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2014 DIGILAW 2904 (MAD)

R. Muthusamy v. A. K. Nagarajan

2014-08-26

T.RAJA

body2014
Judgment 1. The defendants in O.S.No.72 of 2010 on the file of the Sub-Court, Rasipuram, are the appellants, and the respondent was the plaintiff before the trial Court. The plaintiff/respondent herein filed a suit with a following prayer; “i. to direct the defendants to pay the plaintiff a sum of Rs.5,00,000/- received by them with interest at 24% from the date of suit till realisation; ii. to create a charge over the suit property for the payment of the decree amount that may be passed; iii. to grant a permanent injunction restraining the defendants from alienating or encumbering the suit property” The suit was dismissed by judgment and decree dated 18.03.2011, passed in O.S.No.72 of 2010, on the file of the Sub-Court, Rasipuram, and on appeal, the same was reversed by the learned Principal District Judge, Namakkal, in A.S.No.99 of 2011, dated 23.12.2011, by allowing the appeal in part. Aggrieved by the same, the present second appeal has been filed. In this second appeal, the parties are referred according to their litigative status before the trial Court for the purpose of convenience. 2. The case of the plaintiff, as stated in the plaint, is as follows: The defendants entered into a sale agreement dated 15.02.1996 with the plaintiff to sell the suit property for a sale consideration of Rs.10,20,000/- per acre free from encumbrance. On the date of sale agreement, the plaintiff paid a sum of Rs.5,00,000/- to the defendants as advance and the defendants have also acknowledged the receipt of the said amount in the sale agreement. It is further stated that on the date of sale agreement itself, the possession of the suit property was handed over to the plaintiff so as to facilitate the plaintiff to lay roads and to divide the land into house plots. It is further stated that on the date of sale agreement itself, the possession of the suit property was handed over to the plaintiff so as to facilitate the plaintiff to lay roads and to divide the land into house plots. It was further agreed that the plaintiff should pay the balance sale consideration to the defendants within a period of 11 months from the date of sale agreement, with a further condition that if the plaintiff fails to act as per the terms of the sale agreement dated 15.02.1996, the advance amount would be forfeited, and in contra, if the plaintiff is ready to perform his part of the agreement within the agreed time and if the defendants fail to perform their part of the terms of the sale agreement, the plaintiff has a right to take necessary and appropriate legal action against the defendants. However, since the defendants were not ready and willing to perform their part of the sale agreement, the present suit was filed by the plaintiff with a prayer cited supra. 3. It was also the further case of the plaintiff as stated in the plaint that one K.S. Palanisamy filed a suit in O.S.No.77/93 on the file of the District Munsif Court, Rasipuram, against the plaintiff herein, first defendant's father Raja Gounder, first defendant's brother Palanivel Gounder and also against the first defendant and others for the relief of permanent injunction restraining them from interfering with his peaceful possession and enjoyment of the land in S.Nos.77/4 and 77/3. The said K.S. Palanisamy also obtained an order of interim injunction in I.A.No.352/97 in O.S.No.73/97. He has also filed another suit in O.S.No.455/97 before the Sub-Court, Namakkal, for specific performance against the first defendant herein, first defendant's father and brother, which is pending now. However, apprehending that the disposal of the suit pending before the Sub-Court, Namakkal, may take number of years to reach a finality and therefore, it has become impossible for the plaintiff to get the sale deed registered from the defendants within the period of limitation, the plaintiff has filed the present suit for return of the advance amount of Rs.5,00,00/- with interest. 4. 4. A detailed written statement was filed by the first defendant before the trial Court, wherein it is stated that at no point of time, the plaintiff was ready to perform his part of the sale agreement as he has no fund to pay the balance sale consideration as agreed in the sale agreement dated 15.02.1996. It is also further stated that after the execution of sale agreement, the defendants have incurred a loss of Rs.6 lakhs since the plaintiff has demolished various trees and levelled the land including obliterating the Well dug by the defendants with huge investment. 5. After considering the claim of both sides, the trial Court appointed an Advocate Commissioner and on receipt of the report filed by the Advocate Commissioner, the trial Court dismissed the suit filed by the plaintiff holding that the defendants, at no point of time, agreed to make the pathway available. Aggrieved by the same, when appeal was preferred in A.S.No.99/2011, the learned first appellate Court partly decreed the suit for return of advance amount of Rs.5 lakhs, holding that the learned trial Court has committed serious error in overlooking the pendency of the civil suit in O.S.No.311/04 on the file of the Fast Track Court, Namakkal. Aggrieved by the said judgment, the present second appeal has been filed by the defendants/appellants herein. 6. This Court, at the time of admission, framed the following substantial questions of law for consideration; “Whether the lower appellate Court is right in holding that the plaintiff was justified in revoking the contract and seeking the refund of the advance amount?” 7. Learned counsel appearing for the defendants/appellants herein submitted that at the time of executing the sale agreement dated 15.02.1996 to sell the suit property for a sale consideration of Rs.10,20,000/- per acre free from encumbrances, neither the plaintiff nor the defendants had agreed for making pathway from the suit property leading to the highways. Denying the terms and conditions mentioned in the sale agreement dated 15.02.1996, learned trial Court has rightly refused the relief as sought for by the plaintiff for return of advance amount. Moreover, the learned trial Court has given a specific finding that non performance of the sale agreement dated 15.02.1996 was only due to the failure on the part of the plaintiff in not coming forward to execute the sale deed after paying the balance sale consideration to the defendants. Moreover, the learned trial Court has given a specific finding that non performance of the sale agreement dated 15.02.1996 was only due to the failure on the part of the plaintiff in not coming forward to execute the sale deed after paying the balance sale consideration to the defendants. Adding further, learned counsel contended that, after the execution of the above said sale agreement dated 15.02.1996, the plaintiff has not come forward expressing his readiness and willingness to execute the sale deed and on the other hand, the defendants, after waiting for a long time for the plaintiff to execute the sale deed, had issued a notice dated 29.03.1997, marked as Ex.A2, in which, the first defendant rescinded the contract dated 15.02.1996. However, after the expiry of the period mentioned in the sale agreement, he has given a reply on 25.04.1997, marked as Ex.A3, making a new case against the defendants that there was no road access to reach from suit property to the highways. As this was not part of sale agreement, learned first appellate Court travelling beyond the pleadings, ought not to have reversed the judgment and decree of the learned trial Court, he pleaded. 8. In his further submission, learned counsel contended that the plaintiff has completely altered the very nature of the lands and that lands are now rendered unfit for cultivation, since the agricultural lands have already been converted as house plots, therefore, he pleaded, it is not open to the plaintiff to seek a prayer for return of advance amount. With these submissions, he prayed for setting aside the impugned judgment and decree of the learned first appellate Court. 9. But, this Court is unable to accede to the submissions of the learned counsel for the appellants. Originally, the plaintiff and the defendants entered into a sale agreement on 15.02.1996 to sell the suit property of the defendants for a sale consideration of Rs.10,20,000/- and on the date of sale agreement, the plaintiff had also paid a sum of Rs.5 lakhs as advance. It is also not in dispute that the suit property was handed over to the plaintiff on the date of sale agreement itself so as to facilitate him to lay roads and to divide the land into house plots as per the terms of the sale agreement. It is also not in dispute that the suit property was handed over to the plaintiff on the date of sale agreement itself so as to facilitate him to lay roads and to divide the land into house plots as per the terms of the sale agreement. It was further agreed that the plaintiff should pay the balance sale consideration to the defendants within a period of 11 months from the date of sale agreement, and if the plaintiff fails to act as per the terms of the sale agreement, the advance amount would be forfeited and in contra, if the plaintiff is ready and willing to perform his part of the agreement within the agreed time and if the defendants fail to perform their part of the agreement, the plaintiff has the right to take appropriate legal action against the defendants. The said sale agreement dated 15.02.1996 was marked as Ex.A1 before the trial Court. 10. It is also pertinent to note that the first defendant's father Raja Gounder and his brother Palanivel Gounder own lands in S.Nos.77/4 & 77/3 abutting the Trichy Main Road and that the suit property in S.No.77/5 lies on the eastern side of the said lands. It is also to be noted that the first defendant's father Raja Gounder and his brother Palanivel Gounder, along with the first defendant, had entered into a sale agreement on 15.02.1996 with one K.S. Palanisamy, in respect of their lands in S.Nos.77/3 and 77/4. It is also an admitted fact that there is no other access from Trichy Main Road, except through S.Nos.77/3 and 77/4, to reach the suit property, therefore, it was the claim of the defendants that an assurance was given to him to have access to the suit property in S.No.77/5 through the road laid down by K.S. Palanisamy in S.Nos.77/4 and 77/3. Moreover, a mere perusal of sale agreement dated 15.02.1996, marked as Ex.A1, shows that the defendants agreed to sell the suit property free from all encumbrances. 11. While the matter stood above, the above said K.S. Planisamy filed a suit in O.S.No.77/93 on the file of the District Munsif Court, Rasipuram, and obtained injunction against the plaintiff and others. Further, the D.W.1 (first defendant), in his cross-examination, has not disputed the fact that the suit property bearing S.No.77/5 is not having road access. 11. While the matter stood above, the above said K.S. Planisamy filed a suit in O.S.No.77/93 on the file of the District Munsif Court, Rasipuram, and obtained injunction against the plaintiff and others. Further, the D.W.1 (first defendant), in his cross-examination, has not disputed the fact that the suit property bearing S.No.77/5 is not having road access. Therefore, since the suit property is not having road access and that one K.S. Palanisamy, by way of filing a suit, got interim injunction, the contract became frustrated and not enforceable. It is well settled law that if and when there is frustration, the dissolution of the contract occurs automatically. Therefore, the learned first appellate Court rightly, by taking note of the serious mistake committed by the learned trial Court, which has ignored the interim injunction obtained by one K.S. Palanisamy, by way of filing a suit in O.S.No.77/93 against the first defendant, his father and his brother, reversed the judgment and decree passed by the learned trial Court. 12. That apart, the learned first appellate Court, after perusing the report submitted by the Advocate Commissioner, marked as Exs.C1 and C2, has come to the conclusion that the suit property in S.No.77/5 is not having the road access and the road access is only through S.Nos.77/3 and 77/4, which admittedly belonged to first defendant's father Raja Gounder and his brother Palanivel Gounder. Moreover, either in the written statement or in the additional written statement, the defendants have not stated that the suit property bearing S.No.77/5 is having road access. When the defendants have not disputed the fact that the suit property in S.No.77/5 is not having road access, the prayer of the plaintiff to return the advance amount of Rs.5 lakhs on the ground of impossibility of performance of the contract since the contract became frustrated in view of interim injunction granted by the civil Court in O.S.No.77/93 as stated above, is absolutely in order. 13. 13. Moreover, one of the arguments of the learned counsel for the appellants that his clients have suffered a huge loss at the hands of the plaintiff, therefore, the defendants should be allowed to compensate the advance amount, which, in my view, does not carry any merit, for the reason that the suit was filed for return of money on the ground that the contract became frustrated in view of the pendency of suit filed by one K.S. Palanisamy in O.S.No.77/93, therefore, had they really been aggrieved that the damage was caused in the suit property by the plaintiff by obliterating the Well dug by the defendants, they should have moved a counter claim under Order VIII Rule 7 of CPC, but, since they have not done so, this Court is not inclined to answer the substantial question of law in favour of the appellants. 14. Thus, for the reasons stated above, the Second Appeal is dismissed as devoid of any merit. No Costs. Consequently, connected M.P.No.1 of 2012 is closed.