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2019 Supreme(Mad) 1145
IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAVINDRAN, J.
Thanveerr Almas Sayib – Appellant
Versus
P. Radhakrishnan – Respondent
S.A. No. 237 of 2016
Decided On : 24-06-2019
Advocate Appeared:
For the Appellant : V. Raghavachari.
For the Respondents: S. Subbiah, P. Raja.
The plaintiff must demonstrate readiness and willingness to perform the contract to seek specific performance.
Headnote:
Specific Performance - Sale Agreement - CPC - Section 100 - O.S. No. 99 of 2010 - A.S. No. 8 of 2014 - Ex.A1, Ex.A5
Fact of the Case:
The plaintiff filed a suit for specific performance and permanent injunction against the defendant, who was the power of attorney holder of the owner of the suit property. The plaintiff claimed that a sale agreement was entered into, but the defendant disputed its validity and alleged fabrication.
Finding of the Court:
The trial Court declined the specific performance but directed the defendant to return the advance sum with interest. The first appellate Court granted specific performance and permanent injunction. The second appeal set aside the first appellate Court's decision and confirmed the trial Court's judgment.
Issues: Validity of the sale agreement, readiness and willingness of the plaintiff, and the defendant's authority as power of attorney holder.
Ratio Decidendi: The plaintiff failed to establish readiness and willingness and dispel doubts about the sale agreement, leading to the denial of specific performance. The defendant's authority as power of attorney holder was accepted, and the plaintiff's claim was dismissed.
Final Decision: The second appeal was allowed, setting aside the first appellate Court's decision and confirming the trial Court's judgment.
(Prayer: Second Appeal has been filed under Section 100 of CPC against the Judgment and Decree dated 05.12.2015 passed in A.S. No. 8 of 2014 on the file of the 3rd Additional District Court, Vellore, reversing the Judgment and Decree dated 27.08.2012 passed in O.S. No. 99 of 2010 on the file of the Subordinate Court, Vaniyambadi.)
1. Challenge in this second appeal is made to the Judgment and Decree dated 05.12.2015 passed in A.S. No. 8 of 2014 on the file of the 3rd Additional District Court, Vellore, reversing the Judgment and Decree dated 27.08.2012 passed in O.S. No. 99 of 2010 on the file of the Subordinate Court, Vaniyambadi.
2. The second appeal has been admitted on the following substantial questions of law:
“(a) Whether the lower Appellate Court is justified in decreeing the suit filed against the power agent without even describing the status and further decreeing the suit in the absence of the owner of the property?
(b) Whether the decree for specific performance could be granted in respect of a property based on an alleged agreement even in the absence of the owner of the property being made a party?
(c) Whether a decree for specific performance can be granted when the agreement is clouded, unclear and tainted?”
3. Considering the scope of the issues involved between the parties as regards the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail.
4. The parties are referred to as per their rankings in the trial Court.
5. Suffice to state that the suit has been laid by the plaintiff against the defendant for the reliefs of specific performance and permanent injunction.
6. In brief, according to the plaintiff, the defendant as the General Power of Attorney agent of the owner of the suit property viz. Megajabeev Sahaya, on the strength of the General Power of Attorney deed dated 29.10.2008 entered into a sale agreement with the plaintiff for the sale of the suit property on 11.09.2009 for a sale consideration of Rs. 2,00,000/- and received a sum of Rs. 1,50,000/- on the date of the sale agreement and the balance sale consideration of Rs. 50,000/- was agreed to be paid within three years from the date of the sale agreement and the time fixed for the performance of the agreement is not essential and the plaintiff has been always ready and willing to perform his part of the contract and on the other hand, the defendant had been evading the execution of the sale deed as per the terms of the sale agreement, hence the plaintiff caused the legal notice on 09.08.2010 and to the same, the defendant sent a reply notice dated 11.08.2010 and despite the plaintiff's readiness and willingness, the defendant had failed to come and execute the sale deed and hence, the suit.
7. The defendant resisted the plaintiff's suit and admitted the General Power of Attorney deed executed in his favour by the owner of the suit property viz. Megajabeev Sahaya, however, disputed the sale agreement projected by the plaintiff and contended that he had not entered into any sale agreement with the plaintiff qua the suit property as recited in the plaint and also disputed the payment of Rs. 1,50,000/- by the plaintiff to him on the date of the sale agreement as advance. According to the defendant, he borrowed a sum of Rs. 1,00,000/- as loan from one Senthilkumar @ Selvaraj in the year 2009 and at the time of the advancement of the said loan, Senthilkumar @ Selvaraj obtained his signature in blank stamp papers and green papers and the plaintiff is the benami of the abovesaid Senthilkumar @ Selvaraj and the abovesaid Senthilkumar @ Selvaraj also created the General Power of Attorney deed in his favour and the same has been cancelled by the defendant subsequently and the defendant had also levied the suit against him in O.S. No. 94 of 2010 on the file of the District Munsif Cosurt, Ambur and the same is pending and there is also a criminal case pending in respect of the cheques issued by the defendant at
