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2016 DIGILAW 2909 (MAD)

K. Asokan v. Ambi

2016-08-18

R.MALA

body2016
JUDGMENT : The plaintiff, who lost the legal battle before the Court below, has come forward with this Appeal challenging the Judgment and Decree dated 05.03.2010 passed in O.S. No. 112 of 2004, on the file of the Principal District Court, Pudukottai. 2. Heard the learned counsel for the appellants and the learned Counsel for the respondents and perused the materials available on record. 3. The appellants as plaintiffs filed a suit in O.S. No. 112 of 2004 stating that the properties are belonging to the second defendant/second respondent and the first defendant/first respondent entered into a sale agreement with the second defendant/second respondent. On 09.12.2000, a sale agreement between the first defendant/first respondent and the plaintiffs had taken place and one kuzhi is estimated at Rs. 19,250/- and a sum of Rs. 3,00,000/- has been paid as advance. In that, it was specifically mentioned that whenever the properties have been plotted out and whenever they sold the properties, the sale proceeds has to be given to the first defendant/first respondent and in turn, he will bring the second defendant and register the sale deed. In that also, one of the conditions is that the first defendant/first respondent has to settle all the tenants problem in the properties. Further it was stated that the properties have to be measured and on that basis, the sale consideration has to be fixed. The first defendant/first respondent has not complied with the conditions. When it was questioned, he has immediately given notice. The first defendant/first respondent received a sum of Rs. 7,50,000/- on several dates. Since he has not performed his part of contract, the appellants/plaintiffs are entitled to recover the amount with interest at the rate of 18% p.a. Even though, the first defendant/first respondent has issued notice, that has been properly replied. For their reply, a rejoinder has also been given. Hence, the plaintiffs are constrained to file a suit for recovery of all the amount paid as advance with interest. 4. Resisting the same, the first defendant/first respondent filed a written statement by stating that the plaintiffs are never willing and ready to perform their part of contract. He has complied with the condition mentioned in the sale agreement. Hence, the plaintiffs are constrained to file a suit for recovery of all the amount paid as advance with interest. 4. Resisting the same, the first defendant/first respondent filed a written statement by stating that the plaintiffs are never willing and ready to perform their part of contract. He has complied with the condition mentioned in the sale agreement. The properties have also been measured and the amount has been received by the first respondent/first defendant and that has been paid to the tenants and possession has been taken over from them. Since the plaintiffs are not ready and willing to perform their part of contract, they are not entitled to recover the money and the advance amount has been forfeited. Hence, he prayed for dismissal of the suit. 5. The second defendant has also made the same defence as raised by the first defendant/ first respondent. 6. The trial court, after framing necessary issues and considering the oral evidences viz., P.W.1 and P.W.2 and D.W.1 and D.W.2 and the documentary evidences viz., Exs.A.1 to A.9 and Exs.B.1 to B.15, dismissed the suit by stating that the plaintiffs are not ready and willing to perform their part of contract and hence, they are not entitled to recover the advance amount with interest. Against which, the present Appeal has been filed by the appellants/plaintiffs. 7. The learned Counsel appearing for the appellants would submit that there is no time limit fixed for performance of contract. There was a condition to be complied with by the first defendant/first respondent and that condition has not been fulfilled by the first defendant/first respondent. There is no clause in the sale agreement for forfeiture of advance amount or penalty. Since there is a dispute regarding the extent of land and the subject matter of Ex.A.1 was questioned, the performance of contract does not arise. Further the trial Court has not considered Ex.A.1 in a proper and perspective manner. One of the conditions is that the appellants will make payment after laying out the plots and selling the same. It is further submitted that the documents filed by the defendants viz., Exs.B.4 and B.8 are not related to the suit properties and that factum was not considered by the trial Court. The documents Exs.B.2 and B.3 were concocted, after issuance of notice. That factum was also not considered by the trial Court. It is further submitted that the documents filed by the defendants viz., Exs.B.4 and B.8 are not related to the suit properties and that factum was not considered by the trial Court. The documents Exs.B.2 and B.3 were concocted, after issuance of notice. That factum was also not considered by the trial Court. Hence, he prayed for setting the impugned judgment passed by the trial Court. 8. Per contra, the learned Counsel appearing for the respondents would submit that the appellants are never ready and willing to perform their part of contract. As per Exs.B.2 and B.3, the tenants problem has been settled and the possession has been taken over and that factum was also known to the appellants. She would further submit that the properties have been already measured and the plaintiffs are always not ready and willing to perform their part of contract and that has been evidenced by the notice, reply notice and rejoinder notice viz., Exs.A.2 to A.5. The trial Court has considered all these facts in a proper and perspective manner and came to the correct conclusion. Hence, she prayed for dismissal of the appeal. 9. Considering the rival submissions made by the learned Counsel appearing for either side and on a perusal of typed set of papers, the following points for determination have been framed for disposal of this Appeal. (1) Whether the first defendant/first respondent/first respondent herein has fulfilled the condition made in Ex.A.1 - sale agreement dated 09.12.2000? (2) Whether the time is essence of contract? (3) Whether there is a clause of forfeiture of advance amount mentioned in Ex.A.1? (4) Whether the trial Court is right in held that the appellants are not ready and willing to perform their part of contract? (5) Whether the appellants are entitled to recover the advance amount with interest? (6) Whether the judgment and decree of the trial Court is sustainable? Point No.1: 10. It is an admitted fact that the properties are belonging to the second respondent. The second respondent and the first defendant/first respondent had entered into a sale agreement and on that basis, the first defendant/first respondent approached the plaintiffs/appellants and entered into a sale agreement dated 09.12.2000. He received a sum of Rs. 3,00,000/- as advance, on the date of sale agreement and on several dates, he received a sum of Rs. 4,50,000/- viz., on 31.12.2000, a sum of Rs. He received a sum of Rs. 3,00,000/- as advance, on the date of sale agreement and on several dates, he received a sum of Rs. 4,50,000/- viz., on 31.12.2000, a sum of Rs. 2,00,000/-; on 27.08.2001, a sum of Rs. 1,50,000/- and on 15.12.2001, a sum of Rs. 1,00,000/-; totally, a sum of Rs. 7,50,000/- has been received by the first defendant/first respondent. The receipt of the amount has also been admitted. The only point has to be decided is as to whether the conditions mentioned in the sale agreement have been complied with by the first defendant/first respondent or not. So it is appropriate to consider Ex.A.1. 11. In Ex.A.1, no sale consideration has been fixed. In that, for one Kuzhi, sale price has been fixed at Rs. 19,250/-. Further in the sale agreement itself, it was stated that the properties have to be measured in the presence of both parties and on that basis, the extent of the properties has to be fixed and the sale proceeds has to be fixed. It is appropriate to incorporate the same, which is as follows: xxxx The another condition is that the properties are in possession of the tenants and so, the first defendant/first respondent at his response, must remove the tenants and hand over the possession. It is appropriate to incorporate the same, which is as follows: xxxxx Now this Court has to decide as to whether these two conditions have been complied with by the first defendant/first respondent herein. In respect of evicting the tenants is concerned, the respondents herein have filed Exs.B.2 and B.3. In Ex.A.4 dated 12.06.2003, in paragraph No. 2, it was stated that a sum of Rs. 1,80,000/- has been paid to the tenants and obtained a release deed dated 03.10.2000. While perusing Exs.B.2 and B.3 along with Ex.A.4, that Ex.B.2 is dated 24.12.2000 and Ex.B.3 is dated 02.02.2001. 12. The learned Counsel for the appellants would submit that those documents viz., Exs.B.2 and B.3 are concocted for the purpose of case and the documents were fabricated and the stamp papers were purchased in the name of third parties. Exs.B.2 and B.3 are contrary to Ex.A.4. In Ex.A.1, it was stated that on 27.08.2001, Rs. 1,50,000/- has been received to settle the matter for the tenants. Exs.B.2 and B.3 are contrary to Ex.A.4. In Ex.A.1, it was stated that on 27.08.2001, Rs. 1,50,000/- has been received to settle the matter for the tenants. So it is appropriate to incorporate the same which is as follows: xxxx That has been accepted by D.W.1 in his cross-examination. So, considering Ex.A.4 and the endorsement made by the first defendant/first respondent in Ex.A.1 would falsify Exs.B.2 and B.3 and that have been concocted for the purpose of case. So, no reliance can be placed on Exs.B.2 and B.3. One more circumstance is that in the notice Ex.A.4 itself it was stated that, the tenants problem has been settled on 03.10.2000, but the sale agreement itself is only on 09.12.2000. So, Ex.A.4 is also not contending true particulars. Hence, the averments made in Ex.A.4 also are not acceptable. 13. Once, Exs.B.2 and B.3 show that there is no evidence to show that the first defendant/first respondent herein fulfilled the conditions mentioned the sale agreement that he will evict the tenants who are in possession of the properties mentioned in the sale agreement. Furthermore, in Ex.A.4, he has stated that the tenants problem has been settled in presence of Palaniappan Ambalakarar and Muthiah Chettiar. So considering all these documents viz., Exs.A.1, A.4, B.2 and B.3, I am of the view that Exs.B.2 and B.3 are concocted one for the purpose of the case and the first defendant/first respondent has not proved that he has evicted the tenants from the properties mentioned in the sale agreement. That factum was not considered by the trial Court. 14. Now this Court has to decide whether another condition that the properties have been measured by the first respondent in the presence of both parties on the basis of sale agreement? It is appropriate to incorporate the related portion of sale agreement, which is as follows: xxxx There is no document to show that the properties have been measured. The respondents have not filed any document to show that the properties have been surveyed, that too in the presence of the appellants. If the properties have been surveyed, the owner of the properties ought to have paid fees to the Revenue Department and the Survey Department. Then only, they depute the Surveyor with Revenue Officials to measure the properties. The respondents have not filed any document to show that the properties have been surveyed, that too in the presence of the appellants. If the properties have been surveyed, the owner of the properties ought to have paid fees to the Revenue Department and the Survey Department. Then only, they depute the Surveyor with Revenue Officials to measure the properties. If really, the respondents measured the properties with the help of the survey department, they may very well produce the receipt for payment of the amount before the Court and also the report. In such circumstances it is pertinent to note that D.W.2, in his cross-examination, even he had gone to the extent of saying that Jegadeesan, one of the agreement holder was there, but admittedly his signature was not obtained. In that he has ultimately stated that a sum of Rs. 1,80,000/- was paid by Jegadeesan to Deivanai Ammal. But a perusal of Ex.A.1, payment of Rs. 1,80,000/- on 24.12.2000 has not been mentioned. It is admitted by both parties that the first defendant/first respondent herein has received a sum of Rs. 1,50,000/- on 27.08.2001, to discharge the tenants problem. In such circumstances, I am of the view that Ex.B.2 has been concocted only for the purpose of the case. The evidence of D.W.2 is not trustworthy. While perusing the evidence of D.W.1 in cross, he has stated that the plaintiffs have paid that amount directly to him and that he made an endorsement in the agreement. In such circumstances, I am of the view that the first defendant/first respondent herein has not proved that the obligation of the first defendant/first respondent to settle the tenants problem is fulfilled by him. 15. Considering the cross-examination of D.W.1, I am of the view that the first defendant/first respondent has not proved that the properties have been measured. Hence, the second obligation for measuring the properties has not been done. So, as discussed above, the first defendant/first respondent has not fulfilled the condition mentioned in Ex.A.1. That factum was not considered by the trial Court. Hence, the answer is given against the respondents. The point No.1 is answered accordingly. Point No. 2: 16. In the notice given by the first defendant/first respondent, it was stated that 6 months time has been fixed for performance of contract. But admittedly, on perusal of Ex.A.1, no time has been fixed for performance of contract. Hence, the answer is given against the respondents. The point No.1 is answered accordingly. Point No. 2: 16. In the notice given by the first defendant/first respondent, it was stated that 6 months time has been fixed for performance of contract. But admittedly, on perusal of Ex.A.1, no time has been fixed for performance of contract. Per contra, in that it was stated that the balance amount to be paid after forming lay out and at the time of selling the plots, the sale proceeds to be given to the first defendant/first respondent. It is appropriate to incorporate the relevant portion, which is as follows: xxxx So, once the properties have been handed over to the appellants, after taken possession from the tenants, then only the appellants have to form the lay out and whenever they sold the plots, they had to pay the sale proceeds to the first defendant/first respondent. But admittedly no lay out has been formed. It is pertinent to note that at the time of trial, some documents were marked by the respondents, viz., Exs.B.4 to B.7, which was sold by the appellants' mother, those properties are not the properties mentioned in the sale agreement. So the averment that the plots have been sold, does merit acceptance. It shows that the first defendant/first respondent, who has received the amount viz., Rs. 7,50,000/-, without hand over the possession to the appellants, issued notice under Ex.A.2. In the evidence of D.W.1, he stated as follows: xxxx 17. But admittedly, Exs.B.4 to B.7 are not related to the suit properties. In such circumstances, the evidence of D.W.1 is not true, genuine, not trustworthy and it is not reliable. Since there is no time limit has been fixed, the time is not essence of the contract. The Honourable Apex Court has time and again held that the suit for specific performance for immovable properties, time is not essence of contract and if time has been fixed for performance of the contract, the intention of the party is mandatory to be decided as to whether the time is essence of the contract. But here the time has not been fixed for performing the contract. So, I am of the considered view that the time is not essence of the contract. The Point No. 2 is answered accordingly. Point No. 3: 18. But here the time has not been fixed for performing the contract. So, I am of the considered view that the time is not essence of the contract. The Point No. 2 is answered accordingly. Point No. 3: 18. Once there is no time fixed for performing the part of contract, there is no forfeiture of advance amount. Furthermore, there is neither implied nor express clause in Ex.A.1 in respect of forfeiture of advance amount, if the agreement holders are not performed their part of contract. It is pertinent to note that in first, while the first defendant/first respondent issued notice in Ex.A.2, in that he has stated as “you have to pay the balance sale consideration amount and get the documents to be registered, otherwise, the advance amount has been forfeited”. It has been replied suitably as per Ex.A.3. In that it was specifically stated that within a week, the first defendant/first respondent has to measure the properties and hand over the same and fix the extent and also settle the tenants problem and obtain a release deed from them and hand over the same to the appellants. But instead of doing so, the first defendant/first respondent has given rejoinder under Ex.A.4. In that he has stated that the tenants problem has been solved even on 03.10.2000, before the sale agreement came into existence. In that he would further submit that the properties have been already measured. He would also submit that he is ready to measure the properties. Then reply to rejoinder has been filed and the suit has been filed for recover of amount. In such circumstances, I am of the view that the obligation has not been fulfilled. In view of the answer given to point No. 2 that there is no time limit has been fixed for performance of contract, the forfeiture clause has not been given. Even though in Ex.A.1 forfeiture has been mentioned, but reply has been given. In such circumstances, I am of the view that the advance amount has not been forfeited. The Point No. 3 is answered accordingly. Point Nos. 4, 5 and 6: 19. The trial Court has held that since the appellants are not ready and willing to perform their part of contract, they are not entitled to recover the advance mount. In such circumstances, I am of the view that the advance amount has not been forfeited. The Point No. 3 is answered accordingly. Point Nos. 4, 5 and 6: 19. The trial Court has held that since the appellants are not ready and willing to perform their part of contract, they are not entitled to recover the advance mount. But this Court has already stated in the earlier paragraphs that (a) the first defendant/first respondent herein has not fulfilled the conditions mentioned in Ex.A.1. ; (b) the documents Exs.B.2 and B.3 are concocted for the purpose of case ; (c) there is no time limit fixed for performing the part of contract; and (d) there is no forfeiture of advance in Ex.A.1. As soon as the first defendant/first respondent/first respondent issued notice, reply has also been given and the suit has been filed. In Ex.A.3, the appellants sought for documents and also measure the properties. Furthermore, one of the conditions is that the balance amount has to be paid, whenever the plot has been sold. When considering all these aspects, the trial Court has committed an error by stating that the appellants are not ready and willing to perform their part of contract. It is a well settled dictum of the Honourable Apex Court that the agreement holder need not jingle the coins to show that he is always ready and willing to perform his part of contract. Those facts were not considered by the trial Court. Hence, I am of the view that the finding of the trial Court that the appellants are not ready and willing to perform their part of contract is erroneous and unsustainable. Since the first defendant/first respondent herein has not performed his part of contract and to fulfil the conditions imposed in Ex.A.1 and so far he is not able to give the correct extent of the properties, the appellants are entitled to recover the advance amount. 20. Now this Court has to consider as to whether the claim of interest is correct. Since it is in respect of business purpose, I am of the view that the appellants are entitled to get interest at the rate of 9% p.a. from the date of payment. Accordingly, the point Nos. 4, 5 and 6 are answered accordingly. 21. 20. Now this Court has to consider as to whether the claim of interest is correct. Since it is in respect of business purpose, I am of the view that the appellants are entitled to get interest at the rate of 9% p.a. from the date of payment. Accordingly, the point Nos. 4, 5 and 6 are answered accordingly. 21. In view of the answer given to all the points, the judgment and decree passed by the trial Court is erroneous and it is unsustainable. Hence, it is hereby set aside. The appellants/plaintiffs are entitled to recover the advance amount of Rs. 7,50,000/- with interest at the rate of 9% p.a. from the date of payment till the date of realisation. 22. In the result, the Appeal is allowed and the judgment and decree dated 08.12.2000 passed in O.S. No. 112 of 2004, on the file of the Principal District Court, Pudukkottai is hereby set aside and the suit is decreed for a sum of Rs. 7,50,000/- with interest at the rate of 9% p.a. from the date of payment till the date of realisation, along with costs there on. Consequently, the connected Miscellaneous Petitions are also closed.