Selvaraju vs Veerasamy
2021 Latest Caselaw 14499 Mad

                                                                                      S.A.No.255 of 2017

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    Dated : 20.07.2021

                                                         CORAM

                                      THE HONOURABLE MR.JUSTICE S.S.SUNDAR

                                                   S.A.No. 255 of 2017


                     Selvaraju                                                  ...   Appellant
                                                          - Vs -


                     Veerasamy                                                  ... Respondent


                     Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,

                     against the Judgment and Decree passed in A.S.No.9 of 2015 dated 30.11.2016

                     on the file of the Principal District and Sessions Court, Thiruvarur reversing the

                     Judgment and Decree dated 22.12.2014 in O.S.No.50 of 2013 on the file of the

                     Court of Subordinate Judge, Thiruvarur.



                               For Appellant         : Mr.K.Sukumaran

                               For Respondent        : Mr.B.Ramamurthy



                     1/19



https://www.mhc.tn.gov.in/judis/
                                                                                       S.A.No.255 of 2017


                                                         JUDGMENT

The plaintiff in the suit in O.S.No.50 of 2013 on the file of Subordinate

Court, Thiruvarur, is the appellant in this Second Appeal. The respondent in

this appeal is the defendant in the said suit. The appellant filed the said suit for

recovery of a sum of Rs.2,11,408/- with subsequent interest.

2. The case of the plaintiff as per the plaint is that the defendant had

earlier purchased the properties of the plaintiff's mother N.Padmavathi Ammal

in the year 1995 in various survey numbers ad measuring 565 kulies for a sum

of Rs.64,975/- and that he is in possession of the properties. It is the case of

the plaintiff that the sale had not been registered and the mother of the plaintiff

also expired. It is pleaded by the plaintiff that on 03.05.2010, the defendant

entered into an agreement of sale with the plaintiff agreeing to sell the entire

property to the plaintiff for a sum of Rs.5,65,000/- and received an advance of

Rs.1,01,000/- on 03.05.2010 i.e., the date of agreement and that a further sum

of Rs.1,00,000/- was paid on 17.05.2010. The plaintiff further stated that the

defendant did not come forward to get the sale registered through other legal

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heirs of the deceased Padmavathi Ammal. Since the defendant did not take

steps to transfer the properties in his name and the plaintiff could not wait any

further, it is stated by the plaintiff that he demanded the amount paid as

advance through the Advocate's notice dated 18.02.2013 and that the defendant

gave a reply with false allegations. With the above case, the plaintiff filed the

suit for recovery of a sum of Rs.2,01,000/- with interest at 18% per annum.

3. The suit was contested by the respondent by filing a detailed written

statement. The document dated 03.05.2010 was specifically denied in the

respondent's written statement. The payment of any amount as pleaded by the

plaintiff was also specifically denied in the written statement. The defendant

also specifically denied his signature in the document. As a matter of fact, the

defendant stated that he is prepared to send the document for expert's opinion

to prove that the signature found in the document is not the signature of the

defendant. In the written statement, the motive for filing the suit is given in

Para 5. A money transaction by which the defendant received a sum of

Rs.1,00,000/- by putting up his signature in blank papers is admitted.

However, the defendant pleaded discharge of the loan and stated further that

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the blank papers had not been handed over to the defendant under the pretext

that they were not traceable.

4. Before the trial Court, the plaintiff examined himself as P.W.1 and

two other witnesses were examined. The plaintiff marked Exs.A1 to A4. On

the side of the respondent, no document was marked but the defendant

examined himself as D.W.1.

5. The Trial Court framed an issue, whether the defendant is liable to

repay the earnest money received under the sale agreement with subsequent

interest at the rate of 18% per annum ?

6. The Trial Court came to the conclusion that the execution of the

document Ex.A1 styled as sale agreement dated 03.05.2010, receipt of a sum of

Rs.1,01,000/- and a further sum of Rs.1,00,000/- are proved. The suit was,

therefore, decreed as prayed for. The respondent/defendant preferred an appeal

before the learned Principal District Judge, Tiruvarur in A.S.No.9 of 2015.

The Appellate Court however reversed the judgment and decree of the trial

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Court and dismissed the suit in toto. Aggrieved by the judgment and decree of

lower appellate Court, this Second Appeal is preferred by the plaintiff.

7. This Second Appeal was admitted on the following substantial

question of law.

Whether or not the nomenclature given in the Ex.A1 will make any

difference when the contents of the Ex.A.1 clearly establish the requirement of

agreement of sale ?

8. The learned counsel for the appellant/plaintiff, after relying upon the

documents and evidence, referred to the findings of the trial Court. It is to be

seen that the lower Appellate Court has given a specific finding that the

document under Ex.A1 cannot be taken as a sale agreement and the recitals in

the said document do not appear to be genuine. The lower Appellate Court

entertained a doubt about the genuineness of the document under Ex.A1.

Ultimately, the lower Appellate Court found that the signature found in the

document is not proved to be the signature of the defendant and that the

document under Ex.A1 was not duly proved in the manner which is required in

law. The lower Appellate Court found that stamp papers used for Ex.A1 are

not consecutive and therefore, the document is suspicious.

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9. Having regard to the specific finding of the lower Appellate Court the

learned counsel for the appellant submitted that the appellant may be given an

opportunity to prove the signature of the defendant in the document under

Ex.A1 by remitting the matter. The learned counsel also submitted that the

transaction though was not fully admitted by the defendant, the defendant has

in the course of cross examination and in his reply notice has admitted the case

pleaded by the plaintiff to some extent and that the lower Appellate Court has

ignored the contents of reply notice and the evidence of defendant in the cross

examination which resulted in the wrong conclusion by the lower Appellate

Court.

10. The learned counsel for the appellant submitted that whether the

document Ex.A1 is proved as an agreement of sale or otherwise, the lower

Appellate Court ought to have seen that the document Ex.A1 could be relied

upon by the Court below to grant a decree for recovery of money. The learned

counsel also submitted that the lower Appellate Court has dismissed the suit by

erroneously interpreting the documents filed by the plaintiff. It is submitted

that the findings of the lower Appellate Court are based on presumption and

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conjectures. The learned counsel for the appellant relied upon a judgment of

Hon'ble Supreme Court in the case of Thiruvengadam Pillai Vs.

Navaneethammal and others reported in (2008) 4 SCC 530, wherein, it is held

as follows.

...........12. The Stamp Rules in many States provide that when a

person wants to purchase stamp papers of a specified value and a

single stamp paper of such value is not available, the stamp vendor

can supply appropriate number of stamp papers required to make up

the specified value; and that when more than one stamp paper is

issued in regard to a single transaction, the stamp vendor is required

to give consecutive numbers. In some States, the rules further require

an endorsement by the stamp vendor on the stamp paper certifying

that a single sheet of required value was not available and therefore

more than one sheet (specifying the number of sheets) have been

issued to make up the requisite stamp value. But the Indian Stamp

Rules, 1925 applicable to Tamil Nadu, do not contain any provision

that the stamp papers of required value should be purchased together

from the same vendor with consecutive serial numbers. The Rules

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merely provide that where two or more sheets of paper on which

stamps are engraved or embossed are used to make up the amount of

duty chargeable in respect of any instrument, a portion of such

instrument shall be written on each sheet so used. No other Rule was

brought to our notice which required use of consecutively numbered

stamp papers in the State of Tamil Nadu.

13. The Stamp Act is a fiscal enactment intended to secure revenue

for the State. In the absence of any Rule requiring consecutively

numbered stamp papers purchased on the same day, being used for

an instrument which is not intended to be registered, a document

cannot be termed as invalid merely because it is written on two stamp

papers purchased by the same person on different dates. Even

assuming that use of such stamp papers is an irregularity, the court

can only deem the document to be not properly stamped, but cannot,

only on that ground, hold the document to be invalid. Even if an

agreement is not executed on requisite stamp paper, it is admissible

in evidence on payment of duty and penalty under section 35 or 37 of

the Indian Stamp Act, 1899. If an agreement executed on a plain

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paper could be admitted in evidence by paying duty and penalty,

there is no reason why an agreement executed on two stamp papers,

even assuming that they were defective, cannot be accepted on

payment of duty and penalty. But admissibility of a document into

evidence and proof of genuineness of such document are different

issues.

11. Though the learned counsel appearing for the appellant relied upon

the above judgment, probably, to advance his argument against the findings of

the lower Appellate Court on the genuineness of the document Ex.A1, this

Court is of the considered view that the lower Court ought not to have held that

the document is invalid, as the stamp papers do not contain consecutive serial

numbers and they were purchased on different dates from different stamp

vendors. When the question arises for consideration as to the genuineness of

the transaction under a particular document, the Court may look into the

minute details of the document including the stamp papers to find out to what

extent the document is vulnerable or to comprehend whether the document is

surrounded by suspicious circumstances. Therefore, having regard to the facts

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in the present case, this Court is not inclined to decide the genuineness of the

document or the case pleaded by the defendant as projected by the counsel by

referring to the serial numbers or the endorsement made in the stamp papers.

12. The learned counsel for the appellant then relied upon a judgment of

learned Single Judge of this Court in the case of P.Stanley Buck Vs.

D.Govindaraj reported in (2009) 7 MLJ 908. In a matter relating to recovery

of money on the basis of advocate's notice, the learned Single Judge of this

Court after finding that it is for the plaintiff to take steps to ascertain the

genuineness of the disputed signature by sending documents to the hand

writing experts, remitted the matter to the trial Court for fresh consideration by

giving an opportunity to the appellant to call for an expert opinion to compare

the signature, so that the lower Appellate Court can once again decide as to the

genuineness of the document.

13. Relying upon the judgment, learned counsel for the appellant

canvassed that this Court may also give one more opportunity to the

appellant/plaintiff to prove the signature of the defendant in the document

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Ex.A1 by comparing the admitted signature of the defendant. He also

requested this Court to direct the respondent/defendant to furnish

contemporary documents containing the signature of the defendant himself. It

is to be noted that the signature in the document that may be furnished by the

defendant should also be to the satisfaction of the plaintiff. In other words, the

signature of the defendant also has to be admitted by the plaintiff himself

before sending for expert's opinion.

14. The learned counsel appearing for the respondent on the other hand

made his submission in the following lines :

The evidence of plaintiff's witnesses to prove the transaction under

Ex.A1 is not consistent and that there are several discrepancies and

contradictions. The evidences of P.W.2 and P.W.3 are not corroborative. The

findings of the lower Appellate Court are perfectly in order and that the

document under Ex.A1 does not contain the admitted signature of the

defendant and that remanding the matter to lower Court will cause immense

hardship to the defendant, who is more than 90 years old.

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15. The learned counsel for the respondent drew the attention of this

Court to the deposition of witnesses as well as the document under Exs.A1 and

A2 and submitted that the transaction, as pleaded by the plaintiff in Ex.A1,

cannot be believed, as there are several aspects, which are unnatural, and that

the lower Appellate Court has rightly held that the document Ex.A1 as such is

neither proved nor can be considered as a bona fide sale agreement. The

learned counsel for the respondent made his further submission relying upon

Section 100 of CPC as to the scope of interference by this Court while hearing

a Second Appeal.

16. This Court considered the pleadings and the evidence adduced by the

parties coupled with the documents and the findings of the Courts below. The

suit for recovery of money is based on the document Ex.A-1, which is styled as

''Uruthumozhi Oppanda Patram''. It is admitted that the property originally

belonged to the plaintiff's mother N.Padmavathi Ammal. Though the

agreement between the plaintiff's mother and the defendant, dated 27.03.1995,

is admitted, it is also admitted that the defendant did not get a full-fledged sale

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deed from the plaintiff's mother, pursuant to the said agreement. As the

defendant did not get title to the property by getting a deed of conveyance, the

agreement under Ex.A-1 appears to be unnatural. The suit agreement under

Ex.A-1 is recited as if the plaintiff has agreed to purchase the property from the

defendant for a sum of Rs.5,65,000/-. In the said document, it is also mentioned

that a previous agreement of sale between the defendant and the plaintiff's

mother, dated 27.03.1995, is cancelled. It is further recited therein that the

defendant has no right or lien in respect of the property pursuant to the

agreement. The recital of the agreement in Ex.A-1 is extracted below for

convenience :-

2010 Mk; Mz;L nk khjk; 03 Mk; njjp jpUthUPh; khtl;lk;. Flthry; jhYf;fh. Mk;ikag;gd; fpuhkk;. fjt[ vz; 3-120 y; trpf;Fk; ehuhazrhkp eha[L mth;fs; Fkhuh; N.bry;tuhIp mth;fSf;F nkw;go khtl;lk;. jhYf;fh. mk;ikag;gd; fpuhkk;. ghk;ghf;if fjt[ 7-64y; trpf;Fk; bgUkhs; ehlhh; Fkhuh; P.tPuhrhkp ehlhh; Mfpa ehd; vGjpf; bfhLf;Fk; cWjp bkhHp xg;ge;j gj;jpuk; vd;dbtdpy;.

ehd; j';fsJ jhahh; jpUkjp/ N.gj;khtjp mk;khs; mth;fSf;Fr; brhe;jkhd fPHf ; z;l epyj;ij brd;w 1995 Mk; Mz;L khh;r; khjk; 27 Mk; njjp FHp xd;Wf;F. U:gha; 115- – tPjk; Mff; Tljy; 565 FHpf;F U:gha; 64.975- – (mWgj;J ehd;fhapwj;J bjhs;shapuj;J vGgj;ije;J) kl;Lk;/ vd;

                                   brhe;j     rk;ghj;jpaj;jpd;      K:yk;    ,uz;L      jtizfshf
                                   bfhLj;Jtpl;L       epyj;ij        vd;trk;     bghrprd;       vLj;J
                                   Mz;lDgtpj;J       te;Js;nsd;/       ,Jehs;tiu      ehd;    rhrdk;
                                   bra;Jbfhs;stpy;iy/       jw;nghJ       vdJ     FLk;g      brytpd;

fhuzkhf j';fs; jhahhplk; th';fpa epyj;ij tpw;gid bra;a epidj;J j';fs; jhahh; ,we;Jtpl;lgoahy; j';fis

https://www.mhc.tn.gov.in/judis/ S.A.No.255 of 2017

mDfpanghJ jh';fns mij fpuak; ngrp th';fpf;

bfhs;tjhf rk;kjpj;J FHp xd;Wf;F U:gha; 1000- – tPjk; mff;TLjy; FHp 565 FHpf;F U:gha; 5.65.000- – (U:gha; Ie;J byl;rj;J mWgj;ije;jhapuk;) kl;Lk; ngrp ,d;iwa njjpapy; U:gha; 1.01.000- – ( xUyl;rj;J Mapuk;) Kd; bjhifahf ehd; bgw;Wf;bfhz;L kPjKs;s U:gha; 4.64.000- – (ehd;F yl;rj;J mWgj;ije;jhapuk;) kl;Lk; K:d;W khj fhyf;bfLt[f;F jh';fs;

                                   bfhLg;gjhf       xg;g[fb
                                                          ; fhz;ljd;     nghpy;   ehd;    kdg;g{h;tkhf
                                   rk;kjpj;J     ,e;j       cWjpbkhHp     xg;ge;j    gj;jpuk;   vGjpf;
                                   bfhLj;Js;nsd;/

,jd;K:yk; ehd; j';fs; jhahhplk; 27/03/1995 md;W bra;Jf;bfhz;l fpuarhrd vf;hpbkz;l; ,uj;jhfpwJ vd;gij bjhptpj;Jf;bfhs;fpnwd;/ ,e;j epyj;ij bghWj;jtiu ve;jtpj fyDk;. Fy';fKk; ,y;iy vd cWjpgl TWfpnwd;/ mt;thW VnjDk; fhQqk; gl;rj;jpy; vd; ,ju brhj;Jf;fs; K:yk; vdJ brhe;j brytpy; ehd; Kd;dpd;W fyid jPh;j;J itf;fpnwd;/ ,dp ,e;j brhj;ijg; bghWj;jtiu vdf;nfh. vd;

                                   thhpRfSf;nfh         vt;tpj     gpd;     chpika[k;      ,y;iybad
                                   cWjpTWfpnwd;/ ,dp ,e;j brhj;Jf;fhd murh';f thp
                                   tha;jhf;fis       jh';fns     brYj;jp      Mz;lDgtpj;J      bfhs;s
                                   ntz;oaJ/         ,jw;Fz;lhd          K:yg;gjpu';fis        j';fsplk;
                                   bfhLj;Js;nsd;/

17. It is to be noted that the agreement under Ex.A-1, even if it is to be

taken as such, cannot imply an agreement for sale of the property in favour of

the plaintiff. The recitals of Ex.A-1 also indicate that the defendant has

voluntarily relinquished all his right under the previous agreement he had with

the plaintiff's mother. The very nature of transaction under Ex.A-1 is clouded

with suspicion and the entire transaction appears to be one, which cannot be

comprehended to be a real sale agreement in the context in which it was made.

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18. It is admitted that the plaintiff has not paid the balance of sale

consideration, which he had agreed to under Ex.A-1. However, the plaintiff

gets a declaration from the defendant that he has no right or claim whatsoever

with regard to the property after the agreement. It is not mentioned under the

document Ex.A-1 that the defendant has to execute a sale deed or release deed

in favour of the plaintiff to complete the transaction. Under Ex.A-1, for the

consideration paid and promised, the defendant has agreed to relinquish all his

rights under the previous agreement he had with the plaintiff's mother. There

was no further obligation for the defendant to execute any sale. The contents of

the document do not support the plea of the plaintiff. When the defendant has

done or performed his part of the contract even at the time of entering into the

agreement under Ex.A-1, the plaintiff has not come forward, as promised, to

pay the balance of consideration, as agreed by him under Ex.A-1. If the

document Ex.A-1 has to be construed in its real spirit and understanding, it is

the plaintiff, who has to pay a further sum of Rs.3,62,000/- to the defendant.

However, the suit has been laid by the plaintiff for recovery of a sum, which

was said to have been paid to the defendant under Ex.A-1. In other words,

under Ex.A-1, the plaintiff has undertaken to pay the balance of consideration

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of Rs.4,62,000/- for cancellation of earlier agreement of sale, dated 27.03.1995,

and to get a declaration from the defendant to the effect that the defendant or

his legal heirs will not have any right or lien over the property, which is the

subject matter of agreement.

19. It is unfortunate that the plaintiff has come forward with the suit for

recovery of money, by treating the agreement Ex.A-1 as an agreement of sale.

The plaintiff himself admitted in the plaint that his mother did not execute any

sale deed in favour of the defendant pursuant to the original agreement, dated

27.03.1995. Therefore, the document Ex.A-1 is only to obtain an undertaking

and a declaration from the defendant to relinquish his right under the previous

agreement for a consideration promised by the plaintiff. In fact, it is only the

defendant, who has cause of action, to file the suit for recovery of the balance

of consideration as promised to him under Ex.A-1 and the said document does

not give rise to a cause of action for the plaintiff to file the suit for recovery of

money. Hence, the very suit on the basis of Ex.A-1 is not sustainable.

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20. The lower appellate Court has rightly held that the document Ex.A-1

is not an agreement of sale and the recitals in the said document are not

believable. Though the lower appellate Court has not gone into the real nature

of transaction, the plaintiff is not entitled to file a suit for recovery of money

based on Ex.A-1, which does not give rise to a cause of action to the plaintiff to

file the suit.

21. Learned counsel for the appellant/plaintiff though wanted this Court

to remit the matter to the Court below so as to give an opportunity to the

plaintiff to prove the document Ex.A-1, the said request cannot be acceded to,

having regard to the very recitals of the document Ex.A-1, relied upon by the

plaintiff. Even if the agreement under Ex.A-1 is true, the plaintiff cannot sue

the defendant for recovery of money. Similarly, the plaintiff, having failed to

fulfil his obligation, cannot enforce it in a Court of law.

22. As pointed out earlier, the document Ex.A-1 is nothing but a

transaction, by which the plaintiff wanted the defendant to relinquish his right

in the property of the plaintiff's mother and to get a declaration from him that

he has no right or lien over the property for a promise that the plaintiff would

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pay the entire consideration as per the agreement. The plaintiff, who failed to

fulfil his promise under Ex.A-1, cannot pray for recovery of money. The suit is,

therefore, liable to be dismissed for want of cause of action and merit. The

question of law does not arise for consideration in this Second Appeal in view

of the findings of this Court on the true interpretation of the document Ex.A-1

and the rights and obligations of the parties to Ex.A-1.

23. Second Appeal is, accordingly, dismissed. No costs.

20.07.2021 Index:Yes Internet:Yes Speaking Order

dh/dixit

To

1.Principal District Court, Thiruvarur.

2.Sub-Court, Thiruvarur.

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S.S.SUNDAR, J.

dh/dixit

S.A.No.255 of 2017

20.07.2021

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