Madras High Court
Mr. Abhay Kumar Singhvi vs Mr.A.Mohammed Zackiullah on 12 March, 2025
C.S.No.768 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12 .03.2025
CORAM
THE HONOURABLE MR JUSTICE A.A.NAKKIRAN
C.S.No.768 of 2016
Mr. Abhay Kumar Singhvi
.... Plaintiff
Vs
1. Mr.A.Mohammed Zackiullah
2. Mrs.Dure Naz
3. Mr.Shashi Gupta ... Respondents
Prayer: Plaint filed under Order VII, Rule 1 of CPC r/w.Order IV, Rule 1 of
Original Side Rules praying for :
(a) directing the defendants 1 and 2 to perform the agreement of sale
dated 02.09.2013 registered as Document No.1976/2013 and to do all such
acts, deeds and things as may be necessary to convey and assure the properties
more particularly set out in the schedule – C hereunder by a deed of
conveyance in favour of the plaintiff by sale deeds, the cost of which shall be
borne by the Plaintiff within a time fixed by this Court:
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C.S.No.768 of 2016
(b) upon failure of the defendants 1 and 2 to execute the sale deed for
the suit schedule-C property this Court may be pleased to execute the sale
deed for the suit schedule – C property in favour of the plaintiff;
(c) declaring the Release Deed dated 07.04.2016 executed by 2nd
defendant to and in favour of the 1st defendant, vide registered as document
No.1218 of 2016 with S.R.O. Periamet as null and void and
(d) declaring the Mortgage Deed dated 07.04.2016 executed by the 1st
defendant to and in favour of 3rd defendant, vide registered as document
No.1219/2016 with S.R.O. Periamet as null and void;
(e) Permanent injunction restraining the defendants 1 to 3, their men,
agents, servants or any one authorised by them from in any way dealing or
encumbering or alienating or changing the nature of the suit schedule-C
property;
(f) to pay the costs of the suit and (g) such further or other reliefs.
For Plaintiff : Mr.S.Ramesh Kumar
For Defendants : Mr.R.Jayaprakash for D1
D2- exparte
D3 – H. Prosper
*****
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C.S.No.768 of 2016
JUDGMENT
The Plaintiff filed the above suit against the defendants seeking the
above said reliefs.
2. The case of the plaintiff, as set out in the plaint is as follows;
(a) The defendants 1 and 2 are the owners of rear side entire first floor
built up area measuring 2000 sq.ft.,together with 783 sq.ft., of undivided land
right and the entire second floor open terrace together with 783 sq.ft., totalling
1566 sq.ft. of undivided land in the land measuring one ground 2083 sq.ft.
situate in the premises bearing Old D.No.177/1-2, Sydenhams Road, Periamet,
Chennai which is mentioned as A schedule property in the suit.
(b) The plaintiff has entered a sale agreement with the defendants 1 and
2 in respect of A schedule property for a total sale consideration of
Rs.1,11,00,000/- and as an advance, the plaintiff paid Rs.20,00,000/- on
02.09.2013 to the 1st defendant. The sale agreement was registered as
document No.1976 of 2013 before the Sub Registrar Office, Periamet with the
1st defendant. Since the defendants demanded higher amount, the sale deed
was executed for a total sale consideration of Rs.1,68,99,000/- on 04.12.2013
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and as per the sale agreement, the defendants 1 and 2 sold the rear side entire
first floor built up area measuring 1200 sq.ft. together with 783 sq.ft. of
undivided land right and the entire second floor open terrace together with
783 sq.ft. totalling 1566 sq.ft. of undivided land right in the total land
measuring one ground 2083 sq.ft. described as B schedule property. Though
the entire sale consideration was paid for 2000 sq.ft of built up area to the
defendants 1 and 2, at the time of typing of sale deed, the built up area was
typed as 2000 sq.ft, but subsequently the same was altered as 1200 sq.ft.
While being so, the 2nd defendant illegally released 1/6th undivided share of
rear side First floor built up area measuring 800 sq.ft. together with 704.13
sq.ft. of undivided land right in the total 2083 sq.ft. mentioned as C schedule
property in the suit in favour of the 1 st defendant under Release Deed dated
07.04.2016 and on the same day, the 1st defendant mortgaged the said
property in favour of 3rd defendant by a registered Mortgage Deed dated
07.04.2016. As per clause 4 of the sale agreement, it is agreed between the
parties that the defendants shall hand over the vacant portion of the first floor
rear side portion of the schedule mentioned property and after execution of
registered sale agreement, the 1st and 2nd defendants handed over the entire A
schedule property to the plaintiff. However, after execution of Release Deed
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by 2nd defendant in favour of 1st defendant, the 1st defendant became the
owner of 800 sq.ft. (C schedule property). As per the sale agreement, the 1st
defendant has to transfer the said 800 sq.ft. of superstructure in favour of the
plaintiff herein. Therefore, the plaintiff issued legal notice on 29.06.2016, but
the same was returned 'unclaimed'.
(c) When the plaintiff had paid the entire sale consideration for the A
schedule property and there is no due of amount towards A schedule property,
the defendants 1 and 2 only have committed breach of contract by releasing
the C schedule property in favour of 2nd defendant and mortgaging the same in
favour of 3rd defendant. Thus, according to plaintiff, the acts of the
defendants 1 and 2 are highly illegal. Hence the plaintiff filed the present suit
for specific performance praying to direct the defendants 1 and 2 to perform
the agreement of sale dated 02.09.2013 by conveying the C schedule property
measuring 800 sq.ft. in favour of plaintiff by a Deed of Conveyance and for
such other reliefs as stated above.
3. The case of the 1st Defendant, as set out, in the Written Statement, is
as follows:-
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(i) The defendants 1 and 2 who are the absolute joint owners of the A
schedule property, offered the same for a sale consideration of
Rs.1,11,00,000/-, but during the relevant point of time, the 2nd defendant who
was residing abroad, did not consent for the sale of her share in the A schedule
property, since the sale consideration fixed is much lesser than the actual
market price, therefore, the deal was re-negotiated and after the arrival of 2 nd
defendant, the sale consideration was revised and fixed at Rs.1,68,00,000/-.
But as the plaintiff had paid only Rs.1,11,00,000/- and failed to pay the
remaining sum of Rs.57,00,000/-, the sale deed was executed only in respect
of 1200 sq.ft. of built up area in the 1st floor area and not for the entire first
floor built up area of 2000 sq.ft. On the date of registration of sale deed, on
negotiation, the plaintiff agreed to pay the balance sale consideration of
Rs.57,00,000/- within short period of time and got the sale deed corrected
through a deed of Rectification, for which the defendants have also agreed and
signed. Thus, after mutual negotiations and on his own accord, the plaintiff
has mentioned the extent as '1200 sq.ft. of built up area' in the sale deed and
agreed to get the deed of rectification on payment of the balance sale
consideration of Rs.57,00,000/-. Whereas the entire sale consideration of
Rs.1,68,00,000/- was not paid and the balance sum of Rs.57,00,000/- is still
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due towards part of the sale consideration, the possession in respect of 1200
sq.ft. only was handed over to the plaintiff and the remaining 800 sq.ft. built
up portion of the first floor was kept under the custody of the 1st defendant.
The very fact that the plaintiff had only paid Rs.1,11,00,000/- towards part
payment of the entire sale consideration of Rs.1,68,00,000/- and still he has to
pay Rs.57,00,000/- towards balance sale consideration is also recorded in
writing during the mediation held before this court and the same was also
signed by the plaintiff and his counsel. As the plaintiff has purchased only
1200 sq.ft. of first floor, he has no right or authority to question the execution
of the Release Deed and the mortgage transaction in respect of the property
owned by 1st and 2nd defendants. Though the plaintiff orally agreed to make
arrangements for payment of balance sale consideration, registration of
rectification deed and to withdraw the legal notice, without doing so, he
clandestinely filed the present suit with false and baseless allegations,
therefore, the defendants should be compensated for the inordinate delay of
more than 11 years in payment of balance sale consideration of
Rs.57,00,000/- from the date of registration of sale deed till the date of
realisation. The suit agreement was dated 02.09.2013 and the legal notice was
issued on 29.06.2016, this alone shows the flaws and falsehood in the case of
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the plaintiff. The plaintiff is not ready and willing to perform his part of the
agreement to purchase the remaining portion, hence, he is not entitled for the
discretionary relief of performance, hence the suit is liable to be dismissed
with exemplary costs.
4. The case of the 3rd Defendant, as set out, in the Written Statement, is
as follows:-
i).The 3rd defendant has filed the written statement stating that the 1st
defendant represented himself as absolute owner of C schedule property, by
acquiring the same by Release Deed dated 07.04.2016 and believing the words
of the 1st defendant, he lent a huge amount as loan to him on executing a
mortgage deed in respect of C schedule property and with other property. The
burden of proof lies on the plaintiff to show that the agreement of sale was
executed in respect of 2000 sq.ft. including C schedule property. The
mortgage in respect of C schedule property for valuable consideration is
legally enforceable and bonafide. The plaintiff, with ulterior motive to usurp
the entire property has stated that he has paid the entire sale consideration for
this 800 sq.ft. Therefore, the simple mortgage created by the 1st defendant in
favour of the 3rd defendant is valid and binding upon the defendants and the
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plaintiff. The plaintiff has come with soil hands and has obtained an exparte
order of injunction by fraudulent representation, hence he is not entitled to
enjoy the benefit of injunction. There is no prima facie case in favour of
plaintiff and the balance of convenience lies only in favour of the defendant.
5. Heard both sides and perused the materials available on record.
Though service is complete on 2nd defendant, he has not appeared either in
person or through counsel, hence, he was set exparte on 25.11.2024.
6. Upon hearing and perusing the pleadings, this Court on 06.10.2020 has
framed the following issues for trial.
1. Whether the plaintiff is entitled to seek a relief for
specific performance as enumerated in the Sale
Agreement dated 02.09.2013?
2. Whether the plaintiff is always ready and willing to
perform his part of the contract?
3. Whether the plaintiff is entitled for declaration
declaring that the Mortgage Deed dated 07.04.2016 as
null and void?
4. To what other relief the plaintiff is entitled?.
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7. On 06.04.2022, this Court has framed the following additional issue
for consideration:
“Whether the plaintiff is entitled for declaring that
the Release Deed dated 07.04.2006 as null and void?”
8. On the side of the Plaintiff, PW1 was examined and exhibits Ex.P.1
to Ex.P.24 were marked and on the side of the defendants, DW1 was
examined and no exhibits were marked.
Issue Nos. 1,2 and 4:
9.The learned counsel for the plaintiff has submitted that the
plaintiff and the 1st defendant entered into sale agreement vide Ex.P16, for
1566 sq.ft undivided share of land together with entire 1st floor built up area
measuring about 2000 sq.ft and the entire 2nd floor open terrace, for total sale
consideration of Rs.1,11,00,000/-. In the meanwhile, the sale consideration
was sought for Rs.1,68,00,000/- for the said suit property due to demand of
extra amount of Rs.58,00,000/- from the 2nd defendant herein. Accepting the
same, the plaintiff had paid total sale consideration of Rs.1,68,00,000/-.
Thereafter, the defendants 1 and 2 have jointly sold the said suit property, but
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at the time of registering the sale deed, the 1st defendant had made correction
the sq.ft in the sale deed as 1200 sq.ft, leaving the remaining area 800 sq.ft.
Vide Ex.P17.
10. It has been further submitted that after selling the said suit
property along with the share of the 2nd defendant, the 2nd defendant
fraudulently without any right, illegally, executed Release Deed dated
07.04.2016 vide Ex.P18 in favour of her brother ie. 1st defendant herein.
Subsequently, the 1st defendant had mortgaged the same to the tune of Rs.30
Lakh vide Ex.P19, without showing any details of payment for the purpose of
the case. After the 2nd defendant executed the Ex.P17 selling her share, along
with her brother, the 2nd defendant has no right to release her share in favour
of the 1st defendant and the same has been mortgaged with the 3rd defendant
for Rs.30 Laks while the plaintiff is the original owner to that share. Hence,
the Ex.P18 and Ex.P19 are invalid documents to be treated as a null and void
Hence, he prays the releif as sought in the suit.
11.The learned counsel for the 1st defendant submitted that as the
plaintiff had paid only Rs.1,11,00,000/- out of 1,68,00,000/-, the sale deed was
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executed only in respect of 1200 sq.ft. of built up area in the 1st floor area and
not for the entire first floor built up area of 2000 sq.ft. On the date of
registration of sale deed, on negotiation, the plaintiff agreed to pay the balance
sale consideration of Rs.57,00,000/- within short period of time and however,
failed to pay the remaining amount.
12. It has been further submitted that the balance sale
consideration of Rs.57,00,000/- is also recorded in writing during the
mediation held before this court and the same was also signed by the plaintiff
and his counsel. As the plaintiff has purchased only 1200 sq.ft. of first floor,
he has no right or authority to question the execution of the Release Deed and
the mortgage transaction in respect of the property owned by 1st and 2nd
defendants. While considering the suit agreement was dated 02.09.2013, the
plaintiff has issued the legal notice on 29.06.2016. This alone shows the flaws
and falsehood in the case of the plaintiff. The plaintiff is not ready and willing
to perform his part of the agreement to purchase the remaining portion, hence,
he is not entitled for the discretionary relief of performance, hence the suit is
liable to be dismissed with exemplary costs.
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13. The learned counsel for the 3rd defendant submitted that the 1st
defendant represented himself as absolute owner of C schedule property, by
acquiring the same by Release Deed dated 07.04.2016 and believing the words
of the 1st defendant, he lent a huge amount as loan to him on executing a
mortgage deed in respect of C schedule property and with other property.
Therefore, the simple mortgage created by the 1st defendant in favour of the 3rd
defendant is valid and binding upon the defendants and the plaintiff. There is
no prima facie case in favour of plaintiff and the balance of convenience lies
only in favour of the defendants. Hence, the suit is liable to be dismissed.
14.On a perusal of the records, it is admitted fact that a sum of
Rs.1,68,00,000/- has been finalized as the sale consideration for the suit
schedule property to the extent of 2000 Sq.ft on the first floor together with
783 sq.ft of undivided land right and the entire 2nd floor open terrace together
with 783 Sq.ft totally 1566 Sq.ft of undivided land right in the total land
measuring about 1 ground 2083 Sq.ft despite the Sale Agreement Ex. P16
executed for a sale consideration of Rs.1,11,00,000/-. However, even though
the amount of Rs.1,68,00,000/- has been effected in the Sale Deed-Ex.P17, it
has been (corrected) mentioned only as 1200 Sq.ft. instead of 2000 Sq.ft. in
the extent of the suit schedule property.
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15. Under such circumstances, the plaintiff contends that even
though the plaintiff has paid the entire sale consideration of Rs.1,68,00,000/-
as negotiated with the defendants 1 and 2 to the extent of 2000 Sq.ft on the 1st
floor, the Ex.P17-Sale Deed, was not effected to the extent of 2000 Sq.ft and
the same was executed only to the extent of 1200 Sq.ft on the 1st floor, leaving
the extent of 800 Sq.ft. Per contra, 1st defendant contends that the plaintiff
failed to pay the balance sale consideration of Rs.57,00,000/- as agreed by
him, hence, the Ex.P17 was executed only to the extent of 1200 Sq.ft.
retaining the right over 800 Sq.ft on the 1st floor. Hence, the plaintiff has no
right to question the execution of Release Deed-Ex.P18 and Mortgage Deed-
Ex.P19.
16. The only dispute in this case whether the defendants 1 and 2 have
received the entire sale consideration of Rs.1,68,00,000/- or not as agreed with
the plaintiff. Despite it is denied for having received the amount of balance
sale consideration of Rs.57 Lakh on the side of the defendants, it is
clandestinely mentioned the factual facts of the case in Ex.P17-Sale Deed
itself in Para Nos.9 to 12 as follows:
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“WHEREAS the VENDORS decided to sell the schedule
mentioned property to the purchaser for a total sale consideration
of Rs.1,11,00,000/- and entered into the registered sale
agreement, subsequently, the Vendor has demanded the higher
amount and after negotiation, the Vendor agree to sell the
schedule mentioned property for a total sale consideration of
Rs.1,68,00,000/- (Rupees One crore Sixty eight lakhs only) free
from all encumbrances and the PURCHASER agreed to purchase
the same for a total sale consideration of Rs.1,68,00,000/-
(Rupees One crore Sixty eight lakhs only).
“NOW THIS DEED OF SALE WITNESSTH that in
pursuance of the aforesaid agreement and in consideration of
Rs.1,68,00,000/- (Rupees One Crore Sixty Eight Lakhs only) paid
by the PURCHASER to the VENDOR in the following manner:
1. A sum of Rs.20,00,000/- (Rupees Twenty Lakhs only)
by RTGS dated dated 02.09.2013, drawn on Union Bank of India,
A.N. Street Branch to Kotak Mahndra Bank, Nungambakkam
Branch, Chennai.
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2. A sum of Rs.30,00,000/- (Rupees Thirty Lakhs only) by
RTGS dated dated 10.10.2013, drawn on Union Bank of India,
A.N. Street Branch to Kotak Mahndra Bank, Nungambakkam
Branch, Chennai
3. A sum of Rs.20,00,000/- (Rupees Twenty Lakhs only)
by Demand Draft bearing No.691421, dated 03.12.2013, drawn
on Union Bank of India, A.N. Street Branch to Kotak Mahndra
Bank, Nungambakkam Branch, Chennai.
4. A sum of Rs.1,68,000/- towards TDS vide Challan Sr.
No.00749 dated 03.12.2013, at Central Bank of India, 0293-
VIKBOM VIKHROLI Branch, Chennai.
5. A sum of Rs.96,32,000/- by cash totalling a sum of
Rs.1,68,00,000/- (Rupees One Crore Sixty Eight Lakhs only).
The VENDORS do hereby admit, acknowledge the receipt
of the entire sale consideration of Rs.1,68,00,000/- (Rupees One
Crore Sixty Eight Lakhs only) and release the PURCHASER from
further payment, the VENDORS do hereby sell, grant, convey
and assign ......”
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17.In view of the above, it is crystal clear that the Ex.P17-Sale Deed
was executed after receiving the entire sale consideration of Rs.1,68,00,000/- .
If there is any discrepancy in the sale consideration, the defendants ought to
have denied to sign in the Sale Deed and corrected the discrepancy amount in
the Sale deed. But, the defendants have signed the Sale Deed acknowledging
the aforesaid amount as per terms mentioned therein. While being so, there is
no question of non payment of Rs.57,00,000/- out of Rs.1,68,00,000/-. Hence,
only the extent of the suit property has been corrected as 1200 Sq.ft instead of
2000 Sq.ft, it cannot be construed that the plaintiff failed to pay the balance
sale consideration of Rs.57,00,000/-. This is out of Sale agreement entered
between the plaintiff and the defendants mentioning the extent as 1200 Sq.ft
instead of 2000 Sq.ft on the first floor while there is no dispute on the
finalization of sale consideration for Rs.1,68,00,000/-. Further, the Defendants
1 and 2 have bounden duty to perform the contract of Sale Agreement as per
the terms and conditions therein. Despite the defendant contends that the
issue raised by the defendants have been admitted by the plaintiff in the
Mediation centre. However, it cannot be taken into consideration. Further, the
2nd defendant has not entered appearance and failed to put forth her defence.
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This creates suspicious circumstances. Hence, the plaintiff is entitled to seek a
relief for specific performance as enumerated in the Sale Agreement dated
02.09.2013. Accordingly Issue Nos.1 and 4 are answered.
18. On perusal of the deposition of D.W1, it is seen that in the event of
failure on the side of the plaintiff for non-payment of balance sale
consideration, in terms of the agreement, the defendants 1 and 2 ought to have
sent notice seeking the balance sale consideration. However, the defendants 1
and 2 have not sent any notice in this regard to the plaintiff. Whearas, the
plaintiff has issued notice Ex.P20 and no reply on the side of the defendants
while the 3rd defendant has received the same and it has been unclaimed on
other defendants. Further, since the plaintiff has proved that he has paid the
entire amount of Rs.1,68,00,000/-, the question of ready and willingness of the
plaintiff cannot be raised and the defendants have bounden duty to perform
their part of contract. Accordingly, issue No.2 is answered.
Issue No. 3 and Additional Issue No.1
19. Since the Issue No.1 and 2 are answered in favour of the plaintiff,
the Release Deed dated 07.04.2006 and Mortgage Deed dated 07.04.2006
shall stand become as null and void. Accordingly, Issue No.3 and additional
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issue No.1 are answered.
20. In the result, the suit is decreed as prayed for with cost.
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Index:Yes/No
Web:Yes/No
Speaking/Non Speaking
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Witnesses examined on the side of the plaintiffs and defendants:-
P.W.1. - Mr. Mahendar Kumar
D.W.1: Mr.A. Mohammed Zackiullah
List of exhibits on the side of the plaintiff:
S.No. Date Descriptions of Documents Exhibits
1. 05.07.2022 Authorisation letter Ex.P.1
2 11.09.1995 Certified copy of the sale deed Doc. No. Ex.P2
188/1996 executed by A.Mohammed
Niyamathulla to Esmail Pillai Salim.
3. 11.09.1995 Certified copy of sale deed under Doc. No. 189 / Ex.P.3
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S.No. Date Descriptions of Documents Exhibits
1996 executed by A.Mohammed Niyamathulla
to Sheeja Salim
4 10.08.2009 Certified copy of sale deed under Doc. No. Ex.P.4.
1394/ 2009 by Esmail Pillai Salim and Sheeja
Salim to Anil Kumar, dated 10.08.2009.
5 15.10.2012 Certified copy of Sale Deed under Doc. No. Ex.P.5
1986/ 2012 by Anil Kumar to Abhay Kumar
Singhvi, dated 15.10.2012.
6 09.11.1995 Certified copy of settlement deed in Doc. No. Ex.P.6
2121/1995 executed by A. Mohammed
Niyamathulla to Mohammed Zackiulla
7 21.02.2011 Certified copy of Sale Deed under Ex.P.7
Doc.No.362/2011 executed by Mohammed
Zaciullah to K.Anil Kumar
8 15.10.2012 Certified copy of the sale deed under Ex.P.8
Doc.No.1987/2012 executed by Anil Kumar
toAbhay Kumar Singhvi
9 27.08.1996 Certified copy of sale deed under in Ex.P.9
Doc.No.2080 of 1996 executed by
A.Mohammed Niyamathulla to Tara Devi,
10 27.08.1996 Certified copy of sale deed in Ex.P.10
Doc.No.2081/1996 executed by A.Mohammed
Niyamathulla to Tara Devi
11 16.04.1998 Certified copy of sale deed under Doc. No. Ex.P.11
1064/1998 executed by A. Mohammed
Niyamathulla to B.A.K.Syed Durabuthin and
another
12 22.04.2013 Certified copy of sale deed under Ex.P.12
Doc.No.909/2013 executed by B.A.K.Syed
Durabuthin and another to Abhay Kumar
Singhvi,
13 16.04.1998 Certified copy of sale deed in Doc.No.1065 of Ex.P.13
1998 executed by A.mohammed Niyamathulla
to Muhammed Abdul Malick,
14 18.10.2013 Certified copy of sale deed under Ex.P.14
Doc.No.2333/2013 executed by Muhammed
Abdul Malick to Abhay Kumar Singhvi
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S.No. Date Descriptions of Documents Exhibits
15 09.08.2010 Certified copy of Release Deed under Ex.P.15
Doc.No.1620/2010 executed by Mallika Begum
and others to Mohammed Zackiullah
16 02.09.2013 The Photocopy of sale agreement in Ex.P.16
Doc.No.1976/2013 executed between plaintiff
and defendant 1 and 2 dated 02.09.2013
(compared with original)
17 04.12.2013 Certified copy of sale deed document Ex.P.17
No.2688/2013 executed by defendants 1 and 2
in favour of the plaintiff
18 07.04.2016 The certified copy of the Release Deed Ex.P.18
DocNo.1218/2016 executed by 2nd defendant in
fvour of 1st defendant
19 07.04.2016 The certified copy of the Mortgage Deed Ex.P.19
Doc.No.1219/2016 executed by 1st defendant in
favour of 3rd defendant
20 29.06.2016 The office copy of the Legal Notice issued to Ex.P.-20
the defendants with postal receipts
21 02.07.2016 The original postal acknowledgment card for Ex.P.-21
receipt of legal notice by the 3rd defendant
22 13.07.2016 The Original unclaimed return cover by the 1st Ex.P.-22
defendant
23 14.07.2016 The original unclaimed return cover by the 2nd Ex.P-23
defendant
24 Encumbrance Certificate Ex.P.24
There is no exhibits marked on the side of the defendants.
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A.A.NAKKIRAN, J.
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CS NO.768 OF 2016
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12.03.2025
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