IN THE HIGH COURT OF JUDICATURE AT MADRAS
R.SUBBIAH, A.D.JAGADISH CHANDIRA, JJ.
Tmt.R.Selvam - Appellant
Vs.
A.Jenix Dev Singh - Respondent
A.S.No.487 of 2011 and C.M.P.Nos.18473 & 14042 of 2016
Decided On : 31-08-2017
Limitation Act - Article 54 – Civil Procedure Code, 1908 - Order 7 and 41 - Rule 11 and 27 - Indian Contract Act - Section 56 – Civil Suit – Suit for specific performance of sale of contract as per sale agreement - Ready and willing to perform his part of contract - Sale Agreement – Execution of - Essence of contract - Suit schedule property originally belonged to defendants 1 & 2 - Plaintiff and 2nd defendant entered into an Agreement of Sale under which plaintiff agreed to purchase suit property - Sale agreement was executed by 2nd defendant, with consultation and consent of 1st defendant, who was at abroad at time of execution of sale agreement - On date of sale agreement 2nd defendant received amount from plaintiff as advance - Time fixed under Sale agreement is not essence of contract - Whether plaintiff is entitled for specific performance of sale of contract as per sale agreement - Held, Court opinion that really if there is no consent from 1st defendant, she could have informed plaintiff at least after her arrival from USA - 2nd defendant, as D.W.1, has adduced evidence that he has intimated the 1st defendant about execution of sale agreement - But, 1st defendant did not deny or send any thing in writing to plaintiff about her unwillingness to stand by sale agreement - Since the ownership of the property became core issue to construe validity of agreement, said documents are sought to be marked in appeal for purpose of appreciation of true facts and circumstances – Thus counsel for appellants/defendants submitted that said documents have to be received as additional documents in appeal and consequently, matter has to be remanded back to trial Court for purpose of adducing further evidence by marking the said documents - It is not open to defendants to make fresh allegations and call upon other side to admit or deny such allegations at stage of appeal, which is contrary to provisions contained under Order 41 Rule 27 of CPC – Court view that plea of defendants to grant leave to mark additional documents at appellate stage cannot be countenanced and it has to be rejected - Appeal is dismissed.
R.SUBBIAH, J.
The appellants herein are the defendants 1 & 2 and the 1st respondent herein is the plaintiff and the 2nd respondent herein is the 3rd defendant in the suit in O.S.No.144 of 2008 on the file of the learned Additional District Judge (FTC-II), Poonamallee. The said suit was filed by the 1st respondent herein/plaintiff for specific performance, directing the appellants herein/defendants 1 & 2 to execute the Sale Deed in favour of him in respect of the suit property, after receiving the balance sale consideration of Rs.13,58,000/- from the plaintiff or in alternative, the Court shall execute the sale deed. The Trial Court has decreed the suit vide the judgment and decree dated 09.06.2011, against which the defendants 1 & 2 have come forward with the present appeal.
2. For the sake of convenience, the parties shall be referred to as per rankings in the suit, as plaintiff and the defendants.
3. The facts of the case of the plaintiff are as follows –
The 2nd defendant is the husband of the 1st defendant. The suit schedule property originally belonged to the defendants 1 & 2. The plaintiff and the 2nd defendant entered into an Agreement of Sale on 22.01.2005, under which the plaintiff agreed to purchase the suit property for a sum of Rs.28,58,000/-. The sale agreement was executed by the 2nd defendant, with the consultation and consent of the 1st defendant, who was at abroad at the time of execution of the sale agreement. On the date of sale agreement ie., on 22.01.2005, the 2nd defendant received a sum of Rs.5,00,000/- from the plaintiff as advance. Time fixed under the Sale agreement is not the essence of the contract. On 24.11.2005, the 2nd defendant received another sum of Rs.10 lakhs from the plaintiff towards a portion of the sale consideration and made an endorsement on the rear side of the Sale Agreement as instructed by the 1st defendant from U.S.A. Thereafter, inspite of requests and reminders of the plaintiff, in person and over phone, both the defendants not only evaded to receive the balance sale consideration of Rs.13,58,000/- from the plaintiff, but also to execute the sale deed in his favour as agreed on 22.01.2005 and 24.11.2005 respectively and they were postponing the execution of the sale deed on one pretext or the other. The plaintiff was always ready and willing to pay the balance sale consideration and to obtain sale deed from the defendants. On 31.05.2008, the plaintiff tendered the balance sale consideration, but the defendants bluntly refused to receive the same. The plaintiff came to know that the defendants 1 & 2 are making secret arrangements to sell the suit property to third parties, without the consent and knowledge of the plaintiff. Hence, the plaintiff left with no other option has filed the suit for the following reliefs-
"(a) for Specific Performance of the Contract of the Sale Agreement dated 22.01.2005, directing the defendants 1 & 2 to execute the Sale Deed in respect of the suit property, after receiving the balance sale consideration of Rs.13,58,000/- from the plaintiff. In default, this Court may execute and register the sale deed in respect of the suit property, on deposit of the balance sale price of Rs.13,58,000/-.
(b) granting permanent injunction restraining the defendants 1 & 2, their men, agents and nominees from alienating or encumbering the sit property to any 3rd party;
(c) granting permanent injunction restraining the 3rd defendant, his sub-ordinates and successors-in-office from entertaining or registering any sort/kind of documents in respect of the suit property submitted by anyone.
(d) directing the defendants to pay the cost of the suit and pass such further or other reliefs"
4. Resisting the case of the plaintiff, the defendants 1 & 2 have filed separate written statements, by engaging separate counsel.
5. The 1st defendant in her written statement has contended that the allegation of the plaintiff that the suit property belongs to her and her husband is not corr
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