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2024 Supreme(Online)(MAD) 5
IN THE HIGH COURT OF JUDICATURE AT MADRAS
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
| Judgment reserved on 28.03.2024 | Judgment pronounced on 06.06.2024 |
1.Saraswathy
2.N.Velumani
3.Minor Nithish Kumar
Rep.by his Natural Guardian and father,
N.Velumani
4.Minor Saran Priya
Rep.by his Natural Guardian and father,
N.Velumani.
... Appellants in A.S.No.876 of 2008
N.Manoharan
... Appellant in A.S.No.1062 of 2012
Vs.
N.Manoharan
... Respondent in A.S.No.876 of 2008
1.Saraswathy
2.N.Velumani
3.Minor Nithish Kumar
4.Minor Saran Priya
Minors 3 and 4 rep.by their Guardian
and natural father N.Velumani ... Respondents in A.S.No.1062 of
2012
Common Prayer: These Appeals are filed under Section 96 of Code of Civil
Procedure, against the common judgment and decree dated 31.03.2008 made
in O.S.No.296 of 2005 on the file of the Additional District cum Sessions
Court / Fast Track Court No.2, Coimbatore.
A.S.No.876 of 2008:-
For Appellants : Mr.T.M.Hariharan
For Respondent
: Mr.M.Aravind Subramaniam,
Senior Counsel
For Mr.K.Madhan Kumar
A.S.No.1062 of 2012:-
For Appellant
: Mr.M.Aravind Subramaniam,
Senior Counsel
For Mr.K.Madhan Kumar
For R1
: Mr.P.Saravan Sowmiyam
For R2 to R4
: Mr.T.M.Hariharan
**********
Mr.T.M.Hariharan, Mr.M.Aravind Subramaniam, Senior Counsel, Mr.K.Madhan Kumar, Mr.P.Saravan Sowmiyam
The suit for specific performance is not maintainable in the absence of a declaratory relief challenging the termination of the sale agreement by the defendants.
Headnote:
Specific Performance - Sale Agreement - Termination of Agreement
Fact of the Case:
The plaintiff filed a suit for specific performance of a sale agreement dated 01.08.2001 (Ex.A1) with the defendants, who were the owners of the suit property. The plaintiff claimed that he had paid an advance of Rs.1 lakh and a further amount of Rs.6 lakhs under a receipt dated 31.05.2004 (Ex.A2), and that the possession of the property was handed over to him. The defendants, however, contended that the sale agreement was not intended to be an actual agreement of sale, but was executed only as security for the money transaction between the parties. The defendants also disputed the validity of Ex.A2 receipt, alleging that it was a fabricated document.
Finding of the Court:
The court found that the plaintiff's suit for specific performance was not maintainable as the defendants had terminated the sale agreement (Ex.A1) under a legal notice (Ex.A4) dated 04.06.2005, and the plaintiff had not sought a declaratory relief challenging the validity of the termination. The court also found that the plaintiff had not established his readiness and willingness to perform the contract, and that the suit was barred by limitation as it was filed after more than 3 years from the date of the agreement. The court further held that the Ex.A2 receipt was a fabricated document and the plaintiff had not established that the entire consideration was paid to the defendants.
Issues: 1. Whether the plaintiff is ready and willing to perform his contract?2. Whether the suit is maintainable in the absence of declaratory relief challenging the termination of the suit sale agreement?3. Whether the plaintiff is entitled to the relief of specific performance?4. Whether Ex.A2 receipt is true and valid or a fabricated document?5. Whether the plaintiff is entitled to the main relief of specific performance?6. Whether the order granting the alternative relief of refund is sustainable?
Ratio Decidendi: 1. The suit for specific performance is not maintainable in the absence of a declaratory relief challenging the termination of the sale agreement by the defendants.2. The plaintiff has not established his readiness and willingness to perform the contract, as he filed the suit for specific performance after a delay of more than 3 years from the date of the agreement.3. The Ex.A2 receipt appears to be a fabricated document, and the plaintiff has not established that the entire consideration was paid to the defendants.
Final Decision: The appeal filed by the defendants (A.S.No.876 of 2008) is allowed, and the appeal filed by the plaintiff (A.S.No.1062 of 2012) is dismissed. The decree and judgment in O.S.No.296 of 2005 granting the alternative relief of refund is set aside, and the suit is dismissed in its entirety.
The defeated defendants are the appellants herein in A.S.No.876 of
2008. 2. Challenging the grant of the alternative relief in O.S.No.296 of 2005 for the refund of the money decree of Rs.7 lakhs along with 6% interest, the defendants have preferred this appeal.
3. The plaintiff is the appellant herein in A.S.No.1062 of 2012. 4. The plaintiff filed a suit in O.S.No.296 of 2005 on the file of the learned Additional District Judge (Fast Track Court No.II), Coimbatore, seeking the relief of specific performance of the suit sale agreement Ex.A1 and, in the alternative, a refund of the advance amount under Exs.A1 and A2 - receipt.
5. After trial, the learned Judge has rejected the main relief of specific performance and granted the money decree for the refund of the advance amount. Therefore these two appeals have been preferred.
6. For the sake of convenience, the parties are referred to as per their ranking before the trial Court.
7. Parties are referred to as plaintiff - agreement holder and defendants- landlords. The plaintiff - agreement holder,. filed in O.S.No.296 of 2005 before the trial Court for the main relief of specific performance of Ex.A1 sale agreement dated 01.08.2001. The suit was filed on 28.06.2005.
8. The plaint proceeds on the basis that the defendants are the owners of the suit property measuring 2 grounds, 1052 sq.ft, namely 2 cents, 180 sq.ft, in the Uppilipalayam village.
9. The terms of the agreements are the sale consideration fixed at Rs.7 lakhs, Advance paid Rs.1 lakh and time fixed for paying balance amount is one year.
10. The plaint further proceeds that under Ex.A2 dated 31.05.2004, a further payment of Rs.6 lakhs was received by the landlady and possession was delivered and original sale deed Ex.A3 dated 28.10.1957 in favour of the defendant was handed over. Ex.A2 alleged receipts is on the non-judicial stamp paper and not a revenue stamp. Ex.A1 agreement is dated 01.08.2001. Ex.A2 receipt is dated 31.05.2004. Ex.A4 is a legal notice issued by the defendant - land lady terminating Ex.A2 through the legal notice dated 04.06.2005 whereby, he has informed the plaintiff that under Ex.B3, cancelling General Power of Attorney granted in favour of the plaintiff's wife in Ex.A24. On 20.06.2005, plaintiff had issued a legal notice seeking the specific performance of Ex.A1 agreement marked as Ex.A5. Acknowledgment is Ex.A6. 11. The defendant-landlady has filed a suit in O.S.No.1077 of 2005 for the relief of permanent injunction restraining the plaintiff from suit property.
After the trial, it was dismissed, and no appeal has been filed.
12. The trial Court has formulated as many as 4 issues namely: (i) whether the plaintiff is entitled to the relief of specific performance as prayed for? (ii) whether the plaintiff is entitled for the alternative relief and (iii) To what other relief the plaintiff is entitled to? (iv) Additional issues, namely, whether the alleged receipt dated 31.05.2004 is true and valid, are fabricated as contended by the defendant.
13. The other suit filed by the defendant-landlord for injunction, namely, O.S.No.778 of 2007, was also taken up by the very same District Judge since the suit, parties, and reliefs are connected in nature. A Joint trial was conducted, and joint evidence has been taken, with evidence in common recorded.
14. During the trial, on behalf of the plaintiffs, P.W.1 to P.W.4 were examined, and Exs.A1 to A28 were marked. On behalf of the defendants, D.W.1 to D.W.3 were examined and Exs.B1 to B9 were marked; and court documents Exs.X1 and X6 were marked and the suit for injunction in O.S.No.778 of 2007 was dismissed. No appeal has been preferred. In the present suit in O.S.No.296 of 2005, the trial Court has partly decreed the alternative relief and rejected the main relief , resulting in two appeals.
15. Based on the grounds of appeal, the learned Senior counsel appearing for the appellant in A.S.No
