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IN THE HIGH COURT OF JUDICATURE AT MADRAS
C.V. KARTHIKEYAN, J.
M/s. Asera Shelters and Investments Ltd. - Plaintiff
Vs.
Mr. Harishankar - Defendant
C.S. No. 139 of 2009
Decided On : 03-02-2017
specific performance - Property Dispute - Companies Act 1956, Indian Evidence Act - Summary: The court dismissed the suit for specific performance of an agreement of sale due to material alterations in the agreement, lack of consensus ad idem, and failure to prove the agreement. The plaintiff was, however, awarded a decree for the return of the advance amount paid with interest. The court held that the defendant was liable to return the advance amount with 6% interest per annum.
Fact of the Case:
The plaintiff company filed a suit for specific performance of an agreement of sale for a property in Chennai. The defendant disputed the existence of the agreement and the payment of an advance amount. The court framed several issues, including the genuineness of the agreement, consensus ad idem, and privity of contract.
Finding of the Court:
The court found that there were material alterations in the agreement, rendering it voidable. It held that the plaintiff failed to prove the agreement and the payment of the advance amount. The court dismissed the suit for specific performance but awarded a decree for the return of the advance amount with 6% interest per annum.
Issues: The issues included the genuineness of the agreement, consensus ad idem, privity of contract, and entitlement to costs.
Ratio Decidendi: The court held that material alterations in the agreement rendered it voidable, and the plaintiff failed to prove the agreement and the payment of the advance amount. It also emphasized the importance of examining witnesses to establish the genuineness of the agreement.
Final Decision: The court dismissed the suit for specific performance but decreed the return of the advance amount with 6% interest per annum.
The suit has been filed for the following reliefs :-
a. directing the defendant to execute and register necessary Sale Deed, for the Property being land and building, land of a total extent of 2217 sq. ft. (2186 sq. ft as per Patta), comprised in Survey No.797/3, bearing Door No.9, Gengu Reddy Road, Egmore, Chennai - 600 008 more clearly described in the Schedule hereunder, in favour of the plaintiff, after receiving the balance Sale consideration of Rs.1,15,00,000/- within the time frame to be fixed by this Hon'ble Court and failing which direct execution of such Sale Deed by an officer of this Hon'ble Court, nominated for the said purpose;
b. for a Permanent Injunction, restraining the defendant, his men, agents, servants or any one acting under him from in any manner, dealing, alienating, encumbering the property being an extent of 2217 sq. ft. (2186 sq. ft as per Patta), comprised in Survey No.797/3, bearing Door No.9, Gengu Reddy Road, Egmore, Chennai - 600 008, more clearly described in the Schedule hereunder, except in favour of the plaintiff, in terms of the Sale Agreement dated 01.10.2007;
c. for costs of the Suit
Suit filed for specific performance of an agreement of a sale dated 01.10.2007 entered into between the plaintiff and the father of the defendant for a total consideration of Rs.1,45,00,000/- and also for a permanent injunction restraining the defendant from dealing with or in any manner encumbering the suit property. The suit property is land and building to an extent of 2,217 square feet bearing Door No. 9, Gengu Reddy Road, Egmore, Chennai.
Plaint :
2. The plaintiff is a company incorporated under the provisions of the Companies Act 1956 and its objective are building and developing properties in Chennai. It had been stated that the plaintiff entered into an agreement for purchase of the property bearing Door No. 9, Gengu Reddy Road, Egmore, Chennai from one R. Nandakumar, who was the father of the defendant. It had been stated that the said Nandakumar wanted to sell the property and consequently, the plaintiff entered into an agreement of sale on 01.10.2007 for a total consideration of Rs.1,45,00,000/-. At the time of agreement a sum of Rs.30,00,000/- had been paid as an advance. It had been further stated that there was a tenant, running TASMAC liquor shop in the premises and the said Nandakumar agreed to vacate the tenant. It had been stated that time was not the essence of the agreement. It had been further stated that the said Nandakumar was not able to vacate the tenant. He kept postponing to perform his part of the agreement.
3. In February 2008, the plaintiff was informed that the wife of said Nandakumar was suffering from Cancer and therefore the plaintiff did not persuade the said Nandakumar to immediately perform his part of the agreement. Subsequently, the said Nandakumar passed away in June 2008. It was stated that one Sethuraman, the Uncle of the defendant also knew about the agreement. The mother of the plaintiff also died because of Cancer. The defendant was asked to perform the agreement entered into by his father and a letter dated 13.08.2008 was sent. There was no reply from the defendant. A notice was issued on 10.12.2008 to both the defendant and the said Sethuraman. The notice was returned with the endorsement “Intimation Delivered”. It had been stated that the plaintiff was always ready and willing to pay the balance sale consideration. It had been further stated that the defendant did not come forward to execute the sale deed and at the same time was making arrangement to sell the property. The suit was consequently filed for specific performance and for a permanent injunction.
Written Statement :
4. In the written statement, filed on behalf of the defendant, it had been stated that his residential address was No. 9/3, Gengu Reddy Road, Egmore, Chennai. In the written statement, it was specifically denied that his father Nandakumar executed an agreement of sale and it was further
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