Madras High Court
Mrs.Maheswari … vs Mrs.Kamalam on 7 January, 2022
S.A.No.874 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.01.2022
CORAM
THE HON'BLE Mr. JUSTICE G.CHANDRASEKHARAN
S.A.No.874 of 2019
and
C.M.P.No.219 of 2022
Mrs.Maheswari …Appellant
Vs.
Mrs.Kamalam ...Respondent
PRAYER: Second Appeal is filed under Section 100 of the Code of
Civil Procedure, against the Judgment and Decree dated 03.12.2018
made in A.S.No.02 of 2017 on the file of Principal District Judge,
Namakkal, confirming the Judgment and Decree dated 19.08.2016 in
O.S.No.26 of 2014, on the file of the learned Subordinate Judge,
Rasipuram.
For Appellant : Mr.C.Jagadish
For Respondent : Mr.T.Dhanyakumar
JUDGMENT
This Second Appeal is filed against the judgment and decree of the
Principal District Judge, Namakkal in A.S.No.2 of 2017 confirming the
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S.A.No.874 of 2019
judgment and decree of the Subordinate Judge, Rasipuram in O.S.No.26
of 2014.
2. The appellant filed a suit for specific performance on the basis of
the sale agreement dated 26.02.2013. Since the defendant intended to sell
the suit property, the plaintiff approached the defendant for the same and
they entered into a sale agreement on 26.12.2013. The sale price was
fixed at Rs.2,70,000/-. A sum of Rs.2,65,000/- was paid by the
respondent/defendant as advance. It was agreed that the balance sale
consideration of Rs.5,000/- will be paid within a period of two years and
that the sale deed would be executed as per the terms and conditions of
the sale agreement. The appellant/plaintiff was ready and willing to pay
the balance sale consideration of Rs.5,000/-. Despite several oral requests
and legal notice, the respondent/defendant did not come forward to
execute the sale deed. Therefore, this suit was filed.
3. The respondent denied execution of the sale agreement. The suit
property was allotted to the respondent by the Government of Tamil
Nadu. She constructed a house in the suit property, after obtaining loan
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S.A.No.874 of 2019
from Rasipuram Housing Society and from the third parties. The
appellant's husband and the respondent were working in Kathiranallur
Union Middle School for about 25 years as Noon Meal Organizer and
Noon Meal Cook respectively. Further, the respondent sought for money
from the appellant's husband for his son's lorry business. On the direction
given by the appellant's husband, the appellant borrowed a sum of
Rs.70,000/- from one Kumarasamy for interest and paid Rs.3.50 as
interest for every 100 Rupees. Since the interest is exorbitant, the
husband of the appellant stated to the respondent that he would take over
the loan given by the said Kumarasamy and Palanivelu and accordingly,
took charge of the loan amount with interest to the tune of Rs.1,60,000/-
and he settled the loan of Kumarasamy. In this regard, the appellant
demanded the respondent to pay a sum of Rs.1,60,000/- at 2% interest.
The expenses relating to cancellation of General Power of Attorney deed
executed in favour of Kumarasamy, was for Rs.2,65,000/- and for this
amount, a sale agreement was executed as security. Hence, this suit is
liable to be dismissed.
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S.A.No.874 of 2019
4. The trial Court framed the following Issues:-
(i) Whether the plaintiff is entitled for the
relief of specific performance?
(ii) Whether the case of the defendant that
the sale agreement was entered into as a security
for transaction, is correct?
5. During the trial, PW1 and PW2 were examined and Exs.A1 to
A10 were marked on the side of the appellant/plaintiff. D.W.1 and D.W.2
were examined and Exs.B1 to B11 were marked on the side of the
respondent/defendant.
6. Considering the oral and documentary evidence produced on
either side, the trial Court held that the sale agreement was entered into
only as security for the loan transaction and therefore, the
appellant/plaintiff is not entitled for the relief of specific performance.
Hence, the suit was dismissed. Challenging the same, the
appellant/plaintiff filed A.S.No.2 of 2007. The Appellate Court also
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S.A.No.874 of 2019
found that the said sale agreement was executed only as a security for
loan transaction. Further, the appellant was not ready and willing to
perform his part of the contract and therefore, the first Appellate Court,
confirmed the judgment of the trial Court and dismissed the appeal.
Challenging the judgment of the first Appellate Court, this Second
Appeal is filed by the plaintiff.
7. This Second Appeal was admitted on the following substantial
questions of law:-
(i) Whether the Courts below are right in
holding that a registered sale agreement has
been executed as a collateral security for a
loan transaction ignoring the provisions of
Sections 91 and 92 of the Indian Evidence Act?
(ii) Whether the Courts below being the
Courts of Equity right in law in denying the
relief of refund of advance money on the
ground that the plaintiff has not sought for
specific relief under Section 22(2) of the
Specific Relief Act, 1963, ignoring the
provisions of Order VII Rule 7 of the Code of
Civil Procedure, particularly, when the
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S.A.No.874 of 2019
plaintiff has admitted the execution and
registration of the sale agreement Exhibit A5
and the receipt of the advance sale
consideration under Exhibit A5?
8. The learned counsel for the appellant/plaintiff restricted his
submissions only to the refund of money transaction. He submitted that, it
is seen from the written statement that the respondent/defendant admitted
the receipt of Rs.2,65,000/- from the appellant. Both the Courts below
have not given a direction to refund this amount. The reason given by the
Courts below for not ordering refund of the money received by the
respondent/defendant is that the appellant/plaintiff has not specifically
prayed in the suit for refund of advance money. It is true that the
appellant has not specifically prayed for refund of advance money.
Therefore, the appellant/plaintiff has filed CMP.No.219 of 2021. In this
petition, he has prayed for return of advance amount to be included in the
prayer sought.
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S.A.No.874 of 2019
9. The learned counsel for the respondent/defendant submitted that
the respondent is willing to refund the money obtained as loan. Therefore,
he has no objection to allow the amendment petition and also order
refund of money received by the respondent from the appellant.
10. Section 22 of the Specific Relief Act deals with refund of
earnest money or deposit. Unless it has been specifically claimed refund
cannot be ordered. However proviso to the Section provides for
amending the relief of the plaint for refund of money at any stage of
proceedings. Section 22 of the Specific Relief Act is extracted
hereunder:-
“22. Power to grant relief for
possession, partition, refund of earnest
money, etc.-(1) Notwithstanding anything to
the contrary contained in the Code of Civil
Procedure, 1908 (5 of 1908), any person suing
for the specific performance of a contract for
the transfer of immovable property may, in an
appropriate case, ask for-
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S.A.No.874 of 2019
(a) possession, or partition and separate
possession, of the property in addition to such
performance; or
(b) any other relief to which he may be
entitled, including the refund of any earnest
money or deposit paid or (made by) him, in
case his claim for specific performance is
refused.
(2) No relief under clause (a) or clause
(b) of sub-section (I) shall be granted by the
court unless it has been specifically claimed.
Provident that where the plaintiff has
not claimed any such relief in the plaint, the
court shall, at any stage of the proceeding,
allow him to amend the plaint on such terms
as may be just for including a claim for such
relief.
(3) The power of the court to grant relief
under clause(b) of sub-section (I) shall be
without prejudice to its powers to award
compensation under Section 21.”
11. Therefore, permission to amend the prayer for refund of
advance amount, can be ordered at any stage of the proceedings, that too,
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S.A.No.874 of 2019
even in the Second Appeal. In this view of the matter, C.M.P.No.219 of
2022 is allowed. Registry is directed to make appropriate amendment in
the plaint.
12. Though it is the case of the appellant/plaintiff that the amount
was paid as advance amount towards the sale transaction, it is the case of
the respondent/defendant that the amount was due to the
appellant/plaintiff in connection with the loan transaction and other
expenses relating to cancellation of Power of Attorney and not for
execution of the sale agreement.
13. The learned counsel for the respondent/defendant genuinely
admitted the receipt of Rs.2,65,000/- and is ready to return the same.
Thus, the substantial questions of law are answered in the above terms.
14. In the result, this Second Appeal is allowed. The judgment of
the first Appellate Court is set aside and modified to the effect that the
respondent/defendant is directed to return the sum of Rs.2,65,000/- to the
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S.A.No.874 of 2019
appellant/plaintiff with interest at the rate of 12% p.a from the date of
filing the suit till the date of decree and thereafter at 6% p.a. till the date
of realisation of the amount within a period of three months from today or
she shall deposit the same before the trial Court and the said amount shall
carry interest at 12% p.a from today until the payment is made. There
shall be no order as to costs. Consequently, connected miscellaneous
petition filed in C.M.P.No.219 of 2022 stands allowed.
07.01.2022
kmm
Index:Yes/No
Internet:Yes/No
Speaking Order: Yes/No
Note: Issue order copy on or before 18.02.2022
To
1. The Subordinate Judge, Rasipuram.
2. The Principal District Judge, Namakkal.
3. The Section Officer,
VR Section,
High Court of Madras.
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S.A.No.874 of 2019
G.CHANDRASEKHARAN.J,
kmm
S.A.No.874 of 2019
07.01.2022
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