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Subasree Real Estates Rep. by Managing Partner v/s Bijayshree Resources Limited

    Civil Suit No.1584 of 1988

    Decided On, 06 July 2009

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MRS. JUSTICE ARUNA JAGADEESAN

    For the Petitioner : C. Raghunatha Reddy, Advocate. For the Respondent: ----



Judgment Text

(Prayer: Suit filed under Order VII Rule 1 of Code of Civil Procedure read with Order IV Rule 1 of Original Side Rules prays for a judgment and decree (a) to direct the defendant to execute and register sale deed/s in respect of the entire properties described in the plaint-schedule, either as a whole or in plots, in favour of the plaintiff or the plaintiff's nominee/s, at the cost of the plaintiff and upon payment of the sale consideration to the defendant at the rate of Rs.5,500/- (Rupees Five Thousand and Five Hundred) per ground of 2,400square feet, (b) permitting the plaintiff to implement the sanctioned layout (Exhibit A-2) by complying with all the conditions laid down in Exhibit A-3, including the power to execute and register and handover the necessary deeds in favour of the Thiruvallur Municipality in respect of roads and paths etc earmarked in Exhibit A-2, and (c) for costs of and incident to the suit.)


The suit is filed against the defendant to execute and register sale deed/s in respect of the entire properties described in the plaint-schedule, either as a whole or in plots, in favour of the plaintiff or the plaintiff's nominee/s, at the cost of the plaintiff upon payment of the sale consideration to the defendant at the rate of Rs.5,500/- per ground of 2,400 square feet and to permit the plaintiff to implement the sanctioned layout (Exhibit A-2) by complying with all the conditions laid down in Exhibit A-3, including the power to execute and register and handover the necessary deeds in favour of the Thiruvallur Municipality in respect of roads and paths etc earmarked in Exhibit A-2 and for costs and incident to the suit.


2. The plaintiff is a registered Firm represented by its Managing Partner. The defendant is a Company registered under the Companies Act. The plaintiff and defendant have entered into an agreement at Madras on 18.06.1984, under which, the defendant agreed to sell the plaint schedule properties at the rate of Rs.5, 500/- per ground, on or before 31.05.1985 or within six months after the defendant completed the implementation on ground of the lay-out duly sanctioned by the Town Planning Authorities, whichever is later. The said agreement dated 18.06.1984 is marked as Ex.A-1.


3. The suit properties were in possession of the defendant as prospective purchasers under agreements for sale entered into between the defendant and the owners of the suit properties which were subsequently purchased by the defendant under sale deed registered between August and November 1984. Under Ex.A-1, it has been agreed that the plaintiff's part of the performance would commence only upon, the defendant completing the implementation on ground of the lay-out duly sanctioned by the Town Planning Authorities. But subsequent to the institution of the suit, the plaintiff had been put in possession of the suit properties and is in actual physical possession of the same. The application made by the defendant for the lay-out had been sanctioned by the Town Planning Authorities under C.S.A.R./D.T.C.P.-M.84-249/L.P.207 (revised) dated 15.05.1985, which prescribe certain conditions to be fulfilled. But however, the defendant failed to comply with such of those conditions.


4. Ex.A-2 is the sanctioned order issued by the Town Planning Authorities. Ex.A-3 is the letter dated 15.05.1985 addressed to the defendant by the Thiruvallur Municipality, laying down certain conditions in respect of the lay-out. Some of the conditions are (i) Metalling the lay-outs roads, fixing the lights at necessary places on the said roads, and handing over the roads to the Municipality, (ii) providing sewerage connections, and (iii) handing over the areas in the lay-out, which is meant for play-ground, to the Municipality. Further condition has been laid down by the Town Planning Authorities that no plots in the lay-out shall be sold/leased/transferred to any third party unless the conditions attached to the lay-out were fulfilled. The defendant agreed to the above conditions and had given a letter of acceptance undertaking dated 09.02.1985 to the Municipal Authorities and the same is evident from Ex.A-4.


5. When the plaintiff had been reminding the defendant regarding the conditions imposed by the Municipal Authorities, the defendant was all along representing to him that he had been meeting the higher authorities and the officials to the Government and the Municipality to delete the conditions regarding the laying of roads, etc., on the premise that the same to be carried out at the cost of the Municipality.


6. The plaintiff entered into a registered agreement on 11.05.1987 with Meenam Builders, a registered firm, whereby it had been agreed that the plaintiff would arrange with the defendant to sell the suit properties to Meenam Builders or to its nominees and they would purchase all the suit properties within three months of the implementation of the lay-out on ground by the defendant. Ex.A-5 is the said agreement dated 11.05.1987. It is seen that the said agreement had to be cancelled, due to the delaying tactics adopted by the defendant.


7. Again, the plaintiff has addressed a registered letter to the defendant on 22.05.1987, under Ex.A-6 requesting the latter to complete the implementation of the lay-out. Though the defendant received the said letter, but there was no response. The plaintiff had to remind the defendant by another letter dated 07.06.1987, marked as Ex.A-7 to complete the implementation of the lay-out on ground. Thereafter, the defendant sent a reply dated 15.06.1987, under Ex.A-8 stating that Ex.A-1 had been cancelled by the defendant. Thereafter, the plaintiff had issued a notice through its lawyer dated 09.07.1987 marked as Ex.A-9 to the defendant, but the same was returned unserved. The returned cover received by the plaintiff's lawyer on 14.09.1987 that is after two months. The unopened cover containing Ex.A-9 returned unserved and received by the plaintiff's lawyer is Ex.A-10. Again, the plaintiff had issued a notice through its lawyer dated 27.01.1988, under Ex.A-11 to the defendant enclosing a copy of Ex.A-9 and the same had been received by the defendant and the reply dated 27.02.1988 under Ex.A-12 had been sent to the plaintiff.


8. According to the plaintiff, if really the entire deal had been cancelled as contended by the defendant, then the duplicate of Ex.A-1, the original Power of Attorney dated 18.12.1984 under Ex.A-13 executed by the defendant in favour of the plaintiff, and the original sanctioned lay-out Ex.A-2, which are all with the plaintiff ought to have been taken back by the defendant. It is reiterated that A-1 and A-13 are still with the plaintiff together with Ex.A-2 which would show that there is still a subsisting contract between the parties. Under Ex.A-1, it is the obligation of the defendant to implement Ex.A-2 and Ex.A-3 on ground by complying with all the conditions therein. The plaintiff has always been and continues to be ready and willing to perform its part of the obligations and it is the defendant who has been attempting sabotage of Ex.A-1. Now, it appears that the defendant has no intention to arrive at a reasonable solution to complete the contract instead, he appears to be bent upon sabotaging Ex.A-1. Therefore, it is contended by the plaintiff that the defendant is bound to implement the sanctioned lay-out Ex.A-2 and Ex.A-3, on ground and bound to execute and register deeds of sale in respect of the suit properties in favour of the plaintiff or its nominees, for which, the plaintiff is prepared to pay the stipulated consideration and to meet the stamp and the registration fees.


9. Despite several opportunities the defendant remained absent. When the matter was posted before the Additional Master and also before this Court. Hence, the defendant has been set exparte.


10. The evidence led down by the plaintiff through his proof affidavit and the documents exhibited clearly establish the case of the plaintiff that it was ready and willing to perform plaintiff's part of contract and it is the defendant who had resiled from the contract. There is no basis for cancellation of Ex.A-1 and no evidence is adduced to substantiate the plea of the defendant. Therefore, the evidence led by the plaintiff remains unchallenged and unc

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ontroverted. In such circumstances, it has to be held that the claim of the plaintiff has been proved. 11. In the result, the suit is decreed with costs. "(i) the defendant is directed to execute and register sale deed/s in respect of the entire properties described in the plaint-schedule, either as a whole or in plots, in favour of the plaintiff or the plaintiff's nominee/s, at the cost of the plaintiff and upon payment of the sale consideration to the defendant at the rate of Rs.5, 500/- (Rupees Five Thousand and Five Hundred) per ground of 2,400square feet. (ii) The plaintiff is permitted to implement the sanctioned layout (Exhibit A-2) by complying with all the conditions laid down in Exhibit A-3, including the power to execute and register and handover the necessary deeds in favour of the Thiruvallur Municipality in respect of roads and paths etc earmarked in Exhibit A-2."
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