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2019 Supreme(Mad) 405
IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. SATHISH KUMAR, J.
P. Kanagaraj - Appellant
Versus
P. Selvaraj & Another - Respondent
S.A. No. 492 of 2012 & M.P. No. 1 of 2012
Decided on : 11-03-2019
For the Petitioner:K. Govi Ganesan, Advocate.
For the Respondents:Mukund for M/s. Sarvabauhman Assots, Advocates.
The validity of a sale agreement and the establishment of readiness and willingness to perform a contract are crucial in cases of specific performance.
Headnote:
Specific Performance - Sale Agreement - Section 188, Section 203 of the Indian Contract Act - The court confirmed the decree for specific performance of the sale agreement dated 24.07.2006, holding that the power of attorney was in existence at the time of the sale agreement and the plaintiff had established readiness and willingness to perform his part of the contract.
Fact of the Case:
The plaintiff filed a suit for specific performance of a sale agreement dated 24.07.2006, alleging that the defendants failed to execute the sale deed as per the agreement. The first defendant contended that the sale agreement was anti-dated and forged, and that the plaintiff did not establish readiness and willingness to perform the contract.
Finding of the Court:
The court found that the sale agreement was valid as the power of attorney was in existence at the time of the agreement, and the plaintiff had established readiness and willingness to perform the contract.
Issues: Validity of the sale agreement, existence of power of attorney, and plaintiff's readiness and willingness to perform the contract.
Ratio Decidendi: The court held that as long as the power of attorney was in existence, any act done by the agent binds the principal, and the plaintiff had established readiness and willingness to perform the contract.
Final Decision: The second appeal was dismissed, confirming the decree and judgment passed by the trial court and the first appellate court.
(Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure against the decree and judgment dated 19.04.2011 passed in A.S.No.101 of 2010 by the Additional District Judge, Fast Track Court No.III, Coimbatore confirming the decree and judgment dated 30.06.2008 passed in O.S.No.682 of 2006 by the First Additional Subordinate Judge, Coimbatore.)
1. Aggrieved over the concurrent findings of the courts below, decreeing the suit for specific performance of the sale agreement dated 24.07.2006, the second appeal has been filed by the revision petitioner, who is the first defendant in the original suit.
2. Heard the submission of the both side, at the admission stage itself.
3. The suit in O.S.No.682 of 2006 had been filed by the plaintiff to enforce the sale agreement dated 24.07.2006 (Ex.A3) executed by the 2nd defendant, the power of attorney of the first defendant, in favour of the plaintiff. The sale agreement was executed for sale of two plots measuring 1804 sq.ft and 1916 sq.ft. for a sale price of Rs.30,000/- per cent and the 2nd defendant received a sum of Rs.15,000/- towards advance from the plaintiff. The time for completion of sale was three months. It is the case of the plaintiff that he had been always ready and willing to perform his part of the agreement, however the defendants have not come forward to execute the sale deed and hence, he caused legal notice dated 25.09.2006, marked as Ex.A4, to the defendants to execute the sale deed in favour of the plaintiff, whereas, the first defendant sent a reply notice dated 09.10.2006, marked as Ex.A6, alleging that the sale agreement is not true and hence the suit.
4. The revision petitioner/first defendant filed a written statement stating that he executed a power of attorney in favour of the 2nd defendant in respect of a land measuring 1.27 1/2 acres to form a lay out. The first defendant is a real estate business man and the 2nd defendant and one Parameswaran are his relatives and he executed a power of attorney dated 21.06.2006 and 09.09.2004 respectively in favour of them. Later, since the activities of the said Parameswaran and the 2nd defendant were being against the interest of the first defendant, he cancelled the said power attorney on 29.08.2006 and also issued a legal notice dated 02.09.2006 as well as a public notice in the daily newspaper namely " Dinamalar" dated 02.09.2006 and 07.09.2006. It is the contention of the first defendant that, in order to cheat him, the 2nd defendant and the said Parameswaran, colluded with the plaintiff, created the sale agreement. According to him, the second defendant neither informed about the sale agreement nor paid the advance amount to the first defendant and the sale agreement is forged one and hence, he prayed for dismissal of the suit.
5. The trial court framed necessary issues. During trial, on the side of the plaintiff, he examined himself and one another witness as PW1 and PW2 and marked Ex.A1 to Ex.A7. On the side of the first defendant, he examined himself and one another witness as DW1 and DW2 and marked Ex.B1 to Ex.B15. After analysing the entire evidence on record, the trial court decreed the suit for specific performance. The first appellate court also confirmed the decree and judgment of the trial court. Against which, the second appeal has been filed.
6. The learned counsel appearing for the revision petitioner/ first defendant would contend that the sale agreement dated 24.07.2006 is anti dated and it has been created, after cancellation of power of attorney dated 29.08.2006 and hence, the sale agreement is forged one. According to the revision petitioner, the cancellation of power of attorney was intimated to the 2nd defendant through a legal notice dated 02.09.2006 and to that effect, he had also given a publication in the daily newspaper "Dinakaran". The another contention of the revision petitioner is that the stamp papers for sale agreement were purchased in the name of 2nd defendant on
