Madras High Court
Dr.Rm.Arumugam vs Mr.Seenan Sarathy on 29 March, 2023
C.S.No.354 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.03.2023
CORAM
THE HONOURABLE Ms. JUSTICE R.N.MANJULA
C.S.No.354 of 2008
Dr.RM.Arumugam
... Plaintiff
-Vs.-
1. Mr.Seenan Sarathy
2. Ms.Anandhi
... Defendants
Prayer: Civil Suit filed under Order VII Rule 1 of CPC r/w Order IV Rule 1
of Original Side Rules, praying to pass a judgment and decree in favour of the
plaintiff and as against the defendants:
a) for Specific Performance, directing the Defendants to execute a Sale
Deed in favour of the Plaintiff and/or his nominee(s)/assign(s) in respect of
the undivided share of the land and the Flat along with all rights, common
area and appurtenances at Plot No.1/1A, UR Nagar, Anna Nagar Western
Extension, Chennai admeasuring 1058 square feet of plinth area on the 2nd
floor more fully described in the Schedule 'A', 'B' & 'C' hereunder and also
hand over to the plaintiff the originals of the parent documents of title or, in
default, to execute the sale deed by this Honourable Court in favour of the
Plaintiff on behalf of the Defendants;
b) For a permanent Injunction restraining the defendants and their men
or their agents or servants, legal representatives or any other person from
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C.S.No.354 of 2008
selling or alienate or encumbering or disturbing peaceful possession of the
property situated at Plot No.1/1A, II Floor, UR Nagar, Anna Nagar Western
Extension, Chennai-600 101 in any manner whatsoever;
c) for damages, directing the Defendants and their men or their agents
or servants, legal representatives to pay to the Plaintiff a sum of Rs.3,00,000/-
(Rs.Three lakhs only) to compensate for the following factors, namely, delay,
inability caused to the Plaintiff from effective disposition of his property,
mental agony caused to the Plaintiff by the persistent recalcitrant attitude of
the defendants, escalation in the cost of Registration and other incidental
expenses, the quantum being limited and restricted to Rs.3,00,000/- by the
Plaintiff.
d) for costs, directing the Defendants to pay the Plaintiff, the entire
costs of the suit and
e) granting such further or other reliefs as this Honourable Court may
deem fit and proper in the circumstances of the case.
For Plaintiff : Ms.G.Santhimeenakshi
For Defendants : Ex-parte
*****
JUDGMENT
The suit property belongs to the first defendant and the second
defendant is the Power Agent of the first defendant. Both the defendants had
executed sale agreement in respect of the suit property in favour of the
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C.S.No.354 of 2008
plaintiff on 06.10.2005 by agreeing to sell the suit property for a sale
consideration of Rs.18.00 lakhs. On the date of sale agreement, the plaintiff
made a part sale consideration of Rs.1,50,000/- [Rupees One Lakh and Fifty
Thousand only]. It was agreed between the parties that Rs.8,50,000/- should
be paid within ten days from the date of sale agreement and the remaining
Rs.8,00,000/- should be paid within the stipulated time of three months. As
agreed, the plaintiff made the balance payment. Though there is a little delay
in making the payment, the plaintiff did not raise any objections and accepted
the same. In view of the delay involved in payment, the plaintiff agreed to pay
an excess Sale consideration of Rs.1,00,000/- and that was paid along with the
final payment made on 05.07.2006 and due endorsements have been made on
the back side of the sale agreement. But thereafter, the defendants did not
come forward to execute the sale agreement. The plaintiff was constrained to
send a legal notice to the defendants on 12.10.2007 by calling upon them to
come forward and execute the sale deed in favour of the plaintiff, as per the
terms of the agreement dated 06.10.2005.
1.1. Since the defendants did not come forward to execute the sale deed,
the plaintiff sent the legal notice on 12.10.2007 and the same was received by
the defendants on 15.10.2007. The defendants sent a reply notice on
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C.S.No.354 of 2008
27.10.2007 by stating that the extra sale consideration fixed for the delay
caused in executing the sale agreement was Rs.2,00,000/- and not
Rs.1,00,000/-. By stating so, the defendants refused to execute the sale
agreement and that prompted the plaintiff to come before this Court with a suit
for Specific Performance along with other reliefs.
2. The defendants appeared through counsel, however, did not file any
written statement. Subsequently, the learned counsel for the defendants also
reported no instructions. Hence, the defendants were set ex-parte.
3. The defendants 1 and 2 remained ex-parte and did not file any written
statement. However, taking into consideration of the averments made in the
plaint, the following issues have been framed for consideration:-
1. Whether the suit sale agreement dated 06.10.2005 is true
and valid?
2. Whether the plaintiff is entitled to decree for Specific
Performance?
3. What other reliefs the plaintiff is entitled to?
4. The suit has been filed for Specific Performance along with the
reliefs of permanent injunction and damages. The plaintiff got examined
himself as PW1 and Exs.P1 to P9 were marked.
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C.S.No.354 of 2008
5. On perusal of the Ex.P2, it is seen that both the defendants had
executed the sale agreement in favour of the plaintiff. The second defendant
is the Power of Attorney of the first defendant and the Power of Attorney
Document executed by the first defendant in favour of the second defendant
on 04.10.2005 has also been marked as Ex.P1. As per the sale agreement, the
total sale consideration was agreed at Rs.18,00,000/- and on the date of
execution of sale agreement, the plaintiff has paid a sum of Rs.1,50,000/-, on
14.11.2005, the plaintiff paid another sum of Rs.1,00,000/-, on 21.11.2005 he
has paid a sum of Rs.7,50,000/- and on 05.07.2006, he paid the balance
amount of Rs.9,00,000/- and thus the entire sale consideration was received by
the defendants. Taking into consideration of the delay caused in the payment,
it was agreed between the parties that the plaintiff should pay an excess
amount of Rs.1,00,000/- and that was also complied by the plaintiff.
6. It is submitted that on receiving the entire payment, the first
defendant had handed over the possession of the flat to the plaintiff, but
however, he did not execute the sale agreement. The first defendant is said to
be an NRI, who lives at Singapore and the plaintiff was making several
reminders and he had also caused a legal notice to the defendants on
12.10.2007. The copy of the legal notice is produced as Ex.P3 and the
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C.S.No.354 of 2008
acknowledgment (Ex.P4) shows that the first defendant was in receipt of the
said legal notice. All of a sudden the defendants had sent a notice on
27.10.2007 by making false averments and the same is marked as Ex.P5. The
plaintiff had sent a rejoinder notice along with his willingness by making an
offer of Rs.20,000/- as ex-gratia. The copy of the rejoinder was marked as
Ex.P6. The plaintiff had performed his part of agreement. But the defendants
have not come forward to execute the sale deed as agreed. The plaintiff
submitted that he is a senior citizen and while he was travelling to his
Advocate's office to hand over certain documents for the purpose of this case,
he found that the original documents, namely the copies of the General Power
of Attorney and the sale deed were missing. He also filed a police complaint
for the same. In connection with this, he also effected a paper publication and
the copy of the publication is also produced as Exs.P9 & P10. Since the
primary evidence is not available and the plaintiff had given proper
explanation as to how he had lost the documents, he was allowed to produce
the secondary evidence. But the defendants did not make their appearance to
deny the documents and the facts stated by the plaintiff and the evidence of
the plaintiff remains unchallenged. Since the plaintiff, through his evidence
and documents has proved the execution of the sale agreement and the terms
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C.S.No.354 of 2008
of the sale deed and the payments made by him to fulfill his part of the
contract and also failure on the part of the defendants to perform his part of
the sale deed, he is entitled to get the relief as prayed for.
7. The Civil Suit is decreed as prayed for with costs.
29.03.2023
(1/2)
kmi
Witnesses examined on the side of plaintiff:-
P.W.1 RM.Arumugam (plaintiff)
List of documents marked on the side of plaintiff:-
Exhibit Dated Description
No.
P-1 04.10.2005 Photo copy of General Power of Attorney
P-2 06.10.2005 Photocopy of the Sale Agreement
P-3 12.10.2007 Office copy of the lawyer Notice
P-4 15.10.2007 Photocopy of the Acknowledgment
P-5 27.10.2007 Served copy of the Reply Notice
P-6 06.11.2007 Office copy of the Rejoinder Notice for
the Reply notice
P-7 25.08.2021 Paper publication of English
P-8 27.08.2021 Paper publication of Tamil
P-9 29.09.2021 Online print out copy of Online complaint
(65B certificate is submitted)
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C.S.No.354 of 2008
Witnesses examined on the side of defendants:--
Nil
List of documents marked on the side of defendants:--
Nil
List of Court documents marked:--
Nil
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Index: Yes/No
Speaking Order : Yes/No
Neutral Citation Case: Yes/No
kmi
Registry to note: Registry is directed to issue the order copy along with the
above typed list of witnesses and documents.
Copy to:
1. Sub-Assistant Registrar, Original Side, High Court, Madras.
2. Record Keeper, Original Side Records Section, High Court, Madras.
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C.S.No.354 of 2008
R.N.MANJULA, J.
kmi
C.S.No.354 of 2008
29.03.2023
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