Research › Search › Judgment

Madras High Court · body

2018 DIGILAW 3930 (MAD)

S. K. M. Rahima Bivi v. R. Mahalingam

2018-10-24

C.V.KARTHIKEYAN

body2018
JUDGMENT R. MAHALINGAM, J. 1. The defendants in O.S.No.99 of 2007 on the file of the Additional District Court (Fast Track Court), Dindigul, are the appellants herein. 2. O.S.No.99 of 2007 had been originally filed as O.S.No.18 of 2006 in the Subordinate Court, Dindigul and it was then transferred to the District Court, Dindigul, and renumbered as O.S.No.99 of 2007. The suit was decreed by judgment dated 12.01.2009. Challenging the said judgment, the defendants had filed the present first appeal. O.S.No.99 of 2007 (Additional District Court/Fast Track Court, Dindigul) O.S.No.18 of 2006 (Subordinate Court, Dindigul):- 3. This suit had been filed by R.Mahalingam, against 8 defendants. The 2nd to 8th defendants were represented by their power of attorney agent, the first defendant. The 1st to 4th defendants were the legal heir of S.K.M. Mohammed Sulthan Ravuthar and the 5th to 8th defendants were the legal heir of the T.A.S. Mohammed Ibrahim Ravuthar. The suit had been filed for specific performance of an agreement of sale deed dated 27.06.2005 executed by the 1st defendant on her behalf and on behalf of the 2nd to 8th defendants in her capacity as their power of attorney on receipt of balance sale consideration of Rs. 1,37,500/- and on failure, for the Court to execute the sale deed in favour of the plaintiff and also for costs of the suit. 4. The suit property was land and building in D.No.30/63-A, Katcheri Street, Dindigul Town, Ward No.1, Dindigul, measuring 315 sq. ft., including electricity connection and other appurtenants. According the plaintiff, the suit property was originally owned by the father of the 1st and 4th defendants, S.K.M. Mohammed Sulthan Ravuthar and by the father of the 5th to 8th defendants, T.A.S. Mohammed Ibrahim Ravuthar. They had purchased the property, by sale deed, dated 25.08.1970. S.K.M. Mohammed Sulthan Ravuthar died in 1997 and his wife Ayisha Gani died in 1999 leaving behind the 1st to 4th defendants as their legal heirs. T.A.S. Mohammed Ibrahim Ravuthar died in 1993 and leaving behind the 5th to 8th defendants as his legal heirs. Consequently, the suit property was owned by the 1st to 8th defendants. It had been further stated that the 2nd to 8th defendants had given a general power of attorney, dated 19.12.2001, with respect to the suit property. In the power of attorney, the first defendant was granted authority to sell the property. 5. Consequently, the suit property was owned by the 1st to 8th defendants. It had been further stated that the 2nd to 8th defendants had given a general power of attorney, dated 19.12.2001, with respect to the suit property. In the power of attorney, the first defendant was granted authority to sell the property. 5. The first defendant on the strength of the power of attorney, entered into an agreement of sale with the plaintiff on 27.06.2005 with respect to the suit property for total sale consideration of Rs. 2,62,500/-. An advance of Rs. 1,00,000/- was also received by the first defendant. Among the terms of the agreement one was that the sale deed should be executed within a period of six months. It had been stated that the first defendant had received a sum of Rs. 5,000/- by cash towards further advance on 30.06.2005 and a further advance of Rs. 10,000/- by cheque on 09.09.2005 and a further advance of Rs. 10,000/- by cash on 03.12.2005. These had been acknowledged by the first defendant in a note book. It had been stated that the first defendant had received a total advance of Rs. 1,25,000/- and the balance consideration was Rs. 1,37,500/-. It had been stated that the plaintiff was ready and willing to pay the balance consideration and obtain sale deed from the first defendant. 6. The plaintiff called upon the first defendant to execute the sale deed. The plaintiff had also purchased the required stamp papers for registration purpose on 15.09.2005. The plaintiff had issued a notice dated 22.12.2005 to the 1st defendant calling upon her to receive the balance consideration and execute the sale deed. The 1st defendant sent a reply on 24.12.2005. In the said reply, the additional advance of Rs. 25,000/-, which had been received on 30.06.2005, 09.09.2005 and 03.12.2005 in parts had not been mentioned. It was further mentioned that the 1st defendant was prepared to execute sale deed on 26.12.2005 and 27.12.2005. However, in the reply, there was no mention about the handing over of title deeds of the suit property and vacant possession of the suit property. It was stated that the plaintiff was waiting in the Sub-Registrar Officer on both the above dates. However, the 1st defendant did not come to the Sub-Registrar Officer. The plaintiff sent a further notice on 29.12.2005 to the Advocate of the 1st defendant. 7. It was stated that the plaintiff was waiting in the Sub-Registrar Officer on both the above dates. However, the 1st defendant did not come to the Sub-Registrar Officer. The plaintiff sent a further notice on 29.12.2005 to the Advocate of the 1st defendant. 7. The 1st defendant replied by reply notice dated 04.01.2006. Again, the first defendant had suppressed the receipt of further advance of Rs. 25,000/-. It was also stated that G. Jaffer Ahammed Basha, who was on the south of the suit property, was claiming right over a 5 feet length pathway and had issued a notice dated 31.12.2005. The plaintiff claimed that the defendant had an obligation to clear the dispute raised by G.Jaffer Ahammed Basha. It is under these circumstances, the suit had been filed seeking specific performance of the agreement, as stated. Along with the plaint, original sale agreement, dated 27.06.2005 and also the copies of the stamp papers for Rs. 21,600/- purchased on 15.09.2005 were also filed. 8. In the written statement filed by the first defendant on her behalf and on behalf of the other defendants, the agreement dated 27.06.2005 entered into by the 1st defendant on her behalf and on behalf of the other defendants had been admitted. The total sale consideration and the receipt of advance amount as averred in the plaint had also been admitted. However, receipt further advance of Rs. 25,000/- had been denied. The claim that plaintiff was waiting in the Sub-Registrar Officer on 26.12.2005 and 27.12.2005 was disputed. The further notice dated 31.12.2005 was also denied. It was stated that within a period of six months from 27.06.2005, the plaintiff had to pay the balance sale consideration of Rs. 1,62,500/- and only thereafter, the 1st defendant obliged to execute the sale deed. 9. It was further stated that the plaintiff was not ready and willing to pay the balance sale consideration. It was stated that if the plaintiff had paid the balance sale consideration, then, the 1st defendant would have executed the sale deed either on 26.12.2005 or on 27.12.2005. The 1st defendant claimed that she was present in the Dindigul Joint Registrar-II Office, from 10.00 am to 05.00 pm on 26.12.2005 and 27.12.2005. It was claimed that the plaintiff did not appear. The receipt of further advance amount of was denied except, the further advance of Rs. 10,000/- paid by cheque. The 1st defendant claimed that she was present in the Dindigul Joint Registrar-II Office, from 10.00 am to 05.00 pm on 26.12.2005 and 27.12.2005. It was claimed that the plaintiff did not appear. The receipt of further advance amount of was denied except, the further advance of Rs. 10,000/- paid by cheque. It was finally stated since the plaintiff was not ready and willing to perform his part of the agreement, the suit should be dismissed. 10. 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 plaintiff was entitled to the relief of specific performance? (b) To what other reliefs, the plaintiff is entitled to?" 11. During trial, the plaintiff examined himself as PW-1 and the first defendant examined herself as DW-1. The plaintiff marked Ex-A1 to Ex-A10. Ex- A1 is the agreement of sale deed dated 27.06.2005. Ex-A2 is the Note book in which the defendant had acknowledged receipt of further advance of sale consideration. Ex-A3, dated 15.09.2005 is the copy of the stamp papers purchased by the plaintiff towards registration of the sale deed. Ex-A4 dated 14.09.2005 is the challan of State of Bank of India. Ex-A5 is the notice issued to the first defendant, dated 22.12.2005 and Ex-A6 is the acknowledgment card for receipt of the same. Ex-A7 is the notice issued to the plaintiff, dated 24.12.2005. Ex-A8, Ex-A9 and Ex-A10 are the protest petition given by the plaintiff to the Dindigul-II Sub Registrar, and the challan for payment of fees for the same and reply given by the Sub Registrar, dated 27.12.2005. Ex-A11 is the document in which the plaintiff had signed as a witness and dated 26.12.2005. Ex-A12 is the reply notice issued by the plaintiff, dated 29.12.2005. Ex-A14 is the reply given on behalf of the first defendant. Ex-A15 is the statement of accounts with respect to the Bank account of the plaintiff in Catholic Syrian Bank Limited, Dindigul. Ex-A18 is a notice issued by Jaffer Ahamed Batcha, dated 31.12.2005. The defendants did not mark any document. 12. On the basis of oral and documentary evidence, the trial Court thought it fit to decree the suit and granted the relief of specific performance, by judgment dated 12.01.2009. Ex-A18 is a notice issued by Jaffer Ahamed Batcha, dated 31.12.2005. The defendants did not mark any document. 12. On the basis of oral and documentary evidence, the trial Court thought it fit to decree the suit and granted the relief of specific performance, by judgment dated 12.01.2009. During the recording the evidence, it had been evident that both the plaintiff and the defendants had agreed to pay and receive the balance sale consideration and execute the sale agreement. Consequently, the learned Judge had no other option, but to decree the suit. Challenging that judgment, the defendants had filed the present appeal. A.S.No.243 of 2009:- 13. As stated, the defendants had filed the present first appeal. 14. The parties shall be referred as plaintiff and defendants. The defendants are the appellants and the plaintiff is the respondent. 15. The points for determination in this appeal are as follows: "(a) Whether the plaintiff is entitled to the relief of specific performance of the agreement? (b) Whether the plaintiff was always ready and willing to perform his part of the agreement? (c) Whether the judgment and decree of the trial Court is to be interfered with?" 16. The plaintiff had entered into an agreement of sale, dated 27.06.2005, with the first defendant acting on her behalf and on behalf of other defendants to purchase the suit schedule property bearing D.No.30/63- A, Katcheri Street, Dindigul Town, Ward No.1, Dindigul. The total sale consideration had been fixed at Rs. 2,62,500/-. The plaintiff had paid the advance of Rs. 1,00,000/-. The plaintiff paid further advances of Rs. 5,000/- by cash on 30.06.2005, Rs. 10,000/- by cheque on 09.09.2005 and Rs. 10,000/- by cash on 03.12.2005. The plaintiff had paid a total advance of Rs. 1,25,000/- and the balance sale consideration was Rs. 1,37,500/-. The original agreement had been produced as Ex-A1. It had been signed by the plaintiff and by the first defendant acting her behalf and on behalf of other defendants as their power agent. It had been signed on each page. 17. The evidence reveals that both the parties have consented to execute the sale deed. Ex-A15 is the statement of accounts from 01.12.2005 and 17.01.2006 of the plaintiff for Account No.2001294 in Catholic Syrian Bank Limited, Dindigul. It reflects that there was a balance of Rs. 1,60,959/-. This proves that the plaintiff had available the balance sale consideration. 17. The evidence reveals that both the parties have consented to execute the sale deed. Ex-A15 is the statement of accounts from 01.12.2005 and 17.01.2006 of the plaintiff for Account No.2001294 in Catholic Syrian Bank Limited, Dindigul. It reflects that there was a balance of Rs. 1,60,959/-. This proves that the plaintiff had available the balance sale consideration. Even otherwise, the evidence is clear that both the parties have agreed to perform their part of obligation. 18. The plaintiff filed his proof affidavit, which was taken on record on 22.07.2008. On 05.01.2009, the witness was called and his evidence recorded by the Additional District Judge (Fast Track Court), Dindigul. The learned Judge had signed the deposition on 09.01.2009. 19. The evidence of PW-1 was as follows: xxx xxx xxx 20. The evidence of DW-1 during trial is as follows: xxx xxx xxx 21. A reading of the evidence recorded shows that both the plaintiff and the defendants had agreed to execute the sale deed. The evidence extracted above clearly established that the first defendant had agreed to receive the balance sale consideration and execute the sale deed. 22. In view of these facts, it is held that the plaintiff was ready and willing to perform his part of the agreement. It is further held that the plaintiff is entitled to a decree for specific performance. I find no reason to interfere with the judgment 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.