Madras High Court
Govindan vs Vanaja (Died) on 21 March, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1 A.S.(MD)NO.288 OF 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 21.03.2025
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
AND
THE HON'BLE MR.JUSTICE M.JOTHIRAMAN
A.S.(MD)No.288 of 2023 AND
C.M.P.(MD)No.15482 of 2023
Govindan ... Appellant / Plaintiff
Vs.
Vanaja (died)
1. Chandru
2. Karthick
3. Suganthi
4. Santhi
5. Vasanthi
6. K.K.Balaji
(R-6 for himself and as power agent
of other respondents.) ... Respondents /Defendants 2 to 7
Prayer: Appeal suit filed under Section 96 CPC., to set aside the
decree and judgment dated 31.03.2023 passed in the suit in O.S.No.1
of 2013 on the file of IV Additional District Court, Madurai and allow
the appeal with costs throughout.
For Appellant : Mr.J.Barathan,
for M/s.T.R.Jeyapalam.
For R-1 & R-6 : Mr.S.C.Herold Singh
***
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2 A.S.(MD)NO.288 OF 2023
JUDGMENT
(Order of the Court was delivered by G.R.SWAMINATHAN, J.)
Govindan, appellant herein filed O.S.No.1 of 2013 on the file of
the IV Additional District Court, Madurai for specific performance.
2. The suit property admittedly belonged to defendants 1 to 7.
During the pendency of the suit, the first defendant passed away. But
the other defendants are the legal heirs.
3. Defendants 1 to 6 had executed a power of attorney in favour
of the seventh defendant K.K.Balaji to deal with the suit property. The
plaintiff and the seventh defendant Balaji entered into a sale
agreement dated 22.07.2011 (Ex.A.1). As per the terms of the sale
agreement, sale consideration was fixed at Rs.97 Lakhs. A sum of
Rs.27 Lakhs was paid upfront to the seventh defendant. The seventh
defendant received the same on his behalf and on behalf of the other
defendants. The sale transaction was to have been concluded within
three months. According to the defendants, the plaintiff was not
ready and willing to conclude the sale transaction within the said
period. In these circumstances, the aforesaid suit came to be
instituted.
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4. The learned trial Judge framed relevant issues. The plaintiff
examined himself as P.W.1 and Thomas Daniel Balakumar was
examined as P.W.2. Ex.P.1 to Ex.P.16 were marked. The seventh
defendant examined himself as D.W.1 and Pitchaipandi was examined
as D.W.2. Ex.B.1 to Ex.B.5 were marked. After considering the
evidence on record, the trial Court came to the conclusion that the
plaintiff did not prove his readiness and willingness and hence,
denied the relief of specific performance. The suit came to be
dismissed vide judgment and decree dated 31.03.2023. Challenging
the same, this appeal suit came to be filed.
5. Even though the trial Court had given a categorical finding
that the defendants had not returned the advance amount to the
plaintiff, it did not order refund. Because there was no prayer to that
effect.
6. To make good the said lacuna in this appeal, the appellant
filed C.M.P.(MD)No.17504 of 2023 for including the prayer for refund
of the advance amount. This CMP was allowed by us on 25.02.2025.
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7. The learned counsel for the appellant made it clear that he
would not insist on the primary relief of specific performance and
that the appellant would be satisfied, if the alternative relief of
refund of the advance amount is ordered.
8. When once the primary relief of specific performance is
denied, in normal circumstances, the decree for refund of the
advance amount ought to be made. In the case on hand, the
defendants had taken a plea that after admitting that they had
received a sum of Rs.27 Lakhs and took a plea that it was returned to
one auditor by name Balakumar who had been authorised to receive
the same. The plaintiff not only denied having authorised Balakumar
and he received the advance amount also. He contended that this plea
was false. In other words, the plaintiff argued that the defendants
never made any payment to Balakumar. Balakumar was examined as
P.W.2. After considering the entire evidence on record, the learned
Judge gave a categorical finding that the plaintiff did not take back
the amount of Rs.27 Lakhs.
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9. After a careful consideration of the evidence on record, we
are of the view that this finding is well justified.
10. The learned counsel for the respondents contended that in
Ex.A1 sale agreement, there is forfeiture clause. This contention
cannot be accepted for the simple reason that in view of the statutory
mandate set out in Section 74 of the Indian Contract Act, 1872, if a
party to a contract had breached the terms of the contract, then he
would be liable to pay compensation to the aforesaid period for the
loss suffered by the opposite party. But then, in this case the
defendants have not established that as a result of breach in contract
by the plaintiff, they had sustained loss. This clause is in terrorem.
11. The ground floor portion is with the tenants. The appellant
as well as the sixth respondent independently filed eviction
proceedings against the tenants. The appellant admitted that he is in
possession of the remaining property. The appellant is directed to
hand over possession to the sixth respondent within a period of two
months from today.
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12. We are of the view that no exception can be taken to the
prayer for refund. Therefore, even while sustaining the denial of the
primary relief of specific performance, we direct the respondents to
return the advance amount of Rs.27 Lakhs to the plaintiff / appellant.
The respondents are directed to return the same within a period of
three months from today. If the respondents fail to do so, they will
have to pay the interest @ 12% p.a. from the said date. Since we have
already given a direction for refund of the advance amount, there will
be charge on the suit property till the advance amount is refunded
with interest as directed by us. The appellant is at liberty to present
this judgment and decree for registration before the jurisdictional
registering authority. This appeal suit is allowed. No costs.
Consequently, connected miscellaneous petition is closed.
(G.R.SWAMINATHAN, J.) & (M.JOTHIRAMAN, J.)
21st March 2025
NCC : Yes / No
Index : Yes / No
Internet : Yes/ No
PMU/IAS
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To:
1. The IV Additional District Judge,
Madurai.
2. The Record Keeper,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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G.R.SWAMINATHAN,J.
AND
M.JOTHIRAMAN, J.
PMU/IAS
21.03.2025
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