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2020 DIGILAW 382 (MAD)

S. Lokeshwaran v. S. Veluchamy

2020-02-20

N.SATHISH KUMAR

body2020
JUDGMENT : N. Sathish Kumar, J. 1. Aggrieved over the Decree and Judgment of the Trial Court, decreeing the Suit for Specific Performance, the present Appeal came to be filed. 2. The brief facts leading to the filing of this Appeal are as follows: 2.1. The Suit property belong to Karaikudi Nattar Samudhayam people and the First Defendant is one of the members of the Karaikudi Nattar Samudhayam. He was also Representative of the Karaikudi Nattar Nala Urimai Sangam. The First Defendant was in possession and enjoyment of the Suit property. His possession was recognised by the Karaikudi Nattar Sangam. The First Defendant representing the said Sangam entered/an Agreement with the Plaintiff to sell the Suit property for a Total Sale consideration of Rs. 16 Lakhs. A sum of Rs. 1 Lakh was paid by the Plaintiff on 21.3.2005, by way of Demand Draft. Subsequently, another five lakh rupees paid to the Sangam on 3.10.2005. 2.2. In pursuant to the same, the Sale Agreement was executed in favour of the Plaintiff on 10.3.2006, agreeing to sell the Suit property. On the date of Agreement, another sum of Rs. 1 Lakh was paid. Hence, the Plaintiff has paid Rs. 7 Lakhs towards the Sale consideration. The time was not an essence of Contract. As the time was not made essence of Contract, the Plaintiff was patiently waiting for the Defendant to complete the Sale Deed. Though, the Power of Attorney was executed in favour of the wife of the Plaintiff on 6.6.2006, the Plaintiff was desiring to purchase the property based on the Sale Agreement. The Plaintiff was always ready and willing to perform his part of the Contract, but the Defendant was evading. When the Plaintiff being the proposed party applied for encumbrance, he came to know that the property was sold on 16.5.2006. Hence, his contention is that execution of Power of Attorney by Second and Third Defendants in favour of the Fifth & Sixth Defendants is legally unlawful. The Sale Deed executed in favour of the Fifth & Sixth Defendants is also not binding on them. The Plaintiff was always ready and willing to perform his part of the Contract. 2.3. Originally, relief of Specific Performance was sought. Thereafter, the relief was amended in the Appeal stage seeking alternative remedy for return of Advance amount with Interest at the rate of 12%. The Plaintiff was always ready and willing to perform his part of the Contract. 2.3. Originally, relief of Specific Performance was sought. Thereafter, the relief was amended in the Appeal stage seeking alternative remedy for return of Advance amount with Interest at the rate of 12%. The First Defendant filed a Statement, denying all the allegations that one PR. Subramaniyan @ Subbu was representing the Sangam. It is his contention that only the Second Defendant RM. Somasundaram is the representative of the First Defendant Sangam and has been the President of the Sangam for 10 years. The First Defendant has no right to represent the Sangam. The Second Defendant being the President of the Sangam, had no individual right in the Suit property. The First Defendant PR. Subramaniyan @ Subbu is not the necessary party. 2.4. The value of the Suit property is Rs. 1. Crore. The property belong to. Karaikudi Nattar. Sangam. Originally, in the Auction conducted by the Sangam, the Plaintiff agreed to purchase a property for Rs. 17 Lakhs and agreed to pay the remaining Sale consideration within a week. However, he has not paid the amount. Thereafter, he paid Rs. 5 Lakhs on 3.10.2005 and agreed to pay the remaining Sale consideration the next day. The Cheque issued by the Plaintiff was also dishonoured. As the remaining Sale consideration is not paid, the Advance amount also forfeited. The Plaintiff has no capacity to mobilise the remaining funds. On expressing his inability to mobilise funds, the Second & Third Defendants took the property in Auction. Thereafter, the property had been sold to the Fifth & Sixth Defendants by the Fourth Defendant, who is the Power of Attorney of the Defendants 2 & 3. 2.5. The Defendants 5 & 6 filed a Written Statement stating that the Plaintiff was a successful bidder in the Auction conducted by the Sangam and agreed to purchase the property for Rs. 17 Lakhs. Thereafter, he has not paid the amount within the time. Only thereafter, re-auction was conducted by the Sangam and the Defendants 2 & 3 were successful bidders. They purchased the property and they gave power to the Fourth Defendant and the Fourth Defendant sold the property for valuable consideration and the Defendants 5 & 6 have purchased the property for lawful consideration. Hence, prays for dismissal of the Suit. 2.6. Only thereafter, re-auction was conducted by the Sangam and the Defendants 2 & 3 were successful bidders. They purchased the property and they gave power to the Fourth Defendant and the Fourth Defendant sold the property for valuable consideration and the Defendants 5 & 6 have purchased the property for lawful consideration. Hence, prays for dismissal of the Suit. 2.6. The Trial Court framed the following three issues for consideration: "(i) Whether the Plaintiff is entitled to seek execution of Sale Deed from the First Defendant for the Suit properties in terms of the alleged Sale Agreement dated 10.3.2006? (ii) Whether the Suit is bad for adding unnecessary parties? (iii) To what other relief, the Plaintiff is entitled?" 2.7. On the side of the Plaintiff, PWs. 1 & 2 were examined and Exs. A1 to A6 were marked. On the side of the Defendants, DWs. 1 & 2 were examined and Exs. B1 & B2 were marked. 2.8. On the basis of evidence and materials, the Trial Court had decreed the Suit as against which, the present Appeal has been filed. 3. Learned Counsel for the Appellants vehemently contended that the Agreement sought to be enforced is executed by the First Defendant as only Contract between two individuals. The same cannot be enforced against the community people. The members of the community by birth became Members of the Sangam. Samuthayams and Sangams are different entities and no Contract could be enforced against Samuthayams. A Sangam ought to have been represented by the Office-bearers, whereas the First Defendant is not represented by Office-bearers. The Sale Agreement is also executed in individual capacity. 4. Further, it is his contention that no relief whatsoever is sought against the subsequent purchaser who purchased the property for valuable consideration. Further, even to enforce the alleged Contract, readiness and willingness has not been established. The alleged Advance has been paid in different capacity not in pursuant to the Agreement. Hence, submitted that the Trial Court has not considered these aspects and simply decreed the Suit. Hence, prays for allowing this Appeal. In support of his contention, he also relied upon a Judgment reported in Chinna Vanan v. Alamelu and others, 1975 (1) MLJ 263 . 5. Learned Counsel for the Respondents submitted that though the Agreement was signed by the individual, both sides admit that the property belong to the Sangam. Hence, prays for allowing this Appeal. In support of his contention, he also relied upon a Judgment reported in Chinna Vanan v. Alamelu and others, 1975 (1) MLJ 263 . 5. Learned Counsel for the Respondents submitted that though the Agreement was signed by the individual, both sides admit that the property belong to the Sangam. DW 1 also admitted the same in his evidence. As per Ex. A2, possession was handed over to the Sangam. Ex. A4 also clearly shows that Advance amount of Rs. 7 Lakhs was paid. Kariakudi Society and Samuthayam are one and the same. Admittedly, the Plaintiff was in possession of the property, pursuant to the Contract executed on behalf of the Sangam. Without any evidence to show that the Contract has been terminated and the possession was restored, it cannot be said that the defendants are bona fide purchasers. It is his contention that Defendants 2 & 3, who are said to have been successful bidders have executed the Sale Deed through their Power Agent. All these facts clearly show that Defendants 5 & 6 are not bona fide purchasers and the Plaintiff was all along ready and willing to perform his Contract. Hence, it is his contention that the Trial Court has clearly analysed the entire facts and granted the Decree. Therefore, he prays for dismissal of this Appeal. 6. In support of his submissions, learned Counsel placed much emphasis on the following Judgments: (i) Sardul Singh v. Pritam Singh and others, 1999 (3) LW 466; (ii) R.K. Mohammed Ubaidullah and others v. Hajee C. Abdul Wahab, 2000 (6) SCC 402 ; and (iii) K. Shanmugam and another v. C. Samiappan and others, 2013 (6) CTC 28 : 2013 (7) MLJ 670 . 7. In the light of the above submission, now the points arising for consideration in this Appeal are as follows: "(i) Whether the Sale Agreement, dated 10.3.2006 is entered on behalf of the Sangam namely the First Defendant herein? (ii) Whether the Contract entered between two individuals could be enforced as against the First Defendant and community people? If it is so, whether the Plaintiff was ready and willing to perform his part of Contract? (iii) To what other relief the parties are entitled?" 8. The Suit has been filed to enforce the Sale Agreement, dated 10.3.2006, said to have been executed by the First Defendant. If it is so, whether the Plaintiff was ready and willing to perform his part of Contract? (iii) To what other relief the parties are entitled?" 8. The Suit has been filed to enforce the Sale Agreement, dated 10.3.2006, said to have been executed by the First Defendant. It is the case of the Plaintiff that the First Defendant a representative of the Karaikudi Nattar Sangam agreed to sell the property for a Total Sale consideration of Rs. 16 Lakhs. Accordingly, the Plaintiff has paid Rs. 1 Lakh by way of Demand Draft, dated 21.3.2005 and subsequently paid another sum of Rs. 5 Lakhs to the First Defendant-Sangam on 3.10.2005. Further, on 10.3.2006, the Suit Agreement came to be executed by the First Defendant, represented by Subramaniyan @ Subbu. The Plaintiff was always ready and willing to perform the Contract. When he applied EC on 16.8.2008, he came to know that the property was already sold to the Fifth & Sixth Defendants on 16.5.2006. 9. It is the further contention of the Plaintiff that though the Power of Attorney was executed in respect of the Suit property in favour of his wife by the Defendant on 6.6.2006, the Plaintiff was desiring to purchase the property as per the Agreement. Hence, it is his contention that the Sale Deed in favour of Defendants 5 & 6 is not valid and he was always ready and willing to perform the part of Contract. 10. The Defendants took a stand that P.R. Subramaniyan, the First Defendant representative has no right to execute any sale. Only the Second Defendant was elected as President of the Sangam. According to them, as per the Resolution of the Sangam, the property was put in Auction. The Plaintiff was a successful bidder to purchase the property for a total Sale consideration of Rs. 16 Lakhs and the Plaintiff has paid Rs. 1 Lakh by way of Demand Draft and agreed to pay the remaining Sale consideration 'within one week. However, he did not pay that. Thereafter, he paid Rs. 5 Lakhs on 3.10.2005 and agreed to pay the remaining Sale consideration the next day. It is; also agreed that if the Plaintiff fails to pay the remaining Sale consideration, he has to forfeit Rs. 7 Lakhs paid as advance. Thereafter, the Plaintiff did not pay the amount. However, he did not pay that. Thereafter, he paid Rs. 5 Lakhs on 3.10.2005 and agreed to pay the remaining Sale consideration the next day. It is; also agreed that if the Plaintiff fails to pay the remaining Sale consideration, he has to forfeit Rs. 7 Lakhs paid as advance. Thereafter, the Plaintiff did not pay the amount. Hence, it is their contention that the Agreement executed by the First Defendant in his individual capacity is not binding. It is the further contention of the Defendants that the Plaintiff has failed to mobilise funds. The property was further auctioned and the Second and Third Defendants became successful bidders and they executed the Power of Attorney in favour of the Fourth Defendant and he sold it to the Fifth & Sixth Defendants. 11. Learned Counsel for the Appellants would submit that the Agreement sought to be enforced is executed by one P.R. Subramaniyan, who has no connection with the property of the community. Such Agreement cannot be enforced as against the community. 12. From both sides pleadings and particularly the evidences, it is not in dispute that the subject matter of the Suit property belong to Karaikudi Nattar Community in Sivagangai District. Ex. A4, the Suit Agreement shows as if one P.R. Subramanian executed the Sale Agreement on 10.3.2006 for sale of the Suit property for a sum of Rs. 16 Lakhs. The Agreement has been entered in individual capacity. There is no whisper whatsoever with regard to the earlier payments said to have been paid to the Sangam. The Agreement proceeded as if the earlier payment of Rs. 7 Lakhs was received in individual capacity by P.R. Subramaniyan. However, the Agreement indicates that in respect of the Suit property, Power of Attorney was already executed in favour of the Plaintiffs wife one Saraswathi on 6.6.2006, The Agreement; further stipulates that the remaining Sale consideration shall be paid to the Power of Attorney and property can be registered in the name of the Plaintiff. 13. The Agreement and pleadings of both sides and evidence when carefully perused shows that though the Agreement was entered in individual capacity, the pleadings of the Defendants clearly indicate that the property belong to the community. 13. The Agreement and pleadings of both sides and evidence when carefully perused shows that though the Agreement was entered in individual capacity, the pleadings of the Defendants clearly indicate that the property belong to the community. Both sides have clearly admitted that the property belong to the community people known as Karaikudi Nattar Nala Urimai Sangam and the Second Defendant is said to be the President of the Sangam and the Third Defendant is the Secretary of the Sangam. But, they are not a party to the Agreement. But in their defence they have not disputed the Agreement in toto. Their only contention is that the Agreement was executed by the member, who have no authority to sell the property. 14. Whereas, it is the contention of the Plaintiff that the First Defendant Sangam agreed to sell the property for a total Sale consideration of Rs. 16 Lakhs and received Rs. 1 Lakh on 21.3.2005 and another 5 Lakh rupees was paid to the Sangam, directly on 3.10.2005. Whereas, it is the categorical case of the Defendants that in the Public Auction conducted by the Sangam to deal with the property, the Plaintiff has become a successful bidder and he participated in the Auction by depositing one Lakh rupees on 21.3.2005. Thereafter, did not pay the Sale consideration within a week. However, he paid Rs. 5 Lakhs on 3.10.2005 and agreed to pay the remaining Sale consideration the next day. He failed to pay the remaining Sale consideration. Hence, the property was again put in Auction and the Second & Third Defendants became successful bidders and they in turn executed a Sale Agreement in favour of the Fifth & Sixth Defendants. 15. From the pleadings and evidence it could be safely concluded that Ex. A4 was executed only on behalf of the Sangam. This conclusion is fortified by Ex. A1, which shows that a Demand Draft was paid to the Sangam on 21.3.2005 and Ex. A2, is also admitted by the Defendants, which was issued by the Sangam consisting of 13 members signed, wherein, the referred resolutions are dated 5.3.2005 and 20.4.2005 and have given no objection to the Plaintiff to deal with the property. This Ex. A2 was given on 1.5.2005, wherein the Second Defendant-President and other Members of the Sangam has also signed. Ex. A3 shows that a further sum of Rs. This Ex. A2 was given on 1.5.2005, wherein the Second Defendant-President and other Members of the Sangam has also signed. Ex. A3 shows that a further sum of Rs. 5 Lakhs towards the Sale consideration was paid on 3.10.2005. 16. On a careful perusal of Ex. A3 signed by one Natarajan Ambalam, who is also said to be a member, makes it very clear that one Subramaniyan @ Subbu was in possession of the property. As per the Auction amount, a further sum of Rs. 5 Lakhs was received from the Plaintiff. Ex. A3, in fact probabilise the case of the Defendants that it was a practice in the community to bring the Public Auction for sale of the property for the benefit of the Sangam. Ex. A3 clearly indicates that Rs. 5 Lakhs was paid towards the Auction amount for the property, which was subject matter of the Suit. Rs. 5 Lakhs is said to have been paid on 3.10.2005. 17. PW 1 in his evidence, feigned ignorance to any Auction conducted subsequently. Ex. B1, the Power of Attorney shows that the property belong to the Karaikudi Nattar Community people, dealt as per the Scheme Decree of the Subordinate Court, Devakottai. The recitals in the documents clearly shows that the President, the Second Defendant has executed the Power of Attorney in favour of one Chockalingam. The recitals clearly shows that the properties were dealt under the scheme decree and the property was in possession of the President and accordingly, he executed the Power of Attorney. Exs. B1, A3 make it clear that the property was put in Public Auction for the benefit of the community, and sold to the highest bidder. The contention of the Defendants that the Plaintiff has participated in earlier Auction is clearly probabilised by Exs. A1 to A3 and B1. PW 2 examined on the side of the Plaintiff also admitted that there was a practice of Public Auction. However, he did not know who was the successful bidder. The Second Defendant examined as DW 1 also admitted such practice. Whereas, the Plaintiff has feigned ignorance of the same. Whereas, his own document Ex. A3 to evidence the payment of Rs. 5 Lakhs on 3.10.2005, makes it clear that the said amount of Rs. 5 Lakhs was paid towards the Auction amount. 18. The Second Defendant examined as DW 1 also admitted such practice. Whereas, the Plaintiff has feigned ignorance of the same. Whereas, his own document Ex. A3 to evidence the payment of Rs. 5 Lakhs on 3.10.2005, makes it clear that the said amount of Rs. 5 Lakhs was paid towards the Auction amount. 18. These facts clearly show that the property was originally auctioned on the date of Ex. A1, the Demand Draft. It is further to be noted that Plaintiff himself admitted that the Power of Attorney was already executed in favour of his wife on 6.6.2006, in respect of the Suit property. All these facts clearly show that only in Public Auction the Plaintiff became the successful bidder and not as contended by the Plaintiff that the Sangam has originally agreed to sell the property. From the above evidences and admitted position of the parties, though, Ex. A4 was signed by one of the member of the Sangam, in fact, the Agreement was executed only on behalf of the Sangam, which is capable of enforcement. 19. In fact, Ex. A4 was executed only pursuant to the Auction conducted to sell the property by the Sangam to the Plaintiff. In view of the above, now, it has to be seen whether the Plaintiff is entitled to Specific Performance and he is all along ready and willing to perform his Contract. 20. As already discussed, Ex. A1 & A3, clearly shows that the Plaintiff, in fact, participated in. Public Auction. Ex. A1, the Demand Draft paid to the Sangam supported the version of the Defendants that there was a Public Auction and who ever participates in the Public Auction have to deposit Rs. 1 Lakh. Ex. A3 clearly proves the fact that remaining Sale consideration of Rs. 5 Lakhs was paid towards the Auction amount. Ex. B1 as already referred also shows that the property is always dealt under the Scheme Decree and evidences of DW 1 and PW 2 also shows that there was an Auction and there is a practice in the community to Auction the property for the benefit of the Sangam. 21. In such view of the case, even assuming there is a valid Agreement, Ex. A4, now it has to be seen whether the Plaintiff was ready and willing to perform his part of the Contract from the date of the Original Agreement. 21. In such view of the case, even assuming there is a valid Agreement, Ex. A4, now it has to be seen whether the Plaintiff was ready and willing to perform his part of the Contract from the date of the Original Agreement. According to him, as per Ex. A1, he is said to have paid Rs. 1 Lakh. In Ex. A2, no objection has been given by the Sangam on 1.5.2005. Ex. A3 proves that the Auction amount has been paid. Admittedly, on 6.6.2006, as per the Plaint, the Power of Attorney was given to the wife of the Plaintiff to execute the Sale Deed and Ex. A4, the Agreement also clearly shows that the remaining amount could be paid to the Power Agent namely his wife and the sale could be executed. 22. Despite an opportunity of registering the property in his name, since his wife was already appointed as a General Power of Attorney to deal with the property, the Plaintiff has not paid the remaining Sale consideration as per his own case. Though Ex. A4 does not speak about the time limit for payment, that will not relieve the Plaintiff from proving the readiness and willingness from the very inception. The Suit Agreement was executed on 10.3.2006. Thereafter, on 6.6.2005, entire power has been given to the wife of the Plaintiff. Such being the position, the contention of the Plaintiff that he was waiting to complete the Sale Agreement only as per the terms of the Agreement is highly doubtful. Plaintiff is also from the same area where certain unique practices are followed by the particular community which cannot be ignored altogether. The Nattar Community is a small group living in the above District They have their own tradition and practices, even in respect of Partition and dealing with the properties. 23. Therefore, the Court, taking note of the traditional practices prevailing in the Karaikudi Nattar community, mainly known as Nattukottai Chettiyars, and the fact that the Plaintiff is also from the same village, and when his wife was already a Power of Attorney holder, Plaintiff waiting endlessly for the Sangam to execute the Sale Deed is highly improbable. His contention is that he came to know the sale in favour of the subsequent Purchasers only on 16.8.2008. Whereas, the sale in favour of the Fifth and Sixth Defendant's was registered on 16.5.2006 itself. His contention is that he came to know the sale in favour of the subsequent Purchasers only on 16.8.2008. Whereas, the sale in favour of the Fifth and Sixth Defendant's was registered on 16.5.2006 itself. The Power of Attorney in favour of the wife of the Plaintiff was given on 6.6.2005 and the sale in favour of the Fifth & Sixth Defendants was executed on 16.5.2006. These facts clearly probabilise the case of the Defendants that after payment of Rs. 5 Lakhs, the Plaintiff has agreed to pay the remaining Sale consideration, the next day and get registration and failure to register the property will lead to forfeiture of the Advance amount. The manner in which Power of Attorney was executed and thereafter, the sale was executed on 16.5.2006 clearly probablise the Defendants' case that the Plaintiff has not come forward to pay the remaining Sale consideration nor had any intention to register the property... 24. These facts clearly show that readiness and willingness is totally absent on the part of the Plaintiff. Willingness is the mental attitude to purchase the property and readiness is the capacity to pay the Sale consideration. When any one of the ingredient is absent, the Plaintiff certainly is not entitled for Specific Performance. Readiness and willingness must be present from the inception of the Contract. Even though, the Contract-Ex. A4 does not stipulate time limit, the evidence of both sides and the arguments clearly show that the property was originally put in Auction by the community and whoever is the highest bidder they will be entitled to get the property registered in their name. When the Plaintiff's document itself clearly show that he only participated in Auction, merely there is no mention about the time for completion of the Sale and Agreement, it cannot be said that he need not prove the readiness and willingness. Having participated in the Auction and paid some amount, it is the duty of the Plaintiff to pay the amount within the time as stated in the Auction. Of course, no documents have been filed to prove the conditions of the Auction. 25. It is to be noted that the practice of auctioning the property is prevalent among the. community. Therefore, when such practice is all along prevalent, the Court cannot expect minute details for every practice in the community. Of course, no documents have been filed to prove the conditions of the Auction. 25. It is to be noted that the practice of auctioning the property is prevalent among the. community. Therefore, when such practice is all along prevalent, the Court cannot expect minute details for every practice in the community. Whereas, the Plaintiff, who seeks equitable relief for Specific Performance, must show that he was always ready and willing to perform his part of the Contract. No evidence whatsoever to show that he had remaining Sale consideration. No Legal Notice whatsoever has been sent. Only on 16.8.2008, he applied for EC and came to know about the sale. Whereas, his own pleadings clearly show that he is said to have paid advance on 21.3.2005, whereas he has applied EC on 16.8.2008, after three years. Though, generally time is not an essence of Contract, that cannot be a ground to hold that the Plaintiff can always be a mute spectator for ever without performing any part of obligation. He ought to have paid the remaining Sale consideration. 26. The very factum of Auction is denied by the Plaintiff. He pleaded as if the Contract was executed by the Sangam but documents filed on his side was otherwise and in fact disproves his own contention. When the Plaintiff has come to the Court even suppressing the material facts, he is not entitled to Specific Performance and the Specific Performance being the equitable relief, the Plaintiff coming to the Court with the suppression of material facts, certainly, he is not entitled to the Specific Performance. Further, readiness and willingness is totally absent on the part of the Plaintiff. 27. Considering all these facts, this Court is of the view that the Trial Court has not appreciated all these facts. In fact, no issues have been framed by the Trial Court with regard to readiness and willingness. Though, the Second Defendant dealt the property Fifth & Sixth Defendants were also aware of the Auction proceedings, earlier Auction and Agreement, though it could be said that subsequent purchaser has not made any reasonable enquiry, before purchase of the property as to the prevalent position and notice, that cannot be a ground to grant equitable relief of Specific Performance. It is for the Plaintiff to prove the readiness and willingness. It is for the Plaintiff to prove the readiness and willingness. Even assuming that the Defendant is not a bona fide purchaser, that itself will not relieve the Plaintiff from proving his readiness and willingness to get the equitable relief. 28. When the Plaintiff has suppressed the very factum of the practices prevalent in the community dealing with the community property and the Public Auction and has come up with the story as if the property was originally agreed in the individual transaction rather than the Public Auction, this Court is of the view that whether the Fifth & Sixth Defendants are bona fide purchasers or not has no relevance here, since the Plaintiff failed to establish his bona fideness in coming to the Court seeking equitable relief. Besides, readiness and willingness is also totally absent. 29. In a Judgment reported in R.K. Mohammed Ubaidullah and others v. Hajee C. Abdul Wahab, 2000 (6) SCC 402 , the Apex Court has held that the actual possession of a person itself is deemed or constructive notice of the title if any, of a person, who is for the time being in actual possession thereof. A subsequent purchaser has to make inquiry as to further interest, nature of possession and title under which the person was continuing in possession on the date of purchase of the property. 30. In Sardul Singh v. Pritam Singh & others, AIR 1999 (3) LW 466, the Apex Court has held that notwithstanding the absence of pleadings before a Court or Authority, still if an issue is framed and the parties were conscious of it and went to trial on that issue and adduced evidence and had an opportunity to produce evidence or cross-examine Witness in relation to the said issue, no objection as to want of a specific pleading can be permitted to be raised later. 31. There is no dispute with regard to the above propositions. The fact remains that the subsequent purchaser has to make a reasonable enquiry with regard to the possession of the property by any person. Even assuming that such enquiry has not been made in this case, that will not relieve the Plaintiff from proving the readiness and willingness. 31. There is no dispute with regard to the above propositions. The fact remains that the subsequent purchaser has to make a reasonable enquiry with regard to the possession of the property by any person. Even assuming that such enquiry has not been made in this case, that will not relieve the Plaintiff from proving the readiness and willingness. When the facts otherwise show that a particular practice is prevalent among the community to bid the property in Auction, merely because he has not made any enquiry, the above Judgment cannot be applied in the present case. 32. Admittedly, the Plaintiff has paid Rs. 7 Lakhs which is also established by records. Though, the prayer for refund of Advance amount is belatedly asked and allowed by this Court, it is to be noted that such relief could be granted at any stage of the proceedings to amend the Plaint. As the Advance amount was originally paid, there will be a charge on the interest in the property in respect of the Sale Agreement insofar as the purchase money is concerned. Of course, the charge is dependant upon the performance of conditions stipulated under Section 55(6)(b) of the Transfer of Property Act, 1882. Therefore, it cannot be said that the amendment is barred by limitation. 33. In any event, this Court is of the view that the Defendants, particularly Defendants 1 to 3 themselves having not disputed the payment, they are bound to return the amount received towards the Sale consideration, though, it is stated that as the remaining Sale consideration has not been paid within certain period of Auction, the amount has been fortified. It is further to be noted that Ex. A1 to 3 makes it clear that a sum of Rs. 7 Lakhs has been paid only towards the Sale consideration not as an Earnest Deposit to carryout certain obligation on the part of the Plaintiff. When the money has been paid as a Sale consideration and when the Plaintiff has filed a Suit for Specific Performance, the Court can very well order return of the amount to the Plaintiff even when the Suit for Specific Performance is dismissed. 34. Accordingly, the Defendants 1 to 3, being the President, Secretary and the Member of the Society, who dealt the property on behalf of the Sangam are bound to return their amount. 34. Accordingly, the Defendants 1 to 3, being the President, Secretary and the Member of the Society, who dealt the property on behalf of the Sangam are bound to return their amount. The First Defendant being the Sangam and the amount also being received by the Sangam under Exs. A1 & B3, the Defendants 1 to 3 are liable to return the above amount with Interest at the rate of 7% p.a. from the date of the amount till the date of realisation. 35. With the above discussions, this Appeal is partly allowed and the Judgment and Decree of the Trial Court granting Specific Performance is set aside. In the alternative, a Decree for a sum of Rs. 7 Lakhs with Interest at the rate of 7% is passed in favour of the Plaintiff. Defendants 1 to 3 are jointly liable to pay the amount being the Office-bearers of the First Defendant Sangam. However, there shall be no order as to Costs. Consequently, the connected Miscellaneous Petition is closed.