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2018 DIGILAW 3926 (MAD)

S. K. M. Rahima Bivi v. S. Kandasamy

2018-10-24

C.V.KARTHIKEYAN

body2018
JUDGMENT C.V. KARTHIKEYAN, J. 1. The defendants in O.S.No.4 of 2006 on the file of the Additional District Court (Fast Track Court), Dindigul, are the appellants herein. 2. O.S.No.4 of 2006 had been originally filed by two plaintiffs, K.Kandasamy and S. Krishnamoorthy against 8 defendants. The first defendant S.K.M. Rahima Bivi was the power of attorney agent of 2nd to 8th defendants. The suit had been filed seeking specific performance of an agreement of sale dated 27.06.2005 entered into between the plaintiffs and the first defendant acting on her behalf and on behalf of other defendants with respect to the suit property. 3. The suit property had been described as land and building in D.No.30/67A in Katcheri Street, Dindigul Town, Ward No.1, Dindigul, measuring an extent of 559 sq.ft. It had been stated in the plaint that the suit property originally belonged to S.K.M. Mohammed Sulthan Ravuthar, the father of the 1st to 4th defendants and T.A.S. Mohammed Ibrahim Ravuthar, the father of the 5th to 8th defendants. They had purchased the property, by sale deed dated 25.08.1970. S.K.M. Mohammed Sulthan Ravuthar died in 1997 and his wife Ayish Gani died in 1999. They left behind the 1st to 4th defendants as their legal heirs. T.A.S. Mohammed Ibrahim Ravuthar died in 1993, leaving behind the 5th to 8th defendants. 4. It had been stated that on 06.05.1998, the 1st to 4th defendants and their mother had borrowed a sum of Rs. 1,50,000/- from the plaintiffs and had agreed to redeem the same with interest at 12% per annum. They also executed a mortgage deed in favour of the plaintiffs. It had been stated that since the defendants were not able to repay the interest, they handed over possession of the property to the plaintiffs. The plaintiffs were enjoying of the property by using it as godown. It was further stated that the 2nd to 8th defendants had executed a power of attorney, dated 19.12.2001 in favour of the first defendant. The plaintiffs and the first defendant, acting on her behalf and on behalf of the 2nd to 8th defendants, entered into an agreement of sale with respect to the suit property for a total consideration of Rs. 5,62,125/-. The mortgage amount of Rs. 1,50,000/- was adjusted towards the advance of the sale consideration. Apart from that amount, a further sum of Rs. 75,000/- was also paid. 5,62,125/-. The mortgage amount of Rs. 1,50,000/- was adjusted towards the advance of the sale consideration. Apart from that amount, a further sum of Rs. 75,000/- was also paid. It was stated that the agreement should be performed within a period of six months. It was further stated that the first defendant had received a further advance of Rs. 31,500/- and had acknowledged the same in a note book. It was stated that a total advance of Rs. 2,56,500/- had been paid and the balance sale consideration was Rs. 3,05,625/-. It was further stated that the plaintiffs issued a notice, dated 22.12.2005. A reply was issued on behalf of the defendants. The receipt of further advance of Rs. 31,500/- was denied. A further notice was issued and the plaintiffs waited for the first defendant to execute the sale deed in the office of the Sub Registrar, Dindigul, on 26.12.2005 and 27.12.2005. The defendants replied by notice, dated 04.01.2006. 5. It was further stated in the plaint that the defendants deliberately avoided execution of sale deed and receipt of balance sale consideration. Consequently, the suit was filed by the plaintiffs seeking judgment and decree to specifically enforce the agreement dated 27.06.2005. 6. The first defendant filed written statement on her behalf and on behalf of the other defendants. It was stated that the agreement had been entered into on 27.06.2005 for selling of the suit property for a total sale consideration of Rs. 5,62,125/-. It was stated that an advance of Rs. 2,25,000/- had been received. It was also stated that however, the plaintiffs were not ready and willing to pay the balance sale consideration of Rs. 3,37,125/-. It was also stated that the first defendant had entered into the agreement was in view of the fact that there was urgent need of money towards medical expenses. A period of six months was fixed for performance of the agreement. It was stated that the defendants were ready and willing to execute the sale deed and waited in the Sub-Registrar Office on 26.12.2005 and 27.12.2005. It was pleaded that the suit should be dismissed. 7. On the basis of the above pleadings, the learned Additional District Judge (Fast Track Court) Dindigul, framed the following issues for trial: "(a) Whether the plaintiffs are entitled to the relief of specific performance? (b)To what other reliefs, the plaintiffs are entitled to?" 8. It was pleaded that the suit should be dismissed. 7. On the basis of the above pleadings, the learned Additional District Judge (Fast Track Court) Dindigul, framed the following issues for trial: "(a) Whether the plaintiffs are entitled to the relief of specific performance? (b)To what other reliefs, the plaintiffs are entitled to?" 8. During trial, the first plaintiff examined himself as PW-1 and the first defendant examined herself as DW-1. The plaintiffs marked Ex-A1 to Ex- A23. Ex-A1, dated 06.05.1998, is the mortgage deed. Ex-A2, dated 09.05.1998 is the document handing over possession of the suit property to the plaintiffs. Ex-A3, dated 27.06.2005, is the agreement entered into between the plaintiffs and the first defendant on her behalf and on behalf of the other defendants. Ex-A4 is the note book reflecting acknowledgment of receipt of further advance amounts. Ex-A5 dated 15.09.2005 is the copy of the stamp papers purchased by the plaintiffs towards registration of the property. Ex- A7, Ex-A9, Ex-A10, Ex-A11 and Ex-A18 are the Advocate notice exchanges between the parties. Ex-A12, Ex-A13, Ex-A14 and Ex-A15 are the documents to show that the plaintiffs were waiting in the Sub-Registrar Office on 26.12.2005 and 27.12.2005. Ex-A20 is the notice issued to the plaintiffs by Jaffer Ahammed. The defendants did not mark any document. 9. On the basis of the oral and documentary evidence, the trial Court, by judgment dated 12.01.2009, decreed the suit as prayed for. The learned Judge found that during recording of evidence, both the plaintiffs and the defendants have agreed to perform their respective part of the agreement. The suit was decreed. Challenging the said judgment, the defendants filed the present appeal A.S.No.37 of 2009:- 10. As stated, the defendants had filed the present first appeal. 11. The parties shall be referred as plaintiffs and defendants. The defendants are the appellants and the plaintiffs are the respondents. 12. The points for determination in this appeal are as follows: "(a) Whether the plaintiff are entitled to the relief of specific performance of the agreement? (b)Whether the plaintiffs were always ready and willing to perform their part of the agreement? (c)Whether the judgment and decree of the trial Court is to be interfered?" 13. The plaintiffs claimed that on 06.05.1998, by Ex-A1, they advanced a sum of Rs. 1,50,000/- to the 1st to 4th defendants and also to their mother Ayisha Gani. (b)Whether the plaintiffs were always ready and willing to perform their part of the agreement? (c)Whether the judgment and decree of the trial Court is to be interfered?" 13. The plaintiffs claimed that on 06.05.1998, by Ex-A1, they advanced a sum of Rs. 1,50,000/- to the 1st to 4th defendants and also to their mother Ayisha Gani. The 1st to 4th defendants and mother executed a mortgage deed. Subsequently, by Ex-A2, dated 09.05.1998, the plaintiffs were put in possession of the suit property in lieu of payment of interest. This document was executed by all the defendants. Thereafter, by Ex-A3, an agreement of sale, dated 27.06.2005, was entered into between the plaintiffs and the first defendant, acting her behalf and on behalf of the other defendants. It was agreed that the amount paid towards mortgage of Rs. 1,50,000/- would be treated as advance. A further advance of Rs. 75,000/- was paid. The total sale consideration had been fixed at Rs. 5,62,125/-. The plaintiffs claimed that the plaintiffs were always ready and willing to pay the balance sale consideration. It is also seen that a further advance of Rs. 31,500/- had been paid to the first defendant. 14. The following extract from the evidence of PW-1 and DW-1 would clearly show that the parties had agreed to perform their respective parts of obligations under Ex-A3. The evidence of PW-1 recorded on 05.01.2009 and signed by the learned Judge on 09.01.2009 is as follows: xxx xxx xxx 15. The evidence of DW-1 during trial is as follows: xxx xxx xxx 16. The evidence recorded clearly shows that the plaintiffs and the defendants have agreed to sell the suit property in accordance with terms in Ex-A3. As a matter of fact, there are no other issues involved either in the suit or in the appeal. The parties had decided to complete the transaction. 17. For the reasons stated above, I hold that the plaintiffs are entitled for a decree of specific performance and that they were also ready and willing to purchase the suit property and to pay the balance sale consideration. Consequently, I find no reason to interfere with the judgment and decree of the trial Court. Consequently, the appeal is dismissed, however, in the circumstances of the case, without costs. The judgment and decree of the Additional District Judge (Fast Track Court), Dindigul, in O.S.No.99 of 2007, dated 12.01.2009 is confirmed. Consequently, I find no reason to interfere with the judgment and decree of the trial Court. Consequently, the appeal is dismissed, however, in the circumstances of the case, without costs. The judgment and decree of the Additional District Judge (Fast Track Court), Dindigul, in O.S.No.99 of 2007, dated 12.01.2009 is confirmed. Consequently, connected miscellaneous petitions are closed.