IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.06.2011 CORAM: THE HON'BLE MR.JUSTICE V.PERIYA KARUPPIAH A.S.No.432 of 2000 1. Muruga Udayar (died) 2. Vediappan 3. Dhanapal 4. Sundaram 5. Ramachandran (Appellants 2 to 5 recorded as LRs. of the deceased sole appellant vide order of Court dated 14.08.009 made in Memo dated 6.8.2009) .. Appellants/Defendants Vs. Thirumalai Enterprses, partnership firm rep. by its Managing Partners 1.M.Manickam 2.M.S.Ramasamy (Cause title accepted vide order of Court dated 11.2.2006 made in CMP.No.16324 of 2005) .. Respondents/Plaintiffs Prayer: Appeal filed under Section 96 of the Civil Procedure Code against the Judgment and Decree of the learned Subordinate Judge of Dharmapuri made in O.S.No.48 of 1995 dated 19.10.2000 For Appellants : Mr.S.Prabhakaran for Mrs.Louisal ramesh For Respondents : Mr. K.Doraisamy, Senior Counsel for M/s. Muthumani Doraisamy and Kandhan Duraisami J U D G M E N T This appeal is directed against the judgment and decree passed by the lower Court in O.S.No.48 of 1995 dated 19.10.2000. 2. Aggrieved defendants 1 to 5 are the appellants herein. The first appellant/first defendant died during the pendency of this appeal and the appellants 2 to 5 are recorded as legal representatives of the deceased first appellant. The plaintiffs https://hcservices.ecourts.gov.in/hcservices/ before the lower Court are the respondents herein. However, the present partners were substituted in the place of the former partners of the respondent firm and the cause title was accepted. 3. For convenience sake, the ranks of the parties before the lower Court are maintained in this judgment. 4. The brief facts of the plaintiff's case as stated in the plaint are as follows: The plaintiff is a Partnership Firm, trading, inter alia, in real estate. The defendants are the members of a Hindu joint family. The suit properties belong to the defendants. On 21.2.1989, the defendants entered into an agreement with the first Managing Partner of the plaintiff firm for the suit properties for a price of Rs.6,75,000/- and after receiving a sum of Rs.50,000 in advance, executed the sale agreement on the same day and in the event of payment of the balance of the sale price in three instalments within a period of ten months from the date of execution of the sale agreement, the defendants should execute the sale deed. In part performance of the contract, the 1st Managing Partner of the plaintiff firm was inducted into possession of the suit properties on the day of the contract itself. Subsequently, the plaintiff firm was constituted on 15.3.1989. The Ist Managing Partner of the plaintiff firm threw the suit properties into the common hotch pot of the plaintiff firm. On the request of the defendants, the 2nd Managing Partner of the plaintiff firm made further advance of a total sum of Rs.2,56,100/- towards the sale price jointly to the 1st, 4th and 5th defendants. The suit properties was originally an agricultural land with rocks and boulders and the plaintiffs levelled it by hired bull dozers and tractors and laid roads and plotted into house sites by spending a sum of Rs.2,00,000/-. On seeing the suit land cultured and was given a face lift, the defendants demande higher price than the agreed sum, for which, the plaintiff refused. The plaintiffs issued legal notice dated 18.11.1989 to perform their part of the contract specifically, but the defendants are not willing to perform their part of the contract. The plaintiffs are always ready and willing to perform their part of the contract. They are also willing to pay the balance of sale price i.e.., Rs.4,18,900/- into court along with the plaint, if required. Hence, the suit for specific performance of the contract by the defendants. 5. The contentions of the 4th defendant, adopted by defendants 1, 3 to 5 are as follows: The defendants admit that they are the members of a Hindu joint family and that the suit properties belong to them. The defendants state that the allegation of the plaintiff that on 21.2.1989, the defendants entered into an agreement with the first Managing Partner of the plaintiff firm for the sale of the suit properties for a sum of Rs.6,75,000/- and that they received Rs.50,000/- in advance and that they executed the sale agreement, are all false. The defendants https://hcservices.ecourts.gov.in/hcservices/ state that they are in possession of the suit properties and are cultivating the lands. The possession was not given to anybody either on 21.2.1989 or on any later date. The defendants state that the allegation of the plaintiff that subsequent to the date of contract, the plaintiff firm was constituted on 15.3.21989, are all false. The defendants further state that nobody is authorised or entitled to throw the suit properties into the common hotch pot of the plaintiff firm. The defendants further state that they never received any amount from the 2nd Managing Partner. The defendants never admitted the execution of sale agreement and induction of the plaintiff into possession. The defendants admit that the plaintiff filed a suit in O.S.No.98 of 1990 on the file of the District Munsiff of Harur for perpetual injunction. The plaintiff got an exparte decree. The defendants took steps to set aside the exparte decree in I.A.No.17/94, I.A.No.18/94 and I.A.No.19/94 and the exparte decree was set aside and the said case is ripe for trial. The allegation of the plaintiff that they are ready and willing to perform their part of the contract and that the defendants are not, is meaningless as the plaintiff has no locus standi in the matter. It is true that the minor sons of the defendant file a suit in O.S.No.482/1989 on the file of the District Munsif of Harur and obtained an interim injunction against the defendants from alienating the suit properties but no order of injunction was passed against the plaintiff or its partner. There is no legal bar for the plaintiffs to file a suit for specific performance. The suit is barred by limitation. There is no privity of contract between the plaintiff and the defendants and the plaintiff has no locus standi to file the suit and there is no valid assignment and the suit has to be dismissed in limini. The defendants would submit that the second defendant is not in good terms with them and the second defendant joined hands with the plaintiff in order to cause loss and hardship to the defendants. The defendants further submit that in fact Abdul Ravoop, the alleged 1st Managing Partner of the plaintiff firm who is a document writer intervened to compromise between the defendants. The defendants would submit that in furtherance of the said attempt, he got certain signatures from the defendants in various blank papers and he might have utilised it for forging the documents. The defendants would submit that the plaintiff is not entitled to any relief and hence, the suit has to be dismissed. 6. The lower Court had framed the following issues and had entered into the trial. "1. Whether the agreement of sale dated 21.2.1989 in favour of the 1st Managing Partner of the plaintiff firm is true? 2. Whether the plaintiff's 1st Managing Partner was induced into possession of the suit properties in furtherance of the sale agreement? 3. Who is in possession of the suit properties? 4. Whether the assignment of agreement in favour of the plaintiff is true, valid and binding? https://hcservices.ecourts.gov.in/hcservices/ 5. Whether the various payments to the tune of Rs.2,56,100/- are true? 6. Whether the suit is not barred by limitation? 7. Whether there is privity of contract between the plaintiffs and the defendants? 8. To what relief is the plaintiff entitled to?" 7. The lower Court had examined P.Ws.1 to 3 and marked Exs.A1 to A17 on the side of the plaintiff and examined D.W.1 to D.W.4 and marked Exs.B1 to B9 on the side of the defence. After going through the evidence adduced on either side, the lower Court had come to the conclusion of decreeing the suit as prayed for by the plaintiff. While trying the said suit, the lower Court had also clubbed yet another suit in O.S.No.57 of 1997 filed by the plaintiff for permanent injunction and decreed the said suit in favour of the plaintiff. The present appeal has been filed by the defendants only against the judgment and decree passed in O.S.No.48 of 1995. 8. Heard Mr.S.Prabhakaran, learned counsel appearing for Ms. Louisal Ramesh, counsel for the appellants and Mr.K.Doraisamy, learned Senior Counsel appearing for M/s. Muthumani Doraisamy, on behalf the respondents. 9. On perusal of the judgment and decree of the lower Court, the documents and oral evidence produced thereon and the grounds raised in the appeal memo and on hearing the arguments of both sides, this Court is of the view that the following points have to be necessarily decided for the disposal of the appeal. 1) Whether the suit is filed within the period of limitation and the exemption given under Section 15 of the Limitation Act is applicable to the case? 2) Whether the plaintiff is entitled to file a suit on the foot of the agreement entered by its Managing Partner Abdul Rawoop in his personal capacity with the defendants and whether the suit is maintainable? 3)Whether the plaintiff was always ready and willing to perform its part of the contract? 4) Whether the plaintiff is entitled for the equitable relief of specific performance in respect of the suit property? 5) Whether the judgment and decree passed by the lower Court are liable to be set aside and is this appeal allowable? 6) To what relief the appellants are entitled for? https://hcservices.ecourts.gov.in/hcservices/ 10. Learned counsel for the appellants/defendants would submit in his argument that the appellants/defendants are the owners of the suit property and they have entered into an agreement with one Mr.Abdul Rawoop on 21.2.1989 in respect of the suit properties for a total sale consideration of Rs.6,75,000/- and a sum of Rs.50,000/- was paid to them towards advance and the said sale agreement has been produced as Ex.A1 and the remaining sale price should have been paid within 10 months in three installments i.e., on or before 21.12.1989. He would further submit that on making such payment of the entire sale consideration to the appellants the said deed was agreed to be executed in favour of Abdul Rawoop in his individual capacity. He would also submit in his arguments that the said Abdul Rawoop could not pay the entire sale consideration within 10 months time as stipulated in the agreement. However, the suit has been filed by one Thirumalai Enterprises, a partnership firm constituted with 20 persons as partners in which Abdul Rawoop claiming to be the Managing partner of the said Firm for specific performance of contract of sale against the appellants/ defendants. He would further submit in his argument that the said Thirumalai Enterprises Partnership firm was subsequently, constituted only on 15.03.1989 in a stamp paper purchased on 29.04.1988. He would therefore, submit that the said plaintiff Thirumalai Enterprises have no privity of contract with the defendants and the said partnership firm claim to be a separate legal personality cannot step into the shoes of Abdul Rawoop who was an individual who entered into contract with the defendant. He would further submit in his arguments that the said firm cannot maintain a suit against the defendant on the foot of an agreement entered into by the said Abdul Rawoop in his individual capacity. He would further submit that the reference as to "ntW egh;fs;" in the agreement would not give any assignment or any right to the plaintiff to file a suit for specific performance, which is a personal contract. He would further submit that the agreement Ex.A1 itself would go to show that it was executed only by Abdul Rawoop as the agreement Vendee and he was not shown to be as Managing Partner of the plaintiff firm nor it was the intention of the parties to the agreement. He would further submit that the plaintiff being an alien to the agreement cannot maintain the said suit. He would further submit that the plaintiff firm cannot show its readiness and willingness to enter into the contract of sale even it is construed that the plaintiff can file the suit against the defendants. 11. He would further submit that it is curious to note that the partnership firm Thirumalai Enterprises was constituted only after Ex.A1 agreement and the said partnership firm was also an unregistered one and it cannot even file a suit on behalf of its partners. He would also submit in his argument that the said Abdul Rawoop did not represent the said partnership firm at the time of execution of Ex.A1 agreement with the defendants and the right to enforce the contract of sale for the plaintiff should have been https://hcservices.ecourts.gov.in/hcservices/ existed at the time of entering into the agreement of sale and the plaintiff firm who was not having such right in the said agreement Ex.A1 is not entitled to sue on the foot of the said agreement of sale as per the principle laid down in the judgment of the Hon'ble Apex Court reported in AIR 2004 SC 348 (Shyam Singh Vs. Daryan). He would also draw the attention of the Court to the judgment of this Court reported in AIR 1998 Madras 169( Gopal Shetty v. Raman) for the said principle. He would again submit in his argument that the suit has to be therefore, dismissed for want of privity of contract in between the parties and the lower Court has failed to apply its judicial mind in these legal aspects. 12. Learned counsel would further submit in his arguments that the suit was also barred by law of limitation as it was filed by the plaintiff after three years beyond the period of limitation. He would further submit in his argument that the date of agreement was 21.2.1989 and the time for payment and performance was fixed as 10 months which was over by 21.12.1989 and therefore, the suit, if any, ought to have been filed on or before 21.12.1992, but the suit was filed by the plaintiff only on 4.1.1995 which is beyond the period of limitation. He would also submit in his argument that the said suit was numbered only on 6.2.1995, after the requisite Court fees has been paid. He would also submit in his argument that the plaintiff did not ask for permission from the lower Court to pay the deficit court fee and such permission was also not granted and therefore, the presentation made on 4.2.1995 was not also a proper presentation and on that score also, the suit is liable to be dismissed. He would further submit in his argument that the exemption as sought for by the plaintiff was to the effect that there was a suit filed by the minor sons of the 4th defendant in O.S.No.482 of 1989 on the file of the District Munsif, Harur and an interim injunction in I.A.No.108 of 1989 was in force which restrained the defendants from alienating the suit properties and the injunction order was vacated only on 29.8.1992 and therefore, the time limit given for filing the suit against the defendants would be extended till 30.06.1995 and therefore, the suit filed on 04.01.1995 and numbered on 06.02.1995 is within time, cannot be sustained. He would further submit that such a plea of exemption to the limitation under Section 15 of the Limitation Act cannot be made available to the plaintiff since it was nor an injunction against the plaintiff, not to file any suit or not to invoke the claim dated 21.2.1989. He would further submit that the injunction sought for against the defendants will not in any way extend the the period of limitation in favour of the plaintiff firm and the same has to be decided in the specific performance suit. He would further submit in his arguments that the suit is clearly barred by law of limitation since it was not filed within 21.12.1992. He would also draw the attention of the Court to a judgment of the Honourable Apex Court reported in AIR 1964 SC 227 (A.S.K.Krishnappa v. S.V.V.Somiah) for the said principle. He would also submit in his arguments that the said injunction order produced in Ex.A12 was not https://hcservices.ecourts.gov.in/hcservices/ passed against the said Abdul Rawoop or the plaintiff. It was only an injunction order passed against the defendants, not to alienate the said property and it could not be construed that the plaintiffs are prevented from proceeding with the suit. The said order passed by the District Munsif, Harur in Ex.A12 does not prevent the plaintiff from filing any suit and therefore, the exemption claimed under Section 15 of the Limitation Act is not available to the plaintiff. 13. He would further submit in his argument that the plaintiff had filed yet another suit as if he was in possession of the suit property against the defendants in O.S.No.89 of 1990 for permanent injunction on the foot of the agreement on the file of the District Munsif, Harur and the said filing of the suit itself would go to show that the plaintiff was well aware of his right to sue on the agreement for specific performance, if really he is entitled to file such suit. He would also submit that the plaintiff has not obtained any permission to file a suit for specific performance at a later point of time and therefore, the said claim of specific performance would be barred by resjudicata under Order II Rule 2 C.P.C. Apart from that, the evidence of P.W.1 and P.W.2 would not speak to the effect that they were always ready and willing to perform their part of the contract or the plaintiff's part of the contract. In the absence of such proof that the plaintiff was always ready and willing to perform its part of the contract at the earlier point of time, the plaintiff shall not be given any right to claim equitable relief of specific performance in the suit, despite the balance amount has been deposited in the Court. He would submit in his argument that readiness and willingness shall be pleaded and proved as per section 16(c) of the Specific Relief Act, but it is glaringly absent in his case. He would further submit in his argument that the lower Court had not applied the legal points properly but with perversity had passed the judgment and decree in favour of the plaintiff without considering the legal requirements complied with. He would therefore, request the Court that it is a fittest case to interfere and set aside the judgment and to dismiss the suit filed by the plaintiff. He would therefore, request the Court to allow the appeal and thereby to dismiss the suit filed by the plaintiff before the lower Court. 14. Mr.K.Doraisamy, learned Senior Counsel would submit in his argument that the sale agreement was entered into between the parties namely the said Abdul Rawoop on behalf of the plaintiff and the defendants 1 to 5 on payment of Rs.50,000/- as advance on 21.02.1989 in Ex.A1 and possession was immediately handed over to the plaintiff. He would further submit that the plaintiff as the partnership firm had entered into the said agreement with the defendants and it could be evidenced though the receipts given by the defendants in Exs.A4 to A7 and that they have agreed that the agreement was entered into with them was only on behalf of the plaintiff firm. He would further submit in his argument that the minor sons of the 4th defendant had https://hcservices.ecourts.gov.in/hcservices/ filed a suit in the year 1989 itself in O.S.No.482 of 1989 and they obtained injunction in I.A.No.108 of 1989 from alienating the suit properties and therefore, the plaintiff could not lay a claim against the defendants in enforcing the said agreement. Therefore, he was prevented from enforcing the agreement and the period of such prevention has to be taken for excluding the period of limitation as per Section 15 of Limitation Act. He would further submit in his argument that the said exemption was pleaded in the plaint itself and the plaintiff was having the period of limitation till 30.06.1995 and the plaint was filed within such time and therefore, it was in order. He would further submit that the possession of the plaintiff was disturbed by the defendants and therefore, he had to file a suit for permanent injunction and it was also decreed against the defendants. He would also submit in his argument that the case of the defendants 1 to 3 and 5 on the one hand and the 4th defendant on the other hand are contradictory to each other before the lower Court and it is curious to note that they have come forward jointly has appellants before this Court, questioning the judgment and decree of the lower Court. He would further submit in his argument that the appellants have now given a goby to their written statement and the pleadings before the lower Court. The execution of the receipts in Exs.A4 to A7, after the execution of the sale agreement, would amply prove that the sale agreement, Ex.A1, was executed by Abdul Rawoop on behalf of the plaintiff firm, even otherwise, the inclusion "ntW egh;fs;" in,Ex.A1 would include the plaintiff also along with Abdul Rawoop. The reply notice sent by the defendants would go to show the receipt of payments made over by the plaintiff and therefore, they cannot now come forward along with the 4th defendant to say that the plaintiff has no 'locus standi' to maintain the suit. He would also submit that the case of the 4th defendant that Ex.A1 was a fabricated document that he did not sign the document, would not hold water, since the 4th defendant who pleaded so had not come forward with any acceptable evidence. He would further submit that when the defendants have been injuncted in Ex.A12, the plaintiff could not file a suit and he had kept quiet, and therefore, the exemption would come into play as per the provision of Section 15 of the Limitation Act. The defendants 4 , 5 and 2 as D.W. 1 to 3 do not come forward to say that Ex.A1 agreement was not genuine. D.W.2 and D.W.3 have accepted the execution of the agreement and it is for the 4th defendant to summon the Sub-Registrar to rebut the presumption of the genuineness of the registered document, Ex.A1. He would also submit that the suit property was put to common hotch pot of the plaintiff and was divided into plots and the same was not disputed or questioned in the evidence of P.Ws and therefore, the said stand of the plaintiff has to be accepted. He would further submit that any contract of sale can be assigned to third party who need not be a party to the agreement and in the present case, it has been made over to the plaintiff firm impliedly by execution of receipts by the defendants in favour of the plaintiff firm. He would further submit that the Managing Partner was a party to the document and when the third party seeks to enforce https://hcservices.ecourts.gov.in/hcservices/ the contract obtained the same from the party who entered into contract should not be objected by the party to the contract. He would also submit that the provision made in the agreement would also entitle the third parties which would include the plaintiff also. He would draw the attention of the Court to the judgment of Allahadad High Court reported in AIR 1967 Allahabad 253 (Umar Noor Mohammad v. DayalSaran Darbari) for the principle that the Vendee can ask the Vendor to execute the sale deed in favour of his nominees. He would also cite various decisions reported in AIR 1926 Madras 699 (Munuswami Nayudu v. Sagalaguna Nayudu) , AIR 1928 PC 174 (Sakalaguna Nayudu v. Chinna Munnuswami Nayudu), AIR 1961 Assam 173 (Bipin Behari Deb