Dismissed

M/S Mathi Enterprises v. Mr.Diobyendu Choudhery

Madras HC17 Jul 2014CRP/1568/2014

Case brief

AI extract

What is this about?

The Madras High Court dismissed a civil revision petition challenging the trial Court's dismissal of an application to submit a decree for refund of advance money during specific performance proceedings. The High Court held that the trial Court was correct in not deciding the alternative prayer at that stage, leaving the disposal of the main suit to the trial Court on merits.

What did the court decide?

Civil Revision Petition dismissed; trial Court directed to dispose of the suit on or before 20.08.2014. No costs.

M/S Mathi Enterprises Vs Mr.Diobyendu Choudhery — Specific Performance | Madras HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 17.07.2014

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CORAM :

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THE HONOURABLE MS.JUSTICE R.MALA

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C.R.P(PD).No.1568 of 2014 and M.P.No.1 of 2014

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1.M/S.Mathi Enterprises represented by its Proprietrix M.Alli Block No.4, Plot No.1 3^rd main road Kaviarasu Kannadasan Nagar Kodungaiyur, Chennai-118.

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2.Mrs.M.Alli .. Petitioners

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Vs.

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Diobyendu Choudhery Representing as its Proprietor of M/S.Deccan Metal Industries No.425, 4^th link road 5^th main road, M.K.B.Nagar Chennai-39. .. Respondent

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Prayer :- Civil Revision Petition is filed under Article 227 of Constitution of India, against the fair and decreetal order dated 20.03.2014 in I.A.No.22 of 2014 in O.S.No.5387 of 2011 on the file of the XV Additional Sessions Court, Chennai.

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For Petitioners : Mr.K.Sellathurai For Respondent : Mr.N.Gopikrishnan

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O R D E R

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The Civil Revision Petition is filed against the fair and decreetal order dated 20.03.2014 in I.A.No.22 of 2014 in O.S.No.5387 of 2011 on the file of the XV Additional Sessions Court, Chennai.

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2.The respondent herein as a plaintiff filed a suit for specific performance on the basis of the sale agreement dated 07.03.2005. During pendency of suit, the plaintiff filed an application for amending the prayer including alternative prayer for return of advance amount. The trial Court, after hearing both sides, allowed the application. During commencement of trial, after closing of both sides evidence and when the matter was posted for arguments, an application was filed by the plaintiff to recall P.W.1 for marking Ex.P25 and that has been allowed by the trial Court. When the matter was posted for cross-examination of P.W.1 in respect of Ex.P25, the defendants filed an application in I.A.No.22 of 2014 for submitting the decree in respect of alternative prayer to refund of advance money. The trial Court, after hearing both sides, dismissed the same, against which, the present revision petition has been preferred by the revision petitioners/defendants.

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3.The learned counsel for the revision petitioners submitted that the trial Court has erred in dismissing the application, because once the revision petitioners/defendants claiming refund of money by submitting the decree, there is no necessity for granting decree for specific performance and that the trial Court ought to have allowed the application and decreed the suit in respect of the alternative prayer.

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(i) To substantiate his arguments, he relied upon the decision of the Apex Court reported in (2001) 6 SCC 600 (A.C.Arulappan v. Ahalya Naik) and submits that in the suit for specific performance, the discretion of the Court in respect of grant of decree for specific performance, it is not to be exercised in arbitrary or unreasonable manner.

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(ii) In yet another decision of the Apex Court reported in (2011) 12 SCC 658 (Vimaleshwar Nagappa Shet v. Noor Ahmed Shariff and others) , in para-11, it was held that value of property escalates in urban areas very fast and it would not be equitable to grant specific performance after the lapse of a long period of time.

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(iii) Relying upon the decision of this Court reported in (2014) 1 MLJ 138 (G.Anbazhagan and others v. G.Manoharan

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(deceased) and others), submitted that in the plaint itself, the plaintiff/respondent herein has pleaded that in pursuance of the sale agreement, he claims possession of the suit property, for which, the sale agreement must be registered, but it is an unregistered document. So the plaintiff is not entitled to relief of specific performance.

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(iv) He has also relied upon Section 17 of the Registration Act.

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(v) In yet another decision of this Court reported in 2013 (2) CTC 832 (D.Balachandran, Prop. of Balu Tex, Loganathapuram, Erode Taluk and District v.

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T.C.Shanmugam) , it was held that unstamped sale agreement is not admissible in evidence.

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Therefore, he prayed for allowing the revision petition.

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4.Resisting the same, learned counsel for the respondent/plaintiff submitted that as per clause(5) of the sale agreement, dated 07.03.2005, three months time has been granted to complete the sale deed. Even though the plaintiff was always ready and willing to perform his part of contract, the defendants have not executed the sale deed. Hence, he filed a suit before the High Court even in the year 2005 and due to escalation in price, the

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revision petitioner refused to execute the sale deed. It is further submitted that the decision relied upon by the petitioner's counsel reported in (2011) 12 SCC 658 (Vimaleshwar Nagappa Shet v. Noor Ahmed Shariff and others), is not applicable to the facts of the present case. It is further submitted that as per Section 22(2) of the Specific Relief Act, the plaintiff is entitled to alternative prayer for return of advance amount and the plaintiff has also filed the amendment petition to amend the alternative prayer and the same was also allowed by the trial Court. Merely because the plaintiff is claiming alternative prayer, it will not take away the right of decree for specific performance. Thereafter, trial has been commenced, both sides evidence was closed, P.W.1 was recalled for marking Ex.A25 and when the matter was posted for cross-examination of P.W.1 in respect of Ex.A25, the present application was filed by the revision petitioners/defendants with a view to drag on the proceedings. The trial Court, after considering all the aspects in proper perspective, rightly dismissed the application. Therefore, he prayed for dismissal of the revision petition.

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5.Considered the rival submissions made on both sides and perused the typed set of papers.

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6.The respondent herein as a plaintiff filled a suit for specific performance on the basis of the sale agreement dated 07.03.2005 before this Court, which was taken on file as C.S.No.978 of 2005. The admitted fact is that the plaintiff is a tenant in the suit property, before he entered into the sale agreement with the defendants. It is the case of the respondent/plaintiff that there was an oral agreement between him and the defendants and after they entered into a sale agreement, they orally agreed not to pay the rent till the execution of the sale deed. So after entering into the sale agreement, the plaintiff has not paid any rent and he is in possession. So the plaintiff has not pleaded part performance under Section 53-A of the Transfer of Property Act and hence, the sale agreement need not be registered. Therefore, the decisions in (2014) 1 MLJ 138 (G.Anbazhagan and others v. G.Manoharan (deceased) and others) and 2013 (2) CTC 832 (D.Balachandran, Prop. of Balu Tex, Loganathapuram, Erode Taluk and District v. T.C.Shanmugam) , are not applicable to the facts of the present case.

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7.As already stated that the plaintiff is a tenant in the suit property. Since the plaintiff is in possession of the suit property

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much prior to the execution of sale agreement and he is continuing

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his possession, after execution of sale agreement. In such circumstances, I am of the view, sale agreement need not be registered, since the possession of the plaintiff has not been given in pursuance of the sale agreement as a part performance under Section 53-A of the Transfer of Property Act. If any transfer of property is made after entering into sale agreement and in pursuance of the same, if any possession has been handed over to the agreement holder, then only the sale agreement to be registered as per the amendment came into effect in the year 2001 in Section 17 of the Registration Act. So the decision relied upon by the learned counsel for the petitioner reported in 2013 (2) CTC

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832 (D.Balachandran, Prop. of Balu Tex, Loganathapuram, Erode Taluk and District v. T.C.Shanmugam) , is not applicable to the facts of the present case. Because in the above decision, the document is a lease deed and if a lease period is more than 11 months, the document must be registered, but the sale agreement need not be registered.

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He also relied upon the decision of this Court reported in (2014) 1 MLJ 138 (G.Anbazhagan and others v. G.Manoharan

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(deceased) and others), wherein it was held that since the possession has not been handed over to the agreement holder in pursuance of the sale agreement, the document need not be registered. Further, it was held that once the plaintiff has come to the Court with false case, he is not entitled any discretionary relief of specific performance. As already stated that he is a tenant and his possession has not been granted in pursuance of the sale agreement. So the document need not be registered. Furthermore, whether the plaintiff putforth false case or not has to be decided only at the time of trial, after considering oral and documentary evidence. So I am of the view, the above decision is not applicable to the facts of the present case.

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9.Admittedly, the sale agreement came into existence during March 2005 and three months time has been granted for completion of sale deed and the suit was also filed in the year 2005. Under such circumstances, the argument advanced by the learned counsel for the petitioner that due to escalation in price, the plaintiff filed a suit, does not merit acceptance. So the decision reported in (2011) 12

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SCC 658 (Vimaleshwar Nagappa Shet v. Noor Ahmed Shariff

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and others) , is not applicable to the facts of the present case.

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Because in the case on hand, the suit is filed in the year 2005 itself and the same was taken as before this Court in C.S.No.978 of 2005.

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10.Learned counsel for the petitioner relied upon the decision reported in (2001) 6 SCC 600 (A.C.Arulappan v. Ahalya Naik) and submitted that it is a discretion of the Court to grant relief of specific performance and at the time of exercising discretion, it is not to be exercised in arbitrary or unreasonable manner.

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11.Considering the aforestated circumstances along with the above decisions, the suit is for specific performance and the trial Court recorded the evidence and when it was posted for arguments, the trial Court ought to have exercised judicial discretion either to grant specific relief or to grant alternative prayer for refund of advance amount with interest and it is left open to the trial Court. In my considered opinion, the revision petitioners herein have come forward with the application for submitting the decree as if they forced the trial Court to pass a decree only in respect of refund of advance amount with interest. In such circumstances, the trial Court considered all the aspects in proper perspective and dismissed the application stating that it is not the stage to decide

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the matter. Therefore, the impugned order passed by the trial Court does not warrant any interference and the revision petition deserves to be dismissed and it is hereby dismissed.

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12.Accordingly, the Civil Revision Petition is dismissed. However, since the suit is at the stage of arguments, the trial Court is directed to dispose of the suit on or before 20.08.2014. No costs. Consequently, connected Miscellaneous Petition is closed.

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17.07.2014

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Internet:Yes

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Note: Issue order copy on 22.07.2014.

R.MALA,J.