T. Radha (Deceased) 1. T. Senthilnathan vs SUBIKSHA HOUSING(P)LTD
- Court
- Madras High Court
OSA No. 94 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10-11-2026
CORAM
THE HON'BLE MR JUSTICE N. SATHISH KUMAR
AND
THE HON'BLE MR.JUSTICE GK.MUTHUKUMAAR
OSA No. 94 of 2024 and CMP.Nos.11421 & 11707 of 2024
CNR: {HCMA010393982024}
1. T. Radha (Deceased) 1. T. Senthilnathan
2. T.Ramamoorthy
3. Janaki
4. T.Mohan
..Appellant(s)
Vs
1. Subiksha Housing(p)ltd
Rep.by its Managing Director K. Balaji, Having
office at D.No.3/2, Lambeth Avenue, Off. Bawa
Road, Abhiramapuram, Chennai 18.
2. Sathyavathi
3. T.Krishnakumar
4. T.Premkumar
5. T. Karpagam
..Respondent(s)
Original Side Appeal filed under Order XXXVI Rule 1 of OS Rules read with
Clause 15 of Letters Patent to set aside the Judgement and decree made in
CS.No. 570/2013 dated 03.01.2023 and amended dated 12.01.2023 on the file
of this Court.
For Appellant(s): Mr.D.Veerasekharan
For Respondent(s): Mr. K.V. Babu for R1
Mr. E.C. Ramesh for R2 & R3
JUDGMENT
(Order of the Court was made by N.Sathish Kumar J.)
Challenging the decree and judgment of the learned Single Judge granting
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specific performance in respect of 5/6 share in the suit property, the appellants
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have filed the present appeal.
2. The parties herein are arrayed to as per their own ranking before the
trial Court.
3. The defendants agreed to sell the property for a total sale consideration
of Rs.6,50,00,000/- and the agreement was executed on 11.11.2012. On the date
of agreement, a sum of Rs.50,000/- was paid to each of the defendants and
another sum of Rs.5,50,000/- was paid on 07.12.2012. Totally, the defendants
have received a sum of Rs.30,00,000/- as advance. The defendants 6 to 9 are the
legal heirs of one Thirugnanasambandam, another son of Tandavarayan who
was the original owner of the property. It is stipulated in the agreement that the
sale shall be completed within a period of three months from the date of
defendants vacating the tenants and handing over the premises. The defendants
also agreed they would convince the defendants 6 to 9 as parties to execute the
document. When the defendants have not complied with the obligations agreed
in the contract, the plaintiff has caused legal notice on 07.03.2013. The plaintiff
was always ready and willing to perform his part of contract. Since the
defendants have not come forward to execute the sale deed, the plaintiff has
filed the suit.
4. The fifth defendant filed written statement and it was adopted by
defendants 2, 3 and 4, wherein, the 5th defendant admits the sale agreement for
2 grounds and 55 sq. ft. for 6,50,00,000 and the receipt of 30,00,000 as ₹ ₹
advance by defendants 1 to 5. However, they state that there is no landlord-
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OSA No. 94 of 2024
tenant relationship or possession with defendants 2 to 5, compromise with
Thirugnanasambandam's family was not possible, and defendants 6 to 9 are
trying to swallow the property. Defendants 2 to 5 insist that the plaintiff register
the sale deed for their 5/6th share upon paying the balance, noting that the
plaintiff has delayed the process since 2012, and that Thirugnanasambandam
was incorrectly shown as a vendor since he passed away before the agreement
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was executed, rendering it void ab initio. Similarly, 6 defendant filed written
statement admitting that the suit property was allotted to her father-in-law, late
V.Thandavarayan, by the Co-operative Housing Board in 1962, but 80% of the
price was actually paid by her husband, late Thirugnanasambandam, from his
salary, with no financial contribution from defendants 1 to 5 or Thandavarayan.
Her husband secured a loan, paid the land cost, and constructed the ground and
first floors. Because neither her husband nor defendants 6 to 9 were parties to
the sale agreement, the plaintiff cannot enforce it against defendants 6 to 9,
making the suit unmaintainable against them.
5. Based on the above pleadings, the Trial Court framed the following
issues:-
i)Whether the plaintiff is ready and willing to pay the balance sale
consideration in terms of the agreement dated 11.11.2012?
ii)Whether the plaintiff is entitled to the relief of Specific Performance of
the agreement dated 11.11.2012?
iii)Whether the plaintiff is entitled for the relief of permanent injunction
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OSA No. 94 of 2024
as prayed for?
iv)Whether the plaintiff is entitled for the alternative relief of return of
sale consideration of Rs.30,00,000/~ together with interest @ 18% per annum
as sought for in the case of refusal of the main relief?
v)Whether suit unregistered sale agreement executed between the
plaintiff and defendants 1 to 5 without adding other co~owners of the suit
property defendants 6 to 9 is legally enforceful or not?
vi)Whether suit unregistered sale agreement entered between the plaintiff
and defendants 1 to 5 are would bind upon the defendants 6 to 9?
vii)To what other relief the plaintiff is entitled to?
6. P.W.1 was examined and Exs.P1 to P10 were marked. D.W.1 and
D.W.2 were examined and Exs.D1 to D12 were marked.
7. Based on the oral and documentary evidences, the learned Single Judge
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decreed the suit for enforcement of 5/6 share in the suit property. Challenging
the same, the present appeal is filed.
8. It is relevant to note that the execution was also levied in this matter. It
is not disputed by the appellants that the execution petition was levied and
through the execution petition, the property has been sold in favour of the
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respondent in respect of the 5/6 share and in respect of the remaining 1/6th
share, the appellants have already filed a suit in C.S.No.125 of 2024. These
facts are also not disputed at the time of hearing by the appellants’ counsel.
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9. The only contention raised by the learned counsel for the appellants is
that though the agreement was admitted and the plaintiff has established
readiness and willingness, the fact remains that the balance sale consideration
has not been deposited on the date of filing of suit, whereas, the remaining sale
consideration was deposited before the Court only after the decree has been
passed, hence, according to him, due to price escalation, the appellants are
entitled to more amount than the agreed amount. Furthermore, would submit
that if the amount had been deposited when the suit was filed, by way of interest
more amount would have been fetched, therefore, would submit that they are
entitled to price escalation.
10. The learned counsel for the first respondent/plaintiff submitted the
readiness and willingness has been clearly established from the very beginning
and the plaintiff has proved before the Court as to its capacity to mobilise the
funds. Under Section 16(c) of the Specific Relief Act, it is not mandatory on the
part of the plaintiff to deposit the amount or to tender, what is required is only
proof of readiness and willingness which has been shown by the plaintiff from
the very beginning, therefore, now the appellants cannot seek for enhancement
of money citing the price escalation.
11. Heard the learned counsel for the appellants and the learned counsel
for respondent No.1 and respondents 2 and 3 and perused the materials placed
on record.
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12. In light of the above, now the point that arise for consideration in this
appeal is mere non-deposit of the balance sale consideration at the time of filing
the suit would enable the appellants to claim more consideration than agreed in
the contract?
13. Though the suit had been contested disputing the enforcement of
contract, on perusal of the pleadings of the defendants, the execution of the
agreement, receipt of advance amount and readiness and willingness pleaded by
the plaintiff has not even seriously disputed by the defendants. Whereas, the
appellants have raised their defence alleging that the other sharers have taken
larger property; in other words, plea of readiness and willingness raised by the
plaintiff has not even disputed seriously.
14. Be that as it may, now the point that urged before us is only with
regard to the enhancement of consideration on the ground that remaining sale
consideration has not been deposited in the Court when the suit was filed. First
Explanation to Clause (c) of Section 16 of the Specific Relief Act makes it very
clear that where a contract involves the payment of money, it is not essential for
the plaintiff to actually tender to the defendant or to deposit in court any money
except when so directed by the court.
15. The only requirement of seeking relief of specific performance of the
plaintiff is to show that he was always ready and willing to perform the
contract. Once his obligation has been discharged by proper proof, mere non-
deposit of remaining sale consideration in the Court at the time of filing the suit
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will not enable the vendor to claim more money or compensation. Admittedly,
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the remaining sale consideration of 5/6 share had already been deposited by the
first respondent/decree holder to the credit of suit in CS.No.570 of 2013
immediately after obtaining certified copy as directed by the Court. Now, it is
not disputed that the execution is already levied and the sale is also executed by
the Court on 26.03.2024 and the decree holder has also filed a suit for partition
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claiming 5/6 share in C.S.No.125 of 2024 which is also noted disputed by the
appellants. Therefore, once the amount had already been deposited in the Court,
merely because the decree holder has carried out the directions of the Court and
deposited the remaining sale consideration after passing of decree, that cannot
be a ground to seek enhancement of compensation.
16. Considering the said aspect, at this stage, when we posed the question
to the learned counsel for the first respondent and the parties who are present
with regard to the payment of further amount, on instructions from the parties
present in the Court, the learned counsel for the first respondent submitted that
to give a quietus to the issue, they are willing to deposit Rs.1.25 crores to the
credit of suit in CS.No.570 of 2013 within a period of 30 days. It is also now
stated that in respect of sharing the shares of one of the sharers, who died during
the pendency of the suit, there is a dispute pending among the appellants and
other legal heirs in TOS.No.71 of 2025. Be that as it may, parties shall work out
their right in the pending TOS and the first respondent shall deposit the agreed
amount to the credit of suit in C.S.No.570 of 2013.
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17. On merits, the matter has not been canvassed and as indicated above,
the judgment debtors have also admitted the execution of agreement and
handing over of the original documents and further, they have not disputed the
readiness and willingness, therefore, we are of the view that the judgment of the
learned Single Judge does not require interference. At this stage, the learned
counsel for the appellants submitted that they may be permitted to withdraw
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5/6 share since the only issue is with regard to 1/6th share, therefore, liberty is
granted to the appellants to file necessary application for payment out in the
pending suit in CS.No.570 of 2013.
18. Accordingly, this original side appeal stands disposed of. No costs.
Consequently, connected miscellaneous petitions stand closed.
(N.S.K.,J.) (G.K.M.,J.)
10-11-2026
dhk
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OSA No. 94 of 2024
N.SATHISH KUMAR, J.
AND
GK.MUTHUKUMAAR, J.
dhk
OSA No. 94 of 2024
10-11-2026
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