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2012 DIGILAW 806 (MAD)

Bindu Madhavan v. K. Umanath

2012-02-15

R.S.RAMANATHAN

body2012
Judgment :- 1. The defendant in O.S.No.735 of 2008 on the file of the Principal District Judge, Coimbatore is the revision petitioner in both the revisions. 2. The respondents herein filed the suit for specific performance of agreement of sale for the purchase of the suit property for consideration as stated in the agreement and a compromise was entered into between the parties in the Mediation and the terms of compromise is as follows: "(1.) The plaintiffs hereby agree to pay the balance sale consideration of Rs.14,00,000/-(Rupees Fourteen Lakhs only) and arrears of rent calculated at Rs.2000/- p.m. from September 2007, to the defendant on or before 1.6.2009 without any fail and the plaintiffs agreed to get the sale deed executed and registered at his costs. (2.) On receipt of the said sum of Rs.14,00,000/-(Rupees Fourteen Lakhs only) and arrears of rent calculated as above, the defendant shall execute the registered sale deed in favour of the plaintiffs are to their nominee or nominees appointed for this purpose by the plaintiffs by way of express terms and at the cost of the plaintiffs. (3.) If the plaintiffs unable to pay the said amount as agreed above (Balance sale consideration and arrears of rent) on or before 1.6.2009, then the plaintiffs hereby agreed to vacate the suit property and hand over the vacant possession of the same to the defendant on or before 1.6.2009. The plaintiffs further undertake to pay Rs.25,000/-as damages to the defendant. (4.) When the plaintiffs ready with the said amount agreed above (By way of Demand Draft taken from the Nationalized Bank in favour of the defendant), even after receipt of 3 days notice from the plaintiffs, if the defendant refuses to execute the sale deed in favour of the plaintiffs, then the plaintiffs shall be entitled to execute this Mediation Settlement through competent Court, for getting the sale deed executed after depositing the amount agreed as above in the said Court. (5.) The defendant hereby agrees to repay the advance amount of Rs.1,00,000/-(Rupees One lakh only) received under suit agreement after deducting the arrears of rent due from the plaintiff if any calculated as above and the agreed damages of Rs.25,000/- at the time of handing over the vacant possession of the suit property by the plaintiffs to the defendant. (5.) The defendant hereby agrees to repay the advance amount of Rs.1,00,000/-(Rupees One lakh only) received under suit agreement after deducting the arrears of rent due from the plaintiff if any calculated as above and the agreed damages of Rs.25,000/- at the time of handing over the vacant possession of the suit property by the plaintiffs to the defendant. (6.) In case if the plaintiffs failed to vacate and hand over the vacant possession of the suit property, the defendant shall be entitled to execute this Mediation Settlement through Court of law or the eviction of the plaintiffs. On the failure of the defendant to pay such sum, then the plaintiffs shall be entitled to execute this Mediation Settlement for recovery of the due amount from the defendant if any. (7.) Even after adjusting the Advance amount of Rs.1,00,000/-(Rupees One lakh only), to the arrears of rent due from the plaintiffs to the defendant, if there is any amount falls due to the defendant, then the plaintiffs undertakes to pay the same to the defendant at the time of hand over the vacant possession to the defendant. In case of failure of plaintiffs to pay such sum, then the defendant shall be entitled to execute this Mediation Settlement through Court for the recovery of said sum calculated as above, from the plaintiffs. (8.) Both parties hereby agree that the time specified herein is the essence of this Mediation Settlement. " 3. Thereafter, the decree was also passed in terms of the compromise on 10.9.2009. Mean while, the Plaintiffs/ Decree holders issued a notice Ex.P3 dated 28.5.2009 to the revision petitioner stating that as per the compromise entered into between the parties they have purchased three Demand Drafts for a sum of Rs.14,00,000/- (Rupees Fourteen lakhs only) and requested the revision petitioner to execute the sale deed on receipt of the Demand Drafts as well as the amount of Rs.42,000/- being the arrears of rent as per the compromise. In the said notice the details of the Demand Drafts namely Number, Date, amount and Bank on which it was drawn were mentioned. In the said notice the details of the Demand Drafts namely Number, Date, amount and Bank on which it was drawn were mentioned. The revision petitioner also sent a telegram Ex.P4 to the respondents stating his readiness to execute the sale deed on 1.6.2009 on receipt of Rs.14,42,000/-as per the compromise and according to the respondents the revision petitioner did not send any reply and therefore on 1.6.2009 they filed Lodgement Schedule before the Court to deposit Rs.14,42,000/- and the application of Lodgment Schedule was marked as Ex.P7 and the Court granted permission on 18.6.2009 to deposit the said amount and that was deposited on that date and therefore they filed E.P.No.5 of 2010 for execution of sale deed by the revision petitioner. The revision petitioner also filed E.P.No.40 of 2010 for recovery of possession stating that on receipt of the notice dated 28.5.2009 issued by the respondents, he informed the respondents about his willingness to execute the sale deed on 1.6.2009 and he also waited in the Sub Registrar's Office along with the witnesses to execute the sale deed on 1.6.2009 and the respondents did not come to the Sub Registrar's Office and therefore the respondents did not act as per the terms of compromise and therefore they are not entitled to get the sale deed executed in their favour and as per the terms of compromise he is entitled to get recovery of possession and therefore the recovery of possession may be ordered in his application. Both E.P.Nos. 5 of 2010 and 40 of 2010 were heard together and the Court below allowed Ex.P.5 of 2010 filed by the respondents and dismissed E.P.No.40 of 2010 filed by the revision petitioner. Aggrieved by the same, these two revisions are filed. 4. It is submitted by Mr. Both E.P.Nos. 5 of 2010 and 40 of 2010 were heard together and the Court below allowed Ex.P.5 of 2010 filed by the respondents and dismissed E.P.No.40 of 2010 filed by the revision petitioner. Aggrieved by the same, these two revisions are filed. 4. It is submitted by Mr. S.Parthasarathy, the learned Senior Counsel for the revision petitioner that as per the terms of compromise, the balance sale consideration of Rs.14,42,000/- (Rupees Fourteen Lakhs Forty Two Thousand only) representing the arrears of rent ought to have been tendered on or before 1.6.2009 and even after informing the respondents about the willingness to execute the sale deed on 1.6.2009 the respondents did not come forward to the Sub Registrar's Office to make the payment and the revision petitioner was also present in the Sub Registrar's Office along with the witnesses on 1.6.2009 and that was also evidenced by Ex.R3 the Certificate issued by the Sub Registrar and therefore the respondents committed default in the payment of sale consideration as per the terms of compromise and therefore they are not entitled to the execution of sale deed in their favour and they are bound to surrender possession to the revision petitioner. 5. The learned Senior Counsel for the revision petitioner further submitted that even assuming that in the notice Ex.P3 dated 28.5.2009 the respondents have given particulars about the purchase of Demand Drafts of Rs.14,00,000/- (Rupees Fourteen lakhs only), they have not given any particulars regarding the arrears of rent for a sum of Rs.42,000/- and as per Clause 4 of the terms of compromise the entire balance sale consideration and the arrears of rent must be paid through Bank Drafts and as per Ex.P3 the Bank Drafts were taken only for Rs.14,00,000/-and admittedly no Bank Draft was taken for Rs.42,000/- representing the arrears of rent and therefore they have not complied with Clause 4 of the terms of compromise and therefore they are not entitled to the execution of sale deed. 6. 6. According to the learned Senior Counsel for the revision petitioner, the terms of compromise are to be strictly complied with and having failed to comply with the terms of compromise, the respondents are not entitled to the relief as per the compromise and they have also not appeared before the Sub Registrar's Office on 1.6.2009 nor they sent any communication to the revision petitioner about their willingness to pay the sale consideration and arrears of rent before the Sub Registrar on 1.6.2009 as per the agreement and therefore contended that the terms of compromise decree was not followed and the respondents committed breach of the terms and they are not entitled to the execution of sale deed. 7. On the other hand, the learned Senior Counsel Mr. M.S.Krishnan for the respondents submitted that the terms of compromise was complied with strictly and also substantially and as evidenced by Ex.P3 particulars in respect of Demand Drafts for a sum of Rs.14,00,000/- (Rupees Fourteen Lakhs only) were given and it was also stated that the rent arrears of Rs.42,000/- would be paid at the time of registration and submitted that even assuming that the Demand Draft was not taken for a sum of Rs.42,000/-, having regard to Clause 5 of the terms of compromise the revision petitioner is bound to refund the advance of Rs.1,00,000/- (Rupees One lakh only) to the respondents after deducting the arrears of rent and damages of Rs.25,000/-and therefore, even assuming that the Demand Draft was not taken for a sum of Rs.42,000/-representing the arrears of rent, considering the Clause 5, the revision petitioner is bound to return Rs.1,00,000/-to the respondents and the rental arrears can be adjusted towards that advance, the respondents have substantially complied with the Decree. The learned Senior Counsel for the respondents further submitted that the Decree has been substantially complied with and even on 1.6.2009 they filed Lodgement Schedule before the Court for the entire amount of Rs.14,42,000/-and also deposited the said amount after getting permission from the Court and considering all these aspects the Court below has allowed E.P.No.5 of 2010 filed by the respondents and dismissed E.P.No.40 of 2010 filed by the revision petitioner. 8. It is seen from the records that the compromise was entered into between the parties before the Mediation and the terms of compromise was arrived at on 20.4.2009. 8. It is seen from the records that the compromise was entered into between the parties before the Mediation and the terms of compromise was arrived at on 20.4.2009. The terms of compromise was arrived at between the parties are extracted above. Though the parties have agreed that the balance sale consideration of Rs.14,00,000/- (Rupees Fourteen Lakhs only) has to be paid on or before 1.6.2009 and according to the revision petitioner, the terms of compromise was not strictly followed by the respondents and the respondents committed breach of the terms by not paying the amount by Demand Drafts on or before 1.6.2009, the Decree was passed by the Court below on the basis of the compromise on 10.9.2009. Therefore, on 10.9.2009 when the Court puts it seal of approval on the memo of compromise the revision petitioner was aware that the terms of compromise was not complied with by the respondents and they have committed breach of terms. Nevertheless, the revision petitioner allowed the decree to be passed on the basis of the compromise dated 20.4.2009. According to me, if the contention of the learned counsel for the revision petitioner that the terms of decree was not complied with by the respondents, the revision petitioner could have insisted on the Court to pass a Decree for recovery of possession as per the terms of compromise and he should not have allowed the Court to pass the decree as per the terms of compromise on 10.9.2009. Therefore, having regard to the fact that the Decree was allowed to be passed on 10.9.2009 on the basis of the terms of compromise, the revision petitioner has acquiesed himself about the alleged breach committed by the respondents and therefore it is not open to the revision petitioner to contend that the respondents have committed breach of the terms of compromise. Therefore, according to me, the contention of the learned counsel for the revision petitioner that the respondents have committed breach of the terms of compromise and therefore they are not entitled to the execution of the decree cannot be accepted. 9. We shall further see whether the respondents have committed breach of the terms of compromise. Therefore, according to me, the contention of the learned counsel for the revision petitioner that the respondents have committed breach of the terms of compromise and therefore they are not entitled to the execution of the decree cannot be accepted. 9. We shall further see whether the respondents have committed breach of the terms of compromise. As per the terms of compromise a sum of Rs.14,00,000/-(Rupees Fourteen lakhs only) and arrears of rent shall be paid on or before 1.6.2009 and on receipt of the payment, the revision petitioner should execute the sale deed and if the respondents failed to pay the said amount then they must vacate and hand over possession to the revision petitioner. Admittedly, on 28.5.2009 the respondents sent a notice informing the revision petitioner about the purchase of Demand Drafts for a sum of Rs.14,00,000/- (Rupees Fourteen Lakhs only) and gave particulars about the number, date and the Bank on which the Demand Drafts were purchased and the amounts for which the Demand Drafts were purchased and also informed the revision petitioner to come and execute the sale deed and receive Rs.42,000/- at the time of execution of the sale deed. It is the case of the revision petitioner that on receipt of the notice Ex.P3, he sent a telegram Ex.P4 informing his willingness to execute the sale deed on 1.6.2009 and according to the respondents they have not received the said telegram and admittedly the telegram Ex.P4 sent by the revision petitioner on 29.5.2009 was delivered on the respondents only on 1.6.2009 as evidenced by Ex.P5. No doubt the revision petitioner waited at the Sub Registrar's Office on 1.6.2009 expecting the respondents to come and pay the sale consideration as evidenced by Ex.R3. As the notice sent by the revision petitioner was not received by the respondents they did not know that the revision petitioner was waiting at the Sub Registrar's Office and was willing to execute the sale deed and therefore they approached the Court and filed the Lodgement Schedule on 1.6.2009 as evidenced by Ex.P7 for a sum of Rs.14,42,000/-. 10. As the notice sent by the revision petitioner was not received by the respondents they did not know that the revision petitioner was waiting at the Sub Registrar's Office and was willing to execute the sale deed and therefore they approached the Court and filed the Lodgement Schedule on 1.6.2009 as evidenced by Ex.P7 for a sum of Rs.14,42,000/-. 10. Therefore, having regard to the conduct of the respondents in sending the notice even on 28.5.2009 giving particulars of the Demand Drafts for a sum of Rs.14,00,000/-and filing the Lodgement Schedule on 1.6.2009 for the entire amount of Rs.14,42,000/-it cannot be contended that the respondents have not complied with the terms of compromise. Even assuming that the respondents have not produced the Demand Draft of Rs.42,000/- and as per Clause 4 of the compromise they are expected to purchase the Demand Draft not only for the sale consideration but also for the arrears of rent, having regard to the Clause 5 of the compromise, it cannot be stated that the failure to purchase the Demand Draft for a sum of Rs.42,000/-can be construed as breach of terms. As per Clause 5 of the compromise, at the time of execution of the sale deed the arrears of rent can be adjusted from the advance amount to be refunded by the revision petitioner and therefore even assuming that the respondents did not purchase the Demand Drafts for a sum of Rs.42,000/-having regard to Clause 5 of the terms of compromise it cannot be stated that the respondents have committed breach of the terms. Therefore, in my view, the respondents have not committed any breach of terms and they have acted as per the terms of compromise and they have also deposited the entire amount of Rs.14,42,000/- as per the Lodgement Schedule filed on 1.6.2009 into Court on 18.6.2009 and therefore they are entitled to the execution of the sale deed and considering all these aspects, the Court below has rightly allowed E.P.No.5 of 2010 filed by the respondents and dismissed E.P.No.40 of 2010 filed by the revision petitioner and I do not find any infirmity in the order of the Court below. 11. In the result, the Civil Revision Petitions are dismissed. No costs. Consequently, the connected Miscellaneous Petition is closed.