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2020 DIGILAW 2444 (MAD)

V. Sriganesh v. S. Gopal

2020-12-21

C.V.KARTHIKEYAN

body2020
JUDGMENT : (Prayer: This Civil Suit filed under Order IV Rule 1 Original Side Rules read with Order VII Rule 1 to 6 of the Code of Civil Procedure, praying for a Judgment and Decree against the Defendant: (a). Granting specific performance of the oral agreement of the sale entered into between the Plaintiff and defendants in 3rd week of July-2019, confirmed in the agreement dated 29.07.2019, by directing the defendants to execute and register the sale deed by receiving the balance sale consideration of Rs.18 lakhs and handover possession of the suit schedule property; or in the alternative, (b). Direct the defendants to refund the sum of Rs.1,20,00,000/- with interest at 24% per annum 1,02,00,000/- from 29.07.2019 till the date of realization. (c). For costs of the suit.) 1. The Suit had been filed by the Plaintiff, seeking a judgment and decree against the Defendants for specific performance of an oral agreement of sale entered into between the Plaintiff and Defendants in the 3rd week of July 2019 and later confirmed by an agreement dated 29.07.2019 by directing the Defendants to execute and register a sale deed by receiving the balance sale consideration of Rs.18,00,000/- and handover the possession of the suit property or in the alternate, for a direction against the Defendants to refund a sum of Rs.1,20,00,000/- together with interest at 24% per annum from 29.07.2019 till the date of realization and also for costs of the Suit. 2. It had been stated in the plaint that the Suit falls under the definition of Commercial Dispute under Sections 2(1)(c)(vii) of the Commercial Courts Act, 2015. The suit property is land and building in Plot No.10, Door No.1/10, Sai Illam, Abirami Nagar 2nd Street, Virugambakkam, Chennai – 600 092, measuring about 1204 Sq.Ft. 3. There had been an agreement between the Plaintiff and the Defendants to purchase and sell the property for a total sale consideration of Rs.1,20,00,000/- in the 3rd week of July -2019. The defendants informed the Plaintiff that the property had been mortgaged to IDFC First Bank Ltd., and that the account had become a Non Performing Account. The bank had also initiated proceedings under the SARFAESI Act. A Tripartite Agreement was therefore entered into with the bank also participating to secure the rights of the Plaintiff and to pay a One Time Settlement to the bank to settle the loan account. The bank had also initiated proceedings under the SARFAESI Act. A Tripartite Agreement was therefore entered into with the bank also participating to secure the rights of the Plaintiff and to pay a One Time Settlement to the bank to settle the loan account. It was also stated that the property had been leased to one Hamsa Virdhan in February 2019 and the Defendants had received a sum of Rs.27,00,000/-. The Plaintiff was also to settle the said amount. The One Time Settlement with the bank was arrived at Rs.75,56,000/-. The Plaintiff transferred the said amount by Bank transfer on 29.07.2019. On receipt of the money, the bank also addressed a letter dated 29.07.2019, which was duly signed by the Bank Officials and counter signed by the Defendants, confirming that the loan had been settled and that the documents would be released in the presence of the Plaintiff. The original documents were with the bank. The Plaintiff also paid the lessee Hamsa Virdhan, the sum of Rs.27,00,000/-. The Plaintiff had therefore, paid a total consideration of Rs.1,02,00,000/-. The balance was Rs.18,00,000/-. An Agreement of Sale was entered into on 29.07.2019. It was stated that the Plaintiff, also with the permission of the Defendants, put up marble polishing works and relaying of certain tiles and additional grill gates in the property. The Plaintiff claimed that he was always willing to pay the balance sale consideration. 4. The Defendants had issued a notice dated 06.08.2019 claiming that the friend of the Plaintiff and his wife had intended purchase the property and that several signatures were obtained in blank sheets. It was also stated that the said friend, Peer Mohamed, had negotiated with the lessee for return of the lease amount. The Plaintiff also issued a notice on 05.09.2019. It was claimed that the Defendants had avoided performance with the contract. It was under these circumstances, that the Suit had been filed seeking specific performance of the agreement or in the alternate for a direction to refund a sum of Rs.1,20,00,000/- together with interest and also for costs. 5. The Plaintiff had also deposited the balance sale consideration into the Court and a note to that extent has also been put up by the Registry. 6. 5. The Plaintiff had also deposited the balance sale consideration into the Court and a note to that extent has also been put up by the Registry. 6. Summons to the Defendants had been directed, but since the Defendants apparently having taken a decision not to participate in the judicial proceeding, did not respond to the summons. They were set ex-parte on 22.11.2019. It is also evident that a counsel, Mr.B.Gurumurthy has been watching the proceedings. It is evident that the Defendants had instructed him to not participate in the judicial hearings. After the Suit was reserved for judgment on 10.12.2020 (Thursday), on 14.12.2020 (Monday) a Memo had been filed in the Registry signed by some other counsel claiming that a petition had been filed on 29.01.2020 to set aside the exparte order, but that the Registry had not numbered the said petition ‘for the best reasons known to them’. Shifting the blame on the Registry will not help the Defendants and it is clear they are not interested in participating in the judicial proceedings. Rather, they calculate that if an exparte decree is passed, then they can claim ignorance and innocence and seek indulgence. The Memo is rejected. It is malafide in nature. 7. The Plaintiff was then invited to adduce evidence. Accordingly, the Plaintiff, V.Sriganesh, was examined as PW-1 and he also marked Exs.P1 to P10. Ex-P1 dated 29.07.2019 was the a letter of IDFC First Bank addressed to the Plaintiff, in which the Authorized Officer stated that they had received a sum of Rs.75,56,000/- against the loan obtained by S.Gopal, the 1st Defendant herein in Account No.1049469 as a One Time Settlement on 29.07.2019. It was also stated that the original documents would be handed over in the presence of the Plaintiff within the next 15 working days. It was also stated that there was no overdue pending on the loan account and that the loan account would be closed within 3 working days. Ex-P2 was the Statement of the Bank Account of the Plaintiff reflecting the transfer of the said amount to the account of the bank. Ex-P3 was the Agreement of Sale dated 29.07.2019 entered into between the Plaintiff and the Defendants. It is to be mentioned that this was not registered only because the original documents were available with the Bank and could not be produced before the Registering Authorities for perusal. Ex-P3 was the Agreement of Sale dated 29.07.2019 entered into between the Plaintiff and the Defendants. It is to be mentioned that this was not registered only because the original documents were available with the Bank and could not be produced before the Registering Authorities for perusal. Ex-P4 was the Lease Agreement dated 25.02.2019 entered into by the 1st Defendant with R.Hamsa Virdhan, with respect to the property and at the last page there was an endorsement that the lessee had received a Demand Draft bearing No.210163, for a sum of Rs.27,00,000/- dated 25.07.2019 for cancellation of the lease agreement and had agreed to handover all the keys of the said premises. 8. As pointed out this settlement with the lessee was negotiated by the friend of the Plaintiff, Peer Mohamed who had actually paid the amount and thereafter, the Plaintiff had repaid the amount to Peer Mohamed. 9. Ex-P5 was the legal notice issued by 1st Defendant dated 06.08.2019. Ex-P6 was the reply notice of the Plaintiff dated 04.09.2019. Ex-P8 was the reply notice by Peer Mohamed dated 19.09.2020. Ex-P9 was the rejoinder notice issued by the Defendants to the reply notice of the Peer Mohamed dated 07.10.2019. 10. The Plaintiff also examined as PW-2, Peer Mohamed. In his evidence, Peer Mohamed stated that he was present when the agreement was entered into between the Plaintiff and Defendants. He also stated that the Plaintiff had transferred the loan amount to the bank towards One Time Settlement of the existing loan. He also stated that the sale agreement could not be registered, since the parent documents were available only with the bank. He also stated that the tenant was settled by payment of an amount of Rs.27,00,000/-. He also stated about the notices exchanged between the parties. He specifically stated that he had never agreed to purchase the property. 11. In view of the evidence recorded above, it is clear that the Plaintiff has not only settled the existing loan amount of the Defendants but also paid the necessary lease amount to the lessee to obtain vacant possession. To express readiness and willingness, the Plaintiff has also deposited the balance sale consideration before the Court, as directed by the Court by order dated 25.10.2019 in A.No.8120 of 2019. The Plaintiff has thus made out a case for Specific Performance. 12. To express readiness and willingness, the Plaintiff has also deposited the balance sale consideration before the Court, as directed by the Court by order dated 25.10.2019 in A.No.8120 of 2019. The Plaintiff has thus made out a case for Specific Performance. 12. A direction is issued against the Defendants to specifically perform the agreement dated 29.07.2019 and come forward to execute the sale deed, failing which, the Registry of this Court should register the sale deed in favour of the Plaintiff. 13. The time granted to the Defendants to come forward to execute the sale deed is three months from when the decree is made ready by the Registry of this Court. On failure of the Defendants to so execute the sale deed, the Registry is directed to execute the sale deed in favour of the Plaintiff in accordance with the procedures as laid down. 14. The Suit is decreed, with respect to the relief sought for Specific Performance, with costs. 15. Insofar as the costs are concerned, in view of the fact that the Defendants have shown scant regarding for the sanctity of the judicial proceedings by deliberately avoiding appearance, I hold that the plaintiff is entitled to costs as determined under the amended Section 35 of the Code of Civil Procedure as applicable to the Commercial Division of the High Court. 16. Registry is delegated by the Court to determine the costs as per the Bill of Costs submitted by the plaintiff in accordance with Section 35 of C.P.C., as amended by the Commercial Courts Act, 2015. The plaintiff is specifically entitled to the fees and expenses of the witness, the legal fees and expenses incurred and for any other expenses incurred in connection with the judicial proceedings and also for recovery of the actual Court fees paid into Court.