S.Mukanchand Bothra (Decd.) v. Tmt.G.Jayachitra

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 24.02.2020

CORAM

THE HON'BLE Mr.JUSTICE M.SUNDAR 1.S.Mukanchand Bothra (deceased) 2.M.Karishma Bothra 3.M.Gagan Bothra 4.M.Sandeep Bothra (Plaintiffs 2 to 4 are brought on record as LRs of deceased sole plaintiff as per order dated 18.12.2019 in A.No.5757 of 2019 and time extended as per order dated 07.01.2020) .. Plaintiffs Vs.

1.G.Jayachitra 2.Muniappan 3.Pakrisamy 4.Nagarajan .. Defendants This Civil Suit is preferred under Order VII Rule 1 of the Code of Civil Procedure, 1908 read with Order IV Rule 1 of Original Side Rules of the High Court seeking to pass a judgment and decree against defendant (a) for directing defendants 1 to 4 to execute the sale deed in favour of the plaintiff on receiving the balance of sale consideration of 1/13

Rs.3 lakhs (Rupees three lakhs only) and in default thereof to execute a sale deed in favour of the plaintiff through the Registrar of the High Court, Madras, (b) for directing defendants 2 to 4 to pay the cost of the suit and (c) grant such further or other orders as this Hon'ble Court may deem fit and proper in the circumstances of the case and thus render justice. (Amended as per order dated 31.10.2018 in A.No.4708 of 2018). For Plaintiffs : Mr.M.Gagan Bothra Party-in-person - - - - -

JUDGMENT

There are four plaintiffs and four defendants in instant suit. Instant suit is one seeking specific performance of an agreement of sale executed in November of 2005 in non judicial stamp paper dated 2nd of November, 2005. To be noted, this 'Agreement of Sale' is the fulcrum of suit on hand and this agreement of sale is between S.Mukanchand Bothra (originally lone plaintiff at the time of institution of suit) and first defendant. Pending suit, sole plaintiff died and date of demise is 17.04.2019. Plaintiffs 2 to 4 being one daughter and two sons 2/13

of S.Mukanchand Bothra were brought on record by order of this court dated 18.12.2019 made in A.No.5757 of 2019. Plaintiff No.3 Mr.Gagan Bothra thereafter has obtained permission from Hon'ble Committee for Party-in-person to appear party-in-person and necessary Powers of Attorney have also been produced for third plaintiff to represent the suit on behalf of plaintiffs 2 and 4.

The trajectory which this suit has taken is captured in order dated 07.09.2018 made by Hon'ble Predecessor Judge followed by orders made by this Court between 18.12.2019 and 21.02.2020. Today, plaintiff No.3 Mr.Gagan Bothra is before this court. The matter is listed today before this Court under the caption 'EXPARTE EVIDENCE'.

Third plaintiff wanted to depose as lone witness on behalf of plaintiff and his request was acceded to. Third plaintiff filed proof affidavit and deposed as P.W.1. 19 Exhibits, namely Exs.P.1 to P.19 were marked on behalf of plaintiffs. Proof affidavit of P.W.1 reads as follows :

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To be noted, proof affidavit refers to 17 documents and the same were marked as Exs.P.1 to P.17. Ex.P.18 and Ex.P.19 are Powers of Attorney dated 17.12.2019 executed by plaintiff Nos.4 and 2 respectively in favour of plaintiff No.3 for representing the suit as party-in-person. The proof affidavit, which is the examination in chief, is cogent, coherent, besides being in tune and tandem with the pleadings in the main suit. Defendants have not come before this Court to challenge the deposition or documents marked through P.W.1. As already mentioned, Ex.P.1 is the fulcrum of instant suit. As mentioned supra, it has been executed in November of 2005 in non judicial stamp paper dated 2nd of November 2005. Adverting to the contents of Ex.P.1, P.W.1 deposes that transaction actually took place on 03.11.2005 as a cheque has been given by late first plaintiff to first defendant on the said date. On this basis, it is submitted that Ex.P.1 is dated 03.11.2005.

Two other documents which are absolutely critical are Exs.P.8 and P.12. Ex.P.8 is a receipt dated 19.12.2005 given by first defendant. Scanned copy of the same reads as follows : 8/13

Ex.P.8 is clearly tell-tale qua this lis. In Ex.P.12, which is dated 23.02.2006, first defendant in the rejoinder through counsel has admitted the transaction.

What is of relevance is total sale consideration is Rs.85 lakhs and from the unrebutted and unchallenged deposition of P.W.1 as well as pleadings, which are supported by Exs.P.1 to P.19, it comes to 9/13

light that Rs.82 lakhs have been paid. P.W.1 submits that he is ready to deposit balance Rs.3 lakhs forthwith.

With regard to defendants 2 to 4, it is the specific case of plaintiffs that alienation of suit property in their favour has been made only with the intention of defeating the rights of plaintiffs, as plaintiffs have caused publication in various Tamil dailies which are Exs.P.14 to 16, namely Daily Thanthi, Maalai Murasu, besides a English Daily Indian Express. (To be noted, Ex.P.13 pertains to some other news article and therefore, the same alone is ignored). On coming to know about such alienation, plaintiffs obtained encumbrance certificate (qua suit property) dated 17.05.2007 which has been marked as Ex.P.17. From the averments in the plaint and the unchallenged narrative / deposition of P.W.1, viewed in juxtaposition with Exhibits, namely, Exs.P.1 to P.12 and P.14 to P.

19, this court is left with the considered view that plaintiffs have been ready and willing to perform their part of contract qua Ex.P.1 and defendants have been playing duck and drakes or in other words, getting evasive. First defendant has been playing duck and drakes inter-alia by roping in defendants 2 to 4 as alienees.

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Therefore, the ingredients of section 16(c) of 'The Specific Relief Act, 1963' (hereinafter 'said Act' for brevity) stands satisfied. Specific relief is a discretionary equitable jurisdiction. This Court has carefully applied its mind to pleadings, depositions, exhibits and more particularly the trajectory which the suit has taken. A reading of these determinants in sum totality leaves this Court with the considered view that this is a fit case for exercising equitable discretionary jurisdiction in specific performance domain in favour of plaintiffs inter-alia as plaintifs have paid Rs.82 lakhs out of total sale consideration of Rs.85 lakhs. To be noted, as already alluded to supra, plaintiffs are ready to deposit Rs.3,00,000/- forthwith.

To be noted, this court has come to the conclusion as this is a fit case for exercise of discretionary jurisdiction in a specific performance suit as first defendant after receiving lion's share of the agreed sale consideration (to be noted, almost entire sale consideration) and after giving Ex.P.8 and admitting the transaction in Ex.P.12 rejoinder notice through counsel, has not even come forward before this Court to contest the suit.

was very different one and half decades ago, i.e., in 2005) are entitled to the relief as prayed for.

It is also a fit case to decree the suit with costs owing to the trajectory which this suit has taken, particularly taking into account the fact that plaintiffs had to cause paper publication for effecting service. This suit is decreed as prayed for with costs, subject to following two conditions :

(a) Plaintiffs shall deposit Rs.3,00,000/- (Rupees three lakhs only) to the credit of the suit within one week from the date of receipt of copy of this judgment/decree.

(b) Defendants are given a window of one month from the date of deposit to execute the sale deed in favour of plaintiffs, failing which sale deed will be executed through Registrar of this Court. 24.02.2020 Speaking order / Non speaking order Index : Yes/No vvk 12/13

M.SUNDAR, J.

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