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IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SUBBIAH, KRISHNAN RAMASAMY, JJ.
K. Kanagasabai and Ors. - Appellants
Vs.
R. Sankar - Respondent
Original Side Appeal No. 13 of 2014 and Miscellaneous Petition No. 1 of 2014
Decided On : 20-03-2019
Indian Evidence Act 22 - Section 92 - Specific Relief Act, 1963 - Section 20 - Sake of convenience - Sale agreement - Whether the defendants, having admitted execution of sale agreement - Bank - In fact first defendant had also executed a General Power of Attorney supporting agreement to and in favor of plaintiff which was registered with Sub-Registrar Document and subsequently plaintiff came to understand that first defendant had cancelled Power Deed and was attempting to sell suit property to a third party - plaintiff was always ready and willing to pay remaining sale consideration and since defendants were dragging on sale proceedings plaintiff has filed the present suit for the following reliefs – Held, Court reiterate that if it is a sale transaction defendants need not make all endorsements to effect that in order to meet urgent family expenses etc - Further, in one of clauses contained in agreement it is stated that in the event of failure plaintiff is entitled for payment of the amount with interest - If really it is a sale transaction recital would have been to effect that sale advance already paid will be forfeited in event of failure by purchaser - In a sale transaction endorsement of this nature will be made very rarely - Therefore Court are opinion that plaintiff failed to establish beyond doubt that transaction is a sale transaction warranting a decree for specific performance in his favor - Respondent/plaintiff has not established entire gamut of his claim and his case is shrouded by mystery and suspicion and therefore this is not a fit case to exercise the equitable and discretionary relief of specific performance - Further as on the date of agreement, according to records, the value of the property is sale agreement it was mentioned only as and accordingly the parties have agreed to enter into sale transaction only for - Moreover, in the sale agreement, the property is mentioned as though on the date of agreement of sale, advance amount was paid and it is admitted in cross-examination of plaintiff that he had deposited amount in the Bank - Above all during the course of arguments, the learned counsel for defendants/appellants agreed to repay amount received from the plaintiff especially when defendants/appellants did not dispute receipt of amount from plaintiff in this case - Therefore as conceded by learned counsel for the appellants/defendants appellants /defendants are directed to refund amounts paid by plaintiff/respondent with interest at annum from date of plaint till date of payment - Petition is closed
JUDGMENT :
R. Subbiah, J.
1. This Original Side Appeal has been filed against the judgment and decree dated 10.12.2012 passed by the learned Single Judge in C.S. No. 923 of 2005 on the file of this Court, decreeing the said suit filed by the respondent herein by granting the relief of specific performance with a further direction directing the appellants to receive the balance amount of Rs. 4,53,000/- which is lying in the Court deposit forthwith and execute and register the sale deed in respect of the suit schedule property in favour of the respondent, in default the Assistant Registrar, Original Side-I of this Court to execute the sale deed in favour of the plaintiff on behalf of the defendants/appellants.
2. The appellants are the defendants and the respondent herein is the plaintiff in the suit filed before the learned Single Judge. For the sake of convenience, the parties are herein referred to as they are ranked in the suit as plaintiff and defendants.
3. It is the case of the plaintiff that the first defendant is the father of the defendants 2 to 4. The defendants have entered into a sale agreement with the plaintiff with an intention to sell their house property situated at Plot No. 111, 4th Street, Door No. 5, E.K. Ragava Reddy Colony, Jaffarkhanpet, Chennai-600 015. Subsequently, the defendants 1 to 4 have executed a sale agreement in favour of the plaintiff on 27.05.2005 by confirming the sale consideration of Rs. 40 lakhs. According to the plaintiff, on 27.05.2005, while executing the sale agreement, the defendants 1 to 4 have received a sum of Rs. 20 lakhs as sale advance from the plaintiff and handed over all the original documents pertaining to the suit property. The defendants 1 to 4 and the plaintiff agreed to complete the sale process within six months from the date of the sale agreement. Further, the plaintiff paid to the defendants 1 to 4 further sale advance of Rs. 15,47,000/- on various occasions to meet their family expenses and to settle their debt and last of such amount was received on 07.09.2005. To this effect, the defendants 1 to 4 have made endorsement on the reverse side of the sale agreement and thereby acknowledged the amount paid to them by the plaintiff. Thus, the plaintiff has paid a total sum of Rs. 35,47,000/- till 07.09.2005 to the defendants 1 to 4 towards sale consideration. The plaintiff has to pay the balance amount of Rs. 4,53,000/- to the defendants 1 to 4. Though the plaintiff called upon the defendants 1 to 4 on several occasions to receive the balance sale amount and execute the sale deed in his favour, the defendants 1 to 4 prolonged the sale process by assigning lame excuse. In fact, the first defendant had also executed a General Power of Attorney supporting the agreement to and in favour of the plaintiff on 31.05.2005, which was registered with the Sub-Registrar, Jaffarkhanpet, vide Document No. 486 of 2005 and subsequently, the plaintiff came to understand that the first defendant had cancelled the Power Deed and was attempting to sell the suit property to a third party. The plaintiff was always ready and willing to pay the remaining sale consideration of Rs. 4,53,000/- and since the defendants were dragging on the sale proceedings, the plaintiff has filed the present suit for the following reliefs:
(i) to direct the defendants 1 to 4 to execute the sale deed in favour of the plaintiff after receiving the remaining sale amount of Rs. 4,53,000/- from the plaintiff within the stipulated period, otherwise, to appoint a Court Officer to execute the sale deed in favour of the plaintiff, and
(ii) to pass an order of permanent injunction restraining the defendants 1 to 4, their men, agents, representatives, legal heirs or any others from alienating the agreement property.
4. The defendants resisted the suit filed by the plaintiff by filing written statement by contending that the suit transaction had taken place in the year 2005 when the son of the first defendant, namely the second defen
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