Madras High Court
P.Kathirvel vs V.S.Krishnan on 24 November, 2023
Author: P.T. Asha
Bench: P.T. Asha
S.A.No.845 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.11.2023
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.845 of 2023
and
C.M.P.No.26801 of 2023
P.Kathirvel ... Appellant
Vs.
V.S.Krishnan ... Respondent
PRAYER: Second Appeal filed under Section 100 of C.P.C. to set
aside the judgment and decree dated 23.12.2021 made in A.S.No.17
of 2020 by the learned V Additional District Judge, Coimbatore,
confirming the judgment and decree dated 05.12.2017 made in
O.S.No.675 of 2011 by the learned I Additional Subordinate Judge,
Coimbatore.
For appellant : Mr.K.Balasubramaniam
For respondent : No appearance
JUDGMENT
The unsuccessful plaintiff before the Courts below in a suit for
specific performance, is the appellant before this Court.
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2. The facts of the case are briefly set out hereinbelow and
the parties are referred to in the same ranking as before the Trial
Court.
FACTS OF THE CASE:
2.1. The plaintiff had filed a suit in O.S.No.675 of 2011 on the
file the I Additional Subordinate Court, Coimbatore, seeking the relief
of specific performance of an agreement dated 30.07.2009.
2.2. It is the case of the plaintiff that on the said date, he had
entered into a sale agreement with the defendant in respect of the suit
schedule property. The total sale consideration was fixed at a sum of
Rs.2,00,000/- and on the same date of the sale agreement, a sum of
Rs.1,00,000/- was paid as an advance to the defendant. As per the
agreement, the parties had agreed that the balance sum of
Rs.1,00,000/- will be paid within 12 months i.e., on or before
29.07.2010. Though the plaintiff was willing to perform his part of the
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contract, the defendant was not willing to perform his part of the
contract.
2.3. The plaintiff would further submit that considering his
relationship with the defendant, he had waited for a period of one year
from the period of performance under the sale agreement and
thereafter, he issued a legal notice dated 03.06.2011 which was
returned with an endorsement “unclaimed”. Therefore, the plaintiff
has come forward with the suit in question.
2.4. The defendant had filed a written statement, inter alia,
denying the case of the plaintiff and contending that he has never
intended to enter into an agreement of sale with regard to his property
and that he had only obtained a loan of a sum of Rs.1,00,000/- for
which, he had executed a mortgage deed dated 30.07.2009.
2.5. The defendant owns a residential house on the north of the
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suit property and a portion of the house rests on the suit property. If
the defendant had intended to enter into an agreement of sale, it would
only be with regard to the vacant portion which is lying to the south of
the suit property. Further, it is the case of the defendant that he had no
necessity for selling the property.
2.6. Thereafter, it is the case of the defendant that when he had
approached the plaintiff to settle the dues, he was informed that the
plaintiff had obtained an ex parte decree in the above suit against him.
Thereafter, the defendant had rushed to the Court and it was only then
that he has come to know about the alleged sale agreement.
2.7. The defendant would further submit that it is evident that
the sale agreement is not a genuine one, since the sale agreement
describes the property as a vacant site which is also incorporated in
the plaint whereas, there is a house constructed thereon.
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TRIAL COURT:
3. The Trial Court, based on the pleadings, had framed the
following issues:
“(1)Whether the plaintiff is entitled for the
relief of specific performance of contract as
prayed for?
(2)Whether the plaintiff is entitled for the
alternative relief?
(3)Whether the plaintiff is entitled for the
relief of vacant possession of the suit property?
(4)Whether the plaintiff is entitled for the
relief of permanent injunction?
(5)To what relief?”
4. The plaintiff had examined himself as P.W.1 and one
Nandakumar as P.W.2 and marked Exs.A1 to A3. On the side of the
defendants, the defendants had examined himself as D.W.1 and no
documents were marked on his side.
5. The learned Judge dismissed the suit, on the ground that
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the conduct of the plaintiff clearly shows that he was neither ready nor
willing to proceed with the agreement.
LOWER APPELLATE COURT:
6. This judgment and decree was taken upon an appeal to the
V Additional Principal District Court, Coimbatore, in A.S.No.17 of
2020. The learned Appellate Judge had also concurred with the
judgment and decree of the Trial court and dismissed the appeal.
7. Challenging the same, the plaintiff is before this Court.
8. Heard the learned counsel appearing for the appellant.
DISCUSSION:
9. The plaintiff has entered into an agreement of sale on
30.07.2009 and as per the terms of this agreement, the balance sale
consideration has to be paid within a period of one year i.e., on or
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before 29.07.2010. Further, from the date of the agreement, there has
been no overt step on the part of the plaintiff to proceed further with
the sale agreement. The records would show that the notice has been
issued only on 03.06.2011 and the plaintiff would also plead that he
has issued the notice after a year, taking into account his relationship
with the defendant and claims that this is his magnanimity.
10.However, the plaintiff's conduct clearly shows that he is
neither ready nor willing to proceed further with the sale agreement.
Therefore, the judgment and decree of the Courts below do not require
any re-consideration and therefore, the judgment and decree of the
Courts below are confirmed and hence, this second appeal is liable to
be dismissed, particularly, when the appellant has not made out any
questions of law much less a substantial question of law.
In the result, this Second Appeal stands dismissed confirming
the judgment and decree of the lower appellate Court. Consequently,
connected C.M.P. stands closed. No costs.
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24.11.2023
Index : Yes/No
Speaking order/non-speaking order
ssa
To
1. The V Additional District Judge, Coimbatore.
2.The I Additional Sub Judge, Coimbatore.
3.The Section Officer,
V.R.Section, High Court, Madras.
P.T.ASHA, J.,
ssa
and
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24.11.2023
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