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2017 Supreme(Mad) 3748

IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. Subbiah, M.S. Ramesh, JJ.
S. Deivanai – Appellant
Versus
V.M. Kothandaraman – Respondent
A.S. No. 367 of 2015
Decided On : 22-06-2017

Advocates Appeared:
For the Appellants : Mr. M.S. Krishnan for Mr. M. Gopinath.
For the Respondent: Mr. K. Sukumaran.

Headnote:

Specific Relief Act, 1996 - Section 16 (c) - Suit decree - Sale Agreement - To execute the sale deed in respect of the suit schedule property in favour of the plaintiff on receipt of the balance sale consideration - For the sake of convenience, the parties will be referred to as per their ranking in the suit as plaintiff and the defendants - Defendants have also agreed to discharge the loan availed - Defendants have agreed to show the original title deeds including the parent documents, copy and Encumbrance Certificate to the plaintiff and hand over the photocopies of the same to the plaintiff within the stipulated time - Held, Court is not inclined to accept the submission made by the learned senior counsel appearing for the appellants/defendants that based on the postal endorsement, it has to be presumed that Notice was served on the plaintiff and since the plaintiff has evaded service of the notice - It is well settled that in cases of contract for sale of immovable property the grant of relief of specific performance is a rule and its refusal an exception based on valid and cogent grounds - Further, the defendant cannot take advantage of his own wrong and then plead that decree for specific performance would be an unfair advantage to the plaintiff - Escalation of price during the period may be a relevant consideration under certain circumstances for either refusing to grant the decree of specific performance or for decreeing the specific performance with a direction to the plaintiff to pay an additional amount to the defendant and compensate him - It would depend on the facts and circumstances of each case - Opinion that the plaintiff could be directed to pay interest on the sale consideration - Appeal dismissed.

JUDGMENT :

R. Subbiah, J.

1. The appellants herein are the defendants 1, 2, 4 and 5 in O.S. No. 40 of 2009 on the file of the learned III Additional District Judge at Puducherry. The said suit was filed by the 1st respondent herein/plaintiff for specific performance, directing the defendants to execute the sale deed in respect of the suit schedule property in favour of the plaintiff on receipt of the balance sale consideration of Rs. 1,15,98,000/- in alternative, the court shall execute the sale deed.

2. During the pendency of the suit, the 3rd defendant S. Dhandapani died on his demise, his wife and son were brought on record as Defendants 6 and 7 as his legal heirs. The Trial Court decreed the said suit by judgment and decree dated 20.11.2014, against which the defendants have come forward with the present appeal.

3. Even before the present appeal being numbered, the defendants 6 and 7 have sold their share in the suit schedule property in favour of the plaintiff; hence, the defendants 6 and 7 have been transposed in this appeal as Respondents 2 and 3.

4. For the sake of convenience, the parties will be referred to as per their ranking in the suit as plaintiff and the defendants.

5. The facts of the case of the plaintiff, inter-alia, are as follows:-

5.1. The defendants agreed to sell the suit schedule property to the plaintiff for a valid sale consideration at the rate of Rs. 32,000/- per kuzhi. For the said purpose, the plaintiff and the defendants entered into a Sale Agreement on 18.12.2006 and on the same day, a sum of Rs. 10 lakhs was received by the defendants from the plaintiff as advance. As per the terms of the Sale Agreement, the defendants have agreed to measure the suit schedule property on or before 10.02.2007 and on such measurement, depending upon the extent available on ground, the total amount payable by the plaintiff has to be calculated at the rate of Rs. 32,000/- per kuzhi, after deducting the advance amount of Rs. 10 lakhs. On receipt of the balance sale consideration, the defendants would execute the sale deed at the cost of the plaintiff. Further, the defendants have also agreed to discharge the loan availed by them from Karikalampakkam Agricultural Co-operative Credit Society and show the discharge receipt to the plaintiff before the said date viz. 10.02.2007.

5.2. Further, as per Clause 7 of the Sale Agreement, the defendants have agreed to show the original title deeds including the parent documents, patta copy and Encumbrance Certificate to the plaintiff and hand over the photocopies of the same to the plaintiff within the stipulated time.

5.3. It is further case of the plaintiff that he has expressed his readiness and willingness to perform his part of the contract on various occasions and requested the defendants to measure the suit property and to produce the original title deeds, parent documents, Patta and Encumbrance Certificate for verification and handover the photocopies of the same to the plaintiff as agreed upon by them under Clause 7 of the Sale Agreement. But, whenever the plaintiff requested the defendants to perform the said obligations, the defendants requested some more time to perform their obligations under the contract. Having expressed his readiness and willingness, the plaintiff patiently waited. Whereas the defendants have not chosen to perform their obligations such as measuring the suit property, clearing the loan and producing the original documents as agreed upon by them under the Sale Agreement. Hence, the plaintiff issued a notice to the defendants on 11.02.2007 expressing his readiness and willingness to pay the balance sale consideration as agreed upon under the Sale Agreement and called upon the defendants to measure the property and perform their obligations and execute the Sale Deed within 15 days from the date of the receipt of the Notice. On receipt of the said notice, the defendants issued a reply dated 23.02.2007 with false and frivolous allegations, as if they had alre























































































































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