Madras High Court

Dr.S.Suseela vs John Kennedy on 16 June, 2023

                                                                                      A.S.No.384 of 2016


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED : 16.06.2023

                                                        CORAM :

                       THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

                                                   A.S.No.384 of 2016
                                                          and
                                                 C.M.P.No.5717 of 2020

                    Dr.S.Suseela                                                ... Appellant
                                                           Versus

                    John Kennedy                                                ... Respondent

                    Prayer : Appeal Suit is filed under Section 96 of the Code of Civil
                    Procedure, 1908, to set aside the Judgment and Decree dated 21.07.2015
                    made in O.S.No.531 of 2010 on the file of the First Additional District
                    Court, Coimbatore, and allow this appeal by dismissing the suit with costs.

                                    For Appellant      : Mr. M.S. Subramanian

                                    For Respondent     : No Appearance


                                                       JUDGMENT

A.The Appeal Suit :

This Appeal Suit is directed against the Judgment and Decree of the I-

Additional District Court, Coimbatore, dated 21.07.2015 in O.S.No.531 of

2010. The parties are hereinafter referred to as per their array in the suit.

https://www.mhc.tn.gov.in/judis

A.S.No.384 of 2016

B. The Case of the Plaintiff :

2.The case of the plaintiff is that on 11.06.2007, the defendant and the

plaintiff had entered into an agreement of sale agreeing to sell the suit

property for a price of Rs.60,000/- per Cent and the plaintiff had paid an

advance amount of Rs.4,00,000/- on the date of entering into an agreement.

On 11.06.2008 another sum of Rs.11,50,000/- was paid by two cheques and

thus, a sum of Rs.3,05,800/- was the balance. Since a Power of Attorney

was executed in favour of the plaintiff, on that authority, the plaintiff had

also sold a portion of the property of the defendant for a sum of

Rs.6,19,280/-. Thereafter, on 30.07.2009, the defendant cancelled the Power

of Attorney. Even though the plaintiff was ready and willing to perform his

part of the contract, the defendant is not coming forward and hence the suit

for specific performance was filed.

C. The Case of the Defendant :

3. The case of the defendant is that the defendant did not receive any

advance amount, and the Power of Attorney was executed only for

developing the suit property into plots. Since the plaintiff was not

communicating properly, the Power of Attorney was canceled. Some

https://www.mhc.tn.gov.in/judis

A.S.No.384 of 2016

signatures were obtained from the defendant in unstamped papers. The

agreement is sham and nominal and no specific performance can be granted.

D. The Issue and Trial :

5. On the strength of the said pleadings, the following two issues are

framed by the Trial Court:-

“(i) Whether the defendant is liable to receive the balance sale consideration and execute the sale deed in respect of the suit property?

(ii) To what relief the plaintiff is entitled?”

6. On the said issues, the plaintiff examined himself as P.W.1. One

Jhon Kennady and N.M. Franchis were examined as P.Ws.2 & 3. One

Anganarasu, was examined as P.W.3. Exs.A-1 to A-9 were marked on

behalf of the plaintiff. On behalf of the defendant, the defendant was

examined as D.W.1. One S. Surendranath, was examined as D.W.2 and

Exs.B-1 to B-6 were marked.

7. After considering the case of the parties, by the Judgment dated

https://www.mhc.tn.gov.in/judis

A.S.No.384 of 2016

21.07.2015, the Trial Court came to the conclusion that the plaintiff is not

entitled to the equitable relief of specific performance, however, he will only

be entitled to return of the advance amount. After deducting the sum of

Rs.9,00,000/- in respect of the part transaction carried out, the Trial Court

decreed that the balance advance amount of Rs.6,50,000/- be returned to the

plaintiff with interest at the rate of 12% per annum from the date of plaint

till date of decree and also from the date of decree till the date of realisation.

Aggrieved by the same, the defendant has filed the present Appeal Suit.

E. The Submissions :

8. Heard Mr. M. S. Subramanian, learned Counsel appearing on

behalf of the appellant. Even though the notices were served on the

respondent / plaintiff, she remained exparte in the Appeal Suit.

9. Mr. M. S. Subramanian, learned Counsel appearing on behalf of

the appellant would submit that even though the Appeal Suit has been filed,

the only grievance is that the interest at the rate of 12% per annum has been

awarded to the plaintiff. He would submit that the decree granting the

alternative relief of return of the advance is a money decree and therefore, by

https://www.mhc.tn.gov.in/judis

A.S.No.384 of 2016

virtue of Section 34 of the Code of Civil Procedure, since the transaction is

not commercial in nature, post decree interest at the rate of 6% per annum,

can be awarded. As far as the pendente lite interest is concerned, the

learned Counsel, taking this Court to the various transactions and the time

mentioned in the agreement and the connected transactions and to the

finding of the Trial Court, that the plaintiff was not ready and willing to

perform his part of contract which was mentioned in paragraph No.18 of the

Judgment, would submit that the defendant should be given the benefit

when it comes to the matter of pendente lite interest and no interest need be

awarded on that score.

F. The Point For Consideration:

10. I have considered the said submissions of the learned Counsel for

the appellant and perused the material records of the case. Upon

consideration thereof, the only point which arises for consideration in this

Appeal Suit is that “whether or not the respondent / plaintiff is entitled to

interest pendente lite and post decree and if so, at what rate?”

11. At the outset, it should be recorded that even as per the learned

https://www.mhc.tn.gov.in/judis

A.S.No.384 of 2016

Counsel for the appellant, there can be no exception for the Trial Court

ordering return of the balance advance amount of Rs.6,50,000/-. However,

since the transaction is only a sale transaction, it cannot be per se termed as

commercial as far as the defendant is concerned. Therefore, as far as the

post decree is concerned, the interest is modified as 6% per annum.

11.1 In this case time was made an essence in the sale agreement itself

and the finding of the Trial Court that the plaintiff was not ready and willing

to perform his part of the contract. Paragraph No.18 of the Judgment

specifically holds that it is the plaintiff who is at fault. Therefore, the

defendant was also put to prejudice in the matter of dealing with the

property pending the suit. Therefore, I hold that the plaintiff will not be

entitled for the interest pending the suit. But, however, I am inclined to

exercise this discretion on a condition. It can be seen that the suit is of the

year 2010. Now, we are in the year 2023. Therefore, unless and otherwise,

the defendant deposits the sum as directed by this Court along with post

decree interest within the time granted by this Court, I am inclined to

exercise the discretion of not granting interest pending litigation. Otherwise,

as directed by the Trial Court, the defendant will be liable to pay 12% per

https://www.mhc.tn.gov.in/judis

A.S.No.384 of 2016

annum from the date of plaint till the date of decree.

G. The Result :

12. In the result, A.S.No.384 of 2016 is partly allowed

(i) The Judgment and Decree of the First Additional District Court,

Coimbatore, dated 21.07.2015 in O.S.No.531 of 2010 stands modified as

follows :-

(a) The defendant shall return to the

plaintiff the balance advance amount of

Rs.6,50,000/- with interest at the rate of 6% per

annum from the date of decree till the date of

realisation within a period of two months from

today;

(b) If the defendant fails to deposit the

amount as mentioned in clause - I above, the

defendant will be liable to pay to the plaintiff the

advance amount of Rs.6,50,000/- with interest at

the rate of 12% per annum from the date of plaint

i.e., 10.06.2010 till the date of decree i.e., upto

https://www.mhc.tn.gov.in/judis

A.S.No.384 of 2016

21.07.2015 and with further interest at the rate of

6% per annum from 21.07.2015 till the date of

realisation.