C.B. Vishnudasan vs D. Vijaya

S. Tamilvanan, J.—This Civil Revision Petition has been preferred under Article 227 of the Constitution of India, against the order and

decretal order, dated 18.06.2012 made in I.A. No. 39 of 2012 in O.S. No. 122 of 2011 on the file of the Principal District Court, Cuddalore.

The Interlocutory Application in I.A. No. 39 of 2012 was filed by the respondent herein under Order 7 Rule 11 of the Code of Civil Procedure,

seeking an order to reject the plaint relating to the suit in O.S. No. 122 of 2011 on the file of the said Court.

The revision petitioner herein as plaintiff had filed the suit, seeking a money decree against the respondent herein for a sum of Rs. 21,04,000/- to

be paid with 6% interest p.a., for the principal amount, Rs. 20,00,000/- from the date of filing of the plaint till the date of recovery of the said

amount and for costs. In the plaint averments, the petitioner as plaintiff has stated that the respondent herein, who was the defendant in the suit

represented that she owned a property, an extent of 57 cents punja land in S. No. 244/1 in Pachayankuppam village, Cuddalore Taluk and offered

to sell the same. Having considered the representation, the petitioner/plaintiff agreed to purchase the said land for a sum of Rs. 60,00,000/- and the

agreement was reduced into writing on 06.04.2011. The respondent/defendant received part of the sale consideration, Rs. 20,00,000/- as

advance amount and the balance of Rs. 40,00,000/- was agreed to be paid within three months to the plaintiff, in turn, the respondent/defendant

agreed to execute a sale deed in favour of the petitioner/plaintiff.

The petitioner has stated that he had entered into the agreement of sale, believing the words of the respondent and also paid part of the sale

consideration, Rs. 20,00,000/-. Subsequently, the petitioner/plaintiff came to know to his shock and surprise that there was a suit pending between

one K. Veerappan, Kaliyamurthy, Pugazhendhi and S. Ramesh in O.S. No. 520/2012 on the file of the Additional District Munsif, Cuddalore in

respect of the suit property and that the said Ramesh filed Crl. O.P. No. 14379 of 2011 on the file of the High Court against the said Pugazhendhi

and one Koutham Raja, questioning the transactions in respect of the property covered under the suit agreement. In support of the same, the

petitioner/plaintiff had stated that he filed supporting documents. Subsequently, according to the petitioner, he issued legal notice to the

respondent/defendant, rescinding the agreement for sale, dated 06.04.2011 entered into between the plaintiff and the defendant and asked the

defendant to return the advance amount with interest. The respondent/defendant having admitted the receipt of advance amount of Rs. 20,00,000/-

from the petitioner, raised frivolous and unsustainable defence. Hence, the petitioner/plaintiff filed a suit, seeking a money decree for the return of

the advance amount with interest and costs.

In the aforesaid suit, the defendant filed an Interlocutory Application, seeking an order to reject the plaint, under Order 7 Rule 11 CPC. The

following issues were framed by the Court below:

(i) Whether there is any encumbrances over the suit property?

(ii) Whether there is any suppression of facts by the seller pertaining to the sale of the suit property?

(iii) Whether the plaintiff is entitled to rescind the agreement?

(iv) What would be the relief, the plaintiff would be entitled to?

The Court below held that the suit could not be treated as a simple money suit and therefore, the petitioner/plaintiff has to pay Court fee to the

entire sale consideration, as per the agreement, dated 06.04.2011 and without rejecting the plaint, directed the revision petitioner/plaintiff to pay

Court fee for the entire amount of Rs. 60,00,000/-. Aggrieved by which, this civil revision has been preferred.

Mr. N. Suresh, learned counsel appearing for the petitioner submitted that the respondent, suppressing the material fact that there were suits

pending in respect of the property, which is the subject matter in the agreement, had entered into the sale agreement to sell the property for a

consideration of Rs. 60,00,000/- and received Rs. 20,00,000/- as advance amount and part of sale consideration. According to the learned

counsel for the petitioner, fraud has been played by the respondent/defendant, by suppressing the material fact. Therefore, the revision petitioner

has every right to get back the advance amount paid by him. By entering into the agreement, there was no loss sustained by the respondent, as it

relates to immovable property and the respondent had received huge amount, however, she did not return the money, in spite of the suppression of

material facts by her, while entering into the agreement for sale. The suit has not been filed, seeking specific performance of the contract and the

relief sought for is only to refund the advance amount, on the ground of suppression of material fact and fraud being played by the

respondent/defendant, According to the learned counsel for the petitioner, the petitioner/plaintiff need not pay Court fee for the sale consideration

specified for entire agreement, but only for the relief sought for and therefore, it cannot be said that there was deficit court fee paid by the

petitioner/plaintiff. In support of his contention, the learned counsel relied on the following decisions:

Kochukunjan Pillai Vs. Sathiadhas

T.S. Sridharan and R. Suresh Kumar Vs. M.F. Simon and Fedrick Simon,

Roop Chand Chaudhari Vs. Smt. Ranjit Kumari,

Sathyan alias Sathyavrethan Vs. Indian Overseas Bank and Another,

Neelavathi and Others Vs. N. Natarajan and Others,

The Vishnu Pratap Sugar Works (P) Ltd. Vs. The Chief Inspector of Stamps, U.P., .

A Division Bench of Punjab and Haryana High Court in Roop Chand Chaudhari Vs. Smt. Ranjit Kumari, , has held that when there is breach of

contract and the suit was filed for return of earnest money and for damages, the plaintiff cannot be permitted to amend the plaint to seek specific

performance of the contract, on the ground that the subsequent amendment and relief could not be maintainable. In this regard, the Division Bench

has relied on the decision rendered by the Hon''ble Supreme Court in Jawahar Lal Wadhwa and Another Vs. Haripada Chakroberty, , wherein

the Hon''ble Supreme Court has held as follows:

...It is settled in law that where a party to a contract commits an anticipatory breach of the contract, the other party to the contract may treat the

breach as putting an end to the contract and sue for damages, but in that event he cannot ask for specific performance. The other option open to

the other party, namely, the aggrieved party, is that he may choose to keep the contract alive till the time for performance and claim specific

performance, but, in that event, he cannot claim specific performance of the contract unless he shows his readiness and willingness to perform the

contract.

Keeping in view the two decisions of the Supreme Court, we are of the opinion that the only conclusion is that once a suit for return of the earnest

money/advance or grant of damages is filed, such a plaintiff disentitles himself to the alternative relief of specific performance even if claimed in the

suit. If that is so, he cannot be allowed to amend his plaint later on to claim specific performance of the contract as the first relief and return of

earnest money/advance and/or damages as an alternative relief. This is primarily on the rule that a claim for return of earnest money/advance and/or

damages can be based on repudiation of the contract for one reason or the other and specific performance would not be available either as an

alternative relief as was held in Prem Raj''s case (supra) by the Supreme Court, nor would such a relief be admissible by amendment as is sought

to be done in this case.

In Kochukunjan Pillai Vs. Sathiadhas , this Court (R.S. Ramanathan, J), relying on Jawahar Lal Wadhwa''s case and other decisions, has held

that the relief seeking specific performance of the contract is different from the suit filed seeking return of the earnest money/advance amount and

for damages. As the suit was filed, seeking only for return of earnest money/advance and damages, subsequently it is not open to the plaintiff to

amend the prayer, seeking specific performance of the contract. In this regard, the ratio has been laid down that once a suit is filed for refund of

earnest money/advance, the plaintiff is disentitled himself to seek the alternative relief of specific performance even if claimed in the suit and in such

a case, he cannot be allowed to amend his plaint later on, to include the prayer for specific performance of the contract.

In T.S. Sridharan and R. Suresh Kumar Vs. M.F. Simon and Fedrick Simon, , this Court (A. Kulasekaran, J.) has held that the allegations in

the plaint alone are to be considered for deciding the Court fee and not the statement made by the defendants in the written statement, referring

sub-section (5) of Section 12 of the Tamil Nadu Court Fees and Suit Valuation Act, 1955.

In Neelavathi and Others Vs. N. Natarajan and Others, , a Three Judge Bench of the Hon''ble Supreme Court has ruled as follows:

On reading of the plaint as a whole, we are unable to agree with the view taken by the High Court. It is settled law that the question of court fee

must be considered in the light of the allegation made in the plaint and its decision cannot be influenced either by the pleas in the written statement

or by the final decision of the suit on merits. All the material allegations contained in the plaint should be construed and taken as a whole....

In this decision, the Hon''ble Supreme Court has categorically held that the question of court fee must be considered based on the allegation made

in the plaint and it should not be decided based on the written statement or by the final decision, though it is relevant for the Court to go through all

the material allegations contained in the plaint, for the purpose of payment of Court fee and for deciding the pecuniary jurisdiction of the Court.

In The Vishnu Pratap Sugar Works (P) Ltd. Vs. The Chief Inspector of Stamps, U.P., , the Hon''ble Apex Court has held as follows:

...The plaint proceeds on the footing that the said Acts were void and that therefore, the State of U.P or its authorities had no power to realise

the said tax and the said cess. It may be that while deciding whether to grant the injunction or not, the court might have to consider the question as

to the validity or otherwise of the said Acts. But that must happen in almost every case where an injunction is prayed for. If for the mere reason

that the court might have to go into such a question, a prayer for injunction were to be treated as one for a declaratory decree of which the

consequential relief is injunction all suits where injunction is prayed for would have to be treated as falling under Cl. (a) of sub-s. (iv) of S. 7 and in

that view Cl.(b) of sub-s. (iv-B) of S. 7 would be superfluous, the contention urged by Mr. Bishan Narain, therefore, cannot be accepted.

Per contra, Mr. P. Mani, learned counsel appearing for the respondent submitted that as per the decision rendered by the High Court of

Andhra Pradesh in Smt. M. Prabhavathamma Vs. H. Anwar Khan, , it has been held that the suit therein was filed only for the recovery of amount

paid as advance under the agreement after putting an end to the agreement, when it came to be known that the petitioner was not having valid title

to the property and when she already sold away the same property to some other person. The suit for recovery of advance amount paid under the

agreement is not barred by the provisions of the Limitation Act.

In T. Gangadharaswamy Vs. Dowlatram Mohandas and Others, , the suit relating to the decision was filed for specific performance of the

contract and the petitioner therein sought a decree only in respect of one item of the property covered by the agreement, wherein it was held that

as per Section 40(a) of the Karnataka Court Fees and Suits Valuation Act (16 of 1958), the plaintiff had to pay the Court fee for the entire

agreement and not for the part of the agreement. However, the said decision is not applicable to the facts and circumstances of the case, since the

said suit was filed for specific performance of the contract. In such circumstances, the plaintiff therein should have paid Court fee for the value of

the property, as stated in the agreement and he cannot apportion one property alone and pay Court fee for that property alone.

In the present case on hand, as decided by the Hon''ble Apex Court in Neelavathi and Jawahar Lal Wadhwa''s case (cited supra), it is clear

that seeking relief of specific performance of the contract is different from seeking return of advance amount. It has been held that if a suit is filed

without seeking specific performance of contract, but only for return of advance amount paid, subsequently, the plaint cannot be amended.

As per the pleadings of the plaint, the suit was filed by the petitioner/plaintiff, stating that the respondent/defendant had suppressed the

pendency of various litigations, in respect of the property, which is the subject matter of the agreement for sale, hence, he rescind the contract and

demanded the respondent for return of the advance amount. Learned counsel appearing for the petitioner submitted that the respondent had

fraudulently entered into the agreement with the petitioner/plaintiff, suppressing the litigations relating to the property, hence, the petitioner, though it

fit and proper to rescind the contract and to get back the advance amount paid as part of sale consideration. It was further contended that the

respondent/defendant has not sustained any loss or damage, since the petitioner/plaintiff rescind the contract, on account of the suppression of the

litigation, relating to the property. The respondent/defendant has not disputed the pendency of litigation and the Crl. O.P filed in respect of the suit

property.

On the said circumstances, as contended by the learned counsel appearing for the petitioner, the petitioner/plaintiff thought it proper to avoid

future litigation with third parties, in respect of the property. As the advance amount was not refunded, as demanded by the petitioner/plaintiff, he

filed the suit, seeking a decree for the return of the advance amount, Rs. 20,00,000/- with subsequent interest. The petitioner herein has not filed

the suit for specific performance of the contract. As ruled by the Hon''ble Supreme Court, the suit has to be construed for payment of Court fees,

in the light of the averments made in the plaint by the petitioner/plaintiff and the Court below cannot go into the averments made in the written

statement filed by the respondent/defendant.

It is a clear case that the petitioner as plaintiff has averred that there were civil suits pending in respect of the property, which was suppressed

by the respondent/defendant. The litigation relating to the property was not disclosed by the respondent/defendant, while entering into the

agreement for sale. Admittedly, the petitioner paid advance amount of Rs. 20,00,000/-. As it was brought to his notice subsequently, that there

were litigation in respect of the property, the petitioner issued legal notice, rescinding the contract and asked the respondent/defendant to return the

advance amount. As there was no loss incurred by the respondent/defendant, refusing to return the money, would amount to unjust enrichment.

The respondent/defendant has no right to reap unjust enrichment, as per the pleadings of the plaintiff. The respondent/defendant has not disputed

that the litigation relating to the property was not disclosed by her, while entering into the agreement for sale of immovable property.

At this stage, the Court below cannot go into the merits of the case for deciding the Court fees payable. The Court below has to consider the

pleadings of the petitioner/plaintiff. As per the averments made by the petitioner/plaintiff, the respondent/defendant had suppressed the pending

litigation, in respect of the property, for which contract was entered into between the parties. In order to avoid litigation with third parties, the

petitioner/plaintiff rescind the contract and demanded the respondent for return of the advance amount. Hence, there is no relief of specific

performance of the contract was sought for and therefore, the Court below cannot go into the value of the sale consideration of the agreement and

the relief sought for by the petitioner/plaintiff is only for return of advance amount Rs. 20,00,000/- paid by the petitioner/plaintiff with interest and

costs and that has to be decided by the Court below in the suit.

On the aforesaid facts and circumstances, the Court below cannot direct the petitioner/plaintiff to pay Court fee on the value of the agreement,

since the petitioner/plaintiff has given a go-by, so far as the relief of specific performance is concerned. Therefore, this Court is of the view that the

impugned order is against the decisions rendered by the Hon''ble Supreme Court and this Court and accordingly, the Civil Revision Petition has to

be allowed, to meet the ends of justice. In the result, this Civil Revision Petition is allowed and the impugned order, dated 18.06.2012 made in I.A.

No. 39 of 2012 in O.S. No. 122 of 2011 on the file of the Principal District Court, Cuddalore is set aside. The Court below is directed to dispose

the suit on merits, within six months from the date of receipt of a copy of this order, uninfluenced by the findings of this Court, if any in this order.

Consequently, connected miscellaneous petition is closed. No costs.