Madras High Court
Opg Business Centre Pvt. Ltd vs Nasser Mohammed on 9 August, 2024
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
C.S.No.639 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON 22.07.2024
PRONOUNCED ON 09.08.2024
CORAM :
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
C.S.No.639 of 2019
OPG Business Centre Pvt. Ltd.,
Formerly called as OPG Wind Farms Pvt. Ltd.,
No.4, Thiru-vi-ka 3rd Street,
Mylapore,
Chennai – 600 004.
Represented by its authorized signatory
Mr.Vishal Keyal, ... Plaintiff
Vs.
Nasser Mohammed ... Defendant
Prayer : Plaint filed under Order IV Rule 1 of Original Side Rules read with
Order VII Rule 1 of CPC to pass a Judgment and Decree against the
defendant:
a).Directing the defendant to execute the sale deed of the suit schedule
property in favour of the plaintiff company viz., OPG Business Centre Pvt.,
Ltd., represented by its authorized signatory Vishal Keyal after receipt of ths
balance sale consideration conveying the schedule mentioned property
pursuant to the agreement for sale dated 03.05.2013 entered into between the
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C.S.No.639 of 2019
plaintiff and defendant registered as Document No.1286 of 2013 in the SRO
Mylapore and in default, this Court may be pleased to execute the sale deed;
b).To grant permanent injunction restraining the defendant or his men,
agent or any other person acting through him from alienating, encumbering or
dealing with the schedule mentioned property.
c).To grant permanent injunction restraining the defendant or him men,
agent or any other person from interfering with the plaintiff's peaceful
possession and enjoyment of the property; and
d)To pay the costs of the suit.
For plaintiff Mr.M.Sriram
For defendant Mr.B.Ullasavelan
JUDGMENT
The Suit had been filed seeking a direction against the defendant to
execute Sale Deed with respect to the suit schedule property in favour of the
plaintiff after receiving the balance sale consideration pursuant to registered
agreement of sale dated 03.05.2013 and in default for the Court to execute the
sale deed. The plaintiff has also sought permanent injunction restraining the
defendant from either alienating the property or from interfering with peaceful
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possession of the plaintiff. The plaintiff has also sought costs of the suit.
2.In the plaint, it had been stated that the defendant, Nasser Mohammed
who is a permanent resident of France was the owner of land and building at
Old Door No.4, New No.7, Thiru.V.Ka. 3rd Street, Royapettah High Road,
Mylapore, Chennai. The plaintiff is a company registered under the
Companies Act and is in the business of power generation, logistic and trading
of steel. The plaintiff had taken the property initially for residential purposes
and later used it as an office. The property had been taken on tenancy in the
year 2005. In the year 2008, a lease deed was entered into between the
plaintiff and the defendant for a period of 11 months for residential / office
purpose. The monthly rent was determined at Rs.50,000/- and an advance of
Rs.5,00,000/- had been paid. A further advance of Rs.5,00,000/- was also paid.
3.In the year 2008, the plaintiff expressed willingness to vacate the
premises. However, the defendant offered to sell the suit premises. The
defendant informed that he is a citizen of France holding French passport and
is also running a restaurant under the name of Gandhi Opera. He had no
intention to retain the suit premises. Consequent to such offer, on 25.07.2008,
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a registered agreement of sale was entered into between the plaintiff and the
defendant. This was registered as Document No.1755 of 2008 in the office of
the Sub-Registrar, Mylapore. The total sale consideration was fixed at
Rs.80,00,000/-. The defendant received a sum of Rs.40,00,000/- as advance.
The defendant stated that he had executed a mortgage over the property and
agreed to execute the sale deed after the mortgage is discharged. The period
for such execution was fixed at five years.
4.The plaintiff further stated that the defendant handed over all the
original title deeds of the property. The plaintiff also stated that from the year
2008, they were paying all the statutory dues like, Corporation Tax, Water Tax
etc. The lease for the premises was also extended periodically. The plaintiff
contended that they were ready and willing to pay the balance sale
consideration and get the sale deed registered. But the defendant, a permanent
resident of France was visiting this country only periodically. Thereafter,
another agreement of sale deed dated 03.05.2013 was entered into between the
parties and this was registered as Doc. No.1286 of 2014 in the Sub-Registrar
Office at Mylapore. The sale consideration was now determined at
Rs.2,00,00,000/-. The plaintiff also discharged the mortgage loan of
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Rs.18,00,000/-. The discharge receipt, also dated 03.05.2013 was registered as
Document No.1279 of 2013. The plaintiff stated that they had paid an advance
of Rs.1,27,77,000/- as on 03.05.2013. Subsequently, a sum of Rs.12,23,000/-
and another sum of Rs.6,00,000/- were paid by two separate cheques dated
07.05.2013 and 01.08.2017 respectively. The plaintiff had totally paid a sum
of Rs.1,46,00,000/- towards the sale consideration. Again, the defendant
pleaded that he had important businesses at France and stated that he would
come back and the sale deed could be then executed. The period under the
agreement was again fixed at five years.
5.The plaintiff then received a notice dated 30.04.2019 issued on behalf
of the defendant stating that the amount of Rs.40,00,000/- paid under the first
agreement was not towards the agreement of sale, but was a loan handed over
by the plaintiff to the defendant. It had been contended that the plaintiff had
unknowingly executed the agreement of sale under the impression that it was
the mortgage document. It was also contended that though the plaintiff had
entered into lease agreement dated 03.05.2013 promising to pay Rs.70,000/-
per month as rent, he never paid the rent and also not paid the increase in the
rental value. It had been contended that the defendant had admitted receipt of
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Rs.1,25,00,000/-. In the notice, the defendant contended that he wants to sell
the property to a third party and therefore, sought redelivery of the title deeds
to enable him to sell the property and repay the sum of Rs.1,25,00,000/-.
6.The plaintiff issued a reply dated 28.05.2019 stating that the defendant
is an educated person and could never have mistaken an agreement of sale for
a mortgage deed. It had been further stated that the contention of the defendant
that he had received a loan of Rs.40,00,000/- in the year 2008 and a further
loan of Rs.79,00,000/- in the year 2013, cannot be believed. The plaintiff
contended that the defendant is attempting to alienate the property to the
disadvantage of the plaintiff. It is under those circumstances, seeking specific
performance of the agreement dated 03.05.2013 registered as Doc. No.1286 of
2013 in the office of the Sub-Registrar, Mylapore, that the suit had been filed.
7.The defendant filed a written statement wherein, he stated that he is
permanently residing at France. He had purchased the suit schedule property
in the year 1984. He had developed the property and had rented it out to
Mr.Rajesh Gupta, the Vice-President of Kanishk Steel Industries Limited,
initially only for residential purpose. It was contended without getting consent
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from the defendant, the premises was used for office and was also sublet.
8.The defendant further stated that he requested Rajesh Gupta to
maintain the property and to pay taxes since the defendant was busy with his
business at France. It was contended that on several occasions, documents
relating to renewal of lease agreement would be sent to France for his
signature and he also used to send back typed stamp papers after affixing his
signature in the same. The defendant stated that since the plaintiff had
extended the loan without asking any questions, he trusted the plaintiff. It was
further contended that on 25.07.2008, Rajesh Gupta had called over the
defendant to the Sub-Registrar Office and a document was executed by the
defendant in the belief that it was a mortgage deed. But however, it turned out
to be an agreement of sale. It was contended that Rajesh Gupta had prepared
the agreement of sale only for security purposes and not to be put into effect.
The defendant stated that there it was agreed that the defendant would repay
the loan together with interest at 12% pa and the rent to be paid would be
adjusted towards the interest for the loan from 2008 to 2013. The plaintiff also
agreed for increase of 5 % of the rent every month. It had been further stated
that the defendant had earlier mortgaged the property and was paying interest
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to the mortgagee. The defendant requested Rajesh Gupta to extend further loan
to discharge the mortgage. Accordingly, on 03.05.2013, Rajesh Gupta
discharged the mortgage and later obtained the signatures of the defendant in
yet another sale agreement wherein, the total consideration was fixed at
2,00,00,000/-. It had been stated that the plaintiff had paid an advance of
Rs.1,27,77,000/-. The defendant however denied this assertion.
9.It had been contended that the plaintiff had suppressed the agreement
of lease and the renewals of the same. It had been contended that the defendant
had never executed the agreements of sale but was mislead into thinking that
the documents were only mortgage deeds and not agreements of sale. The
defendant also stated that he was not very conversant with English language
and therefore, stated that the suit seeking specific performance cannot be
maintained and should be dismissed.
10.On the basis of the above pleadings, the following issues had been
framed on 23.06.2021:
“1).Whether the Registered Agreement of sale dated
03.05.2013 is valid one and enforceable against the defendant?
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2).Whether the plaintiff was ready and willing to discharge
his part of the Agreement?
3).Whether the Suit is barred under law of limitation?
4).Whether the plaintiff is entitled for the relief of injunction
as claimed by them?
5).Whether the plaintiff can claim for execution of the sale
deed in favour of them?
6).Whether the plaintiff can claim execution of sale deed
based on the sale agreements dated 25.07.2008 and 03.05.2013?
7).Whether the plaintiff and defendant money transaction is
mortgaged loan or sale consideration?”
11.On behalf of the plaintiff, Vishal Keyal, authorised signatory of the
plaintiff was examined as PW-1. He filed his proof affidavit and marked
Exs.P1 to P26. Ex.P1 was the Sale Deed in favour of the defendant with
respect to the suit property dated 04.12.1984. Ex.P2 was the first agreement of
sale dated 25.07.2008. Ex.P3 was the receipt for discharging of mortgage loan
dated 03.05.2013. Ex.P4 was the second agreement of sale dated 03.05.2013.
Exs.P5 to P11 were E-mails and notices exchanged between the parties.
Ex.P13 was the market value and guideline value for the property. Ex.P16
was the ledger of account showing payment made to the defendant. Ex.P19
was a copy of a banker's cheque for Rs.54,00,000/-. Exs.P21 and P22 were the
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certificate of the auditor.
12.The defendant, Mr.Nasser Mohammed, examined himself as DW-1
and marked Exs.D1 to D22. Exs.D1 to D4 and D6 to D8 were copies of the
lease agreement between the plaintiff and the defendant. Ex.D9 was the
acknowledgement of receipt by the defendant for Rs.2,54,00,000/-. Exs.D10 to
D12 and D15 were notices exchanged between the parties. The guideline value
of the suit schedule property was marked as Ex.D17. The E-mail
correspondences were marked as Exs.D18 and D19.
13.Heard arguments advanced by Mr.M.Sriram, learned counsel for the
plaintiff and Mr.B.Ullasavelan learned counsel for the defendant.
14.Mr.M.Sriram, learned counsel for the plaintiff took the Court through
the pleadings and pointed out that the defendant was in possession of the suit
property right from the time when they initially occupied the same as tenant,
initially for residential purposes and later for office premises in the year 2005.
The learned counsel stated that in the year 2008, the defendant, a permanent
citizen of France had offered to sell the property to the plaintiff and
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accordingly, a registered agreement of sale had been entered into between the
parties on 25.07.2008. The total sale consideration had determined at
Rs.80,00,000/- and an advance of Rs.40,00,000/- had been paid by the plaintiff
to the defendant. Since the defendant was a permanent resident of France and
would be coming over to this country only at irregular intervals, the time for
execution of the sale deed was given as five years. Quite independent of this
agreement of sale, the lease was also periodically extended.
15.The learned counsel stated that subsequently, on 03.05.2013, the
plaintiff also discharged an existing mortgage of the property and on the same
date, also entered into another agreement of sale with the defendant. But
however, the sale consideration was enhanced to Rs.2,00,00,000/-. The learned
counsel pointed out that the plaintiff had paid substantial amounts to the
defendant. As a matter of fact, amounts over and above the sale consideration
had been paid. The learned counsel stated that the plaintiff was not only in
possession of the title deeds but also in physical possession and also paid
statutory taxes every year from the year 2008 onwards. The learned counsel
pointed out that when the suit was initially filed seeking specific performance,
the plaintiff had, to express readiness and willingness offered to deposit a sum
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of Rs.54,00,000/- which was the final balance payable by the plaintiff. It was
contended that however, the said offer alone had been noted by the Court. The
learned counsel stated that the plaintiff is always ready and willing to purchase
the suit schedule property. The learned counsel insisted that the suit should be
decreed.
16.Mr.B.Ullasavelan learned counsel for the defendant however,
disputed all these facts. According to him, the defendant was the owner of the
suit schedule property and did not know to read or write English. He was a
permanent resident of France. Initially, one Rajesh Gupta alone had
transactions with the defendant. The learned counsel stated that the defendant
is not aware of the composition of the plaintiff. The learned counsel pointed
out that the said Rajesh Gupta was not examined as witness on behalf of the
plaintiff. The learned counsel stated that the said Rajesh Gupta had taken the
property on lease and slowly took control over the entire property. He stated
that very often the said Rajesh Gupta sent over typed stamp papers and the
defendant, who did not know English language, in trust, signed the paper and
sent them back to the plaintiff.
17.The learned counsel also stated that in the year 2013, when the
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defendant came to India, he informed the plaintiff about the existing mortgage.
The plaintiff had agreed to discharge the mortgage and executed a mortgage
deed in their favour. But however, again an agreement of sale had been
registered. The learned counsel stated that the defendant had been
misrepresented about the nature of the document. The learned counsel sated
that the defendant never wanted to sell the property. The learned counsel also
pointed out the two agreements of sale and stated that the period for specific
performance was fixed at five years and wondered as to how such a long
period could be fixed, particularly when it is contended on behalf of the
plaintiff that substantial amounts had been paid towards advance.
18.The learned counsel also stated that the sale consideration was
determined at a much much lower price than the market value or even the
guideline value of that particular property, both in the years 2008 and 2013.
The learned counsel further stated that if ever the plaintiff was interested in
purchasing the property, there was no necessity to execute the second
agreement of sale again keeping the period for performance as five years. The
plaintiff could very well have purchased the property in the year 2013. The
learned counsel pointed out these facts to show that the plaintiff was never
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ready and willing to purchase the property.
19.The learned counsel further stated that the defendant had issued a
notice to produce the original lease agreements but the plaintiff had not
produced the same. This required the defendant to file an application to mark
secondary evidence and after obtaining permission had filed xerox copies of
the renewal of the lease documents. The learned counsel pointed out that in
none of the lease agreements or even extension of lease agreements was there
any mention about the agreement of sale. The learned counsel stated that the
defendant had been tricked into signing the agreement of sale and it was held
out that it was a deed of mortgage. The learned counsel stated that the
defendant never wanted to sell the property. The defendant did not have any
dealing with the plaintiff but only with the said Rajesh Gupta. The learned
counsel pointed out that the said Rajesh Gupta was not even examined as
witness by the plaintiff. The learned counsel pointed out that the sale
consideration was very low than the market rate. The learned counsel therefore
stated that the plaintiff lacked bonafide and the suit should be dismissed.
Issues:
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Issue Nos.1, 2, 5, 6 and 7:
20.All these issues surround the validity and enforceability of the
agreement of sale dated 03.05.2013 registered as Document No.1286 of 2013
in the Sub-Registrar Office at Mylapore and whether the transaction between
the plaintiff and the defendant was actually a transaction relating to sale of
property or mortgage of property. The agreement of sale was with respect to
the property at old Door No.4, New No.7, Thiru.V.Ka. 3rd Street, Royapettah
High Road, Mylapore, Chennai, measuring one ground and 1662 sq.ft.
21.The defendant was the owner of the property having purchased the
same by Ex.P1 dated 04.12.1984. The defendant is a permanent resident of
France. He holds French passport. It is the case of the plaintiff that the plaintiff
was originally inducted as a tenant in the year 2005 and had taken on lease the
property for residential purposes. It is however, the case of the defendant that
the defendant never knew the plaintiff but had granted lease of the property to
one Rajesh Gupta. It is contended that without knowledge or consent of the
defendant, Rajesh Gupta had commenced to use the property for business
purposes also and had also sublet portions of the property to various offices.
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22.The lease agreement, between the Rajesh Gupta and the defendant
dated 04.07.2004, had been marked as Ex.D2. A perusal of the said document
reveals that it was actually entered into between the defendant and
M/s.Kanishk Steel Limited represented by its Vice President Rajesh Gupta.
The lessee, however, was M/s.Kanish Steel Industries Limited. The property
was to be used for the residential purpose of Rajesh Gupta and his family. The
defendant retained the right to terminate the lease at the end of the period of
the lease. However, the lease was not terminated.
23.It is seen that Ex.D3 dated 04.07.2008 was yet another agreement of
lease, again between Naseer Mohammed, the defendant and OPG Business
Centre Pvt. Ltd, the plaintiff herein. The plaintiff was represented by its
authorized signatory Vishal Keyal. Incidentally, the said Vishal Keyal had
tendered evidence on behalf of the plaintiff. He thus acted on behalf of the
plaintiff even earlier to the first agreement of sale dated 25.07.2008. This
would belie the contention of the learned counsel for the defendant that the
defendant always had transactions only with Rajesh Gupta and that Vishal
Keyal was a stranger to such transactions.
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24.Be that as it may, the plaintiff and the defendant next entered into an
agreement of sale dated 25.07.2008 which document was marked as Ex.P2.
That agreement of sale was registered as Doc. No.1755 of 2008 in the office of
the Sub-Registrar, Mylapore. Under the said agreement of sale, the total sale
consideration for the property was determined at Rs.80,00,000/-. The
document also reflected that an advance of Rs.40,00,000/- had been paid by
the plaintiff to the defendant.
25.The plaintiff was already in possession of the property consequent to
the earlier lease agreement dated 04.07.2008 in Ex.D3. The period for
performance of the agreement of sale was fixed at five years. It is contended
by the plaintiff that the defendant had handed over the original documents
relating to the property to the plaintiff. It is also contended that on and from
that particular date, the plaintiff has been paying the statutory taxes to the
authorities. In this connection, the plaintiff had produced, Ex.P17.
26.It is the contention of the defendant that even in the year 2008, the
guideline value of the property was much higher and in this regard, the
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defendant filed Ex.D20. The plaintiff also filed Ex.P13, the guideline value.
But it must be mentioned that in the agreement of sale, the parties can
determine the sale consideration but whenever the document is presented for
registration, the stamp duty and registration charges should be paid in
accordance with the guideline value as determined by the Government.
27.This agreement of sale, continued to be in force and the plaintiff also
paid further amounts to the defendant. According to the plaintiff, during the
subsistence of the agreement, the plaintiff paid a sum of Rs.7,20,000/- by cash
on 16.04.2010. This payment is however disputed by the defendant. The
plaintiff also claims that they had paid a sum of Rs.47,777/- by cheque to the
Corporation of Chennai on 27.12.2011.
28.The contention of the defendant is that he was not conversant with
English language and was a resident of France. It is further contended that the
plaintiff used to send documents for signature and the defendant used to sign
them and forward them back to the plaintiff. These were the extensions of the
lease agreements.
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29.The learned counsel for the defendant contended that the originals of
the extensions of the lease agreements were not produced by the plaintiff even
though notice was issued to produce. This necessitated the defendant to file
secondary evidence of such extension of lease agreement.
30.However, the parties had thought it fit to enter into a second
agreement, which was entered into a second agreement, which was entered
into on 03.05.2013. By this agreement, the value of the property had been
increased to Rs.2,00,00,000/-. It was again agreed that the performance should
be within a period of five years.
31.It is the contention of the learned counsel for the defendant that if the
plaintiff had been ready and willing to purchase the property in the year 2013
on payment of total consideration of Rs.80,00,000/- as determined in the
agreement of the year 2008, then there was no necessity to once again execute
another agreement of sale.
32.However, it is the contention of the plaintiff that the property had
been mortgaged to Sivacojoundou Paul and the plaintiff had discharged that
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particular mortgage on the same day, on 03.05.2013. A discharge receipt
executed by the mortgagee was also registered and the agreement of sale was
also registered.
33.It had been contended on behalf of the defendant that even the sale
consideration of Rs.2,00,00,000/- which had been determined in this particular
agreement was much less than the market value.
34.Since the defendant did not come forward to execute the sale deed,
even though the plaintiff contended that amounts towards the sale
consideration had been paid and which had also been admitted by the
defendant, the suit had been filed seeking specific performance of this
agreement dated 03.05.2013.
35.The issues now are under consideration revolve around whether the
Court should grant specific performance of this agreement.
36.It is the contention of the defendant that he was misled into signing
that particular agreement of sale. He was under the impression that a mortgage
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deed would be executed.
37.This contention of the defendant is rejected.
38.The relationship among the parties had commenced in year 2005.
The plaintiff had become a tenant in the year 2005. Thereafter, in the year
2008, an agreement of sale had been entered into between the plaintiff and the
defendant. Even though it is contended on behalf of the defendant that he was
misled into signing that particular agreement of sale, no steps had been taken
by the defendant to treat that agreement of sale as a voidable document. It is a
registered document and therefore, the defendant cannot claim ignorance of
the same. He had merrily received the amounts paid under the agreement of
sale. He had permitted the plaintiff to pay the property tax and other statutory
taxes. He had permitted the plaintiff to continue to be in occupation. He had
also legalized such occupation by entering into lease agreements and extension
of lease agreements.
39.The agreements of lease had no connection whatsoever with the
agreement of sale. The agreement of sale was to convey the property to the
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plaintiff. The agreements of lease and the extension of such lease was to
permit the plaintiff to continue to be in occupation. The original title deeds had
also been handed over to the plaintiff. The plaintiff had also paid substantial
amount towards the sale consideration of Rs.80,00,000/- which had been
determined in the agreement of sale entered into in the year 2008. The plaintiff
had also continued to pay the monthly rents in accordance with the lease
agreements and the extension of lease agreements. There is no complaint by
the defendant that the plaintiff had defaulted in the payment of rent. Therefore,
the statement of the defendant that he was misled into signing the agreement
of sale which was actually registered cannot be believed and has to be
rejected.
40.The plaintiff had also mortgaged the property to Sivacojoundou Paul
Paul. The plaintiff had redeemed the mortgage. The mortgagee had also
executed a registered document indicating discharge. This was on 03.05.2013.
On the same date, on 03.05.2013, an agreement of sale was entered into but
the value of the property was determined at Rs.2,00,00,000/-. It is only
appropriate that the plaintiff entered into an agreement of sale. The plaintiff
could not have purchased the property since there was a subsisting mortgage.
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The defendant found it convenient to permit the plaintiff to redeem the
mortgage. The defendant had entered into a mortgage deed and therefore, he
would know the difference between a mortgage deed and an agreement of sale.
41.The contention that the defendant was illiterate and did not know
English language is rejected. He is a citizen of France. He is running a
restaurant and other business enterprises in France. He cannot therefore claim
ignorance about a lease deed, an extension of lease deed, a mortgage deed and
an agreement of sale. He cannot claim ignorance particularly, after he had
merrily signed those documents. Till date, he had not initiated any legal
proceedings to claim that each one of the documents are voidable and that he
had signed them under the mistaken impression that they were some other
document.
42.The defendant had not even preferred a counter claim seeking a
declaration that the agreement of sale should be declared as a void document
incapable of being performed.
43.The very fact that the defendant had received the rents month after
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month from the plaintiff would show that he was aware of the terms of the
lease deed. He did not protest about the quantum of rent paid. The quantum
was determined in the lease deed. If he had signed the lease deed without
understanding the contents and had forwarded them to the plaintiff, then, every
month he would have raised a doubt about the quantum of rent paid by the
plaintiff. He had not raised any protest about that fact. He also mortgaged the
property. He was thus aware about the consequence of a mortgage. He was
not in a position to redeem the mortgage. He permitted the plaintiff to redeem
the mortgage. Till that cloud of the property was hanging, the plaintiff was
exploited and monthly rents were received, taxes were paid by the plaintiff and
advance amounts also received towards the sale consideration.
44.The sale consideration had also increased substantially from
Rs.80,00,000/- to Rs.2,00,00,000/-. The consideration agreed between two
parties is determined on various factors including the monthly rents which had
been paid by the plaintiff and the mortgage which subsisted over the property.
Therefore, it cannot be comparable to the market value. The plaintiff had
continued to pay part advances of the sale consideration to the defendant. The
plaintiff had also paid the property tax and other statutory dues without any
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default. The plaintiff had also continued to pay the monthly rental amounts.
Having received all these monetary benefits, it does not lie in the mouth of the
defendant to claim innocence about the nature of document he had signed.
45.The agreement of sale is also a registered document. Having entered
into a Registrar office and having affixed the signature in the agreement of
sale, I hold that the defendant had not come to the Court with true facts when
he claims that he was not aware about the nature of the document. I hold that
he was very much aware about the nature of the document that he signed and
now wants to escape from performing the terms of the agreement after having
received substantial benefits from the plaintiff month after month for nearly
about 20 years as on date.
46.The defendant had also actually signed the written statement which
had been prepared in English. His evidence had been recorded in English. He
had also signed them. He had filed affidavits in English language. If the
defendant is permitted to plea that he does not know English language, then
the entire Court proceedings should be termed as a nullity. This plea cannot
and should not be permitted to stand. It is prevented.
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47.At the time of first hearing of the case, the plaintiff had also brought
a demand draft for the balance sale consideration of Rs.54,00,000/- and had
offered to deposit the same in Court deposit. However, it is stated by the
learned counsel that the Court had felt that it was not necessary to deposit the
said amount. But a tender had been made. The defendant could have even at
that time at least come forward to receive the balance sale consideration and
execute the sale deed. It is clear that the plaintiff had exhibited readiness and
willingness at all points right from the execution of first agreement of sale.
48.The very fact that the plaintiff had paid the monthly rents would
show that they were interested in the property and in retaining the possession
of the property with intention to purchase the property. They had not only paid
the rent but also paid the property tax and other statutory dues. This is
obligation to be performed only by the owner of the property. If a lessee pays
the property tax and the other statutory dues, it would only indicate that they
were ready to purchase the property.
49.The fact that they continued to pay the rents has not been denied by
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the defendant. The fact that the plaintiff paid the property tax has not been
denied by the defendant. The fact that the plaintiff had redeemed the mortgage
has not been denied by the defendant. The fact that the plaintiff had come
forward to deposit the balance sale consideration in Court has not been denied
by the defendant.
50.The defendant had put forward a lame excuse by claiming ignorance
of the English language. He had signed written statement. He had signed his
deposition. He had clearly understood the said documents which were in
English and had affixed his signatures. I hold that the defendant knew about
the agreement of sale and is under an obligation to execute the sale deed. I
further hold that the plaintiff, having expressed readiness and willingness to
purchase the property, is entitled to get the agreement of sale dated 03.05.2013
to be specifically performed by the defendant.
51.In view of these reasons, I answer issue Nos.1, 2, 5 and 6 in favour
of the plaintiff and hold that the agreement of sale dated 03.05.2013 will have
to be specifically performed by the defendant by executing the sale deed and
that the plaintiff had expressed readiness and willingness at every stage. Issue
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No.7 is answered that the money transaction is only a sale transaction and not
a mortgage loan. it is also answered in favour of the plaintiff.
Issue No.3:
52.The issue surrounds the point of limitation and whether the suit is
barred under law of limitation. The agreement of sale dated 03.05.2013
provided a covenant that the agreement should be performed within a period
of five years. It is only when there is refusal to perform the agreement would a
cause arise to one of the party to seek specific performance. On the date when
the agreement of sale was entered into, the plaintiff was already in possession.
The plaintiff had also paid substantial amounts towards the sale consideration.
The plaintiff had also redeemed the existing mortgage. The plaintiff is also in
possession of the original title deed. The plaintiff is also paying the monthly
rents. The plaintiff is also paying the property tax and other statutory dues
without default. It had been very specifically stated in the plaint that the
defendant had issued a notice dated 30.04.2019, Ex.D10, calling upon the
plaintiff to handover the original title deeds since the defendant wanted to sale
the property to a third party. On that date, the cause for institution of the suit
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arose. The suit had been filed within a period of three years from that
particular date. The suit was presented on 12.12.2019.
53.In view of this fact, I hold that the suit is not barred by law of
limitation. The issue is answered in favour of the plaintiff.
Issue No.4:
54.The issue is whether the plaintiff is entitled for the relief of
injunction as claimed. This issue surrounds the claim for permanent injunction
against the defendant from interfering with the possession of the plaintiff and
from alienating the property.
55.The plaintiff is in possession of the property. He has been in lawful
possession consequent to a lease agreement and extensions of the lease
agreement. The lawfulness had been recognized by the defendant, since he
permitted the plaintiff to pay property tax and other statutory dues. There is no
complaint that the plaintiff had defaulted in payment of rent. The plaintiff also
have in their possession the original title deeds. The business of the plaintiff is
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carried on in the premises. Naturally, such possession will have to be
protected. The plaintiff is also the agreement holder to purchase the property
under a registered agreement of sale. It had already been held that the
defendant will have to perform that particular agreement. Naturally, the
defendant cannot either dispossess the plaintiff or alienate the property.
56.The balance of convenience is in favour of the plaintiff since they
had paid the monthly rents and therefore, they are in lawful possession. They
had paid the property tax and other statutory dues. They also have the original
title deed. The defendant had also entered into a registered agreement of sale
to sell the property to the plaintiff. This issue is answered in favour of the
plaintiff and permanent injunction is granted both to protect possession and to
restrain the defendant from dealing with or alienating the property.
57.In view of the above reasons, I hold that the plaintiff is entitled for a
decree as prayed for with costs. In the result,
(i)The suit is decreed with costs.
(ii)The plaintiff is directed to deposit the balance sale consideration of
Rs.54,00,000/- (Rupees Fifty Four Lakhs only) to the credit of the suit within a
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period of two weeks from this date.
(iii)The defendant is directed to execute the sale deed on receiving the
balance sale consideration within a period of two weeks from the date of
deposit of balance sale consideration by the plaintiff.
(iv)If the defendant fails to come forward to execute the sale deed
within the said time period, the Registry is directed to deposit the balance sale
consideration to any fixed deposit in any nationalised bank and execute the
sale deed in favour of the plaintiff within a period of two weeks from the date
of expiry of time limit for the defendant to execute the sale deed.
smv 09.08.2024
Internet:Yes/No
Neutral Citation:Yes/No
Speaking Order : Yes/No
Plaintiff's side Witnesses:
P.W.1 – Mr.Vishal Keyal
Defendant's side Witnesses:
D.W.1 – Mr.Nasser Mohammed
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Documents on the side of plaintiff:
Ex.P1 04.12.1984 Original Sale Deed in favour of the defendant.
Ex.P2 25.07.2008 Original Agreement of Sale entered into between the
plaintiff and the defendant.
Ex.P3 03.05.2013 Original receipt for discharging the Mortgage Loan.
Ex.P4 03.05.2013 Original Agreement for sale
Ex.P5 25.03.2019 E-mail copy of correspondence from the defendant to
the plaintiff (Affidavit filed under Section 65B of
Evidence Act, 1872)
Ex.P6 22.04.2019 Print out copy of correspondence from the defendant
to the plaintiff (Affidavit filed under Section 65B of
Evidence Act, 1872)
Ex.P7 30.04.2019 Photocopy of the defendant Advocate Notice to the
plaintiff.
Ex.P8 06.05.2019 Print out copy of letter and e-mail correspondence
from the plaintiff to defendant (marked subject to
objection of counsel for the defendant)(Affidavit filed
under Section 65B of Evidence Act, 1872).
Ex.P9 28.05.2019 Photocopy of the reply to the lawyer's notice to the
defendant by the plaintiff advocate.
Ex.P10 06.06.2019 Print out copy of letter by defendant to the plaintiff
(Affidavit filed under Section 65B of Evidence Act,
1872).
Ex.P11 21.08.2019 Photocopy of the rejoinder notice issued by
defendant's advocate to the plaintiff's advocate.
Ex.P12 26.04.2007 1st page photocopy and 2nd page print out copy of
Certificate of Incorporation of the plaintiff (Affidavit
filed under Section 65B of Evidence Act, 1872).
Ex.P13 09.06.2019 Printout of market value and guideline value from
09.06.2017 for the suit property (Affidavit filed under
Section 65B of Evidence Act, 1872).
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Ex.P14 25.09.2019 Printout copy of encumbrance certificate dated
(Affidavit filed under Section 65B of Evidence Act,
1872).
Ex.P15 Original statement of accounts issued by the State
Bank of India for the period from 17.04.2013 to
03.05.2013 (marked subject to objection of the
counsel for the defendant)
Ex.P16 Printout copy of Ledger of Account of the plaintiff
from 2008 onwards (Affidavit filed under Section 65B
of Evidence Act, 1872).
Ex.P17 Printout copy of payment to the Corporation of
Chennai and Metro Water towards tax and charges
made by the plaintiff (marked subject to objection of
the counsel for the defendant) (Affidavit filed under
Section 65B of Evidence Act, 1872).
Ex.P18 10.04.2019 Resolution of the plaintiff company authorizing
Mr.Vishal Keyal deponent of the plaintiff.
Ex.P19 Printout copy of Banker's cheque for Rs.54,00,000/-
bearing No.017615 (marked subject to objection of the
counsel for the defendant) (Affidavit filed under
Section 65B of Evidence Act, 1872).
Ex.P20 Printout copy of statement of account annexure to the
plaint (marked subject to objection of the counsel for
the defendant) (Affidavit filed under Section 65B of
Evidence Act, 1872).
Ex.P21 Auditor certificate along with the cash book entry to
show that a sum of Rs.7,20,000/- was paid to the
defendant.
Ex.P22 Auditor certificate along with the cash book entry to
show that a sum of Rs.13,81,453/- was paid to the
defendant)
Ex.P23 Break up figure of payment of Rs.10,00,000/- and the
payments were made by cheques which are reflected
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in the ledger printout of the plaintiff.
Ex.P24 Audited balance sheet of the plaintiff company for the
year 2016-2017 along with the auditor certificate
certifying the payment made to the defendant.
Ex.P25 Audited balance sheet of the plaintiff company for the
year 2017 – 2018 along with the auditor certificate
certifying the payment made to the defendant.
Ex.P26 18.12.2015 Copy of the complaint dated 10.12.2015 sent by the
plaintiff to the Inspector of Police, E1 Police Station,
Kacheri Road, Mylapore, Chennai and CSR.
Documents on the side of defendant:
Ex.D1 02.01.2017 Renewal of lease agreement between the plaintiff and
defendant.
Ex.D2 04.07.2004 Photocopy of the lease agreement between Kanishk
Steel Industries Limited and the defendant.
Ex.D3 04.07.2008 Phtocopy of the agreement of sale.
Ex.D4 09.03.2010 Photocopy of the renewal of lease agreement.
Ex.D5 13.09.2012 Photocopy of the Certificate of Registration Overseas
Citizen of India.
Ex.D6 01.04.2013 Photocopy of the renewal of lease agreement.
Ex.D7 01.05.2016 Photocopy of the renewal of lease agreement.
Ex.D8 01.08.2017 Photocopy of the renewal of lease agreement.
Ex.D9 Photocopy of the acknowledgement of receipt for
Rs.2,54,00,000/-.
Ex.D10 30.04.2019 Office copy of the legal notice sent by the defendant's
counsel to the plaintiff.
Ex.D11 06.06.2019 Office copy of the reply sent by the defendant to the
plaintiff.
Ex.D12 21.08.2019 Office copy of the rejoinder notice sent by the
defendant's counsel to the plaintiff's counsel.
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Ex.D13 Photocopy of the Passport No.04P173474 of Nasser
Mohammed.
Ex.D14 Photocopy of the Passport No.14AT09461 of Nasser
Mohammed.
Ex.D15 06.05.2022 Office copy of the legal notice sent by the defendant
to the plaintiff along with postal receipt
Ex.D16 Original acknowledgement card.
Ex.D17 Printout of the guideline value of the suit schedule
property for the period 01.04.2012 to 08.06.2017.
(Affidavit filed under Section 65B of Evidence Act,
1872).
Ex.D18 25.03.2019 Printout of the e-mail sent by the defendant to the
plaintiff. (Affidavit filed under Section 65B of
Evidence Act, 1872).
Ex.D19 03.06.2019 Printout of the e-mail sent by the defendant to the
plaintiff. (Affidavit filed under Section 65B of
Evidence Act, 1872).
Ex.D20 Printout of the guideline value of the suit schedule
property from the period 09.06.2017 to 09.06.2021.
(Affidavit filed under Section 65B of Evidence Act,
1872).
Ex.D21 Printout of the company master data of Kanishk Steel
Industries Ltd. (Affidavit filed under Section 65B of
Evidence Act, 1872).
Ex.D22 Printout of the company master data of OPG Business
Centre Pvt. Ltd. (Affidavit filed under Section 65B of
Evidence Act, 1872).
09.08.2024
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C.V.KARTHIKEYAN, J.
smv
Pre-Delivery Judgment made
in
09.08.2024
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