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IN THE HIGH COURT OF MADRAS
S.M. Subramaniam, J.
Antony Moses – Appellant
Versus
Roselin and Ors. – Respondents
A.S. No. 107 of 2014 and M.P. No. 1 of 2014
Decided On : 03-02-2020
Civil Procedure Code, 1908 – Order II, VII, XLI – Rule 2, 7 and 33 – Decree – Evading Execution – Plaintiff in plaint are that first defendant is owner of suit property and he agreed to sell his property to plaintiff for a sale consideration executed an agreement on title to Sale Deed was in name of first defendant which was pending before Special Deputy Collector Stamps as a pending document to ascertain stamp value was agreed that sale is to be completed after getting original title deed by first defendant – Plaintiff claims that possession was also handed over to plaintiff on the date of Sale Agreement – Held, Plaintiff is entitled for relief of specific performance first defendant is directed to refund advance amount from plaint till decree and thereafter rate of realisation, within a period of four months from receipt of a copy of this judgment –Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as case may require and this power may be exercised by the Court notwithstanding that appeal is as to part only of decree and may be exercised in favour of all or any of respondents or parties although such respondents or parties may not have filed any appeal or objection – Trial Court granted the general relief by moulding prayer for grant of relief of refund of advance amount with interest in event of rejection of relief of specific performance and Appellate Court by invoking grant similar relief in respect of appeals preferred against judgment and decree of Trial Court – Miscellaneous petition stands closed.
JUDGMENT :
S.M. Subramaniam, J.
1. The appeal suit on hand is directed against the judgment and decree dated 10.12.2013 passed by the learned V Additional District and Sessions Judge, Coimbatore in O.S. No. 236 of 2008.
2. The appellant in the appeal suit is the plaintiff in the suit and the respondents in the appeal suit are the defendants in the suit.
3. The suit was instituted by the appellant for specific performance to enforce the suit Sale Agreement entered into between the plaintiff and the defendants on 02.06.2005.
4. The facts, in nutshell, as narrated by the plaintiff in the plaint, are that the first defendant is the owner of the suit property and he agreed to sell his property to the plaintiff for a sale consideration of Rs. 20,13,000/- and both executed an agreement on 02.06.2005. The title to the Sale Deed was in the name of the first defendant vide No. 167/2004, which was pending before the Special Deputy Collector Stamps as a pending document to ascertain the stamp value. Thus, it was agreed that the sale is to be completed after getting the original title deed by the first defendant. The plaintiff claims that the possession was also handed over to the plaintiff on the date of Sale Agreement. In spite of repeated demands made by the plaintiff, the first defendant evading execution of the Sale Deed and therefore, the plaintiff issued a notice on 31.01.2007 to the first defendant for enforcement of the Sale Deed dated 02.06.2005 and thereafter, instituted the suit for specific performance.
5. The defendants disputed the contentions raised in the plaint and denied the allegations. The first defendant did not execute any Sale Agreement with the plaintiff at all. The first defendant states that he borrowed some amount from the plaintiff and signed in blank stamp paper, promissory note and blank green paper and the Sale Agreement was not true.
6. It is contended that the first defendant repaid the loan amount but the plaintiff refused to hand over the blank papers under some false pretext. Even assuming, without admitting the existence of Sale Agreement, the defendants submitted that already the plaintiff filed O.S. No. 611 of 2007, alleging the same cause of action and pray for an injunction only. Thus, the suit is barred under Order II, Rule 2 of the Code of Civil Procedure, because the cause of action for the suit is very well available to the plaintiff even at the time of filing of the earlier suit and the earlier suit pleadings and the present suit pleadings are one and the same. It is contended that the plaintiff was not at all ready to perform his part of the contract and he never sent any notice during the pendency of the agreement and the suit has been filed for a prolonged period after sending the notice and meanwhile the value of the property had been enhanced. Thus, the suit is to be dismissed.
7. The Trial Court framed the following issues for consideration:-
(2) Whether the plaintiff is entitled to the permanent injunction against the defendants?
(3) To what other relief the plaintiff is entitled?"
8. The following additional issues were also framed by the Trial Court for consideration:-
(2) Whether the plaintiff is not ready and willing to perform his part of the contract?
(3) Whether the suit is barred under Order II, Rule 2 of the Code of Civil Procedure?"
9. On the side of the plaintiff, the plaintiff was examined as PW-1 and one Mr. Samsen was examined as PW-2 and Exs.A-1 to A-9 were marked as documents. On the side of the defendants, the first defendant was examined as DW-1 and the third defendant was examined as DW-2 and Ex. B-1 was marked as a document.
10. The Trial Court narrating the facts set out in the plaint as well as the defence set out in the written statement, proceeded with the trial. The plaintiff states that he paid the advance amount of R
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