P. Meenakshisundaram vs P. Vijayakumar

3. The facts leading to the filing of these appeals in brief are as under :-

The aforesaid case set up by respondent No.1 is disputed and denied by the appellant and according to him, with the intervention of local police and other hirelings, the possession was forcibly taken by respondent No.1 on 16.09.2002.

G. On 01.09.2002, a telegram was sent by the advocate for respondent No.1 to the appellant. Immediately thereafter i.e. on 02.09.2002 an IA No.126 of 2002 was preferred by respondent No.1 to implead himself in the Transfer Application No.1441 of 2002 before DRT, Coimbatore. In his reply telegram dated 03.09.2002 appellant denied all the assertions made by the advocate for respondent No.1 and cancelled the agreement dated 20.09.2000. The appellant also complained to DIG of the relevant range and sought police protection and preferred OP No.226 of 2002 in the High Court of Madras against respondent No.1, Inspector of Police, 6 Oomachikulam and Deputy Superintendent of Police of the concerned Division. According to the appellant, he was threatened by the hirelings employed by respondent No.1 and possession of the suit property was taken over by respondent No.1 on 16.09.2002. This prompted the appellant to prefer an appropriate petition before the Superintendent of Police, Madurai, Rural.

9. The assertion made by respondent No.1 in paragraph 7 of the plaint is a mere assertion without any relevant details as to what exactly he had done towards fulfillment of his obligations and completion of the transaction. The factual aspects as detailed above are quite clear that respondent No.1 had completely failed in his obligations and was not ready and willing to perform his part of the contract. Even going by the case set up by respondent No.1, that around 29.07.2002 an arrangement was arrived at, under which out of the balance amount Rs.19.5 lakhs, Rs. 13.5 lakhs were to be made over by respondent No.1 to the Bank directly and rest of the sum of Rs.6 lakhs was to be paid to the appellant in cash, the facts do not indicate any observance of these conditions. Beyond filing an application for impleadment which came to be dismissed, respondent No.1 did not take any step. The amount of Rs.13.5 lakhs was independently deposited and discharge was obtained by the appellant.

12. We, therefore, reject the claim of respondent No.1 and hold that the suit for specific performance preferred by respondent No.1 is required to be dismissed. At the same time we accept the counter claim made by the appellant and hold that he is entitled to recovery of possession. It appears that the assertions in the counter claim that the Kalyana Mandapam was fetching Rs.1,80,000/- per annum were not disputed or denied by respondent No.1. On the score that the appellant was wrongfully denied and deprived of the earnings from Kalyana Mandapam for the last 16 years, he would be entitled to reasonable return. But at the same time he had retained and enjoyed sum of Rs.18 lakhs which he had received by way of advance from respondent No.1. In the circumstances, though we would direct refund of the sum of Rs.18 lakhs, we further deem it appropriate to direct that in the circumstances neither would respondent No.1 be entitled to any interest on the sum of Rs.18 lakhs which was given by way of advances under the suit agreement to the appellant nor would appellant be entitled to any sum by way of mesne profits for last 18 years of wrongful possession of the suit property by respondent No.1.

13. Allowing the appeal, we therefore direct:-

Respondent No.1 shall deliver vacant and peaceful possession of the suit property to the appellant within one month from the date of this judgment. The appellant shall however not be entitled to any mesne profits in respect of wrongful possession of the suit property by respondent No.1.

(c) The decree passed by the trial court and affirmed by the High Court stands modified accordingly. Each party shall bear his own costs throughout.

14. The appeals stand allowed in the aforesaid terms. 21