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2016 Supreme(Mad) 2365
IN THE HIGH COURT OF JUDICATURE AT MADRAS
A. SELVAM and P. KALAIYARASAN, JJ.
V. Krishnan by Power Agent A. Venkatesan - Appellants
Vs.
M. S. Dhananjayan (deceased) - Respondents
O.S.A. Nos. 90 and 193 of 2007 & M.P. No. 1 of 2012 in OSA No. 90 of 2007 & M.P. No. 2 of 2007 in OSA No. 193 of 2007
Decided On : 29-07-2016
For the Appellants in OSA No. 90/2007 & for respondents in OSA No. 193/2007: Mr. S. Parthasarathy, Sr. counsel for Mr. K.V. Ananthakrihshnan
For the Respondents in OSA No. 90/2007 & for appellants in OSA No. 193/2007: Mr. S. Thankasivan
Headnote:
Specific Relief Act, 1963 - Section 16(c) - Finance Act - Income Tax Act, 1961 - Section 269 UE (1) – Contract and Specific Relief - Specific performance of a contract - Sale agreement - Execution of - Plaintiff has entered into a sale agreement and thereby agreed to purchase suit property for a sum of Rs. 50,50,000/-. On date of execution of agreement of sale, an advance of Rs.1 Lakh has been given to defendant - Second instalment of Rs. 4,50,000/- has to be paid on or before 15.1.1989 - Defendant has to obtain Income Tax Clearance Certificate before execution of sale deed - In agreement of sale, it is agreed by both plaintiff and defendant that time is essence of contract - By virtue of section 269 UE (1) of Act, Central Government has become owner on 9.1.1989 - Under such circumstances, defendant has not been able to receive remaining consideration and execute sale deed in favour of plaintiff - Held, Provisions of section 35A seem to suggest that even where a suit or litigation is vexatious, outer limit of exemplary costs that can be awarded, in addition to regular costs, shall not exceed Rs. 3000/- It is also to be noted that huge costs of order of Rs. Fifty thousand or Rs. One lakh, are normally awarded only in writ proceedings and public interest litigations, and not in civil litigation to which sections 35 and 35A are applicable - Principles and practices relating to levy of costs in administrative law matters cannot be imported mechanically in relation to civil litigation governed by Code - Learned Single Judge has simply imposed a cost of Rs. 11 Lakhs upon defendant - It has already been mentioned in so many places that first plaintiff has suppressed so many material facts including his status at time of filing of suit and in fact, present suit is nothing but vexatious and therefore, this Court view that imposition of cost upon defendant is not only onerous but also erroneous - Order, in respect of cost, passed by learned Single Judge set aside – Order accordingly
A. SELVAM, J.
These Original Side Appeals are directed against the judgment and decree dated 3.10.2006 passed by the learned Single Judge of this Court in C.S. No. 1269 of 1994.
2. The first appellant in OSA No. 90 of 2007, as plaintiff, has instituted C.S. No. 1269 of 1994 on the file of this Court, praying to pass an executable decree in pursuance of sale agreement dated 18.10.1988, wherein the deceased respondent/appellant in OSA No. 193 of 2007 has been shown as sole defendant.
3. The material averments made in the plaint may be stated like thus:
The suit property is situate in Chennai City and the same is the absolute property of the defendant. The plaintiff is the sole proprietor of M/s. Flash Builders. The plaintiff has entered into a sale agreement dated 18.10.1988 and thereby agreed to purchase the suit property for a sum of Rs. 50,50,000/-. On the date of execution of agreement of sale, an advance of Rs.1 Lakh has been given to the defendant. The second instalment of Rs. 4,50,000/- has to be paid on or before 15.1.1989. The defendant has to obtain Income Tax Clearance Certificate before execution of sale deed. In the agreement of sale, it is agreed by both the plaintiff and defendant that time is essence of contract. The Income Tax Act, 1961 has been amended in the year 1986 by Finance Act Chapter XXC and thereby introduced section 269 UL. By virtue of section 269 UE (1) of Income Tax Act, the Central Government has become the owner on 9.1.1989. Under such circumstances, the defendant has not been able to receive the remaining consideration and execute sale deed in favour of the plaintiff. The plaintiff, as petitioner, has filed W.P. No. 1259 of 1988, wherein WMP No. 1920 of 1989 has also been filed. The defendant has made appearance and contended that the order of purchase should not be cancelled and the same shows that the defendant is not intended to sell the suit property in favour of the plaintiff. In the mean while, the defendant has gone to America and the plaintiff has not known his address. The plaintiff has issued a Notice dated 21.7.1994 and the same has been returned. The plaintiff has always been ready and willing to perform his part of contract. Since the plaintiff has filed writ petition and other proceedings, it shows that the plaintiff has always been ready to perform his part of contract. The defendant has not been able to perform his part of contract even after 9.1.1989. On 10.2.1989, the defendant has unilaterally terminated the suit sale agreement. Under such circumstances, the present suit has been instituted for the relief sought therein.
4. In the written statement filed on the side of the defendant, it is averred that the plaintiff has closed his business and left to Singapore. The defendant is not aware of Power of Attorney Deed alleged to have been executed by the plaintiff. The suit is barred by limitation. The plaintiff has failed to pay the second instalment of Rs. 4,50,000/- on or before 15.1.1989. The plaintiff has committed breach of contract. It is false to aver that the competent authority has desired to buy the property because of its under valuation. The suit property is situate near Boat Club Road and the present rate per ground is Rs. 19 Lakhs. It is false to allege that the defendant is not intended to sell the suit property. It is also equally false to say that the defendant has left India after getting No Objection Certificate and there is no merit in the suit and the same deserves to be dismissed.
5. On the basis of the divergent pleadings raised on either side, the learned Single Judge of this Court has framed necessary issues and after contemplating both the oral and documentary evidence, has dismissed the suit, however, directed the defendant to pay a cost of Rs. 11 Lakhs and out of Rs. 11 Lakhs, Rs. 10 Lakhs is payable to the account of I.P. No. 53/1992 and balance of Rs. 1 Lakh is payable to the Tamil Nadu State Legal Services Authority. Further it is directed that
