A.K. MUTHUSAMY GOUNDER Vs. SELVAKUMAR
HIGH COURT OF MADRAS
A.K. Muthusamy Gounder
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(1.) Aggrieved over the Judgment of the First Appellate Court reversing the Judgment and Decree of the trial Court in granting decree for specific performance in favour of the Plaintiff, the present Second Appeal came to be filed. For the sake of convenience, the parties are arrayed as per their own ranking before the trial Court.
(2.) brief facts leading to file this Second Appeal is as under:
2.(a) It is the case of the Plaintiff that the First Defendant entered into an registered sale agreement of the suit property for a sale consideration of Rs.4,10,000/- on 13.8.2001 and received a sum of Rs.25,000/- from the Plaintiff as advance. It is specifically agreed that the sale shall be completed within three months from the date of agreement. On 9.11.2001 the Plaintiff met the First Defendant at Coimbatore along with balance sale consideration of Rs.3,85,000/- for registering the sale deed. The First Defendant has informed the Plaintiff that the Second and Third Defendants have fabricated a false agreement in the name of the First Defendant and hence the First Defendant filed suit in O.S.No.309 of 2001. Therefore, informed the Plaintiff that after disposal of the above suit he would execute the sale deed. Accordingly, on 11.2.2001 the First Defendant extended another three months time for completion of the sale and made endorsement in the presence of the witnesses. The Plaintiff also came to know that the Second and Third Defendants have obtained Interim Injunction against the First Defendant not to sell the property. The Plaintiff came to know about the above Injunction in the month of December 2001. Since the First Defendant has informed the Plaintiff that the agreement relied upon by the Second and Third Defendants are false and fabricated, the Plaintiff was ready to purchase the suit property by paying remaining sale consideration for which the First Defendant advised him to take legal advise. Accordingly, he took him to First Defendant's Advocate on 26.12.2001. The Advocate has informed the Plaintiff that since there is an Injunction, he cannot purchase the property. Accordingly, the First Defendant agreed that after the vacation of the Injunction he would execute the sale deed.
2.(b) The Plaintiff was always ready and willing to purchase the property. The Injunction order passed by the trial Court was appealed in C.M.A.No.50 of 2002. The said C.M.A.was allowed on 20.4.2004. Thereafter the Plaintiff repeatedly demanded the First Defendant to execute the sale deed. However, the First Defendant dragging the matter. Thereafter, the Plaintiff has met the First Defendant personally on 20.12.2004 and requested him to execute the sale deed. However, he refused to extend the sale agreement further. Hence, the Plaintiff issued legal notice dated 30.12.2004 to all the defendants. The Second and Third Defendants were aware of the agreement dated 13.8.2001. They have not made the Plaintiff as a party to the suit in O.S.No.309 of 2001. The agreement dated 14.02.2001 alleged to have entered between the First to Third Defendants has been fabricated and forged by the defendants. Hence, the Plaintiff has filed suit for Specific Performance.
2.(c) The First Defendant admitting the execution of the sale agreement dated 13.8.2001, but denied the receipt of Rs.25,000/- as advance. It is the contention of the First Defendant that six months prior to 13.08.2001 he has entered into the agreement with Second and Third Defendants for Rs.3,00,000/-on 14.02.2001 and on that date the First Defendant received Rs.2,50,000/- as advance and agreed to complete the sale within 10 months. He has also delivered possession to the Second and Third Defendants. The Plaintiff has approached the First Defendant in the first week of August 2001 and requested to sell the property to him. Even though the Plaintiff was fully aware of the sale agreement in favour of Second and Third Defendants, he offered higher price of Rs.4 lakhs and above and assured the First Defendant that he would meet the claim of the Second and Third Defendants and their documents and this Defendant need not bother about it. At that stage also he has insisted this defendant to execute the sale agreement so that he can handle Second and Third Defendants. He forced him to accept the terms. The Plaintiff is an influenced man. Accordingly, agreement dated 13.8.2001 came into existence.
2.(d) Second and Third Defendant have acted otherwise after they filed suit for Specific Performance in O.S.No.309 of 2001 and obtained Ad-Interim Injunction against him. The Plaintiff in fact, took charge of the defence in that suit. Even in the notice stage, the Plaintiff took responsibility to meet the case of the Second and Third Defendants. It was the Plaintiff who engaged the counsel for the First Defendant and paid fees and gave instruction for written statement. The Plaintiff assured that he would get favourable order from the Court, so that he would evict the Second and Third Defendants from the suit property. As days went by, the First Defendant realised that there is no point in defending O.S.No.309 of 2001, since he did not have any valid defence. The Plaintiff has not prepared to purchase the property before the final disposal of the suit. The First Defendant also advised by his well wishers to honour the agreement of sale dated 14.02.2001 and executed the sale deed in favour of the Second and Third Defendants. The Plaintiff has only filed the present suit after the sale of suit property and it is also denied by this Defendant that he met the Plaintiff and the Defendant on 13.08.2001 and he took him to the Advocates office for advice all are denied. Hence submitted that the Plaintiff is not entitled for Specific Performance.
2.(e) It is the contention of the Second and Third Defendants that these Defendants have entered into a sale agreement on 14.02.2001 with the First Defendant and paid a sum of Rs.2,50,000/- as advance. The time for performance is 10 months. They have taken possession of the property on the date of agreement itself. As the First Defendant did not come forward to execute the sale agreement as per the terms, Second and Third Defendants constrained to institute suit for specific performance in O.S.No.309 of 2001. The Plaintiff was aware of the above agreement. He has always had an eye over the above property. After institution of O.S.No.309 of 2001, Second and Third Defendants came to know that the Plaintiff created a registered agreement of sale dated 13.8.2001. This agreement was a result of collusion between the Plaintiff and the First Defendant with the sole aim to defeat the right of the these defendants. At the instigation of the Plaintiff, the First Defendant put a false plea that the agreeement dated 14.02.2001 was forged one. Since the First Defendant realised that it is impossible to evict the Second and Third Defendants from the suit property, at the intervention of panchayatdars, First Defendant was agreed to sell the property to these Defendants in pursuance of agreement of sale and by receiving the balance sale consideration of Rs.50,000/- he executed the sale deed. The agreement dated 13.08.2001 is not a genuine one. It has been brought out with ulterior motive to defeat the rights of the Second and Third Defendants. The agreement is subsequent to the agreement dated 14.02.2001.
2.(f) The Plaintiff was also aware of the suit in O.S.No.309 of 2001 as soon as it was instituted. It was the Plaintiff who was conducting the suit on behalf of the First Defendant. It was the Plaintiff who chose the lawyer for the First Defendant. The endorsement alleged dated 11.12.2001 on the agreement dated 13.8.2001 is created one. In the previous suit, counsel for the First Defendant was engaged by the Plaintiff. Thereafter, he changed. The plea that the Plaintiff was always ready and willing is also denied. The Plaintiff have money and men power and indulged in speculative acts on the strength of his power and influence. Hence, prayed for dismissal of the suit.
(3.) The trial Court has framed the following issues:
1. Whether the Plaintiff is entitled to Specific Performance as prayed for?
2. Whether he is entitled to Permanent Injunction as prayed for in the suit?
3. Whether there is any cause of action for the suit?
4. To what other relief? ;
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