Allowed

K.M.Krishnan v. R.Pattu

Madras HC16 Dec 2021SA/1104/2012

Case brief

AI extract

What is this about?

In a second appeal concerning a suit for specific performance of a sale agreement, the High Court held that the appellant was ready and willing to perform his part of the contract, despite disputes over land extent. The court set aside the lower appellate court's verdict and modified the trial court's decree to grant specific performance, directing the defendant to facilitate registration after th

What did the court decide?

Second appeal allowed; lower appellate court judgment set aside; trial court decree modified to grant specific performance; time given for deposit of balance amount.

K.M.Krishnan Vs R.Pattu — Specific Performance | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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JUDGMENT RESERVED ON : 08.12.2021

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JUDGMENT DELIVERED ON : 16.12.2021

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CORAM

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THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN

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S.A.NO.1104 OF 2012

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K.M.Krishnan

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...Appellant/Plaintiff

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.Versus.

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*** R.Pattu**

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...Respondent/Defendant

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PRAYER:-

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This Second Appeal has been filed under Section 100 of C.P.C., against the judgment and decree in A.S.No.13 of 2011 dated 16.07.2012 on the file of the Principal District Court, Krishnagiri, confirming the judgment and decree made in O.S.No.100 of 2010 dated 01.11.2010 on the file of the Principal Subordinate Court, Krishnagiri.

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For Appellant : Mr.Om prakash, Senior Advocate For Mr.C.Samivel

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For Respondent : Mr.R.Dhinesh Kumar

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The unsuccessful plaintiff is the appellant herein.

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The brief facts leading to filing of Second Appeal:-

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a) The plaintiff has filed a suit in O.S.No.100 of 2010 before the Subordinate Court, Krishnagiri, for specific performance of Ex.A1/Suit Sale Agreement in respect of the schedule mentioned property of an extent of 10 cents in Survey No.283/3B1 and as per the terms of the said Agreement of Sale, he had already paid a sum of Rs.3,00,000/- on the date of agreement viz., 01.09.2006; on 02.09.2006, he has paid a sum of

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Rs.50,000/-; on 05.09.2006, he has paid a sum of Rs.1,00,000/-. In toto, Rs.4,50,000/- was paid to the defendant.

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b) Originally, the sale consideration was fixed at Rs.6,90,000/- and the plaintiff has already part paid with Rs.4.5 lakhs. Based upon the part payment of sale consideration, the respondent/defendant has discharged the housing loan with Cooperative Department and obtained original sale deed and handed over the original sale deed and other Revenue documents of the land and building in the suit property to the plaintiff/agreement holder. As per Ex.A1, three months time is fixed for payment.

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c) Thereafter, Ex.A6/Legal notice was issued by the plaintiff on 18.01.2007 by expressing his readiness and willingness to execute his part of the contract and subsequently, the same was returned on 05.02.2007. The defendant/owner also issued a legal notice that he is willing to refund the advance amount, since the sale had not been completed within the stipulated time as per the terms under Ex.A1/Suit Sale Agreement.

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d) Thereafter, the plaintiff has filed the said suit in O.S.No.100 of 2010 with the above prayer and the same was dismissed in respect of the main relief and in view of the willingness expressed by the defendant/owner, it appears that learned Subordinate Judge has granted return of the advance amount paid with interest, though there is no specific prayer in this regard. Aggrieved by the said order, the plaintiff has filed an appeal in A.S.No.13 of 2011 before the District Court, Krishnagiri and the same was dismissed and hence the Second Appeal is filed by the plaintiff.

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The above Second Appeal was admitted on 21.11.2012 on the following Substantial Questions of Law:

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"1. Whether the Courts below are justified in holding that the time is essence of the contract, when the same is not pleaded by the respondent?

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Whether the Courts below are justified in relying on the evidence of the respondent, which was not pleaded in the written statement, for dismissing the suit?

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Whether the Courts below are justified in holding that the appellant is not ready and willing to perform his part of contract, when the appellant has proved by documents that he is always ready and willing to perform his part of contract?"

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Mr.Om Prakash, learned Senior Counsel appearing for the appellant contended that though Ex.A1/Suit Sale Agreement, is for an extent of 10 cents, 2 1/2 cents were already acquired for Highways and available extent of land is 7 1/2 cents. He further contended that, in view of the reduction in the extent of land covered under Ex.A1/Suit Sale Agreement, the sale consideration has come down to Rs.67,500/-, viz. the balance amount to be paid and he is already willing to deposit the said amount and since it is meager amount, non payment of such amount cannot be put against the plaintiff/agreement holder.

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The terms of Ex.A1/Suit Sale Agreement have been invited to my attention. Based upon the part of the sale consideration paid and received by the defendant, the existing loan in cooperative Bank was discharged on 30.09.2006, as could be seen from Ex.A5/loan discharge receipt.

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Before the Lower Appellate Court, the factual position is that the property is standing in the name of the defendant alone and not in the joint name of the wife. The Patta Pass Book stands in the name of the respondent/defendant alone. The subsequent payment of Rs.50,000/- and Rs.1,00,000/- on 02.09.2006 and 05.09.2006, have been made a due endorsement on the reverse of Ex.A1/Suit Sale Agreement, though it is not specifically marked, and the defendant has not chosen to dispute the same and hence, the sale consideration so far paid comes out to a sum of Rs.4.5 lakhs.

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The learned Senior Counsel appearing for the appellant draw my attention to the terms of Ex.A1/Suit Sale Agreement to the effect that there is a specific clause in the said agreement that before the registration of the sale deed, land has to be measured and there was acquisition of lands by the Highways Department, and the same was refuted by the defendant/owner both in the written statement as well as in the evidence that even before Ex.A1/Suit Sale Agreement, the land acquisition proceedings for Highways have been duly complied with and the same was admitted by P.W.1. One of the main reason that was put against the plaintiff is that after acquisition, the extent of land is not of 10 cents and it is only 7.5 cents and 2.5 cents have been taken by the Highways Department.

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The readiness and willingness on the part of the plaintiff was tested by the Trial Court on the ground that three months period had expired and only thereafter, legal notice was issued and consequently with regard to the alleged shortage of lands, no documents have been produced before the Trial Court at the time of hearing. In the additional typed set of papers, Patta in the name of the respondent in respect of 7.5 cents and rough sketch were filed.

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In order to decide the above Substantial Questions of Law, the following points arises for consideration:-

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(i) Whether the appellant/plaintiff is ready and willing to perform his part of contract?

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(ii) Whether there is a clause in Ex.A1 that before registration, the property has to be measured, and

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(iii) Whether the defendant has not co-operated for measuring the land, and there is lapse on his part or not.

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The appellant/plaintiff filed a suit for specific performance of the suit sale agreement Ex.A1. The terms of the agreement are admitted by both the parties, and the sale consideration is fixed at Rs.6.90 lakhs and the plaintiff/agreement holder has to pay Rs.3 lakhs to discharge the home loan existing upon the balance of Rs.1.5 lakhs. Balance has to be paid on or before 30.11.2006. Pursuant to the said Ex.A1 terms, Rs.3 lakhs was paid on the date of the execution of the sale agreement, namely on 1.9.2006. Accordingly, the plaintiff has paid another Rs.50,000/- on 2.9.2006 and another Rs.1 lakh on 5.9.2006 which is evident from the endorsement made in Ex.A1 on 18.01.2007 under Ex.A6 legal notice and he has expressed his willingness to perform his part of the contract.

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The lower Court records reveal that the balance amount is not deposited in the Court. However, he has expressed his willingness, since the balance of the amount is too low and further expressed that under Ex.A6 legal notice, he has stated that schedule property, is measuring only to an extent of 10 cents. According to the plaintiff/agreement holder, there was a land acquisition for the Highways road, after highways it is left with 7.5 cents and therefore, reducing the amount as agreed thereon to the available ground, namely for 7.5 cents, balance to be paid is only Rs.67,000/-. In other words, in view of the land acquisition taken for the Highways, the extent is reduced from 10 cents to 7.5 cents. Accordingly, the balance sale consideration has now come down to Rs.67,500/-, which the plaintiff is ready to deposit.

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The learned counsel for the respondent submitted that no notice or payment was made during the stipulated period, namely on or before 30.11.2006. As per the endorsement made in Ex.A1, as observed supra, subsequent to the entering upon agreement, further payment of Rs.50,000/- was made on 2.9.2006 and Rs.1 lakh was made on 5.9.2006 and hence, the said contention that after the sale agreement, no further payment was made by the plaintiff, stands negatived. No legal notice is said to have

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been issued. Under Ex.A6, oral demand was said to have been made on 03.11.2007, which was disputed.

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Ex.A1 is perused. As per the terms, 3 months' period is stipulated and there is also a specific term in respect of surveying the land before registration. The oral evidence adduced by the defendant/D.W.1 runs contrary to the clause contained in Ex.A1 and hence, I have no hesitation to reject the oral evidence of D.W.1 in this regard.

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Admittedly, P.W.1, agreement holder/plaintiff both in Ex.A6 legal notice as well as in pleadings as well as in the witness box, had categorically stated that the extent of land covered under Ex.A1 is reduced from 10 cents to 7.5 cents. The same was disputed by the D.W.1. A snap answer has been taken in cross-examination of P.W.1. Though there is an oral assertion by D.W.1 that 10 cents is available on record, I find that Ex.A3 has been filed; A3 and A4 are Patta Passbook in the name of the defendant. A3 is the patta book in the name of the defendant, where the extent is shown as in the computer patta produced and the extent in Survey No.283 sub division 3(b)(1)(b) measures 3 Ares. In other words 3x2.47=7.41 and only 7.41 cents are present. So is Exhibit A3. I find that the oral evidence of D.W.1 as to the extent available on ground and that after the land acquired for the Highways in 7.5 cents, I find that the stand taken by the defendant/land owner in his oral evidence is to be rejected.

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Whether the appellant/plaintiff is ready and willing to perform his part of the contract, as required under Section 16 (3) of the Specific Relief Act, has to be considered. Agreement was entered on 1.9.2006 with 3 months stipulation time' for performance of contract. Within the stipulated period, he has made a further payment of Rs.50,000/- on 2.9.2006 and further payment of Rs.1,00,000/- on 05.09.2006, and the same assumes significance and to substantiate the readiness and willingness on the part of the appellant/plaintiff, the further payment was made by the plaintiff to the tune of Rs.3 lakhs+Rs.1.5 lakhs =Rs.4.5 lakhs. It appears that the defendant had redeemed the loan availed from the Housing Society, as could be seen from Ex.A4 passbook standing in the name of the respondent/defendant issued by the house building society, for which loan discharge receipt was issued under Ex.A5 on 13.9.2006. Thus, I find that pursuant to the agreement, the plaintiff has made further payment of Rs.50,000/- and Rs.1 lakh on 2.9.2006 and 5.9.2006 and thereafter on 13.09.2006, the defendant/land owner has redeemed the existing housing loan with society and also returned the originals of sale deed.

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The original sale deed was handed over to the appellant/plaintiff and the appellant/plaintiff has filed the same in the Court as Ex.A2. In other words, the original sale deed standing in name of the respondent/defendant, is marked as Ex.A2 by the plaintiff which goes to show that after discharge of the standing loan in the housing building society, and also further amount was paid by the appellant/plaintiff. The loan was discharged and the originals were returned to the owner, who in turn had handed over the same to the plaintiff, which goes to show that the plaintiff had intention to purchase the property, namely willingness to purchase the property had been clearly demonstrated by the plaintiff.

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Thus, I find that in between 01.09.2006 and 13.09.2006 the transaction that had taken place, as could be seen from Exs.A1 to A5. The plaintiff has demonstrated his readiness and willingness to perform his part of the contract and there is a specific pleading in the evidence in this regard, coupled with the documentary evidence Exs.A1 and A5.

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Now coming to the second condition in Ex.A1 agreement that before the registration of land, it has to be surveyed and to that extent, there is a specific clause in Ex.A1 sale agreement.

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It is disputed by the defendant that 10 cents as agreed, which is available on ground and however plaintiff assets that only 7.5 cents are available on ground. Accordingly, he has reduced the sale consideration in that proportion, and after adjusting the amount already paid, namely Rs.4.5 lakhs, balance has to be paid for the land on ground, namely Rs.67,500/-, for which he made a oral demand on 3.1.2007 and subsequently, there was legal notice under Ex.A6 on 18.01.2007, which goes to show that all is not well in the attitude of the defendant.

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It remains to be stated that as per Exs.A3, A4 and the computerized patta issued, I find that a statement therein that on ground, land available is only 7.5 cents and hence, the stand taken by the defendant appears to be erroneous on factual ground. Thus, I find that the plaintiff has successfully pleaded and proved his readiness and willingness on the part of the contract and he has also made further payment on 2.9.2006 and 05.09.2006 and based upon the further payment, the defendant has cleared the housing loan and also handed the receipt of payment and the got back the original sale deed from society and hand over to plaintiff and he filed the original sale deed as Ex.A2 before the trial Court. Thus, I find that, in view of the specific clause mentioned in the sale agreement/A1, to survey the land before the registration and the legal notice issued by Ex.A6 is found to be correct on the factual ground. Accordingly,

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I hold that the plaintiff is entitled for specific performance of the agreement dated 01.09.2006 under Ex.A1. Hence, the judgment and decree of the trial Court is modified.

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The Substantial Questions of Law and also the points framed by this Court, are answered in the above terms. Accordingly, this Second Appeal is allowed. No costs. The judgment and decree of the Lower Appellate Court are hereby set aside and the judgment and decree of the Trial Court in O.S.No.100 of 2010 is modified into the main relief of specific performance. Time for deposit of balance amount to be paid within a period of one month from the date of receipt of a copy of the judgment. No costs.

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Sd/-

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Assistant Registrar(CCC) 12/01/2022

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Corrected Order as per Letter dated 08/02/2022 by J.R.(J)

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Sd/-

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Assistant Registrar(CCC) 09/02/2022

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//True Copy//

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Sub Assistant Registrar

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nvi

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The Principal District Court, Krishnagiri.

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The Principal Subordinate Court, Krishnagiri.

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Copy To:-

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Corrected Order to be

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Substituted for the Orders already

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already despatched on 27/01/2022

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

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+1cc to Mr.C.Samivel, Advocate, S.R.No.67572

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S.A.NO.1104 OF 2012

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SR(CO) SP(19/01/2022) PBS/10/02/2022

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K.M.Krishnan v. R.Pattu

Case brief

What is this about?

What did the court decide?

K.M.Krishnan v. R.Pattu

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

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