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2026 Supreme(Mad) 1383
IN THE HIGH COURT OF JUDICATURE AT MADRAS
P. Dhanabal, J.
M.Dhanaraj - Plaintiff
Versus
K.S.Damodaran, S/o Late K.S Shanmugasundaram Nadar – Defendant
CS No. 57 of 2022
Decided On : 17-04-2026
For the Plaintiff : M/s.Bajai Sundar
For the Defendant : M/s.M.Guberamoorthy, Mr.K.M.Kodaiarasu, Mr.G.Ilangovan
Even in ex-parte suits, plaintiffs must prove claims with cogent evidence including originals; unexplained 29-year delay without specific performance, unclean hands disentitle declaration against arbitral award.
Headnote:(A) Arbitration and Conciliation Act, 1996 - Sections 12, 34 - Civil Procedure Code, Order VII Rule 1, Order VIII Rule 10, Order IV Rule 1 Original Side Rules - Specific Relief Act, Section 12 - Indian Evidence Act, Section 65 - Suit challenging arbitral award as void ab initio for fraud, collusion, non-impleadment of third parties, and lack of jurisdiction - Plaintiffs claiming prior agreement with defendant for property sale, possession since 1999, payments made, but failed to produce original agreement, file specific performance suit despite 29 years lapse, or prove case with sufficient evidence - Even in ex-parte proceedings, plaintiffs must establish claim through cogent evidence; failure to produce original document renders secondary evidence inadmissible - Pending probate of will and prior injunction suit do not excuse delay or laches - Party must approach court with clean hands; unexplained delay, non-filing of specific performance suit, and suspicious document conduct disentitle relief - Arbitral award directing deposit to prior agreement holders and sale deed execution upheld as plaintiffs failed to prove entitlement. (Paras 10, 11, 12, 13, 15)
(B) Ex-parte Proceedings - Order VIII Rule 10 CPC - Decree not automatic; plaintiffs bear burden to prove case by evidence notwithstanding defendants' default - Court to pass judgment or order as deem fit, dismissing suit if evidence insufficient. (Para 10)
Facts of the case:
Plaintiffs sought declaration that arbitral award favouring defendant (bona fide purchaser under later agreement) was illegal, void ab initio, unenforceable due to fraud, collusion, non-impleadment, affecting third-party rights under prior unprobated agreement/MoU with first defendant; claimed possession since 1999, payments totalling Rs.1.23 crores, prior injunction decree obtained; arbitral proceedings ex-parte against first defendant, directing Rs.3.5 crores deposit and sale deed. Defendants set ex-parte; plaintiffs examined PW1, marked photocopy documents.
Findings of Court:
Plaintiffs failed to prove vital original MoU (photocopy inadmissible under Evidence Act), unexplained delay of 29 years without specific performance suit, suspicious endorsements on document, knowledge of pending probate; conduct showed unclean hands; insufficient evidence despite ex-parte status.
Issues: Whether plaintiffs entitled to declare arbitral award void ab initio and permanent injunction against enforcement; validity of secondary evidence without original; effect of laches and non-filing specific performance.
Ratio Decidendi: In ex-parte suit, plaintiffs must prove case by sufficient evidence; failure to produce original agreement, file specific performance timely, or explain laches shows unclean hands; court not bound to grant relief without proof, dismissing suit accordingly.
Result: Suit dismissed. No costs.
| Table of Content |
|---|
| 1. property ownership via will and mou payments (Para 1 , 2) |
| 2. plaintiffs' claims against award validity (Para 3 , 4 , 5 , 6 , 7) |
| 3. defendant's bona fide purchaser defense (Para 8 , 9) |
| 4. failure to prove mou and clean hands (Para 10 , 11 , 12 , 13) |
| 5. insufficient evidence dismisses suit (Para 14 , 15) |
JUDGMENT :
P. Dhanabal, J.
1.This Civil Suit has been filed by the plaintiff for the relief of declaration to declare that the impugned Award passed by the 17th defendant in favour of 16th defendant in A.R.B.No.1 of 2014, dated 15.04.2001, is illegal, void-ab- initio and un-enforceable, and also for the relief of permanent injunction restraining the 16th defendant from in any manner taking steps to enforce the impugned Award, dated 15.04.2021 passed by the 17th defendant in favour of the 16th defendant and for costs of the suit.
2.The gist of the plaint averments, are as follows:
2.1. The suit property originally belonged to one Kasimari Shanmugha Sundara Nadar and he purchased the property through two different sale deeds, dated 11.03.1957 and 13.01.1959 respectively. The first defendant is the son of the said Late K.S.Shanmugasundara Nadar and the father of the first defendant executed a Will, dated 23.04.1994 bequeathing the A-schedule property to the first defendant by directing him to discharge all the liabilities created by him which is referred in Schedule F. The said Shanmuga Sundara Nadar died on 24.07.1995, leaving behind him the First Class legal heirs, namely his widow and three sons and one daughter. The first defendant had taken steps to probate the Will, dated 23.02.1994 and filed Original Petition in O.P.No.147 of 1997 before this Court, and thereafter, it was re-numbered as T.O.S.No.23 of 1998.
2.2. The first defendant offered to sell the property of an extent of 35 grounds and 1100 Sq.Ft. with the building and the shed to an extent of 20,684 Sq.Ft. as set out in A-schedule of the plaint, to the plaintiffs 1 to 3 and Late A.Peter Paul, who agreed to purchase the same in the month of February 1997. A Memorandum of Understanding (for short, ’MoU’) was executed on 08.02.1997 between the plaintiffs 1 to 3 along with A.Peter Paul and the first defendant. As per the said MoU, the first defendant agreed to sell the property in A-schedule @ Rs.12 lakhs per ground.
2.3. The first defendant received a sum of Rs.3 lakhs from the plaintiffs 1 to 3, and A.Peter Paul on 08.02.1997 as advance of sale price. As per the terms and conditions of the MoU, a sum of Rs.7 lakhs was paid to the first defendant in December 1997 as further advance. The plaintiffs 1 to 3, along with A.Peter Paul made payments towards sale price, which was from time to time, amounting to Rs.1,13,00,000/- and to that effect, an endorsement was made by the first defendant from 08.02.1997 to 04.08.1997 and the amount of Rs.35 lakhs is supported by receipts issued by the first defendant for having received the payments. As per the MoU, the plaintiffs 1 to 3 and along with A.Peter Paul, took steps to vacate the tenant of the first defendant. The plaintiffs 1 to 3 and A.Peter Paul, met the tenant and discussed the matter and negotiated successfully to make them vacate. The plaintiffs 1 to 3 and A.Peter Paul had to pay Rs.10 lakhs to the tenant and the tenant vacated the demised portion on 25.02.1999 and surrendered the vacant possession to the first defendant. On the same day, the first defendant had put the plaintiffs 1 to 3 and A.Peter Paul in possession of the property. Since 25.02.1999, the plaintiffs 1 to 3 and A.Peter Paul are in absolute and exclusive possession and enjoyment of the property. As on date, the plaintiffs 1 to 3 and A.Peter Paul have jointly made payment Rs.1,23,00,000/- to the first defendant towards the sale consideration of the suit property.
2.4. As agreed by the first defendant in the MoU, he had not got the Will of the father probated in O.P.No.147 of 1997. The plaintiffs 1 to 3 and A.Peter Paul, have been waiting for the first
