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2017 DIGILAW 1129 (MAD)

C. Indirani v. R. Raju

2017-04-18

C.V.KARTHIKEYAN

body2017
JUDGEMENT : This appeal suit had been filed by the Plaintiff in OS.No.17 of 2005, aggrieved by the dismissal of the said suit by judgement dated 19.9.2007 by the I Additional District Judge, Trichirappalli. 2. The above suit had been filed, seeking specific performance within a time to be fixed by the court, failing which, the court should execute the sale deed in favour of the Plaintiff and for costs. 3. In the plaint, it had been stated that the suit property, namely, the land measuring 84 cents in Ayan Nanja SF 18/3 in Devadanam Village within Trichirappalli City Corporation Limit, Trichirappalli belonged to the Defendants and they had agreed to sell the same to the Plaintiff for a sum of Rs.5,10,000/-. An agreement of sale was entered into on 20.3.2002 and the said sale agreement was registered. An advance of Rs.1,10,000/- was paid. Thereafter, the Defendants received another sum of Rs.10,000/- on 20.7.2002 towards the balance sale consideration, which had been endorsed in the agreement. A supplemental agreement of sale dated 8.9.2002 was also entered into between the parties. A further advance of Rs.20,000/- was paid on 14.12.2002, which was also endorsed on the agreement of sale. 4. The Plaintiff claimed that the Plaintiff has been ready and willing to perform her part of the sale agreement. She had to pay the balance of Rs.3,70,000/-. She was ready with the said amount. It had been stated that time is not the essence of the agreement. The Defendants were to deliver the original title deeds. They had not produced the same. The Plaintiff had been demanding execution of the sale deed. However, the Defendants kept evading the requests of the Plaintiff. Consequently, a telegraphic notice was issued to the 2nd Defendant on 17.1.2003. The 1st Defendant received the telegram, but they did not come forward to execute the sale deed. They had not produced the original title deeds. It had been stated that the Defendants attempted to alienate the suit property by suppressing the agreement of sale dated 20.3.2002 and the supplemental agreement of sale dated 18.9.2002. A telegraphic notice was issued to the Sub Registrar, Joint III, Town Hall Road, Trichy on 27.1.2005 and also a notice was issued with a copy to the 1st Defendant, requesting not to register any sale deed in favour of third parties with respect to the suit property. A telegraphic notice was issued to the Sub Registrar, Joint III, Town Hall Road, Trichy on 27.1.2005 and also a notice was issued with a copy to the 1st Defendant, requesting not to register any sale deed in favour of third parties with respect to the suit property. Since there had been no reply from the Defendants, the suit had been filed for the reliefs as stated above. 5. The Defendants 1 and 2 are husband and wife. The 1st Defendant has filed a written statement, admitting ownership and admitting that they had entered into an agreement of sale with the Plaintiff on 20.3.2002 for a total consideration of Rs.5,10,000/- and also admitting the supplemental agreement of sale. the Defendants also admitted to receipt of advances of Rs.1,10,000/-, Rs.10,000/- and Rs.20,000/-. It had been stated that time for registration of sale deed expired on 17.2.2002. This was informed to the Plaintiff and the Plaintiff was further informed that the Defendants were not interested in conveying the property. However, they received a notice on 17.1.2003 that the Plaintiff was ready to execute the sale deed. The Defendants waited in the Joint Sub Registrar Office, Town Hall Road, Trichy from morning till evening, but the Plaintiff did not turn up for execution of the sale deed. The Plaintiff was not ready to pay the balance amount. The Defendants issued an advocate notice dated 28.3.2003 and informed that the agreement of sale had been cancelled. Consequently, there was no agreement subsisting between the Plaintiff and the Defendants. The Plaintiff gave a complaint before the Fort Police Station, Trichirappalli to get back the advance amount with interest at 60% p.a. After lapse of two years, the Plaintiff issued a legal notice, calling upon the Defendants to receive the balance sale consideration. The reason for the delay and for revival of the interest of the Plaintiff was due to the increase in the value of the land. It had been stated that the notice dated 27.1.2005 is vexatious and had been issued with ulterior motive. The Defendant met the Plaintiff in person and informed that the sale agreement had already been cancelled. The Defendant therefore stated that the Plaintiff is not entitled to any relief and sought dismissal of the suit. 6. On the basis of the rival pleadings, the court below had reframed the following issues:- 1. The Defendant met the Plaintiff in person and informed that the sale agreement had already been cancelled. The Defendant therefore stated that the Plaintiff is not entitled to any relief and sought dismissal of the suit. 6. On the basis of the rival pleadings, the court below had reframed the following issues:- 1. Whether the sale agreement entered between the Plaintiff and the Defendants came to an end after the issuance of the notice by the Defendants on 28.3.2002? 2. Whether the Plaintiff was always ready and willing to perform her part of her agreement and whether the Defendants alone evaded the performance of their part? 3. Whether the plaintiff is entitled to the relief of specific performance? 4. Whether the Plaintiff is entitled to get refund of the advance amount already paid in pursuant of the agreement? 7. During the trial, on the side of the Plaintiff, the husband of the Plaintiff was examined as PW.1 and Ex.A1 to A14 were marked. These included the agreement of sale dated 20.3.2002 as Ex.A1, the endorsement for payment of further advance dated 20.7.2002 as Ex.A2, the supplemental sale agreement dated 18.9.2002 as Ex.A3, the endorsement for further payment of advance as Ex.A4, the telegrams sent to the 1st Defendant and to the Sub Registrar and the advocate notice to the Sub Registrar as Ex.A5, Ex.A6 and Ex.A7, the advocate notice as Ex.A10, the Canara Bank Savings pass book in the name of the husband of the Plaintiff as Ex.A12, the passbook in the name of the Plaintiff in Trichirappalli City Cooperative Bank Limited as Ex.A13 and the passbooks in the name of the husband of the Plaintiff and in the name of the Plaintiff in the Post Office as Ex.A14. During the cross examination of PW.1, the Defendants marked Ex.B1, the reply notice dated 28.3.2003 and the acknowledgement card as Ex.B2. The Defendants did not examine any witnesses. 8. On consideration of the oral and documentary evidence, the court below by judgement and decree dated 19.9.2007, with respect to issue (1), held that the Plaintiff did not come to court with clean hands and further stated that the suit had been filed after termination of the agreement and consequently, the suit was not maintainable. The court below had further held that the Plaintiff did not take steps for a period of two years after exchange of notices. The court below had further held that the Plaintiff did not take steps for a period of two years after exchange of notices. The court below further held that the Plaintiff was not ready and willing and that the agreement of sale between the parties had come to an end on 2.4.2003 after receipt of Ex.B1 notice issued on behalf of the Defendants. The court below also held other issues against the Plaintiff, but however held that the Defendants are liable to refund the total advance amount of Rs.1,40,000/- with interest at 12% p.a. from the date of the plaint till the date of realisation. The court below further held that the costs, for which the Defendants are entitled to claim, has to be adjusted towards the amount due to the Plaintiff and ultimately, the suit was dismissed. Hence, the Plaintiff has come before this court by way of this appeal suit. 9. During the pendency of the appeal, by order dated 8.2.2017, in MP(MD) No.1 of 2009, the 3rd Respondent M/s.Persummon Properties Private Limited represented by its Managing Director T. Aravamudan was impleaded as a party to the appeal suit. The 3rd Respondent had purchased the suit property from the Respondents 1 and 2 and consequently, they were the only contesting Respondents in the present appeal. 10. This court heard the arguments of the learned counsel for the Appellants and the 3rd Respondent. 11. The learned counsel for the Appellant took the court through the pleadings and stated that the agreement in Ex.A1 is a registered agreement, which has been admitted by the Respondents. The learned counsel stated that the 3rd Respondent cannot take any new plea in defence of the suit claim as they had stepped into the shoes of the original Respondents 1 and 2. The learned counsel pointed out that payment of advances as evidenced by Ex.A2 and Ex.A4 has been admitted by the Defendants in the written statement. The supplemental agreement dated 18.9.2002 in Ex.A3 was also admitted. The learned counsel also pointed out that the court below had made a material error in the reasonings with respect to the issue (1) and had mentioned in paragraph 9 of the judgement that on receipt of Ex.B1 notice, the Appellant herein did not care to reply for nearly two years. The learned counsel also pointed out that the court below had made a material error in the reasonings with respect to the issue (1) and had mentioned in paragraph 9 of the judgement that on receipt of Ex.B1 notice, the Appellant herein did not care to reply for nearly two years. However, the learned counsel pointed out that Ex.A10 which was actually dated 16.4.2003 had been wrongly given in the list of witnesses as 16.4.2005 and that the court below had wrongly appreciated the facts of the case. 12. The learned counsel further pointed out that in paragraph 10 of the judgement, it had been mentioned that a reply was issued on 16.4.2003. The learned counsel pointed out that time was not the essence of agreement of sale in respect of an immovable property. It had been stated that in Ex.A1, there was a default clause for forfeiture of the advance amount. The learned counsel further pointed out that the property was actually sold on 22.8.2008 to the 3rd Respondent, who is the contesting the appeal, for a total consideration of Rs.4,20,000/- which is in contrast to the total sale consideration as fixed in Ex.A1, which was for Rs.5,10,000/- and consequently, the learned counsel claimed that the 3rd Respondent was not a bona fide purchaser. The learned counsel pointed out that Section 16(c) of the Specific Relief Act relates to readiness and willingness and in respect of the same, the Appellant had marked Ex.A12, Ex.A13 and Ex.A14, which are the Canara Bank Savings pass book in the name of the husband of the Plaintiff, the passbook in the name of the Plaintiff in Trichirappalli City Cooperative Bank Limited and the passbook in the name of the husband of the Plaintiff and in the name of the Plaintiff in the Post Office. The learned counsel therefore stated that the suit should have been decreed and sought reversal of the judgement. 13. On the other hand, the learned senior counsel for the 3rd Respondent stated that the relief in a suit for specific performance is discretionary in nature and equity has to be shown to only those who come to court with clean hands. The learned senior counsel admitted that the Respondents 1 and 2 had executed Ex.A1 sale agreement and Ex.A3, supplemental agreement and also the receipt of the advances as mentioned in the plaint. The learned senior counsel admitted that the Respondents 1 and 2 had executed Ex.A1 sale agreement and Ex.A3, supplemental agreement and also the receipt of the advances as mentioned in the plaint. The learned senior counsel further pointed out that a telegram was issued on 17.1.2003 and a notice was also issued in Ex.B1 dated 28.3.2003, which was substantiated by Ex.B2 acknowledgement card. The learned senior counsel pointed out that the Respondents 1 and 2 had waited in the Sub Registrar Office in vein for executing the sale deed. The notice Ex.B1 was not disclosed in the plaint. Consequently, the learned senior counsel stated that there was no proper disclosure of material facts in the plaint and the learned senior counsel also pointed out the cross examination of PW.1 where he admitted receipt of Ex.B1. The learned senior counsel further stated that the suit is not maintainable since there was no relief sought to declare that the cancellation of the registered agreement of sale is null and void. Since PW.1 had admitted during the cross examination that he had received the notice, there was no necessity on behalf of the Defendants to lead any oral evidence. The learned senior counsel urged that the judgement impugned in this appeal should be upheld. 14. This court has carefully considered the arguments advanced by both sides. 15. The suit has been filed, seeking specific performance. The Plaintiff in OS.No.17 of 2005 is the Appellant. The following are admitted facts:- 1. The Appellant and the Respondents 1 and 2 entered into an agreement of sale on 20.3.2002 for a total consideration of Rs.5,10,000/- in respect of the property measuring 84 cents in Ayan Nanja SF18/3, Devadanam Village, Trichirappalli city Corporation Limit, Trichirappalli. 2. The said agreement is a registered agreement. 3. They also entered into a supplemental agreement dated 18.9.2002. 4. On the date of the agreement, a sum of Rs.1,10,000/- was paid as advance. 5. A further sum of Rs.10,000/- was paid as advance on 20.7.2002. 6. A further sum of Rs.20,000/- was paid as advance on 18.9.2002. 7. Ex.A1 is the registered agreement of sale dated 20.3.2002 and Ex.A3 is the supplemental agreement of sale dated 18.9.2002. 8. Ex.A2 is the endorsement made in Ex.A1 for payment of advance of Rs.10,000/-. 9. Ex.A4 is the endorsement made in Ex.A1 for payment of additional advance of Rs.20,000/- 10. 7. Ex.A1 is the registered agreement of sale dated 20.3.2002 and Ex.A3 is the supplemental agreement of sale dated 18.9.2002. 8. Ex.A2 is the endorsement made in Ex.A1 for payment of advance of Rs.10,000/-. 9. Ex.A4 is the endorsement made in Ex.A1 for payment of additional advance of Rs.20,000/- 10. Initial advance of Rs.1,10,000/- had been mentioned in Ex.A1 itself. 16. These imply that towards the sale consideration of Rs.5,10,000/-, it is admitted by the Appellant and the Respondents 1 and 2 and also subsequently by the newly impleaded 3rd Respondent that the Appellant had paid a total advance of Rs.1,40,000/-. A perusal of Ex.A1 agreement reveals that the period of six months was mutually agreed for specific performance of the agreement of sale and in default, the advanced paid would be forfeited. It was further provided that the Appellant should pay the balance amount and the sale deed should be executed by the 1st and 2nd Respondents. Further clause relating to specific performance through the court of law was also provided in Ex.A1. 17. On 17.1.2003, by Ex.A5, the Appellant had issued a telegram stating that she was ready with the balance sale consideration with funds for purchase of stamp papers to engross the sale deed. She further requested for information regarding persons in the Sub Registrar Office. By Ex.A6, a telegram was sent to the Sub Registrar, Joint III, Town Hall Road, Trichirappalli-2 by the counsel for the Appellant, giving the SF number and the area and requesting not to register any sale deed. It was also mentioned that a notice would follows. This telegram is dated 27.1.2005 after two years of issue of Ex.A5 telegram. This was followed by an advocate's notice dated 27.1.2005 and marked as Ex.A7 issued to the Sub Registrar, Joint III, Town Hall Road, again directing that the sale deed should not be registered with respect to the suit property. Ex.A8 is the acknowledgement card for the said notice. A copy of the said notice was also issued to the 1st Respondent and Ex.A9 was the acknowledgement card for receipt of the said notice by the 1st Respondent. Much prior to this, the learned senior counsel for the 3rd Respondent pointed out Ex.A1 reply notice was issued on behalf of the Respondents 1 and 2 and this is dated 28.3.2003. 18. Much prior to this, the learned senior counsel for the 3rd Respondent pointed out Ex.A1 reply notice was issued on behalf of the Respondents 1 and 2 and this is dated 28.3.2003. 18. It had been mentioned that the Appellant had not settled the balance sale consideration within the stipulated period. The telegram in Ex.A5 was pointed out and it was stated that on 20.1.2003, the Respondents 1 and 2 waited at the Town Hall Sub Registrar Office from morning to evening, but the Appellant did not turn up. Consequently, it had been stated that the Respondents 1 and 2 do not want to continue with the sale agreement and that the advance amount is being forfeited. The learned senior counsel for the 3rd Respondent who is contesting the appeal also pointed out Ex.B2 which is the acknowledgement card for receipt of Ex.B1 notice. The learned senior counsel pointed out that the Appellant had not mentioned about Ex.B1 notice in the plaint or in the chief examination. They also did not mark the same during their evidence. In this connection, the learned senior counsel vehemently argued that this amounted to suppression of material fact since the 1st and 2nd Respondents had cancelled the agreement. It had been stated that the cancellation was done because they waited in the Sub Registrar Office pursuant to Ex.A5 telegram. It was filed by the Appellant who did not turn up for registration. 19. In this connection, the learned senior counsel for the 3rd Respondent relied on the decision of the Honourable Supreme Court reported in 2011-9-SCC-147 (Citadel Fine Pharmaceuticals Vs. Ramaniyam real Estates Private Limited and another) wherein the Honourable Supreme Court in paragraph 57 to 60, had held as follows:- “57. There is another aspect of the matter also. In the instant case by asking for specific performance of the contract, the plaintiff-purchaser is praying for a discretionary remedy. It is axiomatic that when discretionary remedy is prayed for by a party, such party must come to court on proper disclosure of facts. The plaint which it filed before the Court in such cases must state all facts with sufficient candour and clarity. It is axiomatic that when discretionary remedy is prayed for by a party, such party must come to court on proper disclosure of facts. The plaint which it filed before the Court in such cases must state all facts with sufficient candour and clarity. In the instant case the plaintiff-purchaser made an averment in the plaint that the defendant-vendor be directed to return the advance amount of Rs.10,00,000/- at the rate of 24% interest from the date of payment of the said amount till the realization and an alternative prayer to that effect was also made in the prayer clause (c). 58. However, the fact remains that prior to the filing of the suit the defendant vendor returned the said amount of Rs.10,00,000/- by its letter dated 4th September, 1996 by an account payee cheque in favour of the plaintiff and the same was sent to the plaintiff under registered post which was refused by the plaintiff on 6.9.1996. The plaintiff suppressed this fact in the plaint and filed the suit on 9.9.1996 with a totally contrary representation before the court as if the amount has not been returned to it by the vendor. This is suppression of a material fact, and disentitles the plaintiff purchaser from getting any discretionary relief of specific performance by Court. 59. In this connection we may refer to the Principle of Equitable Remedies by I.C.F. SPRY, Fourth Edition (Sweet & Maxwell, 1990). Dealing with the question of ‘Clean Hands’ the learned author opined that where the plaintiff is shown to have materially misled the court or to have abused its process, or to have attempted to do so, the discretionary relief of specific performance can be denied to him. In laying down this principle, the learned author relied on a decision of the English Court in the case of Armstrong v. Sheppard & Short Ltd. (1959) 2 Q.B. 384 at page 397. (See SPRY Equitable Remedies page 243). 60. This Court has also taken the same view in the case of Arunima Baruah v. Union of India and others reported in (2007) 6 SCC 120 . At paragraph 12, page 125 of the report, this Court held that it is trite law that to enable the court to refuse to exercise its discretionary jurisdiction suppression must be of a material fact. At paragraph 12, page 125 of the report, this Court held that it is trite law that to enable the court to refuse to exercise its discretionary jurisdiction suppression must be of a material fact. This Court, of course, held what is a material fact, suppression whereof would disentitle the suitor to obtain a discretionary relief, would depend upon the facts and circumstances of each case. However, by way of guidance this Court held that material fact would mean that fact which is material for the purpose of determination of the lis.” 20. The learned senior counsel for the 3rd Respondent was emphatic in his assertion that the Plaintiff had not disclosed material facts. In this case, material fact was Ex.B1 notice, wherein the agreement of sale had been cancelled. 21. The learned counsel for the Appellant relied on the decision of the Honourable Supreme Court reported in 2008 2 MLJ 750 SC (Balasaheb Dayandeo Naik (Dead) through LRs Vs. Appasaheb Dattatraya Pawar) in which it had been held that in the case of sale of immovable property, there is no presumption as to time being the essence of the contract. In paragraph 13, it had been stated as follows:- “13. It is true that the Defendant in his written statement has made a bald claim that the time was the essence of contract. Even if we accept the recital in the agreement of sale (Exhibit 18) that the sale deed has to be executed within a period of six months, there is an express provision in the agreement itself that failure to adhere the time, the earnest money will be forfeited. In such circumstances and in view of recital pertaining to forfeiture of the earnest money, makes its clear that time was never intended by the parties to be of essence.” In this case, there is also a forfeiture clause and consequently, it cannot be said that time is not the essence of the agreement. However, in the present case, the Respondents 1 and 2 have specifically cancelled and terminated the agreement of sale. Consequently, nothing survives between the parties. However, in the present case, the Respondents 1 and 2 have specifically cancelled and terminated the agreement of sale. Consequently, nothing survives between the parties. The learned senior counsel for the 3rd Respondent however stated that in the present case, pursuant to the cancellation of the agreement of sale, the suit had been instituted not only suppressing the said fact, but also not seeking a declaratory relief that such cancellation is not valid in the eye of law. In this connection, the learned senior counsel relied on the judgement of this court dated 9.6.2015 made in SA.No.1224 of 2004 wherein this court in similar circumstances had held as follows:- “25. .... since the Plaintiff did not perform his part of contract within the extended period in the legal notice referred to supra, the agreement of sale was terminated as per notice dated 28.3.1985 and thus, there is termination of the agreement of sale between the Plaintiff and the Defendants 1-4 with effect from 10.04.1985. As could be seen from the prayer sought for in the original suit, the Plaintiff has not sought for declaratory relief to declare the termination of agreement of sale as bad in law. In the absence of such prayer by the Plaintiff the original suit filed by him before the Trial Court for grant of decree for specific performance in respect of the suit schedule property on the basis of agreement of sale and consequential relief of decree for permanent injunction is not maintainable in law. Therefore, we have to hold that the relief sought for by the Plaintiff for grant of decree for specific performance of execution of sale deed in respect of the suit schedule property in his favour on the basis of non existing agreement of sale is wholly unsustainable in law.” 22. The learned counsel for the Appellant however pointed out Ex.A10 which is a reply issued to Ex.B1. In Ex.A10 which is dated 16.4.2003, once again the Appellant had only mentioned that she is ready and willing to perform her part of the agreement. However, the said reply notice had been issued pursuant to the cancellation of the agreement and in Ex.A10 there is no specific words that said cancellation is null and void and will not affect the Appellant. PW.1 in his cross examination had denied Ex.B1 even though Ex.B2 is the acknowledgement card for the same. However, the said reply notice had been issued pursuant to the cancellation of the agreement and in Ex.A10 there is no specific words that said cancellation is null and void and will not affect the Appellant. PW.1 in his cross examination had denied Ex.B1 even though Ex.B2 is the acknowledgement card for the same. However, when confronted with the document, he admitted as follows:- “xxx” 23. It is seen from the above that the Appellant had come to court after the Respondents 1 and 2 had terminated the agreement. She had not pleaded in the plaint that the agreement had been actually pleaded and she did not seek any relief, seeking to declare such cancellation is null and void. It is also seen that the 1st and 2nd Respondents had sold the property to the 3rd Respondent by a registered sale deed dated 22.8.2008. Consequently, the balance of convenience is very heavily against the Appellant. The Appellant had brought the 3rd Respondent as a party to the proceedings. The Appellant had also not filed any application to declare the sale deed as null and void and not binding on the Appellant. Consequently, the right which has flowed to the 3rd Respondent cannot be interfered with by this court. It is very clear that the Appellant had at the initial stage suppressed the material fact and had not disclosed the necessary facts relating to cancellation of agreement. The Appellant has to fall on her own pleadings and consequently, I hold that the appeal has to be dismissed. 24. It had been mentioned by the learned counsel for the Appellant that a sum of Rs.1,97,000/- is available in the court deposit from 5.1.2008. The Appellant is entitled for refund of the said amount. 25. In the result, this appeal suit is dismissed. No costs. The Appellant is entitled for refund of the entire amount lying in the credit of OS.No.17 of 2005 with accrued interest on proper application being filed for withdrawal of the same.