Madras High Court
Manthiram Asari vs Shamugaraj on 8 September, 2021
A.S.(MD)No.21 of 2020
and A.S.(MD)No.172 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.09.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
A.S.(MD)No.21 of 2020
and
A.S.(MD)No.172 of 2021
Manthiram Asari ... Appellant in both A.S
Vs.
1.Shamugaraj
2.Hemalatha ... Respondents in both A.S
Common Prayer : Appeal Suits filed under Section 96 of Civil Procedure
Code, against the judgment and decree in O.S.No.66 of 2015 dated 12.09.2019,
on the file of the learned II Additional District Court, Tuticorin.
(In both A.S)
For Appellant : Mr.B.Rajesh Saravanan
For Respondents : Mr.M.P.Senthil
https://www.mhc.tn.gov.in/judis
A.S.(MD)No.21 of 2020
and A.S.(MD)No.172 of 2021
COMMON JUDGEMENT
The defendant in O.S.No.66 of 2015 on the file of the II Additional
District Court, Thoothukudi, has filed these two appeal suits. The suit was for
partition. In the said suit the defendant raised a counter claim claiming
damages. The suit was decreed and the counter claim was rejected. Hence,
these two appeal suits have been filed. A.S.(MD)No.21 of 2020 is against the
decree granting the relief of specific performance. A.S.(MD)No.172 of 2021 is
against the rejection of the counter claim.
2.The respondents herein namely, Shanmugaraj and his wife Hemalatha
are the plaintiffs in the suit. The case of the plaintiffs is that the suit property
belongs to the defendant/Manthiram Asari. Manthiram Asari entered into a sale
agreement/Ex.A1 dated 26.11.2012 agreeing to sell the suit property for a sum
of Rs.18,25,000/-. On the date of agreement, the plaintiffs paid a sum of
Rs.50,000/- to the defendant in cash. The defendant had availed loan from one
Somasundari. To settle the said loan liability, a sum of Rs.3,00,000/- was paid.
The suit property was mortgaged in favour of one Dhanasekaran as well as the
first plaintiff. The plaintiffs discharged the said mortgage on the same date.
Therefore, the plaintiffs must be taken as having paid a sum of Rs.8,40,000/- as
https://www.mhc.tn.gov.in/judis
A.S.(MD)No.21 of 2020
and A.S.(MD)No.172 of 2021
advance on the date of agreement itself. The sale was to be concluded within
one week thereafter. The plaintiffs claimed that on 03.12.2012, they sent a
telegram to the defendant asking him to come forward for executing the sale
deed. In response thereto, the defendant sent a telegram dated 05.12.2012
(Ex.B1) informing the plaintiffs that he would be ready to execute the sale deed
on 10.12.2012 and he would be present on the office of the Sub Registrar also.
It appears that the plaintiffs did not turn up in the office of the Sub Registrar on
the said date. Therefore, the defendant sent Ex.A8/notice dated 27.02.2013
terminating the sale agreement. The plaintiffs sent reply dated 02.03.2013
(Ex.A9) disputing the averments in Ex.A8. Thereafter, the present suit for
specific performance was filed before the expiry of limitation.
3.The defendant filed detailed written statement controverting the plaint
averments. He also set up a counter claim alleging that the plaintiffs were
given possession of the suit property and that they had caused damage to the
same.
4.The first plaintiff examined himself as P.W.1 and Exs.A1 to A10 were
marked. The defendant examined himself as D.W.1 and one Santhanaraj was
examined as D.W.2 and Exs.B1 to B3 were marked.
https://www.mhc.tn.gov.in/judis
A.S.(MD)No.21 of 2020
and A.S.(MD)No.172 of 2021
5.After considering the evidence on record, by the impugned judgment
and decree dated 12.09.2019, the Court below granted the relief of specific
performance in favour of the plaintiffs and also dismissed the counter claim.
Questioning the same, these appeal suits have been filed.
6.The learned counsel for the appellant reiterated all the contentions set
out in the memorandum of grounds and called upon this Court to set aside the
impugned judgment and decree and dismiss the suit and allow the counter claim
made by appellant.
7.Per contra, the learned counsel for the respondents submitted that the
impugned judgment and decree do not call for any interference. He pointed out
that the suit was filed well before the expiry of the limitation period. He also
would point out that when the suit has been filed within the limitation period,
the question of invoking equitable principles to non-suit the plaintiffs, who are
otherwise entitled to the relief will not arise at all. This is all the more so, in
view of the recent statutory amendments made to the Specific Relief Act. He
also pointed out that the amendments being procedural in nature has to be
applied even to the pending proceedings. The first appeal is a continuation of
the original suit proceedings. He would point out that the plaintiffs have shown
https://www.mhc.tn.gov.in/judis
A.S.(MD)No.21 of 2020
and A.S.(MD)No.172 of 2021
their bonefidies by paying almost 50% of the sale consideration. Their
readiness and willingness is manifested in the fact that they had purchased non-
judicial stamp papers for registering the sale deed. The stamp papers were
marked as Ex.A3. According to him, nothing more was required for
demonstrating the readiness and willingness of the plaintiffs. He also pointed
out that there was absolutely no merit in the counter claim raised by the
defendant. The defendant appointed an engineer, who had inspected the suit
property and thereafter given the estimate of the damage. Even according to
the said witness, he was able to go to the suit buildings. Unless the defendant
had keys of the buildings and full physical access to the property, such an
inspection could not have taken place. The fact that no recovery of possession
was sought from the plaintiffs would show that the defendant was himself in
possession of the suit property. According to him, there is absolutely no merit
in these appeals.
8.I carefully considered the rival contentions and went through the
evidence on record. The points for consideration are as follows:-
“(a) Whether the plaintiffs were ready and willing for
performing their part of the contract under Ex.A1 dated
26.11.2012 and hence entitled to the relief of specific
performance?
https://www.mhc.tn.gov.in/judis
A.S.(MD)No.21 of 2020
and A.S.(MD)No.172 of 2021
(b) Whether the claim of the defendant that the plaintiffs
have damaged the suit buildings was established? and
(c) If the plaintiffs are not entitled to the relief of specific
performance, are they entitled to the alternative relief of refund
of the advance amount together with interest?”
9.It is true that the specific performance suit was filed within the period
of limitation. The sale agreement was entered into on 26.11.2012. The
plaintiffs cannot be non-suited on equitable considerations, in view of the
recent amendments made to the Specific Relief Act. But the plaintiffs will have
to necessarily establish that they were always ready and willing to perform their
part of the contract. Otherwise, that would act a personal bar to relief as per
Section 16 of the Specific Relief Act, 1963. The only question that arises for
consideration is whether the plaintiffs have established this basic and
fundamental ingredient. The sequence of the events will have to be taken into
account. The agreement was entered into on 26.11.2012. It is no doubt true that
on the date of sale agreement, the plaintiffs had paid a sum of Rs.8,40,000/-.
The plaintiffs were also ready with the non-judicial stamp papers for getting the
sale deed executed and registered in their names. It is also true that the
plaintiffs issued the telegram dated 03.12.2012, calling upon the defendant to
https://www.mhc.tn.gov.in/judis
A.S.(MD)No.21 of 2020
and A.S.(MD)No.172 of 2021
come forward for concluding the sale transaction. Though the plaintiffs
exhibited much energy and activity during one week following the execution of
the sale agreement, they went into limbo thereafter. The defendant sent a reply
on 05.12.2012 that he was ready to execute the sale deed on 10.12.2012 and
that he would be present in the office of the jurisdictional Sub Registrar for that
purpose. This communication from the defendant did not elicit any response
from the plaintiffs. On 27.02.2013, the defendant sent a legal notice
terminating the sale agreement itself. In the said notice, the defendant had
stated that he waited in the office of the Sub Registrar on 10.12.2012 and that
the plaintiffs did not turn up. When the defendant had issued termination
notice, the only course open to the plaintiffs was to send a reply and follow up
the same by filing the suit for specific performance. Even though the plaintiffs
sent a reply on 02.03.2013, the suit for specific performance came to be filed
only on 23.07.2015. In other words, after the termination notice was sent, the
suit for specific performance came to be laid two years and five months later.
There is absolutely nothing to show that during this period, the plaintiffs were
ready and willing to perform their part of their contract. This huge time gap
completely undermines the claim of the plaintiffs that they were always ready
to perform their obligations under the suit agreement. If only the plaintiffs had
filed the suit in question in March 2013 itself or immediately thereafter, there
https://www.mhc.tn.gov.in/judis
A.S.(MD)No.21 of 2020
and A.S.(MD)No.172 of 2021
would have been some bonafides on their part. The plaintiffs deserve to be
non-suited not on the ground of limitation but because of the personal bar to
relief envisaged and contemplated under Section 16 of the Specific Relief Act.
The Court below failed to take note of this aspect of the matter. Therefore, the
decree granting specific performance to the plaintiffs is set aside. At the same
time, the plaintiffs cannot be denied refund of the advance amount and that too
with interest. The plaintiffs have paid a sum of Rs.8,40,000/- on 26.11.2012
itself by various methods. Therefore, the defendant/appellant herein is directed
to refund the said amount to the plaintiffs with interest at the rate of 6% per
annum from the date of plaint till the date of payment. The learned counsel for
the plaintiffs states that the balance sale consideration was deposited to the
credit of O.S.No.66 of 2015. The plaintiffs are entitled to withdraw the same
together with accrued interest. As and when the cheque application is filed,
without issuing notice to the defendant the same shall be allowed by the Court
below. The impugned judgment and decree dated 12.09.2019 is modified
accordingly and A.S.(MD)No.21 of 2020 is allowed on these terms.
10.As regards the counter claim made by the defendant, after a careful
appreciation of the evidence on record, I have to necessarily sustain the finding
of the Court below. It is difficult to believe that the defendant handed over the
https://www.mhc.tn.gov.in/judis
A.S.(MD)No.21 of 2020
and A.S.(MD)No.172 of 2021
keys of the suit building on the date of the agreement itself. This is because, no
prudent vendor would hand over physical possession of the property without
receiving the entire sale consideration. Here, less then 50% of the sale
consideration had been paid by the plaintiffs. Therefore, it is improbable that
the defendant could have handed over keys of the suit building to the plaintiffs.
In any event, the fact that the defendant was able to have the suit building
parents in lawinspected and that he filed an estimate of damage indicates that
he had full access to the suit building. When queried as to how they could
enter the suit building, if the keys were really with the plaintiffs, it was replied
that on a mere push, the door gave way. This is again difficult to believe.
Therefore, the Court below rightly held that the plaintiffs cannot be mulcted
with any liability for the so-called damage caused to the suit building. The
rejection of the counter claim is sustained and A.S.(MD)No.172 of 2021 is
dismissed.
In the result, A.S.(MD)No.21 of 2020 is allowed and A.S.(MD)No.172 of
2021 is dismissed. No costs.
08.09.2021
Index : Yes / No
Internet : Yes/ No
ias
https://www.mhc.tn.gov.in/judis
A.S.(MD)No.21 of 2020
and A.S.(MD)No.172 of 2021
G.R.SWAMINATHAN, J.
ias
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.
To:
The II Additional District Court,
Tuticorin.
Copy to:
The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
A.S.(MD)No.21 of 2020
and
A.S.(MD)No.172 of 2021
08.09.2021
https://www.mhc.tn.gov.in/judis
