Madras High Court
Ramar vs Pappammal on 10 June, 2021
S.A.(MD)No.358 of 2021
THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10.06.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.358 of 2021
and
C.M.P.(MD)No.4688 of 2021
Ramar ... Appellant
-Vs-
1.Pappammal
2.Palpandian
3.M.Soundarapandian
4.Kaliammal
5.Vijaya
6.Seenivasagam
7.Venkatesh
8.Ramalakshmi
9.Kannan
10.Nagaraj
11.Vajravel
12.Selvan
13.Arivazhagan
14.Dharmar
15.Govindammal
16.Ganesamoorthi
17.Saravanan Respondents
Prayer: Second Appeal is filed under Section 100 of the Civil Procedure
Code, to set aside the judgment and decree dated 08.02.2021, made in
A.S.No.11 of 2019, on the file the Sessions Judge, Mahalir Neethimandram
(Fast Track Mahila Court) Theni reversin the judgment and decree dated
25.01.2019 made in O.S.No.71 of 2013, on the file of the Sub Court, Theni.
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S.A.(MD)No.358 of 2021
For Appellant : Mr.PT.S.Narendravasan
JUDGMENT
Heard the learned counsel for the appellant.
2.The plaintiff in O.S.No.71 of 2013, on the file of the Sub
Court, Theni is the Appellant in this Second Appeal. The said suit was filed
by the appellant, seeking the relief of specific performance.
3.The cae of the appellant is that he entered into a sale
agreement with one Mani Aasari on 20.12.2006. The sale consideration was
fixed at Rs.1,35,600/- and an advance amount of Rs.25,000/- was paid by
the plaintiff. Balance amount was to be paid by the plaintiff on or before
20.12.2009. According to the plaintiff, he approached the said Mani Aasari
on 22.12.2006 and expressed his readiness and willingness to complete the
sale transaction. Mani Aasari is said to have informed the appellant that
O.S.No.86 of 1998, in respect of the property is pending on the file of the
District Munsif Court, Andipatti and on account of pendency of the suit, he
was not in a position to execute the Sale Deed. However, to address the
concerns of the plaintiff, he executed a General Power of Attorny
appointing the plaintiff as his Power Agent. The sale agreement as well as
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S.A.(MD)No.358 of 2021
the Power of Attorney were also duly registered. Mani Aasari passed away
on 17.11.2007, leaving behind the defendants as his legal heirs. It is to be
noted that the suit in O.S.No.86 of 1998 got concluded and disposed of on
29.12.2012 in favour of the defendants. Thereupon, the plaintiff called upon
the defendants to come forward to execute the Sale Deed to this effect. The
plaintiff also issued a legal notice dated 04.01.2013 (Ex.A6). After
receiving the same, the defendants called upon the plaintiff to make
available the copies of the two documents, namely, Sale Agreement as well
as Power of Attorney. The plaintiff made available certified copies of the
same. Even after receiving the same, the defendants did not come forward
to execute the sale deed. Hence, the plaintiff filed O.S.No.71 of 2013 before
the Sub Court, Theni on 28.02.2013.
4.The defendants filed a written statement stating that there
was a money transaction between Mani Aasari and the plaintiff and there is
no sale agreement as such.
5.The plaintiff examined himself as PW 1 and one Muthiah was
examined as PW 2. Exs.A1 to A17 were marked. On the side of the
defendants, three witnesses were examined and Exs.B1 to B5 were marked.
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S.A.(MD)No.358 of 2021
6.After considering the evidence on record, the learned trial
Judge by Judgment and decree dated 25.01.2019, decreed the suit as prayed
for. The plaintiff was directed to deposit the balance sale consideration of
Rs.1,10,600/-. The defendants were directed to accept the same and execute
the sale deed. Since in the meanwhile, the defendants 1 to 14 had executed
Sale Deed dated 22.03.2013 in favour of the 15th defendant, the same was
declared as null and void and that it would not bind the plaintiff.
7.Aggrieved by the same, the defendants filed A.S.No.11 of
2019 before the Sessions Judge, Mahila Court, (Fast Track Court), Theni.
By the impugned Judgment and decree dated 08.02.2021, the judgment and
decree passed by the trial Court was reversed, appeal was allowed and the
suit was dismissed. Challenging the same, the Second Appeal came to be
filed.
8.The learned counsel for the appellant reiterated all the
contentions set out in the memorandum of grounds. He submittd that after
the sale agreement was entered into, there was a mutual agreement between
them. The plaintiff was not aware of the pendency of the suit in O.S.No.86
of 1998, involving the suit property originally. He came to know about the
same only on 22.12.2006 It was Mani Aasari who informed the plaintiff
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S.A.(MD)No.358 of 2021
about the same. It was specifically agreed between them that the sale
transaction would be concluded based on the outcome of O.S.No.86 of
1998. The said suit was decreed only on 29.06.2012. Thereafter, the
appellant took steps to have the sale transaction completed. The learned
counsel for the appellant submitted that the case on hand is squarely
covered by the decision of the Karnataka High Court, reported in CDJ 2005
Kar HC 681, Sarasawathamma Vs.H.Sharad Shrikande. In the said
decision, the Karnataka High Court had interpreted the expression 'the date
fixed for the performance'. The learned Judge observed that it should be
understood in the context of the agreement and the obligations undertaken
by the respective parties in the agreement. If the time stipulated for
performance is extended by conduct subsequently, then it cannot be said
that limitation starts to run from the date originally fixed. It was also further
held that the extension of time need not also be given in writing but may be
proved even by leading oral evidence. Therefore, the contention of the
appellant is that even though as per the agreement executed on 20.12.2006,
the transaction would be completed within a period of three years there
from, in view of the developments that took place two days later, the period
of limitation would start running only from the date of disposal of O.S.No.
86 of 1998. The learned counsel further called upon this Court to admit the
second appeal by framing substantial questions of law appropriately.
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S.A.(MD)No.358 of 2021
9. I am not persuaded to hold that any substantial questions of
law arises in this case. The entire case of the appellant rests on his claim
that the sale transaction was to be concluded based on the outcome of
O.S.No.86 of 1998. As pointed out by the lower Appellate Court, both the
sale agreement as well as the Power of Attorney (Ex.A2 & Ex.A3) were
duly registered. If really, the sale transaction was to be concluded based on
the outcome of O.S.No.86 of 1998, certainly there would have been
reference to the same atleast in the Power of Attorney. Nothing prevented
the appellant from entering into a supplementary sale agreement. The lower
Appellate Court had observed that sale agreement became compulsorily
registrable only in the year 2012. The suit agreement entered into in
December 2006 was, however, registered. This shows that the appellant was
a person who was fully aware of the ways of the world. That is why, the
first Appellate Court computed the period of limitation from 20.12.2000
and not from the date of conclusion of O.S.No.86 of 1998.
10.The lower Appellate Court after noting that the specific
performance being an equitable remedy declined to exercise discretion in
favour of the appellant. The agreement was entered into on 20.12.2006 and
total sale consideration was fixed at Rs.1,35,600/- but only a small sum of
Rs.25,000/- was paid by the appellant. The appellant wanted to take the
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S.A.(MD)No.358 of 2021
property by paying the balance amount of Rs.1,10,600/- after seven years.
i.e in the year 2013. Granting specific performance would definitely not be
equitable in the facts and circumstances of the case. I find that the lower
Appellate Court had correctly approached the case and applied the
principles of law appropriately. I do not see any substantial questions of law
arising for my consideration. Accordingly, the Second Appeal is dismissed
without being admitted. No costs. Consequently, connected miscellaneous
petition is closed.
10.06.2021
Internet : Yes/No
Index : Yes/No
vrn
Note:
In view of the present lock down owing to COVID-19 pandemic, a
web copy of the order may be utilized for official purposes, but,
ensuring that the copy of the order that is presented is the correct
copy, shall be the responsibility of the Advocate/litigant concerned.
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S.A.(MD)No.358 of 2021
To
1.The Sessions Judge,
Mahalir Neethimandram (Fast Track Mahila Court),Theni
2.The Sub Court, Theni.
3.The Record Keeper,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.358 of 2021
G.R.SWAMINATHAN, J.
vrn
Judgment made in
S.A.(MD)No.358 of 2021
and
C.M.P.(MD)No.4688 of 2021
10.06.2021
https://www.mhc.tn.gov.in/judis/
