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2020 Supreme(Mad) 53
IN THE HIGH COURT OF JUDICATURE AT MADRAS
G.K. ILANTHIRAIYAN, J.
Rajareddy – Appellant
Versus
R. Krishna Reddy (died) and Others – Respondents
S.A. No. 1046 of 2005, C.M.P. No. 14285 of 2005
Decided On : 08-01-2020
Advocate Appeared:
For the Appellants : J. Hariharan, V. Nicholas.
For the Respondent: V. Raghavachari.
Headnote:
Civil Procedure Code , 1908 - Sake of convenience, parties are referred to as per their ranking in trial Court - suit is filed for specific performance and delivery of possession of suit schedule property - Defendants 1 to 4 agreed to sell suit schedule property to plaintiff for total sale consideration of Rs - 73,875/- and executed a sale agreement - On same day, they also received a sum of Rs - 72,375/- as advance in presence of witnesses - They also agreed to receive balance sale consideration of Rs - 1,500/- within four months at time of execution and registration of sale deed - mother of defendants viz was also entitled to her share in suit schedule property - 6th defendant was minor, at time of agreement for sale - Since their mother was undergoing treatment in Bangalore, she was not available at time of sale agreement - But it was assured by defendants 1 to 4 that their mother would also join at time of execution of sale deed - In respect of 6th defendant, who was minor at time of sale agreement, will be given larger share in other properties of their family and also assured that 6th defendant will not create any problem - Since their mother was not available, defendants 1 to 4 wanted time to complete sale transaction, though plaintiff was ready and willing with balance sale consideration to register sale deed - Thereafter their mother was hospitalized in Bangalore for her prolonged illness and she returned her village only few months before her death - She was critically ill and she was not in a sound mental health - Therefore, defendants 1 to 4 postponed registration and execution of sale deed, due to their mother’s health position - As such, plaintiff was not in a position to compel defendants 1 to 4 to execute sale deed, being a close family friend, though plaintiff was ready and willing to perform his part of contract as per agreement - In year 1995, mother of defendants 1 to 4 & 6 passed away - Thereafter, when plaintiff approached defendants 1 to 4 to perform their part of contract, they gave evasive replies and did not come forward to perform their part of contract – Held , legal position enumerated above would only indicate that in an agreement of sale, where money is paid only as part of sale price, forfeiture clause will be treated as having effect of penalty - Further, even in absence of a prayer for refund of advance sale amount by plaintiff, with a view to render complete justice, Court is empowered to mould relief and to issue appropriate direction to defendant for refund of advance sale price - Notwithstanding above legal position, in present case, as rightly pointed out by learned counsel for plaintiff, when plaintiff and defendants have entered into an agreement of sale, defendants have not acquired any right, title or interest over suit property and on that date they are only agreement holders in respect of suit property - Further, admittedly, even after expiry of time stipulated in agreement of sale under Ex -A1, it is only first defendant who has acquired a right over suit property along with other co-owners and therefore, plaintiff cannot be blamed for not performing his part of obligations contained under agreement of sale - Furthermore, in such a circumstances, conditions incorporated in agreement of sale will not bind plaintiff in any manner or such conditions will confer any right to defendants to forfeit advance sale amount paid by plaintiff - In such circumstances, we feel that trial court is wholly justified in issuing a direction to defendants to refund advance amount of Rs - 28,77,000/- to plaintiff - At same time, we find that rate of interest of 12% per annum, at which defendants were directed to pay advance amount of Rs - 28,77,000/- is not warranted and instead defendants shall be directed to pay amount of Rs - 28,77,000/- with interest at rate of 7 -5% per annum - Admittedly, plaintiff did not ask for alternative prayer of refund advance amount paid by plaintiff to defendants 1 to 4 herein - It is seen from reply notice sent by defendants 2 to 4, they categorically admitted receipt of advance of Rs - 72,375/ - Though prayer of specific performance relief denied by this Court, on ground of equity, Court can order alternative relief of recovery of money - Therefore, even in absence of prayer of refund of advance amount, with view to render complete justice, this Court empower to mold relief and issue appropriate direction to defendants 1 to 4 for refund of advance sale price - Appeal is disposed of
JUDGMENT :
G.K. ILANTHIRAIYAN, J.
Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code against the judgment and decree of the learned Principal District Judge, Dharmapuri at Krishnagiri dated 30.09.2004 in A.S. No. 49 of 2002 reversing the judgment and decree of the learned Subordinate Judge, Hosur dated 04.09.2002 in O.S. No. 408 of 1996.
1. This second appeal is directed as against the judgment and decree dated 30.09.2004 passed in A.S. No. 49 of 2002 on the file of the Principal District Court, Dharmapuri at Krishnagiri reversing the judgment and decree dated 04.09.2002 made in O.S. No. 408 of 1996 on the file of the Subordinate Court, Hosur.
2. For the sake of convenience, the parties are referred to as per their ranking in the trial Court.
3. The case of the plaintiff in brief is as follows:-
3.1. The suit is filed for specific performance and delivery of possession of the suit schedule property. The defendants 1 to 4 agreed to sell the suit schedule property to the plaintiff for the total sale consideration of Rs. 73,875/- and executed a sale agreement dated 13.06.1993. On the same day, they also received a sum of Rs. 72,375/- as advance in the presence of the witnesses. They also agreed to receive the balance sale consideration of Rs. 1,500/- within four months at the time of the execution and registration of sale deed.
3.2. The mother of the defendants 1 to 4 and 6 viz. Neelamma was also entitled to her share in the suit schedule property. The 6th defendant was the minor, at the time of agreement for sale. Since their mother Neelamma was undergoing treatment in Bangalore, she was not available at the time of sale agreement. But it was assured by the defendants 1 to 4 that their mother would also join at the time of execution of sale deed. In respect of the 6th defendant, who was minor at the time of sale agreement, will be given larger share in other properties of their family and also assured that the 6th defendant will not create any problem. Since their mother was not available, the defendants 1 to 4 wanted time to complete the sale transaction, though the plaintiff was ready and willing with the balance sale consideration to register the sale deed. Thereafter their mother was hospitalized in Bangalore for her prolonged illness and she returned her village only few months before her death. She was critically ill and she was not in a sound mental health. Therefore, the defendants 1 to 4 postponed the registration and execution of the sale deed, due to their mother’s health position. As such, the plaintiff was not in a position to compel the defendants 1 to 4 to execute the sale deed, being a close family friend, though the plaintiff was ready and willing to perform his part of the contract as per the agreement. In the year 1995, the mother of the defendants 1 to 4 & 6 passed away. Thereafter, when the plaintiff approached the defendants 1 to 4 to perform their part of contract, they gave evasive replies and did not come forward to perform their part of contract.
3.3. While being so, the plaintiff received a summon in O.S. No. 8 of 1996 on the file of the Sub Court, Krishnagiri, filed by the defendants 1, 5 and 6 against the plaintiff and others for an alleged loss of income from the suit property, alleging that the plaintiff is in illegal occupation of the suit schedule property along with others. It is nothing but collusion with other defendants and they filed the suit, though the possession of the suit property was not handed over to the plaintiff even at the time of entering into sale agreement. Further it is also seen from the plaint in O.S. No. 8 of 1996, the defendants 1 to 4 and their mother were already executed sale deed on 19.09.1994 in favour of the fifth defendant in respect of the suit schedule property. The fifth defendant is none other than the brother of the mother of the defendants 1 to 4 and he has been quite aware of the sale agreement executed by the defendants 1 to 4 in favour of
