Madras High Court
S.Nazeer vs Valsa Williams Carey (Died) on 27 January, 2022
A.S.No.13 of 2016
and
C.M.P.No.21531 & 21541 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on :18.02.2022
Pronounced on :03.03.2022
Coram::
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
Appeal Suit No.13 of 2016
and
C.M.P.Nos.21531 and 21541 of 2019
S.Nazeer .. Appellant
/versus/
1.Valsa Williams Carey (died)
(1st respondent died. His legal heirs
already on record as RR-2 to 5. Same
recorded as per memo dated 27/01/2022
made in A.S.No.13 of 2016 and
C.M.P.Nos.21531 and 21541 of 2016 (AANJ)
2.Grace Zion Kumari
3.John Banyan Carey
4.Rubus Philip Carey
5.Mercy Queen Carey
1/17
https://www.mhc.tn.gov.in/judis
A.S.No.13 of 2016
and
C.M.P.No.21531 & 21541 of 2019
Prayer: Appeal Suit has been filed under Section 96 of the Civil
Procedure Code praying to set aside the judgment and decree dated
26.08.2014 made in O.S.No.80 of 2011 on the file of the Principal District
Judge, Krishnagiri by allowing the appeal.
For Appellant :R.W.H.Ghyaz Ahmed
For Respondents :Mr.S.Doraisamy for
Mr.V.Elangovan for R2 to R5
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JUDGMENT
The appellant herein is the plaintiff before the trial Court. The suit
filed for specific performance to direct the defendants to execute the sale
deed for 0.98 ½ cent of suit land and to refund the excess amount received
as advance or in alternate to refund the entire earnest money with interest.
2.Considering the pleadings and the evidence, the trial Court granted
the alternate relief of a money decree for Rs.10,06,750/- with interest at the
rate of 9% p.a. from the date of suit, till the date of decree and thereafter at
the rate of 6% till the realisation of the amount.
https://www.mhc.tn.gov.in/judis
A.S.No.13 of 2016
and
C.M.P.No.21531 & 21541 of 2019
3.The appellant being aggrieved by not granting the main relief of
specific performance has preferred this appeal.
4.The brief facts of the case as found in the pleadings:
Plaint:
The plaintiff entered into an sale agreement on 02/09/2009 in respect
of the suit property for a sum of Rs 15,00,000/- (Rupees Fifteen Lakhs only)
and paid advance of Rs.10,00,000/-. Seven months time was fixed for
completion of the contract. The extent of land agreed to be sold was 2 acres
along with a well and passage right. The plaintiff was ready and willing to
complete the sale transaction and approached the defendants to execute the
sale deed on receipt of the balance sale consideration. However, the
defendants unnecessarily postponed the completion of the contract within
the time fixed. Meanwhile, some 3rd parties started claiming right over
portion of the suit property and filed suit for injunction. So, the plaintiff
caused notice dated 30/03/2010 to the defendants and to those 3rd parties.
https://www.mhc.tn.gov.in/judis
A.S.No.13 of 2016
and
C.M.P.No.21531 & 21541 of 2019
The defendants, who are vendors, did not reply to the notice. One of the 3rd
party purchaser replied asserting right over about 1.84 ½ acres of land out of
2.83 acres of land in S.No.210/18-A through sale deeds executed by the
defendants. On the date of the suit agreement, defendants had only 0.98 ½
cents of land, but by misrepresentation entered into sale agreement for 2.00
Acres with the plaintiff and received Rs.10 lakhs as advance.
5.After receipt of the notice, the defendants approached the plaintiff
and promised to sell the remaining extent of 0.98 ½ cents left unsold at the
rate of Rs.7,500/- per cent and also agreed to refund the difference money
Rs.2,61,250/-. Thus, the defendants, after retaining Rs.7,38,750/- from out
of the advance of Rs.10,00,000/- received, ought to have returned the
balance Rs.2,61,250/- and also executed the sale deed. Contrarily, the
defendants failed to honour the said commitment which has lead to causing
notice to the defendants on 03/10/2011 and subsequently, the suit for
specific performance to register the sale deed for 0.98 ½ cents and refund
https://www.mhc.tn.gov.in/judis
A.S.No.13 of 2016
and
C.M.P.No.21531 & 21541 of 2019
Rs.2,61,250/- or in alternate to return the entire earnest money of
Rs.10,00,000/- paid towards part sale consideration, with interest at the rate
of 9% p.a.
Written Statement:
6.The second defendant admits the suit property belong to one
Mr.Pastor John William Carey (First defendant), who purchased it under a
sale deed dated 31/10/1994. After his demise, defendants 2 to 5, who are his
wife and children, succeeded the same and became the joint owners. Except
this the other averments of the plaintiff is absolutely false.
7.The claim of the plaintiff that he entered into a sale agreement with
the defendants on 02/09/2009 and advanced Rs.10,00,000/- as against the
total sale consideration of Rs.15,00,000/- for 2 acres of land are denied. The
plaintiff had never ever approached the defendants and he was not at all
ready and willing at any point of time to get the sale deed executed from the
https://www.mhc.tn.gov.in/judis
A.S.No.13 of 2016
and
C.M.P.No.21531 & 21541 of 2019
defendants. In fact, the alleged sale agreement with the plaintiff was
executed only as a security for the loan, as the loan was discharged, there
was no necessity to reply the alleged notice dated 30/03/2010 sent by the
plaintiff. The averment that part of the land agreed to sell was alienated to
third parties are denied. The claim that the defendants orally agreed to sell
the remaining 0.98 ½ cents of land at the rate of Rs.7,500/- cents is also
denied as false. Since the suit sale agreement itself is not enforceable, the
question of executing sale deed in favour of the plaintiff does not arise at
all. After keeping silent for long time, belatedly the suit for specific
performance with alternate relief is filed. Even assuming the sale agreement
is valid, the time for completion of contract was 7 months from 02/09/2009
and the suit filed only on 03/11/2011. This fact is a proof to hold that the
plaintiff was not ready and willing to perform his contract. The suit is laid
belatedly with concocted version hence, to be dismissed.
https://www.mhc.tn.gov.in/judis
A.S.No.13 of 2016
and
C.M.P.No.21531 & 21541 of 2019
8.Based on the pleadings, the following Issues were framed by the
trial Court:
(1)Whether the sale agreement dated
02.09.2009 is executed by the defendants in favour of
the plaintiff with respect to their hand loan of
Rs.5,00,000/- drawn from the plaintiff is true or not?
(2)Whether the suit is bad for non-joinder of
necessary parties viz., Jagadeesan, Mudhalaimuthu,
Ganesan, Vijayapal, Murugappan?
(3)Whether the defendants are liable to execute
sale deed with respet to 0.98 ½ cents land in
Sr.No.210/18A?
(4)Whether the defendants are liable to pay the
balance amount of Rs.2,61,250/- out of the advance
amount of Rs.10,00,000/- received from the plaintiff
with interest at 6%p.a., to the plaintiff?
(5)Whether the plaintiff is entitled for
https://www.mhc.tn.gov.in/judis
A.S.No.13 of 2016
and
C.M.P.No.21531 & 21541 of 2019
permanent injunction as prayed for?
(6)Whether the defendants are liable to pay
Rs.10,06,750/- with interest at 9% p.a to the plaintiff?
(7)to what other relief, the plaintiff is entitled
for?
9.Additional Issue:
Whether the plaintiff is always ready and willing
to purchase the suit property?
10.To prove his case, the plaintiff was examined as PW-1 and 8
documents were marked. On the side of the defendants, the 2nd defendant
was examined as DW-1 and no documents marked on behalf of the
defendants.
11.The trial Court partly allowed the suit granting the alternate relief
of refund of the advance money with interest, as detailed above.
https://www.mhc.tn.gov.in/judis
A.S.No.13 of 2016
and
C.M.P.No.21531 & 21541 of 2019
12.The appeal is laid by the plaintiff for not granting the relief of
specific performance and pending appeal, he has also taken out applications
C.M.P.No.21531 of 2019 and C.M.P.No.21541 of 2019 to amend the plaint
and to raise addition grounds respectively.
13.The learned counsel for the appellant questioning the trial Court
judgment submitted that the trial Court ought to have taken note of the fact
that the plaintiff by causing notice dated 30/03/2010 marked as Ex.A-2 had
categorically expressed his ready and willingness to perform his part of
agreement, whereas the defendants were delaying the execution with false
promise and excuses. Therefore, the plaintiff cannot be held responsible for
approaching the Court, after waiting for a reasonable time, but within the
time limit prescribed under the Limitation Act.
14.He also contended, that defendants as vendors suppressed the fact
at the time of entering into the agreement for sale that they have alienated
https://www.mhc.tn.gov.in/judis
A.S.No.13 of 2016
and
C.M.P.No.21531 & 21541 of 2019
substantial portion of the land to the third parties and what was available is
only 0.98 ½ cents, out of 2.82 cents. The said fact came to the knowledge of
the plaintiff belatedly. The finding of the trial Court that the defendants
have received Rs.10,00,000/- under the suit sale agreement ought to have
granted relief of specific performance in respect of the portion of the suit
property available at the hands of the defendants. Denial of the specific
performance relief, is contrary to law and facts.
15.Per contra, the learned counsel appearing for the
respondents/vendors would state that the respondents never intended to sell
the property to the plaintiff herein. The money was received by them was
only a loan and infact, on the date of entering the sale agreement, they have
already disposed of substantial portion of the land by registered sale deed to
the third parties. For that particular reason, the suit for specific performance
is not maintainable and in respect of the relief of specific performance, the
buyer must always be ready and willing to perform his part of contract.
https://www.mhc.tn.gov.in/judis
A.S.No.13 of 2016
and
C.M.P.No.21531 & 21541 of 2019
Admittedly, time for performing the contract was fixed as 7 months, which
expired on 01.04.2010. Just few days before the date of expiry, the plaintiff
claims to have issued notice marked as Ex.A2, but there is no proof for such
delivery of that notice to the defendants. The plaintiff has relied upon
Ex.A3, which is the reply notice purported to have been sent to one
T.Vijayapaul. Neither the issuance of such notice nor the content of that
notice has been proved through the competent witness. Even according to
the plaintiff, the notice calling upon the defendants to execute the sale deed
was issued only on 30.03.2011, which is nearly after two years, from the
date of the alleged sale agreement. Further, the plaintiff having restricted
his claim for specific performance only for 0.98 ½ cents in his plaint and
sought for alternate relief of refund, surreptitiously, pending appeal has filed
miscellaneous petitions for amendment of the plaint seeking a larger relief
of specific performance for 2 acres of land knowingly nearly 1.84 acres
already sold prior to the suit agreement and to raise additional grounds,
which are only repetition of earlier grounds and nothing more.
https://www.mhc.tn.gov.in/judis
A.S.No.13 of 2016
and
C.M.P.No.21531 & 21541 of 2019
16.Heard the learned counsel appearing for the appellant and the
learned counsel appearing for the respondents and perused the materials
available on record.
17.Point for consideration is
Whether Ex.A1-sale agreement dated 02.09.2009 is specifically
enforceable?
18.The perusal of Ex.A1(sale agreement) reveals that the first page is
a typed document on a non-judicial stamp paper for Rs.20/- purchased on
01.09.2009. The second sheet is a printed format with blank filled by hand
and the third and fourth sheets again typed sheet carrying the details of the
suit property. In the sale agreement, 7 months time has been prescribed for
performance of the contract. Till the last date of the expiry of the seventh
month, there is no evidence to show that the plaintiff was ready and willing
to perform his part of contract. The legal notice (Ex.A2) purported to have
https://www.mhc.tn.gov.in/judis
A.S.No.13 of 2016
and
C.M.P.No.21531 & 21541 of 2019
been sent to the defendants as well as four others. In this notice, it is stated
that the plaintiff came to know about the alienation of the part of the
property prior to the sale agreement only on receipt of the suit summon in
O.S.No.265 of 2009 filed by one E.Jagadeesan against the defendants,
plaintiff and three others including one Vijayapaul. The notice Ex.A-2 to
Vijayapaul, who is one of the respondents in the prior suit alone replied
claiming ownership. Though the notice was addressed to nine persons, the
sole reply of Vijayapaul sent through his counsel, Mr.R.Venktataswamy on
14.04.2010 is marked as Ex.A3. The said Vijayapaul neither made a party
not the validity of his sale deed challenged. No postal acknowledgement
proof filed to show that Ex.A2 notice was sent to the other recipients
mentioned in the notice. In the reply notice Ex.A-3, the said Vijayapaul has
disclosed about the pendency of two civil suits in respect of the suit
property. One is O.S.No.158 of 2007 on the file of Sub Court, Krishnagiri
and another O.S.No.265 of 2009 on the file of the District Munsif Court,
Krishnagiri. Though the plaintiff was put to notice about the pendency of
https://www.mhc.tn.gov.in/judis
A.S.No.13 of 2016
and
C.M.P.No.21531 & 21541 of 2019
the suits, there is no whisper about this, in his evidence or no documentary
to show the fate of these suits, when the plaintiff made known that there are
other 3rd parties having title or interest in the suit property, he should have
impleaded them as a party in the suit or should have explained in the
pleadings why they are not necessary parties.
19.At looking into the other documents Ex.A4-encumbrance
certificate, it is apparently clear that prior to the registration of the
agreement for sale Ex.A-1, a substantial portion of the suit property has
been sold to the third parties and the plaintiff herein, who claims to have
advanced money to purchase larger extend of land than what his vendor
possessed, had not placed the documents before this Court. Any how such
contract can be enforced specifically. Further there is no document or
evidence to prove that he entered into the sale agreement Ex.A1, bonafiedly
believing that the respondents are the owners of the entire extent of land as
described in the sale agreement.
https://www.mhc.tn.gov.in/judis
A.S.No.13 of 2016
and
C.M.P.No.21531 & 21541 of 2019
20.In the light of the above fact, the very vital point that whether
Ex.A1 is a genuine agreement for sale (or) executed as a security for loan
advanced has become doubtful and therefore, the trial Court has rightly
granted alternate relief of refunding the money advanced along with
interest. This Court, on re-appreciation of evidence, finds no error in the
judgment of the trial Court, thereby which requires no interference.
21.In the result, this Appeal Suit is dismissed. No order as to costs.
Consequently, the connected Miscellaneous Petition Nos.21531 and 21541
of 2019 to amend the plaint by substituting 2.00 acres in the place of 98½
cents in the prayer clause and to receive additional grounds are dismissed
as devoid of merits.
03.03.2022
ari
Index:yes
speaking order/non speaking order
https://www.mhc.tn.gov.in/judis
A.S.No.13 of 2016
and
C.M.P.No.21531 & 21541 of 2019
To:
The Principal District Judge,
Krishnagiri.
https://www.mhc.tn.gov.in/judis
A.S.No.13 of 2016
and
C.M.P.No.21531 & 21541 of 2019
DR.G.JAYACHANDRAN,J.
ari
A.S.No.13 of 2016
and
C.M.P.No.21531 & 21541 of 2019
03.03.2022
https://www.mhc.tn.gov.in/judis
