S K ANWERJAN Vs. C LEELAVATHI

JUDGEMENT

(1.) THE unsuccessful plaintiff filed this appeal challenging and impugning the judgment and decree dated 30.04.1990 passed by the learned X Assistant Judge, City Civil Court, Madras. in O.S.No.196 of 1985, which was filed by the plaintiff as against the defendants for recovery of possession of the immovable property, viz., the flat, which is found described in the schedule of the plaint and for other consequential relief. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court.

(2.) TERSELY and briefly, the case of the plaintiff as stood exposited from the plaint could be portrayed thus: (a) The Tamil Nadu Housing Board allotted flat No.17-B, Rajaram Colony, Kodambakkam, Madras-24 in favour of the plaintiff vide its letter No.H-III (4) 93103/75 dated 20.03.1976. Consequently, the plaintiff was put in possession of the said flat and he was making payments in monthly instalments to the Tamil Nadu Housing Board. (b) The plaintiff undertook the venture of producing a Tamil film by name "Kai Pidithaval" for which, he was in need of funds. At that time, the first defendant approached the plaintiff for taking on lease, the latter's flat. Since the plaintiff was in need of funds, he obtained a sum of Rs.24,000/- as loan from her and both of them entered into an agreement to sell relating to the flat, as no mortgage of the flat was possible in view of the fact that at that time, the Housing Board did not execute the sale deed in favour of the plaintiff. The first defendant also undertook to pay the monthly instalments of Rs.476/- to the Tamil Nadu Housing Board on behalf of the plaintiff. As on the date of putting D1 in possession of the suit property, it would have fetched easily a monthly rent of Rs.1000/-. (c) Such an agreement to sell emerged only by way of security for the repayment of the said loan of Rs.24,000/-. Even as per that agreement, if the plaintiff would not be in a position to pay the sum of Rs.24,000/- borrowed as loan from the first defendant, he should convey the said flat to her, after getting sale deed from the Housing Board in his favour, and thereafter by executing a sale deed in her favour for a consideration equal to that of the market value prevailing at that time. (d) D1 failed to honour the commitment in paying the instalments on behalf of the plaintiff to the Housing Board. Subsequently, D1 informed the plaintiff, through a letter, that she intends to shift her residence to Hyderabad (Andhra Pradesh) due to her inability to pay the monthly instalments. There was also a clause in the agreement to sell that if the D1 commits default in paying the instalments in favour of the Housing Board for two months consecutively, she should vacate and deliver vacant possession of the property and she also agreed to forego the instalments that might have been paid by her to the Housing Board, except her right of getting back the sum of Rs.24,000/- with interest at 18% p.a with effect from the date of her default, from the plaintiff. (e) D1 committed default in paying instalments in favour of the Housing Board from May 1978. In fact, the plaintiff was constrained to pay the remaining instalments with penal interest and get the sale deed executed in his favour as on 04.05.1984. D1 expressing her inability to continue in possession, left the flat, but she had put D2 in possession, who is an Advocate by profession the latter demanded a sum of Rs.24,000/-. After issuance of the lawyer's notice, the plaintiff filed the suit as against the defendants for recovery of possession and for damages for the use and occupation of the flat and for other incidental reliefs.

(3.) D2 in O.S.NO.196/85 filed a separate suit in O.S.No.7112/86 before the same Court for specific performance of the said agreement to sell. Issues were framed in the suits. During joint trial, on the side of the plaintiffs, P.Ws.1 to 4 were examined and Ex.A1 and Ex.A10 were marked. On the side of the defendants D.Ws.1 to 7 were examined and Exs.B1 to Ex.B19 were marked. Ultimately, the trial Court dismissed both the suits.