2017 AIR CC 1958 (MAD)

Madras High Court

Hon'ble Judge(s): M. Duraiswamy , J

(A) Specific Relief Act (47 of 1963) S. 5, 20 — Agreement to sell — Specific performance — Grant of — Plaintiff-vendee claiming full consideration paid on date of execution of sale agreement — Defendant-?vendor averring to have availed loan for his son, both made to sign blank stamp papers and deposit original sale deed — Defendant-vendor, absolute owner of suit property — Including son in transaction creates doubt — Moreso, when suit filed after 14 years of sale agreement — Agreement must be security to loan transaction, not sale agreement — Plaintiff-vendee not coming with clean hands — Not entitled to discretionary relief. (2008) 3 Mad L J 796, AIR 1987 SC 2328, Rel. on. (Paras 26, 28)

(B) Evidence Act (1 of 1872) S. 59, 91, 92 — Exclusion of oral evidence — Agreement found not intended to be sale agreement but security to loan transaction — Bar u/S. 91, S. 92 has no application. AIR 1982 SC 20, Rel. on

(C) Specific Relief Act (47 of 1963) S. 16 (c) — Suit for specific performance — Readiness and willingness — Full consideration paid on date of executing of sale agreement — Absence of any time period in agreement — Suit filed after 14 years — Willingness of plaintiff-vendee to perform his part of contract, not proved — Mandatory provision not fulfilled — Plaintiff-vendee, not entitled to relief. AIR 2010 NOC 454 (Mad), Rel. on. (Paras 32, 33)

(D) Limitation Act (36 of 1963) Art. 54 — Limitation for specific performance of contract — No time fixed in agreement for sale — Full consideration paid by plaintiff-vendee on date of executing of sale agreement — No evidence of refusal by defendant-vendor to execute sale deed — Suit for specific performance filed after 14 years — No reason given for delay — 14 years cannot be reasonable time — Suit barred by limitation. AIR 1997 SC 1751, Rel. on. (Paras 30, 34)

(E) Civil Procedure Code (5 of 1908) S. 11 — Evidence Act (1 of 1872), S.115 — Res judicata — Estoppel — Plaintiff-vendee filing suit for specific performance of sale agreement — Truth and genuineness of alleged sale agreement considered by court — Defendant-vendor— s plaint for injunction dismissed by court — No findings with regard to genuineness of sale agreement — Dismissal will not operate as res judicata or estoppel against defendant-vendor in appeal against suit for specific performance.

(F) Transfer Of Property Act (4 of 1882) S. 53 -A — Protection of part performance — Plaintiff filing suit for specific performance of agreement for sale — Plaintiff claiming to be in possession of suit property pursuant to sale agreement — In circumstances cannot seek protection u/S. 53-A when he is already in possession of suit property.