Madras High Court
P.Thangaraj vs / on 26 February, 2021
Author: G.Jayachandran
Bench: G.Jayachandran
A.S.No.190 of 2019
& M.P.No.1 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 16.02.2021 Pronounced on : 26.02.2021
Coram:
THE HON'BLE DR. JUSTICE G.JAYACHANDRAN
A.S.No.190 of 2019
& M.P.No.1 of 2009
1. P.Thangaraj,
2. T.Kalai Selvi, ... Appellants
/versus/
1. R.Velliyangiri,
2. P.Krishnamoorthy,
3. V.Selvakumar,
4. P.Mubeena Parwaiz, ... Respondents
Prayer: First Appeal is filed under Section 96 of the Code of Civil Procedure
against the judgment and decree dated 28.08.2008 made in O.S.No.309 of 2007,
on the file of the Principal District Judge, Erode District.
For Appellants : Mr.V.Ayyadurai, Senior Counsel,
for Mr.P.K.Harinath Babu
For R1 & R2 : Mr.P.Valliappan
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A.S.No.190 of 2019
& M.P.No.1 of 2009
JUDGMENT
The appellants herein are the 2nd and 3rd defendants before the Trial Court. This appeal is against the judgment and decree passed by the Trial Court in the suit for specific performance.
2. For brevity, the parties are described as per their status and ranking as shown in the plaint.
Plaint averment in brief:-
The suit schedule property was purchased by the 1st defendant from the husband of the 4th defendant for sale consideration of Rs.2,89,300/- under the registered sale deed dated 18.04.2007. The 1st defendant agreed to sell the property for Rs.9,00,000/- to the plaintiffs and entered into a written sale agreement on 02.05.2007 and received Rs.3,50,000/- as advance. On receipt of the balance sale consideration the 1st defendant agreed to execute the sale deed. 4 months was time fixed for completing the agreement. The 1st defendant also agreed to put the plaintiffs in physical possession free from encumbrance on receipt of the sale consideration. As per the terms of the agreement, if the 1st defendant fail to execute the sale deed, the plaintiffs are entitled to enforce the contract through 2/25 https://www.mhc.tn.gov.in/judis/ A.S.No.190 of 2019 & M.P.No.1 of 2009 Court on deposit of the balance sale consideration in the Court. The plaintiffs were always ready and willing to perform their part of the obligation under the agreement dated 02.05.2007 and take the sale deed at their expenses, but the defendant postponing the execution on some pretext or other. Later, the plaintiffs from the encumbrance certificate obtained on 09.07.2007 came to know that the 1st defendant even prior to the sale agreement with them, had entered into a sale agreement on 18.04.2007 with one Dr.Parwaiz and got it registered. He had also given power of attorney to the wife of Dr.Parwaiz, who is the fourth defendant, to deal with the suit property. Subsequently, the registered sale agreement with Dr.Parwaiz was cancelled on 12.06.2007. On the strength of the power of attorney deed dated 07.05.2007 given by the 1st defendant in favour of the 4th defendant, the property sold to 2nd defendant on 12.06.2007. In the said sale deed, the 1st defendant is one of the attesting witnesses. Suppressing the earlier power of attorney in favour of the 4th defendant and the registered sale agreement with the husband of the 4th defendant, the 1st defendant had entered into agreement with the plaintiffs to sell the suit property and also received advance of Rs.3,50,000/-. To defeat his right, the defendants have conspired together and created documents subsequent to the suit sale agreement. The plaintiffs have also came to know that 3/25 https://www.mhc.tn.gov.in/judis/ A.S.No.190 of 2019 & M.P.No.1 of 2009 the 2nd defendant had entered into a sale agreement with his wife the 3rd defendant on 19.06.2007 in furtherance of their attempt to keep the suit property beyond the reach of the plaintiffs and defeat the rights of the plaintiffs under the suit agreement dated 02.05.2007.
3. On 20.07.2007, the plaintiffs issued notice to the defendants including the husband of the 4th defendant. The 2nd defendant, 4th defendant and the husband of the 4th defendant replied with untenable allegations. The 2nd defendant is not a bonafide purchaser. His sale deed dated 12.06.2007 is a fictitious document. The plaintiffs are always ready and willing to perform their obligation.
Hence, suit laid for the following relief:-
a). directing the defendants 1 to 3 to execute the sale deed in favour of the plaintiffs on receipt of the balance sale consideration of Rs.5,50,000/- within a date to be specified by this Hon'ble Court in this behalf.
b). In default of the defendants executing the sale deed as per clause (a), this Hon'ble Court itself to execute the sale deed for and on behalf of the defendants 1 to 3.
c). directing the defendants to deliver vacant possession of the suit property to the plaintiffs.
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d). directing the defendants 1 to 4 to return the sum of Rs.3,77,650/- with interest @ 18% per annum from the date of suit till realization.
e). creating a charge over the property for the amount that may be decreed in the suit.
f) directing the defendants to pay the defendants the costs of the suit.
g). granting the plaintiffs such other and further reliefs as this Hon'ble Court may deem fit and proper in the circumstance of the case and thus render justice.
4. The suit was contested only by defendant Nos.2 and 3. The other defendant Nos.1 and 4 remain exparte.
5. The statement of defendant No.2 adopted by the 3rd defendant in brief:-
The plaintiffs and the 1st defendant are tools in the hands of Dr.Parwaiz, who is the husband of 4th defendant. The plaintiffs, 1st defendant, 4th defendant and her husband Dr.Parwaiz are colluding together to wreak vengeance against the 2nd and 3rd defendant. The suit is the outcome of the collusion and fabrication of documents. The suit sale agreement dated 02.05.2007 between the 5/25 https://www.mhc.tn.gov.in/judis/ A.S.No.190 of 2019 & M.P.No.1 of 2009 plaintiff and the 1st defendant and the consequential payment of part sale consideration are denied as false. Dr.Parwaiz, who is the husband of the 4th defendant was not the owner of the property at any point of time and the averment in the plaint that 1st defendant purchased the suit property from Dr.Parwaiz under a registered deed dated 18.04.2007 for a sum of Rs.2,89,300/- is not true. The said sale deed is not a genuine document. To the plaintiffs notice dated 20.07.2007, the 2nd defendant has given a detailed reply on 05.09.2007 placing the true facts. The plaintiffs is not ready and willing to perform his part of contract and he has not deposited the balance amount before the Court for seeking relief of specific performance.
6. The true facts of the case is that, the 2nd defendant and Dr.Parwaiz who is the husband of the 4th defendant were thick friends. On insistence and persuasion of Dr.Parwaiz, the 2nd defendant purchased house site in R.S.No.87/2, Perundurai village measuring 1612 ½ sq.ft from one C.Subramaniam S/o.Chinnappa Goundar. Dr.Parwaiz lend a sum of Rs.1,00,000/- to the 2nd defendant for the purchase of the said property. The sale deed dated 28.03.2006 was duly registered for consideration of Rs.92,000/-. At that time, as a surety for 6/25 https://www.mhc.tn.gov.in/judis/ A.S.No.190 of 2019 & M.P.No.1 of 2009 the loan advanced, Dr.Parwaiz obtained signed empty pro-note and the power attorney deed. He has assured that it will not be misused and it will be returned when the loan is cleared. The power of attorney dated 28.03.2006 was given in respect of the vacant site. Dr.Parwaiz advanced a further loan of Rs.1,00,000/- to the 2nd defendant and obtained another blank signed pro-note. The construction of the residential building in the said site was done by 2nd defendant obtaining loan from Life Insurance Corporation Housing Finance Limited. The building plan approval was obtained from Perundurai Panchayat on 01.06.2006. Construction was completed and house warming ceremony was performed on 09.02.2007 since then, the 2nd defendant is living in the suit premises with his family. He is paying house tax and other statutory dues for the property. Taking advantage of the proximity, Dr.Parwaiz misbehaved with the elder daughter of the 2nd defendant, so a criminal complaint was given against Dr.Parwaiz.
7. To counter the same, complaint was given against the 3rd defendant and the 2nd daughter of the 3rd defendant under SC/ST Act through a domestic servant of Dr.Parwaiz. On 07.05.2007 Dr.Parwaiz sent a letter demanding repayment of the loan and also made several false claim. The letter was suitably 7/25 https://www.mhc.tn.gov.in/judis/ A.S.No.190 of 2019 & M.P.No.1 of 2009 replied by the 2nd defendant on 07.06.2007. The power of attorney deed given to Dr.Parwaiz on 28.03.2006 as a surety was misused by Dr.Parwaiz and a sham and nominal sale deed has been registered in favour of his close friend Selva Kumar/1st defendant on 18.04.2007. In turn Selva Kumar has executed a registered sale agreement in favour of Dr.Parwaiz on the same day.
8. At the intervention of well-wishers settlement was arrived between the 2nd defendant family and Dr.Parwaiz family. On 12.06.2007 an agreement was entered between the 1st defendant, 3rd defendant and Dr.Parwaiz. It was agreed by the parties that 1st defendant should reconvey the property to the 2nd defendant, the complaint given by the staff of the 4th defendant against the family members of the 2nd defendant should be withdrawn and the complaint given by the daughter of the 2nd defendant against Dr.Parwaiz should be withdrawn. Accordingly, the 1st defendant executed a sale deed in favour of the 2 nd defendant on 12.06.2007. After agreed for a settlement on 12.06.2007, the suit sale agreement is created by Dr.Parwaiz in connivance with the plaintiff, 1st defendant and his wife 4th defendant. The suit as framed is not maintainable and it is devoid of merits. It is a speculative suit, hence, liable to be dismissed.
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9. The Trial Court, based on the pleadings framed the following issues:-
(i). Whether the first defendant executed the sale agreement in favour of the plaintiff dated 02.05.2007?
(ii). Whether the first defendant purchased the suit property under registered sale deed dated 18.04.2007 for Rs.2,89,300/- from the husband of the 4th defendant?
(iii). Whether the plaintiffs were ready and willing to perform their part of the sale agreement dated 02.05.2007?
(iv). Whether the plaintiffs are entitled for the relief of specific performance or for the alternative relief of refund of advance amount?
(v). To what relief?
10. Before the Trial Court, two witnesses were examined on behalf of the plaintiffs and 18 Exhibits were marked. Four witnesses were examined on behalf of the defendants and 15 Exhibits were marked.
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11. The Trial Court, after analysing the evidence, decreed the suit with costs holding that the plaintiffs are entitled for relief of specific performance as prayed and directed the defendants 1 to 3 to execute the sale agreement in favour of the plaintiffs and receive the balance sale consideration which is deposited by the defendants in the Court.
12. The Trial Court judgment assailed in the appeal for the following reasons:-
The plaintiffs vendor viz., the 1st defendant title is based on the sale deed executed by Dr.Parwaiz as power of attorney of the 2nd defendant. The said Power of Attorney deed of the 2nd defendant not produced before the Court. Non- production of the said deed is fatal to the case of the plaintiffs. The possession of the property is always with the 2nd defendant uninterruptedly. Hence, the power of attorney namely Dr.Parwaiz could not have put the 1st defendant in possession of the property. The plaintiffs vendors vendor Dr.Parwaiz is a proper and necessary party. The Trial Court failed to hold non-joinder of necessary party is fatal to the case of the plaintiffs. The suspicious behaviour of the 1st and 4th defendants remain 10/25 https://www.mhc.tn.gov.in/judis/ A.S.No.190 of 2019 & M.P.No.1 of 2009 exparte not been considered by the Trial Court. If really the 1st defendant had any semblance of right or interest in the suit property he as the executant of the suit sale agreement would have filed his counter and participated in the proceedings. The Trial Court failed to consider the fact that after purchasing the vacant site on 28.03.2006, the 2nd defendant had put up construction availing loan from L.I.C and after completion of construction of the house in the year 2007 started residing in it. Therefore, there was no need or real intention to execute a power of attorney deed on the same day of purchase i.e., 28.03.2006, in favour of Dr.Parwaiz authorising him to sell the vacant site. The Trial Court failed to see the obvious that, the said power of attorney was executed on the same date of purchase only as a surety to the loan availed from Dr.Parwaiz the 4 th defendant husband and same has been misused by the said Dr.Parwaiz. Further, the power of attorney deed dated 28.03.2006 is only in respect of vacant site, however, the power of attorney Dr.Parwaiz had sold the land and building in favour of 1st defendant for which he was not authorised under the power of attorney deed.
13. The Trial Court failed to consider the compromise arrived between the parties, after the criminal complaints against each other. The evidence 11/25 https://www.mhc.tn.gov.in/judis/ A.S.No.190 of 2019 & M.P.No.1 of 2009 of D.W.4, one of the mediator to the dispute ought to have been given due consideration by the Trial Court. It erred in ignoring Ex.A-9, the Panchayat Muchalika dated 12.06.2007 entered between Dr.Parwaiz, 2nd defendant and the 1st defendant. As per the terms of the compromise, the Dr.Parwaiz family and the 2nd defendant family withdrew their respective criminal complaints. The Trial Court overlooked the fact that, as agreed by the parties before the Panchayatars, to clear the cloud over the title of the suit property, the 4th defendant Mubeena Parwaiz W/o.Parwaiz as power agent of 1st defendant U.Selvakumar, conveyed the suit property to the 2nd defendant for consideration of Rs.3,51,000/- under the deed Ex.A-7 dated 12.06.2007. Later, to defeat the interest of the 2nd defendant Ex.A-1 sale agreement was created with anti-date and suit came to be filed as if, the plaintiffs paid part sale consideration of Rs.3,50,000/- and ready and willing to pay the balance consideration of Rs.5,50,000/-.
14. The learned counsel for the appellants with force emphasised that, the plaintiffs in their plaint have not stated about their readiness and willingness. Contrarily, had averred that, since the property already been conveyed, the question of readiness and willingness is really not relevant and the provisions of 12/25 https://www.mhc.tn.gov.in/judis/ A.S.No.190 of 2019 & M.P.No.1 of 2009 Specific Relief Act is not applicable. Having pleaded so, the suit for Specific Performance ought not to have entertained and more so, when plaint laid without a prayer to declare the sale deed Ex.A-7 dated 12.06.2007 as invalid.
15. Per contra, the learned counsel for the respondents stated that, Ex A-5 the power of attorney deed dated 07.05.2007 executed by the 1st defendant in favour of the 4th defendant and Ex.A-7 the sale deed dated 12.06.2007 executed by the 4th defendant in favour of 2nd defendant based on the power of attorney deed Ex.A-5 are sham and nominal documents created after the suit sale agreement Ex.A-1. When the subsequent purchaser is not a bonafide purchaser, the plaintiff is not bound either to pray cancellation or to set aside the said sale deed in favour of subsequent purchaser pending a valid registered sale agreement. In support of his submission he rely upon the judgment A.G.Venkatachalam and another -vs- P.Ganesan and nine others reported in 2018 (2) MWN (Civil) 682.
16. Regard the plea of readiness and willingness, the learned counsel for the respondents submitted that, the Trial Court has rightly held in favour of the plaintiffs observing that the plaintiffs have deposited the balance sale 13/25 https://www.mhc.tn.gov.in/judis/ A.S.No.190 of 2019 & M.P.No.1 of 2009 consideration in the suit account, pending suit. This is the best proof for readiness and willingness and no further proof required.
Point for determination by this Court of first appeal is whether the vendor of the plaintiffs had any right to convey the suit property on the date of agreement i.e., 02.05.2007 and whether the transfer of the suit property on 12.06.2007 in favour of the 2nd defendant was a bonafide transaction?
17. The case of the respondents herein, who are the plaintiffs in the suit is that, after entering into the suit sale agreement on 02.05.2007, they applied for encumbrance certificate and found that, certain encumbrance had been created by the defendants with an intention to defeat their lawful right of enforcing the agreement. The encumbrance certificate is marked as Ex.A-3 which is dated 09.07.2007. From the entries found in Ex.A-3, we find that, the 1 st appellant herein, who is the 2nd defendant is the suit, had purchased the vacant site measuring 1612 ½ sq.ft in new Survey No.872/1 Old S.No.138 of Perundurai village, Perudurai Taluk, Erode District, on 28.03.2006 from one C.Subramaniam for a sale consideration of Rs.92,000/-. As power agent of Thangaraj the 2nd 14/25 https://www.mhc.tn.gov.in/judis/ A.S.No.190 of 2019 & M.P.No.1 of 2009 defendant, Dr.Parwaiz (DW-2) had conveyed the property under Ex.A-2 to 1st defendant U.Selvakumar on 18.04.2007 for a sale consideration of Rs.2,89,300/-. On perusal of Ex.A-2, we find a recital that the possession of the property handed over to the buyer i.e., U.Selvakumar. On the very same day, i.e., 18.04.2007 a sale agreement (Ex.A-4) between Dr.Parwaiz (D.W-2) and U.Selvakumar is registered. The consideration is shown as Rs.3,00,000/-. On perusal of Ex.A-4, we find advance of Rs.25,000/- paid against total consideration of Rs.3,00,000/- and one year time fixed for payment of the balance sale consideration and get the sale deed executed. It is pertinent to note at this juncture, the plaintiffs vendor is the 1st defendant/Selvakumar and his vendor is Dr.Parwaiz. The 1st defendant conveniently remained absent and did not participate in the proceedings. Whereas, Dr.Parwaiz, in spite of 2nd defendant raised a plea in his written statement about the non-joinder of Dr.Parwaiz he was not impleaded as a defendant. However, on behalf of his wife, the 4th defendant Dr.Parwaiz had mounted the witness box and got examined as D.W-2. In the cross examination, he was questioned, what was the necessity to sell the property to the 1st defendant for a sale consideration of Rs.2,85,000/- and agreed to buy back from him on the same day for Rs.3,00,000/- He has not given any plausible explanation which could be acceptable to any 15/25 https://www.mhc.tn.gov.in/judis/ A.S.No.190 of 2019 & M.P.No.1 of 2009 prudent man to accept. The conveyance under Ex.A-2 by Dr.Parwaiz was in the capacity of power agent of Thangaraj and under Ex.A-4 the sale agreement in favour of Dr.Parwaiz executed on the same day patently a device invented to cleverly divest the title of the 2nd defendant and to create encumbrance and in lien over the suit property through Ex.A-4. Not stopping with that, after creating these two documents Ex.A-2 dated 18.04.2007 and Ex.A-4 on 18.04.2007, the suit agreement Ex.A-1 dated 02.05.2007 had been executed by the 1st defendant in favour of the plaintiffs for a sale consideration of Rs.9,00,000/-. Continue to create further encumbrances by registering a rectification deed dated 06.06.2007 (document not marked), Ex.A-4 the cancellation of the agreement and (Ex.A-7) a sale deed in favour of the 2nd defendant for sale consideration of Rs.3,51,000/- both dated 12.06.2007.
18. From the above sequence of events, it is quite natural to entertain doubt why the suit property sold for Rs.2,89,300/- was agreed to be purchased on the same day by the vendor himself for Rs.3,00,000/- How, within 14 days, the plaintiffs agreed to be purchased it for Rs.9,00,000/- and advanced Rs.3,50,000/- and what was the necessity to cancel the agreement (Ex.A-4) and to convey the 16/25 https://www.mhc.tn.gov.in/judis/ A.S.No.190 of 2019 & M.P.No.1 of 2009 property again to the original owner the 2nd defendant under (Ex.A-7) for a consideration of Rs.3,51,000/- though the plaintiffs could not give any explanation we get the answer from Ex.B-5 the lawyer notice dated 10.05.2007 sent to Thangaraj 2nd defendant on behalf of Dr.Parwaiz (D.W.2) and Ex.B-4 dated 13.05.2007, the police complaint given by the daughter of the 2nd defendant against Dr.Parwaiz.
19. The power of attorney dated 28.03.2006 which is the foundation document for divesting the property from the 2nd defendant is admittedly to have obtained by Dr.Parwaiz as a surety for the loan amount he advanced to Thangaraj. In the notice Ex.B-5, he candidly admits that Thangaraj failed to repay the loan amount advanced on various dates, so, he sold it to Selvakumar (1 st defendant) on 18.04.2007 for a sale consideration of Rs.2,89,300/- and credited the proceeds to the loan due and still a balance of Rs.4,61,094/- is due and payable towards the loan. Further, in view of the sale in favour of Selvakumar (1st defendant), the 2nd defendant (Thangaraj) was called upon to repay the balance debt due and vacate the premises within 7 days. The fallout of this notice is the criminal complaint Ex.B-4 dated 13.05.2007 lodged by the 2nd defendant's daughter against Dr.Parwaiz alleging harassment. Since the matter become murky, the parties have 17/25 https://www.mhc.tn.gov.in/judis/ A.S.No.190 of 2019 & M.P.No.1 of 2009 decided to settle the dispute through Panchayatars and had entered into agreement (Ex.B.9) dated 12.06.2007. The documents executed on 12.06.2007 are the outcome of this compromise agreement. Dr.Parwaiz, Thangaraj (2nd defendant) and Selvakumar (1st defendant) are signatories in this agreement. Dr.Parwaiz, in his evidence, admits his signature in Ex.B-9 but adds, it was obtained under threat by one Chenniayyappan and Advocate Subramani. However, we find all the terms of compromise under Ex.B-9 duly acted upon. The criminal complaint against Dr.Parwaiz was withdrawn and the parties have executed three documents and got it registered in terms of the agreement. The other signatory to Ex.B-9 Selvakumar has reconveyed the property under Ex.A.7 to the 2nd defendant through his power agent the 4th defendant. Any one could repudiate the sale deed Ex.A.7 are the first and 4th defendant but both remained exparte and not repudiated the sale deed Ex.A-7.
20. In Ex.B.9, there is also a reference regarding the surety stood by Dr.Parwaiz for the L.I.C Housing loan obtained by 2nd defendant Thanagaraj. In this compromise agreement, the parties have agreed to release Dr.Parwaiz from his liability as surety. Looking at Ex.B.1 which is the Loan Sanction Letter by the 18/25 https://www.mhc.tn.gov.in/judis/ A.S.No.190 of 2019 & M.P.No.1 of 2009 L.I.C Housing Finance Limited issued on 26.08.2006, we find that Thanagaraj was sanctioned loan of Rs.41,000/- for construction of new house. This is subsequent to the purchase of the vacant land by Thanagaraj on 28.03.2006. He obtained building plan permission on 01.06.2006 and same is seen from Ex.B.2. During the cross examination, Thangaraj has deposed that Ex.A.7 dated 12.06.2007 was executed in his favour to safeguard his title. It is true, no such recital is found in Ex.A.7 dated 12.06.2007 but the other documents executed on the same day by the parties clearly indicates that Ex.A.7 was executed and got registered to undo the damages caused by the earlier documents. Any person to be held responsible for such murky documents it shall be none other than Dr.Parwaiz who is the husband of the 4th defendant.
21. This Court has no hesitation to say, D.W.2 is the person who has devised the scheme in order to recover the money owe by the 2nd defendant. Inspite of his role in the litigation he has deposed before the Court, that he have no knowledge about the suit transaction. This Court is able to see his presence in every document relied and he has sponsored the litigation through the plaintiffs. 19/25 https://www.mhc.tn.gov.in/judis/ A.S.No.190 of 2019 & M.P.No.1 of 2009
22. Now coming to the merits of the plaintiffs' case, as pointed out earlier, the agreement to purchase the suit property for sale price of Rs.9,00,000/- which was alleged to have been purchased by his vendor for Rs.2,89,300/- just 14 days prior to the agreement, throws doubt over the genuineness of the document. The plaintiffs admit that before entering into the agreement, he did not get encumbrance certificate to verify the title. He has deposed that about one month prior to the agreement, the 1st defendant offered him to sell the suit property. But in fact, the 1st defendant himself got right over the property only on 18.04.2007 under Ex.A.2 so, there is no possibility of 1st defendant offering the property to the plaintiffs, one month prior to the agreement dated 02.05.2007. So, inference from the evidence of the plaintiff PW.1 is that, Ex.A.1 the unregistered agreement created much later to the date it bear but given anti-date.
23. The other distributing factor in this case is the conduct of the parties. The person against whom the agreement sought to be enforced is the 1st defendant. As vendor, he has not come forward to assist the Court and explain about the suit sale agreement. The purchasers, who are the plaintiffs in the suit are relatives. As far as the 1st plaintiff is concern, he has not produced any document 20/25 https://www.mhc.tn.gov.in/judis/ A.S.No.190 of 2019 & M.P.No.1 of 2009 to show that he had wherewithal to purchase the suit property for Rs.9,00,000/-. Even according to his own evidence, he has contributed Rs.2,00,000/- for the advance money and the balance of Rs.1,50,000/- was contributed by the 2nd plaintiff. The 2nd plaintiff not chosen to come and give evidence about his readiness and willingness In fact, in the plaint, it is averred by the plaintiff that there is no necessity to plead readiness and willingness since pending execution of the agreement, the property has been sold to 2nd defendant.
24. Unless, it is proved that the 2nd defendant had purchased the property knowing fully well about the previous agreement, he has to be treated as a bonafide purchaser. But from the facts of the case and exhibits, it is the plaintiffs, (the agreement holders) lack bonafide. They have entered into the suit agreement Ex.A.1 even without looking at the encumbrance certificate and without ascertaining the person in occupation of the suit premises.
25. Having come to know about the sale deed in favour of the 2nd defendant subsequent to the suit agreement, suit without relief to declare the said sale deed as invalid, badly affect the plaintiff's case. Evidence discloses the vendor 21/25 https://www.mhc.tn.gov.in/judis/ A.S.No.190 of 2019 & M.P.No.1 of 2009 of the plaintiff (i.e) the 1st defendant himself is not a bonafide purchaser and only a name lender for a sham document Ex.A.2. His malafide is explicitly by keeping away from the proceedings. He has neither claimed the balance sale consideration nor refuted the sale agreement Ex.A.1. He has shown no interest for the money or for the property. Dr.Parwaiz the vendors vendor, who was party to all the transactions pertaining to the suit property either directly or indirectly had come to Court and deposed conveniently that, he have no personal knowledge about the suit transaction. The vendor of the plaintiffs, who is the 1st defendant and his vendors vendor D.W.2 are parties to the agreement Ex.B.9 which is dated 12.06.2007 and Ex.A.7 is the result of the said agreement. While fact being so, the evidence of D.W.2 sufficiently indicate the suit sale agreement has come into existence much after 12.06.2007 but given antidate.
26. The suit sale agreement carry the following inherent defects.
(i). The sale consideration fixed is abnormally high when compared to the sale price of the said property sold 14 days prior to the agreement.
(ii). First defendant who claims ownership of the suit property and executed the sale agreement remained exparte. The conspicuous absence of first 22/25 https://www.mhc.tn.gov.in/judis/ A.S.No.190 of 2019 & M.P.No.1 of 2009 defendant in the proceedings and his failure to reply to the notice caused by the plaintiffs only led to adverse inference regarding Ex.A.1 suit sale agreement.
27. This Court has no hesitation to say that after getting rid of his liabilities both Civil and Criminal, it is the handiwork of Dr.Parwaiz. D.W.2 creating the anti-dated sale agreement Ex.A.1 to settle score with 2nd defendant.
28. In the said circumstances, the explanation given by the 2 nd defendant that Ex.A.7 document was executed in his favour as a safety measure to nullify the shame transfer under Ex.A.2 is more probable in view of the terms found in Ex.B.9 and the other registered documents Ex.A.6 & Ex.A.7.
29. The Trial Court erred in suspecting the conduct of the 2 nd defendant for entering into the sale agreement with his wife, the 3 rd defendant under Ex.A.8 dated 19.06.2007. It is well settled principle of law that the plaintiffs has to stand or fall on their own legs and cannot take advantage of the defects in the defendants case. Relief of Specific Performance is an equitable relief. The person, who approached the Court should come with clear hands. He 23/25 https://www.mhc.tn.gov.in/judis/ A.S.No.190 of 2019 & M.P.No.1 of 2009 must first establish his bonafide in entering into an agreement, even before establishing his readiness and willingness. In this case, the plaintiffs have miserably failed in establishing their bonafideness in entering into the agreement with the 1st defendant, who himself had no genuine title over the property. If at all, the plaintiffs are entitled for any remedy, it can only be relief of refund of the advance paid to the 1st defendant. But from the facts and conduct of the plaintiffs, they not entitled for refund since they are held not a bonafide intent purchaser. Therefore, the Appeal Suit is Allowed. Decree against the 2nd defendant is set aside. No costs. Consequently, connected Miscellaneous Petition is closed.
26.02.2021
Index : Yes
Internet : Yes/No.
bsm
To,
1.The Principal District Judge, Erode District.
2.The Section Officer, V.R.Section, High Court, Madras. 24/25 https://www.mhc.tn.gov.in/judis/ A.S.No.190 of 2019 & M.P.No.1 of 2009 Dr.G.Jayachandran,J.
bsm Pre-delivery Judgment in A.S.No.190 of 2009 26.02.2021 25/25 https://www.mhc.tn.gov.in/judis/