THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN CS.No.329 of 2010 and Tr.CS.No.279 of 2011 A.No.6433 of 2016 ((Tr.CS.No.279 of 2011)CS.No.69 of 2007 on the file of this Court subsequently transferred to VI Additional Judge, City Civil Court by way of OS.No.11331 of 2010) S.Sarojini Plaintiff-CS.329/2010 Defendant-Tr.CS.279/2011 Vs
1. P.Mariappan D1-CS.329/2010 and Plaintiff-Tr.CS.279/2011
2. The Assistant Engineer Tamil Nadu Electricity Board, 33 KVA SS, Jafferkhanpet, Chennai-83 D2-CS.329/2010 Prayer:- This Civil Suit is filed under Order VII Rule 1 of CPC read with Order IV Rules 1 and 2 of the Original Side Rules for the reliefs as stated therein.
For Plaintiff : Mr.T.Karunakaran-CS.329/2010 For Defendants : Mr.M.Liagat Ali-D1-CS.329/2010 Mr.V.Viswanathan-D2-CS.329/2010 JUDGEMENT Tr.CS.279 of 2011 had been filed to pass a judgement and decree against the Defendant:-
a) granting the relief of specific performance of the agreements between the parties dated 16.5.2006 and 21.8.2006 and directing the Defendant to execute the sale deed in respect of the suit property in favour of the Plaintiff free from all encumbrances on receiving the balance of the sale consideration of Rs.4,88,000/- and in default, to have the sale deed executed and registered by this Court on behalf of the Defendant at the cost of the Plaintiff at the first instance to be recovered from the Defendant later.
b) directing the Defendant to pay the Plaintiff a sum of Rs.1,00,000/- by way of damages and compensation towards unnecessary expenses incurred by the Plaintiff and towards wandering, physical difficulty and mental agony caused to the Plaintiff by the conduct of the Defendant.
c) granting permanent injunction restraining the Defendant from in any manner disturbing the Plaintiff' peaceful possession and enjoyment of the suit property as an agreement holder.
d) directing the Defendants to pay the costs of the suit.
2. CS.No.329 of 2010 had been filed to pass a judgement and decree against the Defendants:-
a) directing the 1st Defendant to quit and deliver the vacant possession of the suit property of the flat bearing New No.9, Old No.5/2, Ramapuram Ramasamy Street, Flat No.11/F5 (first floor), Anupam Foundations, Saidapet (West), Chennai-15 which is more fully set out in the schedule.
b) directing the 1st Defendant to pay a sum of Rs.1000/- per day as past damages for unlawful use and occupation and also for compensation towards unnecessary expenses incurred by the Plaintiff and towards wandering, physical difficulty and mental agony caused to the Plaintiff by the conduct of the 1st Defendant from 30.8.2006 to 24.3.2010 (1303 days) which comes to Rs.13,03,000/- along with interest at 24% per annum till the date of realisation.
c) granting permanent injunction restraining the 2nd Defendant from giving electricity connection in favour of the 1st Defendant for the suit property.
d) directing the 1st Defendant to pay a sum of Rs.1000/- per day as future damages for unlawful use and occupation and also for compensation towards wandering, physical difficulty and mental agony from the date of filing the suit i.e. 25.3.2010 to till the date of handing over possession of the suit property to the Plaintiff.
e) for costs of the suit.
3. Plaint in Tr.CS.No.279 of 2011:_ It had been stated that the Defendant was the owner of the Flat, bearing Door No.11/F5, Anupam Foundations, New No.9, Old No.5/2, Ramapuram, Ramasamy Street, Saidapet, Chennai-15 in the first floor of the apartment building. The flat has an extent of 652 sq.ft. The Defendant is also the owner of the undivided interest of 16.5% in the common space appurtenant to the said apartment building. It had been further stated that the Plaintiff and the Defendant had entered into an agreement dated 16.5.2006, wherein the Defendant had agreed to sell the suit property for a sale consideration of Rs.9,10,000/- and received a sum of Rs.1,50,000/- as advance sale consideration. As on the date of the sale agreement, the Defendant had bank loan with the Indian Overseas Bank with respect to the suit property, which amounted to Rs.4,50,000/-. It had been agreed that the Plaintiff has to settle the bank loan. The husband of the Defendant had stated that he would try to negotiate with the bank for a lesser amount. However, he could not do so within the period of three months from the date of the sale agreement. The Plaintiff, therefore, demanded execution of the sale deed.
4. It had been stated that the Plaintiff had raised funds by arranging the sale of his father in law's property. The Defendant required further amounts of money and requested an additional advance of Rs.2,60,000/- and entered into a new agreement. Accordingly, the total sale consideration was fixed at Rs.6,50,000/- instead of Rs.9,10,000/-. This was entered on 28.8.2006. It had been further stated that possession was agreed to be handed over to the Plaintiff. However, it was not done and there was a tenant in the flat. Thereafter, the tenant vacated in August 2006 and the Plaintiff was put in possession. The Plaintiff has been paying the electricity charges and other dues. He had also paid two monthly instalments amounting to Rs.12,000/-. The Plaintiff is in possession of the suit property. When the Plaintiff had approached the Defendant to execute the sale deed, the Defendant had been protracting the proceedings. The Defendant then filed a caveat before the City Civil Court dated 7.11.2006. The Plaintiff enquired regarding this aspect. The Defendant gave an evasive reply. The Defendant then filed a complaint before the police and tried to get back the amount of Rs.1,50,000/-. The Plaintiff issued a telegram dated 16.11.2006, for which there was no reply. It had been stated that the Plaintiff was forced to sign documents in the name of muchalika written on Rs.20 stamp paper. The Plaintiff claimed that the said document is not binding on the Plaintiff. It had been stated that the Defendant and her husband were deliberately dragging on the proceedings without executing the sale deed. Consequently, the Plaintiff had filed the suit, seeking specific performance of the agreements dated 16.5.2006 and 21.8.2006 and for a further direction to execute the sale deed after receiving the balance sale consideration of Rs.4,88,000/- and for a claim of Rs.1 lakh by way of damages and also for permanent injunction restraining the Defendant from interfering with the Plaintiff's peaceful possession and enjoyment of the suit property.
5. Written Statement in Tr.CS.No.279 of 2011:- It had been stated that subsequent to the agreement dated 10.5.2006, it was agreed that after the Plaintiff settled the loans to the Bank, the Defendant would register the suit property. The Defendant denied that they undertook to negotiate with the Bank to reduce the loan amount. It had been stated that the Plaintiff sought time to pay the balance sale consideration and consequently the 2nd agreement was entered into for consideration of Rs.6,50,000/- on 21.8.2006. It had been stated that the Defendant did not permit the Plaintiff to occupy the suit property. It had been stated that the Defendant received information that for obtaining bank loan, the Officials would be visiting the premises to inspect the same. At that time, taking advantage of handing over of the keys, the Plaintiff took possession of the suit property. The Defendant repeatedly requested the Plaintiff to vacate and hand over possession. However, the Plaintiff did not do so. The Defendant charged that the Plaintiff had taken illegal possession of the suit property. The Defendant denied receipt of additional advance and stated that she is prepared to pay the amount of Rs.1,50,000/- and the defaulted amount of Rs.15,000/-. It had been stated that the Plaintiff had filed a police complaint and the police also pressurised the Defendant to execute the sale deed. The Defendant in turn had filed a private complaint and had to file Cr.OP.No.30590 of 2006 for a direction against the police to register the complaint. The Defendant also stated that at Dindigul,she was also forced to sign in a plain paper and her husband was also forced sign in plain papers. The husband of the Defendant took a demand draft dated 21.12.2006 for Rs.4,22,000/-. They had sent a telegram on 20.12.2006 and a registered letter on 22.12.2006. It was in these circumstances that the Defendant received the telegram of the Plaintiff dated 26.12.2006. It had been stated that the suit has been filed only as a counter blast to the criminal case filed by the Defendant against the Plaintiff.
6. Plaint in CS.No.329 of 2010:- It had been stated that the Plaintiff purchased the suit property at New No.9, Old No.5/2, Ramapuram, Ramasamy Street, Flat No.11/F5, First Floor, Anupam Foundations, Saidapet West, Chennai-15 by way of sale deed dated 4.9.2002 registered as Document No.1328 of 2002 and has been in possession of the suit property. It had been stated that an agreement of sale was entered into with the 1st Defendant on 10.5.2006. It had been stated that the 1st Defendant was not able to pay the balance sale consideration and stated that he was not able to obtain bank loan owing to the high amount of consideration. Consequently, a 2nd sale agreement was entered into on 21.8.2006. The 1st Defendant applied for housing loan on the basis of the 2nd sale agreement. The 1st Defendant approached the Plaintiff stating that the key of the flat is required for inspection by the Bank Officials. Taking advantage of handing over of the key, the 1st Defendant took possession and continued to be in unlawful occupation of the suit premises. It had been stated that the Plaintiff has been misled by the 1st Defendant. It had been further stated that the 1st Defendant had no right over the suit property and had no right to continue to be in possession of the same. In this connection, the Plaintiff filed a police complaint which had been registered as Cr.No.9287 of 2008. It had been further stated that though the 1st Defendant had filed Application No.3795 of 2008 to deposit the balance sale consideration of Rs.4,88,000/- he had not complied with the order. The Plaintiff further stated that there was a loan with the Indian Overseas Bank taken for the educational purpose of the daughters which was pending. It had been further stated that due to the 1st Defendant, the Plaintiff was not able to repay the principal or the interest. She was also not able to earn any income from the suit property. It had been stated that the 1st Defendant was in unlawful occupation. After the trespass of the 1st Defendant into the suit property, she obtained electricity connection and in this connection, WP.No.5237 of 2009 and WP.No.16735 of 2009 were filed. The Plaintiff had claimed that the 1st Defendant was in illegal occupation of the suit property and consequently filed the suit for recovery of possession and for payment of Rs.1000/- per day as mesne profits and also for permanent injunction against the 2nd Defendant from giving electricity connection and for costs.
7. Written Statement of the 1st Defendant in CS.No.329 of 2010:-
The 1st Defendant had stated that the suit should have been filed under Section 6 of the Specific Relief Act and that the suit is barred by law of limitation. The fact that the husband of the Plaintiff had purchased the suit property by Document No.1328 dated 4.9.2002 has been accepted. However, other allegations have been denied. It had been further stated that the 1st Defendant had entered into an agreement with the Plaintiff to purchase the suit property initially on 16.5.2006 for a total consideration of Rs.9,10,000/- and paid a sum of Rs.1,50,000/- as advance. There was a bank loan pending with IOB, West Mambalam to a sum of Rs.4,50,000/- . The Plaintiff had agreed that the 1st Defendant can verify the bank documents and pay the loan amount directly to the Bank. The Plaintiff's husband was working in the said Bank. He has stated that a part of the loan amount can be waived. However, since that was not done and since the Plaintiff demanded an additional sum of Rs.2,60,000/-, a new agreement was entered into fixing the consideration at Rs.6,50,000/-. This was entered on 21.8.2006.
8. It had been further stated that it was understood that the flat shall be handed over to this Defendant immediately after the first agreement and a clause was also written that this Defendant shall pay the water charges, property tax. However, possession was not given. Subsequently, the tenant, who was there, vacated and in the last week of August 2006, this Defendant was put in possession. From September 2006, this Defendant was paying the electricity charges. He also paid two monthly instalments to the Bank totalling Rs.12,000/-. When he approached the Plaintiff with necessary funds in the first week of November 2006 for registration of sale deed, he was informed that the sale deed can be registered in the second week of November 2006. In the mean while, the Plaintiff filed a caveat in the City Civil Court on 8.11.2006. The Plaintiff also filed a complaint before the local police. However, after enquiry, the parties were asked to go to the court of law. This Defendant stated that he had totally paid a sum of Rs.4,10,000/- as advance. He was forced to sign Muchalika in a Rs.20 stamp paper that the Plaintiff had agreed to pay back a sum of Rs.4,22,000/- on or before 2.5.2012 or to execute the sale deed. The Plaintiff also issued a telegram dated 21.12.2006. Since the Plaintiff did not come forward to perform her part of the agreement, this Defendant filed CS.No.69 of 2007 for specific performance. The husband of the Plaintiff filed another private complaint before the 9th Metropolitan Magistrate, Saidapet in CC.No.9287 of 2008. This Defendant filed Crl.OP.No.24781 of 2008 and this court had quashed the said proceedings. Thereafter, the Plaintiff's husband filed WP.No.5237 of 2009 with respect to the electricity connection. A notice was also issued to this Defendant dated 7.9.2009 asking him to vacate within 7 days. The Plaintiff filed WP.No.16735 of 2009 against the 2nd Defendant restraining them from giving electricity connection. By a common order dated 7.1.2010, the writ petition filed by the Plaintiff was dismissed and in the other writ petitions, directions were given for grant of electricity connection. It had been therefore stated that the suit should be dismissed. It had been stated that this Defendant is entitled for specific performance of the agreement of sale and consequently, further claimed that the relief sought by the Plaintiff has to be negatived.
9. On perusal of the rival pleadings of the parties, by order dated 22.2.2008, in Tr.CS.No.279 of 2011, the following issues were framed:-
1. Whether the Plaintiff is entitled to a decree for specific performance of contract on the basis of the sale agreements dated 16.5.2006 and 21.8.2006 entered into between the parties on payment of balance of sale consideration of Rs.4,88,000/- as prayed for?
2. Whether the Plaintiff is entitled to get a sum of Rs.1,00,000/- towards damages and compensation towards unnecessary expenses incurred by the Plaintiff as prayed for?
3. Whether the Plaintiff is entitled to a decree for permanent injunction restraining the Defendant, her men, agents, etc. from in any way disturbing the Plaintiff's peaceful possession and enjoyment of the suit property as prayed for?
4. Whether the Plaintiff has performed his part of the contract as per the sale agreements dated 16.5.2006 and 21.8.2006?
5. Whether the Defendant has ever received any additional advance of Rs.1,50,000/- as stated in the plaint from the Plaintiff?
6. Whether the second agreement dated 21.8.2006 was obtained under coercion and undue influence as alleged in the written statement of the Defendant?
7. To what other relief the parties are entitled to?
10. The trial had commenced on 19.9.2004. In the meanwhile, after the written statement was filed in CS.No.329 of 2010, the following issues were framed separately in CS.No.329 of 2010 by order dated 29.4.2004:-
1. Whether the Plaintiff is entitled to a decree for recovery of possession of the suit property?
2. Whether the Plaintiff is entitled to a decree of permanent injunction against the second Defendant?
3. Whether the Plaintiff is entitled to a decree for damages for use and occupation?
4. Whether the Plaintiff is entitled to mesne profits past and future?
5. Relief and costs?
However, by that time since the trial had commenced, in A.Nos.985 and 986 of 2016 in Tr.CS.No.279 of 2011, the following orders were passed on 1.3.2016:-
“A.No.985 of 2016:-
This petition is filed seeking to permit the Applicant / Plaintiff to file additional proof affidavit at the time of joint trial.
2. Heard the submission of the learned counsel appearing for the Applicant and the learned counsel appearing for the respondent.
3. The learned counsel appearing for the respondent has no serious objection in ordering this application.
4. Accordingly, this application is ordered.
5. Proof affidavit of Applicant/ Plaintiff by 14.3.2016. The learned Additional Master IV is directed to complete the evidence and both parties are directed to extend their maximum cooperation for the early completion of evidence.”
A.No.986 of 2016:-
The respective learned counsel appearing for the parties would submit that though there is an earlier order ordering simultaneous trial, for the sake of convenience, joint trial of both suits can be held. It is further represented that the trial of the suit in Tr.CS.NO.279 of 2011 has already commenced and the evidence taken in Tr.CS.No.279 of 2011 may be taken as evidence in CS.No.329 of 2010 also.
2. In the light of the said submission, this application is ordered and there shall be a joint trial of suits in CS.No.329 of 2010 and Tr.CS.No.279 of 2011 and the evidence taken in Tr.CS.No.279 of 2011 is to be taken as evidence in CS.No.329 of 2010.”
Since joint trial was conducted, the Applicant was permitted to file additional proof affidavit and consequently, the issues framed in Tr.CS.No.279 of 2011 are now taken for determination and the parties are arrayed as they were arrayed in Tr.CS.No.279 of 2011.
11. Both the parties, to substantiate their rival claims, had let in oral and documentary evidence. On the side of the Plaintiff, the Plaintiff had examined himself as PW.1 and marked Exs.P1 to P6. On the side of the Defendant, the Defendant was examined as DW.1 and Ex.D1 to D24 were marked.
12. This court heard the arguments advanced by the learned counsel on either and also perused the materials on record.
13. Issues (1, 4, 5 and 6) and Issues 1 and 4 in CS.No.329 of 2010:- The suit has been filed, seeking specific performance of two agreements of sale dated 16.5.2006 and 21.8.2006 entered into by the Plaintiff with the Defendant on receiving a balance sale consideration of Rs.4,88,000/- and in default, to have the sale deed executed and registered by this court on behalf of the Defendant at the cost of the Plaintiff and later to be recovered from the Defendant. It is the case of the Plaintiff that the Defendant is the owner of the Flat, bearing Door No.11/F5, Anupam Foundations, New No.9, Old No.5/2, Ramapuram, Ramasamy Street, Saidapet (West), Chennai-15. It is in the first floor of the apartment building. The flat measures 652 sq.ft. The Defendant is also the owner of undivided interest of 16.5% in the common space appurtenant to the said apartment building. The Plaintiff and the Defendant had entered into an agreement dated 16.5.2006. According to the agreement, the Defendant agreed to sell the flat for a total sale consideration of Rs.9,10,000/- and received a sum of Rs.1,50,000/-. The said agreement of sale had been filed as Ex.D1 and also Ex.D6. Ex.D1 was marked during the cross examination of PW.1. Ex.D6 was also marked during the cross examination of PW.1. Ex..D1 is the original agreement of sale and Ex.D6 is the xerox copy of the same.
14. In Ex.D1, the date of the agreement is written in ink as “10.5.2006” In Ex.D6, which is the xerox copy, the date is given as “16” and the digit '6' is overwritten on the page. Even though there is a discrepancy in the date as between Ex.D1 and Ex.D6, the Defendant has admitted to the said document. Moreover, at page 4, in Ex.D1, the default clause of forfeiture of 10% of advance amounting to Rs.15,000/- has been struck off, whereas it is not struck off in Ex.D6. In the same page 4, the signature of the Plaintiff is not found in Ex.D6, while it is found in Ex.D1. A recital of Ex.D1 and Ex.D6 shows that the total sale consideration of the first floor, Flat No.11/F5, at New Door No.9, Old Door No.5/1, 5/2, Ramapuram Ramasamy Street, Saidapet, Chennai- 15 was Rs.9,10,000/- and an advance of Rs.1,50,000/- had been paid.
15. It is also stated that there was a bank loan and the Plaintiff herein was permitted to discharge the loan and obtain the original documents. It was further agreed that from the date of discharge of the bank loan within three months, the Defendant had agreed to execute the sale deed and also to hand over possession. Further, the Plaintiff herein as the purchaser also agreed to pay the water tax, property tax and electricity bill from the date of the agreement.
16. A careful analysis of the above agreement of sale marked as Ex.D1/D6 reveals that the Defendant herein had agreed to sell the flat in the first floor of the apartment complex for a total consideration of Rs.9,10,000/-. It is also seen that the original documents were with the Bank. Consequently, necessity to sell the flat is made out from the recitals of the agreement of sale. It was also provided that the Plaintiff herein can discharge the bank loan and obtain the original title deeds. The Defendant had agreed to execute the sale deed within three months from the date of discharge. More importantly, the Plaintiff was also requested to pay the water tax, property tax and electricity bill. The payment of statutory dues would invite assertion of symbolic title over the property. The minute the bank loan is discharged and the original documents are received by the Plaintiff, the obligation of the Defendant to perform her part of the agreement commences. It was also agreed that till the date of the agreement, the dues with respect to temporary water and drainage connection would be paid by the Defendant. With respect to this agreement, the Defendant had stated in the written statement that the agreement was entered on 10.5.2006. The execution of the agreement has been admitted. It was stated that the parties had agreed to register the suit property only after the total loan amount from the Bank was foreclosed by the Plaintiff. It is the case of the Plaintiff that the husband of the Defendant was working in the very same Bank in which the loan was obtained, namely, Indian Overseas Bank, West Mambalam Branch.
17. It is the further case of the Plaintiff that the husband of the Defendant agreed to use his influence to settle the outstanding for a lesser amount and the Plaintiff was waiting for such settlement. However, the husband of the Defendant did not inform about such settlement. In such circumstances, the parties entered into yet another agreement of sale. The second agreement of sale, which is also the basis on which the suit has been filed, had been marked as Ex.P1. In this agreement, there is no reference to the earlier agreement in which the value of the property was fixed at Rs.9,10,000/-. On the other hand, the value of the property was given as Rs.6,50,000/- and an advance of Rs.1,50,000/- is said to have been received by the Defendant. It had been further stated that on satisfaction of the title deeds within three months, the Defendant agreed to execute the sale deed. It had been again reiterated that from the date of the agreement, namely, 21.8.2006, the Plaintiff herein will have to pay the electricity bill. It was further agreed that the temporary water and drainage connection charges, which had been paid by the builder, would be paid by the Defendant. With respect to this document, the Defendant in the written statement, had stated that on the basis of the said agreement, the Plaintiff applied to the State Bank of India for housing loan. Consequently, the fact that the agreement was signed by the Plaintiff has not been denied. It was stated that the 2nd agreement was entered into because the Defendant did not have sufficient funds to purchase the property. The evidence in this regard with respect to both the agreements will have to be seen. During the cross examination, PW.1 when asked as to why he did not file the original sale agreement, had stated as follows:-
“Q: Why you have not filed the original sale agreement dated 16.5.2006 in this case?
A: Sundarrajan told that the first agreement dated 16.5.2006 was not in proper form and on his request a second agreement was prepared on 21.8.2006. Sundarrajan himself took away the first agreement with him.
Q: Have you taken any steps to procure the first agreement from Sundarrajan?
A: Since second agreement was entered into, I did not insist for the first sale agreement.
18. The Defendant had not challenged either the execution of the agreement or disputed her signature in the said agreement. There is a confusion with respect to the date alone. But even otherwise, whether it is 10.5.2006 or 16.5.2006, the Defendant having agreed to the execution of the agreement, this court has to accept that the said agreement was validly executed. The parties herein entered into the second agreement dated 21.8.2006. There is no mention about the first agreement in the 2nd agreement dated 21.8.2006. PW.1 was again cross examined with respect to this agreement, as follows:-
Q: What is the date of the second agreement?
A: The second sale agreement was executed on 21.8.2006.
Q: Have you taken any steps to get back the first sale agreement dated 15.5.2006 in between the intervening period from 16.5.2006 and second sale agreement dated 21.8.2006.
A: Sundarrajan informed me that he was taking steps to get bank loan on the basis of the first sale agreement dated 16.5.2006 but he was prolonging the matter without doing any effective steps. ”
19. It is again seen that the Defendant had not directly challenged the 2nd agreement of sale marked as Ex.P1 or disputed the signature. However, the learned counsel for the Plaintiff had widened the scope of the suit, stating that the Plaintiff did not have sufficient funds to pay the balance sale consideration. In this regard, the Plaintiff was cross examined with respect to the place of work and his monthly salary. The Plaintiff claimed that he was working as a Wireless Operator in the Metropolitan Transport Corporation and was drawing a monthly salary of Rs.25,000/- in May 2006. He further claimed that he retired on 30.11.2015 on superannuation. However, it must be kept in mind that the suit agreement was of the year 2006 when the Plaintiff was still in employment. The issue of handing over possession under the two agreements was then raised during the cross examination of PW.1 and in this regard, the following questions and answers of PW.1 were recorded:-
Q: Whether the possession of the suit property was handed over to you on the date of agreement under Ex.D1?
A: The suit property was not handed over to me on 10.5.2006 as per Ex.D1. Witness Adds: A tenant was in occupation of the suit property and Sarojini agreed to hand over the possession of the suit property to me after the tenant vacated from the suit property.
Q: Whether the possession of the suit property was handed over to you on the date of the second agreement dated 21.8.2006 under Ex.P1?
A: No, the possession was not handed over because the tenant did not vacate from the suit property?
Q: Is there any mention under sale agreement Ex.D1 and Ex.P1 to show that Sarojini had agreed to hand over possession after vacating the tenant?
A: No, there is no mention. Ex.D1 is shown to the witness.
Q: In page no.3, 5th line from paragraph 2 it is mentioned that key of the flat will be handed over to you at the time of execution and registration of the sale deed, is it correct?
A: Yes.
Ex.P1 is shown to the witness.
Q: In page no.2, 5th line from paragraph 5 it is mentioned that key of the flat will be handed over to you at the time of execution and registration of the sale deed, is it correct?
A: Yes.”
However, even though possession has been disputed, the receipt of advance of Rs.1,50,000/- under Ex.D1/D6 and Rs.2,60,000/- under Ex.P1 has not been disputed by the Defendant.
20. It must also be mentioned that it is the case of the Defendant that the Plaintiff had applied for bank loan and while approving the bank loan, the Officials of the Bank came to visit and inspect the flat premises. At that time, the key was handed over to the Plaintiff. The key was never returned back. The Plaintiff denied to be in unlawful occupation in the suit property. With respect to this, by Ex.D8, which is the order of this court in OA.No.352 of 2010 and A.No.1718 of 2010 in CS.No.329 of 2010 dated 27.4.2010, from May 2010, the Plaintiff has been depositing a sum of Rs.15,000/- p.m. to the credit of the suit. Further, as per Ex.D9, by order of the court, dated 19.10.2010 in OA.No.352 of 2010 and A.Nos.1783 and 1784 of 2010 in CS.No.329 of 2010, the Plaintiff deposited the balance sale consideration of Rs.4,88,000/- into the court deposit. The Plaintiff has admitted to the said deposit. There is a note by the Office that as on date, there is a credit of Rs.16,58,000/- (Rupees sixteen lakhs fifty eight thousand only) to the credit of CS.No.329 of 2010 which bears no interest. These facts point to the following conclusions:-
i. The parties have entered into the agreement dated 10.5.2006/16.5.2006 and the Plaintiff had paid an advance of Rs.2,60,000/- to the Defendant.
ii. The Plaintiff and the Defendant entered into the second agreement of sale dated 21.8.2006 Ex.P1 and the Plaintiff had paid further advance of Rs.1,50,000/-.
iii. The Plaintiff has been in possession, according to him, from 21.8.2006 to till date.
iv. By order of this court, the Plaintiff has deposited a sum of Rs.15,000/- every month from May 2010 till December 2016.
v. The Plaintiff has also deposited the balance sale consideration of Rs.4,88,000/-.
vi. As on date, there is a total amount of Rs.16,58,000/- (Rupees sixteen lakhs fifty eight thousand only) lying to the credit of OS.No.329 of 2010.
vii. The Plaintiff has not deposited or paid any amount for use and occupation from August 2006 till April 2010.
viii. Since the parties have agreed to the execution of the document, I hold that the Plaintiff must also pay a sum of Rs.15,000/- from August 2006 till April 2010, which will come to Rs.6,75,000/-
21. I hold that the Plaintiff has to deposit a sum of Rs.6,75,000/- (Rupees six lakhs seventy five thousand only) being Rs.15,000/- per month from August 2006 till April 2010. The Plaintiff has also to deposit another sum of Rs.15,000/- for use and occupation for the months of January and February 2017, amounting to Rs.30,000/-. I hold that the balance of convenience is in favour of the Plaintiff for obtaining a decree for specific performance on deposit of Rs.6,75,000/- and Rs.30,000/-, totalling Rs.7,05,000/- before this court within three months. The Defendant is also at liberty receive a sum of Rs.16,58,000/- (Rupees sixteen lakhs fifty eight thousand only) lying to the credit of CS.No.329 of 2010. On deposit of the amount by the Plaintiff, the Defendant has to execute the sale deed, failing which, the court shall execute the sale deed in respect of the suit property in favour of the Plaintiff at the cost of the Plaintiff and the Plaintiff is entitled to recover the necessary costs from the Defendant.
The Plaintiff is entitled for a decree of specific performance on the above terms and the Defendant is not entitled for recovery of possession. With respect to the possession, Writ Petitions have been filed and criminal complaint has also been filed by the Defendant. However, the said complaint had been quashed by this court and consequently, this court is not going to the details of the said criminal complaint. Final orders have also been passed in the Writ Petitions and therefore this court is not discussing the circumstances surrounding the said Writ Petitions which relate to provision of electricity supply to the suit property in the name of the Plaintiff. These issues are answered in the above manner since the agreements are admitted by the Defendant and the advance amounts are admitted by the Defendant and the Plaintiff has stated that he is in possession from August 2006 and from May 2010, as per the directions of this court, has been paying Rs.15,000/- p.m. The same directions shall extend from the date of possession, namely, August 2006 till April 2010 and again for January and February 2017. The Plaintiff is entitled for specific performance on the above terms.
22. Issue (2) and Issue (3) in CS.No.329 of 2010:- The Plaintiff has been in possession from August 2006 and he is enjoying the suit property. Naturally when he is in possession, he has to make necessary improvements which are for his own comfort. I therefore hold that he is not entitled for any sum much less Rs.1,00,000/- towards damages or compensation towards his expenses incurred by him. Accordingly, this issue is answered.
23. Issue (3) and Issue (2) in CS.No.329 of 2010:- Since this court has held that the Plaintiff is entitled for a decree for specific performance, the Plaintiff is also entitled to a decree for permanent injunction, restraining the Defendant or anybody acting under the Defendant from disturbing the Plaintiff's peaceful possession and enjoyment of the suit property. Accordingly, this issue is answered.
24. Issue (7) and Issue (5) in CS.No.329 of 2010:- The Plaintiff is entitled for a decree of specific performance of the agreements marked as Ex.D1/D6 and Ex.P1 as discussed above.
25. In the result, these civil suits are partly decreed without costs, on the following terms and in all other respects, these civil suits are dismissed:-
(a) The Plaintiff has to deposit a sum of of Rs.6,75,000/- (Rupees six lakhs seventy five thousand only) being Rs.15,000/- per month from August 2006 till April 2010 and an additional sum of Rs.30,000/- (Rupees thirty thousand only) being Rs.15,000/- p.m. for the months of January and February 2017, totalling Rs.7,05,000/- (Rupees seven lakhs five thousand only). Time for deposit is three months.
(b) The Defendant is entitled for the entire court deposit amount of Rs.16,58,000/- (Rupees sixteen lakhs fifty eight thousand only) lying to the credit of OS.No.329 of 2010.
(c) On such deposit of Rs.7,05,000/- (Rupees seven lakhs five thousand only) being made by the Plaintiff, the Defendant has to execute the sale deed in favour of the Plaintiff in respect of the suit property, viz. Flat measuring 652 sq.ft. with right over the 16.5.% of common space appurtenant to the building called Anupam Foundation and comprised in Door No.11/F5, at Old Door No.5/2 and New Door No.9, situated on Ramapuram Ramasamy Street, Saidapet, Chennai-15 and 3.65% undivided interest over the total site of 4900 sq.ft.
(d) Time for deposit by the Plaintiff is three months. Time for execution of the sale deed by the Defendants is three months thereafter. Failure on the part of the Defendant execute the sale deed within the said period will entail the court to register the sale deed in favour of the Plaintiff at the cost of the Plaintiff, which costs the Plaintiff is entitled to recover from the Defendant.
(e) Both parties have to bear their respective costs.
Consequently, the connected application is closed.
17.02.2017 Index:Yes/No Web:Yes/No Srcm To:
The Record Keeper, VR Section, High Court, Madras C.V.KARTHIKEYAN, J.
Srcm Pre-Delivery Judgement in CS.No.329 of 2010 Tr.CS.No.279 of 2011 17.02.2017 http://www.judis.nic.in