Madras High Court
Arumugasamy vs Selvaraj on 16 August, 2024
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
S.A.(MD)No.372 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16.08.2024
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.372 of 2017
and
C.M.P.(MD)No.7932 of 2017
Arumugasamy ... Appellant / Appellant / Plaintiff
Vs.
1.Selvaraj
2.Malliga
3.Vairavel
4.Hariharan
5.Lakshmipriya ... Respondents / Respondents / Defendants
Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
against the Judgment and Decree dated 07.04.2017 passed in A.S.No.14 of
2015 on the file of the I Additional District Judge, Tuticorin, confirming the
Judgment and decree dated 30.01.2014 passed in O.S.No.14 of 2011 on the file
of the Sub Court, Kovilpatti.
For Appellant : Mr.M.Vallinayagam
For Respondents : Mr.M.Prabu
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1/7
S.A.(MD)No.372 of 2017
JUDGEMENT
The plaintiff in the suit is the appellant in this second appeal. O.S.No.14
of 2011 on the file of the Sub Court, Kovilpatti was filed for specific
performance. According to the plaintiff, the defendants and himself entered
into a registered sale agreement on 16.04.2008. As per the terms of the
agreement, the sale consideration was fixed at Rs.9,90,000/-. Rs.7,00,000/-
was paid as advance. Three months was fixed for performance of the
agreement. While so, on 21.10.2008, the defendants sent legal notice revoking
the sale agreement. Thereupon, the plaintiff issued reply notice on 04.11.2008.
The suit came to be filed on 23.03.2009. The balance amount of Rs.2,90,000/-
was deposited to the credit of the suit on 11.4.2009. The defendants filed
written statement controverting the plaint averments. The defendants also filed
additional written statement in which it was stated that there was an
unregistered sale agreement executed on 16.04.2008 itself and that the actual
sale consideration was Rs.38,00,000/-. The defendants contended that the
plaintiff has not approached the court with clean hands. The defendants
however conceded that a sum of Rs.15,00,000/- was received as advance and
that the balance amount of Rs.23,00,000/- has to be deposited. Based on the
rival pleadings, the trial court framed the necessary issues. The plaintiff
examined himself as P.W.1. One Rathinasamy / attestor of the suit agreement
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was examined as P.W.2. Ex.A1 to Ex.A9 were marked. The first defendant
examined himself as D.W.1. Ex.B1 to Ex.B7 were marked. After considering
the evidence on record, the trial Court vide judgment and decree dated
30.01.2014 dismissed the suit and denied the relief of specific performance.
The defendants were however directed to refund the advance amount of Rs.
7,00,000/- with 12% interest. Questioning the same, the plaintiff filed A.S.No.
14 of 2015. The first appellate Court vide Judgement and decree dated
07.04.2014 dismissed the appeal but held that the plaintiff was entitled to
withdraw the amount of Rs.2,90,000/- deposited by him in the Court towards
the balance sale consideration. Challenging the same, the present second appeal
has been filed.
2. The second appeal was admitted on the following substantial
questions of law:-
“(a) When the Court below have concurrently held that the appellant
had proved the suit registered agreement of sale dated 16.04.2003 and when
the respondents / defendants did not question the financial capacity of the
appellant, whether the rejection of the relief of specific performance by the
courts below is sustainable merely on the ground of non-production of
documentary evidence to establish the readiness and willingness?
(b) When the appellant has done substantial compliance of the
contract and the dismissal in capable of performance, whether the dismissal
of the suit is proper?
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(c) When the suit agreement dated 16.04.2008 marked as Ex.A2
consist of reciprocal promises to be simultaneously performed and when the
respondent is not ready and willing to perform his reciprocal promise by
clearing the encumbrances and vacate the suit house property, whether the
courts below are correct in holding that the appellant is not ready and
willing to perform his contract?”
During previous hearing, the following additional substantial question of law
was framed:-
“Whether the plaintiff is entitled to refund of any additional amount apart
from the sum of Rs.7,00,000/-?”
3. The relief of specific performance is an equitable relief. The plaintiff
approached the court with a specific stand that the total sale consideration was
Rs.9,90,000/- and that he already paid the advance amount of Rs.7,00,000/- and
that he is entitled to take the sale deed by calling upon the defendants to accept
the balance sale consideration of Rs.2,90,000/-. The defendants in the written
statement claimed that on 16.04.2008, when the suit agreement was executed
and registered, an unregistered agreement was also executed. It is interesting
to note that P.W.2 / Rathnasamy who attested the registered agreement also
attested the unregistered agreement. The un-registered agreement was marked
by the defendants as Ex.B1. Interestingly, the plaintiff also marked the same as
Ex.A9. Therefore, it is too obvious that the actual sale consideration fixed by
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the parties was not Rs.9,90,000/- but Rs.38,00,000/-. I am more than satisfied
that the plaintiff has not approached the Court with clean hands. The issue can
be disposed of in this view of the matter alone. Denial of the relief of specific
performance by the courts below is confirmed. There is no need to deal with
the substantial questions of law originally framed in this second appeal.
According to the defendants, Ex.B1 reflects the understanding between the
parties. As per Ex.B1, they have received the balance amount of
Rs.15,00,000/-. In the additional written statement, the defendants have taken
the plea that the suit has to be dismissed because the plaintiff did not deposit
the balance amount of Rs.23,00,000/-. As per the registered sale agreement, an
advance amount of Rs.7,00,000/- was received on the agreement date. It is
beyond dispute that the property was mortgaged in favour of the co-operative
society. It was the plaintiff who had cleared the mortgage. The discharge
receipt is very much with the plaintiff. The parent documents were with the
plaintiff. The title document was marked as Ex.A1. While the plaintiff has to
be denied the relief of specific performance, the defendants cannot be allowed
to unjustly enrich themselves. Having received Rs.15,00,000/- as advance,
they are obliged to return the same to the plaintiff.
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4. The additional substantial question of law is answered in favour of the
appellant. The respondents are directed to return the sum of Rs.15,00,000/-
with interest at the rate of 6% per annum from 16.04.2008. Once this amount
is paid, the defendants will be entitled to take back Ex.A1 and the discharge
receipt. Charge on the suit property is created for the aforesaid sum of
Rs.15,00,000/- with interest. The second appeal is partly allowed. No costs.
Consequently, connected miscellaneous petition is closed
16.08.2024
Index : Yes / No
Internet : Yes/ No
rmi
To:
1.The I Additional District Judge, Tuticorin.
2.The Sub Court, Kovilpatti.
Copy to:
The Record Keeper, V.R. Section,
Madurai Bench of Madras High Court, Madurai.
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G.R.SWAMINATHAN, J.
rmi
16.08.2024
https://www.mhc.tn.gov.in/judis
