Madras High Court
E.Venkatraman vs B.Dheenan ... 1St on 1 July, 2025
2025:MHC:1515
S.A.No.167 of 20 20
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 25 / 10 / 2024
JUDGMENT PRONOUNCED ON : 01 / 07 / 2025
CORAM:
THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
S.A.NO.167 OF 2020
AND
CMP NO.3489 OF 2020
E.Venkatraman ... Appellant /
1st Respondent /
Plaintiff
-vs-
1.B.Dheenan ... 1st Respondent /
Appellant /
2nd Defendant
2.R.Sivaramakrishnan ... 2nd Respondent /
2nd Respondent /
1st Defendant
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure, 1908, praying to set aside the Judgment and Decree dated
September 24, 2019 made in A.S.No.45 of 2017 on the file of the learned
Additional District Judge (Fast Track Court) Arani, Tiruvannamalai
District (Originally A.S.No.10/2017, transferred and renumbered from
District Court, Tiruvannamalai) reversing the Judgment and Decree dated
October 19, 2016 made in O.S.No.10 of 2008 on the file of the
Subordinate Judge, Arani.
Page No.1 of 28
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S.A.No.167 of 20 20
For Appellant : Mr.T.N.Rajagopalan
for M/s.C.Harish
For Respondent-1 : Mr.Abdul Mubeen
For Respondent-2 : Mr.K.Mohan
JUDGMENT
This Second Appeal is directed against the Judgment and
Decree dated September 24, 2019 passed in A.S.No.45 of 2017 by the
'learned Additional District Judge (Fast Track Court) Arani,
Tiruvannamalai District' ['First Appellate Court' for brevity], whereby the
Judgment and Decree dated October 19, 2016 passed in O.S.No.10 of
2008 by the ‘Subordinate Judge, Arani' ['Trial Court' for brevity] was
reversed.
2. For the sake of convenience, hereinafter, the parties will be
referred to as per their array in the Original Suit.
PLAINTIFF'S CASE
3. The case of the plaintiff is that the first defendant is the
owner of the Suit Property, which is a vacant plot, vide Sale Deed dated
December 15, 2005. Both parties entered into a registered Sale Agreement
on November 14, 2007, for a sum of Rs.3,00,000/-. The plaintiff paid an
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advance of Rs.2,00,000/- towards the sale consideration. The sale was to
be completed within nine months. However, the first defendant attempted
to sell the Suit Property to third party, prompting the plaintiff to issue a
legal notice on January 25, 2008, requesting the 1st defendant to complete
the sale by executing the Sale Deed. Since there was no response from the
1st defendant, the plaintiff approached the Court by way of the Original
Suit seeking execution of Sale Deed, delivery of possession and for costs.
3.1. Thereafter, the plaintiff learnt that the first defendant
executed a Sale Deed dated September 22, 2008 in favour of second
defendant in respect of the Suit Property pending the Suit. The said Sale
Deed is sham and nominal, executed only to defraud the plaintiff and
hence, will not bind the plaintiff. Hence, the subsequent purchaser was
impleaded as the second defendant in the Original Suit and the plaint
prayer was amended to include the relief of declaration that the
subsequent Sale Deed is null and void.
FITST DEFENDANT'S CASE
4. The case of first defendant is that the plaintiff, his father –
Elumalai and the first defendant are friends. The first defendant and the
plaintiff’s father had money transactions. The first defendant was running
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a hotel business and sought Rs.2,00,000/- to relocate his hotel as loan by
mortgaging the Suit Property. Since the cost for registration of a Mortgage
Deed is higher (Rs.20,000/-), at the request of the plaintiff, Suit Sale
Agreement was executed for the aforesaid borrowal. Thus, the Suit Sale
Agreement was executed only for the purpose of loan, and never intended
for sale of Suit Property. The sale consideration under the Suit Sale
Agreement is Rs.3,00,000/- while the market value of the Suit Property is
Rs.5,13,000/-. There is no reason for the first defendant to sell the Suit
Property lesser than its market value. Moreover, the plaintiff gave only
Rs.1,50,000/- promising to pay the remaining later.
4.1. Thereafter, when the first defendant expressed his
intention to sell the Suit Property, the plaintiff suggested that first
defendant shall return the loan amount of Rs.1,50,000/- from the sale
consideration. Then, the first defendant entered into a Sale Agreement
dated November 26, 2007 with one R.Padma agreeing to sell the Suit
Property for Rs.5,13,000/- and received Rs.2,13,000/- as advance. Out of
the advance amount received, the first defendant cleared the debt of
Rs.1,50,000/- with the plaintiff and the plaintiff assured to cancel the Suit
Sale Agreement. Believing the words of the plaintiff, the first defendant
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left the matter as such. But the plaintiff did not seem to cancel the Suit
Sale Agreement, hence the first defendant approached some
panchayatdhars. The panchayat failed as the plaintiff refused to cancel the
Suit Sale Agreement. Since, the Suit Sale Agreement is a registered one,
the first defendant could not proceed further with the subsequent Sale
Agreement with said Padma. Consequently, the first defendant had to
return the advance money of Rs.2,13,000/- obtained from said Padma and
cancel the Sale Agreement with her. Since the first defendant returned the
loan amount of Rs.1,50,000/- payable to the plaintiff, he is not liable to
pay any amount to the plaintiff. Hence, the plaintiff is not entitled to the
relief of return of money. Moreover, the plaintiff also has not sought for
the same as an alternative relief. If, by any chance, the Court concludes
that first defendant has not returned the alleged advance amount, then the
first defendant is ready to pay Rs.2,00,000/- to the plaintiff. Accordingly,
he prayed to dismiss the Original Suit.
SECOND DEFENDANT'S CASE
5. The second defendant adopted the written statement filed
by first defendant and in addition, filed a written statement stating that he
is a bonafide purchaser with value and without notice of the Suit Sale
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Agreement and the Suit. The first defendant had borrowed Rs.1,00,000/-
on December 20, 2007 and Rs.1,13,000/- on January 19, 2008, by
executing two separate Promissory Notes on the said dates, in order to
cancel the Sale Agreement with the said Padma and return the sale
advance thereunder. Thereafter to clear the debt with the second
defendant, the first defendant sold the Suit Property in favour of second
defendant for Rs.6,00,000/- on September 22, 2008. Before purchase, he
had verified the papers and found out that the Suit has been dismissed.
Thus, he is a bona fide purchaser with value and without notice. He is in
possession and enjoyment of the Suit Property since the purchase.
Accordingly, the 2nd defendant sought the dismissal of the suit.
TRIAL COURT
6. At trial, plaintiff was examined as P.W.1 and Ex-A.1 to Ex-
A.3 were marked on the side of the plaintiff. The defendants were
examined as D.W.1 and D.W.2 respectively and Ex-B.1 to Ex-B.4 were
marked on the side of the defendants.
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7. After full-fledged trial, the Trial Court held that the Suit
Sale Agreement is true and valid and intended to sell the Suit Property;
not executed for any loan transaction as alleged by the first defendant.
The second defendant purchased the Suit Property with a mala fide
intention pending the Suit. Hence, the second defendant is not a bona fide
purchaser with value and without notice. Accordingly, it decreed the Suit
as prayed for.
FIRST APPELLATE COURT
8. Feeling aggrieved, the 2nd defendant alone preferred an
appeal before the First Appellate Court, which, after hearing both sides,
concurred with the finding of the Trial Court that the Suit Sale Agreement
is true and valid and intended for sale of Suit Property. Further, it held
that the plaintiff has not deposited the balance sale consideration of
Rs.1,00,000/- despite the Trial Court directing him to deposit the same on
or before March 6, 2008, vide its Order passed in I.A. No.11 of 2008 filed
by plaintiff seeking interim injunction against first defendant not to
alienate the Suit Property. Hence, it arrived at the finding that the plaintiff
is ready and willing to perform his part of the contract and thus, not
entitled to the relief of specific performance. As regards the plea of
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second defendant qua bona fide purchaser, it held that since the plaintiff
is not ready and willing, there is no need to delve into the same.
Accordingly, it allowed the appeal and set aside the Judgment and Decree
of the Trial Court.
SECOND APPEAL
9. Feeling aggrieved, the plaintiff has preferred the present
Second Appeal under Section 100 of the Code of Civil Procedure, 1908.
The Second Appeal was admitted on March 17, 2020 on the following
substantial question of law:
“Whether the Lower Appellate Court was right
in concluding that the second defendant is the bona
fide purchaser for a value, more so, when he is the
purchaser pending suit?”
ARGUMENTS
10. Mr.T.N.Rajagopalan for M/s C.Harish learned Counsel on
record for the appellant / plaintiff would argue that the Trial Court as well
as the First Appellate Court concurrently held that Ex-A.1 - Suit Sale
Agreement is true and valid. The defendants never took a stand that the
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plaintiff was not ready and willing to perform his part of the contract, nor
that the plaintiff has no sufficient income or wherewithal to pay the
balance sale consideration of Rs.1,00,000/- as per the terms of Ex-A.1
Suit – Sale Agreement. Further, D.W.1 / first defendant has categorically
admitted that the plaintiff has sufficient income to pay the balance sale
consideration. Further, the plaintiff paid 2/3rd of the total sale
consideration upfront as advance which points to his readiness and
willingness. The plaintiff in Paragraph No.6 has clearly averred his
readiness and willingness to perform the contract as well as to deposit the
balance sale consideration into the Court, on being ordered so. In I.A.
No.11 of 2008 [filed by plaintiff seeking interim injunction against first
defendant not to alienate the Suit Property] as well, the plaintiff has
pleaded his readiness and willingness and the said Interlocutory
Application was allowed with a time bound direction to the plaintiff to
deposit the balance sale consideration into the Court. Thereafter,
inadvertently, the plaintiff omitted to deposit the balance sale
consideration. But the consequence of non-compliance with the direction
issued in the Interlocutory Application could only be cancellation of the
interim-injunction. It is to be noted that the plaintiff deposited the balance
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sale consideration before the Trial Court immediately after the
Preliminary Decree. Hence the First Appellate Court is not right in its
finding that the plaintiff was not ready and willing to perform his part of
the contract.
10.1. He would further submit that pursuant to the Trial
Court’s Judgment and Decree, the plaintiff filed E.P. No.59 of 2017 and
pursuant to the Order passed thereon, Sale Deed was executed through the
process of Court on September 4, 2017 in favour of the plaintiff and the
same was registered duly. Accordingly, he would pray to allow the appeal,
set aside the Judgment and Decree of the First Appellate Court and restore
those of the Trial Court.
10.2. He would rely on Namazi’s Case [Judgment of this
Court in Namazi, N.B. -vs- Central Chinmaya Mission Trust, reported in
1987 (100) MAD LW 582].
11. In response, Mr.R.Abdul Mubeen, learned Counsel for the
first respondent / second defendant would argue that in a Suit for specific
performance, the plaintiff should prove his readiness and willingness to
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perform his part of the contract not only during the period of contract, but
throughout the Suit proceedings as well. Ex-A.1 – Suit Sale Agreement
contain specific recitals that in case the first defendant fails to honour the
terms of Ex-A.1, then the plaintiff shall deposit the remaining sale
consideration before the Court and get the Sale Deed executed through
the Court of law. Despite this and despite the Order of the Trial Court in
the Interlocutory Application in I.A. No.11 of 2008, the plaintiff did not
deposit the balance sale consideration until the passing of Preliminary
Decree. This shows that the plaintiff is not ready and willing to perform
his part of the contract.
11.1. He would further argue that originally, the Suit was
filed on February 6, 2008 against the first defendant alone. The Suit was
listed on September 4, 2008 and since there was no representation on the
side of plaintiff on that day, the Suit was dismissed for default. Then, on
September 22, 2008 i.e., after dismissal of the Suit, the second defendant
purchased the Suit Property for a valuable consideration of Rs.6,00,000/-.
Thereafter, vide the Order passed in I.A.No.329 of 2012 under Order I
Rule 10 (2) of the Code of Civil Procedure, 1908, the second defendant
was impleaded in the Original Suit. The summon reached him only in
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March 2013 for the hearing on March 18, 2013. Only then he came to
know about the restoration of the Original Suit. The evidence of D.W.3 /
Witness to Ex-B.2 – Sale Deed executed by first defendant in favour of
second defendant in respect of Suit Property, proves the passing of sale
consideration under Ex-B.2. There was no Suit alive as on the date of
purchase. Hence, the second defendant is a bona fide purchaser for value
without notice.
11.2. He would further argue that the second defendant is in
possession and enjoyment of the Suit Property pursuant to Ex-B.2 – Sale
Deed. Second defendant, being a bona fide purchaser of the entire of Suit
Property, is entitled to take all the defence available to the first defendant.
The Trial Court without considering the evidence available on record,
decreed the Suit as prayed for. The First Appellate Court, rightly
concluded that the plaintiff is not ready and willing to perform his part of
the contract and rightly dismissed the Suit. There is no warrant to interfere
with the same. Accordingly, he would pray to dismiss the Second Appeal,
and confirm the Judgment and Decree of First Appellate Court.
11.3. In support of the arguments urged, the following
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authorities have been accited:
(i) Vijaya Bharathi’s Case - Judgment of Hon'ble Supreme Court
in Vijaya Bharathi -vs- P.Savitri, reported in 2017 SCC OnLine
SC 938;
(ii) A.K.Muthusamy’s Case - Judgment of this Court in
A.K.Muthusamy Gounder -vs- Selvakumar, reported in 2019
SCC OnLine Mad 10633.
12. Mr.K.Mohan, learned Counsel for the second respondent/
first defendant would argue along the lines of the learned Counsel for the
first respondent / second defendant.
DISCUSSION:
13. This Court has heard on either side and perused the entire
materials available on record.
14. The Trial Court as well as the First Appellate Court
concurrently held that Ex-A.1 – Suit Sale Agreement is true and valid.
The Trial Court held that the plaintiff was ready and willing to perform
his part of the contract and the second defendant is not a bona fide
purchaser with value and without notice. The second defendant alone
preferred an appeal against the Judgment and Decree of the Trial Court.
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Upon appeal, the First Appellate Court held that the plaintiff failed to
deposit the balance sale consideration of Rs.1,00,000/- despite the Order
of the Trial Court made in I.A. No.11 of 2008 and concluded that the
plaintiff is not ready and willing to perform his part of the contract.
15. Mr.T.N.Rajagopalan would stress on the point that the
plea of readiness and willingness is not available to second defendant;
that first defendant did not take a plea regarding the plaintiff’s readiness
and willingness as well as regarding his wherewithal; and that in such a
scenario, the First Appellate Court ought not to have assumed such a plea
and ruled that the plaintiff is not ready and willing, especially when first
defendant did not prefer an appeal before the First Appellate Court at all.
Further, he would submit that there is sufficient pleadings to infer
readiness and willingness of the plaintiff; that inadvertent omission of the
plaintiff to deposit the balance sale consideration as ordered by the Trial
Court in I.A. No.11 of 2008 does not mean that the plaintiff is not ready
and willing; and that, at best, it can only be used to vacate the interim-
injunction granted in favour of the plaintiff and against the first
defendant.
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16. As regards the question as to whether the plea of
readiness and willingness is available to the subsequent purchaser, the
Hon'ble Supreme Court in Jugraj Singh -vs- Labh Singh, reported in
(1995) 2 SCC 31, held that the plea in defence qua lack of readiness and
willingness was personal to the vendor and not available to the
subsequent purchasers. However, a larger bench (3 Judge bench) of
Hon'ble Supreme Court in Ram Awadh -vs- Acchaibar Dubey, reported in
(2000) 2 SCC 428 differed with Jugraj Singh’s Case. The relevant
portion of the Judgment in Ram Awadh’s Case is as hereunder:
“6. The obligation imposed by Section 16 is upon
the court not to grant specific performance to a plaintiff
who has not met the requirements of clauses (a), (b) and
(c) thereof. A court may not, therefore, grant to a plaintiff
who has failed to aver and to prove that he has performed
or has always been ready and willing to perform his part
of the agreement the specific performance whereof he
seeks. There is, therefore, no question of the plea being
available to one defendant and not to another. It is open
to any defendant to contend and establish that he
mandatory requirement of Section 16(c) has not been
complied with and it is for the court to determine whether
it has or has not been complied with and, depending upon
its conclusion, decree or decline to decree the suit. We are
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of the view that the decision in Jugraj Singh case [(1995)
2 SCC 31] is erroneous.”
17. Subsequently, a co-ordinate bench of the Hon'ble
Supreme Court affirmed the above view of Ram Awadh’s Case in
Kadupugotla Varalakshmi -vs- Vudagiri Venkara Rao reported in 2021
SCC Online SC 365. Further, a two-judge bench of Hon'ble Supreme
Court in Vijaya Bharathi’s Case (cited supra), has also followed the view
in Ram Awadh’s Case qua the plea of readiness and willingness.
18. Thus, the law is clear that a subsequent purchaser is
entitled to take the plea of readiness and willingness available to the
vendor.
19. Coming to the case on hand, Ex-A.1 – Suit Sale
Agreement was executed on November 14, 2007. The period of
performance was agreed to be nine months, which means the Sale Deed
was to be executed on or before August 14, 2008. According to the
plaintiff, the first defendant attempted to alienate the Suit Property and
hence, he filed the Suit on February 6, 2008, after issuing the legal notice
dated January 25, 2008 which went unanswered. Considering the facts
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and circumstances of this case, the Trial Court held that the Suit is not
pre-mature. The said finding is not assailed by the defendants and hence,
the said aspect need not be delved into by this Court.
20. The Suit was dismissed for default on September 4, 2008
and soon thereafter, on September 10, 2008, the plaintiff filed an
Interlocutory Application before the Trial Court seeking to restore the
Original Suit, which was later numbered as I.A. No.24 of 2009 and
allowed on August 31, 2009 thereby restoring the Original Suit.
Thereafter, the plaintiff filed Interlocutory Application before the Trial
Court in I.A. No.304 of 2009 under Order I Rule 10 (2) of Code of Civil
Procedure, 1908 seeking to implead the second defendant and the same
was allowed on September 13, 2012. Accordingly, the second defendant
was impleaded in the Original Suit.
21. The stand of second defendant is that only upon finding
from records that the Original Suit was dismissed for default on
September 4, 2008, the second defendant purchased the Suit Property
from the first defendant on September 22, 2008 for Rs.6,00,000/-. As on
the date of purchase, the Suit was not alive. Hence, he is bona fide
purchaser for value without notice.
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22. That being his stand, the plaintiff has 30 days time under
Article 122 of the Limitation Act, 1963 for filing a petition under Order
IX Rule 9 of the Code of Civil Procedure, 1908 seeking to set aside the
dismissal Order. In this case, the plaintiff had filed the petition under
Order IX Rule 9 on September 10, 2008 itself, after giving notice to first
defendant. Shortly thereafter, on September 22, 2008, the second
defendant purchased the Suit Property from the first defendant. The said
petition was later numbered as I.A. No.24 of 2009 and allowed on August
31, 2009. Though it was allowed a year later, it relates back to the date of
filing of the petition, that is to say, for all practical purposes, the Suit is
deemed to be restored on the date of filing of the petition i.e., September
10, 2008 itself. Thus, it cannot be said that there was no Suit alive on the
date of purchase of the Suit Property by the second defendant viz.,
September 22, 2008. Therefore, the second defendant is a pendente lite
purchaser [See Paragraph No.24 of A.K.Muthusamy’s Case (cited
supra)].
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23. Now the question is whether the pendente lite purchaser
is entitled to take the plea of readiness and willingness. The Hon'ble
Supreme Court in Thomson Press (India) Ltd. -vs- Nanak Builders &
Investors (P) Ltd., reported in (2013) 5 SCC 397, has held thus:
“57. To sum up:
57.1. The appellant is not a bona fide purchaser and
is, therefore, not protected against specific performance
of the contract between the plaintiffs and the defendant
owners in the suit.
57.2. The transfer in favour of the appellant
pendente lite is effective in transferring title to the
appellant but such title shall remain subservient to the
rights of the plaintiff in the suit and subject to any
direction which the Court may eventually pass therein.
57.3. Since the appellant has purchased the entire
estate that forms the subject-matter of the suit, the
appellant is entitled to be added as a party-defendant to
the suit.
57.4. The appellant shall as a result of his addition
raise and pursue only such defences as were available
and taken by the original defendants and none other.”
24. This Court in V.Dhanasekaran -vs- A.Krishnamurthy
[Common Judgment dated 02.02.2023 made in A.S. Nos.355 & 356 of
2014], referring to Thomson Press (India) Ltd’s Case (cited supra) as
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well as a few other decisions of the Hon'ble Supreme Court, namely
Khemchand Shankar Choudhari -vs- Vishnu Hari Patil reported in
(1983) 1 SCC 18, Amit Kumar Shaw -vs- Farida Khatoon reported in
(2005) 11 SCC 403 and Guruswamy Nadar -vs- Lakshmi Ammal [Dead]
through LRs reported in (2008) 5 SCC 796, has held thus:
“54.In view of the above discussions and the
judgments cited [supra], this Court is of the view that the
appellants are not entitled to invoke Section 19 of the
Specific Relief Act and cannot contend that the Agreement
cannot be enforced as against them on the ground that
they had purchased the property for value without notice
of the original contract. However, the appellants
[pendente lite purchaser] are entitled to canvas all the
points in defence that are available to defendants 1 to 6.”
25. Thus, it is clear that a pendente lite purchaser is not
entitled to seek protection under Section 19 (b) of the Specific Relief Act,
1963 that he is a bona fide purchaser for value without notice, in contrast
to a subsequent purchaser who is entitled to take such a plea as stated
supra. However, there is no legal bar against a pendente lite purchaser
taking all the defence available to the vendor, including that of readiness
and willingness. Needless to mention that a Sale pending Suit is neither
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illegal nor void-ab-initio but remains subject to the rights finally
determined by the Court.
26. Now that the plea of readiness and willingness is
available to the second defendant, the next question is, in the absence of
specific plea on the side of the defendants in their written statements,
whether the First Appellate Court was right in deciding the question as to
readiness and willingness of the plaintiff. It is settled law that even in the
absence of specific plea by the defendant, it is the duty of the plaintiff to
prove his readiness and willingness to perform his part of the contract
[See J.P. Builders -vs- A.Ramdas Rao, reported in (2011) 1 SCC 429], for
the plea of readiness and willingness is a statutory mandate under Section
16 of the Specific Relief Act, 1963. It is apposite to mention here that Ex-
A.1 - Suit Sale Agreement is dated November 14, 2007 i.e., prior to the
commencement of the Specific Relief (Amendment) Act, 2018. Leaving
aside the question as to whether the said amendment is retrospective or
prospective in operation, the said amendment dispenses only with the
pleadings of readiness and willingness and not proof thereof. Hence, the
plaintiff is to prove that he is always ready and willing to perform the
essential terms of the contract not only during the period performance but
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till the conclusion of Suit proceedings. Hence, the First Appellate Court
was right in considering the point as to whether the plaintiff was ready
and willing to perform his part of the contract, even in the absence of the
defendants’ plea in this regard.
27. In this case, Ex-A.1 – Suit Sale Agreement contains an
express term / recital that if the first defendant fails to honour the terms
of Ex-A.1, the plaintiff shall approach the Court, deposit the balance sale
consideration and get the Sale Deed executed through process of Court.
Relevant portion of Ex-A.1 reads thus:
' . . . bt';fl;uhkd;-1 . . .S. rptuhkfpU#;zd;-2
ek;kpy; 1yf;f egh; jahuhf ,Ue;J 2yf;f
egh; jtwpdhy; kPjpj;Jifia nfhh;l;oy;
brYj;jp fl;lhak; gjpt[ bra;J
bfhs;sntz;oaJ. fPH;fz;l brhj;J ek;kpy;
2 yf;fegh; RthjPdj;jpy; cs;sJ. ,e;jg;gof;F
ehk; ,UtUk; rk;kjpj;J vGjpf; bfhz;l
fhypkid tpf;fpiua mf;hpbkd;l.; '
28. It is on record that Trial Court in its Order passed in I.A.
No.11 of 2008, directed the plaintiff to deposit the balance sale
consideration into the Court on or before March 6, 2008. While so,
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despite the specific recitals contained in Ex-A.1 and despite the Order of
the Trial Court, the plaintiff did not deposit the balance sale consideration
until the passing of Preliminary Decree by the Trial Court. In general, the
plaintiff need not tender or deposit the balance sale consideration, but
when there is an express term is contained in Ex-A.1 that the plaintiff
shall deposit the balance sale consideration before the Court as stated
above, the plaintiff ought to have deposited the balance sale consideration
following the terms of Ex-A.1. He failed to do so, even when the Trial
Court directed him to deposit the balance sale consideration in I.A. No.11
of 2008. Though the said direction was passed in an Interlocutory
Application filed by the plaintiff seeking an interim injunction against the
first defendant not to alienate the Suit Property, the Trial Court would
have issued the same only after perusing the plaint and plaint documents,
and considering the cumulative facts and circumstances of the case. In
such a scenario, the plaintiff cannot contend that at its best, violation of
the direction to deposit the balance sale consideration in the said
Interlocutory Application, can only vacate the interim injunction granted
in favour of plaintiff.
29. Both the Courts concurrently held that Ex-A.1 is true and
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valid and that the first defendant failed to prove that he returned the
advance money. In this case, the plaintiff has not sought for the relief of
advance amount. Normally, the Courts cannot grant the relief of return of
advance money while refusing the relief of specific performance, unless
specifically claimed, in view of Section 22 of the Specific Relief Act,
1963. However, the first defendant has expressly averred in his written
statement that if at all the Court concludes that the first defendant did not
return the alleged advance amount, the first defendant is ready to return
Rs.2,00,000/-. Considering the same, in the interest of justice and also
with a view to avoid multiplicity of proceedings, this Court is inclined to
direct the first defendant to pay Rs.2,00,000/- to the plaintiff along with
9% interest from the date of plaint till realisation. Further, a charge is
created on the Suit Property to enable the plaintiff to realise the said
amount and interest.
30. Therefore, the First Appellate Court was right in
concluding that the plaintiff is not ready and willing to perform his part of
the contract as contemplated under Section 16 (c) of the Specific Relief
Act, 1963 and hence, the plaintiff is not entitled to the relief of specific
performance. As stated supra, the second defendant is a pendente lite
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purchaser and thus, cannot take the plea of bona fide purchaser for value
without notice. The First Appellate Court is also right in not delving into
the said aspect, as the said plea was not available to second defendant at
all.
31. The plaintiff who impleaded the second defendant in the
Original Suit could have impleaded him in the execution petition as well.
Though the Decree does not mandate him to do so, had he done
impleaded the second defendant, the second defendant would have got
notice of the execution proceedings and would have represented that he
had filed appeal before the First Appellate Court as well as an
Interlocutory Application in the said appeal seeking stay of the Trial
Court’s Judgment and Decree, and consequently, the plaintiff could have
avoided the expenses incurred in executing Sale Deed in his favour
through the process of Court.
32. As regards the Substantial Questions of Law, the First
Appellate Court has not delved into the question as to whether the second
defendant is a bona fide purchaser or not, and hence the said Substantial
Questions of Law does not arise at all.
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33. It appears from the perusal of records that the plaintiff
had deposited before the Trial Court the balance sale consideration of
Rs.1,00,000/-. If it is so, the plaintiff is entitled to take back the said
amount along with the interest accrued thereon, if any.
CONCLUSION:
34. Resultantly, the Second Appeal stands partly allowed and
the Judgment and Decree of the First Appellate Court is partly modified
by directing the first defendant to pay the plaintiff Rs.2,00,000/- along
with 9% interest from the date of plaint till realisation and by creating a
charge on the Suit Property for the realisation of the aforesaid amount and
interest. Keeping in mind the facts and circumstances of the case, there
shall be no order as to costs. Connected Civil Miscellaneous Petition shall
be closed.
01 / 07 / 2025
Index : Yes
Speaking Order : Yes
Neutral Citation : Yes
TK
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To
1.The Additional District Judge
(Fast Track Court)
Arani,
Tiruvannamalai District.
2.The Subordinate Judge
Subordinate Court
Arani.
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R. SAKTHIVEL, J.
TK
PRE-DELIVERY JUDGMENT MADE IN
S.A.NO.167 OF 2020
01 / 07 / 2025
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