w w w . L a w y e r S e r v i c e s . i n



Chilambuselvi v/s M/s. G.P.R. Power Solution (P) Ltd., Through Managing Director S. Gnaneswari & Director Regunathan, Chennai

    A.S. (MD) No. 85 of 2022 & C.M.P. (MD) No. 3079 of 2022

    Decided On, 07 July 2022

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE P. VELMURUGAN

    For the Appellant: Porkodi Karnan, M/s. Polax Legal Solutions, Advocates. For the Respondent: Dr.C. Guhaseelaruban, Advocate.



Judgment Text

(Prayer: Appeal Suit filed under Section 96 r/w Order 41 Rule 1 & 2 of the Civil Procedure Code, 1908 against the judgment and decree of the learned Principal District Judge, Theni, dated 24.10.2017 made in O.S.No. 78 of 2008.)

1. This Appeal Suit has been preferred challenging the judgment and decree of the learned Principal District Judge, Theni, dated 24.10.2017 made in O.S.No.78 of 2008.

2. The respondent is the plaintiff in the suit in O.S.No.78 of 2008, on the file of the Principal District Court, Theni. The appellant is the defendant in the said suit. The respondent has filed a suit against the appellant for the relief of specific performance and the said suit was dismissed. However, the trial Court has directed the appellant to pay a sum of Rs.5,00,000/- to the respondent with interest at the rate of 12% p.a., from the date of receipt of the said amount under Ex.A1 till the filing of the suit and 9% interest p.a., from the date of filing of the suit till the date of decree and 6% interest p.a from the date of decree till the date of realisation. Though aggrieved against the said judgment and decree, the defendant has filed the present appeal, however, the respondent/plaintiff has not filed either an appeal or the cross-objection.

3. Brief facts to the case of the respondent/plaintiff, as per the plaint, is that the appellant/defendant is the owner of the suit properties. She entered into an agreement to sell the properties to the plaintiff by means of a sale agreement, dated 05.01.2008. The sale price was fixed as Rs. 13,05,350/- and the defendant received a sum of Rs.5,00,000/- from the plaintiff as advance. From the date of agreement, the plaintiff was insisting the defendant to execute the sale deed in respect of the suit properties after getting the balance sale consideration. But the defendant has evading to execute the sale deed. Therefore, the plaintiff issued a notice, dated 29.04.2008 to the defendant calling upon her to execute the sale deed as per the agreement, dated 05.01.2008. Thereafter, the defendant issued a notice, dated 02.05.2008 by concealing all the facts with false allegations. The recitals of the notice would reflect that the defendant refused to execute the sale deed and expecting more money from the plaintiff. The defendant has admitted the execution of sale agreement, dated 05.01.2008 in her notice. The notice was suitably replied by the plaintiff. The plaintiff is a company and also an income tax assesse. The cheque for Rs.5,00,000/- paid as advance was only from the company account. The theory stated in the notice of the defendant was imaginary. The plaintiff is ready and willing to purchase the properties from the date of sale agreement, dated 05.01.2008 after paying the balance sale consideration, but the defendant evading to execute the sale deed. Hence, the suit for specific performance has been filed.

4. The defendant resisted the suit by filing a written statement stating that the suit is not maintainable either in law or on facts. The plaintiff is not entitled for any of the relief as prayed for. All the allegations stated in the plaint except those that are specifically admitted in the written statement are all denied by the defendant and they are all false. The plaintiff is liable to prove all the facts stated in the plaint. It is true that the defendant is the owner of the suit property. But it is denied that on 05.01.2008 she executed a sale deed to sell the suit property for Rs. 13,05,350/- and received an advance of Rs.5,00,000/- from the plaintiff. The defendant to discharge her debts, approached Mrs.S.Gnaneswari and Mr.S.Reghunathan, who are her close relatives for a loan of Rs.5,00,000/-. Accordingly, they gave Rs.5,00,000/- as a hand loan. She executed a sale agreement, dated 05.01.2008 for security purpose since Mrs.S.Gnaneswari and Mr.S.Reghunathan are her close relatives. They also received the title deeds of suit properties towards security. On 03.04.2008, the defendant has approached Mrs.S.Gananeswari and Mr.S.Reghunathan and paid the amount borrowed by her, but, in order to grab the lands to the value of Rs.18,00,000/-, they refused to receive a sum of Rs.5,00,000/- and they demanded for execution of sale deed. There was no necessity for the defendant to sell the property for a lesser amount to them. The defendant alone has no right to sell the ancestral property without the consent or signature of her children. The plaintiff may be entitled for the interest for the loan amount and the defendant is also ready to repay the loan amount of Rs.5,00,000/- and to get back the title deeds. Mrs.Gnaneswari and Mr.S.Reghunathan are necessary parties to the suit. The suit is bad for nonjointer of necessary parties. The suit also not valued properly for the purpose of court fees and the court fee paid is also not proper. The sale agreement, dated 05.01.2008 was obtained by Mrs.S.Gnaneswari and Mr.S.Reghunathan on their individual capacity and not on behalf of the plaintiff company, namely, G.P.R.Power Solution's Private Ltd., Therefore, the plaintiff company has no right or locus-standi to file the suit for specific performance on behalf of Mrs.S.Gnaneswari or Mr.S.Reghunathan and hence the suit has to be dismissed with costs.

5. On the basis of the above pleadings, the learned trial Judge framed the following issues for consideration:

(i) Whether the defendant received Rs.5,00,000/- from the plaintiff on 05.01.2008 to sell the suit property and thre by executed a sale agreement in favour of the plaintiff?

(ii) Whether the plaintiff was ready and willing to execute the sale deed?

(iii) Whether the plaintiff is entitled for the relief of Specific Performance of contract?

(iii) To what other reliefs the plaintiff is entitled to?

6. In order to substantiate the case, on the side of the plaintiff, two witnesses were examined as PW1 to PW2 and 27 documents were marked as Exs.A1 and Ex.A27. On the side of the defendant, two witnesses were examined as D.W.1 and D.W.2 and 11 documents were marked as Ex.B1 to Ex.B11.

7. After completing the trial and on hearing of arguments advanced on either side, the learned trial Judge, considered the evidence available on record, dismissed the suit. However, the trial Court has directed the appellant to pay a sum of Rs.5,00,000/- to the respondent with interest at the rate of 12% p.a., from the date of receipt of the said amount under Ex.A1 till the filing of the suit and 9% interest p.a., from the date of filing of the suit till the date of decree and 6% p.a from the date of decree till the date of realisation.

8. The learned counsel appearing for the appellant would submit that the trial Court has passed the judgment and decree beyond the scope of section 22(2) of the Specific Relief Act, more particularly, when such a relief was not sought for by the plaintiff and no separate court fee has been paid for the same. He would submit that even if the sum of Rs.5,00,000/- was paid by the respondent to the appellant by way of loan, then the remedy of the respondent is only to file a suit for recovery of money from the defendant/appellant and the appellant at any cost is not entitled to get any relief granted by the trial Court. Further, she would submit that the trial Court has not appreciated Ex.B9 in a proper perspective and has not given any valid reason to pass the orders for refund of the so called earnest money when the same is not prayed for by the respondent in the plaint. Therefore, the judgment and decree passed by the trial Court is against the settled position of law. Therefore, the judgment and decree of the trial Court regarding return of advance amount of Rs.5,00,000/- with interest is liable to be set aside and the appeal has to be allowed.

9. The learned counsel appearing for the respondent/plaintiff would submit that the appellant/defendant had borrowed money from the respondent Company and the suit was partly allowed dismissing the relief of specific performance by the trial Court for the only reason that the agreement entered into between the appellant and the Managing Directors and Directors of the respondent company in their individual name, whereas, the Managing Directors and Directors have not filed any suit in their individual capacity. The company has not entered into a sale agreement with the appellant. The Managing Directors and Directors have not entered into the sale agreement on behalf of the Company. Therefore, the suit filed by the company is not maintainable and the Company cannot seek for any relief of specific performance and further the learned Judge dismissed the suit for specific performance on the technical ground. However, the appellant admitted that she borrowed a sum of Rs.5,00,000/- from the respondent company as loan and based on the admission given by the appellant in the written statement as well as in the counter filed in I.A.No.14 of 2012, the trial Court granted the relief of repayment of the loan amount. Since the respondent had paid the Court fee for the larger relief and no necessity to pay Court fee for granting the lessor relief. Therefore, the appeal has to be dismissed and the judgment and decree passed by the trial Court has to be confirmed.

10. Heard the learned counsel appearing for the appellant, the learned counsel appearing for the respondent, perused the pleadings, issues framed by the trial Court, oral and documentary evidence adduced and produced by both parties.

11. Though the respondent filed the suit for specific performance stating that the respondent Company entered into a sale agreement with the appellant and the respondent company was always ready and willing to perform their part of the contract, whereas, the appellant never ready and willing to perform the contract out of much effort taken by the respondent Company. Therefore, they filed the suit,whereas, the case of the appellant is that she never entered into an agreement with the respondent company and she never executed any agreement to the respondent company and she never had an intention to sell her property and there was no necessity to sell her property. Further, the case of the appellant is that for urgent needs, she approached Mrs.S.Gnaneswari or Mr.S.Reghunathan, they said to have the Managing Director and Director of the respondent Company respectively and obtained a loan since they are close relatives, for which, they insisted to execute the sale agreement in favour of them and after obtaining the sale agreement in favour of them, they issued a cheque for Rs.5,00,000/- in the name of the company and the said agreement was given as a security for collatral purpose of the loan borrowed from the Company.

12. Further, at the time of agreement, Mrs.S.Gnaneswari or Mr.S.Reghunathan got the sale agreement in their favour. Subsequently, they altered that for and on behalf of the company, Managing Director and Director Mrs.S.Gnaneswari or Mr.S.Reghunathan got the sale agreement. Therefore, the trial Court considered the facts and circumstances of the case and has rightly dismissed the suit for the relief of specific performance. However, without any relief of return of earnest money, the trial Court had erroneously passed an order regarding refund of advance amount.

13. On going through the entire pleadings, both oral and documentary evidence, the trial Court had dismissed the suit for the relief of specific performance on technical grounds, however, the trial Court has come to the conlusion that the appellant admitted that she borrowed money from the respondent Company and Company issued a cheque and the appellant encashed the cheque amount and the appellant denied that she never had executed a sale agreement and she never intended to sell the property. However, she admits that she had borrowed money by way of cheque drawn by the Company in the name of respondent Company in favour of the appellant and the appellant also realised the same. Therefore, considering the fact, the trial Court on the ground of admission made by the appellant that she had borrowed money by way of cheque from the Company, held that the appellant is liable to repay the loan amount borrowed from the Company. Therefore, even though the respondent filed the suit for specific performance, they could not prove that the company entered into a sale agreement with the appellant. The suit was dismissed on technical grounds. Challenging the said findings, the respondent did not file any appeal. However, the appellant admitted that she borrowed a sum of Rs.5,00,000/- by way of cheque from the company and also she admitted in the written statement that she is ready to repay the said loan amount of Rs.5,00,000/- with reasonable interest. Therefore, considering the facts and circumstances of the case, in order to meet the ends of justice and also to avoid the multiplicity of proceedings, the trial Court has moulded the relief even though it is not a suit for recovery of money. Even though the respondent has not claimed the refund of advance money, the trial Court has come to the conclusion that the appellant admitted that she borrowed a sum of Rs.5,00,000/- from the respondent Company and she has not stated that she repaid the said money and she has also agreed to repay the said amount with reasonable interest. Therefore, under these circumstances, the judgment and decree passed regarding payment of Rs.5,00,000/- received by the appellant and admitted by her with reasonable interest at 12% from the date of borrowal till the date of filing the suit. Thereafter, during the pendency of the suit, interest at the rate of 9% p.a., was ordered and interest at the rate of 6% p.a., was ordered from the date of decree till the date of realisation.

14. This Court is also as a fact-finding Court has re-appreciated the entire evidence and has come to the conclusion that the appellant has admitted the borrowal of money

Please Login To View The Full Judgment!

from the respondent company and therefore, based on the admission given by the appellant, there is no error on the part of the trial Court to mould the relief and granted the relief of repayment of loan amount with interest to the respondent company. As far as payment of court fee is concerned, since the respondent company had paid the court fees for a larger relief of specific performance and that the said relief was rejected by the trial Court, however, the trial Court granted a lessor relief of recovery of loan amount based on the admission made by the appellant and therefore, since the trial Court has moulded the relief and therefore, there is no error on the part of the trial Court. Therefore, the judgment and decree of the trial Court is neither perverse nor illegal. Therefore, there is no reason to interfere with the findings of the trial Court and there is no merit in the appeal and hence, the appeal is liable to be dismissed. Since the respondent has not claimed the refund of advance money, the trial Court has also not granted the refund of advance money, therefore, the trial Court had not violated the Section 22(2) of the Specific Relief Act and has granted only the repayment of loan amount as admitted by the appellant. Therefore, the judgment and decree of the trial Court is not against the legal provisions of Section 22(2) of the Specific Relief Act. 15. In the result, the appeal is dismissed. The judgment and decree passed by the trial Court is confirmed. No costs. Consequently, connected miscellaneous petition is closed.
O R