S.A. No. 629 of 2008, M.P. Nos. 1 of 2008 and 1 of 2011. Case: G. Ramakrishnan Vs L. Murugan. High Court of Madras (India)
| Case Number | S.A. No. 629 of 2008, M.P. Nos. 1 of 2008 and 1 of 2011 |
| Counsel | For Appellant: R. Gandhi, Senior Counsel for S. Senthil Murugan and For Respondents: S.V. Jeyaraman, Senior Counsel for D. Rajasekar |
| Judges | S. Tamilvanan, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Section 100; Indian Evidence Act, 1872 - Section 92; Indian Penal Code 1860, (IPC) - Sections 294(b), 467, 506(ii); Specific Relief Act 1963 - Section 20 |
| Citation | 2015 (1)LW 173 |
| Judgement Date | October 30, 2014 |
| Court | High Court of Madras (India) |
Judgment:
S. Tamilvanan, J.
1. The Second Appeal has been preferred under Section 100 of the Code of Civil Procedure against the Judgment and Decree, dated 30.01.2008 passed in A.S. No. 50 of 2006 on the file of the Principal District Judge, Villupuram, reversing the Judgment and Decree, dated 30.03.2006 passed in O.S. No. 112 of 2003 on the file of the Subordinate Judge, Kallkurichi. It is seen that the suit was filed by the respondent herein against the appellant, seeking specific performance of the contract, delivery of possession and other consequential relief. After the trial, the suit was decreed, directing the defendant to pay a sum of Rs. 50,000/- with costs, in lieu of specific performance and further, held that the plaintiff is entitled to interest for the said amount, Rs. 50,000/- at the rate of 6% per annum from 10.01.2002 till the date of realisation. Aggrieved by which, appeal was preferred by the plaintiff in A.S. No. 50 of 2006. By Judgment, dated 30.01.2008, the appellate Court allowed the appeal, set aside the Judgment and Decree passed by the trial Court, directing the defendant to execute the sale deed in favour of the plaintiff, who is the respondent herein with other consequential relief and costs. Aggrieved by which, the defendant in the suit has preferred this second appeal.
2. This second appeal has been admitted on the following Substantial Questions of Law:
"1. Whether the lower appellate court is right in not applying the settled proposition of law in a suit for specific performance, that even if it is lawful to do so, the Court can exercise its vested discretionary powers under Section 20 of the Specific Relief Act, 1963 and refuse to grant such relief on sound and settled principles, more particularly when it would be grossly inequitable to enforce specific performance and would ultimately result in victimization of the alleged vendor?
2. Whether lower appellate Court is right in not considering the specific issue whether the plaintiff has established the existence of a valid agreement of sale and his readiness and willingness to execute the same, which are twin mandatory conditions for a suit for specific performance, merely because the defendant has not filed any cross appeal against the findings of trial court to that extent?
3. Even though the defendant has not filed cross appeal over the observation of the trial Court, the lower appellate Court ought to have considered the issue relating to the existence of valid agreement of sale and plaintiff's readiness and willingness to execute the same, since the relief of specific performance is an equitable relief. Whether the lower appellate Court is right in failure to adhering to such procedure?"
3. The first Substantial Question of Law raised by the appellant is that in a suit seeking specific performance even if the claim is lawful to do so, the Court can exercise its vested discretionary powers under Section 20 of the Specific Relief Act, 1963, whereby refuse to grant such relief on sound and settled principles, more particularly when it would be grossly inequitable to enforce specific performance as it would ultimately result in victimization of the alleged vendor.
4. Section 20 of the Specific Relief Act, 1963, reads as follows:
Discretion as to decreeing specific performance: (1) The jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal."
5. The respondent/plaintiff has averred that he had entered into an agreement of sale with the appellant/defendant on 10.01.2002 in respect of purchasing the suit schedule property for a total sale consideration of Rs. 2 lacs. Out of which, a sum of Rs. 50,000/- was paid as advance and part of sale consideration on the date of the agreement, 10.01.2002 and as per the terms of agreement, the respondent/plaintiff should pay the balance of sale consideration at Rs. 1,50,000/- to the appellant/defendant on or before 10.01.2004 and get sale deed executed and registered at his own costs.
6. It is seen that the sale agreement, Ex. A1 dated 10.01.2002 is an unregistered document and the period for performance of contract is between 10.01.2002 and 10.01.2004, for two years. The respondent/plaintiff who was examined as P.W. 1 has deposed in his cross-examination that the said agreement had not been registered since he had to spend money for registration of the sale agreement. Subsequently, legal notice dated 01.05.2003 was sent by the respondent/plaintiff to the appellant/defendant and a copy of the same has been marked as Ex. A2, wherein, the respondent/plaintiff stated that he was ready and willing to pay the balance of sale consideration of Rs. 1,50,000/-. However, the appellant/defendant was not ready, hence, he issued a notice demanding the appellant/defendant to perform his part of contract. He had to execute the sale deed after receiving the balance of sale consideration at Rs. 1,50,000/- from the respondent/plaintiff. Postal acknowledgment for the receipt of legal notice was also marked as Ex. A3.
7. The Appellant/Defendant filed his written statement stating that there was no agreement of sale between himself and the respondent/plaintiff as alleged in the plaint and according to him, it is a false and fabricated document and the defendant had never agreed to sell his property and received part of sale consideration Rs. 50,000/- and agreed to receive Rs. 1,50,000/- as balance of sale consideration on or before 10.01.2004 and to execute sale deed. He has further stated that Murugan, the respondent/plaintiff was doing real estate business, he approached the appellant/defendant and told that he would get a reasonable amount for his land as sale consideration and asked the defendant to execute a General Power of Attorney deed in his favour. Believing the words and the assurance given by the respondent/plaintiff, the appellant/defendant executed a General power of attorney deed and also signed in non-judicial stamps paper and other papers, as requested by the respondent/plaintiff, however the respondent/plaintiff did not do anything as assured by him, hence, the appellant/first defendant cancelled the power of attorney deed and also lodged a complaint against the respondent herein before Thiyagadurugam Police Station on 23.03.2003 and a case was registered in Cr. No. 96 of 2003 under Sections 467, 294(b) and 506(ii) of IPC against the respondent/plaintiff and subsequently, a village panchayat was conducted and as decided by panchayatdars, on 27.03.2003, the respondent/plaintiff executed a document in the form of a receipt, stating that he received back Rs. 50,000/-, alleged to have been given by the respondent/plaintiff to the appellant/defendant in the presence of three witnesses. However, subsequently, the respondent/plaintiff sent a notice dated 01.05.2003 with false averments. After receiving the notice, the appellant/defendant approached the respondent/plaintiff and enquired about the notice sent by the respondent/plaintiff. According to the appellant/defendant, the same had been issued at the instigation of some other persons, however, he assured that no further action would be taken by him against the appellant/defendant.
8. P.W. 3-Ahmed Hussain was examined as one of the attestors to the unregistered agreement-Ex. A1, as well as the...
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