Madras High Court
P.Varadharajan vs Senthilkumar on 12 January, 2023
A.S.No.330 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.01.2023
CORAM :
THE HONOURABLE MR. JUSTICE S.S. SUNDAR
AND
THE HONOURABLE MR. JUSTICE A.A.NAKKIRAN
A.S.No.330 of 2011
P.Varadharajan ... Appellant /
Plaintiff
Vs.
1.Senthilkumar
2.Tmt.Arthi,
3.C.V.Radhakrishnan,
4.M.Nagarajan
5.N.Pandurangan
6.R.Subramaniam .. RR 1 to 6 /
Defendants 1 to 6
7.U.Balaji .. Respondent No.7
(R7 impleaded as per order dated
10.02.2012 in M.P.No.2 of 2011)
1
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Prayer : Appeal Suit filed under Order 41 Rules 1 & 2 r/w Section 96 of
Code of Civil Procedure against the judgment and decree dated 31.03.2011
in O.S.No.755 of 2007 on the file of the Additional District cum Sessions
Judge (Fast Track Court No.1), Coimbatore.
For Appellant : Mr.S.Parthasarathy, Senior Counsel
for Mr.J.Ramakrishnan
For Respondents : Mr.S.Mukunth,
for M/s.Saravabhauman Associates
for R5 and R6
JUDGMENT
(Judgment was delivered by S.S. SUNDAR, J.)
(1)This appeal arise out of the judgment and decree dated 31.03.2011 in
O.S.No.755 of 2007 on the file of the Additional District cum Sessions
Judge (Fast Track Court No.1), Coimbatore.
(2)The plaintiff in the Suit in O.S.No.755 of 2007 on the file of the
Additional District Court, Coimbatore is the appellant in the above
appeal. The appellant filed the Suit for specific performance of the
Agreement of Sale dated 26.02.2007 and for consequential reliefs.
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Alternatively, the plaintiff also prayed for recovery of a sum of
Rs.16,59,780/- to the plaintiff with subsequent interest from the date of
the Suit till payment.
(3)The case of plaintiff in the plaint is as follows. The 4 th defendant is the
brother-in-law of the 1st defendant and defendants 2 and 3 are their close
relatives. The 4th defendant approached the plaintiff, offering the Suit
property under the pretext that he could arrange for sale of the property
which belongs to the defendants 1 to 3. After negotiations, the plaintiff
agreed to purchase the Suit property for a total sale consideration of
Rs.50 Lakhs and also offered to pay an advance of Rs.15 Lakhs i.e., a
sum of Rs.5 lakhs to each of the defendants 1 to 3. The 4 th defendant
represented that he was in the process of securing power of attorneys
from the defendants 1 to 3 and also represented that he would execute the
agreement of sale in favour of the plaintiff, on securing such power of
attorney.
(4)The plaintiff on scrutiny found defect in the title of the defendants 1 to 3
as one of the Sale Deed was obtained from a minor and the plaintiff
wanted ratification from the minor and the plaintiff had to pay substantial
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amount to clear the encumbrance. Since the 4th defendant informed the
plaintiff that he had obtained power of attorney from the defendants 1 to
3, a written agreement of sale signed by the 4th defendant was executed
on 26.02.2007. The original documents of title were also handed over to
plaintiff by the 4th defendant.
(5)As per the terms of the agreement of sale, the total consideration was
Rs.50 Lakhs and the plaintiff agreed to complete the sale within six
months from the date of the agreement and the plaintiff was ready and
willing to perform his part of obligation by paying the balance sale
consideration and complete the same in terms of the agreement of sale.
However, plaintiff received a notice dated 14.07.2007 from the 4th
defendant addressed to the lawyer of the defendants 1 to 3 and realised
that there was some inter se dispute between defendants 1 to 4 and as a
result of which, the defendants 1 to 3 had cancelled the power of attorney
executed in favour of the 4th defendant.
(6)It was in the said context, the plaintiff issued a lawyer's notice dated
24.07.2007, calling upon the defendants 1 to 3 to execute the sale deed in
favour of the plaintiff after receiving the sale consideration. A reply
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notice was issued by the defendants 1 to 3. In the reply, the defendants 1
to 3 contended that the sale agreement had been executed in connivance
with the 4th defendant and that the defendants are not bound by the
agreement. The plaintiff also realised that defendants 1 to 3 executed the
sale deed in favour of the defendants 5 and 6. The plaintiff, by
contending that the alleged sale subsequent to the agreement dated
26.02.2007 is not valid and binding on him, filed the Suit for specific
performance of the agreement dated 26.02.2007 and in the alternative,
prayed for recovery of a sum of Rs.16,59,780/-, which was the amount
paid by the plaintiff as advance with interest.
(7)The Suit was contested by the defendants 1 to 3 through their power
agent, who executed the sale deed in favour of defendants 5 and 6 as the
power of attorney agent of defendants 1 to 3. The defendants 1 to 3
denied all the averments made in the plaint as regards the agreement and
questioned the genuineness of the sale agreement and the receipt of
consideration. Apart from the genuineness of the sale agreement, the
defendants 1 to 3 questioned the financial capacity of the plaintiff and the
readiness and willingness of the plaintiff as pleaded in the plaint. It is a
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specific plea that the 4th defendant had created the sale agreement with
the connivance of the plaintiff to defeat and defraud defendants 1 to 3. It
is also stated that defendants 5 and 6 are bonafide purchasers for value.
With regard to original title documents stated in the plaint, it is contended
by defendants 1 to 3 that the sale agreement does not refer to title deeds
being handed over and that the 4th defendant has colluded with the
plaintiff just for the purpose of the case. The defendants 1 to 3 also
contended that the Power of Attorney Deeds executed by them in favour
of the 4th defendant was cancelled.
(8)The 6th defendant filed a written statement in the same lines as pleaded in
the written statement of the defendants 1 to 3. The defendants 5 and 6
specifically pleaded in the written statement that they are bonafide
purchasers for value without notice of agreement of sale in favour of the
plaintiff and therefore, their sale is protected under Section 19(b) of the
Specific Relief Act.
(9)The subsequent purchaser also has raised a specific plea with regard to
the readiness and willingness of the plaintiff by stating that the plaintiff
has no financial capacity to pay Rs.15 lakhs as advance or to purchase the
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suit property for the sum of Rs.50 lakhs. Defendants 1 to 3 have
executed the Power of Attorney Deeds dated 10.07.2007, 11.08.2007 and
11.08.2007 respectively in favour of one Mr.K.Selvaraj under Exs.B5 to
B7 and the Power of Attorney Agent sold the suit property in favour of
defendants 5 and 6 under Ex.B8 dated 17.08.2007. It is also stated by
defendants 5 and 6 that they have done several improvements after
reclamation of soil and after putting up barbed wire fencing around the
entire suit property by spending several lakhs of rupees. They
specifically stated that the plaintiff is not entitled to seek charge over the
property. In sum and substance, the defendants have disputed the
genuineness of transaction under the suit Agreement dated 26.02.2007
marked as Ex.A7 and contended that defendants 5 and 6 are bona fide
purchasers for value without notice of suit agreement. Defendants have
repeatedly stated that the plaintiff is a partisan and stooge of the 4 th
defendant.
(10)Before the Trial Court, the plaintiff examined himself as PW1 and one
R.Selvaraj as PW2. Exs.A1 to A14 were marked on behalf of plaintiff.
On behalf of defendants, Dws.1 and 2 were examined and Exs.B1 to B18
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were marked on their behalf. The Trial Court, after referring to the
pleadings, framed issues:-
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(11)After carefully examining the pleadings and evidence, the Trial Court
noticed several inconsistencies between the pleading in the plaint and the
evidence given by Pws.1 and 2. After holding that defendants 5 and 6 are
bona fide purchasers for value without notice of the suit Agreement, the
Trial Court further held that the plaintiff has not proved the genuineness
of the Agreement under Ex.A7. Since the suit Agreement itself was
written in a stamp paper purchased in the name of the 4th defendant long
prior to the Agreement and the case of the plaintiff that a sum of Rs.15
lakhs was paid in cash to the 4th defendant four months prior to the suit
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Agreement is not proved, the Trial Court disbelieved the oral Agreement
and the payment of a sum of Rs.15 lakhs as advance under the
Agreement. Since the plaintiff has not produced any document to show
that he was having the balance amount ready at any point of time before
or after institution of the suit for specific performance, the Trial Court
also held that the plaintiff has not proved his readiness and willingness to
pay the balance of sale consideration as per terms of Agreement – Ex.A7.
Therefore, the suit in entirety, was dismissed by the Trial Court.
Aggrieved by the judgment and decree of the Trial Court dismissing the
suit filed by the plaintiff for specific performance, the above Appeal Suit
is preferred by the plaintiff.
(12)During the pendency of the Appeal, the appellant filed a Miscellaneous
Petition in CMP.No.20877/2022 under Order 41 Rule 27 of CPC for
reception of additional documents, namely, original documents of title.
The said application is filed mainly for the purpose of showing that the
original documents of title were handed over to the plaintiff pursuant to
the suit Agreement under Ex.A7 to focus that defendants 5 and 6 who had
not obtained the original title deeds, cannot claim to be bona fide
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purchasers of suit property for value without notice of the Sale
Agreement.
(13)Learned Senior Counsel appearing for the appellant/plaintiff raised
several grounds particularly by referring to the original documents of
Title Deed and submitted that the findings of the Trial Court that the
subsequent purchasers are bona fide purchasers is perverse. Learned
Senior counsel also submitted that the conclusion of Trial Court that the
suit Agreement is not a bona fide transaction, is also perverse inasmuch
as the Trial Court has failed to consider relevant facts particularly the
non-examination of defendants 1 to 4 which is fatal to the case of
defendants. When the Agreement-Ex.A7 is executed through the Power
of Attorney Agent, the 4th defendant herein, it is contended by the learned
Senior counsel that the genuineness of the Agreement cannot be inferred
especially when the Power of Attorney Deed executed by defendants 1 to
3 in favour of the 4th defendant was in force when the Sale Agreement-
Ex.A7 was executed.
(14)Per contra, Mr.S.Mukunth, learned counsel for the respondents referred
to almost the relevant portions of the evidence of PW1 and PW2 and the
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plaint averments to project the inconsistencies regarding the execution of
the Sale Agreement and the payment of a sum of Rs.15 lakhs. Referring
to the specific plea that the plaintiff is the henchman or stooge of the 4th
defendant, the learned counsel submitted that the findings of the Trial
Court regarding the collusion and creation of Ex.A7-Agreement is
fortified by the conduct of plaintiff and 4th defendant and the fact that the
suit Agreement itself was typed in a stamp paper which was purchased in
the name of the 4th defendant long prior to the date of Agreement.
(15)Considering the pleadings, evidence and the submissions of the learned
Senior counsel for the appellant and the learned counsel appearing for
respondents, this Court finds it appropriate to frame the following points
for determination:-
A) Whether the suit Agreement is a bona fide Agreement of Sale?
B) Whether the plaintiff was ready and willing to perform his part of
the contract in terms of the Sale Agreement?
C) Whether defendants 5 and 6 are bona fide purchasers for value
without notice of suit Agreement?
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D) Whether the plaintiff is entitled to the equitable relief of specific
performance?
E) Whether the petition filed in CMP.No.20877/2022 for reception of
additional documents namely, original documents of title in
relation to the suit property can be allowed?
POINT [A]:-
(16)Learned Senior counsel for the appellant submitted that the 4th
defendant is none else than the brother-in-law of the 1st defendant and
defendants 2 and 3 are close relatives of the 4th defendant. Since
defendants 1 to 4 are close relatives, the Trial Court, without there being
enough evidence to substantiate collusion, proceeded as if the plaintiff is
the 4th defendant's man and that the suit itself is engineered only by the 4th
defendant who has planned to grab the property with the connivance of
the plaintiff. Referring to the fact that the plaintiff is doing business, the
learned Senior counsel submitted that the Trial Court has not appreciated
the material facts before rendering finding on material issues.
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(17)From the sequence of events pleaded in the plaint, it is seen that the
plaintiff has pleaded payment of a sum of Rs.15 lakhs out of the total
consideration of Rs.50 lakhs in November 2006. The date of payment of
Rs.15 lakhs is not mentioned in the plaint or during evidence. The
plaintiff though refers to the sum of Rs.15 lakhs as advance to be paid to
defendants 1 to 3 at the rate of Rs.5 lakhs to each of the defendants 1 to
3, it is admitted that not even a single penny is paid as sale consideration
to defendants 1 to 3.
(18)Defendants 1 to 3 are close relatives and the 4th defendant is none else
than the brother-in-law of the 1st defendant. No document is filed to
show that defendants 1 to 3 had authorised the 4th defendant to negotiate
for the sale of property even before the Power of Attorney Deeds were
executed by defendants 1 to 3 in favour of the 4th defendant. No evidence
is brought to the notice of this Court to convince that the 4 th defendant
entered into an Agreement with the plaintiff even in November 2006 as
Power of Attorney Agent of defendants 1 to 3. The suit Agreement is
dated 26.02.2007. The suit Agreement is written in a Rs.20/- Stamp
Paper purchased in the name of 4th defendant on 20.01.2007. Normally,
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the purchaser used to prepare the sale Agreement. Immediately after the
cancellation of Power of Attorney Deeds, learned counsel appearing for
defendants 1 to 3 issued a legal notice to the 4th defendant on 09.07.2007
on behalf of defendants 1 to 3. In response to the notice issued on behalf
of defendants 1 to 3 by their counsel, the 4th defendant gave a reply
through his Advocate on 14.07.2007. It is in the said reply, the 4 th
defendant made a specific reference to the suit Agreement dated
26.02.2007 entered into by the 4th defendant with the plaintiff and receipt
of a sum of Rs.15 lakhs as advance under the Agreement. Even though it
was suggested in the said notice that a sum of Rs.15 lakhs was received
on behalf of defendants, there is no reference to payment of such amount
to the defendants 1 to 3. The Power of Attorney agent is liable to account
to his principal. However, he has not given any particulars as to the
amount which he had received by way of advance. Rather than
accounting for the amount which he has received as advance as an Agent,
the 4th defendant was eager in referring to the Sale Agreement dated
26.02.2007 and accused defendants 1 to 3 for cancelling the Power of
Attorney Deeds making unwarranted accusations. The conduct of the 4th
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defendant as the Power of Attorney Agent of defendants 1 to 3 shows that
he did not bother to account for the money which he had received on
behalf of defendants 1 to 3, but is interested in saving the Sale
Agreement dated 26.02.2007 in favour of plaintiff. Further reference to
possession of Agreement of Sale dated 26.02.2007 by defendants 1 to 3
[without indicating how the agreement was sent to defendants 1 to 3 who
were in USA] and marking of a copy of reply notice to the plaintiff would
clearly indicate possible collusion between the plaintiff and the 4th
defendant and this Court finds truth in the specific case of defendants 1 to
3 that plaintiff is just a henchman of the 4th defendant who is the brain
behind the suit Agreement which could have been fabricated after the
cancellation of Power of Attorney Deeds.
(19)In the reply notice which is marked as Ex.A3, there is no reference to
the Agreement the plaintiff had with 4th defendant in November 2006. It
is the case of plaintiff that he paid a sum of Rs.15 lakhs even in
November 2006. However, an explanation from the 4th defendant in the
reply notice about the receipt of advance in November 2006, is missing.
Normally, the document of title will be handed over only after the
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execution of Sale Deed and registration of Sale Deed. In the present
case, the Power of Attorney Deeds in favour of 4th defendant is admitted.
The conduct of 4th defendant in handing over documents of Title Deed
pursuant to the Agreement of Sale is unnatural and the Sale Agreement-
Ex.A7 does not refer to handing over of Title Deed. The 4th defendant
who admitted receipt of Rs.15 lakhs on behalf of defendants 1 to 3 did
not file written statement and remained exparte. Therefore, the allegation
that the 4th defendant has colluded with plaintiff to admit handing over
documents of title is justified.
(20)The 4th defendant was not examined by the plaintiff to prove his case,
particularly, the genuineness of the Agreement [Ex.A7]. During
evidence, PW1 categorically admitted that he has never contacted
defendants 1 to 3 in relation to the Agreement any time before the
Agreement and payment of substantial amount of Rs.15 lakhs. Even
though it is pleaded that the said sum of Rs.15 lakhs was paid in
November 2006, the date of payment was not mentioned either in the
pleading or in the evidence. The evidence of PW2 during cross
examination that the original documents were obtained from the 4th
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defendant at the time of execution of sale Agreement on 26.02.2007, is
contrary to the case of the plaintiff in the pleading. After admitting that
4th defendant has informed him that there is no encumbrance in respect of
property, the plaintiff during further cross examination, refers to a further
payment of Rs.3 lakhs to discharge the encumbrance in relation to one of
the Sale Deed which was obtained by predecessors in interest of the
defendants 1 to 3. It is stated that a Sale Deed was obtained from the
mother of a minor and that a consent letter was later obtained from the
minor after becoming major. If a sum of Rs.3 lakhs is paid by plaintiff to
discharge the encumbrance over the suit property, the plaintiff would
have certainly called upon defendants 1 to 4 to reimburse that amount or
to deduct the said sum out of the total consideration payable by plaintiff
as per the Suit Agreement. In the absence of any reference to the said sum
in the notice in Ex.A3, this Court is inclined to accept the case of
contesting defendants that the 4th defendant has colluded with plaintiff
and the Suit Agreement appears to be a concocted Agreement at the
behest of 4th defendant in collusion with plaintiff with ulterior motive,
taking advantage of the fact that defendants 1 to 3, the true owners of the
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property, were in abroad and that the 4th defendant had obtained the
Power of Attorney Deed from defendants 1 to 3. Hence, Point [A] is
answered in the negative and this Court holds that the Suit
Agreement is a product of collusion between plaintiff and 4 th
defendant.
POINT [B]-Readiness and Willingness:-
(21)The Trial Court specifically referred to the documents and held that the
plaintiff has not proved his readiness and willingness by producing any
document. This Court has already seen that the plaintiff has not
established any payment to defendants 1 to 3 pursuant to the Suit
Agreement under Ex.A7. When a sum of Rs.15 lakhs was paid according
to plaintiff even in November 2006 and it is not the case of 4th defendant
that the Power of Attorney Deeds in favour of 4th defendant coupled with
interest, there was no reason why the plaintiff or 4th defendant has not
come forward to prove the payment of any money to defendants 1 to 3. In
the instant case, 4th defendant is made as a party. No document is
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produced to show that the plaintiff had the balance amount of Rs.35 lakhs
before the time specified in Ex.A7-Agreement. Ex.A3 is the Consent
Deed dated 17.02.2007. This document is prior to the Sale Agreement
under Ex.A7. It is not known as to why the plaintiff should pay a sum of
Rs.3 lakhs to discharge the encumbrance. The person who executed the
Consent Deed was not examined. Therefore, this Court cannot give any
credence or importance to Ex.A3 which was relied upon by the learned
Senior Court appearing for the appellant. List of documents annexed to
the plaint does not show document-Ex.A3.
(22)As pointed out by the Trial Court, the plaintiff though produced some
documents to show that he is doing business and has been awarded some
contract, no evidence is marked to prove that the plaintiff was having
funds to perform his part of the contract. The glaring discrepancies
between the evidence of PWs.1 and 2 and the contradiction between the
pleading and the evidence pointed out by the Trial Court would show
how the plaintiff miserably failed to prove his means or wherewithal to
pay the balance of Rs.35 lakhs pursuant to the Suit Agreement. Since the
Agreement itself is held to be unenforcenable for want of bona fides, the
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little evidence available to show plaintiff's readiness and willingness
appears to have been created as the 4th defendant is an Auditor by
profession. PW2 is the friend of plaintiff and he admits in evidence that a
sum of Rs.15 lakhs was paid when Ex.A7 was executed. He does not
remember as to how the Agreement under Ex.A7 dated 26.02.2007 was
executed. From the overall evidence, this Court is unable to find any
irregularity in the finding of the Trial Court holding that the plaintiff has
not proved his readiness and willingness to perform his part of contract.
Hence, Point [B] is answered against the appellant/plaintiff.
POINT [C]-Whether defendants 5 and 6 are bona fide purchasers for
value without notice of suit Agreement:-
(23)The Trial Court has held that defendants 5 and 6 are bona fide
purchasers for value without notice of the Sale Agreement. However, the
reason given by the Trial Court may not be appropriate as it was pointed
out by the learned Senior Counsel for the appellant. In the present case,
the plaintiff has impleaded defendants 5 and 6 and it is not stated in the
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plaint that defendants 5 and 6 had notice or knowledge of the Sale
Agreement under Ex.A7 dated 26.02.2007. However, defendants 5 and 6
have specifically stated in the written statement that they purchased the
property without notice or knowledge of the alleged Suit Agreement
under Ex.A7. The 5th defendant was examined as DW1. In his proof
affidavit, he has specifically referred to the execution of Sale Deed in
their favour through the Power of Attorney Agent of defendants 1 to 3
and stated that they are bona fide purchasers for value without notice of
Sale Agreement. Learned Senior Counsel appearing for the appellant
referring to the fact that the original documents of Title have been handed
over to plaintiff, submitted that subsequent purchasers have not even
verified the original Title Deeds and they cannot claim that they are bona
fide purchasers for value without notice of prior Agreement. In the
course of evidence, the 5th defendant/DW1 has stated that they have taken
possession of suit property pursuant to the Sale Deed and they are in
enjoyment of the property by fencing the entire land. They have
purchased the property through the Sale Deed executed through Power of
Attorney Agent of defendants 1 to 3. In the cross-examination, when a
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suggestion was put to DW1, he has stated that the copy of documents of
Title Deeds were inspected by him and that he was informed that original
documents are available only with the defendants 1 to 3 who were in
abroad. Therefore, this Court cannot give much importance to the fact
that subsequent purchasers have not obtained the original documents of
title.
(24)In the absence of any evidence or suggestion to doubt the bona fides of
the transaction or knowledge of defendants 5 and 6 about the Suit
Agreement under Ex.A7, this Court is unable to interfere with the
findings of the Trial Court and hence, hold that defendants 5 and 6 are
bona fide purchasers for value without notice of Suit Agreement under
Ex.A7 and defendants 5 and 6 are therefore entitled to the protection
under Section 19[b] of the Specific Relief Act. Hence, Point [C] is
answered in favour of defendants 5 and 6.
POINT [D]:-
(25)Since this Court has already held that Suit Agreement under Ex.A7 is
not a bona fide transaction and no amount was paid by plaintiff to
defendants 1 to 3, defendants 1 to 3, 5 and 6 are not liable to pay any
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money to the plaintiff. The prayer in the suit is to direct defendants 1 to 4
to receive the balance sale consideration namely, a sum of Rs.35 lakhs
and to register the Sale Deed in favour of plaintiff. The suit was filed on
04.10.2007 and the suit property has already been sold in favour of
defendants 5 and 6 on 17.08.2007. Defendants have produced documents
to show that defendants 5 and 6 have obtained orders for mutation of
revenue records on 20.09.2007. However, no relief is prayed for in the
suit as against defendants 5 and 6. When defendants 1 to 3 have already
sold the property in favour of defendants 5 and 6, the suit without seeking
any relief against defendants 5 and 6 for execution of the Sale Deed, is
not appropriate. The Hon'ble Supreme Court in a decision in 1954, has
pointed out the nature of relief that is to be prayed in a suit for specific
performance when the vendors have already sold the suit property in
favour of third parties. Without seeking any specific relief as against
defendants 5 and 6 for execution of Sale Deed, the suit against
defendants 1 to 4 who have no interest in the property to be conveyed, is
not maintainable. Though the 4th defendant admits receipt of Rs.15 lakhs
from the plaintiff, having regard to the findings that the suit Agreement is
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not enforceable as against the contesting defendants and the learned
counsel appearing for plaintiff has not prayed for any decree as against 4th
defendant for recovery of money before the Trial Court, this Court is
unable to grant any decree in favour of plaintiff even though the 4 th
defendant remained exparte throughout the proceedings. Hence, Point
[D] is also answered against plaintiff.
POINT [E]:-
(26)CMP.No.20877/2022 is filed for reception of original documents,
namely, Exs.A3, B10, B11, B12, B13 and B14 as additional evidence in
the above Appeal Suit under Order 41 Rule 27 of CPC. This Court has
already held that the case of 4th defendant that the suit Agreement is not a
bona fide sale transaction and it is product of collusion between plaintiff
and 4th defendant. The 4th defendant though in the reply notice stated that
original documents had been handed over to plaintiff, this Court is unable
to accept the case of 4th defendant that the documents were really handed
over to plaintiff even in November 2006. Since there is collusion
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between plaintiff and 4th defendant, the 4th defendant could have obtained
the documents any time from the plaintiff. This court has also held that
the failure to produce the original documents cannot be a valid reason in
the circumstance of the present case where defendants 5 and 6 have
otherwise proved that they are bona fide purchasers for value without
notice of suit Agreement and entitled to protection under Section 19[b] of
the Specific Relief Act. In such circumstances, production of original
documents may not be relevant or necessary in the present Appeal.
Further, the plaintiff/appellant has not even explained why these
documents were not filed before the Trial Court. The appellant/plaintiff
has obtained certified copies of the original documents and produced
before the Court when the original documents are available. They could
have very well produced original documents and marked the Xerox
copies of the documents. Even that is not done. It is possible that the
appellant/plaintiff has now obtained original documents from the 4th
defendant and seeks to produce the same as additional documents before
this Court. Further, this Miscellaneous Petition is presented only after
the hearing of the Appeal Suit on merits and this Court finds that the
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appellant/plaintiff has not satisfied the requirement of Order 41 Rule 27
of CPC.
(27)For the said reasons this Court is not inclined to entertain this Civil
Miscellaneous Petition for reception of documents as additional evidence
at the appellate stage. Hence, CMP.No.20877/2022 stands dismissed
and Point [E] is also answered in negative as against the
appellant/plaintiff.
(28)Registry is directed to return the original documents, namely, Exs. A3,
B10, B11, B12, B13 and B14 to the learned counsel appearing for
appellant/plaintiff on record subject to production of Xerox copies of the
said documents by the learned counsel to be placed in the Civil
Miscellaneous Petition.
(29)In the result, the Appeal Suit stands dismissed with cost.
[SSSRJ] [AANJ]
12.01.2023
Internet : Yes
Index : Yes / No
Neutral Citation : Yes / No
Jvm/AP
https://www.mhc.tn.gov.in/judis
A.S.No.330 of 2011
To
1.The Additional District cum Sessions Judge
(Fast Track Court No.1), Coimbatore
2.The Section Officer,
VR Section, High Court,
Chennai.
https://www.mhc.tn.gov.in/judis
A.S.No.330 of 2011
S.S. SUNDAR, J.
and
A.A.NAKKIRAN, J.
Jvm/AP
A.S.No.330 of 2011
12.01.2023
https://www.mhc.tn.gov.in/judis
