IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.02.2011 CORAM THE HONOURABLE MS. JUSTICE R. MALA Appeal Suit No.400 of 2008 and M.P.No.1 of 2008 A.Kaleelur Rahman represented by his Power Agent A.Abdul Hameed .. Appellant/Plaintiff Vs 1.A.Barkath 2.S.A.Khaja Mohideen .. Respondents/Defendants Prayer: This First Appeal (Appeal Suit) preferred under Section 96 of C.P.C. read with Order 41 and 41A of C.P.C., against the judgment and decree dated 25.09.2007 made in O.S.No. 352 of 2005 on the file of the Additional District Court, Fast Track Court No.1, Chengalpattu. For Appellant : Mr.H.Mohammed Farook For R1 : Mr.R.Subramanian For R2 : Served JUDGMENT This First Appeal (Appeal Suit) arises out of the judgment and decree dated 25.09.2007 made in O.S.No. 352 of 2005 on the file of the Additional District Court, Fast Track Court No.1, Chengalpattu. 2. The averments made in the plaint are as follows: (i) The first defendant's husband, met the plaintiff in June 2003 and offered to sell his wife's property of 1.07 acres in Survey No.471(part) in Mangadu Village for the purpose of meeting the expenses of completing the construction of his "Rahman Kalyana Mandapam" in Balaji Nagar, Pattur. After negotiation, the plaintiff has entered into sale agreement with the first defendant on 08.07.2003 and fixed the sale consideration for Rs.8,50,000/- and he paid an advance amount of Rs.2,00,000/- to the first defendant on 08.07.2003 at the time of execution of the said sale agreement and also six months time is granted for execution of sale deed. https://hcservices.ecourts.gov.in/hcservices/ (ii) The plaintiff paid Rs.1,00,000/- on 11.08.2003 and paid Rs.50,000/- on 25.08.2003 and the same were acknowledged by the first defendant by making endorsements in the said sale agreement. (iii) In the month of December 2003, when the plaintiff expressed his readiness and willingness to pay the entire balance of sale consideration to the first defendant, at the time, the first defendant said that there was some typographical error found in the title deed in respect of the survey number relating to the suit property and that should be rectified before the execution of the sale deed in favour of the plaintiff. (iv) On 10.01.2004, when the first defendant and her husband demanded a further advance of Rs.1,40,000/-, the plaintiff agreed to pay the same on condition that the possession of the suit property should be given to him for his cultivation in part performance of the contract. (v) On 12.01.2004, in the presence of the first defendant's brothers Shoukat Ali and Mr.Jaffarullah, the possession of the suit property was handed over to the plaintiff and in turn, he paid a sum of Rs.1,40,000/- to the first defendant's husband on 13.01.2004 in the presence of the first defendant's brother-in-laws Abdul Rahman and Mohamed Hasan. After the said payment, the first defendant's husband represented that he will get the signature from his wife, acknowledging the receipt of Rs.1,40,000/- and for delivery of possession. (vi) The first defendant and her husband had cunningly going on dodging and delaying to return back the original agreement to the plaintiff, with the endorsement of receipt of Rs.1,40,000/- and delivery of possession. The plaintiff has been placed in possession in part performance of the contract on 12.01.2004 and the plaintiff was always ready and willing to perform his part of contract. In the meantime, the plaintiff's advocate wanted to verify the title deed, patta and the extract of the land register. So the plaintiff requested the first defendant and her husband to furnish all those papers for verification. But they are dodging for the same. (vii) The plaintiff has issued a notice on 15.09.2005 to the first defendant. He received an evasive reply dated 30.09.2005. So he was forced to sent a rejoinder dated 26.10.2005. Since some typographical errors occurred in the said rejoinder, a corrigendum letter dated 12.11.2005 was issued to the first and second defendant. (viii) Subsequent to the sale deed dated 02.12.1971, the S.No.471 was subdivided and new subdivided S.No.471/5 was given to the property agreed to be sold. https://hcservices.ecourts.gov.in/hcservices/ (ix) Originally, one Palanisamy Pillai is the owner of the entire S.No.471 consisting of 6.07 acres, which was subdivided into S.Nos.471/1, 471/2, 471/3, 471/4, 471/5 and 471/6. (x) There was no privity of contract between the second defendant and the plaintiff. The second defendant is added as a party to the suit for directing him to execute necessary rectification deed. The plaintiff is, without prejudice to the facts, willing to pay again a sum of Rs.1,40,000/- and he is ready to pay a sum of Rs.5,00,000/- towards balance sale consideration. Hence he constrained to file a suit for mandatory injunction directing the first and second defendant to rectify the mistake committed in the sale deed dated 29.03.2001 and directing the first defendant to sell and convey the suit property to the plaintiff or in alternative, for recovery of compensation and for other reliefs and prayed for any decree. 3. The gist and essence of the written statement filed by the first defendant are as follows: (i) The suit itself is not maintainable for mandatory injunction and for specific performance. All the allegations stated in paragraphs 6 to 9 are denied. The first defendant is the absolute owner of the suit property and she is in possession and enjoyment of the suit property to an extent of 1.07 acres and its new S.No. is 471/4. (ii) The plaintiff had approached the first defendant through her husband to purchase the said land. Since the first defendant and her husband are in need of money urgently for completion of construction of a Kalyana Mandapam at Pattur Village, the balance of sale consideration of Rs.6,50,000/- has to be paid by the plaintiff within six months from the date of said sale agreement and complete the sale. (iii) The first defendant has received a further sum of Rs.1,00,000/- on 11.08.2003 and another sum of Rs.50,000/- on 25.08.2003 from the plaintiff towards the balance of sale consideration. Thereafter, the plaintiff has not paid any amount to the first defendant towards the balance of sale consideration. So the plaintiff has failed to perform his part of contract. He kept quite for all these years from the date of said sale agreement without performing his part of contract. Since the plaintiff has evaded and failed to pay the balance of sale consideration and complete the sale deed within six months as stipulated in the said sale agreement, the first defendant and her husband have been put into pitiable circumstances to sell and mortgage the immovable properties, pledging gold jewels and borrow money in order to meet the expenses for completion of the construction of Kalyana Mandapam. https://hcservices.ecourts.gov.in/hcservices/ (iv) The plaintiff has put great loss and hardship to the first defendant by act of non-performance of his part of contract. The first defendant never handed over the possession of the suit property to the plaintiff. The first defendant is in peaceful possession and enjoyment of her said land till date without any hindrances. The first defendant had filed a suit in O.S.No.993 of 2005 against the plaintiff before the District Munsif Court, Poonamallee for permanent injunction in respect of the suit property and an interim injunction has been granted in I.A.No.3499 of 2005 against the plaintiff, which is in force. Hence she prayed for the dismissal of the suit. 4. The trial Court, after considering the averments both in the plaint and the written statement and arguments of both the counsel, framed four issues and considering the oral evidence of P.W.1 and D.W.1 and documentary evidence of Exs.A1 to A15 and Exs.B1 to B30, dismissed the suit stating that the plaintiff is not ready and willing to perform his part of contract, against which, the present appeal has been preferred by the appellant/plaintiff. 5.After hearing the arguments of both sides counsel, the following points for determination are framed: 1.Whether the trial Court is correct in held that the appellant/plaintiff is not ready and willing to perform his part of contract? 2.Whether the trial Court is correct in held that the appellant/plaintiff is not entitled to compensation? 3.Whether the judgment and decree passed by the trial Court are sustainable? 4.To what relief, the appellant/plaintiff is entitled to? 6.Point No.1: (i) The appellant as the plaintiff has filed a suit for mandatory injunction and also for specific performance and alternatively for claiming compensation of the sale proceeds. The trial Court has, after considered the defence raised by the respondents/defendants, dismissed the suit on the ground that the appellant/plaintiff is not ready and willing to perform his part of contract. (ii) The first limb of the argument advanced by the learned counsel for the appellant/plaintiff is that the first respondent/first defendant herein has given a wrong survey number in the sale agreement under Ex.A2. In the said sale agreement, new survey number of the suit property is mentioned as 471/4. After the https://hcservices.ecourts.gov.in/hcservices/ execution of Ex.A2-sale agreement, the appellant/plaintiff is ready and willing to perform his part of contract. At the time only, he came to know that the survey number mentioned in the sale agreement under Ex.A2 is not correct. Hence he requested to get the rectification deed. He intended to take rectification and thereafter, he is ready to execute the sale deed to prove that Ex.A2 contains S.No.471/5 only. He has filed Exs.A14 and A15 to prove that the survey number of the suit property is 471/5. (iii) His second limb of argument is that he is always ready and willing to perform his part of contract. The appellant/plaintiff paid a sum of Rs.2,00,000/- by way of advance to the first respondent/first defendant on 08.07.2003 at the time of execution of the sale agreement. Subsequently, he paid Rs.1,00,000/- on 11.08.2003 and Rs.50,000/- on 25.08.2003. He further submitted that he paid further advance of Rs.1,40,000/- on 13.01.2004 and acquired the possession of the suit property on 12.01.2004. He further submitted that the survey number mentioned in Ex.A1-power of attorney deed, is 471/4 and its extent is 1.07 acres. But whereas the survey number of the property owned by the first respondent/first defendant is only 471/5. So he requested the first respondent/first defendant to execute the rectification deed to rectify the survey number. Because of the attitude of the first respondent/first defendant, the appellant/plaintiff was unable to perform his part of contract. To prove the subject matter of the suit property, he has filed Ex.A14- copy of the document No.3146 of 1971 and Ex.A15-copy of the document No.3148 of 1971 and also Ex.A6-chitta, Ex.A7-adangal and Ex.A8-field measurement plan. The appellant/plaintiff also issued notice on 15.09.2005 to the first respondent/first defendant. After receiving notice, the first respondent/first defendant sent an evasive reply dated 30.09.2005. After the receipt of that reply, he sent a rejoinder dated 26.10.2005 under Ex.A11 and a reply for the same has been received under Ex.A12. Hence he has filed the suit and he also forced to implead the second respondent/second defendant, who is the vendor of the suit property, which was purchased by the first respondent/first defendant. The trial Court has not considered these aspects in proper perspective and dismissed the suit on the ground that the appellant/plaintiff was not always ready and willing to perform his part of contract. Hence he preferred this appeal and prayed for allowing this appeal. (iv)Refuting the same, the learned counsel for the first respondent/first defendant submitted that the suit itself is not maintainable and the suit is not filed for specific performance. The appellant/plaintiff prayed for mandatory injunction directing the second respondent/second defendant to execute the rectification deed in favour of the first respondent/first defendant and the first respondent/first defendant is directed to sell the suit property to the appellant/plaintiff. Even though the appellant/plaintiff herein has mentioned in his plaint that he paid a sum of Rs.1,40,000/- on https://hcservices.ecourts.gov.in/hcservices/ 13.01.2004, but it was not proved. Since he has come to the court with false case, so he is not entitled to equitable relief of specific performance. (v)Furthermore, the possession of the suit property has not been handed over to the appellant/plaintiff on 12.01.2004. To prove the same, the first respondent/first defendant has filed Exs.B19 to B30- the chitta and adangal, which stands in the name of the first respondent/first defendant. So Exs.A6 to A8-chitta, adangal and field measurement plan filed by the appellant/plaintiff were fabricated documents. Since the appellant/plaintiff herein has not come to the Court with clean hands, so he is not entitled to any relief. (vi)He further submitted that the first respondent/first defendant is the owner of the S.No.471/4 and she purchased the same under Ex.B1-sale deed, from the second respondent/second defendant. In Ex.A9-a notice dated 15.09.2005, issued to the first respondent/first defendant, in which, the appellant/plaintiff mentioned the survey number of the suit property is 471/4. In para-9 of Ex.A11, it was mentioned that the suit property is situated in S.No.471/5. The appellant/plaintiff has issued corrigendum letter dated 12.11.2005 under Ex.A13, in which, he has stated that in his rejoinder dated 26.10.2005, he has wrongly mentioned the survey number as 417/4 and 417/5 instead of S.Nos.471/4 and 471/5. Those facts are clearly proved that the appellant/plaintiff has come to the Court with false case and he is not willing to perform his part of contract. As per the sale agreement dated 08.07.2003 under Ex.A2, six months time has been granted to the appellant/plaintiff to pay the balance of sale consideration. But the appellant/plaintiff issued a legal notice only on 15.09.2005 after two years, which shows that he is not ready and willing to perform his part of contract. The trial Court considered this aspect in proper perspective and dismissed the suit on the ground that the appellant/plaintiff is not ready and willing to perform his part of contract. Hence he prayed for dismissal of the appeal. (vii)Considered the rival submissions made on both sides. (viii)Originally, the suit property is belonging to the second respondent/second defendant. He executed the sale deed in favour of the first respondent/first defendant on 29.03.2001 under Ex.A3. The first and foremost averment made by the appellant/plaintiff is that the suit property is situated in S.No.471/5 with an extent of 1.07 acres. But the survey number of the property mentioned in Ex.A2-sale agreement is only 471/4 with an extent of 1.07 acres. Hence he impleaded the second respondent/second defendant as a party, who is the vendor of the property under Ex.A3-sale deed in the prayer for mandatory injunction. https://hcservices.ecourts.gov.in/hcservices/ (ix)At this juncture, it is appropriate to decide whether the suit is maintainable. Admittedly, as per Ex.A2, the sale agreement is executed in respect of S.No.471/4 only, with an extent of 1.07 acres. The sale price has been fixed for Rs.8,50,000/- and an advance amount of Rs.2,00,000/- has been paid by the appellant/plaintiff and six months time has been given to perform his part of contract. He also paid a sum of Rs.1,00,000/- on 11.08.2003 under Ex.A4 and Rs.50,000/- on 25.08.2003 under Ex.A5 and endorsements were also made. On February 2004 itself, six months time has been expired. But the appellant/plaintiff issued notice only on 15.09.2005 under Ex.A9. In Ex.A9 also, he has mentioned the property situated in S.No.471/4 with an extent of 1.07 acres. After receipt of a reply dated 30.09.2005 under Ex.A10, he sent a rejoinder dated 26.10.2005 under Ex.A11 and in para-9, he has stated that the suit property is situated in S.No.471/5. He received a reply dated 07.11.2005 under Ex.A12. He sent a corrigendum letter dated 12.11.2005 under Ex.A13, in which, he has mentioned the suit property situated in S.No.471/5 not 471/4. In this letter only, he has raised such a plea that the suit property is situated only in S.No.471/5 not 471/4. To substantiate his argument, he relied upon Ex.A14-copy of document No.3146 of 1971 and the original title deed under Ex.A15 in favour of the second respondent/second defendant, which is equal to Ex.B2. No documentary evidence is filed to show that the suit property is situated in S.No.471/5, except the documents filed under Exs.A6 and A7 show that the property situated in S.No.471/5 - 0.43.0 hectares. But in Exs.B19 to B24 filed by the first respondent/first defendant, chitta stands in the name of first respondent/first defendant, wherein it was specifically mentioned that S.No.471/4 – 0.43.0 hectares for fasli Nos.1411 to 1416. In Exs.B25 to B30, adangal were marked as S.No.471/4 - 0.43.0 hectares for fasli Nos.1411 to 1416. (x) Considering the documents filed by the appellant/plaintiff under Exs.A6 and A7 and the documents filed by the first respondent/first defendant in Exs.B19 to B30, it clearly shows that fasli Nos.1411 to 1416, survey number is mentioned as 471/4 and the owner name has been mentioned as first respondent/first defendant. The appellant/plaintiff herein has not raised that the suit property is situated in S.No.471/5 in earlier point of time, but he raised such a plea only in Ex.A13 dated 12.11.2005, in which, he has stated that the suit property is situated only in S.No.471/5 not in S.No.471/4. So it is bound and duty of the appellant/plaintiff to prove that the property mentioned in Ex.A2 is situated in S.No.471/5 not 471/4. To prove the same, he has not examined the revenue officials. In such circumstances, I am of the view, to get rid of latches and the delay on his side, he raised such a plea that the suit property is situated only in Survey No.471/5 not 471/4. So the arguments advanced by the learned counsel for the appellant/plaintiff that the suit property is situated in S.No.471/5 is unacceptable one. https://hcservices.ecourts.gov.in/hcservices/ (xi) As already stated that in Ex.A3-sale deed dated 29.03.2001, it was specifically mentioned that S.No.471/4 – 1.07 acres. On that basis only, Ex.A2-sale agreement dated 08.07.2003 was executed. After that, the appellant/plaintiff paid amounts under Exs.A4 and A5 on 11.08.2003 and 25.08.2003 respectively. But he kept quiet all along, he issued notice only on 15.09.2005 under Ex.A9 and sent a rejoinder on 26.10.2005 under Ex.A11. In that he has stated that the suit property situated in S.No.471/4. So I am of the view that the appellant/plaintiff is failed to prove that the suit property situated in S.No.471/5. (xii) Now this Court has to decide that whether the appellant/plaintiff is ready and willing to perform his part of contract. Ex.A1-power of attorney deed is admitted and the sale consideration of the property is Rs.8,50,000/- and an advance amount of Rs.2,00,000/- received by the first respondent/first defendant on the date of sale agreement are also admitted. Six months time has been granted for payment of balance sale consideration for execution of sale deed is also admitted. On 11.08.2003, the appellant/plaintiff paid Rs.1,00,000/- and on 25.08.2003, he paid Rs.50,000/- and in respect of those payments, endorsements were made under Exs.A4 and Ex.A5 are also accepted. So far, the appellant/plaintiff paid Rs.3,50,000/- to the first respondent/first defendant and he has to pay the balance sale consideration of Rs.5,00,000/- to him within six months. (xiii) P.W.1-the appellant/plaintiff in his proof of affidavit, he himself stated in paragraphs-8 and 9 that the first respondent/first defendant and her husband demanded a further advance of Rs.1,40,000/- to meet out the expenses for the construction of marriage hall. The appellant/plaintiff paid a sum of Rs.1,40,000/- on 13.01.2004 to the husband of the first respondent/first defendant, but the said amount has not been given credit to. He also handed over Ex.A2-sale agreement to the husband of the first respondent/first defendant to get endorsement for the payment of Rs.1,40,000/- from his wife, but they returned the said sale agreement without endorsement. Even though the appellant/plaintiff paid a sum of Rs.1,40,000/- on 13.01.2004, he sent a notice to the first respondent/first defendant only on 15.09.2005 under Ex.A9. But he has not taken any steps to get receipt for payment of Rs.1,40,000/- immediately. (xiv) The appellant/plaintiff has fairly conceded in para-17 of his proof of affidavit, which is as follows: "He has no document to show that he has paid Rs.1,40,000/- to the first respondent/first defendant on 12.01.2004". But now he is ready to pay that amount also. Since the first respondent/first defendant has made the endorsements on 11.08.2003 and 25.08.2003 under Exs.A4 and A5 for the payments made by the appellant/plaintiff, so the payment of Rs.1,40,000/- by the appellant/plaintiff on 13.01.2004 has not been https://hcservices.ecourts.gov.in/hcservices/ proved. Hence the payment of Rs.1,40,000/- on 13.01.2004 is unacceptable one. (xv) P.W.1, the appellant/plaintiff himself admitted in his cross-examination that the first respondent/first defendant wanted to sell the suit property only to meet out the expenses for construction of marriage hall. In his cross-examination, he has stated as follows: " 1tJ gpujpthjp th/rh/M/2y; Fwpg;gplg;gl;l ,lj;ij tpw;gjw;F fhuzk; mth; kh';fhL fpuhkj;jpy; jpUkz kz;lgk; fl;Ltjw;fhfj;jhd; me;j ,lj;ij tpw;f th/rh/M/2 Vw;gl;ljhFk;/ th/rh/M/2 Vw;gl;lnghJ fy;ahz kz;lgk; Xust[f;F fl;lg;gl;oUe;jJ/ th/rh/M/2/?y; brhy;yg;gl;l brhj;ij 1tJ gpujpthjp tpw;fg;nghfpwhh; vd;w tptuk; bjhpe;Jjhd; eh';fs; 1tJ gpujpthjpia mij th';Ftjw;F mQqfpndhk; vd;why; mJ rhpay;y/ 1tJ gpujpthjpapd; fzth; v';fis mQqfp me;j ,lj;ij tpiyf;F th';FkhW vd;id nfl;Lf;bfhz;ljhy; jhd; eh';fs; mij th';f Kot[ bra;njhk;/ th/rh/M/2 Vw;gl;lnghJ th/rh/M/15 eh';fs; ghh;itapltpy;iy/ " The above para shows that Ex.A2-sale agreement came into existence only to meet out the construction of marriage hall. (xvi) At this juncture, it is appropriate to consider the documents filed by the first respondent/first defendant. Since the appellant/plaintiff is not ready and willing to perform his part of contract, the first respondent/first defendant borrowed money from one A.M.Mosina Jebin and sold the property to her under Ex.B4. Then the first respondent/first defendant and her husband also obtained a loan under Ex.B6 by way of promissory note and mortgaged their properties under Exs.B7 and B9. They also obtained jewel loans under Exs.B11 to B13. It shows that because of non-performance of the contract by the appellant/plaintiff, the first respondent/first defendant herein was forced to borrow money and mortgaged their properties and also executed the sale deed to third party under Ex.B4. It clearly shows that the appellant/plaintiff herein was not ready and willing to perform his part of contract. Even though six months time has been granted, he issued notice only on 15.09.2005 after two years. (xvii) In Ex.A10-a reply sent by the first respondent/first defendant, it was specifically mentioned in paragraphs-9 to 11 that the appellant/plaintiff herein is not ready and willing to perform his part of contract. The appellant/plaintiff sent a rejoinder on 26.10.2005 under Ex.A11. On 07.11.2005, the first respondent/first defendant has sent a reply under Ex.A12, in which, she denied all the averments made by the appellant/plaintiff. But she fairly conceded that she received only Rs.3,50,000/- from the appellant/plaintiff and she has not received Rs.4,90,000/- and the possession was also not handed over to him. Thereafter, the appellant/plaintiff filed the https://hcservices.ecourts.gov.in/hcservices/ suit on 16.11.2005, which shows that he is not ready and willing to perform his part of contract. (xviii) Furthermore, the appellant/plaintiff has not only filed the suit for specific performance and also he impleaded the vendor of the suit property as a second respondent/second defendant and sought for mandatory injunction, directing the second respondent/second defendant to rectify the mistake committed in the sale deed dated 29.03.2001. As rightly pointed out by the learned counsel for the first respondent/first defendant that there is no privity of contract between the appellant/plaintiff and the second respondent/second defendant. After considering the sale deed under Ex.A3, he entered into sale agreement under Ex.A2. The appellant/plaintiff also paid Rs.2,00,000/- as an advance and subsequently, he paid Rs.1,50,000/- as per Exs.A4 and A5. Since there is no privity of contract between the appellant/plaintiff and the second respondent/second defendant, suit for mandatory injunction is not maintainable and so the appellant/plaintiff is not entitled to equitable relief of specific performance. (xix) At this juncture, it is appropriate to consider the decision relied upon by the learned counsel for the first respondent/first defendant reported in 2008 (3) L.W. 817 (M/S.Ramnath Publications Pvt. Ltd., represented by its Managing Director and others v. A.R.Madana Gopal and others), in which, mere plea though specifically made in the suit for specific performance under Section 16(c) of the Specific Relief Act, the plaintiff is ready and willing to perform his part of