Madras High Court
S. Ramakrishnan vs R.M. Subbiah on 28 June, 1999
Equivalent citations: (1999)3MLJ404
JUDGMENT A. Subbulakshmy, J.
1. These appeals are directed as against the judgment and decree of the learned Single Judge in C.S. Nos. 1586 of 1988 and 130 of 1990.
2. The case of the plaintiff in C.S. No. 1586 of 1988 is as follows:
The suit property door No. 31, Jambulinga Naicken Street, Nungambakkam, Madras-34 originally belonged to one D.K. Sundaresan, the father of the defendant and after his death, the defendant and is brother Rathnam became owner of the suit property. The other heirs of late Sundaresan relinquished their right. The defendant offered to sell his undivided half share in the A schedule property to the plaintiff for a sum of Rs. 5,12,500. The plaintiff accepted the offer and the plaintiff and the defendant entered into an agreement dated 2.11.1986, in respect of the undivided half share and the transaction was agreed to be completed on or before 30.4.1987. The plaintiff paid a sum of Rs. 50,501 towards the sale consideration on the date of agreement. If there was any default on the part of the defendant to perform his part of the contract, the defendant undertook to pay compensation at the rate of Rs. 5,000 per month until such time the deed of sale is executed and registered. The defendant subsequently received several payments to complete the sale viz., Rs. 2,50,000 on 20.8.1986, Rs. 75,000 on 27.12.1987, 50,000 on 10.1.1988 and Rs. 12,500 on 14.1.1988. All these payments have been acknowledged by the defendant by endorsements made on the agreement dated 2.11.1986. Even after receiving a total sum of Rs. 4,38,001 out of the sale consideration of Rs. 5,12,500, the defendant has been evading to complete the sale. The defendant has not executed and registered the sale deed. Under the terms of agreement, the balance of sale consideration after deducting the sum of Rs. 50,501, is payable only at the time of execution and registration of the sale deed. The defendant is wilfully evading to execute and register the sale deed. So, the defendant is liable to pay damage at the rate of Rs. 5,000 per month for the delay until the execution and registration of the sale deed and delivery of possession. The brother of the defendant S. Rathnam also offered to sell his undivided half share in A schedule property and executed and presented for registration a Deed of Sale on 13.12.1988 pursuantto the agreement with him and has also delivered to the plaintiff the ground floor portion of A schedule property which has been in his possession. When the brother of the defendant put the plaintiff in possession of the ground floor portion of A schedule property, the defendant has to be injuncted from interfering with the plaintiff's possession of the ground floor of A schedule property. The plaintiff has always been and is ready and willing to perform his part of the contract. Only the defendant is evading to perform his part of the contract. Hence, the plaintiff has come forward with this suit for directing the defendant to execute and present for registration a deed of sale in terms of the agreement dated 2.11.1986 conveying the defendant's undivided half share in A schedule property and deliver possession of the first floor occupied by the defendant on or before a date fixed by the court failing which directing execution of the sale deed in terms of the agreement dated 2.11.1986 by court conveying B schedule property to the plaintiff and directing delivery of possession of the first floor of A schedule property to the plaintiff through court; directing the defendant to pay a sum of Rs. 5,000 per month from 1.5.1987 till the date of delivery of possession; and for grant of injunction restraining the defendant from interfering with the plaintiff's possession of the ground floor of A schedule property.
[Para Nos. 3 to 11 omitted - Ed.]
12. Points that arise for determination are:
(i) whether the plaintiff is entitled to specific performance of the contract;
(ii) Whether the plaintiff is entitled to the injunction asked for;
(iii) Whether the plaintiff is entitled to damages
13. The entire A schedule property originally belonged to one D.K. Sundaresan, the father of the defendant. He died on 25.7.1964 leaving behind him his wife, his sons, the defendant and Rathnam, the first defendant in C.S. No. 130 of 1990 and his two daughters. The wife and daughters executed a release deed dated 16.4.1966 in favour of the defendants relinquishing their interest in A Schedule property. So, the defendant and his brother became the absolute owners of the entire A schedule property. Two agreements of sale were entered into between the plaintiff and the two sons the defendant and his brother Rathnam and the property involved under both the agreements is undivided half share of each of the brothers. The defendant's brother Rathnam, in pursuance of the agreement of sale executed a sale deed dated 13.12.1988 conveying his undivided half share in the suit property. The suit C.S. No. 1586 of 1988 is in respect of the undivided half share of the brother, the defendant herein for specific performance of the contract. Ex.P-1 is the agreement of sale entered into between the plaintiff and the defendant and the defendant had agreed to sell his undivided half share in A schedule property for a sum of Rs. 5,12,500 and the sale has to be concluded on or before 30.4.1987. The defendant has received a sum of Rs. 4,3 8,001 out of the sale consideration i.e., Rs. 5,12,500. According to the plaintiff, even after receiving a major part of the sale consideration, the defendant has been evading to complete the sale and deliver possession to the plaintiff and so, he is entitled to specific performance of the contract. The plaintiff further contends that he has always been ready and willing to perform his part of the contract and only the defendant is causing hardship to the plaintiff by not executing the sale deed.
14. Counsel for the defendant/appellant submitted that the plaintiff did not come forward to perform his part of the contract by paying the balance of sale consideration within the stipulated period and there was no readiness and willingness on his part and there was no extension of contract and as the respondent has failed to perform his part of the obligations and when the application for recession of the contract is pending, performance of the contract is not enforceable.
15. On a perusal of Ex.P-1, it is seen that the purchaser shall have to pay the balance of sale consideration to the vendor on or before 30.4.1987 upon which the vendor shall at the expense of the purchaser execute and present for registration deed of sale, conveying the schedule property to the purchaser or his nominee and deliver vacant possession of the property to the purchaser or his nominee and the purchaser shall have the right to have the sale specifically performed if the vendor fails to so execute and present for registration the deed of sale deed and deliver possession. The defendant admits execution of the agreement Ex.P-1. The defendant has also received major part of the sale consideration.
16. The defendant as D.W. 1 admits in his evidence that he has received a major part of the sale consideration as advance and he has deposited that amount into fixed deposit and there was balance only less than a lakh of rupees with the plaintiff. The plaintiff has clearly averred in the plaint that he was already ready and willing to perform his part of the contract. P.W. 1 has also sent letters to the defendant. The plaintiff asked the defendant to complete the sale transaction and the defendant has also sent reply under Exs.P-2 to P-5. The defendant had stated in his letters that he would shortly visit Madras and at that time, he would complete the sale. The plaintiff has also sent reply under Ex.P-6 for the letters Exs.P-2 to P-5 requesting the defendant to complete the sale within the time fixed and with regard to further time, he would consider it. In the letter sent by the plaintiff to the defendant under Ex.P-9, the plaintiff had stated that on his part, he was ready to complete the sale transaction. The defendant has also sent telegram. The confirmation copy of the telegram is Ex.P-10, wherein, he has stated that all the payments towards sale of house to be done only in presence of both vendors. So, the letter correspondence show that the plaintiff, was always ready and willing to perform his part of the contract.
17. The defendant contends that he wanted to get partition among the brothers and only after partition, execution of the sale deed can be considered. In Ex.P-12 letter, the defendant had proposed to have partition before the sale deed. The plaintiff had sent a reply under Ex.P-14 stating that the plaintiff is not concerned about any partition between the brothers and the plaintiff requested to complete the sale transaction. P. W. 1 's evidence is that the defendant did not complete the sale transaction as requested by him and so, he sent lawyer's notice Ex.P-15. The defendant wrote letter Ex.P-16 to the plaintiff asking the. the plaintiff to pay the balance of sale consideration and also sent the draft sale deed. P.W. 1 states that he has sent the draft sale deed dated 7.12.1997 and also mentioned about the draft sale deed in his letter Ex.P-17. Even with regard to payment of balance sale consideration, the defendant sent letter Ex.P-18 asking the plaintiff to retain a sum of Rs. 10,000 and pay him Rs. 60,000. The plaintiff has also sent reply under Ex.P-19 stating that he was ready with the balance of sale consideration and wanted the defendant to complete the sale deed without any further correspondence. These documents clearly reveal that the plaintiff was always ready and willing to perform his part of the contract.
18. Counsel for the appellant submitted that the plaintiff did not deposit the amount immediately to show his bona fide and so, it cannot be stated that there was readiness and willingness on his part. In Nathulal v. Phoolchand , the Supreme Court laid down that for readiness and willingness the purchaser need not produce money or vouch a concluded scheme for financing the transaction. There are catena of decisions of this Court and the Apex Court to the effect that readiness and willingness do not imply that the purchaser must produce money and the conditions to be fulfilled are that purchaser had done some act in furtherance of the contract and the act performed by him was with certainty.
19. In the instant case, the plaintiff has written letters to the defendant expressing his readiness to perform his part of the contract and the defendant has also received a major part of the sale consideration and deposited the amount in fixed deposit and for concluding the contract only the defendant was evading. He wanted to| get income tax clearance certificate. It is too much for the defendant to contend like that, having entered into agreement of sale Ex.P-1, it is futile on the part of the defendant to contend that he would settle with his brother amicably with regard to this property and only after effecting partition between himself and his brother, he would get the income tax clearance certificate for completing the sale transaction. The conduct of the defendant by keeping quiet without taking any steps to complete the sale transaction and the evidence of the defendant that he would get income tax clearance certificate only after settling with his brother amicably shows that he was not ready and willing to perform his part of the contract. P.W. 2 has also spoken in his evidence that the defendant has stated that he would execute the sale deed only after the partition. P.W. 1 also admits in his evidence that there is nothing in writing to show that the plaintiff had agreed at any time that he would have the sale deed executed after the partition between the defendant and his brother. D.W. 1 also speaks in his evidence that with regard to income tax clearance certificate he has not filed any application form and he did not ask his brother to file the application form in spite of the reply sent by the Income-tax Department for the letter sent by him under Ex.D-6 for Income tax clearance certificate, asking for an application form to be signed by the brother of D.W. 1 and also an affidavit signed by D. W. 1. He has further stated that ' he has not taken any action on that. This proves the indifferent attitude of the defendant regarding the sale transaction. These things clearly establish that the plaintiff was always ready and willing to perform his part of the contract and only the defendant was not evincing any interest in completing the sale transaction and was evading to execute and register the sale deed.
20. Counsel for the appellant submitted that the plaintiff did not evince any interest in concluding the sale transaction and there are laches on the part of the plaintiff and he has not come to court with clean hands and so, specific performance must be refused. He relies upon the decision Prakash Chandra v. Angadlal , wherein it has been held that, The ordinary rule is that specific performance should be granted. It ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief.
A Division Bench of this Court has held in Nallaya Gounder and another v. P. Ramaswami Gounder etc. and three others (1993)2 L. W. 86, that The court has ho hesitation in negativing specific performance for the reason that the plaintiffs have not come forward with clean hands in asking for the equitable relief. There is positive proof that Ex.A-9 delivery receipt has been concocted for the purpose of this case. We have also seen that the plaintiffs have put forward a false case regarding convening of panchayat. So, even if we are to take that Ex.A-1 agreement, the plaintiffs cannot maintain this action.
This Court has held in Abdul Jabbar Rowther v. Mani Raj (1994)1 M.L.J. 205, that, A court cannot grant specific performance of an agreement which contains unconscionable terms, which give an unfair advantage to the party who seeks specific performance. Section 20(2) of the Specific Relief Act provides that the court may properly exercise discretion not to decree specific performance where the terms of the contract on the conduct of the parties are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant. The same subsection provides that if the performance of the contract would involve hardship on the defendant which he did not foresee at the time of the contract, the court would not enforce such a contract.
It has been held in Nanak Builders and Investors Pvt. Ltd. v. Vinod Kumar Alag A.I.R. 1991 Del. 315, that A contract contains certain stipulations and specific performance is the actual execution of the contract. When a party to the contract does not perform its obligations thereunder the party seeking performance of the contract approaches the court to compel the other to perform his/her obligations. While in India this remedy finds statutory recognition, in England this was an equitable remedy. The law on the subject is, however, the same in India has in England. The growth of law in England was as an equitable remedy. Therefore, all the requirements which a plaintiff seeking relief in equity had to satisfy before such a relief could be granted are relevant to find out whether the plaintiff is entitled to the discretionary relief of specific performance of contract.
Ex.P-1 agreement contains stipulation which can be specifically enforced. It does not contain any unsustainable terms so as to cause unfair advantage to the parties. There is no dispute that only undivided half share was agreed to be sold to the plaintiff under Ex.P-1. Section 22 of the Specific Relief Act says that court may properly exercise a discretion while decreeing the suit for specific performance of the contract. The relief by way of specific performance being discretionary under Section 20, the plaintiff must come to court with clean hands and with all the materials with regard to readiness and willingness to complete the sale transaction as stipulated in the agreement. The oral evidence of P.W. 1 and the documents clearly establish that the plaintiff has come to court with clean hands and he was always ready and willing to perform his part of the contract and he was anxious to complete the sale transaction and only the defendant was evading the execution of the sale deed. So, this Court has to necessarily exercise its discretionary power to order specific performance of the contract. The Apex Court has held in P. V. Joseph's son Mathew v. N. Kuruvila 's son , that, Section 20 preserves judicial discretion to courts as to decreeing specific performance. The court should meticulously consider all facts and circumstances of the case. The court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff.
The Apex Court has held in Kallathil Sreedharan v. Komath Pandyala Prasanna , that, Section 20 of the Specific Relief Act, 1963 deals with discretion and jurisdiction to the court. It says that the court is not bound to grant such relief merely because it is lawful to do so, but at the same time it enjoins that the discretion of the court should not be arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. Thus the discretion given to the court of equity is required to be exercised not arbitrarily but on sound and reasonable basis guided by judicial principles.
In K.S. Vidayadam v. Vairavan , it has been held that in the case of agreement for sale of immovable property, the jurisdiction of the court is discretionary in passing decree for specific performance and while exercising such discretion, the court should look at all the relevant circumstances including the time limit specific in the agreement and determine whether its discretion to grant specific performance should be exercised. In Ganesh Shet v. Dr. C.S.G.K. Setty and Ors. (1998)2 L.W. 749, it has been held that, It is well-settled that the circumstances referred to in Sub-clauses (2) to (4) of Section 20 of the Specific Relief Act in regard to exercise of discretion for granting a decree for specific performance is discretionary, and is not given merely because it is legal but it is governed by sound judicial principles. In Pomeroy on 'Specific Performance of Contracts' (3rd Edn.) (para 159) it is stated clearly that a greater amount or degree of certainty is required in the terms of an agreement, which is to be specifically executed in equity, than is necessary in a contract which is to be the basis of an action at law for damages.
An action at law is founded upon the mere non-performance by the defendant, and this negative conclusion can often be established without determining all the terms of the agreement with exactness. The suit in equity is wholly an affirmative proceeding. The mere fact of non performance is not enough; its object is to procure a performance by the defendant, and this demands a clear, definite and precise understanding of all the terms; they must be exactly ascertained before their performance can be enforced.
21. Counsel for the appellant drew out attention to Clause 4 of the sale, agreement Ex.P-1 and submitted that the balance of sale consideration has to be paid on or before 30.4.1987 and the sale deed has to be executed and since that part was not performed, the plaintiff has not come to court with clean hands.
22. It is significant to note that the plaintiff paid a further payment of Rs. 2,50,000 on 20.8.1987 nearly after four months after the stipulated period and he has made further payments such as Rs. 75,000 on 27.12.1987, Rs. 50,000 on. 10.1.1988 Rs. 12,500 on 14.1.1988. So, it cannot be pleaded that time was the essence of the contract and the plaintiff committed breach of contract. The defendant received the amount which clearly establishes that the defendant has accepted for extension of time by receiving the balance of sale consideration on four occasions. So, it can be safely concluded that time was not the essence of the contract. Hence, the argument of the counsel for the defendant that the plaintiff has not come to court with clean hands does not hold good.
23. Counsel for the appellant further submitted that the defendant filed application for recession of contract and expressed the desire and willingness to be relieved from the contract under Section 28 of the Specific Relief Act and has also communicated that he shall deposit the money as and when the order is passed on the application and that petition was not disposed of. He further submitted that there is no stipulation in the judgment with regard to the balance of sale consideration.
24. The petition filed by the petitioner in the suit before the trial court for recession of the contract was not disposed of. So, the submission of the counsel for the defendant with regard to recession of the contract does not arise for consideration.
25. The letter correspondence between the parties proves that the plaintiff was insisting for the execution of the sale deed for which the first defendant was evading. So, this Court has to necessarily exercise its discretionary power under Section 20 of the Specific Relief Act applying the principles laid down by the Supreme Court in the decisions cited supra. A perusal of the documents clearly proves that the plaintiff has all along been ready and willing to perform his part of the contract as per Ex.P-1 and only the defendant was evading to complete the sale transaction. Hence, we find that the plaintiff is entitled to the discretionary relief of specific performance of the contract.
26. The defendant contends that his brother had executed a release deed relinquishing all his rights and interest in respect of his undivided half share in the suit property on 24.11.1977 and by virtue of that document, he is the absolute owner of the suit property and his brother has no manner of right. That release deed Ex.B-8 was not registered since income tax clearance certificate was not produced. That document was pending for a long time for registration. Then the defendant filed W.P. No. 6114 of 1989 on the file of this Court and as per the direction of this Court, that document was registered. The claim of the defendant basing on the release deed cannot at all be considered in this case which is purely for the relief of specific performance of the contract. Hence, we do not consider it necessary to discuss with regard to validity of the release deed and the matter is left open. The defendant did not make any attempt to get the income tax clearance certificate for completing the sale transaction. There were clear laches on the part of the defendant. Having received a major part of the sale consideration, the defendant ought to have taken steps to obtain the income tax clearance certificate and complete the sale transaction. The plaintiff has performed his part of the contract by paying a major part of the sale consideration, sending the draft sale deed and letters for completion of the sale transaction. The conduct of the defendant viz., sending evasive excuses and to obtaining income tax clearance certificate goes to establish the laches on his part. A perusal of the oral and documentary evidence clearly establish that the plaintiff has all along been ready and willing to perform his part of the contract and he is entitled to the specific performance of the contract. We are in agreement with the finding of the learned Single Judge on this aspect.
27. The plaintiff has sought the relief of permanent injunction retraining the defendant from interfering with the plaintiff's possession. The defendant as plaintiff in C.S. No. 130 of 1990 has also sought the relief of injunction in respect of the ground floor and the first floor of the A schedule property. The plaintiff contends that after the sale deed Ex.A-12 was executed by the brother of the defendant on 12.11.1988, he handed over possession of the ground floor to him and he is in possession and enjoyment of the suit property and the defendant is trying to interfere with his possession and so, he is entitled to injunction asked for. On the other hand, the defendant contends that the property being undivided one and as it is a Hindu Undivided Family property, the purchaser from the other co-owner cannot seek the relief of injunction and the plaintiff is not entitled to injunction asked for. Much reliance is placed upon by the defendant on the sale deed Ex.A-12 and the plaintiff contends that possession of the ground floor has been handed over to him.
28. Of course, there is recital in the sale deed Ex.A-12 executed by the other brother Rathnam that the ground floor portion was handed over to the plaintiff. It is significant to note that in the schedule property in the sale deed Ex.A-12, only the undivided half share is sold to the plaintiff. So, no specific portion was conveyed to the plaintiff by the other co-owner Rathnam under that sale deed. Since the undivided half share alone was sold to the plaintiff under that sale deed, the remedy open to the plaintiff for getting possession is only to seek the relief of . partition of the properties. The plaintiff cannot take shelter in the wordings mentioned in Ex.A-12 that possession of the ground floor was handed over to him and contend that he is in possession of the ground floor and he is entitled to injunction asked for. The injunction cannot be granted as against the co-owner in respect of the undivided property. The learned Single Judge has relied upon the orders passed in the I.As. and has found that the plaintiff is in possession and he is entitled to injunction asked for. The Division Bench of this Court in O.S.A. No. 136 of 1989 observed that no doubt from the defendant's brother Rathnam, the undivided half share has been purchased by the plaintiff, but, once it is made out, that the plaintiff is put in effective possession of the property which was in the occupation of one of the brothers by an arrangement, which had been evolved as between them in the enjoyment of the properties alone and in such instance, the relief of injunction is available to protect that portion of the property which had been agreed to be enjoyed to the exclusion of each of them though they are co-owners and under such circumstances, the relief of injunction could be obtained by one of the co-owners against the other. When the plaintiff had entered into an agreement with two brothers and obtained possession of the ground floor from one of them, he had a legal right to prevent the other from interfering with his peaceful possession of that portion of the property. The learned Trial Judge has observed that in the proceedings before the leaned single Judge and the Division Bench, it was satisfied that the plaintiff was in possession of the entire ground floor portion of the suit property as it was purchased by him as undivided share from the brother of the defendant under Ex.P-27 and consequently granted interim order in favour of the plaintiff restraining the first defendant from in any way interfering with the effective and actual possession of the ground floor portion of the suit property. The learned single Judge further observed that the matter did not end with that and the first defendant had overlocked the doors of the ground floor of the suit property in spite of the injunction order granted by this Court. Contempt jurisdiction of this Court under Sections 10 and 12 of the Contempt of Court Act was invoked by the plaintiff subsequently and after hearing both the parties in full and providing full opportunity, the learned Single Judge of this Court who originally granted interim order against the first defendant and found the first defendant, guilty of contempt, by flouting the order of injunction passed by this Court within a specific date to pay fine of Rs. 1,000 and on failure to comply with the first defendant was directed to undergo imprisonment for a week. That order is Ex.P-34 dated 13.8.1990. Basing upon these facts, the learned Trial Judge has found that the plaintiff is in possession of the suit property and is entitled to injunction asked for.
29. Counsel for the appellant/defendant vehemently argued that injunction cannot be granted as against the co-owner in respect of the suit property which still remains undivided and the order of the learned single Judge granting injunction is not sustainable.
30. Section 44 of the Transfer of Property Act reads thus, Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest, and so far as it necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce the partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred.
Where the transferee of a share of a dwelling house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.
The appellant/defendant is residing with his family in the suit premises. The plaintiff who has purchased the undivided half share of the other brother of the defendant can only seek for partition of the suit property and he is entitled to joint possession along with the other co-owner. P. W. 1 speaks in his evidence that he is in possession of the ground floor portion and the defendant is residing in the upstair portion of the building. But, he states that after the sale in his favour was completed by the other brother, the defendant locked the ground floor on the same evening. Even though P.W. 1 has spoken in his evidence that he is in possession of the ground floor and in the sale deed Ex.A-21 also, it is stated that possession of the ground floor was given to the plaintiff, it is significant to note that what was purchased by the plaintiff was only undivided half share of the other brother's property. P.W. 1 also admits that in the plaint, in the description of the property, he has stated as undivided half share and he has not mentioned as ground floor. He also does not know about the extent of the ground floor and he is also not able to say as to how may rooms are in the ground floor. He further states that there was also no understanding between him and the other brother Rathnam regarding delivery of possession of the suit property prior to registration of the sale deed. Further, the evidence of P. W. 1 is that on the date he went with Rathnam to the suit property, the ground floor was locked. The plaintiff has also not produced any document to prove with regard to his possession. P. W. 1 is also not able to say the date on which the defendant attempted to interfere with his possession. He fairly admits that according to him, the interference by the defendant is only overlocking and nothing else. So, P.W. 1 's evidence shows that the ground floor was overlocked. P.W. 1 was not able to say as to the date on which it was overlocked. The plaintiff purchased the undivided half share of the brother Rathnam. But, he states that the vendor Rathnam gave him possession of his share and admits that both the defendant and Rathnam are the co-owners of the property and even now, he is asking for sale deed only regarding the undivided half share from the defendant and there is also no covenant in the agreement Ex.P-1 that the defendant should deliver possession of the first floor. He states that there is no need for him to ask for partition because he has entered into agreement for the whole house. In Exs.D-26 and D-27, the other brother Rathnam's address is stated as K.K. Nagar. P.W. 1 's evidence is that the brother Rathnam was staying in the suit property and he took a house in K.K. Nagar on rent. The document Ex.D-34 shows that the defendant paid electricity charges. D. W. 1 's evidence is that he alone was paying water charges to the Water Board. His further evidence is that the ground floor was locked by him and it was under lock and key and the plaintiff was never in possession of the suit property and as the plaintiff and the defendant's brother colluded and tried to trespass into it on 14.11.1988, he was constrained to file the suit praying for injunction. He further admits that the property was never demarcated and the defendant and his brother lived as joint family members and they are the co-owners. The sale in favour of the plaintiff by the brother Rathnam and the agreement of sale in Ex.P-1 favour of the plaintiff by the other brother, the defendant is only with regard to the undivided half share of a dwelling house belonging to the Hindu undivided family mentioned in the agreement. So, Section 44 of the Transfer of Property Act clearly disentitles the plaintiff for the grant of relief of injunction. Hence we find that the plaintiff is not entitled to injunction asked for. The defendant who is the plaintiff in C.S. No. 130 of 1990 being co-owner has got every right to remain in possession of the whole house along with the other co-owner till a valid partition by metes and bounds takes place between them and the plaintiff, the second defendant in C.S. No. 130 of 1990 has absolutely no right to enter into the property until he gets his right by a valid partition with regard to the undivided half share purchased by him from the other brother Rathnam. So, the defendant viz., the plaintiff in C.S. No. 130 of 1990 is entitled to injunction as against the plaintiff, the second defendant in C.S. No. 130 of 1990, and the plaintiff in C.S. No. 130 of 1990 cannot seek the relief of injunction as against his brother, the other co-owner, the first defendant in C.S. No. 130 of 1990. So, we do not agree with the findings and conclusions arrived at by the learned single Judge with regard to the matter of injunction.
31. The plaintiff has sought the relief of damages directing the defendant to pay a sum of Rs. 5,000 per month from 1.5.1987 till date of delivery of possession. Basing upon Clause 9 of the agreement Ex.P-1, if the vendor fails to perform his part of the obligation on or before 30.4.1987, the purchaser shall be entitled to a sum of Rs. 5,000 per month until such time the deed of sale is executed and registered. Even after expiry of the stipulated period viz., 30.4.1987 under Ex.P-1, the plaintiff has paid a major part of the sale consideration on four occasions and the defendant was receiving that amount. The defendant contends that the condition made in Clause 9 of Ex.P-1 is only a clause in terrorem and it was not intended to be acted upon. The learned single Judge found that the first defendant alone committed breach of agreement and so, the plaintiff is entitled to claim damages. He further found that the evidence adduced on behalf of the first defendant does not show that Clause 9 was only a clause terrorem and a nominal one and it was not intended to be acted upon and the onus is heavily upon the defendant to prove that the said clause was never intended to be acted upon, but, he deliberately failed to do so and accordingly, the plaintiff is entitled to claim damages at the rate of Rs. 5,000 per month from 1.5.1987 till the execution of the sale deed. Of course there are laches on the part of the defendant. But this laches cannot in any way entitle the plaintiff to seek damages from the defendant. The plaintiff has already purchased undivided half share of the property belonging to the other co-owner Mr. Rathnam. This suit is in respect of the remaining undivided half share and the plaintiff has been granted relief of specific performance of the contract and the plaintiff is entitled to the entire property. From the evidence and the documents, it is well evident that the parties never intended that the contract should be completed before 30.4.1987 and there was further extension of time by accepting balance of sale consideration after the stipulated period; So, it cannot be insisted by the plaintiff that since the contract was not concluded on or before 30.4.1987, he is entitled to damages. For awarding damages, it must be established by the plaintiff that much hardship and injustice were caused to him by the act of the defendant. P. W. 1 has stated in his evidence that Clauses 5, 8 and 9 in Ex.P-1 are stated normally in the agreement. The evidence of D.W. 1 is that he was told that Clause 9 is only a terrorem and it was not intended to be acted upon and however, he has signed that document and that fact has been referred to in the letters. He further states that at the time when he signed the agreement Ex.P-1 with the intention that Clause 9 of Ex.P-1 and other penalty clauses are normally clauses which are being framed in the agreement. He has also indicated that in the sale agreement, he has mentioned that time is the essence of the contract and the date was mentioned as 30.4.1987, but it was not seriously acted upon. Even after expiry of the period, the plaintiff was paying a major part of the sale consideration and the defendant was receiving that amount. So, under such circumstances, it can be inferred that the intention of the parties was not to enforce the penalty clause of the agreement strictly. The agreement of sale was entered into in the year 1986. The defendant having been directed to perform his part of the contract by executing the sale deed after receiving the balance sale consideration cannot be burdened with further liability to pay damages to the plaintiff who is going to get the benefit of becoming owner of the entire property. On going through the entire evidence and documents, we find that it is wholly unjustifiable to award any damages by the defendant to the plaintiff. Hence, we hold that the plaintiff is not entitled to any damages. We differ from the view taken by the learned single Judge in this aspect.
In the result, O.S.A. No. 250 of 1996 is allowed in part confirming the judgment and decree of the learned Single Judge in respect of the relief of specific performance of the contract and setting aside the same in respect of injunction and damages and O.S.A. No. 251 of 1996 is allowed in part and the suit is decreed as against the second defendant in C.S. No. 130 of 1990 and the suit is dismissed as against the first defendant. No costs. Connected pending C.M.Ps. are closed.