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2019 Supreme(Mad) 2487
IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAVINDRAN, J.
S. Ravichandran & Others – Appellants
Versus
Kavitha & Others – Respondents
A.S. No. 695 of 2010
Decided On : 30-09-2019
For the Appellant :V. Srimathi, Advocate.
For the Respondent:K. Bijai Sundar, S. Ashok Kumar, Advocates
Headnote:
Civil Procedure Code, 1908 - Section 96 - Order 41 - Rule 1 & 2 - Indian Penal Code 1860 - Section 420 - Transfer of Property Act - Section 54 - Specific performance Act - Section 15 - Virtue of registered partition deed - Sale agreement - Plaintiff had been always ready and willing to pay balance sale consideration and however instead of executing sale deed in favour of plaintiff defendants had created false document in favour of fifth defendant as though sale deed had been executed for paltry sum and also played fraud on plaintiff by inserting different survey number and also by valuing property and plaintiff through her power agent had lodged complaint against defendants and same was taken on file and same is pending on file of Judicial Magistrate Court Salem - In such circumstances plaintiff left with no other alternative accordingly has laid suit against defendants for appropriate reliefs – Held, Though plaintiff has laid suit claiming refund of sum defendants trial Court has disposed of plaintiffs suit and only granted refund of abovesaid sum in favour of plaintiff from defendants alone - Thereby it is found that trial Court has declined abovesaid relief sought for by plaintiff against fourth defendant - Challenging abovesaid determination of trial Court plaintiff has not come forward with any appeal or preferred any cross objection in present appeal - Fact remains that fourth defendant has remained ex-parte both in trial Court as well as before this Court and chosen not to contest the plaintiffs claim - Accordingly it is found that when case had been projected by plaintiff that he had paid only to fourth defendant as claimed by her and failed to establish that abovesaid sum had been paid to defendants abovesaid case of plaintiff having not been challenged by fourth defendant in any manner and plaintiff having come forward with suit claiming for relief of specific performance based and sought for relief of refund of sum as alternative relief in light of above position when plaintiff is not entitled to main relief of specific performance in respect of sale agreement considering abovesaid factors in to in my considered opinion interest of justice would require that plaintiff should be granted relief of obtainment of sum of only from fourth defendant as case projected by plaintiff had not been challenged by fourth defendant in any manner – Petition closed
JUDGMENT :
(Prayer: Appeal Suit filed under Section 96 r/w order 41 Rule 1 & 2 of Civil Procedure Code as against the judgment and decree in O.S. No.108/2003, on the file of the Additional District Court cum Fast Track Court II, Salem, dated 11.12.2006.)
1. Aggrieved over the judgment and decree dated 11.12.2006, passed in O.S. No.108/2003, on the file of the Additional District Judge, Fast Track Court No.2, Salem, the defendants 1 to 3 have laid 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 directing the defendants 1 to 4 to pay the sum of Rs.9,20,000/- received as part of the sale price with interest at 18% per annum from the date of the suit till realization.
4. The case of the plaintiff, in brief, is that the suit property belonged to the defendants 1 to 3 by virtue of a registered partition deed, dated 04.04.1981 and the fourth defendant Thangaraju had entered into a sale agreement dated 07.06.1996 and also paid an advance of Rs.2,50,000/- and by way of the said agreement, it was agreed that another sum of Rs.35,000/- was to be paid within ten days from the date of agreement and Rs.1,00,000/- within 45 days from the date of the agreement and the balance sale price, namely, Rs.8,61,090/- to be paid on or before 06.09.1996. Since the fourth defendant did not have enough money to purchase the suit property, he entered into an agreement of sale with the plaintiff on 07.11.1996 for a valid consideration of Rs.11,76,450/- and the plaintiff had paid a sum of Rs.9,20,000/- as advance towards the sale consideration and agreed to receive the balance sum on or before 05.11.1998 and the defendants 1 to 3 had also agreed to the same as a sum of Rs.2,00,000/- by cash and cheque for Rs.1,00,000/- drawn in favour of the third defendant was received by the defendants 1 to 3 and they had also signed on the reverse page of the agreement dated 07.06.1996 and hence, they are all aware of the agreement in favour of the plaintiff and the plaintiff had been always ready and willing to pay the balance sale consideration and however, instead of executing the sale deed in favour of the plaintiff, the defendants 1 to 4 had created a false document in favour of the fifth defendant as though a sale deed had been executed for a paltry sum of Rs.3,35,790/- and also played fraud on the plaintiff by inserting different survey number and also by under valuing the property and the plaintiff, through her power agent, had lodged a complaint against the defendants 1 to 5 and the same was taken on file and the same is pending on the file of the Judicial Magistrate Court, Salem. In such circumstances, the plaintiff, left with no other alternative, accordingly has laid the suit against the defendants for appropriate reliefs.
5. The defendants 1 to 3 resisted the plaintiff's suit by contending that the suit laid by the plaintiff is not maintainable either in law or on facts and admitted the execution of the sale agreement in respect of the suit property dated 07.06.1996 for a sum of Rs.11,76,450/- and also the receipt of Rs.2,50,000/- from the fourth defendant on the date of the sale agreement. However, denied the case of the plaintiff that the fourth defendant did not have enough money to purchase the suit property and also disputed the case projected by the plaintiff that the fourth defendant had entered into the agreement of sale with the plaintiff on 07.11.1996, in respect of the suit property and according to the defendants, they are not aware of the abovesaid sale agreement in favour of the plaintiff and in fact, the plaintiff is not at all known to the defendants 1 to 3. It is further stated that the case of the plaintiff that she has paid Rs.9,20,000/- as advance out of the total sale consideration of Rs.11,76,450/- to the fourth defendant is false and the abovesaid sale agreement is made only for the purpose of litigation and also di
