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Valliammal @ Valliatha v. Angammal - L.P.A.No.7 of 1998  RD-TN 145 (6 March 2002)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HONOURABLE MR. JUSTICE S.JAGADEESAN AND
THE HONOURABLE MR. JUSTICE P.D.DINAKARAN L.P.A.No.7 of 1998
1. Valliammal @ Valliatha 2. Eswari
3. Rajesekaran .. Appellants Vs
1. Angammal 2. K.Theenamuthu
4. Karuppanna Gounder
5. Sivamalai Gounder .. Respondents PRAYER: Appeal against the judgment and decree dated 17.12.1996 of the Honble Mr.Justice Govardhan in A.S.No.179 of 1982. For Appellants : Mr.S.V.Jayaraman, Senior Counsel For Mr.P.Peppin Fernando For Respondents : Mr.V.Narayanaswami for Respondents 1 to 3 No appearance for Respondents 4 and 5 : JUDGMENT
The above appeal is directed against the judgment and decree dated 1 7.12.1996 made in A.S.No.179 of 1982 reversing the judgment and decree dated 18.12.1981 in O.S.No.88 of 1977 on the file of the learned Subordinate Judge, Erode.
2. For the purpose of convenience the parties are arrayed as per their rank in the suit.
3. The appellants are the legal representatives of the first defendant; and respondents 1 and 2 are the legal representatives of the plaintiff in O.S.No.88 of 1977 on the file of the learned Subordinate Judge, Erode, wherein, the plaintiff sought for specific performance to direct the first defendant therein to execute a sale deed in favour of the plaintiff therein with regard to the 'A' schedule property, based on an agreement dated 19.1.1975 entered into between the plaintiff and the first defendant therein; and for payment of Rs.11,132.95 with interest, which was said to have been paid by the plaintiff to the Land Development Bank, Kangayam towards the loan availed by the first defendant from the said bank towards mortgage dated 18.7.1970 for a sum of Rs.25000/-, marked as Ex.A3, with regard to 'A' and 'B' schedule properties in excess of the sale consideration agreed under the agreement dated 19.1.1975. 4.1. The plaintiff claims that he was in possession of the A schedule property under a lease deed dated 15.8.1971, marked as Ex.A1, entered into between the plaintiff and the 1st defendant and thereafter he had entered into a sale agreement with the first defendant on 19.1 .1975, which was marked as Ex.A2, for sale of 'A' schedule property for a sum of Rs.30,000/-, and paid a sum of Rs.6000/- as advance as per the said agreement dated 19.1.1975 and agreed to discharge the dues payable by the first defendant to the Land Development Bank, Kangayam, to pay the balance on or before 25.4.1975 and to get the sale deed executed in his favour.
4.2. The plaintiff further contends that a few days after the agreement dated 19.1.1975, the plaintiff paid a sum of Rs.3620/- to the said Bank on behalf of the 1st defendant and handed over the receipt for the same to the first defendant; he had paid a further sum of Rs.718 6/- to the 1st defendant as per Ex.A5; and accordingly, he had made a total payment of Rs.16806/-, as per the following details: (i) Amount paid on the date of agreement : Rs.6000.00
(ii) Amount paid to Bank : Rs.3620.00
(iii) Amount paid to 1st defendant : Rs.7186.00
========= Rs.16806.00 ========= 4.3. Since the plaintiff was already in possession from 15.8.1971, it is contended that he had also installed an Oil Engine Pump set at a cost of Rs.3750/- in the suit property.
4.4. It is further alleged that even though the plaintiff had paid a sum of Rs.16806/- and had undertaken to discharge the balance amount payable to the bank on behalf of the 1st defendant, the 1st defendant was refusing to execute the sale in favour of the plaintiff as per the agreement dated 19.1.1975. On the other hand, it is alleged that the 1st defendant had instigated the bank to take steps to bring the properties for auction, which necessitated the plaintiff to make the following payments:
(i) As per Ex.A11 dated 25.1.1977 : Rs. 3605.15
(ii) As per Ex.A12 dated 31.1.1977 : Rs. 9595.20
(iii) As per Ex.A13 dated 22.2.1977 : Rs.11126.60
========= Rs.24326.95 ========= 4.6. On the other hand, the 1st defendant sold the B schedule property to the defendants 2 and 3 on 21.2.1977, which was registered on 2 5.2.1977 for a sum of Rs.15000/-.
4.7. The plaintiff therefore contends that he had made a total payment of Rs.41,132.95 and had thus paid a sum of Rs.11,132.95 more than the agreed sale consideration, viz., Rs.30,000/-, as per the agreement dated 19.1.1975. Hence, the plaintiff laid the above suit. 5.1. The 1st defendant resisted the suit on the ground that the plaintiff was not ready and willing to perform his part of obligation. The 1st defendant denied the payment of Rs.3620/- as well as payment of Rs.7186/on various occasions as alleged; that the Oil Engine Pump set was installed at the expense of the 1st defendant and that the relief sought for is barred by limitation.
6. According to Defendants 2 and 3, they were not aware of the sale agreement dated 19.1.1975 entered into between the plaintiff and the 1st defendant and therefore, they are bona fide purchasers of the B schedule property under sale deed dated 21.2.1977, registered on 25.2.1977 for a sum of Rs.15000/-, which is marked as Ex.A14.
7. In support of the above rival contentions, the plaintiff examined himself as PW1 and marked 17 exhibits on his behalf, namely A1 to A1 7, and the defendants 1 and 3 examined themselves as D.W.1 and D.W.2 respectively, and marked two documents, namely Ex.B1 and B2, on their behalf.
8. On appreciation of the oral and documentary evidence, the trial Court found that the plaintiff was not in possession of the A schedule property; and the oil engine pump set was also not installed by the plaintiff. Even though the trial Court found that the plaintiff and the 1st defendant entered into an agreement dated 19.1.1975, pursuant to which the plaintiff made a payment of Rs.6000/- to the 1st defendant, on the date of the agreement, the trial Court disbelieved the payments of Rs.3619.85 under Ex.A4 and Rs.7186/- made under Ex.A5 as claimed by the plaintiff; and further held that the payments made under Ex.A11 to A13 are made on the plaintiffs own accord and not towards the sale consideration and therefore held that Exs.A11 to A13 cannot be relied upon. Accordingly, the trial Court disbelieved the case of the plaintiff; accepted the case of the defendants 2 and 3 that they are bona fide purchasers of the B schedule property; and therefore dismissed the suit.
9. However, on appeal preferred by the plaintiff, the learned Judge, by decree and judgment dated 17.12.1996 in A.S.No.179 of 1982, disbelieved the case of the defendants for the sale of B schedule property by the first defendant in favour of the defendants 2 and 3 under Ex.A14 for a sum of Rs.15000/-, even though the said sale deed marked as Ex.A14 contains a recital that the sale was intended to discharge the mortgage debts payable by the first defendant to the Bank, as there was no bona fide in the contention of the subsequent purchasers, namely defendants 2 and 3, that they had failed to make enquires into the encumbrances on the B schedule property on the date of execution of Ex.A14. On the other hand, the learned Judge accepted the payments said to have been made by the plaintiff under Ex.A4, A5 and A11 to A13, and hence set aside the judgment and decree of the trial Court dated 18.12.1991 in O.S.No.88 of 1977 and decreed the suit as prayed for. 10. Since during the pendency of the appeal both the plaintiff and the 1st defendant died, their legal representatives were brought on record, and the legal representatives of the 1st defendant preferred the above Letters Patent Appeal.
11.1. Mr.S.V.Jayaraman, learned senior counsel for the defendants/ appellants herein, strongly challenges the findings of the learned Judge regarding the payment of Rs.7186/- said to have been made by the plaintiff to the 1st defendant and contends that, since the plaintiff had not chosen to pay the balance sale consideration on or before 25.4 .1975 as agreed, the plaintiff had come with false testimony and therefore, he is not entitled for the relief of specific performance as held by the Division Bench of this Court in SIRIGINEEDHI SUBBARAYADU Vs. KOPANATHI TATAYYA & OTHERS reported in 1937 MWN 1158. 11.2. Mr.S.V.Jayaraman, learned senior counsel, further contends that the plaintiff failed to discharge the loan and the mortgage debts of the 1st defendant within the stipulated time, but had chosen to take his own time making piecemeal payments, which necessitated the 1st defendant to sell the B schedule property to defendants 2 and 3 under Ex.A14 on 21.2.1977, and that it was only thereafter, the plaintiff had made a payment of Rs.11,126.60 to the bank on 22.2.1977, as per Ex.A13. 11.3. Placing reliance on the decision in K.KALIANNA GOWNDER Vs. A.KALIANNA GOWNDER reported in 1986 (2) MLJ 470, wherein it is held that the plaintiff should not only aver but also prove his readiness and willingness to perform his part of obligation, the learned senior counsel for the appellant contends that, in the instant case, the plaintiff had not proved that he was ready and willing to perform his part of obligation, namely to discharge the mortgage debts of the 1st defendant within the stipulated time, namely on or before 25.4.1975, as per agreement dated 19.1.1975 marked as Ex.A2, till the 1st defendant sold the B schedule property to defendants 2 and 3 to discharge the said loan and executed the same on 21.2.1977.
12.1. Per contra, the learned counsel for the plaintiff/respondents herein contends that since the plaintiff had already made payment of Rs.30,006.20, the fact that he made payment of Rs.11,126.60 only on 2 2.2.1977, namely after the execution of the sale deed by 1st defendant in favour of defendants 2 and 3 on 21.2.1977, will not be a sufficient ground to hold that the plaintiff has come forward with a false case, with unclean hands. In this regard, he places reliance on the decision in GURUSWAMI GOUNDER Vs. KESAVA REDDIAR reported in 1996 (2) MLJ 461.
12.2. The learned counsel for the plaintiff/respondents herein, also placing reliance on the decision in MOHAN BREWERIES & DISTILLERS LTD. Vs. SUDHARSHAN TRADING CO. LTD., reported in 2002(1) TLNJ 65, contends that the relief of specific performance should be granted as an ordinary rule on the exception as awarding damages, in the event of refusal of equitable consideration.
13. We have bestowed careful consideration to the submissions of both sides.
14. The issue that arises for our consideration is that whether the plaintiff having sought for a specific performance of an agreement dated 19.1.1975, marked as Ex.A2, had performed his part of obligation as per the said agreement ?
15.1. The execution of the agreement dated 19.1.1975, marked as Ex.A2 , is not disputed before us by either party; nor the payment of Rs.60 00/- made on the date of agreement by the plaintiff. However, the payment of Rs.3619.85 said to have been made under Ex.A4, a sum of Rs.7 186/- made under Ex.A5, as well as payments made vide Ex.A11, A12 and A13 for sum of Rs.3605.15, 9595.20 and 11126.60 on 35.1.1977, 31.1.1977 and 22.2.1977 respectively, were seriously disputed on behalf of the defendants/ appellants herein as the same were not in terms of the agreement dated 19.1.1975.
15.2. The learned counsel for the defendants/appellants also argues that the 1st defendant was constrained to sell the B Schedule suit property to defendants 2 and 3 and execute the sale deed dated 21.2.1 977 under Ex.A14, only due to the failure of performance on the part of the plaintiff, to discharge the mortgage debt payable by the 1st defendant to Land Development Bank, Kangayam, till 22.2.1977, even though the plaintiff had agreed to do so under the agreement dated 19.1.1975, on or before 25.4.1975. The learned counsel for the plaintiff/respondents herein is not disputing the fact that the plaintiff had agreed to discharge the mortgage debts payable by the 1st defendant to the bank and to get the sale deed executed on or before 25.4.1975. 15.3. If that be so, assuming the payments of Rs.3619.85 and Rs.7186 /- were true, we do not find any reason for making such payments by the plaintiff to the 1st defendant when he had accepted to discharge the mortgage loan payable by the 1st defendant to the Land Development Bank, Kangayam. Therefore, we are unable to accept the case of the plaintiff/respondents herein that they made the above payments viz., Rs.3,619.85 and Rs.7,186/- in spite of their obligation to discharge the mortgage debts payable by the 1s t defendant to the Land Development Bank, Kangayam. It is only because of such inordinate delay in discharging the said mortgage debt by the plaintiff, the B Schedule property was brought to sale by the first defendant in favour of defendants 2 and 3 under Ex.A14 dated 21.2.1977, and only one day thereafter, the plaintiff has hassled to discharge the mortgage debt by making a payment of Rs.11,126.60 on 22.2.1977, which fact would evidently prove that the plaintiff was not ready and willing to discharge the mortgage debt payable by the 1st defendant to the Land Development Bank, as per the agreement dated 19.1.1975, and the case of the plaintiff is therefore false and liable to be rejected. The plaintiff, having thus come with a false testimony, is, in our considered opinion, not entitled for the equitable relief as prayed for, as per the ratio laid down in SIRIGINEEDHI SUBBARAYADU Vs. KOPANATHI TATAYYA & OTHERS reported in 1937 MWN 1158, referred supra, which was followed in PACHAIAPPAN & OTHERS Vs. S.P.KOON MARI reported in 1996(2) LAW WEEKLY 1. 15.4. The mere fact that the plaintiff discharged the loan by making a final payment of Rs.11,126.60 on 22.2.1977, under Ex.A13, would not cure the defect that he was not ready and willing to perform his part of the obligation within the time stipulated. The belated payment thus made by the plaintiff on 22.2.1977 under Ex.A13, in our considered opinion, would not set back the clock. Hence, the plaintiff is not entitled for the equity relief of specific performance of the contract. 15.5. However, we are satisfied that there are materials to show that the plaintiff had made excess payment of Rs.11,132.00, which the 1 st defendant is not entitled to enrich herself unjustly. 16. We are, therefore, in the interest of justice, obliged to set aside the order of the learned Judge dated 17.12.1996 made in A.S.No.179 of 1982, and consequently, reject the relief of specific performance of the agreement dated 19.1.1975, and further direct the 1st defendant to refund the excess amount of Rs.11,132.00 with interest at 18 per annum from 22.2.1977, as the plaintiff is liable to forfeit the other amounts which were made in January, 1975.
In the result, the appeal is allowed with the above direction, however without costs. Consequently connected C.M.P.N.670 of 1998 is closed. (S.J.J.) (P.D.D.J.)
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SUB ASSISTANT REGISTRAR
1. The Subordinate Judge
2. The Sub Assistant Registrar
High Court, Madras
L.P.A.No.7 of 1998
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