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[Cites 7, Cited by 0]

Madras High Court

B.Meera Gopalan vs Sp.Annamalai on 24 August, 2018

Author: V.Bharathidasan

Bench: V.Bharathidasan

        

 

IN THE HIGH COURT OF JUDICATURE AT MADRAS 

Judgment Reserved on      : 20.07.2018

Judgment Pronounced on    :  24.08.2018

CORAM

THE HON'BLE MR.JUSTICE V.BHARATHIDASAN

Civil Suit No.1127 of 2008



B.Meera Gopalan							... Plaintiff   

-Versus-

1. SP.Annamalai,

2. M.Vijayarani								... Defendants  



	Suit filed under Order IV, Rule 1 of O.S.Rules read with Order VII Rule 1 of CPC 1908 praying for a decree 

	(a) directing the first defendant to specifically perform his part of the obligations arising out of the agreement for sale dated 05.12.1996 entered into by him with the plaintiff at Chennai in respect of the "C" schedule property situate at Door No.29 (New No.2), South Dhandapani street, T.Nagar, Chennai - 600 017, morefully described in the "C" schedule forming part of D"schedule as well as "B"schedule property and by directing both the defendants to execute and register the sale deed or deeds in favour of the plaintiff or her nominee or nominees, either in one lot or in pieces, either divided or undivided as the case may be, on receipt of balance sale consideration of Rs.3,07,500/- on a date to be fixed by this Court, in default, direct the officer of this Court to convey the plaint "C" schedule mentioned property forming part of the plaint "A " schedule as well as "B"schedule property in favour of the plaintiff or its nominee or nominees, either in one lot or in pieces, either divided or undivided as the case may be, on deposit of the balance sale consideration of Rs.3,07,500/- to the credit of the suit by the plaintiff, or in the alternate, directing the first defendant to refund the sum of Rs.6 lakhs paid by the plaintiff besides a sum of Rs.46,49,500/- as damages payable by the first defendant for breach of contract committed by him, totaling a sum of Rs.52,49,500/- with future interest at the rate of 24% p.a. from the date of suit till the date of realization.

	(b) for mandatory injunction directing the defendants to demolish the unauthorized constructions shown in the "D" schedule hereunder within a date to be fixed by this Court and in default, to demolish them through the process of Court ;



	(c) for a declaration that the plaintiff has got an statutory and equitable charge over the "C"schedule mentioned property forming part of "A "schedule as well as "B"schedule property for the amount paid and loss or damages incurred by the plaintiff in relation to the contract dated 05.12.1996 :

	(d) For a permanent injunction restraining the defendants herein or their men, agents, servants or any other person or persons claiming through them or authorised by them from interfering with the plaintiff's peaceful possession and enjoyment of the shop No.2 of the "C" schedule property situate at Door No.29, New No.2, South Dhandapani Street, T.Nagar, Chennai - 17 morefully described in the plaint "c"schedule forming part of "D"schedule as well as "B"schedule property; 

	(e) for permanent injunction restraining the defendants herein, or their men, agents, servants or any other person or persons claiming through them or authorized by them from alienating, encumbering, altering or dealing with the "C"schedule property situate at Door No.29 (New No.2), South Dhandapani street,  T.Nagar, Chennai -17 morefully described in plaint "C" schedule forming part of "A"schedule as well as "B "property, either by way of sale, lease, mortgage, lien or joint development or other wise; and for costs.



		For Plaintiff	: Mr. T.Ayyasamy

		For Defendant	: Mr.J.Saravanavel, for D1	
			                : Mr.K.V.Ananthakrishnan,for D2




JUDGEMENT

This suit has been filed for specific performance of contract of sale dated 05.12.1996, mandatory injunction, declaration and permanent injunctions and for costs.

2. The averments made by the plaintiff in brief is as follows:-

The first defendant was the absolute owner of 15% of the undivided share, i.e., 510 sq.ft., in the land in Survey No.153/4, T.S.No.7351 of T.Nagar Village , measuring one ground and 1016 sq.ft, which is suit "A" schedule property. He has purchased the property by a registered sale deed dated 13.06.1994. Likewise, 7 other persons also purchased various extents of undivided shares in the "A" schedule land through separate sale deeds, dated 13.06.1994. The first defendant along with other co-owners of the "A" schedule property had developed the land and constructed shops and office premises compromising of basement, ground, mezzanine and first floor. As per the agreement entered into with the other co-owners, the first defendant was allotted three shops in the ground floor, which is the suit "B" schedule property and thus, the first defendant has become the exclusive owner of the suit "B" schedule shops. The plaintiff's son one Gopal Krishna Raju was inducted as a tenant in a portion of the second floor premises of the suit " A" schedule property in April 1996 and he has also paid a sum of Rs.1,00,000/- and Rs.45,000/- as rental advance as well as amenities advance respectively. Thereafter, another sum of Rs.50,000/- was paid towards advance, totaling a sum of Rs.1,50,000/-. In November, 1996, the first defendant offered to sell all the 3 shops in the ground floor, which is "B"schedule property, to the plaintiff and she orally agreed to purchase it. After negotiations with the first defendant, S.P.Annamalai and one P.L.A.Palaniappan, who was acting as de-facto agent of all the co-owners at that time, the sale price was fixed at Rs.1,650 per square feet for the superstructure with the proportionate undivided share in the land. The sale contract was concluded on 05.12.1996, which was a oral contract. As per the oral contract, the sale transaction in respect of Shop No.3 should be completed within 4 months on payment of the entire sale consideration of Rs.4,00,000/- in one lump sum and a sum of Rs. 6,00,000/-, out of the sale price of Rs.9,07,500/-, should paid by the plaintiff within 4 months as advance and part of sale consideration for shop nos.1 and 2, which is suit "C" schedule property, and the sale transaction was mutually agreed to be completed in due course of time. There was also a specific understanding between the parties that so far as "C" schedule property is concerned, time was not the essence of the contract and the sale transaction would be completed in due course of time. The balance of sale consideration of Rs.3,07,500/- was agreed to be paid at the time of execution and registration of the sale deed. It was also further agreed that the advance amount of Rs.1,50,000/- paid by the plaintiff's son should be appropriated towards Rs.6,00,000/- being the earnest sum as the part of sale consideration was agreed to be paid towards "C" schedule property. Acting upon the oral contract concluded on 05.12.1996, a further sum of Rs.50,000/- was paid as advance on 05.12.1996 itself through a cheque. A further sum of Rs.2,00,000/- was paid through a demand draft drawn on Corporation Bank in the name of Mr.PL.A.Palaniappan dated 20.12.1996. Another sum of Rs.2,00,000/- was paid by cash on 22.01.1997 through one Mr.Viswanathan, one of the owners of the suit "A" schedule property. The above said amount was also acknowledged. The plaintiff has duly performed her part of contract, by paying the entire sum of Rs.6,00,000/- agreed to be paid towards advance and almost 2/3rd of the sale consideration towards the sale price of the "C" schedule property was paid by the plaintiff. It is further stated that pursuant to the oral sale agreement, the plaintiff was put in possession of shop nos.2 and 3 in the third week of January 1996 . Pursuant to the oral agreement, S.P.Annamalai, the owner of the "B" schedule property executed an irrevocable power of attorney dated 27.03.1997, in favour of Mr.PL.A.Palaniappan, which was duly registered on the Sub-Registrar Office, Madurai. The oral agreement in respect of all the three shops have been explicitly acknowledged by Mr.S.P.Annamalai in the Deed of Power of Attorney itself and a specific power was also given to Mr.PL.A. Palaniappan, to sell all the three shops in the ground floor to the plaintiff, to execute and register the sale deed in her favour. On the strength of the said power of attorney, a sale deed has been executed by the first defendant, in favour of the plaintiff in respect of the shop No.3 on receipt of the sale consideration of Rs.4 lakhs and thus, the part of oral contract was duly performed by the first defendant . By virtue of the sale deed, the plaintiff has become the absolute owner in respect of shop No.3, and he was in possession of shop no.2 in her capacity as agreement holder. However, the first defendant requested the plaintiff to pay the monthly rent of Rs.6000/- for the shop no.2 till the execution of sale deed in respect of "C" schedule property and the plaintiff has been graciously paying the rent notwithstanding the existence of sale agreement. In April 1997, the plaintiff requested the first defendant to execute the sale deed in respect of "C" schedule property after receiving the balance of sale consideration, thereafter, she has repeatedly requested the first defendant to execute the sale deed to convey the "C" schedule property. The readiness, and willingness of the plaintiff to perform her part of the contract is also evidenced by her letter dated 07.02.2005 and 07.03.2005. In response to those letters, the first defendant solemnly reiterated his commitment and obligations to the sale agreement and promised to execute the sale deed. The plaintiff gave unequivocal assurances to the first defendant that she was ready to pay the balance of sale consideration without any default.
2.ii) Subsequently, the plaintiff came to know that ignoring the valid and enforceable oral agreement of sale, the first defendant herein, for himself and as power of attorney agent of all the co-owners of "A"schedule property has executed a sale deed dated 16.06.2008, in favour of the second defendant, purporting to convey the entire property including the "c" schedule property in respect of which there is a subsisting sale agreement with the plaintiff. A perusal of the sale deed would shows that PL.A.Palaniappan, on the strength of the power of attorney dated 27.03.1997 given to him by the first defendant, sold the property in favour of the second defendant. The above said power of attorney only empowered him to execute and register the sale deed in favour of the plaintiff and by using that power of attorney, he cannot execute, and register sale deed in favour of the second defendant, for which he has no authority. Hence, the second defendant would not get a valid title to the "C" schedule property and the second defendant also cannot be considered as a bonafide purchaser for value without notice of earlier contract. It is further stated by the plaintiff that the first defendant already received 2/3rd of the sale consideration for the sale of "C" schedule property and continued to receive a sum of Rs.6000/- per month towards the rent for shop No.2, and he cannot complain of any hardship to him by ignoring the contract. The second defendant, who purchased the property with full knowledge about the subsisting of contract in favour of the plaintiff, is not entitled to any equity. Since, the first defendant committed willful breach of the contract by executing the sale deed in favour of the second defendant, the plaintiff approached the court seeking the relief of specific performance of the contract or in the alternative for refund of Rs.6 lakhs along with damages of Rs.46,49,496/-.
2.iii) The plaintiff further stated that she is a renowned charted accountant and possessing requisite funds for completion of the sale transaction and she is always ready and willing to perform her part of contract. If the plaintiff invested the advance amount in the market, she would have earned more than a Crore, but however, she moderately estimates the damages at Rs.46,49,500/- calculating the interest at the rate of 18% per annum for the said amount. The plaintiff further stated that the total built up area of the superstructure, comprising of basement, ground, mezzanine and first floor, which was originally constructed by all the co-owners, was only 4980.32 sq.ft. While the plaintiff and his family members were away from Chennai in the month of May 2006, the first defendant and other co-owners unauthorizedly put up additional constructions in the second floor, which is described as "D"schedule property. When the plaintiff questioned the first defendant about the unauthorized constructions he was informed that it is only temporary structure and it would be dismantled within one year. But without demolishing the unauthorized construction, he has also sold the same to the second defendant. Since the construction put up by the first defendant is totally unauthorized, and the plaintiff being one of the co-owners of the property having 5% of the undivided share in the "A" schedule property and being co-owner in each and every inch of the entire extent, the plaintiff is constrained to seek the relief of mandatory injunction for demolition of the unauthorized construction shown in the "C"schedule property.
2.iv) It is further stated that by virtue of Section 55(6)(b) of the Transfer of Property Act, a statutory charge has been automatically created for the earnest money and the part of sale consideration paid by the plaintiff and hence, she is also praying for declaration to that effect. As the plaintiff also apprehending that the defendants made an attempt to create further encumbrance, she is also constrained to praying for decree of prohibitive injunction to restrain the defendants from interfering with the peaceful possession of the same.
3. The written statement filed by the first defendant is as follows :-
Suit "A" schedule property was purchased by the first defendant and 7 others on 13.06.1994 and they have constructed a new commercial complex in a total extent of 5960 sq.ft in December 1995 itself and the same is existing as such till date. The son of the plaintiff, namely, Gopal Krishna Raju, was inducted as a tenant in the second floor in the "A" schedule property after receipt of the advance amount of Rs.1,50,000/- from the first defendant. The first defendant did not offer to sell all the 3 shops in the ground floor, which is suit "B" schedule property to the plaintiff and there was no such agreement. The first defendant denied the averments that PLA.Palaniappan was acting as a de-facto agent of all the co-owners and the sale price was fixed at Rs.1650/- per square feet of the superstructure with the proportionate undivided share in the land and there is no contract of sale, and also denied the averment that the sale contract was concluded on 05.12.1996. The sum of Rs.50,000/- was paid on 05.12.1996 only towards additional advance for the lease of shop no.2 after vacating the second floor portion. The earlier advance available was taken as part of the advance for the shop No.2 and the additional advance of Rs.50,000/- was paid , thereby a total advance of Rs.2 lakhs was paid for shop No.2. The sale consideration for the shop No.3 was fixed at Rs.8 lakhs, out of which a sum of Rs.2 lakhs was paid on 20.12.1996 by way of a demand draft drawn on Corporation Bank, Chennai in favour of Mr.PL.A. Palaniappan. Another sum of Rs.2,00,000/- was paid on 22.01.1997 by cash to one K.Viswanathan and a sum of Rs.4 lakhs was paid on 29.03.1997 by way of a demand draft drawn on Corporation Bank in favour of Mr.PL.A. Palaniappan. The power of attorney was only authorized to negotiate with the plaintiff for sale of shops and receiving sale consideration and execute the sale deed . As there was negotiations and concluded contract only with respect of shop No.3, and there was no negotiations so far as the shop nos.1 and 2, the plaintiff continued to remain as tenant in shop no.2 paying the monthly rent till June 2008 and there was no negotiations for sale to arrive at a concluded contract. In the alleged oral contract dated 05.12.1996 and the letter dated 07.02.2005 and 07.03.2005, there is no reference to any sale agreement. The payment of rent in respect of shop no.2 also disclosed that the plaintiff is only a tenant in respect of shop No.2 . Even in the above letter, the plaintiff only mentioned about the assurance of the defendant, which is also not true, and not of any agreement. The second defendant is a bonafide purchaser for due consideration of the property and the plaintiff cannot question the same. In any event, the plaintiff not even prayed for setting aside the sale deed and the second defendant has the full and absolute title over the suit property as per the sale deed dated 16.06.2008. It is further stated that the suit is also barred by limitation and the suit is also not filed within the time prescribed. The alleged construction was made in December 1995 itself and no new or unauthorized construction was made in May 2008 as alleged. The second floor was in existence as seen in the sale agreement dated 24.04.1996, by which the plaintiff was inducted as tenant. In the absence of any concluded contract, the operation of Section 55(6)(B) of the Transfer of Property Act will not come into play and the plaintiff cannot prevent the second defendant from dealing with the property in any manner. The advance amount of Rs.2 lakhs paid by the plaintiff was also attorned in favour of the second defendant. There is no cause of action in as much as there is no contract or agreement whatsoever and Hence, the plaintiff is not entitled for any relief.
4. The written statement filed by the second defendant is as follows :-
The suit property originally belongs to one S.Ramakrishnan and his sons and they sold the undivided share to 8 persons, threafter the superstructure was constructed in the year 1996 as per the approved plan. The first defendant had purchased 15% of undivided share with 3 shops in the ground floor and subsequently shop no.3 was sold in favour of the plaintiff. The second defendant had purchased the plinth area of one ground and 851 sq.ft undivided share with 5718 sq.ft of building from eight co-owners, which includes shop nos.1 and 2 in the ground floor owned by the first defendant. The plaintiff is a tenant under the first defendant in respect of shop no.2 and paying the monthly rent of Rs.6000/- and paid an advance of Rs.2 lakhs and she continued to pay the rent till June 2008. After purchasing the property, the second defendant sent a letter dated 07.08.2008 informing about the attornment of tenancy and calling upon the plaintiff to pay the future rents to the second defendant. After receipt of the above letter, the present suit is filed for specific performance on the false allegations and averments. The alleged oral agreement is false and concocted one. The second defendant is the bonafide purchaser of the property for valuable consideration and he has no notice regarding the alleged oral sale agreement dated 05.12.1996. After due diligence, enquiry and on information made available, the second defendant believed the same and purchased the shop nos.1 and 3, the first defendant has no intention to sell the shop nos.1 and 2 to the plaintiff. On enquiry, he found that the letter sent by the plaintiff to the first defendant was never accepted by him and the sale consideration for shop no.3 was fixed at Rs.8 lakhs payable, i.e. Rs.4,00,000/- towards un-account and Rs.4,00,000/- on account. Hence, Rs.8,00,000/- was received and the sale deed was executed in respect of shop no.3. After attornment of the tenancy, since the plaintiff was put in possession only as a tenant , she cannot claim possessory right based on the oral agreement, which is disputed. The first defendant did not accept the request made by the plaintiff. Hence, there is no concluded contract and the plaintiff is not entitled to the relief of specific performance against the defendant and the question of readiness and willingness to perform contract does not arise against the second defendant, and the suit is not maintainable. The alleged unauthorized construction was not made in 2006 as alleged, but in fact the entire construction of 5718 sq.ft was done in the year 1996 and the plaintiff has come forward with the false case and hence, it is liable to be dismissed.
5. On the above pleadings of either parties, this court framed the following issues for trial:-
1. Whether the oral agreement of sale dated 05.12.1996 pleaded by the plaintiff against the first defendant to sell "C" schedule property is true and valid ?
2. Is not the second defendant a bona-fide purchaser of the "C"schedule property without notice of the false oral sale agreement ?
3. Is not the second defendant the absolute owner of the property admeasuring 1 ground 851 sq.ft. undivided share with 5718 sq.ft. of built up area and entitled to his right to use and enjoy the same ?
4. Is not the plaintiff, a tenant under the second defendant in respect of "C" schedule property and liable for all the incidents and obligations arising out of tenancy ?
5. Whether the plaintiff is entitled to the relief of specific performance of contract of sale dated 05.12.1996 ?
6. Whether the plaintiff is entitled to the alternative relief of refund of sale consideration of Rs.6,00,000/- ?
7. Whether the plaintiff is entitled to damages of Rs.46,49,000/- as claimed in the suit ?
8. Whether the suit is barred by limitation as contended by the defendants ?
9. Whether a statutory charge stands created over the plaint "C"schedule property for the sale consideration paid by the plaintiff to the first defendant ?
10. To what other reliefs the plaintiff is entitled to ?
6. Additional issue framed on 25.06.2018
11. Whether the plaintiff is entitled for the relief of mandatory injunction directing demolition of unauthorized construction shown as "B " schedule property ?
7. During trial, the plaintiff examined herself as P.W.1 and Ex.P.1 to P.7 were marked and on the side of the defendants, one Mr.PLA.Palaniappan was examined as D.W.1 and one A.Marimuthu was examined as D.W.2 and Ex.D.1 to D.5 were marked
8. Issue No.1 and 5 :
Since issue nos.1 and 5 are inter connected, they are taken up together for consideration. The plaintiff has come forward to file the suit based on a oral agreement entered into between the plaintiff and the first defendant, and the burden heavily rests on the plaintiff to prove that there was consensus-ad-idem between the parties for the concluded agreement of sale and the essential terms of the contract was also agreed between the parties. The relief for specific performance is being a discretionary relief, unless the plaintiff proves that the essential terms of contract has been complied with, the decree for specific performance cannot be granted.
8.ii) The case of the plaintiff is that the first defendant is the owner of the property, he has negotiated with the plaintiff for selling three shops, which is the suit "B" schedule property, and the sale price was fixed at Rs.1650 per sq. ft. with superstructure with the proportionate undivided share in the land, and the contract was concluded on 05.12.1996. It is the further case of the plaintiff that the sale transaction should be completed within 4 months on payment of sale consideration of Rs.4,00,000/- in one lump sum in respect of shop no.3 and a sum of Rs.6,00,000/- out of the sale price of Rs.9,07,500/- should be paid by the plaintiff within 4 months as advanced in respect of shop nos.1 and 2 and part of sale consideration, it was mutually agreed to be completed in due course of time, and the time was not the essence of the contract. The balance of sale consideration of Rs.3,07,500/- is agreed to be paid at the time of execution and registration of the sale deed in respect of "C" schedule property. In pursuance of the oral agreement, a sum of Rs.2,00,000/- was paid through cheque dated 20.12.1996 under Ex.P.2 and another sum of Rs.2 lakhs was paid by cash on 22.01.1997 under Ex.P.3. Apart from that an advance amount of Rs.2 lakhs was already paid towards shop no.3. The above amounts had been paid within 4 months as per the oral agreement.
8. iii) In order to prove the payments of advance amount, the receipt issued by the first defendant was marked as Ex.P.2. Apart from that, another receipt issued by the first defendant for a sum of Rs.2 lakhs, was marked as Ex.P.3. From the perusal of the above two receipts, it could be seen that the amounts have been received by the first defendant towards part of the sale consideration for the shop in the ground floor. The above amounts had been paid on 20.12.1996 and 22.01.1997. Thereafter, on 07.02.2005, the plaintiff addressed a letter to the first defendant's Power of Attorney, stating that pursuant to the earlier request made by the plaintiff regarding the purchase of another portion of the premises, which was assured to the plaintiff for the past several years, plaintiff prepared to complete the sale and she is awaiting response from the first defendant, the above letter was marked as Ex.P.6. A similar letter was also addressed to the first defendant's Power of Attorney on 07.03.2005, which is marked as Ex.P.7. With the above materials, now the plaintiff contended that she has performed her part of contract and has paid part of sale consideration, she is also ready and willing to execute the sale deed. But the first defendant, pending the oral sale agreement, sold the suit property in favour of the second defendant, hence, the present suit has been filed seeking the above said reliefs.
8.iv) Mr. T.Ayyasamy, learned counsel appearing for the plaintiff vehemently contented that there was a concluded contract between the plaintiff and the first defendant regarding the sale of "C" schedule property and part payment was also made. Pursuant to the oral agreement, the owner of the property has executed a power of attorney on 27.03.1997 in favour of Mr.PLA.Palaniappan, who was examined as DW1 under Ex.P.4, by which the first defendant has given a specific power to Mr.PL.A.Palaniappan to sell all the three shops in the ground floor to the plaintiff and to execute and register the sale deed in her favour. On the strength of the said power of attorney, DW1 has also executed a sale deed in respect of shop no.3 on 31.03.1997 under Ex.P.5 on receipt of the entire sale consideration of Rs.4,00,000/-. Thus, the oral contract dated 05.12.1996 was duly performed by the first defendant. Thereafter, in 2005, she made a request to the Power of Attorney of the first defendant to execute the sale deed in respect of the other two shops and also sent letters under Ex.P.6 and Ex.P.7. But the first defendant along with other co-owners of the "A"schedule property executed a sale deed in favour of the second defendant on 16.06.2008 including "C" schedule property while the sale agreement with the plaintiff is subsisting . The above said sale was made by the power of attorney on the strength of the power of attorney dated 27.03.1997 (Ex.P.4), which only empowers the power holder to deal with the plaintiff alone. But using the above power of attorney, now the 'C' schedule property has been sold in favour of the second defendant and the power of attorney has no power to execute the sale deed in favour of him. As the plaintiff is always ready and willing to execute the sale deed, it is only the first defendant had violated the terms of contract and sold the property in favour of the second defendant. Hence, the first defendant is entitled to execute the sale deed in favour of the plaintiff.
8.v) Per contra Mr. J.Saravanavel, learned counsel appearing for the first defendant submitted that absolutely there is no oral agreement of sale as alleged by the plaintiff, a careful reading of the material evidence produced by the plaintiff will show that there was no oral agreement of sale on 05.12.1996. Admittedly, the son of the plaintiff was a tenant in respect of a portion in the second floor of the "A" schedule property and he has paid a sum of Rs.1,50,000/- as advance and an additional sum of Rs.50,000/- was paid while he was shifting to shop no.2 in the ground floor, he continued to be the tenant in the shop No.2 and paying the rent at the rate of Rs.6000/- per month. The amount received under Ex.P.2 and Ex.P.3 was only towards the sale consideration for purchase of shop no.3 and it was not part of sale consideration for shop nos.1 and 2. He has further contended that, apart from the oral evidence of P.W.1, absolutely, there is no materials to show that there was a concluded contract between the parties and the terms of contract was also mutually agreed and there was a consensus ad-idem between the parties. The power of attorney given under Ex.P.4, never meant to convey the suit "C" schedule property in favour of the plaintiff and nowhere it is referred as there is an oral agreement between the plaintiff and the first defendant. Under Ex.P.6 and Ex.P.7 letter dated 07.02.2005 and 07.03.2005, plaintiff was only paying the rent for shop no.2, and there was only a general request with regard to the purchase of another portion of premises, which was allegedly assured for the past several years, in the above letters also there is no mention about the oral agreement with the first defendant, only now, while filing the suit, the plaintiff has came with a new plea that there was a oral agreement dated 05.12.1996. The learned counsel also relied upon the judgment of the Hon'ble Supreme Court reported in 1990 (3) SCC 1 to support his contention that there is no consensus ad-idem between the parties and there was no concluded contract and the decree for specific performance cannot be granted.
8.vi) The legal position in respect of jurisdiction of Court to order specific performance of a contract is very clear now. The Courts while granting a decree for specific performance should satisfy that the contract pleaded by the parties are certain, specific and the parties must have consensus ad-idem, the acceptance must be absolute and also correspond to the terms of the offer. The plaintiff is expected to let in clear cut evidence to prove the terms of the oral contract. The learned counsel appearing for the defendants cites number of judgments on the above principles of law, however, it is useful to refer the following decisions rendered by the Hon'ble Supreme Court which are quite apposite to the facts of the instance case.
8.vii) The Hon'ble Supreme Court of India in Ouseph varghese /vs/ Joseph aley and others in 1969 (2) SCC 539 has held as follows " It appears likely that neither side has come forward with the true version. But before a court can grant a decree for specific performance, the contract pleaded must be a specific one and the same must be established by convincing evidence. Rarely a decree for specific performance is granted on the basis of an agreement supported solely by oral evidence. That apart, as mentioned earlier, in this case, the oral testimony adduced in support of the agreement pleaded is a highly interested one. We do not think that the trial Court was justified in relying on that testimony for granting the decree prayed for. The trial Court itself observed in the course of its judgment(para 12) that " there is no clear cut evidence for proving the terms of the oral contract which is alleged to have been entered into by the plaintiff and the first defendant.". This finding alone should have been sufficient to non-suit the plaintiff. Therefore, we agree with the High court, though for reasons other than those mentioned by it that the plaintiff has failed to prove the agreement pleaded in the plaint. "
8.viii) In the another judgment reported in Mayawanti /vs/ Kaushalyadevi in 1990(3) SCC 1, it is held as follows :-
" In a case of specific performance it is settled law, and indeed it cannot be doubted, that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. The law of contract is based on the ideal of freedom of contract and it provides the limiting principles within which the parties are free to make their own contracts. Where a valid and enforceable contract has not been made, the court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or enforceable. The discretiion of the court will be there even though the contract is otherwise valid and enforceable and it can pass a decree of specific performance even before there has been any reach of the contract. It is , therefore, necessary first to see whether there has been a valid and enforceable contract and then to see the nature and obligation arising out of it. The contract being the foundation of the obligation the order of specific performance is to enforce that obligation.
Keeping the above principle in mind, I proceed to consider the evidence available on record.
8. ix) In order to prove that there was a oral agreement between the parties, the plaintiff mainly relied upon Ex.P.2 and Ex.P3 the receipts issued by the first defendant for Rs.2,00,000/- each. Under Ex.P.2, the first defendant received a sum of Rs.2,00,000/-from the plaintiff through a demand draft for purchase of the shop in the ground floor. Similarly under Ex.P.3 also the defendant received a sum of Rs.2,00,000/- towards part of sale consideration of the property in the ground floor. Thereafter, only on 07.02.2005, nearly after 9 years, the plaintiff sent a letter Ex.P.6, wherein he sent a cheque for a sum of Rs.6000/- towards rent for the month of January 2005 and further stated as follows :-
" Kindly refer our letter dated 7th January 2005 enclosing herein a cheque for Rs.6000/- towars rent for the month of December 2004 for which we are yet to get your acknowledgment. We wish to recall our earlier request with regard to the purchase of another portion of the premises which was assured to us for the past several years. We request that we have already communicated with you saying that we are prepared to complete the sale. We await your response in this matter."

Under Ex.P.7, dated 07.03.2005 a similar request was made. Apart from that, there is no other material evidence available to substantiate that there was a oral agreement and pursuant to the same, the plaintiff was ready and willing to execute the sale deed. Even though under Ex.P.2 and Ex.P.3, the first defendant received a sum of Rs.4,00,000/- towards part of sale consideration in respect of the shop in ground floor in the year 1996, there is no evidence available on record to show that the plaintiff is ready and willing to perform his part of contract from that date. Only in the year 2005, nearly after 9 years, the plaintiff sent a letter to the Power of Attorney of the first defendant under Ex.P.6 and Ex.P.7 stating that they have made a request with regard to purchase of another portion of the premises, which was also assured by the first defendant for the past several years and informed the first defendant that the plaintiff is prepared to complete the sale. As rightly contended by the learned counsel appearing for the first defendant, even in the above letter, there is no mention about the oral agreement entered into between the plaintiff and the first defendant, the plaintiff simply stated that they have only made a request regarding the purchase of a portion of the premises and the first defendant also assured to sell the same. Apart from that, the plaintiff did not let in any evidence to establish that there was a concluded oral contract of sale and the fundamental terms of sale of immovable property were concluded between the parties orally. Merely because, the first defendant had received some amount from the plaintiff as a part of sale consideration it cannot be presumed that the parties had a consensus ad-idem and the terms of contract has been agreed between the parties and there was a concluded contract between them. In the absence of any proof for the same, the plaintiff cannot seek for a decree for specific performance to execute a sale deed based on the alleged oral agreement.

8.x) So far as the contention of the learned counsel for the plaintiff that, under Ex.P.4, a power of attorney was granted in favour of DW1, and he was specifically authorized to execute the sale deed in favour of the plaintiff in respect of three shops in the ground floor, which goes to show that there was an oral agreement to sell three shops in favour of the plaintiff. But a perusal of Ex.P.4, it could be seen that the first defendant is only authorized the Power of Attorney/DW1 to deal with the plaintiff for the sake of sale of three shops in the ground floor by negotiation and the sale with plaintiff and receiving the sale consideration, executing and registering the sale deeds in her favour. Under Ex.P.4, the first defendant only authorized DW1 to deal with the plaintiff and negotiate with her for selling the property and nowhere first defendant authorized the DW1, to execute sale deed pursuant to the alleged oral agreement. Considering all the above, these issues are answered against the plaintiff.

9. Issue Nos.2 and 3

According to the plaintiff, pursuant to the oral agreement, the first defendant, owner of the property executed a general specific Power of Attorney in favour of Mr.PL.A. Palaniappan/DW1, authorized him to execute a sale deed in favour of the plaintiff. But, using the said Power of Attorney, DW1 has sold the property in favour of the second defendant. Hence, that sale deed is not a valid sale deed. Apart from that, the second defendant fully aware of the alleged oral agreement and having the knowledge about the agreement, has deliberately purchased the property, hence he cannot consider as a bonafide purchaser.

9.i) The learned counsel appearing for the second defendant, who was the purchaser, submitted that the alleged oral sale agreement was not proved by the plaintiff and for the first time she made a claim of alleged oral agreement in the suit. All along the plaintiff was only a tenant under the first defendant in shop no.2. In the absence of any concluded contract between the plaintiff and the first defendant, the plaintiff cannot claim any right over the properly and consequently, he cannot challenge the sale made in favour of the second defendant. The second defendant not only purchased the "C " schedule property, he has purchased the entire premises from the first defendant and other co-owners of the property. Hence, he is the bonafide purchaser for value.

9.ii) It is already decided in previous issues that the plaintiff has failed to prove that there was a concluded contract between the plaintiff and the first defendant. The second defendant purchased the entire "A" schedule property, which includes two shops, which is shown as "C "schedule property for a valuable consideration, and there is no material available to show that the 2nd defendant has knowledge about the alleged oral agreement and it cannot be held that the second defendant is not a bonafide purchaser. So far as Ex.P.4, Power of Attorney, is concerned, it has been given to DW1/PLA.Palaniappan to deal with the entire undivided share purchased by the first defendant and also to deal with his shop in the suit "A "schedule property, as already held, no specific power has been given to execute the sale deed only in favour of the plaintiff, the contention of the plaintiff on that aspect cannot be countenanced.

9.iii) The second defendant has purchased the entire "A" schedule property, except the property purchased by the plaintiff in shop No.3, from all the co-owners for valuable consideration. Eventhough the above sale deed was not marked in evidence, it is admitted by the plaintiff that the second defendant has purchased the entire "A " schedule property including the "C" schedule property. Now, it is already held that the plaintiff is not entitled for the relief of specific performance in respect of "C "schedule property. Hence, it can be safely held that the second defendant is the absolute owner of the "A" schedule property, except the portion purchased by the plaintiff in Shop No.3. Hence, the above issues are answered in favour of the second defendant and he is the bonafide purchaser of the property for valuable consideration.

10. Issue No.4 It is admitted fact that the plaintiff was originally a tenant under the first defendant in the second floor. Subsequently, he shifted to shop no.2 and paying the monthly rent at the rate of Rs.6000/- and so far as shop no.3 is concerned, admittedly, the plaintiff has purchased it from the first defendant. Apart from that, the plaintiff has admitted his tenancy in respect of shop no.2 and also paying the rent at the rate of Rs.6000/-, it is evidenced by Ex.P.6 and Ex.P.7. After purchase of the property, the tenancy was also attorned in favour of the second defendant and he has also acknowledged the receipt of the advance amount of Rs.2,00,000/-towards shop no.2. Hence, the plaintiff is a tenant in respect of shop no.2 in " C " schedule property and he is liable for all the obligations arising out of the tenancy in respect of shop no.2 alone in " C " schedule property. The above issue is answered accordingly.

11. Issue nos.6,7, 8 and 9 The plaintiff seeking alternative prayer for refund of a sum of Rs.6,00,000/- paid by her towards the part of sale consideration. According to her, a sum of Rs.4,00,000/- had been paid under Ex.P.2 and Ex.P.3. and another sum of Rs.2,00,000/- had been paid as rental advance in respect of shop no.3 and parties are agreed to treat the advance amount as part of sale consideration. Hence, he sought for refund of Rs.6,00,000/-. Admittedly, the first defendant has received a sum of Rs.4,00,000/- under Ex.P.2 and Ex.P.3. It is the contention of the first defendant that it is not the part of sale consideration in respect of "c" schedule property, but, it is a sale consideration in respect of shop no.3. It is further contended that the total sale consideration for shop no.3 was fixed at Rs.8,00,000/- and Rs.4,00,000/- was mentioned in the sale deed under Ex.P.5. Under Ex.P2 and Ex.P.3, the remaining sum of Rs.4,00,000/- was paid by the plaintiff. But the above contention cannot be accepted for the reason that in Ex.P.5 sale deed in respect of the shop no.3, it is clearly mentioned that the sale consideration was fixed at Rs.4,00,000/- and the entire amount has been paid on the date of execution of sale deed by a demand draft drawn on Corporation Bank, paybale at Trichy. When the sale deed clearly mentioned that the sale consideration was only Rs.4,00,000/-, now it is not open to the first defendant to contend that the sale consideration is Rs.8,00,000/- and the amount received under Ex.P.2. and Ex.P.3 was only towards part of sale consideration in respect of shop no.3.

11. i) Mr. T.Ayyasamy, learned counsel appearing for the plaintiff has submitted that under Ex.P.5, Sale deed, it has been specifically admitted by the defendants that the sale consideration in respect of shop no.3 is only Rs.4,00,000/- and they have also received the entire sale consideration on the date of execution of sale deed. Now, it is not open to them to give evidence contrary to the terms of the written documents, which is barred under Section 92 of the Evidence Act and in support of his contention, the learned counsel also relied upon the Division Bench judgment of this Court in K.S.Narasimhachari /vs/ The Indo Commercial Bank Ltd., reported in AIR 1965 MADRAS 147, in which it has been held as follows :

" According to Section 92 of the Evidence Act, no evidence of any oral agreement or statement can be admitted as between the parties thereto, for the purpose of contradicting, varying, adding to or subtracting from the term of consideration. This will indeed be clear if one closely examines the terms of proviso 1 to S.92 of the Evidence Act. Want or failure of consideration must be such as to invalidate the document. That would mean that there should be total lack of consideration before the term of the document in that regard is contradicted. Therefore, to say that the consideration recited in the document is but a part of a larger consideration which is not specified in it, it will amount to nothing less than contradicting the very term as to consideration for the document"

Another judgment reported in the case in Adityam Iyer /vs/ Ramakrishna Iyer and others in AIR 1915 Madras 868, it has been held as follows :

"Where a sale deed recites as consideration a cash price of Rs.35,000/- evidence of an oral agreement that the amount of consideration was really Rs.36,000/- cannot be let in. The amount of the sale price is a term of contract within the meaning of S.92, Evidence Act. Evidence cannot be admitted to vary the provisions of the sale deed as to the amount of consideration fixed for the same. "

11.ii) As rightly contended by the learned counsel for the plaintiff, the defendants cannot give oral evidence in contrary to Ex.P.5. In the above circumstances, it could only be concluded that the first defendant has received the sum of Rs.4 lakhs only towards the part of sale consideration in respect of other shops not in respect of shop no.3. It is the contention of the plaintiff that a sum of Rs.2,00,000/- paid towards the advance for shop no.2 was agreed to be treated as a part of sale consideration to shop nos.1 and 2. To support her contention absolutely, there is no other evidence except the oral testimony of P.W.1 and P.W.2. It is admitted fact that the plaintiff was continuing as tenant in respect of shop no.2 and paid rent, and it is also admitted that a sum of Rs.2,00,000/- has been paid only as advance to shop no.2 and in the absence of any evidence to show that advance amount has been treated as part of sale consideration, the plaintiff is not entitled for refund of that amount. In the above circumstances, as already the first defendant admitted the receipt of a sum of Rs.4,00,000/-and it is also clearly mentioned in Ex.P.2 and Ex.P.3 that the amount has been received as a part of sale consideration, I am of the considered view that the plaintiff is entitled for refund of a sum of Rs.4,00,000/-.

11.iii) The next question arises is whether the claim for refund of advance sale consideration is barred by limitation?

Mr. T.Ayyasamy, learned counsel appearing for the plaintiff submitted that the refund of advance amount is governed by Article 62 of the Limitation Act . The buyers has got a statutory charge over the property as per Section 55(6)(b) of the Transfer of property Act, and the period of limitation shall be 12 years from the date on which the right for refund of advance amount accrued. In support of his contention, the learned counsel also relied upon the judgment of this Court in a case in P.Muthusamy /vs/ K.Arumugam reported in 2016(6) CTC 740, wherein it has been held as follows " At the same time, it is to be noted that the plaintiff is not precluded from seeking an alternative prayer for refund of the advance amount. Such alternative prayer, certainly, is not a consequential prayer to the other relief of specific performance and on the other hand, such alternative prayer itself will have the character of the main relief, however, alternatively sought for. If such alternative prayer for refund of advance amount is also sought for in a suit for specific performance, certainly, the period of limitation to be considered in respect of that relief is concerned, Article 62 of the Limitation Act alone has to be applied and not the limitation period fixed for specific performance. Article 62 of the Limitation Act grants 12 years time for enforcing payment of money secured by a Mortgage or otherwise charged upon immovable property. "

Under Ex.P.2 and Ex.P.3, the first defendant received the amount of Rs.4,00,000/- as part of sale consideration on 20.12.1996 and 22.01.1997 respectively. In the said circumstances, under Section 55(6)(b) of the Transfer of Property Act, the plaintiff has a charge over the property. Hence, she is entitled to sought for the relief within 12 years . Even assuming that the limitation start from the date of payment of advance amount, namely 20.12.1996, 12 years period would expire only on 19.12.2008, where as the suit has been filed on 12.09.2008, well within the period of 12 years. As the suit has been instituted within the period of 12 years from the date of the advance money become due, the first defendant is liable to refund the advance amount of Rs.4,00,000/- received from the plaintiff under Ex.P.2 and Ex.P.3. with interest of 12 % from the date of receipt of the amount till the date of decree and thereafter, at the rate of 6% per annum is till the date of payment of amount. In view of the above fact and circumstances and the finding given in the other issues, the plaintiff is not entitled for damages as claimed by her. Hence, these issues are answered accordingly.

12. Issue no.11.

It is the specific case of the plaintiff that by virtue of the purchase of shop no.3, he has become the co-owner in the plaint " A" schedule property and without her consent, some constructions were put up by the first defendant and other co-owners and it is an unauthorized construction. Hence, the above unauthorized construction should be removed. It is the contention of the first defendant and the second defendant that the entire constructions were completed in the year 1997 itself and no additional constructions were carried out in the plaintiff portion, and all the constructions were made much prior to the purchase of Shop No.3 by the plaintiff. Apart from that, no clear particulars had also been given by the plaintiff regarding the unauthorized construction, which sought to be removed. Hence, the relief sought for by the plaintiff cannot be granted.

12.i) From the perusal of the plaint, it could be seen that the plaintiff had only stated in the year 2006, the first defendant and other co-owners have unauthorizedly put up constructions, originally the total constructed area was only 4980.32 sq.ft., but the first defendant and other co-owners sold to the extent of 5718 sq.ft. of superstructure to the second defendant, which clearly shows that there was an unauthorized construction. But that contention was denied by the defendants 1 and 2 and the original construction itself was 5718 sq.ft. in the year 1997. In order to support the contention that the original constructed area was only 4980 sq.ft., the plaintiff did not let in any evidence, but she has only rely upon the cross examination of DW1, that three shops were constructed in the second floor seven or eight ago. Apart from the vague admission made by DW1 in cross examination absolutely there is no material available to show that the additional construction was put up in the year 2006. Hence, in the absence of any such evidence to show that unauthorized construction was put up subsequent to the purchase of the plaintiff, the plaintiff cannot seek for a relief of mandatory injunction to remove the above said construction. Hence, this issue is answered against the plaintiff.

13. For the foregoing discussions, this Court is of the view that the plaintiff is not entitled for specific performance of contract of agreement of sale and instead she is entitled for refund of advance with interest.

14. In the result, the suit is decreed in part and the first defendant is directed to refund the advance amount of Rs.4,00,000/- with interest at 12 % from the date of receipt of the amount till the date of decree and thereafter, at the rate of 6% per annum is till the date of payment and the suit is dismissed in respect of other reliefs sought by the plaintiff. No costs.

24.08.2018.

Index : yes/no Internet: yes/no Speaking order/Non speaking order mrp Witnesses Examined on the side of the Plaintiff:

P.W.1 - Mrs. B.Meera Gopalan P.W.2 - Mr. Gopal Krishna Raju Witnesses examined on the side of the defendants:-
D.W.1 - Mr.PL.A.Palaniappan D.W.2 - Mr. A.Marimuthu Documents marked on the side of the Plaintiff:
Ex.P.1 05.12.1996 The Receipt issued by the first defendant for Rs.50000/- paid by the plaintiff . (Original) Ex.P.2 20.12.1996 The Receipt issued by the first defendant for Rs.2,00,000/- paid by the plaintiff . (Original) Ex.P.3 22.01.1997 The Receipt issued by the first defendant for Rs.2,00,000/- paid by the plaintiff . (Original) Ex.P.4 27.03.1997 Power of Attorney executed by first defendant in favour of PL.A.Palaniappan. (Certified copy) Ex.P.5 31.03.1997 Sale deed executed by the first defendant in favour of the plaintiff ( Certified copy) Ex.P.6 07.02.2005 Letter sent by the plaintiff to the PLA.Palaniappan/DW1 (xerox) Ex.P.7 07.03.2005 Letter sent by the plaintiff to the PLA.Palaniappan/DW1 (xerox) Documents marked on the side of the defendants:
Ex.D.1 07.08.2008 Letter sent by the second defendant to plaintiff Ex.D.2 08.04.2008 Letter sent by the plaintiff to PLA .Palaniappan Ex.D.3 05.05.2008 Letter sent by the plaintiff to PLA.Palaniappan Ex.D.4 03.07.2008 Letter sent by the plaintiff to PLA.Palaniappan Ex.D.5 10.12.2012 Authorization letter given by the second defendant to her husband A.Marimuthu/DW2 24.08.2018 mrp V.BHARATHIDASAN.J., mrp Pre-delivery Judgment in Civil Suit No.1127 of 2008 24.08.2018