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2020 Supreme(Mad) 1089
IN THE HIGH COURT OF MADRAS
M.M. SUNDRESH, KRISHNAN RAMASAMY, JJ.
C. Madanraj – Appellant
Versus
N. Kamalammal and Others – Respondents
A.S. No. 562 of 2011, M.P. No. 1 of 2011
Decided On : 20-02-2020
Advocate Appeared:
For the Appellant : Shanmugam.
For the Respondent: V. Jeevagiridharan.
Headnote:
Specific Relief Act, 1963 - Sections 15 and 16 - Legal right to sell suit property - Whether time is essence of contract insofar as Ex.A1 is concerned - Issuance of legal notice - Appellant/plaintiff being agreement holder entered into another sale deed under Ex.A3 with 9th respondent/9th defendant - Covenants in Ex.A1 are to effect that within time stipulated respondents 1 to 8/defendants 1 to 8 will have to execute sale deed in favor of either 9th respondent/9th defendant or person nominated by him at his cost - It further goes on to state that in event of sale being carried out as agreed upon 9th respondent/9th defendant will lose all advance amount paid apart from agreement getting cancelled - Appellant/plaintiff entered into an agreement with 9th respondent/9th defendant - This document which has been marked as Ex.A3 fixes sale consideration for suit property - This agreement has been entered into on premise that 9th respondent/9th defendant has got legal right to sell the suit property – Held, Decisions relied upon by counsel appearing for appellant/plaintiff in our considered view are not applicable to case on hand - Court are dealing with a case of sale followed by right to re-purchase or conditional sale - On contrary decision relied upon by counsel for respondents 1 to 8/defendants 1 to 8 in Benny Limited vs. and Co is squarely applicable to case on hand - In aforesaid case Division Bench was pleased to hold after taking note of earlier judgments of various other High Courts and that of this Court that there must be a contract - Court may note that appellant/plaintiff was not even beneficiary at relevant point of time - This is for reason that name of appellant/plaintiff has never been mentioned under Ex.A1 and Ex.A3 has come into being even assuming same is found true and genuine after a month – Further also creates a cloud over Obviously court cannot expect respondents 1 to 8/defendants 1 to 8 either prove or disprove Ex.A3 - Court may appositely refer following paragraph of Division Bench - So to enforce contract thee must be a privities of contract - But no one other than parties to contract is entitled to enforce same - Third party for whose benefit a contract has been made may sue on contracting party making contract for specific performance to benefit of third party - This view has been taken in vs. AIR Mad holding - With respect it seems to us that if law is that a person not a party to a contract cannot sue on contract though a benefit is secured to him and unless case falls within exceptions in cases above referred to plaintiff has no cause of action it is no answer to say that all parties are before Court - Appeal dismissed
JUDGMENT :
M.M. SUNDRESH, J.
1. The unsuccessful plaintiff is the appellant in the suit filed for specific performance. On 05.01.2007, an agreement for sale has been entered into between respondents 1 to 8/defendants 1 to 8 being the owners of the suit property and the 9th respondent/9th defendant being the agreement holder. This unregistered agreement for sale fixes the sale consideration at Rs. 59,05,500/-. It also says the receipt of Rs. 5,00,000/- as an advance. The endorsement made in Ex.A1 sale agreement shows that the amount has been paid, further amount of Rs. 5,00,000/- has been paid thereafter on 17.02.2007, which has been marked as Ex.A2.
2. Thereafter, the appellant/plaintiff, being the agreement holder, entered into another sale deed under Ex.A3 with the 9th respondent/9th defendant. The covenants in Ex.A1 are to the effect that within the time stipulated, respondents 1 to 8/defendants 1 to 8 will have to execute the sale deed in favour of either the 9th respondent/9th defendant or the person nominated by him at his cost. It further goes on to state that in the event of the sale being carried out as agreed upon, the 9th respondent/9th defendant will lose all the advance amount paid apart from the agreement getting cancelled.
3. Thereafter, the appellant/plaintiff entered into an agreement with the 9th respondent/9th defendant on 05.02.2007. This document which has been marked as Ex.A3, fixes the sale consideration at Rs. 66,67,500/- for the suit property. This agreement has been entered into on the premise that the 9th respondent/9th defendant has got legal right to sell the suit property.
4. Thereafter, the appellant/plaintiff filed a suit for specific performance after issuance of the legal notice. Defendants 1 to 8 replied the legal notice under Ex.A4.
5. The suit has been laid for specific performance by the appellant/plaintiff by fixing the cause of action starting from 05.01.2007 onwards. The valuation of the suit property has been given at Rs. 66,67,500/-.
6. Before the trial Court, the appellant/plaintiff marked Exs.A1 to A25 and examined three witnesses including himself as PW-1. Respondents 1 to 8/Defendants 1 to 8 examined two witnesses while not marking any document. The 9th respondent/9th defendant did not appear before the trial Court and accordingly set ex-parte.
7. The trial Court framed the following issues:
(i) Whether the agreement entered into between defendants 1 to 8 and the 9th defendant can be assigned in favour of the plaintiff/appellant, if so, it binds defendants 1 to 8 or not?
(ii) Whether time is the essence of contract insofar as Ex.A1 dated 05.01.2007 is concerned?
(iii) Is it correct to state that Ex.A1 has been acknowledged?
(iv) Is the plaintiff entitled to the relief sought for?
(v) If not, what other relief?
8. The trial Court, after holding that the time is not the essence of the contract, held that the appellant/plaintiff does not have legal right to enforce Ex.A1. Incidentally, it has been held that there is a cloud of suspicion over Ex.A3 since Ex.A2 says the payment of Rs. 5,00,000/- on 17.02.2007 which is contrary to the statement made that after the execution of Ex.A1 dated 05.01.2007, the same has been handed over in favour of the appellant/plaintiff. It has been further held that there is no evidence to show that intimation having been given by the 9th respondent/9th defendant to respondents 1 to 8/defendants 1 to 8. Challenging the judgment and decree rendered by the trial Court, the present appeal has been filed.
9. Learned counsel appearing for the appellant contends that in view of the specific covenants contained in Exs.A1 and A3, the appellant would become the nominee, therefore the assignee, and thus, he is entitled for a decree for specific performance. The 9th respondent/9th defendant has been set ex-parte. Respondents 1 to 8/Defendants 1 to 8 did not reply the communications sent. The trial Court is not correct in not decreeing the suit without considering the scope and ambi
