Supreme Court - Daily Orders
L.T.Somasundaram vs P.Sampoornam And Ors on 25 July, 2019
Bench: R. Banumathi, A.S. Bopanna
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 11380 OF 2011
L.T.SOMASUNDARAM ...APPELLANT(S)
VERSUS
P.SAMPOORNAM AND ORS ...RESPONDENT(S)
O R D E R
1. The appellant and the proforma respondent nos. 6 to 8 have filed the suit against the original defendant viz. P. Paramasiva Gounder for specific performance of agreement of sale dated 06.07.1990 and to deliver possession or in the alternative to direct the original defendant - P. Paramasiva Gounder to pay a sum of Rs.2,47,478/- (Rupees two lakhs forty seven thousand and four hundred seventy eight) to the appellant and respondent nos. 6 to 8.
2. Based upon the evidence adduced by the parties, the Trial Court held that the appellant and respondent nos. 6 to 8 are entitled to the decree for specific performance and, accordingly, decreed the suit vide judgment dated 16.10.2003. During the pendency of the suit, the original defendant- P. Paramasiva Gounder died. Respondent Nos. 1 to 5 were brought on record as the Legal representatives of deceased- P. Paramasiva Gounder. The respondent Signature Not Verified nos. 1 to 5 preferred the first appeal and the same came to be Digitally signed by MADHU BALA Date: 2019.08.01 11:03:46 IST Reason: dismissed on 02.09.2005.
3. Being aggrieved, the respondent nos. 1 to 5 preferred the 2 second appeal and the High Court reversed the concurrent findings and allowed the second appeal. In the impugned judgment, the High Court held that the price agreed under the agreement of sale was Rs.1,50,000/- (Rupees one lakh fifty thousand) and the appellant and respondent nos. 6 to 8 herein had paid Rs.1,40,000/- (Rupees one lakh forty thousand) and the balance payable was only Rs.10,000/- (Rupees ten thousand) and it is not known why the appellant and respondent nos. 6 to 8 kept quit for such long time without then and there seeking for the specific performance. Insofar as the alleged endorsement, Exhibit A-11 about the eviction of lessee in the suit property, the High Court did not accept the endorsement and held that Exhibit A-11 endorsement does not specify a particular time within which the lessee shall be evicted. The High Court further observed that if there was a lessee, there would have been a reference of the said lessee even in the original agreement of sale and, therefore, on that ground the High Court did not accept the Exhibit A-11 endorsement as a ground for the appellant in delay in filing the suit for specific performance. The High Court held that the appellant and respondent nos. 6 to 8 having paid 90% of the amount under the agreement of sale would not have waited for six years in filing the suit for specific performance. On those findings, the High Court reversed the concurrent findings of the Courts below and allowed the second appeal.
4. We have heard Mr. Senthil Jagadeesan, learned counsel appearing on behalf of the appellant and respondent nos. 6 to 8 as well as Mr. Jayanth Muth Raj, learned senior counsel appearing on 3 behalf of respondent nos. 1 to 5 and perused the relevant material.
5. The relief of specific performance is a discretionary one. In the present case, the agreement of sale was executed way back in the year 1990. Learned senior counsel appearing on behalf of respondent nos. 1 to 5 has submitted that the respondents are in possession of the property and over the years they spent lot of money in developing the property and at this distant point of time if the suit for specific performance is to be decreed, it will cause undue hardship to respondent nos. 1 to 5 and, therefore, submitted that the judgment of the High Court may not be interfered with. We find force in the submission of the learned senior counsel appearing on behalf of respondent nos. 1 to 5. Since the agreement is of the year 1990 it would cause undue hardship to the respondents if at this distant point of time, respondents nos. 1 to 5 are directed to execute sale deed in favour of the appellant and respondent nos. 6 to 8 at the price which was agreed in the year 1990.
6. However, when the High Court reversed the concurrent findings of the lower Courts, the High Court should have considered the alternative prayer of the appellant and respondent nos. 6 to 8 in ordering refund of the advance payment of Rs.1,40,000/- (Rupees one lakh forty thousand). Since the agreement is of the year 1990 and keeping in view the escalated price of the land and other facts and circumstances of the case, we deem it appropriate to direct respondent nos. 1 to 5 to pay a sum of Rs.17,50,000/- (Rupees seventeen lakhs fifty thousand) which is inclusive of the advance amount of Rs.1,40,000/- (Rupees one lakh forty thousand) to the 4 appellant and respondent nos. 6 to 8. The respondent nos. 1 to 5 shall deposit the amount of Rs.17,50,000/-(Rupees seventeen lakhs fifty thousand) to the credit of the Court of Additional Subordinate Court-II, Erode, Erode District within a period of four months from today. The Supreme Court Registry is directed to draft a decree to this effect. On such deposit being made, the amount of Rs.17,50,000/-(Rupees seventeen lakhs fifty thousand) shall be equally apportioned amongst the appellant and Respondent nos. 6 to
8.
7. It is stated that after the dismissal of the appeal by the First Appellate Court, sale deed was executed by the proceedings of the Executing Court on 02.03.2007 in favour of the appellant and respondent nos. 6 to 8. On deposit of the amount of Rs.17,50,000/- (Rupees seventeen lakhs fifty thousand), the said sale deed dated 02.03.2007 shall stand cancelled and respondents no. 1 to 5 are at liberty to register the decree and appropriate entry be made in the Registrar office in the Encumbrance Register reversing the entry of sale and also in the Revenue Register to enable respondent nos. 1 to 5 to have clear title.
8. The appeal is, accordingly, disposed of.
........................J.
[R.BANUMATHI]
NEW DELHI ........................J.
25TH JULY, 2019 [ A.S. BOPANNA]
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ITEM NO.101 COURT NO.7 SECTION XII
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 11380/2011
L.T.SOMASUNDARAM Appellant(s)
VERSUS
P.SAMPOORNAM AND ORS Respondent(s)
Date : 25-07-2019 This appeal was called on for hearing today. CORAM :
HON'BLE MRS. JUSTICE R. BANUMATHI HON'BLE MR. JUSTICE A.S. BOPANNA For Appellant(s) Mr. Senthil Jagadeesan, AOR Ms. Sonakshi Malhan,Adv.
Ms. Suriti Chowdhary,Adv.
Ms. Mrinal Kanwar,Adv.
For Respondent(s) Mr. Jayanth Muth Raj,Sr.Adv.
Mr. C.K.Sasi,Adv.
Mrs. Malavika Jayanth,Adv. Mr. Sureshan P., AOR UPON hearing the counsel the Court made the following O R D E R The appeal is disposed of in terms of the signed order.
Pending application(s), if any , shall stand disposed of.
(MADHU BALA) (NISHA TRIPATHI) COURT MASTER (SH) BRANCH OFFICER (Signed order is placed on the file)