Madras High Court
Rathinameenakshi ...Defendant/ vs Somaraj ...Plaintiff/ on 22 February, 2021
A.S.(MD)No.55 of 2009
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 22.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
A.S.(MD)No.55 of 2009
Rathinameenakshi ...Defendant/Appellant
Vs.
Somaraj ...Plaintiff/Respondent
PRAYER: This Appeal Suit is filed under Section 96 of the Civil Procedure
Code, against the judgment and decree dated 29.10.2008 in O.S.No.50 of
2007 on the file of the Principal District Court, Tirunelveli.
For Appellant : Mr.Niranjan S.Kumar
for Mr.V.Balaji
For Respondent : Mr.V.Meenakshi Sundaram
for Mr.D.Nallathambi
JUDGMENT
Aggrieved over the judgment and decree of the trial Court the
present appeal suit has been filed.
2. For the sake of convenience, the parties are referred to herein,
as per their rank before the Trial Court.
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A.S.(MD)No.55 of 2009
3. The brief facts, leading to the filing of this Appeal Suit, are as
follows:-
The suit property belongs to the defendant and it is divided into
155 plots. The defendant, who is living in a far away place appointed her
sister namely, Bhagavath Geetha as power agent by a registered deed dated
01.10.1997. The said power agent entered into an agreement of sale on
24.01.2006 with the plaintiff agreeing to sell the suit schedule properties
for a total consideration of Rs.8,00,000/- and received a sum of
Rs.5,00,000/- as an advance towards the sale consideration on the same
date. The balance of Rs.3,00,000/- was agreed to be paid within a period of
18 months. The possession of the property was handed over to the plaintiff
and the plaintiff is in possession and enjoyment of the property. The
plaintiff was always ready and willing to perform his part of contract, but
neither the power agent nor the defendant herein had not come forward to
execute the sale agreement. Hence, the plaintiff issued a legal notice on
10.01.2007 to the defendant and her power agent. The notice was replied
only by the defendant on 12.02.2007 stating that she had executed a power
of attorney on 01.10.1997 in favour of her sister and she did not inform
about the sale agreement and also the power deed was cancelled on
10.04.2006, since the power agent failed in her duties. She further stated
that several survey numbers mentioned in the notice are not covered under
the power of attorney deed. Hence, the suit.
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A.S.(MD)No.55 of 2009
(ii) The plaintiff states that the plot numbers mentioned and the
corresponding survey numbers have been mentioned correctly in the sale
agreement, but two survey numbers in Survey Nos.1014 and 106 had been
mentioned in the sale agreement inadvertently. However, the above survey
numbers have been omitted in this suit.
(iii) Before the trial Court, on the side of the plaintiff, P.W.1 and P.W.
2 were examined and Exs.A1 to A6 were marked and on the side of the
defendant D.W.1 was examined and Exs.B1 and B2 were marked.
4. It is the contention of the defendant that the power agent had
not entered into an agreement on 24.01.2006 or any other date agreeing to
sell the suit properties for a consideration of Rs.8,00,000/- and she did not
receive any advance amount. As the power agent has not complied her
duties, the defendant cancelled the power deed in favour of the power agent
on 10.04.2006. At the time of cancelling the power of attorney, thorough
verification was done by the defendant as to whether there are any existing
agreement or deeds, but the defendant found nothing. Aggrieved over the
cancellation of power deed, the sister of the defendant has come forward
with the plaintiff in order to cheat and revenge the defendant. The alleged
agreement of sale dated 21.01.2006 is created after the cancellation of the
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A.S.(MD)No.55 of 2009
power deed by the defendant by anti-dating the document. It is further
submitted that the possession of the property was never shifted to the
plaintiff.
5. Based on the above pleadings, the trial Court has framed the
following issues:-
1) Whether the agreement of sale dated 24.01.2006 is true, valid
and genuine?
2) Whether the plaintiff has paid to the defendant's agent
Rs.6,00,000/- as advance sale consideration?
3) Whether the defendant is bound by the sale agreement dated
24.01.2006?
4) Whether the plaintiff is entitled to the relief of specific
performance?
5) Whether the plaintiff is entitled to the relief of permanent
injunction as sought for?
6. The learned counsel appearing for the appellant vehemently
contended that the trial Court has not appreciated the evidence properly.
The agreement under Ex.A2 is anti-dated and it was created only to knock
out the properties of the appellant, who is residing at Trivandram. The
sister of the appellant was originally given power of attorney. As there was
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A.S.(MD)No.55 of 2009
some misunderstanding between them, the power was cancelled.
Aggrieved over the same, the sister of the appellant created the document
under Ex.A2, agreement, with the help of her henchmen, namely, P.W.2 by
anti-dating the documents. Hence, the appellant submitted that the trial
Court has not appreciated the facts properly. Besides, the total extent of
area is 40 acres and 42 cents. Therefore, the sale of the same for a sum of
Rs.8,00,000/- creates serious doubt. The plaintiff has also not verified any
document before entering into such contract with the power agent. P.W.2 is
none other than the real estate broker. Therefore, Ex.A2, cannot be
enforced for such huge property for a meagre amount. The trial Court has
also not considered the undue hardship on the part of the defendant and
simply granted decree. Hence, prayed for allowing this appeal.
7. The learned counsel appearing for the respondent submitted
that execution of agreement has been clearly spoken by P.W.1 and P.W.2.
Besides, P.W.1 also admitted in her evidence that the sister of the defendant
has sold the property on the basis of the power deed. Therefore, it is
submitted that the trial Court has analyzed the evidence and materials on
record properly and came to the conclusion. Hence, prayed for dismissal of
the appeal.
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A.S.(MD)No.55 of 2009
8. In the light of the above, now the points arise for consideration
in this appeal are:
(i) Whether Ex.A2 was really intended for sale of the
suit property?
(ii) Wether the plaintiff was always and ready and
willing to purchase the property?
(iii)Whether the trial Court abdicated its
responsibility in exercising discretion judicially?
(iv) To what other reliefs?
9. The suit has been filed to enforce Ex.A2, agreement of sale said
to have been executed on 24.01.2006 for sale of about 155 plots for an
extent of more than 40 acres of land in various survey numbers. It is the
case of the plaintiff that the agreement was entered with the power agent,
namely one Bhagavath Geetha, sister of the defendant herein. Ex.A1 is the
general power of attorney dated 10.01.1997. The said fact is not in dispute.
Similarly, the same was cancelled on 10.04.2006 as per Ex.B2. It is the
contention of the plaintiff that he has agreed to purchase the property for a
total consideration of Rs.8,00,000/- for the entire 155 plots for an extent
about more than 40 acres of land from the power agent of the defendant,
whereas, the defendant contended that Ex.A2, sale agreement came into
existence after the revocation of the power of attorney on 10.04.2006. P.W.1
and P.W.2 were examined to prove the execution of the sale agreement.
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A.S.(MD)No.55 of 2009
P.W.1 and P.W.2 in one voice have spoken about the execution of the
document dated 24.01.2006.
10. Now it has to be seen whether these documents are really
intended for sale of a huge property. Though it is the contention of the
plaintiff that he has agreed to purchase the huge property of about 155
plots, his entire cross examination when scanned, makes it very clear that
only P.W.2, the land broker contacted the plaintiff and the husband of the
power agent was also not known to the plaintiff closely and he has not paid
any income tax at any point of time. Further, he has not received any
receipts for the advance amount of Rs.5,00,000/-. The plaintiff has also
submitted that the survey numbers, which are not mentioned in Ex.A1, were
also included in their agreement and this agreement was written only by the
power agent and he does not know, where the said agreement was
prepared. Similarly, P.W.2 has spoken about the execution of Ex.A2. He has
also feign ignorance of the place, where Ex.A2 was prepared. Only the
husband of the power agent has informed him that his wife has prepared
the document and he does not know, who has prepared the same.
11. A conjoint reading of the evidence of P.W.1 and P.W.2 makes it
very clear that the plaintiff had not even verified the title of the properties
and encumbrances over the property. Therefore, without verifying the
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A.S.(MD)No.55 of 2009
document and title of the property, if a person is entering into a contract to
purchase such huge properties, the same is highly improbable. Therefore,
the intention of the plaintiff cannot be believed. This Court is unable to
persuade itself that these documents are for sale of the huge property.
Some of the survey numbers, which were not mentioned in Ex.A1, were also
included while preparing the document of sale. This also shows that there
is some urgency in preparing the document. The agreement is typed in two
pages and the sentences are framed in a very narrow manner. This also
creates serious doubt about the genuineness of the agreement of sale.
12. The above facts coupled with the evidence of P.W.1 and P.W.2
that without even verifying the title deeds and the encumbrance certificate,
clearly probabilise the fact that the agreement was never intended for sale
of properties. The Court below, simply relying upon certain admission on
the part of D.W.1, that the power agent has sold certain properties, has
disbelieved the case of the defendant.
13. To a pointed question to the learned counsel appearing on
either side during the course of argument as to whether there is any
encumbrance, on the verification both the learned counsel submitted that
no encumbrance whatsoever is created over the suit properties. Therefore,
merely on the basis of the strange admission on the part of D.W.1, specific
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A.S.(MD)No.55 of 2009
performance ought not to have been granted by the trial Court. Further, to
show that the plaintiff was always ready and willing to perform the part of
contract, there is no evidence available on record. The fact that how the
advance amount was mobilized was also not proved and whether the
plaintiff had the capacity to raise the remaining sale consideration was also
not proved. Besides, the source of income has also not been established.
That apart, the plaintiff had not even verified the title deed and the
properties, hence, he cannot contend that he is always ready and willing to
perform his part of contract. Therefore, on these grounds also, the trial
Court ought to have dismissed the suit for specific performance, but it has
not been done so.
14. Similarly, the alleged extent of land agreed to be sold is more
than 40 acres, which is agreed to be sold for a sum of Rs.8,00,000/-. The
defendant is an absent landlady. She is permanently residing in
Trivandram. Therefore, the power deed was given to her sister to maintain
the property. Taking advantage of the above document, the entire
properties sought to be knocked out. The real hardship that would be
caused on the defendant also not considered by the trial Court. The
discretion has not been judicially exercised. Therefore, this Court is of the
view that the judgment of the trial Court granting specific performance is
not sustainable in the eye of law.
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A.S.(MD)No.55 of 2009
15. This Court also entertained a serious doubt about the fact that
the defendant has not cross-examined the power agent. Though this
agreement said to have been signed by the power agent, she has not been
summoned by the defendant. As long as the power deed was not cancelled,
the power of attorney was not challenged. Ex.A2 signed by the power
agent, it will bind only the principal. However, as discussed above, Ex.A2 is
not intended for any sale and came into existence for some other dispute
between two sisters. As the defendant has also not challenged the action of
her sister, this Court is of the view that the amount received by the power
agent should be returned by the appellant herein with necessary interest.
Accordingly, the decree for specific performance granted by the trial Court
is set aside and the appellant is directed to return a sum of Rs.5,00,000/-
with interest at the rate of 6% from the date of agreement till the date of
realization. Till such payment is made, there shall be a charge over the
property. Accordingly, the substantial questions of law are answered.
16. In the result, this appeal suit is allowed and the judgment of
the trial Court is set aside.
22.02.2021
Index : Yes/No
Internet : Yes/No
ta
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A.S.(MD)No.55 of 2009
To
1.The Principal District Court, Tirunelveli
2.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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A.S.(MD)No.55 of 2009
N.SATHISH KUMAR, J.
ta
Judgment made in
A.S.(MD)No.55 of 2009
22.02.2021
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