Back
IN THE HIGH COURT OF JUDICATURE AT MADRAS
S.M.SUBRAMANIAM, J.
P.Sankar - Appellant
Versus
Sundaramoorthy – Respondent
Appeal Suit No.567 of 2013 & M.P.No.1 of 2013
Decided on : 06-01-2020
Transfer of Property Act - Section 43 - Specific Relief Act - Section 13 – Contract - Agreement of sale - Stated that first defendant in order to defraud plaintiff disposed suit property in favor of second defendant after receipt of pre suit notice - Second defendant was fully aware of sale agreement between plaintiff and first defendant - Therefore sale by first defendant in favor of second defendant is non est., void abs initio - Second defendant is not bonfire purchaser - Hence plaintiff made relief of specific performance for execution of sale deed in respect of suit property on receipt balance sale consideration - Held, Even in such circumstances this Court is considered opinion that entire facts and circumstances are to be considered more specifically for grant relief of specific performance. -in case respondent acquired title after execution of settlement deed by his father same would not provide an absolute right to claim relief of specific performance - The in equability if any would arise in the event grant of specific performance is also to be considered by Court - Perusal of Section Specific Relief Act clearly indicates that relief of specific performance is discretionary - Merely because plaintiff is legally right court is not bound to grant him he relief - True it is that court while exercising its discretionary power is bound to exercise same on established judicial principles and in reasonable manner - Obviously discretion cannot be exercised in an arbitrary or whimsical manner – Sub clause of sub section provides that even if contract is otherwise not voidable but circumstances make it inequitable to enforce specific performance court can refuse to grant such discretionary relief - Explanation section provides that hardship has to be considered at time of contract unless hardship is brought in by action of plaintiff – Appeal dismissed
JUDGMENT :
The judgment and decree dated 11.10.2013 passed in O.S.No.108 of 2006 is under challenge in the present First Appeal.
2. The plaintiff is the appellant in the First Appeal and the defendants are the respondents in the First Appeal. The suit was instituted for specific performance and the contention of the plaintiff before the Trial Court was that the first defendant offered to sell the plaint schedule property to the plaintiff for a sum of Rs.5,15,000/- and entered into a written sale agreement on 11.02.2004. On the said date of agreement, the plaintiff paid an advance amount of Rs.2,00,000/- and agreed to pay the balance on fulfilment of conditions scribed in the agreement. The plaintiff states that he was ready and willing to perform his part of contract but the defendant was postponing the same without any reason. Thus, on 03.03.2006, the plaintiff issued a pre-suit notice to the first defendant calling upon him to perform his portion of the contract.
3. It is stated that the first defendant in order to defraud the plaintiff disposed the suit property in favour of the second defendant after receipt of the pre-suit notice. The second defendant was fully aware of the sale agreement between the plaintiff and the first defendant. Therefore, the sale by the first defendant in favour of the second defendant is non-est, void ab-initio. The second defendant is not a bonafide purchaser. Hence, the plaintiff made a relief of specific performance for execution of sale deed in respect of the suit property on receipt of the balance sale consideration of Rs.3,15,000/-.
4. The first defendant in his written statement denied the averments, he first denied the execution of the sale agreement and contended that the sale agreement itself is a bogus one. The first defendant has stated that on 13.08.2003, he entered into a sale agreement with the second defendant and the sale price was fixed at Rs.2,60,000/- and he received a sum of Rs.50,000/- as advance. Time for execution of sale deed was fixed as 3 years from the date of agreement of sale. Thereafter, the plaintiff approached the first defendant to purchase his fathers property for more price for which the defendant disclosed the said sale agreement with the second defendant.
5. The first defendant approached the second defendant about the contentions in the plaint and for which she told that the plaintiff never approached her. The first defendant came to know about the fraud played by the plaintiff and requested for blank papers on which defendants signed for the which the plaintiff gave evasive reply and said that he misplaced the said papers. The father of the defendant executed a sale deed in respect of the suit property and based on the settlement deed, the first defendant executed and registered sale deed after receiving the balance sale consideration. Two sale deeds were registered on 19.04.2006.
6. The second respondent filed a written statement stating that he is a bonafide purchaser of the suit property. The father of the first defendant executed the settlement deed in respect of the suit schedule properties in favour of the first respondent on 31.03.2006. As per the settlement deed, the first defendant became the absolute owner of the suit property. Thereafter, the first defendant executed the sale deeds in favour of the second defendant on 31.03.2006 and therefore the sale deeds are valid in the eye of law. The second defendant state that he is in possession of the suit property and the plaintiff has no right whatsoever and accordingly the suit is liable to be quashed.
7. The Trial Court framed the following issues;
“(i) Whether the first defendant entered into a sale agreement dated 11.02.2004 with the plaintiff to sell the schedule property?
(ii) Whether the sale agreement is legally sustainable in law?
(iii) Whether the plaintiff was ready and willing to perform his part of contract?
(iv) Whether the plaintiff is entitled for the relief of specific performance of contract?
(v)
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
