ARUMUGASAMY Vs. SELVARAJ

JUDGEMENT

(1.) The plaintiff in the suit is the appellant in this second appeal. O.S.No.14 of 2011 on the file of the Sub Court, Kovilpatti was filed for specific performance. According to the plaintiff, the defendants and himself entered into a registered sale agreement on 16/4/2008. As per the terms of the agreement, the sale consideration was fixed at Rs.9,90,000.00. Rs.7,00,000.00 was paid as advance. Three months was fixed for performance of the agreement. While so, on 21/10/2008, the defendants sent legal notice revoking the sale agreement. Thereupon, the plaintiff issued reply notice on 4/11/2008. The suit came to be filed on 23/3/2009. The balance amount of Rs.2,90,000.00 was deposited to the credit of the suit on 11/4/2009. The defendants filed written statement controverting the plaint averments. The defendants also filed additional written statement in which it was stated that there was an unregistered sale agreement executed on 16/4/2008 itself and that the actual sale consideration was Rs.38,00,000.00. The defendants contended that the plaintiff has not approached the court with clean hands. The defendants however conceded that a sum of Rs.15,00,000.00 was received as advance and that the balance amount of Rs.23,00,000.00 has to be deposited. Based on the rival pleadings, the trial court framed the necessary issues. The plaintiff examined himself as P.W.1. One Rathinasamy / attestor of the suit agreement was examined as P.W.2. Ex.A1 to Ex.A9 were marked. The first defendant examined himself as D.W.1. Ex.B1 to Ex.B7 were marked. After considering the evidence on record, the trial Court vide judgment and decree dtd. 30/1/2014 dismissed the suit and denied the relief of specific performance. The defendants were however directed to refund the advance amount of Rs.7,00,000.00 with 12% interest. Questioning the same, the plaintiff filed A.S.No. 14 of 2015. The first appellate Court vide Judgement and decree dtd. 7/4/2014 dismissed the appeal but held that the plaintiff was entitled to withdraw the amount of Rs.2,90,000.00 deposited by him in the Court towards the balance sale consideration. Challenging the same, the present second appeal has been filed.

(2.) The second appeal was admitted on the following substantial questions of law:-

(3.) The relief of specific performance is an equitable relief. The plaintiff approached the court with a specific stand that the total sale consideration was Rs.9,90,000.00 and that he already paid the advance amount of Rs.7,00,000.00 and that he is entitled to take the sale deed by calling upon the defendants to accept the balance sale consideration of Rs.2,90,000.00. The defendants in the written statement claimed that on 16/4/2008, when the suit agreement was executed and registered, an unregistered agreement was also executed. It is interesting to note that P.W.2 / Rathnasamy who attested the registered agreement also attested the unregistered agreement. The un-registered agreement was marked by the defendants as Ex.B1. Interestingly, the plaintiff also marked the same as Ex.A9. Therefore, it is too obvious that the actual sale consideration fixed by the parties was not Rs.9,90,000.00 but Rs.38,00,000.00. I am more than satisfied that the plaintiff has not approached the Court with clean hands. The issue can be disposed of in this view of the matter alone. Denial of the relief of specific performance by the courts below is confirmed. There is no need to deal with the substantial questions of law originally framed in this second appeal. According to the defendants, Ex.B1 reflects the understanding between the parties. As per Ex.B1, they have received the balance amount of Rs.15,00,000.00. In the additional written statement, the defendants have taken the plea that the suit has to be dismissed because the plaintiff did not deposit the balance amount of Rs.23,00,000.00. As per the registered sale agreement, an advance amount of Rs.7,00,000.00 was received on the agreement date. It is beyond dispute that the property was mortgaged in favour of the co-operative society. It was the plaintiff who had cleared the mortgage. The discharge receipt is very much with the plaintiff. The parent documents were with the plaintiff. The title document was marked as Ex.A1. While the plaintiff has to be denied the relief of specific performance, the defendants cannot be allowed to unjustly enrich themselves. Having received Rs.15,00,000.00 as advance, they are obliged to return the same to the plaintiff.