Madras High Court
Subiksha Housing (P) Ltd vs T.Radha (Since Deceased) on 8 June, 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved On : 111722 Pronounced On: 010323 CORAM THE HON'BLE Mr. JUSTICE G.CHANDRASEKHARAN C.S.No.570 of 2013 Subiksha Housing (P) Ltd., Represented by its Managing Director, Mr.K.Balaji, Having office at D.No.3/2, Lambeth Avenue, Off Bawa Road, Abhiramapuram, Chennai – 600 018. ...Plaintiffs Vs.
1.T.Radha (since Deceased)
2.T.Senthilnathan
3.T.Ramamoorthy
4.Janaki
5.T.Mohan
6.Sathyavathi
7.T.Krishnakumar
8.T.Premkumar
9.T.Karpagam (Defendants 2 to 5 re recognized and defendants 6 to 9 are brought on record as legal representatives of the deceased 1st defendant as per order dated 08.06.2016 https://www.mhc.tn.gov.in/judis 1/30 in Application Nos.1542 and 1543 of 2016) ...Defendants PRAYER: This is a suit filed under Order IV Rule 1 of the Original Side Rules Read with Order VII Rule 1 of the C.P.C.,
a)Directing the defendants herein to execute and register the sale deed in favour of the plaintiff, free from encumbrances, on the date to be fixed by this Court and in the event of default, the Assistant Registrar (O.S), High Court of Judicature at Madras, to execute the sale deed in respect of the suit schedule property, in favour of the plaintiff or its nominee or nominees and consequently, deliver vacant possession as per the sale agreement dated 11.11.2012 or in the alternate direct the defendants herein to refund the advance sale consideration of Rs.30,00,000/- together with interest at the rate of 18% per annum and to award compensation and damages that may be fixed by this Court from the date of plaint till the day of realization;
b)Granting a permanent injunction restraining the defendants, their men, agents, servants or anyone claiming any right either under or through them from in any manner, alienating or encumbering the suit schedule property in any manner, in favour of any third parties; and
c)Awarding the costs of the suit to the plaintiff as against the defendants; and
d)Any further or other relief or reliefs this Court may deed fit and proper in the facts and circumstances of the case.
For Plaintiffs : Mr.K.V.Babu for
M/s.R.Akshaya
For Defendants : Mr.S.Thiruvenkadam for
Mr.S.Annamalai for D2 to D5
E.C.Ramesh for D6 to D9
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JUDGMENT
Plaintiff is a company engaged in building and promoting properties in and around Chennai. In the course of business, plaintiff came across defendants, who agreed to sell the suit schedule property admeasuring about 2 Grounds 55 sqft. The sale agreement dated 11.11.2012 was entered into between the plaintiff and defendants for a total sale consideration of Rs.6,50,00,000/-. A sum of Rs.50,000/- was paid to each defendants on 11.11.2012 and further sum of Rs.5,50,000/- was paid on 07.12.2012. Totally a sum of Rs.30,00,000/- was paid by the plaintiff to the defendants and there was acknowledgement in the agreement itself. Defendants handed over all the original documents of the suit property. Suit property originally belonged to Late V.Thandavarayan, husband of the first defendant and father of the defendants 2 to 5. V.Thandavarayan died intestate on 08.03.1991 leaving behind the defendants 1 to 5 and one more son late Thirugnanasambandam. Thirugnanasambandam died intestate on 14.03.2003 leaving behind his wife and children namely defendants 6 to 9. The legal heirs of V.Thandavarayan inherited the suit property. As per the sale agreement dated 11.11.2012, the defendants shall receive the balance sale consideration and register the sale deed within three months from the date of the defendants vacating the tenants and handing over the premises. https://www.mhc.tn.gov.in/judis 3/30 The defendants also agreed that they would convince the legal heirs of late Thirugnanasambandam's family and make them sign the sale deed or the power of attorney. They also undertook to evict the tenants. However, the defendants have not complied with any of the conditions, despite repeated reminders from the plaintiff for completion of sale. Therefore, a legal notice dated 07.03.2013 was issued to the defendants. The defendants refused to receive the notice. Under the circumstances, this suit is filed for the relief of specific performance of contract on the basis of the sale agreement dated 11.11.2012 or in the alternative, for refund of advance sale consideration of Rs.30,00,000/- with interest, compensation, damages and for costs.
2.The case of the 5th defendant is as follows:-
It is admitted that sale agreement for the sale of 2 grounds and 55 sqft for a total consideration of Rs.6,50,00,000/- was executed and a sum of Rs.30,00,000/- was received by the defendants 1 to 5. The defendants had also handed over original sale deed and other relevant records to the plaintiff at the time of sale agreement. Thandavarayan died intestate on 14.03.2003 leaving behind defendants 6 to 8 as his legal heirs. There is no relationship of landlord and tenant between the defendants 2 to 5 and the tenants in the suit property. Therefore there is no question of defendants undertaking to https://www.mhc.tn.gov.in/judis 4/30 vacate the tenants in the suit property. When the defendants 2 to 5 are not in possession of the suit property, question of obtaining patta from the revenue officials will not arise. Compromise with the legal heirs of Thirugnanasambandam was not possible. They are alone enjoying the entire suit property. Defendants 6 to 9 are not allowing the defendants 2 to 5 to enter the suit property. They want to swallow the property without giving due share to defendants 2 to 5. Defendants 2 to 5 are not in a position to perform their part and complete the sale in favour of the plaintiff. Defendants 2 to 5 have always insisted the plaintiff to come forward to register the sale deed in respect of their 5/6 share of the suit property, after paying the balance sale consideration. In this regard second defendant gave a complaint to the Commissioner of Police, Chennai on 26.08.2013. The Police advised them to settle the issue amicably. Fifth defendant also gave a complaint to the Commissioner of Police on 04.09.2013. However, the plaintiff is adopting delaying techniques from 2012 onwards. Defendants 2 to 5 are denied the fruits of the sale consideration. First defendant/Radha mother of defendants 2 to 5 bequeathed her share to the defendants 2 to 5 through a registered Will dated 12.02.2013. Second and fifth defendants made a complaint against the sixth defendant before the Assistant Commissioner of Police, Teynampet on 10.01.2015 to settle their 5/6 share in the suit property. Despite the efforts taken by the defendants 2 to 5, plaintiff has not https://www.mhc.tn.gov.in/judis 5/30 come forward to pay the balance amount to the defendants and execute the sale deed. Thirugnanasambandam was not alive when the sale agreement was executed. However, he was wrongly shown as a vendor in the sale agreement. Therefore, the sale agreement is void ab initio and not legally enforceable. Defendants 2, 3 and 4 filed memo adopting the written statement of the fifth defendant.
3.It is seen from the written statement of the sixth defendant that the suit property was allotted to sixth defendant's father-in-law late Thandavarayan by Co-operative Housing Board in the year 1962. 80% of the sale price was paid by sixth defendant's husband late Thirugnanasambandam from his salary. No amount was paid by defendants 1 to 5 or Thandavarayan. After retirement in 1972, Thandavarayan left to Kavanoor Village, along with the defendants 2 to 5. All other properties of Thandavarayan are in joint possession of the defendants 2 to 5 and 6th defendant's husband. Defendants 2 to 5 did not agree for partition of other properties. However, they demand share in this suit property. Sixth defendant's husband got loan, paid vacant land cost and put up ground floor and first floor construction. Sale agreement would reveal that Thirugnanasambandam is not a party to the sale agreement. Defendants 6 to 9 are also not parties to the sale agreement. Therefore plaintiff cannot https://www.mhc.tn.gov.in/judis 6/30 enforce the sale agreement against the defendants 6 to 9. Plaintiff has not approached the Court with clean hands. This suit is not maintainable against the defendants 6 to 9 and is liable to be dismissed.
4.Based on the pleadings, the following issues are framed for trial:-
i)Whether the plaintiff is ready and willing to pay the balance sale consideration in terms of the agreement dated 11.11.2012?
ii)Whether the plaintiff is entitled to the relief of Specific Performance of the agreement dated 11.11.2012?
iii)Whether the plaintiff is entitled for the relief of permanent injunction as prayed for?
iv)Whether the plaintiff is entitled for the alternative relief of return of sale consideration of Rs.30,00,000/- together with interest @ 18% per annum as sought for in the case of refusal of the main relief?
v)Whether suit unregistered sale agreement executed between the plaintiff and defendants 1 to 5 without adding other co-owners of the suit property defendants 6 to 9 is legally enforceful or not?
vi)Whether suit unregistered sale agreement entered between the plaintiff and defendants 1 to 5 are would bind upon the defendants 6 to 9?
vii)To what other relief the plaintiff is entitled to?
https://www.mhc.tn.gov.in/judis 7/30
5.P.W.1 was examined, Ex.P1 to P10 were marked. D.W.1 and D.W.2 were examined, Ex.D1 to D12 were marked.
6.The learned counsel for the plaintiff submitted that defendants 2 to 5 have not denied the execution of sale agreement, receipt of advance amount. They claim that they are not able to perform their part of contract as per the agreement. The existence of sale agreement was also accepted by D6 to D9 during the course of examination. Ex.D6 Will came to be executed after the Ex.P2 sale agreement. This Will is not probated and therefore not proved in accordance with law. Though the name Thirugnanasambandam was shown in the agreement, he was not alive on the date of execution of sale agreement. However other defendants agreed to convince the legal heirs of Thirugnanasambandam and make them to sign in the sale deed / power of attorney. If defendants 6 to 9 claim that they are not agreeable for sale, other defendants can be directed to execute the sale deed in respect of their share. Plaintiff has produced documents to show its capacity to pay the balance sale consideration. The sale could not be concluded in time for the reason that defendants failed to perform their part of the contract as per the sale agreement. Thus, he prayed for the relief as prayed.
7.In support of his submissions, he relied on the following judgments https://www.mhc.tn.gov.in/judis 8/30 with regard to the requirements to prove readiness and willingness.
(i) In the case of K.Johnson David Vs. A.Kandasamy, the relevant portion of the Judgment reads as follows:
“In this regard it is useful to refer the decision of the Hon'ble Apex Court in PRK Saraswathi case (cited supra), wherein the Hon'ble Apex Court in an identical case held as follows:
"(xii) In this context, it is relevant to refer to the decision of reported in MANU/TN/0313/1967 : AIR 1967 Madras 220 (V54 C 66) (1) : (1966) 79 L, W, 486 (S.B. Narayanswami Pillai v. Dhanakoti Ammal) wherein, in paragraphs 5, 7, 8, and 9 it is laid down as follows:
"5.... Once it is held that with reference to a particular contract, time is not the essence, then the readiness and willingness which the plaintiff must establish is the readiness and willingness to perform his part of the contract at the proper time, that its, within a reasonable time. If time could be reasonably extended and if he extended and if he establishes his capacity to perform the contract within {he extended time that will be sufficient. All that the Privy Council had observed in Adeshit v. Flora Samson, AIR 1928 PC at pg 216 : (1928) 28 L.W. 25 is in a suit for specific performance on the other hand be treated and was required by the Court to treat the contract as still subsisting. He had in that https://www.mhc.tn.gov.in/judis 9/30 suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness, from the date of the contract to the time of the hearing to perform the contract on his part. Failure to make good that averment brought with it the inevitable dismissal of his suit."
In my view when time is provided for performance readiness and willingness on the part of the person seeking performance can only mean that on his part he has throughout the period kept the contract as subsisting one with a preparedness to fulfill his obligations and accept performance when the time came. This does not mean that the purchase should besides show that the had command of the necessary finance throughout the life of the contract. Such an insistence will make the fixing of a time for performance meaningless.
7... In the new Specific Relief Act, 47 of 1963 Section 16 provides in case of contract involving the payment of money that it is not essential for the plaintiff to actually tender in the defendant or to deposit in court any money except when so directed by the Court, the plaintiff having only to aver the performance of or readiness or willingness to perform the contract according to its true construction. In Bank of India v. Chinnoy AIR 1950 Pcl 90 at pg 96 , Lord Mac. Dermoft observes thus.
"It is true that plaintiff 1 stated that he was https://www.mhc.tn.gov.in/judis 10/30 buying for himself, that the had not sufficient ready money to meet the price and that the had not sufficient ready money to meet the price and that no definite arrangements had been made for finding it at the time of repudiation.
But in order to prove himself ready and willing a purchaser has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction".
In Subayya v. Garikapati Veeraya MANU/AP/0316/1955 :
AIR 195 Andhra 307, Subba Rao CJ, observes at pg.
Even otherwise, on the evidence I am satisfied that the first plaintiff was substantial enough to make ready and necessary amount if the occasion arose. I hold that the first plaintiff was ready and willing to perform his par of the contract."
8. Purchaser could be said to be ready and willing to perform his par of the contract if he could find the money when the occasion arose. He need not keep the money and establish that had the money in advance."
12. From the aforesaid decision it is clear that to prove himself ready and willing, a purchaser need not necessarily to produce the money or to vouch a concluded scheme for financing the transaction. It is now well settled law that it is not necessary for a purchaser to keep the balance sale consideration either in cash or in bank account, but it is https://www.mhc.tn.gov.in/judis 11/30 sufficient, if it is proved that the purchaser is capable of raising the balance sale consideration when the time for performance of the agreement of the sale arrives. ”
(ii) In the case of T.R.K.Saraswathy Vs. R.Kandasamy and others reported in 2011 5 LW 756 (DB):-
“It is not necessary for a vendor to keep the balance sale consideration either in cash or in bank account, but it is sufficient if it is proved that the vendor is capable of raising the balance sale consideration when the time for performance of the agreement of sale arrives. .” ....
“(xv) It is now well settled law that it is not necessary for a vendor to keep the balance sale consideration either in cash or in bank account, but it is sufficient if it is proved that the vendor is capable of raising the balance sale consideration when the time for performance of the agreement of sale arrives. .”
(iii) In the case of S.Shanmughanathan and Elangovan and others reported in [2001 3 CTC 551]:-
“ In this case, the very fact that the plaintiff issued a notice on 25.6.1981 proves that he was ready and willing on that date.
Subsequently, he filed the suit on 8.7.1981-He has also deposed before the Court that he wanted to purchase the property. This evidence is sufficient to prove that the plaintiff was ready throughout to perform his part of the contract..” https://www.mhc.tn.gov.in/judis 12/30
8.The learned counsel for the defendants 2 to 5 submitted that the suit was not filed in time. Plaintiff failed to prove the readiness and willingness to perform its part of the contract. It is known to the plaintiff that Thirugnanasambandam was not alive even when the sale agreement was executed. D6 to D9 were impleaded six years after filing of the suit. Resolution of the Board authorising Kamalammal Balaji to enter into sale agreement is not filed. There is no pleading with regard to Ex.P9 and Ex.P10 and they are not produced along with the plaint. P9 and P10 are the xerox copies and were marked, subject to objection. That cannot be received in evidence without a certificate under Section 65 (B) of Indian Evidence Act. Defendants 2 to 5 have always expressed their willingness to sell their 5/6 share or return the advance amount. However, it was the plaintiff who was not ready and willing to perform its part of the contract. Ex.D1 to D3 police complaints proved the defendant's readiness and willingness. Relief of specific performance is discretionary relief. Therefore, when the plaintiff was not keen on its readiness and willingness to perform its part of the contract, discretionary relief of specific performance of contract cannot be granted in favour of the plaintiff. Ex.P9 and Ex.P10 have not been proved in the manner known to law and therefore they cannot be relied. In support of his submissions, he relied on the following judgments:-
i)He relied on the judgment reported in (2020) 3 SCC 216 [Arjun https://www.mhc.tn.gov.in/judis 13/30 Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and ors], for the proposition that production of certificate under Section 65 (B) of the Indian Evidence Act, 1872, is mandatory for receiving electronic evidence.
ii)He relied on the Judgement reported in 2022 SCC Online SC 840 [U.N.Krishnamurthy (Since Deceased) through L.R.'s Vs. A.M.Krishnamurthy], for the proposition that any suit for specific performance, plaintiff has to prove that plaintiff is/was always ready and willing to perform the contract. It is also to be ensured into as to whether there is a valid agreement on sale. It is observed in this judgment that,
33.In a suit for Specific Performance of a contract, the Court is required to pose unto itself the following questions, namely:-
i)Whether there is a valid agreement of sale binding on both the vendor and the vendee and
ii)Whether the Plaintiff has all along been and still is ready and willing to perform his part of the contract as envisaged under Section 16 (c) of the Specific Relief Act, 1963.
He also relied on the judgment in Civil Appeal No.150 of 2022 [Shenbagam & Ors. Vs. KK.Rathinavel], dated 20.01.2022, for the same proposition. It is observed in this judgment that,
36.True enough, generally speaking, time is not of the essence in an agreement for the sale of immovable https://www.mhc.tn.gov.in/judis 14/30 property. In deciding whether to grant the remedy of specific performance, specifically in suits relating to sale of immovable property, the courts must be cognizant of the conduct of the parties, the escalation of the price of the suit property, and whether one party will unfairly benefit from the decree. The remedy provided must not cause injustice to a party, specifically when they are not at fault. In the present case, three decades have passed since the agreement to sell was entered into between the parties. The price of the suit property would undoubtedly have escalated. Given the blemished conduct of the respondent- plaintiff in indicating his willingness to perform the contract, we decline in any event to grant the remedy of specific performance of the contract. However, we order a refund of the consideration together with interest at 6% per annum.
iii)He relied on the judgment reported in 2022 SCC Online SC 1079 [Smt.Katta Sujatha Reddy & Anr Vs. Siddamsetty Infra Projects Pvt.Ltd & ors], for the proposition that the grant of specific relief is based on equitable principles and discretionary. When the claim of purchaser is barred by delay, latches and limitation, the discretionary relief of specific performance cannot be granted.
9.The learned counsel for the defendants 6 to 9 submitted that the suit property was purchased and developed only by Thirugnanasambandam, though the property tax is in the name of Thandavarayan. The signatures of https://www.mhc.tn.gov.in/judis 15/30 D1, D2 and D3 in the sale agreement are forged. Thirugnanasambandam was not alive even when the sale agreement was entered and therefore the sale agreement will not bind the defendants 6 to 9. Defendants 6 to 9 did not aware of the sale agreement till they received summons in the suit.
10.In reply, the learned counsel for the plaintiff submitted that the plaintiff obtained leave to sue in application No.3684 of 2013 on 21.08.2018. It expressed its readiness and willingness in Ex.P8. There is an obligation for D1 to D5 to bring D6 to D9 on board. Readiness and willingness and possession of funds are pleaded in the plaint. D6 to D9 cannot dispute the sale agreement. Ex.P9 and P10 are not copies but they are originals issued by the Bank. Plaintiff can be granted a restricted prayer in respect of 5/6 share in the suit property representing the share of defendants 2 to 5.
Issue No.5 and 6:
11.From the case set out by the parties, we can gather that certain facts are admitted by both parties. 1st defendant is the wife of late V.Thandavarayan and defendants 2 to 5 are the children of late V.Thandavarayan and 1st defendant T.Radha. They had another son namely T.Thirugnana Sambantham. T.Thirugnana Sambantham died on 14.03.2003 https://www.mhc.tn.gov.in/judis 16/30 leaving behind his wife and children, the defendants 6 to 9 as his legal heirs.
However, the defendants 6 to 9 were not added as parties to the suit at the time of filing the suit. They were subsequently impleaded as defendants 6 to
9. Other undisputed fact is that the suit property was originally purchased by V.Thandavarayan. Though the Sale Deed in favour of V.Thandavarayan is not filed, the parties to the suit, especially plaintiff and defendants 1 to 5 admitted that the suit property was purchased by V.Thandavarayan. V.Thandavarayan died intestate. On his death, it is no doubt that his legal heirs are entitled for their respective shares in the suit property. These are all the undisputed facts available in this case.
12.6th defendant claimed in her written statement that 80 % of the sale price for the purchase of the suit property was paid by her husband late T.Thirugnana Sambantham. However in support of her claim, defendants 6 to 9 have not produced any evidence to show that late T.Thirugnana Sambantham contributed funds for the purchase of the suit property, more so 80 % of the sale consideration. 6 th defendant was examined as DW2. She admitted during the course of cross examination that she had not produced any records to show that 80 % of the sale consideration for the purchase of the suit property was paid by her husband. She stated that she cannot deny the fact that the suit property was purchased by late V.Thandavarayan in https://www.mhc.tn.gov.in/judis 17/30 1962 from Co-operative housing board and her husband was aged 17 years in 1962. She also admitted that her husband was not earning any income in 1962 and he was dependent on his father V.Thandavarayan. From the evidence of DW2, it is clear that the claim made by 6 th defendant in the written statement that 80 % of the sale consideration was paid by her husband late T.Thirugnana Sambantham is not true and correct. The suit property was purchased by late V.Thandavarayan. When she was asked as to whether on the death of V.Thandavarayan, the suit property along with other family properties devolve among the defendants 1 to 5 and her husband late T.Thirugnana Sambantham and each one is entitled to 1/6th share, she answered in affirmative. Therefore, it is clear that the suit property was purchased by V.Thandavarayan and after his death the defendants 1 to 5 and late T.Thirugnana Sambantham are entitled to 1/6th share each. On the death of T.Thirugnana Sambantham, his legal heirs namely defendants 6 to 9 are entitled for his 1/6th share.
13.Exhibit P2 is the Sale Agreement dated 11.11.2012. This Sale Agreement was entered into between the plaintiff on the one hand and the legal heirs of the deceased V.Thandavarayan on the other hand. The wife and children of late V.Thandavarayan namely T.Radha, T.Thirugnana Sambantham, T.Senthilnathan, T.Ramamurthy, Janaki, T.Mohan are shown https://www.mhc.tn.gov.in/judis 18/30 as vendors. It is also stated that T.Thirugnana Sambantham died on 14.03.2003, leaving behind him, the defendants 6 to 9 as his legal heirs. However, the defendants 6 to 9 were not shown as vendors/parties to this Sale Agreement.
14.In Clause 13 of the Sale Agreement, the vendors namely T.Radha, T.Thirugnana Sambantham, T.Senthilnathan, T.Ramamurthy, Janaki, T.Mohan agreed and undertook to compromise with one of the legal heir T.Thirugnana Sambantham's wife Sathiyavathi and his legal heirs, either by way of mutual understanding or through Court and make them to sign the Sale Deed/Power of Attorney. Thus it is obvious from the Sale Agreement that defendants 6 to 9 are not the parties to the Sale Agreement. Only the other legal heirs of the late V.Thandavarayan had agreed and undertook to bring the defendants 6 to 9 on board, for the execution of the Sale Deed/Power of Attorney.
15.The defendants 6 to 9 claim that they are not bound by the Sale Agreement, rightly so. Specific performance of the contract can be enforced against only the parties to the Agreement. When the defendants 6 to 9 are not parties to the Sale Agreement, it is no doubt that the Sale Agreement cannot be enforced against them. One another thing is that though there is a https://www.mhc.tn.gov.in/judis 19/30 specific reference about bringing on board the defendants 6 to 9 in the execution of Sale Deed or Power of Attorney Deed in Exhibit P2 Sale Agreement, plaintiff has not chosen to add the defendants 6 to 9 as parties to the suit, at the time of filing the suit. The plaintiff impleaded only defendants 1 to 5. Only at a later point of time, the defendants 6 to 9 were impleaded as defendants in this case.
16.PW1 during the course of cross examination admitted that one of the co-sharers has not joined in executing the Exhibit P2 Sale Agreement. T.Thirugnana Sambantham died before executing Exhibit P2 Sale Agreement. It is admitted by him that no family members of T.Thirugnana Sambantham signed in Exhibit P2 Sale Agreement. He admitted that suit property is within 1 to 1 ½ Kms from the plaintiff's office and one Saraswathi is residing in the suit property. He also admitted that Saraswathi is not a party to the Exhibit P2 Sale Agreement. He stated that he did not send Exhibit P8 legal notice to defendants 6 to 9.
17.The 6th defendant, who was examined as DW2, reiterated that defendants 6 to 9 are not the parties to the Sale Agreement and therefore, they are not bound to execute the Sale Deed. That apart, the defendants 6 to 9 had raised issues with regard to their family properties and the sale of https://www.mhc.tn.gov.in/judis 20/30 family properties by defendants 1 to 5. However, we are not concerned about other family properties of the legal heirs of the late V.Thandavarayan in this case. Therefore, it is not necessary to consider the alienations made by the legal heirs of late T.Thirugnana Sambantham in respect of their family properties. DW2 admitted that Exhibit P2 Sale Agreement was entered between defendants 1 to 5 and plaintiff in respect of the suit property. She admitted that the sale consideration payable to the deceased 1st defendant has to be equally distributed to defendants 2 to 5 and defendants 7 to 9. However, the fact remains that the Sale Agreement dated 11.11.2012 cannot be enforced against defendants 6 to 9 in respect of 1/6th share of the late T.Thirugnana Sambantham, for the reason that they are not parties to the sale agreement. Therefore, Issue Nos.5 and 6 are answered that Exhibit P2 Sale Agreement between plaintiff and defendants 1 to 5 without adding defendants 6 to 9 would not bind defendants 6 to 9 and cannot be enforced against them, but it can be enforced against defendants 1 to 5. Issue No.1 and 2:-
18. One of the main contention raised by the learned counsel for the defendants 1 to 5 is that, though the defendants 1 to 5 were ready to sell their portion of the suit property to the plaintiff, the plaintiff did not come forward to execute the Sale Deed. This is because the plaintiff has no means https://www.mhc.tn.gov.in/judis 21/30 or wherewithal to pay the balance sale consideration. On the whole, the plaintiff paid only Rs.30,00,000/- out of the sale consideration of Rs.6,50,00,000/-. The documents filed by the plaintiff in the form of Exhibits P9 and P10 are the xerox copies of the Bank Statement of plaintiff company and financial statements for the period from 01.04.2012 to 31.03.2013, cannot be admitted in evidence for the reason that they are xerox copies and not produced through proper person for proving these documents and that the certificate required under Section 65B of Indian Evidence Act is not produced. Therefore, it is submitted by the learned counsel for the defendants 1 to 5 that it is evident that plaintiff was not ready and willing to perform its part of the contract for the reason that plaintiff has no means to pay the balance sale consideration.
19.In response, the learned counsel for the plaintiff submitted that the plaintiff was always ready and willing to perform his part of the contract. He has stated so in Exhibit P8 notice and in the plaint about its readiness and willingness to perform its part of the contract. Exhibits P9 and P10 are the originals documents procured from the bank. Therefore, it is not necessary to produce a certificate under Section 65 B of the Indian Evidence Act. As per Bankers Book Evidence Act, these documents can be accepted as evidence.
The defendants have not taken a specific plea that plaintiff has no means to https://www.mhc.tn.gov.in/judis 22/30 pay balance sale consideration and therefore, it is not open to take such a plea during the course of argument. Plaintiff is a company engaged in housing construction and it has sufficient means to pay balance sale consideration and it is proved in Exhibits P9 and P10.
20.Exhibit D1 is a copy of the complaint dated 26.08.2013 to the Commissioner of Police informing that the defendants 1 to 5 sold the suit property to the plaintiff for a sum of Rs.6,50,00,000/- and it is stated that advance of Rs.30,00,000/- was received by the defendants 1 to 5. Plaintiff promised to pay the balance amount within a period of two months. Believing his words the original document was handed over to the plaintiff. However, even after completion of two months, the plaintiff did not pay the amount and did not come forward to execute the Sale Deed. Defendants 1 to 5 ready to return the sum of Rs.30,00,000/- and asked for return of the original document saying that they are not willing to sell the property to the plaintiff. But the plaintiff did not return the document. Therefore, police complaint was given. It is obviously a mistake in the complaint that instead of Sale Agreement, it was referred as a sale. Exhibit D2 is the visitor receipt issued to the 2nd defendant and Exhibit D3 is the notice issued by the Sub- Inspector of Police to the 2nd defendant. Exhibit D4 is a similar complaint given by the 5th defendant to the Assistant Commissioner of Police making https://www.mhc.tn.gov.in/judis 23/30 similar allegations as found in the Exhibit D1.
21.However, even before these complaints were given to Police Department, the plaintiff has issued Exhibit P8 notice. In Exhibit P8 notice, the execution of the Sale Agreement was mentioned and it also mentioned that, it was agreed between the parties that the balance sale consideration would be paid and a Sale Deed would be registered, within three months from the date of vacating the premises by the present occupants, which included legal heirs of T.Thirugnana Sambantham and 3rd party tenants. There is also a mention that despite expressing the plaintiff's readiness and willingness to execute its part of contract, no step has been forthcoming from the defendants to complete the sale.
22.Even in the plaint, the plaintiff alleged in paragraph Nos.9 to 11 and expressed its readiness and willingness to perform its part of the Contract. It is specifically pleaded in paragraph 11 of the plaint that plaintiff possessed with sufficient means from 11.11.2012 and ready with the balance sale consideration to settle the defendants and execute the Sale Deed. Therefore, it is not correct on the part of the defendants 1 to 5 to contend that the plaintiff has not pleaded its readiness and willingness to perform its part of contract.
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23.To prove that plaintiff has means to pay the balance sale consideration, Exhibits P9 and P10 i.e., Bank Statement and financial statement are filed. Though it is claimed by the learned counsel for the plaintiff that these documents are originals, on the face of it, these documents appears only xerox copies and not originals. As pointed out by the learned counsel for the defendants 1 to 5, the concerned bank official is not examined to prove these documents. Whether the failure to prove the Exhibits P9 and P10 would mean that the plaintiff has no means to pay the balance sale consideration is a Question.
24.This Court finds from the written statement of the defendant that they have not raised any specific plea with regard to the incapacity or lack of funds or plaintiff's inability to raise funds to pay the balance sale consideration. In the absence of specific pleadings in this regard, it is not open to the defendants 1 to 5 to raise an issue during the course of arguments that plaintiff has no means to pay the balance sale consideration. From the judgments produced, it is clear that it is not necessary for a purchaser to keep the balance sale consideration in cash or in bank account,but it is sufficient, if it is proved that the purchaser is capable of raising the balance sale consideration. Plaintiff is a company and it has the https://www.mhc.tn.gov.in/judis 25/30 capacity to raise the funds to pay the balance sale consideration to the defendants.
25.The learned counsel for the defendants 1 to 5 pointed out the evidence given by PW1 stating that he has not stated in Exhibit P8 about the plaintiff's readiness and willingness to perform its part of the contract and it is not stated in the plaint also. This Court already found that plaintiff has stated in Exhibit P8 notice as well as in the plaint about its readiness and willingness to perform its part of the contract. The legal notice seeking performance from the defendants 1 to 5 was issued on 07.03.2013. It exemplifies that plaintiff was always ready and willing to perform its part of the contract. The evidence contrary to the documents given by the PW1 cannot be given much weight.
26.We have seen from the Exhibits D1 to D4, written statement filed by the defendants 1 to 5 and the admitted evidence of DW1 that defendants 1 to 5 admitted the execution of Exhibit P2 Sale Agreement and the receipt of Rs.30,00,000/- as advance. DW1 stated that the defendants met PW1, when the agreement was signed and a sum of Rs.30,00,000/- was received as advance. He admitted that the balance sale consideration is payable within a period of three months from the date of vacating the tenants from the suit https://www.mhc.tn.gov.in/judis 26/30 property and also after effecting compromise with T.Thirugnana Sambantham's family. He admitted that as per the Exhibit P2 agreement of sale, the defendants 1 to 5 have to obtain patta for the suit property. There is a clause in agreement that the vendors undertook to vacate the tenants from the suit property. However in the course of his evidence, he stated that it is not their duty to vacate his brother's family and tenants from the suit property. It is further stated by him that he has spoken to T.Thirugnana Sambantham's family, but they did not agree.
27.The pre-condition for paying the balance sale consideration is, vacating the tenants residing in the suit property and bringing on board T.Thirugnana Sambantham's legal heirs for the execution of Sale Deed/Power of Attorney. It appears from the evidence of DW1 that defendants 1 to 5 were not able to vacate the tenants or bring on board the legal heirs of deceased T.Thirugnana Sambantham for executing the Sale Deed. Therefore, we cannot hold the plaintiff responsible for the failure to pay the balance sale consideration and the non-execution of the Sale Deed. It was already found that defendants 6 to 9 are not bound by Exhibit P2, Sale Agreement and the defendants 1 to 5 are bound by Exhibit P2 Sale Agreement. Now during the pendency of the suit, the 1st defendant died. It https://www.mhc.tn.gov.in/judis 27/30 appears that the 1st defendant executed Exhibit D6 Will in respect of her property in favour of defendants 2, 3 and 5. This Will is not probated. Therefore, these defendants cannot claim any right on the basis of this Will. The 1st defendant's 1/6th share will be inherited by defendants 2 to 5 and 7 to 9.
28.Therefore, this Court finds that the plaintiff is ready and willing to pay the balance sale consideration in terms of the Sale Agreement dated 11.11.2012 and that the plaintiff is entitled for the relief of specific performance of the Agreement dated 11.11.2012. Accordingly, Issue Nos.1 and 2 are answered in favour of the plaintiff.
Issue Nos.3 and 4:-
29.In view of grant of relief of specific performance, as per the Sale Agreement dated 11.11.2012, it is not necessary to consider the Issue No.4.
The defendants 1 to 5 and 6 to 9 are restrained from alienating or encumbering the suit property. However, this restraint order will not be applicable to 1/6th share of defendants 6 to 9 as legal heirs of late T.Thirugnana Sambantham. Accordingly, these issues are answered. Issue No.7:-
30.In the result, the suit is decreed in part. Defendants 2 to 5 in their https://www.mhc.tn.gov.in/judis 28/30 individual capacity, and defendants 2 to 5 and 7 to 9 in the capacity of the sharers in 1/6th share of the deceased 1st defendant have to execute the Sale Deed in respect of 5/6th share of the suit property to the plaintiff after receiving the balance sale consideration. Accordingly, decree for specific performance is passed. The suit is dismissed in respect of 1/6 share of defendants 6-9, as the legal heirs of deceased T.Thirugnana Sambantham.
Plaintiff is granted three months time for the deposit of the balance sale consideration. Considering the relationship between the parties, the facts and circumstances of the case, the parties are directed to bear their own costs.
03.01.2023 ep/gd Index:Yes/No Speaking Order: Yes/No G.CHANDRASEKHARAN.J., ep/gd To The Section Officer, VR Section, High Court of Madras.
https://www.mhc.tn.gov.in/judis 29/30 C.S.No.570 of 2013 03.01.2023 https://www.mhc.tn.gov.in/judis 30/30