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2020 DIGILAW 352 (MAD)

GOPALAKRISHNAN v. K. LOGANATHAN

2020-02-17

S.M.SUBRAMANIAM

body2020
JUDGMENT 1. The Appeal Suit is directed against the Judgement and Decree dated 18.02.2014 passed in O.S.No.661 of 2011. The plaintiff is the appellant in the appeal suit, who instituted a suit for specific performance, stating that the defendant is the absolute owner of the suit mentioned property and he acquired right through the sale deed dated 31.01.2007. 2.The plaintiff and the defendant had entered into a sale agreement regarding the sale of the suit mentioned property for a total sale consideration of Rs.20,00,000/-. It is contended by the plaintiff that he had paid an advance amount of Rs.1,00,000/- on the date of agreement and further agreed to settle the balance sale consideration, within a period of 30 days. Thereafter, the defendant has to execute a sale deed in favour of the plaintiff. 3.The plaintiff states that he is always ready and willing to perform his part of the contract, as per the terms and conditions of the suit sale agreement dated 09.06.2010. The plaintiff approached the defendant on many occasions and the defendant evaded to perform his part of the contract and therefore, the plaintiff was constrained to file a suit for specific performance by issuing a notice. 4.The defendant filed a written statement denying the averments as well as the allegations set out in the plaint. The defendant admitted the fact regarding the suit sale agreement, which was entered into between the plaintiff and the defendant on 09.06.2010, with reference to the suit mentioned property. The contention of the defendant is that the plaintiff was not ready and willing to perform his part of the contract, as per the suit sale agreement, and in fact, the time fixed for completion of sale was 30 days and the plaintiff was not ready to settle the balance sale consideration of Rs.19,00,000/-, within 30 days. The defendant further contended that the plaintiff had not expressed his readiness and willingness, so as to execute the sale deed and also regarding the payment of balance sale consideration. 5.The Trial Court considered the pleadings and framed the issues, as to whether the plaintiff is entitled for the decree of specific performance as prayed for and to what other relief, if any. The plaintiff was examined as PWl and he examined three other witnesses PW2 to PW5 and eight documents were marked as Ex.Al to Ex.A8. 5.The Trial Court considered the pleadings and framed the issues, as to whether the plaintiff is entitled for the decree of specific performance as prayed for and to what other relief, if any. The plaintiff was examined as PWl and he examined three other witnesses PW2 to PW5 and eight documents were marked as Ex.Al to Ex.A8. On the side of the defendant, he was examined as DW1 and he examined another witness DW2 and filed one document as Ex.Bl. 6.With reference to the issues, the Trial Court considered the admitted facts regarding the execution of suit sale agreement and payment of advance and proceeded further by stating that the plaintiff could not be able to establish his readiness and willingness in this regard. The Trial Court made a finding, which is extracted hereunder. 7. The perusal of the above finding, it is unambiguous that the plaintiff could not be able to establish that he was possessing sufficient money to settle the balance sale consideration in favour of the defendant. The bank account during the relevant point of time reveals that he was possessing a sum of Rs.800/- alone. With reference to the other deposits, the Trial Court found that those deposits were made available during the year 2013 and as per the suit sale agreement, the time granted to settle the balance was 30 days from the date of agreement. The Trial Court considered the documents as well as the evidences and arrived a conclusion that the plaintiff had not proved his readiness and willingness and therefore, he is not entitled for the relief of specific performance. 8.This Court is of the considered opinion, the relief of specific performance being discretionary, a person who instituted a suit for specific performance should establish that he had sufficient means to settle the entire sale consideration, so as to arrive a conclusion that he was ready and willing to perform his part of the contract. In the event of not establishing the fact that the plaintiff was not possessing adequate funds for the purpose of settling the sale consideration, then the Trial Court is right in arriving a conclusion that the plaintiff is not entitled for the relief of specific performance. In the event of not establishing the fact that the plaintiff was not possessing adequate funds for the purpose of settling the sale consideration, then the Trial Court is right in arriving a conclusion that the plaintiff is not entitled for the relief of specific performance. 9.The relief, being a discretionary one, the Court has to find out the genuineness of the transactions and the intention and conduct of the parties while performing their respective part of the contract. It is not as if a person can enter into a sale agreement without having sufficient means to pay the sale consideration and get the relief of specific performance at the hands of Civil Court. Such an idea can never be encouraged by the Courts and a person who is entitled to purchased a property should be genuine in performing his part of the contract, to be considered for the grant of relief or otherwise. 10.In the present case on hand, the plaintiff could not establish that he is possessing sufficient money to settle the amounts in favour of the defendant and the bank statement also shows that the plaintiff was possessing only Rs.800/- in his account. The other documents produced by the plaintiff reveals that the deposits were of the year 2013 and as per the suit sale agreement, the time granted to settle the balance was 30 days from the date of agreement, i.e., 09.06.2010. 11. This being the factum established before the Trial Court, there is no perversity or infirmity as such and the conclusion arrived by the Trial Court in the Judgement and Decree is to be confirmed. 12.Further, the Trial Court has not considered the grant of alternate relief of refund of advance. Though there is no prayer for alternate relief in the plaint, this Court cannot deny the alternate relief, in view of the fact that, in the event of not granting the alternate relief, the appellant/plaintiff would be prejudiced. This apart, it will be an unjust encroachment for the respondent/defendant. Under these circumstances, this Court is bound to consider the alternate relief in favour of the appellant. The principles to be followed in the matter of grant of alternate relief in a suit for specific performance has been considered by this Court in A.S.No.275 of 2013, dated 07.02.2020, wherein it has been held as follows: 16. Under these circumstances, this Court is bound to consider the alternate relief in favour of the appellant. The principles to be followed in the matter of grant of alternate relief in a suit for specific performance has been considered by this Court in A.S.No.275 of 2013, dated 07.02.2020, wherein it has been held as follows: 16. The alternate relief of return of advance in a suit for specific performance is a consequential relief and therefore, the same need not be construed as a different relief. Once the relief of specific performance is rejected, then the refund of advance amount shall be consequential as no parties to the suit can be allowed to have an unjust enrichment. In other words, the dismissal of the relief of suit for specific performance, cannot stand in the way of granting the alternate relief to refund the advance amount with reasonable interest. The question arises in the absence of any such relief sought for in the plaint, whether the Court can grant the relief or not. This Court is of the considered opinion that the alternate relief to refund the advance amount is to be construed as a general relief, as such a relief is consequential to the rejection of the relief of specific performance. In the event of not considering the alternate relief under the umbrella of general relief, then one of the party to the civil suit would be prejudiced and the other party will get an unjust enrichment. 17. Keeping in mind the prejudice likely to be caused to one of the parties in the event of not granting the alternate relief of refund of advance amount, this Court has to adopt a pragmatic approach and constructive interpretation with reference to the Code of Civil Procedure. 18. Order VII, Rule 7 of the Code of Civil Procedure enumerates that ?every Plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement?. 19. And the same rule shall apply to any relief claimed by the defendant in his written statement?. 19. The spirit of Order VII, Rule 7 of the Code of Civil Procedure is to be considered in the general format of the plaint. In the relief column, the plaintiffs used to pray for ?grant such other relief or reliefs as the Hon-ble Court may deem fit and proper in the circumstances and thus render justice?. Such a relief is to be construed as a general relief sought for in the plaint, the facts and circumstances and the equity to be considered in the interest of justice and the general relief is to be molded, so as to grant the alternate relief of refund of advance amount in the event of rejecting the relief of specific performance by the Courts. 20. Order XLI, Rule 33 of the Code of Civil Procedure enumerates that ?the Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection?. Therefore, the Trial Court granted the general relief by molding the prayer for grant of the relief of refund of advance amount with interest in the event of rejection of the relief of specific performance and the Appellate Court by invoking Order XLI, Rule 33 also grant the similar relief in respect of the appeals preferred against the judgment and decree of the Trial Court. In either of the circumstances, both the Trial Court as well as the Appellate Court are empowered to grant the consequential relief of return of advance amount in the event of rejection of the relief of specific performance on the basis of the principles of equity. In either of the circumstances, both the Trial Court as well as the Appellate Court are empowered to grant the consequential relief of return of advance amount in the event of rejection of the relief of specific performance on the basis of the principles of equity. Therefore, there is no impediment either for the Trial Court or for the Appellate Court to grant the alternate relief of refund of advance amount to either of the parties to the civil suit or an appeal in the event of rejecting the relief of specific performance in a suit or in an appeal suit. 13.This being the factum, the following orders are passed: (1) The Judgement and Decree dated 18.02.2014 passed in O.S.No.661 of 2011 is confirmed. (2) The respondent/defendant is directed to refund the admitted advance amount of Rs.1,00,000/- along with interest at the rate of 10% from the date of plaint till the date of decree and thereafter, 6% till the date of realisation and the said amount is directed to be settled in favour of the appellant/plaintiff, within a period of 3 months from the date of receipt of a copy of this Judgement. 14. In the result, the appeal suit in A.S.No.672 of 2014 stands allowed in part. No costs. Consequently, connected miscellaneous petition is also closed.