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2020 Supreme(Mad) 4
IN THE HIGH COURT OF JUDICATURE AT MADRAS
S.M. SUBRAMANIAM, J.
S.M. Jayasaravanan – Appellant
Versus
P. Palaniammal & Another – Respondents
A.S. No. 569 of 2016 & C.M.P. No. 14346 of 2016
Decided On : 07-01-2020
For the Appellant :C. Jagadish, Advocate.
For the Respondent:V. Raghavachari, Advocate
Headnote:
Civil Procedure Code, 1908 - Section 96 - Rule 7 - Order VII - Specific Relief Act - Section 19 - Sale of immovable property - Execution of sale as null and void and ordered - Nutshell to be considered in this appeal suit are that appellant entered into Sale Agreement with first respondent on for sale of immovable property measuring acres and cents for sale consideration - Appellant had paid - towards advance and time fixed for completion of contract was months from date of agreement - In view of fact that as per Sale Agreement no Sale Deed was executed appellant was constrained to institute suit for specific performance - Counsel appearing on behalf of appellant mainly contended that appellant always expressed his readiness and willingness to perform his part of contract and even at time of agreement expressed his readiness to purchase property - When appellant was ready and willing to pay balance sale consideration enabling first respondent to execute Sale Deed first respondent had failed to perform his part of contract and therefore appellant was forced to institute suit for specific performance – Held, Regard counsel appearing on behalf of appellant plaintiff reiterated that date of suit Sale Agreement was on and even before agreed time limit months first respondent executed Sale Agreement in favor of second respondent in March which was admitted by first respondent himself - Thus first respondent himself has violated time limit fixed for completion of sale as per Sale Agreement dated and therefore he had committed breach of contract and on this ground also appellant plaintiff would be entitled for alternate relief of advance amount of Code of Civil Procedure - This Court is considered opinion that conduct of first respondent in this regard is also to be taken into account - As rightly pointed out by counsel for appellant Sale Deed was executed by first respondent in favor of second respondent in respect of suit schedule property in March admittedly within period of months from date of agreement and more specifically during subsistence of suit Sale Agreement - Thus forfeiture clause now cannot be operated against appellant/plaintiff as first respondent also committed breach of contract - Though said ground is also a ground to grant relief of specific performance in view of fact that appellant plaintiff also has not established his readiness and willingness this Court is of an opinion that relief of specific performance cannot be granted - However appellant plaintiff is entitled for alternate relief of refund of advance amount with interest - Accordingly judgment and decree passed by Additional District Judge is confirmed with reference to rejection relief of specific performance – However this Court is inclined to grant alternate relief of return advance amount to appellant plaintiff and accordingly first respondent is directed to return advance amount along with interest at rate per annum from date of plaint till date of realization and first respondent is directed to settle above said amount with interest within period of three months from date of receipt of a copy of this judgment – Appeal allowed
JUDGMENT :
(Prayer: Appeal Suit is preferred under Section 96 of the Code of Civil Procedure, against the judgment and decree dated 21.04.2016 passed in O.S.No.4 of 2009 on the file of the learned Additional District Judge, Krishnagiri.)
1. The appeal suit is directed against the judgment and decree dated 21.04.2016 passed by the learned Additional District Judge, Krishnagiri in O.S.No.4 of 2009.
2. The appellant is the plaintiff in the suit and the suit was instituted by the appellant for the relief of specific performance.
3. The facts, in nutshell, to be considered in this appeal suit are that the appellant entered into a Sale Agreement with the first respondent on 16.07.2006 for sale of immovable property measuring 8 acres and 29 cents for a sale consideration of Rs.22,38,300/-. The appellant had paid Rs.1,00,000/- towards advance and the time fixed for completion of contract was 15 months from the date of agreement i.e., on 16.07.2006. In view of the fact that as per the Sale Agreement, no Sale Deed was executed, the appellant was constrained to institute a suit for specific performance.
4. The learned counsel appearing on behalf of the appellant mainly contended that the appellant always expressed his readiness and willingness to perform his part of the contract and even at the time of agreement, he expressed his readiness to purchase the property. When the appellant was ready and willing to pay the balance sale consideration, enabling the first respondent to execute the Sale Deed, the first respondent had failed to perform his part of the contract and therefore, the appellant was forced to institute the suit for specific performance.
5. The learned counsel for the appellant reiterated that the Trial Court committed an error in appreciating the evidences produced by the appellant as the first respondent committed a fraud in respect of the suit Sale Agreement. The first respondent illegally executed the Sale Deed in favour of the second respondent during the subsistence of the suit Sale Agreement. Thus, the Trial Court ought to have declined the alleged execution of sale as null and void and ordered for the relief of specific performance. The entire appreciation of the evidences as well as the documents and the findings arrived are not only perverse, but are in contradiction with the point of readiness and willingness established by the appellant before the Trial Court. Thus, the appeal is to be allowed.
6. The learned counsel appearing on behalf of the first respondent strenuously disputed the contentions raised by the learned counsel appearing on behalf of the appellant mainly on the ground that the appellant at no point of time established his readiness and willingness to execute the Sale Deed.
7. The first respondent agreed to sell the suit schedule property on account of certain exigencies and he was unable to complete the same on account of the fact that the appellant never expressed his readiness and willingness to pay the balance sale consideration, enabling the first respondent to execute the Sale Deed. Thus, the case of the plaintiff is false and even before the Trial Court, then the plaintiff could not able to establish that he was always ready and willing to perform his part of the contract as per the Sale Agreement dated 16.07.2006.
8. The learned counsel appearing on behalf of the first respondent solicited the attention of this Court that the suit schedule property was sold in favour of the second respondent in May 2007 itself and the appellant was very much aware of these facts. He applied for the certified copy of the Sale Deed in April 2007 itself and the said certified copy was marked as a document in the suit before the Trial Court.
9. When the appellant was very much aware of the sale, which occurred in April 2007 and secured the certified copy of the Sale Deed, which was marked as a document in a suit and in this regard, it is pertinent to note that the suit itself was instituted by the appellant in the year 2
