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2023 DIGILAW 3299 (MAD)

A. Ramakrishnan @ Ramakrishnappa v. N. Parvathi

2023-11-15

N.SENTHILKUMAR, R.SUBRAMANIAN

body2023
JUDGMENT (Prayer: Appeal suit has been filed under Section 96 of the Civil Procedure Code, to set aside the judgment and decree of the learned Additional District Judge, Hosur dated 26.04.2017 in O.S.No.20 of 013 and to decree the said suit as prayed for.) R. Subramanian, J. 1. The plaintiff in OS No.20 of 2013 an audacious suit by an agreement holder for a declaration that the Sale Deed dated 27.08.2012 executed by the purchaser from the agreement vendor in favour of M/s.Micro Surgical Instrument Limited, rep. by its Director Mrs.Balamanimegalai, for an injunction against the fourth defendant from alienating the suit property and for a direction to the fifth Defendant viz. the Sub Registrar not to register any transaction concerning the suit property is on appeal challenging its dismissal. 2. The brief facts that led to the filing of the suit are as follows: 2.1. The plaintiff claims to have entered into an agreement of sale with the first defendant on 19.01.2011 under Ex.A3. As per the said Agreement, the plaintiff has agreed to purchase the suit property for a total consideration of Rs.73,50,424/- and has also parted with a sum of Rs.10,00,000/- towards advance. It is also claimed that a further sum of Rs.20,00,000/- was paid on 25.02.2011 and the possession of the property was handed over to the plaintiff. As per the terms of the agreement a period of 120 days was fixed for its performance. 2.2. On 18.11.2011, the first defendant Parvathi appointed the second defendant Mr.Saravana Kumar, as her power agent. Subsequently on 13.06.2012, the said Saravana Kumar, as the power agent of the first defendant, sold the suit property to one Praveen Kumar, the third defendant under a Sale Deed dated 13.06.2012 marked as Ex.A7. The purchaser viz. Praveen Kumar sold the property to M/s.Micro Surgical Instrument Limited, on 27.08.2012. The plaintiff had issued a legal notice on 06.09.2012 requiring the first defendant to receive the balance of sale consideration and execute a Sale Deed. 2.3.A reply was sent by the second defendant the Power Agent denying knowledge of the agreement. It was also stated therein that as Power Agent appointed on 18.11.2011, he had found a prospective buyer and had executed the Sale Deed in favour of the prospective buyer. Thereafter the plaintiff came up with the suit with the above prayers. 3. The suit was resisted by all the defendants. It was also stated therein that as Power Agent appointed on 18.11.2011, he had found a prospective buyer and had executed the Sale Deed in favour of the prospective buyer. Thereafter the plaintiff came up with the suit with the above prayers. 3. The suit was resisted by all the defendants. The first defendant contended that the Suit Agreement dated 19.01.2011 was not intended to be an agreement of sale that was executed only as a security for a loan transaction. It was also claimed that the signature of the first defendant was taken in blank papers and an agreement has been created thereon. 3.1. The second defendant filed a written statement reiterating the allegations contained in his reply notice denying knowledge of the agreement dated 19.01.2011 and contending that he was appointed as a power agent only on 18.11.2011 by the first defendant and he had acted as per the power of attorney document. It was also pointed out that he had entered into a registered agreement of sale on 21.11.2011 with the third defendant and executed a sale deed on 13.06.2012 in favour of the third defendant. 3.2. The third defendant resisted the suit contending that he is a bona fide purchaser for value without notice. He also added that the plaintiff was not ready and willing to perform his part of the contract within the time stipulated. 3.3. The fourth defendant filed a written statement contending that the suit against the fourth defendant itself is not maintainable, since the property was not purchased by her in her individual capacity. It was pointed out that the property was purchased by the Company called M/s.Micro Surgical Instrument Limited, represented by her as the Director. Therefore, according to her, the suit as framed is not maintainable. She had also taken the other pleas that are open to a subsequent purchaser in a suit of this nature. 4. On the above pleadings, the learned Trial Judge framed the following issues: (1) Whether the agreement dated 19.01.2011 is true and valid; (2) Whether the plaintiff is entitled to a relief of declaration that the sale deed dated 27.08.2012 executed by the third defendant in favour of the fourth defendant is invalid; (3) Whether the plaintiff was ready and willing to perform his part of the contract; (4) Whether the plaintiff is entitled to specific performance. 5. 5. At Trial, the plaintiff was examined as P.W.1 and two other witnesses were examined as P.Ws.2 and 3. Exhibits A1 to A13 were marked. The fourth defendant was examined as D.W.1 and defendants 2 and 3 were examined as D.Ws.2 and 3 respectively. Exhibits B1 to B5 were marked. 6. The learned Trial Judge on a consideration of the evidence onrecord concluded that the suit agreement is true and valid. On Issue No.3, the leaned Trial Judge found that the plaintiff was not ready and willing to perform his part of the contract. On Issue No.4, the learned Trial Judge found that the plaintiff is not entitled to specific performance. On Issue No.2 regarding the validity of the Sale Deed dated 27.08.2012, the learned Trial Judge found that the plaintiff is not entitled to the relief of declaration. 7. On the finding that the plaintiff was not ready and willing coupled with the finding that the plaintiff is not entitled to a declaration that the Sale Deed dated 27.08.2012 is invalid, the learned Trial Judge eventually dismissed the suit. The learned Trial Judge has also refused to grant any alternative relief of refund of advance, since there was no prayer for refund of advance. Aggrieved the plaintiff is on Appeal. 8. We have heard Mr.T.M.Hariharan, learned counsel appearing for the appellant and Mr.T.Panchatsaram, learned counsel appearing for the respondents 2 to 4. 9. Mr.T.M.Hariharan, learned counsel appearing for the appellant would contend that though there is no prayer for specific performance in the suit, the learned Trial Judge has construed it as a suit for specific performance and therefore, he ought to have granted a decree for specific performance. He would also contend that the learned Trial Judge should have at least ordered refund of advance in equity. Having found that the agreement is true and the plaintiff has parted with a huge sum of Rs.30,00,000/- in favour of the first defendant. 10. Contending contra, Mr.T.Panchatsaram, learned counsel appearing for the respondents 2 to 4, would submit that the very suit as framed is not maintainable. Having found that the agreement is true and the plaintiff has parted with a huge sum of Rs.30,00,000/- in favour of the first defendant. 10. Contending contra, Mr.T.Panchatsaram, learned counsel appearing for the respondents 2 to 4, would submit that the very suit as framed is not maintainable. Relying upon the language of Section 54 of the Transfer of Property Act,1872, the learned counsel would submit that an agreement of sale does not by itself create an interest in the immovable property and therefore, the plaintiff who has no title or interest in the property on the date of the suit cannot seek a declaration that the sale deed executed by the third defendant in favour of the fourth defendant is invalid. He would also point out that even if the prayer as asked for is granted, still the Sale Deed executed by the second defendant as thepower agent of the first defendant in favour of the third defendant will remain in force. Therefore, the very suit as framed by the plaintiff is bad. 11. The learned counsel would further contend that the suit itself is an abuse of process of Court. He would also point out that even assuming if the suit is to be taken as one for specific performance, then the plaintiff must have paid the Court Fee for the total consideration in Ex.A3 Agreement which is Rs.73,50,424/-, on the other hand the plaintiff has paid Court Fee only for Rs.30,00,000/-. 12. From the arguments of the learned counsel, the only point that arises for determination is Whether the suit as framed is maintainable. 13. The prayers in the suit are as follows: a) Declaring the sale deed dated 27.08.2012 registered in Document No.11230/2012 before Sub Registrar Office, Hosur as null and void; b) Not to alienate the suit property pending disposal of the above suit by the 4 th defendant; c) Injunction restraining the 4 th defendant from alienating the suit property; d) Not to register the suit property by the 5 th defendant pending disposal of above; f) For costs. 14. 14. We have already extracted the events that took place which are as follows: (i) 19.01.2011 agreement for sale between the plaintiff and the first defendant; (ii) 18.11.2011 the first defendant appoints the second defendant as a power agent; (iii) 21.11.2011 the second defendant enters into an agreement with the third defendant for sale of the property. (iv)13.06.2012 the second defendant executes a Sale Deed, as power agent of 1 st defendant, in favour of the third defendant; (v) On 27.08.2012, the third defendant executed a Sale Deed in favour of M/s.Micro Surgical Instrument Limited, rep. by its Director Mrs.Balamanimegalai. 15. Thereafter the suit is filed for a declaration that the Sale Deed dated 27.08.2012 is bad and for consequential injunction. There is no prayer for specific performance, there is no prayer for refund of advance money and Court Fee has not been paid for Rs.73,50,424/-. There is no prayer for declaration that the Sale Deed dated 13.06.2012 which is executed by the second defendant, in favour of the third defendant as null and void. 16. Section 54 of the Transfer of Property Act reads as follows: 54. “Sale” defined.—‘‘Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Sale how made.—Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. Contract for sale.—A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property. (Emphasis Supplied) Section 54 of the Transfer of Property Act clearly spells out that the contract of sale by itself does not create any interest in immovable property. 17. As on the date of the suit, the plaintiff was only an agreement holder. It does not, of itself, create any interest in or charge on such property. (Emphasis Supplied) Section 54 of the Transfer of Property Act clearly spells out that the contract of sale by itself does not create any interest in immovable property. 17. As on the date of the suit, the plaintiff was only an agreement holder. He did not have a subsisting right over the property in order to enable him to seek a declaration that the Sale Deed executed by the third defendant in favour of the fourth defendant is bad. Therefore, the main prayer in the suit cannot be granted. 18. The Hon’ble Supreme Court has, as early as in 1954, in Lala Durga Prasad and another v. Lala Deep Chand and Others, reported in AIR 1954 SC 75 , has spelt out as to what should be the form of the prayer and form of the decree in a suit for specific performance which is laid against the vendor and the subsequent purchaser. The present plaint overlooks the very fundamental law. The learned Trial Judge need not have gone into the question of validity of the agreement or otherwise because there is no prayer for specific performance. Even if the agreement is true and valid, the plaintiff will not be entitled to the relief that is asked for in the suit viz. a declaration that the Sale Deed executed by the purchaser from the agreement vendor is bad. 19. While dealing with the right of an agreement vendor to sell the property and the right of a purchaser, after the agreement of sale, the Hon’ble Supreme Court has clearly spelt out that on execution of Sale Deed by the agreement vendor, the title in the property stood transfered to the subsequent purchaser and therefore, the subsequent purchaser should be added as a defendant and should be made to join execution of the Sale Deed, so that the title stood transfered to the purchaser if he/she is successful in a suit for specific performance. 20. The plaintiff has saved us of all these problems by launching a completely misconceived suit and the learned Trial Judge had taken the trouble of going into all the issues and rendering its findings. These kinds of suits, in our opinion, must have been rejected on the day one. 20. The plaintiff has saved us of all these problems by launching a completely misconceived suit and the learned Trial Judge had taken the trouble of going into all the issues and rendering its findings. These kinds of suits, in our opinion, must have been rejected on the day one. This case is the classic example of abuse of process of Court aided by a group of innocent or ignorant lawyers. 21. We therefore dismissed the Appeal. However there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.