Madras High Court
A.Shankar vs M.Veeraragavan on 6 January, 2022
SA NO.493 OF 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.01.2022
CORAM
THE HON'BLE MR.JUSTICE M.GOVINDARAJ
SA NO.493 OF 2017
AND CMP NO.11997 OF 2017
A.Shankar ... Appellant
VS.
M.Veeraragavan ... Respondent
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code against the judgment and decree dated 10.06.2015 passed in
A.S.No.27 of 2012 by the learned Principal District Judge,
Kancheepuram at Chengalpattu, reversing the judgment and decree dated
04.06.2012 passed in O.S.No.244 of 2007 by the learned Additional
Subordinate Judge of Chengalpattu.
For Appellant : Mr.S.S.Swaminathan
For Respondent : Mr.A.G.Rajan
JUDGMENT
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SA NO.493 OF 2017
The defendant is the appellant in the Second Appeal.
2.The plaintiff filed a Suit for specific performance to execute
the registered Sale Deed as agreed in the sale agreement. The defendant's
mother purchased the Suit schedule property by virtue of a registered Sale
Deed from one Elumalai Naicker, by virtue of a registered Sale Deed
dated 16.03.1964. Thereafter, the defendant's mother executed a
registered Settlement Deed on 30.01.1997 bequeathing the same in his
favour. The defendant put up a R.C.C. roof building measuring an extent
of 500 Sq.ft after obtaining loan from the Chengalpattu Co-operative
Housing Society Ltd., on 25.07.1997 by virtue of a registered Mortgage
Deed bearing Document No.2412/1997, registered on 01.08.1997. He
could not repay the loan due to his financial circumstances. Hence the
defendant approached the plaintiff stating that there is a balance of
Rs.53,000/- plus interest. He offered to sell the property for a sum of
Rs.1,50,000/-. In order to meet immediate expenses, he received a sum of
Rs.20,000/- and requested the plaintiff to discharge the loan in full or part
by part in the name of the plaintiff from the month of August 2002. The
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SA NO.493 OF 2017
plaintiff agreed to the same and paid a sum of Rs.20,000/- and agreed to
get conveyance of the property after discharge of the loan. The defendant
handed over possession of the Suit schedule property along with the title
deeds. The plaintiff celebrated Grahapravasam on 13.09.2002. Prior to
the sale agreement in March 2002, the defendant received a sum of
Rs.53,000/- and remitted a sum of Rs.51,542/- in the name of the
defendant. Accordingly, after deducting the said sum of Rs.53,000/- and
Rs.20,000/, the balance sale consideration remains Rs.77,000/- which the
plaintiff remitted to the Society on 19.06.2002, 23.12.2002, 12.03.2003,
24.03.2003, 13.09.2003, 17.12.2003, 16.09.2004, 20.12.2004 and
18.01.2005. Thus, the plaintiff has paid a sum of Rs.98,460/- for the
balance amount of Rs.77,000/- on the date of the agreement. The
Secretary of the Society executed necessary deed of discharge dated
14.03.2007 and the same was registered as Document No.3641/2007.
After the discharge of the mortgage deed on 18.01.2005, the plaintiff
continuously demanded the defendant to come forward and execute the
sale deed in his favour. But the defendant was evading the same. After
getting the discharge of mortgage deed registered on 14.03.2007, the
plaintiff issued a legal notice on 26.06.2007 to the defendant to come and
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SA NO.493 OF 2017
execute and register the sale deed as per the agreement. On 06.07.2007,
the defendant has replied the notice with untenable allegations.
Immediately, he filed a suit for specific performance.
3.In the written statement, the defendant denied the
averments made in the plaint. It was stated that the defendant approached
the plaintiff for the purpose of loan to the tune of Rs.1,50,000/- to meet
out his needs. The plaintiff undertook to pay a sum of Rs.20,000/- to
meet out his urgent need and further undertook to pay the monthly
installment to the Society regularly until the discharge of the loan and
also to live in the suit property and to adjust the rentals towards interest
of the loan amount of Rs.1,50,000/-. The defendant stated that he will
repay the loan amount of Rs.1,50,000/- after three years and on payment
of the said sum, the plaintiff should vacate the premises. Accordingly, the
possession of the property was handed over to the plaintiff and the
plaintiff had obtained number of signatures in stamp papers and blank
papers from the defendant and promised to return the same at the time of
discharge of the loan amount. The plaintiff paid the monthly installments
to the Society in the name of the defendant. The original title deeds were
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SA NO.493 OF 2017
received by the defendant from the Society. He offered to pay
Rs.1,50,000/- within a short time. But the plaintiff has directed the
defendant to hand over the title deeds as security apart from the
documents obtained viz loan documents with signatures obtained in
stamp papers and blank papers. There is no dispute between the plaintiff
and the defendant and therefore, he handed over all the title deeds
obtained from the Society on discharge of their loan. During May 2005,
the defendant arranged for a sum of Rs.1,50,000/- and offered the same
to the plaintiff and requested him to return back the title deeds and loan
documents obtained from him. But the plaintiff required the premises for
a further period of two years and that he was trying to purchase a house
property in the same village. As soon as the property was purchased, the
plaintiff undertook to receive money and hand over the title deeds, loan
documents and also possession in the property to him. Since the plaintiff
helped the defendant, he allowed him to continue in possession of the
property. But all of a sudden, the plaintiff caused a legal notice to the
defendant mentioning that the defendant has executed a sale agreement
and other things. The defendant was shocked by the notice and came to
know that he has already played fraud in the year 2002 with the evil
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SA NO.493 OF 2017
intention to get the property under some documents. The plaintiff has no
intention to vacate the premises. The defendant has not executed the sale
agreement in favour of the plaintiff on 08.08.2002 and that he has no
intention to sell the property to the plaintiff or any other third parties. He
need the property for his own purpose and even as per the notice. The
suit is time barred on the basis of the sale agreement and it is not
enforceable. The plaintiff had cheated the defendant by way of false
documents. The loan amount of Rs.1,50,000/- will not bear any interest
since the property was rented out to the plaintiff and the rent was
adjusted towards interest for the loan amount till date. The defendant
issued a suitable reply notice on 06.07.2007. The value of the property is
not Rs.1,50,000/- as alleged by the plaintiff. The plaintiff has created the
sale agreement and prepared it using the blank signed stamp papers. He
has prepared the sale agreement in such a way that it gives life to the
same. Therefore, he is not entitled to any relief and the plaintiff is duty
bound to return all the papers and title deeds on receipt of the principal.
Therefore, the suit is liable to be dismissed.
4.The Trial Court framed appropriate issues and dismissed
the suit. On appeal by the plaintiff, the First Appellate Court reversed the
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SA NO.493 OF 2017
findings of the Trial Court and decreed the suit with cost. Aggrieved over
the same, the present Second Appeal has been preferred by the defendant.
5.Heard the submissions made on either side and perused the
materials available on record.
6.From a reading of the written statement and the evidence
of D.W.1, it is noted that the defendant had admittedly borrowed a sum
of Rs.1,50,000/- and handed over the title deeds and other documents and
the possession of the property is with the plaintiff. The plaintiff
conducted Grahapravesam on 13.09.2002, which is evidenced by Ex.A2.
Ex.A3 is the original of the settlement deed and Ex.A4 is the patta issued
in favour of the defendant. Exs.A5 and A14 are the payments made by
the plaintiff in the name of the defendant. Ex.A15 is the discharge receipt
executed by the Society. All these documents in original are in the
custody of the plaintiff. The defendant also admits the fact that he has
handed over the original title deeds and other documents and that the
plaintiff had discharged the loan obtained by him through mortgage of
the property and on discharge of the same, they were handed over to the
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SA NO.493 OF 2017
plaintiff. The dispute arose only after the obtaining the discharge receipt
from the Society on 14.03.2007.
7.According to the plaintiff, the defendant agreed to sell the
property after discharge of the loan to the Society and that they have
entered into a sale agreement with such terms and conditions on
08.08.2002. On the other hand, the defendant would contend that he has
not executed any sale agreement on 08.08.2002 and that it was created
by the plaintiff using the blank signed stamp papers and blank papers. A
perusal of the Ex.A1 does not show any interpolation, but it appears to be
natural. But the Trial Court had found that the ink in the stamp paper and
other blank papers differ and therefore, the sale agreement cannot be
relied on. Other than this, there is no evidence to disbelieve the sale
agreement. Even though the defendant would state that he had handed
over the originals of the title deeds and loan documents to the plaintiff, he
has not come out with any specific details as to that what was the loan
document and when was it given and what was the interest agreed to be
paid.
8.In fact, during the arguments, the learned counsel for the
appellant / defendant would deny the receipt of a sum of Rs.1,50,000/-
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SA NO.493 OF 2017
from the plaintiff himself. On the other hand, during cross examination of
the defendant as D.W.1, it is elicited that the defendant borrowed a sum
of Rs.1,50,000/-. There is some contradictory statement in the deposition
and the written statement. In the written statement, the defendant would
state that the rentals shall be adjusted towards the interest payable to the
loan. But in his deposition, he would state the rentals were adjustable to
the interest payable to the Society.
9.It is well settled that the plea of fraud shall be specific and
it shall be proved by evidence. But in the instant case, even though it is
stated that the blank signed papers were used to create the sale
agreement, no further proof to prove that he has handed over the blank
signed papers to the plaintiff. Further, as per the statement of the
defendant, he agreed to repay the loan of Rs.1,50,000/- and on payment
of the same, the plaintiff shall hand over possession of the property along
with the title deeds and loan documents. Admittedly, the loan was
discharged on 18.01.2005. The discharge receipt was registered on
14.03.2007. But the plaintiff had not shown that he had taken any steps
to repay the loan amount till he received the legal notice from the plaintiff
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on 26.06.2007. Even though it was stated that he attempted to pay the
principal amount of Rs.1,50,000/- and a further statement that he will
deposit the amount in the Court, he has not done so till date tp prove his
bonafide.
10.In so far as the statement that there was an arrangement
to pay the monthly installments and that after three years, he will pay
back Rs.1,50,000/- to the plaintiff is concerned, there is a contradiction.
As per the version of the defendant, he has received only Rs.20,000/ and
that the plaintiff will pay the balance loan amount and on discharge of the
loan, he will give back Rs.1,50,000/-. In this, a new theory of relationship
between parties has been introduced. But, there is no iota of proof to
show that the parties were related and that it was an arrangement on the
basis of the said relationship. On the other hand, Exs.A5 to A14 goes to
show that the plaintiff has paid not only the monthly installments, but
also the principal and interest due to the Society at random. He
discharged the loan by paying lump sum amounts which were adjusted
towards the principal and interest by the Society. Therefore, the statement
of the defendant that there was an arrangement to pay the monthly
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SA NO.493 OF 2017
installments by the plaintiff towards discharge of loan and to get back
that money does not appear to be true.
11.It also discloses the fact that the amount of Rs.1,50,000/-
was paid to the defendant during 2002. If the version of the defendant is
to be accepted, he borrowed a sum of Rs.80,000/- from the Society and
remitted installments and there was a balance loan amount of Rs.53,000/-
plus interest was payable on the date of borrowal. For payment of
Rs.53,000/- + interest, the defendant need not wait to discharge the loan.
On borrowing Rs.1,50,000/-, he can immediately settle the loan and could
have repaid it at a later point of time. But the arrangement was that the
plaintiff has to discharge the loan in installments by making part
payments to the Society. Therefore, the statement that he received a sum
of Rs.1,50,000/- as loan and requested the plaintiff to discharge the loan
does not go together. It may be true to state that the defendant had agreed
to sell the property on discharge of the loan by the plaintiff and received
the balance sale consideration after deducting the loan amount. If it is a
loan transaction, the plaintiff need not remit more than what was lent to
the defendant. From Exs.A5 to A14, it is noted that the plaintiff has paid
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SA NO.493 OF 2017
a sum of Rs.98,460/- to the Society in the name of the defendant.
Whereas, the balance amount on the date of borrowal was only
Rs.77,000/-. Apart from this, it is admitted that the defendant has
received a sum of Rs.20,000/-. In either way, the defendant need not pay
more than the sale price of Rs.1,50,000/- or will not agree to pay a sum
more than Rs.35,000/- in excess of the loan amount received, after
adjusting the rentals towards interest.
12.The sale agreement appears to be natural and there is no
dispute with regard to the signatures found in the sale agreement. The
execution of the same and payment of Rs.20,000/- on the date of
agreement all stood proved by evidence of P.W.1 and P.W.2. The
evidence of P.W.2 was not discredited by the defendant during cross
examination. Therefore, it is clear that the sale agreement stands proved.
Once the sale agreement stands proved, the defendant is bound to act in
accordance with the agreement. The conduct of Grahapravesam is also
not denied by the defendant in his written statement and on the other
hand, it is averred that the plaintiff conducted Grahapravesam. No
borrower will permit the creditor to perform Grahapravesm that too when
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SA NO.493 OF 2017
it is claimed that they are cousins. Therefore, the appellant has not made
out any case for interfering with the judgment of the First Appellate
Court. No question of law much less any substantial question of law arise
to entertain the above Second Appeal. Hence, this Court is of the
considered opinion that the Second Appeal merits no consideration and
accordingly, stands dismissed. No costs. Consequently, connected civil
miscellaneous petition is closed.
06.01.2022
Index : Yes/No
Internet : Yes/No
TK
To
1.The Principal District Judge
Kancheepuram at Chengalpattu.
2.The Additional Subordinate Judge
Chengalpattu.
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SA NO.493 OF 2017
M.GOVINDARAJ, J.
TK
SA NO.493 OF 2017
06.01.2022
https://www.mhc.tn.gov.in/judis
