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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. VENUGOPAL
Rasammal (Died) and Others
Versus
Pauline Edwin and Others
A.S. No. 166 of 2001 and C.M.P. No. 631 of 2009
Decided On :Decided on : 22-07-2010
The Court held that the appellants were not entitled to the relief of specific performance as against the respondents. However, the Court directed the 1st respondent to return the advance amount of ₹ 2,00,000/- received from Nanjappa to the appellants/plaintiffs herein together with interest at the rate of 6% per annum from the date of filing of the suit till date of payment within two months from the date of receipt of copy of the judgment.
Fact of the Case:
The appellants/plaintiffs filed a suit for specific performance and permanent injunction against the respondents/defendants in respect of the suit property. The trial Court, in its judgment in O.S. No. 183 of 1995 dated 22.12.2000, dismissed the suit without costs but directed the first defendant to pay a sum of ₹ 2,00,000/-received as advance to the plaintiffs within two months from the date of Judgment and in case of default, to pay an interest of 6% per anuum from the date of Decree till date of payment.
Finding of the Court:
The Court found that the appellants/plaintiffs had not made out a case so as to enable a Court of Law to exercise its discretion in their favour and grant the relief of specific performance. The Court also found that the 2nd respondent/2nd defendant was a subsequent purchaser and if the plaintiffs having regard to the conduct are not entitled to the relief, the misconduct of the defendants cannot result in plaintiffs being entitled to such reliefs.
Issues: Whether the appellants/plaintiffs are entitled to claim the relief of specific performance on the basis of Exhibit A-1-Agreement dated 15.4.1992?
Ratio Decidendi: The Court held that the appellants were not entitled to the relief of specific performance as against the respondents. The Court observed that the appellants had not made out a case so as to enable a Court of Law to exercise its discretion in their favour and grant the relief of specific performance. The Court also observed that the 2nd respondent/2nd defendant was a subsequent purchaser and if the plaintiffs having regard to the conduct are not entitled to the relief, the misconduct of the defendants cannot result in plaintiffs being entitled to such reliefs.
Final Decision: The appeal was dismissed, leaving the parties to bear their own costs. However, the 1st respondent/1st defendant was directed to return the advance amount of ₹ 2,00,000/- received from Nanjappa to the appellants/plaintiffs herein together with interest at the rate of 6% per annum from the date of filing of the suit till date of payment within two months from the date of receipt of copy of the judgment.
1 The appellants/plaintiffs have preferred this appeal as against the judgment and decree dated 22.12.2000 made in O.S. No. 183 of 1995 on the file of the learned Subordinate Judge, Salem.
2 The trial Court, in its judgment in O.S. No. 183 of 1995 dated 22.12.2000, has, among other things, observed that the plaintiffs have no right to claim the reliefs of specific performance and permanent injunction and dismissed the suit without costs but directed the first defendant to pay a sum of ` 2,00,000/-received as advance to the plaintiffs within two months from the date of Judgment and in case of default, the plaintiffs are directed to pay 6% interest per anuum from the date of Decree till date of payment.
3 The trial Court has framed in all 6 issues for consideration. On behalf of the appellants/plaintiffs, witnesses P.W.1 and P.W.2 have been examined and Exhibits A-1 to A-10 have been marked. On the side of the respondents/defendants, D.W.1 to D.W.3 have been examined and Exhibits B-1 to B140 have been marked. Also, Exhibit C-1-Advocate Commissioner ‘ s Report and Exhibit C-2-Plan have been marked.
4 Aggrieved against the judgment and decree passed by the trial Court in O.S. No. 183 of 1995 dated 22.12.2000, the appellants/plaintiffs have preferred this appeal before this Court.
5 The point that arise for determination in this appeal is:
“ Whether the appellants/plaintiffs are entitled to claim the relief of specific performance on the basis of Exhibit A-1-Agreement dated 15.4.1992? ”
6 Contentions, Discussions and Findings:
According to the learned senior counsel for the appellants/plaintiffs, the trial Court has failed to appreciate the proper steps in sending notice to the 2nd respondent and the same has been received and marked as Exhibits A-9 and A-10 respectively and in fact, the 1st respondent/1st defendant has executed an illegal sale in favour of the 2nd respondent and that the sale deed has been presented only on 24.2.1995 before the Sub Registrar, Salem and that too after filing of the suit before the trial Court on 1.3.1995 praying for the relief of specific performance.
7 Advancing his arguments, the learned senior counsel for the appellants submits that the trial Court has not taken into account of the fact that the 2nd respondent has purchased the schedule mentioned property with lis pendens and further, the 2nd respondent has known about the existing sale agreement between the appellants deceased father Nanjappa Gounder and the 1st respondent and added further, the trial Court has overlooked the 1st respondent/1st defendant ‘ s written statement in admitting the execution of the sale agreement and the receipt of the payments.
8 It is the further contention of the learned senior counsel for the appellants that the trial Court has not framed a vital issue whether the 2nd respondent/2nd defendant is a bona fide purchaser or otherwise? and in fact, the trial Court has rendered findings in favour of the appellants/plaintiffs after elaborately discussing the issues, but wrongly come to the conclusion that the appellants/plaintiffs are entitled only to a sum of ` 2,00,000/-paid as an advance.
9 The other limb of the contention put forward by the learned senior counsel for the appellants is that the trial Court has failed to appreciate that the 1st respondent/1st defendant’s statement in cancelling the sale agreement between him and the 1st appellant’s deceased husband and 2 to 4 plaintiff’s father is an invalid and unsustainable one in the eye of law.
10 Lastly, it is the contention of the Learned senior counsel for the appellants that the trial Court has come to a wrong conclusion in respect of the date of purchase of sale deed stamp papers by the 2nd respondent.
11 The sum and substance of the contention put forward on the side of the appellants that the trial Court has mechanically passed the Judgment without applying its mind and indeed, it ought to have granted the relief of specific performance to the app
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