Madras High Court
Nachimuthu Gounder (Died) vs A.Chandran on 30 June, 2021
A.S.No.81 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.06.2021
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
A.S.No.81 of 2013
1. Nachimuthu Gounder (died)
2. K.N.Balan
3. N.Gajendran
4. N.Sivagami
5. P.Maheswari
6. P.Indira Devi ...Appellants
Vs.
1. A.Chandran
2. G.Senthilmurugan ...Respondents
PRAYER: Appeal Suit filed under Section 96 of CPC to set aside the
Judgment and Decree dated 16.09.2008 made in O.S.No.29 of 2006 on
the file of the learned I Additional District Judge, Erode.
For Appellants : Mr.N.Umapathy
For A.P.Soundararajan
For Respondents : Mr.T.Murugamanickam
For Mr.V.Rajesh
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A.S.No.81 of 2010
JUDGMENT
The Appeal Suit is filed as against the Judgment and Decree
dated 16.09.2008 made in O.S.No.29 of 2006 on the file of the learned I
Additional District Judge, Erode.
2. For the sake of convenience, the parties are referred to as per
their ranking in the trial Court.
3. The suit is for recovery of money. The case of the plaintiffs
is that the plaintiffs were entered into an agreement for sale with
defendants on 06.11.1995 to purchase the suit property at the rate of
Rs.15 lakhs per acre. The total extent of the property ad measuring 2.42
acres. The plaintiffs paid a sum of Rs.10 lakhs as advance towards the
part of the sale consideration. Thereafter, one Pongianna Gounder and
Ramasami Gounder who are the adjacent land owners of the suit
property, entered into the said property and removed the fixing stones
and claimed right over the suit property. They also made a paper
publication stating that they are the co-sharers of the suit property and do
not purchase the said property. Further the case of the plaintiffs is that,
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A.S.No.81 of 2010
the second defendant already relinquished his right in favour of the first
and third defendants in the year 1993 itself by the registered release deed
dated 03.08.1993. Suppressing the said fact, he also entered into an
agreement for sale with a view to cheat the plaintiffs. Though the
plaintiffs were always ready and willing to perform their part of contract,
the defendants failed to execute the sale deed in their favour. Therefore,
the plaintiffs caused notice on 23.08.1996 thereby called upon the
defendants rescinding the agreement for sale and to return the advance
amount with interest at the rate of 24% per annum. Hence the suit.
4. Resisting the same, the defendants filed written statement
stating that the suit property is cleared free from all encumbrances. It is
also false to state that Pongianna Gounder and Ramasami Gounder
removed the stones in the suit property and tried to encroach into the suit
property. In fact, the defendants filed suit in O.S.No.175 of 1996 against
them seeking permanent injunction in respect of the suit property. The
defendants denied the execution of agreement for sale and also receipt of
Rs.10 lakhs. However the second defendant filed additional written
statement stating that only on the insistence of the plaintiffs, he also
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A.S.No.81 of 2010
signed in the agreement for sale. The defendants always ready and
willing to perform their part of contract. Whereas the plaintiffs are not
ready at any point of time to perform their part of the contract.
5. On hearing the rival pleadings, the learned trial Judge
framed the following issues for determination of the suit :-
“1. Whether the plaintiffs are entitled to the
suit claim as prayed for?
2. Whether the alleged agreement dated
06.11.1995 is true and valid?
3. To what relief?”
6. On the side of the plaintiffs, they examined P.W.1 and
marked Ex.P.1 to Ex.P.15. On the side of the defendants, they examined
D.W.1 and no documents were marked. On perusal of the material
produced on record and considering both the oral and documentary
evidence adduced by the respective parties and also the submissions
made by the learned counsel on either side, the Court below partly
decreed the suit. Aggrieved by the same, the defendants preferred this
appeal suit.
7. The learned counsel appearing for the appellants/defendants
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A.S.No.81 of 2010
raised two grounds that only to nullify the agreement for sale, the
plaintiffs have falsely averred that Pongianna Gounder and Ramasami
Gounder were trying to trespass into the suit property and made
publication as if they are also co-sharers of the suit property. They are
strangers to the suit property and as such, the defendants filed a suit for
injunction in O.S.No.175 of 1996 as against the said persons. There is
absolutely no encumbrance over the suit property. The second defendant
being the son of the first defendant has already relinquished his share in
favour of the second and third defendants. Even then, as an abundant
caution, he also signed in the agreement for sale. As per the agreement,
the plaintiffs ought to have filed the suit for specific performance to
direct the defendants to perform their part of the contract. However, the
plaintiffs filed the present suit for recovery of money. Therefore, he
prayed for dismissal of the suit.
8. The learned Senior Counsel appearing for the respondents/
plaintiffs submitted that though the defendants denied the very execution
of agreement for sale and receipt of advance amount, D.W.1 categorically
admitted the execution of agreement and also receipt of the advance
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A.S.No.81 of 2010
amount of Rs.10 lakhs. Admittedly, the defendants filed suit in
O.S.No.175 of 1996 as against Pongianna Gounder and Ramasami
Gounder in respect of the suit property. The said Pongianna Gounder and
Ramasami Gounder were also made publication and stating that they are
the co-sharers of the property and do not purchase the suit property.
Therefore, the plaintiffs filed suit for recovery of money alone and not
for specific performance. Therefore, the Court below rightly decreed the
suit and prayed for dismissal of this appeal.
9. Heard Mr.N.Umapathy, learned counsel appearing for the
appellants and Mr.T.Murugamanickam, learned counsel appearing for the
respondents.
10. The only point for consideration in this appeal is that
whether the plaintiffs are entitle to get back their advance amount or not?
11. The defendants examined D.W.1 and he categorically
admittedly the execution of the agreement as well as the receipt of Rs.10
lakhs as advance amount. Admittedly, the defendants also filed suit in
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A.S.No.81 of 2010
O.S.No.175 of 1996 as against Pongianna Gounder and Ramasami
Gounder in respect of the suit property for bare injunction. The said
persons were also made paper publication on 13.03.1996 in respect of
the suit property, which was marked as Ex.P.2. In pursuant to the said
publication on 23.08.1996, the plaintiffs caused notice thereby called
upon the defendants to return the advance amount which was paid during
the agreement for sale.
12. That apart, the second defendant already relinquished his
right in respect of the suit property in favour of the first and third
defendants. Even then, he also entered into agreement for sale in respect
of the suit property with the plaintiffs. Therefore, the plaintiffs made out
a case that the defendants failed to execute the sale deed with free of all
encumbrance. That apart no prudent man will purchase the encumbered
property after knowing the fact that other persons also claimed title over
the said property. Therefore, the Court below rightly decreed the suit and
this Court finds no infirmity or illegality in the order passed by the Court
below.
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A.S.No.81 of 2010
13. At that juncture, the learned counsel appearing for the
appellants/defendants sought further time to make the payment as
directed by the trial Court. Considering the request, the defendants are
directed to pay the decree amount within a period of three months from
the date of receipt of a copy of this Order.
14. Accordingly, this Appeal Suit stands dismissed. There shall
be no order as to costs.
30.06.2021
Index : Yes / No
Internet : Yes / No
Speaking order /Non-speaking order
rts
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A.S.No.81 of 2010
To
I Additional District Judge,
Erode.
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A.S.No.81 of 2010
G.K.ILANTHIRAIYAN, J.
rts
A.S.No.81 of 2010
30.06.2021
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