Madras High Court
Envee Enterprises vs Shankar Karikar on 6 January, 2022
O.S.A. No.264 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.01.2022
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
O.S.A.No.264 of 2018 and
C.M.P. No.19809 of 2021
1.Envee Enterprises,
by its Partner
Mrs.Sasikala Vamanan
2.Sasikala Vamanan
3.Mani Prakash .. Appellants
Vs.
Shankar Karikar .. Respondent
Prayer: Original Side Appeal filed under Clause 15 of the Amended
Letters Patent of 1865 r/w. Order XXXVI Rule 1 of the Code of Civil
Procedure, 1908 against the Judgment and Decree dated 15.12.2016 in
C.S. No.601 of 2009.
For Appellants : Mr.Srinath Sridevan
For Respondent : Mr.M.V.Swaroop
JUDGMENT
[Judgment of this Court was delivered by T.RAJA, J.]
This appeal has been directed against the impugned decree and
judgment dated 15.12.2016 passed in C.S. No.601 of 2009, in and by
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which, the learned Single Judge decreed the suit as prayed for with
costs.
2.The appellants are defendants before this Court in C.S. No.601
of 2009. The first defendant is a partnership firm and defendants 2 and
3 are its partners. It is the case of the plaintiff/respondent that the first
defendant had entered into an agreement of sale with the plaintiff on
09.08.2006 agreeing to sell an extent of 2,800 sq.ft. of land in Old Door
No.19/1, New Door No.23, Cenotaph Road, Chennai 600 018 in
R.S.No.3856/B, Block No.76, Mylapore Village for a total consideration
of Rs.1,25,00,000/- and the sale shall be completed within one month
from the date of release of the Sale Deed dated 21.10.2003. It is the
further case of the plaintiff/respondent that he had paid a sum of
Rs.35,00,000/- towards part of the sale consideration as per the
agreement dated 09.08.2006. Though the plaintiff/respondent was
ready and willing to perform his part of the contract, the defendants
have been evading the execution of the sale deed on one premise or
the other. While so, during December 2006, the plaintiff/respondent
learnt to know that the defendants were not in possession of the
property and that there was a dispute with regard to the possession
between the defendants and the National Bank for Agriculture and Rural
Development (hereinafter referred to as ‘the NABARD’), which also
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resulted in a police complaint lodged by NABARD on 30.12.2006 against
one J.Subramaniam and others alleging that they had trespassed into
the property on behalf of the first defendant. However, the plaintiff also
came to know that NABARD had filed W.P. No.549 of 2007 against the
first defendant and others seeking a declaration that the land, which
has been agreed to be sold by the defendants, has been earmarked as
open space under the planning permit granted to them and no
construction shall be raised therein and this Court, by order dated
08.01.2007 had granted an order of interim injunction restraining the
respondents from in any manner modifying the use of the land in
violation of the planning permission dated 21.02.1986. While so, when
the plaintiff/respondent approached defendants 2 and 3 with a view to
get clarifications regarding the property, there was no response from
defendants 2 and 3. Therefore, the suit in C.S. No.601 of 2009 was filed
by the plaintiff/respondent before this Court to pass a judgment and
decree against the appellants/defendants directing them jointly and
severally to pay a sum of Rs.52,34,750/- with subsequent interest at
18% per annum on the principal amount of Rs.35 lakhs and to pay the
costs of the suit to the plaintiff.
3.Written statement has been filed by the defendants stating that
they have received a sum of Rs.35,00,000/- as advance amount for the
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sale of the suit property on various dates under the terms of an
agreement for sale dated 09.08.2006. It is averred by the defendants
that the plaintiff has conveniently omitted to state the fact that on the
date of execution of the suit agreement for sale, an appeal was pending
before the Inspector General of Registration for adjudication of the
payment of proper stamp duty on the sale deed dated 21.10.2003. As
per the instruction of the plaintiff, the defendants have paid a sum of
Rs.21,16,252/- as additional stamp duty and additional Registration
fees even before the adjudication of stamp duty and got the release of
the sale deed dated 21.10.2003 from the D.R.O. Since the said amount
was paid by the defendants only from the advance amount paid by the
plaintiff, the plaintiff is not entitled to claim the refund of an amount of
Rs.25,00,000/- paid at the time of execution of the said agreement for
sale as the same was utilised for the payment of additional stamp duty
and additional registration fees. With regard to the subsequent payment
of Rs.10,00,000/- on various dates, the defendants stated that the
plaintiff is not entitled to claim the same, since he alone committed
default in completing the sale even though the defendants were ready
and willing to perform the terms of the agreement of sale dated
09.08.2006.
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4.On perusal of the rival pleadings of the parties, learned Single
Judge of this Court, on 14.12.2011, framed the following issues and
finally, by order dated 15.12.2016, has decreed the suit as prayed for
by the plaintiff/ respondent:
'1.Whether the plaintiff is entitled to claim refund of the
entire advance amount of Rs.35,00,000/- paid under the suit
agreement for sale with interest?
2.Whether the plaintiff has committed breach of the
agreement for sale deed dated 09.08.2006?
3.Whether the defendants are entitled to deduct a sum of
Rs.21,16,252/- from the amount paid by the plaintiff
towards the differential stamp duty paid by the defendants
in respect of the sale deed dated 21.10.2003 under which
they had purchased the suit property?
4.Whether the plaintiff is entitled to a decree against the
defendants for recovery of a sum of Rs.52,34,750/- with
subsequent interest at the rate of 18% per annum on the
principal amount of Rs.35,00,000/-?
5.To what other relief the plaintiff is entitled to?'
Challenging the correctness of the above decree and judgment,
this appeal has been filed by the appellants/defendants.
5.Mr.Srinath Srideven, learned counsel appearing for the
appellants/defendants submitted that when the appellants/defendants,
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have explained the pending lis on the property before the Registrar
Office stating that due to the non payment of the stamp duty, the
instrument could not be released and the appellants/defendants would
not be in a position to execute the sale deed in favour of the plaintiff,
only the plaintiff/respondent persuaded the appellants/defendants to
clear the payment of insufficient stamp duty so that the sale deed could
be executed on receipt of the balance amount. As there was a necessity
arisen for the defendants appellants to come forward to pay the
insufficient stamp duty, though they would have a fair chance of
success before the Registration department and that there was no need
for paying any amount because the claim for insufficient stamp duty
would never arise, ignoring the said claim made by the defendants
appellants, the plaintiff respondent only persuaded the appellants to
pay a sum of Rs.21,16,252/- as additional stamp duty and additional
registration fees even before the adjudication of stamp duty and to
release the sale deed so that the subsequent sale deed could be
executed in favour of the plaintiff respondent. Therefore, when the
respondent plaintiff persuaded the appellants defendants, in spite of the
fact that a fair chance of success before the Registration Department to
get and release the sale deed, without paying any amount, having
taken a stand that he would be responsible for the payment of
insufficient stamp duty, now he is not entitled to ask for the entire
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money. Secondly, when there was no commercial transaction, the
judgment passed by the learned Single Judge in favour of the plaintiff,
decreeing the suit as prayed for with costs is un-fair and un-justified.
6.Heard the parties on either side. This Court raises the following
issue for determination:
Whether the findings and conclusions suffer from errors?
7.The claim made by the appellants is that only on the frequent
persuasion made by the respondent plaintiff, the appellants defendants
had paid and wasted a sum of Rs.21,16,252/- as additional stamp duty
and additional registration fees even before the adjudication of stamp
duty, so that the subsequent sale deed could be executed in favour of
the plaintiff respondent is far from truth. Had it been so, the appellants
defendants would have persuaded back the respondent plaintiff to wait
for some reasonable time and in the meanwhile, they should have given
a detailed reply before the Registration department mentioning the fact
that on what basis, the claim made by the registration department to
pay the additional stamp duty and additional registration fees was
unfair. But, no such efforts were taken and no such explanations were
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made as a part of the pleadings before the learned Single Judge or
before us.
8.A perusal of the written statement filed by the defendants would
show that they have received a sum of Rs.35,00,000/- as advance
amount for the sale of the suit property on various dates under the
terms of an agreement for sale dated 09.08.2006. Therefore, the facts
admitted as per Section 58 of the Evidence Act need not be proved. In
this regard, it is relevant to refer Section 58 of the Evidence Act as
under:
'58.Facts admitted need not be proved – No fact need to be
proved in any proceeding which the parties thereto or their
agents agree to admit at the hearing, or which, before the
hearing, they agree to admit by any writing under their
hands , or which by any rule of pleading in force at the time
they are deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the
facts admitted to be proved otherwise than by such
admissions.'
9.A perusal of the above provision shows that the admitted facts
need not be proved and in such circumstances, the Court may, in its
discretion, based on the facts admitted, is bound to decree the claim as
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per Order XII Rule 6 of Civil Procedure Code, which is extracted as
under:
6.Judgment on admissions – (1)Where admissions of fact
have been made either in the pleading or otherwise, whether
orally or in writing, the Court may at any stage of the suit,
either on the application of any party or of its own motion
and without waiting for the determination of any other
questions between the parties, make such order or give such
judgment as it may think fit, having regard to such
admissions.'
10.A perusal of the above provision shows that the Court, may, at
any stage of the suit, either on the application of any party or of its own
motion and without waiting for the determination of any other questions
between the parties, make such order or give such judgment as it may
think fit, having regard to such admissions. In the present case, when
in the written statement filed by the defendants, they have admitted
that they have received a sum of Rs.35,00,000/- as advance amount
for the sale of the suit property on various dates under the terms of an
agreement for sale dated 09.08.2006, without waiting for the
determination of any other questions between the parties, the Court,
may make such order or give such judgment as it may think fit, having
regard to such admissions. The legal provision of Order XII, Rule 6 of
the Code of Civil Procedure also says that where admissions of fact
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have been made either on the pleadings or otherwise, any party may,
at any stage of the suit, apply to the Court for a judgment upon such
admissions. Accordingly, the findings and conclusioins reached by the
Court below are unimpeachable.
11.At this stage, learned counsel appearing for the appellants,
drawing our notice to Section 34 of the C.P.C., submitted that the
appellants are entitled to pay the money at the rate of 9% per annum.
Hence, it is relevant to extract Section 34 of the C.P.C. as under:
'34.Interest – (1)Where and in so far as a decree is for the
payment of money, the Court, may, in the decree, order
interest at such rate as the Court deems reasonable to be
paid on the principal sum adjudged, from the date of the
suit to the date of the decree, in addition to any interest
adjudged on such principal sum for any period prior to the
institution of the suit, with further interest at such rate not
exceeding six per cent per annum as the Court deems
reasonable on such principal sum, from the date of the
decree to the date of payment, or to such earlier date as
the Court thinks fit ....'
12.However, Section 34, which has been inserted in C.P.C., also
makes the issue much easier stating that the Court, may, in the decree,
order interest at such rate as the Court deems reasonable to be paid on
the principal sum adjudged, from the date of the suit to the date of the
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decree. When the appellants defendants have repeatedly admitted that
they have received the aforesaid amount, we are of the view that the
respondent plaintiff is entitled to get back the money with interest at
the rate of 9% per annum.
13.Therefore, finding no error or infirmity in the findings and
conclusion reached by the learned Single Judge, this Court is inclined to
dismiss this appeal. Accordingly, this appeal stands dismissed and the
appelllants defendants are directed to re-fund the amount of
Rs.35,00,000/- with interest at the rate of 9% per annum within a
period of six weeks from the date of receipt of a copy of this order. No
costs. Consequently, C.M.P. No.19809 of 2021 stands closed.
(T.R.,J.) (D.B.C.,J.)
06.01.2022
Index : Yes / No
Speaking/Non speaking order
vga
https://www.mhc.tn.gov.in/judis
O.S.A. No.264 of 2018
T.RAJA,J.
and
D.BHARATHA CHAKRAVARTHY, J.
vga
O.S.A.No.264 of 2018 and
C.M.P. No.19809 of 2021
06.01.2022
https://www.mhc.tn.gov.in/judis
