Madras High Court
R.Gokilam(Deceased) vs S.Veerajothi Murugan on 11 December, 2023
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
AS.No.17 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 11.12.2023
CORAM:
THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN
AS.No.17 of 2012
1.R.Gokilam(deceased)
2.Rajamanickam
3.Jothiraman
4.Vimala
5.Sukumaran
6.Sankar
7.Gopu
(Appellants 2 to 7 brought on record as LR's of the
deceased sole appellant vide order of court
dated 20.02.2020 made in CMP.Nos.5236 to
5238 of 2017 in AS.No.17 of 2012) ... Appellants
Vs.
1.S.Veerajothi Murugan
2.D.Shanmuga Sundaram ...Respondents
PRAYER:
Appeal Suit is filed under Section 96 of CPC to set aside the
judgment and decree dated 25.02.2011 made in OS.No.118 of 2007 on the file
of the Additional District Court(Fast Track Court-2) at Cuddalore
1/12
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AS.No.17 of 2012
For Appellants : Mr.T.Girish
For Respondents
For R1 : Mr.T.Murugamanickam,
Senior Counsel
for Ms.Zeenath Begum
For R2 : Mr.L.Mouli
JUDGMENT
This Appeal suit is filed against the judgment and decree dated
25.02.2011 made in OS.No.118 of 2007 on the file of the Additional District
Court(Fast Track Court-2) at Cuddalore, thereby allowed the suit for specific
performance.
2. For the sake of convenience, the parties are referred to as per their
ranking in the trial Court.
3. The first respondent herein filed the suit for specific performance
and the appellant is the first defendant. The case of the plaintiff is that the suit
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property belongs to the first defendant and the same was purchased by the
registered sale deed dated 12.12.1996. In order to deal with the property, the
first defendant had executed power of attorney in favour of the second
defendant on 17.06.2004. The second defendant had entered into an agreement
for sale with the plaintiff under the registered sale agreement dated 12.02.2007.
As per the agreement for sale, the total sale consideration was fixed at
Rs.18,00,000/- and received a sum of Rs.17,00,000/- as an advance on the date
of agreement for sale. As per the terms of the agreement, the plaintiff has to pay
the balance sale consideration of Rs.1,00,000/- within a period of six months
from the date of the agreement for sale. The first defendant is being the
principal had received the entire advance amount from the second defendant
and also issued receipt. When the plaintiff was always ready and willing to
perform his part of contract by paying the balance sale consideration of
Rs.1,00,000/- to the second defendant, the second defendant failed to execute
sale deed. In the meanwhile, the first defendant also colluded with the second
defendant and cancelled the power of attorney executed in favour of the second
defendant by the cancellation deed dated 06.03.2007. Therefore, the plaintiff
caused public notice on 14.04.2007 in a newspaper and filed the suit.
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4. Resisting the same, the first defendant filed written statement
denying the receipt of advance amount of Rs.17,00,000/-. She further stated that
the so called agreement for sale is not true and valid. It is false and fabricated
one to grab the property with the collusion of the second defendant. The first
defendant is living in abroad and she never received any advance amount and
never intended to sell the property. Hence, she prayed for dismissal of the suit.
5. The second defendant filed written statement and stated that he did
not have any knowledge about the cancellation of power of attorney by the first
defendant even till filing of the written statement. After receipt of the advance
amount from the plaintiff, the same was immediately paid to the first defendant
on 12.02.2007. She also issued receipt for the same. Therefore, the agreement
for sale dated 12.02.2007 is true, valid, lawful and the first defendant is bound
to receive the balance sale consideration and perform her part of contract.
6. On hearing the rival pleadings, the learned trial Judge framed the
following issues for determination of the suit :-
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1) tHf;F fpua xg;ge;jk; cz;ikahdjh. bry;yj;jf;fjh.
Vw;Wf;bfhs;sf;Toajh>
2) tHf;F fpua xg;ge;jg;go thjpf;F Vw;wij Mw;Wjy; ghpfhuk;
fpilf;fj;jf;fjh>
3) tHf;fpd; jug;gpdh;fSf;F fpilf;ff;Toa ghpfhu';fs;
vd;d>
7. In support of the plaintiff's case, P.W.1 to P.W.3 were examined and
ten documents were marked as Ex.P.1 to Ex.P.10. On the side of the first
defendant, D.W.1 to D.W.5 were examined and Ex.D.1 and Ex.D.2 were
marked. The surveyor report on valuation of the property was marked as Ex.X1.
On considering the oral and documentary evidences adduced by the respective
parties and the submission made by the learned counsel, the trial Court decreed
the suit as prayed for. Aggrieved by the same, the first defendant has preferred
this appeal suit.
8. The learned counsel appearing for the first defendant would submit
that the first defendant had no knowledge about the agreement for sale. Even
according to the plaintiff, the advance amount was paid in the house of the first
defendant. When it being so, they would have insisted the agreement to be
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signed by the first defendant. Therefore, the agreement itself is false and
fabricated one in order to grab the property by the plaintiff and the second
defendant. As such, the first defendant rightly canceled the power of attorney
and the plaintiff is not entitled for any relief of specific performance. Further,
the plaintiff also failed to prove his readiness and willingness to perform his
part of contract. No prudent man would pay almost entire sale consideration and
fix time for balance meager sale consideration as six months. That itself shows
that no amount has been received as an advance from the plaintiff.
9. Per contra, the learned Senior Counsel appearing for the plaintiff
submitted that the power of attorney was executed by the first defendant in
favour of the second defendant as early as on 17.06.2004. On the strength of the
power of attorney, the second defendant had entered into an agreement for sale
on 12.02.2007. Within a period of one month from the date of the agreement for
sale, the first defendant wantonly canceled the power of attorney by the
cancellation deed dated 06.03.2007. The first defendant colluded with the
second defendant and canceled the power of attorney in order to cheat the
plaintiff. The plaintiff proved his readiness and willingness and as such, the trial
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court rightly allowed the suit. After the suit, the balance sale consideration was
duly deposited before the trial court and accordingly in the execution petition,
sale deed was executed in favour of the plaintiff on 19.10.2011. Thereafter, the
entire revenue records were mutated in his favour.
10. Heard, the learned counsel appearing on either side.
11. On the strength of the submissions made on either side, the
following points arise for consideration of this appeal suit:
(i) Whether the first defendant had knowledge
about the agreement for sale entered between the plaintiff and
the second defendant?
(ii) Whether the receipt issued by the first
defendant is genuine for the advance amount paid by the
plaintiff?
(iii) Whether unilateral cancellation of power of
attorney is valid or not?
12. In respect of the suit property, the first defendant had executed
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power of attorney in favour of the second defendant to deal with the same on
17.06.2004. On the strength of the power of attorney, on 12.02.2007, the second
defendant offered the suit property for sale and the plaintiff had agreed to
purchase the suit property for a total sale consideration of Rs.18,00,000/- and
paid a sum of Rs.17,00,000/- as an advance on 12.02.2007 itself. Even
assuming that the first defendant was present at the time of payment of advance
amount, the second defendant who is being the power of attorney can sign the
agreement for sale. The signature of the principal does not require when the
power of attorney is in very much force in favour of the second defendant. The
second defendant categorically admitted that when the power of attorney was in
force, he had entered into the agreement for sale with the plaintiff and received
a sum of Rs.17,00,000/- as an advance out of the total sale consideration of
Rs.18,00,000/-. On the same day itself, the entire amount was paid to the first
defendant and she issued receipt for the said amount. The receipt dated
12.02.2007 was marked as Ex.D2.
13. It is also to be noted that the power of attorney was executed by
the first defendant in favour of the second defendant as early as on 17.06.2004.
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Immediately after the agreement for sale entered between the plaintiff and the
second defendant, the plaintiff cleverly cancelled the power of attorney on
06.03.2007 unilaterally without even notice to the second defendant. It shows
that the first defendant had knowledge about the agreement for sale between the
plaintiff and the second defendant and immediately, that too unilaterally
cancelled the power of attorney. When the power of attorney was all along in
force from 17.06.2004, there is absolutely no reason for the first defendant to
cancel the power of attorney, that too immediately after the agreement for sale
dated 12.02.2007 by cancellation deed dated 06.03.2007. Therefore, when the
power of attorney was in force, the agreement for sale was executed by the
second defendant in favour of the plaintiff and as such, any cancellation of
power of attorney cannot bind the plaintiff. In fact, the plaintiff also caused
pre-suit notice to the defendants on 14.04.2007. On receipt of the same, the
defendants did not even reply. Subsequent to the cancellation of power of
attorney dated 06.03.2007, the plaintiff caused public notice in a newspaper on
14.04.2007. Therefore, the plaintiff had proved his readiness and willingness to
perform his part of contract as per the agreement for sale dated 12.02.2007.
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14. Further, after the judgment and decree passed by the trial court,
the plaintiff had deposited the balance sale consideration and filed execution
petition to execute the decree. In the execution petition, sale deed was
registered in favour of the plaintiff. Therefore, all the points are answered in
favour of the plaintiff and this Court finds no infirmity or illegality in the
judgment and decree passed by the trial court for interference by this Court.
15. Accordingly, this appeal suit is dismissed and the judgment and
decree dated 25.02.2011 made in OS.No.118 of 2007 on the file of the
Additional District Court(Fast Track Court-2) at Cuddalore is confirmed. There
shall be no order as to costs.
11.12.2023
Index : Yes / No
Internet : Yes / No
Speaking order /Non-speaking order
lok
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To
1.The Additional District Court(Fast Track Court-2) at Cuddalore
2.Section Officer,
V.R.Section,
High Court of Madras
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G.K.ILANTHIRAIYAN, J.
lok
11.12.2023
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