Madras High Court
Shanmugam vs Madeswari on 2 December, 2021
S.A.No.793 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.GOVINDARAJ
S.A.No.793 of 2017
and C.M.P.No.19805 of 2017
Shanmugam ... Appellant
Vs.
1. Madeswari
2. Balamurugan ... Respondents
PRAYER: The Second Appeal filed under Section 100 of the Civil Procedure
Code against the judgment and decree of the II Additional District Court,
Kallakurichi, dated 17.08.2017 made in A.S.No.3 of 2016 confirming the
judgment and decree of the Sub Court, Kallakurichi, dated 11.12.2015 made in
O.S.No.43 of 2007.
For Appellant : Mr.S.Sounthar
For Respondents : Mr.P.Valliappan
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S.A.No.793 of 2017
JUDGMENT
Aggrieved over the concurrent findings of the Courts below, the
plaintiff has preferred the above Second Appeal.
2. The plaintiff filed a suit for specific performance. According to him,
he entered into a registered sale agreement with the defendant on 23.07.2004
for purchase of the suit property for sale consideration of Rs.1,50,000/- and
paid a sum of Rs.1,25,000/- on the date of agreement. It is agreed that the
balance amount of Rs.25,000/- shall be paid within one year from the date of
agreement, that is to say on or before 23.07.2005. The defendant was evading
the execution of the sale deed and therefore, the plaintiff issued a legal notice
dated 15.07.2005 as he was always ready and willing to perform his part of
contract, but, the defendant has evaded. Hence, the plaintiff filed a suit for
specific performance.
3. In the written statement, the defendant denied the averments made
in the plaint and contended that it is only a loan transaction.
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S.A.No.793 of 2017
4. The trial Court after framing appropriate issues, on the ground that
time of one year is granted for small balance of sale consideration and wrong
description of the property and sale consideration being unreasonably lesser
than the market value of the property and the time taken for filing the suit after
issuance of legal notice went against the plaintiff for exercising the discretion in
favour of him, had dismissed the suit holding it as a loan transaction. On
appeal, the First Appellate Court, after analysing of the evidence as well as the
excerpts of the judgment, confirmed the findings of the trial Court and
dismissed the appeal. Aggrieved over the same, the appellant preferred the
above Second Appeal.
5. Mr.S.Sounthar, learned counsel for the appellant would vehemently
contend that the judgment of the First Appellate Court does not qualify to be
called as a judgment because it does not discuss any of the factual aspects, does
not discuss the issue, and does not record any reason for confirming the
judgment of the trial Court. Therefore, on the face of it, the judgment has to be
set aside and the matter has to be remanded to the trial Court.
6. On the merits of the case, he would contend that the time fixed for
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S.A.No.793 of 2017
performance was one year and within time, he issued a legal notice vide Ex.A2
and called upon the defendant to come and execute the sale deed. In spite of
that, the defendant has evaded the performance of his part of the contract and
the plaintiff was always ready and willing. However, the trial Court without
considering his readiness and willingness and the small amount of balance of
consideration and evasion of the defendant to perform his part of contract, has
wrongly concluded against the plaintiff. Therefore, the decree and judgment of
the Courts below are liable to be set aside.
7. I have considered the submission.
8. On the face of it, it is noted that D.W.1 has categorically given
evidence by marking Ex.B4, which is the guideline value of the property at
Rs.3,81,440/-. It is also deposed that due to the formation of four lane road,
value of the property has jumped upto 60 lakhs. Therefore, there is no necessity
for them to sell the property worth more than Rs.3,81,440/- for a meager sum of
Rs.1,50,000/-. It is only a loan transaction. P.W.1 also would categorically
admit that before entering into an agreement, he has not visited the suit property
nor verified the encumbrances with regard to the property. He would also admit
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S.A.No.793 of 2017
that the existence of a house is wrongly mentioned. Further, he would admit
that he has not verified the guideline value of the property. The evidence of
P.W.2, who is a witness to the sale agreement does not support the case of the
plaintiff. He would depose that he was not aware of the contents of the
document, which was entered between the parties and the purpose for which it
was entered into.
9. Further, in respect of value of the property also, the evidence of
P.W1 is not convincing and he feigned ignorance of the value. P.W.3 would also
state that he was not aware of the negotiations as to how the property was
valued, what was the value of the land, value of the house, value of the well and
motors. He would simply say that there was negotiation for 1 ½ hours. This
evidence, on the side of the plaintiff, does not make out a clear case that there
was "consensus ad idem". On the other hand, the evidence on the side of the
defendant goes to show that it is a loan transaction.
10. Considering the facts and circumstances of the case, it can be
inferred that the plaintiff has failed to make out the clear case for exercising the
discretion in his favour. The Courts below have rightly arrived at a concurrent
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S.A.No.793 of 2017
conclusion on facts that the plaintiff is entitled to the relief he sought for. I do
not find any discrepancy in the concurrent finding. The Second Appeal does not
give rise to any question of law much less any substantial question of law for
admitting the same. Therefore, the Second Appeal is dismissed at the admission
stage itself. There shall be no order as to costs. Consequently, connected
miscellaneous petition is closed.
02.12.2021
asi
To
1. The II Additional District Court, Kallakurichi.
2. The Sub Court, Kallakurichi.
https://www.mhc.tn.gov.in/judis
S.A.No.793 of 2017
M. GOVINDARAJ, J.
asi
S.A.No.793 of 2017
and C.M.P.No.19805 of 2017
02.12.2021
https://www.mhc.tn.gov.in/judis
