Madras High Court
S.P. Palaniyappan vs S.Ganesan on 17 December, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE: 17.12.2021
CORAM
THE HON'BLE MRS.JUSTICE V. BHAVANI SUBBAROYAN
S.A.(MD) No.301 of 2021
S.P. Palaniyappan ...Appellant
vs.
S.Ganesan ...Respondent
Prayer: Second Appeal filed under Section 100 of CPC against the
Judgment and Decree dated 25.02.2020 in A.S. No.35 of 2017 on the
file of the learned Principal District Judge, Sivagangai confirming the
the judgment and decree in O.S. No.149 of 2012dated 31.07.2017 on
the file of the learned Subordinate Judge, Sivagangai.
For Appellant : Mr.P.Ganapathi Subramanian
JUDGMENT
Challenging the concurrent findings of the courts below in
dismissing the suit for specific performance, the appellant has
approached this court by way of the present Second Appeal.
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2. For the sake of convenience the parties herein are referred to
in the same rank, as they were arrayed in the suit.
3.The case of the plaintiff, as per the averments made in the
plaint, in short, is as follows :
(i) The suit schedule property belonged to the defendant. The
plaintiff agreed to purchase the land of the defendant which is a suit
scheduled property for a sale consideration of Rs.1,50,000/- and paid
a sum of Rs.1,00,000/- as advance to the defendant. The defendant
agreed to execute the sale deed on receipt of balance sale
consideration. A registered sale agreement was entered into between
the parties on 14.06.2010. Even though, the plaintiff was ready and
willing to perform his part of contract, despite his repeated demands,
the defendant had not come forward to perform his part of contract.
The plaintiff issued legal notices on 13.06.2012 and 24.08.2012, but
the defendant had not replied for the same. Hence, the plaintiff filed
the suit for specific performance.
(ii) The defendant had filed a written statement denying all the
averments made in the plaint. The defendant admitted that he
receivedd Rs.1,00,000/-from the plaintiff, but he availed the same as
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loan. The plaintiff insisted to execute sale agreement as security, and
hence, he had executed the suit sale agreement. The loan amount
was repaid by the defendant in the presence of one Ramasundaram
and Somaramanathan Chettiyar. Though the defendant had requested
to cancellation of sale agreement, the plaintiff has not come forward
to close the same, but was postponing the same. Having the matter
pending the plaintiff filed the suit. Even after filing the suit the
defendant approached the plaintiff and inquired about the same. The
plaintiff informed that it was filed by mistake and therefore, the
defendant did not proceed further.
4. On the above pleadings, the Trial Court had framed the
following issues for consideration:-
(i) Whether the suit sale agreement was intended to be acted
upon?
(ii) Whether the sale agreement was executed as security for
loan transaction?
(iii) Whether the plaintiff is entitled for the relief of specific
performance?
(iv) To what other reliefs the plaintiff is entitled to?
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5. During the trial, the plaintiff himself was examined as PW1
and one Periyakaruppan was examined as PW. 2 and five documents
were marked as Exs.A1 to A5 on the side of the plaintiff. The
defendant examined himself as DW1 and no document was marked on
the side of the defendant.
6. On analysis of the oral and documentary evidence, the Trial
Court had come to the conclusion that the sale agreement has been
executed as security for loan transaction as claimed by the defendant
and the plaintiff had not proved that the suit sale agreement is only a
sale agreement and the plaintiff is not ready and willing to perform his
part of contract from the date of sale agreement had dismissed the
suit.
7. Aggrieved by the Judgment and decree passed by the trial
Court, the plaintiff, as appellant, had filed an Appeal Suit in A.S. No.35
of 2017, on the file of the learned Principal District Judge, Sivagangai.
8.The first appellate Court, after hearing both sides and upon
reappraising the evidence available on record, had dismissed the
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appeal and confirmed the Judgment and Decree passed by the trial
Court.
9. Challenging the said concurrent Judgments and Decrees
passed by the Courts below, the present Second Appeal has been
preferred at the instance of the plaintiff, as appellant.
10.The learned counsel appearing for the plaintiff / appellant
would submit that when the execution of the sale agreement was
admitted by the defendant, the plaintiff is entitled for the relief of
specific performance. When the plaintiff is always ready and wiling to
perform his part of contract, the Court below ought not to have
dismissed the suit. The Courts below erred in dismissed the suit when
it disbelieved the defence put forth by the defendant that Ex.P1 was
executed for loan transaction and cannot be treated as agreement for
sale. Since the plaintiff proved his case as per law, he is entitle for the
relief and the Courts below ought to have decreed the suit.
11. The learned counsel appearing for the respondent/ defendant
would vehemently oppose the Second Appeal by contending that the
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well considered Judgments of the Courts below need not be interfered
with, as there is no question of law involved in this Second Appeal and
prayed for dismissal of the Second Appeal.
12. This Court paid its anxious consideration to the rival
submissions made and also carefully perused the materials placed on
record.
13. According to the plaintiff, originally, the suit schedule
property belonged to the defendant. The plaintiff agreed to purchase
the land of the defendant, which is a suit scheduled property for a sale
consideration of Rs.1,50,000/- and paid a sum of Rs.1,00,000/- as
advance to the defendant. The defendant agreed to execute the sale
deed on receipt of balance sale consideration. A registered sale
agreement was entered into between the parties on 14.06.2010. Even
though, the plaintiff was ready and willing to perform his part of
contract, despite his repeated demands, the defendant had not come
forward to perform his part of contract. Hence, the plaintiff issued legal
notices on 13.06.2012 and 24.08.2012, but the defendant had not
replied for the same.
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14. According to the defendant, though he admitted that he
received a sum of Rs.1,00,000/-from the plaintiff, but he availed the
same as loan. The plaintiff insisted to execute sale agreement as
security, and hence, he had executed the suit sale agreement. The
loan amount was repaid by the defendant in the presence of one
Ramasundaram and Somaramanathan Chettiyar. Though the defendant
had requested to cancellation of sale agreement, the plaintiff has not
come forward to close the same, but was postponing the same.
15. Ex.A1, dated 14.06.2010, is the suit sale agreement. A
perusal of Ex.A1 shows that the time for completion of sale transaction
is one month. Even assuming that the plaintiff was always ready and
willing to perform his part of contract, no material has been adduced
that he made efforts to get the sale deed executed from the date of
agreement ie., 14.06.2010 to 13.06.2012, when he issued Ex.A2, first
legal notice. The evidence of P.W.2 would show that P.W.2 had only
made a general statement that the plaintiff was ready, but the
defendant was not ready for execution of the sale deed. But, the
evidence of P.W.2 is silent whether he made any demand from the
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defendant to execute the sale deed or the plaintiff made any demand
to get the sale deed executed. Even the plaintiff did not adduce any
evidence that he was having sufficient amount in his hand from the
date of execution of Ex.A1, sale deed.
16.The plaintiff's case was rightly rejected by the Courts below,
and this Court finds no reason to interfere with the well reasoned
Judgments of the Courts below and also there is no question of law
much less substantial question of law involved in this Second Appeal
for consideration by this Court. Accordingly, the Second Appeal is
liable to be dismissed.
17. In fine, the Second Appeal is dismissed, confirming the
Judgment and Decree made in A.S. No.35 of 2017 on the file of the
learned Principal District Judge, Sivagangai, in confirming the the
Judgment and Decree in O.S. No.149 of 2012, on the file of the
learned Subordinate Judge, Sivagangai. No costs.
17.12.2021
Index: Yes/No.
Internet: Yes/No.
aav
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Note: In view of the present lock down owing to
COVID 19 pandemic, a web copy of the order
may be utilized for official purposes, but, ensuring
that the copy of the order that is presented is the
correct copy, shall be the responsibility of the
Advocate/litigant concerned.
To
1. The Principal District Judge, Sivagangai
2. The Subordinate Judge, Sivagangai
https://www.mhc.tn.gov.in/judis
V. BHAVANI SUBBAROYAN, J.
aav
S.A.(MD) No.301 of 2021
17.12.2021
https://www.mhc.tn.gov.in/judis
