Madras High Court
A.G.Shanmugam vs P.Meenakshi on 17 June, 2021
A.S.No.85 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.06.2021
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
A.S.No.85 of 2013
A.G.Shanmugam ... Appellant
Vs.
1.P.Meenakshi
2.P.Loganathan
3.Hemalatha
4.Nagalakshmi
5.Uma Maheswari
6.V.M.Chandrasekaran ... Respondents
PRAYER: Appeal Suit filed under Section 96 of CPC to set aside the
Judgment and Decree dated 24.11.2012 made in O.S.No.131 of 2011 on
the file of the Principal District Court, Namakkal.
For Appellant : Mr.T.Dhanyakumar
For R1, R3 to R6 : No appearance
For R2 : Mrs.J.Prithivi
JUDGMENT
The Appeal suit is filed against the Judgment and Decree
dated 24.11.2012 made in O.S.No.131 of 2011 on the file of the Principal
District Court, Namakkal.
2. For the sake of convenience, the parties are referred to
as per their ranking in the trial Court.
3. The brief case of the plaintiff is that the suit properties
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A.S.No.85 of 2013
originally belonged one Palaniappan and it was an ancestral property.
After demise of Palaniappan, the first defendant, along with the second
defendant, executed a power of attorney dated 06.11.2000 in favour of
the sixth defendant to manage and administer and to sell the suit
property. The Power of Attorney entered into an agreement for sale on
02.08.2003 with the plaintiff for a total sale consideration of
Rs.12,00,000/- in respect of the suit property. On the date of agreement,
the plaintiff paid a sum of Rs.2,00,000/- as advance and the time fixed to
perform part of the contract was on or before 01.08.2009. When the
plaintiff was ready and willing to pay the balance sale consideration, the
defendant failed to execute the sale deed. Further, the case of the
plaintiff is that the fifth defendant agreed to purchase the property for
Rs.2,00,000/- and registered the sale agreement and also paid a sum of
Rs.50,000/-. At the time of agreement of sale, there was three Pronote
liabilities in favour of one Mani dated 24.12.2004 for a sum of
Rs.2,75,000/- and for a sum of Rs.1,95,000/- dated 15.10.2004 and
another Pronote in favour of the same person for a sum of Rs.1,00,000/-
dated 12.11.2002. All the amounts were paid by the plaintiff on
10.11.2006 and the balance to be paid was only a sum of Rs.1,36,000/-
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A.S.No.85 of 2013
After clearance of all the debts, plaintiff demanded to execute the sale
deed. By way of all Pronotes and discharge of debts, the plaintiff paid a
sum of Rs.8,20,500/-. Even then, the defendants failed to perform their
part of the contract. Hence, the suit.
4. On receipt of summons, the defendants failed to appear
before the Court below and as such the defendants were set exparte
5. On the side of the plaintiff, he examined P.W.1 and marked
Ex.A1 to Ex.A10. On perusal of the exhibits and also the evidence of
P.W.1 and the submission made by the learned counsel, the Court below
dismissed the suit. Aggrieved by the same, the present Appeal Suit.
6. The learned counsel for the appellant would submit that all
the defendants were set ex-parte and even then, the Trial Court without
considering the Ex.A1 to Ex.A10, simply dismissed the suit, stating that
the plaintiff failed to prove his case. Further, he submitted that P.W.1
deposed that the defendants 1 and 2, along with one Palaniappan, entered
into an agreement for sale for the total consideration of Rs.12,00,000/-
and on the date of agreement, the plaintiff paid a sum of Rs.2,00,000/- as
advance to the sixth defendant being a Power of Attorney for all the
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A.S.No.85 of 2013
defendants. Ex.A4 is the Pronote in favour of one Mani. Ex.A5 is the
Pronote in favour of one Velusamy. Ex.A6 is the Pronote in favour of
again P.Mani and Ex.A7 is the Pronote in favour one Tamilarasu. It is in
evidence, totally, the plaintiff discharged debts to the tune of
Rs.8,20,500/-. Even then, the Court below, without considering the
above evidence on record, dismissed the suit. He further submitted that
the sixth defendant being the Power of Attorney received a sum of
Rs.2,00,000/- as advance on behalf of other defendants and as such, the
plaintiff is entitled for a decree at least for a sum of Rs.2,00,000/- as
against the sixth defendant as a personal decree.
7. Per contra, the learned counsel for the defendants submitted
that though the defendants failed to file the written statement before the
Court below, it is the duty of the plaintiff to prove his case. Admittedly,
the plaintiff failed to prove the execution of agreement for sale, payment
of part of the sale consideration and the pronotes as alleged by the
plaintiff are not proved. That apart, for execution of agreement, a time
was fixed i.e., six years. Further according to the defendants that never
executed the power of attorney in favour of the sixth defendant. The
plaintiff also failed to prove the pronote, which were marked as Ex.A4 to
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A.S.No.85 of 2013
Ex.A7 through any witness. Therefore, the Court below rightly dismissed
the suit and prayed for dismissal of the suit.
8. Heard, the learned counsel for the petitioners and the
learned counsel appearing for second respondent.
9. The plaintiff filed a suit for specific performance on the
strength of the agreement for sale dated 02.08.2003, which is marked as
Ex.A1. According to the plaintiff, apart from the payment of advance of
Rs.2,00,000/- on the date of alleged agreement for sale dated 02.08.2003,
the plaintiff claimed the debts to the earlier agreement holder in respect
of the very same suit property and also stated that the pronote debts
which were marked as Ex.A4 to Ex.A7 to various persons. When that
being so, the plaintiff failed to examine any of the person who were
settled by the plaintiff's before the Trial Court to prove the same. That
apart, the plaintiff failed to prove that the suit property belongs to the
defendants (Ex.A9 – Adangal Register). Thought the plaintiff averred
that a sum of Rs.2,00,000/- was paid as advance to the power of attorney
i.e., the sixth defendant, he failed to examine any of the witness and
failed to produce any materials to prove the same. Therefore, the
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A.S.No.85 of 2013
plaintiff failed to prove the agreement for sale, payment of the part of
sale consideration and also the suit property belonged to the defendants.
That apart, on perusal of Ex.A1, the alleged agreement for sale revealed
that it was executed on 02.08.2003 and the time fixed for part
performance was six years. Therefore, the very agreement for sale itself
was not proved by the plaintiff and the Trial Court rightly dismissed the
suit. Though the defendants were set exparte, this Court finds no
illegality or infirmity in the order passed by the Court below.
10. In the result, the Appeal Suit is dismissed. No costs.
17.06.2021
Index : Yes / No
Internet : Yes / No
Speaking order /Non-speaking order
lpp
To
The Principal District Judge,
Namakkal.
G.K.ILANTHIRAIYAN, J.
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A.S.No.85 of 2013
lpp
A.S.No.85 of 2013
17.06.2021
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