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2022 DIGILAW 2824 (MAD)

E. Jeevanandam v. Uma

2022-08-18

M.DURAISWAMY, SUNDER MOHAN

body2022
JUDGMENT (Prayer in O.S.A.No.33 of 2020: Original side Appeal filed under Order XXXVI, Rule 9 of O.S.Rules read with Clause 15 of the Letters patent to set aside the impugned order/decree dated 6th September 2019 made in Application No.3566 of 2019 in C.S.No.673 of 2008.) Common Judgement Sunder Mohan, J. 1. Aggrieved by the common order passed by the learned Single Judge in A.Nos.3565 and 3566 of 2019 in C.S.No.673 of 2008, A.Nos.3567 and 3568 of 2019 in C.S.No.656 of 2008 and A.Nos.3569 and 3570 of 2019 in C.S.No.216 of 2010 dated 06.09.2019, the plaintiff has preferred the above Appeals. 2.The brief facts leading to the filing of Appeals are as follows:- (a) the Appellant and the Respondents entered into three Memorandum of Understandings, all dated 05.07.2022, in respect of their respective properties. Prior to the MOU between the Appellant and the Respondents, the Respondents had entered into an Agreement of Sale with one Saradamani Kandappan for the sale of the suit properties. (b) The said Saradamani Kandappan filed a suit in C.S.No.95 of 1984 before this Court for Specific Performance. The said suit was dismissed on 29.11.1991. Against which, she filed an Appeal in O.S.A.No.12 of 1992, which was also dismissed on 19.06.2002. At that stage, the MOU was entered into between the Appellant and the Respondents. Subsequently, the said Saradamani Kandappan filed S.L.P.(C)Nos.26041 to 26043 of 2002 before the Hon'ble Apex Court challenging the Judgement of this Court made in O.S.A.No.12 of 1992. (c) Pending Litigation, the Respondents issued a legal notice dated 25.06.2007 stating that the MOU dated 05.07.2002 stood cancelled and enclosed the Demand Draft for Rs.2,25,00,000/- (Rupees Two Crores and Twenty Five Lakhs only) towards return of the advance received by them. The Appellant sent a reply through his lawyer on 29.07.2007 refuting the averments. The Respondents through their lawyer sent a rejoinder on 27.08.2007. The Appellant sent a reply through his lawyer on 29.07.2007 refuting the averments. The Respondents through their lawyer sent a rejoinder on 27.08.2007. (d)Thereafter, the Appellant had filed the three Civil Suits, viz, C.S.No.673 of 2008, C.S.No.656 of 2008 and C.S.No.216 of 2010 against the Respondents, for the following reliefs:- (i) Declaring that the notice dated 25.06.2007 and the consequential rejoinder dated 27.08.2007 issued by the defendants seeking to cancel the MOUs dated 05.07.2002 entered into between the plaintiff and the defendants, as illegal and not enforceable; (ii) Permanent injunction restraining the defendants from executing any deed or action disturbing the plaintiff's right under the MOUs dated 05.07.2002; and (iii) Mandatory injunction directing the defendants to comply with the defendants' obligations under Clauses 9 and 10 of the MOUs dated 05.07.2002 between the plaintiff and the defendants and enable the plaintiff to purchase the suit properties within 180 days from the date of finality of the pending litigation in respect of the suit properties. (e) In the meanwhile, the Respondents settled the suit properties in favour of their family members. (f) The Hon'ble Apex Court dismissed the S.L.Ps filed by Mrs.Saradamani Kandappan by Judgement dated 04.07.2011. (g) Thereafter in the year 2019, the Appellant filed the Application in each of the three suits, praying for Amendment of the prayer i.e. to declare the MOU dated 05.07.2002 entered into between the Appellant and the Respondents, as Agreements for the sale of the suit properties and also for direction to execute the Sale Deeds in respect of the suit properties in favour of the Appellant. The Appellant also filed application to implead the beneficiaries of the Settlement Deeds executed by the respondents, as defendants in the suits and prayed for Declaration that the Settlement Deeds are sham and nominal and not binding on the Appellant. (i) The said applications were opposed by the Respondents herein on the ground that the MOU would not amount to an Agreement of sale and it was only an informal understanding between the parties as set out in Clause 9 of the MOU. The Respondents also stated that the Hon'ble Apex Court had held that the MOU was only a formal understanding and it was not even an Agreement of sale in the Contempt Petitions filed by the Saradamani Kandappan in Contempt Petition Nos.28 and 29 of 2009 against the Respondents. The Respondents also stated that the Hon'ble Apex Court had held that the MOU was only a formal understanding and it was not even an Agreement of sale in the Contempt Petitions filed by the Saradamani Kandappan in Contempt Petition Nos.28 and 29 of 2009 against the Respondents. The suit originally filed by the Appellant was one for mandatory injunction and the present application for amendment would change the very nature of the suit and therefore, the applications for amendment of the prayer were not maintainable. Further, since the suit itself cannot be construed as one for land, Section 52 of the Transfer of Property Act was inapplicable and the impleading of the subsequent transferees or alienees does not arise. 3. The learned Single Judge dismissed the applications filed by the Appellant taking into consideration the observations of the Hon'ble Apex Court to the effect that the MOUs would not amount to Agreement of sale. The learned Single Judge also found that the Amendment sought for by the Appellant is unsustainable as it would change the nature and character of the Suit. As regards the impleading of the transferees, the learned Single Judge found that they were not necessary parties since they were not essential to adjudicate the issues in the suit and further, held that since the prayer for amendment of plaint was negatived, the petitions to implead the proposed parties became redundant. 4. Mr.T.R.Rajagopalan, learned Senior Counsel for the Appellant submitted :- (a) that it is a fact that the Hon'ble Apex Court held in the Contempt Petitions in which the Appellant was not a party, that the MOU dated 05.07.2002 between the Appellant and the Respondents was not an Agreement of sale. The learned Senior Counsel submitted that the Hon'ble Apex Court, in the very same judgement, at Paragraph 83 made it clear that the order in the Contempt Petitions would not be construed as an expression of any opinion on the merits of the dispute between the Appellant and the Respondents herein and that pending litigations between them will have to be decided on the merits of their respective cases. The learned Senior Counsel submitted that the learned Single Judge did not consider the said observations of the Hon'ble Supreme Court. The learned Senior Counsel submitted that the learned Single Judge did not consider the said observations of the Hon'ble Supreme Court. (b) that the learned Single Judge ought to have allowed the applications for amendment of prayer in the suit and left the parties to agitate the issues in the main suit. The learned Senior Counsel submitted that the terms of the MOU would suggest that it is an Agreement of sale notwithstanding the nomenclature. The learned Senior Counsel further submitted that at the time of execution of MOU, there were two litigations which had to be closed for the plaintiff to pay the balance sale consideration as agreed upon in the MOU, and hence, the appellant waited for the culmination of the two litigations. (c) that the Appellant had originally filed the suits for declaring the notice issued by the respondents cancelling the MOU and rejoinder to the reply notice sent by the Appellant as illegal. The Appellant had also made a prayer for mandatory injunction to comply with the defendant’s obligations under Clause 9 and 10 of the MOU dated 05.07.2002. Therefore, the prayer sought for in the instant application was a continuation of the prayer made for mandatory injunction and that it would not change the character and nature of the suit. (d) The learned Senior Counsel in support of his submissions relied upon the the following Judgements: (i) Surender Kumar Sharma vs. Makhan Singh reported in (2009) 10 SCC 626 wherein it has been held that the amendment sought for did not change the nature and character of the suit (ii) Rameshkumar Agarwal vs Rajmala Exports Private Limited reported in (2012) 5 SCC 337 and (iii) N.C.Bansal vs Uttar Pradesh Financial Corporation and Another reported in (2018) 2 SCC 347 ; wherein it has been held that the Courts must allow bonafide, legitimate and necessary amendments to the plaint. 5. Mr.Srinath Sridevan, learned counsel for the Respondents in O.S.A.No.37 of 2020 submitted:- (a) that if the application to amend the prayer is allowed, it would change the nature of the Suit and it would amount to permitting a different suit to be filed. The learned counsel also submitted that the conduct of the Appellant is scandalous and for this reason alone the applications are liable to be rejected. The learned counsel read to us paragraph 5 and 15 of the plaint, which is extracted hereunder:- “... The learned counsel also submitted that the conduct of the Appellant is scandalous and for this reason alone the applications are liable to be rejected. The learned counsel read to us paragraph 5 and 15 of the plaint, which is extracted hereunder:- “... 5. The plaintiff further submits that the defendant promised that he would enter into a full-fledged agreement with the plaintiff and provide six clear months (180 days) time for completion of the sale transaction after the finality of the said specific performance/claim of Mrs.Saradamani Kandappan...” “... 15...Therefore it has become absolutely necessary for the plaintiff to file the present suit in order to safeguard his interest and right under the MOU. Apart from the above, the plaintiff reserves his right to file a comprehensive suit for specific performance of the contract as and when required under law...” The learned counsel, therefore, submitted that the above averments in the plaint would show that MOU was not an Agreement of Sale and that the earlier suit was not a suit for Specific Performance. (b) the amendment sought in the prayer seeks to convert the suit into one of suit for Specific Performance, which cannot be permitted. In the plaint, there is no reference to readiness and willingness to perform the Appellant's part of the contract which is an essential requisite in a suit for Specific Performance. This would indicate that the nature of the suit is different. The Respondents in their written statement had stated that the MOU dated 05.07.2002 is not a concluded contract and that was still at the stage of negotiation and no legal obligations were attached to them. (c) that the prayer in the original suit itself is not legally sustainable, inasmuch as, it is for a direction to the respondents to negotiate and enter into an Agreement of Sale. (d) that they have filed an additional written statement, wherein, they had mentioned that in the MOUs only tentative prices were agreed upon, as the parties did not have any idea about the actual extent which would be available, timeline within which the sale would be completed etc. They had also mentioned in the said additional Written Statement about the culmination of the proceedings before the Hon'ble Apex Court and the fact that the Hon'ble Apex Court had observed in the Contempt Petitions that the MOUs were not even Agreements of sale. They had also mentioned in the said additional Written Statement about the culmination of the proceedings before the Hon'ble Apex Court and the fact that the Hon'ble Apex Court had observed in the Contempt Petitions that the MOUs were not even Agreements of sale. (e) that in the affidavit filed by the Appellant in support of the applications before the learned Single Judge, the appellant has stated as follows. “... 11...Though the real intent of executing the said Memorandum of Understanding dated 05.07.2002 was to purchase the said larger extent of land, the said agreement reached was named “Memorandum of Understanding” instead “Agreement for Sale” for the reason that the Defendant anticipated restrain order from Hon'ble Supreme Court of India in then expected Appeal by one Saradamani Kandappan...” The learned counsel submitted that the above averments made by the Appellant in the affidavit shows the Appellant's utter disregard for the law and therefore, no relief ought to be granted to the Appellant. (f) the learned counsel in support of his submissions, relied upon a judgement of the Hon'ble Apex Court in (Revajeetu Builders and Developers vs. Narayanaswamy and sons and others) reported in (2009) 10 SCC 84 in which the Hon'ble Supreme Court had enunciated the principles for considering an application for amendment under Order VI Rule 17 of C.P.C The learned counsel also relied upon a Judgement of the Hon'ble Apex Court in (Speech and Software Technologies (India) Private Limited vs Neos Interactive Limited) reported in (2009) 1 SCC 475 wherein it has been held that an agreement to enter into an agreement is not enforceable nor does not it confer any right upon the parties. 6. Mr.P.B.Balaji, the learned counsel for the Respondents in O.S.A.No.33 and 36 of 2022 submitted that the averments made in the Affidavit filed in support of the applications by the Appellant before the learned Single Judge that he was not aware of the finality of the litigation between the Respondents and the Saradamani Kandappan is false. He was following the litigation and hence was aware of the culmination of the proceedings. Further, even as early as in July 2017 the respondent had disclosed in their Additional Written Statement about the order passed by the Hon’ble Apex Court, in the SLPs filed by the said Saradamani Kandappan. 7. He was following the litigation and hence was aware of the culmination of the proceedings. Further, even as early as in July 2017 the respondent had disclosed in their Additional Written Statement about the order passed by the Hon’ble Apex Court, in the SLPs filed by the said Saradamani Kandappan. 7. Mr.S.Parthasarathy, learned Senior Counsel for the proposed parties to be impleaded would submit that against an order dismissing an application to implead the parties, no appeal would lie under clause 15 of Letters Patent and in support of his submissions, relied upon a judgment of this Court in Ramaswamy Chettiar vs. Roya Kanniappa Mudaliar reported in 1930 [Volume XXXI] The Law Weekly 766 . 8. We have given our anxious consideration to the contentions of the learned Senior counsels and the counsel on either side and to the pleadings on record. 9. It is settled law that the amendment to a plaint cannot be permitted if the proposed amendment changes the nature and character of the suit. When we look at the original prayers in the suit, we find that the main prayer of the Appellant was for mandatory injunction directing the Respondents to comply with their obligations under Clause 9 and 10 of MOU dated 05.07.2002 entered into between the Appellant and the Respondents. Clause 9 and 10 of the MOU dated 05.07.2002 reads as follows: “... 9. A Fresh Agreement with mutually agreed terms and conditions with a clause to have 180 days time has to be entered along with all the terms and conditions of this MOU after clearance of all pending or future litigations and on finality of litigation on production of the respective Court Order and the advances paid under this MOU will be treated as an advance for the fresh agreement for sale. 10. The Vendor – in – person should either register the Sale Deed or Sale Deeds or General Power of Attorney in favour of the Purchaser or his nominee/s at the cost of the Purchaser on payment of the entire sale consideration within the stipulated period of 180 days...” The above Clauses would suggest that the obligations of the Respondents is only to enter into a fresh Agreement on mutually agreed terms and conditions after clearing all pending or future litigations and on production of the Court orders evidencing the same. The learned counsel for the Respondents would submit that the prayer for mandatory injunction to comply with the above clause itself is not maintainable. Be that as it may, we find that the prayer in the earlier suit is essentially for directions to the Respondents to take steps to complete all the litigations and thereafter enter into fresh Agreements of Sale. The amendment now sought for by the Appellant is to declare the MOU dated 05.07.2002 which contains, inter alia, the above clauses as an Agreement of Sale. Therefore, the prayer for direction to enter into an Agreement of Sale and the prayer to declare the MOU itself as an agreement of sale are not only two fundamentally different prayers, but are contrary to each other. Therefore, in our view the amendment in the prayer, which is contrary to the earlier prayer, cannot be permitted. Further, we find that the averment made by the Appellant in Para 11 of the common affidavit filed in support of the Applications extracted above, wherein he had stated that nomenclature 'MOU' was given only in anticipation of the restraint order by the Hon'ble Apex court, is contemptuous in nature. 10. That apart, a suit for Specific Performance of the contract should ordinarily be filed within three years from the date of contract. Assuming that the culmination of the litigations of the Respondents with the said Saradamani Kandappan should be treated as the starting point for limitation, we find that the Hon'ble Apex Court had dismissed the Special Leave Petitions as early as on 04.07.2011. We are unable to accept the stand of the Appellant that they were not aware of the disposal of the SLPs. The MOU was executed only because proceedings were pending before the Hon'ble Apex Court and the Appellant had paid substantial money, even according to him, for the execution of the MOU. Therefore, the normal conduct of a prudent person would be to keenly watch the course of the proceedings before the Hon'ble Apex Court. Further, we find that the respondents in their Additional Written Statement filed in July 2017 have also mentioned about the dismissal of the SLPs filed by the said Saradamani Kandappan. The Appellant’s Application praying for amendment of the prayer has been filed two years after the Additional Written Statement was filed by the Respondents, which clearly suffers from unexplained delay, if not barred by limitation. The Appellant’s Application praying for amendment of the prayer has been filed two years after the Additional Written Statement was filed by the Respondents, which clearly suffers from unexplained delay, if not barred by limitation. 11. The Amendment sought for cannot be permitted because the prayer now sought to be made is contrary to the observations of the Hon'ble Supreme Court in SLP(C) Nos.20641 to 20643 of 2002, Saradamani Kandappan vs. S.Rajalakshmi and others reported in (2011) 12 SCC 18 , which is extracted hereunder:- “... 82. The MOUs said to have been executed by Respondents 1 to 3 provide that agreements of sale with mutually agreed terms and conditions will be entered between the parties after clearance of all pending or future litigations. Therefore the MOUs are not even agreements of sale. In these Circumstances, it is not possible to hold that the respondents have created any encumbrances or violated the order dated 11.11.2002. Hence, these Contempt Petitions are liable to be rejected. 83. We make it clear that nothing stated in this order on the contempt petitions will be construed as an expression of any opinion on the merits of the dispute between Jeevanandam and Respondents 1 and 3, and necessarily any pending litigation between them will have to be decided on the merits of the respective cases...” In our view, the Appellant is precluded from making any prayer contrary to the above observations of the Hon'ble Supreme Court. The reading of the above observations would only suggest that what was left open in the merits of the dispute between the Appellant and the Respondents are issues, apart from the issue with regard to the character and nature of the MOU. Further the Clauses in the MOU would clearly state that it is only an agreement to enter into an agreement of sale. The Hon'ble Apex Court under similar circumstances in Speech and Software Technologies Private Limited vs. Neos Interactive Limited reported in (2009) 1 SCC 475 held as follows:- “... “22. The said letter of intent on a bare reading is nothing but an agreement to enter into another agreement because it is provided in the said letter that “both parties agree to have set a deadline to sign this agreement by 15.09.2006”. “22. The said letter of intent on a bare reading is nothing but an agreement to enter into another agreement because it is provided in the said letter that “both parties agree to have set a deadline to sign this agreement by 15.09.2006”. It is well-settled legal position that an agreement to enter into an agreement is not enforceable nor does it confer any right upon the parties. The agreement in terms of the said letter of intent was to be signed on or before 15.09.2006.” 12. Thus, we are of the view that the Applications filed by the Appellant praying for amendment to the prayer cannot be permitted and the order of the learned Single Judge is justified and sustainable. In view of our finding that the prayer for amendment cannot be allowed, the prayer for impleading the parties are redundant and consequently the said Applications also deserves to be dismissed. 13. For the foregoing reasons, the above Original Side Appeals are dismissed. Consequently, the connected miscellaneous petitions are closed. No Costs.