Madras High Court
G.Ramasamy vs N.Murugasamy on 19 April, 2022
A.S. (MD) No. 225 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 19.04.2022
CORAM
THE HONOURABLE MS. JUSTICE R.N.MANJULA
A.S. (MD) No. 225 of 2019
and
C.M.P. (MD) No. 12126 of 2019
1. G.Ramasamy
2. R.Ponnuthai (died) ... Appellants / Defendants
Vs.
N.Murugasamy ... Respondent / Plaintiff
PRAYER: Appeal Suit filed under Section 96 of the Civil Procedure Code,
1908 against the judgment and decree of the learned Additional District
Judge (Fast Tract Court), Palani, dated 13.08.2019 in O.S. No. 81 of 2016.
For Appellants : Mr.D.Venkatesh
For Respondent : Mr.M.Saravanan
for Mr.R.Subramanian
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A.S. (MD) No. 225 of 2019
JUDGMENT
This Appeal has been preferred challenging the judgment and decree of the
learned Additional District Judge (Fast Tract Court), Palani, dated
13.08.2019 made in O.S. No. 81 of 2016.
2. The appellants are the defendants; the respondent / plaintiff filed a suit
for specific performance on the basis of the sale agreement, dated
10.03.2015; as per the case of the plaintiff, on 10.03.2015, an agreement
was entered into between the plaintiff and the defendants and the suit
property belonged to the defendants for a sale consideration of
Rs.11,00,000/- (Rupees Eleven Lakhs only); on the same date itself, they
entered into a registered sale agreement; the part sale consideration of
Rs.10,00,000/- (Rupees Ten Lakhs only) was paid by the plaintiff to the
defendants; in order to pay the remaining sum of Rs.1,00,000/- (Rupees One
Lakh only), 1 ½ years time limit was fixed; despite the plaintiff was ready
and willing to perform his part of contract and get the sale deed executed,
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A.S. (MD) No. 225 of 2019
the defendants did not come forward to perform their part of contract; on
24.06.2016, the plaintiff issued a legal notice calling upon the defendants to
receive the balance sale consideration of Rs.1,00,000/- (Rupees One Lakh
only) and get the sale deed executed; after receiving the said notice, the
defendants sent a reply notice with false and frivolous allegations;
thereafter, the plaintiff has filed the suit for the relief of specific
performance with an alternate relief of advance amount.
3. The defendants resisted the suit by contesting that the sale agreement was
not executed with an intention to sell the suit property, but that has been
executed as a security for a loan amount of Rs.10,00,000/- (Rupees Ten
Lakhs only) availed by the defendants from the plaintiff; the plaintiff is a
Financier and the defendants have availed the loan for the purpose of their
business; they have been paying the interest regularly; just in order to grab
the property from the defendants, the plaintiff has filed a suit for specific
performance.
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A.S. (MD) No. 225 of 2019
4. On the basis of the above pleadings, the learned trial Judge framed the
following issues:
(i) thjp tHf;Fiuapy; nfhhpathW
Vw;wij Mw;Wjy; ghpfhuk; bgWtjw;F mUfij
cilatuh>
(ii) thjp tHf;Fiuapy; nfhhpathW
epue;ju cWj;Jf;fl;lis ghpfhuk; bgWtjw;F
mUfij cilatuh>
(iii) thjp tHf;Fiuapy; nfhhpa khw;W
ghpfhukhd U:/10.00.0000-? tl;oa[ld; bgWtjw;F
mUfij cilatuh>
(iv) thjpf;F fpilf;fj;jf;f ,ju
ghpfhuk; ahJ>
5. During the course of trial, on the side of the plaintiff, two witnesses were
examined as PW1 and PW2 and Exs.A1 to A5 were marked. On the side of
the defendants, one witness was examined as DW1 and Exs.B1 to B3 were
marked. On conclusion of the trial, the learned Judge, considered the
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A.S. (MD) No. 225 of 2019
evidence available on record and decreed the suit for the relief of specific
performance. Aggrieved over that, the defendants have preferred this Appeal
Suit.
6. The learned counsel for the appellants argued that the learned trial Judge
has overlooked the fact that the agreement was executed only with an
intention to offer security for a loan availed by the appellants from the
respondent; the fact that the unusual long period of 1 ½ years was agreed to
pay a small remainder of Rs.1,00,000/- (Rupees One Lakh only) would
show the contrary intention for Ex.A1 – sale agreement; the learned trial
Judge has not framed any issues with regard to readiness and willingness to
render a finding on that the worth of the property is more than Rs.
30,00,000/- (Rupees Thirty Lakhs only) and no one would agree to sell the
same for a very low sum of Rs.11,00,000/- (Rupees Eleven Lakhs only);
under such circumstances, the learned trial Judge ought not to have granted
the decree for specific performance and it should be reversed.
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A.S. (MD) No. 225 of 2019
7. The learned counsel for the respondent submitted that he did not deny the
execution of the agreement and received a sum of Rs.10,00,000/- (Rupees
Ten Lakhs only); though it is alleged that the sale agreement was executed
only with an intention for security for a loan amount, the said fact was not
proved before the Court; the appellants accepted that they have been
introduced by their own relative, one Latchumana Samy to the plaintiff; but
the said Latchumana Samy who was examined as PW2 did not support the
case of the defendants; the sale deed of the defendants was of the year 2015
and in the said sale deed, the value of the property is shown as Rs.2,00,000/-
(Rupees Two Lakhs only); the sale agreement was executed in the year
2011; the sale agreement was entered into between them in the year 2015
and the sale consideration was fixed as fairly at Rs.11,00,000/- (Rupees
Eleven Lakhs only) and there is no question of fixing the low price for the
property; the respondent had issued the legal notice on 24.06.2016 itself and
that would show that he was ready to perform his part of contract even
before the expiry of agreed time limit and thereafter, he has filed the suit as
well; so, the plaintiff has proved the readiness and willingness on his part to
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A.S. (MD) No. 225 of 2019
get the sale deed executed and hence, the learned trial Judge right in
decreeing the suit for specific performance.
8. Point for consideration:-
“Whether the judgment and decree of the trial Court in
decreeing the suit for the relief of specific performance is fair
and proper?"
9. The fact that the appellants and the respondent are known to each other is
not disputed. However, the fact that on 10.03.2015, a sale agreement was
entered into between the appellants and the respondent in respect of the suit
property for a sale consideration of Rs.11,00,000/- (Rupees Eleven Lakhs
only) was also not denied. The one and only contention of the appellants is
that Ex.A1 – sale agreement contains the nomenclature which was executed
by way of security for a loan amount of Rs.10,00,000/- (Rupees Ten Lakhs
only) availed by the appellants from the respondent. Though it is claimed by
the appellants that a sum of Rs.10,00,000/- (Rupees Ten Lakhs only) as seen
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A.S. (MD) No. 225 of 2019
in Ex.A1 was availed by them as loan from the respondent and they were in
the habit of paying the interest for the same, no document is produced to
substantiate the same. Neither PW2 - Latchumana Samy through whom the
appellants got introduced to the respondent had supported the contention of
the appellants. But however it is seen that unduly long period of 1 ½ years
was agreed between the parties for the payment of an insignificant
remainder, i.e., Rs.1,00,000/- (Rupees One Lakh only).
10. From the course of the argument, the learned counsel for the respondent
submitted that the agreement was genuine and the long period was agreed
because of the obligation cost upon on the appellants to evict the tenants in
the suit property; but apparently, the said fact was not mentioned in the sale
agreement; it has been already observed that the appellants failed to produce
any proof to show that they were in the habit of paying the interest on the
alleged loan of Rs.10,00,000/- (Rupees Ten Lakhs only). Had Ex.A1 was a
true sale agreement, the plaintiff's witness PW2 - Latchumana Samy would
have acted only as a mediator for selling the property. But his evidence
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A.S. (MD) No. 225 of 2019
would show that he had introduced the appellants to the respondent and he
had attested the sale agreement. Though it is imperative on the part of the
appellants to plea that the sale agreement was executed by way of security
to offer positive evidence to prove the same, it is also equally obligatory on
the part of the respondent to prove the intention of the sale agreement.
11. The conduct of both the parties appeared to be suspicious with regard to
the terms of the agreement. When the respondent / plaintiff could pay major
sale consideration of Rs.10,00,000/- (Rupees Ten Lakhs), he had bargained
1 ½ years time to pay the negligible small balance of Rs.1,00,000/- (Rupees
One Lakh only) without stating any reason. Even though the respondent /
plaintiff had proved that he was ready and willing to pay the remaining sum
of Rs.1,00,000/- (Rupees One Lakh only) within a period of 1 ½ years, the
fact remains that the intention for getting Ex.A1 – sale agreement shrouds
with doubts. Since the conduct of both parties is not clear and the terms of
the sale agreement were not explicit as to why an unduly long period was
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A.S. (MD) No. 225 of 2019
fixed, I feel that the respondent / plaintiff is entitled to get the alternate
relief of refund of the advance amount. The learned trial Judge, without
considering the conduct of the parties and the adverse circumstances
surrounding in Ex.A1 – sale agreement, has proceeded to grant the relief of
specific performance. In view of the above stated reasons, I feel that the
judgment and decree of the trial Court needs modification and it has to be
modified for granting alternate relief of refund of advance amount. Thus,
the point is answered.
In the result, this Appeal Suit is partly allowed and the judgment and decree
of the trial Court in O.S. No. 81 of 2016 on the file of the Additional District
Court (Fast Track Court), Palani, dated 13.08.2019, is hereby modified to
the effect that the suit is decreed in respect of the alternate relief of refund
of advance amount of Rs.10,00,000/- (Rupees Ten Lakhs only) along with
the interest at the rate of 12% per annum from the date of agreement till the
date of filing of the suit and at the rate of 7.5% per annum from the date of
suit till the date of decree and at the rate of 6% per annum from the date of
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A.S. (MD) No. 225 of 2019
decree till the date of realization with cost. The plaintiff is also entitled to
get the charge on the suit property for the decree amount. Consequently,
connected Miscellaneous Petition is closed.
19.04.2022
Index : Yes / No
Speaking Order : Yes / No
vji
To
1. The Additional District Court (Fast Track Court),
Palani.
2. The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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https://www.mhc.tn.gov.in/judis
A.S. (MD) No. 225 of 2019
R.N.MANJULA, J.
vji
A.S. (MD) No. 225 of 2019
and
C.M.P. (MD) No. 12126 of 2019
19.04.2022
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