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2012 DIGILAW 1338 (MAD)

Somasundaram v. P. Pavayee

2012-03-14

G.RAJASURIA

body2012
Judgment COMMON JUDGMENT: 1. These appeals are focussed by the plaintiffs in the suits, as against the common judgment and decrees dated 11.7.1997 passed by the Principal Subordinate Judge, Erode, in O.S.Nos.311 of 1993 and 573 of 1996, which were for specific performance of an agreement to sell and for obtaining permanent injunction. 2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court. 3. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this appeal would run thus: A.S.No.921 of 1997: (a) The appellants herein, as plaintiffs, filed the suit O.S.No.311 of 1993 for specific performance based on the agreement to sell-Ex.A1 dated 24.2.1989, which emerged between the plaintiffs and the defendants, whereby, the latter agreed to sell in favour of the former the suit property for a total sale consideration to be calculated at the rate of Rs.6,00,000.00 per acre. Under the said agreement, a sum of Rs.2,00,000/- was paid by the former to the latter. The period of performance was 15 months. Inasmuch as there was no performance of the agreement to sell on the part of the defendants, after issuing pre-suit notice and getting reply, the suit O.S.No.311 of 1993 was filed with the following prayer: "to pass a judgment and decree; a) directing the defendants to execute the sale deed at the costs of plaintiffs, in favour of the plaintiffs for Rs.12,24,000/- receiving the balance of Rs.10,24,000/- (apart from the advance of Rs.2,00,000/- already paid) and to do all acts necessary to recognise and confirm the possession of the suit property by the plaintiffs and to direct the defendants, if necessary, to deliver possession of the suit property to the plaintiffs. b) and in default of such compliance by the defendant the Honourable Court may be pleased to execute a registered conveyance of the suit property in favour of the plaintiff at the costs of the plaintiffs. b) and in default of such compliance by the defendant the Honourable Court may be pleased to execute a registered conveyance of the suit property in favour of the plaintiff at the costs of the plaintiffs. Alternatively a) directing the defendants to pay the plaintiffs the sum of Rs.3,50,000/- with future interest at the rate of 18% per annum on Rs.2,00,000/-from the date of suit till the date of payment and costs and further create a charge over the suit property for the due payment of the aforesaid amount with future interest at 18% percent per annum payment of the aforesaid amount with future interest at the rate of 18% percent and costs." (b) Tr. A.S.No.406 of 2008 is focussed as against the same judgment and decree dated 11.7.1997 passed by the Principal Subordinate Judge, Erode, in O.S.No.573 of 1996, which was one for obtaining permanent injunction in respect of the suit property on the ground that under Ex.A1-the agreement to sell dated 24.2.89, the plaintiffs were put in possession of the suit property; however, the defendants were trying to interfere with the peaceful possession and enjoyment of the plaintiffs, whereupon, it necessitated the latter to file the said suit. (c) Denying and refuting, challenging and impugning the allegations/averments in the plaints, the defendants filed the written statements, the pith and marrow of them would run thus: (i) Under the said agreement to sell-Ex.A1, possession of the suit property was not handed over to the plaintiffs and it continued to be with the defendants. (ii) The plaintiffs did not perform their part of the contract. They simply allowed the time to lapse and thereby, put the defendants into discomfiture and difficulties. (iii) Even though the plaintiffs alleged that they would take steps to develop the land and sell it to several purchasers, they have not chosen to do so. Accordingly, the defendants would pray for the dismissal of the suits. (d) Whereupon the trial Court conducted the joint trial on both suits and issues were also framed. (e) During trial, the plaintiff examined himself as P.W.1 and Exs.A1 to A33 were marked. On the defendants' side, the second defendant examined herself as D.W.1 and Exs.B1 to B23 were marked. Exs.C1 and C2 were marked as Court documents. (d) Whereupon the trial Court conducted the joint trial on both suits and issues were also framed. (e) During trial, the plaintiff examined himself as P.W.1 and Exs.A1 to A33 were marked. On the defendants' side, the second defendant examined herself as D.W.1 and Exs.B1 to B23 were marked. Exs.C1 and C2 were marked as Court documents. (f) Ultimately, the trial Court rejected the prayer for specific performance in O.S.No.311 of 1993; however, granted the alternative prayer by awarding a sum of Rs.1,66,500/-payable by the defendants in favour of the plaintiffs with 9% per annum from the date of suit till the date of decree and at 6% from the date of decree till realisation and dismissed the injunction suit O.S.No.573 of 1996. 4. Being aggrieved by and dissatisfied with the common judgment and decrees, the plaintiffs preferred these appeals, seeking specific performance of the agreement to sell on various grounds. 5. The learned Senior counsel for the appellants/plaintiffs would put forth and set fort his arguments, which could tersely and briefly be set out thus: (i) The plaintiffs have been ready and willing to perform their part of contract throughout, but the defendants did not express their willingness to come forward to execute the sale deed. The very fact that the defendants signed the application to get approval for carving out into plots-the suit land, on 27.4.90, would speak volumes that the plaintiffs had been active in performing their part of the contract; however, the defendants turned turtle and had a volte face and refused to come forward to execute the sale deed for no good reason. (ii) The trail Court failed to take into consideration the salient features involved in this case and simply rejected the prayer for specific performance. The fact also remains that D2's husband and the plaintiffs entered into a joint venture agreement, whereby the latter agreed to develop the suit property and sell it to third parties, as plots. (iii) The defendants cannot plead as though they were not aware of the participation of D2's husband along with the plaintiffs in developing the land. (iv) Since the defendants highhandedly attempted to dispossess the plaintiffs, the latter were constrained to file separate suit O.S.No.573 of 1996 seeking injunction, but that was unjustifiably dismissed by the trial Court. (iii) The defendants cannot plead as though they were not aware of the participation of D2's husband along with the plaintiffs in developing the land. (iv) Since the defendants highhandedly attempted to dispossess the plaintiffs, the latter were constrained to file separate suit O.S.No.573 of 1996 seeking injunction, but that was unjustifiably dismissed by the trial Court. (v) The suit for specific performance in O.S.No.311 of 1993 was wrongly held to be one hit by Order 2 Rule 2 of C.P.C., in view of the injunction suit in O.S.No.573 of 1996 (O.S.No.1303 of 1991), filed earlier to the specific performance suit O.S.No.311 of 1993, by the same plaintiffs. The cause of actions in both the suits are different and over and above that both the suits were tried together. Accordingly, the learned Senior counsel for the appellants/plaintiffs would pray for ordering specific performance of the agreement to sell. 6. In a bid to torpedo and pulverise and make mincemeat of the arguments as put forth and set forth on the side of the appellants/plaintiffs, the leaned counsel for the defendants would advance his arguments, which could tersely and briefly be set out thus: (a) The plaintiffs committed breach of contract, so to say, they did not perform their part of the contract as per Ex.A1-the agreement to sell. The circumstances be speak and be token that for 13 months they simply kept quiet and only during 14th month, from the emergence of Ex.A1, they did choose to obtain the signatures of the defendants in an application form for obtaining permission from the local body for developing the suit property into plots. Even thereafter, there was no progress. In such a case, the plaintiffs cannot try to capitalise their own mistake and seek for specific performance. (b) The lower Court appropriately and appositely, legally and convincingly considered the matter and awarded the return of the advance amount depressed by the amount already paid by D2's husband to the plaintiffs, as one of the partners in the joint venture agreement, as contained in Ex.A7. (b) The lower Court appropriately and appositely, legally and convincingly considered the matter and awarded the return of the advance amount depressed by the amount already paid by D2's husband to the plaintiffs, as one of the partners in the joint venture agreement, as contained in Ex.A7. (c) Even as on the date of filing of the injunction suit, the cause of action, according to the plaintiff themselves had arisen for seeking specific performance, because long prior to the filing of the injunction suit itself, the defendants, by their notice expressed their unwillingness to proceed further with the said agreement to sell, in view of the breach committed by the plaintiffs in performing their part of the contract. As such, the subsequent suit O.S.No.311 of 1993 for specific performance was hit by Order 2 Rule 2 of C.P.C. (d) The plaintiffs after understanding that they could not get interim injunction in the injunction suit, while filing the suit for specific performance, prayed for possession and as such, there is nothing wrong in the common judgment and decrees passed by the trial Court. Accordingly, the learned counsel for the respondents/plaintiffs would submit that absolutely there is no merit in these appeals and he prayed for dismissal of the appeals. 7. The points for consideration are as under: (i) Whether in the wake of Exs.A1-the agreement to sell dated 24.2.1989 and A7-the joint venture agreement dated 24.2.89, it could be portrayed and described as though the agreement between the plaintiffs and the defendants was one of mere agreement to sell? (ii) Whether the defendants had any knowledge about the joint venture agreement as contained in Ex.A7, which emerged between D2's husband and the plaintiffs relating to the same suit property? (iii) Whether the plaintiffs have been ready and willing to perform their part of the contract ever since the emergence of Ex.A1-the agreement to sell dated 24.2.1989? (iv) Whether the trail Court was justified in deducting the sum of Rs.33,500/- paid by the D2's husband to the plaintiffs under Ex.A7, while ordering return of the advance amount with interest. (v) Whether the subsequent suit for specific performance was hit by Order 2 Rule 2 of CPC? (vi) Whether there is any perversity or illegality in the judgment and decrees of the trial Court? 8. (v) Whether the subsequent suit for specific performance was hit by Order 2 Rule 2 of CPC? (vi) Whether there is any perversity or illegality in the judgment and decrees of the trial Court? 8. All these points are taken together for discussion, as they are interwoven and interlinked, entwined and interconnected with one another. 9. In the course of arguments, both sides would in unison highlight and spotlight certain facts, which are worthy of being set out hereunder, briefly and succinctly. Even though apparently and ex pacie Ex.A1 appears to be an agreement to sell, if it is read in conjunction with Ex.A7, it is at once obvious and axiomatic that between the plaintiffs and the defendants and the D2's husband there emerged a kind of joint venture agreement Ex.A7, whereby the defendants, who are the land owners, agreed to sell the land to the plaintiffs and in turn the plaintiffs wanted to convert the suit property, which is an agricultural land, into plots and sell those plots with the help of the D2's husband and also share a part of the profit with him. 10. It is at once pellucidly and palpably clear to my mind that this is virtually a joint venture agreement in the form of two agreements Exs.A1 and A7 and it cannot be labelled or dubbed as a bare agreement to sell. The plaintiffs, without disclosing the entire facts, simply filed the suit based on Ex.A1. Since the defendants resisted the suit, they did choose to produce Ex.A7 also and in that process wittingly or unwittingly the plaintiffs themselves exposed the true nature of the contract, which emerged among the plaintiffs, the defendants and the D2's husband. 11. Even though Ex.A1-the agreement to sell would clearly and categorically refer to the fact that within a period of 15 months, the plaintiffs should pay the entire sale consideration to the defendants and get the sale deed executed, during the trial the plaintiffs went to the extent of suggesting as though only after selling the plots to various persons, they would be able to get the sale consideration for the plots and in turn pay it to the land owners, namely, the defendants. Virtually this is not found spelt out in Ex.A1. Based on the precedent cited before the trial Court by the defendants, it held that the plaintiffs were not entitled to specific performance. 12. Virtually this is not found spelt out in Ex.A1. Based on the precedent cited before the trial Court by the defendants, it held that the plaintiffs were not entitled to specific performance. 12. The learned counsel for the defendants would try to put forth the case to the effect that the plaint is niggard and bereft of averments relating to Ex.A7. In my considered opinion it amounts to pot calling kettle black. It is not only the plaintiffs, who failed to place all the true facts in the plaint, but also the defendants, who failed to place the true facts before the Court and it is because of that alone Ex.A7 was constrained to be filed by the plaintiffs, which ultimately exposed the real transaction, which emerged among the plaintiffs, the defendants and the D2's husband. Hence, in these circumstances, the decision cited on both sides in my opinion are not at all germane because each one tried to project the case as though it is a simple case of specific performance. 13. Incontrovertibly and indisputably, the suit for specific performance was filed after the filing of the suit for injunction by one and the same plaintiffs in respect of the same suit property. 14. In this connection, the learned Senior counsel for the appellants/plaintiffs would cite the following decisions: (i) AIR 1964 SUPREME COURT 1810(1) – GURBUX SINGH V. BHOORALAL; (ii) AIR 1997 SUPREME COURT 1398(1) – M/S.BENGAL WATERPROOF LTD., V. M/S.BOMBAY WATERPROOF MANUFACTURING COMPANY AND ANOTHER; (iii) (2010) 10 SUPREME COURT CASES 141 – ALKA GUPTA V. NARENDER KUMAR GUPTA; (iv) 2003-1-L.W.484 – 1.R.VIMALCHAND, 2.M.RATANCHAND V. 1.RAMALINGAM AND OTHERS; (v) 2010(2) CTC 184 – PERIYASAMY AND 4 OTHERS V. LAKSHMI NADESAN; (vi) 2010(4) CTC 662 – 1.M.PALANISAMY AND OTHERS V. 1.P.KANNAGI AND OTHERS; (vii) 2011(3) MWN (Civil) 411 – 1.R.RADHAKRISHNAN AND ANOTHER V. G.EKAMBARAM AND ANOTHER; (viii) 2011(2) CTC 77 – K.JIJI BAK @ PUSHPAMMAL V. SURESHKUMARH KANKARIYA; (ix) 2004(7) SCC 650 – DALIP SINGH V. MEHAR SINGH RATHEE AND OTHERS; (x) 2004(11) SCC 219 – GURINDERPAL V. JAGMITTAR SINGH. 15. The learned counsel for the respondents/plaintiffs cited the following decisions. (i) 2010(1) MLJ 363 -KALASH PROPERTIES PVT.LTD., REP.BY ITS CHAIRMAN AND MANAGING DIRECTOR G.KALIASUNDARAM. 15. The learned counsel for the respondents/plaintiffs cited the following decisions. (i) 2010(1) MLJ 363 -KALASH PROPERTIES PVT.LTD., REP.BY ITS CHAIRMAN AND MANAGING DIRECTOR G.KALIASUNDARAM. (ii) 2010(6) MLJ 113 -BAFNA DEVELOPERS, A REGISTERED PARTNERSHIP FIRM REGN.NO.458/95 REP.BY ITS PARTNER ASHOK G.BAFNA, COIMBATRE V. 1.D.K.NATARAJAN AND OTHERS (iii) 2010(8) MLJ 52 -SORNAM AND OTHERS V. A.VENUGOPAL AND OTHERS; (iv) 2010(5) CTC 423 -BAFNA DEVELOPERS, A REGISTERED PARTNERSHIP FIRM REGN.NO.458/95 REP.BY ITS PARTNER ASHOK G.BAFNA, COIMBATRE V. 1.D.K.NATARAJAN AND OTHERS (v) 2011(4) L.W.264 – SATHIYAMURTHY V. 1.R.PAVUNAMBAL AND ANOTHER. 16. The epitome and the long and short of the propositions as found set out in those precedents are to the effect that the plaintiff cannot of his own accord file a suit based on a part of the cause of action, reserving to file a separate suit subsequently in respect of the remaining part of the same cause of action. But, if the causes of action for the two suits are distinct and separate, then the application of Order 2 Rule 2 cannot be ushered in. 17. The learned counsel for the respondents/defendants would, by narrating the facts correctly that after the expiry of the period of time stipulated for performance, notice was sent by the defendants conveying the snapping of the agreement to sell, in view of the plaintiffs laches and breaches, relating to the contract, and only thereafter, the suit for injunction was filed even though as on the date of filing of the suit for injunction, the cause of action for filing suit for specific performance was over due, but the plaintiffs did choose to file only the suit for injunction and there was no prayer for specific performance. 18. Whereas, the learned Senior counsel for the appellants/plaintiffs would submit that during the pendency of the first suit for injunction, the second suit for specific performance was filed and joint trial was conducted; common evidence was adduced; and the common judgment was pronounced and in such a case, the question of ushering in Order 2 Rule 2 does not arise. 19. In view of my discussion supra, while deciding the aforesaid points this issue has lost its importance. In fact, this is a singularly singular case, in which, on consent of both sides, joint trial of both the suits were held and common evidence was adduced on both sides. 19. In view of my discussion supra, while deciding the aforesaid points this issue has lost its importance. In fact, this is a singularly singular case, in which, on consent of both sides, joint trial of both the suits were held and common evidence was adduced on both sides. However, the trial Court, taking into consideration the factual aspect of the matter held that Order 2 Rule 2 is attracted in this case, because as on the date of filing of the first suit, the cause of action for filing the suit for specific performance was available. Relating to such finding of the trial Court, no interference is required and the trial Court in the facts and circumstances of this Case did choose to return the amount paid by the plaintiffs towards advance. 20. The learned Senior counsel for the plaintiffs in all fairness would submit that in reality the plaintiffs wanted to purchase the property for commercial purpose, so to say, for selling it as plots and in such a case, the trial Court held that they were not entitled to specific performance and at the most, the advance amount could be refunded; however, while ordering refund, the trial Court wrongly ordered deduction of Rs.33,500/-which was paid by D2's husband to plaintiffs towards joint venture agreement. In my opinion, such deduction was not tenable legally. While ordering refund of the advance amount, the trial Court should have ordered the entire advance amount to be refunded and it is for the D2's husband to work out his remedy for recovering his amount from the plaintiffs 1 and 2, if the law permits so. 21. The learned Senior counsel for the appellants/plaintiffs would submit that the lower Court on holding that the plaintiffs were not entitled for specific performance and more specifically, on the ground that the plaintiffs prayer for specific performance was for commercial purpose, then at least, they should have been compensated adequately by awarding the entire alternative prayer. 22. I could see considerable force in his submission. The learned counsel for the defendants would argue that because of the conduct of the plaintiffs they are not entitled to any compensation also. 23. 22. I could see considerable force in his submission. The learned counsel for the defendants would argue that because of the conduct of the plaintiffs they are not entitled to any compensation also. 23. Considering thepro et contra and that the defendants also suppressed the material fact that D2's husband was a party to the joint venture agreement, as contained in Ex.A7 and instricto senso, both Ex.A1 and Ex.A7 would constitute the joint venture agreement, I am of the view that the plaintiffs should also be compensated in terms of money over and above ordering return of the advance amount of Rs.2,00,000/-payable by the defendants to the plaintiffs. 24. Then the core question arises as to what should be the quantum. 25. The learned Senior counsel for the appellants/plaintiffs would submit that in the plaint, the plaintiffs claimed 18% interest from 24.2.1989, so to say, from the date of agreement to sell till the date of filing of the suit i.e 25.3.1993 (4 years 2 months and 1 day) and accordingly, quantified the interest alone in a sum of Rs.1,50,100/-and thereby, the total amount was arrived at Rs.3,50,100/- (Advance amount Rs.2,00,000/- plus accrued interest Rs.1,50,100/-). But the trial Court only ordered for refund of a meager sum. 26. In my considered opinion, awarding pre-suit interest in matters of this nature and that too, in the peculiar facts and circumstances of the case, highlighted supra, is not tenable and the trial Court correctly not awarded pre-suit interest. However, the trial Court fell into error in deducting the said sum of Rs.33,500/-from the advance amount and simply ordered refund of Rs.1,66,500/-. Hence, on that count, what I would like to order is that the defendants shall jointly and severally return the advance amount of Rs.2,00,000/- with 9% interest per annum from the date of suit till the date of decree and at 6% interest per annum from the date of decree till the date of realisation on Rs.2,00,000/- (Rupees two lakhs). 27. Regarding compensation, which I have held as the one payable by the defendants to the plaintiffs, I would like to quantify it in a sum of Rs.1,00,000/-(rupees one lakh), which would meet the ends of justice. In fact, the plaintiffs themselves, in their alternative prayer prayed for awarding a sum of Rs.3,50,000/-lakhs including the said sum of Rs.2,00000/-- the advance amount. In fact, the plaintiffs themselves, in their alternative prayer prayed for awarding a sum of Rs.3,50,000/-lakhs including the said sum of Rs.2,00000/-- the advance amount. As such, I am of the view that awarding a sum of Rs.1,00,000/-(rupees one lakhs) additionally, as compensation payable by the defendants to the plaintiffs with 9% interest from the date of suit till the date of decree and 6% interest per annum from the date of decree till realization, on Rs.1,00,000/-(Rupees one lakh), would meet the ends of justice. Accordingly, it is ordered. 28. On balance, the aforesaid points are decided and A.S.No.921 of 1997 is partly allowed modifying the judgment and decrees of the trial Court to the aforesaid extent. However, there is no order as to costs. 29. In view of the ratiocination adhered to in deciding the appeal A.S.No.921 of 1997, there is no substance in the appeal Tr.A.S.No.406 of 2008, as it loses its importance. Over and above that, the trial Court also considering the evidence on record held that possession was not with the plaintiffs as on the date of filing of the suit and now, in view of my finding supra that the plaintiffs are not entitled to specific performance, they cannot also lay claim for possession of the suit property also. Accordingly, Tr.A.S.No.406 of 2008 stands dismissed. However, there is no order as to costs.