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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
PUSHPA SATHYANARAYANA, S.KANNAMMAL, JJ.
Janab M.A.Uduman Mydeen - Appellant
Versus
N. Mohammed Jafarullah - Respondent
A.S(MD)No.7 of 2011 and M.P(MD)No.1 of 201
Decided on : 30-03-2021
Specific Relief Act- Section 17 - Transfer of Property Act, 1882 - Section 55(1)(b) -Property – Agreement - Sale deed- Defendant, who is appellant herein claiming to be owner of property entered into an agreement with plaintiffs for the sale of said properties - As per sale agreement, sale consideration was certain sum per cent and sale has to be completed - An advance of a sum of certain sum was received by appellant/defendant on date of agreement - Subsequently, another sum was received by the appellant and same was endorsed on back of agreement- Appellant had received a sum as advance - For the purpose of completing same transaction, respondents/plaintiffs had applied for encumbrance certificate - Said encumbrance certificate revealed that appellant did not have any right or title over land - It is stated that respondents had requested defendant to execute sale deed at least with regard to Survey and complete sale or return the advance amount - Whether plaintiffs/respondents are entitled for refund of advance amount paid pursuant to agreement – Held, Appellant/Defendant has produced Ex.B1 to B31 most of which are kist receipts or encumbrance certificate, which do not clearly prove that defendant had absolutely right over property in Survey - Mere production of patta and adangal, will not confer title - Mere fact that there is no subsequent transaction with regard to property in Survey will not automatically give right or title to the defendant - When the defendant is not capable of making good the title of property, respondents cannot be expected to enforce contract - Hence, equity warrants that the appellant is bound to return advance amount taken from the respondents herein and pay same with 12% interest as rightly found by Trial Court - In the light of the discussion, judgment and decree passed in O.S. on the file of Additional District and Sessions Judge, Fast Track Court Tirunelveli, is confirmed and appeal suit is dismissed - Consequently, connected Miscellaneous Petition is closed.
JUDGMENT :
PUSHPA SATHYANARAYANA,J.
1. The appeal is filed against the judgment and decree dated 01.10.2010 in O.S.No.56 of 2008 on the file of the Additional District and Sessions Judge, Fast Track Court No.II, Tirunelveli.
2. The defendant, who is the appellant herein claiming to be the owner of the property situated in Survey No.332/1 measuring 43 cents and 331/2 measuring 57 cents in Kadayanallur Village, entered into an agreement with the plaintiffs on 04.12.2004 for the sale of the said properties. As per the sale agreement, the sale consideration was Rs.1,00,000/- per cent and the sale has to be completed on or before 03.06.2005.
3. An advance of a sum of Rs.34,00,000/- was received by the appellant/defendant on the date of agreement. Subsequently, on 10.02.2005 another sum of Rs.6,00,000/- was received by the appellant and the same was endorsed on the back of the agreement. Thus, the appellant had received a sum of Rs.40,00,000/- as advance. For the purpose of completing the same transaction, the respondents/plaintiffs had applied for encumbrance certificate. The said encumbrance certificate dated 23.05.2005 revealed that the appellant did not have any right or title over the land in Survey No.332/1 measuring 43 cents. It is stated that the respondents had requested the defendant to execute the sale deed at least with regard to Survey No.331/2 an extent of 57 cents and complete the sale or return the advance amount of Rs.40,00,000/-. However, the appellant did not come forward to execute the sale or return the advance amount. According to the respondents/plaintiffs, the appellant and his son-in-law were trying to play a fraud on the respondents. Therefore, a criminal complaint was given to the Inspector of Police, Kadayanallur on 12.06.2005. The anticipatory bail petition filed by the appellant was dismissed and the criminal case against the defendant and his son-in-law is also pending. Even after the above incident, the appellant refused to return the advance amount received by him. Therefore, the respondents/plaintiffs issued a notice on 23.05.2008 calling upon the appellant to pay the advance amount with interest. Thereafter, a suit for recovery of money of Rs.48,44,600/- was filed by the respondents.
4. The suit was resisted by the appellant/defendant on various grounds. The appellant had admitted the execution of the sale agreement dated 04.12.2004 and its contents. The defendant denied the fact that he did not have title over Survey No.332/1 for 43 cents based on the encumbrance certificate. The defendant traced his title based on the partition deed dated 17.03.1942 and registered before the Kadayanallur Sub-Register Office between the paternal grandfather Mohideen Pillai, Fathima Beevi, Makthum Beevi and Alima Beevi.
5. The appellant/defendant further contended that the plaintiffs have got no right to deny the title of the defendant based on encumbrance certificate. The defendant also specifically denied that the plaintiffs had offered to purchase 57 cents of land in Survey No.331/2. It was alleged by the defendant further that the plaintiffs did not have enough money and they were not ready and willing to perform their part of contract based on the sale agreement. The plaintiffs without performing their part of contract and to get over their inability to mobilise the funds for purchase, had deliberately alleged that the defendant did not have the title.
6. The appellant/defendant had further stated in the written statement that he has got the right and title to the property and he has been in possession of the same. The defendant also further stated that he had sent a notice on 21.06.2005 through lawyer calling upon the plaintiffs to perform their part of contract and get the sale executed. Though the plaintiffs had limitation till 04.06.2008, instead of filing a suit for specific performance, they have filed the suit for return of advance amount with ulterior motive and the same is not maintainable.
7. The defendant h
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