Madras High Court
Iliyash (Died) vs Deepan Chakravarthi on 10 February, 2023
2023/MHC/581
AS No.239 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10-02-2023
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
AS No.239 of 2017
And
CMP No.9526 of 2017
1.Iliyash (Died)
2.Noorunnisa,
W/o.Late Iliyash
3.Asker Ahamed,
S/o.Late Iliyash
4.Emthiyas Ahamed,
S/o.Late Iliyash
5.Shabrin Banu,
D/o.Late Iliyash
(Appellants 2 to 5 brought on record
as LRs of the deceased first appellant
viz., Iliyash vide order of Court dated
05.09.2022 made in CMP Nos.6586,
6596 and 6599 of 2020 in AS No.239
of 2017) .. Appellants
1/12
https://www.mhc.tn.gov.in/judis
AS No.239 of 2017
vs.
1.Deepan Chakravarthi
2.Mithoon Chakravarthi
3.Priyanka .. Respondents
PRAYER : This Appeal Suit is filed under Section 96 of the Code of Civil
Procedure against the decree and judgment dated 15.03.2017 made in OS
No.72 of 2015 on the file of the learned Additional District Judge,
Dharmapuri.
For Appellants : Mr.T.M.Vijay for
Mr.S.Doraisamy
For Respondents : Mr.P.Muthusamy
JUDGMENT
The present Appeal Suit has been instituted against the
judgment and decree dated 15.03.2017 passed in OS No.72 of 2015 on the
file of the learned Additional District Judge, Dharmapuri.
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AS No.239 of 2017
2. The first appellant is the defendant and the respondents are
the plaintiffs in the suit. The respondents-plaintiffs instituted the suit for
recovery of money of Rs.22 lakhs with interest and for permanent
injunction.
3. The plaint averments reveal that the suit properties belonged
to the first appellant-defendant and the first appellant-defendant had agreed
to sell the suit property to the plaintiffs' father Mr.A.T.Velayudham at the
rate of Rs.51 lakhs and the Sale Agreement was entered into between the
plaintiffs' father Mr.A.T.Velayudham and the first appellant-defendant on
26.11.2012.
4. The first appellant-defendant had received Rs.20 lakhs
towards advance. The time for Sale Deed was fixed as five months. As per
the terms and conditions of the Sale Agreement, Mr.A.T.Velayudham took
possession of the suit property and spent Rs.3 lakhs to promote the land for
the purpose of converting the same into Housing Plots with the concurrence
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AS No.239 of 2017
of the first appellant-defendant. Meanwhile, Mr.A.T.Velayudham died on
13.02.2014 in the motor accident.
5. The legalheirs of the said deceased Mr.A.T.Velayudham
were impleaded as plaintiffs. The plaintiffs approached the first appellant-
defendant to repay the balance amount of Rs.23 lakhs and the first
appellant-defendant repaid only a sum of Rs.1 lakh to the plaintiffs.
6. Since the first appellant-defendant postponed the repayment
of the balance amount, the plaintiffs were constrained to institute the suit for
recovery of money based on the Sale Agreement entered into between the
father of the plaintiffs and the first appellant-defendant.
7. The first appellant-defendant filed written statement denying
the plaint averments. The Sale Agreement was denied and the sale
consideration agreed between the parties were also denied. The possession
handed over to the original plaintiff Mr.A.T.Velayudham was also denied
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AS No.239 of 2017
by the first appellant-defendant.
8. It is contended by the defendants 2 to 5 that the plaintiffs'
father had not paid Rs.20 lakhs and on 26.04.2013 itself, the Sale
Agreement got lapsed. The father of the plaintiffs Mr.A.T.Velayudham had
not acted upon as per the terms and conditions of the Sale Agreement and
no notice was sent to the first appellant-defendant. Thus the plaintiffs have
not taken any steps thereafter and thus the suit claim is to be rejected.
9. The Trial Court framed the following issues:-
(1) Whether the plaintiff is entitled for recovery of money as
claimed by him ?
(2) Whether the plaintiff is entitled for relief of permanent
injunction as claimed by him ?
(3) To what other relief the plaintiff is entitled ?
10. On the side of the plaintiffs, the first plaintiff was examined
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AS No.239 of 2017
as PW-1 and One Mr.Raja and Mr.Thangavel were examined as PW-2 and
PW-3 respectively. Exs.A-1 to A-7 were marked on the side of the
plaintiffs. On the side of the first appellant-defendant, the first appellant-
defendant was examined as DW-1 and one Mr.Chinnasamy was examined
as DW-2 and Ex.B-1 was marked on the side of the first appellant-
defendant.
11. With reference to Issue No.1, the Trial Court made a
finding that the father of the plaintiffs Mr.A.T.Velayudham and the first
appellant-defendant were very much alive when the period of five months
for execution of the sale got lapsed. During the lifetime of the father of the
plaintiffs, the first appellant-defendant has not chosen to rescind the
contract, since time was lapsed.
12. Accordingly, it is to be construed that the time is not an
essence of contract. Thus the conduct of the parties can be inferred and the
contract was subsisting during the lifetime of the father of the plaintiffs
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AS No.239 of 2017
Mr.A.T.Velayudham, who died on 13.02.2014. It is further proved before
the Trial Court that the first appellant-defendant had received the advance
amount of Rs.20 lakhs from the father of the plaintiffs late
Mr.A.T.Velayudham. Since the advance amount received by the first
appellant-defendant was admitted, the passing of consideration as per the
Sale Agreement was also proved.
13. After the death of the plaintiffs' father, the first appellant-
defendant had returned a sum of Rs.1 lakhs to the plaintiffs. That would also
establish that the consideration was passed on by the deceased
Mr.A.T.Velayudham to the first appellant-defendant pursuant to the Sale
Agreement and after his death, the parties have decided not to act upon the
Sale Agreement and returned the advance amount received by the first
appellant-defendant. Accordingly, part amount of advance of Rs.1 lakh was
paid by the first appellant-defendant to the plaintiffs.
14. Therefore, the Trial Court arrived a conclusion that the Sale
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AS No.239 of 2017
Agreement was not acted upon and the parties also had decided not to
execute the sale pursuant to the Sale Agreement and agreed that the advance
amount received from the deceased Mr.A.T.Velayudham is to be returned
back to the plaintiffs.
15. This being the factum established, the Trial Court
considered granting of alternate relief of money claimed by the plaintiffs in
the suit. As per the terms and conditions of the Sale Agreement, the sale
consideration was fixed at Rs.51 lakhs, Earnest Money given at Rs.20 lakhs,
possession was handed over to the father of the plaintiffs'
Mr.A.T.Velayudham. Mr.A.T.Velayudham claimed that he spent a sum of
Rs.3 lakhs for the development of the property and to convert the same for
forming layout and the plots. The said sum of Rs.3 lakhs spent for
developing the property was disputed by the defendants 2 to 5. During the
lifetime of the said Mr.A.T.Velayudham, no steps were taken by the first
appellant-defendant to get the contract enforced. It is further not in dispute
that the time limit is fixed for execution of the sale was five months.
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AS No.239 of 2017
16. Based on the facts and circumstances, the Trial Court
arrived a conclusion that the plaintiffs and the first appellant-defendant
agreed to settle the issues by not acting upon the Sale Agreement entered
into between the father of the plaintiffs and the first appellant-defendant and
further agreed to repay the advance amount received from the father of the
plaintiffs.
17. The suit for recovery of money was filed within the time
limit of three years and thus the Trial Court considered the issuance of pre-
notice by the plaintiffs and the documents filed by them. In view of the fact
that the first appellant-defendant agreed to return the advance amount
received from the father of the plaintiffs, the Trial Court declined to grant
the relief of permanent injunction.
18. In the absence of Conveyance Deed of title on the first
appellant-defendant, no such relief needs to be granted. There was no scope
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AS No.239 of 2017
for the first appellant-defendant to execute the Sale Deed in favour of the
third parties and under those circumstances, the suit was decreed partly to
an extent of Rs.19 lakhs along with 6% interest per annum to be paid to the
plaintiffs from the date of suit till the date of realisation and consequently
the suit was dismissed with regard to the relief of permanent injunction.
19. This Court is of the considered opinion that the admitted
facts between the parties were considered by the Trial Court for forming an
opinion that the advance amount towards sale consideration based on the
agreement was passed on to the defendants 2 to 5, who in turn admitted the
Sale Agreement entered into between the father of the plaintiffs and the first
appellant-defendant. Further, it is proved that the first appellant-defendant
repaid the advance amount of Rs.1 lakh to the plaintiffs, which was also
admitted. Thus the Trial Court rightly formed an inference with reference to
the contract between the parties and accordingly granted the relief for
recovery of money. Regarding the relief of permanent injunction, since the
Sale Agreement was not acted upon, the said relief was declined.
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AS No.239 of 2017
20. Thus this Court do not find any infirmity in respect of the
findings of the Trial Court in this regard and it is based on the facts and
circumstances and the documents filed in the suit.
21. Accordingly, the the decree and judgment dated 15.03.2017
passed in OS No.72 of 2015 on the file of the learned Additional District
Judge, Dharmapuri stands confirmed. Consequently, AS No.239 of 2017
stands dismissed. However, there shall be no order as to costs. The
connected miscellaneous petition is also dismissed.
10-02-2023
Speaking Order/Non-Speaking Order.
Neutral Citation : Yes/No.
Internet : Yes/No.
Index: Yes/No.
Svn
https://www.mhc.tn.gov.in/judis
AS No.239 of 2017
S.M.SUBRAMANIAM, J.
Svn
To
The Additional District Judge,
Dharmapuri.
AS No.239 of 2017
10-02-2023
https://www.mhc.tn.gov.in/judis
