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HIGH COURT OF JUDICATURE AT MADRAS
P.R. SHIVAKUMAR, J.
Andrew Tennyson Abraham – Appellant
Versus
J. Daniel Sam – Respondent
S.A.No. 441 of 2007 & M.P.No.1 of 2007
Decided on: 06-03-2015
Specific Relief Act - Section 16(c) – Criminal Procedure Code - Section 156(3) - Civil Procedure Code - Section 100 - Order XLI - Rule 27 - Execution and registration of sale deed - General Power of Attorney – Claim of compensation - Defendant in original suit who suffered a decree for specific performance in hands of trial court and suffered a decree confirming decree of trial court in hands of lower appellate court is appellant in present second appeal - Sole plaintiff who emerged successful in both courts below is respondent herein - Respondent herein plaintiff filed on file of Sub Court for relief of specific performance directing appellant herein defendant to execute a sale deed in respect of suit house site after receiving balance sale consideration from respondent and for relief of a declaration that respondent herein is owner of building constructed in suit site bearing plot Anna Nagar Western Extension - Said suit came to be filed for above said reliefs based on suit agreement for sale - Case of respondent herein as revealed from plaint averments can briefly be stated – Held, Said judgment shall get squarely attracted to facts of case on hand - It can be even stated that respondent plaintiff in case on hand has got a better case than plaintiff in case that went before Supreme Court – Respondent plaintiff paid an advance out of sale consideration of as advance on date of agreement itself and a further advance was also paid as contemplated in agreement - In all he had paid a sum of leaving a small sum as balance amount of sale consideration - Sale consideration had been paid - In part performance of contract of agreement for sale possession of suit house site was also delivered to respondent plaintiff – Respondent plaintiff also obtained planning permission from local authority and put up construction at his own cost - A power of attorney was also executed by defendant in favor of plaintiff - Sale deed executed by Housing Board in favor of respondent plaintiff was obtained by respondent plaintiff from office of Sub Registrar based on authorization given by appellant defendant - Exchange of notices also show that respondent plaintiff was ready and willing and on other hand appellant defendant was not prepared to complete transaction keeping in mind escalation of price - There is a clear plea made in plaint that respondent plaintiff was always ready and willing to perform his part of contract by making payment of balance sale consideration and getting sale deed executed and registered in his name – Evidence both oral and documentary has also been adduced to said effect - As against overwhelming evidence adduced on side of respondent plaintiff there is no contra evidence on side of defendant to show that he was ready and willing but respondent plaintiff was not ready and willing - Under such circumstances concurrent findings of courts below that respondent plaintiff pleaded and proved his readiness and willingness in consonance with requirements of Section 16(c) of Specific Relief Act, 1963 does not require any interference - Substantial question of law deserves to be answered accordingly holding that plaintiff complied with conditions of Section 16(c) of the Specific Relief Act, 1963 and that discretion was also properly exercised by courts below in granting relief of specific performance in favor of respondent plaintiff - Accordingly 2nd and 4th substantial questions of law are answered against appellant defendant and in favor of respondent plaintiff - Appeal is dismissed
1. This second appeal has been preferred under Section 100 of the Code of Civil Procedure against the decree of the lower appellate court dated 10.08.2006 made in A.S.No.93 of 2004 on the file of the lower appellate court confirming the decree of the trial court dated 31.03.2004 made in O.S.No.393 of 1989 on the file of the trial court.
2. The defendant in the original suit, who suffered a decree for specific performance in the hands of the trial court and suffered a decree confirming the decree of the trial court in the hands of the lower appellate court, is the appellant in the present second appeal. The sole plaintiff, who emerged successful in both the courts below, is the respondent herein.
3. The respondent herein/plaintiff filed O.S.No.393/1989 on the file of Sub Court, Poonamallee (trial court) for the relief of specific performance directing the appellant herein/defendant to execute a sale deed in respect of the suit house site after receiving the balance sale consideration of Rs.20,000/- from the respondent and for the relief of a declaration that the respondent herein is the owner of the building constructed in the suit site bearing plot No.1237 Arignar Anna Nagar Western Extension, Mogappair, Chennai. The said suit came to be filed for the above said reliefs based on the suit agreement for sale dated 09.05.1987.
4. The case of the respondent herein as revealed from the plaint averments can briefly be stated thus:-
The appellant herein, being the allottee of the suit house site bearing Plot No.1237 Arignar Anna Nagar Western Extension, Mogappair, Chennai, offered to sell the same and the respondent herein/plaintiff came forward to purchase the same. After negotiation, the sale price was fixed at Rs.2,23,000/- which amount was agreed to be paid in the following manner: (1) Rs.1,23,000/- as advance and part payment of consideration at the time of execution of the sale agreement; (2) Rs.80,000/- to be paid within a month from the date of agreement as further advance and (3) the balance amount of Rs.20,000/- to be paid at the time of execution and registration of the sale deed in favour of the respondent herein or his nominee. Accordingly, the suit sale agreement dated 09.05.1987 came to be executed between the appellant herein and the respondent herein and on the date of agreement itself, the appellant received a sum of Rs.1,23,000/-. The agreement also contemplated the execution of a Deed of irrevocable general Power of Attorney in favour of the respondent, so as to enable him to apply for planning permission and put up a construction as per the requirements of the Tamil Nadu Housing Board at the cost of the respondent, to get electricity, drainage and water supply service connections, to get the sale deed executed by the Tamil Nadu Housing Board in favour of the appellant herein, to receive the sale deed from the Registering Authority and to get a sale deed executed in his favour in accordance with the terms of the suit agreement for sale. Accordingly, an irrevocable deed of General Power of Attorney was executed and registered as document No.5617/1987 in the office of the Joint Sub Registrar, Anna Nagar on 11.05.1987. Though the respondent was ready with the money for the payment of further advance within a month from the date of execution of the agreement for sale, the appellant, who was on tour chose to send a letter dated 10.07.1987 as if the respondent committed default in payment of the further advance in accordance with the terms of the agreement. On receipt of the said letter, the respondent sent a telegram to the appellant informing him that the respondent was ready with the money from 06.06.1987 onwards and asking the appellant to come and take it. Despite the sending of the letter dated 10.07.1987, the appellant, who came back to Chennai, received the said amount of Rs.80,000/- on 28.07.1987 and issued a receipt acknowledging the receipt of the said amount. In pursuance of the agreement for sale and i
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