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IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAVINDRAN, J.
Jasinthamary – Appellant
Versus
S. Paneerselvam & Others - Respondents
A.S.No. 422 of 2012 & M.P.No. 1 of 2012
Decided on : 22-10-2019
Civil Procedure Code,1908 - Section ,93 - Order 2 - Rule 2 - Alternative relief claim in plaint - Pay balance sale price - Plaint schedule property belongs to defendants defendant her husband defendants agreed to convey the plaint schedule property in favour plaintiff and defendant for sale price and executed an agreement for sale and prior to they had in received a advance and time for performance of contract and balance amount should be paid at time of registering the instrument defendants orally agreed to hand over the documents pertaining suit property and the plaintiff is always ready and willing to pay the balance amount and take sale deed plaintiff is working as a staff nurse and owing to bad contacts defendant incurred huge loans his business and due lot change in his behavior he is living separately and lending a wayward life and plaintiff has filed divorce case against him and the same is pending sale advance amount has been paid only by plaintiff. Despite the endeavors plaintiff to complete sale transaction defendants had been delaying same and therefore plaintiff issued legal notice Despite the receipt of the notice defendants neither complied with the demand made nor replied to the same and therefore according to plaintiff she has been necessitated lay suit against defendants for appropriate reliefs –Held, Plaintiff has never been ready and willing to perform her obligations sale agreement and Court therefore further hold that the plaintiff is not entitled obtain relief of specific performance in respect of sale agreement and Court further hold that plaintiff is not entitled to obtain alternative relief claimed plaint - Accordingly Point are answered against plaintiff and favour defendants plaintiff based on the sale agreement has laid suit against defendants for relief of permanent injunction District Therefore when above said suit has been levied by the plaintiff only based on sale agreement and accordingly it noted that the plaintiff had cause of action to seek the relief of specific performance as well as alternative relief claimed in present suit in earlier suit laid by her and on other hand plaintiff has not chosen to claim relief of specific performance or alternative relief in suit and furthermore the plaintiff has also not obtained the leave from the Court concerned reserving the right to file suit for specific performance and the alternative relief on the same cause of action at a later point of time therefore is found that as determined by trial court plaintiff has relinquished her claim of specific performance and the alternative relief at time earlier suit and in such view of the matter trial court found justified in holding that present suit laid by the plaintiff on the same cause of action for specific performance and alternative relief is found to be clearly barred above said determination of the trial court does not warrant any interference – Court therefore hold that the plaintiff’s suit is barred answered – Appeal dismissed
JUDGMENT :
(Prayer: First Appeal filed under Section 96 of C.P.C., against the judgment and Decree of the District Judge, Nagapattinam in O.S.No.33 of 2009 dated 07.09.2011.
Aggrieved over the judgment and decree dated 07.09.2011 passed in O.S.No.33 of 2009 on the file of the District Court, Nagapattinam, the plaintiff has preferred the First Appeal.
2. For the sake of convenience, the parties are referred to as per their rankings in the trial court.
3. Suit for specific performance or in the alternative for the refund of advance amount with interest.
4. The case of the plaintiff in brief is that the plaint schedule property belongs to the defendants 1 to 3. The 4th defendant is her husband. The defendants 1 to 3 agreed to convey the plaint schedule property in favour of the plaintiff and the 4th defendant for a sale price of Rs.11,92,000/- and executed an agreement for sale on 21.08.2008 and prior to the same, they had in toto received a sum of Rs.60,000/- as advance and the time for the performance of the contract is 60 days and the balance amount should be paid at the time of registering the instrument. The defendants 1 to 3 orally agreed to hand over the documents pertaining to the suit property and the plaintiff is always ready and willing to pay the balance amount and take the sale deed. The plaintiff is working as a staff nurse and owing to bad contacts, the 4th defendant incurred huge loans in his business and due to a lot of change in his behavior, he is living separately and lending a wayward life and the plaintiff has filed the divorce case against him and the same is pending. The sale advance amount has been paid only by the plaintiff. Despite the endeavors of the plaintiff to complete the sale transaction, the defendants 1 to 3 had been delaying the same and therefore the plaintiff issued a legal notice on 23.12.2008. Despite the receipt of the notice, the defendants neither complied with the demand made thereunder nor replied to the same and therefore according to the plaintiff, she has been necessitated to lay the suit against the defendants for appropriate reliefs.
5. The defendants 1 to 3 resisted the plaintiff’s suit contending that the plaintiff’s suit is not maintainable either in law or on facts and according to the defendants, the plaintiff in collusion with the 4th defendant has laid the suit falsely. The defendants 1 to 3 agreed to sell the suit property to the plaintiff only for the purpose of celebrating the marriage of the first defendant’s daughter and also for meeting the essential needs of the defendants 2 and 3 and accordingly proceeded with the execution of the sale agreement on 21.08.2008 and received a sum of Rs.60,000/- as advance and it is putforth that the parties had agreed to complete the sale transaction within 60 days from the date of the sale agreement. However, the plaintiff has not been able to mobilize his balance sale price and obtain the sale deed within the time stipulated and accordingly the plaintiff as well as the 4th defendant had not evinced interest to pay the balance sale price and get the sale deed executed. On account of the failure of the plaintiff and the 4th defendant to pay the balance sale price in time, the first defendant was unable to celebrate his daughter’s marriage and the same had been stopped and the defendants are put to irreparable loss and hardship and the plaintiff and the 4th defendant had no means and capacity and also not willing to complete the sale transaction by paying the balance sale price and with a view to delay the execution, they had falsely laid the suit in O.S.No.80 of 2009 for the relief of permanent injunction and hence the present suit laid by the plaintiff is barred under Order 2 Rule 2 of C.P.C. Even at the time of laying of the suit in O.S.No.80 of 2009, the plaintiff had relinquished the cause of action to lay the suit for specific performance claimed in the present suit and the plaintiff having failed to seek the permission of the Court f
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