Madras High Court
B.J.Elazer vs K.Shaber Hussain on 24 November, 2023
Author: T.V.Thamilselvi
Bench: T.V.Thamilselvi
AS. No.490 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.11.2023
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
AS. No. 490 of 2019
1.B.J.Elazer
2.B.J.Kumari
3.E.Zackulin
4.E.Mariena
5.B.E. Michael christober
...Appellants/Defendnats 1 to 6
Vs.
1.K.Shaber Hussain
2.K.Jaffer Hussain
3.K.Raghman Hussain
4.Shamsheer Hussain
...Respondents 1 to 4/Plaintiffs
PRAYER : This first appeal is filed under Order XVI Rule 1 r/w section 96
of the Civil Procedure Code, to set aside the judgment and decree dated 30th
August 2018 passed in O.S No. 735 of 2011 on the file of learned V
Additional Judge, City Civil Court, Chennai, and the dismiss the suit for
specific performance.
1
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AS. No.490 of 2019
For Appellants : Mr.K.Thilageswaran
For Respondents : Mr.A.Babu
JUDGMENT
The appellants herein are the defendants 1 to 6 and the respondents
herein are the plaintiffs in suit O.S No. 735 of 2011 on the file of the V
Additional city Civil Court, Chennai. The said suit was filed by the
respondents herein for the relief of specific performance against the
appellants herein, directing them to execute the sale deed as per the sale
agreement dated 17.06.2005 on receipt of balance amount of Rs.8,27,941/-
and in alternative pay the plaintiffs/respondent herein a sum of Rs.
7,47,059/- together with interest as 24% per annum from 17.06.2005 till
date of payment. The said suit was contested by the appellants herein by
filing counter stating that the respondent herein were not ready to comply
with the terms of the agreement within the stipulated period of three months
nor they paid the entire advance amount of Rs.10,00,000/- as agreed by
them. Hence, they were committed breach of contract so they are not entitle
for the relief of specific performance.
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2. After considering the submissions on either side, and the evidence
on record the Trial Court held that the plaintiffs/respondents were ready and
willing to perform their part of the contract but on the other hand the
defendants failed to execute the sale deed as per the sale agreement.
Besides, the first defendant executed sale deed in favour of the seventh
defendant to defeat the rights of the plaintiff. Accordingly, relief of specific
performance was granted in favour of the plaintiffs. Further, the counter
claim filed by the seventh defendant was rejected. Challenging the said
findings, the defendants preferred this appeal.
3. The brief facts of plaintiff case is as follows:
The suit property was absolutely belongs to the first defendant and
his legal heirs are defendants 2 to 6. The plaintiff have entered in to an
agreement of sale with defendants on 17.06.2005 to purchase the suit
property as described in the schedule and a sum of Rs. 15,75,000/- was
fixed as sale consideration and it was mutually agreed that out of the above
said sale consideration a sum of Rs.10,00,000/- is to be paid by the
plaintiffs as advance within a period of three months and the defendants
also ready to execute the sale deed in favour of the plaintiffs by receiving 10
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lakhs and if the defendants failed to hand over the vacant possession within
a period of three weeks the plaintiffs are entitle to retain a sum of
Rs.5,75,000/- till handing over the possession of the property. Further, it
was agreed that the said property was subject to mortgage with Thyagarayar
Nagar Cooperative Building Society Limited, T. Nagar, Chennai – 17 and
that amount to be payable for redeeming the suit property was roughly
estimated at Rs.4,40,000/- and the defendants agreed to discharge the loan
before execution and registration of sale deed. A sum of Rs.1,00,000/- was
paid as advance on the date of the sale agreement and as per the terms of
the sale agreement the time for execution and registration of sale deed is
fixed as three months from the date of agreement of sale. Thereafter, the
plaintiffs paid a sum of Rs.4,47,059/- on 05.07.2005 for enabling the
defendants to discharge the loan and as agreed after the cancellation of the
mortgage, the first defendant has also entrusted the original documents
relating to the suit property with the plaintiffs. On 12.08.2005, the plaintiffs
approached the first defendant and informed that he is ready to pay the
balance sale consideration as per the sale agreement and requested the
defendants to execute the sale deed on 16.08.2005 and the defendants also
agreed that they would come to the Registrar's office on that day and also
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informed the plaintiffs to retain a sum of Rs.5,75,000/- till handing over the
possession as per the sale agreement. As per the defendants assurance the
plaintiffs prepared the sale deed and made all arrangements to execute the
sale deed but the defendants failed to appear on that date. Then the first
defendant intimated that due to non availability of his daughter Zackulin he
was unable to come and requested the plaintiffs to postpone the registration
of the sale deed and informed that he will contact the plaintiffs within a
week and inform the prospective date for registration of the sale deed.
Thereafter, the defendants was not contacted the plaintiffs but issued notice
to the plaintiffs stating that the plaintiffs were not ready to comply the
terms of the sale agreement as such intimated that a sum of Rs.2 lakhs was
forfeited by the defendants and called upon the plaintiffs to hand over the
original documents of the suit property and get back a sum of Rs.5,47,059/-.
Thereafter the plaintiffs lodged a complaint against the defendants and filed
a suit for specific performance.
4. The Defendants in their written statement stated as follows:
The defendants admitted the terms of the sale agreement but denied
the plaintiffs' contention that they have always ready and willing perform
his part of the agreement. The first defendant contended that as per the
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clause 4 of the sale agreement, that besides the initial advance payment of
Rs.1 lakhs a further sum of Rs.9 lakhs ought to have been paid by the
plaintiffs either before or at the time of redemption of the property from
Thyagaranagar Co-operative Building Society Limited, Chennai – 17. Thus
together with the initial advance paid, a total sum of Rs.10,00,000/- ought to
have been paid by the time the property was redeemed from the co-operative
Building Society. Although the plaintiffs paid considerably less than what
had been promised at the time of entering into the agreement, the plaintiffs
took away the title documents of the suit property as soon as the said
documents were released by the said Society. The plaintiffs have thus
clearly failed to act in accordance with the terms of the agreement from the
very beginning. At the time of redemption of the property from the said
society on 21.07.2005 the plaintiffs merely paid the outstanding amount
which then stood as Rs.4,47,059/-. They neglected to pay the plaintiffs a
further a sum of Rs.2,52,941/- as agreed under the terms of the agreement.
Further, the plaintiff did not approach the defendants on 12.08.2005
informing the defendants of their intention to execute the sale deed on
16.08.2006 as has been made out by the plaintiffs. In fact, immediately after
the property was redeemed from the Thyagaraya nagar Co-operative Society
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Ltd., the plaintiffs has tentatively fixed the date of execution of the sale
deed as 10.08.2005. However, few day before 10.08.2005 the plaintiffs
informed the defendants that the they were unable to arrange the requisite
sum of money to pay the balance. In the meanwhile, the plaintiffs brought a
draft sale deed and showed the same to the defendants indicating the sale
consideration as Rs. 13,00,000/- whereas the consideration agreed in the
agreement for sale was Rs.15,75,000/-, as such shows that the plaintiffs was
not ready and willing to pay the amount as per the terms within a stipulated
period of time as per clause 4 of the sale agreement. Finally, the defendants
lost hope on the plaintiff and also in the draft sale deed the plaintiffs
indicatethat the sale consideration as Rs.13,00,000/- amply demonstrates
that the plaintiffs were out to cheat the defendants. Hence, the plaintiffs is
not entitle for the specific performance prayed to dismiss the suit.
5. The foremost point to be decided is whether the plaintiff performed
is part of the agreement or not?
6. Heard the learned counsel for the appellants and the learned
counsel for the respondents.
7. The learned counsel for the appellants submitted that the time to
perform the agreement was fixed as three months i.e., 17.09.2005 but prior
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to that in the month of July 2005 the plaintiff paid two lakhs rupees as part
of the agreement and paid another Rs.4,47,059/- to discharge the mortgage
loan of the defendant in the Cooperative society. Besides, he already paid
Rs.1,00,000/- on the date of agreement i.e., 17.06.2005 and received the
discharge loan receipt on 03.08.2005. Thereafter, on 12.08.2005 the
plaintiff orally informed the defendants that he is ready to complete the
transaction on 16.08.2005. Accordingly, on 16.08.2005, the petitioner made
an arrangements for execution of sale deed with a sum of Rs.2,52,941/- as
balance advance amount but the first defendant failed to appear before
Registrar office by stating some circumstances. He submitted that the
plaintiffs were ready and willing to perform the part of the agreement even
before the stipulated period of three months. But the defendant with an
ulterior motive defaulted the plaintiffs claim. But the learned counsel for the
first defendants submitted that as per the terms of the agreement the
plaintiff bound to pay ten lakhs on three occasions but not paid entire
amount as agreed by the plaintiff. Thereby the plaintiff committed breach of
contract, on the other hand after discharging the mortgage loan with
society the defendants handed over all the original title deeds along with
parent document to the plaintiff and the same also agreed by the plaintiff
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but with regard to payment of balance amount Rs.2,52,941/- the plaintiff
has not paid the same within three months period not paid balance amount
of advance before the adjusting the above loan. Thereby, he was not paid
total entire advance amount of ten lakhs as he admitted to the first
defendant as per the terms of the sale agreement. But the contention of the
plaintiff is that he orally informed the first defendant to appear before
registrar office on 16.08.2005, on that day he was ready with draft sale deed
but the plaintiff not appeared, the said draft sale deed was marked as Ex.A2
before the Trial Court and in cross examination of P.W.1, he admits that
said document was drafted at his instance with the help of his agent but the
said allegation was denied by the first defendant. On perusal of the draft
sale deed, it reveals that it was executed for the consideration of
Rs.13,00,000/- but the sale consideration as per the sale agreement was Rs.
15,75,000/-. Even assuming that plaintiff was ready on 16.08.2005 with
alleged draft sale deed but he has not drafted sale deed for the agreed sale
consideration as per the sale agreement. Therefore, the evidence of P.W.1
itself shows that he was not ready to pay entire sale consideration as per the
sale agreement. As discussed above, the plaintiff has failed to perform his
part of the agreement but the court below erroneously allowed the suit as
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such is totally liable to be set aside.
8. Admittedly, after completion of three months period the first
defendant issued notice cancelling the sale agreement and sold the
property to the D7 who is his son in law. D7 also filed counter claiming
praying for mandatory injunction but as per the terms of the agreement the
first defendant hand over the title along with existence documents to the
plaintiff after discharging loan with cooperative society therefore as on date
original document of the property is in the hands of the plaintiff. As he is
not entitle for the relief of specific performance he is bound to hand over the
original deeds either to the first defendant or seventh defendant. But the
entire facts reveals that agreement between the parties are admitted but the
plaintiff not paid entire amount as per sale agreement nor he was ready and
willing to perform his part of the agreement within the stipulated period.
Therefore, the plaintiff is not entitle for the relief of specific performance
relief but he is entitle for the the amount that he paid as advance. On seeing
the documents the plaintiff deposited Rs.7,47,059/- to the appellants, the
appellants are directed to hand over the above said amount with 12%
interest till date of realisation to the respondents within a period of three
months from the date of receipt of a copy of this judgment. After receiving
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the said amount the respondents/plaintiffs are directed to hand over the
original documents to the appellant/defendants as per the terms of the
agreement.
9. In result, this Appeal is partly allowed. No cost. Consequently,
connected miscellaneous petition is closed.
24.11.2023
pbl
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T.V.THAMILSELVI,J.
Pbl
To
1. The V Additional Judge, City Civil Court, Chennai.
2.The Section Officer,
V.R Section.
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24.11.2023
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