Appeal against denial of specific performance of an unregistered sale agreement. The court found the plaintiff failed to prove readiness and willingness to pay the balance consideration, affirmed the trial court's refusal of specific performance, and reversed the award of litigation costs against the defendants who had voluntarily offered refund.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
A.S.(MD)No.10 of 2013 and C.R.P.(MD)No.1541 of 2013 (NPD)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reserving the order Date of Pronouncing the order 16.02.2023 02.03.2023
CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN and THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
A.S.(MD)No.10 of 2013 & C.M.P.(MD)No.11303 of 2022 and C.R.P.(MD)No.1541 of 2013 (NPD) & M.P.(MD)No.1 of 2013
A.S.(MD)No.10 of 2013:-
J.Suniram ... Appellant vs.
1.M.Razia Beham 2.M.Sulthan Ibrahim 3.M.Rafia 4.M.Palkil
... Respondents
Prayer :- First Appeal filed under Section 96 of C.P.C., to allow the above Appeal filed by the appellant and consequently, set aside the judgment and decree of dismissing the suit in O.S.No.95 of 2009, on the file of the Additional District-cumSessions Judge, Dindigul, dated 20.09.2012 with cost.
For Appellants : Mr.S.A.Ajmalkhan For Respondents : Mr.M.Ajmalkhan Senior Counsel for M/s.Ajmal Associates
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C.R.P.(MD)No.1541 of 2013 (NPD):-
1.M.Razia Beham 2.M.Sulthan Ibrahim 3.M.Rafiya 4.M.Balkees ... Petitioners
vs.
J.Suniram
... Respondent
Prayer :- Civil Revision Petition filed under Article 227 of the Constitution of India, against the order dated 14.02.2013, made in O.S.No.95 of 2009, on the file of the Additional District and Sessions Judge, Dindigul.
For Petitioners : Mr.M.Ajmalkhan Senior Counsel for M/s.Ajmal Associates
For Respondent : Mr.S.A.Ajmalkhan
COMMON JUDGMENT
DR.G.JAYACHANDRAN, J.
Appeal Suit(MD)No.10 of 2013 filed by the plaintiff being not satisfied with
the judgment and decree passed on 20.09.2012, in O.S.No.95 of 2009, on the file of Additional District and Sessions Court, Dindigul.
the suit.
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sale of immovable property with the defendants, the legal heirs of the late Mohammed Yusuf Ravuththar, who died intestate on 24.11.2003, leaving behind the suit schedule property. The defendants agreed to sell the suit scheduled property, admeasuring 2 Acres and 39 ½ Cents at the rate of Rs.25,000/- per Cent and received advance of Rs.10,00,000/- through cheque drawn at State Bank of India, Thousand Light Branch, Chennai, and agreed to hand over the original documents related to the property within three months and execute the sale deed on receipt of the balance sale consideration. At the time of entering into the agreement, the defendants assured that they have not agreed to sell the property to anyone else earlier and if any such agreement made, they will cancel the same and get the no objection letter from the previous agreement holder. Likewise, if the vendors could not complete their part of contract, the buyer can cancel the sale agreement, get refund of the advance money.
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agreement, but the defendants delayed in handing over the original documents, pertaining to the suit property and the death certificate of Mohammed Yusuf Ravuththar. They did not arrange for survey and measure the property. The plaintiff later came to know that the said Mohammed Yusuf Ravuththar, during his life time, had entered into a sale agreement with one M.P.Murugesan on 30.03.1999 and received advance of Rs.5,00,000/-. He has also executed a Power of Attorney Deed in favour of M.P.Murugesan and handed over the title documents to the said
Murugesan and these facts were deliberately suppressed by the defendants. Knowing the earlier agreement with Murugesan, the plaintiff caused notice, dated 05.05.2008 to the defendants to cancel the previous sale agreement and power of attorney executed in favour of Murugesan by Mohammed Yusuf Ravuththar and executed the sale deed in his favour, receiving the balance sale consideration. To the said notice, the defendants/respondents through a reply notice, dated 15.05.2008, informing that they have sent notice to Murugesan on 14.05.2008 to cancel the deed he had entered with Mohammed Yusuf Ravuththar and hand over the original documents held by him.
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encumbrance to the suit property and in the said suit, ad-interim injunction was granted. Subsequent to the suit, the plaintiff, through mediators, tried to bring the defendants to execute the sale deed after deducting 28 Cents of land acquired by the Government for road expansion, but the said attempt failed, since the defendants demanded additional sum of Rs.10,000/- per Cent without excluding 28 Cents acquired by the Government. Hence, the suit for specific performance to execute sale deed in respect of 2 Acres and 11 ½ Cents of land or in alternate, to refund of advance amount Rs.10,00,000/- with compensation of Rs.5,00,000/- for mental agony with 24% interest.
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the reply notice, dated 15.05.2008, the defendants gave one month time for the plaintiff to pay the balance money and get the sale deed registered. Despite the extension of time, the plaintiff did not make any attempt to fulfil the terms of the agreement. The plaintiff instead of paying the balance sale consideration within the extended period, filed a vexatious suit at Palani Sub-Court in O.S.No.209 of 2008 and same was dismissed for default on 30.10.2009. The plaintiff failed to pay the balance sale consideration within the time agreed and get the sale deed executed in his favour. However, the defendants as per the terms of the agreement, returned the advance money through two demand drafts each for Rs.5,00,000/- drawn in favour of the plaintiff on 02.11.2009 and 03.11.2009. The plaintiff, who received the drafts on 05.11.2009 sent through post, returned the drafts along with his lawyer notice, dated 13.11.2009. Thus, the agreement duly terminated and even now the defendants are ready to deposit the advance money in the suit account for the plaintiff to receive. The breach of agreement is in fact committed by the plaintiff. He was never ready and willing to perform the contract. Hence, the defendants are not liable to pay any compensation as claimed in the suit. By inventing new reasons to cover up his incapacity to pay the balance amount, the suit for specific performance is filed without any cause of action.
(1) Whether the defendants to be directed to receive the balance sale https://www.mhc.tn.gov.in/judis
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consideration of Rs.42,87,500/- and execute the sale deed in respect of the suit property accepting the plea of the plaintiff to specifically perform the contract?
(2) Whether the plaintiff is entitled for alternate relief of refund of Rs.15,00,000/- with 24 % interest?
(3) Whether the plaintiff has failed to perform his part of contract and therefore, the suit agreement become expired?
(4) Whether the plaintiff is entitled for any other relief?
07.05.2008 and the acknowledgment card is marked as Ex.A.3. The notice sent to the defendants 1, 3 and 4 returned as unserved and the unserved covers are marked as Ex.A.4. Thereafter, the plaintiff has caused a public notice in the local vernacular
newspaper on 14.11.2008, warning the third parties from entering into any sort of https://www.mhc.tn.gov.in/judis
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agreement with the defendants in respect of the suit property. The said notice cautioning the public is dated 14.11.2008 and the same is marked as Ex.A.6. Two demand drafts each Rs.5,00,000/- drawn in favour of the plaintiff by the defendants along with Advocate notice, informing that they have cancelled the agreement and returning the advance money received is marked as Ex.A.8. The demand drafts sent back to the plaintiff along with their reply is marked as Ex.A.9. To show that the plaintiff had enough fund to pay the sale consideration, the plaintiff has marked the bank passbook as Ex.A.15, Ex.A.16 and Ex.A.17. The documents relied by the defendants are the judgment and decree passed by the Sub Court, Palani, in O.S.No. 209 of 2008, dated 16.10.2009. The title deed of the properties indicating Mohammed Yusuf Ravuththar as the Title Holder is marked as Ex.B.5 and Ex.B.6. The Patta in favour of Mohammed Yusuf Ravuththar, Death Certificate of Mohammed Yusuf Ravuththar, Legal Heirship Certificate of Mohammed Yusuf Ravuththar, cancellation of Power of Attorney Deed executed by Mohammed Yusuf Ravuththar in favour of M.P.Murugesan, the notice caused by the defendants through Advocate to the Managing Director of Green Privilege, the reply received, re-joinder sent by the defendants are all other documents relied by the defendants.
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defendants are to be returned without interest and cost for the litigation to be paid by the defendants.
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M.P.Murugesan, marked as Ex.B.12, clearly discloses the fact that the original documents are held by M.P.Murugesan and the defendants have come forward to offer Rs.5,00,000/- received as advance from him to get back the original documents. Therefore, the trial Court ought not to have held that the defendants had all their original documents with them at the time of entering into the agreement and also, the trial Court failed to consider Ex.B.13 Notice, dated 31.05.2008, issued on behalf of M.P.Murugesan reiterating that his agreement with Mohammed Yusuf Ravuththar still subsists. Thus, when the plaintiff has proved his ready and willingness through his bank passbook, marked as Exs.A.15 to A.17, ignoring the same, the trial Court had only granted alternate relief, that too, without any compensation for the damages caused. The alleged cancellation of Power of Attorney executed by Mohammed Yusuf Ravuththar, marked as Ex.B.11, is not valid in law, since it is an unilateral cancellation. Therefore, the Court below ought to have considered that the defendants have admitted to sell the encumbered property without disclosing the encumbrance and therefore, the defendants cannot take advantage of their own fault and deprive the benefit of decree of specific performance.
own document as well as the document relied by the defendants. Only after due https://www.mhc.tn.gov.in/judis
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appreciation of those documents, the Court below has come to the conclusion that having entered into an agreement on 12.02.2008 with the specific understanding that the transaction should be completed within three months and when there was no shadow of doubt over the title in the property and in the absence of any material encumbrance, the plaintiff, who seeks for specific performance, should prove his ready and willingness at all times and also bound to explain why he has not sought for specific performance, when he instituted the suit in O.S.No.209 of 2008, restricting the relief of bare injunction and the suit for specific performance was filed nearly 1 ½ years after the cause of action arose for filing. The bank passbooks relied by the appellant/plaintiff also does not show that he had adequate money on or before the expiry date to perform the contract.
the litigation in spite of returning the advance money and therefore, he has to bear https://www.mhc.tn.gov.in/judis
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the cost and not the defendants.
Whether the plaintiff had proved his ready and willingness to perform the contract?
to the agreement claims that he had all the original documents with him and also https://www.mhc.tn.gov.in/judis
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informed the same to the plaintiff, but the plaintiff has delayed the execution and has not come forward with the balance sale consideration.
agreement of sale. After 9 years of the execution of the sale agreement and the https://www.mhc.tn.gov.in/judis
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agreement holder had not initiated any legal proceedings for enforcement of that agreement, the said agreement, by efflux of time, has become unenforceable.
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for non-appearance of the plaintiff.
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Court finds that vide Ex.A.4, the second defendant has made clear to the plaintiff that he is ready with all documents and it is for the plaintiff to pay the balance sale consideration and get the sale deed executed within one month, since three months period fixed under the agreement Ex.A.1 has already expired. The plaintiff, for the said reply, had reacted only after six months, by placing a public warning notice on 14.11.2008 in Daily Thanthi newspaper, which is marked as Ex.A.6. After filing O.S.No.209 of 2008 on 06.11.2008 and getting an ex-parte ad interim injunction, the conduct of the plaintiff clearly reveals that he had no intention to complete the contract and his unwillingness is exposed by filing the suit in O.S.No.209 of 2008, then, seeking the relief of specific performance. Knowing well that if he had filed a
suit for specific performance, the Court might have directed him to deposit the balance sale consideration and his documents namely, Exs.A.15 to A.17 does not indicate that all along during the relevant point of time, he had balance of Rs.46,00,000/-, which was required to complete the contract.
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reported in 2014 (6) CTC 319, the learned counsel for the appellant submitted the defendants have suppressed the material fact, namely, the previous encumbrance in the property created by Mohammed Yusuf Ravuththar and therefore, the discretionary relief of specific performance based on equity, ought not to have been denied to the plaintiff.
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consideration and get the sale deed registered. He only tried his luck in the bare injunction suit and got an ex-parte injunction and after written statement, realizing that he cannot succeed in the suit, he allowed the suit to be dismissed for default and then, filed the suit for specific performance. This amply exposes that the plaintiff is not ready and willing to perform his part of contract within the time granted and even thereafter. In support of the said submission, the learned Senior Counsel relied upon the following judgments of the Hon'ble Supreme Court
(i) U.N.Krishnamurthy (since deceased) Through Lrs. vs. A.M.Krishnamurthy reported in 2022 SCC Online 840
(ii) Shenbagam and others vs. K.K.Rathinavel reported in 2022 SCC Online 71.
gives a clear cause of action for the plaintiff to seek for specific performance, if he https://www.mhc.tn.gov.in/judis
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was not willing to get back the advance money. From his own conduct by returning the two Demand Drafts along with the notice, dated 14.11.2009, which is marked as Ex.A.10, it is clear that he wants specific performance of the contract and not refund of the money advanced. But, though he claims that he was ready and willing all along, the conduct of the plaintiff seen from the evidence, does not indicate that he was ready and willing soon after he received the reply from the second defendant on 15.05.2008 and also his bank accounts starting from 12.02.2008 to 02.11.2009, this Court finds that he had no balance exceeding Rs.14,00,000/- at any point of time. Whereas, on 15.05.2008 and on the date of filing the suit, it is admitted that the balance sale consideration payable is Rs.42,87,500/-. This fact is singularly enough to uphold the judgment of the trial Court. Being an equitable relief, the trial Court has ordered refund of the advance received by the defendants, who themselves had come forward to refund it as early as on 03.11.2009. However, the trial Court had declined the prayer for interest to the advance amount for the same reason stated above.
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so, in the suit for specific performance filed belatedly and refused to receive back the advance money, the suit is invited by the plaintiff, for which, the defendants need not pay the costs. Therefore, Appeal Suit(MD)No.10 of 2013 is dismissed. Civil Revision Petition(MD)No.1541 of 2013 is allowed. No order as to costs. C.M.P. (MD)No.11303 of 2022, which has been filed to receive the additional document, is superfluous and therefore, the same is closed. M.P.(MD)No.1 of 2013 is also closed.
NCC : Yes / No Index : Yes / No Internet : Yes / No SMN2
[G.J., J.] [K.K.R.K., J.] 02.03.2023
To
2.The Section Officer, V.R. Section (Records), Madurai Bench of Madras High Court, Madurai.
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DR.G.JAYACHANDRAN, J. and K.K.RAMAKRISHNAN, J.
SMN2
PRE-DELIVERY COMMON JUDGMENT MADE IN A.S.(MD)No.10 of 2013 & C.R.P.(MD)No.1541 of 2013 (NPD)
DATED : 02.03.2023
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3 issues framed by the court
Whether the plaintiff had proved his ready and willingness to perform the contract under the sale agreement dated 12.02.2008?
Whether the suit for specific performance was barred under Order 2 Rule 2 CPC due to the earlier suit for bare injunction?
Whether the defendants were liable for litigation costs when they had offered to refund the advance money?
Colour shows how this judgement treated each authority
G.Bagyalakshmi and others vs. Nachimuthu (Died) and othersReferred¶22
G.Bagyalakshmi and others vs. Nachimuthu (Died) and others reported in 2022 (5) CTC 305
V.S.Ramakrishnan vs. P.M.Muhammed AliReferred¶23
V.S.Ramakrishnan vs. P.M.Muhammed Ali reported in 2022 (4) TNLJ 507 (Civil)
P.Ramasubbamma vs. V.Vijayalakshmi and othersReferred¶24
P.Ramasubbamma vs. V.Vijayalakshmi and others reported in 2022 SAR (Civil) 483
Zarina Siddiqui vs. A.Ramalingam alias R.AmarnathanReferred¶25
Zarina Siddiqui vs. A.Ramalingam alias R.Amarnathan reported in 2014 (6) CTC 319
M.Jayaprakash Narayanan vs. Santhammal and othersReferred¶26
M.Jayaprakash Narayanan vs. Santhammal and others reported in 2017 (4) LW 540
Smt.Katta Sujatha Reddy vs. Siddamsetty Infra Projects Pvt. Ltd. and othersReferred¶27
Smt.Katta Sujatha Reddy vs. Siddamsetty Infra Projects Pvt. Ltd. and others reported in AIR 2022 SC 5435 · Who else cites this
U.N.Krishnamurthy (since deceased) Through Lrs. vs. A.M.KrishnamurthyReferred¶28
U.N.Krishnamurthy (since deceased) Through Lrs. vs. A.M.Krishnamurthy reported in 2022 SCC Online 840 · Who else cites this
Shenbagam and others vs. K.K.RathinavelReferred¶28
Shenbagam and others vs. K.K.Rathinavel reported in 2022 SCC Online 71 · Who else cites this
3 provisions across 2 enactments
J.Suniram
M.Razia Beham
M.Sulthan Ibrahim
M.Rafia
M.Palkil
G.Jayachandran
K.K.Ramakrishnan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
