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High Court of Judicature at Madras
T. RAJA, J.
Karthik Homes, Rep. by its Partner M. Latha Chendur Illam, Chennai
Versus
S. Manvizhi
S.A. No. 1367 of 2010
Decided on: 05-11-2014
Transfer of Property Act - Section 55(4)(b) - Evidence Act - Section 73 - Possession of suit flat till entire amount - Permanent injunction - Undivided share over land – Dishonor of cherub - Plaintiff further admits that defendant made payment - advance - As agreed by parties suit flat was completed on - While so although defendant paid towards construction cost she failed to pay balance sale price of land cost and towards deposit drainage deposit and balance construction cost - When defendant failed to pay balance sale price of land towards drainage deposit and balance construction promised to pay same after availing loan from ICICI Bank for which she requested plaintiff to issue a receipt as if she had paid margin amount plaintiff to enable defendant to show same to bank - However plaintiff refused to issue such a false receipt - Meanwhile a notice was sent by defendant projecting as if a sum of - plaintiff therefore issued a suitable reply denying receipt of said amount but demanded payment Under this background defendant filed before District Consumer Disputes Redressed Forum Chennai for deficiency of service and for a direction to handover suit flat to her – Held, It is not dispute that an appeal under Section 100 CPC can be entertained by High Court on substantial question of law - There is no quarrel over this legal position however if findings of subordinate courts on facts are contrary to evidence on record and are perverse such findings can be interfered with by High Court in an appeal under Section 100 CPC because High Court cannot shut its eyes to perverse findings of courts below - present case findings of fact arrived at by courts below are contrary to evidence on record and therefore court justified in setting aside same answering second substantial question of law favor of appellant - When plaintiff filed a civil suit for recovery defendant again made a serious attempt before civil Court by producing receipt to show as if she had paid plaintiff - Clear findings have been given by trial Court that defendant had marked forged receipt under to disprove and defeat plaintiffs case and claim - She continued falsehood before first appellate court - Even before this Court defendant resorted to same deceiving tactics by building up a false claim on fake document - When a party approaches High Court he she must place all facts before Court without any reservation and if there is a false statement or a twisted fact placed before Court then Court should not hesitate to curb such practice by imposing exemplary costs - present case when defendant made a false story before District Consumer Forum against plaintiff that she had paid a huge amount of a forged document and attempted to deceive above said amount this Court is of considered view that she should be made to pay same amount to plaintiff accordingly defendant is directed to pay a sum of to plaintiff within a period of four weeks from date of receipt of a copy of this order - Appeal stands allowed
1. The plaintiff before the trial Court is the appellant in this second appeal. For the sake of convenience, the parties are described as they were before the trial Court. The plaintiff had filed the suit praying for a judgment and decree to direct the defendant to pay a sum of Rs.3,76,990/-together with interest at the rate of 25% per annum on Rs.2,30,375/-from the date of plaint till the date of realisation with four other reliefs for a direction to the defendant to pay a sum of Rs.670/- with future interest at the rate of 25% per annum from the date of filing the suit till the date of realisation; for a declaration that the plaintiff is having a charge over the suit schedule flat as per Section 55(4)(b) of the Transfer of Property Act; for permanent injunction restraining the defendant and her men from in any way interfering with the possession of the suit flat till the entire amount was paid to the plaintiff and for payment of costs of the suit, on the ground that after the sale deed was executed in favour of the defendant in respect of the undivided share over the land measuring 290 sq.ft., on 29.11.2004 pursuant to the execution of construction agreement on the same date followed by a cheque for payment of a sum of Rs.75,860/-, which was not realised due to want of sufficient funds, for which the defendant undertook to make payments, but defaulted in doing so for stage-wise instalments, besides E.B. deposit, Metrowater deposit & drainage deposit and when she failed and neglected to pay a sum of Rs.3,30,375/-, thereafter, having wrongly filed a complaint before the District Consumer Disputes Redressal Forum, Chennai in C.C.No.9 of 2006 for handing over vacant possession of the suit flat, the plaintiff was constrained to file the present suit for recovery of the balance amount as per the agreement, since admittedly the plaintiff is entitled to recover a total sum of Rs.3,76,990/-, inasmuch as Rs.75,860/- towards cost of unpaid sale price of land; Rs.1,94,140/-due under the construction agreement, Rs.60,375/- towards three phase E.B. deposit, metrowater deposit and drainage deposit and Rs.46,615/- towards interest at the rate of 25% per annum from 31.8.2005.
2. The claim of the plaintiff before the trial Court shows that the defendant purchased 290 sq.ft., of undivided share in the suit flat for Rs.1,25,860/-and further agreed for payment of the construction cost for the suit flat bearing No.A1, First Floor in Door No.18, Fifth Street, AVM Colony, Virugambakkam, Chennai at Rs.7,44,140/-. For this sale of undivided share of land, only a sum of Rs.50,000/- was paid in cash and the cheque issued by the sister of the defendant for the sum of Rs.75,860/- was also dishonoured for want of sufficient funds. In view of that, the defendant undertook to pay the same and further agreed to pay a sum of Rs.7,44,140/-towards the construction cost. While entering into a construction agreement on 29.11.2004, the defendant agreed to pay Rs.25,000/- as advance and for the balance of Rs.7,19,110/-, she agreed to pay the same as per the details given as under:-
Stages Percentage Amount Rs. Tentative date of completion
i) On completion of basement level 30% 2,16,000/- 31.01.2005
ii) On completion of roofing level for respective floors 30% 2,16,000/- 31.05.2005
iii) On completion of lintel level for respective floor 30% 2,16,000/- 30.04.2005
iv) At the time of laying flooring tiles 5% 35,555/- 30.06.2005
v) At the time of handing over of key of the premises 5% 35,555/- 31.8.2005
3. The plaintiff further admits that the defendant made the payment of Rs.25,000/- as advance. As agreed by the parties, the suit flat was completed on 31.8.2005. While so, although the defendant paid Rs.3,40,000/- on 13.7.2005 and Rs.2,10,000/-on 31.8.2005 towards the construction cost, she failed to pay the balance sale price of Rs.75,860/- for the land cost and Rs.60,375/- towards E.B.deposit, metrowater deposit, drainage deposit and the balance construction cost. When
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