KARTHIK HOMES Vs. S. MANVIZHI

JUDGEMENT

(1.) The plaintiff before the trial Court is the appellant in this second appeal. For the sake of convenience, the parties are described as they were before the trial Court. The plaintiff had filed the suit praying for a judgment and decree to direct the defendant to pay a sum of Rs. 3,76,990/- together with interest at the rate of 25% per annum on Rs. 2,30,375/- from the date of plaint till the date of realisation with four other reliefs for a direction to the defendant to pay a sum of Rs. 670/- with future interest at the rate of 25% per annum from the date of filing the suit till the date of realisation; for a declaration that the plaintiff is having a charge over the suit schedule flat as per Section 55(4)(b) of the Transfer of Property Act; for permanent injunction restraining the defendant and her men from in any way interfering with the possession of the suit flat till the entire amount was paid to the plaintiff and for payment of costs of the suit, on the ground that after the sale deed was executed in favour of the defendant in respect of the undivided share over the land measuring 290 sq.ft., on 29.11.2004 pursuant to the execution of construction agreement on the same date followed by a cheque for payment of a sum of Rs. 75,860/-, which was not realised due to want of sufficient funds, for which the defendant undertook to make payments, but defaulted in doing so for stage-wise instalments, besides E.B. deposit, Metrowater deposit & drainage deposit and when she failed and neglected to pay a sum of Rs. 3,30,375/-, thereafter, having wrongly filed a complaint before the District Consumer Disputes Redressal Forum, Chennai in C.C. No. 9 of 2006 for handing over vacant possession of the suit flat, the plaintiff was constrained to file the present suit for recovery of the balance amount as per the agreement, since admittedly the plaintiff is entitled to recover a total sum of Rs. 3,76,990/-, inasmuch as Rs. 75,860/- towards cost of unpaid sale price of land; Rs. 1,94,140/- due under the construction agreement, Rs. 60,375/- towards three phase E.B. deposit, metrowater deposit and drainage deposit and Rs. 46,615/- towards interest at the rate of 25% per annum from 31.8.2005. The claim of the plaintiff before the trial Court shows that the defendant purchased 290 sq.ft., of undivided share in the suit flat for Rs. 1,25,860/- and further agreed for payment of the construction cost for the suit flat bearing No. A1, First Floor in Door No. 18, Fifth Street, AVM Colony, Virugambakkam, Chennai at Rs. 7,44,140/-. For this sale of undivided share of land, only a sum of Rs. 50,000/- was paid in cash and the cheque issued by the sister of the defendant for the sum of Rs. 75,860/- was also dishonoured for want of sufficient funds. In view of that, the defendant undertook to pay the same and further agreed to pay a sum of Rs. 7,44,140/- towards the construction cost. While entering into a construction agreement on 29.11.2004, the defendant agreed to pay Rs. 25,000/- as advance and for the balance of Rs. 7,19,110/-, she agreed to pay the same as per the details given as under:--

(2.) The plaintiff further admits that the defendant made the payment of Rs. 25,000/- as advance. As agreed by the parties, the suit flat was completed on 31.8.2005. While so, although the defendant paid Rs. 3,40,000/- on 13.7.2005 and Rs. 2,10,000/- on 31.8.2005 towards the construction cost, she failed to pay the balance sale price of Rs. 75,860/- for the land cost and Rs. 60,375/- towards E.B. deposit, metrowater deposit, drainage deposit and the balance construction cost. When the defendant failed to pay the balance sale price of Rs. 75,860/- for the land cost, Rs. 60,375/- towards E.B. deposit, metrowater deposit, drainage deposit and the balance construction cost of Rs. 1,94,140/-, she promised to pay the same after availing loan from ICICI Bank, for which she requested the plaintiff to issue a receipt as if she had paid the margin amount of Rs. 3,19,970/- to the plaintiff to enable the defendant to show the same to the bank. However, the plaintiff refused to issue such a false receipt. In the meanwhile, a notice dated 3.10.2005 was sent by the defendant projecting as if a sum of Rs. 3,19,970/- was paid. The plaintiff, therefore, issued a suitable reply dated 7.10.2005 denying the receipt of the said amount, but demanded the payment of Rs. 3,30,375/-. Under this background, the defendant filed C.C. No. 9 of 2006 before the District Consumer Disputes Redressal Forum, Chennai for deficiency of service and for a direction to handover the suit flat to her.

(3.) In reply to the C.C. No. 9 of 2006 filed before the consumer forum, a detailed counter affidavit was filed making a categorical statement that the plaintiff was entitled to a charge over the property under Section 55(4)(b) of the Transfer of Property Act, 1882 without handing over possession to the defendant. It was also further claimed by the plaintiff that as there was a dispute in respect of the payment of sale consideration for the land and also the payment of cost of construction of the flat as per the agreement, there must be an issue in respect of the alleged payment under the disputed receipt on 24.8.2005. Under this background, the trial Court passed a decree directing the defendant to pay a sum of Rs. 3,76,990/- together with interest at the rate of 25% per annum from the date of suit till the date of decree on Rs. 3,30,375/- and thereafter at 6% per annum till the date of realisation, another sum of Rs. 670/- with interest at the rate of 6% per annum from the date of suit till realisation along with creation of charge over the suit flat for the said dues and also granted permanent injunction restraining the defendant from interfering with the possession of the suit flat till the payment of the suit amount. Aggrieved by the same, an appeal was filed. The first appellate Court, by allowing the appeal, set aside the judgment and decree passed by the trial Court in O.S. No. 3192 of 2006 dated 17.2.2009, holding that since the possession was not handed over to the defendant and there were no dues to be paid by her, the claim of interest did not arise. Aggrieved by the same, the present second appeal has been filed.