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2015 Supreme(Mad) 1954
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. MAHADEVAN, J.
M. Bama – Appellant
Versus
R. Nirupama & Others – Respondents
A.S. No. 64 of 2012
Decided On : 27-04-2015
For the Appellant:A. Thiagarajan, SC for S. Ramesh Kumar, Advocate.
For the Respondents:R3 to R7, S.V. Jayaraman, SC for C. Shankar, R2, R. Chellappa, Advocates.
Headnote:
Civil Laws – Suit for specific performance – Sale Deed – Joint Venture Agreement – Appeal Suit has been filed by the Plaintiff, who was unsuccessful before the Trial Court, aggrieved against the judgment and decree, made in OS., by the learned Additional District Judge, FTC III, Chennai. – For the sake of convenience and for easy reference, in this judgment, the parties are hitherto described as they were arrayed before the Trial Court. – Held, It is not the case that the plaintiff, after paying the entire sale consideration, has failed to establish that she was ready and willing to get the sale deed executed from the second respondent. – As already narrated above, though the plaintiff was urging the second respondent, the second respondent is evading from executing the sale deed on the ground that the original documents are with the first respondent. – Hence, the above decision is not applicable to the case on hand. – When the power of attorney is executed in favour of the second respondent by the first respondent and in pursuant to that, he executed a sale agreement in favour of the appellant, the first respondent has no power at all to execute the sale deed in respect of the third respondent. – Unless and until, cancelling the power of attorney of the second respondent or issuing notice cancelling the power of attorney to the second respondent, the first respondent has no right to alienate the suit property. – Further, unless and until giving quietus, one way or the other, to the sale agreement entered into by the second respondent with the appellant, though it is right or wrong, the principal has no right to proceed with the suit property for making any kind of transaction. – Otherwise, it is nothing but a fraud on the bona fide purchasers or innocent purchasers by the principal as well as by the power agent. – In view of the above, the sale deed executed by the first respondent with the third respondent is held invalid and the sale deeds executed by the third respondent with the other respondents are also held to be invalid. – Perusal of the judgment of the trial court reveals that there is no iota of reason for dismissing the suit and the judgment of the trial court suffers from infirmity and it is not sustainable in law and on facts. – Appeal Allowed
R. MAHADEVAN, J.
1. This Appeal Suit has been filed by the Plaintiff, who was unsuccessful before the Trial Court, aggrieved against the judgment and decree, dated 30.12.2011, made in OS.No.2488/2011, by the learned Additional District Judge, FTC III, Chennai. For the sake of convenience and for easy reference, in this judgment, the parties are hitherto described as they were arrayed before the Trial Court.
2. The case of the Plaintiff, as set out in the Plaint, is as follows:-
a. The 1st Defendant is the owner of the property, viz. Old No.4, New No.5 and 6, Madhavaram High Road, Perambur, Chennai-1. The 1st Defendant had appointed the 2nd Defendant, as her lawfully constituted Power of Attorney Agent to deal with the said property, including the right to sell the same to prospective purchasers. The said Power of Attorney was executed by the 1st Defendant in favour of the 2nd Defendant on 15.7.2002 and the same was also registered on the file of the SRO, Sembiam as Doc.No.1383 of 2002. The 1st Defendant entered into a Joint Venture agreement, on the very same date with the 2nd Defendant under which, it was agreed that the Defendants 1 and 2 would be entitled to 40-60% respectively. The 2nd Defendant, in the capacity of the Power Agent of the 1st Defendant, entered into a sale cum construction agreement on 06.09.2002 with the Plaintiff's husband A. Manoharan, in respect of a flat in the proposed first floor construction. The Plaintiff's husband paid a sum of Rs.15,000/-, as advance, on the date of the agreement and subsequently paid a sum of Rs.1,00,000/- on 04.10.2002 and thereafter, another sum of Rs.2,10,000/- on 27.10.2002. The 2nd Defendant acknowledged receipt of the said amount, by necessary endorsements on the reverse of the agreement dated 06.09.2002. Since the 2nd Defendant was not able to show any progress in the construction and the old building alone had been demolished, the 2nd Defendant offered to transfer his 60% share in the property in favour of the Plaintiff's husband or his nominee. The Plaintiff was nominated as the transferee and a sale agreement was entered into between the Plaintiff and the 2nd Defendant, representing the 1st Defendant, as a duly constituted Power Agent on 15.10.2003 and the same was also duly registered on the file of SRO, Purasawalkam as Doc.No.3991/2003.
b. The sale consideration was fixed at Rs.5,00,000/- and a sum of Rs.3,00,000/-, out of the Rs.3,25,000/- paid by the Plaintiff's husband, was treated as advance and the agreement was that the balance sum of Rs.2,00,000/- would be paid by the Plaintiff, at the time of registration of necessary documents. The Plaintiff wrote a letter to the 2nd Defendant on 09.03.2004, but the 2nd Defendant evaded receipt of the said letter. Again on 05.05.2004 and again on 16.08.2004, the Plaintiff wrote to the 2nd Defendant, expressing her readiness and willingness to pay the balance sale consideration and complete the transaction. There was no positive response from the 2nd Defendant and thereafter, after repeated demands and requests, the 2nd Defendant came forward to receive the balance sale consideration of Rs.2,00,000/- and execute a written receipt for the same on 22.01.2005, on behalf of the 1st Defendant. Even after receipt of the entire sale consideration, the Defendants 1 and 2 did not come forward to register the sale deed in favour of the Plaintiff and hence, the Plaintiff issued a legal notice on 24.02.2006, calling upon them to execute the sale deed, for which, a reply with false allegations was sent by the 1st Defendant on 09.03.2006, to which the Plaintiff sent a rejoinder notice on 22.03.2006. The 2nd Defendant also sent a letter dated 13.03.2006, in reply to the notice stating that he could not register the deed, in view of the 1st Defendant not coming forward to hand over the original documents of title. About a few weeks back, a local broker in the locality came and informed the Plaintiff that the property was sold to a third
