Madras High Court
Jeya vs Praveen Banu on 21 June, 2023
S.A.(MD)No.138 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.06.2023
CORAM:
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
S.A.(MD)No.138 of 2019
and
C.M.P.(MD)No.3310 of 2019
Jeya ... Appellant
/Vs./
Praveen Banu,
through her power agent,
S.Ganesan. ... Respondent
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code to set aside the Judgment and Decree dated 22.12.2015 made in
A.S.No.20 of 2014 on the file of the I Additional District Court,
Tuticorin, confirming the judgment and decree dated 30.06.2014 made in
O.S.No.205 of 2010 on the file of the Sub Court, Tuticorin, and to allow
this appeal.
For Appellant : Mr.M.P.Senthil
For Respondent : Mr.N.Dilipkumar
1/10
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S.A.(MD)No.138 of 2019
JUDGMENT
This second appeal has been filed challenging the concurrent
findings of the Courts below. The plaintiff in the suit in O.S.No.205 of
2010 on the file of the Sub Court, Tuticorin is the appellant herein. The
respondent is the defendant in the said suit. The suit was filed for
specific performance of an agreement of sale.
2. The trial Court, by its judgment and decree dated 30.06.2014 in
O.S.No.205 of 2010 on the file of the Sub Court, Tuticorin dismissed the
suit on the ground that the appellant / plaintiff was not ready and willing
to perform her part of the contract as per the terms and conditions of the
sale agreement. Aggrieved by the judgment and decree dated 30.06.2014
passed in O.S.No.205 of 2010 on the file of the Sub Court, Tuticorin, the
appellant / plaintiff filed the first appeal in A.S.No.20 of 2014 on the file
of the I Additional District Court, Tuticorin. The lower appellate Court,
namely I Additional District Court, Tuticorin, by its judgment and decree
dated 22.12.2015 also confirmed the findings of the trial Court by
dismissing the first appeal filed by the plaintiff. Aggrieved by the
concurrent findings of the Courts below, this second appeal has been
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S.A.(MD)No.138 of 2019
filed. In the forthcoming paragraphs, the parties are described as per
their litigative status in the suit.
3. The plaintiff was a tenant in the suit schedule property and the
defendant was her landlord. The defendant agreed to sell the suit
schedule property to the plaintiff under an agreement of sale dated
11.06.2007, which was marked as Ex.A1. The total sale consideration
for the sale of the suit schedule property was Rs.1,90,000/-, out of which
the plaintiff paid an advance of Rs.20,000/- at the time of execution of
the agreement. The time limit stipulated for completion of the sale by the
plaintiff by paying the balance sale consideration to the defendant was
three months. Admittedly, the balance sale consideration was not paid by
the plaintiff on time and she did not complete the sale within a period of
three months as stipulated under the sale agreement dated 11.06.2007
(Ex.A1).
4. Before the trial Court, four documents were filed on the side of
the plaintiff, which were marked as Exs.A1 to A4 and the details of the
documents as exhibits on the side of the plaintiff are as follows:
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S.A.(MD)No.138 of 2019
“thjp jug;g[ rhd;whtzq;fs;
th.rh.M.1 11.6.2007 k; njjpapl;l fpiua xg;ge;jk;
th.rh.M.2 28.4.2009 k; njjpapl;l tHf;fwpQh;
mwptpg;g[
th.rh.M.3 7.5.2009 k; njjpapl;L thjp mDg;gpa
gjpy; mwptpg;g[
th.rh.M.4 nkw;go mwptpg;ig gpujpthjp tHf;fwpQh;
bgw;Wf;bfhz;ljw;fhd mQ;ry; xg;g[jy; ml;il”
On the side of the plaintiff, two witnesses were examined, namely, the
plaintiff herself as P.W.1 and another person, by name, Ramakrishnan as
P.W.2. On the side of the defendant, no documents were filed and only
one witness was examined as D.W.1, the power of attorney of the
defendant.
5. Based on the oral and documentary evidence available on
record, the trial Court held that the plaintiff was not ready and willing to
perform her part of the contract by paying the balance sale consideration
as per the agreement of sale (Ex.A1) and complete the sale within a
period of three months from the date of the agreement.
6. Admittedly, as seen from the impugned judgment and decree of
the trial Court, the plaintiff has not been able to prove that she was
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S.A.(MD)No.138 of 2019
always ready and willing to complete the sale as per the sale agreement
(Ex.A1) by paying balance sale consideration to the defendant within a
period of three months from the date of the agreement. Only based on
the same, the trial Court has rightly dismissed the suit for specific
performance filed by the plaintiff. Aggrieved by the judgment and decree
of the trial Court dated 30.06.2014 in O.S.No.205 of 2010 on the file of
the Sub Court, Tuticorin, the plaintiff filed the first appeal before the I
Additional District Court, Tuticorin in A.S.No.20 of 2014. The lower
appellate Court, namely, I Additional District Court, Tuticorin, by its
judgment and decree dated 22.12.2015 in A.S.No.20 of 2014 has also
rightly confirmed the findings of the trial Court by dismissing the first
appeal filed by the plaintiff.
7. The relief of specific performance is a discretionary relief.
Admittedly, the plaintiff has not been able to complete her part of the
contract (Ex.A1) by paying the balance sale consideration to the
defendant within a period of three months from the date of the sale
agreement. The agreement of sale is dated 11.06.2007 (Ex.A1). There
was no exchange of communication between the plaintiff and the
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S.A.(MD)No.138 of 2019
defendant subsequent to the date of the sale agreement and the plaintiff
has not produced any documentary evidence to show that she has
reminded the defendant to execute the sale deed in her favour on receipt
of the balance sale consideration.
8. Infact, as seen from the documentary evidence available on
record, it was only the defendant, who had sent a legal notice to the
plaintiff on 28.04.2009 (Ex.A2), by which he has cancelled the sale
agreement dated 11.06.2007 (Ex.A1). Therefore, it is very clear that the
plaintiff was not ready and willing to pay the balance sale consideration
as per the sale agreement (Ex.A1) within a period of three months from
the date of the agreement and get a sale deed executed in her favour.
9. It is also brought to the notice of this Court by both the
counsels that subsequent to the suit in O.S.No.205 of 2010 filed by the
plaintiff on the file of the Sub Court, Tuticorin, which is the subject
matter of this second appeal, the defendant had initiated Rent Control
Proceedings in RCOP No.1 of 2012 before the District Munsif Court,
Tiruchendur, against the plaintiff for eviction and the Rent Controller had
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S.A.(MD)No.138 of 2019
also ordered the said eviction petition on 14.07.2015. Aggrieved by the
same, the plaintiff preferred an appeal in RCA No.17 of 2017 on the file
of the Sub Court, Tiruchendur and the Rent Control Appellate Authority
had also confirmed the findings of the Rent Controller by dismissing the
rent control appeal on 10.11.2021.
10. Aggrieved by the concurrent findings of the Rent Control
Authorities, the plaintiff had also filed a civil revision petition in C.R.P.
(MD)No.592 of 2023 before this Court and the said civil revision petition
was also dismissed on 03.03.2023. However, this Court, after recording
the undertaking given by the plaintiff, granted time to the plaintiff till
31.10.2023 to vacate the suit schedule property. Therefore, it is not in
dispute that the plaintiff will have to vacate the suit schedule property on
or before 31.10.2023 as per her own undertaking given to this Court in
the aforesaid civil revision petition.
11. As observed earlier, the relief of specific performance is a
discretionary relief. However, the said discretion will have to be
exercised by the Court guided by judicial principles. In the case on hand,
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S.A.(MD)No.138 of 2019
both the Courts below have rightly held that the plaintiff is not entitled
for the relief of specific performance and the reasons contained therein
for rejecting the said relief are guided by judicial principles, which
cannot be interfered with by this Court, that too at the stage of second
appeal under Section 100 of CPC. Since there are no debatable questions
of fact or law involved, which requires further consideration of this Court
under Section 100 of CPC, there is no merit in this second appeal. The
substantial questions of law framed by the appellant in the grounds of
appeal have already been considered by the Courts below and there is no
further scope of interference by this Court.
12. In the result, there is no merit in this second appeal and
accordingly, this Second Appeal is dismissed. No costs. Consequently,
connected Miscellaneous Petition is closed.
21.06.2023
Index : Yes / No
NCC : Yes / No
Sm
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S.A.(MD)No.138 of 2019
TO:
1.The I Additional District Court, Tuticorin.
2.The Sub Court, Tuticorin,
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.138 of 2019
ABDUL QUDDHOSE, J.
sm
Judgment made in
S.A.(MD)No.138 of 2019
Dated:
21.06.2023
https://www.mhc.tn.gov.in/judis
