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Supreme Court of India
Civil Appeal No. 6014-6015 of 2021
Karuppuraj vs. M. Ganesan
For a property situated in Kaspa Coimbatore, the plaintiff and defendant entered into an agreement for sale of the property. Wherein it was decided that the defendant will sell the property at Rs.16.20 lakhs to the plaintiff, and so for the plaintiff paid 3, 60,001/- at the time of execution of the agreement to sell.
There was a condition in the agreement that the defendant as he is the original owner is required to evict the tenants from the property and then execute the sale deed on receipt of the full sale consideration.
The plaintiff sent a legal notice to the defendant asking him to evict the tenants and execute the sale deed on receipt of the balance sale consideration. Thereafter the plaintiff filed a suit before the Trial Court for the specific performance of the contract. The plaintiff stated that he is ready to comply with his side of the contract but the defendant has not completed his part of the contract and did not evicted the tenants and did not came forward for the execution of the sale deed. The plaintiff pleaded that he is ready with the cash in his account and therefore he is ready to perform his duty of the contract and hence the specific performance of the contract should be made.
The defendant however stated in his written statement, that the plaintiff was not ready or willing to fulfill his part of duty and the defendant also denied the specific performance of the part of the contract. The defendant submitted that the plaintiff is aware the tenants have vacated the place and still the plaintiff is not ready to pay full consideration amount.
The Trial Court after hearing both the sides and after looking through all the documents and evidences, held that the defendant have failed to prove the tenants have vacated, but also the court found unwillingness from the plaintiff in purchasing the property with the tenants and hence the Trial court dismissed the suit and refused to pass the decree for Specific performance of the contract and directed the defendant to refund the advance amount of Rs. 3, 60,001/- with interest @ 18% p.a. from the date of agreement till the date of realization, to be paid within a period of two months.
So feeling aggrieved and dissatisfied with the judgment and decree passed by the Trial court, the plaintiff filed a suit before the High Court. The plaintiff filed an affidavit in the court stating his willingness and readiness to purchase the property with the tenants, and hence the High Court without even re-appreciating the entire evidence on record and even without framing the points for determination allowed the appeal of the plaintiff and set aside the order passed by the Tribal court, and hence ordered for the specific performance of the contract.
Hence feeling aggrieved and dissatisfied with the order of High court the defendant filled a suit in the Supreme Court. The counsel for the appellant/defendant submitted that High Court erred in allowing the appeal for special performance on the basis of the affidavit, without even considering other evidences. He submitted that the High Court didn’t exercise his appellate jurisdiction vested in it. He also submitted that the affidavit was submitted for the first time, and also that permitting the plaintiff to amend the plaint, the course adopted by the High Court permitting to change his stand by way of an affidavit is unknown to law and the procedure to be followed under the provisions of the CPC.
The counsel for the respondent stated that it was the responsibility of the defendant to evict the tenant and handover the vacant possession and execute the sale according to the agreement, but the defendant did not performed his duty. Also that even after the order of the Trial Court the defendant didn’t refund the money with the interest. And hence the plaintiff had to present the affidavit stating his willingness and to get the specific performance done.
After hearing both the sides, the Supreme Court first of all stated that the High Court did not exercise his appellate jurisdiction. Supreme Court said that being the First Appeal, it was the duty of the High Court to look after all the facts and evidences of the case, and also that accepting the affidavit without amending the contract was unknown to law.
The Supreme Court stated the decision of the Trial Court was correct, and hence decided to uphold the decision of the Trial Court and set aside the order passed by the High Court, and ordered the defendant to pay the refund with the interest @18% from the date of agreement till the date of realization within a period of eight weeks from the day of the following order passed.
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