Madras High Court
J.Thomas vs S.Karuppusamy on 5 September, 2012
2023/MHC/359
A.S.(MD)No.88 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reserving the order Date of Pronouncing the order
19.01.2023 31.01.2023
CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
and
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
A.S.(MD)No.88 of 2012
and
C.M.P.(MD)Nos.103 and 105 of 2023
J.Thomas ... Appellant
vs.
1.S.Karuppusamy
2.S.Subbaiah
3.S.Muthu Kamatchi Nathan
4.A.Mariammal [Died]
5.R.Shanthi
6.Minor Shanmugapriya, W/o.Late Ramesh Kannan
Rep. by her guardian and mother R.Shanthi
[cause title accepted vide order dated 05.09.2012, made
in M.P.(MD)No.1 of 2012]
7.Shanmugavadivu, W/o.Shenbagaraj
8.Gandhimathi, W/o.Kanniraj
9.Bhuvaneshwari, W/o.Ravikumar ... Respondents
[R7 to R9 are brought on record as LRs. of the deceased
4th respondent, vide order dated 13.03.2020, made in
C.M.P.(MD)No.12229 of 2018]
Prayer :- First Appeal filed under Section 96 of C.P.C., against the judgment
and decree, dated 05.07.2012, passed in O.S.No.52 of 2010, on the file of the First
Additional District Court, Thoothukudi.
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A.S.(MD)No.88 of 2012
For Appellant : Mr.S.Meenakshisundaram
Senior Counsel
for Mr.M.Senguvijay
For Respondents 1 to 3 : Mr.B.Kumar
Senior Counsel
for Mr.R.Kannan
For Respondents 5 and 6 : Mr.K.Poovalingam
For Respondents 7 to 9 : No Appearance
JUDGMENT
DR.G.JAYACHANDRAN, J.
This Appeal Suit is filed by the fourth defendant being aggrieved by the judgment and decree passed by the trial Court for specific performance of the contract entered between the plaintiffs/respondents 1 to 3 with one Ramesh Kannan [since deceased]. The respondents 1 to 3 are the legal heirs of the said Ramesh Kannan.
2. The brief facts of the case as found in the pleadings runs as under:-
2.1. The suit schedule property was purchased by Ayyakutti Achari on 10.03.1975 from S.K.S.Rajamani Nadar. Ayyakutti Achari died intestate leaving behind his wife, sole son Ramesh Kannan and three daughters. The female descendants namely, wife and daughters released their right in the property in favour of the male descendants Ramesh Kannan through a registered release deed, dated 24.03.2003. Thus, Ramesh Kannan became the absolute owner of the suit schedule https://www.mhc.tn.gov.in/judis 2/26 A.S.(MD)No.88 of 2012 property. While so, during his lifetime, he entered into an agreement of sale on 28.05.2007 with the plaintiffs for consideration of Rs.75,00,000/-. A sum of Rs.10,00,000/- was received as advance towards the sale consideration. At the time of sale agreement, a portion of the property was already in possession of M/s.Sankareswari Agencies, a Partnership Firm, consisting of the plaintiffs as its Partners. Another portion of the suit property was leased out to one Nevil, who was running a business under the name and style of Mario Car Jewels. Two years prior to the sale agreement, dated 28.05.2007, the said Nevil has inducted J.Thomas [fourth defendant in the suit/appellant herein] and admittedly, the said J.Thomas running a business in a portion of the suit property under the name and style of Mario Car Jewels. As per the terms of the sale agreement, Ramesh Kannan, the vendor agreed to vacate the tenants within six months and hand over the vacant possession.
However, Ramesh Kannan within a period of six months was not able to vacate the fourth defendant, who was occupying a portion of the suit property.
2.2. On 30.12.2008, the vendor Ramesh Kannan issued a notice through his counsel, expressing his inability to vacate the tenants and came forward to cancel the sale agreement. The plaintiffs, in turn, were not agreeable for the unilateral cancellation of the sale agreement, but ready and willing to perform their part of contract and waive the performance of the obligation vested on the vendor to hand over the vacant possession after evicting the tenants. While so, the said Ramesh https://www.mhc.tn.gov.in/judis 3/26 A.S.(MD)No.88 of 2012 Kannan after cancelling the sale agreement unilaterally and informing the same through a Telegram, dated 20.01.2009, entered into a sale agreement with the fourth defendant on 21.02.2009 and informed the plaintiffs that the rent for the premises occupied by the plaintiffs henceforth should be paid to the fourth defendant.
2.3. A reply dated 23.05.2009 to this intimation was sent by the plaintiffs to the vendor Ramesh Kannan pointing that there cannot be an unilateral cancellation of the sale agreement and the further agreement with the fourth defendant is a fraudulent one. Hence, rent need not be tendered to the fourth defendant. While the parties were exchanging notice between themselves, the vendor Ramesh Kannan died on 28.10.2009. The suit for specific performance to enforce the sale agreement dated 28.05.2007 was instituted by the plaintiffs against the legal heirs of the deceased Ramesh Kannan and the appellant J.Thomas as fourth defendant since he was in possession of a part of the property and running a business under the name and style of Mario Car Jewels.
2.4. At the time of filing the suit, the third defendant Shanmugapriya, daughter of Ramesh Kannan was a minor. The first defendant, the mother of Ramesh Kannan, filed a written statement admitting the sale agreement and receipt of Rs.10,00,000/- as advance as against the total consideration of Rs.75,00,000/-. However, the contingent of vacating the tenant and handing over the vacant https://www.mhc.tn.gov.in/judis 4/26 A.S.(MD)No.88 of 2012 possession were denied and the ready and willingness of the plaintiffs were also doubted. Referring the suit for partition in O.S.No.37 of 2010 filed by her, seeking share in the property she questioned the right of Ramesh Kannan to sell the entire property of Ayyakutti Achari, ignoring her 1/3rd share in the property, being the wife of Ayyakutti Achari. It was contended by the first defendant that the contract became unenforceable, since the tenants have refused to vacate. Further, she has also contended that the subsequent agreement with the fourth defendant/J.Thomas is a fraudulent agreement, her son, Ramesh Kannan is a drug addict exploited by the fourth defendant. By taking advantage of borrowing of Rs.30,00,000/- from him, the fraudulent agreement for Rs.65,00,000/- has been obtained from Ramesh Kannan. Claiming 1/3rd share in the property, as first class heir, the suit for specific performance filed by the plaintiffs was resisted by the first defendant.
2.5. The written statement filed on behalf of the defendants 2 and 3, admit the sale agreement and denying the claim of 1/3rd share in the suit property by the first defendant. These two defendants admit release deed in favour of Ramesh Kannan on 24.03.2003 had expressly recorded their willingness to execute the sale deed in favour of the plaintiffs on receipt of the balance sale consideration and apportioning 2/3rd of it towards their share.
2.6. The fourth defendant made a counter claim in his written statement relying upon the unilateral cancellation of the earlier agreement with the plaintiffs and the subsequent agreement with him by Ramesh Kannan for consideration of https://www.mhc.tn.gov.in/judis 5/26 A.S.(MD)No.88 of 2012 Rs.65,00,000/-. Stating that he is always ready and willing to pay the balance sale consideration of Rs.35,00,000/-, the fourth defendant sought for specific performance of the agreement he alleged to have entered with Ramesh Kannan on 21.02.2009.
3. With this rival pleadings, the trial Court framed the following issues:-
''(i) Whether Mr.Ramesh Kannan executed the sale agreement dated 28.05.2007 in favour of plaintiff ?
(ii) Whether the plaintiff is always ready and willing to perform his part of contract?
(iii) Whether the plaintiff is entitled for specific performance in respect of plaint schedule property?
(iv) Whether the defendants 1 to 3 executed any sale agreement in favour of the 4th defendant?
(v) Whether the 4th defendant always ready and willing to perform his part of contract?
(vi) Whether the 4th defendant is entitled for specific performance in respect of schedule property as mentioned in the written statement?
(vii) Whether the plaintiff is entitled to get any other reliefs?
(viii) Whether agreement for sale dated 28.05.2007 was terminated as it is unenforceable?
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(ix) Whether the agreement for sale dated 21.02.2009 is a genuine?''
4. The first plaintiff S.Karuppusamy mounted the witness box. 11 Exhibits were relied by the plaintiffs. Five witnesses were examined on behalf of the defendants. J.Thomas/the appellant herein was examined as D.W.3. Eight Exhibits were marked on behalf of the defendants.
5. The trial Court allowed the suit with costs. The decree of specific performance was granted in favour of the plaintiffs.
6. Being aggrieved by the judgment and decree, allowing the suit for specific performance filed by the plaintiffs and dismissing his counter claim for similar relief, this appeal is filed by the fourth defendant, the subsequent agreement holder.
7. Pending appeal, the first defendant A.Mariammal died and her legal heirs are brought on record.
8. It is pertinent to record the fact that after the decree, the plaintiffs have deposited the sale consideration and the defendants 1 to 3/the respondents 1 to 3 herein have withdrawn the money except Rs.30,00,000/-, which is the part of sale consideration received from the appellant subsequent to the suit sale agreement. https://www.mhc.tn.gov.in/judis 7/26 A.S.(MD)No.88 of 2012
9. In this appeal, the fourth defendant has contended that in Exs.A.2 and A.3, there is no whisper about the ready and willingness by the plaintiffs. While so, after expiry of six months period, time being the essence of the contract, the vendor has terminated the agreement and thereafter, entered into a fresh agreement with the appellant on 21.02.2009 and substantial amount has been received towards the sale consideration. While so, the trial Court failed to take note of the fact that the subsequent agreement is after the valid termination of the earlier agreement and therefore, the fourth defendant is entitled to the counter claim of specific performance.
10. He also contended that before entering into an agreement with him, the vendor sent a Telegram [Ex.B.6], dated 20.01.2009, intimating the termination of the contract. Only thereafter, the Partnership Firm run by the plaintiffs caused a notice [Ex.A.4] dated 16.04.2009, tendering the rent from the month of March 2009 onwards by way of Demand Draft. The response of the vendor through his counsel by way of reply notice [Ex.A.5], directing the Firm consisting of the plaintiffs as its partner to pay the rent to the appellant and attorn the tenancy in his favour not been considered by the Court below.
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11. The learned Senior Counsel appearing for the appellant submitted that the trial Court erred in entertaining the suit for specific performance and granting relief without taking note of the fact that after expiry of the six months period prescribed for performance of the contract, the plaintiffs did not immediately seek for specific performance, but waited till 10.01.2009 and there is no plausible explanation for the delay. Further, though the cause of action for filing the suit for specific performance arose as early as on 20.01.2009, the suit for specific performance filed nearly 1 ½ years thereafter and to show the ready and willingness, the balance amount was not tendered immediately after filing the suit, but was deposited only after the appellant filed his counter claim.
12. Pending appeal, after 11 years, the appellant has also come forward to file two Miscellaneous Petitions. One is to grant leave to raise additional ground for maintainability of the suit and another one is to amend his written statement.
13. The merit of these two petitions will be discussed later.
14. On considering the grounds of appeal, the following points arise for determination:-
(i) Whether the plaintiffs were ready and willing to perform their part of contract to have the benefit of Ex.A.1 Sale Agreement, dated 28.05.2007?
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(ii) Whether the agreement entered between the plaintiffs and Ramesh Kannan got validly terminated through Ex.B.6 Telegram notice, dated 20.01.2009?
(iii) Whether the fourth defendant/appellant can seek counter claim against the co-defendants [Defendants 1 to 3] in a suit filed by the plaintiffs with whom the fourth defendant had no privity of contract?
(iv) Whether the suit is maintainable without seeking the relief of declaration that the termination of the contract by the deceased Ramesh Kannan is invalid, is the additional ground raised by the appellant in one of his petitions filed after 11 years of the appeal. Since it is question of law, the same has been taken up for consideration, though the ground is not raised in the pleadings nor in the memorandum of grounds of appeal filed on 21.08.2012.
15. Heard the counsels. Records perused.
16. The sale agreement, which is the subject matter of the suit, is dated 28.05.2007. The said document is marked as Ex.A.1. The execution of the sale agreement by Ramesh Kannan in favour of the plaintiffs is admitted by all the parties concerned. The recital of this sale agreement indicates that the property was originally purchased by the father of the vendor Ramesh Kannan and after his death, the other legal heirs have released their right in favour of the vendor. The released deed duly executed before the Sub-Registrar, Thoothukudi, vide Document No.63 of 2003, dated 24.03.2003.
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17. Though in the written statement of the first defendant the said fact is not mentioned, the other two defendants have admitted the release deed and recognise the absolute right of the vendor to alienate the property. Even the first defendant, who has claimed 1/3rd share in the property in her written statement and refer about the suit filed by her, in the course of the trial, she has mounted the witness box, examined as D.W.1 and in the cross-examination, she admits about the release deed executed in favour of her son on 24.03.2003 in respect of the suit property. In cross-examination, she also admits that the plaintiffs are running a Partnership Firm under the name and style of M/s.Sankareswari Agency for the past 20 years and the fourth defendant after evicting Nevil is running Mario Car Jewels in a portion of the property. She also admitted about Ex.A.6, Notice, dated 02.02.2010, issued by her Advocate on her instructions claiming that subsequent agreement with J.Thomas is illegal and her son, a drug addict being exploited by the other defendants.
18. The recital found in Ex.A.1 Sale Agreement clearly impose a condition on the vendor to evict the tenants and to hand over vacant possession within a period of six months and get the sale agreement registered. Obviously, in this case, while a portion of the land being leased out to the plaintiffs and they are in possession for the past 20 years, the portion, which was let out to one Nevil been occupied by the fourth defendant few years before the sale agreement and he admits in the cross- https://www.mhc.tn.gov.in/judis 11/26 A.S.(MD)No.88 of 2012 examination that he is now running the business under the name and style of Mario Car Jewels. Thus, from the facts and evidence, it is clear that the fourth defendant, who is in occupation of a portion of the suit schedule property, has refused to vacate that portion, which has led to delay in the execution of the sale agreement [Ex.A.1]. This has been candidly admitted by the vendor in his notice, dated 30.12.2008, marked as Ex.A.2, for which, the plaintiffs have suitably replied on 10.01.2009. The plaintiffs have waived the right to enforce the term of the contract regarding handing over the vacant possession and were ready to get along with the agreement with the fourth defendant as a tenant. However, the vendor for the reason best known, has caused termination notice by way of Telegram [Ex.B.6], dated 20.01.2009 and had entered into an agreement with the fourth defendant, who in fact frustrated the first agreement. The person, who has frustrated the contract wants to take advantage by his mischief and sought for specific performance as counter claim against the co- defendants in the suit filed by the plaintiffs for the same relief. The evidence indicates that the agreement which the appellant relies upon lacks credibility and genuineness.
19. The learned Senior Counsel appearing for the appellant relying upon the judgement of the Supreme Court rendered in Mohinder Kaur vs. Sant Paul Singh (2019 (9) SCC 358) submitted that the agreement for sale cancelled by the vendor and duly intimated to the plaintiffs. Ex.A.2, dated 30.12.2008 and Ex.A.3, https://www.mhc.tn.gov.in/judis 12/26 A.S.(MD)No.88 of 2012 dated 10.01.2009 are the notices sent by the vendor will clearly show that the vendor has expressed in unequivocal term that the agreement stands cancelled. Therefore, the plaintiffs ought to have sought for relief declaring the said cancellation as bad in law in addition to the relief of specific performance. Having failed to seek relief of declaring the cancellation as bad in law, the suit for specific performance is not maintainable.
20. The above said contention of the learned Senior Counsel appearing for the appellant is unsustainable, since the case of the plaintiffs as found in the pleadings as well as the evidence indicates that the vendor in Ex.A.2 [notice] has expressed his inability to vacate the tenant and hand over the vacant possession as agreed under Ex.A.1. His attempt to get the tenants vacated failed and petition R.C.O.P.No.31 of 2008 to vacate them is filed before Principal District Munsif Court, Thoothukudi, and the same was pending and he is unable to ascertain when the litigation will reach the logical end. Therefore, he has opt to cancel the agreement or offer to sell the property without handing over the vacant possession. To this notice, the plaintiffs have sent reply Ex.A.3 wherein, it is stated that the vendor is estopped from unilateral withdrawal from contract or alter the terms of agreement. The plaintiffs have further expressed their ready and willingness to wait till the litigation ends and vacant possession is given to them.
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21. It is pertinent to take note of the fact that M/s.Sankareswari Agencies is a partnership firm consisting the plaintiffs as its partners. Portion of the suit property already leased out to the said partnership firm and after entering into the agreement Ex.A.1, the original deeds were handed over to the plaintiffs. From the partnership firm the vendor was collecting monthly rent, but after the exchange of notices Ex.A.2 and Ex.A.3, the vendor has refused to receive rent. Therefore, the firm of the plaintiffs had caused Ex.A.4 notice, dated 16.04.2009 along with a Demand Draft for the rent amount. To this notice, the vendor has sent a reply Ex.A.5, wherein, the vendor has stated that he has issued a telegram to the plaintiffs on 20.01.2009 (Ex.B.6) cancelling the agreement and thereafter, entered into agreement with the fourth defendant (J.Thomas) on 21.02.2009. Hence, rent to be paid to J.Thomas. In this reply, the vendor had stated that the agreement with the plaintiffs was cancelled at the instance of the plaintiffs. This is contrary to his own notice Ex.A.2. Further, the perusal of Ex.B.6 Telegram referred in Ex.A.5 reads as below:-
''The sale agreement dated 28/05/2007 is hereby terminated. Hence, You inform to my client the mode of repayment of advance amount.''
22. After handing over the title deed and portion of the property, the vendor has chosen to cancel the agreement unilaterally and soon thereafter, had entered into an agreement with the fourth defendant for a lesser consideration of Rs.65,00,000/-.
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23. In Mohinder Kaur's case [cited supra], the buyer agreed to pay the balance sale consideration and complete the contract within 15 days on receipt of the intimation about the redemption of the property. In spite of intimation that the property redeemed from mortgage, the buyer failed to perform his part of agreement, but insisted on production of NOC and other documents. Hence, the agreement was cancelled with due notice and the vendor entered into a sale agreement with a third party. In the said context, the Hon'ble Supreme Court held that, ''6. We have considered the submissions on behalf of the parties. It is an undisputed fact that the suit property stood redeemed from mortgage on 4-7-1989. The appellant sent due intimation by registered post to the respondent on 27-7-1989 and also provided him with a photocopy of the release deed, requiring the respondent to take steps for execution of the sale deed. The respondent by reply dated 2-8-1989 insisted on the no-dues certificate, denying receipt of the release deed. The respondent then gave a power of attorney on 2-11-1989 to P.W.
1. The witness was naturally unaware of the preceding events and denied receipt of the notice dated 27-7-1989 itself. The witness was therefore also incompetent to deny receipt of photocopy of the release documents by the respondent. It was for the respondent to establish his readiness and willingness for execution of the agreement by entering the witness box and proving his capacity to pay the balance consideration amount. Except for the solitary statement in the plaint no evidence whatsoever was led on behalf of the respondent with regard to the same, if P.W.1 was competent to depose with regard to the https://www.mhc.tn.gov.in/judis 15/26 A.S.(MD)No.88 of 2012 same because these were facts which had to be personal to the knowledge of the respondent alone. Had the witness even led any documentary evidence on behalf of the respondent, in support of the plea for readiness and willingness on part of the respondent, different considerations may have arisen. The witness also sought to deny any knowledge regarding the cancellation of the agreement on 1-9-1989.
7. In Janki Vashdeo [Janki Vashdeo Bhojwani v.
Indusind Bank Ltd., (2005) 2 SCC 217], it was held that a power-of-attorney holder, who has acted in pursuance of the said power, may depose on behalf of the principal in respect of such acts but cannot depose for the principal for the acts done by the principal and not by the power-of-attorney holder. Likewise, the power-of-attorney holder cannot depose for the principal in respect of matters of which the principal alone can have personal knowledge and in respect of which the principal is entitled to be cross-examined. In our opinion, the failure of the respondent to appear in the witness box can well be considered to raise an adverse presumption against him as further observed therein as follows : (SCC p. 223, para 15) ''15. Apart from what has been stated, this Court in Vidhyadhar v. Manikrao [Vidhyadhar v. Manikrao, (1999) 3 SCC 573] observed at SCC pp. 583-84, para 17 that:
'17. Where a party to the suit does not appear in the witness box and states his own case on https://www.mhc.tn.gov.in/judis 16/26 A.S.(MD)No.88 of 2012 oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct.…' '' ''
24. The facts of the case in hand is entirely different. The vendor in this case wanted to alter the terms of agreement unilaterally since he was not able to vacate the tenant as agreed. He cancelled the agreement unilaterally for his own default and caused a Telegram before entering into an agreement with the fourth defendant. While the cancellation of the agreement unilaterally taking advantage of his own fault is non est in the eye of law, the subsequent agreement with the fourth defendant has no legs to stand. Unless the cancellation of the earlier agreement is apparently valid, the subsequent agreement with third party deserved to be ignored.
25. The other judgment relied by the learned Senior Counsel appearing for the appellant to buttress his submission is the oft quoted judgement of the Hon'ble Supreme Court rendered in I.S.Sikandar vs. K.Subramani and others (2014 (1) LW 47). In the case cited, the plaintiff failed to perform his part of contract within the time prescribed despite the extension of time at the request of the plaintiff. The failure to perform the contract was on the part of the plaintiff and pointing out his failure the contract was terminated. In the said context, the Hon'ble Supreme Court discussing the fact held as follow:-
''17. ...... It is an undisputed fact that there is an https://www.mhc.tn.gov.in/judis 17/26 A.S.(MD)No.88 of 2012 agreement of sale executed by Defendant Nos.1-4 dated 25-12-1983 in favour of the plaintiff agreeing to sell the schedule property in his favour for a sum of Rs 45,000/- by receiving an advance sale consideration of Rs.5,000/- and the plaintiff had further agreed that the remaining sale consideration will be paid to them at the time of execution of the sale deed. As per Clause 6 of the agreement of sale, the time to get the sale deed executed was specified as 5 months in favour of the plaintiff by the Defendant Nos.1-4, after obtaining necessary permission from the competent authorities such as the Urban Land Ceiling Authority and the Income Tax Department for execution and registration of the sale deed at the cost and expenses of the plaintiff. If there is any delay in obtaining necessary permission from the above authorities and the payment of layout charges, the time for due performance of agreement shall further be extended for a period of two months from the date of grant of such permission. In the instant case, permission from the above authorities was not obtained by Defendant Nos.1-4. The period of five months stipulated under Clause 6 of the agreement of sale for execution and registration of the sale deed in favour of the plaintiff had expired. Despite the same, the Defendant Nos.1-4 got issued a legal notice dated 6-3-1985 to the plaintiff pointing out that he has failed to perform his part of the contract in terms of the agreement of sale by not paying the balance sale consideration to them and getting the sale deed executed in his favour and called upon him to pay the balance sale consideration and get the sale deed executed on or before 18-3-1985. The plaintiff had issued reply https://www.mhc.tn.gov.in/judis 18/26 A.S.(MD)No.88 of 2012 letter dated 16-3-1985 to the advocates of Defendant Nos.1-4, in which he had admitted his default in performing his part of contract and prayed time till 23-5-1985 to get the sale deed executed in his favour. Another legal notice dated 28-3-1985 was sent by the first defendant to the plaintiff extending time to the plaintiff asking him to pay the sale consideration amount and get the sale deed executed on or before 10-4-1985, and on failure to comply with the same, the agreement of sale dated 25-12-1983 would be terminated since the plaintiff did not avail the time extended to him by Defendant Nos.1-4. Since the plaintiff did not perform his part of contract within the extended period in the legal notice referred to supra, the agreement of sale was terminated as per notice dated 28-3-1985 and thus, there is termination of the agreement of sale between the plaintiff and Defendant Nos.1-4 w.e.f. 10-4-1985. As could be seen from the prayer sought for in the original suit, the plaintiff has not sought for declaratory relief to declare the termination of agreement of sale as bad in law. In the absence of such prayer by the plaintiff the original suit filed by him before the trial court for grant of decree for specific performance in respect of the suit schedule property on the basis of agreement of sale and consequential relief of decree for permanent injunction is not maintainable in law. Therefore, we have to hold that the relief sought for by the plaintiff for grant of decree for specific performance of execution of sale deed in respect of the suit schedule property in his favour on the basis of non-existing agreement of sale is wholly unsustainable in law. .....'' https://www.mhc.tn.gov.in/judis 19/26 A.S.(MD)No.88 of 2012
26. Therefore, the evidence let in by the parties in this case establish the fact that the sale agreement Ex.A.1 was entered on 28.05.2007 between the parties with specific understanding that the vendor should vacate the tenant and hand over the vacant possession before concluding the contract. This condition to be complied within six months from the date of contract i.e., by 28.11.2007. The vendor through Ex.A.2 had expressed his difficulty in vacating the tenant and giving vacant possession. He sought termination of contract or to opt to buy the property without vacant possession. The plaintiffs (buyers) had made clear through Ex.A.3 that they are ready to wait till the vendor gets the possession from his tenant. In spite of this reply, on his own Ramesh Kannan terminated the agreement sending a Telegram and entered into agreement with the fourth defendant, who by that time, had taken possession of the portion of the property from the tenant called Nevil. While the termination notice through Telegram itself clouded with doubt and legal infirmity, the vendor or the subsequent purchaser cannot take advantage of vendors' own breach and deprive the lawful right of the agreement holder.
27. Further, in this case, the appellant, who claims to be an agreement holder for a consideration of Rs.65,00,000/- as against the earlier agreement with the plaintiffs for Rs.75,00,000/-, had not chosen to file suit for specific performance, pleading his ready and willingness. In the suit filed by the agreement holder earlier in point of time, he has filed written statement with counter claim.
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28. The learned Senior Counsel for the respondents 1 to 3/plaintiffs 1 to 3 pleaded that in a suit for specific performance, one of the defendants cannot raise a counter claim against the co-defendants. In support of his argument, the learned Senior Counsel relied upon the judgment of the Hon'ble Supreme Court rendered in Rohit Singh and others vs. State of Bihar (now State of Jharkhand) reported in AIR 2007 SC 10.
29. In the above case, the Hon'ble Supreme Court has categorically held that a counter claim could be made though based on different cause of action other than the one put in the suit by the plaintiffs, but a counter claim has necessarily to be directed against the plaintiffs in the suit, though incidentally or along with it, may also claim relief against co-defendants in the suit. Counter claim directly and solely against co-defendants cannot be filed. By filing a counter claim, a litigation cannot be converted into a inter-pleader suit.
30. In the case in hand, we find that the appellant, who is the fourth defendant in the suit, has filed a written statement making counter claim solely against the co-defendants 1 to 3. As far as the co-defendants are concerned, in their written statements as well through their testimony deny the validity of the sale agreement held by the fourth defendant. Particularly, the first defendant in her https://www.mhc.tn.gov.in/judis 21/26 A.S.(MD)No.88 of 2012 written statement claims that the fourth defendant exploiting the drunkardness of her son (vendor) had created document Ex.B.1 misrepresenting the loan advanced as payment towards part sale consideration. The other two defendants have filed written statement coming forward to execute the sale deed in favour of the plaintiffs as per the sale agreement, if the plaintiffs are ready to take the property without insisting for vacant possession of the part of the property held by the fourth defendant.
31. Ex.B.1 Sale agreement, which the appellant wants specific performance as counter claim as against the co-defendants, on plain reading indicates that the sale consideration for the property is agreed as Rs 65,00,000/-. Out of which, on the date of agreement i.e., 21.02.2009 a sum of Rs.20,00,000/- paid as cash and Rs.10,00,000/- by Bankers Cheque. No documentary proof for the cash payment or payment through banker's cheque filed by the appellant. The reason for lesser sale consideration than the earlier sale agreement not explained by the appellant. In his agreement the period to perform the contract is fixed as six months. But, there is no plausible explanation for not initiating independent proceedings to enforce the said agreement before or after expiry of the period. In the written statement filed on 05.10.2010, for the first time, the fourth defendant by way of counter claim, has made an attempt to get the equitable relief of specific performance without any iota of evidence to show that he hold a valid agreement and was ready and willing to perform his part of contract. Therefore, the case of the appellant canvassed in the suit filed by the respondents 1 to 3 stands unproved.
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32. Pending appeal, the appellant, after 11 years, has filed two Miscellaneous Petitions. C.M.P.(MD)No.103 of 2023 is to raise additional grounds for maintainability of the suit and C.M.P.(MD)No.105 of 2023 is to amend the written statement with counter claim. Inordinate delay in filing these two petitions per se sufficient to dismiss it in limine. Even on facts, the petition to raise additional ground is in respect of not seeking the relief of declaration that the termination of the contract is illegal and void. This issue has been elaborately discussed and answered in the earlier part of this judgment and therefore, requires no further deliberation.
33. As far as C.M.P.(MD)No.105 of 2023 is concerned, the appellant wants to amend the written statement by inserting two paragraphs and amend the prayer to direct the plaintiffs and the defendants 1 to 3 to execute the sale deed regarding the suit schedule property in favour of the fourth defendant after receiving the balance consideration.
34. The appellant is prompted to file this application in view of the fact that after the decree passed by the trial Court, the defendants 1 to 3 have executed the sale deed in favour of the plaintiffs on 06.08.2021. As on date, the title has passed to the plaintiffs/respondents 1 to 3. Since this Court after appreciating the evidence has found that the sale agreement [Ex.A.1] not terminated in the manner known to law and the unilateral declaration by the vendor to terminate the agreement for his https://www.mhc.tn.gov.in/judis 23/26 A.S.(MD)No.88 of 2012 own breach is non-est in law, the plaintiffs are entitled for the relief of specific performance. The decree has been passed by the trial Court based on the evidence executed by the judgment debtors. The execution of sale deed was consequence to the decree passed by the competent Court. The defendant, who lost the suit, cannot improve his case by amending the written statement after passing of decree.
35. The contention of the learned Senior Counsel appearing for the appellant submitted that the sale transaction has come into existence during the pendency of the suit hence, amendment of prayer is admissible on the premise that the appeal is in continuation of the suit, therefore, the sale deed is invalid in the eye of law. Any act tantamounting the execution of a decree pending appeal, is valid unless the decree is set aside by the appellate Court.
36. In the considered view of this Court, the appellant herein has no locus to maintain this appeal, since he has no privity of contract with the plaintiffs. The counter claim against the co-defendants in a suit filed for specific performance is not maintainable as held by the Hon'ble Supreme Court in Mohinder Kaur's case [cited supra]. No substantial relief sought against the plaintiffs in the counter claim. While so, after the decree, the petition to amend the prayer belatedly after 11 years of the pendency of the appeal, clearly exposes the malicious intent of the appellant to perpetuate the litigation.
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37. At the risk of repetition, this Court records that the appellant has chosen to maintain this wagering litigation even without any proof for payment of consideration and no locus to maintain the relief of specific performance as a counter claim. Therefore, C.M.P.(MD)Nos.103 and 105 of 2023 are dismissed along with the Appeal Suit in A.S.(MD)No.88 of 2012 with exemplary costs of Rs.30,000/- payable by the appellant to the respondents 1 to 3/plaintiffs.
38. In the result, the trial Court's judgment and decree passed in O.S.No.52 of 2010 is confirmed and this Appeal Suit is dismissed with costs.
NCC : Yes [G.J., J.] [S.M., J.]
Index : Yes 31.01.2023
Internet : Yes / No
SMN2
To
1.The First Additional District Court,
Thoothukudi.
2.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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A.S.(MD)No.88 of 2012
DR.G.JAYACHANDRAN, J.
and
SUNDER MOHAN, J.
SMN2
PRE-DELIVERY JUDGMENT MADE IN
A.S.(MD)No.88 of 2012
DATED : 31.01.2023
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