Madras High Court
G.Ravi vs K.Mathivanan on 1 September, 2023
A.S.Nos. 11 of 2015 & 517 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.09.2023
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
A.S.Nos. 11 of 2015 & 517 of 2019
and
M.P.No.1 of 2015
A.S.No.11 of 2015
G.Ravi
S/o. Ganesan ... Appellant
Vs.
1. K.Mathivanan,
S/o. Kalimuthu
2. M.Kalavathi,
W/o. K.Mathivanan .. Respondents
PRAYER : Appeal Suit filed under Sec.96 of Civil Procedure Code r/w
Order 41 Rule 1 of Civil Procedure Code, to set aside the judgment and
decree dated 23.09.2014 passed by the learned Principal District Judge at
Dharmapuri in O.S.No.9 of 2011.
https://www.mhc.tn.gov.in/judis
A.S.Nos. 11 of 2015 & 517 of 2019
A.S.No.517 of 2019
1. K.Mathivanan,
S/o. Kalimuthu
2. M.Kalavathi,
W/o. K.Mathivanan .. Appellants
Vs.
G.Ravi
S/o. Ganesan ... Respondent
PRAYER : Appeal Suit filed under Sec.96 of Civil Procedure Code r/w
Order 41 Rule 1 of Civil Procedure Code, to set aside the judgment and
decree dated 23.09.2014 passed by the learned Principal District Judge at
Dharmapuri in O.S.No.9 of 2011.
For Appellant in
A.S.No.11 of 2015 : Mr.P.Valliappan,
Senior Advocate
For Respondents in
A.S.No.11 of 2015 : Mrs.D.Prasanna
For Appellants in
A.S.No.517 of 2019 : Mrs.D.Prasanna
For Respondent in
A.S.No.517 of 2019 : Mr.P.Valliappan,
Senior Advocate
https://www.mhc.tn.gov.in/judis
A.S.Nos. 11 of 2015 & 517 of 2019
COMMON JUDGMENT
The appellant herein is the plaintiff and he has filed a suit in
O.S.No.9 of 2011 on the file of learned Principal District Court,
Dharmapuri directing the defendants to execute the sale deed. The
defendants also contested the suit. On hearing both sides, the trial judge
decreed the suit in favour of plaintiff. Challenging the interest portion of
18%, the plaintiff preferred appeal in A.S.No.11 of 2015. However,
challenging the findings of the trial judge, the defendants have preferred
the appeal in A.S.No.517 of 2019.
2. For the sake of convenience, the parties are referred as per
ranking in the suit.
3. The defendants are husband and wife and both of them appeared
and submitted that the 1st defendant was suffered with eye ailment and he
has to undergo eye surgery, so necessity arose for him. Therefore, he was
forced to sell the property and for that, the plaintiff offered to purchase
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A.S.Nos. 11 of 2015 & 517 of 2019
the same at the rate of Rs.775/- per sq.ft. and for the medical expenses,
the 1st defendant received an advance sum of Rs.50,000/- and the plaintiff
agreed to pay a sum of Rs.5,50,000/- within a month and the defendants
have agreed to execute the sale deed. In fact, they were tenants of the
property under the plaintiff. After the agreement, they have agreed to pay
the interest till execution of sale deed. But, as per the terms of agreement,
they have agreed to pay rent also. The entire extent comes around 2000
sq.ft., in which house was given for rent and not for the vacant site and
with proper information, the agreement was came into force but
subsequently they have denied the agreement.
4. Before the trial court, both parties appeared and submitted their
evidence. Accordingly, the documents Ex.A1 to A19 marked on the side
of plaintiff and Ex.B1 to B3 marked on the side of defendants. Both
parties were examined as P.W.1 and 2 and medical certificate and other
documents were marked on the side of defendants. Before the trial court,
the following issues were framed:-
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A.S.Nos. 11 of 2015 & 517 of 2019
“1/ thjp jdJ tHf;Fiuapy; Fwpgg; pl;Ls;s ,t;tHf;F brhj;J bghWj;jhd
thjpf;Fk;. vjph;thjpfSf;Fk; Vw;gl;Ls;sjhfr; brhy;yg;gLk; 13/10/2010 njjpa
tpf;fpua xg;ge;jk; thjp Tw;Wg;go cz;ikahdjh> kWgad; cilajh>
Kiwahdjh>
2/ thjp Fwpg;gpLk; 13/10/2010 njjpa tHf;F tpw;fpua xg;ge;jk;
bghUz;ik kw;Wk; rl;lj;jpd; mog;gilapy; bry;yj;jf;fjhfp vjph;thjpfis
fl;Lg;gLj;jp mjd;go bray;glf;nfhUk; jd;ik cilajh>
3/ thjpf;F ,t;tHf;F brhj;ij tpwg; id bgWtjs;fhd trjp cs;sjh>
4/ thjpf;F tHf;Fr; brhj;ij tpw;gid bgw vg;nghJk;. jahuhft[k;.
rk;kjkhft[k; cs;shuh>
5/ thjp tHf;F brhj;jpy; tpw;gid xg;ge;jjhuuhf mDgtpj;J tUfpwhuh>
6/ tHf;fpw;F brhy;yg;gl;Ls;s tHf;FK:yk; rhpahdjh>”
5. Considering the evidence on record as well as documents, the
trial judge concludes that there is a valid agreement between parties,
though the defendants denied the agreement, both D.W.1 and D.W.2
admits that they have signed in the agreement. In fact, the 1st defendant
was worked in Tamil Nadu Electricity Board and obtained voluntary
retirement from service and 2nd defendant was a retired Headmaster. So,
both were known recitals of the agreement and the suit property was
originally belongs to T.N.H.B. and allotment order was issued to both
husband and wife and the said order was also enclosed along with the
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A.S.Nos. 11 of 2015 & 517 of 2019
agreement. Therefore, the trial judge also observed that the plaintiff is
taking steps to get L.I.C. Loan and due to objections made by the
defendants, he was not able to avail loan. However, the plaintiff
approached the court in time. The defendants not expressed their
willingness to perform the contract. Considering both side submissions,
the trial court granted the relief of specific performance fixing interest at
the rate of 18% for the balance sale consideration. Challenging the
interest portion of 18%, the plaintiff preferred appeal in A.S.No.11 of
2015. Challenging the findings rendered by the trial judge, the
defendants preferred the appeal in A.S.No.517 of 2019.
6. The learned counsel for plaintiff would submit that he has taken
earnest steps to execute the sale deed for complying terms of agreement,
but the defendants alone denied to perform their contract. Therefore,
having agreed the plaintiff's case, the trial judge granted the relief of
specific performance, however awarded 18% interest for the balance sale
consideration as such is totally unfair and liable to be set aside.
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A.S.Nos. 11 of 2015 & 517 of 2019
7. The learned counsel for defendants would submit that the 1st
defendant is the disabled person and due to poor eye sight, he is not able
to perform his part of agreement in time nor the plaintiff has paid the
entire sale consideration. But, the trial judge erroneously granted the
relief of specific performance, even otherwise 18% interest awarded to
the balance sale consideration, as such is totally unjustifiable one for the
reason that the value of the property is more than the amount mentioned
in the agreement.
8. Heard and considered rival submissions of learned counsel for
appellant as well as respondents and perused the records.
9. On perusal of records, it reveals that plaintiff and the defendants
entered into agreement of sale. With regard to the vacant site along with
house, it was originally belonged to Housing Board, which was allotted
to both defendants and an agreement of sale was executed on 13.10.2010.
On perusal of agreement, it reveals that the rate for per sq.ft. fixed is
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A.S.Nos. 11 of 2015 & 517 of 2019
Rs.775/- and the total claim of 223.3 equivalent to 2400 sq.ft. was agreed
to sell to the plaintiff and four months time was fixed for performing the
contract. Before the expiry of time, legal notice was issued and the reply
was given denying the agreement. So, the plaintiff filed a suit for specific
performance and a sum of Rs.2 lakhs was deposited before the trial court.
Based on the evidence, considering the execution of agreement between
the parties and due to the objection raised by the defendants, the plaintiff
was not able to realise the L.I.C. Loan and also the fact remains that the
plaintiff was ready and willing to perform his part of agreement. In fact,
the appellant is a teacher by profession, he has taken earnest steps to get
the loan and filed the pass book, which would show that on the date of
receipt of agreement, he is having a sum of Rs.5,50,000/- through Ex.A2.
So, the plaintiff is ready and agreed to perform the contract by availing
loan as well as spending his earnings. Therefore, the trial judge rightly
concludes that he is ready and willing to perform the contract, however,
interest of 18% was awarded for the balance sale consideration. Already
the plaintiff has spent his earnings for the sale consideration as well as
availed loan. Hence, he prayed to reduce the rate of interest.
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A.S.Nos. 11 of 2015 & 517 of 2019
10. The learned counsel for defendants would submit that
considering the value of property, 18% interest was awarded as such is
valid one. But, however, during the pendency of appeal proceedings, the
appellant paid arrears of rent of Rs.1,40,000/- and the defendants have
also received the amount and expressed their willingness to perform the
contract. It is pertinent to note that both are retired Government servants
and the suit property is situated at Virupakshipuram village, Dharmapuri
District. Therefore, on considering the submissions of plaintiff, this
Court is inclined to reduce the interest from 18% to 10%, thereby the
total amount payable by the plaintiff to the defendants comes around
Rs.42,87,947/-, which is rounded to Rs.42,87,000/-. Accordingly, the
plaintiff is directed to pay a sum of Rs.42,87,000/- within a period of five
months from the date of receipt of copy of this order. Furthermore, since
the defendants are senior citizens and suffered with disability, out of the
total amount of Rs.42,87,000/-, this Court directs the plaintiff to pay part
payment of Rs.20,00,000/- to the defendants either through demand draft
or through RTGS. Already an advance of Rs.50,000/- was paid by the
plaintiff and the same is ordered to be deducted. Thereafter, the
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A.S.Nos. 11 of 2015 & 517 of 2019
remaining balance amount is ordered to be paid within a period of five
months. Accordingly, the appeal suit in A.S.No. 11 of 2015 is disposed
of. No costs. Consequently, connected Miscellaneous Petition is closed.
11. Furthermore, the appeal suit filed by the defendants 1 and 2 in
A.S.No.517 of 2019 is dismissed as no merit in view of order passed in
A.S.No.11 of 2015. No costs.
12. Post the matter for reporting compliance on 02.02.2024.
01.09.2023
Index : Yes / No
Internet : Yes / No
Speaking/Non-speaking order
rpp
To
Principal District Judge,
Dharmapuri.
https://www.mhc.tn.gov.in/judis
A.S.Nos. 11 of 2015 & 517 of 2019
T.V.THAMILSELVI, J.
rpp
A.S.Nos. 11 of 2015 & 517 of 2019
01.09.2023
https://www.mhc.tn.gov.in/judis
