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IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAVINDRAN, J.
P. Bakkialakshmi - Appellant
Versus
P. Natarajan & Others - Respondent
Case No : S.A. No. 1611 of 2011 & M.P. No. 1 of 2011 & M.P. No. 1 of 2013 & C.M.P. No. 21565 of 2018
Decided On : 01-04-2021
Civil Procedure Code, 1908 - Section 100 - Suit Property - Sale Agreement - Case of plaintiff is that defendant is owner of suit property and defendant agreed to sell suit property to plaintiff and parties had entered into a sale agreement on same date and defendant received sum from plaintiff on date of agreement and time fixed for the execution of sale deed is 11 months and defendant handed over the original settlement deed to plaintiff on date of sale agreement and plaintiff from date of agreement has been ready with balance sale consideration and always been ready and willing to perform his part of contract and despite several requests made to defendant in connection with same, defendant had been avoiding execution of the sale deed on some pretext or other and hence plaintiff issued legal notice calling upon the defendant to execute sale deed - Defendant had refused to receive legal notice, did not comply with terms of sale agreement and not come forward to execute sale deed and hence according to plaintiff, he has been necessitated to lay suit for appropriate reliefs
Finding of Court - Rightly concluded by appellate court, merely from the delay in the filing of the suit after accrual of the cause of action, that by alone, cannot be held against the plaintiff, as if he has not been always ready and willing to perform his part of contract and when it is found that the suit has been laid by the plaintiff within period of limitation and particularly considering that the suit for specific performance should be viewed in light of statutory frame work available in our country and in such view of matter, delay in laying of the suit by plaintiff by itself would not disentitle plaintiff to obtain discretionary and equitable relief of specific performance on the ground that he had not been always ready and willing to perform his part of contract - Defendant had voluntarily executed the sale deed without any protest and also handed over title deed in continuation of sale agreement and also sale agreement had been registered, in such view of matter, when according to the defendant, sale agreement had been obtained by using force, undue influence etc., when no such plea of undue influence has been specifically taken by defendant and she would only plead that sale agreement had been taken by way of compulsion and when said plea has also not been established by defendant, in such view of matter, morose, when the defendant has also failed to establish that the plaintiff is engaged in finance business and in the habit of obtaining sale agreement for loan advanced to third parties, in such view of matter, it cannot be inferred or held straightaway, in absence of any material, that plaintiff had exercised undue influence in obtaining the sale agreement from the defendant at the time of the alleged loan transaction
Result: Appeal dismissed
JUDGMENT :
Prayer: Second Appeal filed under Section 100 of C.P.C., against the judgment and decree dated 19.08.2011 made in A.S.No.31 of 2007 on the file of the Court of the Additional District and Sessions Judge, Fast Track Court No.II, Coimbatore, modifying the judgment and decree dated 11.10.2006 made in O.S.No.348 of 2002 on the file of the Court of the Subordinate Judge, Tirupur.
1. Challenge in this second appeal is made to the judgment and decree dated 19.08.2011 passed in A.S.No.31 of 2007 on the file of the Additional District and Sessions Judge, Fast Track Court No.II, Coimbatore, modifying the judgment and decree dated 11.10.2006 passed in O.S.No.348 of 2002 on the file of the Subordinate Court, Tirupur.
2. The parties are referred to as per their rankings in the trial court.
3. Suit for specific performance or in the alternative, for the refund of the advance amount with interest.
4. Briefly stated, the case of the plaintiff is that the defendant is the owner of the suit property and on 29.07.1998, the defendant agreed to sell the suit property to the plaintiff for a sum of Rs.1,25,000/- and the parties had entered into a sale agreement on the same date and the defendant received the sum of Rs.1,00,000/- from the plaintiff on the date of the agreement and the time fixed for the execution of the sale deed is 11 months and the defendant handed over the original settlement deed to the plaintiff on the date of the sale agreement and the plaintiff from the date of the agreement has been ready with the balance sale consideration and always been ready and willing to perform his part of the contract and despite several requests made to the defendant in connection with the same, the defendant had been avoiding the execution of the sale deed on some pretext or the other and hence the plaintiff issued the legal notice on 25.06.1999, calling upon the defendant to execute the sale deed. The defendant had refused to receive the legal notice, did not comply with the terms of the sale agreement and not come forward to execute the sale deed and hence according to the plaintiff, he has been necessitated to lay the suit for appropriate reliefs.
5. The defendant resisted the plaintiff's suit contending that the plaintiff's suit is not maintainable either in law or on facts and putforth the case that it is true that the defendant had executed a document styled as an agreement of sale on 29.07.1998 in favour of the plaintiff and that the said document has also been registered in the office of the Sub Registrar, Palladam and however according to her, it is false to state that the defendant had agreed to sell the suit property to the plaintiff for a sum of Rs.1,25,000/- and received a sum of Rs.1,00,000/- on the date of the sale agreement and also false to state that the parties had agreed to complete the sale transaction within 11 months and further admitting that it is true that the defendant had handed over the original title deed to the plaintiff, but it had not been handed over on 29.07.1998 in support of the alleged sale agreement. The suit property was worth not less than Rs.5,00,000/- in the year 1998 itself and the defendant borrowed a sum of Rs.1,00,000/- from the plaintiff in the beginning of 1997 and the plaintiff is a financier by profession and the rate of interest stipulated was 36% per annum. In order to secure the repayment of the loan, the plaintiff compelled the defendant to execute a power of attorney in favour of the plaintiff's partner Deivasigamani in respect of another property belonging to the defendant. By misusing the said power of attorney, the plaintiff has taken the sale deed in the name of his wife in respect of that property. The suit filed by the plaintiff's wife on the strength of the sale deed is pending before the District Munsif Court, Palladam. Since the defendant was unable to pay the interest due on the loan amount of Rs.1,00,000/- regularly, the plaintiff compelled the defendant to execute the suit docu
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