Back
2017 Supreme(Mad) 190
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M.V. MURALIDARAN, J.
K. Viswanathan - Petitioner
Vs.
A. Ramesh - Respondent
CRP(NPD)No.4632 of 2010 and M.P.No.1 of 2010
Decided On : 01-02-2017
For the Petitioner: Mr. S. Sairam for M/s. M. Selvam
For the Respondent: Mr. P. Mani
The main legal point established in the judgment is that the appellant had the right to file an appeal against the rejection of specific performance relief and should be given an opportunity to prove the case in the appellate court, with the need to compensate for the delay of 543 days in the interest of justice.
Headnote:
Specific Performance - Civil Revision Petition - O.S.No.388 of 2008 - Summary of Acts and Sections: Sale of Goods Act, 1930 - Section 4, Indian Contract Act, 1872 - Section 73, Limitation Act, 1963 - Section 5 - The court discussed the provisions of the Sale of Goods Act, 1930, particularly Section 4, which deals with the sale and agreement to sell, and the Indian Contract Act, 1872, specifically Section 73, which pertains to compensation for loss or damage caused by breach of contract. The court also considered the Limitation Act, 1963, Section 5, regarding the extension of the period of limitation in certain cases. The interpretation of these provisions influenced the court's decision in allowing the civil revision petition and directing the District Court to number the appeal and dispose of the same within a specified period.
Fact of the Case:
The appellant filed a suit for specific performance after the respondent failed to execute a sale deed for a property despite receiving an advance payment. The trial court decreed the suit for the refund of the advance amount but rejected the specific performance prayer. The appellant filed an appeal with a delay of 543 days, seeking condonation of the delay.
Finding of the Court:
The court found that the appellant had the right to file an appeal against the judgment in O.S.No.388 of 2003 and should be given an opportunity to prove the case in the appellate court. It also noted that the delay of 543 days should be compensated in the interest of justice.
Issues: The issues involved the delay in filing the appeal, the right of the appellant to question the rejection of specific performance relief, and the need for the appellant to be given an opportunity to proceed with the appeal.
Ratio Decidendi: The court held that the appellant had the right to file an appeal and should be given an opportunity to prove the case in the appellate court. It also emphasized the need to compensate for the delay of 543 days in the interest of justice.
Final Decision: The civil revision petition was allowed, setting aside the order passed in I.A.No.61 of 2008, and the District Court was directed to number the appeal and dispose of the same within a period of three months, with both parties directed to cooperate for early disposal of the appeal.
The appellant is the civil revision petitioner before this Court, challenging the order in I.A. No. 61 of 2008 in A.S. No. Nil of 2008 in O.S.No.388 of 2008, dated 08.10.2010 on the file of the District Judge, Tiruvannamalai.
2. The case of the petitioner is that the suit schedule property is belongs to the defendant, who is the respondent herein and the appellant is the plaintiff in the suit. The respondent/defendant has agreed to sell the property to the plaintiff and hence on 07.04.2003 executed and registered sale agreement in favour of the appellant/plaintiff agreeing to sell the suit schedule of property for a sum of Rs.1,25,000/-. Therefore, on the same day the appellant/plaintiff has paid a sum of Rs.1,00,000/- as advance and the same was received by the respondent/defendant and agreed to receive the balance amount within one year. Though the appellant/plaintiff is ready and willing to perform his part of the contract and the defendant has evaded the receipt of the balance sale consideration and execute the registered sale deed in favour of the respondent/plaintiff. Therefore, on 03.10.2003, issued a notice, but the respondent/defendant failed to execute the sale deed. Therefore, he filed the suit in O.S.No.388 of 2003 for specific performance.
3. The respondent/defendant has filed his written statement denying the execution of the sale agreement. Due to the urgent need of money, the respondent/defendant approached the plaintiff for finance assistance and being the financier the plaintiff has given Rs.1,00,000/- and the defendant has executed a sale agreement as per instruction of the appellant/plaintiff and the appellant/plaintiff directed the respondent/defendant to pay the interest at the rate of 60% per annum, which was also agreed by the respondent/defendant. Pursuant to that till the month of September 2003, since the interest for the month of October 2003 is not paid, this plaintiff has filed the suit for specific performance. Therefore, the respondent/defendant sought for the dismissal of the suit.
4. Considering both side case, the learned Principal Subordinate Judge, Tiruvannamalai was pleased to decreed the suit on 30.03.2007 for payment of the amount of Rs.1,00,000/- with interest at 18% per annum and negatived the suit prayer for specific performance. Challenging the said decree, the appellant/plaintiff has filed an appeal in A.S. No. NIL of 2008 with a delay of 543 days before the learned District Judge at Tiruvannamalai.
5. The appellant/plaintiff has come forward by saying that though the learned Sub-Judge, Tiruvannamalai was pleased to passed the decree on 30.03.2007, but his lower Court counsel has not filed the copy application within the time limit and he has also not informed about the outcome of the suit. Therefore, under impression that the suit is pending. Thereafter, on knowing to the other counsel that the suit was decreed in respect of the claim amount only, but the suit was dismissed for specific performance on 30.03.2007 itself and as per the advice of the counsel, he was filed an appeal before the learned District Judge, Tiruvannamalai, but there is a delay of 543 days in filing the said appeal since the appeal should filed within a period of 30 days.
6. After obtaining the case bundle from the previous counsel and entrusted the case to the present counsel hereafter 01.09.2008 only the copy application was made, the said certified copy was delivered on 02.09.2008. Thereafter, immediately the appellant/ plaintiff has filed the appeal against the said order. Therefore, there is a delay of 543 days in filing the appeal, hence he prayed the learned District Judge, Tiruvannamalai to allow the condone delay application.
7. On receiving notice in the above I.A.No.61 of 2008 in A.S. No. Nil of 2008, the respondent/defendant has filed a counter statement by denying the entire allegations.
8. The respondent stated that after decreed the suit, this appellant/plaintiff has filed an Execution Petition
