T.Yamuna Vs R.a.Mohamed Mydeen

Prayer: Appeal Suit filed Section 96 of CPC r/w Order 41 Rule 1 & 2 of CPC to allow the appeal, call for the records and set aside the judgment and decree dated 23.02.2024 in O.S.No.27 of 2014 on the file of III Additional District Judge, Thanjavur at Pattukottai.

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For Appellant : Mr.TSR.Venkat Ramana Senior Counsel for Ms.V.Janaki Devi

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For Respondent : Mr.K.Mahendran

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A.S(MD)No.209 of 2024

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JUDGMENT

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(By G.R.SWAMINATHAN, J.)

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The first defendant in O.S.No.27 of 2014 on the file of the III Additional

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District Judge, Thanjavur at Pattukottai is the appellant herein.

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The respondent herein filed the said suit seeking the relief of specific performance. The alternative relief of refund apart from claiming damages was the other relief sought for. The suit property belongs to the appellant. The appellant and the plaintiff entered into an agreement (Ex.A1) dated 18.03.2011. The agreement is as follows:

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3.Total sale consideration was fixed at Rs.1,18,96,500/- (Rupees One

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Crore Eighteen Lakhs Ninety Six Thousand and Five Hundred only). An advance amount of Rs.60,00,000/- (Rupees Sixty Lakhs only) was already paid. The enforcement of the agreement ran into difficulties. Police complaint was also lodged by the plaintiff. Finally the suit came to be filed on 09.04.2014. The appellant herein / D1 filed the written statement controverting the plaint averments. Based on the rival pleadings, the Court below framed the following issues:

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“1.Whether the time is the essence of contract in the facts and

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circumstances of the case?

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2.Whether the Plaintiff is entitled for the relief of Specific Performance as the Main Relief?

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3.Whether the Plaintiff is entitled for the three alternative reliefs as prayed for by him?

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4.To what reliefs?”

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4.The plaintiff examined himself as PW1. Two other witnesses were

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examined on his side. Ex.A1 to Ex.A18 were marked. The power agent of the appellant was examined himself as DW1. One Jegadeesan was examined as DW2. Ex.B1 to Ex.B3 were marked. After consideration of the evidence on record, the Court below granted the relief the specific performance vide judgment and decree dated 23.02.2024. Aggrieved by the same, this Appeal

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came to be filed.

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5.When the appeal was taken up for hearing, the learned counsel appearing for the plaintiff submitted that the plaintiff would not pursue the prayer for specific performance and would be content with the alternative relief of refund along with interest. He also added that this Court may consider the question of awarding damages to the sum of Rs.25,00,000/-(Rupees Twenty Five Lakhs only) invested by him.

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6.The learned Senior Counsel appearing for the appellant pointed out that the prayer for damages was specifically rejected by the Court below and there is no cross appeal at the instance of the plaintiff.

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7.We cannot go into the issue of damages in this appeal proceedings. Even though the agreement was entered into in March 2011, the suit came to be filed only on 09.04.2014. The Hon'ble Supreme Court has consistently held that the party seeking specific performance must demonstrate readiness and willingness throughout. In this case, we notice that this vital component is missing. Probably that is why the learned counsel for the plaintiff chose to press more for the relief of refund.

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8.The appellant who waxes eloquent that it was the plaintiff who was the

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defaulter ought to have deposited the amount of Rs.60,00,000/- (Rupees Sixty Lakhs only) received from the plaintiff the moment he realised that the agreement was enforceable. She had not done so. Therefore, we are of the view that the appellant should refund the amount with interest. Considering the nature of transaction entered into between the parties, we are of the view that the refund will have to carry 9% interest from the date when the appellant received money from the plaintiff. The decree passed by the Court below is modified. The plaintiff had deposited the balance sale consideration to the credit of the suit. The appellant is permitted to withdraw the same immediately together with accrued interest. The decree passed by the Court below is set aside.

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9.This Appeal Suit is partly allowed. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.

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[G.R.S., J.] [K.R.S., J.] 12.08.2025

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NCC : Yes / No Internet : Yes / No Index : Yes / No MGA

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