A single judge bench of the High Court comprising of JUSTICE R. HEMALATHA dismissed a first appeal pertaining to a sale deed matter where it was unclear whether the plaintiff deceived the defendant or the defendant deceived the plaintiff.
The court held that the burden of proof for the contentions of the plaintiff lies on the plaintiff himself and instead of picking holes in the defence case, the plaintiff must substantiate and prove his own contentions.
Facts:
The 1st defendant was the absolute owner of the suit property admeasuring 2410 sq. ft. land with a thatched roof shed in Plot No. A-5, Venkateswara Nagar, Korattur Village, Ambattur Taluk, Tiruvallur District. The plaintiff was a friend of the husband of the 1st defendant. The husband (one Arunachalam) of the 1st defendant had approached the plaintiff for a hand loan of Rs.4,00,000/- for business purpose. The plaintiff had reportedly handed over the loan amount of Rs.4,00,000/- in cash to the 1st defendant and her husband on 12.06.1999. The original title deeds of the suit property were handed over to the plaintiff by the 1st defendant and her husband with an intention to create an equitable mortgage as a security for the hand loan of Rs.4,00,000/-. The 1st defendant and her husband did not repay the loan despite several reminders.
They were in severe financial difficulties and had offered the suit property for a consideration of Rs.7,00,000/- in lieu of the loan. This was reduced to writing in the form of a sale agreement on 03.04.2004 (Ex. A2). After adjusting the principal plus interest of Rs.6,40,000/- payable by the 1st defendant and her husband, the balance amount payable worked out to Rs.60,000/-. They left the place and were not traceable which resulted in non-execution of the sale deed.
Subsequently, the plaintiff sensing trouble had taken out the Encumbrance Certificate (Ex.A5) for the suit property on 01.12.2006 only to find that the suit property was already sold by the 1st defendant through her Power Agent, the 3rd defendant in favour of the 2nd defendant company by a sale deed dated 09.03.2006 (Ex.A4) registered as document No.881 of 2006 before Sub Registrar of Villivakkam The plaintiff who is holding the original title deeds as well as the sale agreement had expressed his willingness to complete the sale transaction by remitting the balance amount of Rs.60,000/- and therefore prayed for a direction to declare the sale deed dated 09.03.2006 as null and void and to recover the suit property and also for specific performance of contract after receiving the balance amount of sale consideration.
He has also prayed for a liquidated damages of Rs.3,00,000/- from the 1st defendant. The 1st defendant resisted the suit by contending that the original title deeds were taken by the plaintiff only for a patta transfer way back in 1995-96 and that they were misused by the plaintiff. The 1st defendant also denied having availed any loan from the plaintiff and that the suit is liable to be dismissed.
Observations of the Court:
At the outset one aspect is crystal clear and that the plaintiff is trying to pick holes in the defendants' case instead of trying to substantiate his contention. The learned counsel for the appellant/plaintiff would contend that the loan was given to the 1st defendant in cash and since they were friends the title deeds were taken by the plaintiff only as a security though no documents were executed at the time of disbursing the loan in 1999.
It was further contended that only in the year 2004 when the 1st defendant expressed her difficulty in liquidating the loan, the sale agreement was entered into. It was also pointed out that though the sale deed executed in favour of the 2nd defendant by the 1st defendant through her Power Agent mentions that the original title deeds were handed over to the 2nd defendant, the truth was otherwise and this itself showed the evil design of the 1st defendant and her husband.
Per contra the learned counsel for the 1st respondent would contend that the plaintiff had breached the faith reposed in him. She would contend that neither the 1st defendant nor her husband had ever borrowed from the plaintiff and that though she disputed her signature on the sale agreement the trial court had declined to go ahead with signature verification analysis and instead held that the execution of the sale agreement was even otherwise not proved by the plaintiff. Another contention was that had the sale agreement been genuine why there was no legal notice at some point of time calling the 1st defendant to complete the sale transaction as agreed upon.
The learned counsel for the 1st defendant also argued that there was no merit in the case of the plaintiff and the appeal also is liable to be dismissed. There are a few unanswered questions to the 1st defendant like why the original title deeds were handed over to the plaintiff when xerox copies were sufficient for patta transfer. Similarly, why the patta transfer was requested in 1999 for the suit property bought in 1988 and even if it is true why the VAO of Perambur was approached for a property not falling under his jurisdiction.
The date of stamp paper and the date of execution of agreement also arouse suspicion on the genuineness of the agreement. Regarding the contention that the first defendant and her husband had taken a hand loan of Rs.4,00,000/- on 12.06.1999, the same has not been substantiated by any valid documentary evidence except for a mention in the sale agreement dated 03.04.2004, which itself is under a cloud and therefore this contention also remains unsubstantiated by the plaintiff. The trial court has held that the signature of the 1st defendant tallies. But the very execution has not been satisfactorily proved.
The date of agreement is 03.04.2004 and why the plaintiff did not issue even a single legal notice to the 1st defendant is also equally perplexing. Moreover, the plaintiff did not show his readiness and willingness throughout the contract period and this suit was filed just one day prior to the expiry of limitation period.
Therefore, the plea of the specific performance fails. Thus, the entire sequence of events leaves one wondering as to who deceived whom. But technically and legally the plaintiff has to prove his case to the hilt and should not pick holes in the defendants' version of the facts. The plaintiff has failed miserably and adding to his woes is the fiasco of stamp paper bungling.
The trial court at the same time had not failed to point out the deficiencies in the version of the defendants but the plaintiff had not performed his duty of proving his case and therefore, the court did not find any reasons to interfere and disturb the verdict of the trial court. Thus the points No.1 to 3 were answered against the appellant.
Decision:
The first appeal was dismissed.
Case: P. Gnanasekaran vs. A. Swarnavalli and 2 others
Citation: A.S.No.433 of 2011 & M.P. No.1 of 2011
Coram: JUSTICE R. HEMALATHA
Pronounced on: 24.11.2022
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