THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN CS.No.324 of 2010 M.Shanmuganandam Plaintiff Vs
1. K.Kanniappa Chettiar
2. K.Rukumani Defendants Prayer:- This Civil Suit is filed under Order VII Rule 1 of CPC read with Order II Rule 1 of the Original Side Rules for the reliefs as stated therein.
For Plaintiff : Mr.S.Rajendrakumar For Defendants : Set Exparte JUDGEMENT This civil suit had been filed to pass a judgement and decree, against the Defendants:-
(a) granting specific performance of the agreement to sell dated 3.8.2007 entered into between the Plaintiff and the Defendants or in the alternative directing the Defendants to return the advance amount of Rs.26,40,000/- to the Plaintiff with interest 18% per annum from the date of the plaint till the date of realisation.
(b) granting permanent injunction restraining the Defendants from alienating or encumbering the suit schedule property in favour of any third party.
(c) directing the Defendants to pay the costs of the suit.
2. The Defendants are the owners of the suit property. One P.Anand, son-in-law of the Defendants is the childhood friend of the Plaintiff. The Plaintiff was introduced to the Defendants by the said P.Anand, who had negotiated with the Defendants for the sale of the suit property to the Plaintiff. For marriage expenses of the daughters of the Defendants, the Defendants had entered into an agreement for sale with the Plaintiff in respect of the suit property on 3.8.2007, fixing the total sale consideration at Rs.48,41,000/- and the Plaintiff had paid a sum of Rs.5 lakhs, out of which, Rs.4 lakhs by way of cash and Rs.1 lakh by way of cheque dated 31.7.2007 bearing No.009002, drawn on Indian Overseas Bank, Thiruvanmiyur Branch. It was agreed that the sale transaction should be completed within six months. Thereafter, the Plaintiff had paid further sums of Rs.15,00,000/- on 6.11.2007, Rs.3,90,000/- on 12.12.2007 by way of cheque and cash and Rs.2,50,000/- on 7.3.2008 by way of cheque and cash.
3. Later, on enquiry, the Plaintiff came to know that the Defendants had let out the suit property in possession of one Kanniappa Pillai, by receiving a huge sum as advance from him. Despite repeated demands, the Plaintiff never came forward to execute the sale deed in respect of the suit property. Hence, the Plaintiff had sent a legal notice dated 14.6.2008 and also sent a telegram, demanding the Defendants to execute the sale deed in respect of the suit property. Thereafter, the Defendants came and met the Plaintiff in person and informed that there was dispute between them and their son in law in respect of the suit property and as soon as the matter was settled, they would execute the sale deed. However, the Defendants had sent a legal notice dated 6.2.2009, containing false contentions and stating that they had received only Rs.11,40,000/- from the Plaintiff. It had been further stated by the Defendants that since the sale agreement came to an end on 1.6.2008, the Defendants were ready to return the advance amount of Rs.11,40,000/-. The Plaintiff had sent a reply notice dated 18.2.2009, stating that the Plaintiff had paid a sum of Rs.26,40,000/- so far and not the amount of Rs.11,40,000/- as alleged by the Defendants in their legal notice. It was the Defendants who delayed the execution of the sale deed. Again the Defendants came and stated that as soon as the dispute as stated above was settled, they would execute the sale deed. The Plaintiff came to know that the Defendants are attempting to alienate the suit property. The Plaintiff has always been ready and willing to perform his part of the sale agreement dated 3.8.2007. Whenever the Plaintiff demanded the Defendants to execute the sale deed, they were evasive, blaming on the circumstances only. Hence, this civil suit had been filed with the prayers as stated above.
4. It is seen from the Office Note that the 1st Defendant was served on 8.6.2010 and that suit summons was served on the 2nd Defendant also. Further, it had been observed by this court by order dated 21.12.2016, that sufficient opportunity was given to file written statement, however, the same has not been filed and hence, the Defendants were set exparte and Exparte Evidence was ordered to be recorded. The Plaintiff had filed the proof affidavit for his chief examination and receipt of five documents as documentary evidence to prove the suit claim. In the Exparte Evidence, the Plaintiff had examined himself as PW.1 and marked Exs.P1 to P5 as documentary evidence in order to prove the suit claim.
5. It is seen from the records that in OA.No.349 of 2010 in CS.No.324 of 2010, this court by order dated 14.06.2010 , had observed as follows, with respect to the advance amount stated by the Plaintiff to have been paid to the Defendant:-
“10. Whereas the Defendants' case is that they received only Rs.11,40,000/- and not Rs.26,40,000/- from the Plaintiff as alleged by the Plaintiff. The learned counsel for the Defendants would refer to the sale agreement where, at the reverse of the sale agreement, endorsements have been made with regard to the receipt of the amounts. A closer scrutiny of these endorsements signed by the Defendants at the reverse of the sale agreement would clearly show that the words and the amounts have been corrected as stated by the Defendants. It is seen that the amount of Rs.5 lakhs said to have been received on 11.06.2007 by the Defendants, has been altered to Rs.15 lakhs in figures, in order to mislead the court. Similarly, the amount of Rs.50,000/- received on 12.12.2007, has been corrected as Rs.3,50,000/-. These inter-pollutions have to be put against the Plaintiff and it is for the Plaintiff to prove this at a later point of time. Even a perusal of the notice dated 6.2.2009 sent by the Defendants to the Plaintiff and the reply dated 18.2.2009 sent by the Plaintiff to the Defendants would show that the contentions of the Plaintiff are not true.
11. Therefore, having failed to establish that the Plaintiff has paid an amount of Rs.26,40,000/- as advance and not being able to give a satisfactory reply to the allegations of inter pollutions and alterations in the endorsements at the reverse of the sale agreement, the Plaintiff is not entitled to have the temporary relief of injunction in his favour.
12. In the light of the above, I am of the view that the Plaintiff has not made out a prima facie case for the continuance of the order of injunction granted by this court on 26.3.2010.
13. In the result, the order of injunction granted by this court on 26.3.2010 is forthwith vacated and the application in OA.No.349 of 2010 is dismissed. Consequent upon this order, the Defendants are directed to deposit into this court, the sum of Rs.11,40,000/- received by them towards advance from the Plaintiff within a period of two weeks from the date of receipt of this order. On such deposit being made these Defendants, the Registry shall deposit the same in the Indian Bank, High Court Branch, initially for a period of one year renewable every year until further orders. The observation made by me in this order is only for the limited purpose of disposing of this application in OA.No.349 of 2010.”
6. The above observations of this court are binding on the parties herein. As directed by this court, it is seen that deposit was also made and the endorsement dated 25.1.2017 of the Assistant Section Officer (Accounts), High Court, Madras shows that a sum of Rs.17,96,624/- (Rupees seventeen lakhs ninety six thousand six hundred and twenty four only) is lying in the Indian Bank, High Court Branch in the fixed deposit. Taking into consideration the conduct of the Plaintiff in altering the agreement, I hold that the sale agreement Ex.P1 suffers and consequently specific performance of the agreement cannot be granted. However, the Plaintiff would be entitled to get back the amount now lying in the fixed deposit as stated above. Further, the Plaintiff is also not entitled to any costs, as this court has found that there are interpolations in the sale agreement Ex.P1.
7. In the result, this civil suit is partly decreed that the Plaintiff is entitled only for the sum, viz. Rs.17,96,624/- (Rupees seventeen lakhs ninety six thousand six hundred and twenty four only) lying in the fixed deposit in the Indian Bank, High Court Branch and in all other respects, this civil suit is dismissed. No costs.
Index:Yes/No Web:Yes/No Srcm
1. List of Witnesses Examined on the side of the Plaintiff:-
1. P.W.1 – M.Shanmuganandam
2. List of Exhibits Marked on the side of the Plaintiff:-
3. List of Witnesses Examined on the side of the defendants:- Nil
4. List of Exhibits Marked on the side of the defendants:-
10.02.2017 Srcm Nil 10.02.2017 C.V.KARTHIKEYAN, J.
Srcm Pre-Delivery Judgement in CS.No.324 of 2010 10.02.2017 http://www.judis.nic.in