Madras High Court

R.Manoharan vs R.Palanisamy on 8 June, 2023

                                                                              A.S.No.1115 of 2015


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              DATED : 08.06.2023

                                                     CORAM :

                       THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

                                              A.S.No.1115 of 2015
                                                      and
                                               M.P.No.1 of 2015

                     R.Manoharan                                          ... Appellant

                                                       Versus

                     R.Ramasamy (Died)
                     1.R.Palanisamy
                     2.Minor Sivakumar,
                       S/o. R.Palanisamy,
                      (Represented by his Father and Natural Guardian R.Palanisamy)

                     Lakshmi (Died)
                     3.Sargunavathi
                     4.Sathish Kumar

                     Viswanathan (Died)
                     5.Veluchamy
                     6.Krishnamurthy
                     7.Arukkani
                     8.Chitra
                     9.Minor Priyadarshini,                               ... Respondents
                       D/o.Chitra,
                     (Represented by her mother
                      and Natural Guardian Chitra)



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                     1/15
                                                                                       A.S.No.1115 of 2015


                                  Prayer : Appeal Suit is filed under Order XLI, Rule 1 read with
                     Section 96 of the Code of Civil Procedure, 1908, against the Judgment and
                     Decree dated 10.03.2015 passed in O.S.No.35 of 2003 on the file of the II-
                     Additional District -cum- Sessions Court, Tiruppur.

                                        For Appellant     : Mr. S. Sriram,
                                                            for Mr. K. Govi Ganesan

                                        For Respondents : No Appearance


                                                         JUDGMENT

A. The Appeal Suit :

This Appeal Suit is filed against the Judgment and Decree of the

Learned II-Additional District cum Sessions Judge, Tiruppur, in O.S.No.35

of 2003, dated 10.03.2015 in and by which the suit filed by the plaintiff for

specific performance was dismissed by the Trial Court.

B. The Case of Plaintiff :

2.The case of the plaintiff/appellant is that the defendants are the

owners of the suit schedule property being undivided share in the lands

comprised in S.Nos.242/5B & 242/2A Karaiputhur Village, Palladam

Taluk, Trippur District. On 27.01.1995, the defendants entered into a sale

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agreement which was duly registered before the Sub-Registrar, Palladam,

agreeing to sell the suit property for a total sale consideration of Rs.11

Lakhs and received an advance amount of Rs.5 Lakhs. In view of the

pendency of the suit in O.S.No.85 of 1981, the sale is said to be completed

after the orders passed finally in the suit, by paying the balance sale

consideration of Rs.6 Lakhs. Even though the said suit was decreed on

07.05.1996, the defendants did not come forward to execute the sale deed.

Therefore, the plaintiff issued a legal notice on 20.01.1998, and thereafter,

the present suit was filed in March 1999, for specific performance of the

sale agreement dated 27.01.1995.

C. The Case of the Defendants :

3. The suit was resisted by the defendants by filing a written

statement in which they denied the sale transactions. It is their case that

they borrowed a sum of Rs.2,50,000/- for the marriage expenses in the

family. Instead of executing the mortgage deed, to evade a stamp duty, a

sale agreement was entered into. Even the sale agreement was hastily

registered without giving ample time to go through the contents of the

agreement. Even though the sum of Rs.2,50,000/- was borrowed, the

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A.S.No.1115 of 2015

plaintiff greedily entered into the sale agreement as if a sum of Rs.5 Lakhs

was paid as advance and registered the same. The suit which is alleged to

be pending was over and as a matter of fact, the first appeal is also over

and the matter is pending on the second appeal. The cause of action for the

plaintiff to file the suit is immediately after the passing of the decree, but

the suit was filed belatedly. But, however, since the sale agreement says it

is after the final order passed in the suit, then there is no cause of action for

the plaintiff to file the suit.

D. The Issue and Trial :

4. On the strength of the said pleadings, the Trial Court framed the

following issues:

''1. Whether the sale agreement dated 27.01.1995 is valid?

2. Whether the suit properties are exclusively belongs to the defendants?

3. Whether the suit is barred by Res-

judicata in view of the decree passed in O.S.No.85 of 1981 and O.S.No.5 of 1995?

4. Whether the plaintiff was ready and willing to purchase the suit properties?

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A.S.No.1115 of 2015

5. Whether the plaintiff is entitled for the relief of specific performance of agreement of sale?

6. To what relief the plaintiff is entitled to? ''

5.On the said issues, the plaintiff examined himself as P.W.1 and one

Marappan, the attesting witness of the sale agreement, was examined as

P.W.2, and on behalf of the plaintiff, Exs.A-1 to A-10 were marked. On

behalf of the defendants, even though the first defendant entered the box by

filing a proof affidavit and marking Exs.B-1 to B-6, he did not thereafter

appear before the Trial Court for cross-examination, therefore, by order

dated 30.06.2015 the evidence was eschewed.

6.Thereafter, the Trial Court proceeded to consider the case of the

parties. Trial Court found that firstly the sale agreement itself is vague and

that the sale is to be effected depending on the outcome of the litigation.

Even the clause in the sale agreement is not clear, whether the sale

transaction should be completed immediately after the decree of the

original Court, or after the decree attains finality. In any event, even after

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A.S.No.1115 of 2015

the original decree, the plaintiff took 34 months to file the suit. He did not

produce any documentary evidence to prove that he is always ready and

willing to complete the transaction. Even the date of entering into the sale

agreement and possession certificate are a bit confusing throwing doubt on

the case of the plaintiff. However, the Trial Court also found that it is for

the defendants to prove that the transaction is a loan transaction, and even

though they have pleaded that the second defendant got into the box, but,

since he did not subject himself to the cross-examination, that case cannot

also be believed. In that view of the matter, considering the nature of the

suit agreement, subsequent conduct of the plaintiff and the delay in filing

the suit, the Trial Court refused to order specific performance of the suit

agreement and dismissed the suit. Aggrieved by the same, the present

Appeal Suit is filed before this Court.

E. The Submissions :

7. Heard Mr. S. Sriram, the learned Counsel for the appellant. Even

though notices were served, the respondents chose not to appear through

any counsel or in person.

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A.S.No.1115 of 2015

8.The learned Counsel for the appellant would submit that the suit

agreement is a registered agreement. It clearly mentioned that the sale

transaction shall be completed depending on the outcome of the suit. There

is no time limit fixed after the decree. Time is not the essence of the

contract. Therefore, in respect of the sale of the immovable property time is

not the essence of the contract. The plaintiff duly discharged his burden by

marking the suit agreement of sale, which is also a registered document.

This apart the plaintiff and the attesting witness were examined and the

relevant documents are marked. There is no contra evidence let in on behalf

of the defendants and therefore there was no question of considering the

defendants' case. The Trial Court ought to have decreed the suit even in

respect of the specific performance.

8.1 Alternatively, he would submit that in this case, the defendants

had disputed the sale agreement and pleaded it to be a loan transaction.

The defendants, themselves have given an undertaking before the Trial

Court that they are ready and willing to repay the sum of Rs.2,50,000/-

borrowed by them with reasonable interest. At that stage, there was an

omission on the part of the learned Counsel for the plaintiff to amend the

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A.S.No.1115 of 2015

plaint to plead the relief of return of money. He would further submit that

the said pleading is technical in nature, because, in this case, admittedly,

there is no clause in the agreement for forfeiture. Therefore, the return of

the amount is a natural corollary in the absence of the grant of relief of

specific performance.

8.2 The learned Counsel has also submitted that even in respect of

Section 22 of the Specific Relief Act, in the absence of specific prayer, the

Court is not denuded of its powers to grant any reliefs to the plaintiff. In

any event, he would submit that the plaint can be amended even at the

appellate stage and that his oral application during the course of the

arguments to include the alternative relief of refund of the advance amount

shall be taken up and considered by this Court, in the event, this Court

comes to the conclusion that this suit agreement is not capable of specific

performance.

9. I have considered the submissions made by the learned Counsel

appearing on behalf of the appellants and perused the material records of

the case.

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F. Points for Consideration :

10. Upon consideration thereof, the following points arise for

consideration :

''(i) Whether or not the plaintiff is entitled to decree in the suit for specific performance?

(ii) Whether or not the plaintiff is entitled to the alternative relief of return of Rs.5 Lakhs as prayed for by him?''

G. On Point No. (i):

11. The suit agreement is marked as Ex.A-1, and it is a registered

agreement. The defendants did not deny their signatures. As a matter of

fact, they admit the execution of the agreement. But, however, it is the

specific case that it was given as a security towards loan transaction. In this

regard, when there is no contra evidence let in on behalf of the defendants,

the entire case of the defendants that the suit agreement in respect of loan

transaction fails as it is for the defendants to let in evidence to prove their

case. Therefore, this Court holds that Ex.A-1, is executed towards the

purchase of the suit schedule property. The question now arises that

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whether the plaintiff would be entitled for the specific performance by the

suit agreement?. in this regard, the suit agreement reads as follows:-

''8. ... ehsJ njjpapy 1Kjy; 9tiu yf;fkpl;lth;fs;. 10 yf;fkpl;lthplkpUe;J ,jpy; fz;l rhl;rpfs; Kd;gl buhf;fkh U:/5.00.000-? kl;Lk; bgw;Wf;

                                      bfhz;Ls;shh;fs;/           kPjp     fpiaj;bjhif
                                      :U:/6.00.000-?j;ija[k;        10      yf;fkpl;lth;
                                      1Kjy; 9 tiu yf;fkpl;lth;fs; elj;jpf;
                                      bfhz;Ls;s jpUg;g{u; o/K nfhh;l; x v!;
                                      be       85/1981         tHf;F      ,Wjp       Kot[
                                      mile;jt[ld;           10      yf;fkpl;ltu;      kPjp
                                      fpiuiaj;         bjhifia            brYj;jp       10
                                      yf;fkpl;lth;      kPjp     fpiua      brytpy;      1
                                      Kjy;     9      tiu      yf;fkpl;lth;fsplkpUe;J
                                      fpiuaKk;.        RthjPdKk;          bgw;Wf;bfhs;s
                                      cs;sth;/// ''

12.The words '',Wjp Kot[ mile;jt[ld; '' can be construed by

the parties as after the Judgment and Decree passed by the District Munsif

Court or after the Judgment and Decree attains finality on the conclusion of

proceedings in the Appellate Fora. Firstly, the very agreement itself is

vague and the parties lack Consensus Ad Idem in respect of the completion

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of transaction.

13.Be that as it may, it is the case of the plaintiff that he is entitled to

complete the transaction immediately after the decree is passed. Still, it is

seen that the decree was passed on 10.05.1996. But, however, the suit is

filed only on March 1999. Even in the absence of a specific time limit in

the agreement, when the suit has been filed almost after three years and

when there is no communication or transaction in the meanwhile, it can be

said that the plaintiff did not show his willingness and readiness to

complete the transaction within the reasonable time and therefore, in that

view of the matter, I am in agreement with the conclusion reached by the

Trial Court that the plaintiff is not entitled to the specific performance and

this point is answered accordingly.

G. Point No.(ii) :

14. In this case, the defendants have pleaded that they borrowed a

sum of Rs.2,50,000/- and they did not repay the same. As a matter of fact,

they have expressly pleaded in the written statement that they are willing to

repay the sum of Rs.2,50,000/- with reasonable interest. After pleading so,

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the defendants miserably failed to let in any evidence, therefore, the Trial

Court also had given a finding in paragraph No.21 of the Judgment that it

cannot be held that the suit agreement, Ex.A-1, was in respect of the loan

transaction. Therefore, once it is concluded that the suit agreement was

entered into for the sale transaction and that an advance amount of Rs.5

Lakhs is paid by the plaintiff to the defendants, when relief of specific

performance is refused, when there is no clause in the agreement for

forfeiture of the advance amount, it would amount to allowing the

defendants to unjustly enrichment to themselves, if the alternative relief of

return of the sum of Rs.5 Lakhs is not ordered.

14.1 The learned Counsel for the appellant made a categorical prayer

to amend the plaint by permitting the alternative relief. The said oral

application is hereby allowed and the alternative prayer shall be deemed to

be included in the plaint. In that view of the matter, the defendants are

liable to return the advance amount of Rs.5 Lakhs which is received by

them from the plaintiff. The defendants have been in enjoyment of the said

sum till date. Therefore, they are liable to pay interest at the rate of 6% per

annum as the transaction is not a commercial transaction. Accordingly, this

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point is answered.

I. The Result :

16. In the result,

(i) The Appeal Suit in A.S.No.1115 of 2015 is

allowed in part. The Judgment and Decree of the

Learned II-Additional District Cum Sessions Judge,

Tiruppur, dated 10.03.2015 in O.S.No.35 of 2003 is

set aside, in so far as it did not grant any alternative

relief to the plaintiff ;

(ii) The suit in O.S.No.35 of 2003 on the file of

the II-Additional District Cum Sessions Court,

Tiruppur, is decreed on the following terms:

(a) The suit is hereby dismissed in so far as

it prays for specific performance of the suit

agreement dated 27.01.1995;

(b) However, the defendants shall jointly

and severally repay the sum of Rs.5 Lakhs, being

the advance amount paid by the plaintiff, with

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interest thereon at the rate of 6% per annum from

the suit agreement date, that is, 27.01.1995 till

the date of repayment;