Madras High Court
I. Sheik Mydeen vs P. Nanthagopal on 12 June, 2021
CRP(MD).No.1111 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 24.08.2021
Pronounced on : 16.09.2021
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
C.R.P. (MD).No.1111 of 2021
I. Sheik Mydeen .. Petitioner / plaintiff
Vs.
P. Nanthagopal .. Respondent / defendant
PRAYER: Civil Revision Petition filed under Article 227 of the
Constitution of India, to set aside the order passed in O.S.No... of 2020 on
the file of the Principal Sub Court, Dindigul dated 12.06.2021 and directed
the learned Principal Sub Judge to number the suit and proceed further.
For petitioner : Mr. R. Balakrishnan
ORDER
The Civil Revision is directed against the order returning the plaint,
dated 12.06.2021 and seeking orders directing the Principal Subordinate
Judge, Dindigul, to take the plaint on file.
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CRP(MD).No.1111 of 2021
2. The revision petitioner is the plaintiff and filed the suit for
specific performance of the sale agreement and alternatively for refund of
the advance amount with interest and costs.
3. The case of the plaintiff is that the suit property belongs to the
defendant, that the defendant in order to meet out her daughter's marriage
expenses offered to sell the suit property and the plaintiff has agreed to
purchase the same, that both the parties had fixed the sale price at
Rs.3,00,000/- and the plaintiff has paid Rs.50,000/- on 15.10.2016, that
subsequently, the plaintiff has paid further advance of Rs.1,00,000/- on
13.12.2016, that both of them have entered into a sale receipt on
13.12.2016, evidencing the transaction already had and the terms of the
sale. The plaintiff's further case is that the plaintiff is always ready and
willing to pay the balance sale price and get the sale deed executed, that
since the defendant has been postponing the sale on some pretext or other,
the plaintiff was constrained to issue a lawyer notice, dated 04.01.2020
directing the defendant to receive the balance sale price and to execute the
sale deed, that the defendant has sent a reply with false and untenable
allegations and that since the defendant has not chosen to comply with the
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CRP(MD).No.1111 of 2021
same, the plaintiff was forced to file the above suit for specific
performance of sale agreement and alternatively for refund of the advance
amount. The learned Subordinate Judge vide order, dated 11.02.2020 has
returned the plaint, directing the plaintiff “to explain the plaint Document
No.I is a sale agreement and receipt.” It is evident from the records that
the plaintiff has represented the plaint by giving an explanation that as per
the receipt Ex.A1, the plaint Document No.I is to be considered as a sale
agreement, that the learned Subordinate Judge has again returned the plaint
raising a query, whether the said receipt can be treated as sale agreement,
as per the decision of the Hon'ble Supreme Court reported in 2004(4) LW
186 and that the plaintiff has again represented the plaint by endorsing “As
per Section 2(e) of Contract Act, 1872, Every promise and every set of
promises forming the consideration for each other is an agreement,
considering this Ex.A1 is to be considered as an agreement.” It is further
evident that the learned Subordinate Judge has returned the plaint again
stating that the previous return was not clarified and that the Document
No.I is not a registered sale agreement. Thereafter, the plaintiff has again
represented the plaint with the following endorsement:
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CRP(MD).No.1111 of 2021
“The judgment reported in 200(4) LW, page 188 is
not applicable to the present case, since the above cited
judgment discussed about Section.68 of Evidence Act, as
that an agreement must have two parties and both are to
sign the same, only then it is an agreement. Further, in the
above cited judgment, the disputed sale agreement (Ex.A1)
not signed by the defendant and therefore, the Hon'ble High
Court held that “the document enforceable in law”.
But the present plaint, the plaintiff produced a
document headed as “Sale receipt” signed by both the
parties to the document and witness also and therefore, that
document produced fulfilled the requirement U/s. 68 of
Evident Act and further, the plaintiff is ready to prove the
nature of document as “Sale Agreement” during the course
of trial. Hence, represented with complying the directions.”
4. Thereafter, the learned Subordinate Judge has passed the
impugned order of return, dated 12.06.2021 raising the following queries:
“jpUg;gg;gLfpwJ
1. ,g;gpuhJld; jhf;fy; nra;Js;s 1tJ Mtzk;
xU urPJ MFk; mJ fpiua xg;ge;jky;y.”
2. urPJ Vw;gg ; l;l fhyj;jpypUe;J 3 tUlfhyk;
14.10.2019 Tld; Kbe;J tpl;lJ NkYk;
tof;fwpQh; mwptpg;Gk; %d;W tUl fhyk;
Kbj;j gpd;Ng gpujpthjpf;F fle;j 04.01.2020 y;
mDg;gg;gl;Ls;sJ.
3. urPJ Mtzj;jpy; Fwpg;gpl;l fhyf;nfL VJk;
Fwpg;gplg;glhjjhy; 15.10.2016 NjjpNa fzf;fpLk;
#o;epiy cs;sJ.”
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CRP(MD).No.1111 of 2021
,jdhy; ,g;gpuhJ fhytiuapd;wp vt;thW
epiyepw;fj;jf;fJ vd;gjid tpsf;Ff.”
5.At the outset, this Court is constrained to say that the learned
Principal Subordinate Judge, without looking into the basic concepts, and
the settled legal position, has been returning the plaint again and again
raising unwarranted queries.
6. The learned Subordinate Judge has referred a decision reported in
2004(4) LW 186, as the decision of the Hon'ble Supreme Court, but that
decision was rendered by this Court in Chinnadurai Vs. Rajalakshmi, and
whereunder, this Court has held that an agreement must have two parties
and both of them are to sign the same and that for this basic necessity,
there may be exceptions under the exceptional circumstances as it has been
advocated on the parts of the Courts. Considering the facts and
circumstances of the case, this Court by commenting the plaintiff failure
to sign the papers has held that the document under Ex.A1 is neither an
agreement nor could it be taken as a genuine document enforceable in law.
7. As rightly contended by the learned counsel for the plaintiff, the
above decision referred by the learned Subordinate Judge is not applicable
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CRP(MD).No.1111 of 2021
to the case on hand. As already pointed out, both the parties have entered
into an agreement for the sale of suit properties to the plaintiff by the
defendant for the price fixed at Rs.3,00,000/- and after the payment of
advance amount of Rs.50,000/- on 15.12.2016, they have entered into a
document named as sale receipt and whereunder, they have referred the
earlier transaction held on 15.10.2016 and also the payment of further
advance of Rs.1,00,000/- made on that day. As rightly pointed out by the
learned counsel for the plaintiff, in the said sale receipt, both the plaintiff
and the defendant have subscribed their signatures along with witnesses.
8. Section 10 of the Indian Contract Act, 1872 contemplates that all
agreements are contracts if they are made by the free consent of parties
competent to contract, for a lawful consideration and with a lawful object
and are not hereby expressly declared to be void. Section 2(e) of the said
Act defines the agreement, as “every promise and every set of promises,
forming the consideration for each other.”
9. It is pertinent to note that when an oral agreement is found to
fulfil the above essentials as required under Section 10 of the Contract Act,
the same is very much valid and the same cannot be questioned. The
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CRP(MD).No.1111 of 2021
Hon'ble Apex Court in Alka Rose Vs. Paramatma Devi and others (Civil
Appeal No. 6197 of 2020), has observed as to how oral agreements are
valid and held that a sale agreement can be oral and it is not necessary that
agreement should be in written form only and what is important is that it
should be within the ambit of Section 10 of the Indian Contract Act, 1872.
Moreover, under Section 54 of the Transfer of the Property Act, an oral
sale of a contract is valid, but the person claiming the right is duty bound
to prove the existence of such agreement. It is necessary to refer the
following passage in Alka Rose's case ;
“All agreements of sale are bilateral contracts as
promises are made by both - the vendor agreeing to sell and
the purchaser agreeing to purchase. On the other hand, the
observation in S.M. Gopal Chetty (supra) that unless
agreement is signed both by the vendor and purchaser, it is
not a valid contract is also not sound. An agreement of sale
comes into existence when the vendor agrees to sell and the
purchaser agrees to purchase, for an agreed consideration
on agreed terms. It can be oral. It can be by exchange of
communications which may or may not be signed. It may be
by a single document signed by both parties. It can also be
by a document in two parts, each party signing one copy and
then exchanging the signed copy as a consequence of which
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CRP(MD).No.1111 of 2021
the purchaser has the copy signed by the vendor and a
vendor has a copy signed by the purchaser. Or it can be by
the vendor executing the document and delivering it to the
purchaser who accepts it. Section 10 of the Act provides all
agreements are contracts if they are made by the free consent
by the parties competent to contract, for a lawful
consideration and with a lawful object, and are not expressly
declared to be void under the provisions of the Contract Act.
The proviso to section 10 of the Act makes it clear that the
section will not apply to contracts which are required to be
made in writing or in the presence of witnesses or any law
relating to registration of documents. Our attention has not
been drawn to any law applicable in Bihar at the relevant
time, which requires an agreement of sale to be made in
writing or in the presence of witnesses or to be registered.
Therefore, even an oral agreement to sell is valid. If so, a
written agreement signed by one of the parties, if it evidences
such an oral agreement will also be valid. In any agreement
of sale, the terms are always negotiated and thereafter
reduced in the form of an agreement of sale and signed by
both parties or the vendor alone (unless it is by a series of
offers and counter-offers by letters or other modes of
recognized communication). In India, an agreement of sale
signed by the vendor alone and delivered to the purchaser,
and accepted by the purchaser, has always been considered
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CRP(MD).No.1111 of 2021
to be a valid contract. In the event of breach by the vendor, it
can be specifically enforced by the purchaser. There is,
however, no practice of purchaser alone signing an
agreement of sale.”
10. The learned Subordinate Judge has observed that the agreement
period got expired on 14.10.2019 and the lawyer notice was also issued
only subsequent to the said period. He has also further observed that since
the time for performance is not mentioned in the receipt, the period of
limitation is to be calculated only from the date of document, i.e., from
15.10.2016. Article 54 of the Indian Limitation Act prescribes the
limitation of 3 years:
Suit for specific Three The date fixed for performance, or, if no
performance years such date is fixed, when the plaintiff has
notice that performance is refused.
11. Considering the above article, it is very much that when a date is
fixed for performance, then the limitation period is 3 years from such date
and if no such date is fixed, the period of three years is to be computed
from the date when the plaintiff has notice of the refusal. In the case on
hand, admittedly, the period of performance is not mentioned. Moreover,
the plaintiff has sent the legal notice on 04.01.2020 and the defendant has
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CRP(MD).No.1111 of 2021
issued a reply notice on 14.01.2020 disputing the sale agreement.
Considering the above, impugned return with respect to the limitation
aspect is very much against the settled legal position. Moreover, this Court
is also at loss to understand as to how the Court has adopted the role of
defendant and raised such queries, which are totally untenable and
unwarranted. In view of the above, this Court has no hesitation to hold
that the impugned order of return is not good in law and the same is liable
to be set aside.
12. In the result, the Civil Revision Petition is allowed and the
learned Principal Subordinate Judge, Dindigul is directed to take the plaint
on file if it is otherwise in order. No costs. The Registry is directed to
return the original plaint filed along with the revision petition to the
learned counsel for the petitioner, enabling them to represent the same
before the Principal Sub Court.
16.09.2021
Index : yes / No
Internet : yes / No
trp/das
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CRP(MD).No.1111 of 2021
To
The Principal Subordinate Court,
Dindigul.
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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CRP(MD).No.1111 of 2021
K.MURALI SHANKAR, J.
trp/das
C.R.P. (MD).No.1111 of 2021
16.09.2021
https://www.mhc.tn.gov.in/judis/
