Madras High Court

Thangamani vs Maheswari on 1 July, 2022

                                                                                      S.A.No.375 of 2020


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED: 01.07.2022

                                                           CORAM

                                     THE HONOURABLE Ms. JUSTICE P.T. ASHA

                                                  S.A.No.375 of 2020
                                              and C.M.P.No.2276 of 2020


                     Thangamani                                          ...   Appellant

                                                            Vs

                     Maheswari                                           ...   Respondent



                     Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code
                     1908, praying to set aside the judgment and decree passed in
                     A.S.No.26/2018 dated 04.07.2019 passed by the learned III Additional
                     District and Sessions Judge, Erode at Gobichettipalayam, reversing the
                     judgment and decree passed in O.S.No.151/2016 dated 19.12.2017 passed
                     by the learned Sub Judge, Sathyamangalam and allow this second appeal.

                                    For Appellant      :     Mr. S.Parthasarathy

                                    For Respondent     :     Mr.K.Govi Ganesan


                     1/11



https://www.mhc.tn.gov.in/judis
                                                                                            S.A.No.375 of 2020


                                                         JUDGEMENT

The unsuccessful plaintiff before the Courts below is the appellant

before this Court.

2. The facts in brief necessary for disposing of the second appeal

are narrated herein below. The parties to the lis are referred in the same

rank as before the Trial Court.

3. The plaintiff had filed O.S.No.151 of 2016 on the file of the

Subordinate Court, Sathyamangalam for specific performance of an

Agreement of Sale dated 12.12.2014. It was the case of the appellant that

on the said date, the plaintiff and the defendant had entered into an

Agreement of Sale in respect of the suit property, which belonged to the

defendant. The total sale consideration was fixed at a sum of Rs.5,10,000/-

and the Agreement of Sale was a registered Deed. The defendant had

received a sum of Rs.5,00,000/- as advance on the date of the Agreement of

Sale and the balance sum was payable within one year, on payment of

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which, the defendant was to execute the Sale Deed in favour of the plaintiff.

However, the parties had agreed that the time was not the essence of the

contract. The plaintiff would submit that he has been always ready and

willing to pay the balance consideration and get the sale deed executed.

However, the defendant did not co-operate. Thereafter, an extension of one

more year was given by way of Registered time Extension Deed dated

06.11.2015. Even after this period, the defendant was not ready. This

constrained the plaintiff to issue a legal notice dated 06.04.2016. Even after

the receipt of the legal notice, the defendant did not come forward to execute

the Sale Deed. Therefore, the plaintiff has been constrained to file the suit

for specific performance or in the alternative for refund of the advance

amount.

4. The defendant had filed the written statement inter-alia

contending that the agreement of sale was not intended to be an agreement

of sale but only as security for loan Rs.1,00,000/- borrowed for meeting

certain expenses of her son. In fact, the defendant had approached the

https://www.mhc.tn.gov.in/judis S.A.No.375 of 2020

husband of the plaintiff, one Pongiyanna Gounder, who was doing money

lending for the loan. The amount was borrowed from the said Pongiyanna

Goundar and the defendant had agreed to repay the loan with interest at

Rs.4/- per Rs.100 per month. While granting the loan, the plaintiff's

husband had obtained signatures from the defendant on various blank

papers as well as non-judicial stamp papers. The plaintiff's husband had

informed the defendant that on the re-payment of the loan amount, the

agreement of sale would be cancelled. When the legal notice was received,

the defendant had met the plaintiff, who informed that she was not aware of

any of the details and would contact her husband. Therefore, the defendant

believing her words, had not replied to the legal notice. Further, the value of

the property was over a sum of Rs.25,00,000/- and there is no necessity for

the defendant to sell the property for such a low price .

5. The Trial Court had framed the following issues:

(i) Whether the suit Sale Agreement dated

12.12.2014 is executed for the purpose of loan transaction?






https://www.mhc.tn.gov.in/judis
                                                                                                      S.A.No.375 of 2020


                                             (ii)    Whether the suit Sale Agreement dated

12.12.2014 is true and the plaintiff is ready and willing to

perform the Sale Agreement?

(iii) Whether the plaintiff is entitled to relief of the

specific performance as prayed for?

(iv) Whether the plaintiff is entitled to the

alternative relief as prayed for?

(v) To what other reliefs?

6. The plaintiff examined himself as P.W1 and marked Exs.P1 to

P4. He had examined one Subramanian as P.W2. The defendant had

examined herself as D.W1 and no documents were marked on her side.

7. After hearing both sides, the Trial Court came to the conclusion

that the transaction was simpliciter a loan transaction and the agreement of

sale merely offered as a security for the loan. However, the Trial Court had

directed the refund of a sum of Rs.5,00,000/- with interest to the plaintiff.

https://www.mhc.tn.gov.in/judis S.A.No.375 of 2020

Aggrieved by the same, the defendant filed a first Appeal in A.S.No.26 of

2018 on the file of the III Additional District and Sessions Judge, Erode at

Gobichettipalayam. The learned Additional District and Sessions Judge, by

his judgment and decree dated 04.07.2019, allowed the appeal and

dismissed the suit. Challenging the same, the appellant/plaintiff is before

this Court.

8. This Second Appeal was admitted on the following substantial

questions of law.

(i) Whether the lower appellate Court is right in coming to the conclusion that the appellant is not entitled for advance amount, when the respondent had admitted the execution of the sale agreement?

(ii) Whether the lower appellate Court is right in coming to the conclusion that the appellant is not entitled for refund of amount when the respondent has not deposed u/s.92 of Evidence Act to prove that he had not

https://www.mhc.tn.gov.in/judis S.A.No.375 of 2020

executed the sale agreement?

9. Mr.S.Parthasarathy, learned counsel appearing for the

appellant would contend that the appellate Court by allowing the appeal has

wrongly dismissed the suit in its entirety. He would submit that the

defendant having admitted the Agreement of sale is bound to re-fund the

advance amount shown in the Agreement of Sale-Ex.A1. Therefore, he

would submit that the judgment requires to be set aside.

10. Mr.K.Govi Ganesan, learned counsel appearing on behalf of the

respondent would contend that as regards the first argument that the suit has

been dismissed in entirety is correct. The trial Court, by its judgment and

decree had dismissed the suit insofar as the prayer for relief of specific

performance. This decree has not been challenged by the plaintiff. The

defendant aggrieved by the grant of the alternate relief, has moved the

appellate Court and obtained a decree in her favour. Therefore, the

contention of the appellant that the appellate Court had erred in dismissing

the suit in its entirety is misplaced. Further, he would submit that the case

https://www.mhc.tn.gov.in/judis S.A.No.375 of 2020

of the defendant is that the Agreement of Sale was only offered as a security

for a loan of Rs.1,00,000/- borrowed by the defendant. The Trial Court has

accepted the defence of the appellant that the transaction between the two

was only a loan transaction and not for the sale of property. Therefore, the

contention of the appellant that the amounts specified in the document

constitutes the loan amount, to say the least, is puerile. The Appellate Court

has extensively dealt with his contention in paragraph 20 of the said

judgment.

"20. Further it is the case of the defendant that she borrowed a sum of Rs.1,00,000/- from the husband of the plaintiff to meet the marriage expenses of her son. The plaintiff and P.W2 in their cross examination denied the above facts. In that circumstances if we go through the plaint in para 3 it is found that "the plaintiff further states that he has been continuously to complete the sale to perform his part of the contract, in para 5 in 3 places the words his and he were found. In para 6 it is found in favour of him. These are all the wording incorporated by the plaintiff in the plaint is reliably or presumably understand that the transaction is between the defendant and the husband of the plaintiff as stated by the defendant. The trial

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Court has shifted the burden to the defendant to prove that she has not borrowed the amount of Rs.1,00,000/- by adducing evidence. The very case of the plaintiff is the Ex.A1 Agreement to Sale was executed between the parties for sale of the suit property. That itself is not proved by the plaintiff before the trial Court and adducing contradictory evidence after analyzing the same the trial Court found that the Ex.A1 was not executed for specific performance. In that circumstances the trial Court cannot take a self contradictory view in directing the defendant to repay the advance amount which is found in Ex.A1, the same was disbelieved by the trial Court."

11. The learned counsel for the respondent rely upon a judgment of

this Court reported in 2017(1) MWN (Civil) 187 [P.Vaidyanathan Vs.

K.Sundaram], where in a similar case, this Court relying upon a earlier

judgment of this Court reported in 2016 (6) CTC 225 [Rajammal and

another Vs.M.Senbegam] had held that once it is clear that the Agreement

of Sale was never intended to be an Agreement of Sale, they can never be a

plea for refund of advance. The case on hand is also similar. Therefore,

considering the ratio laid down in the above judgment and taking into

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account the facts of the case as also the well considered judgment of the

appellate Court, the substantial questions of law are answered against the

appellant/plaintiff. Accordingly, the second appeal is dismissed. No costs.