Madras High Court
Kalyani vs V.N.Rajaraman on 12 April, 2022
1 S.A.(MD)No.668 OF 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 12.04.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.668 of 2010
Kalyani ... Appellant / Appellant /
Plaintiff
Vs.
1. V.N.Rajaraman
2. The Executive Engineer and
Administrative Officer,
Trichy Housing Unit,
Tamil Nadu Housing Board,
Having its office at
Pudukkottai Road,
Thanjavur Town. ... Respondents / Respondents /
Defendants
Prayer: Second appeal filed under Section 100 of
C.P.C., to set aside the Judgment and Decree dated
23.02.2010 passed in A.S.No.15 of 2009 on the file of the
Principal District Judge, Thanjavur, confirming the judgment
and decree dated 08.12.2008 passed in O.S.No.66 of 2004 on
the file of the Additional Subordinate Judge, Thanjavur and to
allow the present second appeal.
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1/10
2 S.A.(MD)No.668 OF 2010
For Appellant : Mr.S.Sudhagar
For R-1 : Mr.S.Ramesh
For R-2 : Mr.K.Rajesh Kumar
***
JUDGMENT
The plaintiff in O.S.No.66 of 2004 on the file of the
Additional Sub Court, Thanjavur, is the appellant in this
second appeal.
2. The suit was for specific performance. The case of
the plaintiff is that the suit property was allotted to the first
defendant by the Tamil Nadu Housing Board. The first
defendant agreed to sell the suit property to the appellant and
an agreement was entered into between the parties. It was
registered on 24.07.2000. The sale price was fixed at
Rs.4,25,000/-. The appellant paid the advance amount of
Rs.1,90,000/-. Subsequently, the appellant paid a further sum
of Rs.1,20,000/- on 10.10.2002 and an endorsement was made
on the reverse side of the agreement. For obtaining pucca sale
deed from the housing board, the plaintiff had to pay a further
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sum of Rs.49,839/-. The said amount was also paid only by the
plaintiff. Thus, the plaintiff had paid the entire sale price
under the suit agreement. When he called upon the first
defendant to execute sale deed, the first defendant did not
respond favourably. The plaintiff therefore filed the said suit.
The Tamil Nadu Housing Board was made as the second
defendant. The defendants filed written statements. The first
defendant categorically denied having agreed to sell the suit
property to the plaintiff. According to the first defendant,
there was a financial transaction between the first defendant's
wife and one Vijaya Baskar and that the suit agreement came
to be executed under coercive circumstances. The plaintiff
filed reply statement also. The first defendant also filed
additional written statement. Based on the divergent
pleadings, the trial Court framed the necessary issues. The
plaintiff's husband was examined as P.W.1 and one
Karthigeyan who had attested the endorsement in the suit
agreement was examined as P.W.2. Ex.A.1 to Ex.A.36 were
marked. The first defendant examined himself as D.W.1 and
two other witnesses were examined on the side of the
defendants. Ex.B.1 to Ex.B.7 were marked. After consideration
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of the evidence on record, the trial Court by judgment and
decree dated 08.12.2008 denied the relief of specific
performance and also dismissed the alternative relief of
refund sought for by the plaintiff. Aggrieved by the same, the
plaintiff filed A.S.No.15 of 2009 before the Principal District
Judge, Thanjavur. By the impugned judgment and decree
dated 23.02.2010 the first appellate Court confirmed the
decision of the trial Court and dismissed the appeal.
Challenging the same, this second appeal came to be filed.
3. The second appeal was admitted on 31.08.2012 on
the following substantial questions of law:-
“ (1) Whether Ex.A.3 being a registered
document, can be impeached that it was obtained by
fraud especially when the contents thereof have been
proved as per Section 61 of the Indian Evidence Act?
(2) Whether the plaintiff has proved the
execution and registration of Ex.A.3 agreement or
whether the 1st defendant has proved that it was
obtained by fraud? ”
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4. On the previous occasion, an additional substantial
question of law was formulated as follows:-
“ (3) Whether the Courts below ought to
have ordered refund? ”
5. The learned counsel appearing for the appellant
reiterated all the contentions set out in the memorandum of
grounds. He also filed detailed notes of arguments. The
learned counsel pointed out that Ex.A.3 sale agreement is a
registered one. Therefore, the allegation that it was executed
under coercive circumstances is intrinsically not believable.
Even assuming that a registered document was coercively
obtained, nothing stopped the first defendant from lodging a
police complaint. In the case on hand even though the
agreement was registered on 24.07.2000, no complaint was
lodged by the first defendant. This is more than sufficient to
disprove the allegation of the first defendant that he was
compelled to execute the suit agreement. Though I do find
considerable force in the contention advanced by the learned
counsel appearing for the appellant, what stares against him is
a recent Judgment of the Madras High Court reported in
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(2019) 7 MLJ 216 (P.M.Thangavel V. M.Ramamoorthy).
A learned Judge of this Court had held that when an allottee of
the Housing Board property who was yet to take a pucca sale
deed from the Housing Board enters into a sale agreement,
such an agreement cannot be specifically enforced. This is the
clear ratio emerging from the said decision. The learned
counsel appearing for the appellant tried to distinguish the
said decision on facts. But I am more than convinced that it is
not possible for the appellant to overcome the said ratio.
Respectfully following the said judgment, I hold that Ex.A.3
sale agreement is not capable of having enforced. Therefore,
the genuineness of the suit agreement and its proof fade into
irrelevance and I hold that the plaintiff is not entitled to
specific performance.
6. However, the Courts below clearly erred in
denying the relief of refund. Of course the question that first
arises for consideration is how much was paid by the appellant
to the defendants. Ex.A.3 is a registered sale agreement. It
states that a sum of Rs.1,90,000/- was paid by the plaintiff to
the first defendant. Under Section 92 of the Indian Evidence
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Act it is not open to the first defendant to let in any oral
evidence to the contrary. The plaintiff has also marked Ex.A.
22 to Ex.A.30 receipts issued by the Tamil Nadu Housing
Board. Of course the receipts are in the name of the first
defendant only. But the plaintiff has marked the original
receipts. Therefore, I am satisfied that the payments covered
under the said receipts were actually paid only by the plaintiff
to the Housing Board. The amount paid by the plaintiff to the
Housing Board comes to Rs.49,839/-. The plaintiff would of
course make a further claim that he paid a sum of
Rs.1,20,000/- on 10.10.2002. An endorsement made
purportedly to this effect is found on the reverse side of
Ex.A.3. The Courts below have concurrently rendered a
finding that this endorsement is highly suspicious and cannot
be believed. I hold that the plaintiff's claim of having paid a
sum of Rs.1,20,000/- to the first defendant on 10.10.2002 has
not been established.
7. The learned counsel appearing for the first
respondent submitted that the Courts below rightly refused
the award of refund for the simple reason that the claim for
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refund was hit by limitation. I do not agree with the said
contention. It is seen that the plaintiff had been remitting the
installments payable to the Housing Board. The last
installment was paid on 05.08.2002. The installments made by
the plaintiff to the Housing Board is pursuant to the suit
agreement. I have already held that Ex.A.3 is a valid
agreement. Payments made to the Housing Board should be
seen as part of the single transaction. The last payment was
made on 05.08.2002. The suit in question was filed on
16.09.2004. The suit is within time. Hence the claim for
refund cannot be said to be time barred. Therefore, the third
substantial question of law is answered in favour of the
appellant.
8. The judgment and decree passed by the Courts
below are modified and this second appeal is partly allowed on
the following terms:-
(a) Denial of specific performance by the Courts
below is confirmed.
(b) The first defendant is directed to pay the plaintiff
a sum of Rs.2,40,000/- with interest @ 12% p.a. with effect
from 24.07.2000 till realisation.
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(c) The plaintiff is entitled to withdraw whatever
amount was deposited to the credit of the suit with accrued
interest.
No costs.
12.04.2022
Index : Yes / No
Internet : Yes/ No
PMU
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
To:
1. The Principal District Judge,
Thanjavur.
2. The Additional Subordinate Judge,
Thanjavur.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
G.R.SWAMINATHAN,J.
PMU
S.A.(MD)No.668 of 2010
12.04.2022
https://www.mhc.tn.gov.in/judis
https://www.mhc.tn.gov.in/judis
