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2017 Supreme(Mad) 156

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
M.DURAISWAMY, J.
M.Sankar Nadar & Ors. – Appellants
Versus
Deva Krishnan – Respondent
S.A.(MD)No.511 of 2011 and M.P.(MD)No.1 of 2011, 1 of 2013 & 1 of 2014
Decided On : 20-01-2017

Advocates Appeared:
For the Appellant : Mr. V. Meenakshi Sundaram, Mr. D. Nallathambi
For the Respondent: Mr. S. Parthasarathy

Headnote:

Civil Procedure Code, 1908 - Section 100 - Limitation Act - Articles 54 and 113 - Evidence Act – 92 – Civil Suit – Registered Sale Deed – Possession - Suit for specific performance and permanent injunction – Decreed – Second Appeal - Suit property belongs to the first defendant by virtue of a registered sale deed - Second defendant is the son of first defendant - Plaintiff entered into a sale agreement with defendants for purchase of suit property for a total sale consideration and on date of sale agreement itself, entire sale consideration was paid to defendantsn - Defendants handed over possession of suit property to plaintiff on date of sale agreement and since then, plaintiff has been in possession and enjoyment of suit property - In sale agreement, defendants agreed to execute sale deed in favour of plaintiff or in favour of his nominee - Plaintiff orally requested defendants to execute sale deed in his favour - However defendants promised to execute sale deed in six months time, since they were employed - Subsequently also, defendants avoided execution of sale deed in favour of plaintiff - Held, Respondent/plaintiff filed a suit for specific performance and therefore, he cannot protect his possession under Section 53(A) of Act - In case of appellants/defendants filing a suit for recovery of possession, in that case, respondent/plaintiff can defend the suit by taking protection under Section 53(A) of Act - Therefore, protection under Section 53(A) of Act is not applicable to respondent/plaintiff - It is a settled position that Court should meticulously consider all facts and circumstances of case and Court is not bound to grant specific performance merely because it is lawful to do so - Motive behind litigation should also enter into judicial verdict - Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to plaintiff - Court opinion that plaintiff has not come to Court with true facts, he is not entitled for discretionary relief - Lower Appellate Court, without considering all these aspects, erroneously reversed judgment and decree of trial Court and decreed suit - Suit dismissed - Second Appeal is allowed.

JUDGMENT :

The above Second Appeal arises against the judgment and decree passed in A.S.No.9 of 2010, on the file of the Subordinate Court, Uthamapalayam reversing the judgment and decree passed in O.S.No.6 of 2009, on the file of the Principal District Munsif Court, Uthamapalayam.

2. The defendants are the appellants and the respondent is the plaintiff in the suit. The plaintiff filed the suit in O.S.No.6 of 2009 for specific performance and permanent injunction.

3. The brief case of the plaintiff is as follows:

(i) According to the plaintiff, the suit property belongs to the first defendant by virtue of a registered sale deed dated 18.03.1980. The second defendant is the son of the first defendant. The plaintiff entered into a sale agreement dated 05.07.1995 with the defendants for the purchase of the suit property for a total sale consideration of Rs.10,000/- and on the date of sale agreement itself, the entire sale consideration was paid to the defendants. The defendants handed over the possession of the suit property to the plaintiff on the date of sale agreement and since then, the plaintiff has been in possession and enjoyment of the suit property. The defendants also handed over the original sale deed dated 18.03.1980 executed in favour of the first defendant to the plaintiff. In the sale agreement, the defendants agreed to execute sale deed in favour of the plaintiff or in favour of his nominee. On 05.06.2007, the plaintiff orally requested the defendants to execute the sale deed in his favour. However the defendants promised to execute the sale deed in six months' time, since they were employed in Tirupur. Subsequently also, the defendants avoided execution of the sale deed in favour of the plaintiff.

(ii) On 04.01.2009, the plaintiff came to know that the defendants were trying to alienate the suit property to some third parties, since the market value of the property had been increased. The plaintiff was always ready and willing to perform his part of the contract. On 05.01.2009, the plaintiff sent a notice to the defendants for executing the sale deed. On 06.01.2009, the defendants tried to interfere with the plaintiff's possession. In these circumstances, the plaintiff filed the suit.

4. The brief case of the defendants is as follows:

(i) The defendants while denying the averments stated in the plaint, specifically stated the second defendant borrowed a sum of Rs.10,000/- in the year 1991 from the plaintiff and as a security for the said loan, the defendants executed a promissory note in favour of the plaintiff. The defendants also paid interest at the rate of Rs.3/- per Rs.100/- per month. Since the defendants incurred loss in their business, they could not pay the interest to the plaintiff. Since the defendants could not pay the interest to the plaintiff regularly, they handed over the original documents pertaining to the suit property to the plaintiff as security. The defendants had also given the signed blank stamp papers to the plaintiff. The plaintiff informed the defendants that he is obtaining the blank stamp papers only as a security for due payment of the monthly interest. The plaintiff also informed the defendants that in respect of paying the interest, he will have the possession of the suit property and to that effect, he would write a document in the blank stamp paper obtained from the defendants.

(ii) In July 1995, the defendants tried to dispose of the property for discharging the loan availed from the plaintiff. Immediately, the plaintiff prevented the defendants from disposing of the property by using the blank stamp papers and getting the document written on it as though, the defendants agreed to sell the property to him. The defendants are willing to repay the loan amount together with interest from the date of signing the blank stamp paper. The defendants did not receive the notice dated 05.01.2009 alleged to have been sent by the plaintiff. The alleged sale agreement dated 05.07.1995 is not true and








































































































































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