G.G. BHARATHIDASAN Vs. MALINI MAI

JUDGEMENT

(1.) The unsuccessful obstructor, having been aggrieved by the impugned judgment and decree dated 21.03.2014 made in A.S.No.410 of 2011 passed by the VII Additional Judge, City Civil Court, Chennai, confirming the judgment and decree dated 22.09.2011 made in E.A.No.8294 of 2009 in E.P.No.1018 of 2009 in O.S.No.8516 of 2008 passed by the X Assistant Judge, City Civil Court, Chennai, has brought this second appeal.

(2.) Mr.S.Vasudevan, learned counsel for the appellant/obstructor submitted that the appellant has been engaged in real estate business and during the course of his business, he came to know about the judgment debtors-M/s Nest Tours and Travels Private Limited represented by its Directors Mr.Ram V.Mani and Mrs.Santha Mani while dealing with a property in Navalur village, since the said Mr.Ram V.Mani agreed to purchase the said property, and thereby he paid an advance and also became close to the appellant. While so, when the appellant was also in search of office accommodation for his own business activities, the first judgment-debtor informed him that he was interested in selling the suit property in order to get rid of the financial crisis and as such, informed the appellant that he required a minimum sum of Rs.1 lakh. In that process, the first judgment-debtor agreed to sell the suit property for a sum of Rs.12 lakhs and as part payment, the appellant paid a sum of Rs.1 lakh by cash towards advance. As a token of acknowledgment, the first judgment-debtor had put the appellant in physical possession of the suit property in May, 2003. Since then, he has been in possession and carrying on the business in the name and style of ''Dasan Associates, Nirmala Arul Foundation'' as Proprietor and thereupon started a private limited company under the name and style of ''Easwari Cubic Associates Private Limited''. When the appellant requested the first judgment-debtor to execute the sale deed in respect of the suit property, it was informed that the said property was mortgaged with REPCO Bank. In view of that, the appellant was requested to pay a further sum of Rs.1,43,000/- towards the said loan account. Accordingly, the appellant paid the said amount to REPCO bank and stopped the property from being sold in the public auction. However, as against his expectation, the judgment-debtors wrongly conspiring with the decree-holders/respondents herein had sold away the property by executing the sale deed dated 2.2.2007.

(3.) Learned counsel for the appellant further submitted that when the appellant herein was given physical possession of the suit property from May, 2003 and he has been carrying on the business in the name and style of ''Dasan Associates, Nirmala Arul Foundation'' as Proprietor, the decree-holders and the judgment-debtors, colluding with each other, created a sham and nominal sale deed dated 2.2.2007 as if the respondents/decree-holders had purchased the suit property. But much prior to the sale deed dated 2.2.2007, the appellant had become the oral agreement holder by paying a sum of Rs.2,43,000/- as the sale consideration to the suit property. Therefore, the first judgment-debtor was bound to execute and register the sale deed in favour of the appellant by receiving the balance sale consideration, since there was an agreement to purchase the property for a sum of Rs.12 lakhs. When the appellant was all along waiting for the communication from the first judgment-debtor, on the basis of the decree passed in O.S.No.8516 of 2008 dated 18.2.2009 and the order passed by the executing Court in E.P.No.1018 of 2009 dated 24.9.2009, when the bailiff came for executing the warrant and the decree against the judgment-debtors on 4.11.2009, only then the appellant came to know of the fraud played by both the decree-holders/respondents and the judgment-debtors, by concealing the material fact that there was an oral agreement between the first judgment-debtor and the appellant herein, wrongly obtained a decree which cannot be allowed to be executed. Since the collusion and the conspiracy played were apparent only with a view to dispossess him from the suit property, the decree would render the transaction void ab initio and the Courts below have failed to see that the decree was obtained in collusion by playing fraud, which cannot be allowed to stand. When the appellant never expected or thought of any foul play from the decree-holders/respondents till the date of visit of the bailiff to the premises and on further enquiry, the appellant came to know about the filing of the suit followed by the decree passed in O.S.No.8516 of 2008 on 18.2.2009 and the execution order passed in E.P.No.1018 of 2009 on 24.9.2009. Only from these proceedings, on coming to know about the oblique motive of the respondents, the appellant filed a detailed counter affidavit in E.A.No.8294 of 2009 making it clear that the respondents herein are not having any right in respect of the suit property, since the appellant was not even impleaded as a party to the suit. Therefore, the passing of the decree in O.S.No.8516 of 2008 behind his back cannot be made as binding on the appellant. Placing all these facts, the appellant further pleaded before the executing Court about his entitlement of filing a suit for specific performance on the basis of the oral agreement, but the executing Court, dismissing the objection raised by the appellant, has wrongly allowed E.A.No.8294 of 2009 by merely stating that no evidence was adduced to prove the oral agreement reached between the judgment-debtors and the appellant. When the appellant being an occupant of the suit property, he has got every right, title and possession to the suit property, therefore, he cannot be considered as a stranger to the suit property. As a matter of fact, when the appellant has been in possession of the suit property from May, 2003 and moreover when he was not even made a party to the suit, which was filed with an oblique motive in collusion with the judgment-debtors to deprive his lawful right, the executing Court ought to have dismissed the execution appeal, he pleaded.