A. Venkatesh vs A.Ahmed Ali

Leave granted.

The appellant-plaintiff filed the suit for specific performance based on the Agreement dated 23.09.1998. In the said suit, he has also prayed for an alternate plea that the respondent may be directed to refund the advance amount of Rs.4,00,000/- (Rupees four lakhs) along with interest at the rate of 18% per annum. The appellant also prayed for permanent injunction.

Upon consideration of the evidence adduced by the parties, the Trial Court directed the respondent-defendant to repay the sum of Rs.4,00,000/- (Rupees four lakhs) to the appellant with interest at the rate of 12% per annum for the sum of Rs.2,00,000/- (Rupees two lakhs) from 23.09.1998 and for another sum of Rs.2,00,000/- (Rupees two lakhs) from 14.07.1999 till the date of realization.

The decree of the Trial Court was challenged by both the appellant-plaintiff as well as the respondent-defendant. By the common judgment dated 04.01.2013, the High Court dismissed the appeal preferred by the appellant-plaintiff on the ground that the appellant has not proved the sale agreement. The appeal preferred by the respondent-defendant was allowed on the ground that Rs.2,00,000/- (Rupees two lakhs) were received on 23.09.1998 and another on 14.07.1999; whereas the plaint was presented in the Court was only on 14.09.2004. The suit has been filed beyond three years after the receipt of advance amount. On those findings, the High Court held that even the refund of the advance amount is barred by limitation and the appellant is not entitled to refund also.

The appellant has preferred the special leave petitions before this Court and the same came to be dismissed on 08.05.2013. Thereafter, the appellant has filed review petitions before the High Court and the review petitions also came to be dismissed. Being aggrieved, the appellant has preferred these appeals challenging the dismissal of the impugned judgment dated 04.01.2013 and the review petition dated 27.07.2018.

In O.S. No. 4700/2004 before the City Civil Court, Chennai, the appellant has deposited an amount of Rs.4,50,000/-(Rupees four lakhs fifty thousand) in BR No. 302 dated 13.12.2004 and the same is lying in the Court deposit. According to the respondent, as on date of taking possession of the property i.e. 12.10.2018 the arrears of rent payable by the appellant is Rs.33,32,560/- (Rupees thirty three lakhs thirty two thousand five hundred sixty). For the recovery of the said amount, the respondent-defendant has filed CS No. 19 of 2016 on the file of the High Court, Madras. On raising of pecuniary jurisdiction of the City Civil Court, chennai, the said suit filed before the original side of the High Court of Madras has been transferred to the City Civil Court, Chennai and renumbered as OS No. 4748 of 2019 now pending on the file of VI Additional Judge, City Civil Court, Chennai.

During the course of hearing, certain suggestions were made by the parties for amicable settlement of the matter. Respondent viz. Dr. A.Ahamed Ali, and the subsequent purchaser viz. M. Peer Mohamed, M. Mohamed Diwan and M. Ibrahimsha have filed affidavits stating that the arrears of rent from the appellant as on 12.10.2018 i.e. the date of taking possession of property is worked out to Rs.33,32,560/-. In their affidavits, they have stated that they would be satisfied if the amount of Rs.4,50,000/- (Rupees four lakhs fifty thousand only) deposited by the appellant to the credit of OS No. 4700 is paid to them and they are ready to withdraw O.S. No.4748/2019 filed by them for recovery of arrears of rent. They have also stated that they would receive Rs.4,50,000/-along with accrued interest in full quit of their claims in respect of the property and other claims from the appellant qua the suit property. The appellant viz. A. Venkatesh has also filed an affidavit stating that the respondent may be permitted to withdraw Rs.4,50,000/- deposited by him before the City Civil Court, Chennai in OS No. 4700/2004 provided that if there is no further claim by the respondent and the subsequent purchasers.

In view of the terms of settlement arrived at between the parties and taking into consideration the affidavits filed by the parties, the impugned judgment of the High Court is modified and the appeals are disposed of with the following directions:

(i) The respondent Dr. A. Ahamed Ali and the subsequent purchasers namely, viz. M. Peer Mohamed, M. Mohamed Diwan and M. Ibrahimsha are permitted to withdraw Rs.4,50,000/- along with accrued interest, if any, which has been deposited to the credit of OS No. 4700/2004 before the City Civil Court, Chennai. The amount of Rs.4,50,000/- along with accrued interest, if any, shall be equally apportioned amongst the above four persons.

(ii) The receipt of Rs.4,50,000/- along with accrued interest, if any, would be in full quit of all the claims by the respondent and the subsequent purchasers against the appellant qua the property in OS No.4700/2004 and OS No.4748/2019.

(iii) The respondent and the subsequent purchasers shall withdraw OS No. 4748 of 2019 on the file of the VIth Additional Judge, City Civil Court, Chennai. Since the parties have amicably settled the matter, the VIth Additional Judge, City Civil Court, Chennai shall pass the consequential order dismissing the Suit OS No. 4748 of 2019 in terms of the settlement arrived at between the parties.

(iv) The respondent-defendant and the subsequent purchasers are at liberty to make prayer before the concerned Court seeking refund and the Court shall consider the same and pass the appropriate orders in accordance with law.

(v) The respondent-defendant and the subsequent purchasers shall have no further claim against the appellant towards the arrears of rent and other claims in respect of the suit property in OS No. 4700 of 2004 and OS No. 4748 of 2019.