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2017 DIGILAW 1039 (MAD)

R. Vijayalakshmi v. K. C. Sathiskumar

2017-04-12

C.V.KARTHIKEYAN

body2017
JUDGMENT : This appeal had been filed against the judgement and decree made in OS.No.106 of 2007, by the learned Additional District Judge, Fast Track Court No.II, Madurai, dated 17.12.2009. 2. The first defendant in O.S.No.106 of 2007 on the file of Fast Track Court No.II, Madurai is the appellant herein. The first defendant is aggrieved by the judgment and decree dated 17.12.2009. The first respondent herein was the plaintiff and the respondents 2 and 3 herein were the defendants 2 and 3 in O.S.No.106 of 2007. 3. The plaintiff had filed the said suit, seeking specific performance of the agreement of sale, dated 17.03.2005 entered between the plaintiff and the first defendant, on receipt of balance sale consideration of Rs.4,10,000/- (Rupees Four Lakhs and Ten Thousand only) and for a direction to register a sale deed, failing which the Court shall register the sale deed at the cost of the plaintiff and put the plaintiff in possession of the suit property and for permanent injunction and for costs of the Suit. 4. In the plaint, it had been stated that the first defendant / appellant had entered into an agreement of sale, agreeing to sell the schedule property for a consideration of Rs.30,500/- per cent and had paid an advance of Rs.2,00,000/-. It had been stated that the sale deed will be executed after measuring the property on receipt of the balance sale consideration. The agreement of sale was entered on 17.03.2005. The husband of the first defendant/appellant had written the sale agreement and also attested the same. It was written on a white paper and two rupee one, revenue stamps were affixed. The plaintiff/first respondent had insisted several times to measure the suit property. The plaintiff/first respondent was always ready and willing to perform his part of the sale agreement. However, the first defendant/appellant had executed a sale deed dated 16.05.2007 in favour of the defendants 2 and 3 / respondents 2 and 3. Consequently, a notice dated 06.07.2007 was issued. The first defendant/appellant denied the agreement of sale. Claiming that the first defendant/appellant should be directed to specifically perform the agreement of sale dated 17.03.2005, the suit has been filed, seeking the reliefs as mentioned earlier. 5. In the written statement filed by the first defendant/appellant, the agreement of sale was specifically denied. Consequently, a notice dated 06.07.2007 was issued. The first defendant/appellant denied the agreement of sale. Claiming that the first defendant/appellant should be directed to specifically perform the agreement of sale dated 17.03.2005, the suit has been filed, seeking the reliefs as mentioned earlier. 5. In the written statement filed by the first defendant/appellant, the agreement of sale was specifically denied. It was also denied that the sale deed dated 16.7.2007 between the plaintiff and defendants 2 and 3 was a sham and illegal. It had been stated that she had conveyed the property by a registered sale deed dated 16.07.2007 in favour of the defendants 2 and 3 and that they are in possession. It had been stated that the agreement of sale deed dated 17.03.2005 is not at all an agreement and has no legal effect. It is not an admissible document. It had been stated that the plaintiff/ first respondent is a broker and he had approached the husband of the first defendant/appellant, namely, Ramamoorthy and had paid the advance only as a speculative purchaser. It had been stated that the suit should be dismissed. 6. In the written statement filed on behalf of the second defendant/second respondent and adopted by the third defendant/ third respondent, it had been claimed that they are bona fide purchasers and are in possession of the suit property. It had been further stated that the agreement of sale dated 17.03.2005 is not admissible in law. They also claimed that the suit should be dismissed. 7. The parties went to trial on the basis of their respective rival pleadings. The learned Additional District Judge, Madurai had framed the following issues for consideration, namely, 1. Whether the first defendant had entered into a sale agreement with the plaintiff and in this regard only the document dated 17.03.2005 executed? 2. Whether the plaintiff was ready and willing to perform his part of contract? 3. Whether the plaintiff is entitled to get Permanent Injunction? 4. To what relief, the plaintiff is entitled? 8. The learned Trial Judge had also framed the following additional issues :- 1. Whether the sale deed executed in favour of the second and third defendant is sham and nominal and no actual sale was effected upon? 2. Whether the second and third defendant are the bona fide purchasers for value and they have been in possession and enjoyment of the suit property? Whether the sale deed executed in favour of the second and third defendant is sham and nominal and no actual sale was effected upon? 2. Whether the second and third defendant are the bona fide purchasers for value and they have been in possession and enjoyment of the suit property? 9. During trial, the plaintiff who is the first respondent herein had examined himself as P.W.1. He also examined two other witnesses namely, Arumugham and Kasi Rajan as P.W.2 and P.W.3. He also marked Twelve documents as Ex.A.1 to Ex.A.12. Ex.A.1 is the land agreement of sale; Ex.A.2 is the copy of sale deed dated 27.02.2002; Ex.A.3 is the copy of advocate notice dated 06.07.2007; Ex.A.4 is the reply notice by the first defendant dated 06.07.2007; Ex.A.6 is the reply notice by the defendants 2 and 3; Ex.A.5, Ex.A.7 and Ex.A.10 are certified copies of sale deed in favour of the defendants 2 and 3; Ex.A.8, Ex.A.9, Ex.A.11 and Ex.A.12 are certified copies of sale deed in favour of other third parties. On behalf of the defendants, the husband of the first defendant Ramamoorthy, examined himself as DW1 and the second defendant examined himself as D.W.2 and also marked one document as Ex.B.1. Ex.B.1 is the Xerox copy of agreement of sale. 10. On considering all the oral and documentary evidence, the learned Additional District Judge held that Ex.A.1 / Ex.B.1 is a legally enforceable agreement of sale and consequently, granted the relief of specific performance and further found that the second and third defendants/second and third respondents are not the bona fide purchasers. The suit was consequently decreed as prayed for with costs. Challenging the said judgment the first defendant has filed the present appeal. 11. The main issue to be determined in this appeal is as to whether Ex.A.1/Ex.B.1 is legally enforceable agreement of sale? 12. Ex.A.1 is as follows : xxx (1) xxxxx (2) P. Arumugham, S/o.Poochi, 5/250, Ponamppillai Thoppu, Anuppanadi, Madurai - 9. Ex.B.1 is the xerox copy of the same, but the only difference being that the signature of the first respondent herein is not found below the revenue stamp. 13. 12. Ex.A.1 is as follows : xxx (1) xxxxx (2) P. Arumugham, S/o.Poochi, 5/250, Ponamppillai Thoppu, Anuppanadi, Madurai - 9. Ex.B.1 is the xerox copy of the same, but the only difference being that the signature of the first respondent herein is not found below the revenue stamp. 13. A careful perusal of Ex.A.1 reveals that the appellant had stated that the land in her name in patta No.368, Survey No.48/6B is agreed to be sold at the rate of Rs.30,500/- per cent and towards the same, an advance of Rs.2,00,000/- had been received. It was executed on a white paper. There are two rupee one revenue stamps. The appellant was said to have signed over the stamps. It had been witnessed by two persons namely, the first defendant's husband Ramamoorthy who was examined as D.W.1 and P.Arumugan who was examined as P.W.2. The document was given the heading as “Land Sale Agreement”. However, the wordings that the said document had been executed towards purchase and sale of land had not been mentioned. In fact, the area of the property to be sold has not been mentioned. Boundary of the property to be sold has also not been mentioned. It was also not been mentioned that K.C. Sathishkumar, who was the plaintiff in the Trial Court and the first respondent herein, was the prospective purchaser. His signature is found in different ink in Ex.A.1 and not at all found in Ex.B.1. The document does not have any schedule appended to the said document. The time for execution of sale deed has not been mentioned. The facts mentioned in the plaint that the property has not been measured only after payment of balance sale consideration has to be mentioned. Infact, since the total area of the property which is to be conveyed is not given, the total sale consideration is also not known till this date to the Court. The document is not at all admissible, since it is both inadequately stamped and unregistered. 14. While marking the documents, the Trial Court appears to have collected a sum of Rs.220/- as penalty. It is not known on what basis the said stamp duty was collected, since the total sale consideration is not given. The document is not at all admissible, since it is both inadequately stamped and unregistered. 14. While marking the documents, the Trial Court appears to have collected a sum of Rs.220/- as penalty. It is not known on what basis the said stamp duty was collected, since the total sale consideration is not given. If the stamp duty penalty is collected on the basis of advance of Rs.2,00,000/-, then this is only a mere receipt for money without any charge over any property. When there is ambiguity in the property to be conveyed, particularly with reference to the area and with reference to the boundaries and with respect to the total sale consideration, enforcing specific performance is impossible. 15. The averment in the plaint that the total value of property is about Rs.6,00,000/- has been mentioned by the first respondent / plaintiff without any basis or without any relevance to Ex.A.1/Ex.B.1. In an agreement of sale with respect to an immovable property, when there is no proper description or clear and correct description of the property to be conveyed or to be purchased, a Court cannot enforce the said agreement. At the most, the Court can only grant a decree for the return of advance amount paid or received. In this case, it has further transpired that the property had actually been sold on 16.05.2007, even much earlier to the suit notice dated 06.07.2007. The said sale deed executed in favour of the second and third respondents dated 16.05.2007 had been marked as Ex.A.5. However, there is no prayer for declaration that the said sale deed is null and void. On the other hand, there is a relief sought seeking permanent injunction, restraining the defendants from alienating the suit property. There is also no prayer to cancel the said sale deed. On the date of the suit, which was presented on 18.07.2007, there was no property to be sold by the appellant to the first respondent. The appellant had already sold the property to the second and third respondents. The entire frame of the suit suffers from a legal defect, which can never rectified at this point of time. The learned Trial Judge overlooked all the legal aspects and extracted a few words from the evidence and granted specific performance of the agreement of sale, which is very unfortunate. The entire frame of the suit suffers from a legal defect, which can never rectified at this point of time. The learned Trial Judge overlooked all the legal aspects and extracted a few words from the evidence and granted specific performance of the agreement of sale, which is very unfortunate. The evidences of P.W.2 and P.W.3 are totally irrelevant as they are all land brokers and they only speak about knowledge without any direct involvement about the agreement of sale. 16. The learned counsel for the first respondent, tried his best to uphold the agreement of sale and insisted upon the Court to pass decree on the same. I disagree with the contention. Ex.A.1 is neither legally admissible nor enforceable in the Court of Law and a suit cannot lie on the same, as there is no clear description of the property mentioned in it. It is also not known whether the property which should have been mentioned in Ex.A.1 was actually conveyed to second and third respondents. There is no correlation between the properties. In fact there is no property to be correlated. The suit is totally vexatious in nature and I hold that the first respondent, as the plaintiff, had not come to the Court with clean hands, he has also come to the Court suppressing the material facts and with improper presentation of facts. 17. In the decision of the Hon'ble Supreme Court reported in (2010) 15 SCC 601, Pawan Kumar Dutt and another vs. Shakuntala Devi and others, it had been held as follows: “7. ...... It is clear from the suit agreement that no boundaries of the suit property which was sold are specified in the agreement. It is not clear from what point the area is to be measured. It is also not clear that these 4 bighas 2 biswas is a portion of the land situated in the middle of the total land or in one portion or at the extreme end or at a particular place, in other words, there is no clear identity of the property agreed to be sold. The Courts are not expected to pass a decree which is not capable of enforcement in the courts of law. The Courts are not expected to pass a decree which is not capable of enforcement in the courts of law. If the argument of the learned counsel for the appellants is to be accepted and if a decree is to be granted for specific performance, without identification of the suit property, it will not be possible to enforce such a decree.” 18. In a judgment reported in (1996) 6 SCC 699 in Nahar Singh Vs. Harnak Singh, it has been held that, “if the property itself cannot be identified, the relief of specific performance cannot be granted.” 19. In view of the above facts and circumstances of the case and in view of the decisions cited supra, I hold that the reasonings given in the judgment of the trial Court are erroneous and the appeal has to be allowed and the impugned judgement and decree made in O.S.No.106/2007 is liable to be set aside. 20. In the result, this Appeal Suit is allowed with costs. The judgment and decree in O.S.No.106 of 2007 dated 17.12.2009 by the learned Additional District Judge, Fast Track Court No.II, Madurai is set aside and the suit in O.S.No.106 of 2007 is dismissed. Consequently, connected MP is closed. It is represented that the entire sale consideration has been deposited to the credit of O.S.No.106 of 2007 before the Trial Court. The first respondent is entitled for return of the said amount together with accrued interest, if application is preferred by him in that regard. The appellant is directed to return the advance amount of Rs.2,00,000/- said to have been received with interest at the rate of 6% per annum from the date of plaint till date of payment. Time for return of advance amount two months.