Madras High Court
A.Venkatesan vs B.Nagalakshmi on 28 February, 2022
A.S(MD)No.215 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 28.02.2022
CORAM
THE HONOURABLE MS. JUSTICE R.N.MANJULA
A.S(MD).No.215 of 2018
and C.M.P(MD)No.390 of 2018
A.Venkatesan ... Appellant/Defendant
Vs.
1.B.Nagalakshmi
2.K.B.Balaprakash
3.B.Balamurugan
4.B.Kavitha
5.A.Senthilkumar ... Respondents/Plaintiffs
Prayer : This Appeal Suit is filed under Section 96 of the Civil
Procedure Code against the judgment and decree dated 12.03.2020 made
in O.S.No.9 of 2018 on the file of the court of Principal District Judge
and Sessions Judge (FAC), Theni.
For Appellant : Mr.H.Thayumanaswamy
For Respondents : Mr.G.Prabhu Rajadurai
for Mr.C.Susikumar
1/11
https://www.mhc.tn.gov.in/judis
A.S(MD)No.215 of 2018
JUDGMENT
This Appeal Suit has been preferred challenging the judgment and
decree of the learned Principal District and Sessions Judge dated
12.03.2020 in O.S.No.09 of 2018.
2. The appellant is the defendant. The respondents/plaintiffs have filed
the suit for specific performance on the basis of the sale agreement dated
28.03.2017. The suit property was owned by the defendant by virtue of a
partition deed dated 23.10.2016. On 28.03.2017, the defendant entered
into a sale agreement with the plaintiffs for selling the suit property for a
sale consideration of Rs.15,00,000/- (Rupees fifteen lakhs only). On the
date of sale agreement itself, the plaintiffs paid a partial sale
consideration of Rs.10,00,000/-. The balance sale consideration of Rs.
5,00,000/- (Rupees five lakhs only) was agreed to be paid within a period
of one year. The plaintiffs were all along ready and willing to pay the
balance sale consideration of Rs.5,00,000/- (Rupees five lakhs only) and
get the sale deed executed. On 05.12.2017, the plaintiffs issued a legal
notice to the defendant asking him to execute the sale deed by
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A.S(MD)No.215 of 2018
receiving the balance sale consideration of Rs.5,00,000/- (Rupees five
lakhs only). Since the defendant had evaded to execute the sale by
receiving balance sale consideration, the plaintiffs have filed the suit for
specific performance.
3.The defendant contested the suit by alleging that the defendant
borrowed a sum of Rs.3,76,000/- (Rupees three lakhs and seventy six
thousand only) on 31.03.2017 from the plaintiffs and the sale agreement
was executed only by way of security for the said loan; The defendant
did not receive Rs.10,00,000/- (Rupees ten lakhs only) as partial sale
consideration as stated by the plaintiffs. Since the plaintiffs have
suppressed the material facts, the suit of the plaintiffs should be
dismissed.
4. On the basis of the above pleadings, the learned trial Judge has framed
the following issues:
1. Whether the defendant had borrowed money as simple loan
from plaintiffs?
2. Whether the plaintiffs are ready and willing to pay the
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A.S(MD)No.215 of 2018
balance consideration of Rs.5,00,000/- to the defendant as per
the agreement dated 28.03.2018?
3. Whether the plaintiffs are entitled for specific performance
in respect of sale agreement?
4. Whether the plaintiffs are also entitled for permanent
injunction?
5. To what other reliefs as the plaintiffs are entitled for?
5. During the course of trial, on the side of the plaintiffs, the second
plaintiff, was examined as P.W.1 and four documents were marked as
Ex.A.1 to Ex.A.4. On the side of the defendant, the defendant was
examined as D.W.1 and one document was marked as Ex.B.1.
6. However, during the pendency of the proceedings, the parties had
agreed to settle the dispute between themselves thorugh conciliation.
P.W.1 and D.W.1 have deposed evidence to this effect. According to the
terms of compromise and as it appears from the evidence of P.W.1 that
the defendant should refund the sale advance of Rs.10,00,000/- (Rupees
ten lakhs only) within two months before 15.04.2020 and further he
agreed to pay interest on the same at the rate of 12% interest from
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A.S(MD)No.215 of 2018
28.03.2017. It was further agreed by the defendant that in case of non-
payment of the said amount, the defendant would execute the sale deed
in accordance with the sale agreement. The defendant also deposed
evidence by endorsing the above terms. By incorporating the terms of
compromise, the trial court decreed the suit as under:`
1. The defendant is directed to pay a sum of Rs.10,00,000/-
with 12% interest per annum from the date of agreement
Ex.A.2 (28.03.2017) on or before 15.04.2020.
2. On the failure to comply with the clause No.1 within the
period stipulated therein the defendant is directed to execute
the sale deed as per Ex.A.2 agreement dated 28.03.2017
after receiving the balance consideration of Rs.5,00,000/-
within 3 months (lying in the deposit of this court)
3.If the defendant fails to comply with the clause No.1
within the period stipulated plaintiff is entitled to get the
sale deed executed as per Ex.A.2 and if the defendant
complies clause No.1 the plaintiff is entitled to withdraw the
sum of Rs.5,00,000/- lying in the deposit of this court with
accrued interest if any.
4. Since the entire dispute between the parties are settled
and disposed by way of officer mediation, the entire court
fee paid by the plaintiff is hereby directed to be refunded.
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A.S(MD)No.215 of 2018
5. No costs.
7. Having agreed to the terms of compromise and allowed the suit to be
decreed in terms of the said compromise, now the defendant has
preferred this appeal by challenging the judgment and decree of the trial
court.
8. The learned counsel for the appellant submitted that the defendant
agreed to the terms without knowing that it is impossible to perform and
hence it is void; In fact, the plaintiff has prayed the relief of refund of the
advance money in alternate to his prayer for specific performance; But in
the decree specific performance has been granted in alternate to the
refund of the advance amount; granting an alternate relief to an alternate
relief is not legal; since the defendant was made as a party, to an
agreement which was impossible to perform, the defendant has the right
to challenge the same, even though it is a compromise decree. In view of
the impossible and illegal nature of the decree of the trial court, it has to
be set aside.
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A.S(MD)No.215 of 2018
9. The learned counsel for the respondent/plaintiff submitted that the
terms of compromise as it appears from the decree would show that the
terms are very much executable; there is no illegality attached to the
above said terms; since the matter has been settled in conciliation
between the parties and the decree has been passed in terms of
compromise, the decree becomes final and the defendant has no right to
file an appeal.
10. Considering the rival submissions of the parties, it appears to this
Court that the following points for consideration are relevant to decide
this Appeal Suit:
i) Whether the decree passed on compromise on
conciliation between the parties by the trial court has any
terms, which is illegal or impossible?
ii) Whether the appellant has got the right to appeal the
decree passed on the basis of the compromise?
11. It is seen from the judgment of the learned trial Judge that during the
course of the proceedings, the appellant/defendant had admitted the
execution of the sale agreement; after conciliation the parties themselves
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A.S(MD)No.215 of 2018
have arrived at a consensus by stating that the defendant should refund
the advance amount of Rs.10,00,000/- (Rupees ten lakhs only) within
two months before 15.04.2020 along with interest at the rate of 12% from
28.03.2017; if the defendant fails to refund the same as stated above, he
should receive the balance sale consideration and execute the sale deed
in favour of the plaintiff.
12. As agreed, the defendant did not refund the sale consideration within
two months from 15.04.2020. Since the defendant had failed to refund
the advance amount of Rs.10,00,000/- (Rupees ten lakhs only), execution
proceedings have been initiated. Thereafter the plaintiffs had deposited
the balance sale consideration as per the terms of compromise decree. As
per Section 89 C.P.C , the disputes can be resolved through Alternate
Dispute Resolution methods. If the dispute is settled through ADR
methods, the decree shall become final and it is not appealable. Since the
impugned decree has been passed based on the conciliation held between
the parties and the parties have also agreed to the terms, the
appellant/defendant can not come and say that the terms are illegal and
they are not executable. As I find no misunderstanding or mistake of fact
while arriving at the terms and there is no illegality found in the decree
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A.S(MD)No.215 of 2018
for compromise, no appeal can be filed against the same.
In the result, this Appeal Suit is dismissed and the judgment of the
learned Principal District and Sessions Judge (FAC), Theni. dated
12.03.2020, made in O.S.No.09 of 2018 is confirmed. No costs.
Consequently, connected Miscellaneous Petition is closed.
28.02.2022
Index : Yes/No
Internet : Yes/No
CM
To
1.The Principal District Judge and Sessions Judge (FAC),
Theni.
2.The Section Office,
VR Section,
Madurai Bench of Madras High Court,
https://www.mhc.tn.gov.in/judis
A.S(MD)No.215 of 2018
Madurai.
https://www.mhc.tn.gov.in/judis
A.S(MD)No.215 of 2018
R.N.MANJULA, J.
CM
A.S(MD).No.215 of 2018
and C.M.P(MD)No.390 of 2018
28.02.2022
https://www.mhc.tn.gov.in/judis
