Madras High Court
Rani vs Jayalakshmi on 30 August, 2024
Author: N.Seshasayee
Bench: N.Seshasayee
C.R.P.No.3088 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 27.06.2023
Pronounced on : 30.08.2024
CORAM : JUSTICE N.SESHASAYEE
C.R.P. No.3088 of 2019
and CMP. No.20059 of 2019
1.Rani
2.Latha (minor)
3.Rekha (minor) ... Petitioners / Respondents 8 to 10 / Petitioners
Vs
1.Jayalakshmi
2.Rajkumar
3.Kaminiraj ... Respondents / Petitioners / Respondents
Prayer : Civil Revision Petition filed under Section 115 of CPC, praying to set
aside the order and decretal order dated 26.06.2018 made in E.A.No.580/2004 in
E.P.No.210/1999 in O.S.No.202 of 1988 on the file of the Additional Sub Judge,
Puducherry.
For Petitioners : Mr.R.Thiagarajan
For Respondents : Mr.P.V.S.Giridhar
of M/s.PVS Giridhar & Associates
Assisted by Ms.Y.Kavitha & Mr.D.Prasanna
1/22
https://www.mhc.tn.gov.in/judis
C.R.P.No.3088 of 2019
ORDER
The legal representatives of the first defendant/judgment debtors in O.S. No.202 of 1988 on the file of the Additional Sub Court at Puducherry, are the petitioners herein.
2. The facts that provide the back drop to this revision-petition may now be bullet pointed:
● A certain property measuring 8,016 sq.ft. belonged to two persons. They entered into a sale agreement dated 28.05.1987 with one T.Selvaraj for a sale consideration of Rs.3.60 lakhs, out of which Rs.80,000/- was paid as advance. It is an undisputed fact that the said Selvaraj was in peaceful possession of the property under certain jural relationship with the owners of the property even prior to the said sale agreement dated 28.05.1987. ● To enforce the sale agreement Selvaraj preferred O.S. No.202 of 1988 before the Additional Sub Court, Puducherry. A year later the first defendant had passed away some time in 1989 and his legal representatives were came to be impleaded.
● Vide its judgment and decree dated 08.10.1991, the trial court decreed the 2/22 https://www.mhc.tn.gov.in/judis C.R.P.No.3088 of 2019 suit but only to the extent of the half the share of the first defendant in the suit property, and directed the plaintiff to deposit the balance consideration of Rs.2.60 lakhs (where it should be Rs.2.80 lakhs) within three months.
● Selvaraj, the plaintiff in the suit, preferred an appeal in A.S.No.972 of 1991 on the file of this court challenging that part of the decree of the trial court dismissing specific enforcement of the contract for the other half share. This appeal was later withdrawn by the plaintiff on 02.03.1998. Within 10 days of the withdrawal of A.S. No.972 of 1991, the plaintiff deposited the balance sale consideration.
● Subsequently the decree holder laid E.P. No.210 of 1999 for obtaining a sale deed for the half share of the first defendant. A sale deed too was executed on 03.04.2019 by the execution court. Inasmuch as the decree holder is already in possession of the property, there was no need for him to approach the court for obtaining delivery of his half share.
3. The legal representatives of the first defendant who were defending the half share of the first defendant and contested the suit, would now come out with an application in E.A. No.580 of 2004 under Section 47 CPC r/w Section 28 of the 3/22 https://www.mhc.tn.gov.in/judis C.R.P.No.3088 of 2019 Specific Relief Act, 1963. They allege in their affidavit:
a) Whereas the plaintiff / his legal representatives ought to deposit Rs.2.80 lakhs, they have chosen to deposit only Rs.2.60 lakhs. The differential sum is not deposited till date.
b) Secondly, the trial court has directed the plaintiff to deposit the balance sale consideration within three months from the date of its decree on 08.10.1991, the plaintiff had deposited it only on 12.03.1998, after the withdrawal of A.S.972 of 1991 on 02.03.1998. Hence the plaintiff/his legal representatives have lost all their right to execute the decree.
c) This allegations is followed with a set of reliefs which inter alia include:
i. To dismiss E.P.210 of 1999.
ii. To declare that the decree dated 08.10.1991 is inexecutable. iii. Rescind the contract dated 28.05.1987 and to direct redeliver possession of the northern half of the suit property with mesne profits at Rs.3,900/-p.m..
4. In the counter filed by the legal representatives of decree-holder it is alleged:
a) When the decree-holder filed A.S.972 of 1991 before this Court, he also moved C.M.P.17184 of 1991 seeking leave of the Court to depoist Rs.1.0 4/22 https://www.mhc.tn.gov.in/judis C.R.P.No.3088 of 2019 lakh (since the suit was decreed only for one-half of the suit property) and in the alternative to stay the operation of the decree. On 20.12.1991, this Court had passed an order where it declined to grant leave to deposit Rs.1.0 lakh, since the quantum of amount required to be deposited could not be ascertained, but instead chose to stay the operation of the decree of the trial court till the disposal of the appeal. This order was not challenged by the petitioners, nor have they sought any modification.
b) A.S.972 of 1991 pending before this court was withdrawn on 02.03.1998.
Immediately thereafter the plaintiff filed a petition in I.A.No.705 of 1998 before this court for depositing the balance sale consideration of Rs.2.60 lakhs and accordingly, the said sum was deposited on 12.03.1998.
c) Since petitioners are parties to the proceedings before the High Court, they are bound by the orders of the High Court.
d) In the meantime, the petitioners, without disclosing the decree passed in the suit, and also the deposit of the balance sale consideration, moved the District Court with G.O.P.47 of 1999 seeking leave of the court to sell that half of the property which was decreed.
5. After due enquiry, the execution court dismissed E.A.No.580 of 2004 and its 5/22 https://www.mhc.tn.gov.in/judis C.R.P.No.3088 of 2019 line of reasoning is that:
a) the decree passed by the trial court in O.S. No.202 of 1988 directed the plaintiff to deposit balance sale consideration of only Rs.2.60 lakhs within a stipulated time, and hence whatever that was deposited is in order, and is in tune with the decree passed in the suit.
b) That the operation of the trial court decree was stayed by this Court till the disposal of A.S.972 of 1991 and it binds the petitioners.
c) Even prior to the dismissal of the appeal (as withdrawn) on 03.10.1998, the decree holder moved the trial court with I.A.705 of 1998 for deposit of the balance sale consideration, and it was ordered on 09.09.1998.
This order has now been challenged.
6. Mr.R.Thiagarajan, the learned counsel for the revision petitioners made the following submissions:
● The suit is laid for specific performance of an entire block of property for a total sale consideration of Rs.3.60 Lakhs, out of which Rs.80,000/- had been paid and the balance payable is Rs.2.80 lakhs. The trial Court, however granted a decree for specific performance only as regards the half share of 1st defendant but stipulated that Rs.2.60 lakhs must be deposited 6/22 https://www.mhc.tn.gov.in/judis C.R.P.No.3088 of 2019 within a period of three months from the date of passing of the decree. Admittedly, the decree holder did not deposit whatever sale consideration that was directed to be deposited by the trial Court. Instead, he laid A.S.No.972 of 1991, challenging the decree dismissing the suit for specific performance for the other half of the suit property. In this First Appeal, the plaintiff took out C.M.P.No.17184 of 1991 seeking (a) leave to deposit Rs.1.0 lakh towards balance sale consideration and; (b) to stay the operation of the decree. On 20.12.1991, this Court dismissed the plaintiff's prayer seeking permission to deposit Rs.1.0 Lakh but stayed the operation of the decree. On 02.03.1998, the plaintiff withdrew A.S.No.972 of 1991, and this Court has passed the judgment dismissing it as withdrawn on that day.
● Thereafter, the plaintiff has laid E.P.No.210 of 1999 in O.S.No.202 of 1988. In this E.P, the plaintiff has sought execution of a sale deed pertaining to the northern half of the suit property when the decree of the trial Court did not specify anything about the same. In other words, the plaintiff seeking execution of a sale deed as regards specific half of the entire property is contrary to what the decree states. In fitness of things, the plaintiff ought to have sought partition of the half share of the property 7/22 https://www.mhc.tn.gov.in/judis C.R.P.No.3088 of 2019 under Section 22 of the Specific Relief Act,1963. Since the prayer in the E.P goes tangential to the decree that was passed by the trial Court, to that extent the decree is inexecutable.
● The trial Court has directed deposit of Rs.2.60 Lakhs when the plaintiff knew that in terms of the agreement he is duty bound to deposit Rs.2.80 lakhs. Even it were a mistake of the court, still, the plaintiff should not have taken advantage of the mistake of the court, but should have approached the same for correcting the decree and should have deposited the entire balance sale consideration of Rs.2.80 lakhs. And he has not sought any time for extending the period for depositing the balance sale consideration either. And, this is required to be appreciated in the backdrop of the order of this Court dismissing his prayer to deposit Rs.1.0 lakh vide Order dated 20.12.1991 in C.M.P.No.17184 of 1991. ● A decree for specific performance is more in the nature of a preliminary decree, and the contract will for enforcing which the decree was passed still be subsisting if the decretal direction is not complied with within the time stipulated. Inasmuch as the decree holders in the present suit has not complied with the direction to deposit the sale consideration within three months and since not the entire balance sale consideration is not 8/22 https://www.mhc.tn.gov.in/judis C.R.P.No.3088 of 2019 deposited, then the Judgement-debtors are entitled to apply for rescission of contract under Sec.28 of the Specific Relief Act. Reliance was placed on the ratio in Rajinder Kumar Vs Kuldeep Singh and others [(2014) 15 SCC 529]; Chanda (Dead) through LRs Vs Rattni and another [(2007) 14 SCC 26]; Smt.Vatsala Shankar Bansole Vs Shri Sambhaji Nanasaheb Khandare and another [AIR 2003 Bom 57]; V.S.Palanichamy Chettiar Firm Vs C.Alagappan and another [(1999) 4 SCC 702]; Hungerford Investment Trust Limited Vs Haridas Mundhra and others [(1972) 3 SCC 684] and P.Baskaran Vs P.Soundararjan [2012 (2) MWN (Civil) 143].
7. Per contra, the learned counsel appearing for the decree holders/respondents herein submitted the following:
● Even as E.A. No.580 of 2004 was pending, the first revision petitioner had executed a power of attorney dated 28.05.2008 in favour of one Somasundaram, on the strength of which, a sale deed dated 17.02.2012 was executed by the power holder in favour of one Mangalakshmi for a sale consideration of Rs.80.00 lakhs. This fact was brought to the notice of the execution court in E.A. No.580 of 2004. However, the enquiry before the execution court was confined to the tenability of the 9/22 https://www.mhc.tn.gov.in/judis C.R.P.No.3088 of 2019 contentions raised in E.A. No.580 of 2004 and the execution court did not embark on an enquiry into the facts relating to the execution of sale deed in favour of Mangalakshmi.
● This apart, Somasundaram also entered into a sale agreement with another party for another portion of the property involved herein and hence she would approach the District Court, Puducherry with G.W.O.P. No.47 of 1999 seeking the leave of the court for sale of the minors' interest in the property. On coming to know of this information, the decree holders/respondents herein got themselves impleaded in the guardian OP and no sooner that OP was not pressed.
● Shifting his focus to the merit of his contention, the decree holders obeyed the decree, and if the decree was not correctly drafted then the interest of the decree holders cannot suffer any injury for actus curiae neminem gravabit. Indeed there is nothing on record to indicate that the plaintiff had attempted to take an unfair advantage of the situation, and avoided depositing Rs.20,000/- Reliance was placed on Bhupinder Singh Vs Unitech Ltd., [2023 SCC OnLine SC 321] ● This Court in exercise of its power under Article 227 of the Constitution, should not embark on fact finding as to whether the plaintiff has acted 10/22 https://www.mhc.tn.gov.in/judis C.R.P.No.3088 of 2019 unjustly, more so, when there is no evidence to support it. Reliance was placed on the ratio in M/s.Puri Investments Vs M/s.Young Friends and Co. & others [2022 SCC OnLine SC 283]; Umaji Keshao Meshram and others Vs Radhikabai [1986 (Supp) SCC 401] and Bathumal Raichand Oswal Vs Laxibat R. Tarta & another [(1975)1 SCC 858] to expound the power of this Court under Article 227 of the Constitution of India.
8. The submissions of the learned counsel for the revision petitioners raises some interesting aspects. At the end of the day, the plaintiff has complied with the stipulation in the decree and has deposited Rs.2.60 lakhs. The decree on its face does not indicate that merely because the decree for specific performance was granted only for half the share, the sale consideration has to be proportionately reduced. Indeed, this was an aspect that gets reflected in the order in C.M.P.No.17184 of 1991, and is also seen backed by Section 12(3) of the Specific Relief Act, 1963. If in terms of Section 12(3) of the Specific Relief Act, 1963, the plaintiff is duty bound to pay the entire balance sale consideration of Rs.2.80 lakhs, even if specific enforcement of the entire contract could not be given. There is nothing to dispute this aspect of law. The trial Court, apparently was in error when it directed the plaintiff to deposit not the entire balance sale 11/22 https://www.mhc.tn.gov.in/judis C.R.P.No.3088 of 2019 consideration of Rs.2.80 lakhs, but only Rs.2.60 lakhs. The point here is does law require the plaintiff to inform the Court as a fair litigant and to seek correction of an inadvertent mistake, or can he take advantage of the maxim actus curiae neminem gravabit?
9. Impressive are the submissions of the counsel for the revision petitioner, but are they adequate to help the revision petitioners / judgment debtors to reach ashore safely? While there is merit in the submissions of the learned counsel that a decree for specific performance will not replace the contract, if the decree requires something more to be done by the party who seeks specific enforcement of the contract for fulfilling the contractual obligations created, then at the first leg, the contract really survives. It is hence the Specific Relief Act provides a pre-requisite or pre-condition in requiring a party who seeks specific performance to demonstrate his readiness and willingness to perform his part of the contract. The Court passes a decree for specific performance not because the plaintiff has performed the entire contract at the point of passing the decree but because he has demonstrated to the satisfaction of the Court that he has always been ready and willing to perform the contract. But the term of the contract has not yet been fully performed. It is hence when the Court directs the 12/22 https://www.mhc.tn.gov.in/judis C.R.P.No.3088 of 2019 plaintiff to deposit the balance sale consideration within a stipulated time, then it is a direction given to the plaintiff to perform so much of contractual obligation that he is required to perform, for performing which, he has demonstrated his readiness and willingness. It is once this condition is performed, the contract becomes eligible for specific enforcement. It is hence Courts have held that the decree for specific performance is in the nature of preliminary decree.
10. The larger question is, has the petitioners/judgment debtors are able to establish that the decree holders have failed in performing the remainder part of the contract, for performing which the Court has issued a direction to deposit the balance sale consideration within three months in its decree.
11. Here this Court finds that the learned counsel's ability to make an approavable statement in law is not adequately backed by the facts of his case. This is now explained :
(a) The trial Court in its decree has directed the plaintiff to deposit only Rs.2.60 lakhs whereas it ought to have been Rs.2.80 lakhs. This is plainly a mistake of the Court and the maxim actus curiae neminem gravabit will apply? While this Court would have appreciated the 13/22 https://www.mhc.tn.gov.in/judis C.R.P.No.3088 of 2019 plaintiff if he had alerted the Court about the mistake in the decree as to the sum required to be deposited by him, yet, it cannot attribute unfairness to his conduct either. The Court with its decree, is not conducting a test on fairness of a litigation.
(b) Secondly this decree of trial Court was challenged before the appellate Court and the appellate Court indeed stayed the operation of the decree of the trial Court, and this fact was not disputed, which implies the decree of the trial Court was stayed till 02.03.1998, the date on which this Court dismisses A.S.972 of 1991 as withdrawn, and within about 10 days, the decree holder has paid the entire money which he is required to deposit in terms of the decree. Therefore, the three months time stipulation got merged with the order of stay passed in C.M.P.No.17184 of 1991.
12.1 The only point that stands to the credit of the petitioner did not argue, operates in a slightly different sphere. The maxim actus curiae neminem gravabit operates not only in aid of one party but it should operate in aid of both the parties, which implies, if the trial Court with an inadvertent mistake has made a direction only to deposit Rs.2.60 lakhs, then the defendants for also 14/22 https://www.mhc.tn.gov.in/judis C.R.P.No.3088 of 2019 whom the contract survives for performance beyond the decree of specific performance is also entitled to have the money paid. The trial Court had an opportunity to correct its suo motu mistake when the decree holder moved I.A.No.705 of 1998 for seeking the leave of the Court to deposit the money. It did not do it. The Execution Court atleast would have found this mistake. While the Court shall not penalise the decree holder for not depositing Rs.20,000/- for want of a direction from it, it cannot also deny the judgment debtor of the money due to him. Therefore, this Rs.20,000/- has to be now deposited.
12.2 Secondly, the dispute in A.S.No.972 of 1991 is all about entitlement of plaintiff to seek specific enforcement for other half of the suit property that belonged to the second defendant. The plaintiff might have entertained a doubt even bonafide, that when the total extent gets reduced, then the sale consideration will get proportionately reduced, but when once this Court has passed an order in CMP.No.17184 of 1991 and refused to enter into that issue, then in fitness of things the plaintiff ought to have deposited the sale consideration before the Court instantly. If only it had been done, atleast it could have earned some interest in judgment debtors. After all, in this branch, 15/22 https://www.mhc.tn.gov.in/judis C.R.P.No.3088 of 2019 this Court exercises power in equity and this equity need to be done.
13. Turning to the multiple prayers the petitioners/judgment debtors have sought in E.A.No.580 of 2004, this Court holds that the only prayer which the petitioners may even attempt to seek, is one seeking rescission of contract under Section 28 and not rest of the prayers. And turning to the submissions of the respondents, the prime concern is that this Court may not engage in a fact finding, in exercising its jurisdiction under Article 227 of the Constitution. This Court however has not opted to engage any fact finding but has only chosen to streamline and balance the equities.
14. In fine, this Court dismisses this petition but subject to the following directions:
(a) the decree holders shall deposit the balance sale consideration of Rs.20,000/- along with interest at the rate of 9% from 08.01.1991 (date of the decree in O.S.No.202/1988) till the date of payment, into the trial Court;
(b) that the decree holder shall pay interest at the rate of 6% on the entire Rs.2.60 lakhs from 08.01.1991 (date of the decree in 16/22 https://www.mhc.tn.gov.in/judis C.R.P.No.3088 of 2019 O.S.No.202/1988), till the date on which the deposit was made before the trial Court;
(c) the payment terms as directed in above clauses 14(a) and 14(b) shall be made within a period of two months from this date.
There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
30.08.2024 Index : Yes / No Internet : Yes / No Speaking order / Non-speaking order ds To:
1.The Additional Sub Judge Puducherry.
2.The Section Officer VR Section High Court, Madras.
17/22
https://www.mhc.tn.gov.in/judis C.R.P.No.3088 of 2019 N.SESHASAYEE.J., ds Pre-delivery Order in C.R.P.No.3088 of 2019 30.08.2024 18/22 https://www.mhc.tn.gov.in/judis C.R.P.No.3088 of 2019 CRP.No.3088 of 2019 N.SESHASAYEE., J This case is listed under the caption 'for being mentioned' at the instance of the learned counsel for the respondents.
2.The learned counsel for the respondents pointed out couple of typographical errors or certain ambiguity in paragraph nos.5 and 14 of the order of this Court dated 30.08.2024. The learned counsel listed the same as below;
a) In paragraph no.5(c) of the order, in line one, the date on which the appeal was withdrawn was 02.03.1998 and not 03.10.1998.
b) In paragraph no.14, clause (a) and (b), the date of the trial Court decree was given as 18.01.1991, whereas, it should be 18.10.1991.
c) Further, it is not indicated whether the rate of interest stipulated in paragraphs 14(a) and 14(b) is for per annum or per month;
d) The trial Court in its decree has granted three months time for making payment, therefore, the interest may not be awarded for the first three months from the date of the decree of the trial Court.
3.Heard the learned counsel for the revision petitioners. 19/22 https://www.mhc.tn.gov.in/judis C.R.P.No.3088 of 2019
4.This Court considers all the submissions made by the learned counsel for the petitioner favourably. Accordingly;
a) In paragraph 5(c), in line one, the date 03.10.1998 is directed to be struck off and in its place the date 02.03.1998 is required to be mentioned;
b) In paragraph no.14(a) and 14(b), the date of the trial Court decree has to be mentioned as 18.10.1991 instead of 18.01.1991;
c) In paragraph no.14(a) and 14(b), after the rate of interest (9%) and (6%) as the case may be, the phrase 'per annum' is directed to be inserted. Further, in both paragraphs 14(a) and 14(b), the interest may be paid only from 09.01.1992. Accordingly, paragraphs 14(a) and 14(b) will read as below:
“14.(a) The decree holders shall deposit the balance sale consideration of Rs.20,000, along with interest at the rate of 9% per annum from 09.01.1992 (from the date of expiry of three months already stipulated in the decree of the trial Court in O.S.No. 202 of 1988 for deposit of the balance sale consideration by the plaintiff) till the date of payment, into the trial Court;
(b) The Decree holder shall pay interest at the rate of 6% per annum on Rs.2,60 lakhs from 09.01.1992 (from the date of expiry of three months already stipulated in the 20/22 https://www.mhc.tn.gov.in/judis C.R.P.No.3088 of 2019 decree of the trial Court in O.S.No. 202 of 1988 for deposit of the balance sale consideration by the plaintiff ), till the date on which the deposit was made before the trial Court;”
5.This Court also chooses to include one more clause to bring in greater clarity to its order and accordingly, inserts clause 14(d) which will read as below;
“Such defendants or their legal heirs as the case may be, to whom the balance sale consideration is directed to be paid by the trial Court in its decree in O.S.No.202 of 1988, alone will be entitled to withdraw the sum directed to be deposited.”
6.The Registry is directed to carry out the necessary corrections and repost the corrected order in the official website. If any certified copy has been issued on any of the parties, the Registry is required to issue a fresh certified copy, free of charges.
04.09.2024 Tsg N.SESHASAYEE.J., ds 21/22 https://www.mhc.tn.gov.in/judis C.R.P.No.3088 of 2019 CRP.No.3088 of 2019 04.09.2024 22/22 https://www.mhc.tn.gov.in/judis