IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 09.03.2022

CORAM

THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH

S.A.No.437 of 2014

and

M.P.No.1 of 2014 & C.M.P.No.21524 of 2017

Rajeswari

... Appellant/Plaintiff

Vs.

1.Srikanth

2.Radhika

3.Jegatha

4.Amutha

5.The Executive Engineer,

Tamil Nadu Housing Board,

Tatabad, Coimbatore – 641 012.

... Respondents/Respondents 1 to 4

and 5^th defandent

PRAYER: Second Appeal filed under Section 100 of C.P.C., against

the judgment and decree in A.S.No.19 of 2013 dated 26.04.2013 on

the file of First Additional District Judge, Coimbatore

modifying the judgment and decree in O.S.No.458 of 2011 dated

07.12.2011 on the file of the First Additional Sub Judge,

Coimbatore.

For Appellant

: Mr.S.Natarajan

For respondents: Mr.K.Goviganesan for R1 to R4

Mr.R.Jayaseelan,

Standing Counsel for TNEB for R5

J U D G M E N T

The plaintiff is the appellant in this second appeal.

2. The plaintiff filed a suit for specific performance on

the ground that the suit property was allotted by the Housing

Board in favour of the father of the defendants on 15.07.1991

and the possession and enjoyment was handed over in the year

1999. He entered into an agreement of sale on 03.08.2006

(Ex.A1) with the plaintiff and as per the sale agreement, the

suit property was agreed to be sold to the plaintiff for a total

sale consideration of Rs.8,50,000/-. The plaintiff also paid

https://hcservices.ecourts.gov.in/hcservices/

an advance amount of Rs.5,00,000/-. It was further agreed that

the balance sale consideration will be paid in 15 days and the

sale deed will be executed in favour of the plaintiff.

3. The further case of the plaintiff is that the father of

the defendants died on 26.08.2006. Hence, the defendants were

asking for time to get the legal heirship certificate and to get

the documents transferred in their name. The defendants asked

the plaintiff to come to the Registrar Office on 22.06.2007 and

the defendants never turned up and the plaintiff was made to

wait in the Registrar Office. Consequently the legal notice

came to be issued by the plaintiff on 27.06.2007 (Ex.A2) and a

reply notice was given by the defendants on 09.07.2007 (Ex.A4).

It is pertinent to note that the sale deed was not executed in

favour of the father of the defendants and he had approached the

Consumer Forum, complaining of deficiency in service and for a

direction to execute the sale deed in his favour. The Housing

Board took a stand that the father of the defendants is yet to

settle the balance amount of Rs.8,85,000/-. The plaintiff who

was liable to pay the balance sale consideration of

Rs.3,50,000/-, paid the same to the Housing Board. In the mean

time, the suit came to be filed and an exparte decree was

passed. The exparte decree was set aside and the defendants were

allowed to contest the case on merits.

4. The defendants filed the written statement and took a

stand that their father did not have the right to enter into a

sale agreement with the plaintiff even before he could become

the owner of the property. They also relied upon certain

clauses in the lease–cum–sale deed issued by the Housing Board

which prevented any alienation. They also took the stand that

the plaintiff has not even stated his readiness and willingness

to perform his part of the contract. The defendants therefore

sought for the dismissal of the suit.

5. Heard Mr.S.Natarajan, learned counsel for the appellant,

Mr.K.Goviganesan, learned counsel for the respondents 1 to 4 and

Mr.R.Jayaseelan, learned Standing Counsel for TNEB.

6. This Court carefully perused the materials available on

record and the findings of both the Courts.

7. The trial Court through judgment and decree dated

07.08.2011 decreed the suit as prayed for. Aggrieved by the

same, the defendants 1 to 4 filed an appeal in A.S.No.19 of 2013

before the I Additional District Judge, Coimba