TMI Blog2011 (6) TMI 1037X X X X Extracts X X X X X X X X Extracts X X X X ..... k Aruvankadu bearing No. 840871 dated 02.05.1997 towards advance of sale consideration. The time for execution of the sale deed and payment of balance of sale consideration was fixed on 25.08.1997. The sale shall be in favour of the purchaser or his nominee. 5. At the time of agreement the Plaintiff was the tenant in the suit property under the first Defendant. In the meanwhile, the second Defendant had received a sum of Rs. 6 lakhs from the Plaintiff and assigned his rights under the suit agreement in his favour. The Plaintiff had therefore, stepped into the shoes of the second Defendant under the same terms and the first Defendant is aware of this fact and she had also consented to the assignment. The nominee clause comes fairly and squarely into operation in any event and therefore the first Defendant is bound to sell the suit property to the Plaintiff. The Plaintiff had always been ready and willing to pay the balance of sale price and to perform his part of contract. 6. The assignment was reduced into writing in October 1996 and the second Defendant had addressed to the first Defendant about the assignment and he had No. objection to the sale being made over in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ank, Coimbatore. But it was bounced back with an endorsement saying that No. sufficient fund is available in the account of the second Defendant to honour the cheque. The second Defendant was not having fund to purchase the property. As agreed, the second Defendant did not pay the sum of Rs. 5 lakhs on or before 30.06.1997, which itself would go to show that he had failed to perform his part of contract by not paying the sale consideration as agreed and got the sale deed executed in his name at his expenses. Though the first Defendant had expressed her readiness and willingness to perform her part of contract by executing the sale deed, the second Defendant was not able to pay the balance of sale consideration and perform his part of the contract. Despite several communications and personal requests, the second Defendant had not chosen to pay the balance of sale consideration. Ultimately, the first Defendant had sent a telegram and also a legal notice dated 01.08.1997 to the second Defendant cancelling the sale agreement dated 10.04.1997 and forfeiting the advance amount paid. 10. It is true that at the time of the execution of the sale agreement the Plaintiff was a tenant in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tting the assignment of the agreement ? 5. Whether the contention of the first Defendant that the second Defendant's right in the suit agreement is rescinded and such the Plaintiff is not entitled for any suit claim is true ? 6. Whether the Plaintiff is entitled for specific performance as prayed for 7. To what relief ? 13. In order to substantiate their respective cases both the Plaintiff and the first Defendant were put on trial. The Plaintiff was examined as PW 1 and during the course of his examination Exs.A1 to A18 were marked. On the other hand the first Defendant was examined as DW 1 and during the course of her examination Ex.B1 to B5 we remarked. On evaluating the evidences both oral and documentary the trial court had found the issues 1 to 3 as against the Plaintiff. Issue No. 4 and 5 were found in favour of the Plaintiff. While deciding the issue No. 6 and 7 the trial Court had concluded that since the Plaintiff had paid Rs. 6 lakhs to the second Defendant towards the assignment under Ex.A2 and the first Defendant had received Rs. 3 lakhs only from the second Defendant on the date of suit agreement Ex.A1, the Plaintiff is entitled for the relief of paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said sum of Rs. 6 lakhs paid by the Plaintiff to the second Defendant, the second Defendant had issued a letter of no objection addressed to the first Defendant Mrs. Gladys Devaram for executing proper and valid sale deed in favour of the Plaintiff on receipt of the balance of sale price. 16. In the last paragraph it stipulates that the second Defendant undertakes and agrees to do all such acts and deeds as may be required to get a proper and valid sale deed executed to and in favour of the Plaintiff by the first Defendant Mrs. Gladys Devaram. From the averments of the document under Ex.A2, it creates a little confusion as to whether it is an agreement or assignation. It is seen from this document that prior to the making of assignation, the second Defendant had a consultation with the first Defendant. It is also seen that the second Defendant had issued a letter of No. objection and addressed to the first Defendant Mrs. Gladys Devaram for executing a proper and valid sale deed in favour of the Plaintiff on receipt of balance of sale consideration. 17. But this has been vehemently disputed by the first Defendant. She has contended that the second Defendant had no right in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . If it is done so that it would be called as an unilateral one. No. doubt the Plaintiff was the tenant under the first Defendant in respect of the suit property. This has not been denied by the first Defendant. It is apparent that the Plaintiff is not a party to the suit sale agreement (A1). In so far as the Plaintiff is concerned, he is an alien or a third party to the suit sale agreement. 20. The claim of the Plaintiff is that the second Defendant had assigned his interest or his right accrued in pursuant to the suit sale agreement in his favour for the consideration of Rs. 6 lakhs towards the advance of sale price. Though the document under Ex.A2 recites that the first Defendant was aware of the alleged agreement or assignment what ever may be the case, it has not been substantiated by any legal evidence. As discussed earlier, the Plaintiff ought to have summoned the second Defendant to establish this factum, or the first Defendant should have been effectively cross-examined when she was standing in the box. 21. Nowhere in Ex.A2, it is stated that the second Defendant had assigned his claim over the suit property under Ex.A1 sale agreement in favour of the Plaintiff. When ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plete the deal as early as possible. He had also asked D1 to get the income tax clearance certificate so as to enable him to effect the payment and get the property registered. The contents of the letter, Ex.B5 goes to establish that after entering into the sale agreement under Ex.A1, he was not ready to pay the remaining sale price and got the sale deed registered in his favour. When questioned about Ex.B5, PW 1 has deposed that he did not know about this letter. PW 1 has also answered that he did not know about the details of cancellation of Ex.A1 sale agreement by the first Defendant after forfeiting the advance amount of Rs. 3 lakhs. The cancellation of suit sale agreement under Ex.A1 and forfeiting of the advance amount of Rs. 3 lakhs will be discussed in detail in point No. 2. 25. It is pertinent to note here that PW 1 has categorically admitted that, it is correct to state that since the second Defendant had failed to act in accordance with the norms and conditions stipulated under Ex.A1, it was cancelled duly by the first Defendant. Surprisingly, the Plaintiff has stated in his cross-examination that only on the instruction given by the first Defendant, he had parted wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. legal proof available to establish that the first Defendant had given consent to the second Defendant to assign his right under the suit sale agreement in favour of the Plaintiff. 28. In so far as the civil proceeding is concerned, the proof a fact which is said to be in existence is very much essential. Ex.A3, is the letter dated 19.05.2000, which appears to have been addressed to the first Defendant Mrs. Gladys Devaram by the Plaintiff Mr. Subbiah, in which it is stated that he had sent his co-brother and his nephew to Coimbatore, to pay the balance of sale price of Rs. 7 lakhs to the first Defendant and to call upon her to execute the sale deed in respect of the house, and that he was put to understand that the first Defendant had refused to accept the balance of sale price. When this letter, was confronted with the Plaintiff by the learned Counsel for the first Defendant, in his cross-examination he has stated that it was wrong to say that he had written the letter to the first Defendant and even he went to the extent of denying his signature find a place in Ex.A3. In this connection, a question has arisen as to what accelerated the Plaintiff to mark this letter under Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. principle peculiar to the remedy of specific performance. In general it could be stated that the proper person to bring an action is the person whose rights have been violated. The remedy is either between the parties who stipulated what is to be done, or those who stand in their place. It may be said that those (a) who entered into the contract, (b) who stand in their place, (c) who are interested in the subject matter, are, as a rule, the only proper parties to the suit. 34. It is significant to note here that the proviso to Clause (b) to Section 15 of the Specific Relief Act, 1963, contemplates that the specific performance of the contract may be obtained by (1) their representative in interest or (2) the member of any party thereto. Similarly, the parties to a contract are primarily bound to perform their respective promises. No. doubt the expression respective in interest or any party thereto as contemplated under Section 15(b) clearly includes the transferees and assignees from the contracting party in whose favour the right exists. 35. As rightly observed in Shyam Singh v. Daryao Singh reported in AIR 2004 SC 348 (351) Such right of seeking specific performan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the first Defendant and requested her to sell the property in his favour for which she had refused. The clear admission of PW 1 has also been ratified by Ex.B1 dated 18.06.1997, which appears to have been issued to the first Defendant as well as the second Defendant by the Plaintiff through his counsel. In this notice the Plaintiff had admitted that he was the tenant under the first Defendant in respect of the suit property. It is also stated that as if the first Defendant had promised to sell the said house property along with the land for a sum of Rs. 17 lakhs during the month of December 1996 to the Plaintiff and that he was also willing to purchase the property for the said price. It is also stated that he was waiting (Plaintiff) for the promise of first Defendant to purchase this house property. 41. Keeping in view of the above discussions, it is thus clear that the first Defendant was intending to sell the property only in favour of the second Defendant (purchaser) or his nominee as stipulated in the last paragraph of page 2, of the suit sale agreement. 42. It also requires specific mention that the suit sale agreement under Ex.A1 recites that the expression' th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, however, other than that of acting for another, in representation of another, or as the grantee of another. Schuh Trading Company v. Commissioner of Internal Revenue, C.C.A.III., 95 F.2d 404, 411. 45. As defined in Black's Law Dictionary the expression assignee and nominee are distinctively having there own meaning. These expressions cannot be clubbed with each other. 46. On coming to the present case on hand, D1 and D2 who are the parties to the contract of sale under Ex.A1, have carefully put the words, that the sale shall be executed in favour of the purchaser or his nominee and not in favour of the assignee . The very stipulation under Ex.A1 has specifically barred the second Defendant who is the purchaser, from assigning his right or interest under the suit sale agreement in favour of others. 47. Since the second Defendant had assigned his interest under the suit sale agreement, without the express consent of the first Defendant, the first Defendant is not bound to perform her part of the contract. 48. Further, upon the true construction of the contract of sale agreement under Ex.A1, it must be read asif it has been expressly agreed to be sold in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 997, was presented for encashment it was bounced back with an endorsement insufficient funds in the account of the first Defendant. She has also admitted in her evidence that she did not proceed against the second Defendant with regard to the dishonor of the cheque. As per the claim of the first Defendant, she had received only Rs. 3 lakhs only from the second Defendant in cash. With regard to the dishonor of cheque for the value of Rs. 3 lakhs, the second Defendant did not come to the box to rebut the claim of the first Defendant. Even the Plaintiff had not chosen to summon the second Defendant to disprove this factum. Under this circumstance it can safely be construed that the first Defendant had received only Rs. 3 lakhs. 55. Secondly, under Ex.A1, the following conditions have been stipulated. The third sale price balance amounting to Rs. 5 lakhs shall be paid on or before 30th day of June, 1997. The balance amount of Rs. 6 lakhs shall be paid at the time of registration of sale deed before the Sub-Registrar of assurance Coonoor, in respect of the scheduled property on or before 25th August 1997. From the averments of Ex.A1, it is thus clear that apart from the payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... semblance of right over the suit property. It is also her contention that when there was No. agreement in force as on 21.03.2000, D2 could not assign the right which was not in existence. The contention of the first Defendant has also been left uncontested. 58. Under this circumstance this Court, on taking into consideration of the submissions made on behalf of the first Defendant and on considering the submissions made on behalf of the Plaintiff has concluded that the second Defendant had No. right in the suit property at the time of assignation of suit sale agreement in favour of the Plaintiff under Ex.A2. This Court has also gone through the judgment of the trial Court and found that the trial Court has failed to see that when the agreement dated 10.04.1997 was not in force on 21.03.2000, the second Defendant could not have assigned his right under the sale agreement in favour of the Plaintiff. 59. Point - 3 - It is substantiated that the first Defendant had terminated the suit sale agreement as early as on 28.07.1997. Ex.B4, true copy of the telegram would ratify this factum. This suit appears to have been filed on 24.08.2000. According to the first Defendant the suit is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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