Madras High Court
Anandan vs Ramamoorthy on 30 June, 2021
S.A.No.262 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.06.2021
CORAM
THE HON'BLE MR. JUSTICE S.S.SUNDAR
S.A.No.262 of 2017
Anandan .. Appellant
Vs.
Ramamoorthy ... Respondent
Prayer: The Second Appeal is filed under Section 100 of the Code of Civil
Procedure, against the Judgment and Decree, dated 23.12.2014 passed in AS
No.1 of 2014 on the file of the learned I Additional District Judge, Salem
confirming the Judgment and Decree, dated 30.01.2013 passed in
O.S.No.123 of 2011 on the file of the learned I Additional Subordinate
Judge, Salem.
For Appellant : Mr.K.Govi Ganesan
For Respondent : T.S.Vijaya Raghavan
JUDGMENT
The plaintiff in O.S.No.123 of 2011 on the file of the Sub Court,
Salem, is the appellant herein.
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S.A.No.262 of 2017
2. The brief facts that are necessary for the disposal of the appeal, are
as follows:
The plaintiff filed the above suit for specific performance of an
agreement of Sale, dated 05.02.2010 and to direct the defendant to execute
the Sale Deed in favour of the plaintiff in terms of the Sale agreement. It is
the case of the plaintiff that himself and the respondent entered into a
registered sale agreement on 05.02.2010 in respect of sale of the suit
property for a sum of Rs.4,75,000/-. It is the further case of the
appellant/plaintiff that a sum of Rs.50,000/- was paid as advance and 11
months' time was fixed for performance of the contract as per the registered
sale agreement. Stating that the plaintiff was ready and willing to perform
his part of the contract and relying upon the 1st and 2nd legal notices issued
by the plaintiff to the defendant, the plaintiff filed the above suit for specific
performance. The appellant also pleaded that he is ready and willing to
perform his part of the contract as per the sale agreement.
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S.A.No.262 of 2017
3. The respondent/defendant filed a written statement stating that
there was no sale of property and that the agreement entered into between
the parties was to get a sum of Rs.50,000/- as a loan for the purpose of his
children's education.
4. It is the specific case of the defendant that the defendant
approached the plaintiff for getting the loan and that the sale agreement was
forcibly obtained from the defendant in connection with the sale agreement.
It is contended that the defendant never agreed to sell the property for the
sum of Rs.4,75,000/-. Referring to the value of the property at the time of
sale agreement as Rs.40,00,000/-, the respondent/defendant contended that
the plaintiff has fraudulently come forward with the suit for specific
performance.
5. The trial Court dismissed the suit, accepting the case of the
respondent/defendant that the sale agreement Ex.A1 is only a loan
transaction and that the plaintiff is not entitled to the discretionary relief of
specific performance.
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S.A.No.262 of 2017
6. Aggrieved by the Judgement and Decree of the trial Court, the
appellant/plaintiff preferred an appeal suit in A.S.No.1 of 2014 before the I
Additional District Judge, Salem. The lower appellate Court also fell in line
with the trial Court and found that the Sale agreement / Ex.A1 is surrounded
by suspicious circumstances and that the Sale agreement cannot be
considered to be a lawful and enforcible contract. The lower appellate
Court carefully considered the pleadings and evidence. Challenging the
findings of the Courts below, the appellant / plaintiff has preferred the
present Second Appeal.
7. It is to be noted that, both the Courts below have considered the
admission of PW1 to the effect that the defendant demanded only a sum of
Rs.50,000/- as loan. Relying upon the evidence of the plaintiff's witnesses,
it is held by the Courts below that the document, Ex.A1, though registered,
is a sham document and not executed as an agreement of sale. When it is
admitted that the defendant had approached the plaintiff only for a loan
transaction and that there was no explanation as to why the plaintiff did not
properly frame his plaint in tune with the admission, he has made as PW1.
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S.A.No.262 of 2017
8. The appellant herein has preferred the above second appeal by
raising the following substantial questions of law in the memorandum of
grounds:
(A) Whether the Courts below are correct in shifting the
burden on the plaintiff to prove Ex.A1, Agreement of Sale as
genuine, whereas the defendant failed to prove the same when
he has pleaded that it was obtained by Fraud and coercion and
more particularly, when it is a registered document?
(B) Whether the non-consideration of the oral evidence
of PW-1 in entirety, has resulted in miscarriage of justice?
(C) Whether the terms of the Registered Sale Agreement
can be varied just by oral evidence, without any documents?
(D) Whether the Courts below are correct in deciding
the adequacy of consideration of the Sale Agreement, when the
Explanation 1 of the Sec.20 of the Specific Relief Act
specifically bars it?
9. The learned counsel for the appellant/plaintiff submitted that, when
the respondent / defendant has not let in any evidence to prove his case that
the Sale Agreement / Ex.A1 was obtained by fraud and coercion, the Courts
below ought not to have held that the Sale Agreement is a loan transaction.
The learned counsel further submitted that the evidence of PW 1 as a whole,
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S.A.No.262 of 2017
ought to have been considered and that, there is a miscarriage of justice, as
the Court below had taken only the portion of evidence of PW1, which is
not in consonance with the plea raised by the defendant. The learned
counsel further submitted that the Sale agreement is a registered one and
therefore, the parties cannot be allowed to let in evidence contrary to the
terms of the document Ex.A1. The learned counsel also submitted that the
adequacy of consideration cannot be considered. The Courts below ought
not to have accepted the plea of the defendant that the value of the suit
property even on the date of the Sale agreement is Rs.40,00,000/-. Learned
counsel for the respondent referred to the findings of the Courts below and
submitted that this Court cannot interfere with the concurrent findings of the
Courts below.
10. Heard both sides and perused the materials available on record.
11. It is to be noted that the burden of proof of the sale agreement lies
only on the plaintiff. However, when the execution of the document Ex.A1
as Sale agreement is specifically disputed and that, it is pleaded that the
defendant approached the plaintiff only for a loan and he was forced to
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execute the sale agreement, the burden now shifts on the defendant to prove
that the transaction, as a whole, is not a Sale Agreement, but only a loan
transaction. To this extent, the learned counsel for the appellant is right.
However, the defendant is always permitted to take a stand which will
invalidate the transaction Ex.A1.
12. This Court and the Supreme Court had an occasion to deal with
the scope of Sections 91 and 92 of the Indian Evidence Act. Therefore, it is
always open to the defendant to set up a plea that the Sale Agreement was
never intended to be a sale transaction. But was obtained by
misrepresentation that it was intended to be a security for a loan transaction.
13. In this case, the defence set up by the defendant is that the
defendant approached the plaintiff only to advance a sum of Rs.50,000/- as
loan. It is surprised to note that the plaintiff himself has admitted in his
evidence that the person who introduced the defendant to the plaintiff, has
admitted that the defendant wanted a sum of Rs.50,000/- for the education
of his children. The admission of the plaintiff extracted by the Courts
below is extracted hereunder for better appreciation in this appeal:
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S.A.No.262 of 2017
“jhth brhj;J murh';f kjpg;gg[ ona U:/18 yl;rk; tUfpwJ
vd;W brhd;dhy; rupjhd;/ gpujpthjp ghy;gz;izapy; ntiy ghu;jJ
;
Xa;t[ bgw;wjhf brhd;dhu;/ gpujpthjpf;F xU kfs; ,uz;L kfd;fs;/
gpujpthjpapd; FHe;ijfs; goj;J bfhz;oUg;gjhf brhd;dhu;/
nfhndupgl;o rpdd
; k;kh ft[zl; u; kfd;jhd; uh$khzpf;fk;/ bgUkhs;
ft[zl; u; kfd; mz;zhkiy bjupahJ/ nghdtha;jhtpw;F
uh$khzpf;fk; vd;Dld; ePjpkd;wj;jpw;F te;jhu;/ uh$khzpf;fk; K:yk;
jhd; gpujpthjpia vdf;F bjupa[k;/ bgUkhs; ft[z;lu; kfd;
mz;zhkiyf;F ehd; bgupag;gh kfd; vd;why; rupay;y/ uh$khzpf;fk;
bgUkhs; kfd; mz;zhkiyf;F mf;fhs; kfd;/ ehd;
uh$khzpf;fj;jpwF
; khkd; Kiw. FHe;ijfspd; gog;g[ff; hf Ugha; 50
Mapuk; njitg;gLfpwJ vd;W uh$khzpf;fj;jplk; brhy;yp
mjw;fhfjhd; uh$khzpf;fk; jhd; miHj;J te;jhu; vd;W brhd;dhy;
rupjhd; ”
14. The learned counsel for the appellant/plaintiff tried to explain the
admission of the plaintiff that the Courts below ought to have considered
the entire oral evidence of PW1 before coming to the conclusion that Ex.A1
was executed only as a security for the loan.
15. The learned counsel for the appellant tried to explain that the
plaintiff never admitted that the Sale Agreement was obtained from the
defendant to secure a loan transaction. It is also submitted by the learned
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S.A.No.262 of 2017
counsel appearing for the appellant / plaintiff that, though the defendant
approached the plaintiff for a loan transaction, the plaintiff agreed to pay
money only if the defendant agreed to sell the property. From the grounds of
appeal raised by the appellant/plaintiff before the lower appellate Court, as
extracted in the Judgment of lower appellate Court, it is seen that the
counterpart of the appellant's counsel herein before the lower appellate
Court, had unfortunately, in the grounds, has not pleaded the case which is
in consonance with the statement of PW 1 or the explanation now offered
by the appellant's counsel in this second appeal. A sale transaction need not
be always a loan transaction. A Sale transaction will start with negotiation
and it may take sometime to be a concluded contract between the parties.
From the pleadings and evidence, this Court is unable to find anything
convincing to show that there was consensus or meeting of mind for a
contract of sale.
16. The plaintiff in this case has come forward with the sale
agreement for a sum of Rs.4,75,000/- after admitting that the defendant
came to him to get a sum of Rs.50,000/- as loan. In this context, the
defendant has also stated that the value of the property even at the time of
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S.A.No.262 of 2017
sale agreement, was 10 times the value shown in the sale agreement Ex.A1.
The case of plaintiff without proper explanation will be doubted by anyone.
It is pertinent to mention that the plaintiff himself admits that the
Government Valuation for the property is Rs.18 lakhs.
17. In the case on hand, both the Courts below have concurrently held
that the Sale agreement is not a genuine one and that the document Ex.A1
was executed only as a security for the loan transaction, by accepting the
case of defendant. The relief of specific performance is only discretionary
and in the present case, having regard to the admitted facts and
circumstances, this Court is unable to see any manifest error or irregularity
or illegality in the Judgments of both the Courts below.
18. As a result, this Court finds that the questions of law raised by the
appellant/plaintiff are not sustainable, having regard to the admitted facts
and admission of PW1. Accordingly, the Second Appeal fails and is
dismissed. However, there shall be no order as to cost.
30.06.2021
Index : Yes / No
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S.A.No.262 of 2017
Speaking order : Yes / No
vum
To
1. The I Additional District Judge, Salem.
2. The I Additional Subordinate Judge, Salem.
3. The Section Officer,
VR Section, Madras High Court,
Chennai.
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S.A.No.262 of 2017
S.S.SUNDAR, J.
vum
S.A.No.262 of 2017
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S.A.No.262 of 2017
30.06.2021
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