Madras High Court
V.Selvaraj vs A. Chandrasekaran on 14 June, 2022
S.A.No.242 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.06.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.242 of 2022
V.Selvaraj ...Appellant
Vs
1. A. Chandrasekaran
2. S. Vimaldevi ... Respondents
Prayer: Second Appeal is filed under Section 100 of C.P.C against the
judgement and decree made in A.S.No.19 of 2019 on the file of the
Principal District Judge, Erode, dated 18.12.2019 confirming the
judgment and decree made in O.S.No.23 of 2010 on the file of the II
Additional Subordinate Judge, Erode dated 12.11.2018.
For Appellant : Ms.K.S.Kamakshi
JUDGEMENT
The un-successful plaintiff in a suit for specific performance
before the Courts below is the appellant herein before this Court.
https://www.mhc.tn.gov.in/judis
S.A.No.242 of 2022
2. The facts in brief are as follows:
The plaintiff had filed a suit O.S.No.23 of 2010 on the file of the
Subordinate Court, Erode District, seeking specific performance of an
Agreement of Sale dated 02.05.2005. It is the case of the plaintiff that
the defendants, who are the owners of the suit properties, had entered
into a registered Sale Agreement with the appellant on 02.05.2005
agreeing to sell the suit properties for a total sale consideration of
Rs.2,50,000/-. On the date of the agreement, the defendants had
received a sum of Rs.2,00,000/- as part consideration. The balance
sum of Rs.1,50,000/- was to be paid within a period of two years from
the date of the agreement. It is the case of the plaintiff that he has
been always ready and willing to get the sale deed free from all
encumbrances as per the terms of the Sale agreement, for which
purpose, the appellant had been calling upon the respondents to
execute the sale deed in his favour on several occasions. It was the
further case of the appellant that on 25.03.2007, the defendants had
https://www.mhc.tn.gov.in/judis
S.A.No.242 of 2022
received a sale consideration of Rs.50,000/-, for which, they executed a
receipt. Despite this, the defendants have not come forward to execute
and register the Sale Deed. On 08.11.2009, the plaintiff had
approached the defendants, calling upon them to execute the Sale
Deed. However, instead of coming forward to execute the Sale Deed,
the defendants had demanded higher amount. Thereafter, the appellant
had issued a legal notice dated 28.11.2009, calling upon the defendants
to come and execute the Sale Deed as per the terms of the Sale
Agreement. Notices were duly served at the address of the defendants,
however, they had neither come forward to execute the Sale Deed nor
responded to the legal notice. Therefore, the plaintiff had come
forward with the suit in question.
3. The first defendant had filed a written statement, which
was adopted by the second defendant, in which, they had contended
that the plaintiff was a money lendor, from whom, the defendants had
https://www.mhc.tn.gov.in/judis
S.A.No.242 of 2022
borrowed a sum of Rs.1,50,000/- to meet the urgent family expenses.
The defendants have been paying 3% interest every month for the
amount borrowed. As a security for the said loan, the plaintiff had
insisted upon the execution of the Sale Deed and a Power of Attorney.
The plaintiff had assured that these Deeds would be cancelled on the
re-payment of loan amount. It is the further case of the defendants that
on 02.11.2009, the entire amount with interest had been re-paid and the
Power of Attorney was cancelled. However, when the defendants had
called upon the plaintiff to cancel the Sale Agreement, the plaintiff
demanded that the defendants to sell the properties to him, which was
denied by the defendants. Without cancelling the Sale Agreement, the
plaintiff had come forward with the present suit. The defendants
would further submit that the value of the properties is over
Rs.10,00,000/-. Therefore, by no stretch of imagination would they
have agreed to sell the properties for a pittance. This would clearly
https://www.mhc.tn.gov.in/judis
S.A.No.242 of 2022
establish that the Agreement of Sale was nothing but a security for a
loan.
4. The learned II Additional Subordinate Judge, Erode had
framed the following issues:
(i) Whether the plaintiff is entitled for the relief of
specific performance as prayed for?
(ii) Whether it is true that the suit agreement was
not entered for selling of properties as stated by the
defendants?
5. On the side of the plaintiff, the plaintiff had examined
himself as P.W.1 and one Prem Anand and Varadharajan as P.Ws 2
and 3 respectively. On his side, Exs.A1 to A5 were marked. On the
side of the defendants, the second defendant examined herself as
D.W.1 and one Loganathan examined as D.W.2 and Exs.B1 to B7 were
https://www.mhc.tn.gov.in/judis
S.A.No.242 of 2022
marked. The learned II Additional Subordinate Judge, Erode, after
considering the evidence of P.W.2, came to the conclusion that the
transaction between the plaintiff and the defendants was purely a
money transaction. P.W-2, who was working in the Office of the
appellant, in his cross examination, has admitted that the agreement
was executed only for the purpose of the money transaction as also the
Power of Attorney. He had also stated that the receipt, which has been
marked as Ex.A-2, was signed on the same day as the agreement. The
learned Judge, therefore, held that the defendants had entered into an
agreement to sell not for the purpose of selling the properties.
6. Aggrieved by this judgment and decree, the plaintiff had
filed an Appeal in A.S.No.19 of 2019 on the file of the Principal
District Court, Erode. The learned Principal District Judge, also
confirmed the judgment and decree of the Trial Court. The learned
Judge has also observed that the Power of Attorney-Ex.B1 was in force
https://www.mhc.tn.gov.in/judis
S.A.No.242 of 2022
from the date of the agreement till its cancellation on 14.10.2009 and it
was well open to the plaintiff to get the Sale Deed executed, if really
the document in question was intended to be treated as an Agreement
of Sale as put forward by the appellant. However, such step has not
been taken by the appellant. The learned Judge had observed that the
conduct of the plaintiff clearly showed that he was not ready and
willing to proceed with the Agreement of Sale. The learned District
Judge had also considered the evidence of P.W2 and P.W.3 that the
appellant was running a finance business, which confirmed the case of
the defendants that the Agreement of Sale was only executed as a
security for a borrowal. Aggrieved by this judgment and decree, this
appeal has been filed.
7. Heard the learned counsel appellant and perused the
materials available on record.
https://www.mhc.tn.gov.in/judis
S.A.No.242 of 2022
8. The case of the appellant is that the Agreement of Sale had
been entered on 02.05.2005 for a total sale consideration of
Rs.2,50,000/-. On the date of the agreement, a sum of Rs.2,00,000/-
has been paid and the period within which the balance sum of
Rs.50,000/- payable was two years. It is also the case of the appellant
that the said sum of Rs.50,000/- has been paid on 25.03.2007. It is an
admitted fact that along with the Agreement of Sale, Power of Attorney
had also been executed in favour of the appellant's wife. If really, the
transaction was a sale, on the payment of the balance sale consideration
allegedly on 25.03.2007, the appellant could have proceeded to have
the Sale Deed executed in his favour by utilising the Power of Attorney
in favour of his wife. However, the appellant has waited for a further
period of two years and filed a suit only in the year 2009. The lower
Appellate Court has clearly held that the conduct of the appellant
clearly proved that he was neither ready nor willing to proceed with the
execution of the Sale Deed. Readiness and willingness is the
https://www.mhc.tn.gov.in/judis
S.A.No.242 of 2022
sine qua non in a suit for specific performance. The appellant has
failed to prove the same. That apart, the Courts below have considered
the oral evidence of P.Ws.2 and 3, who have deposed that the appellant
was engaged in the business of money lending and that the Agreement
was only executed a security for the loan. The decree for specific
performance is a discretionary relief available to a appellant, who
comes to the Court with clean hands. In the instant case, this element
is lacking. Therefore, I see no reason to interfere with the concurrent
judgment and decree of the Courts below. Further, no substantial
questions of law has been made out by the appellant. Accordingly, the
second appeal is dismissed. No costs.
14.06.2022
Index : Yes/No
Speaking order/non-speaking order
srn
https://www.mhc.tn.gov.in/judis
S.A.No.242 of 2022
To
1. The Principal District Judge, Erode,
2. The II Additional Subordinate Judge, Erode
3. The Section Officer, V.R.Section, High Court, Madras
https://www.mhc.tn.gov.in/judis
S.A.No.242 of 2022
P.T.ASHA, J.,
srn
S.A.No.242 of 2022
14.06.2022
https://www.mhc.tn.gov.in/judis
