1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 11380 OF 2011
L.T.SOMASUNDARAM ...APPELLANT(S)
VERSUS
P.SAMPOORNAM AND ORS ...RESPONDENT(S)
O R D E R
1. The appellant and the proforma respondent nos. 6 to 8 have
filed the suit against the original defendant viz. P. Paramasiva
Gounder for specific performance of agreement of sale dated
06.07.1990 and to deliver possession or in the alternative to
direct the original defendant - P. Paramasiva Gounder to pay a sum
of Rs.2,47,478/- (Rupees two lakhs forty seven thousand and four
hundred seventy eight) to the appellant and respondent nos. 6 to 8.
2. Based upon the evidence adduced by the parties, the Trial
Court held that the appellant and respondent nos. 6 to 8 are
entitled to the decree for specific performance and, accordingly,
decreed the suit vide judgment dated 16.10.2003. During the
pendency of the suit, the original defendant- P. Paramasiva Gounder
died. Respondent Nos. 1 to 5 were brought on record as the Legal
representatives of deceased- P. Paramasiva Gounder. The respondent
nos. 1 to 5 preferred the first appeal and the same came to be
dismissed on 02.09.2005.
3. Being aggrieved, the respondent nos. 1 to 5 preferred the
2
second appeal and the High Court reversed the concurrent findings
and allowed the second appeal. In the impugned judgment, the High
Court held that the price agreed under the agreement of sale was
Rs.1,50,000/- (Rupees one lakh fifty thousand) and the appellant
and respondent nos. 6 to 8 herein had paid Rs.1,40,000/- (Rupees
one lakh forty thousand) and the balance payable was only
Rs.10,000/- (Rupees ten thousand) and it is not known why the
appellant and respondent nos. 6 to 8 kept quit for such long time
without then and there seeking for the specific performance.
Insofar as the alleged endorsement, Exhibit A-11 about the eviction
of lessee in the suit property, the High Court did not accept the
endorsement and held that Exhibit A-11 endorsement does not specify
a particular time within which the lessee shall be evicted. The
High Court further observed that if there was a lessee, there would
have been a reference of the said lessee even in the original
agreement of sale and, therefore, on that ground the High Court did
not accept the Exhibit A-11 endorsement as a ground for the
appellant in delay in filing the suit for specific performance. The
High Court held that the appellant and respondent nos. 6 to 8
having paid 90% of the amount under the agreement of sale would not
have waited for six years in filing the suit for specific
performance. On those findings, the High Court reversed the
concurrent findings of the Courts below and allowed the second
appeal.
4. We have heard Mr. Senthil Jagadeesan, learned counsel
appearing on behalf of the appellant and respondent nos. 6 to 8 as
well as Mr. Jayanth Muth Raj, learned senior counsel appearing on
3
behalf of respondent nos. 1 to 5 and perused the relevant material.
5. The relief of specific performance is a discretionary one. In
the present case, the agreement of sale was executed way back in
the year 1990. Learned senior counsel appearing on behalf of
respondent nos. 1 to 5 has submitted that the respondents are in
possession of the property and over the years they spent lot of
money in developing the property and at this distant point of time
if the suit for specific performance is to be decreed, it will
cause undue hardship to respondent nos. 1 to 5 and, therefore,
submitted that the judgment of the High Court may not be interfered
with. We find force in the submission of the learned senior
counsel appearing on behalf of respondent nos. 1 to 5. Since the
agreement is of the year 1990 it would cause undue hardship to the
respondents if at this distant point of time, respondents nos. 1 to
5 are directed to execute sale deed in favour of the appellant and
respondent nos. 6 to 8 at the price which was agreed in the year
1990.
6. However, when the High Court reversed the concurrent findings
of the lower Courts, the High Court should have considered the
alternative prayer of the appellant and respondent nos. 6 to 8 in
ordering refund of the advance payment of Rs.1,40,000/- (Rupees one
lakh forty thousand). Since the agreement is of the year 1990 and
keeping in view the escalated price of the land and other facts and
circumstances of the case, we deem it appropriate to direct
respondent nos. 1 to 5 to pay a sum of Rs.17,50,000/- (Rupees
seventeen lakhs fifty thousand) which is inclusive of the advance
amount of Rs.1,40,000/- (Rupees one lakh forty thousand) to the
4
appellant and respondent nos. 6 to 8. The respondent nos. 1 to 5
shall deposit the amount of Rs.17,50,000/-(Rupees seventeen lakhs
fifty thousand) to the credit of the Court of Additional
Subordinate Court-II, Erode, Erode District within a period of four
months from today. The Supreme Court Registry is directed to draft
a decree to this effect. On such deposit being made, the amount of
Rs.17,50,000/-(Rupees seventeen lakhs fifty thousand) shall be
equally apportioned amongst the appellant and Respondent nos. 6 to
8.
7. It is stated that after the dismissal of the appeal by the
First Appellate Court, sale deed was executed by the proceedings of
the Executing Court on 02.03.2007 in favour of the appellant and
respondent nos. 6 to 8. On deposit of the amount of Rs.17,50,000/-
(Rupees seventeen lakhs fifty thousand), the said sale deed dated
02.03.2007 shall stand cancelled and respondents no. 1 to 5 are at
liberty to register the decree and appropriate entry be made in the
Registrar office in the Encumbrance Register reversing the entry of
sale and also in the Revenue Register to enable respondent nos. 1
to 5 to have clear title.
8. The appeal is, accordingly, disposed of.
........................J.
[R.BANUMATHI]
NEW DELHI ........................J.
25TH JULY, 2019 [ A.S. BOPANNA]
5
ITEM NO.101 COURT NO.7 SECTION XII
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 11380/2011
L.T.SOMASUNDARAM Appellant(s)
VERSUS
P.SAMPOORNAM AND ORS Respondent(s)
Date : 25-07-2019 This appeal was called on for hearing today.
CORAM :
HON'BLE MRS. JUSTICE R. BANUMATHI
HON'BLE MR. JUSTICE A.S. BOPANNA
For Appellant(s) Mr. Senthil Jagadeesan, AOR
Ms. Sonakshi Malhan,Adv.
Ms. Suriti Chowdhary,Adv.
Ms. Mrinal Kanwar,Adv.
For Respondent(s) Mr. Jayanth Muth Raj,Sr.Adv.
Mr. C.K.Sasi,Adv.
Mrs. Malavika Jayanth,Adv.
Mr. Sureshan P., AOR
UPON hearing the counsel the Court made the following
O R D E R
The appeal is disposed of in terms of the signed order.
Pending application(s), if any , shall stand disposed of.
(MADHU BALA) (NISHA TRIPATHI)
COURT MASTER (SH) BRANCH OFFICER
(Signed order is placed on the file)
