T.H.Mohamed Farook Vs. L.Muruganandam - Court Judgment

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED2101.2014 CORAM THE HONOURABLE MR. JUSTICE R.MAHADEVAN C.M.A. NOS.1847 & 1848 OF2012M.P.NOS.1 & 1 OF20121.T.H.Mohamed Farook 2.Jamirunnisa .. Appellants (in both CMAs) Versus L.Muruganandam .. Respondent (in both CMAs) PRAYER : Civil Miscellaneous Appeals filed under Section 104 r/w Order 43 Rule 1 CPC, against the judgment and decree in I.A.Nos.609 of 2010 and 216 of 2010 in O.S.No.173 of 2010 dated 27.09.2011 on the file of the learned District and Sessions Judge-II, Kancheepuram. For Appellants : Mr.R.Subramanian (in both CMAs) For Respondent : Mr.G.K.Sekar (in both CMAs) * * * * * C O M M O N

JUDGMENT

These two Civil Miscellaneous Appeals are filed against the orders in I.A.Nos.609 of 2010 and 216 of 2010 in O.S No 173 of 2010 dated 27.09.2011 passed by the learned District and Sessions Judge II, Kancheepuram.

2. The appellants are the respondents/defendants. The respondent herein is the petitioner/plaintiff. For the sake of convenience, the parties will be referred as per the original rank in the suit.

3. The plaintiff has filed the suit for specific performance with possession in relief (a) and permanent injunction restraining the defendants from interfering with the plaintiffs possession in relief (b). The suit was initially filed in Chengelpattu and subsequently transferred to Kancheepuram. Interlocutory Application seeking interim injunction to restrain the defendants from alienating the suit property, was filed on 24.11.2008 along with the plaint in 2008 and later numbered as I.A.No.216 of 2010. I.A.No.609 of 2010 was filed seeking interim Injunction to restrain the defendants from interfering the peaceful possession of the plaintiff on 06.07.2010.

4. The case of the plaintiff is that the first defendant for himself, second defendant and on behalf of the company M/s.Shoreline Farms Pvt. Ltd., agreed to sell 1 acre and 67 cents of lands in various Survey Numbers in 177, Thammanur Village, Kancheepuram District for a total sale consideration of Rs.16,22,000/- and entered into an agreement for sale dated 28.01.2006 with the plaintiff. The plaintiff paid an advance of Rs.41,000/- at the time of executing the agreement and agreed to tender the balance of Rs.15,81,000/- and get the sale deed executed within three months. The further case of the plaintiff is that though he had agreed to tender the balance within three months, time was not the essence of the contract and as part performance, he was put in possession of the suit property and spent about Rs.1,00,000/- on the property. Later on 03.03.2006, the plaintiff caused a notice through his advocate calling upon the defendants to execute the sale deed in favour of his nominee. Claiming that the defendants are attempting to sell the suit property to some third party and that the defendants attempted to forcibly evict the plaintiff on 31.10.2008, the suit was filed on 24.11.2008. I.A.No.216 of 2010 was filed based on same averments seeking interim injunction against alienation. No interim injunction was sought against dispossession. Subsequently, with the same averments just by changing the date of threat to evict to 04.07.2010, I.A.No.609 of 2010 has been filed seeking interim injunction against dispossession.

5. The defendants filed their written statement and counter denying the contents and stating inter alia that the suit has been filed suppressing material facts and particulars, the plaintiff was never put in possession, that the agreement is non-est and hence unenforceable, to the notice dated 03.03.2006, the defendants sent a reply notice dated 17.03.2006 expressing their inability to execute the sale deed and since the Board Resolution was not passed authorizing the Director to sell the property, the agreement is invalid and had become unenforceable. The defendants further contended that they subsequently sent a notice dated 06.06.2006 asking the plaintiff not to indulge in illegal activities and another notice dated 22.06.2006 with a Demand Draft dated 20.06.2006 for Rs.41,000/- returning the advance amount expressing the impossibility of performance of contract. Both the notices were received by the plaintiff and the demand draft was also encashed on 29.06.2006. Subsequent to encashment, the plaintiff preferred a false private complaint in C.C.No.468 of 2006 and the same was quashed by the High Court on 16.02.2010 in Crl.O.P.No.9583 of 2007 and therefore sought dismissal of the suit. The defendants also filed adangal for 2006, 2007 and 2008 in support of their claim that possession was never handed over.

6. After hearing the arguments, the Trial Court allowed the applications by order dated 27.09.2011. Aggrieved, the present appeals have been filed by the defendants.

7. By consent, the Civil Miscellaneous Appeals were taken for final hearing. Heard the learned counsel for the appellants and the respondent.

8. The learned counsel for the appellants assailing the order of the Trial Court contended that the order of the Trial court is unsustainable as the Trial Court has failed to consider the fact that the agreement stood terminated after notices dated 17.03.2006, 06.06.2006 and 22.06.2006 and that the plaintiff by encashing the demand draft has accepted the termination, therefore the suit itself is not maintainable. The learned counsel also contended that specific performance being an equitable relief, the Trial Court ought to have dismissed the applications as the plaintiff has approached the Court with unclean hands. Further, the Trial Court has not considered the documents filed by the defendants and has allowed the application in I.A.No.609 of 2010 based on the averments in paragraph 5 of the plaint and the application in I.A.No.216 of 2010 just because the application is pending for a long time without rendering any findings as to the existence of prima facie case, balance of convenience or irreparable loss. The learned counsel further contended in view of the amendment to section 17 (1A) of the Registration Act by Tamil Nadu Act 48 of 2001 on 24.09.2001, for enforcing a right under Section 53A of the Transfer of Property Act claiming part performance, the agreement must have been registered, otherwise the agreement would be unenforceable. The learned counsel claimed that the suit itself is non maintainable and the same was filed after two years subsequent to cancellation of agreement and having encashed the demand draft, the plaintiff would not suffer any loss. The learned counsel placed reliance upon the Judgment of this Court reported in AIR1995MADRAS172[MRS.VASUNDARA BHALLA & OTHERS vs. HARIDAS BHAGAT AND COMPANY PRIVATE LIMITED]. in support of his claim that injunctions ought not to have been granted and sought for setting aside the orders of the Trial Court.

9. In reply, the learned counsel for the respondent argued that there is no perversity in the orders of the Trial Court. The learned counsel also brought to the knowledge of this Court that the defendants had earlier filed an application to reject the plaint and earlier approached this Court for a direction to dispose the application to reject the plaint and by an order dated 06.09.2012 in C.R.P.(PD) No.988/2012, this Court directed the Trial Court to dispose the suit within six months and the suit is still pending because of the pendency of these Appeals. Further, the respondent has filed another private complaint in C.C.No.129 of 2011 and when the quash application filed by the appellants came up for hearing, this Honble Court refused to quash the complaint. The learned counsel hence sought for dismissal of the appeals.

10. Normally, this Court would not go into the merits of the case while deciding an appeal arising out of final orders in interim application. But the order of the Trial court is such that this Court cannot shut its eyes to the illegality. Prima facie it is found that the Trial Court has not only considered the pleadings and the documents, but has also passed the orders with scant regard to the principles for grant of Injunction. The reasons tendered by the Trial Court are audacious, naive and awful. The Trial Court has not considered the objections raised by the defendants in the written statement and the documents.

11. The Trial Court Should have adhered itself to the aspects of prima facie case, balance of convenience and irreparable loss and given findings on each aspect. The law for grant of interim Injunction is well settled. For grant of Injunction, there must be prima facie case, the balance of convenience must be in favour of the person seeking injunction and he must establish that he would suffer irreparable loss if injunction is not granted. All the three conditions must be satisfied for grant of injunction.

12. The defendants in their counter and written statement clearly specified that the plaintiff was informed that the agreement was invalid and the advance amount of Rs.41,000/- was returned by Demand Draft and encashed. Any right which the plaintiff had ceased to exist after encashing the demand draft. It appears that the Trial Court has considered the pleadings of the plaintiff alone. Even there, it has failed to note that in the plaint, the plaintiff alleged that the defendants attempted to evict the plaintiff on 31.10.2008. But no injunction against dispossession was sought. After nearly two years, with the very same averments in the earlier affidavit except for meager changes, the interim application in I.A.No.609 of 2010 was filed. The defendants counsel argued the case on 19.08.2010 and marked Exhibits R1 to R8. Thereafter, the case was repeatedly adjourned for plaintiffs reply arguments and after one year some urgency is shown and the applications in which no interim orders were earlier granted is allowed. The Trial Court has also not even considered as to what transpired between 2006 and 2008. The plaintiff has not even mentioned the reasons for delay in filing the suit. The agreement does not contain any clause relating to handing over the possession nor has the plaintiff produced any other material evidence to show that he was put in possession. The letter dated 13.02.2006 has also been disputed and the defendants have produced the adangal extract for 2006, 2007, 2008. Strangely, the Trial Court having observed that the adangals have been produced in page 3 of the Judgment, has in the index to the judgment stated that no documents were relied upon by either parties.

13. As rightly pointed out by the learned counsel for the appellants, after the Tamil Nadu Amendment to Section 17(1A) of the Registration Act by Act 48 of 2001 on 24.09.2001, the agreement for sale evidencing part performance by handing over possession has to be registered to seek protection under Section 53A of the Transfer of Property Act. As held by the Division Bench of this Court in the judgment reported in AIR1995MADRAS172[MRS.VASUNDARA BHALLA & OTHERS vs. HARIDAS BHAGAT AND COMPANY PRIVATE LIMITED]., the protection given under section 53 A of the Transfer of Property Act is based on equity and cannot be used as an embargo to prevent the owner from alienating the property. Admittedly, the agreement is not registered. However, from the records, it is found that the plaintiff has not established that he has been put into possession. Hence, I am not going into the applicability of Section 53 A of the Transfer of Property Act.

14. He who seeks equity must approach the Courts with clean hands. The plaintiff has not only suppressed about the reply notice and other notices issued by the defendant in the plaint, he has also suppressed the receipt of the advance paid at the time of agreement and the fact that the private complaint filed by him was quashed. Being an equitable relief, even if the plaintiff proves his case in trial, it is open to the Trial Court to even grant compensation in lieu of specific performance. Any sale pending suit, would obviously be hit by Section 52 of the Transfer of Property Act. In the facts and circumstances of the case, I am of the view that the plaintiff would not be put to any loss in the absence of interim injunctions.

15. The Honble Apex Court in the case of T.ARIVANDANDAM vs T.V.SATYAPAL & ANOTHER reported in AIR1977SC2421 while deciding the Special Leave Petition against the orders of Karanataka High Court dismissing the Civil Revision Petition challenging the order refusing Interim Injunction, emphasized the duty of Courts to deal with false or vexatious claims as follows: ".5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsifs Court Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful - not formal - reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under O. VII R. 11, C. P. C. taking care to see that the ground mentioned therein is fulfilled. And, if clear drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under O. X. C.P.C. An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Ch. XI) and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi. ".It is dangerous to be too good.".

6. The trial Court in this case will remind itself of S. 35-A, C. P. C. and take deterrent action if it is satisfied that the litigation was inspired by vexatious motives and altogether groundless. In any view, that suit has no survival value and should be disposed of forthwith after giving an immediate hearing to the parties concerned.

7. We regret the infliction of the ordeal upon the learned Judge of the High Court by a callous party. We more than regret the circumstance that the party concerned has been able to prevail upon one lawyer or the other to present to the court a case which was disingenuous or worse. It may be a valuable contribution to the cause of justice if counsel screen wholly fraudulent and frivolous litigation refusing to be beguiled by dubious clients. And remembering that an advocate is an officer of justice he owes it to society not to collaborate in shady actions. The Bar Council of India, we hope will activate this obligation. We are constrained to make these observations and hope that the co- operation of the Bar will be readily forthcoming to the Bench for spending judicial time on worthwhile disputes and avoiding the distraction of sham litigation such as the one we are disposing of. Another moral of this unrighteous chain litigation is the gullible grant of ex parte orders tempts gamblers in litigation into easy courts. A judge who succumbs to ex parte pressure in unmerited cases helps devalue the judicial process. We must appreciate Shri Ramasesh for his young candour and correct advocacy.

16. Here is a case, which seems to have been initiated not on facts or on legal basis but purely on sheer advocacy. The conduct of the plaintiff, even after the suit was filed and criminal complaint was quashed, has not deterred him from preferring further complaint and protracting the case. What can also be seen from the records is that the plaintiff has been dragging on the applications and the orders in the applications were passed when the suit was already listed for Trial. Without even a prima facie case, the Trial Court has entertained the plea of the plaintiff without any legal basis. As held by the Honble Apex Court in the judgment referred above the long arm of the law must throttle such litigative caricatures if the confidence and credibility of the community in the judicature is to survive. The Trial Court must be vigilant against clever pleadings and unscrupulous claims with ulterior motives. The Trial court is armed with enough power to deter frivolous litigants under Civil Procedure Code. The plaintiff has no case for injunction.

17. For all the above reasons the Judgment and Decree dated 27.09.2011 in I.A.Nos.216 of 2010 and 609 of 2010 in O.S.No.173 of 2010 are set aside. Already, this Court by order dated 06.09.2012 has directed the Trial Court to dispose the suit within six months. However, despite the fact that there was no stay of suit proceedings, the suit has been kept pending for more than a year. Therefore, in consonance with the earlier order, the Trial Court is directed to complete the Trial on day to day basis and dispose the suit within 60 days from the date of receipt of this Order, undeterred by any of the observations made above. With these directions, both the Civil Miscellaneous Appeals are allowed. No costs. Consequently, connected miscellaneous petitions are closed. 21.01.2014 Index : Yes Internet : Yes Note : Issue Order Copy on 24.01.2014 sri R.MAHADEVAN, J.

sri To 1.The District and Sessions Judge-II, Kancheepuram. 2.The Section Officer, V.R.Section, High Court of Madras, Chennai  600 104. PRE-DELIVERY COMMON JUDGMENT

IN C.M.A. NOS.1847 & 1848 OF201221.01.2014