Madras High Court
Senthil Kumar vs Sabesh on 7 September, 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 07.09.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
A.S.No.738 of 2018
Senthil Kumar ...Appellant
Vs.
Sabesh ...Respondent
Prayer: Appeal Suit filed under Section 96 of the Code of Civil
Procedure against the Judgment and Decree passed in O.S.No.140 of
2015 dated 04.08.2018 on the file of the II Additional District Judge,
Chidambaram.
For Appellant : Mr.J.Antony Jesus
For Respondent : Mr.P.Valliappan
https://www.mhc.tn.gov.in/judis/
JUDGMENT
The above First Appeal is filed challenging the Judgement and
Decree in O.S.No.140 of 2015 of the II Additional District Judge,
Chidambaram. The suit was one for Specific performance filed by the
respondent herein. The brief facts necessary for disposing of the
above Appeal are herein below narrated.
2. The respondent herein had filed the suit in question stating
that he had entered into an agreement with the appellant to purchase
the suit property belonging to the appellant under an agreement of sale
dated 13.04.2009. The sale consideration was fixed at a sum of
Rs.11,00,000/-. The appellant had undertaken to handover possession
of the property at the time of registration of the sale deed. However,
the registration of the sale deed could not be proceeded with since the
appellant had expressed that he was unable to handover the possession
immediately and thereafter suggested that the sale agreement be
canceled and a fresh agreement of sale entered into later. Accordingly,
the earlier agreement was canceled by a registered cancellation deed
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dated 29.09.2014.
3. In the beginning of the year 2015, the appellant once again
approached the respondent with an offer to sell the property and the
respondent agreed to the same and thereafter a registered agreement of
sale dated 29.01.2015 was entered into between the appellant and the
respondent. The price agreed was a sum of Rs.15,00,000/- and on the
date of the agreement a sum of Rs.10,00,000/- was received by the
appellant herein. The parties have agreed that the sale deed would be
executed within a period of one year from the date of the agreement.
According to the respondent herein, he has been ready to proceed with
the purchase and in pursuance to this, he had been requesting the
appellant to come to execute the deed. However, the appellant had not
responded favorably.
4. This prompted the respondent to issue a legal notice dated
17.07.2015 calling upon the appellant to execute and register the sale
deed. Although the appellant had received the said notice he did not
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come forward to either send a reply or execute the sale deed. This
compelled the respondent to file the present suit.
5. Although the appellant had received the summons in the
above matter he failed to appear before the Court and thereafter an ex
parte decree came to be passed on 15.02.2016. The appellant had
filed I.A.No.9 of 2017 to set aside the ex parte decree. This petition
was ordered on 23.03.2017 and on 20.06.2017 the appellant had filed
his written statement. Even prior to the order in I.A.No.9 of 2017 and
immediately after the ex parte Judgement and Decree the respondent
herein had deposited the entire balance sale consideration on
16.04.2016 to the credit of the suit.
6. After filing the written statement when the matter came up for
trial the respondent herein did not appear and thereafter the second ex
parte Judgement and Decree came to be passed on 07.02.2018. Once
again the appellant had filed I.A.No.72 of 2018 for setting aside the ex
parte decree. The said application was allowed and the ex parte
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decree was set aside on 16.07.2018 and the matter was posted for
evidence of P.W.1.
7. On 24.07.2018, the notes sheet would show that the plaintiff's
witness was present and the appellant was also present. However,
since the appellant's counsel did not appear till 4 p.m the matter was
adjourned to 31.07.2018. On 31.07.2018, there was no representation
on behalf of the appellant and neither did the appellant appear before
the Court. Therefore, he was called absent and set ex parte and the
matter posted for the evidence of the plaintiff. Since the chief
examination of the respondent was submitted in the form of proof
affidavit and the respondent had stated that they had no further
evidence the matter was posted for arguments on 01.08.2018. On
01.08.2018, it was only the respondent who had submitted their
arguments and even then it appears that the appellant herein had not
taken steps to set aside the ex parte.
8.Ultimately, the Judgement and Decree came to be delivered on
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04.08.2018 decreeing the suit.
9. The appellant had filed a written statement in which he had
raised two defenses:
(i) That the agreement of sale was not intended to be an
agreement of sale but was only executed as security for a loan
borrowed by the appellant from the respondent. It is his case that he
had borrowed a sum of Rs.15,00,000/- and since the respondent had
insisted upon a security the agreement of sale had been executed.
(ii) The second defense taken by the appellant was that the
property of value of Rs.1,00,00,000/- was sought to be purchased at
paltry sum of Rs.15,00,000/-.
Apart from the above two defenses there was no other major
defenses that has been raised on the side of the appellant.
10.The Trial Court taking note of the pleadings on both sides
had framed the following issues:
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11. Since the appellant had been set ex parte, the respondent had
examined himself as P.W.1 and one Guruvayurappan as P.W.2 and
had marked Ex.A.1 to Ex.A.3.
12. The learned Judge taking into consideration the agreement of
sale and the fact that the appellant had not denied the execution and
also considering the fact that entire balance sale consideration had
been deposited, proceeded to decree the suit. It is challenging this
decree that the appellant is before this Court.
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13. Mr.J.Antony Jesus, learned counsel appearing on behalf of
the appellant would put forward the argument that even if the
appellant had not participated in the proceedings since his written
statement is already on file the Trial Court ought to have corroborated
the evidence of the respondent to the defense raised by the appellant.
He would further submit that the fact that two agreements have been
executed with reference to the same property and first of which had
been canceled would only go to show that the agreement was not
intended to be an agreement but was only as a security for the loan.
He would submit that a reading of the Judgement and Decree would
indicate that the learned Judge has proceeded to consider that the
appellant had not participated in the proceedings whereas the
defendant had filed their written statement and it was only thereafter
that they have not participated in the proceedings.
14. Per contra, Mr.P.Valliappan, learned counsel appearing on
behalf of the respondent would submit that the Judgement and Decree
which is now appealed against is the third Judgement and Decree that
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has been passed in the above suit. He would submit that the first
Judgement was passed on 15.02.2016, which was an ex parte decree
and thereafter the application to set aside the ex parte decree was
ordered on 23.03.2017, once again the appellant allowed the matter to
go ex parte though he had filed a written statement on 20.06.2017.
This ex parte decree dated 07.02.2018 was once again sought to be set
aside by the appellant by filing I.A.No.72 of 2018. This application
was allowed and thereafter the matter posted for the evidence. Since
the appellant had once again failed to appear in the matter he was set
ex parte and ex parte decree has been passed.
15. The learned counsel would submit that the conduct of the
appellant throughout was only to protract the proceedings and not to
defend the same. He would submit that the Trial Court has considered
the evidence on record and passed a detailed order which has not been
rebutted on merits by the appellant herein.
16. After hearing the arguments, the following points for
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consideration arises in the instant appeal.
(a)Whether the Judgement and Decree of the Court below
requires to be set aside since the learned Judge has not addressed the
defense of the appellant?
(b)Whether Ex.A.1 was intended to be only a security for the
loan transaction or whether it was intended to be an agreement of
sale?
17. The records would indicate that the respondent and the
appellant had entered into an agreement of sale dated 29.01.2015,
whereunder, the appellant had agreed to sell the suit property to the
respondent for a total sale consideration of Rs.15,00,000/-. Time
frame of one year was provided for paying the balance sale
consideration of Rs.5,00,000/-. The appellant has admitted the
execution of this agreement but his contention is that the agreement
was intended as a security alone. It is the case of the respondent that
there was an earlier agreement on 13.04.2009 which had to be
canceled ultimately by cancellation deed dated 29.02.2014 and the
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reasons for the same has been set out in the plaint at paragraph no.2 as
follows:
“Under this document the defendant agreed to hand over
possession to the plaintiff at the time of Registration of sale deed. But
the sale deed could not be executed within the period as the defendant
expressed that he wanted some more time for handing over
possession and suggested that the sale agreement can be cancelled
and suggested execution of a fresh agreement of sale later.
Accordingly the above said agreement of sale was cancelled and a
registered cancellation deed was executed on 29.09.2014.”
This statement has not been refuted by the appellant in the
written statement filed by him.
18. Further, on 17.07.2015, the respondent has issued a notice to
the appellant calling upon him to execute the agreement of sale. The
notice has been received by the appellant however he has not come
forward to issue reply notice rebutting the claim and stating that the
parties had not entered into agreement to sell the property but that the
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agreement of sale was only intended as a security for the loan. In his
written statement the appellant has simply denied the notice dated
17.07.2015. The records would also show that the balance sale
consideration of Rs.5,00,000/- has been deposited into the Court by
the respondent as soon as the first ex parte Judgement and Decree
came to be passed on 15.02.2016.
19. The appellant who claims that the agreement of sale has
been executed only as a security did not choose to enter the box and
adduce evidence to substantiate the said statement. On the contrary he
has remained away from the witness box. He has not even cross
examined the respondent who had adduced evidence. The original
evidence of P.W.1 would show that after the Chief examination of
P.W.1 the matter was posted for the cross examination. On
24.07.2018, the learned II Additional District Judge, held that the
appellant was not interested in cross examining the witness and
therefore exercising the rights under Order XVII Rule 2 (e) of the
Code of Civil Procedure the cross examination was dispensed with.
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20. The records would clearly show that the appellant has been
given several opportunities to prove his case but he has not chosen to
enter the box to adduce evidence in this regard. Therefore, the
contention of the learned counsel appearing for the appellant that the
Trial Court has failed to address the argument of the appellant is
without any basis. In fact a reading of the issues would clearly show
that the Trial Court has considered the pleadings on either side and
framed the issues. This is striking when the issue nos.2 and 3 are
taken into account.
21. Therefore, it is clear that the Trial Court has considered the
pleadings while framing the issues but since the appellant has not got
into box to prove his case by filing necessary documentary evidence
the learned Judge could not have addressed the defense of the
appellant which remained uncorroborated. Therefore, the first point
for consideration is held against the appellant.
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22. As regards the second point for consideration the respondent
/ plaintiff has very clearly set out the transactions that had been
entered into between the appellant and the respondent has narrated the
earlier agreement of sale and the reasons for its cancellation followed
by the agreement of sale which is now the subject matter of this First
Appeal.
23. The respondent has clearly set out that the agreement
between the parties was for the sale of the suit schedule property and
nothing else. This statement has not been denied by the appellant in
his written statement on the contrary the appellant admits the
execution of the agreement of sale but tries to over come the same by
contending that it was only executed as security for a loan, which
statement has not been proved by the appellant. The appellant has not
responded to the legal notice dated 17.07.2015. If really the
transaction between the appellant and the respondent was only for a
loan transaction it would be logical for the appellant to immediately
respond to the legal notice dated 17.07.2015 and contend that the
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parties had not entered into an agreement of sale but that the document
was only intended to be security. Considering the fact that such a
stand has not been taken at the very first instance, I hold that the
agreement of sale was only intended to be so and never intended to be
a security. The second point for consideration is also answered
against the appellant.
24. Therefore, I do not find any reason for interfering with the
Judgement and Decree of the II Additional District Judge,
Chidambaram. The Second Appeal is dismissed with costs.
07.09.2021
Index : Yes/No
Internet : Yes/No
kan
To
The II Additional District Judge, Chidambaram
https://www.mhc.tn.gov.in/judis/
P.T. ASHA, J,
kan
A.S.No.738 of 2018
https://www.mhc.tn.gov.in/judis/
07.09.2021
https://www.mhc.tn.gov.in/judis/
