Messrs. Ganesh Industriesby its Sole ProprietorPadikkas v. M/s. Bharath Rubber Company, by its Partner SV.T.Sivaraman2. S.V.T.Sivaraman3. SV.T.Sathappan

In the High Court of Judicature at MadrasDated:20.1.2006Coram:The Hon'ble Mr. Justice K.MOHAN RAMA.S.No.155 of 1992Messrs. Ganesh Industriesby its Sole ProprietorPadikkas.. Appellant/Plaintiffvs.1. M/s. Bharath Rubber Company, by its Partner SV.T.Sivaraman2. S.V.T.Sivaraman3. SV.T.Sathappan .. Respondents/DefendantsPrayer: Appeal against the Decree and Judgment dated5.12.1991 made in O.S.No.487 of 1987 on the file of thePrincipal Subordinate Judge of Coimbatore.For appellant : Mr.V.MonoharFor respondents : Mr.A.R.NixonJ U D G M E N TThe unsuccessful plaintiff in O.S.No.487 of 1987 onthe file of the Principal Subordinate Judge, Coimbatore isthe appellant in the appeal. For the sake of convenience,the parties are hereinafter referred to as per their arrayin the suit.2. The suit was filed for directing the defendants toexecute a sale deed in favour of the plaintiff, inrespect of suit property at his cost and on his paying thebalance sale price of Rs.25,000/-. 3. The trial Court dismissed the suit by judgment anddecree dated 5.12.1991. Aggrieved by that, the plaintiffhas filed the present appeal. The brief facts of the caseas pleaded by the plaintiff are as follows: https://hcservices.ecourts.gov.in/hcservices/ The suit schedule property was originally owned by Kannappan@ K.S.Shanmugham and the first defendant entered into anagreement with him to purchase the said property in the year1979. Thereafter, the first defendant represented by the seconddefendant agreed to sell the suit property to the plaintiff andin pursuance of the agreement, received a sum of Rs.5,001/-towards a part of the sale price on 16.7.1979 by cheque No.058376issued by the plaintiff in favour of the first defendant on theIndian Bank, Coimbatore. It has been agreed between the partiesthat the defendants shall sell the property for a sum ofRs.30,001/- to the plaintiff and that the sale should be effectedafter the first defendant purchased the property from theaforesaid Kannappan @ shanmugham as per the agreement of sale.Time is not the essence of the contract.4. On 11.2.1980, Kannappan @ Shanmugham executed aregistered sale deed in receipt of the suit property for a sum ofRs.14,400/- in favour of the second defendant representing thefirst defendant firm. After that the second defendant gave acopy of the original sale deed to the plaintiff in token of hispromise to execute a sale deed in his favour as agreed to on16.7.1979. Though the defendants have agreed to convey theproperty to the plaintiff, they have not executed the sale deed,inspite of the fact that there was an agreement with theplaintiff. The plaintiff approached the second defendant onseveral occasions and pressed him to execute the sale deed in hisfavour at his cost but, the defendants have been postponing theexecution. The plaintiff therefore sent a notice dated 3.9.1986to the second defendant representing the first defendant firm.There was no reply. Again a notice dated 17.5.1987 was issued tothe second defendant. Though, the second defendant received thatnotice on 19.5.1987, there was no reply.5. In paragraph 6 of the plaint, it is stated that the causeof action arose on 16.7.1979 when the plaintiff agreed topurchase the suit property and paid an advance of Rs.5,001/- tothe second defendant representing the first defendant firm; on12.2.1980 when the suit property was purchased by the seconddefendant and a copy of the sale deed was handed over to theplaintiff, on 3.9.1986 when the plaintiff sent a notice to thesecond defendant representing the first defendants firm; on17.5.1987 when the plaintiff sent another notice to the secondrespondent . Subsequently, the plaintiff has not stated as towhen the defendants refused to execute the sale deed. On theabove said pleadings, the suit has been filed for specificperformance.6. The suit was contested by the defendants, by filing awritten statement through the second defendant which has beenadopted by defendants 1 and 3. In the written statement, it isstated as follows: https://hcservices.ecourts.gov.in/hcservices/ (i) It is not correct to state that M/s. Bharat RubberCompany can be represented by the second defendant. Thepartnership firm had been reconstituted and the second defendantwas not a partner of the first defendant firm on the date offiling of the suit. The description of property is alsomisleading. The plaintiff claims relief only in respect of anextent of 45 cents which has been purchased by the seconddefendant under a registered sale deed dated 11.2.1980 for14,400/- and it does not belong to the first defendant firm.Therefore the letter dated 16.7.1979 relied upon by the plaintiffcannot have anything to do with the suit property. So far as theremaining extent of 70 cents is concerned, it does not form partof the suit property as per description of property in the plaintschedule. The said extent of 70 cents has been purchased, on11.2.1980 for Rs.22,400/-. No agreement can be entered into bythe first defendant firm in respect of the property owned by thesecond defendant. The suit was hopelessly barred by limitation.The averment that time is not the essence of the contract is notcorrect.(ii). The letter (described as receipt) relied upon by theplaintiff does not represent a concluded contract. The fact isthat the plaintiff made a representation that the suit propertyand another extent should be purchased. Later on when thetransaction was nearing completion, the plaintiff backed out ashe was concerned about a land acquisition proposal, the plaintiffproposed to buy a part of the property to be purchased by thefirst defendant but no extent was finalised and no sale price wasfixed. The plaintiff simply issued a cheque for Rs.5,001/-stating that the other details can be finalised later. Howeverthe plaintiff did not come forward to purchase any part of thetotal extent of 1 acre and 15 cents which included the suitproperty. Hence, the second and first defendants proceeded topurchase properties. There is no concluded contract for buyingany property at that time. When the property was purchased bythe first defendant and second defendant the plaintiff did notshow any interest and therefore the proposal on the part of theplaintiff did not materialise. In other words, the proposal didnot fructify into a contract.(iii). The alleged consideration of Rs.30,001/- isartificial and imaginary. The sale price was not mentioned inthe notice dated 3.9.1986. But it was mentioned only in thelegal notice dated 17.5.1987. The suit document No.1 is void foruncertainty as it does not contain the description of theproperty. The plaintiff is silent about the period of contractand there cannot be any contract without fixing the sale priceand the extent of the property. When these material avermentsare absent, it should be presumed that there is no concludedcontract at all. The plaintiff has filed the speculative suit onaccount of the recent hike in price of the property. The seconddefendant has stated that he ignored the suit notice since theproposal reflected in document No.1 concerns only the firm. On https://hcservices.ecourts.gov.in/hcservices/ the above said pleadings, the defendants prayed for dismissal ofthe suit.7. On the above said pleadings, the trial Court framed thefollowing issues viz:- 1. Whether the first defendant has got right to sell thesuit property?2. Whether the second defendant is the owner of the suitproperty?3. Whether the suit is barred by limitation?4. Whether there was concluded contract between theplaintiff and the defendants?5. Whether the suit agreement is vitiated for being vague?6. Whether the plaintiff was ready to perform his part ofthe alleged contract entered between the plaintiff and thedefendants?7. Whether the plaintiff is entitled for a decree forspecific performance?8. Whether the suit is not maintainable for want of cause ofaction?9. What reliefs the parties are entitled to?8. During the trial, the plaintiff got himself examined asPW.1 and marked Exs.A1 to A20. On the side of the defendants,the second defendant was examined as DW.1and Exs.B1 to B3were marked. On a careful consideration of the oral anddocumentary evidence adduced in the case, the trial Court came tothe conclusion that there was no concluded contract between theplaintiff and the second defendant, that the property descriptionis wrong, that the first defendant cannot enter into anyagreement in respect of the suit property, as the seconddefendant is the only owner of the suit property and theagreement pleaded by the plaintiff is vague and the plaintiff wasinactive from 1979 to 1987 and he was not ready and willing toperform his part of the contract. On the aforesaid pleadings,the trial Court dismissed the suit. Aggrieved by that, theplaintiff has filed the above appeal.9. Mr.V.Manohar, learned counsel for the appellant submittedthat Ex.A.3/receipt and the admitted fact that the original saledeed under Ex.A.4 dated 11.2.1980 executed by K.N.Shanmugham, infavour of the second defendant was handed over to the plaintiffwere not considered by the Trial Court in their properperspective. He also submitted that certain answers in thedeposition of DW.1 will also establish that there was a concludedcontract between the plaintiff and the defendants.10. Per contra, the learned counsel appearing for therespondents Mr.A.R.Nixon, reiterated the contentions raised bythe defendants in the trial Court, and submitted that the trialCourt has considered all the relevant evidence on record and hascorrectly concluded that there was no concluded contract. Hetherefore prayed for dismissal of the appeal. https://hcservices.ecourts.gov.in/hcservices/

11. The main issue to be decided in the appeal is whetherthere was a concluded contract between the plaintiff and thedefendants. Only when the Court comes to the conclusion thatthere was a concluded contract between the plaintiff and thedefendants, the other issues would arise for consideration. 12. Ex.A.3 dated 16.7.1979 is the crucial document reliedupon by the plaintiff to show that there was a concludedcontract. Ex.A.3, reads as follows:@eh';fs; Mtzp khjk; fpiuak; bra;ag; nghFk; ft[z;ld;ghisak;fpuhkk; ,lj;jpy; rg; otp&d; bra;J M/s.Ganesh-Industies-f;F fpiuak;bra;J bfhs;tjhf tpiy ngrp mjw;F ml;thd;rhf ,e;jpad; gh';f; vz;/058376 eph; brf; K:yk; U:/5001-? (U:gha; Ie;jhapuj;jp xd;W kl;Lk;) bgw;Wf;bfhz;nlhk;. ghf;fp U:ghia fpiuak; bra;a[k; bghGJ bgw;Wf; bfhs;fpnwhk;.@13. A perusal of Ex.A.3 shows that there is no descriptionof the property to be purchased. There is no mention about thesale price and the period within which it should be completed andthere is no default clause. Further, Ex.A.3 shows that it hasbeen issued by the first defendant/partnership firm signed by itspartner the second defendant. In this connection, it is usefulto refer to Ex.A.1 notice dated 3.9.1986. After referring to thealleged agreement, it is stated therein that the second defendantagreed to execute the sale deed after getting the sale deed fromK.N.Shanmugham on 11.2.1980, but he has not cared to execute asale deed in favour of the plaintiff. The plaintiff has stated inEx.A.1 that he was ready and willing to perform his part of thecontract by paying the balance amount and get the sale deed. Theplaintiff had called upon the second defendant to receive thebalance sale price and to execute the sale deed within threedays. In Ex.A.1 the description of the property is alsomentioned. 14. The learned counsel for the appellant submits that thisnotice is addressed to the first defendant firm. But, I amunable to agree with this submission, since the notice isaddressed to Thiru.SV.T.Sivaraman, Son of SV.ThirunavukkarasuChettiar, Partner, Bharat Rubber Company, No.105, N.S.R.Road,Coimbatore-641 011. It would clearly show that the notice hasbeen addressed to Sivaraman in his individual capacity and he hasbeen described as the partner of Bharat Company. If the noticewas addressed to the firm, then it would have been addressed tothe firm namely, M/s. Bharat Company represented by its partner.In the description of the property, the property is described asan extent of 45 cents with right of way. In the notice also, theprice agreed for the purchase of the property has not beenmentioned. No time limit has been mentioned. If really therewas a concluded contract between the plaintiff and the firstdefendant, all these details would have been stated atleast inthe notice. The specific case of the plaintiff in the plaint isthat the first defendant entered into an agreement to purchase https://hcservices.ecourts.gov.in/hcservices/ the suit schedule property from K.N.Shanmugham, in the year 1979and thereafter, the first defendant represented by the seconddefendant agreed to sell the suit property to the plaintiff. Itis his further case that it has been agreed between the partiesthat the defendants shall sell the property for a sum ofRs.30,001/- to the plaintiff. He has further stated that thesale should be effected after the first defendant purchased theproperty from the aforesaid Kannappan @ Shanmugham as per theagreement. So, the averments will clearly show that the plaintiffwants to enforce the sale agreement said to have been enteredinto by him with the first defendant in respect of the propertyto be purchased by the first defendant from the said Kannappan @Shanmugham. But, a perusal of the description of the property inthe schedule will show that the plaintiff is seeking a directionfor specific performance, in respect of an extent of 45 cents inSurvey No.101/1 Kavundampalaym Village, Coimbatore Taluk, whichhas not been purchased by the first defendant, but purchased bythe second defendant. 15. The above said aspects will show that not only Ex.A.3 isvague, the notices Ex.A.1 and A.2, but also the plaint avermentsare vague. The plaintiff himself was not clear as to in respectof what property he was seeking relief. The agreement is saidto have been entered into with the first defendant and suit hasbeen filed seeking a decree as against the defendants, but therelief is sought for in respect of property owned by the seconddefendant but not the first defendant. The above said factclearly shows that the plaintiff has not established anyconcluded contract between the plaintiff and the defendants.16. Section 29 of the Indian Contract Act 1872 reads asfollows: Agreements void for uncertainty"Agreements, the meaning of which is notcertain, or capable of being made certain, arevoid."If the contents of Ex.A.3 are considered in the light of theaforesaid Provision of law it is clear that there was noconcluded contract between the parties. Ex.A.3 is not in respectof any identifiable property, and no identifiable property isagreed to be sold for any agreed price. There is also no timefixed for performance of the contract. 17. The trial Court has considered the evidence of DW.1 andEx.A.3. DW.1 has admitted that he gave Ex.A.3 on behalf of thefirst defendant firm and though it is mentioned in Ex.A.3 thatthe sale deed should be completed after sub division D.W.1 hasstated that there was no talk about sub division. P.W.1 is alsounable to give the present value of the suit property.Considering the vagueness of Ex.A.3 and the non-mention of theprice and extent of property and other details in the notice, the https://hcservices.ecourts.gov.in/hcservices/ trial Court has held that there was no concluded contract betweenthe plaintiff and the defendants.18. The counsel for the appellant invited my attention tothe deposition of DW.1 wherein he stated as follows: @rg; otp&d; bra;J fpuak; ngrp bra;aDk; vd;wmh;j;jj;jpy; vGjpf; je;jJ rg; otp&d; bra;J fpuak;ngrDk; vd xg;ge;jk;/@ This will show that the parties agreed to enter into an agreementof sale after effecting sub division of the property. But thereis no evidence to show that there was any sub division afterpurchase by the defendants and subsequent to that there was anyagreement to purchase the property. There is no evidence to knowthat there was any concluded contract between the plaintiff andthe defendants. 19. In view of the aforesaid reasons, I do not find anythingwrong with the conclusion arrived at by the trial Court. Thereasons given by the trial Court are based on the oral anddocumentary evidence on record and I do not find any reason tointerfere with the same. The judgment and decree of the trialcourt is confirmed and accordingly the appeal is dismissed. Nocosts.sgl Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Principal Subordinate JudgeCoimbatore ( with records)2. The Record Keeper, VR SectionHigh Court, Madras.+ one cc to Mr. AR. NIXER, Advocate sr no . 2130gm(co)nm924.02.2006)A.S.No.155 of 1992