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2016 Supreme(Mad) 1912
IN THE HIGH COURT OF JUDICATURE AT MADRAS
PUSHPA SATHYANARAYANA, J.
Amitav Mukherji – Plaintiff
Vs.
M/s. Lakshana Holdings Pvt. Limited – Defendant
C.S. No. 52 of 2002
Decided On : 13-07-2016
For the Plaintiff : Mr. M. Ravindran, Senior Counsel for Mr. Krishna Ravindran.
For the Defendant : Mr. K. Harishankar.
The main legal point established in the judgment is the requirement for the plaintiff to produce the alleged sale agreement and demonstrate readiness and willingness to perform the contract. Additionally, the judgment highlights the status of a subsequent purchaser as a bona fide purchaser without notice.
Headnote:
Specific Performance - Sale Agreement - Exs.P2 to P7 - Refund of Advance Sale Consideration - Interest - [SPECIFIC PERFORMANCE] - [SALE AGREEMENT] - [No specific Act-Section referenced] - The court dismissed the suit for specific performance but decreed the alternative relief of refund of advance sale consideration with interest at 24% per annum from the date of agreement of sale till date of realization from the first defendant. The suit against the second defendant was dismissed in all respects.
Fact of the Case:
The plaintiff filed a suit against the defendants seeking specific performance of a sale agreement for a property or in the alternative, refund of advance sale consideration with interest. The plaintiff claimed to have paid a substantial amount as advance towards the sale consideration and was put in possession of the property. The first defendant denied the existence of the agreement and alleged that the plaintiff was not ready and willing to complete the transaction. The second defendant, a subsequent purchaser, claimed to be a bona fide purchaser without notice of any alleged agreement between the plaintiff and the first defendant.
Finding of the Court:
The court found that the plaintiff had paid a substantial amount as advance sale consideration to the first defendant but failed to produce the alleged sale agreement. The court concluded that the plaintiff was not always ready and willing to complete the transaction as agreed. The court held that the second defendant was a bona fide purchaser without notice and dismissed the suit for specific performance. However, the court decreed the alternative relief of refund of advance sale consideration with interest from the first defendant.
Issues: The issues included the existence and validity of the sale agreement, the plaintiff's readiness and willingness to complete the transaction, the status of the second defendant as a bona fide purchaser, and the reliefs entitled to the plaintiff.
Ratio Decidendi: The court emphasized the importance of producing the alleged sale agreement and the plaintiff's readiness and willingness to perform the contract. The court also considered the status of the second defendant as a subsequent purchaser and the relief sought by the plaintiff.
Final Decision: The court dismissed the suit for specific performance but decreed the alternative relief of refund of advance sale consideration with interest from the first defendant. The suit against the second defendant was dismissed in all respects.
PUSHPA SATHYANARAYANA, J.
1. The suit is filed by the plaintiff against the defendants for the following reliefs:-
(a) to direct the defendants to execute the sale deed in respect of the suit property in favour of the plaintiff in pursuance of the Agreement of Sale dated 05.02.2001 on receipt of balance of sale consideration and also to produce the necessary clearance from the appropriate authority and failing which, direct the officer of this Court to execute the sale deed in favour of the plaintiff on behalf of the defendants (or) in the alternative, direct the defendants herein to pay the plaintiff Rs.24,85,000/- as refund of advance, together with interest at 24% per annum from 05.02.2001, the date of agreement of sale till date of decree and thereafter, at the same rate till the date of realisation.
(b) to grant permanent injunction restraining the defendants, their agents, servants or anybody claiming through them from in any manner dealing with the suit property, namely, sale, mortgage or in any manner creating encumbrance over the suit property.
(c) to direct the defendants to pay costs of the suit to the plaintiff.
2. The case of the plaintiff is that the suit property belong to the first defendant. The first defendant approached the plaintiff for sale of the suit property and the plaintiff also had mutually agreed for the same. It is stated that the sale consideration was fixed at Rs.38,00,000/- (Rupees Thirty Eight Lakhs Only). Pursuant to the same, on 29.09.2000, the plaintiff is said to have paid a sum of Rs.3,00,000/- (Rupees Three Lakhs only) as advance, towards sale of the property and the sale would be completed within one month. The plaintiff further stated that the said sale agreement was later reduced to writing on 05.02.2001 and the first defendant had taken the said agreement in duplicate for the purpose of forwarding the same to the appropriate authority for clearance, as the sale consideration exceeded Rs.25,00,000/- (Rupees Twenty Five Lakhs Only). The plaintiff also has stated that a sum of Rs.24,85,000/- (Rupees Twenty Four Lakhs Eighty Five Thousand Only) was paid to the first defendant by various demand drafts, pay orders and cheques etc. Having parted with more than 2/3rd of the amount, the plaintiff requested the first defendant to put the plaintiff in possession of the suit property, which is a flat in the second floor at Door No. 73, Sir Thyagaraya Road, T. Nagar, Chennai-17. Accordingly, it is stated that the plaintiff was also put in peaceful possession and enjoyment of the suit property. Though the plaintiff claimed that he was ready and willing to perform his part of contract, the first defendant kept postponing the registration on the pretext that the clearance from the appropriate authority was awaited.
3. While so, the first defendant had sent a notice to one V.Jayalakshmi, who was the promoter of the Flat on 15.10.2001 alleging that the said V.Jayalakshmi had not put the first defendant in possession of the property. As the power agent of the plaintiff is the son of the said V.Jayalakshmi, the plaintiff was informed about the false allegations and the sudden change in the attitude of the first defendant. Therefore, the plaintiff issued a lawyer's notice on 02.11.2001 calling upon the first defendant to perform his part of contract. The first defendant also sent a reply notice on 19.11.2001 alleged to have made false allegations including denying the payments made by the plaintiff. The said reply was also suitably responded by the plaintiff by sending a rejoinder on 16.01.2002. The plaintiff had further alleged that the first defendant was negotiating with third parties for sale of the suit property. Hence, the plaintiff has filed the suit for specific performance of the agreement of sale dated 05.02.2001 or in the alternative, directing the first defendant to pay the plaintiff a sum of
