Madras High Court
A.N.Vijayakumar vs Mr.Ayyavoo on 19 January, 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED.26.06.2012
CORAM:
THE HONOURABLE MR.JUSTICE T. MATHIVANAN
C.S.No.730 of 2009
1.A.N.Vijayakumar ... Plaintiff
Vs.
1.Mr.Ayyavoo
2.Mr.K.Yousuff
3.Mr.M.Akifa Tasneem
defendants 2 and 3 are impleaded
as per order dated 19.01.2010
passed in A.No.5871 of 2009 ... Defendants
Prayer: Suit is filed under Order IV Rule 1 of Madras High Court Original Side Rules, 1956 r/w Order VII Rule 1 of the Code of Civil Procedure, for the following reliefs:
a) Directing the defendants to execute and register the sale deed in favour of the plaintiff on receipt of the balance of sale consideration of Rs.33,00,000/- as per the terms of the sale agreement dated 08.05.2009, executed between the parties in respect of the property morefully described in the Schedule annexed herein within the time fixed by this Court, failing which this Court may be pleased to execute and register the sale deed on behalf of the defendants in favour of the plaintiff herein.
b) for the relief of permanent injunction restraining the defendants their men, servants, agents or any other person or persons claiming through them from in any way alienating or encumbering or dealing with the suit property morefully described in the schedule pending disposal of this suit.
Alternatively
c) directing the defendant to refund the advance sale consideration of Rs.2,00,000/- paid by the plaintiff to the defendant under the sale agreement dated 08.05.2009 to the plaintiff together with interest at the rate of 24%per annum from the date of this plaint till the date of its realisation.
For costs
d) the first defendant was served with the summons, but he has not chosen to contest by making his appearance either in person or through his counsel. Hence, he was set exparte, during the pendency of the suit.
For plaintiff : Ms.Chitra Sampath, SC
for M/s.T.S.Baskaran.
For defendants : M/s.Manojsreevatsan
No appearance.
J U D G M E N T
The plaintiff has filed the suit seeking the relief of specific performance of sale agreement dated 08.05.2009 and also for permanent injunction restraining the defendants from alienating the suit property and for other reliefs.
2. The first defendant is the absolute owner of the suit property. Now he his residing in Malaysia. Therefore, he had appointed his son-in-law Mr.Devandran as his Power Agent to deal with the property, authorising him to manage the suit property and had also given the power of alienation. The plaintiff had entered into a sale agreement in respect of the suit property with the power agent of the first defendant on 08.05.2009 under Ex.P4. The total sale consideration was fixed at Rs.35,00,000/- on the date of agreement of sale. The power of Attorney of the first defendant had received a sum of Rs.2,00,000/- towards the advance as per the terms of sale agreement. The first defendant has to perform several acts and one such act is to vacate the tenants from the suit property.
3. The plaintiff was always ready and willing to perform his part of contract by paying the remaining balance of sale consideration. But the first defendant was very evasive in performing his part of contract. When the matter stood thus, the plaintiff was put to understand as if the first defendant had been making arrangements to sell the suit property without the consent of the plaintiff to third party in breach of contract of sale. Under this circumstances, the present suit came to be filed by the plaintiff.
4. During the pendency of the suit, the plaintiff had filed an application in OA.No.859 of 2009 for interim injunction restraining the first defendant from alienating the suit property. However, in total negation of the interim injunction, the first defendant had sold the suit property in favour of the defendants 2 and 3 and therefore the sale is hit by the Doctrine of lispendens. Under this circumstance, the plaintiff had taken out an application in A.No.5871 of 2009 to implead the defendants 2 and 3 being the subsequent purchaser of the suit property, during the pendency of the suit. The application was also allowed on 19.01.2010 and accordingly defendants 2 and 3 have been impleaded as parties to this suit.
5. Despite, the service summons on the defendants 2 and 3 they have not chosen to appear in person or through their counsel. Hence, they were called absent and set exparte. The Registry was directed to place the suit before the learned Additional Master IV for recording the evidence of PW1. In pursuant to the direction of this Court, the learned Additional Master-IV had recorded the evidence of PW1 and during the course of his examination Exs.P1 to P4 were marked.
6. When the decree is about to be passed, this Court posed a question to learned counsel for the plaintiff as to why the plaint prayer has not been amended suitably seeking the relief of recovery of possession from D2 and D3. For this question, Mrs.Chitra Sampath, learned senior counsel appearing for the plaintiff has answered that having been impleaded the defendants 2 and 3 as necessary parties to the suit and having purchased the suit property during the pendency of the suit, it is not necessary to amend the prayer for recovery of possession. The learned counsel has also submitted that the decree for execution of sale deed which may be passed against the first defendant implied the decree of delivery of possession also as the relief of possession being inherent in the relief of specific performance of contract of sale. The learned counsel also submits that the defendants 2 and 3 being the subsequent purchasers, their sale is hit by the doctrine of lispendens and therefore, joining with the hands of the first defendant, they have to execute the sale deed in favour of the plaintiff and they shall also surrender the possession of the suit property to the plaintiff.
7. In support of her claim, the learned counsel for the plaintiff has also placed reliance up on the following two decisions :
(i) Babu Lal V. M/s.Hazari Lal Kishori Lal and others reported in AIR 1982 SC 818 (and)
(ii) Smt.Suluguru Vijaya and others V.Pulumati Manjula reported in AIR 2007 AP 35.
In Babu Lal V. M/s.Hazari Lal Kishori Lal, it has been observed by the Apex Court that, "It may not always be necessary for the plaintiff to specifically claim possession over the property, the relief of possession being inherent in the relief for specific performance of the contract of sale, besides the proviso to sub section (2) of S.22 provides for amendment of the plaint on such terms as may be just for including a claim for such relief "at any stage of the proceedings". In a case where exclusive possession is with the contracting party, a decree for specific performance of the contract of sale simpliciter, without specifically providing for delivery of possession, may give complete relief to the decree-holder. In order to satisfy the decree against him completely he is bound not only to execute the sale deed but also to put the property in possession of the decree holder. This is in consonance with the provisions of S.55(1) of Transfer of Property Act which provides that the seller is bound to give, on being so required, the buyer or such person as he directs such possession of the property as its nature admits."
In Smt.Suluguru Vijaya and others V.Pulumati Manjula it is held that "in the light of statutory duties and obligations cast on the seller by virtue of S.55 of the Transfer of Property Act and also in the light of the scope and ambit of S.22 of the Specific Relief Act, it can be said that when there is no dispute or controversy that the judgment debtors defendants are in possession of the property, the mere fact that such prayer was not made, the same cannot be taken advantage of principally for the reason that the decree for execution of sale deed would imply the decree of delivery of possession too inasmuch as these are the obligations which would flow from the relief relating to execution of the sale deed. Hence, this omission cannot be taken advantage of. More so when third party rights had not intervened. That being so, order directing judgment debtor to deliver possession of property to decree holder does not suffer from any illegality."
8. This Court has carefully perused the averments made in the plaint and perused the evidence of PW1 and documentary evidences under Exs.P1 to P4. This Court has also given careful consideration to the above quoted decisions and having regard to the related facts and circumstances, this Court finds that the plaintiff has proved his claim and the suit is liable to be decreed as prayed for.
9. In the result, the suit is decreed as prayed for with cost.
(i) the defendants 1 to 3 are directed to execute and register the sale deed in favour of the plaintiff, on receipt of balance of sale consideration of Rs.33,00,000/- as per the terms of the sale agreement dated 08.05.2009 in respect of the suit property.
(ii) the plaintiff is directed to deposit the sum of Rs.33,00,000/- to the credit of the suit in CS.No.730 of 2009 before the Registrar General, High Court, Madras within eight weeks from the date of this judgment.
(iii) on receipt of the said amount being the balance of sale consideration, the defendants 1 to 3 are directed to execute the sale deed in favour of the plaintiff within the stipulated time of one month from the date of receipt of the balance of sale consideration.
(iv) if the defendants are failed to execute and register the sale deed in favour of the plaintiff within the stipulated period of one month from the date of receipt of the balance sale consideration as aforestated, the Assistant Registrar (OS-I) is directed to execute and register the sale deed on behalf of the defendants in favour of the plaintiff.
26.06.2012 Index :Yes/No Internet :Yes/No tsh T.MATHIVANAN,J tsh C.S.No.730 of 2009 26.06.2012