Madras High Court
Ramesh vs Dhurkaiyan on 2 February, 2021
S.A.No.740 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.02.2021
CORAM:
The Hon'ble Mr.Justice KRISHNAN RAMASAMY
S.A.No.740 of 2017
and
C.M.P.No.18627 of 2017
Ramesh ..Appellant
Vs
1.Dhurkaiyan
2.Valliyammal ..Respondents
Prayer : Second Appeal filed under Section 100 of the Civil Procedure
Code against the judgment and decree made in A.S.No.2 of 2012 dated
20.12.2016 on the file of the III Additional District Judge, Kallakurichi by
confirming the judgment and decree made in O.S.No.107 of 2008 dated
28.04.2011 on the file of Sub-Judge, Kallakurichi.
For Appellant : Mr.R.Balasubramanian
For Respondents : Mr.P.Valliappan
JUDGMENT
The present second appeal has been filed against the judgment and
decree passed in A.S.No.2 of 2012, dated 20.12.2016, on the file of the III
Additional District Judge, Kallakurichi by confirming the judgment and
decree made in O.S.No.107 of 2008, dated 28.04.2011, on the file of Sub-
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S.A.No.740 of 2017
Judge, Kallakurichi.
2. The learned counsel appearing on behalf of the appellant would
submit that a sale agreement was entered by the appellant with the first
respondent on 19.10.2006 to purchase the property. The total sale
consideration was fixed to a sum of Rs.2,00,000/-, out of the said sale
consideration, a sum of Rs.1,70,000/- was paid to the respondent at the time
of entering into the sale agreement.
3.Further, the learned counsel submits that both the Courts below has
wrongly concluded the agreement is only as a security for the loan, whereas
the present transaction is only to sell the first respondent's property to the
appellant. The appellant visited the respondent place and entered into
agreement. However, both the Courts below have concurrently came to the
conclusion that this sale agreement was only as a security for the loan.
4. The contention of the learned counsel for the appellant is that if it
was a security for the loan transaction, there is no necessity for the appellant
to visit the respondent's house and enter into the sale agreement. Since it was
a sale agreement, the appellant visited the respondent place and this aspect
was not considered, without considering this aspect, both the Courts below
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S.A.No.740 of 2017
have wrongly come to the conclusion that it is only as a security for the loan
transaction.
5. Challenging both the judgment and decree of both the Courts
below, he filed the present Second Appeal by suggesting the following
substantial questions of law:
A) Whether or not the Courts below have committed
error in not appreciating the oral and documentary evidence
property?
B) Whether or not the judgment of the Courts below are
based on surmises and conjectures, warranting interference
under Section 100 of CPC?
C) Whether or not the findings of the Courts below are
based on misreading of evidence or so perverse that no
reasonable person of ordinary prudence could take the said
view, warranting interference U/sec.100 CPC?
D) Whether or not the findings of the Court below are
arbitrary, unreasonable and perverse one, warranting
interference U/Sec.100 C.P.C.?
E) Whether or not the Lower Appellate Court has
committed error, in ignoring to advert to Ex.A3, additional
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S.A.No.740 of 2017
evidence, while disposing of the Appeal?
F) Whether or not the Lower Appellate Court have
committed error in mechanically affirming the findings of the
Trial Court without due and proper application of mind?
G) Whether or not the findings of the Lower Appellate
Court are vitiated by non-consideration of the relevant
evidence and by an essentially error only approach to the
subject matter, warranting interference U/Sec.100 C.P.C?
H) Whether or not the findings of the Lower Appellate
Court stand vitiated on wrong test and on the basis of
assumption and conjectures, resulting therein an element of
perversity, 2005 (2) SCC 500?
I) Whether or not the findings of fact recorded by the
Lower Appellate Court stood vitiated on account of non-
consideration of additional evidence of a vital nature, 2010
(13) SCC 216?
J) Whether or not the Lower Appellate Court is right in
not framing the points for determination in the First Appeal as
contemplated under order 42 Rule 31 of CPC?
K) Whether or not the Lower Appellate Court erred in
not following the Principles settled in the cases Reported in
2017 (1) Madras Weekly Notes (Civil) 103 and 2017 (1)
Madras Weekly Notes (Civil) 513, Wherein, it was held that all
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S.A.No.740 of 2017
points would be framed for adjudication of the claim in the
First Appeal?
l) Whether or not the findings of the Lower Appellate
Court is vitiated for not considering the provisions of Sec.91
and 92 of the Evidence Act while construing the oral evidence
of the Defendants which is contrary to Ex.A-1 Agreement of
Sale duly registered?
M) In the light of the law settled by the Hon'ble
Supreme Court of India Reported in 2015(2) Current Tamil
Nadu Cases 178 Courts, Whether or not the Learned Judge is
right in holding that the Defendant is entitled to lead evidence
contrary to Ex.A-1 Agreement of Sale duly registered?
N) Whether or not the Lower Appellate Court is right in
holding that the Appellant/Plaintiff was not ready and willing
to perform his part of the contract, when admittedly, the suit
has been filed within the period fixed for performance of the
contract under Ex.A-1 Agreement of Sale?
By proposing the above substantial questions of law, he insisted the
Court to admit the appeal.
6. Upon the hearing of the arguments of the learned counsel for the
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S.A.No.740 of 2017
appellant and on perusal of the materials available on record and the
judgments of both the Courts below, it appears that the defendant entered
into a sale of agreement through Ex.A1 on 19.10.2006, in terms of the sale
agreement a sum of Rs.1,70,000/- was paid to the appellant as per the
records. It was acknowledged in the receipt that a sum of Rs.1,70,000/- and
total sale consideration was fixed and a sum of Rs.2,00,000/-. Both the
Courts below came to the conclusion that it was executed as a security for
the loan and the relevant portion of the judgment of the Appellate Court, at
this juncture, would be appropriate to extract hereunder:
“11. For the sake of convenience, the parties hereinafter are
referred to as per their rankings in the trial Court. Ex.A1 is the
registered agreement of sale entered into between the plaintiff and
defendant. In Ex.A1, the suit schedule property, the extent of the
property has been stated as 3.03 acres along with 7.5 HP motor,
which is the case of the defendant that, the agreement of sale dated
19.10.2006 has been executed towards security which the defendant
has obtained Rs.1,70,000/- as hand loan from the plaintiff for
deepening the Well and Ex.A1 was never intended to be agreement of
sale. Ex.A2 is the certified copy of sale deed dated 23.01.2006 in and
by which the defendant has sold 1.42 acres of the suit schedule
property to one Subramaniyan. By way of Ex.B1, the ancestral
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S.A.No.740 of 2017
properties of the defendant's family were sold on 02.03.2000 for a
sum of Rs.2,25,000/- and out of the sale proceeds of Ex.B1, Ex.B2
(i.e) the suit schedule property in S.No.155/4 have been purchased
admeasuring 3.47 acres were purchased. Ex.B3 is another sale deed
dated 30.10.2006 in and by which the defendant purchased another
1.00 acre in the suit schedule property in S.No.155/4. Hence, the
counsel for the defendant argued that, on the date of agreement of sale
(i.e) on 19.10.2006, the defendant did not even have right over the
entire 3.03 acres in the suit schedule property. But, only 2.03 acres in
the suit schedule property. Hence, the above facts would go to show
that, Ex.A1 is intended to be a security for the loan.
12. Moreover, on perusal of Ex.A2 which is the sale deed
executed by defendant to one Subramaniyan in and by which, he has
sold 1.42 acres in S.No. 155/4, the right to common cart-track has
been given. However, in Ex.A1, the said clause did not find place
and to probabilise the case of the defendant that, Ex.A1 is not
intended to be an agreement of sale. On perusal of Ex.A1 and Ex.B3,
both are registered on the same day (i.e) on 30.10.2006. As per
Ex.A1, agreement of sale, the defendant has agreed to sell 3.03 acres
of the suit schedule property for Rs. 2,00,000/- and has received a
sum of Rs. 1,70,000/-. As per Ex.B3, the defendant has purchased
another 1.00 acre in S.No. 155/4 on the same (i.e) on 30.10.2006.
Hence, this court is of the opinion that the argument of the defendant
counsel has force that no prudent man would enter into an agreement
of sale on the date of purchase of property in the same survey
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S.A.No.740 of 2017
number.
13. PW1 is the plaintiff and PW2 is the Attestor of Ex.A1.
PW2 has admitted that he is the relative of PW1. PW2 in his
evidence stated that, the said agreement is intended to be an
agreement of sale. On the other hand, DW2 is also one another
Attestor of Ex.A1 and he has stated that, the agreement is intended to
be towards security for loan of Rs. 1,70,000/-. Moreover, DW2 has
also stated that, since the defendant’s father is involved in religious
affairs and going on pilgrimage and also involved in Bajanai, the
defendant has been managed the family. This court believes the
evidence of DW2 since DW2 is an independent witness. The counsel
for the defendant argued that, the plaintiff is financially sound and he
has admitted the same in his cross-examination and there is no need
for the plaintiff to enter in to agreement of sale for Rs. 2,00,000/- and
pay a sum of Rs. 1,70,000/- and take time for two years to make the
balance payment of Rs. 30,000/- and hence the same would go to
show that the agreement of sale has been entered in to by the plaintiff
and the defendant only as a security towards the loan of Rs.
1,70,000/- obtained by the defendant. On perusal of the evidence of
PW1, PW1 has admitted that he is financially sound. When the
plaintiff himself has admitted that, he is financially sound and he has
paid a sum of Rs. 1,70,000/- on 19.10.2006 and he need not wait for
another two years to pay the balance amount of Rs. 30,000/- and this
circumstances also strengthen the case of the defendant that, Ex.A1 is
intended to be a security for the loan amount and since the plaintiff
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S.A.No.740 of 2017
has insisted the defendant to enter into an agreement of sale dated
19.10.2006. Moreover, non-mentioning of right to cart-track and
also a dilapidated house in the suit schedule property and also created
considerable doubt about Ex.A1. Hence, on perusal of Ex.A1 and
Ex.B3, this court is of the opinion that, Ex.A1 is not intended to be an
agreement of sale. The instance that Ex.A1 and Ex.B3 were executed
on the same day (i.e) Ex.A1 agreement of sale executed for 3.03 acres
in S.No. 155/4 and also Ex.B3 sale deed by which the defendant
purchased 1.00 acre in S.No. 155/4 would probabilise the defence put
forth by the defendant that Ex.A1 is not intended to be agreement of
sale. Though the defendant has stated that he has paid Rs. 42,000/-.
The learned counsel for the respondent has submitted a decision
reported in 2008(2) CTC 382 : P. Sampoornam and others v.
L.T.Somasundaram and others. Wherein it has been held by the
Hon’ble High Court, Madras that,
“The relief of Specific Performance is a
discretionary relief and even if a doubt arises whether it
is probable or possible that Agreement of Sale would
have been executed at all, discretionary relief shall not
be granted.”
The defendant, has put forward the probabilities that, the sale
agreement executed between the plaintiff and the defendant was not
intended to be an agreement of sale, but only as security for loan and
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S.A.No.740 of 2017
the documents put forth by the defendant and the evidence of the
defendant and along with the evidence of attesting witness DW2
would probabilise the case of the defendant. Hence, this court is of
the opinion that, the defendant has proved that, Ex.A1 has been
executed as security for loan and the trial court has rightly
disbelieved the case of the plaintiff and declined the relief of specific
performance and has granted alternative relief of repayment of Rs.
1,70,000/- with subsequent interest @ 12% p.a. Hence, this court is
of the opinion that the judgment of the trial court does not suffer from
any infirmities and the well considered and reasoned judgment of the
trial court need not be interfered.
7. On perusal of the judgment would show that the first Appellate
Court as well as the Trial Court came to the conclusion that it is a security to
the loan and further they have discussed about the receipt of a sum of
Rs.1,70,000/- as acknowledged in the sale agreement and the time limit
provided in the sale agreement for making the balance sale consideration of
a sum of Rs.30,000/-. The Courts below found that the plaintiff is having a
sound financial position and there is no necessity for taking two years of
time to pay the balance sale consideration of Rs.30,000/-. When the
appellant/plaintiff was able to arrange a sum of Rs.1,70,000/- at the time of
agreement, taking two years time, for making balance sale consideration of a
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S.A.No.740 of 2017
sum of Rs.30,000/- would show that this agreement was not made to
purchase the land but for the provision of security for granting the loan.
Further, the appellant has not shown any ready and willingness to make
balance amount of Rs.30,000/- over the period of two years.
8. In this regard, both the Trial Court and the Appellate Court has
examined thoroughly all the documentary evidences as well as the oral
evidences and after analyzing all the evidences, both the Courts below have
rendered a well reasoned judgment. As far as the sole contention raised by
the appellant before this Court with regard to the necessity of the appellant
who is the lender to visit the first respondent's place, is concerned, these all
are the matters regarding the facts of the case. The Courts below have
concurrently come to the conclusion, that is only for the provision of security
and not for purchasing the property. Therefore, this Court is also of the
view that merely by visiting the lender to the borrower place, ipso facto,
cannot be considered that the appellant visited only for the purpose of
entering into a sale agreement with the intention to purchase the property.
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S.A.No.740 of 2017
9. Therefore, in any angle, this Court is not able to accept the
contention of the learned counsel for the appellant and ultimately finds that
there is no substance in his contention and further this Court is also not able
to trace out any reasons to interfere with the judgment and decree passed by
the Courts below.
10. In view of the above, this Court does not find any substantial
question of law that arises for consideration as suggested by the appellant in
the memorandum of appeal and ultimately deserves for dismissal.
11. In the result, this second appeal stands dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
02.02.2021
Pns
Index:Yes/No
Internet: Yes
Speaking/Non speaking order
Krishnan Ramasamy, J.,
https://www.mhc.tn.gov.in/judis/
S.A.No.740 of 2017
Pns
S.A.No.740 of 2017
and
C.M.P.No.18627 of 2017
02.02.2021
https://www.mhc.tn.gov.in/judis/
