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2006 DIGILAW 212 (MAD)

S. Sundaresan v. S. Santhanam

2006-01-31

S.ASHOK KUMAR

body2006
Judgment :- 1. The plaintiff who has failed before the courts below has preferred this Second Appeal. 2. The gist of the case is as follows: — The plaintiff entered into two agreements with the first defendant on 21.8.1985 to purchase 3/40th undivided share in the suit property for a sum of Rs. 16,875/= by paying a sum of Rs. 11,000/= as advance and another agreement on the same date to construct the flat in the 2nd floor of the suit property with a sale consideration of Rs. 1,33,125/= less the advance amount. According to the plaintiff, he was always ready and willing to perform his part of the contract, namely he was ready with the money for making the balance payment, but the first defendant had delayed the execution of the sale deed stating that there is a delay in getting the Income-tax clearance by the original owner from the Department. When the plaintiff approached him repeatedly by several modes, on 11.5.1987 the first defendant wrote a letter to the plaintiff stating that if the plaintiff is willing to pay 50% of the balance sale consideration, he can take possession of the flat. The plaintiff came to know that even on 7.4.1987 and 10.4.1987 the first defendant has sold the other undivided shares to the other purchasers and executed sale deeds. The first defendant also demanded Rs. 1,75,000/= as sale consideration or otherwise the plaintiff can take back his advance amount with 24% interest from him. The plaintiff issued a legal notice on 27.6.1987 for which the defendant did not send any reply, nor he executed the sale deed. Hence the plaintiff filed a suit for the relief of specific performance of the agreement. 3. But the defendant-promoter contested the suit contending that the plaintiff entered into separate agreements for purchase of the undivided share and construction of the flat by paying a token advance of Rs. 11000/= on 21.8.1985. But as per the term of the agreement the plaintiff could not make payments towards the cost of construction. Though the defendant persuaded to make 50% of the balance amount and take possession of the flat, the plaintiff refused to do so stating that his loan has not been sanctioned. 11000/= on 21.8.1985. But as per the term of the agreement the plaintiff could not make payments towards the cost of construction. Though the defendant persuaded to make 50% of the balance amount and take possession of the flat, the plaintiff refused to do so stating that his loan has not been sanctioned. Hence the defendant could not execute the sale deed in his favour and having no other go, he has sold the flat to one Natarajan who is the second defendant in the Second Appeal. The plaintiff having not ready and willing to perform his part of the contract, he is not entitled to the discretionary relief of specific performance. 4. The Trial Court decreed the suit as prayed for holding that the plaintiff was ready and willing to pay the balance amount and it is only the first defendant who has delayed and avoided execution of the sale deed in favour of the plaintiff. On appeal by the first defendant the first appellate court also concurred with the findings of the trial court. Hence the second appeal by the first defendant. 5. At the time of admission, the following substantial Question of Law was framed by this Court: — “Whether the agreement of sale of Flat No. 8, dated 21.8.1985 is an integral part of the suit agreement of even date for sale of undivided share of land and if so, whether the suit as framed is maintainable in law?” 6. Learned counsel appearing for the appellant mainly submitted that without impleading the original owner of the property the suit for specific performance itself is not maintainable and both the courts below have failed to take into consideration of this aspect. Though such a point has not been canvassed by the defendant before the courts below, he relied upon the decision reported in AIR 1990 Madras page 76 to the effect that a question of law which goes to the very root of the matter can be raised even at the stage of second appeal. He also contended that the first defendant did not have the marketable title deed to execute the sale deed and it is only with the original owner who has not been impleaded and in support of this contention he relied on the judgment of this Court reported in AIR 1975 Madras 379. 7. He also contended that the first defendant did not have the marketable title deed to execute the sale deed and it is only with the original owner who has not been impleaded and in support of this contention he relied on the judgment of this Court reported in AIR 1975 Madras 379. 7. Learned counsel for the appellant also argued that the very first word in Ex.A.1 proceeds as if the original owner represented by Power of Attorney, Sundaresan, the first defendant herein. The role of an agent has no personal liability under Section 230 of the Indian Contract Act. The Section only says in the absence of the contract, an agent cannot personally enforce the contract entered into by him on behalf of the principal, nor he is personally bound by it. Hence the suit itself is liable to be dismissed for non joinder of necessary party, namely the original owner. It is also submitted that the seller is no more. 8. Concededly, both the courts below on a careful reading and analysation of the letters, documents and oral evidence came to the conclusion that the plaintiff was always ready willing to pay the balance money and he has performed his part of the contract. But, it is only the first defendant who has failed to perform his part of the contract by executing the sale deed in favour of the plaintiff within the stipulated period. The trial court even held that the plaintiff has given a objection letter through his counsel on 27.8.1987 to the Sub Registrar of Adyar not to register the flat to anybody which would only go to show he was ready and willing to purchase the property. The trial court also held that when the plaintiff was ready with the money even as on 11.5.1987 it is only the first defendant by Ex.P.5 requested the plaintiff that the sale deed could not be registered as there is delay in getting the I.T clearance certificate by the original land owner. The first appellate court also found that the first defendant had sold the undivided share of the land to the second defendant for a sum of Rs. 22,500/= which would clearly prove the intention of the first defendant to sell the flat at a higher cost than the agreed price to the plaintiff. The first appellate court also found that the first defendant had sold the undivided share of the land to the second defendant for a sum of Rs. 22,500/= which would clearly prove the intention of the first defendant to sell the flat at a higher cost than the agreed price to the plaintiff. In the circumstances, I am not inclined to interfere with the concurrent findings of the court below as to the plaintiffs entitlement to get the discretionary relief of specific performance as both the courts below have found that the plaintiff had performed his part of the contract. 9. As regards the contention raised by the counsel for the appellant that the original land owner has not been impleaded and hence the suit is not maintainable, such a contention is liable to be rejected for the simple reason that in the present case the appellant/first defendant who is the Power of Attorney Holder of the original owner has the marketable title deed at the relevant point of time. Conveniently, the appellant has not produced the Power of Attorney document from which we could discern that whether the appellant had the absolute right to deal with the property, upto what period. In the real estate field, it is the prevailing practice that the original owner of the land would execute the power of attorney in favour of the building promoter in respect of the land to be promoted by him who will only execute the sale deed or building agreement, obtaining building sanction etc., until the completion of the project. Admittedly, the appellant had not raised such a contention before the courts below and hence such a point has not been discussed by the courts below. In the absence of the power of attorney document the presumption has to be taken against the appellant and it has to be stated that the appellant has the good and marketable title deed in respect of the land as he is the power of attorney holder of the land and it is not necessary to implead the original land owner. In the present case admittedly, when Ex.P.5 was written by the first defendant to the plaintiff, he had executed and registered the sale deed in respect of other purchasers which will only prove that he had acted so with the rights derived from the Power of Attorney. 10. In the present case admittedly, when Ex.P.5 was written by the first defendant to the plaintiff, he had executed and registered the sale deed in respect of other purchasers which will only prove that he had acted so with the rights derived from the Power of Attorney. 10. As regards the decision reported in AIR 2003 SC 1391 , it is a case where the plaintiff has approached the court with enormous delay of six years and there was no material to show that he ever approached the defendants to execute the sale deed in his favour and having regard to the conduct of the plaintiff, the relief of specific performance was declined. But such is not the case here. The other citations relied on by the counsel for the appellant are on different footings and on different set of facts and laws and are not helpful to the case of the appellant. Moreover, when the first defendant is governed by the power of attorney, the benefit under the Indian Contract Act as an agent cannot be sought for and he is personally liable for his misdeeds. 11. In the circumstances, the only substantial question of law is answered against the appellant and the second appeal is dismissed. No costs.