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2021 DIGILAW 733 (MAD)

K. Kandasamy v. K. P. Muthusamy

2021-03-03

G.JAYACHANDRAN

body2021
JUDGMENT : Prayer: First Appeal is filed under Section 96 of the Code of Civil Procedure against the judgment and decree of the Learned First Additional District Judge, Erode, dated 15.10.2008 passed in O.S.No.314 of 2008 dated 25.07.2008. 1. This Appeal is directed against the judgment of the Trial Court, dismissed the suit filed for specific performance. 2. The Appellants are the plaintiff in the suit. The brief facts of the case is that on 25.11.2006, the plaintiffs and the defendants entered into an unregistered agreement for the sale of suit property. The defendants agreed to sale 2.56 acres of land, reserving 14 cents in their personal use. At the time of agreement it was stated by the defendants that it is an ancestral property devolved upon them under registered will dated 31.10.1979 and the registered partition deed dated 09.09.1996. The sale price was fixed as Rs.40,00,000/- and the plaintiff paid a sum of Rs.10,00,000/- as advance on the date of agreement and parties agreed for the payment of balance in three instalments are as below:- 30.06.2007 Rs.10,00,000/- 17.09.2007 Rs.15,00,000/- 25.10.2007 Rs.5,00,000/- 3. The entire sale consideration should be paid on or before 25.10.2007 in default, the vendor agreed to forfeiture of the advance Rs.10,00,000/-. Subsequent to the said agreement, the plaintiffs learnt that the defendant No.3 have two daughters and they also have share in the ancestral property in view of the amendment to Section 6 of Hindu Succession Act, which came into effect on 09.09.2005. The plaintiffs were not informed about this fact and the agreement in respect of property, were minors also have a share. Being in real estate business having realised that the defendants are not the owner of the property exclusively issued notice dated 03.07.2007 to the defendants pointing out the defective title and requested the to cancel the agreement and return the advance money with interest. The defendants refused to do so and issued reply notice with untenable contention. Hence, repudiated the contract alleging that the defendants are guilty of misrepresentation and suppression of material facts. 4. The suit filed for return of advance money and create charge over the suit property for the payment. 5. The defendants filed written statement, wherein, it was contended that the suit is not maintainable and allegations made are untenable. The property is not ancestral property as alleged in the plaint. 4. The suit filed for return of advance money and create charge over the suit property for the payment. 5. The defendants filed written statement, wherein, it was contended that the suit is not maintainable and allegations made are untenable. The property is not ancestral property as alleged in the plaint. The defendants represented the plaintiffs that, they own 2.66 acres under the registered partition deed dated 09.09.1996, which is ancestral in nature and another 4 cents given to them by the brother. Totally they own 2.70 acres and out of which, they agreed to sell 2.56 acres of land, retaining 14 cents. The defendants are always ready and willing to execute their part of contract and to clarify the doubt of the plaintiffs regarding the clear markable title. In fact, the plaintiffs entered into an agreement only after fully being satisfied regarding the vendors right but due to some ulterior reason, he want to repudiate the contract quoting untenable reason to avoid the forfeiture clause. The plaintiffs were fully aware of the fact that 2nd defendant have no issue and 3rd defendant have two daughters. The 3rd defendant ready to execute the sale deed on their behalf and on behalf of the minor child, for their welfare, but to wriggle out from the contract with a wrong intention, referring the amendment act, the plaintiffs trying to repudiate the validly executed agreement, hence, he is not entitled for refund and liable to forfeiture the advance money of Rs.10,00,000/- as agreed under the contract. 6. The Trial Court framed following issues:- (i). Whether the defendants committed breach of agreement? (ii). Whether the plaintiffs are entitled to get refund of advance amount? (iii). Whether the plaintiffs are justified in revoking the agreement? (iv). Whether the plaintiffs are entitled to charge over the suit property? (v). To what relief? 7. On behalf of the plaintiffs, one witness and 5 Exhibits were marked. On behalf of the defendants, one witness and one Exhibit was marked. 8. The Trial Court held that the plaintiffs are not entitled for refund of the money advance since the reason for not willing to perform his part of contract is based on untenable reason. The Trial Court, after extensively referred case laws in the light of the evidence and held that, the claim of the plaintiffs are contrary to the agreed terms as found in Ex.A.1. The Trial Court, after extensively referred case laws in the light of the evidence and held that, the claim of the plaintiffs are contrary to the agreed terms as found in Ex.A.1. For his own violation of the terms of contract, the plaintiffs cannot take advantage and seek refund which was agreed to be forfeited in case of default. Point for determination:- Whether the Trial Court judgment denying the plaintiffs right seeking refund is in consonance with law? 9. The short point involved in this case for consideration is that whether the plaintiffs are liable to forfeiture the entire money advanced in view of breach of contract. 10. After hearing the Learned Counsels at length and on perusing the records, this Court felt there is an element of settlement in this litigation, hence requested the learned Counsels to explore any possibility of settlement out of Court. 11. The Leaned Counsels using their goods office have successfully prevailed about the disputing parties and had arrived at settlement, which reads as below:- Joint Compromise Memo by Appellants & Respondents. The parties herein most respectfully submit as follow:- 1. The appellants herein filed the above appeal being aggrieved by the judgment dated 15.10.2008 passed in O.S.No.314 of 2007 by the learned Additional District Judge, Erode, directing the respondents to pay a sum of Rs.10 lakhs with interest towards repayment of the sale advance paid by these appellants towards purchased of suit property. 2. During the pendency of the above appeal, both parties have agreed to settle matter amicably between them, as per the suggestion given by this Hon’ble Court. Accordingly, this Memo of Compromise is entered between both parties as per the following terms:- (a). The appellants/plaintiff have received the refund of sale advance of Rs.10,00,000/- (Rupees Ten Lakhs only) by cash as full and final settlement as against all claims and the appellants hereby acknowledge the receipt of the same and appellants shall not claim any interest for the refund of sale advance given by the respondents. (b). The respondents shall have the absolute right over the subject property and to use it at their will and the appellants shall have no rights in any manner over the subject property in future as the sale agreement dated 13.05.2007 is hereby cancelled by both parties. (b). The respondents shall have the absolute right over the subject property and to use it at their will and the appellants shall have no rights in any manner over the subject property in future as the sale agreement dated 13.05.2007 is hereby cancelled by both parties. The parties have agreed that neither party shall have any claim in future whatsoever against the other in connection with the suit mentioned property. (c). The sale agreement dated 13.05.2007 duly entered between these parties is hereby cancelled which is the subject matter of this case upon disposal of the present first appeal. (d). The appellants pray for refund of Court fee paid by them before this Hon’ble Court towards filing the present first appeal and the present respondents have no objection for such refund of Court fee by the appellants. (e). The parties herein agree that they shall jointly file the present Memo of Compromise before this Hon’ble Court, Madras in the pending proceeding in A.S.No.814 of 2010 and shall pray this Hon’ble Court, to dispose the above appeal on the basis of the present compromise with a plea seeking refund of Court of Fee paid by the appellants. 3. In these circumstances, the parties herein most respectfully pray that this Hon’ble Court may be pleased to record the above compromise between the parties and dispose the present first appeal A.S.No.814 of 2010 on the basis of the said compromise and direct the Registry of this Hon’ble Court to refund the full Court Fees by these appellants in the present first Appeal A.S.No.814 of 2010 to the present appellants. 12. In terms of the above settlement, the parties have entered into a compromise memo and duly signed. Both the Appellants as well as respondents present before this Court and reported that they have amicably settled the dispute in the terms of the settlement as stated above. 13. In view of the settlement arrived between the parties, the Appeal Suit is disposed of as settled out of Court. Insofar as Court fees is concerned, this Court is of the view that the judgment passed by the Hon’ble Supreme Court in The High Court of Judicature of Madras, Rep. 13. In view of the settlement arrived between the parties, the Appeal Suit is disposed of as settled out of Court. Insofar as Court fees is concerned, this Court is of the view that the judgment passed by the Hon’ble Supreme Court in The High Court of Judicature of Madras, Rep. by its Registrar General vs. M.C.Subramaniam and others reported in 2021 SCC Online SC 109, has held that, it is fit case where the appellants should be refunded the Court fees paid by them in this Appeal. 14. In view of the above compromise memo, the Appeal Suit is disposed of as settled out of Court. Registry is directed to refund the entire Court fees paid by them to the appellants. The compromise memo shall form part of the decree. No costs.