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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
S.S. SUNDAR, J.
Balakrishnan and Ors. - Appellants
Vs.
B. Veni and Ors. - Respondent
Appeal Suit (MD) No. 30 of 2011 and M.P.(MD) No.1 of 2013
Decided On : 02-06-2017
Appeal has been filed by defendants in the suit on the file of the Additional District Court (Fast Track Court-II), Tirunelveli – First respondent in this appeal, as plaintiff, filed a suit in for specific performance of an agreement of sale and for consequential relief – Suit properties are described in three items are landed properties each measuring an extent of 44 cents in Survey in Chathiram Puthukulam Village, Tirunelveli Taluk – During the pendency of the suit, the first defendant in the suit died and hence, respondents were impleaded as the legal representatives of the deceased first defendant –Held, In another judgment of the Honble Supreme Court in the case of Satya Jain v. Anis Ahmed Ruushdie reported it has been held that the period during which the defendant was factually absent from India is liable to be excluded and that the suit was well in time after excluding the period of absence of defendant from India – It was further held in that case that the defendants should be directed to execute the sale deed in favour of plaintiff, but as per the price of the suit property as on the date of the order passed by the Honble Supreme Court – This judgement would clearly indicate that the delay in approaching the Court is also relevant and that the Courts are expected to consider even the delay on account of the pendency of the proceedings before the Court while granting the relief – This judgement is not helpful to the respondents in the present case – Apart from delay, the conduct of plaintiff and the material circumstances noticed, this Court is of the firm view that the plaintiff cannot be granted the relief on the principles reiterated by Courts interpreting Section 20 of Specific Relief Act – Appeal is allowed.
This appeal has been filed by defendants 2 to 9 in the suit in O.S.No.11 of 2010 on the file of the Additional District Court (Fast Track Court-II), Tirunelveli. The first respondent in this appeal, as plaintiff, filed a suit in O.S.No.11 of 2010 for specific performance of an agreement of sale and for consequential relief.
2. The suit properties are described in three items. Items 1 and 2 are landed properties each measuring an extent of 44 cents in Survey No.124 in Chathiram Puthukulam Village, Tirunelveli Taluk. Item No.3 is a small well located in the first item of suit property. During the pendency of the suit, the first defendant in the suit died and hence, respondents 10 to 15 were impleaded as the legal representatives of the deceased first defendant.
3. The case of the plaintiff/first respondent herein are as follows:
3.1. Originally, the defendants 1 to 3 entered into a sale agreement on 30.04.2005 agreeing to sell the suit property and another property measuring an extent of 48 cents in Survey No.81 in the same village for consideration at the rate of Rs.18,000/- per cent. On the date of agreement, a sum of Rs.3,00,000/- was paid as advance. Since the defendants 1 to 3 did not hand over the title documents in respect of the suit properties, the plaintiff got a power of attorney deed from defendants 1 to 3 in the name of her husband in respect of the properties in Survey No.81 and cancelled the sale agreement dated 30.04.2005, on 18.04.2007. On the same date, namely, on 18.04.2007, the defendants 1 to 3 executed a registered sale agreement in respect of the suit property agreeing to sell the suit property at the rate of Rs.18,000/- per cent.
3.2. A sum of Rs.1,00,000/- was paid as advance under the agreement. As per the terms of the sale agreement, the defendants 1 to 3 undertook to clear all encumbrances, if any. For the purpose of production of title deeds, fresh agreement dated 18.04.2007 was executed after cancelling the previous agreement dated 30.04.2005. At the request of the defendants 1 to 3, six months time was fixed for the performance of the contract. Though the plaintiff was always ready and willing to give the balance and get the sale deed, defendants 1 to 3 have not given the title deed in respect of the suit properties to show that they have title. The plaintiff and her husband visited almost every day asking the defendants 1 to 3 to give title deed.
3.3. When the plaintiff and her husband insisted the title deeds for the purpose of getting the sale deed registered, the defendants 1 to 3 told them that they would execute the sale deed in the month of xxx 2009. Even earlier in 2005, the defendants 1 to 3 received a sum of Rs.3,00,000/- to execute the sale deed only in respect of the one item in the year 2007 after getting the sale consideration. After the sale agreement in 2007, the defendants 1 to 3 did not call upon the plaintiff for completing the sale transaction. Since a sum of Rs.1,00,000/- has been paid by the plaintiff, it is only the plaintiff who has been demanding the defendants to execute the sale deed.
3.4. On 21.11.2009, the plaintiff issued a legal notice calling upon the defendants 1 to 3, to execute the sale deed and to inform the plaintiff about the documents of title deed before the sale. However, the defendants 1 to 3 sent reply through their Advocates on 25.11.2009. In the notice sent by the plaintiff, the plaintiff requested the defendants 1 to 3 to inform as to how the suit properties, which are standing in the name of one Thirumalai Nambi, Rajagopal and Thangammal, became the properties of the plaintiff. Thereafter, the defendants 1 to 3 stated that the property belonged to them. However, as per the notice, dated 21.11.2009, issued by the plaintiff, the defendants 1 to 3 have not given the title documents to register the sale deed. However, to defraud the plaintiff, a reply dated 25.11.2009 was sent by the defendants 1 to 3. Hence, the plaintiff once again issued a notice on
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