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K. Ganesan Vs. S. Manickam and Another - Court Judgment

LegalCrystal Citation
CourtChennai Madurai High Court
Decided On
Case NumberS.A.No. 1727 of 2003
Judge
AppellantK. Ganesan
RespondentS. Manickam and Another
Excerpt:
.....respondents filed written statement and submitted that the respondents did not agree to sell the suit property to the appellant and they did not execute the agreement dated 27.02.1991 and did not receive rs.20,000/- as advance. the respondents are goldsmiths. the appellant is carrying on jewellery business. the jewellers, like the appellant used to give gold to the goldsmiths, like the respondents and as per their instructions, the respondents make jewels and receive wages. as a security for the gold given to the goldsmiths, like the respondents, the jewellers used to get the signature in blank stamp papers. the dispute arose between the appellant and the respondents with regard to payment of wages and the respondents stopped making of jewels for the appellant. due to that, the.....
Judgment:

(Prayer:Second Appeal is filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 19.07.2002 made in A.S.No.7 of 2001 on the file of the Additional District Judge-cum-Chief Judicial Magistrate, Pudukkottai, confirming the Judgment and decree dated 27.07.2000, made in O.S.No.339 of 1996 on the file of the Additional District Munsif Court, Pudukkottai.)

1. This Second Appeal has been filed against the judgment and decree dated 19.07.2002, passed in A.S.No.7 of 2001 by the learned Additional District Judge-cum-Chief Judicial Magistrate, Pudukkottai, confirming the Judgment and decree dated 27.07.2000, passed in O.S.No.339 of 1996 by the learned Additional District Munsif, Pudukkottai.

2. The appellant is the plaintiff, who lost in both the Courts below. The respondents are the defendants.

3. Facts of the case:

(i) The respondents are the owners of the suit schedule property. They entered into an agreement of sale on 27.02.1991 with the appellant agreeing to sell the property for a total sale consideration of Rs.30,000/- and received Rs.20,000/- as advance. They agreed to execute the sale deed, when the appellant pays the balance sale consideration of Rs.10,000/-. From 16.02.1994, the appellant was ready to pay the balance sale consideration of Rs.10,000/- and get the sale deed executed in his favour. The respondents refused to execute the sale deed. The appellant sent a notice [Ex.A.4] dated 05.04.1994 to the respondents. The second respondent received the said notice. The notice sent to the first respondent was returned with an endorsement as Unserved . Hence, the appellant has filed a suit in O.S.No.339 of 1996 before the Additional District Munsif Court, Pudukkottai, for specific performance of agreement of sale.

(ii) The respondents filed written statement and submitted that the respondents did not agree to sell the suit property to the appellant and they did not execute the agreement dated 27.02.1991 and did not receive Rs.20,000/- as advance. The respondents are Goldsmiths. The appellant is carrying on jewellery business. The Jewellers, like the appellant used to give gold to the Goldsmiths, like the respondents and as per their instructions, the respondents make jewels and receive wages. As a security for the gold given to the Goldsmiths, like the respondents, the Jewellers used to get the signature in blank stamp papers. The dispute arose between the appellant and the respondents with regard to payment of wages and the respondents stopped making of jewels for the appellant. Due to that, the appellant had fabricated the agreement of sale, using the blank stamp papers given by the respondents. There is a difference in the signatures of the respondents in the agreement of sale and there are suspicious circumstances with regard to witnesses and the intention of the appellant to purchase the suit property, which is in a Village, 30 Kilometres away, where the appellant is residing. The suit property is the only house property available to the respondents and apart from the suit property, the respondents do not have any other property. The respondents alone are not the owners of the suit property. The two other sons and two daughters of the first respondent are also have shares. Even before the alleged agreement of sale, the respondents have mortgaged the property with Varapur Co-operative Society.

(iii) Based on the pleadings, the learned Additional District Munsif, Pudukkottai, framed necessary issues.

(iv) Before the Trial Court, the appellant examined himself as P.W.1 and one Nagarajan was examined as P.W.2, who is the one of the witnesses of agreement of sale and marked four documents as Exs.A.1 to A.4. On behalf of the respondents, the second respondent examined himself as D.W.1 and he did not mark any document on behalf of the respondents.

(v) The learned Additional District Munsif, Pudukkottai, considering the pleadings, oral and documentary evidence and the judgments relied on and the arguments of the learned counsel for the parties, dismissed the suit holding that the appellant failed to prove the genuineness of the agreement of sale, signatures of the respondents in the first and second page differs, the evidence of P.W.2 is unbelievable and there are suspicious circumstances with regard to execution of agreement of sale.

(vi) Against the said judgment and decree, dated 27.07.2000, the appellant has filed A.S.No.7 of 2001 before the Court of Additional District Judge-cum-Chief Judicial Magistrate, Pudukkottai.

(vii) The appellant contended that the learned Additional District Munsif, Pudukkottai, erred in casting the burden on the appellant to prove the genuineness of his signature in the agreement of sale. The respondents admitted their signature in the first page of the agreement of sale. Therefore, it is for the respondents to prove that the signature in the second page of the agreement is not their signature. The learned Additional District Munsif without valid reason, rejected the evidence of P.W.2. Further, the learned Additional District Munsif failed to see that a person can purchase a property away from his residence and a person from another Village/Town can be a witness to the agreement of sale.

(viii) The learned Additional District Judge-cum-Chief Judicial Magistrate, Pudukkottai, framed necessary points for consideration and independently considering all the pleadings, oral and documentary evidence, the judgment of the Trial Court and arguments of the learned counsel appearing for the parties, dismissed the appeal.

4. Against the said judgment and decree, dated 19.07.2002, the appellant has filed the present second appeal.

5. At the time of admitting the second appeal, this Court framed the following substantial questions of law:

1. When the defendants admit their signatures in the 1st page of the agreement Ex.A.1, whether it is correct to hold that the burden is on the appellant to prove the execution of the document?

2. When the defendants have failed to issue reply to the suit notice issued by the plaintiff, whether it is proper to place the onus of proof of the Sale Agreement on the appellant/plaintiff?

3. Whether the Courts below are right that the non inclusion of specific relief clauses in the Sale Agreement is not sustainable in law?

6. The learned counsel for the appellant contended that the Courts below erred in casting the burden of proof on the appellant to prove the signatures of the respondents in the agreement of sale. The Courts below ought to have seen that the respondents admitted their signatures in the first page and hence, it is for the respondents to prove that the signatures in the second page of the agreement of sale are not their signatures. The Courts below ought to have seen that a person can purchase a property anywhere and that a witness can be from a nearby Town. The Courts below erred in not considering the fact that the first respondent did not deny his signature and admitted the signature in Ex.A.1 and that the respondents have not sent any reply to the notice sent by the appellant and prayed for allowing the second appeal.

7. There is no representation on behalf of the respondents.

8. I have carefully perused all the materials available on record and the judgments of the Courts below and considered the arguments advanced by the learned counsel for the appellant.

9. The case of the appellant is that the respondents agreed to sell the suit property for a total sale consideration of Rs.30,000/- and received a sum of Rs.20,000/- as advance and executed the agreement of sale Ex.A.1, dated 27.02.1991. As per the agreement, whenever the appellant pays the balance sale consideration of Rs.10,000/-, the respondents agreed to execute the sale deed in favour of the appellant. The respondents denied the execution of agreement of sale and contended that the signatures found in the second page of agreement of sale, is not their signatures. Both the parties did not take any steps to get the opinion of the Handwriting Expert. The learned Additional District Munsif, Pudukkottai, compared the signatures in Page Nos.1 and 2 of the Agreement of Sale and came to the conclusion that there are differences in the signatures in Page Nos.1 and 2. Further, the evidence of P.W.2, who is the one of the witnesses to the Agreement of Sale Ex.A.1 was found to be unbelievable. The learned Additional District Munsif considered the contentions of the respondents that all the Jewellers, like the appellant used to take the signatures of Goldsmiths, like the respondents in the blank stamp paper, when they give gold for making jewels. The learned Additional District Munsif has rightly held that the appellant ought to have examined any of the Jewellers to disprove the contention of the respondents. The learned Additional District Judge-cum-Chief Judicial Magistrate, Pudukkottai, also considering all the materials on record, concurred with the finding of the learned Additional District Munsif. Both the Courts below have properly appreciated the facts and law and had given cogent and valid reasons for dismissing the suit and the appeal.

10. As per the agreement of sale, no time limit was fixed. On the other hand, the respondents must execute the sale deed as and when the appellant pays the balance sale consideration of Rs.10,000/-. This condition is in favour of the appellant and onerous condition to the respondents. The appellant was not ready to pay the balance sale consideration till 16.02.1994. Even thereafter, he issued notice on 05.04.1994 and filed the suit only on 11.06.1996. The appellant approached the respondents after three years of agreement of sale and filed the suit after five years of agreement of sale. Further, the appellant had alleged that the respondents encumbered the property with a view to defeat the interest of the appellant. The appellant had not filed Encumbrance Certificate obtained by him and has not explained the reason for the delay in approaching the respondents after three years of agreement of sale and filing of the suit after five years of agreement of sale.

11. The contentions of the learned counsel for the appellant that the Courts below erred in law in casting the burden of proof on the appellant and failed to see that the respondents did not send any reply to the notice, dated 05.04.1994 issued by the appellant, are untenable. Non-issuance of reply to the notice itself will not amount to admission of agreement of sale by the respondents. Further, as both the parties have failed to take steps to get the opinion of Handwriting Expert, the learned Additional District Munsif, Pudukkottai, compared the signatures and held that the signatures in the second page of the agreement of sale differs from the signatures in the first page and that there is a difference in Ink in the signatures of witnesses in the first and second pages. This conclusion was confirmed by the learned Additional District Judge-cum-Chief Judicial Magistrate, Pudukkottai. There is no error of law in the procedure followed by the Courts below.

12. It is well settled that granting of decree of specific performance is the discretionary power of Courts and it must be exercised judicially. The appellant is not entitled to equitable relief, as he approached the Court after the delay of five years from the agreement of sale. The Courts below have not committed any error of law. In the circumstances, the substantial questions of law framed are answered against the appellant.

13. In the result, the second appeal is dismissed confirming the judgment and decree of the Courts below. No costs.


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