IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15/07/2002
CORAM
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
C.S.No.443 of 2000 and C.S.No. 444 of 2000
and
O.A.Nos.576 and 577 of 2000
M/s.Sunil Anand & Co.P.Ltd.,
represented by its Managing
Director, Arjunlal Sundardas .. Plaintiff in
CS 443 of 2000
M/s.Sunderdas Arjunlal
by Managing Partner Arjunlal Sunderdas .. Plaintiff in
CS 444 of 2000
vs
1.
Cleetus Vincent
2. Tmt.Imelda Cleetus
3. Vinjane Constructions (formerly
Vinjane Centre) rep.by Managing
Partner : Cleetus Vincent .. Defendants in
both the suits
!For Plaintiffs : Mr.K.V.Venkatapathy,
Senior Counsel,
for Mr.M.Rajasekaran
^For Defendants : Mr.P.J.George
:COMMON JUDGMENT
C.S.No.443 of 2000
This suit has been filed for specific performance of the letter of
confirmation dated 5.4.1981 executed by the defendants in favour of the
plaintiff by directing the defendant to execute and register the Sale Deed in
respect of ‘A’ Schedule property, for a direction to the defendants to hand
over possession of ‘A’ Schedule property, or in the alternative for a
direction to the defendants to pay a sum of Rs.2,1 0,75,000/- being the
amounts paid by the plaintiff towards purchase of the suit property and
interest along with future interest at 30% per annum on Rs.48,70,925/- from
the date of plaint till realisation, for a permanent injunction restraining
the defendants from in any dealing with the ‘A’ and ‘B’ Schedule properties or
alienating in any manner and putting the same to any use and for costs.
2. C.S.No.444 of 2000:
This suit has been filed for specific performance of the letter of
confirmation dated 5.4.1981 executed by the defendants in favour of the
plaintiff by directing the defendant to execute and register the Sale Deed in
respect of ‘A’ Schedule property, for a direction to the defendants to hand
over possession of ‘A’ Schedule property, or in the alternative for a
direction to the defendants to pay a sum of Rs.2,0 4,16,000/- being the
amounts paid by the plaintiff towards purchase of the suit property and
interest along with future interest at 30% per annum on Rs.47,19,800/- from
the date of plaint till realisation, for a permanent injunction restraining
the defendants from in any dealing with the ‘A’ and ‘B’ Schedule properties or
alienating in any manner and putting the same to any use and for costs.
3. The plaint averments in both the suits are common, except the sale
consideration and the property in question The averments are as follows:
The landed property at Door No.Old 101, New 96, Pantheon Road, Egmore,
Chennai originally owned by the defendants 1 and 2, who are partners in the
3rd defendant firm. The third defendant took up development activities of the
property for putting up a multi-storeyed shopping cum office complex. The
defendants represented that they are willing to sell the ground and first
floors of the proposed building. They agreed to sell the proposed ground
floor of the property along with proportionate undivided share of the land to
the plaintiff in CS 443/00 for a price of Rs.68,75,550/-. A letter of
confirmation dated 5.4 .1981 was executed by the defendants. The said
consideration was to be paid in instalments, and the plaintiff paid a sum of
Rs.48,70,925/- upto 1983 itself. They also agreed to sell the first floor
with proportionate undivided share of land for Rs.67,18,800/- to M/s.
Sundardas Arjunlal, a Partnership firm and sister concern of the plaintiff in
CS 443/00. The said partnership firm paid Rs.47,19,800/- till 1982 . The
defendants also executed letter of confirmation dated 5.4.81. Under the
letter of confirmation, the possession of the respective portions will be
handed over to the plaintiff and the firm within 18 months from the date of
the payment of the 2nd instalment, by which time the construction will be
completed. The properties agreed to be sold includes provision of escalator,
partition for shops, provision of proportionate car parking area in the
basement and shall be centrally air conditioned. The said amounts were paid
by the plaintiffs well before 12.1.83. The said letter of confirmation would
conclusively establish that the suit properties were sold to the plaintiff.
This fact is also clear from the income tax assessment order of the 3rd
defendant and the findings therein. In this transaction, everything had
concluded, except the registration of the formal deed of conveyance in favour
of the plaintiff. Possession had been handed over to the plaintiffs on
15.7.1983. However, since certain civil and finishing works remained to be
done, the plaintiffs could not put the property to effective use. Though the
promoter was given time to complete the work, the works in the ground floor
area still remain incomplete. The defendants trespassed into the first floor
and installed some billiards tables. The plaintiffs are in physical, actual
and effective possession of the properties since 1983. Plaintiff came to know
that certain portion of the property at the said address was proposed to be
purchased by some third parties, and the same was advertised in The Hindu on
26.2.1995. thereafter, the defendants did not sell the ground and first
floors to anybody, and they were also promising the plaintiffs that they will
be executing the sale deed at the earliest. The plaintiffs came to know that
the defendants were trying to dishonestly use and dispose off the properties
which were agreed to be sold to the plaintiffs. When the defendants started
using the ground and first floors as a club for billiards and snow ball, the
plaintiff approached them, and the defendants removed the same and delivered
possession to the plaintiffs. The defendants informed the same to the press
wrongly as if the plaintiffs and the 2nd firm forcible took possession, and
the same was also widely published. The intention of the defendants is to
cheat the plaintiffs and deny their rights and remove them from the possession
of the property. After receiving substantial amounts, the defendants cannot
refuse to execute the sale deeds. On the basis of the complaints from both
the parties, proceedings were initiated under S.145 of Cr.P.C., and the
Executive Magistrate had passed an order dated 5.11.1999 stating that both the
parties should refrain from the places and the property was also attached.
Aggrieved over the same, the plaintiffs and one Baskar filed Crl.R.C.No.1422
of 1999. At the time of the defendants’ offer, they proposed to put up only
six floors. But, the defendants without any proper planning permission or
authority have constructed 7th, 8th and 9th floors, due to which the
plaintiffs’ undivided interest in the common land has got diminished. They
have no right or authority to put up additional floors. The defendants
approached the authorities for regularisation of the said unauthorised
constructions. Whether they succeed in their attempt or not, the defendants
are liable to convey the schedule mentioned properties with proportionate
undivided share of land, treating the complex having only basement, ground and
six upper floors. When the defendants approached the plaintiffs for sale of
the properties, they represented that they are not going to put up any
additional floors. Since the construction of 7th, 8th and 9th floors is in
violation of the terms and conditions of sale, the defendants have no right to
deal with the said floors. The defendants have been making attempts to
illegally deal with the ground and first floors by suppressing the said letter
of confirmation. The plaintiffs jointly filed a suit against the defendants
herein in O.S.No.4993 of 1999 before the City Civil Court, Chennai for
injunction. The plaintiffs filed an application in I.A.No.12755/99 in the
said suit for an interim injunction. Interim injunction was granted only for
restraining the defendants from dealing with the ground and first floors.
Aggrieved over the disallowed portion of the said order, the plaintiffs
preferred an appeal in CMA No.193/99. The defendants preferred an appeal in
CMA No.186/99 against the allowed portion of the said order. Both the appeals
were pending before the City Civil Court, Madras. The plaintiffs were in
symbolic possession of the properties throughout the Executive Magistrate’s
proceedings. An order dated 5.11.99 was passed by the Executive Magistrate
directing both the parties not to enter the premises. The plaintiffs filed
Crl.R.C.No.1422/99 before this court, and interim stay was obtained in
Crl.M.P.No.10620/99. This court has vide order dated 8.6.2000 directed the
Executive Magistrate to hand over possession to the defendants, instead of
directing the Magistrate to hand over possession to the plaintiffs. More than
60% of the sale consideration has been received by the defendants. The
plaintiffs are always ready and willing to pay the balance of sale
consideration. The defendants have committed breach of the letter of
confirmation and are attempting to sell the property to third parties and have
put the ground and first floors for their personal use. They are not willing
to conclude their part of the contract. The plaintiffs did not commit any
default in performing its parts of contract. In view of the unauthorised
constructions, the defendants have committed breach of the sale confirmation
letters. The defendants are not entitled to use the suit properties as the
plaintiffs are the owner of the same. The plaintiffs are also entitled for
proportionate car parking area in the suit properties. If the amounts paid as
deposits on various dates have been used in financial business, the plaintiffs
would have earned crores and crores of rupees. Hence, the plaintiffs are
reasonably entitled for interest at 30% per annum. However, the same is
restricted to 18% per annum till the date of filing of the plaint and they
claim the future interest at 30% per annum. The plaintiffs have been put to
great mental tension and agony, and further they have been prevented from
using the premises for their commercial use, thereby put to great loss of
income. The defendants are liable to compensate the same. Since, no
particular time was fixed for execution of the sale deeds, limitation starts
from the day from which the defendants refused to execute the sale deeds. The
plaintiffs came to know about the defendants’ refusal through Junior Vikatan
magazine dated 18.7.1999. Therefore, the suit is in time. Hence, the
plaintiffs seek the above said reliefs.
4. The defendants 1 to 3 have filed separate written statements in
both the suits with the following averments:
As per Article 54 of the Limitation Act 1963, the starting point of
limitation in respect of suit for specific performance is the date fixed for
the performance, or if no such date is fixed, when the plaintiff has notice
that performance is refused. Similarly, as per Article 113 of the Act, the
period of limitation for filing of a suit for refund of amounts advanced is
three years, and the starting point of limitation is when the right to sue
accrues. The second instalment was payable on or before 16.4.1981 and was
actually paid in instalments by 1.6.1981 and completion and handing over of
possession should therefore have been on 16.10.82 or 1.12.1982 which
admittedly was not done. The last payment was on 12.1.83 and balance was
claimed on 17.2.1983. Hence, the period of limitation expired on 17.2.1986.
The plaintiffs have conveniently suppressed the complaint dated 16.10.1996
given by its Managing Director. Hence, the starting point of limitation was
at least from 16.10.1996 and expired on 16.10.1999. The statement that the
limitation commenced from 18.7.1999 is false. The main documents on which the
plaintiffs laid the claim, are inadmissible in evidence. The dealings of the
defendants were with a partnership firm known as M/s.Sunil Anand & Co., and
not with M/s.Sunil Anand & Co. P. Ltd. The suit is therefore liable to be
dismissed in limine. The sale consideration for the ground floor was fixed at
Rs.68,75,550/- based on an area of 10186 sq.ft. The clause that there would
be an upward or downward revision in price according to the actual area of the
floor was inserted in the letter dated 5.4.81, as the project was only in the
planning stage at this time. The actual area of the ground floor is 13738
sq.ft. The amount payable by the plaintiff in CS 443/00 would have been
Rs.92,73,150/- and not Rs.68,75,550/-. The sale consideration for the first
floor was fixed at Rs.67,18,000/- based on an area of 11198 sq.ft. The said
clause was also inserted in the letter dated 5.4.1981. The actual area of the
first floor is 1440 8 sq.ft., and the amount payable by the plaintiff in CS
444/00 would have been Rs.86,44,800/-. From the documents filed by the
plaintiffs, it is clearly seen that the plaintiffs were defaulters in payment
right from the inception of the arrangement. They failed to mention when the
construction ran into technical difficulties. If as alleged by the
plaintiffs, the properties were sold to the plaintiffs in the year 1981, it
follows that the above suits were not maintainable and as such infructuous.
The plaintiffs have not produced a scrap of evidence to prove that the
possession was handed over to it as early as 15.7.83. The order in
Crl.R.C.No.1422/99 dated 8.6.2000 passed by this court would clearly establish
that the defendants were always in possession of the properties described in
the plaints schedules. Only the first floor was used by the defendants as a
billards/snooker/ pool parlour. The ground floor is presently being used for
storage. The defendants never attempted to cheat the plaintiffs. It was the
plaintiffs who committed default in payment and afterwards tried to illegally
take possession of the properties. The defendants never agreed to restrict
the construction to 6 floors. Even the letter dated 5.4 .81 does not specify
the total constructed area, number of floors or the undivided share to be
conveyed. The plaintiffs were only promised proportionate undivided share in
the land. No specific share could have been envisaged at that stage as the
building plans had not been finalised then. The defendants were entitled to
put up any number of floors provided sanction was obtained. Only a little
over 50% of the original sale consideration was paid by the plaintiffs
belatedly before it committed default in payment. The question of now being
willing to pay the balance of sale consideration does not arise, the contract
having been abandoned by both the parties in the year 1983 itself. The relief
of specific performance is an equitable relief. The defendants 1 and 2
purchased the land and buildings by way of outright sale under a sale deed
dated 18.4.80. Encouraged and misguided by the Managing Director of the
plaintiffs, the first and second defendants allotted the prime floors. The
plaintiffs defaulted in payment, and the defendants were put to great
financial constraints to pay the cost of civil construction. The project came
to a grinding halt. Due to these circumstances, neither party initiated
proceedings against each other and in fact abandoned the contract. The
Chennai Metropolitan Development Authority had issued a completion certificate
which proved conclusively that the building has been constructed according to
the planning permission granted. The plaintiffs have not paid the entire
amounts due to the defendants till date. It was the plaintiffs, who prevented
the defendants from using the property by unnecessarily interfering with the
defendants’ business and also by causing extensive damage to the said
properties with the help of goondas. The plaintiffs are attempting to
resurrect a cause of action which actually expired about 18 years ago, and the
reasons trotted out by the plaintiffs to extend limitation are false. The
relief of specific performance as well as the claim for refund are barred by
limitation. Hence the suits have to be dismissed with exemplary costs.
5. On the above pleadings, the following issues were framed:
C.S.No.443/2000:
1. Whether the suit is barred by limitation as claimed by the defendants?
2. Whether the plaintiff has been and is always ready and willing to perform
its part of contract by paying the balance sale consideration?
3. Whether the putting up of Floors, 7, 8 & 9 is in accordance with the terms
of the agreement? If not, whether the plaintiff is entitled for reduction of
sale consideration due to the reduction of undivided interest in the land?
4. Whether the plaintiff is liable to pay any additional sale consideration
if it is found that more area has been constructed than what has been agreed
to be sold?
5. Whether in the alternative, without giving up the relief of specific
performance and possession, the plaintiff is entitled for the relief of a
direction to the defendants to pay Rs.2,10,75,500/- being the amounts paid by
the plaintiff for purchase of the suit property with interest, at 30% p.a. on
Rs.48,70,925/- as claimed in para 24(c) of the Plaint?
6. Whether the plaintiff is entitled for permanent injunction as claimed in
Para 24(d) of the Plaint?
7. Was the plaintiff ever in possession of the property?
8. Are the documents filed by the plaintiff is admissible in evidence?
9. Is the plaintiff entitled to relief as claimed for?
C.S.No.444/2000:
1. Whether the suit is barred by limitation as claimed by the defendants?
2. Whether the plaintiff has been and is always ready and willing to perform
its part of contract by paying the balance sale consideration?
3. Whether the putting up of Floors, 7, 8 & 9 is in accordance with the terms
of the agreement? If not, whether the plaintiff is entitled for reduction of
sale consideration due to the reduction of undivided interest in the land?
4. Whether the plaintiff is liable to pay any additional sale consideration
if it is found that more area has been constructed than what has been agreed
to be sold?
5. Whether in the alternative, without giving up the relief of specific
performance and possession, the plaintiff is entitled for the relief of a
direction to the defendants to pay Rs.2,04,16,000/- being the amounts paid by
the plaintiff for purchase of the suit property with interest, at 30% p.a. on
Rs.47,19,800/- as claimed in para 24(c) of the Plaint?
6. Whether the plaintiff is entitled for permanent injunction as claimed in
Para 24(d) of the Plaint?
7. Was the plaintiff ever in possession of the property?
8. Are the documents filed by the plaintiff is admissible in evidence?
9. Is the plaintiff entitled to relief as claimed for?
6. ISSUES 1 TO 9 IN BOTH THE SUITS:
These two suits have been filed for specific performance of two
agreements of sale both dated 5.4.1981 executed by the defendants in favour of
the plaintiffs in respect of the schedule mentioned properties to the suits
and in alternative a money decree directing the defendants to pay
Rs.2,10,75,500/- and Rs.2,04,16,000/- respectively with subsequent interest
thereon.
7. On the side of the plaintiffs, P.W.1 was examined, and Exs.P1 to
P23 were marked. On the side of the defendants D.W.1 was examined, and Ex.D1
was marked.
8. Arguing for the plaintiffs, the learned Senior Counsel Mr.K.V.
Venkatapathy would submit that the plaintiff in the first case is a private
limited company, while the plaintiff in the second case is a partnership firm;
that PW1 is a Managing Director in the former and a Director in the latter;
that the plaintiff in CS 443/00 was originally a partnership firm, and
subsequently in 1981, the same was converted into a Private Limited Company;
that the said private limited company has taken all the assets and liabilities
of the earlier partnership firm; that PW1 and his three brothers who were
partners became the Directors of the private limited company; that Ex.P17 is
the Memorandum and Articles of Association; that only the four Directors are
the shareholders, and except them, there is no other shareholder; that Ex.P1 8
is the xerox copy of the certificate of incorporation; that the agreements for
sale for the ground and first floors of the defendants’ proposed construction
were entered into between the parties; that an advance of Rs.1.00 lakh was
paid in each case on 5.4.81, in respect of which the defendants passed on
Exs.P1 and P2 receipts; that Exs.P3 and P4 are the letters of confirmation
issued by the first defendant in respect of both the agreements; that
according to Ex.P5, a consolidated receipt, issued on 23.6.82, the defendants
acknowledged the receipt of various payments amounting to Rs.34,19,800/-; that
likewise under Ex.P6 consolidated receipt, they have acknowledged the receipt
of Rs.36,70,925/-; that as per the agreements,the rate per square feet for the
ground floor was Rs.675/- and for the first floor was Rs.600/-; that the
defendants agreed to build approximate a carpet area of 1 0186 sq.ft. in the
ground floor and 11198 sq.ft. approximately in the first floor; that no
period or time was fixed for concluding the contract; that the stipulated time
for completion of the building was 18 months from the date of payment of the
second instalment; that thought the plaintiffs have paid the second instalment
on 1.5.81, the defendants had not completed the construction; that it is
pertinent to note that no default clause has been incorporated under Exs.P3
and P4 agreements; that as per the original agreements, the defendants were to
put up the basement, car parking, ground floor plus six floors, as per the
sanctioned original plan given by the MMDA; that they also agreed to provide
the car parking area which was proportionate to the total build up area of the
building; that out of the sale consideration of Rs.68,75,550/- for the ground
floor, the plaintiff has paid Rs.4 8,70,925/- and towards the first floor out
of the sale consideration of Rs.67,18,800/-, the plaintiff has paid
Rs.47,19,800/-; that all the amounts have been paid back in 1983 itself; that
the defendants did not complete the construction, but the construction was
over in the year 1995; that even now the construction in the first floor is
still incomplete; that since the defendants did not construct in accordance
with the sanctioned plan, proceedings are initiated by the MMDA against them;
that the plan originally sanctioned came to an end in the year 1982 itself;
that without the sanction and approval of the MMDA, the defendants constructed
the 7th, 8th and 9th floors, as a result of which the proportionate land to
which the plaintiff was entitled to was drastically reduced and in so far as
car car parking also; that only on 29.1.1988, the defendants had got
additional construction of 7th, 8th and 9th floors regularised by the
Government under Ex.P22, but there was a further direction that the defendants
should get fresh approval by putting forth a revised plan before the MMDA;
that the construction was abruptly stopped, and it came to a stand still in
view of the above circumstances; that the plaintiffs have already paid 60% of
the consideration even in 1983 itself; that the plaintiffs have been all along
ready and willing to pay the balance of consideration; that it is pertinent to
note that the defendants have not challenged the means or the sources of the
plaintiffs in the cross examination of PW1; that the plaintiffs filed an
application for interim injunction in the present suits to restrain the
defendants from alienating the property, and the same was granted subject to
the conditions that the plaintiffs should deposit the balance of consideration
and should also give an undertaking that he would pay the balance amount, as
per the actual measurement as per the square foot basis; that the plaintiffs
sought a modification of the order to permit them to give a bank guarantee for
the balance of sale consideration in stead of depositing the said amount, and
the same was ordered; that accordingly, the plaintiffs furnished a bank
guarantee on 7.3.2001 and also gave an undertaking as ordered by the court;
that all the above would go to show that the plaintiffs were ready and willing
all along with sufficient means; that the suits filed by the plaintiffs were
well within time; that there is no clause in the agreement between the parties
fixing the time for concluding the contracts; that time stipulated for
completion of the construction by the defendants and to hand over possession
was 18 months from the date of payment of the second instalment; that the
second instalment was paid on 1.5.81, but the defendants have failed to
perform their part of the contracts; that it is not the case of the defendants
that at any point of time they refused to perform their part of the contracts;
that it is true that a police complaint was given by the plaintiffs on
16.10.1996; that the averments in the said complaint were the outcome of the
assumption of PW1, and at no stretch of imagination it could be equated to a
refusal; that it is an admitted fact that there was no correspondence between
the parties, and under such circumstances, the contention of the defendants’
side that the suits were barred by limitation has got to be rejected; that
there is no evidence to indicate that the contracts between the parties were
ever abandoned; that towards the sale consideration of both the agreements,
the plaintiffs have paid nearly Rs.1.00 crore that too in the year 1983; that
the defendants who have utilised the plaintiffs’ money for their construction,
have not performed their part of the contracts by conveying the properties and
by executing sale deeds; that the court has to take note of the fact that the
defendants have sold the 3rd, 4th and 5th floors to Aban Loyd for a sum of
Rs.5.50 crores on as is where is condition and have also retained the 2nd, 6th
to 9th floors totally measuring approxim ately 65,000 sq.ft.; that the
plaintiffs continued to make payment even though the construction work was
stopped abruptly at one point of time; that Ex.P15 is a copy of the Income Tax
Assessment Order, according to which the expenses for the construction of the
entire building have been met from the sale consideration of the ground and
first floors; that the defendants who have given a copy of the said assessment
order to the plaintiffs, have denied the delivery of the same, but at the same
time, they have admitted that the original assessment order is in their
custody, but have not produced the same; that though originally possession was
handed over to the plaintiffs in the year 1983, the defendants made all their
illegal attempts to dispossess the plaintiffs, which was ably resisted by the
plaintiffs; that when the defendants lodged a complaint before the Egmore
Police and a case was registered, on the same day, the plaintiffs who were in
possession of the properties have also lodged a complaint before the same
police station; that under such circumstances, the Inspector of Police,
Egmore, after registering a case returned the same to the Tahsildar and
Executive Magistrate of Egmore; that the Executive Magistrate after making
enquiry passed an order prohibiting both the parties from encroaching upon the
disputed premises; that the said order was challenged before this court in
Crl.R.C.No.1422/99 wherein an elaborate order was passed by this court finding
that the defendants were in possession of the properties, and under such
circumstances, the plaintiffs have taken the verdict of this court; and in
view of the same, they sought for a direction from this court to the
defendants to hand over possession of the property, and thus, the reliefs
sought for have got to be granted in favour of the plaintiffs. Added further,
the learned Senior Counsel that if for any reason, the court comes to the
conclusion that the plaintiffs are not entitled for the specific performance
of the contracts found in the plaint, the defendants should be directed to
refund the advance amounts with 18% rate of interest till the date of the
plaint and 3 0% rate of interest thereafter; that it is an admitted position
that the plaintiffs have given an advance of Rs.96.00 lakhs and odd, which has
been utilised by the defendants for the construction of the building, and even
from the admission made by the defendants, it is clear that they have made lot
of profits out of the said construction, and under such circumstances, a
decree in favour of the plaintiff has got to be passed.
9. Countering to the above contentions of the plaintiffs’ side, the
learned counsel appearing for the defendants with vigour and vehemence would
submit that the plaintiffs are not entitled for any of the reliefs asked for
in the plaints; that it is true that the parties entered into two agreements
for sale in respect of the ground and first floors of the proposed
construction; that it was clearly understood that the time was the essence of
the contracts; that a reading of Exs. P3 and P4 would clearly reveal that the
second instalment should be paid by the plaintiffs on or before 16.4.1981,
from which date the construction should be completed by the defendants within
18 months; that it is pertinent to note that the plaintiffs have utterly
failed to make the second instalment as a result of which the defendants could
not complete the construction; that Exs.P3 and P4 would clearly speak about
the schedule of payments; that the plaintiffs not even in one occasion kept up
the schedule; that the second instalment of Rs.10,45,925/- was not paid on
6.4.81, but was paid only in June 1981; that likewise, the third instalment
should be paid at the starting point of the foundation as per clause ii of
Ex.P4; that even that payment was not made by the plaintiffs even after the
foundation work commenced and pending; that it was only because of the delay
that was caused by the plaintiffs, the construction work was proceeded slowly;
that the fourth instalment was also paid belatedly; that it is pertinent to
note that PW1 has categorically admitted that he did not pay the instalments
as contemplated under Ex.P4 in time; that the area has not been mentioned as
carpet area in the agreements; that the contention of the plaintiffs’ side
that what was understood between the parties was carpet area could not be
correct since the carpet area was only in respect of the leases; that the
plaintiffs could not have any grievance for the additional constructions in
respect of 7th, 8th and 9th floors, since nowhere it is found in Ex.P4
agreement as to how many floors were to be constructed; that PW1 has admitted
that under Ex.P4 agreement, there is nothing to indicate that the defendants
have to seek the permission of or inform the plaintiffs before making any
additional constructions; that no specific undivided share of land has been
mentioned in Ex.P4 agreement; that there is no recital in Ex.P4 agreement to
the effect that the plaintiffs could stop payments, if there was any delay in
the construction; that it is true that there were some deviations in the
constructions work, but the same was subsequently regularised and following
the same, the building was completed; that the plaintiffs were never ready and
willing to perform their part of the contracts from 1983 till the date of
filing of the suits; that the plaintiffs have come forward with a false
pleading stating that they have been in peaceful and uninterrupted possession
of the properties; that at no point of time, possession of the properties were
handed over to the plaintiffs; that a reading of Ex.D1 an elaborate judgment
of this court in Crl.R.C.No.1422/99 would clearly reveal that the defendants
continued to be in possession; that the plaintiffs have also filed a suit
against the defendants stating that they were in possession of the properties,
and apart from that during the pendency of the instant suits, the plaintiffs
have filed an injunction application, and thus the plaintiffs have come
forward with unclean hands which would disqualify the plaintiffs from getting
the equitable relief of specific performance; that the parties have abandoned
the contracts even in the year 1983; that subsequent to the payment in the
year 198 3, the plaintiffs have not made any payment nor have they made any
demand for the completion of the work; that were they ready and willing to
perform their part of the contracts; that a perusal of Ex.P8 written by the
defendants would clearly reveal that the plaintiffs were liable to pay the
balance of consideration in the year 1983; that the fact that the plaintiffs
failed to comply with the demand therein and kept silence till 1995, when they
gave a complaint before the D.G.P., Madras, would clearly indicate that the
parties have abandoned the contracts; that even assuming that the time was the
essence of the contracts and not fixed under the agreements, the plaintiffs
should have filed the suits within three years from the date of notice of
refusal by the defendants, but the plaintiffs have given a complaint to the
D.G.P. on 16.10.1996; that the evidence of PW1 in that regard would clearly
reveal that the plaintiffs had a clear notice of refusal by the defendants to
perform their part of the contracts, and thus the plaintiffs should have filed
the suits within three years, but have not filed so, and hence the suits are
barred by limitation, and thus, the abandonment, limitation and breach of the
contracts by the plaintiffs by not performing their obligations as found in
the contracts all would disentitle the plaintiffs from getting the relief of
specific performance, and hence the suits in that regard have got to be
dismissed. Added further, the learned counsel that the plaintiffs are also
not entitled for the relief of refund, since the defendants suffered a lot of
losses and damages not only financially but also by way of reputation; that
due to the delayed payments, the defendants could not proceed with the
construction works and have to sustain losses enormously; that DW1 has
elaborately spoken about the losses sustained by them; that there is nothing
to contravert the evidence of DW1 in that regard; and considering all the
above, the court has to dismiss the suits in entirety with costs.
10. The admitted facts can be shortly narrated as follows:
The plaintiff in C.S.443/2000 is a private limited company, while the
plaintiff in C.S.444/2000 is a partnership firm. P.W.1 is the Managing
Director in the former and a Partner in the latter. D.W.1 and his wife, the
defendants 1 and 2 respectively in both the suits are the partners of the
third defendant firm. The defendants purchased landed property and entrusted
the same for the purpose of construction to E.C.C. of Larsen and Toubro
Group. P.W.1 expressed his willingness to purchase the ground and first
floors from the defendants. Pursuant to the offer, the defendants agreed to
sell the proposed ground floor of the property along with the proportionate
undivided share of the land to the plaintiff for a price of Rs.68,75,550/-
which is the subject matter in CS 443/2000 and likewise agreed to sell the
proposed first floor of the property along with the proportionate undivided
share of the land to the plaintiff for a price of Rs.67,18,800/- which is the
subject matter in CS 444/2000. The defendants also agreed to build
approximately a carpet plinth area of 10,186 sq.ft. in the ground floor and a
carpet area of 11,198 sq.ft. approximately in the first floor. Consequent
upon the said two agreements on 5.4.1981, the first defendant received Rs.1.00
lakh for the ground floor and Rs.1.0 0 lakh for the first floor as advance and
passed on the receipts under Exs.P1 and P2 respectively on behalf of the
defendants. The defendants also confirmed the said agreements under Exs.P3
and P4 letters. The defendants issued Ex.P5 a consolidated receipt dated
23.6.1982 acknowledging the payment of Rs.34,19,800/- received on various
dates towards the transaction covered under CS 444/2000. Likewise, the
defendants also issued Ex.P6 consolidated receipt dated 23.6.1982
acknowledging the payment of Rs.36,70,925/- received on various dates towards
the transaction covered under CS 443/2000. The rate per square feet was
agreed at Rs.675/- for ground floor and Rs.600/- for the first floor. The
stipulated time for the completion of the buildings was 1 8 months from the
date of payment of the second instalment. The plaintiffs paid the second
instalment on 1.5.1981. The defendants did not complete the construction
within 18 months from the payment of the second instalment. So far the
plaintiffs have paid Rs.48,70,925/- for the ground floor and Rs.47,19,800/-
for the first floor as found under Exs.P8 and P7 consolidated receipts dated
17.2.1983 respectively. Except the above, the plaintiffs did not pay the
balance of the sale consideration. The plaintiffs received Exs.P10 and P11
notices dated 5.8.96 from the Office of the Assistant Commissioner of Income
Tax, regarding the confirmation of the amounts paid by the plaintiffs to the
defendants in respect of the properties covered under both the suits. Exs.P12
and P13 dated 7.8.96 are the xerox copies of the reply given by the plaintiffs
to the Assistant Commissioner of Income Tax. P.W.1 gave evidence before the
Assistant Commissioner of Income Tax, and the certified copy of the same is
Ex.P14. Ex.P15 is a xerox copy of the assessment order, and the original of
the same is in the custody of the defendants. The plaintiffs gave a complaint
to the Director General of Police, Madras against the defendants, and there
were criminal proceedings. The same was published in a magazine ” Junior
Vikatan” dated 18.7.1999. A copy of the same is Ex.P16. The plaintiffs filed
a suit against the defendants before the City Civil Court for the relief of
permanent injunction, and the same was later withdrawn. During the pendency
of the suit, the plaintiffs made two interim injunction applications in
O.A.Nos.576/2000 and 577/2000. Interim injunction was granted subject to the
condition that the plaintiffs should deposit the balance of consideration and
also give an undertaking that they would pay the balance as per the actual
measurement as per the square foot basis. Later the plaintiffs filed the
application seeking modification of the said order and to permit them to give
bank guarantee for the balance of sale consideration in stead of depositing
the said amounts. The said application was ordered. Accordingly, the
plaintiffs furnished a bank guarantee on 7.3.2001 and have also given an
undertaking that they would pay the actual extra measurement cost at the time
of possession. The plaintiffs have also renewed the bank guarantee till
5.3.2003.
11. The plaintiffs have come forward with both the suits seeking the
relief of specific performance of two agreements of sale in respect of the
ground and first floors of a building more fully described in the Schedules to
the plaints. As seen above, there is no dispute between the parties as to the
offer, acceptance, considerations, confirmation of the agreements, initial
advance of Rs.1.00 lakh in each case and subsequent consolidated payments.
The specific case of the plaintiffs is that out of the sale consideration of
Rs.68,75,550/- for the ground floor, they paid Rs.48,70,925/-, and out of the
sale consideration of Rs.67,18,800/- for the first floor, they have paid
Rs.47,19 ,800/-; that as understood between the parties, the defendants should
have completed the construction within 18 months from the date of payment of
the second instalment and hand over possession; that though the second
instalment was paid on 1.5.1981, the defendants have failed to complete the
construction, but the construction of the first floor was over in 1995, and
the ground floor is still incomplete; that in view of the deviation from the
approved plan, the defendants could not even proceed with the construction of
the ground and first floors; that the same was regularised by a Government
Order in the year 198 7; that though the plaintiffs were ever ready to pay the
balance of considerations, despite requests and reminders, the defendants did
not complete the transaction, which constrained the plaintiffs to filed these
two suits. The defendants have contested the suit by stating that the
plaintiffs have made a thorough breach of the contracts in not keeping up the
schedule of payments; that both the suits are barred by limitation; that both
the parties have abandoned the contracts even in the year 1983; that in view
of the acts and conduct of the plaintiff, the defendants have suffered heavy
losses and damages, and the defendants are entitled to adjust the amounts
already paid by the plaintiffs, towards the said losses and damages; that the
plaintiff in CS 443/2000 is shown as the Private Limited Company, with whom
the defendants did not enter into any agreement, but only with a partnership
firm, and for all the reasons, the plaintiffs are not entitled to any relief.
12. Following the oral discussion for the purchase of ground and floors in
the proposed construction to be made by the defendants, the plaintiffs have
paid Rs.1.00 lakh as advance in each case on 5.4.1981, as evidenced by Exs.P1
and P2 receipts issued by the first defendant. Except the letters of
confirmation as evidenced under Exs.P3 and P4 dated 5.4.1981, no separate
written agreements were entered into between the parties. Under Exs.P3 and
P4, the schedule of payments as to the balance of considerations is clearly
set out. A perusal of Exs.P3 and P4 would indicate that no period or time was
fixed for concluding the contracts. Relying on the Clause stating “we expect
to complete the construction in 18 months time from the date of the second
instalment when we shall hand over possession to you” under Exs.P3 and P4, the
learned Counsel appearing for the defendants would argue that the said clause
would indicate that the time was the essence of the contract; and that if the
building was not completed within 18 months from the date of the second
instalment, the plaintiffs should have initiated proceedings for the specific
performance of the contracts. The court is unable to agree with the said
contention, since the said Clause would speak of the assurance and undertaking
given by the defendants to complete the construction within 18 months from the
date of the payment of the second instalment and hand over possession.
Admittedly, the construction was not completed within the 1 8 months from the
date of the second instalment by the plaintiffs. It would be quite evident
that at that juncture, the defendants have not acted as per the undertaking
given by them in the said confirmation letters. From the available materials,
it could be seen that a couple of payments were made by the plaintiffs and
received by the defendants even after the 18 months time from the date of the
second instalment. Under such circumstances, the defendants cannot be
permitted to say that the time was the essence of the contracts. Had the time
been the essence of the contracts, the defendants could have well refused to
receive the further payments and cancelled the agreement, but have not done
so. But, on the contrary, the defendants have received the payments, even
after the time, and hence, the first contention of the defendants’ side that
the time was fixed for the completion of the contracts cannot be countenanced.
13. According to the learned Counsel for the defendants, even
assuming that the time was not fixed for the performance of the contracts, the
plaintiffs should have filed the suits for specific performance within three
years from the time of their notice that the performance was refused by the
defendants. It is an admitted position that there was no correspondence
between the parties at any point of time. It is not the case of the
defendants that they ever refused to perform their part of the contract.
D.W.1, the first defendant in both the suits, has nowhere stated that he
refused to perform the said agreements for sale. It is submitted by the
defendants’ side that the plaintiffs have given a criminal complaint on
16.10.1996, and the averments made by the plaintiffs in the said complaint
would clearly reveal that the plaintiffs were put on notice as to the refusal
of the defendants to complete the contract. P.W.1 has admitted that he
complained to D.G.P., Madras on 16.10.1996 about the conduct of the
defendants, and has stated as follows:
“We have come to know that Mr. and Mrs. Cletus Winston had no intention of
conveying the first floor portion of the property in our favour and keep their
commitment though they have received major sale consideration…..
Mr. & Mrs. Cletus Vincent who have been paid a substantial portion of the
sale consideration in respect of the above property are seeking to dishonestly
use and dispose of the property in violation of the obligations under the
agreement between them and us. The action of the said Mr. and Mrs.Clectus
Vincent amounts to criminal breach of trust and cheating punishable under the
provisions of Indian Penal Code. As referred to already we have parted with
Rs.46,19,800/- towards the sale consideration of the property and intentional
and fraudulent action of Mr. & Mrs.Cletus Vincent is wholly illegal and
warranting action.”
14. The learned Senior Counsel appearing for the plaintiffs would
submit that the plaintiffs have not stated in the said complaint as to any
refusal made by the defendants to perform their part of the contract, but have
spoken about their intention not to do so, and thus, it was only an assumption
of P.W.1, and it cannot be equated to refusal as required by law. Under the
stated circumstances and in view of the averments made in the said complaint,
the court has to necessarily agree with the defence. As seen above, the
plaintiffs have not only stated that the defendants had not the intention of
conveying the property in favour of the plaintiffs and keep their commitment,
but has also stated that the intentional and fraudulent acts of the defendants
amounted to criminal breach of trust and cheating, in spite of Rs.46,19,800/-
paid by way of sale consideration, and it warranted criminal action in the
hands of the police. At this juncture, the court has to necessarily point out
that the starting point of limitation under Article 113 of the Limitation Act
as to the specific performance of a contract would commence when the
plaintiffs have noticed that the performance was refused by the defendants.
“Notice” contemplated under the said Article need not be a written
communication. It would be suffice, if there is an intimation or information,
and it would even imply the knowledge which comes from the direct perception
or from inference, which would reasonably arise out of the several facts and
circumstances. In the instant case, it remains to be stated that the
averments made by the plaintiffs in the said criminal complaint would be
clearly indicative of their knowledge as to the refusal of performance by the
defendants in respect of their part of the contracts. It is pertinent to note
that after the consolidated payments that were made by the plaintiffs as
evidenced by Exs.P7 and P8 in 1983, there is no correspondence or
communication between the parties till the criminal complaint dated 16.10.96.
No material is placed by the plaintiffs before the court that they made any
payment or made any demand for the performance of the contracts. Under such
circumstances, the said criminal complaint given by the plaintiffs on 16.10.96
with such averments would lead only to the inference that the plaintiffs were
clearly put on notice that the defendants were not willing to perform their
part of the contracts, and hence, the suits for specific performance should
have been brought within three years after such notice. In the instant case,
both the suits were filed on 19.6.2000, which is clearly after three years
from the date of the said complaint dated 16.10.1996, as found under Ex.P16,
and hence, the court has to necessarily hold that the suits in respect of
specific performance brought up after such notice viz. after more than three
years, would be barred by limitation.
15. Alleging that the plaintiffs were all along ready and willing to
perform their part of the contracts by paying the balance of considerations,
the plaintiffs have sought for the relief of specific performance. Contrary
to the above, it is contended by the defendants’ side that the plaintiffs were
never ready and willing to perform their part of the contracts, but have been
chronic defaulters in payment of considerations as agreed upon between the
parties. Concededly, the total sale considerations for the ground and first
floors were Rs.68,7 5,550/- and Rs.67,18,800/- respectively. According to
Exs.P3 and P4 confirmation letters, the second instalment should be paid by
the plaintiffs on or before 16.4.1981. The plaintiffs have admitted that the
second instalment was not paid by them on 16.4.81, but the same was completed
in June 1981. It is not in dispute that the third instalment was to be paid
at the start of the foundation, as per Clause (ii) of Exs.P3 and P4. The
plaintiffs have admitted that they have not made the third instalment as per
the schedule, but would add that the foundation work did not start at all that
time. Likewise, the fourth instalment of Rs.11,45,925/- payable on the 45th
day after the third instalment, as per Clause (iii) was not paid as per the
schedule. In short, the plaintiffs have categorically admitted that they have
not paid any of the instalments as contemplated under Ex.P4 in time. Exs.P5
and P6 consolidated receipts dated 23.6.1982 contain all necessary particulars
as to the due dates, amount due, total due, received date, received amount and
total received. Under Ex.P5, it is stated as follows:
“Against an amount of Rs.60,46,920/- due and payable by 1st June, 198 2,
payments have only been made to the tune of Rs.34,19,800/- ( Rupees thirty
four lakhs nineteen thousand eight hundred only) ie. lower than stipulated by
Rs.26,27,120/-.”
Likewise, under Ex.P6, it is stated thus:
“”Against an amount of Rs.61,87,995/- due and payable by 1st June, 19 82,
payments have only been made to the tune of Rs.36,70,925/- ( Rupees thirty six
lakhs seventy thousand nine hundred and twenty five only) ie. lower than
stipulated by Rs.25,17,070/-.”
Even Ex.P8 confirmation receipt would state that out of Rs.68,75,550/- due on
1.9.82, the plaintiffs have paid only Rs.48,70,925/- only, and thus, there was
a balance of Rs.20,04,625/-. The statements made by the defendants under
Exs.P5, P6 and P6 are not disputed by the plaintiffs. These statements would
go to show that the plaintiffs even from the time of the second instalment
have committed default from keeping up the schedule of payments, as per the
agreements. However, it has to be necessarily stated that even in 1983, the
plaintiffs have paid Rs.48,70,925/- out of Rs.68,75,550/- for the ground floor
and Rs.47,19,800/- out of Rs.67,18,800/- for the first floor.
16. At this juncture, it has become highly necessary to look into the
acts and conduct of the defendants. It is an admitted position that at the
time of entering into the contracts, the construction work did not commence.
As understood between the parties, the construction should be completed by the
defendants within 18 months from the date of second instalment, and possession
should be handed over to the plaintiffs. D.W.1 has categorically admitted
that he did not complete the construction, as agreed upon between the parties.
It is contended by the plaintiffs’ side that at the time of agreements, the
defendants had an approved plan for construction of the ground floor plus six
floors only, but the defendants deviating therefrom constructed 7, 8 and 9
floors. D.W.1 has well admitted that originally he had obtained planning
sanction for the basement, ground floor plus six floors, and there were some
deviations from the sanctioned plan while putting up the construction for the
basement, ground floor plus six floors, and apart from that deviations, he put
up unauthorised construction of 7 and 8 floors with a pent house. This candid
admission made by D.W.1 would make it abundantly clear that he has made a
thorough deviation from the sanctioned and approved plan by raising 7, 8 and 9
floors, but also even in the construction for basement, ground floor plus six
floors. The evasive answer given by D.W.1 that he did not remember as to
whether the original planning permission expired in 1982; and that without
referring to the necessary documents, he could not answer the said question
would go to show that it is well within his knowledge that the original
planning permission expired in 1982 itself. According to D.W.1, a revised
plan for regularising the deviations and for regularising the 7th and 8th
floors was filed and was kept pending by the Government, but was subsequently
rejected by the Government by its Order under Ex.P22 dated 27.1.1987, and a
review petition filed by the defendants was allowed by a Government Order
dated 29.1.1988 under Ex.P23. According to Ex.P22 G.O., the defendants were
to apply to M.M.D.A. for a fresh planning p ermission, and only then they
could commence the constructions. This fact would indicate that the
defendants should have applied to the MMDA for a fresh planning permission to
continue their construction. D.W.1 has categorically admitted that the
construction was over only in 1995. Though the structural work of the
basement plus 9 floors was completed even in the year 1983, the defendants
could not complete the full-fledged construction due to the actions taken by
the authorities and had to seek for the regularisation, and on the rejection
of the same were to apply to the MMDA by a revised plan. Under such
circumstances, the defendants having committed all the deviations and
irregularities in the constructions, should not be permitted to complain that
the plaintiffs have defaulted in making the payments as per the schedule, when
the plaintiffs have paid 60% of the considerations. Thus, the court is able
to notice that both the parties to the agreements have breached the contracts
on their respective sides.
17. In the instant case, the court is able to notice unexplained
latches on the part of the plaintiffs. Admittedly, the structural
construction of the building was completed in 1983, the deviations made were
regularised in 1988, and the building was completed in 1995. Under such
circumstances, the contention of the plaintiffs that they were waiting under
the fond hope that the defendants would execute sale deeds by receiving the
balance of consideration is highly improbable and unbelievable. It is
pertinent to note that the plaintiffs are business concerns and have also
advanced a sum of Rs.1.00 crore. The conduct of the plaintiff in not making a
demand for such a long period would be against the conduct expected of an
ordinary prudent man under the given circumstances. The said unexplained
latches stands also a good ground for denial of the equitable relief of
specific performance. It is contended by the defendants’ side that both the
parties have abandoned the agreements even in the year 1983. The court is of
the view that in the absence of any direct proof or the circumstances
indicating the same, the said contention of abandonment cannot be accepted.
18. It is well settled proposition of law that a person who seeks for
specific performance, an equitable relief, should come to court with clean
hands. The plaintiffs have well averred in the plaints that in the sale
transaction everything was concluded except registration of the formal deed of
conveyance in favour of the plaintiffs, and the possession had been handed
over to the plaintiffs as early as 15.7.1 983, and since then, the plaintiffs
have been in peaceful, physical and uninterrupted possession of the suit
properties. No material is placed before the court to accept the contention
that the plaintiffs were ever put in possession of the properties. It is
quite evident from the evidence both oral and documentary that due to the
irregularities and deviations from the sanctioned plan, the construction work
was abruptly stopped in 1983 and continued to be in the same condition till
1987. Taking into consideration the communication made under Ex.P8
complaining of the non payment of the consideration payable, as per schedule
and the fact that the construction of the building remained incomplete, it
would be hard to accept that the defendants handed over possession of the
properties to the plaintiffs. Before filing the instant suits, the plaintiffs
have already filed a suit for permanent injunction against the defendants
alleging that they are in possession of the properties, and hence, the
defendants should be restrained from interfering with their possession of the
properties. It is admitted by P.W.1 that the said suit was withdrawn. The
question as to the possession of the property was the subject matter of S.145
Cr. P.C. proceedings, wherein it was contended by the plaintiffs that they
were in possession of the property, and that this court had an occasion to
consider the same in Crl.R.C.No.1422/99. By an elaborate order dated 8.6.2000
as evidenced under Ex.D1, this court has found that the defendants were always
in possession of the properties. All the above would clearly indicate that
the plaintiffs who were never put in possession of the suit properties have
come with a false averments stating that the possession was handed over to
them, and they have been in enjoyment of the same peacefully and without any
interruption whatsoever. For the reasons stated and discussions made above,
the court is of the considered view that the plaintiffs are not entitled to
the equitable relief of specific performance of the agreements in respect of
the Schedule mentioned properties to the plaints.
19. The plaintiffs have sought for the refund of the advance with
interest as an alternative relief. Concededly, the plaintiffs have paid
Rs.48,70,925/- under the first agreement and Rs.47,19,800/- under the second
agreement, which would represent more than 60% of the respective total sale
consideration. It is true that the plaintiffs have defaulted to make the
instalment payments as per the schedule, but have stated that the defendants
have deviated from the sanctioned plan not only by raising construction of
7th, 8th and 9th floors but also even in the basement, ground floor plus six
floors, and the building could not be proceeded with on such irregular ities
for a period of nearly five years. At no point of time, the defendants have
made any attempt to cancel the agreements or make refund of the advance paid,
but have utilised the moneys of the plaintiffs for the said construction.
D.W.1 has admitted that the total cost of the land at that time was only
Rs.5.50 lakhs. According to Ex.P15 Income Tax Assessment Order, the total
cost of construction of the whole project reflected as capital work in
progress is shown by the defendants as Rs.1,35,79,02 8/-. Even as per the
evidence of D.W.1, he has sold the 3rd, 4th and 5th floors to M/s.Aban Lloyd
for a sum of Rs.5.50 crores in as is where is condition and has retained 2nd,
and 6th to 9th floors with a total extent of about 65,000 sq.ft.
approximately. It is clear from the evidence that the defendants have made
huge profits out of the alleged construction. It cannot be disputed that the
amounts of the plaintiffs nearly a crore of rupees were utilised by the
defendants for that purpose. It is highly surprising to note that D.W.1 has
stated that he incurred heavy losses due to the defaults committed by the
plaintiffs, but he has forgotten a while that he proceeded with the
construction thoroughly deviating from the sanctioned plan. The available
evidence would clearly indicate that the alleged losses by the defendants are
imaginary and unfounded. On the contrary, the defendants have gained huge
profits and enriched themselves by utilising the plaintiffs’ moneys. At no
stretch of imagination, the defendants could be permitted to appropriate the
amounts of the plaintiffs towards those imaginary losses and damages. The
interest of equity would require that the defendants should be directed to
refund the entire amount with interest, and the interest of justice would also
require the same. Taking into consideration the facts and circumstances of
the case, the defendants are directed to pay the entire amounts paid by the
plaintiffs with interest at 18% per annum till realisation.
20. The court is unable to appreciate the contention put forth by the
defendants’ side that the suit in CS 443/2000 is not maintainable in view of
the fact that the contracts were originally entered into between a partnership
firm and the defendants, but the plaint has been filed by a private limited
company called M/s.Sunil Anand & Co. P. Ltd. From the evidence of P.W.1, it
would be clear that the plaintiff in CS 443/2000 was originally a partnership
firm and subsequently converted as a private limited company named M/s.Sunil
Anand & Co. P. Ltd. The plaintiffs have filed Ex.P17, the Memorandum and
Articles of Association of Sunil Anand & Co. P. Ltd., and Ex.P18 a copy of
the certificate of incorporation of the said company. The statement of P.W.1
that himself and his three brothers viz. S.M.Lal, Purushotham Sundar Das and
Vasudev Sundar Das were partners in the said firm, and subsequently, all the
aforesaid partners became Directors of Sunial Anand & Co. P. Ltd., and all
the assets and liabilities of the firm were taken over by the company; and
that the said Directors of the Private Limited Company are the shareholders of
the same, and there are no other shareholders is not disputed by the other
side. That apart, D.W.1 has well admitted in his evidence that he has
received more than 50 % of the payment in respect of the transaction in CS
443/2000 from the Limited Company viz. Sunil Anand & Co. P. Ltd. It is
also pertinent to note that there is a nominee Clause in the agreements which
fact is also admitted by D.W.1. Considering all the above, the court is
unable to see any merits in the contention of the defendants that CS 443/2000
is not maintainable on the above said ground. Therefore, all the above issues
in both the suits are answered accordingly.
21. In the result, the plaintiff in C.S.443/2000 is given a decree
for a sum of Rs.2,10,75,500/- together with future interest at 18% per annum
on Rs.48,70,925/- from the date of plaint till realisation and with
proportionate costs. In other respects C.S.No.443/2000 is dismissed.
22. In the result, the plaintiff in C.S.444/2000 is given a decree
for a sum of Rs.2,04,16,000/- together with future interest at 18% per annum
on Rs.47,19,800/- from the
date of plaint till realisation and with proportionate costs. In other
respects C.S.No.444/2000 is dismissed.
23. A charge is created over the suit properties for the decree
amounts stated supra till full satisfaction of the decrees. In view of the
dismissal of the same, connected applications are dismissed. No costs.
M. CHOCKALINGAM, J
Index: Yes
Internet: Yes
15-7-2002
List of Witnesses
1. P.W.1 Arjunlal Sundardas
2. D.W.1 Cleetus Vincent
List of Documents
1. Ex.P1 5.4.81 Receipt by D1 to plaintiff
2. P2 5.4.81 -do-
3. P3 5.4.81 Confirmation letter
4. P4 5.4.81 -do-
5. P5 23.6.82 Receipt
6. P6 23.6.82 Receipt
7. P7 17.2.83 Receipt
8. P8 17.2.83 Receipt
9. P9 2.3.95 Lawyer’s notice
10. P10 5.8.96 Letter from the Office of the Asst.
Commissioner of Income Tax
11. P11 5.8.96 -do-
12. P12 7.8.96 Reply
13. P13 7.8.96 Reply
14. P14 23.9.96 Enquiry proceedings
15. P15 31.3.98 Assessment order by Income tax Dept.
16. P16 18.7.99 Magazine – Junior Vikatan
17. P17 Memorandum and Articles of Association
18. P18 Xerox copy of certificate of
incorporation
19. P19 Statement of Account 1981-83
20. P20 Statement of Account 1982
21. P21 Statement of Account 1981-82
22. P22 29.1.88 Copy of G.O.Ms.no.90, Housing and urban
Development
23. P23 23.2.88 Publication in Indian Express
24. Ex.D1 8.6.00 Certified copy of judgment in
Crl.R.C.No.1422/99
nsv/
Judgment
in C.S.Nos.443 and
444 of 2000
C.S.No.443 and 444 of 2000
M. CHOCKALINGAM, J
The matter came up before the Court today under the caption
“For being mentioned”.
Heard both sides. In page 44 para 23 of the Judgment dated
15.7.200 2 it is stated “A charge is created over the suit properties for the
decree amounts stated supra till full satisfaction of the decrees.” This would
mean the properties mentioned in Schedule-A of the respective suits.
18.7.2002
vsi