REVATHI KYLAS Vs. R MURUGESAN R M BUILDERS

JUDGEMENT

(1.) C.S.No.657 of 2009 has been filed seeking a judgment and decree against the first and second defendants to pay a sum of Rs.25,65,832/- together with interest at the rate of 12% p.a. from the date of plaint till the date of realization and for costs for the suit.

(2.) Application No.413 of 2017 has been filed by the first and second defendants in the suit seeking to frame additional issues viz.,

(3.) The plaintiff and the third and fourth defendants are sister and brothers. Their father P.B.Loganathan acquired the suit property bearing Plot No.107, Door No.20/12, 4th Cross Street, Trustpuram, Kodambakkam, Chennai measuring One Ground 1600 sq.ft by a registered sale deed dated 02.07.1956, registered as document No.1678 of 1956 in the Sub Registrar Office, Saidapet. Subsequently, the said P.B.Loganathan died intestate on 26.06.1963 leaving behind his wife Mrs.Saroja Loganathan and the plaintiff and the third and fourth defendants as his legal heirs. It had been further stated that on 27.08.2004, the plaintiff's mother Mrs.Saroja Loganathan and the third and fourth defendants entered into a joint venture agreement with the second defendant to develop the property by putting up residential flats. A power of attorney was also executed in favour of the first defendant on 05.07.2004 and registered as document No.1539 of 2004 in the office of the Sub Registrar, Virugambakkam. The first defendant and the second defendant are the husband and wife. It has been further stated that pending construction of the flats, the mother died on 16.05.2005 leaving behind the plaintiff and the third and fourth defendants alone as legal representatives. Subsequently, the plaintiff executed a power of attorney in favour of the first defendant and a memorandum of agreement was entered on 11.12.2006 by the first defendant as power of attorney of the plaintiff and the defendants 3 and 4 and the division of the allotment of the flats was entered into in the said memorandum of agreement. However, much earlier to the said agreement which was dated 11.12.2006, the first defendant exercising his power as the agent of the plaintiff had sold the said flat which was allotted subsequently on 11.12.2006 to the second defendant. It is thus seen that the flat which was allotted to the plaintiff had already been sold by the first defendant. The plaintiff further stated that she was allotted Flat No.T2 measuring 1075 sqft by virtue of the memorandum of the agreement dated 11.12.2006. The first defendant informed the plaintiff that the said flat had already been sold for a sum of Rupees Fifteen Lakhs and sent a draft for a sum of Rupees Two Lakhs being a part of the sale consideration. The first defendant then issued three cheques in favour of the plaintiff drawn on Dena Bank. Since the first defendant did not pay the amount in full and since the cheques were dishonoured for the reason "funds insufficient", the plaintiff had to initiate criminal proceedings against the first defendant. The plaintiff claimed that she was allotted a flat in December 2006, when the first defendant had already sold the flat in May 2006. Consequently, claiming the value of the flat, she had instituted this suit for a sum of Rs.25,65,832/- together with interest and costs.