Madras High Court
R.Jeyaraman vs R.Saroja Raju on 7 June, 2022
S.A.(MD)No.141 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.06.2022
CORAM : JUSTICE N.SESHASAYEE
S.A.(MD) No.141 of 2011
R.Jeyaraman ... Appellant/Respondent/Plaintiff
Vs.
R.Saroja Raju ... Respondent/Appellant/Defendant
Prayer:- Appeal filed under Section 100 of Civil Procedure Code to set aside
the judgment and decree dated 18.02.2010 made in A.S.No.221 of 2009 on
the file of Principal District Judge, Tiruchirappalli, reversing the judgment
and decree dated 08.09.2009 passed in O.S.No.331 of 2001 on the file of
Principal Subordinate Judge, Tiruchirappalli.
For Appellant : Mr.C.Dhanaseelan
For Respondent : Mrs.Sivashankari
for Mr.M.Sidharthan
JUDGMENT
The plaintiff, who was successful before the trial court in his suit for specific
performance in O.S.No.331 of 2001, but, suffered a reversal before the
First Appellate Court in an appeal preferred by the defendant in A.S.No.221
of 2009, is the appellant herein. For the sake of narrative convenience, the
parties would be referred to by their rank before the trial court.
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S.A.(MD)No.141 of 2011
2. The plaintiff's case is that he and the husband of the defendant were former
colleagues at BHEL, that the defendant was the promoter and developer of
M/s.Kailash Arcade, a residential cum commercial complex, that there was an
oral agreement between the plaintiff and the defendant for purchase of two
shops in a commercial building, bearing Nos. A1G and A2G, each with a
plinth area of 180 sq. ft and a super plinth area was 207 sq.ft, and that the
cost of construction of the said building was agreed at Rs.500/- per sq. ft.
Besides, the defendant agreed to sell undivided 64 sq. ft. out of a total extent
of 7804 sq. ft. for Rs.23,040/- to the plaintiff. In terms thereof, the total
consideration payable including the cost of construction would be Rs.
1,26,540/- out of which the plaintiff had paid a sum of Rs.20,000/- as
advance on 29.09.1999, for which the defendant had issued Ext.A.3 receipt.
Besides, on 23.02.2000, the plaintiff was given Ext.A5, a draft/model sale
deed as concerning the UDS wherein the defendant's husband carried out
some correction by his hand. The plaintiff learnt that notwithstanding the
agreement that was entered into orally between the parties, the defendant did
not obtain any approval for the construction from the authorities concerned.
As he was expecting necessary communication from the defendant about the
approval to be obtained by the authorities, the plaintiff was served with
Ext.A-6 letter dated 27.03.2001 under which the defendant returned the
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S.A.(MD)No.141 of 2011
advance amount of Rs.20,000/- Vide a Demand Draft, bearing No.428922
and dated 27.03.2001. This draft was returned by the plaintiff along with
Ext.A-9 reply dated 07.04.2001. This was followed by a re-joinder notice of
the defendant dated 15.04.2001, marked Ext.A10. This is the setting, in
which the plaintiff has filed the suit for specific performance.
3. In his written statement substantial part of the plaint - averments were
admitted. Where the defendant differed is that, she would allege that contrary
to allegation of the plaintiff that the cost of construction was agreed at Rs.
1,03,500/- at Rs.500/- per sq. ft, the actual cost of construction is Rs.
3,20,000/-. The other major allegation was that despite several requests
made, the plaintiff did not come forward to pay the balance amount of Rs.
3,040/- for completing the sale of the undivided 64 sq. ft.
4. The dispute went to trial, and before the trial court the plaintiff examined
himself as P.W.1 and he produced Ext.A.1 to Ext.A.15. For the defendant, the
husband of the defendant was examined as D.W.1. No documentary evidence
was produced on the side of the defendant.
5. Before the trial court, the plaintiff appeared to have laid considerable
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S.A.(MD)No.141 of 2011
emphasis on Ext.A.4, the draft construction agreement to support his case.
This document however does not bear the signature of neither of the parties.
On a combined reading of Ext.A.3 cash receipt, and Ext.A.4 draft
construction agreement, the trial court came to the conclusion that the
defendant had agreed to sell the property in terms thereof and decreed the
suit. The matter was taken up in an appeal by the defendant in A.S.No.221 of
2009. The first appellate Court has chosen to reverse the decree of the trial
court on the ground that the plaintiff has not proved that the consideration
was duly fixed and exercised its discretion not to grant a decree for specific
performance. Hence, this Second Appeal is filed at the instance of the
plaintiff.
6. This Second Appeal is admitted on the following questions of law:
a) Whether the decision of the lower Appellate Court is
contrary to Section 8 of the Indian Contract Act when it has
failed to give due credit to Ex.A.3 towards the acceptance of
the proposal made by the defendant for selling the suit
schedule property?
b) Whether the revocation of the proposal by the defendant,
Vide Ext.A.6, dated 27.03.2001, is permissible under Section
5 of the Indian Contract Act, after the proposal was accepted
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S.A.(MD)No.141 of 2011
by the plaintiff and performing the condition of paying
advance amount?
c)Whether the lower Appellate Court has failed to apply
Section 7(2) of the Indian Contract Act to the defendant's
failure to inform DTP approval and come to the conclusion
that the proper execution of Ext.A.4 has not been insisted by
the defendant?
7. The learned counsel for the appellant argued that the defendant has not
disputed the receipt of advance amount of Rs.20,000/-, nor about issuing
Ext.A-3 receipt, nor about handing over of Ext.A.4 draft agreement, and this
would be known from plain reading of his re-joinder notice in Ext.A.10 dated
15.04.2001 and also the written statement. He would submit that under
Section 7(2) of the Indian Contract Act, there is no prescribed mode for
accepting the contract, and the facts proved or admitted establishes that a
contract for sale of two shops in commercial building.
8. Per contra, the learned counsel for the plaintiff would argue that there is no
consensus ad idem between the parties as to the consideration payable. It is
true that the defendant had sent Ext.A.10 re-joinder notice, wherein he has
indicated about Ext.A.4, but to qualify it, he alleged that it was given only for
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S.A.(MD)No.141 of 2011
the plaintiff to go through the document, but there is no intention to make it a
basis as settling the terms of contract between the parties.
9. The rival arguments highlights that evidence have been made available to
infer that the parties might have entered into some agreement, but when its
enforceability is sought then every material terms thereof must be proved.
The agreement alleged is an oral agreement, and when a dispute arises as to a
material terms of the contract, then the burden is on the plaintiff to prove
what precisely the disputed term is. In the instant case, what hinders this
Court from accepting the version of the plaintiff is the want of proof
regarding the consideration agreed upon between the parties. What is
established is the terms as to the subject matter of the intended contract - the
two specific shops of the proposed commercial building, but not the
consideration payable. The plaintiff on whom the burden lies requires the
court to referentially infer by relying on Ext.A-4. Inasmuch as Ext.A-4 is an
unsigned document, and inasmuch as the defendant contends that it was
shared with the plaintiff only for him to learn about it, how can the defendant
be pinned to the terms of Ext.A-4?
10. There is hardly any dependable proof on the consideration payable, and
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S.A.(MD)No.141 of 2011
with rival parties quoting different prices, it can hardly be said that parties
shared consensus ad idem, and hence it cannot be held that a concluded and
enforcible contract ever came into existence. Consequently the appeal has to
fail.
11. When the contract was not formed, anything that paid during in the course
of the attempt made towards its formation cannot lie with the defendant.
Here, the defendant cannot be faulted as she had returned the advance
amount of Rs.20,000/- to the plaintiff, but, it was returned on 07.04.2001
along with a letter by the latter Vide Ext.A9. Fairness requires that the
defendant deposited this amount in the Court when the suit commenced. But
this Court understands that it was not done. This Court therefore, directs the
defendant to return a sum of Rs.20,000/- (Rupees Twenty Thousand only)
with interest at the rate of 6% from 07.04.2001 till its payment.
12. While the decree this Court now granted enables the plaintiff to realize
the amount by executing the same, it has to be underscored that execution is
only an option, which the decree holder may have to resort to, if the judgment
debtor does not satisfy the decree. However, this Court passes this decree and
therefore, it has every authority to make the decree effective. After all, if the
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S.A.(MD)No.141 of 2011
decree is not obeyed, the Court also has its contempt power to proceed
against the judgment debtor. To avert any such consequence, this Court
directs that the respondent/defendant pays the plaintiff a sum of Rs.20,000/-
(Rupees Twenty Thousand only) with interest at the rate of 6% per annum
from 07.04.2001 on or before 24.08.2022. In fine, this Second Appeal is
partly allowed, and the judgment and decree dated 18.02.2010 made in
A.S.No.221 of 2009 on the file of the Principal District Judge, Tiruchirappalli
is modified as above. No costs.
13. Post this Second Appeal on 24.08.2022 under the caption 'For
Reporting Compliance'.
11.07.2022
Index : Yes/No
Internet: Yes/No
CM
To:
1. The Principal District Judge, Tiruchirappalli,
2. The Principal Subordinate Judge, Tiruchirappalli.
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S.A.(MD)No.141 of 2011
N.SESHASAYEE, J.
Cm
S.A.(MD) No.141 of 2011
11.07.2022
https://www.mhc.tn.gov.in/judis
