{"id":102448,"date":"2002-07-15T00:00:00","date_gmt":"2002-07-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-sunil-anand-co-p-ltd-vs-cleetus-vincent-on-15-july-2002"},"modified":"2016-07-20T11:32:25","modified_gmt":"2016-07-20T06:02:25","slug":"ms-sunil-anand-co-p-ltd-vs-cleetus-vincent-on-15-july-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-sunil-anand-co-p-ltd-vs-cleetus-vincent-on-15-july-2002","title":{"rendered":"M\/S.Sunil Anand & Co.P.Ltd vs Cleetus Vincent on 15 July, 2002"},"content":{"rendered":"
Madras High Court<\/div>\n
M\/S.Sunil Anand & Co.P.Ltd vs Cleetus Vincent on 15 July, 2002<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 15\/07\/2002\n\nCORAM\n\nTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAM\n\nC.S.No.443 of 2000 and C.S.No. 444 of 2000\nand\nO.A.Nos.576 and 577 of 2000\n\nM\/s.Sunil Anand & Co.P.Ltd.,\nrepresented by its Managing\nDirector, Arjunlal Sundardas                    .. Plaintiff in\n                                                   CS 443 of 2000\n\nM\/s.Sunderdas Arjunlal\nby Managing Partner Arjunlal Sunderdas          .. Plaintiff in\n                                                   CS 444 of 2000\n\nvs\n\n1.<\/pre>\n
 Cleetus Vincent\n<\/p>\n
2. Tmt.Imelda Cleetus\n<\/p>\n
3. Vinjane Constructions (formerly
\n   Vinjane Centre) rep.by Managing
\n   Partner : Cleetus Vincent                    .. Defendants in
\n                                                   both the suits<\/p>\n
!For Plaintiffs  :  Mr.K.V.Venkatapathy,
\n                    Senior Counsel,
\n                    for Mr.M.Rajasekaran<\/p>\n
^For Defendants  :  Mr.P.J.George<\/p>\n
:COMMON JUDGMENT<\/p>\n
        C.S.No.443 of 2000<\/p>\n
        This suit has been filed for specific performance  of  the  letter  of
\nconfirmation  dated  5.4.1981  executed  by  the  defendants  in favour of the
\nplaintiff by directing the defendant to execute and register the Sale Deed  in
\nrespect  of  ‘A’  Schedule property, for a direction to the defendants to hand
\nover possession of  ‘A’  Schedule  property,  or  in  the  alternative  for  a
\ndirection  to  the  defendants  to  pay  a  sum of Rs.2,1 0,75,000\/- being the
\namounts paid by the plaintiff  towards  purchase  of  the  suit  property  and
\ninterest  along  with  future interest at 30% per annum on Rs.48,70,925\/- from
\nthe date of plaint till realisation, for a  permanent  injunction  restraining
\nthe defendants from in any dealing with the ‘A’ and ‘B’ Schedule properties or
\nalienating in any manner and putting the same to any use and for costs.\n<\/p>\n
        2.  C.S.No.444 of 2000:\n<\/p>\n
        This  suit  has  been  filed for specific performance of the letter of
\nconfirmation dated 5.4.1981 executed  by  the  defendants  in  favour  of  the
\nplaintiff  by directing the defendant to execute and register the Sale Deed in
\nrespect of ‘A’ Schedule property, for a direction to the  defendants  to  hand
\nover  possession  of  ‘A’  Schedule  property,  or  in  the  alternative for a
\ndirection to the defendants to pay  a  sum  of  Rs.2,0  4,16,000\/-  being  the
\namounts  paid  by  the  plaintiff  towards  purchase  of the suit property and
\ninterest along with future interest at 30% per annum  on  Rs.47,19,800\/-  from
\nthe  date  of  plaint till realisation, for a permanent injunction restraining
\nthe defendants from in any dealing with the ‘A’ and ‘B’ Schedule properties or
\nalienating in any manner and putting the same to any use and for costs.\n<\/p>\n
        3.  The plaint averments in both the suits are common, except the sale
\nconsideration and the property in question The averments are as follows:\n<\/p>\n
        The landed property at Door No.Old 101, New 96, Pantheon Road, Egmore,
\nChennai originally owned by the defendants 1 and 2, who are  partners  in  the
\n3rd defendant firm.  The third defendant took up development activities of the
\nproperty for  putting  up  a  multi-storeyed shopping cum office complex.  The
\ndefendants represented that they are willing to  sell  the  ground  and  first
\nfloors of  the  proposed  building.    They agreed to sell the proposed ground
\nfloor of the property along with proportionate undivided share of the land  to
\nthe plaintiff  in  CS  443\/00  for  a  price  of  Rs.68,75,550\/-.  A letter of
\nconfirmation dated 5.4 .1981  was  executed  by  the  defendants.    The  said
\nconsideration  was  to be paid in instalments, and the plaintiff paid a sum of
\nRs.48,70,925\/- upto 1983 itself.  They also agreed to  sell  the  first  floor
\nwith  proportionate  undivided  share  of  land  for  Rs.67,18,800\/-  to  M\/s.
\nSundardas Arjunlal, a Partnership firm and sister concern of the plaintiff  in
\nCS 443\/00.   The  said  partnership  firm paid Rs.47,19,800\/- till 1982 .  The
\ndefendants also executed letter of  confirmation  dated  5.4.81.    Under  the
\nletter  of  confirmation,  the  possession  of the respective portions will be
\nhanded over to the plaintiff and the firm within 18 months from  the  date  of
\nthe  payment  of  the  2nd  instalment, by which time the construction will be
\ncompleted.  The properties agreed to be sold includes provision of  escalator,
\npartition  for  shops,  provision  of  proportionate  car  parking area in the
\nbasement and shall be centrally air conditioned.  The said amounts  were  paid
\nby the  plaintiffs well before 12.1.83.  The said letter of confirmation would
\nconclusively establish that the suit properties were sold  to  the  plaintiff.
\nThis  fact  is  also  clear  from  the  income tax assessment order of the 3rd
\ndefendant and the findings therein.    In  this  transaction,  everything  had
\nconcluded,  except the registration of the formal deed of conveyance in favour
\nof the plaintiff.  Possession had  been  handed  over  to  the  plaintiffs  on
\n15.7.1983.   However,  since  certain civil and finishing works remained to be
\ndone, the plaintiffs could not put the property to effective use.  Though  the
\npromoter  was  given  time to complete the work, the works in the ground floor
\narea still remain incomplete.  The defendants trespassed into the first  floor
\nand installed  some  billiards tables.  The plaintiffs are in physical, actual
\nand effective possession of the properties since 1983.  Plaintiff came to know
\nthat certain portion of the property at the said address was  proposed  to  be
\npurchased  by  some third parties, and the same was advertised in The Hindu on
\n26.2.1995.  thereafter, the defendants did  not  sell  the  ground  and  first
\nfloors  to anybody, and they were also promising the plaintiffs that they will
\nbe executing the sale deed at the earliest.  The plaintiffs came to know  that
\nthe  defendants  were trying to dishonestly use and dispose off the properties
\nwhich were agreed to be sold to the plaintiffs.  When the  defendants  started
\nusing  the  ground and first floors as a club for billiards and snow ball, the
\nplaintiff approached them, and the defendants removed the same  and  delivered
\npossession to  the  plaintiffs.  The defendants informed the same to the press
\nwrongly as if the plaintiffs and the 2nd firm forcible  took  possession,  and
\nthe same  was  also  widely  published.  The intention of the defendants is to
\ncheat the plaintiffs and deny their rights and remove them from the possession
\nof the property.  After receiving substantial amounts, the  defendants  cannot
\nrefuse to  execute  the  sale deeds.  On the basis of the complaints from both
\nthe parties, proceedings were  initiated  under  S.145  of  Cr.P.C.,  and  the
\nExecutive Magistrate had passed an order dated 5.11.1999 stating that both the
\nparties  should  refrain  from  the places and the property was also attached.
\nAggrieved over the same, the plaintiffs and one Baskar  filed  Crl.R.C.No.1422
\nof 1999.    At the time of the defendants’ offer, they proposed to put up only
\nsix floors.  But, the defendants without any  proper  planning  permission  or
\nauthority  have  constructed  7th,  8th  and  9th  floors,  due  to  which the
\nplaintiffs’ undivided interest in the common land has got  diminished.    They
\nhave no  right  or  authority  to  put  up  additional floors.  The defendants
\napproached  the  authorities  for  regularisation  of  the  said  unauthorised
\nconstructions.   Whether  they succeed in their attempt or not, the defendants
\nare liable to convey the  schedule  mentioned  properties  with  proportionate
\nundivided share of land, treating the complex having only basement, ground and
\nsix upper  floors.   When the defendants approached the plaintiffs for sale of
\nthe properties, they represented that  they  are  not  going  to  put  up  any
\nadditional floors.    Since  the construction of 7th, 8th and 9th floors is in
\nviolation of the terms and conditions of sale, the defendants have no right to
\ndeal with the said floors.   The  defendants  have  been  making  attempts  to
\nillegally deal with the ground and first floors by suppressing the said letter
\nof confirmation.    The plaintiffs jointly filed a suit against the defendants
\nherein in O.S.No.4993 of  1999  before  the  City  Civil  Court,  Chennai  for
\ninjunction.   The  plaintiffs  filed  an application in I.A.No.12755\/99 in the
\nsaid suit for an interim injunction.  Interim injunction was granted only  for
\nrestraining  the  defendants  from  dealing  with the ground and first floors.
\nAggrieved over the disallowed  portion  of  the  said  order,  the  plaintiffs
\npreferred an  appeal  in CMA No.193\/99.  The defendants preferred an appeal in
\nCMA No.186\/99 against the allowed portion of the said order.  Both the appeals
\nwere pending before the City Civil Court, Madras.    The  plaintiffs  were  in
\nsymbolic  possession  of  the properties throughout the Executive Magistrate’s
\nproceedings.  An order dated 5.11.99 was passed by  the  Executive  Magistrate
\ndirecting both  the  parties  not to enter the premises.  The plaintiffs filed
\nCrl.R.C.No.1422\/99 before  this  court,  and  interim  stay  was  obtained  in
\nCrl.M.P.No.10620\/99.   This  court  has vide order dated 8.6.2000 directed the
\nExecutive Magistrate to hand over possession to  the  defendants,  instead  of
\ndirecting the Magistrate to hand over possession to the plaintiffs.  More than
\n60% of  the  sale  consideration  has  been  received  by the defendants.  The
\nplaintiffs  are  always  ready  and  willing  to  pay  the  balance  of   sale
\nconsideration.   The  defendants  have  committed  breach  of  the  letter  of
\nconfirmation and are attempting to sell the property to third parties and have
\nput the ground and first floors for their personal use.  They are not  willing
\nto conclude  their  part  of  the contract.  The plaintiffs did not commit any
\ndefault in performing its parts of contract.   In  view  of  the  unauthorised
\nconstructions,  the  defendants have committed breach of the sale confirmation
\nletters.  The defendants are not entitled to use the suit  properties  as  the
\nplaintiffs are  the  owner  of the same.  The plaintiffs are also entitled for
\nproportionate car parking area in the suit properties.  If the amounts paid as
\ndeposits on various dates have been used in financial business, the plaintiffs
\nwould have earned crores and crores of rupees.    Hence,  the  plaintiffs  are
\nreasonably entitled  for  interest  at  30%  per  annum.  However, the same is
\nrestricted to 18% per annum till the date of filing of  the  plaint  and  they
\nclaim the  future  interest at 30% per annum.  The plaintiffs have been put to
\ngreat mental tension and agony, and further  they  have  been  prevented  from
\nusing  the  premises  for  their  commercial use, thereby put to great loss of
\nincome.  The defendants  are  liable  to  compensate  the  same.    Since,  no
\nparticular  time  was fixed for execution of the sale deeds, limitation starts
\nfrom the day from which the defendants refused to execute the sale deeds.  The
\nplaintiffs came to know about the defendants’ refusal through  Junior  Vikatan
\nmagazine dated 18.7.1999.    Therefore,  the  suit  is  in  time.   Hence, the
\nplaintiffs seek the above said reliefs.\n<\/p>\n
        4.  The defendants 1 to 3 have filed separate  written  statements  in
\nboth the suits with the following averments:\n<\/p>\n
        As  per  Article  54 of the Limitation Act 1963, the starting point of
\nlimitation in respect of suit for specific performance is the date  fixed  for
\nthe  performance,  or  if no such date is fixed, when the plaintiff has notice
\nthat performance is refused.  Similarly, as per Article 113 of  the  Act,  the
\nperiod  of  limitation  for filing of a suit for refund of amounts advanced is
\nthree years, and the starting point of limitation is when  the  right  to  sue
\naccrues.   The  second  instalment  was payable on or before 16.4.1981 and was
\nactually paid in instalments by 1.6.1981 and completion and  handing  over  of
\npossession   should  therefore  have  been  on  16.10.82  or  1.12.1982  which
\nadmittedly was not done.  The last payment was  on  12.1.83  and  balance  was
\nclaimed on  17.2.1983.   Hence, the period of limitation expired on 17.2.1986.
\nThe plaintiffs have conveniently suppressed  the  complaint  dated  16.10.1996
\ngiven by  its  Managing Director.  Hence, the starting point of limitation was
\nat least from 16.10.1996 and expired on 16.10.1999.  The  statement  that  the
\nlimitation commenced from 18.7.1999 is false.  The main documents on which the
\nplaintiffs laid  the claim, are inadmissible in evidence.  The dealings of the
\ndefendants were with a partnership firm known as M\/s.Sunil Anand  &  Co.,  and
\nnot with M\/s.Sunil Anand  &  Co.  P.  Ltd.  The suit is therefore liable to be
\ndismissed in limine.  The sale consideration for the ground floor was fixed at
\nRs.68,75,550\/- based on an area of 10186 sq.ft.  The clause that  there  would
\nbe an upward or downward revision in price according to the actual area of the
\nfloor  was inserted in the letter dated 5.4.81, as the project was only in the
\nplanning stage at this time.  The actual area of the  ground  floor  is  13738
\nsq.ft.   The  amount  payable  by  the  plaintiff in CS 443\/00 would have been
\nRs.92,73,150\/- and not Rs.68,75,550\/-.  The sale consideration for  the  first
\nfloor was  fixed  at Rs.67,18,000\/- based on an area of 11198 sq.ft.  The said
\nclause was also inserted in the letter dated 5.4.1981.  The actual area of the
\nfirst floor is 1440 8 sq.ft., and the amount payable by the  plaintiff  in  CS
\n444\/00 would  have  been  Rs.86,44,800\/-.    From  the  documents filed by the
\nplaintiffs, it is clearly seen that the plaintiffs were defaulters in  payment
\nright from  the inception of the arrangement.  They failed to mention when the
\nconstruction ran  into  technical  difficulties.    If  as  alleged   by   the
\nplaintiffs,  the  properties  were sold to the plaintiffs in the year 1981, it
\nfollows that the above suits were not maintainable and  as  such  infructuous.
\nThe  plaintiffs  have  not  produced  a  scrap  of  evidence to prove that the
\npossession was handed  over  to  it  as  early  as  15.7.83.    The  order  in
\nCrl.R.C.No.1422\/99 dated 8.6.2000 passed by this court would clearly establish
\nthat  the  defendants were always in possession of the properties described in
\nthe plaints schedules.  Only the first floor was used by the defendants  as  a
\nbillards\/snooker\/ pool  parlour.  The ground floor is presently being used for
\nstorage.  The defendants never attempted to cheat the plaintiffs.  It was  the
\nplaintiffs  who committed default in payment and afterwards tried to illegally
\ntake possession of the properties.  The defendants never  agreed  to  restrict
\nthe construction  to 6 floors.  Even the letter dated 5.4 .81 does not specify
\nthe total constructed area, number of floors or  the  undivided  share  to  be
\nconveyed.   The plaintiffs were only promised proportionate undivided share in
\nthe land.  No specific share could have been envisaged at that  stage  as  the
\nbuilding plans  had  not been finalised then.  The defendants were entitled to
\nput up any number of floors provided sanction was obtained.    Only  a  little
\nover  50%  of  the  original  sale  consideration  was  paid by the plaintiffs
\nbelatedly before it committed default in payment.  The question of  now  being
\nwilling  to pay the balance of sale consideration does not arise, the contract
\nhaving been abandoned by both the parties in the year 1983 itself.  The relief
\nof specific performance is an equitable  relief.    The  defendants  1  and  2
\npurchased  the  land  and  buildings by way of outright sale under a sale deed
\ndated 18.4.80.  Encouraged and misguided  by  the  Managing  Director  of  the
\nplaintiffs, the  first  and  second defendants allotted the prime floors.  The
\nplaintiffs defaulted  in  payment,  and  the  defendants  were  put  to  great
\nfinancial constraints to pay the cost of civil construction.  The project came
\nto a  grinding  halt.    Due  to  these circumstances, neither party initiated
\nproceedings against each other and  in  fact  abandoned  the  contract.    The
\nChennai Metropolitan Development Authority had issued a completion certificate
\nwhich  proved conclusively that the building has been constructed according to
\nthe planning permission granted.  The plaintiffs  have  not  paid  the  entire
\namounts due to the defendants till date.  It was the plaintiffs, who prevented
\nthe  defendants  from using the property by unnecessarily interfering with the
\ndefendants’ business  and  also  by  causing  extensive  damage  to  the  said
\nproperties with  the  help  of  goondas.    The  plaintiffs  are attempting to
\nresurrect a cause of action which actually expired about 18 years ago, and the
\nreasons trotted out by the plaintiffs to extend limitation  are  false.    The
\nrelief  of  specific performance as well as the claim for refund are barred by
\nlimitation.  Hence the suits have to be dismissed with exemplary costs.\n<\/p>\n
        5.  On the above pleadings, the following issues were framed:
\nC.S.No.443\/2000:\n<\/p>\n
1.  Whether the suit is barred by limitation as claimed by the defendants?\n<\/p>\n
2.  Whether the plaintiff has been and is always ready and willing to  perform
\nits part of contract by paying the balance sale consideration?\n<\/p>\n
3.  Whether the putting up of Floors, 7, 8 & 9 is in accordance with the terms
\nof the  agreement?  If not, whether the plaintiff is entitled for reduction of
\nsale consideration due to the reduction of undivided interest in the land?\n<\/p>\n
4.  Whether the plaintiff is liable to pay any additional  sale  consideration
\nif  it  is found that more area has been constructed than what has been agreed
\nto be sold?\n<\/p>\n
5.  Whether in the alternative, without  giving  up  the  relief  of  specific
\nperformance  and  possession,  the  plaintiff  is entitled for the relief of a
\ndirection to the defendants to pay Rs.2,10,75,500\/- being the amounts paid  by
\nthe plaintiff for purchase of the suit property with interest, at 30% p.a.  on
\nRs.48,70,925\/- as claimed in para 24(c) of the Plaint?\n<\/p>\n
6.   Whether  the plaintiff is entitled for permanent injunction as claimed in
\nPara 24(d) of the Plaint?\n<\/p>\n
7.  Was the plaintiff ever in possession of the property?\n<\/p>\n
8.  Are the documents filed by the plaintiff is admissible in evidence?\n<\/p>\n
9.  Is the plaintiff entitled to relief as claimed for?\n<\/p>\n
C.S.No.444\/2000:\n<\/p>\n
1.  Whether the suit is barred by limitation as claimed by the defendants?\n<\/p>\n
2.  Whether the plaintiff has been and is always ready and willing to  perform
\nits part of contract by paying the balance sale consideration?\n<\/p>\n
3.  Whether the putting up of Floors, 7, 8 & 9 is in accordance with the terms
\nof the  agreement?  If not, whether the plaintiff is entitled for reduction of
\nsale consideration due to the reduction of undivided interest in the land?\n<\/p>\n
4.  Whether the plaintiff is liable to pay any additional  sale  consideration
\nif  it  is found that more area has been constructed than what has been agreed
\nto be sold?\n<\/p>\n
5.  Whether in the alternative, without  giving  up  the  relief  of  specific
\nperformance  and  possession,  the  plaintiff  is entitled for the relief of a
\ndirection to the defendants to pay Rs.2,04,16,000\/- being the amounts paid  by
\nthe plaintiff for purchase of the suit property with interest, at 30% p.a.  on
\nRs.47,19,800\/- as claimed in para 24(c) of the Plaint?\n<\/p>\n
6.   Whether  the plaintiff is entitled for permanent injunction as claimed in
\nPara 24(d) of the Plaint?\n<\/p>\n
7.  Was the plaintiff ever in possession of the property?\n<\/p>\n
8.  Are the documents filed by the plaintiff is admissible in evidence?\n<\/p>\n
9.  Is the plaintiff entitled to relief as claimed for?\n<\/p>\n
        6.  ISSUES 1 TO 9 IN BOTH THE SUITS:\n<\/p>\n
        These two suits have  been  filed  for  specific  performance  of  two
\nagreements of sale both dated 5.4.1981 executed by the defendants in favour of
\nthe  plaintiffs  in  respect of the schedule mentioned properties to the suits
\nand  in  alternative  a  money  decree  directing  the   defendants   to   pay
\nRs.2,10,75,500\/-  and  Rs.2,04,16,000\/-  respectively with subsequent interest
\nthereon.\n<\/p>\n
        7.  On the side of the plaintiffs, P.W.1 was examined, and  Exs.P1  to
\nP23 were  marked.  On the side of the defendants D.W.1 was examined, and Ex.D1
\nwas marked.\n<\/p>\n
        8.  Arguing for the plaintiffs, the  learned  Senior  Counsel  Mr.K.V.
\nVenkatapathy  would  submit  that the plaintiff in the first case is a private
\nlimited company, while the plaintiff in the second case is a partnership firm;
\nthat PW1 is a Managing Director in the former and a Director  in  the  latter;
\nthat  the  plaintiff  in  CS  443\/00  was  originally  a partnership firm, and
\nsubsequently in 1981, the same was converted into a Private  Limited  Company;
\nthat the said private limited company has taken all the assets and liabilities
\nof  the  earlier  partnership  firm;  that PW1 and his three brothers who were
\npartners became the Directors of the private limited company; that  Ex.P17  is
\nthe  Memorandum  and Articles of Association; that only the four Directors are
\nthe shareholders, and except them, there is no other shareholder; that Ex.P1 8
\nis the xerox copy of the certificate of incorporation; that the agreements for
\nsale for the ground and first floors of the defendants’ proposed  construction
\nwere  entered  into  between  the parties; that an advance of Rs.1.00 lakh was
\npaid in each case on 5.4.81, in respect of  which  the  defendants  passed  on
\nExs.P1  and  P2  receipts;  that Exs.P3 and P4 are the letters of confirmation
\nissued by the  first  defendant  in  respect  of  both  the  agreements;  that
\naccording  to Ex.P5, a consolidated receipt, issued on 23.6.82, the defendants
\nacknowledged the receipt of various payments amounting to Rs.34,19,800\/-; that
\nlikewise under Ex.P6 consolidated receipt, they have acknowledged the  receipt
\nof Rs.36,70,925\/-; that as per the agreements,the rate per square feet for the
\nground  floor  was  Rs.675\/-  and  for  the first floor was Rs.600\/-; that the
\ndefendants agreed to build approximate a carpet area of 1 0186 sq.ft.  in  the
\nground floor  and  11198  sq.ft.    approximately  in the first floor; that no
\nperiod or time was fixed for concluding the contract; that the stipulated time
\nfor completion of the building was 18 months from the date of payment  of  the
\nsecond instalment; that thought the plaintiffs have paid the second instalment
\non  1.5.81,  the  defendants  had  not  completed the construction; that it is
\npertinent to note that no default clause has been  incorporated  under  Exs.P3
\nand P4 agreements; that as per the original agreements, the defendants were to
\nput  up  the  basement,  car parking, ground floor plus six floors, as per the
\nsanctioned original plan given by the MMDA; that they also agreed  to  provide
\nthe car parking area which was proportionate to the total build up area of the
\nbuilding;  that out of the sale consideration of Rs.68,75,550\/- for the ground
\nfloor, the plaintiff has paid Rs.4 8,70,925\/- and towards the first floor  out
\nof   the   sale  consideration  of  Rs.67,18,800\/-,  the  plaintiff  has  paid
\nRs.47,19,800\/-; that all the amounts have been paid back in 1983 itself;  that
\nthe  defendants  did  not  complete the construction, but the construction was
\nover in the year 1995; that even now the construction in the  first  floor  is
\nstill  incomplete;  that  since the defendants did not construct in accordance
\nwith the sanctioned plan, proceedings are initiated by the MMDA against  them;
\nthat  the  plan  originally sanctioned came to an end in the year 1982 itself;
\nthat without the sanction and approval of the MMDA, the defendants constructed
\nthe 7th, 8th and 9th floors, as a result of which the  proportionate  land  to
\nwhich  the  plaintiff was entitled to was drastically reduced and in so far as
\ncar car  parking  also;  that  only  on  29.1.1988,  the  defendants  had  got
\nadditional  construction  of  7th,  8th  and  9th  floors  regularised  by the
\nGovernment under Ex.P22, but there was a further direction that the defendants
\nshould get fresh approval by putting forth a revised  plan  before  the  MMDA;
\nthat  the  construction  was abruptly stopped, and it came to a stand still in
\nview of the above circumstances; that the plaintiffs have already paid 60%  of
\nthe consideration even in 1983 itself; that the plaintiffs have been all along
\nready and willing to pay the balance of consideration; that it is pertinent to
\nnote  that  the defendants have not challenged the means or the sources of the
\nplaintiffs in the cross examination of  PW1;  that  the  plaintiffs  filed  an
\napplication  for  interim  injunction  in  the  present  suits to restrain the
\ndefendants from alienating the property, and the same was granted  subject  to
\nthe conditions that the plaintiffs should deposit the balance of consideration
\nand  should  also give an undertaking that he would pay the balance amount, as
\nper the actual measurement as per the square foot basis; that  the  plaintiffs
\nsought a modification of the order to permit them to give a bank guarantee for
\nthe  balance of sale consideration in stead of depositing the said amount, and
\nthe same was ordered;  that  accordingly,  the  plaintiffs  furnished  a  bank
\nguarantee  on  7.3.2001  and also gave an undertaking as ordered by the court;
\nthat all the above would go to show that the plaintiffs were ready and willing
\nall along with sufficient means; that the suits filed by the  plaintiffs  were
\nwell within time; that there is no clause in the agreement between the parties
\nfixing  the  time  for  concluding  the  contracts;  that  time stipulated for
\ncompletion of the construction by the defendants and to hand  over  possession
\nwas  18  months  from  the  date of payment of the second instalment; that the
\nsecond instalment was paid on  1.5.81,  but  the  defendants  have  failed  to
\nperform their part of the contracts; that it is not the case of the defendants
\nthat at any point of time they refused to perform their part of the contracts;
\nthat  it  is  true  that  a  police  complaint  was given by the plaintiffs on
\n16.10.1996; that the averments in the said complaint were the outcome  of  the
\nassumption  of  PW1, and at no stretch of imagination it could be equated to a
\nrefusal; that it is an admitted fact that there was no correspondence  between
\nthe  parties,  and under such circumstances, the contention of the defendants’
\nside that the suits were barred by limitation has got  to  be  rejected;  that
\nthere  is  no evidence to indicate that the contracts between the parties were
\never abandoned; that towards the sale consideration of  both  the  agreements,
\nthe  plaintiffs have paid nearly Rs.1.00 crore that too in the year 1983; that
\nthe defendants who have utilised the plaintiffs’ money for their construction,
\nhave not performed their part of the contracts by conveying the properties and
\nby executing sale deeds; that the court has to take note of the fact that  the
\ndefendants  have  sold  the  3rd, 4th and 5th floors to Aban Loyd for a sum of
\nRs.5.50 crores on as is where is condition and have also retained the 2nd, 6th
\nto 9th floors  totally  measuring  approxim  ately  65,000  sq.ft.;  that  the
\nplaintiffs  continued  to  make  payment even though the construction work was
\nstopped abruptly at one point of time; that Ex.P15 is a copy of the Income Tax
\nAssessment Order, according to which the expenses for the construction of  the
\nentire  building  have  been met from the sale consideration of the ground and
\nfirst floors; that the defendants who have given a copy of the said assessment
\norder to the plaintiffs, have denied the delivery of the same, but at the same
\ntime, they have admitted that  the  original  assessment  order  is  in  their
\ncustody, but have not produced the same; that though originally possession was
\nhanded  over to the plaintiffs in the year 1983, the defendants made all their
\nillegal attempts to dispossess the plaintiffs, which was ably resisted by  the
\nplaintiffs;  that  when  the  defendants  lodged a complaint before the Egmore
\nPolice and a case was registered, on the same day, the plaintiffs who were  in
\npossession  of  the  properties  have  also lodged a complaint before the same
\npolice station; that  under  such  circumstances,  the  Inspector  of  Police,
\nEgmore,  after  registering  a  case  returned  the  same to the Tahsildar and
\nExecutive Magistrate of Egmore; that the  Executive  Magistrate  after  making
\nenquiry passed an order prohibiting both the parties from encroaching upon the
\ndisputed  premises;  that  the  said order was challenged before this court in
\nCrl.R.C.No.1422\/99 wherein an elaborate order was passed by this court finding
\nthat the defendants were in possession  of  the  properties,  and  under  such
\ncircumstances,  the  plaintiffs  have  taken the verdict of this court; and in
\nview of the same,  they  sought  for  a  direction  from  this  court  to  the
\ndefendants  to  hand  over  possession  of the property, and thus, the reliefs
\nsought for have got to be granted in favour of the plaintiffs.  Added further,
\nthe learned Senior Counsel that if for any reason,  the  court  comes  to  the
\nconclusion  that  the plaintiffs are not entitled for the specific performance
\nof the contracts found in the plaint, the defendants  should  be  directed  to
\nrefund  the  advance  amounts  with  18% rate of interest till the date of the
\nplaint and 3 0% rate of interest thereafter; that it is an  admitted  position
\nthat the plaintiffs have given an advance of Rs.96.00 lakhs and odd, which has
\nbeen utilised by the defendants for the construction of the building, and even
\nfrom the admission made by the defendants, it is clear that they have made lot
\nof  profits  out  of  the  said  construction, and under such circumstances, a
\ndecree in favour of the plaintiff has got to be passed.\n<\/p>\n
        9.  Countering to the above contentions of the plaintiffs’  side,  the
\nlearned  counsel  appearing for the defendants with vigour and vehemence would
\nsubmit that the plaintiffs are not entitled for any of the reliefs  asked  for
\nin  the  plaints; that it is true that the parties entered into two agreements
\nfor  sale  in  respect  of  the  ground  and  first  floors  of  the  proposed
\nconstruction;  that it was clearly understood that the time was the essence of
\nthe contracts; that a reading of Exs.  P3 and P4 would clearly reveal that the
\nsecond instalment should be paid by the plaintiffs  on  or  before  16.4.1981,
\nfrom  which date the construction should be completed by the defendants within
\n18 months; that it is pertinent to  note  that  the  plaintiffs  have  utterly
\nfailed to make the second instalment as a result of which the defendants could
\nnot  complete  the  construction; that Exs.P3 and P4 would clearly speak about
\nthe schedule of payments; that the plaintiffs not even in one occasion kept up
\nthe schedule; that the second instalment of Rs.10,45,925\/-  was  not  paid  on
\n6.4.81,  but  was  paid only in June 1981; that likewise, the third instalment
\nshould be paid at the starting point of the foundation as  per  clause  ii  of
\nEx.P4;  that  even  that payment was not made by the plaintiffs even after the
\nfoundation work commenced and pending; that it was only because of  the  delay
\nthat was caused by the plaintiffs, the construction work was proceeded slowly;
\nthat  the  fourth  instalment was also paid belatedly; that it is pertinent to
\nnote that PW1 has categorically admitted that he did not pay  the  instalments
\nas  contemplated  under Ex.P4 in time; that the area has not been mentioned as
\ncarpet area in the agreements; that the contention  of  the  plaintiffs’  side
\nthat  what  was  understood  between  the parties was carpet area could not be
\ncorrect since the carpet area was only in respect  of  the  leases;  that  the
\nplaintiffs  could  not  have any grievance for the additional constructions in
\nrespect of 7th, 8th and 9th  floors,  since  nowhere  it  is  found  in  Ex.P4
\nagreement  as to how many floors were to be constructed; that PW1 has admitted
\nthat under Ex.P4 agreement, there is nothing to indicate that  the  defendants
\nhave  to  seek  the  permission  of or inform the plaintiffs before making any
\nadditional constructions; that no specific undivided share of  land  has  been
\nmentioned  in  Ex.P4 agreement; that there is no recital in Ex.P4 agreement to
\nthe effect that the plaintiffs could stop payments, if there was any delay  in
\nthe  construction;  that  it  is  true  that there were some deviations in the
\nconstructions work, but the same was subsequently  regularised  and  following
\nthe same, the building was completed; that the plaintiffs were never ready and
\nwilling  to  perform  their  part  of the contracts from 1983 till the date of
\nfiling of the suits; that the  plaintiffs  have  come  forward  with  a  false
\npleading  stating that they have been in peaceful and uninterrupted possession
\nof the properties; that at no point of time, possession of the properties were
\nhanded over to the plaintiffs; that a reading of Ex.D1 an  elaborate  judgment
\nof  this  court in Crl.R.C.No.1422\/99 would clearly reveal that the defendants
\ncontinued to be in possession; that the plaintiffs  have  also  filed  a  suit
\nagainst the defendants stating that they were in possession of the properties,
\nand  apart  from that during the pendency of the instant suits, the plaintiffs
\nhave filed an injunction  application,  and  thus  the  plaintiffs  have  come
\nforward  with unclean hands which would disqualify the plaintiffs from getting
\nthe equitable relief of specific performance; that the parties have  abandoned
\nthe  contracts  even  in  the year 1983; that subsequent to the payment in the
\nyear 198 3, the plaintiffs have not made any payment nor have  they  made  any
\ndemand  for  the  completion  of the work; that were they ready and willing to
\nperform their part of the contracts; that a perusal of Ex.P8  written  by  the
\ndefendants  would  clearly  reveal  that the plaintiffs were liable to pay the
\nbalance of consideration in the year 1983; that the fact that  the  plaintiffs
\nfailed to comply with the demand therein and kept silence till 1995, when they
\ngave  a  complaint  before the D.G.P., Madras, would clearly indicate that the
\nparties have abandoned the contracts; that even assuming that the time was the
\nessence of the contracts and not fixed under the  agreements,  the  plaintiffs
\nshould  have  filed  the  suits  within three years from the date of notice of
\nrefusal by the defendants, but the plaintiffs have given a  complaint  to  the
\nD.G.P.   on  16.10.1996; that the evidence of PW1 in that regard would clearly
\nreveal that the plaintiffs had a clear notice of refusal by the defendants  to
\nperform their part of the contracts, and thus the plaintiffs should have filed
\nthe  suits  within three years, but have not filed so, and hence the suits are
\nbarred by limitation, and thus, the abandonment, limitation and breach of  the
\ncontracts  by  the  plaintiffs by not performing their obligations as found in
\nthe contracts all would disentitle the plaintiffs from getting the  relief  of
\nspecific  performance,  and  hence  the  suits  in  that regard have got to be
\ndismissed.  Added further, the learned counsel that the  plaintiffs  are  also
\nnot  entitled for the relief of refund, since the defendants suffered a lot of
\nlosses and damages not only financially but also by way  of  reputation;  that
\ndue  to  the  delayed  payments,  the  defendants  could  not proceed with the
\nconstruction works and  have  to  sustain  losses  enormously;  that  DW1  has
\nelaborately  spoken  about the losses sustained by them; that there is nothing
\nto contravert the evidence of DW1 in that  regard;  and  considering  all  the
\nabove, the court has to dismiss the suits in entirety with costs.\n<\/p>\n
        10.  The admitted facts can be shortly narrated as follows:
\n        The  plaintiff in C.S.443\/2000 is a private limited company, while the
\nplaintiff in C.S.444\/2000 is a  partnership  firm.    P.W.1  is  the  Managing
\nDirector in  the  former and a Partner in the latter.  D.W.1 and his wife, the
\ndefendants 1 and 2 respectively in both the suits  are  the  partners  of  the
\nthird defendant  firm.  The defendants purchased landed property and entrusted
\nthe same for the purpose of construction to  E.C.C.    of  Larsen  and  Toubro
\nGroup.   P.W.1  expressed  his  willingness  to  purchase the ground and first
\nfloors from the defendants.  Pursuant to the offer, the defendants  agreed  to
\nsell  the  proposed  ground floor of the property along with the proportionate
\nundivided share of the land to the plaintiff for  a  price  of  Rs.68,75,550\/-
\nwhich  is  the  subject  matter in CS 443\/2000 and likewise agreed to sell the
\nproposed first floor of the property along with  the  proportionate  undivided
\nshare  of the land to the plaintiff for a price of Rs.67,18,800\/- which is the
\nsubject matter  in  CS  444\/2000.    The  defendants  also  agreed  to   build
\napproximately a carpet plinth area of 10,186 sq.ft.  in the ground floor and a
\ncarpet area of  11,198  sq.ft.   approximately in the first floor.  Consequent
\nupon the said two agreements on 5.4.1981, the first defendant received Rs.1.00
\nlakh for the ground floor and Rs.1.0 0 lakh for the first floor as advance and
\npassed on the receipts under Exs.P1 and  P2  respectively  on  behalf  of  the
\ndefendants.   The  defendants  also confirmed the said agreements under Exs.P3
\nand P4 letters.  The defendants issued  Ex.P5  a  consolidated  receipt  dated
\n23.6.1982  acknowledging  the  payment  of  Rs.34,19,800\/- received on various
\ndates towards the transaction  covered  under  CS  444\/2000.    Likewise,  the
\ndefendants   also   issued   Ex.P6   consolidated   receipt   dated  23.6.1982
\nacknowledging the payment of Rs.36,70,925\/- received on various dates  towards
\nthe transaction  covered  under  CS  443\/2000.    The rate per square feet was
\nagreed at Rs.675\/- for ground floor and Rs.600\/- for the  first  floor.    The
\nstipulated  time  for  the completion of the buildings was 1 8 months from the
\ndate of payment of the second instalment.   The  plaintiffs  paid  the  second
\ninstalment on  1.5.1981.    The  defendants  did not complete the construction
\nwithin 18 months from the payment of  the  second  instalment.    So  far  the
\nplaintiffs  have  paid  Rs.48,70,925\/- for the ground floor and Rs.47,19,800\/-
\nfor the first floor as found under Exs.P8 and P7 consolidated  receipts  dated
\n17.2.1983 respectively.    Except  the  above,  the plaintiffs did not pay the
\nbalance of the sale consideration.  The plaintiffs received  Exs.P10  and  P11
\nnotices  dated  5.8.96 from the Office of the Assistant Commissioner of Income
\nTax, regarding the confirmation of the amounts paid by the plaintiffs  to  the
\ndefendants in respect of the properties covered under both the suits.  Exs.P12
\nand P13 dated 7.8.96 are the xerox copies of the reply given by the plaintiffs
\nto the  Assistant  Commissioner of Income Tax.  P.W.1 gave evidence before the
\nAssistant Commissioner of Income Tax, and the certified copy of  the  same  is
\nEx.P14.   Ex.P15  is a xerox copy of the assessment order, and the original of
\nthe same is in the custody of the defendants.  The plaintiffs gave a complaint
\nto the Director General of Police, Madras against the  defendants,  and  there
\nwere criminal  proceedings.    The  same  was published in a magazine ” Junior
\nVikatan” dated 18.7.1999.  A copy of the same is Ex.P16.  The plaintiffs filed
\na suit against the defendants before the City Civil Court for  the  relief  of
\npermanent injunction,  and  the same was later withdrawn.  During the pendency
\nof the suit, the  plaintiffs  made  two  interim  injunction  applications  in
\nO.A.Nos.576\/2000 and  577\/2000.  Interim injunction was granted subject to the
\ncondition that the plaintiffs should deposit the balance of consideration  and
\nalso  give  an  undertaking  that they would pay the balance as per the actual
\nmeasurement as per the square foot basis.   Later  the  plaintiffs  filed  the
\napplication  seeking modification of the said order and to permit them to give
\nbank guarantee for the balance of sale consideration in  stead  of  depositing
\nthe said amounts.    The  said  application  was  ordered.    Accordingly, the
\nplaintiffs furnished a bank guarantee on  7.3.2001  and  have  also  given  an
\nundertaking  that they would pay the actual extra measurement cost at the time
\nof possession.  The plaintiffs have  also  renewed  the  bank  guarantee  till
\n5.3.2003.\n<\/p>\n
        11.   The plaintiffs have come forward with both the suits seeking the
\nrelief of specific performance of two agreements of sale  in  respect  of  the
\nground and first floors of a building more fully described in the Schedules to
\nthe plaints.  As seen above, there is no dispute between the parties as to the
\noffer,  acceptance,  considerations,  confirmation  of the agreements, initial
\nadvance of Rs.1.00 lakh in each case  and  subsequent  consolidated  payments.
\nThe  specific  case of the plaintiffs is that out of the sale consideration of
\nRs.68,75,550\/- for the ground floor, they paid Rs.48,70,925\/-, and out of  the
\nsale  consideration  of  Rs.67,18,800\/-  for  the  first floor, they have paid
\nRs.47,19 ,800\/-; that as understood between the parties, the defendants should
\nhave completed the construction within 18 months from the date of  payment  of
\nthe  second  instalment  and  hand  over  possession;  that  though the second
\ninstalment was paid on 1.5.1981, the defendants have failed  to  complete  the
\nconstruction,  but  the  construction of the first floor was over in 1995, and
\nthe ground floor is still incomplete; that in view of the deviation  from  the
\napproved  plan, the defendants could not even proceed with the construction of
\nthe ground and first floors; that the same was  regularised  by  a  Government
\nOrder in the year 198 7; that though the plaintiffs were ever ready to pay the
\nbalance  of considerations, despite requests and reminders, the defendants did
\nnot complete the transaction, which constrained the plaintiffs to filed  these
\ntwo suits.    The  defendants  have  contested  the  suit  by stating that the
\nplaintiffs have made a thorough breach of the contracts in not keeping up  the
\nschedule  of payments; that both the suits are barred by limitation; that both
\nthe parties have abandoned the contracts even in the year 1983; that  in  view
\nof  the  acts and conduct of the plaintiff, the defendants have suffered heavy
\nlosses and damages, and the defendants are  entitled  to  adjust  the  amounts
\nalready  paid by the plaintiffs, towards the said losses and damages; that the
\nplaintiff in CS 443\/2000 is shown as the Private Limited  Company,  with  whom
\nthe  defendants  did not enter into any agreement, but only with a partnership
\nfirm, and for all the reasons, the plaintiffs are not entitled to any relief.\n<\/p>\n
12.  Following the oral discussion for the purchase of ground  and  floors  in
\nthe  proposed  construction  to be made by the defendants, the plaintiffs have
\npaid Rs.1.00 lakh as advance in each case on 5.4.1981, as evidenced by  Exs.P1
\nand P2  receipts  issued  by  the  first  defendant.    Except  the letters of
\nconfirmation as evidenced under Exs.P3 and  P4  dated  5.4.1981,  no  separate
\nwritten agreements  were  entered  into between the parties.  Under Exs.P3 and
\nP4, the schedule of payments as to the balance of  considerations  is  clearly
\nset out.  A perusal of Exs.P3 and P4 would indicate that no period or time was
\nfixed for  concluding the contracts.  Relying on the Clause stating “we expect
\nto complete the construction in 18 months time from the  date  of  the  second
\ninstalment when we shall hand over possession to you” under Exs.P3 and P4, the
\nlearned  Counsel appearing for the defendants would argue that the said clause
\nwould indicate that the time was the essence of the contract; and that if  the
\nbuilding  was  not  completed  within  18  months  from the date of the second
\ninstalment, the plaintiffs should have initiated proceedings for the  specific
\nperformance of  the  contracts.    The  court is unable to agree with the said
\ncontention, since the said Clause would speak of the assurance and undertaking
\ngiven by the defendants to complete the construction within 18 months from the
\ndate of the payment  of  the  second  instalment  and  hand  over  possession.
\nAdmittedly,  the construction was not completed within the 1 8 months from the
\ndate of the second instalment by the plaintiffs.  It would  be  quite  evident
\nthat  at  that  juncture, the defendants have not acted as per the undertaking
\ngiven by them in the said confirmation letters.  From the available materials,
\nit could be seen that a couple of payments were made  by  the  plaintiffs  and
\nreceived  by the defendants even after the 18 months time from the date of the
\nsecond instalment.    Under  such  circumstances,  the  defendants  cannot  be
\npermitted to say that the time was the essence of the contracts.  Had the time
\nbeen  the  essence of the contracts, the defendants could have well refused to
\nreceive the further payments and cancelled the agreement, but  have  not  done
\nso.   But,  on  the  contrary, the defendants have received the payments, even
\nafter the time, and hence, the first contention of the defendants’  side  that
\nthe time was fixed for the completion of the contracts cannot be countenanced.\n<\/p>\n
        13.   According  to  the  learned  Counsel  for  the  defendants, even
\nassuming that the time was not fixed for the performance of the contracts, the
\nplaintiffs should have filed the suits for specific performance  within  three
\nyears  from  the  time of their notice that the performance was refused by the
\ndefendants.  It is an admitted  position  that  there  was  no  correspondence
\nbetween the  parties  at  any  point  of  time.    It  is  not the case of the
\ndefendants that they ever refused to  perform  their  part  of  the  contract.
\nD.W.1,  the  first  defendant  in  both  the suits, has nowhere stated that he
\nrefused to perform the said agreements for sale.    It  is  submitted  by  the
\ndefendants’  side  that  the  plaintiffs  have  given  a criminal complaint on
\n16.10.1996, and the averments made by the plaintiffs  in  the  said  complaint
\nwould  clearly reveal that the plaintiffs were put on notice as to the refusal
\nof the defendants to complete the  contract.    P.W.1  has  admitted  that  he
\ncomplained   to  D.G.P.,  Madras  on  16.10.1996  about  the  conduct  of  the
\ndefendants, and has stated as follows:\n<\/p>\n
“We have come to know that Mr.  and Mrs.  Cletus Winston had no  intention  of
\nconveying the first floor portion of the property in our favour and keep their
\ncommitment though they have received major sale consideration…..
\nMr.  &  Mrs.    Cletus Vincent who have been paid a substantial portion of the
\nsale consideration in respect of the above property are seeking to dishonestly
\nuse and dispose of the property in violation  of  the  obligations  under  the
\nagreement between them  and  us.   The action of the said Mr.  and Mrs.Clectus
\nVincent amounts to criminal breach of trust and cheating punishable under  the
\nprovisions of  Indian  Penal Code.  As referred to already we have parted with
\nRs.46,19,800\/- towards the sale consideration of the property and  intentional
\nand fraudulent  action  of  Mr.    &  Mrs.Cletus Vincent is wholly illegal and
\nwarranting action.”\n<\/p>\n
        14.  The learned Senior Counsel appearing  for  the  plaintiffs  would
\nsubmit  that  the  plaintiffs  have not stated in the said complaint as to any
\nrefusal made by the defendants to perform their part of the contract, but have
\nspoken about their intention not to do so, and thus, it was only an assumption
\nof P.W.1, and it cannot be equated to refusal as required by law.   Under  the
\nstated  circumstances and in view of the averments made in the said complaint,
\nthe court has to necessarily agree with the  defence.    As  seen  above,  the
\nplaintiffs  have  not only stated that the defendants had not the intention of
\nconveying the property in favour of the plaintiffs and keep their  commitment,
\nbut has also stated that the intentional and fraudulent acts of the defendants
\namounted  to criminal breach of trust and cheating, in spite of Rs.46,19,800\/-
\npaid by way of sale consideration, and it warranted  criminal  action  in  the
\nhands of the police.  At this juncture, the court has to necessarily point out
\nthat  the starting point of limitation under Article 113 of the Limitation Act
\nas to  the  specific  performance  of  a  contract  would  commence  when  the
\nplaintiffs  have  noticed  that the performance was refused by the defendants.
\n“Notice”  contemplated  under  the  said  Article  need  not  be   a   written
\ncommunication.  It would be suffice, if there is an intimation or information,
\nand  it  would even imply the knowledge which comes from the direct perception
\nor from inference, which would reasonably arise out of the several  facts  and
\ncircumstances.   In  the  instant  case,  it  remains  to  be  stated that the
\naverments made by the plaintiffs in  the  said  criminal  complaint  would  be
\nclearly  indicative of their knowledge as to the refusal of performance by the
\ndefendants in respect of their part of the contracts.  It is pertinent to note
\nthat after the consolidated payments that  were  made  by  the  plaintiffs  as
\nevidenced   by   Exs.P7  and  P8  in  1983,  there  is  no  correspondence  or
\ncommunication between the parties till the criminal complaint dated  16.10.96.
\nNo  material  is  placed by the plaintiffs before the court that they made any
\npayment or made any demand for the performance of the contracts.   Under  such
\ncircumstances, the said criminal complaint given by the plaintiffs on 16.10.96
\nwith  such averments would lead only to the inference that the plaintiffs were
\nclearly put on notice that the defendants were not willing  to  perform  their
\npart  of  the  contracts, and hence, the suits for specific performance should
\nhave been brought within three years after such notice.  In the instant  case,
\nboth  the  suits  were  filed on 19.6.2000, which is clearly after three years
\nfrom the date of the said complaint dated 16.10.1996, as found  under  Ex.P16,
\nand  hence,  the  court  has  to necessarily hold that the suits in respect of
\nspecific performance brought up after such notice viz.  after more than  three
\nyears, would be barred by limitation.\n<\/p>\n
        15.   Alleging that the plaintiffs were all along ready and willing to
\nperform their part of the contracts by paying the balance  of  considerations,
\nthe plaintiffs  have  sought for the relief of specific performance.  Contrary
\nto the above, it is contended by the defendants’ side that the plaintiffs were
\nnever ready and willing to perform their part of the contracts, but have  been
\nchronic  defaulters  in  payment  of considerations as agreed upon between the
\nparties.  Concededly, the total sale considerations for the ground  and  first
\nfloors were  Rs.68,7  5,550\/-  and  Rs.67,18,800\/- respectively.  According to
\nExs.P3 and P4 confirmation letters, the second instalment should  be  paid  by
\nthe plaintiffs  on or before 16.4.1981.  The plaintiffs have admitted that the
\nsecond instalment was not paid by them on 16.4.81, but the same was  completed
\nin June  1981.   It is not in dispute that the third instalment was to be paid
\nat the start of the foundation, as per Clause (ii) of  Exs.P3  and  P4.    The
\nplaintiffs  have  admitted that they have not made the third instalment as per
\nthe schedule, but would add that the foundation work did not start at all that
\ntime.  Likewise, the fourth instalment of Rs.11,45,925\/- payable on  the  45th
\nday  after  the  third instalment, as per Clause (iii) was not paid as per the
\nschedule.  In short, the plaintiffs have categorically admitted that they have
\nnot paid any of the instalments as contemplated under Ex.P4 in time.    Exs.P5
\nand P6 consolidated receipts dated 23.6.1982 contain all necessary particulars
\nas to the due dates, amount due, total due, received date, received amount and
\ntotal received.  Under Ex.P5, it is stated as follows:\n<\/p>\n
“Against  an  amount  of  Rs.60,46,920\/-  due  and payable by 1st June, 198 2,
\npayments have only been made to the tune of  Rs.34,19,800\/-  (  Rupees  thirty
\nfour lakhs nineteen thousand eight hundred only) ie.  lower than stipulated by
\nRs.26,27,120\/-.”\n<\/p>\n
Likewise, under Ex.P6, it is stated thus:\n<\/p>\n
“”Against  an  amount  of  Rs.61,87,995\/-  due and payable by 1st June, 19 82,
\npayments have only been made to the tune of Rs.36,70,925\/- ( Rupees thirty six
\nlakhs seventy thousand nine hundred and twenty five  only)  ie.    lower  than
\nstipulated by Rs.25,17,070\/-.”\n<\/p>\n
Even  Ex.P8 confirmation receipt would state that out of Rs.68,75,550\/- due on
\n1.9.82, the plaintiffs have paid only Rs.48,70,925\/- only, and thus, there was
\na balance of Rs.20,04,625\/-.  The statements  made  by  the  defendants  under
\nExs.P5, P6  and P6 are not disputed by the plaintiffs.  These statements would
\ngo to show that the plaintiffs even from the time  of  the  second  instalment
\nhave  committed  default  from keeping up the schedule of payments, as per the
\nagreements.  However, it has to be necessarily stated that even in  1983,  the
\nplaintiffs have paid Rs.48,70,925\/- out of Rs.68,75,550\/- for the ground floor
\nand Rs.47,19,800\/- out of Rs.67,18,800\/- for the first floor.\n<\/p>\n
        16.  At this juncture, it has become highly necessary to look into the
\nacts and  conduct  of  the defendants.  It is an admitted position that at the
\ntime of entering into the contracts, the construction work did  not  commence.
\nAs understood between the parties, the construction should be completed by the
\ndefendants within 18 months from the date of second instalment, and possession
\nshould be  handed  over  to  the plaintiffs.  D.W.1 has categorically admitted
\nthat he did not complete the construction, as agreed upon between the parties.
\nIt is contended by the plaintiffs’ side that at the time  of  agreements,  the
\ndefendants  had an approved plan for construction of the ground floor plus six
\nfloors only, but the defendants deviating therefrom constructed  7,  8  and  9
\nfloors.   D.W.1  has  well  admitted  that originally he had obtained planning
\nsanction for the basement, ground floor plus six floors, and there  were  some
\ndeviations  from the sanctioned plan while putting up the construction for the
\nbasement, ground floor plus six floors, and apart from that deviations, he put
\nup unauthorised construction of 7 and 8 floors with a pent house.  This candid
\nadmission made by D.W.1 would make it abundantly clear  that  he  has  made  a
\nthorough deviation from the sanctioned and approved plan by raising 7, 8 and 9
\nfloors,  but also even in the construction for basement, ground floor plus six
\nfloors.  The evasive answer given by D.W.1 that he  did  not  remember  as  to
\nwhether  the  original  planning  permission expired in 1982; and that without
\nreferring to the necessary documents, he could not answer  the  said  question
\nwould  go  to  show  that  it  is  well within his knowledge that the original
\nplanning permission expired in 1982 itself.  According  to  D.W.1,  a  revised
\nplan  for  regularising  the  deviations  and for regularising the 7th and 8th
\nfloors was filed and was kept pending by the Government, but was  subsequently
\nrejected  by  the  Government by its Order under Ex.P22 dated 27.1.1987, and a
\nreview petition filed by the defendants was  allowed  by  a  Government  Order
\ndated 29.1.1988  under  Ex.P23.  According to Ex.P22 G.O., the defendants were
\nto apply to M.M.D.A.  for a fresh planning p ermission,  and  only  then  they
\ncould commence   the  constructions.    This  fact  would  indicate  that  the
\ndefendants should have applied to the MMDA for a fresh planning permission  to
\ncontinue their  construction.    D.W.1  has  categorically  admitted  that the
\nconstruction was over only in  1995.    Though  the  structural  work  of  the
\nbasement  plus  9  floors  was completed even in the year 1983, the defendants
\ncould not complete the full-fledged construction due to the actions  taken  by
\nthe  authorities  and had to seek for the regularisation, and on the rejection
\nof the same were to apply  to  the  MMDA  by  a  revised  plan.    Under  such
\ncircumstances,   the  defendants  having  committed  all  the  deviations  and
\nirregularities in the constructions, should not be permitted to complain  that
\nthe plaintiffs have defaulted in making the payments as per the schedule, when
\nthe plaintiffs  have  paid 60% of the considerations.  Thus, the court is able
\nto notice that both the parties to the agreements have breached the  contracts
\non their respective sides.\n<\/p>\n
        17.   In  the  instant  case,  the court is able to notice unexplained
\nlatches on  the  part  of  the  plaintiffs.     Admittedly,   the   structural
\nconstruction  of  the building was completed in 1983, the deviations made were
\nregularised in 1988, and the building was  completed  in  1995.    Under  such
\ncircumstances,  the  contention of the plaintiffs that they were waiting under
\nthe fond hope that the defendants would execute sale deeds  by  receiving  the
\nbalance of  consideration  is  highly  improbable  and  unbelievable.    It is
\npertinent to note that the plaintiffs are  business  concerns  and  have  also
\nadvanced a sum of Rs.1.00 crore.  The conduct of the plaintiff in not making a
\ndemand  for  such  a  long  period would be against the conduct expected of an
\nordinary prudent man under the given  circumstances.    The  said  unexplained
\nlatches  stands  also  a  good  ground  for  denial of the equitable relief of
\nspecific performance.  It is contended by the defendants’ side that  both  the
\nparties have  abandoned the agreements even in the year 1983.  The court is of
\nthe view that in  the  absence  of  any  direct  proof  or  the  circumstances
\nindicating the same, the said contention of abandonment cannot be accepted.\n<\/p>\n
        18.  It is well settled proposition of law that a person who seeks for
\nspecific  performance,  an  equitable  relief, should come to court with clean
\nhands.  The plaintiffs have well averred in  the  plaints  that  in  the  sale
\ntransaction everything was concluded except registration of the formal deed of
\nconveyance  in  favour  of  the plaintiffs, and the possession had been handed
\nover to the plaintiffs as early as 15.7.1 983, and since then, the  plaintiffs
\nhave  been  in  peaceful,  physical  and  uninterrupted possession of the suit
\nproperties.  No material is placed before the court to accept  the  contention
\nthat the  plaintiffs  were  ever  put  in possession of the properties.  It is
\nquite evident from the evidence both oral and  documentary  that  due  to  the
\nirregularities  and deviations from the sanctioned plan, the construction work
\nwas abruptly stopped in 1983 and continued to be in the  same  condition  till
\n1987.    Taking   into   consideration  the  communication  made  under  Ex.P8
\ncomplaining of the non payment of the consideration payable, as  per  schedule
\nand  the  fact  that  the construction of the building remained incomplete, it
\nwould be hard to accept that the defendants  handed  over  possession  of  the
\nproperties to the plaintiffs.  Before filing the instant suits, the plaintiffs
\nhave  already  filed  a  suit  for permanent injunction against the defendants
\nalleging that they are  in  possession  of  the  properties,  and  hence,  the
\ndefendants  should be restrained from interfering with their possession of the
\nproperties.  It is admitted by P.W.1 that the said suit was  withdrawn.    The
\nquestion  as to the possession of the property was the subject matter of S.145
\nCr.  P.C.  proceedings, wherein it was contended by the plaintiffs  that  they
\nwere  in  possession  of  the property, and that this court had an occasion to
\nconsider the same in Crl.R.C.No.1422\/99.  By an elaborate order dated 8.6.2000
\nas evidenced under Ex.D1, this court has found that the defendants were always
\nin possession of the properties.  All the above would  clearly  indicate  that
\nthe  plaintiffs  who  were never put in possession of the suit properties have
\ncome with a false averments stating that the possession  was  handed  over  to
\nthem,  and  they have been in enjoyment of the same peacefully and without any
\ninterruption whatsoever.  For the reasons stated and discussions  made  above,
\nthe  court  is  of the considered view that the plaintiffs are not entitled to
\nthe equitable relief of specific performance of the agreements in  respect  of
\nthe Schedule mentioned properties to the plaints.\n<\/p>\n
        19.   The  plaintiffs  have  sought for the refund of the advance with
\ninterest as an alternative relief.    Concededly,  the  plaintiffs  have  paid
\nRs.48,70,925\/-  under  the first agreement and Rs.47,19,800\/- under the second
\nagreement, which would represent more than 60% of the  respective  total  sale
\nconsideration.   It  is  true  that  the plaintiffs have defaulted to make the
\ninstalment payments as per the schedule, but have stated that  the  defendants
\nhave  deviated  from  the  sanctioned plan not only by raising construction of
\n7th, 8th and 9th floors but also even in the basement, ground floor  plus  six
\nfloors,  and  the building could not be proceeded with on such irregular ities
\nfor a period of nearly five years.  At no point of time, the  defendants  have
\nmade  any attempt to cancel the agreements or make refund of the advance paid,
\nbut have utilised the moneys of the  plaintiffs  for  the  said  construction.
\nD.W.1  has  admitted  that  the  total  cost of the land at that time was only
\nRs.5.50 lakhs.  According to Ex.P15 Income Tax  Assessment  Order,  the  total
\ncost  of  construction  of  the  whole  project  reflected  as capital work in
\nprogress is shown by the defendants as Rs.1,35,79,02 8\/-.   Even  as  per  the
\nevidence  of  D.W.1, he has sold the 3rd, 4th and 5th floors to M\/s.Aban Lloyd
\nfor a sum of Rs.5.50 crores in as is where is condition and has retained  2nd,
\nand   6th   to  9th  floors  with  a  total  extent  of  about  65,000  sq.ft.
\napproximately.  It is clear from the evidence that the  defendants  have  made
\nhuge profits  out of the alleged construction.  It cannot be disputed that the
\namounts of the plaintiffs nearly a  crore  of  rupees  were  utilised  by  the
\ndefendants for  that  purpose.  It is highly surprising to note that D.W.1 has
\nstated that he incurred heavy losses due to  the  defaults  committed  by  the
\nplaintiffs,  but  he  has  forgotten  a  while  that  he  proceeded  with  the
\nconstruction thoroughly deviating from the sanctioned  plan.    The  available
\nevidence  would clearly indicate that the alleged losses by the defendants are
\nimaginary and unfounded.  On the contrary, the  defendants  have  gained  huge
\nprofits and  enriched  themselves  by utilising the plaintiffs’ moneys.  At no
\nstretch of imagination, the defendants could be permitted to  appropriate  the
\namounts of  the  plaintiffs  towards  those imaginary losses and damages.  The
\ninterest of equity would require that the defendants  should  be  directed  to
\nrefund the entire amount with interest, and the interest of justice would also
\nrequire the  same.    Taking into consideration the facts and circumstances of
\nthe case, the defendants are directed to pay the entire amounts  paid  by  the
\nplaintiffs with interest at 18% per annum till realisation.\n<\/p>\n
        20.  The court is unable to appreciate the contention put forth by the
\ndefendants’  side  that the suit in CS 443\/2000 is not maintainable in view of
\nthe fact that the contracts were originally entered into between a partnership
\nfirm and the defendants, but the plaint has been filed by  a  private  limited
\ncompany called M\/s.Sunil Anand & Co.  P.  Ltd.  From the evidence of P.W.1, it
\nwould  be clear that the plaintiff in CS 443\/2000 was originally a partnership
\nfirm and subsequently converted as a private limited company  named  M\/s.Sunil
\nAnand & Co.   P.    Ltd.  The plaintiffs have filed Ex.P17, the Memorandum and
\nArticles of Association of Sunil Anand & Co.  P.  Ltd., and Ex.P18 a  copy  of
\nthe certificate  of incorporation of the said company.  The statement of P.W.1
\nthat himself and his three brothers viz.  S.M.Lal, Purushotham Sundar Das  and
\nVasudev  Sundar  Das were partners in the said firm, and subsequently, all the
\naforesaid partners became Directors of Sunial Anand & Co.  P.  Ltd.,  and  all
\nthe  assets  and  liabilities  of the firm were taken over by the company; and
\nthat the said Directors of the Private Limited Company are the shareholders of
\nthe same, and there are no other shareholders is not  disputed  by  the  other
\nside.   That  apart,  D.W.1  has  well  admitted  in  his evidence that he has
\nreceived more than 50 % of the payment in respect of  the  transaction  in  CS
\n443\/2000 from the Limited Company  viz.    Sunil  Anand & Co.  P.  Ltd.  It is
\nalso pertinent to note that there is a nominee Clause in the agreements  which
\nfact is  also  admitted  by  D.W.1.    Considering all the above, the court is
\nunable to see any merits in the contention of the defendants that CS  443\/2000
\nis not maintainable on the above said ground.  Therefore, all the above issues
\nin both the suits are answered accordingly.\n<\/p>\n
        21.   In  the  result, the plaintiff in C.S.443\/2000 is given a decree
\nfor a sum of Rs.2,10,75,500\/- together with future interest at 18%  per  annum
\non   Rs.48,70,925\/-  from  the  date  of  plaint  till  realisation  and  with
\nproportionate costs.  In other respects C.S.No.443\/2000 is dismissed.\n<\/p>\n
        22.  In the result, the plaintiff in C.S.444\/2000 is  given  a  decree
\nfor  a  sum of Rs.2,04,16,000\/- together with future interest at 18% per annum
\non Rs.47,19,800\/- from the
\ndate of plaint till realisation  and  with  proportionate  costs.    In  other
\nrespects C.S.No.444\/2000 is dismissed.\n<\/p>\n
        23.   A  charge  is  created  over  the suit properties for the decree
\namounts stated supra till full satisfaction of the decrees.  In  view  of  the
\ndismissal of the same, connected applications are dismissed.  No costs.\n<\/p>\n
M.  CHOCKALINGAM, J<\/p>\n
Index:  Yes
\nInternet:  Yes
\n15-7-2002
\nList of Witnesses\n<\/p>\n
1.  P.W.1 Arjunlal Sundardas\n<\/p>\n
2.  D.W.1 Cleetus Vincent
\nList of Documents\n<\/p>\n
1.  Ex.P1 5.4.81        Receipt by D1 to plaintiff\n<\/p>\n
2.  P2 5.4.81           -do-\n<\/p>\n
3.  P3 5.4.81 Confirmation letter\n<\/p>\n
4.  P4 5.4.81   -do-\n<\/p>\n
5.  P5 23.6.82 Receipt\n<\/p>\n
6.  P6 23.6.82 Receipt\n<\/p>\n
7.  P7 17.2.83 Receipt\n<\/p>\n
8.  P8 17.2.83 Receipt\n<\/p>\n
9.  P9 2.3.95 Lawyer’s notice\n<\/p>\n
10.  P10 5.8.96 Letter from the Office of the Asst.<\/p>\n
\n                                Commissioner of Income Tax\n\n11.  P11 5.8.96                 -do-\n12.  P12 7.8.96 Reply\n13.  P13 7.8.96 Reply\n14.  P14 23.9.96 Enquiry proceedings\n15.  P15 31.3.98 Assessment order by Income tax Dept.\n16.  P16 18.7.99 Magazine \u2013 Junior Vikatan\n\n\n\n17.  P17                Memorandum and Articles of Association\n18.  P18                Xerox copy of certificate of\n                                incorporation\n19.  P19                Statement of Account 1981-83\n20.  P20                Statement of Account 1982\n21.  P21                Statement of Account 1981-82\n22.  P22 29.1.88        Copy of G.O.Ms.no.90, Housing and urban\n                                Development\n23.  P23 23.2.88        Publication in Indian Express\n24.  Ex.D1 8.6.00       Certified copy of judgment in\n                                Crl.R.C.No.1422\/99\n\n\n\nnsv\/\n\nJudgment\nin C.S.Nos.443 and\n444 of 2000\n\n\n\n\nC.S.No.443 and 444 of 2000\n\nM.  CHOCKALINGAM, J\n\n<\/pre>\n
                The  matter  came  up before the Court today under the caption
\n“For being mentioned”.\n<\/p>\n
                Heard both sides.  In page 44 para 23 of  the  Judgment  dated
\n15.7.200  2 it is stated “A charge is created over the suit properties for the
\ndecree amounts stated supra till full satisfaction of the decrees.” This would
\nmean the properties mentioned in Schedule-A of the respective suits.\n<\/p>\n
18.7.2002
\nvsi<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court M\/S.Sunil Anand & Co.P.Ltd vs Cleetus Vincent on 15 July, 2002 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 .. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-102448","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nM\/S.Sunil Anand & Co.P.Ltd vs Cleetus Vincent on 15 July, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ms-sunil-anand-co-p-ltd-vs-cleetus-vincent-on-15-july-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M\/S.Sunil Anand & Co.P.Ltd vs Cleetus Vincent on 15 July, 2002 - 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