9911796707
TMI Blog2006 (3) TMI 816X X X X Extracts X X X X X X X X Extracts X X X X ..... year 1995, both the parties entered into an agreement, an oral one. As per the agreement, the plaintiff should be-come entitled to 68% of the land for a consideration of the value of the construction to be put up in the remaining 32% of the land retained by the defendant. Though it was agreed orally and a draft agreement was prepared, the written agreement could not be entered into between the parties, since it fell within the mischief of Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978. It was also agreed and accepted between the parties that it can be reduced into writing, after it comes out of the clutches of the said enactment. All along the period, the plaintiff was taking all attempts to see the property coming out of the mischief of the Act, and there were communications addressed to the Government Finally, a Government Order was passed. Pursuant to the Government Order, the property, in question was actually outside the mischief of the Act, but not done so, which necessitated the plaintiff for filing a writ petition before this Court. By an order of this Court, the property was exempted. In February, 1999, the earlier agreement entered into in 1995, was confirmed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so a permanent injunction that the defendant should not interfere with the plaintiff's possession and enjoyment of those two sheds; and that now, the plaintiff has sought for specific performance on the basis of the agreement entered into between the parties in 1995, and subsequently affirmed in 1999. The learned Senior Counsel would further submit that without the agreement entered into between the parties in 1995, the plaintiff could not have got possession of the property and raised the two sheds also; that apart from that, the breach of the agreement, even according to the plaintiff, was the cause of action for the earlier suit; that if to be so, the cause of action was very well available for filing the present suit at that time itself, since it is exactly identical; that it was also very well available at the time of the filing of the earlier suit itself; but, the plaintiff has not chosen to ask for specific performance that time; and that asking for a relief in piecemeal that time and asking for a relief of specific performance this time cannot be allowed in law. Added further the learned Senior Counsel that in the instant case, at the time when the earlier suit was file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court in the writ petition, cannot in any way legalize the agreement, which was already void; that either the Government Order passed, or the amendment of the Act or any order of the Court cannot make an agreement already entered into between the parties, which is void, as one legal, and hence, the plaint has got to be rejected. In support of his contention, the learned senior counsel relied on the decision of the Full Bench of this Court reported in 1999 (3) LW 249 P. Gopirathnam v. Feerodous Estate (Pvt.) Ltd.. Pointing to the decision, the learned Senior Counsel would submit that once the agreement could not be entered into in view of the legal bar and when entered, was void, the same continued to be so, and hence, no relief could be granted on the basis of such agreement. 6. Countering the above contentions, the learned Senior Counsel for the respondent/ plaintiff would submit that the application has got to be dismissed as one meritless. According to the learned Senior Counsel, in the instant case, it is true that originally an agreement was entered into between the parties, an oral one, in the year 1995, and subsequently, it was confirmed in 1999. Now, it is not correct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the clutches of law; that apart from that, as understood between the parties, a writ petition was filed, and it was also allowed exempting the property, and thus, the suit for specific performance has been rightly brought forth, and hence, the contention put forth that the agreement originally was void and the instant suit cannot be filed on the strength of such agreement was to be rejected. 8. After careful consideration of the rival submissions made and scrutiny of the materials, this Court is of the considered opinion that it is a fit case where the plaint requires an order of rejection by this Court. 9. As could be seen from the averments in the plaint, both the parties entered into an oral agreement in 1995 in respect of the entire property consisting of a vast area of 21.71 acres of land in Velachery Road, and the defendant is the owner of the property. According to the plaintiff, he became entitled to 68% of the land for a consideration of the value of construction to be put up in the remaining 32% of the land retained by the defendant. Originally a suit was filed before the City Civil Court seeking for declaration in respect of the two sheds which were raised by the pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;s shed and when on the complaint of the plaintiff, the police intervened and warned the defendant's men not to take law into their hands and on 19-5-2003 when a complaint of theft was given by the plaintiff against the defendant to the Inspector of Police, Guindy and De-die-in diem as the defendants are bent upon perpetrating illegal, unlawful and violent activities against the plaintiff to remove all their materials from the sheds by force and also to destroy the sheds of the plaintiff. The cause of action has arisen at Chennai where the defendant company has its Factory and Office premises. C.S. No. 517 of 2003: The cause of action for this suit arose at Chennai, within the jurisdiction of the Hon'ble Court where the suit property is situated and where the Branch office of the defendant Company is situated. The cause of action arose in 1995, when the first development agreement was entered into orally and reflected in the development agreement of 1995 subject to the suit property being released from the mischief of Tamil Nadu Urban Land Ceiling Act and subsequently the plaintiff from 1995 till 1999 continued to be ready and willing to act as per the said agreement a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out that even at the time of the filing of the first suit, there were exchange of notices and police complaints. The parties were before the police station, and thus, it would be quite clear that there was strained relationship between the parties at that time itself. The act of the parties even before the filing of the suit, would clearly reveal that there was a breach of the terms in the agreement as understood between the parties then itself. Even the first plaint seeking declaration of title in respect of two sheds, would speak about the breach of the contract by the defendant. Not only the averments but also the conduct of the parties that time would clearly speak that there was a breach of the agreement. It would be quite evident that the plaintiff instead of filing a suit for specific performance on the available cause of action, has filed a suit seeking a declaratory relief in respect of the two sheds situated on the defendant's land. At this juncture, this Court is of the considered opinion that the judgment of the Apex Court relied on by the defendant's side and reported in AIR 2005 SC 2897 N.V. Srinivasa Murthy v. Mariyamma, has got application to the present fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ording to the plaint averments, an agreement was entered into in the year 1995, and the parties did not execute the agreement, because the property contained an extent of 21.71 acres, and it was within the mischief of Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 and it was so continuously, and thus, the agreement was not executed, and all those attempts were made by the plaintiff to take the property out of the clutches of law. According to the plaintiff, in 1999, the agreement earlier entered into in 1995, was confirmed, and pursuant to the same, he raised two sheds, and though the property was to be exempted from the same by a G.O. by the State Government, it was not exempted so, which necessitated the parties to file a writ petition before this Court, and it was ordered exempting the same. Now, the question, would be whether any subsequent amendment or any enactment taking the property out of the clutches of law or an order of Court exempting the property from the clutches of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, would legalize an agreement which is void at the inception, to which the Court has to answer in the negative. 15. In the instant ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is also an argument without any merit. It is true that under the Act, no person is entitled to hold more than the ceiling limits as prescribed under Section 4 of the Act. Argument is that purchaser is not holding any land on the basis of an agreement unless he gets some title. It still continues only with vendor. Therefore, there is no prohibition in enforcement of contract. Section 6 prohibits transfer by a person holding land in excess of ceiling limits. The matter will have to be considered taking into consideration the rights of seller and if that person holds more land than prescribed under Section 5, such transfer shall be deemed to be null and void. The prohibition under Section 6 is for transferring the land and consequently declares that any violation of law shall be deemed to be null and void. Section 6 contemplate both proposed transfer and completed transfer. An agreement of sale is also affected by Section 6 of the Act. 17. The judgment relied on by the plaintiff's side and (2003) 2 LW 314 N. Shanmugham v. Rathinam, in the opinion of the Court, has no application to the present facts of the case, since it was made under the Urban Land (Ceiling and Regulation) Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
