015(6) CTC 545 (cited supra) and the averment in the plaint paragraph Nos.4 and 5, I am of the view that Order 6 Rule 3 of C.P.C, Clause 3 of Form 47 in Appendix 'A' is clearly followed in the plaint. In such circumstances, I am of the view that the above judgment is not applicable to the facts of the present case. So the arguments for framing the first substantial question of law fails.
14. The second argument is that the trial judge has not given a finding in respect of readiness and willingness to perform the part of contract by the plaintiff and no issue has been framed.
15. It is pertinent to note that the appellant herein has not disputed that the plaintiff was ready and willing to perform her part of contract. Then, the trial Court has to decide the matter. Even the trial Court has decreed the suit without giving finding.
16. The appellant/defendant filed the first appeal. In the memorandum of appeal, she has not raised the specific plea that the trial Court has not given a finding in respect of readiness and willingness on the part of the plaintiff.
17. As stated circumstances, I am of the view that with a view to drag on the proceedings, following the delay in tactics to prevent the decree holder to enjoy the fruits of the decree, she has raised a new plea, which was not raised either in the trial Court or in the first appellate Court.
18. In such circumstances, I am of the view that the decision reported in 2014(4) CTC 290(cited supra), is also not applicable to the facts of the present case.
19. Hence, I am of the view that there is no substantial question of law arises for consideration in this second appeal and the second appeal is liable to be dismissed.
20. Accordingly, this second appeal is dismissed at the stage of admission. No costs. Consequently, connected miscellaneous petition is also dismissed.
Sd/- Assistant Registrar(CS-I) /True copy/ Sub Assistant Registrar To 1.The 1st Additional District Judge, Tuticorin. 2.The Subordinate Judge, Tuticorin.
+1 cc to M/s.D.Nallathambi, Advocate in SR.No.30204/16 +1 cc to M/s.P.S.Sundaram, Advocate in SR.No.30188/16 pm CSL/AAL-MPA/22.07.2016 : 5P/5C Second Appeal (MD) No.483 of 2016 and C.M.P.(MD) No.5192 of 2016 13.06.2016