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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
M. SUNDAR, J.
Vijaya - Appellant
Versus
R. Sankar Narayanan - Respondent
Appeal Suit No. 166 of 2010
Decided On : 09-07-2018
Civil Procedure Code - Section 96 - trial Court - specific performance suit - said sale agreement – jurisdiction - It is the further case of plaintiff that the defendants did not perform their obligations under Ex.A.1., by receiving the balance sale consideration and executing the sale deed, though, the plaintiff was ready and willing to perform all his obligations vide Ex.A.1. It is also the case of the plaintiff that owing to this, plaintiff caused a notice through lawyer dated 12.09.2008, to be issued to the defendants and all the four defendants have refused to receive the lawyers notice. The lawyers notice dated 12.09.2008, together with the four returned envelopes showing postal endorsements as refused have been marked as Exs.A.9 and A.10, in the trial Court – Held, scope of interfering in such decrees is fairly limited. However, as a Court of last facts, this Court has also carefully applied its mind to the manner in which the trial Court has exercised its discretionary equitable jurisdiction and decreed the suit in favour of the plaintiff. As alluded to supra, the oral and documentary evidence have also been independently assessed by this Court for answering the points for determination Nos. 1 and 2 supra - To the mind of this Court, there is no difficulty in coming to the same conclusion that the suit laid by the plaintiff deserves to be decreed, as Ex.A.1 stands established and atleast some of the endorsements made therein have been signed by all the four defendants and most importantly, entire balance sale consideration had been deposited in full by the plaintiff in the trial Court. In other words, in applying the documentary, oral evidence and appreciating the same, this Court is of the view that on and independent application of mind, it would not come to a conclusion that is any different from the conclusion which the trial Court has come to - At this juncture, as a last submission, Mr.T.S.Mohammed Mohideen, learned Counsel, requested this Court to consider decreeing this appeal without costs. Learned Counsel also pointed out that the trial Court has decreed the suit with cost and made a request to consider deleting the cost portion of the decree. Learned Counsel for defendants who are appellants before this Court requested this Court to exercise its equitable discretionary remedy to set aside the cost portion of the decree of the trial Court - Considering the nature of the lis and the trajectory of this litigation thusfar in this Court, this Court in exercise of its equitable discretionary jurisdiction is of the view that this will be a fit case to not only confirm the decree without costs but also to set aside that limb of the decree of the trial Court pertaining to costs alone - Appeal allowed
JUDGMENT :
M. SUNDAR, J.
1. A specific performance suit was filed by one R.Sankara Narayanan. This specific performance suit is O.S.No.73 of 2008, on the file of the 'Principal District Court, Theni', which shall hereinafter be referred to as 'trial Court' for the sake of convenience and clarity.
2. There are four defendants in the specific performance suit in the trial Court and all four are siblings. In other words, the four defendants are one Periyathambi and his three sisters. Periyathambi, is Defendant No.2.
3. The suit was filed in the trial Court on 30.09.2008, almost a decade ago. It is the case of plaintiff Sankara Narayanan that the defendants entered into a sale agreement dated 07.02.2007 (Ex. A.1), agreeing to sell immovable property i.e., agricultural land admeasuring 2 acres and 40 cents or thereabouts comprised in Survey No.551/1 in Kottur Village in Chinnamanoor Sub District, Periyakulam Registration District and Theni District, for a total sale consideration of Rs. 8,88,000/-, took an advance / part payment of sale consideration of Rs. 50,000/- and agreed to complete the sale transaction on or before 16.08.2007.
4. Aforesaid property which is subject matter of Ex.A.1., is described in greater detail / more particularly in the trial Court decree and the same reads as follows:
XXX
5. The aforesaid property shall hereinafter be referred to as 'suit property' and aforesaid 'sale agreement' dated 07.02.2007 (Ex.A.1), shall hereinafter be referred to as 'said sale agreement'.
6. It is the case of the plaintiff that the time fixed for execution of sale under Ex.A.1 i.e., time originally fixed being 16.08.2007, was extended three times subsequently. According to plaintiff, it was extended up to 15.02.2008. Thereafter, up to 14.08.2008 and finally up to 12.09.2008. These three extensions were made on 16.08.2007, 15.02.2008 and 13.08.2008, respectively (by way of endorsements in Ex.A.1) and have been marked as Exs.A.5, A.7 and A.8, respectively.
7. Besides Rs. 50,000/- paid as advance and part of sale consideration at the time of execution of Ex.A.1, according to plaintiff, four further payments were made as advance and part of sale consideration. It is plaintiff's case that these four payments are Rs. 25,000/- on 08.02.2007, Rs. 5,000/- on 29.06.2007, Rs. 15,000/- dated 22.07.2007 and Rs. 65,000/- on 30.08.2007. All these four payments are also evidenced by endorsements in Ex.A.1 and they have been marked as Exs.A.2, A.3, A.4 and A.6, respectively.
8. It is the further case of plaintiff that the defendants did not perform their obligations under Ex.A.1., by receiving the balance sale consideration and executing the sale deed, though, the plaintiff was ready and willing to perform all his obligations vide Ex.A.1. It is also the case of the plaintiff that owing to this, plaintiff caused a notice through lawyer dated 12.09.2008, to be issued to the defendants and all the four defendants have refused to receive the lawyer's notice. The lawyer's notice dated 12.09.2008, together with the four returned envelopes showing postal endorsements as refused have been marked as Exs.A.9 and A.10, in the trial Court. To be noted, Ex.A.9 is dated 12.09.2008 and Ex.A.10 is dated 15.09.2008. It is also the further case of the plaintiff that he had been to the jurisdictional Registrar's Office, expecting execution of the sale deed.
To support this, two documents in which the plaintiff has signed as witnesses were marked as Exs.A.11 to A.12. Exs.A.11 and A.12 are dated 16.09.2008. Plaintiff had also filed his bank account extracts as Ex.A.13.
9. Plaintiff examined himself as P.W.1 and one Maheshwaran, whom according to the plaintiff is a witness to the aforesaid endorsements in Ex.A.1., was examined as P.W.2. To be noted, he is a witness to endorsement which has been marked as Ex.A.8.
10. On the side of the defendants, a common written statement dated 27.01.2009 was filed. This written statement contains six paragraphs and runs to 1 + pages. A perusal
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