Madras High Court
J.Samuel vs K.C.Sekar on 31 October, 2022
A.S.No.276 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 31.10.2022
CORAM
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
A.S.No.276 of 2011
J.Samuel, R.D ..Appellant
vs
1.K.C.Sekar
2.The Manager
The Nilgiris District Central Co-operative Bank Ltd.,
Kothagiri,
The Nilgiris. ..Respondents
Appeal filed under Section 96 of Civil Procedure Code, 1908
against the judgment and decree of the District Judge of Nilgiris at
Udhagamandalam dated 31.07.2007 passed in O.S.No.2 of 2007.
For Appellant : Mr.MA.P.Thangavel
for Mr.K.Kamesh
For Respondents : No Appearance
JUDGMENT
1. This appeal suit is filed aggrieved by the judgment and
decree of the District Judge, Nilgiris at Udhagamandalam dated
31.07.2007 passed in O.S.No.2 of 2007 in and by which the suit
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A.S.No.276 of 2011
for specific performance filed by the plaintiff was decreed only to
the extent of return of advance amount of Rs.50,000/- along with
interest at 12% per annum from the date of suit till the re-
payment while refusing the prayer for specific performance.
2. When the matter came up for hearing today, there was
no appearance on behalf of the respondents.
3. Learned counsel appearing on behalf of the appellants
reported no instructions. Therefore, this Court perused the records
of the case and took up the matter for disposal, considering the
fact that the Appeal Suit is of the year 2011 and cause of action
arose in the year 2004.
4. On a perusal of the records of the case, it is the case of
the plaintiff that on 02.09.2004, the first defendant who is the
owner of the suit property entered into an agreement with the
plaintiff for sale consideration of Rs.10,25,000/- and received
Rs.5,000/- as advance. Thereafter, on 22.11.2004, the plaintiff
paid Rs.20,000/- and the time for execution of the sale deed was
extended till the end of December, 2004. Thereafter, the plaintiff
paid another sum of Rs.25,000/-, on 01.11.2004 and the time for
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A.S.No.276 of 2011
execution of the sale deed was extended till April, 2005. Therefore,
the plaintiff has totally paid Rs.50,000/- as advance. However,
when the plaintiff was ready with the balance sale consideration of
Rs.9,75,000/- on 03.11.2004 and was waiting in the office of the
Sub-Registrar, Kothagiri, after due purchase of stamp papers, the
first defendant did not turn up. The first defendant gave lame
excuses that he was unwell, but however had mortgaged the suit
property for a sum of Rs.7,25,000/- to the second defendant /
Bank. Therefore, the plaintiff issued pre-suit notice on 03.10.2006
and also on 06.10.2006 calling upon the first defendant to execute
the sale deed but however there was no response and hence the
suit.
5. It is the case of the defendants that, as agreed between
the parties, the plaintiff failed to pay the accrued interest payable
by the first defendant to the second defendant / Bank. The second
defendant insisted the first defendant to pay interest, however
even after extension of time, the plaintiff did not periodically make
the payment so that the interest can be paid, but however insisted
that the sale deed to be registered in favour of one Godwin
Robbert, who is not a party to the sale agreement. The plaintiff
failed to perform his part of the contract. The first defendant had
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A.S.No.276 of 2011
duly issued notice on 08.04.2006 and thereafter the first defendant
had also entered into an agreement with one Karthikeyan to sell
the said property. The said Karthikeyan is also in possession of the
suit property and thus prayed for dismissal of the suit.
6. The second defendant also contested the suit by filing
separate written statement stating that the first defendant
executed the mortgage deed in respect of the suit property in
favour of the second defendant / Bank on 29.08.2003 and obtained
loan of Rs.6,75,000/-. Therefore, it is their contention that the said
agreement will not bind the Bank and the first defendant has to
pay Rs.6,71,260/- which is due to them.
7. Based on the above pleadings, the trial Court framed
the following issues:-
1.Whether the plaintiff is entitled to the
relief of specific performance?
2.Whether the suit is barred by limitation?
3.Whether the suit is bad for non-joinder
of necessary parties?
4.Whether the plaintiff is entitled to the
alternative relief of refund of the advance
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A.S.No.276 of 2011
amount?
8. On the issues framed above, the parties let in evidence.
The plaintiff examined himself as PW1 and one T.L.Udayakumar
was examined as PW2. On the side of the plaintiffs, Exs.A1 to A13
were marked. The first defendant examined himself as DW1 and
on behalf of the defendants Exs. B1 and B2 were marked. The trial
Court thereafter proceeded to consider the issues and by judgment
dated 31.07.2007 held that even though as per the case of the
plaintiff, time is extended till April, 2005 to complete the sale,
even thereafter the plaintiff kept quiet and sent the notice only on
03.10.2006. Therefore, the suit was filed on 25.01.2007.
Considering the delay and also considering the existing loan of the
first defendant to the second defendant / Bank and the non-
payment of the loan amount in toto or the interest, the trial Court
found that the plaintiff did not prove that he was ready and willing
to perform his part of the contract and he did not even press the
relief regarding payment of the loan payable by the first defendant
to the second defendant / Bank by mortgaging the suit property.
Therefore, in the said circumstances refusing the relief of the
specific performance and ordered refund of the advance amount
paid i.e., Rs.50,000/- with interest at 12% per annum from the
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A.S.No.276 of 2011
date of plaintiff till date of re-payment, the present appeal is laid
before this Court.
9. On perusal of the memo of the grounds of appeal, it is
the contention of the appellant that the trial Court ought to have
considered that the purchase of the stamp papers in Exs. A7 and
A8 would palpably demonstrate that the plaintiff was ready and
willing to perform his part of the contract. Further, it is the
contention that as per Clause 6 of Ex.A1 agreement the vendor has
to execute the sale deed in favour of the purchaser or his nominee
and, therefore, the contention of the first defendant that the
plaintiff insisted upon executing the sale deed in favour of the third
party ought not to have been considered by the trial Court. When
the plaintiff has proved that he was ready and willing on
03.11.2004 at the Sub-Registrar Office, Kothagiri and when the
first defendant had failed to comply with the terms of the
agreement, the trial Court ought to have decreed the suit for
specific performance. Therefore, it is the contention of the
appellant that there is no application of mind on the part of the
trial Court and the appellant, therefore, would pray that the
judgment and decree of the trial Court be set aside and the suit for
specific performance be decreed as prayed for.
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A.S.No.276 of 2011
10. I have considered the grounds of appeal and perused
the material records of the case.
11. Upon consideration of the same, the following points
arise of considering in this Appeal:
(i) Whether the plaintiff is entitled to insist for sale deed to
be executed in the name of third party ?
(ii) Whether the plaintiff was ready and willing to perform his
part of the contract ?
(iii) To what relief the plaintiff is entitled to ?
12. Firstly, the appellant / plaintiff is right in contending
that the sale agreement mandates execution of the sale deed to
the plaintiff or his nominee and, therefore, the contention of the
first defendant that the plaintiff insisted upon executing the sale
consideration in favour of Godwin Robbert and, therefore, he
refused the execution need not be accepted by the Court. But
however a perusal of the judgment of the trial Court makes it clear
that the plaintiff's prayer for specific performance was not refused
on that score. The ground on which the plaintiff's relief of specific
performance is refused was that the plaintiff failed to prove that he
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A.S.No.276 of 2011
was always ready and willing to perform his part of the contract.
13. Secondly, on a perusal of the material records of the
case, it is clear that the plaintiff purchased the stamp papers and
was waiting at the office of the Sub-Registrar, Kotagiri on
03.11.2004. In this regard, it can be seen that even as per the
case of the plaintiff, the plaintiff paid advance amount of
Rs.25,000/- on 01.11.2004 and the time for completion of the sale
was extended till 2005. In this background, it is stated by the
plaintiff that even two days thereafter, the plaintiff was waiting in
the office of Sub-Registrar, Kothagiri. On perusal of the evidence,
it is made clear that nothing has been put forth on behalf of the
plaintiff about the notification to the first defendant to go for
execution of the sale deed on 03.11.2004 or for keeping the sale
consideration ready with the plaintiff. Even assuming that the
plaintiff was ready on 03.11.2004, it can be seen that long
thereafter, a legal notice was issued only on 03.10.2006 and the
suit was filed on 21.05.2007. The said delay is coupled with the
fact that there was no averment in the plaint as to the manner of
settlement of the mortgage loan also. Therefore, it can be seen
that the plaintiff was not ready and willing at the relevant point of
time to pay the interest due to the second defendant / Bank. There
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A.S.No.276 of 2011
are also laches on the part of the plaintiff, when it is the case of
the plaintiff that as on 03.11.2004, the defendant went back on the
obligation under the agreement and thereafter the legal notice was
issued only on 03.10.2006. If the plaintiff is ready and willing to
perform his part of the contract with the entire sale consideration
of Rs.9,75,000/-, there was no need for him to issue the legal
notice after almost one year and file suit after one year and three
months. Therefore, all these factors, if considered cumulatively,
this Court has to come to the conclusion that the plaintiff was not
ready and willing to perform his part of the contract and thus, the
trial Court has rightly refused the prayer of specific performance
while ordering the return of the advance amount of Rs.50,000/-
with interest at 12% per annum from the date of plaint till date of
re-payment.
14. In view of above finding, I answer the points for
consideration accordingly. I also answer issue no.1 that the
plaintiff is not entitled to the relief of specific performance. In view
thereof, answer to issue nos. 2 and 3 does not arise and as far as
the issue no.4 is concerned, I answer that the plaintiff has
alternative relief of refund of the advance amount along with
interest at 12% per annum as decreed by the trial Court.
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A.S.No.276 of 2011
15. In the result, the following order is passed:-
(i) A.S.No.276 of 2011 is dismissed.
(ii) The judgment and decree of the
trial Court dated 31.07.2007 in O.S.No. 2 of
2007 shall stand confirmed.
(iii) There shall be no order as to costs.
31.10.2022
Index:Yes/No
ssm
To
1.The District Judge of Nilgiris at Udhagamandalam.
2.The Manager
The Nilgiris District Central Co-operative Bank Ltd.,
Kothagiri,
The Nilgiris.
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A.S.No.276 of 2011
D.BHARATHA CHAKRAVARTHY.,J
(ssm)
A.S.No.276 of 2011
31.10.2022
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