Madras High Court
Jayamani vs Ulaganathan on 29 March, 2022
A.S. (MD) No. 91 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.03.2022
CORAM
THE HONOURABLE MS. JUSTICE R.N.MANJULA
A.S. (MD) No. 91 of 2019
Jayamani ... Appellant / Defendant
Vs.
Ulaganathan ... Respondent / Plaintiff
PRAYER: Appeal Suit filed under Section 96 of the Civil Procedure Code,
1908 against the judgment and decree of the learned Additional District
Court (FTC), Kumbakonam, dated 20.03.2019 in O.S. No. 2 of 2016.
For Petitioner : Mr.M.Thirunavukkarasu
For Respondents : Mr.S.Ram Sundar Vijayraj
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A.S. (MD) No. 91 of 2019
JUDGMENT
This Appeal Suit has been preferred challenging the judgment and decree of
the learned Additional District Judge, Kumbakonam, dated 20.03.2019
made in O.S. 2 of 2016.
2. The plaintiff has filed a suit for recovery of money of Rs.10,00,000/-
(Rupees Ten Lakhs only) at the rate of 12% per annum; according to the
case of the plaintiff, on 10.09.2011, a sale agreement was entered into
between the plaintiff and the defendant in respect of 90 cents of the suit
property belonging to the defendant; the sale consideration was agreed at
Rs.43,48,000/- (Rupees Forty Three Lakhs and Forty Eight Thousand only)
and on the date of sale agreement itself, an advance amount of Rs.
10,00,000/- (Rupees Ten Lakhs only) was paid to the defendant; as per the
terms of agreement, the defendant has to measure the suit property through
Surveyor and fix the boundaries and thereafter, get the balance
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A.S. (MD) No. 91 of 2019
consideration and get the sale deed executed in favour of the plaintiff, but
the defendant was making unnecessary delay and hence, the plaintiff called
upon the defendant by sending a legal notice on 11.02.2012 to comply the
terms of the contract; the defendant sent a reply notice with false and
frivolous allegations and he unilaterally cancelled the sale agreement; since
there is a discrepancy in the extent of the property available on the ground
and the defendant also did not come forward to measure and settle the
extent agreed to be sold to the plaintiff, the plaintiff has filed the suit for
recovery of his advance money of Rs.10,00,000/- (Rupees Ten Lakhs only)
with interest at the rate of 12%; the defendant contested the suit by stating
that the sale agreement was not valid; it is true that the defendant had got
the advance amount of Rs.10,00,000/- (Rupees Ten Lakhs only); despite the
defendant was willing to get the balance sale consideration on executing the
sale deed, the plaintiff was not ready and willing to perform his part of
contract; the suit properties have also been measured with the help of the
Surveyor and the boundaries have also been demarcated; since the plaintiff
had failed to perform his part of contract, the defendant has stated in the
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A.S. (MD) No. 91 of 2019
reply statement that the plaintiff is not entitled to get back his advance
amount of Rs.10,00,000/- (Rupees Ten Lakhs only) and it would be
forfeited; only because the plaintiff failed to perform his part of the contract,
the defendant had cancelled the sale agreement; hence, the suit should be
dismissed.
3.On the basis of the above pleadings, the learned trial Judge framed the
following issues:
“1/10/09/2001 njjpapl;l tHf;F fpua
cld;gof;if gj;jpuk; cz;ikahdjh> mJ
bry;yj;jf;fjh> mJ gpujpthjpiaf;
fl;Lg;gLj;jf; Toajh>
2/ ,t;tHf;fpy; thjp nfhhpa[ss
; bjhif
thjpf;F tl;oa[ld; fpilf;ff; Toajh>
3/ ,t;tHf;F thjp nfhhpa[s;sthW tHf;F
brhj;ijg; bghWj;J bghUl;gpid ghj;jpak;
nfhUk; ghpfhuk; thjpf;F jf;fjh>
4/ ,t;tHf;F fhytuk;ghy; ghjpf;fg;gl;Ls;sjh>
5/ ,t;tHf;F chpa Kiwapy; kjpg;gPL
bra;ag;gl;L jFe;j ePjpkd;wf; fl;lzk;
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A.S. (MD) No. 91 of 2019
brYj;jg;gl;Ls;sjh>
6/ ,t;tHf;F thjpf;F vj;jifa epthuzk;
fpilf;ff; Toajh>”
4.During the course of trial, on the side of the plaintiff, one witness was
examined as PW1 and Exs.A1 to A18 were marked. On the side of the
defendant, two witnesses were examined as DW1 and DW2 and Ex.B1 to
Ex.B3 were marked. At the conclusion of the trial and on considering the
evidence on record, the learned trial Judge decreed the suit for a sum of
Rs.14,25,667/- (Rupees Fourteen Lakhs Twenty Five Thousand and Six
Hundred and Sixty Seven only) which includes the advance amount of Rs.
10,00,000/- (Rupees Ten Lakhs only) along with interest making together
Rs.14,25,667/- (Rupees Fourteen Lakhs Twenty Five Thousand and Six
Hundred and Sixty Seven only). The suit has been decreed as prayed for.
Aggrieved over the same, the defendant has preferred this Appeal Suit.
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A.S. (MD) No. 91 of 2019
5.The learned counsel for the appellant has stated that since the respondent /
plaintiff alone had failed to perform his part of contract, he is not entitled to
get back the advance amount and any interest. The learned trial Judge had
omitted to appreciate the merits of the case in a proper manner and decreed
the suit in favour of the plaintiff.
6.The learned counsel for the respondent submits that the discrepancy on
the ground in respect of the suit property was not rectified by the appellant
as agreed and that is the reason for the non-completion of the contract. The
failure is only on the part of the appellant and hence, the trial Judge is right
in decreeing the suit for recovery of the same as prayed for.
7.On the basis of the rival submissions, the following points for
consideration are found to be relevant for the purpose of this appeal:
"Whether the judgment of the trial Court in decreeing the
suit for a sum of Rs.14,25,667/- (Rupees Fourteen Lakhs
Twenty Five Thousand Six Hundred and Sixty Seven only)
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A.S. (MD) No. 91 of 2019
along with interest at the rate of 9% per annum of Rs.
10,00,000/- (Rupees Ten Lakhs only) from the date of the
suit till the date of realization is fair and proper?"
8.The fact that the sale agreement was executed between the appellant and
the respondent on 10.09.2011 was not denied. It is also not in dispute that
the appellant / defendant has received a sum of Rs.10,00,000/- (Rupees Ten
Lakhs only) on the date of agreement itself. The sale consideration was
agreed at Rs.43,48,800/- (Rupees Forty Three Lakhs Forty Eight Thousand
and Eight Hundred only). But as per the terms of the contract, the appellant
is obliged to measure the properties and demarcate the boundaries and show
that the extent on the ground is compatible to the extent described in the
document. According to the respondent / plaintiff, the appellant omitted to
perform the above essential duty cast upon him and he was evading.
9.During the pendency of the suit, a Commissioner was appointed by the
Court and he visited the suit property and took measurement of the same.
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A.S. (MD) No. 91 of 2019
Even in the report of the Advocate Commissioner, an extent of 600 sq.mt.,
which is almost equal to 1/4th of the suit property is merged with the river
due to soil erosion. In such circumstances, the respondent / plaintiff cannot
be expected to pay the balance sale consideration and get the sale deed
executed for a lesser extent than what was agreed between the parties.
10.The learned trial judge has rightly appreciated the facts and evidence and
found the merits of the case in favour of the respondent / plaintiff. There is
a clause in the agreement about the forfeiture of the advance amount. Even
it is there, the appellant has to establish that the failure to perform the
contract was on the part of the respondent / plaintiff only. But the facts and
evidence of the case would clearly show that the failure was on the part of
the appellant himself and hence, he cannot claim any forfeiture of the
advance money paid to him. So the trial Judge has rightly held that he is
liable to give back the advance money to the respondent with interest.
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A.S. (MD) No. 91 of 2019
11.However, it is seen that the interest at the rate of 9% per annum has been
ordered from the date of the suit till the date of realization. Taking into
consideration the existing rate of interest in the present banking transaction
and other loan transaction through Bank, I feel that consideration in the
matter of interest is shown in terms of Section 34 of Code of Civil
Procedure Code. Hence, I feel that it would be appropriate, if the interest
from the date of decree and till the date of realization is modified at the rate
of 6% per annum instead of 9% per annum. Thus, the point is answered. It is
needless to state that the respondent / plaintiff is entitled to have charge
over the suit property for the decree amount.
In the result, this Appeal Suit is dismissed and the judgment and decree in
O.S. No. 2 of 2016 on the file of the learned Additional District Judge,
Kumbakonam, dated 20.03.2019 is modified to the effect that the suit is
decreed for a sum of Rs.14,25,667/- (Rupees Fourteen Lakhs Twenty Five
Thousand and Six Hundred and Sixty Seven only) along with interest at the
rate of 9% per annum of Rs.10,00,000/- (Rupees Ten Lakhs only) from the
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A.S. (MD) No. 91 of 2019
date of suit till the date of decree and at 6% per annum of Rs.10,00,000/-
(Rupees Ten Lakhs only) from the date of decree till the date of realization
and costs.
29.03.2022
Index : Yes / No
Speaking Order : Yes / No
vji
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A.S. (MD) No. 91 of 2019
To
1. The learned Additional District Court (FTC),
Kumbakonam,
2. The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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A.S. (MD) No. 91 of 2019
R.N.MANJULA, J.
vji
A.S. (MD) No. 91 of 2019
29.03.2022
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