IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 6-1-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALILNGAM AND THE HONOURABLE MR.JUSTICE T.RAJA OSA Nos.28 and 55 of 2009 Vasantha .. Appellant in OSA 28/2009 and 2nd Respondent in OSA 55/2009 vs 1.C.Ramachandran 2.Rajaniram .. Respondents in OSA 28/2009 and Appellants in OSA 55/2009 3.Sundaramahalingam .. 1st Respondent in OSA 55/2009 Original side appeals preferred under Order XXXVI Rule 1 of O.S. Rules against the common judgment and decree of this Court in C.S.Nos.255 of 2006 and 251 of 1998 dated 22.10.2008 respectively. For Appellant in OSA 28/2009 and Respondents in OSA 55/2009 : Mr.M.Rajaraman For Respondents in OSA 28/2009 and Appellants in OSA 55/2009 : Mr.S.V.Jayaraman Senior Counsel for M/s.T.Dhanasekaran COMMON JUDGMENT (Judgment of the Court was made by M.CHOCKALILNGAM, J.) These appeals challenge a common judgment of the learned Single Judge of this Court made in C.S.Nos.251 of 1998 and 255 of 2006, whereby both the suits were dismissed. 2.For the sake of convenience, the parties will be hereinafter referred to as plaintiffs and defendants as found in C.S.No.251 of 1998. https://hcservices.ecourts.gov.in/hcservices/ 3.The appellants in OSA No.55 of 2009 as plaintiffs filed C.S.No.251 of 1998, a suit for specific performance, with the following averments: (a) The first plaintiff is the husband of the second plaintiff, while the first defendant is the husband of the second defendant. A portion of the house and premises in Door No.40, South Mada Street, Mylapore, Chennai, is in the possession of the plaintiffs. The said property belonged to Mayeem Ahmed and five others, while the house and premises in Door No.2, Pitchu Pillai Street, Mylapore, Chennai, belonged to Zaibunnissa Begum and others. In both the properties, Mayeem Ahmed and others had 3/4 share, while Zaibunnissa Begum and others had ¼ share. The first plaintiff entered into an agreement of sale dated 24.9.1995, with Mayeem Ahmed and five others in respect of 3/4 undivided share in Door No.40, South Mada Street, while the second plaintiff entered into an agreement of sale dated 24.9.1995, with Mayeem Ahmed and others in respect of 3/4 undivided share in Door No.2, Pitchu Pillai Street. The plaintiffs had also intention to purchase ¼ share in both the properties. (b) The plaintiffs subsequently entered into an agreement of sale dated 22.2.1996, with the first defendant. The said agreement contains the property which the plaintiffs wanted to retain, and the same has been described as 'B' Schedule therein. After retaining the entire property bearing Door No.40, South Mada Street, and after retaining 1140 sq.ft. at South Mada Street, they have decided to sell the remaining extent namely 3019 sq.ft. The second defendant has purchased both the properties by way of two registered sale deeds dated 28.8.1996 and 19.3.1997 respectively. As regards ¼ share in both the properties, sale deeds were executed by the first defendant a Power of Attorney Agent of the owners of the said property in favour of his wife the second defendant. The second defendant had purchased the said property without the knowledge of the plaintiffs. The second defendant is bound by the agreement entered into between the plaintiffs and the first defendant, and she is aware and conscious of the said agreement. (c) As per the agreement dated 22.2.96, the plaintiffs are entitled to retain 1140 sq.ft. in Door No.40, South Mada Street, and therefore, the defendants are not only bound by that agreement but also estopped from questioning and denying the rights of the plaintiffs in that regard. The plaintiffs sent a letter dated 19.8.97, followed by a reminder dated 6.9.97. The defendants sent a reply admitting the receipt of those letters. (d) The suit instituted by some of the tenants in O.S.No.3930 of 1996 on the file of the City Civil Court, Madras, has no bearing on the plaintiffs' right. In view of the second defendant having become the owner of the entire property, she is bound and liable to convey 1140 sq.ft. at Door No.40, South Mada Street. As per the agreement, the value of 1140 sq.ft. works out to about Rs.12 lakhs out of which Rs.8.5 lakhs are in the hands of the first defendant, and they are prepared to pay the same. The plaintiffs are ready and willing to perform their part of the contract. https://hcservices.ecourts.gov.in/hcservices/ 4.The first defendant filed a written statement alleging that the consideration was fixed at Rs.16 lakhs in respect of the agreement of sale of 3/4 share in both the properties, out of which Rs.1 lakh each was paid by both the plaintiffs as advance; that they have not entered into any agreement of sale with the owners in respect of the remaining ¼ share in both the properties; that in view of the plaintiffs' inability to perform their part of the contract by paying the balance of sale consideration, they approached the first defendant at the fag end; that accordingly, the first defendant paid a sum of Rs.30 lakhs to Mayeem Ahmed and others and in lieu thereof, they executed a General Power of Attorney dated 22.2.1996, in his favour and in that document, the first plaintiff has signed as a witness; that the first defendant also entered into an agreement with the plaintiffs on 22.2.1996; that he agreed to convey 1140 sq.ft. of land to the plaintiffs provided they deliver vacant possession of the properties within 90 days from the date of agreement and arrange to get general power of attorney in his favour in respect of 3/4 share; that the plaintiffs failed to comply with the same; that since the plaintiffs failed to perform their part of obligation stipulated in the agreement dated 22.2.1996, and in particular clauses 2 and 6, the suit itself is premature; that nowhere in the agreement, the consideration of Rs.12 lakhs has been mentioned for 1140 sq.ft., and therefore, the suit was to be dismissed. 5.The second defendant as plaintiff filed C.S.No.255 of 2006 for recovery of possession of an extent of 1140 sq.ft. in Door No.40, South Mada Street, permanent injunction and damages alleging that she is the absolute owner of the said premises; that the defendants therein are neither tenants nor licensees; that their possession is illegal; that they are liable to deliver vacant possession; and that they are attempting to put up structures under the guise of effecting repairs. 6.The defendants contested the suit by stating that the plaintiff and her husband are in possession of the suit property; that the same led the defendants to retain a portion namely 1140 sq.ft., while entering into the agreement; that the plaintiff is bound by the said agreement, and hence the suit was to be dismissed. 7.On the above pleadings, the trial Court framed five issues in CS No.251/98 and six issues in CS No.255/2006. Both the suits were tried jointly by the trial Court. On the side of plaintiffs, first plaintiff was examined as P.W.1 and two documents were marked as Exs.P1 and P2. On the side of defendants, the first defendant examined himself as D.W.1 and Exs.D1 to D7 were marked. After hearing the arguments advanced on either side, the trial Court took the view that the claim is not maintainable and hence dismissed both the suits. Hence these appeals. 8.Advancing arguments on behalf of the plaintiffs/appellants in OSA No.55 of 2009, the learned Senior Counsel Mr.S.V.Jayaraman would submit that the plaintiffs are entitled to get a decree for specific performance in respect of Ex.D3 agreement of sale dated 22.2.1996; that it is pertinent to note that time is not the essence of the contract; that nowhere it is mentioned so in Ex.D3; that at the time https://hcservices.ecourts.gov.in/hcservices/ of agreement Ex.D3, both the plaintiffs and the defendants anticipated some delay and hence included clause 13 in the agreement that the purchaser is entitled to interest at the rate of 24% per annum on the advance paid; that the defendants had not issued any notice to the plaintiffs asking them to perform as per agreement nor cancelled or terminated the agreement; that the defendants had kept alive Ex.D3 by their own act of contacting the plaintiffs to get the sale deed executed in their favour as per Ex.D6 dated 12.9.1997; that the defendants had alleged in Ex.D6 that the entire suit property was purchased with the concurrence of the plaintiffs; that the plaintiffs were continuously ready and willing to perform their part of the contract; that the conduct of the defendants in purchasing the property without the plaintiffs' knowledge and consent prevented them from performing their part; that it is pertinent to note that the failure of obtaining the power of attorney alone will not amount to non-performance; that once the sale deed dated 19.3.1997, had been executed, the obligation of the plaintiffs is completed as per Ex.D3; that the defendants had admitted in Ex.D6 letter, that the entire suit property was purchased by them with the concurrence of the plaintiffs which amounts to the fact that the contract under Ex.D3 still existed on the date of purchase of the property by the defendants; that it is nowhere stated by the defendants that they informed the plaintiffs that they are treating the agreement Ex.D3 as cancelled; that the object or purpose with which the agreement was entered into was achieved by the defendants by purchasing the property from the vendors of the plaintiffs, and therefore nothing remained on the part of the plaintiffs to fulfill; that when there is no evidence produced by the defendants to show that they have obtained oral consent from the plaintiffs, the suit for specific performance should have been decreed; that under the circumstances, the judgment of the learned Single Judge has got to be set aside and the relief of specific performance be granted. 9.In answer to the above, the learned Counsel appearing for the appellant/second defendant in OSA No.28 of 2009 Mr.M.Rajaraman would submit that it has been clearly mentioned in the plaint that the possession of the suit property by the plaintiffs was illegal as they had not fulfilled their obligations under Ex.D3 agreement; that it is pertinent to note that the plaintiffs had contested with regard to their rights to purchase the extent of 1140 sq.ft. and had not denied specifically that their possession was not illegal; that they had not taken any defence to the effect that they were tenants under the appellant either expressly or impliedly entitled for protection under the Tamilnadu Buildings (Lease and Rent Control) Act; that no particulars of alleged tenancy were given, and not even the date of alleged tenancy was stated in the written statement; that in the absence of a clear and specific pleading, the controversy as to the tenancy should not have been entertained by the trial Court; and that under the circumstances, the suit for recovery of possession has got to be decreed by setting aside the judgment of the trial Court. 10.As could be seen above, the plaintiffs have filed C.S.No.251/98 for the relief of specific performance, while the second defendant therein has filed C.S.No.255/2006 for recovery of possession of the schedule mentioned property. https://hcservices.ecourts.gov.in/hcservices/ 11.Admittedly, the house and premises in Door No.40, South Mada Street, Mylapore, Madras, and the house and premises in Door No.2, Pitchi Pillai Street, Mylapore, Madras, belonged to Mayeem Ahmed and five others and Zaibunnissa Begum and three others respectively. In both the properties Mayeem Ahmed and others were entitled to undivided 3/4 share, while Zaibunnissa Begum and others were entitled to undivided ¼ share. From the available materials and the evidence both oral and documentary, it could be seen that on 24.9.1995, the first plaintiff entered into an agreement for the purchase of 3/4 share in Door No.40, South Mada Street, while the second plaintiff entered into an agreement to purchase 3/4 undivided share in Door No.2, Pichu Pillai Street. Insofar as the remaining undivided ¼ share which belonged to Zaibunnissa Begum and others, no agreement was entered into between the parties. At this juncture, it is to be pointed out that both the agreements dated 24.9.1995, entered into between the plaintiffs and Mayeem Ahmed and five others in respect of 3/4 undivided share in both the properties, though averred in the plaint, were neither produced nor relied upon by the plaintiffs. From the plaint averments and the evidence of P.W.1, it could be seen that the plaintiffs entered into an agreement on 22.2.1996, with the first defendant on the strength of which, the present suit for specific performance was laid. The said agreement dated 22.2.1996, reads as follows: "AND WHEREAS the Vendors, after purchasing the entire property, decided to retain a portion of 57 x 20 ft., 1140 sq.ft., at the South Mada Street, more fully described in the 'B' Schedule hereunder and decided to sell the remaining extent of 3019 sq.ft., consisting of door no.40, South Mada Street and No.2, Pichu Pillai Street, more fully described in 'C' Schedule hereunder." 12.It was an agreement entered into between the plaintiffs on the one hand and the first defendant on the other hand. It is pertinent to point out that at the time when this agreement was entered into between the plaintiffs and the first defendant on 22.2.1996, the plaintiffs were only agreement holders, and they did not have any right over the properties in question. Further, on the day of the alleged agreement namely 22.2.1996, even the defendants did not have any existing right over the property. Even the above clause relied on by the plaintiffs in the said agreement, would indicate that after the purchase of the property from the original owners as per the agreement entered into on 24.9.1995, out of the total area of 4159 sq.ft., the plaintiffs would sell 3019 sq.ft., in door No.40, South Mada Street, and also door No.2, Pichu Pillai Street, after retaining 1140 sq.ft. Thus it would be quite clear that it was an agreement where the plaintiffs undertook to sell the property measuring 3019 sq.t. But, it was not an agreement where either of the defendants undertook to sell 1140 sq.ft. to the plaintiffs. It remains to be stated that the whole Clause itself was an expression of an intention of the plaintiffs to retain 1140 sq.ft. after the purchase of the entire property to be made in future. At no stretch of imagination this could be termed as an agreement for sale entered into by either of the defendants with the plaintiffs for https://hcservices.ecourts.gov.in/hcservices/ sale of the property. The entire agreement does not stipulate any value or the price of the said 1140 sq.ft. Thus this Clause which is relied on by the plaintiffs can neither be an agreement for sale nor would give them a cause of action for filing a suit for specific performance. 13.Apart from the above, the said agreement has stipulated certain conditions which are as follows: "2.The Vendors have this day obtained power in the name of the purchaser for the 75% of undivided share in item Nos.I and II of the 'A' Schedule property and also undertake to obtain the power in the name of purchaser himself for the remaining 25% from Saibunnissa Begum and after getting the entire power the purchaser undertakes to convey 1140 sq.ft., in favour of the Vendors or their nominees. ... 5.The Vendors covenant to pay all the rates and taxes till the date of handing over possession. 6.The Vendors covenant to arrange for the delivery of vacant possession from the original owner within 90 days from this day." 14.It is pertinent to point out that the first plaintiff as P.W.1 has candidly admitted that he has not performed any one of the conditions. It is urged by the learned Counsel for the appellants/plaintiffs that the first defendant as the power of attorney of the original owners has executed two registered sale deeds on 28.9.1996 and 19.3.1997 respectively, in respect of the entire property thereby the first defendant has not only acted contrary to the agreement dated 22.2.1996, but also prevented them from purchasing the property as per the original agreement. This contention cannot be accepted for the reason that the plaintiffs have not sought for the relief of specific performance on the strength of the agreement entered into by them with the original owners namely Mayeem Ahmed and others dated 24.9.1995. But, they have given up that agreement. Admittedly they have paid only a meager part of the consideration as found in the agreement dated 24.9.1995. As could be seen from the agreement dated 22.2.1996, a sum of Rs.30 lakhs was paid by the defendants pursuant to which a power deed was executed in favour of the first defendant on the very day. Thus it would be quite clear that the plaintiffs have neither performed their obligations nor acted upon the agreement dated 24.9.1995, but they have given it up. The learned Counsel for the appellants/plaintiffs took the Court to the letters exchanged between the parties which, in the absence of any agreement for sale of 1140 sq.ft. by the defendants in favour of the plaintiffs, would not give any cause of action. 15.The Counsel on both sides were labouring much on the question as to whether the time was the essence of the contract in the instant case, which, in the considered opinion of the Court, was thoroughly irrelevant. So long as the plaintiffs are unable to show that there was an agreement for sale entered into between the first defendant power of attorney or his wife, the second defendant, and the https://hcservices.ecourts.gov.in/hcservices/ plaintiffs, in respect of the property in question, they cannot maintain a suit for specific performance. 16.The contention put forth by the appellants/plaintiffs' side that the plaintiffs were continuously ready and willing to perform their part of the contract cannot be accepted. It is true that the necessary averments are found in the plaint. But, at the same time, the conduct of the plaintiffs should also indicate that they were ready and willing to perform their obligation consistent to the agreement. As pointed out earlier, there was no agreement for sale, nor was there any stipulation of any consideration. Therefore, the contentions put forth by the learned Counsel for the appellants/plaintiffs seeking specific performance, do not carry any merit whatsoever, and they are liable to be rejected. Accordingly, they are rejected. The learned trial Judge was perfectly correct in dismissing the suit. The judgment of the trial Court does not require any disturbance in the hands of this Court. 17.As far as the relief of recovery of possession sought for by the second defendant in C.S.No.255 of 2006 is concerned, this Court is unable to agree with the contentions put forth by the appellant/second defendant's side. It is not in controversy that the plaintiffs 1 and 2 who entered into agreements for sale with the original owners Mayeem Ahmed and others, have been tenants in the property for residential and non-residential purposes. When the agreements dated 24.9.1995, were in force, the plaintiffs have entered into an agreement with the first defendant who is the husband of the second defendant, and the second defendant has purchased the property. The first defendant in the capacity as the power of attorney has executed a sale deed in favour of his wife in respect of the suit property. Under the circumstances, the defendants cannot plead that they did not know that the plaintiffs were tenants in the property, and hence the averments made by the second defendant in her plaint that the plaintiffs wee trespassers has got to be rejected. That apart, the occupation of the suit property by the plaintiffs could not be termed as unlawful or illegal. Under Ex.D6 letter, the defendants have categorically admitted that the plaintiffs were in occupation as tenants, and hence they made a demand to vacate and deliver possession within a period of two months from the date of receipt of Ex.D6. This would also clearly indicate that the defendants have treated the plaintiffs as tenants. The plaintiffs who were in occupation of the property as tenants of the original owners, would continue to be tenants, and their status as tenants would not be lost by the mere purchase of the property by the second defendant from the original owners. The available evidence would clearly indicate that the second defendant had not only the knowledge, but also treated the plaintiffs as tenants. Under such circumstances, the defendants cannot be permitted to state that the plaintiffs were either trespassers or under illegal possession. Hence the learned Single Judge was perfectly correct in rejecting the said contention. However, it is open to the second defendant to take appropriate proceedings in accordance with law for eviction and other reliefs if so advised. https://hcservices.ecourts.gov.in/hcservices/ 18.In the result, both these original side appeals are dismissed confirming the common judgment and decree of the learned Single Judge and leaving the parties to bear their own costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nsv To The Sub Assistant Registrar, Original Side, High Court, Madras. + 2 ccs to Mr.T.Dhanasekaran, Advocate, SR 1107 & 1106 + 2 ccs to Mr.M.Rajaraman, Advocate, SR 946 & 947 OSA Nos.28 and 55 of 2009 SP (CO) RH (19.1.10) https://hcservices.ecourts.gov.in/hcservices/