Research › Search › Judgment

Madras High Court · body

2014 DIGILAW 3052 (MAD)

Navab John v. S. Aariyakannan

2014-09-03

A.SELVAM

body2014
Judgment : 1. This second appeal has been directed against the concurrent Judgments and decrees passed in Original Suit No.22 of 2006 by the Sub Court, Devakottai and in Appeal Suit No.29 of 2008 by the District Court, Sivagangai. 2. The appellant herein as plaintiff has instituted Original Suit No.22 of 2006 on the file of the trial Court praying to pass a decree of specific performance on the strength of the alleged sale agreement dated 28.11.2005, wherein the present respondents have been shown as defendants. 3. In the plaint it is averred that the suit property is the absolute property of the first defendant and he agreed to sell the same for a sum of Rs.1,50,000/-and to that extent the suit sale agreement has come into existence on 28.11.2005. The plaintiff has also agreed to pay a sum of Rs.2,000/- as broker commission and on the date of execution of suit sale agreement, the plaintiff has paid an advance amount of Rs.52,000/-. Further it is agreed that the plaintiff should pay the balance of sale consideration of Rs.1,00,000/-on or before 22.12.2005 and despite of best efforts taken by the plaintiff, the first defendant has not chosen to execute a sale deed and instead he sold the suit property in favour of the second defendant by virtue of sale deed dated 23.12.2005 and subsequently a legal notice has been issued to both the defendants. The first defendant has given a false reply notice. Under the said circumstances, the present suit has been instituted for the relief sought for in the plaint. 4. In the written statement filed on the side of the second defendant, it is averred that the suit sale agreement is nothing, but false. The second defendant has purchased the suit property by virtue of sale deed dated 23.12.2005. It is false to aver that the second defendant has purchased the suit property after knowing the existence of suit sale agreement dated 28.11.2005. It is also false to aver that the plaintiff has advanced an amount of Rs.52,000/-to the first defendant. There is no merit in the suit and the same deserves to be dismissed. 5. On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has dismissed the suit. There is no merit in the suit and the same deserves to be dismissed. 5. On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after analysing both the oral and documentary evidence has dismissed the suit. Against the Judgment and decree passed by the trial Court, the plaintiff as appellant has preferred Appeal Suit No.29 of 2008 on the file of the first appellate Court. 6. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has dismissed the appeal and thereby confirmed the Judgment and decree passed by the trial Court. Against the concurrent Judgments and decrees passed by the Courts below, the present second appeal has been preferred at the instance of the plaintiff as appellant. 7. At the time of admitting the present second appeal, the following substantial questions of law have been settled for consideration: a) Whether the D2 is the bonafide purchaser for value without notice? b) Are the Courts below correct and justified in granting a decree for specific performance under Section 20 and Section 16 of the Specific Relief Act? 8. The sum and substance of the case of the plaintiff is that the suit property is the absolute property of the first defendant and he agreed to sell the same for a sum of Rs.1,50,000/-to the plaintiff and to that extent the suit sale agreement has come into existence on 28.11.2005 and the plaintiff has also agreed to pay a sum of Rs.2,000/-as broker commission and accordingly on the date of execution of suit sale agreement, the plaintiff has paid advance amount of Rs.52,000/-and further it is agreed that on or before 22.12.2005, the plaintiff should pay balance of sale consideration to the first defendant and the first defendant should execute a sale deed in his favour and since the first defendant has sold the suit property in favour of the second defendant and since the second defendant has purchased the suit property even after knowing the existence of suit sale agreement dated 28.11.2005, the present suit has been instituted for the relief sought for in the plaint. 9. 9. The defence put forth on the side of the second defendant is that the suit sale agreement is nothing, but false and no such agreement has come into existence and the second defendant is a bona fide purchaser for value and he purchased the suit property by virtue of sale deed dated 23.12.2005 and therefore the present suit deserves to be dismissed. 10. The Courts below have concurrently rejected the relief of specific performance. 11. The learned counsel appearing for the appellant/plaintiff has strenuously contended that the suit sale agreement has been marked as Ex.A.1 and the sale deed alleged to have been executed by the first defendant in favour of the second defendant has been marked as Ex.B.1 and after knowing execution of Ex.B.1, the plaintiff has chosen to issue legal notice to both the defendants and the first defendant has given a reply notice whereby he candidly admitted about the execution of Ex.A.1 and also receipt of advance amount and under the said circumstances the Court can easily come to a conclusion that Ex.A.1 has come into existence and the trial Court has given a specific finding to the effect that Ex.B.1 is not a valid document, however it has erroneously dismissed the suit. But the first appellate Court has given a specific finding to the effect that the plaintiff has failed to establish that the second defendant is not a bona fide purchaser for value and ultimately dismissed the appeal and therefore the views taken by the Courts below are totally erroneous and the Judgments and decrees passed by the Courts below are liable to be set aside. 12. The learned counsel appearing for the second respondent/second defendant has contended that Ex.A.1 is not at all a sale agreement, wherein no description of property has been given and since Ex.A.1 is not at all a sale agreement, a decree of specific performance cannot be granted on the basis of Ex.A.1 and the Courts below have rightly non-suited the plaintiff and therefore the concurrent Judgments and decrees passed by the Courts below are not liable to be interfered with. 13. On the basis of divergent submissions made on either side, the Court has to analyse as to whether Ex.A.1 can be construed as a sale agreement. 13. On the basis of divergent submissions made on either side, the Court has to analyse as to whether Ex.A.1 can be construed as a sale agreement. In fact this Court has perused the recitals found in Ex.A.1, wherein addresses of both the plaintiff and first defendant are given and no description of property has been mentioned. Since no description of property has been mentioned in Ex.A.1, the Court cannot come to a conclusion that Ex.A.1 is a sale agreement. 14. The entire argument put forth on the side of the appellant/plaintiff is based upon reply notice alleged to have been given by the first defendant and the same has been marked as Ex.A.5. Of course it is true that in Ex.A.5, it has been admitted to the effect that in between the first defendant and plaintiff, an agreement of sale has come into existence and the same is not at all sufficient for coming to a conclusion that the alleged agreement is related to suit property, since the suit property does not find place in Ex.A.1. The Courts below without considering the nature of transaction alleged to have been entered into in between the plaintiff and first defendant as per Ex.A.1, have erroneously found that Ex.A.1 is a valid sale agreement. Therefore the views expressed by the Courts below with regard to Ex.A.1 are hereby set aside. 15. The present suit has been instituted for getting discretionary relief of specific performance. It has already been pointed out that Ex.A.1 is not at all a sale agreement, since the same does not contain description of property agreed to sell in favour of the plaintiff. Under the said circumstances, discretionary relief of specific performance cannot be granted in favour of the plaintiff and therefore the substantial questions of law settled in the present second appeal are not having substance at all and altogether the present second appeal deserves to be dismissed. 16. In fine, this second appeal is dismissed without costs and the concurrent Judgments and decrees passed by the Courts below with regard to dismissal of suit are confirmed. Consequently, connected Miscellaneous Petition is dismissed. 17. The learned counsel appearing for the appellant/plaintiff has represented that in the trial Court, the appellant/plaintiff has deposited a sum of Rs.1,00,000/-and he is permitted to withdraw the same with accrued interest by way of filing necessary petition.