Dismissed

P. Balasubramaniam v. S. Ponnusami

Madras HC8 Jul 2021AS/88/2015

Case brief

AI extract

What is this about?

This is an appeal against a trial court decree allowing specific plaintiffs to recover an advance payment of Rs.12 lakhs under an agreement for sale dated 2012. The court found the defendants failed to produce required legal heir certificates within the stipulated time, constituting default. The appeal was dismissed, affirming the trial court's order.

What did the court decide?

The first appeal is dismissed. No order as to costs.

P. Balasubramaniam Vs S. Ponnusami — Specific Performance | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 08.07.2021

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CORAM:

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THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN

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AS.NO.88 OF 2015

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1.P.Balasubramaniam

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2.Rajalakshmi
3.Gokilambal

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4.P.Ramya ...Appellants / Defendants

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Vs.

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1.S.Ponnusami

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2.Senniappan ...Respondents / Plaintiffs

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PRAYER : Appeal Suit is filed under Section 96 of CPC against
the judgment and decree passed in OS.No.306 of 2013 dated
21.11.2014 on the file of the III Additional District Judge,
Tharapuram, Tirupur District

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For Appellants :Mr.V.Balamurugane
For Respondents :Mr.A.K.Sridharan

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JUDGMENT

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The Appeal suit is filed against the judgment and decree
passed in OS.No.306 of 2013 dated 21.11.2014 on the file of the
III Additional District Judge, Tharapuram, Tirupur District.

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2. For the sake of convenience, the parties are referred
to as per their ranking in the trial Court.

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3. The suit is filed for recovery of money. The case of
the plaintiffs is that the suit properties owned by the
defendants. The plaintiffs agreed to purchase the suit property
from the defendants for the total sale consideration of
Rs.39,29,550/- and paid a sum of Rs.12,00,000/- as advance
towards part of the sale consideration by the agreement for sale
dated 03.03.2012. There is specific condition to perform their
respective part of the contract within a period of 140 days from
the date of the agreement. Though the plaintiffs were ready to
perform their part of the contract, the defendants did not come
to perform their part of the contract. Inspite of several

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https://hcservices.ecourts.gov.in/hcservices/

¶19

request made by the plaintiffs to execute the sale deed in their
favour, the defendants evaded execution of the sale deed.
Therefore, finally the plaintiffs caused legal notice dated
18.02.2013 to repay the advance amount of Rs.12,00,000/- with
interest at the rate of 24% per annum. Hence, the suit for
recovery of money.

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4. Resisting the same, the defendants filed written
statement stating that all the original documents and
encumbrance certificate along with the other documents were
handed over even before entering into the agreement for sale to
the plaintiffs. In fact, the defendants also were ready to
perform their part of the contract. In the first legal notice
issued by the plaintiff, fixed date for execution of the sale
deed as 20.07.2012 and on that date, when the defendants were
present before the concerned Registrar Office for execution of
the sale deed, the plaintiffs were not present and therefore
they forfeited to refund of any advance amount which was paid by
them. Hence, prayed for dismissal of the suit.

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5. On hearing the rival pleadings, the learned trial
Judge framed the following issues for determination of the
suit :-

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1/ thjpfs; nfhhp Kd; gzj;bjhif mth;fs; nfhhpa

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gpd;tl;oa[ld; fpilf;fj;jf;fjh>

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2/ bghWg;g[Wjp jPh;g;ghiz thjpfSf;F fpilf;fj;jf;fjh>

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3/ ntW vd;d ghpfhuk;>

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6. In support of the plaintiffs’ case, P.W.1 and P.W.2
were examined and nineteen documents were marked as Ex.A.1 to
Ex.A.19. On the side of the defendants, D.W.1 was examined and
Ex.B.1 to Ex.B.11 were marked. On considering the oral and
documentary evidences adduced by the respective parties and the
submission made by the learned counsel, the trial Court decreed
the suit and directed the defendants to pay a sum of
Rs.12,00,000/- with interest at the rate of 6% per annum.
Aggrieved by the same, the defendants have preferred the present
appeal suit.

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7. The learned counsel for the appellants would submit
that as per the Ex.A1 dated 03.03.2012, the agreement for sale,
there is a specific condition that non performance of part of
the contract, if was due to fault of the vendor, they will lose
the sale advance and if it was due to the fault of the land
owners, then vendor will have right to get sale deed executed
through court. When the defendants were ready to execute the
sale deed in favour of the plaintiffs on 20.07.2012, the
plaintiffs were not present to perform their part of the
contract and as such the plaintiffs lost their right in respect
of the advance amount paid by them. He further submitted that

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https://hcservices.ecourts.gov.in/hcservices/

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the alleged agreement for sale is unregistered dated 03.03.2012
and there is specific clause providing refund of advance amount
to the purchasers by the vendors which shows such situation
never contemplated between the parties at that time. It is the
admitted case that the suit property was sold only for want of
money to the vendors. Therefore, the suit itself is not
maintainable and liable to be dismissed.

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8. Per contra, the learned counsel for the respondents
submitted that as per the agreement for sale which was marked as
Ex.A1 dated 03.03.2012, the defendants received a sum of
Rs.12,00,000/- towards part of the sale consideration in respect
of the suit property. It is categorically admitted by DW1 and in
fact he deposed that on receipt of the legal notice, call upon
the defendants to refund the advance amount, they did not have
money and as such they did not reply to the legal notice caused
by the plaintiffs. If money is available, they have no objection
to refund their advance amount. Therefore, the admitted fact
need not be proved and accordingly the court rightly decreed the
suit and prayed for dismissal of the appeal suit.

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9. Heard, Mr.V.Balamurugane, the learned counsel for the
appellants, and Mr.A.K.Sridharan, the learned counsel for the
respondents.

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10. The suit is filed for recovery of money. Admittedly,
the plaintiffs and the defendants entered into agreement for
sale dated 03.03.2012, which was marked as Ex.A1. Accordingly,
the total sale consideration was fixed at Rs.39,29,550/- and a
sum of Rs.12,00,000/- was paid as advance towards part of the
sale consideration. The receipt of the advance amount was duly
acknowledged by the defendants. Further, the time was fixed for
performing their part of the contract within the period of 140
days from the date of the agreement. Admittedly, the defendants
failed to produce the legal heir certificate and as such without
legal heir certificate, the plaintiffs refused to purchase the
suit property. As per the agreement, if the defendants 1 to 3
failed to produce the legal heir certificate of their father,
all the legal heirs have to execute the sale deed. Even after
completion of 140 days, i.e. on 20.07.2012, the defendants 1 to
3 did not produce the legal heir certificate as per the
agreement. The legal notice issued by the plaintiffs was marked
as Ex.A2 dated 16.07.2012 and the same was duly received by the
defendants on 19.07.2012. As per the legal notice, the
defendants were called upon to be present before the Sub
Registrar Office, Kangeyam to perform their part of the contract
on 20.07.2012.

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11. PW2 categorically deposed that on the date, i.e.
20.07.2012, the plaintiffs were present in the Registrar Office,
and whereas the defendants never presented before the Registrar

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https://hcservices.ecourts.gov.in/hcservices/

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Office on 20.07.2012. Therefore, the defendants failed to
perform their part of the contract as agreed by them. That
apart, DW1 categorically admitted the receipt of the advance
amount and also repayment of the advance amount. The relevant
portion of DW1 is extracted as follows:

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thrhM14 mwptpg;gpw;F eh';fs; gjpywptpg;g[ bfhLf;ftpy;iy vd;why; rhp/ thrhM14y; cs;s r';fjpfis eh' ; fs; xg;g[f;bfhz;ljhy;jhd; mjw;F kWg;g[ mwptpg;g[ mDg;gtpy;iy vd;why; rhpay;y/ jpUg;gp bfhLf;f gzk; ,y;yhjjhy; kWg;g[ mDg;gtpy;iy/ thjpfs; nfl;Lf;bfhz;lgo jpUg;gp gzk; bfhLf;f ifrtk; gzk; ,yiy/ gzk; ,Ue;jhy; th';fpa gzj;ij jpUg;gp bfhLf;f Ml;nrgiz ,y;iy/ ,lj;ij tpw;why;jhd; gzj;ij bfhLf;fKoa[k;/

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12. As per the agreement for sale dated 03.03.2012, the
defendants failed to perform their part of the contract and as
such they are liable to refund the advance amount which was
received by them with interest. Hence, the court below rightly
decreed the suit and the judgment and decree passed by the court
below do not warrant any interference of this Court.

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13. In fine, the first appeal is dismissed. No order as
to costs.

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Sd/-
Assistant Registrar
// True Copy //

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Sub Assistant Registrar

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lok

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To

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The III Additional District Judge,
Tharapuram,
Tirupur District.

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Copy To
 The Section Officer,
 V.R.Section,
 High Court, Madras.

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+1cc to Mr.V.Balamurugane, Advocate SR.No.32332

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AS.No.88 of 2015

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PA(CO)
RVM(01/11/2021)

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https://hcservices.ecourts.gov.in/hcservices/

P. Balasubramaniam v. S. Ponnusami

Case brief

What is this about?

What did the court decide?

P. Balasubramaniam v. S. Ponnusami

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Parties & counsel

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