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IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. Jayachandran, J.
P. Thangaraj and ors. – Appellants
Versus
R. Velliyangiri and ors. – Respondents
A.S.No.190 of 2009 & M.P.No.1 of 2009
Decided On : 26-02-2021
Property - Sale consideration - Sale agreement - Suit schedule property was purchased by 1st defendant from husband of defendant for sale consideration under the registered sale deed - Defendant agreed to sell the property to plaintiffs and entered into a written sale agreement on and received amount as advance - On receipt of balance sale consideration defendant agreed to execute sale deed - 4 months was time fixed for completing agreement - Defendant also agreed to put plaintiffs in physical possession free from encumbrance on receipt of sale consideration - As per the terms of agreement, if 1st defendant fail to execute sale deed, plaintiffs are entitled to enforce contract through Court on deposit of balance sale consideration in Court - Plaintiffs were always ready and willing to perform their part of obligation under agreement and take the sale deed at their expenses, but the defendant postponing execution on some pretext or other - Whether plaintiffs were ready and willing to perform their part of the sale agreement – Held, Trial Court erred in suspecting conduct of defendant for entering into sale agreement with his wife, 3rd defendant - It is well settled principle of law that the plaintiffs has to stand or fall on their own legs and cannot take advantage of defects in the defendants case - Relief of Specific Performance is an equitable relief - Person, who approached Court should come with clear hands - He must first establish his bonafide in entering into an agreement, even before establishing his readiness and willingness - In this case, plaintiffs have miserably failed in establishing their bonafideness in entering into agreement with defendant, who himself had no genuine title over property - If at all, the plaintiffs are entitled for any remedy, it can only be relief of refund of advance paid to defendant - But from the facts and conduct of the plaintiffs, they not entitled for refund since they are held not a bonafide intent purchaser - Appeal Suit is Allowed.
JUDGMENT :
The appellants herein are the 2nd and 3rd defendants before the Trial Court. This appeal is against the judgment and decree passed by the Trial Court in the suit for specific performance.
2. For brevity, the parties are described as per their status and ranking as shown in the plaint.
Plaint averment in brief :-
The suit schedule property was purchased by the 1st defendant from the husband of the 4th defendant for sale consideration of Rs.2,89,300/- under the registered sale deed dated 18.04.2007. The 1st defendant agreed to sell the property for Rs.9,00,000/- to the plaintiffs and entered into a written sale agreement on 02.05.2007 and received Rs.3,50,000/- as advance. On receipt of the balance sale consideration the 1st defendant agreed to execute the sale deed. 4 months was time fixed for completing the agreement. The 1st defendant also agreed to put the plaintiffs in physical possession free from encumbrance on receipt of the sale consideration. As per the terms of the agreement, if the 1st defendant fail to execute the sale deed, the plaintiffs are entitled to enforce the contract through Court on deposit of the balance sale consideration in the Court. The plaintiffs were always ready and willing to perform their part of the obligation under the agreement dated 02.05.2007 and take the sale deed at their expenses, but the defendant postponing the execution on some pretext or other. Later, the plaintiffs from the encumbrance certificate obtained on 09.07.2007 came to know that the 1st defendant even prior to the sale agreement with them, had entered into a sale agreement on 18.04.2007 with one Dr.Parwaiz and got it registered. He had also given power of attorney to the wife of Dr.Parwaiz, who is the fourth defendant, to deal with the suit property. Subsequently, the registered sale agreement with Dr.Parwaiz was cancelled on 12.06.2007. On the strength of the power of attorney deed dated 07.05.2007 given by the 1st defendant in favour of the 4th defendant, the property sold to 2nd defendant on 12.06.2007. In the said sale deed, the 1st defendant is one of the attesting witnesses. Suppressing the earlier power of attorney in favour of the 4th defendant and the registered sale agreement with the husband of the 4th defendant, the 1st defendant had entered into agreement with the plaintiffs to sell the suit property and also received advance of Rs.3,50,000/-. To defeat his right, the defendants have conspired together and created documents subsequent to the suit sale agreement. The plaintiffs have also came to know that the 2nd defendant had entered into a sale agreement with his wife the 3rd defendant on 19.06.2007 in furtherance of their attempt to keep the suit property beyond the reach of the plaintiffs and defeat the rights of the plaintiffs under the suit agreement dated 02.05.2007.
3. On 20.07.2007, the plaintiffs issued notice to the defendants including the husband of the 4th defendant. The 2nd defendant, 4th defendant and the husband of the 4th defendant replied with untenable allegations. The 2nd defendant is not a bonafide purchaser. His sale deed dated 12.06.2007 is a fictitious document. The plaintiffs are always ready and willing to perform their obligation. Hence, suit laid for the following relief:-
(b). In default of the defendants executing the sale deed as per clause (a), this Hon'ble Court itself to execute the sale deed for and on behalf of the defendants 1 to 3.
(c). directing the defendants to deliver vacant possession of the suit property to the plaintiffs.
(d). directing the defendants 1 to 4 to return the sum of Rs.3,77,650/- with interest @ 18% per annum from the date of suit till realization.
(e). creating a charge over the property for the amount that may be decreed in the suit.
(f)
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