Madras High Court
Sumathi vs Akilandam @ Kalaivani on 24 November, 2023
Author: P.T. Asha
Bench: P.T. Asha
S.A.No.843 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.843 of 2023
and
C.M.P.No.26724 of 2023
Ramdoss (Died)
1. Sumathi
2. Sakthi
3. Saraswathi
4. Selvakumar
5. Asothai ... Appellants
Vs.
1. Akilandam @ Kalaivani
2. Devi @ Amaladevi
3. Arul Prakash
4. P.Manimekalai
5. Jothilakshmi
6. C.T.Natarajan ... Respondents
PRAYER: Second Appeal filed under Section 100 of C.P.C. to set aside
the judgment and decree dated 14.07.2017 in A.S.No.24 of 2013 passed by
the learned I Additional District and Sessions Judge, Cuddalore, reversing
the judgment and decree of O.S.No.160 of 2010 dated 28.02.2013 passed by
the learned I Additional Subordinate Judge, Cuddalore.
For appellants : Mrs.P.Veena Suresh
Mr.S.T.Bharath Gowhtam
For respondents : No appearance
1/14
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S.A.No.843 of 2023
JUDGMENT
The plaintiff is the appellant before this Court challenging the
dismissal of his suit filed for specific performance of an agreement of
sale or in the alternative for refund of the advance amount.
2. The facts of the case are briefly set out hereinbelow and for
the ease of understanding, the parties are referred to in the same
ranking as before the Trial Court.
PLAINTIFF'S CASE:
2.1. It is the case of the plaintiff that the first item of the suit
property was purchased by one Raju Pathar, father-in-law of the first
defendant, under two registered sale deeds dated 12.06.1980 and
19.04.1984 respectively. As regards the second item of the suit
property, it is the case of the plaintiff that one Ganapathy Chettiar had
sold the same to one Vaithianathasamy under a sale deed dated
07.05.1990. Vaithianathasamy, in turn, sold the second item of the
property to one Gunasekaran, husband of the first defendant, under a
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sale deed dated 25.08.1992.
2.2. The plaintiff would further submit that under the agreement
of sale dated 03.11.1997, Gunasekaran had undertaken to sell the
second item of the suit property to the plaintiff for a total sale
consideration of a sum of Rs.10,000/- (Rupees Ten Thousand only) and
the time for performing the agreement was scheduled as one year. Since
the sale deed did not go through, another agreement was entered into
on 02.11.1998 and once again, the time schedule was fixed as one year.
It appears that even this agreement did not go through and third
agreement of sale was entered into on 03.11.1999 and the time schedule
was fixed as two years. However, the second item of the property was
not sold within the stipulated time.
2.3. Thereafter, Gunasekaran agreed to sell the first item of the
suit property. However, there was a mortgage deed dated 08.11.1983
subsisting in respect of the first item of the suit property and the
plaintiff requested him to first discharge the mortgage deed.
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Accordingly, on 23.10.2001, the mortgage deed was discharged and
Gunasekaran had obtained the discharge receipt.
2.4. Thereafter, under an agreement of sale dated 05.11.2001,
Gunasekaran, his mother, who is the second defendant herein and his
minor children represented by the second defendant as their guardian,
had agreed to sell the first and second item of the suit property for a
total sale consideration of Rs.4,10,000/-(Rupees Four Lakhs and Ten
Thousand only). On the day of execution of the agreement of sale, a
sum of Rs.4,00,000/- (Rupees Four Lakhs only) was paid as advance by
the plaintiff and three years period was fixed for paying the balance of
Rs.10,000/-(Rupees Ten Thousand only).
2.5. Gunasekaran failed to execute the sale deed and on
14.04.2003, he had passed away. Therefore, the plaintiff had
approached the legal heirs of the Gunasekaran to proceed with the
execution of the sale deed which was not complied with. This
constrained the plaintiff to issue a legal notice dated 04.05.2003 which
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did not evoke the desired result. Thereafter, the plaintiff had issued yet
another notice dated 20.10.2004. Meanwhile, he came to learn that the
defendants had mortgaged the first item of the property to the fifth
defendant for a sum of Rs.1,65,000/-(Rupees One lakh Sixty Five
Thousand only) and had executed a mortgage deed dated 23.05.2002.
2.6. It is also the case of the plaintiff that Raju Pathar had
executed a will in favour of his son Gunasekaran. Therefore, this suit in
O.S.No.160 of 2010 was filed on the file of the I Additional
Subordinate Court, Cuddalore, for the relief stated supra.
DEFENDANT'S CASE:
2.7. A written statement was filed by the first defendant and the
same was adopted by the defendants 2 to 4. They had contended that
the plaintiff is not known to them. The plaintiff is the father-in-law of
one Manickam, who is a close friend of the first defendant's deceased
husband Gunasekaran.
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2.8. The defendants, in their written statement, had stated that
the names of the defendants had been wrongly given and it had to be
corrected. However, the plaintiff had not deemed it fit to amend the
names of the defendants. That apart, Gunasekaran had two other
daughters who had not been impleaded. Therefore, the defendants had
pleaded dismissal of the suit on account of non-joinder of necessary
parties.
2.9. The defendants had denied the contention of the plaintiff
that Raju Pathar had executed the will. On the contrary, it is their
specific case that Raju Pathar died intestate and his property would
devolve on all his legal representatives and the agreement of sale
executed only by Gunasekaran would not be binding upon on the other
defendants. They had sought for the dismissal of the suit.
TRIAL COURT:
3. The Trial Court, on considering the pleadings on either
side, had framed the following issues:
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“ (1) Whether the plaintiff is entitled to the
equitable relief of specific performance as prayed for?
(2) Whether the plaintiff is entitled for
alternative relief of refund of sale consideration?
(3) Whether the sale agreement dated
05.11.2001 is obtained by the plaintiff under threat and
gercicn is true?
(4) Whether the suit is bad for non-joinder of
necessary parties?
(5) To what relief?”
4. The plaintiff had examined himself as P.W.1 and one
Chakaravarthy and one Karumpaiyiram as P.W.2 and P.W.3
respectively, and marked Exs.A1 to A19. On the side of the defendants,
the first defendant had examined herself as D.W.1 and marked Exs.B1
to B9.
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5. The Trial Court, on considering the evidence, has
proceeded to decree the suit.
LOWER APPELLATE COURT:
6. Aggrieved by the same, the defendants had filed A.S.No.24
of 2013 on the file of the I Additional District and Sessions Court,
Cuddalore.
POINTS FOR CONSIDERATION:
7. The points for consideration framed by the Lower
Appellate Court are as follows:
“(1) Whether the plaintiff is entitled to the
equitable relief of specific performance as prayed for?
(2) Whether the plaintiff is entitled for
alternative relief of refund of sale consideration?
(3) Whether the sale agreement dated
05.11.2001 is obtained by the plaintiff under threat and
coercion?
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(4)Whether the judgment and decree passed by the
learned I Additional Subordinate Judge, Cuddalore, in
O.S.No.160/2010, dated 28.02.2013 is liable to be set
aside ?
(5)To what relief the appellants are entitled?”
8. The lower Appellate Court, on considering the evidence
and judicial precedents, held that from the conduct of the plaintiff,
particularly, the extension of the agreements of sale in respect of
second item of the suit property where the sale consideration was only
Rs.10,000/- (Rupees Ten Thousand only) and Ex.A2 - agreement of
sale in respect of the both items of the property for which notice had
been issued only on 04.05.2003, expressing the plaintiff's intent to
execute the sale deed, clearly shows that the agreements were never
intended to be acted upon. The appear to have been executed only as a
security and further, it clearly shows the lack of readiness and
willingness on the part of the plaintiff and declined to grant the relief of
specific performance.
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9. The learned Judge went on to hold that the suit is one for
specific performance and the conduct of the plaintiff is not
satisfactory. The plaintiff is, therefore, not also entitled to the
alternative relief. Challenging the same, the plaintiff is before this
Court.
10. Heard the learned counsel appearing for the appellants who
has made her submission for the admission.
DISCUSSION:
11. As rightly held by the lower Appellate Court, the plaintiff
who claims that he has entered into an agreement of sale to purchase
the property, originally entered into an agreement for purchasing the
second item of the property for just a sum of Rs.10,000/- (Rupees Ten
Thousand only) for which, the agreement was entered into on
03.11.1997 where the time for completing the agreement was fixed as
one year. Since the plaintiff was not able to complete the sale, a fresh
agreement of sale dated 02.11.1998, was claimed to be entered into
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between the parties once again giving a time of one year to the plaintiff
to pay the balance and have the sale deed executed.
12. Thereafter, a third agreement dated 03.11.1999 was entered
into and the time for paying the sum of Rs.10,000/- (Rupees Ten
Thousand only) was extended by 3 years. Subsequently, the parties
have entered into the agreement of sale on 05.11.2001 in respect of
both the items of the property. Once again, the total sale consideration
was shown as Rs.4,10,000/- (Rupees Four Lakhs and Ten Thousand
only) and this agreement would read that the sum of Rs.4,00,000/-
(Rupees Four Lakhs only) was paid as advance and once again, the
balance of Rs.10,000/- (Rupees Ten Thousand only) will be paid
within a period of three years.
13. Therefore, it is seen that from the year 1997 till 2001, the
plaintiff has not proceeded to have the sale deeds registered. The
agreement dated 05.11.2001 (Ex.A8) which covers both items of the
property would read that 99% of the sale consideration had been paid
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and what remains was only a sum of Rs.10,000/- (Rupees Ten
Thousand only) for which the time for performance was fixed as three
years. This clearly displays the fact that the agreement of sale was
never intended to be acted upon since any ordinary prudent man who
had entered into an agreement with an intention of purchasing the
property would immediately pay the balance sale consideration which
is a pathy sum and get the sale deed registered. The plaintiff had
however, not proceeded to do so.
14. Even in the case of the last agreement of sale, no notice was
issued seeking specific performance of the agreement during the
lifetime of Gunasekaran. It was only after Gunasekaran passed away on
14.04.2003, that the legal notice has been issued on 04.05.2003, even
thereafter, no proceedings were initiated and yet another notice was
issued on 20.10.2004 and ultimately, the suit came to be filed only in
the year 2004. Therefore, the plaintiff's conduct clearly demonstrates
his lack of readiness and willingness and the lower Appellate Court has
therefore, rightly reversed the judgment and decree of the Trial Court.
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15. Further, the plaintiff has not come forward with the clear
case as to what is the amount that has been paid since all these
agreements have been denied by the defendants and the plaintiff has not
proved the payment of money by letting in cogent and independent
evidence. Therefore, the plaintiff is also not entitled to the alternative
relief of refund. Since the appeal does not involve a substantial
question of law, this second appeal is liable to be dismissed.
Accordingly, this second appeal stands dismissed. Consequently,
the connected C.M.P. stands closed. No costs.
24.11.2023
Index : Yes/No
Speaking order/non-speaking order
ssa
To
1. The I Additional District Judge, Cuddalore.
2.The I Additional Sub Judge, Cuddalore.
3.The Section Officer,
V.R.Section, High Court, Madras.
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P.T.ASHA, J.,
ssa
and
24.11.2023
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