Research › Search › Judgment

Madras High Court · body

2003 DIGILAW 988 (MAD)

V. K. Arumugam v. C. P. Shanmugam (died)

2003-07-07

K.P.SIVASUBRAMANIAM

body2003
Judgment : 1. This appeal is directed against the judgment of the learned II Additional Sub Judge, Coimbatore in A.S. No.174 of 1991 in partly reversing that of the Principal District Munsif, Coimbatore in O.S.No.1789 of 1984 dated 31.8.1990. 2. The suit was filed by the first respondent herein against the two defendants for direction to the first defendant to pay to the plaintiff a sum of Rs.7,000 with subsequent interest and direction to the second defendant to pay to him a sum of Rs.7,000 with subsequent interest. 3. The plaintiff claimed to be a real estate broker. He negotiated the transaction between the purchaser and seller and in all such transactions, he was receiving a brokerage of 2% for the purchase of properties in Coimbatore city. According to him, in terms of the oral contract agreed in between the plaintiff and the first defendant in the first week of May, 1979, the first defendant had requested the plaintiff to find a purchaser for his house situate at No.1, Swami Layout in between Barathi Park Road and Alagesan Road, Coimbatore. The first defendant promised to pay 2% of the total value for which the house was sold as commission to the plaintiff. The plaintiff came to know from one Laximichand Devraj, Suresh and his brother Anil that the second defendant wanted to buy a house and therefore, the plaintiff approached the second defendant and offered to act as a real estate broker for him in finding a seller of a house for the usual commission of 2% of the sale price. The second defendant also agreed to pay the said sum. This agreement took place during November, 1982 at R.S.Puram, Coimbatore in the house of the second defendant. 4. Pursuant to the two agreements, the plaintiff also brought some prospective buyers to see the house of the first defendant. The second defendant was also shown various houses at Coimbatore. On 10.4.1984, at the request of the second defendant, his family members were taken to see the house of the first defendant. After seeing the house, the second defendant expressed his willingness to purchase the house. The plaintiff approached the first defendant. Ultimately, a mediator by name Sasindran dragged on the matter and the plaintiff had written letters on 28.4.1984 and 16.9.1984 in the said regard to the first defendant. After seeing the house, the second defendant expressed his willingness to purchase the house. The plaintiff approached the first defendant. Ultimately, a mediator by name Sasindran dragged on the matter and the plaintiff had written letters on 28.4.1984 and 16.9.1984 in the said regard to the first defendant. The plaintiff further states that after coming to know about the second defendant through the letters written by the plaintiff, the plaintiff wrote a letter on 6.6.1984 to the first defendant. In June, 1984, the sale of the house was executed in favour of the second defendant on 11.6.1984, without the knowledge of the plaintiff, probably with a view to cheat the plaintiff of his brokerage. According to the plaintiff, he has fulfilled his part of the contract in making the buyer and seller meet and come to terms. Therefore, he sent a notice to the first respondent on 19.6.1984 demanding commission. But the defendant has not sent any reply. Thereafter, the plaintiff also sent a notice to the second defendant on 23.7.1984. He also did not send any reply. The defendants have not paid the commission due to the plaintiff and hence the suit. 5. The first defendant has filed a written statement denying the fact that the plaintiff was a real estate broker. According to him, there is no such practice at Coimbatore and he never contracted the plaintiff for the purpose of selling his house nor he entered into any contract either orally or in writing with the plaintiff for the said purpose. There was no truth in the statement that he promised to pay at 2% of the total value. The plaintiff did not also introduce or bring the second defendant to this defendant to buy his property. He entrusted the matter to his friends and colleague Mr.Sachindran who did everything and finalised the matter and having accepted of his instructions, the defendant came to Coimbatore and completed the transaction. 6. In the written statement of the second defendant also, while denying the claims of the plaintiff, contended that in or about April, 1984, the plaintiff came over to this defendants house and introduced himself as a broker employed by one V.K.Arumugham for sale of his house. 6. In the written statement of the second defendant also, while denying the claims of the plaintiff, contended that in or about April, 1984, the plaintiff came over to this defendants house and introduced himself as a broker employed by one V.K.Arumugham for sale of his house. The tenants in the house of V.K.Arumugham told the defendant that the house was in charge of one of Mr.C.G.Sasindran, an electrical engineer in the employment of the Coimbatore Municipal Corporation and that the defendant might contact him. The tenants also assured this defendant that they would vacate, if given sufficient time. As the said Sasindran was well known to a friend of this defendant, this defendant had approached C.G.Sasindran through him and expressed his willingness to purchase the house. It is not known how the claim of commission has been made on Rs.3,50,000 while the sale price was only Rs.1,50,000. When the sale deed was executed and registered on 28.4.1984, it is strange that the plaintiff has alleged that the first defendant came over to Coimbatore in June, 1984 and executed the sale deed on 11.6.1984. Therefore, according to the second defendant, the plaintiff had nothing to do with the transaction. 7. On a consideration of the said contentions and evidence, the trial Court though upheld that the claim of the plaintiff to the extent of the entitlement for brokerage, however, concluded that the sale price being only Rs.1,50,000, the plaintiff would be entitled to only the proportionate brokerage and not on the sum of Rs.3,50,000 as claimed by the plaintiff. Therefore, the trial Court granted decree only to the extent of Rs.3,500, as against both the defendants. However, the appellate Court on appeal, while confirming the entitlement of brokerage to the plaintiff, however held that the evidence clearly established that the value of the property was Rs.3,00,000 and hence the plaintiffs were entitled to brokerage at 2% on sum of Rs.3,50,000 and hence the above second appeal. 8. Though the second defendant has been served, he has not appeared through any counsel. 9. At the time of admission of the second appeal, the following substantial questions of law have been framed for consideration: (i) Whether the Courts below are right in law holding that the sale consideration is Rs.3,50,000 which is contrary to the written terms of a registered sale deed? 9. At the time of admission of the second appeal, the following substantial questions of law have been framed for consideration: (i) Whether the Courts below are right in law holding that the sale consideration is Rs.3,50,000 which is contrary to the written terms of a registered sale deed? (ii) Whether the Courts below are right in law in coming to the conclusion that there was an oral agreement between the plaintiff and the defendants appointing him as broker and agreeing to pay a brokerage of 2% when there is no evidence of ‘consensus ad idem’? (iii) Whether the Courts below have properly considered Exs.A-1, A-5 and A-6 even from which it is clear that there is no contract to pay any brokerage? 10. The learned counsel for the appellant took me through Exs.A-1, A-5 and A-6 and contended that there was no evidence to connect the said transaction with the suit agreement or suit transaction and hence there was absolutely to proof of the agreement to pay any brokerage to the plaintiff. 11. The learned counsel for the appellant further submits that the Courts below have not properly appreciated the evidence relating to the so called agreement between the parties to pay the brokerage to the plaintiff at 2%. There was no evidence of specific agreement between the parties and hence in the absence of the same, the Courts below erred in recording any positive conclusion from the evidence. The learned counsel further contended that the trial Court had arrived at the value at Rs.1,50,000 on the basis of the price mentioned in the sale deed. However, the appellate Court without any basis or any other oral or documentary evidence had erroneously concluded that the sale consideration was Rs.3,00,000. The said conclusion were not based on any evidence and even otherwise, the ultimate decree requires the defendants to pay brokerage at 2% on total value of Rs.3,50,000, which is opposed to the finding of the appellate Court itself namely the value of property was Rs.3,00,000. Therefore to the said extent, the decree of the appellate Court cannot be sustained. 12. I have also heard the learned counsel for the plaintiff/first respondent. 13. The learned counsel contends that the facts of the transaction and the agreement for the payment of brokerage had been considered in detail and both the Courts have concurrently found and accepted the case of the plaintiff. 12. I have also heard the learned counsel for the plaintiff/first respondent. 13. The learned counsel contends that the facts of the transaction and the agreement for the payment of brokerage had been considered in detail and both the Courts have concurrently found and accepted the case of the plaintiff. On the issue of the actual value of the property, the learned counsel for the first respondent refers to the observations in the judgment of the appellate Court dealing with the admission of the defendants to the effect that the sale consideration was only Rs.3,00,000. Therefore, the appellate Court had rightly fixed the value of the property at Rs.3,00,000. Therefore, no interference was called for. 14. In reply, the learned counsel for the appellant states that as regards the alleged admission, no conclusive value can be attached to the same considering that the so called admission was not proved. In this context, the learned counsel relied on a judgment of the honourable Supreme Court in Nagubai Ammal and others v. B.Shama Rao and others A.I.R. 1956 S.C. 593: 1956 S.C.J. 655. 15. I have also considered the submissions of both sides. 16. As regards the entitlement of the plaintiff to receive the brokerage at 2% and as regards whether he had actually acted as a broker for the first and second defendants, the Courts below have concurrently arrived at the finding in favour of the plaintiff after considering the entire evidence. I do not find any reason to interfere with the concurrent findings of fact rendered by the Courts below holding that the plaintiff was engaged as a broker for the transaction. 17. However, in the context the value of the property, the judgment of the appellate Court proceeds on the basis of certain alleged admissions which does not appear to be correct. In paragraph 12 of the judgment, the trial Court has considered that the value of the property as given in the sale deed was only Rs.1,50,000 and that there was no further evidence to prove that the house was actually sold for Rs.3,50,000. On the contrary, the appellate Court has referred to certain alleged admissions in the evidence of D.W.2 to the effect that a sum of Rs.3,00,000, have been paid towards the sale consideration. In this context, I have heard both the learned counsel as well as perused the oral evidence of both D.W.1 and 2. On the contrary, the appellate Court has referred to certain alleged admissions in the evidence of D.W.2 to the effect that a sum of Rs.3,00,000, have been paid towards the sale consideration. In this context, I have heard both the learned counsel as well as perused the oral evidence of both D.W.1 and 2. 18. The following is the portion of the evidence which is sought to be relied on by the appellate Court for coming to the conclusion that a sum of Rs.3,00,000 was paid towards the sale consideration. “TAMIL” The above portion of evidence shows that a sum of Rs.1,50,000 was received by way of demand draft on the date of the sale and that while signing the documents he has signed as if he has received a sum of Rs.1,50,000 by pay order. The above statement is only due to the contradiction in the description of demand draft and pay order. Both in the chief-examination as well as in the cross-examination he has positively stated that the sale consideration was only Rs.1,50,000. 19. Likewise, in the evidence of D.W.1 also, he has positively stated that the sale consideration was only Rs.1,50,000. He has not made any statement of having made the payment of Rs.1,50,000 twice. 20. Apart from the evidence of D.W.1 and D.W.2, it is pertinent to note that the value of the property as given in the sale deed is only Rs.1,50,000. In the normal circumstances, parties cannot be allowed to plead or let in evidence contrary to the recitals in the written document. Even otherwise conceding that the oral evidence can be taken into account, as I have observed above, the oral evidence as adduced by both D.W.1 and D.W.2, do not lead to interference that the value was Rs.3,00,000. Therefore, I am unable to sustain the finding of the appellate Court fixing the value at Rs.3,00,000. I do not find any material to hold otherwise than the value which is actually stated in the sale deed. 21. Hence, to the extent of the appellate Court holding that the plaintiff will be entitled to commission on the basis of Rs.3,50,000 cannot at all be sustained. The conclusion arrived at by the trial Court as regards the value is sound and correct. With the result, the above second appeal is partly allowed. 21. Hence, to the extent of the appellate Court holding that the plaintiff will be entitled to commission on the basis of Rs.3,50,000 cannot at all be sustained. The conclusion arrived at by the trial Court as regards the value is sound and correct. With the result, the above second appeal is partly allowed. While the judgment and decree of the appellate Court are set aside, the judgment and decree of trial Court are restored and the defendants will be liable to pay the brokerage at the rate of 2% each on the value of Rs.1,50,000. No costs.