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2017 DIGILAW 827 (MAD)

P. K. Ganesan v. A. Kumar

2017-03-28

T.RAVINDRAN

body2017
JUDGMENT : The suit has been laid by the plaintiff for specific performance or in the alternative, the recovery of the advance amount and damages with interest and for permanent injunction. 2. The averments contained in the plaint are briefly stated as follows: The defendants 1 to 6 are the owners of the suit property and the defendants 1 to 6 agreed to sell the suit property to the plaintiff for a sum of Rs.38,00,000 on 30.12.2010 and pursuant to the same, a sale agreement was executed on the same date by the defendants 1 to 6 in favour of the plaintiff in the presence of the witnesses and the suit property had been mortgaged by the defendants 1 to 6 with the 7th defendant on 17.04.2000 and as per the sale agreement, the purchaser, i.e. the plaintiff, had agreed to redeem the mortgage and take over all the original documents pertaining to the suit property from the 7th defendant and the mortgage loan paid by the purchaser/plaintiff will be appropriated towards the sale consideration and the plaintiff paid a sum of Rs.1,00,000/- on the date of the sale agreement by way of cheque and the parties agreed to conclude the contract on or before 29.03.2011 and the plaintiff had been always ready and willing to perform his part of the contract within the stipulated time and in this connection, the plaintiff had also given publications in newspaper informing the public that he is intending to purchase the suit property even before the stipulated period and when the plaintiff approached the defendants 1 to 6 as regards the sale of the suit property, he was threatened with dire consequences and in this connection, the plaintiff had also taken necessary criminal proceedings against the defendants and spent huge amount as detailed in the plaint and thereafter, the plaintiff had also sent a legal notice dated 17.09.2011 to the defendants 1 to 6 calling upon them to pay the necessary damages and also to execute the sale deed in respect of the suit property in favour of the plaintiff. The plaintiff has always ready and willing to pay the balance sale consideration of Rs.37,00,000/- and obtain the sale deed. The plaintiff has always ready and willing to pay the balance sale consideration of Rs.37,00,000/- and obtain the sale deed. Inasmuch as the defendants failed to adhere the terms of the sale agreement, even after the issuance of the legal notices dated 17.09.2011 and 23.11.2011, the plaintiff has been necessitated to lay the suit against the defendants for appropriate reliefs. 3. The averments contained in the written statement filed by the 7th defendant are briefly stated as follows: The suit laid by the plaintiff as against the 7th defendant is not maintainable and the suit is barred under Section 156 of the Tamil Nadu Co-operative Societies Act, 1983 as regards the 7th defendant. The defendants 1 to 6 had mortgaged the suit property with the 7th defendant and availed loan by way of a registered mortgage deed dated 17.04.2000 and as far as the 7th defendant is concerned, it is not concerned with the sale agreement dated 30.12.2010, not being a party thereto and the same is also not binding upon the 7th defendant. The plaintiff is fully aware of the existing mortgage of the suit property with the 7th defendant and hence, the plaintiff is duty bound and obliged to discharge the loan and redeem the mortgage from the 7th defendant out of the balance sale consideration, if the plaintiff wants to have the property free of encumbrance. The transfer/sale/ conveyance of the suit property is subject to redemption and payment of the mortgage debt under the mortgage deed dated 17.04.2000 and the non payment of the mortgage debt resulted in a decree as against the defendants 1 to 6 on 19.04.2014 in ARC No.196/04-05. The plaintiff is not entitled to the reliefs sought for and hence, the suit is liable to be dismissed. 4. On the basis of the above pleadings, the following issues are framed for determination: "1. Whether the suit is maintainable against the seventh defendant who is a society? 2. Whether there is any cause of action against seventh defendant as there is no primitive contract of sale between the plaintiff and the seventh defendant? 3. Whether the plaintiff is ready and willing to perform his part of the contract? 4. Whether the agreement of sale is subject to mortgage deed dated 17.04.2000 with the seventh defendant? 5. Whether the plaintiff is entitled to the relief as prayed for? 6. 3. Whether the plaintiff is ready and willing to perform his part of the contract? 4. Whether the agreement of sale is subject to mortgage deed dated 17.04.2000 with the seventh defendant? 5. Whether the plaintiff is entitled to the relief as prayed for? 6. To what other reliefs, the parties are entitled to?" 5. In support of the plaintiff's case, PW1 has been examined and Exs.P1 to 16 were marked. On the side of the 7th defendant, DW1 has been examined and Exs.D1 to 2 were marked. 6. Issue Nos. 2 to 4: The suit has been laid by the plaintiff seeking the relief of specific performance in respect of the sale agreement dated 30.12.2010. It is the case of the plaintiff that the defendants 1 to 6 being owners of the suit property agreed to sell the same in favour of the plaintiff and in pursuance of the said agreement, the sale agreement was executed on 30.12.2010 between the parties, whereunder, the defendants 1 to 6 agreed to convey the suit property to the plaintiff for a sum of Rs.38,00,000/- and on the date of the sale agreement, the plaintiff parted with a sum of Rs.1,00,000/- towards the sale consideration by way of cheque and the parties agreed that the sale transaction should be completed on or before 29.03.2011 and it is also admitted that the suit property had been mortgaged with the 7th defendant by the defendants 1 to 6 for obtaining loan and as per the sale agreement, it is the duty of the purchaser, i.e. the plaintiff, to redeem the mortgage debt and obtain the original documents pertaining to the suit property and even though the plaintiff was always ready and willing to perform his part of the contract and inasmuch as the defendants 1 to 6 refused to act as per the terms of the sale agreement and on the other hand, when the plaintiff approached them for the conveyance, it is the case of the plaintiff that he had been threatened by the defendants 1 to 6 and therefore, the plaintiff has been necessitated to initiate appropriate criminal action against the defendants 1 to 6 and even after the issuance of the legal notices, inasmuch as the defendants 1 to 6 failed to convey the sale deed, according to the plaintiff, he has been necessitated to institute the suit for appropriate reliefs. 7. 7. As regards the above case of the plaintiff seeking the relief of specific performance, in particular of the sale agreement dated 30.12.2010, the defendants 1 to 6 have not contested the claim of the plaintiff. They had remained absent and resultantly, they had been also set ex parte. It is only the 7th defendant, who is contesting the claim of the plaintiff on certain aspects. 8. As per the sale agreement marked as Ex.P4, it is found that the parties have agreed that the sale transaction should be completed on or before 29.03.2011. In this connection, it is also found that the plaintiff has caused publications in the news papers, even prior to the stipulated period exhibiting his intention to purchase the suit property and the paper publications are marked as Exs.P7 and 15. Now, according to the plaintiff's case, when he approached the defendants 1 to 6 for concluding the contract, he was threatened with dire consequences and the same necessitated on his part to initiate the criminal action against the defendants 1 to 6. In this connection, the plaintiff had also caused the issuance of the legal notice dated 17.09.2011 marked as Ex.P13, wherein, he had detailed about the criminal action initiated by him against the defendants 1 to 6 for their unlawful acts and expenses incurred by him thereof. It is found that the defendants 1 to 6 have failed to respond to the said notice. Thereafter, the plaintiff had also issued another legal notice dated 23.11.2011 calling upon the defendants to convey the sale conveyance in respect of the suit property, even this notice had not evoked the proper response from the defendants 1 to 6 and as they did not come forward to convey the sale deed in respect of the suit property, it is the case of the plaintiff that he has been constrained to institute the suit. 9. As regards the readiness and willingness on the part of the plaintiff to complete the sale transaction, the plaintiff has examined himself as PW1 and marked Exs.P1 to 16. As adverted to supra, the parties to the sale agreement viz., D1 to 6 having not contested the claim of the plaintiff, in particular, they have not raised any defence that the plaintiff had not performed his part of the contract as per Ex.P4 sale agreement. As adverted to supra, the parties to the sale agreement viz., D1 to 6 having not contested the claim of the plaintiff, in particular, they have not raised any defence that the plaintiff had not performed his part of the contract as per Ex.P4 sale agreement. Therefore, from the evidence of PW1, which remains unchallenged, it is found that the plaintiff has established the readiness and willingness on his part of contract to complete the sale transaction, pursuant to Ex.P4. 10. As regards the defence set out by the 7th defendant, it is found that the suit property had been mortgaged with the 7th defendant by the defendants 1 to 6 for obtaining loan and the copy of the mortgage deed has been marked as Ex.P3. The recitals as regards the mortgage transaction are also incorporated in Ex.P4. Therefore, it could be seen that the plaintiff is also aware of the said mortgage transaction as per the terms of the sale agreement. It is for the plaintiff to redeem the mortgage by discharging the debt due to the 7th defendant and obtain the documents pertaining to the suit property. The 7th defendant, in particular, has not challenged the readiness and willingness on the part of the plaintiff in completing the sale transaction. 11. As adverted to supra, when it is found from Ex.P4 itself that the sale conveyance to be executed in favour of the plaintiff is subject to the mortgage deed dated 17.04.2000 and when the purchaser i.e. plaintiff has also been directed to redeem the mortgage by discharging the loan, it is found that the agreement of sale is subject to the mortgage deed dated 17.04.2000 with the 7th defendant. 12. Admittedly, the 7th defendant is not a party to the sale agreement marked as Ex.P4. However, inasmuch as the suit property had been mortgaged with the 7th defendant, according to the plaintiff, it has been added as a party to the proceedings as such. It is found that the plaintiff has also a cause of action against the 7thd defendant as the plaintiff has not only sought for the relief of specific performance, but also sought for the relief of permanent injunction restraining the defendants including the 7th defendant from alienating or encumbering the suit property any further. Therefore, it is found that to that extent, the plaintiff has a cause of action against the 7th defendant. Therefore, it is found that to that extent, the plaintiff has a cause of action against the 7th defendant. 13. In the light of the above discussions, I hold that the plaintiff has established that he has been always ready and willing to perform his part of the contract and I further hold that the sale agreement dated 30.12.2010 is subject to the mortgage deed dated 17.04.2000 with the 7th defendant. I further hold that to the limited extent above indicated, the plaintiff has a cause of action as against the 7th defendant also, even though there is no privity of contract of sale between the plaintiff and the 7th defendant under the sale agreement Ex.P4. Accordingly, issue Nos.2 to 4 are answered. 14. Issue No.1 The 7th defendant has taken a stand that the suit laid by the plaintiff against it, is barred under Section 156 of the Tamil Nadu Co-operative Societies Act, 1983. However, as rightly contended by the plaintiff's counsel, there is no material placed by the 7th defendant to show that the present lis initiated by the plaintiff falls under the ambit or sphere detailed under Section 156 of the Tamil Nadu Co-operative Societies Act, 1983. In such view of the matter, it is held that the plaintiff's suit as against the 7th defendant is not barred under Section 156 of the Tamil Nadu Co-operatives societies Act, 1983. Accordingly Issue No.1 is answered. 15. Issue Nos.5 & 6. The plaintiff is granted the relief of specific performance of the sale agreement dated 30.12.2010 in respect of the suit property as prayed for subject to the condition that the plaintiff discharges the mortgage debt pursuant to the mortgage deed dated 17.04.2000 with the 7th defendant and the Plaintiff is granted one month time to discharge mortgage debt of the 7th defendant and deposit the balance sale consideration in the Court and thereafter, the defendants 1 to 6 are directed to convey the sale deed in favour of the plaintiff within two months. 16. Accordingly, the suit is decreed in favour of the plaintiff as prayed for with costs as against the defendants 1 to 6. The relief of permanent injunction sought for by the plaintiff is negatived.