SA.No.128/2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
SA.No.128/2022 & CMP.No.2683/2022
[Physical Hearing]
Gowri .. Appellant /
Plaintiff
Vs.
Jayamani .. Respondent /
Defendant
Prayer:- Second Appeal preferred under 100 of CPC against the judgment
and decree dated 17.06.2019 made in AS.No.15/2018 by the learned
Principal District Judge, Krishnagiri, in reversing the judgment and decree
dated 23.11.2016 made in OS.No.96/2014 by the learned Additional
Special Judge, Krishnagiri.
For Appellants : Mr.Ma.Gowthaman
https://www.mhc.tn.gov.in/judis 1
SA.No.128/2022
JUDGMENT
(1) The plaintiff in the suit in OS.No.96/2014 on the file of the learned Additional Special Judge, Krishnagiri is the appellant in the above Second Appeal.
(2) The appellant, as plaintiff filed the suit in OS.No.96/2014 for specific performance of an Agreement of Sale dated 18.07.2012 by receiving the balance of sale consideration, namely, Rs.5,000/-, and for other consequential reliefs.
(3) The case of the plaintiff in the plaint is that the suit property belongs to the defendant. On 18.07.2012, the plaintiff and defendant entered into a registered Agreement of Sale for a total sale consideration of Rs.1,05,000/-. The defendant received a sum of Rs.1,00,000/- as advance and the balance of Rs.5,000/- is payable within two years from the date of the said Agreement. The defendant also handed over the original Sale Deed [Title Deed] dated 11.04.2000 to the plaintiff. In pursuance of the Sale Agreement, even on 10.01.2013, the plaintiff expressed her readiness and willingness to perform her part of the Agreement and https://www.mhc.tn.gov.in/judis 2 SA.No.128/2022 called upon the defendant to execute the Sale Deed after receiving the balance of sale consideration. The plaintiff also issued a notice to the defendant on 24.06.2014 and thereafter, filed the suit. (4) The suit was contested by the defendant by filing a written statement mainly on the ground that the defendant approached the plaintiff for a hand loan of Rs.1,00,000/- for his urgent family expense during the first week of July 2012 and the plaintiff agreed to lend money on condition that the defendant should execute and register a Sale Agreement in favour of the plaintiff in respect of the suit property. Therefore, the case of the defendant is that the Agreement dated 18.07.2012 was not with an intention to sell the property, but as a security for the loan transaction. It is further stated by the defendant that the value of the suit property is not less than Rs.6 lakhs as on the date of the Agreement and therefore, the defendant would never agree to sell the property for a paltry sum of Rs.1,05,000/- as stated in the Agreement.
(5) Before the Trial Court, the plaintiff examined herself as PW1 and one Elavarasan as PW2. On the plaintiff's side, Exs.A1 to A4 were https://www.mhc.tn.gov.in/judis 3 SA.No.128/2022 marked. The defendant examined himself as DW1 and marked Exs.B1 and B2.
(6) The Trial Court framed only one issue as, whether the plaintiff is entitled to the relief of specific performance in respect of the suit property. Based on the admission of the defendant that he executed the suit Agreement and received a sum of Rs.1 lakh, the Trial Court came to the conclusion that the Agreement is proved. Since the suit Agreement was proved to be an Agreement of Sale, the contention of the defendant was rejected by the Trial Court and the suit was decreed as prayed for. As against the judgment and decree of the Trial Court, the defendant preferred an Appeal in AS.No.15/2018 before the learned Principal District Judge, Krishnagiri. (7) The Lower Appellate Court, after considering the evidence on both sides came to the conclusion that the Agreement was not intended for selling the property, but executed by the defendant as a security for a loan transaction. The Lower Appellate Court relied upon the evidence of PW2 who was examined by the plaintiff herself to prove the transaction. Since PW2 specifically admitted that the https://www.mhc.tn.gov.in/judis 4 SA.No.128/2022 plaintiff and her husband are doing money lending business and used to obtain Sale Agreement as a security for the loan transaction and further stated that the suit agreement was not intended to be acted as a Sale Agreement, but obtained by the plaintiff as a security for the loan transaction, the Lower Appellate Court reversed the judgment of the Trial Court after holding that the plaintiff is not entitled to the equitable relief of specific performance. The Lower Appellate Court also found that the value of the property is much more than the consideration shown in the Agreement and that the plaintiff has not offered an explanation for stipulating two years period in the Sale Agreement for completing the sale by paying the paltry sum of Rs.5000/-. After referring to several precedents of this Court in similar cases and the evidence of PW2, the Lower Appellate Court found that the plaintiff being a money lender, has not proved her case that the suit Agreement was executed with a clear intention to sell the suit property in favour of the plaintiff for a sum mentioned in the suit Agreement. Aggrieved by the judgment of the Lower Appellate Court reversing the https://www.mhc.tn.gov.in/judis 5 SA.No.128/2022 judgment of the Trial Court, the above Second Appeal is preferred by the plaintiff.
(8) In the Memorandum of Grounds, the appellant has raised the following substantial questions of law:-
[1] Whether the appellant herein is entitled to the relief of specific performance in respect of the suit property in the suit?
[2] To what relief the plaintiff is entitled? (9) Though the questions of law are not properly framed, the learned counsel for the appellant relying upon the evidence of DW1, submitted that the suit Agreement is candidly admitted by the defendant himself in the course of evidence and that the finding of the Lower Appellate Court describing the transaction as a security for loan transaction is contrary to evidence. The learned counsel then submitted that the evidence of PW2-Elavarasan cannot be taken in the present case, especially when PW2 has spoken something which is contrary to facts and it is open to the plaintiff to let in evidence contradicting the version of PW2. Referring to Section 73 of the Indian Evidence Act, the learned counsel made a https://www.mhc.tn.gov.in/judis 6 SA.No.128/2022 submission that the contract is between the plaintiff and the defendant and PW2 was examined only as a witness who has attested the document. When PW2 was examined only to prove the execution of the Sale Agreement under Ex.A1, the Court need not look into his evidence with regard to the character or nature of transaction as he is not competent to speak about the same. When the transaction between the plaintiff and defendant as a genuine Sale Agreement is established by the plaintiff, the Lower Appellate Court ought not to have reversed the well considered judgment of the Trial Court only on the ground that the plaintiff's side witness has spoken otherwise about the Sale Agreement. (10) This Court has considered the arguments of the learned counsel for the appellant in the light of the pleadings and evidence. (11) Firstly, the terms of the Agreement itself raises a doubt as to the genuineness of the Sale Agreement. The plaintiff and defendant have signed the Agreement and there is no dispute about the execution of the Sale Agreement. However, the plaintiff has paid a sum of Rs.1 lakh out of total consideration of Rs.1.05 lakhs on the https://www.mhc.tn.gov.in/judis 7 SA.No.128/2022 date of Agreement. However, two years period was stipulated in the Agreement for paying the balance. From the whole pleadings and evidence, this Court is unable to find any explanation for stipulating a long time of two years to pay the balance of Rs.5000/- which is less than 5% of the total sale consideration. (12) The learned counsel for the appellant submitted that there was some encumbrance at the time when the Agreement was executed and therefore, two years period was stipulated to enable the defendant to get the encumbrance cleared. This submission is contrary to the admitted facts. Even according to the plaintiff, it is seen that on the date of agreement, the title Deed was handed over to the plaintiff. It is further stated by the plaintiff that she did not know with whom the document was pledged by the defendant. It is further stated that the document was taken from one Rani by paying some money and handed over to the plaintiff. However, the plaintiff was unable to say as to how much money was paid to the said Rani. It is further admitted that the plaintiff did not accompany the defendant and she did not know how much money https://www.mhc.tn.gov.in/judis 8 SA.No.128/2022 was paid and how the document was obtained and Agreement was prepared within a short time. When the document of title was handed over to plaintiff on the date of Agreement, the case of appellant's counsel before this Court that there was encumbrance cannot be countenanced particularly when there is no pleading. (13) The evidence of the plaintiff's witness, namely, PW2, the attestor to the document-Ex.A1 is relevant and hence, it is extracted below:-
''thjpapd; fzth; bgah; uhkrhkp/ bfsup uhkrhkp Mfpnahh; epyj;jpd; bgaupy;
mlkhdk; itj;J Cupy; cs;sth;fSf;F
fld; bfhLg;ghh;fs; vd;why; rupjhd;/
bfhLj;jpUf;fpwhh;fs;/ b$akzp vd;gthplk;
epyj;jpd; bgaupy; mlkhdk; itj;J gzk;
bfhLj;jhh;fs; vd;why; rhpjhd;/
bkhj;jkhf xU yl;rk; U:gha; fld;
bfhLj;jhh;fs; vd;why; rupjhd;/ me;j xU
yl;rk; U:gha;ff
; hd mf;upbkz;l;
vGjpf;bfhz;lhh;fs;/ vf;!;gpl; V/2tpy; cs;s rhl;rpf; ifbaGj;jpy; ,uz;lhtJ vd;DilaJ jhd;/ vd;dplk; fhl;lg;gLk;
vf;!;gpl; V/2tpy; fpua mf;upbkz;l;
vd;whYk;. b$akzp thjpaplk; th';fg;gll;
flDf;F cupa fpua mf;upbkz;l; vd;why;
rupjhd;/ me;j mf;upbkz;l; epyj;ij
tpw;gjw;fhf Vw;gLj;jg;gl;lJ my;y
vd;whYk; gpujpthjp thjpaplk; th';fpa
flDf;fhf brf;a{upl;o ghJfhg;g[ Mtzk;
vd;why; rhpjhd;/''
(14) From the proof affidavit, it is seen that PW2 was examined not only
https://www.mhc.tn.gov.in/judis 9
SA.No.128/2022
to prove the signature but also to prove the actual transaction between the plaintiff and defendant. PW2 has also stated that he was present at the time of execution of the Agreement. In such circumstances, the evidence of PW2 assumes more importance and the plaintiff has never come forward to explain as to how PW2 had spoken against the case of the plaintiff. When a witness speaks contrary to the case of the plaintiff, it is open to the plaintiff to cross-examine him/her by treating the witness as a hostile witness. However, no effort was taken by the plaintiff to prove her case that the said witness had lied before Court. Therefore, this Court cannot discard the evidence of PW2 who was examined by the plaintiff herself.
(15) The Lower Appellate Court relied upon the evidence of PW2 to hold that the suit Agreement was not intended to be acted upon as an Agreement of Sale, but was executed at the compulsion of the plaintiff at the time of advancing the loan to the defendant. The findings of the Lower Appellate Court is supported by evidence and this Court is unable to find any other evidence to disbelieve the https://www.mhc.tn.gov.in/judis 10 SA.No.128/2022 statement of PW2 or to contradict his version. Hence, this Court finds no substance in any of the substantial questions of law framed or raised by the learned counsel for the appellant during the course of argument.
(16) Since the receipt of a sum of Rs.1 lakh from the appellant / plaintiff is not disputed, the learned counsel for the appellant requested this Court that liberty may be given to the appellant/plaintiff to file a suit for recovery of the said sum.
(17) Considering the admitted facts, this Court is of the view that such liberty can be given to the appellant / plaintiff. However, this Court does not express any opinion on the merits of such claim after this length of time.
(18) With the above observations, the Second Appeal stands dismissed.
Consequently, connected miscellaneous petition is closed.
01.03.2022 AP Internet : Yes To https://www.mhc.tn.gov.in/judis 11 SA.No.128/2022
1.The Principal District Judge Krishnagiri.
2.The Additional Special Judge Krishnagiri.
3.The Section Officer VR Section, High Court Chennai.
https://www.mhc.tn.gov.in/judis 12 SA.No.128/2022 S.S.SUNDAR, J., AP SA.No.128/2022 01.03.2022 https://www.mhc.tn.gov.in/judis 13