Madras High Court
Gowri vs Jayamani on 1 March, 2022
SA.No.128/2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
SA.No.128/2022 & CMP.No.2683/2022
[Physical Hearing]
Gowri .. Appellant /
Plaintiff
Vs.
Jayamani .. Respondent /
Defendant
Prayer:- Second Appeal preferred under 100 of CPC against the judgment
and decree dated 17.06.2019 made in AS.No.15/2018 by the learned
Principal District Judge, Krishnagiri, in reversing the judgment and decree
dated 23.11.2016 made in OS.No.96/2014 by the learned Additional
Special Judge, Krishnagiri.
For Appellants : Mr.Ma.Gowthaman
https://www.mhc.tn.gov.in/judis 1
SA.No.128/2022
JUDGMENT
(1) The plaintiff in the suit in OS.No.96/2014 on the file of the learned
Additional Special Judge, Krishnagiri is the appellant in the above
Second Appeal.
(2) The appellant, as plaintiff filed the suit in OS.No.96/2014 for
specific performance of an Agreement of Sale dated 18.07.2012 by
receiving the balance of sale consideration, namely, Rs.5,000/-, and
for other consequential reliefs.
(3) The case of the plaintiff in the plaint is that the suit property
belongs to the defendant. On 18.07.2012, the plaintiff and
defendant entered into a registered Agreement of Sale for a total
sale consideration of Rs.1,05,000/-. The defendant received a sum
of Rs.1,00,000/- as advance and the balance of Rs.5,000/- is
payable within two years from the date of the said Agreement. The
defendant also handed over the original Sale Deed [Title Deed]
dated 11.04.2000 to the plaintiff. In pursuance of the Sale
Agreement, even on 10.01.2013, the plaintiff expressed her
readiness and willingness to perform her part of the Agreement and
SA.No.128/2022
called upon the defendant to execute the Sale Deed after receiving
the balance of sale consideration. The plaintiff also issued a notice
to the defendant on 24.06.2014 and thereafter, filed the suit.
(4) The suit was contested by the defendant by filing a written
statement mainly on the ground that the defendant approached the
plaintiff for a hand loan of Rs.1,00,000/- for his urgent family
expense during the first week of July 2012 and the plaintiff agreed
to lend money on condition that the defendant should execute and
register a Sale Agreement in favour of the plaintiff in respect of the
suit property. Therefore, the case of the defendant is that the
Agreement dated 18.07.2012 was not with an intention to sell the
property, but as a security for the loan transaction. It is further
stated by the defendant that the value of the suit property is not less
than Rs.6 lakhs as on the date of the Agreement and therefore, the
defendant would never agree to sell the property for a paltry sum of
Rs.1,05,000/- as stated in the Agreement.
(5) Before the Trial Court, the plaintiff examined herself as PW1 and
one Elavarasan as PW2. On the plaintiff's side, Exs.A1 to A4 were
SA.No.128/2022
marked. The defendant examined himself as DW1 and marked
Exs.B1 and B2.
(6) The Trial Court framed only one issue as, whether the plaintiff is
entitled to the relief of specific performance in respect of the suit
property. Based on the admission of the defendant that he executed
the suit Agreement and received a sum of Rs.1 lakh, the Trial Court
came to the conclusion that the Agreement is proved. Since the suit
Agreement was proved to be an Agreement of Sale, the contention
of the defendant was rejected by the Trial Court and the suit was
decreed as prayed for. As against the judgment and decree of the
Trial Court, the defendant preferred an Appeal in AS.No.15/2018
before the learned Principal District Judge, Krishnagiri.
(7) The Lower Appellate Court, after considering the evidence on both
sides came to the conclusion that the Agreement was not intended
for selling the property, but executed by the defendant as a security
for a loan transaction. The Lower Appellate Court relied upon the
evidence of PW2 who was examined by the plaintiff herself to
prove the transaction. Since PW2 specifically admitted that the
SA.No.128/2022
plaintiff and her husband are doing money lending business and
used to obtain Sale Agreement as a security for the loan transaction
and further stated that the suit agreement was not intended to be
acted as a Sale Agreement, but obtained by the plaintiff as a
security for the loan transaction, the Lower Appellate Court
reversed the judgment of the Trial Court after holding that the
plaintiff is not entitled to the equitable relief of specific
performance. The Lower Appellate Court also found that the value
of the property is much more than the consideration shown in the
Agreement and that the plaintiff has not offered an explanation for
stipulating two years period in the Sale Agreement for completing
the sale by paying the paltry sum of Rs.5000/-. After referring to
several precedents of this Court in similar cases and the evidence of
PW2, the Lower Appellate Court found that the plaintiff being a
money lender, has not proved her case that the suit Agreement was
executed with a clear intention to sell the suit property in favour of
the plaintiff for a sum mentioned in the suit Agreement. Aggrieved
by the judgment of the Lower Appellate Court reversing the
SA.No.128/2022
judgment of the Trial Court, the above Second Appeal is preferred
by the plaintiff.
(8) In the Memorandum of Grounds, the appellant has raised the
following substantial questions of law:-
[1] Whether the appellant herein is entitled to
the relief of specific performance in respect of the
suit property in the suit?
[2] To what relief the plaintiff is entitled?
(9) Though the questions of law are not properly framed, the learned
counsel for the appellant relying upon the evidence of DW1,
submitted that the suit Agreement is candidly admitted by the
defendant himself in the course of evidence and that the finding of
the Lower Appellate Court describing the transaction as a security
for loan transaction is contrary to evidence. The learned counsel
then submitted that the evidence of PW2-Elavarasan cannot be
taken in the present case, especially when PW2 has spoken
something which is contrary to facts and it is open to the plaintiff to
let in evidence contradicting the version of PW2. Referring to
Section 73 of the Indian Evidence Act, the learned counsel made a
SA.No.128/2022
submission that the contract is between the plaintiff and the
defendant and PW2 was examined only as a witness who has
attested the document. When PW2 was examined only to prove the
execution of the Sale Agreement under Ex.A1, the Court need not
look into his evidence with regard to the character or nature of
transaction as he is not competent to speak about the same. When
the transaction between the plaintiff and defendant as a genuine
Sale Agreement is established by the plaintiff, the Lower Appellate
Court ought not to have reversed the well considered judgment of
the Trial Court only on the ground that the plaintiff's side witness
has spoken otherwise about the Sale Agreement.
(10) This Court has considered the arguments of the learned counsel for
the appellant in the light of the pleadings and evidence.
(11) Firstly, the terms of the Agreement itself raises a doubt as to the
genuineness of the Sale Agreement. The plaintiff and defendant
have signed the Agreement and there is no dispute about the
execution of the Sale Agreement. However, the plaintiff has paid a
sum of Rs.1 lakh out of total consideration of Rs.1.05 lakhs on the
SA.No.128/2022
date of Agreement. However, two years period was stipulated in
the Agreement for paying the balance. From the whole pleadings
and evidence, this Court is unable to find any explanation for
stipulating a long time of two years to pay the balance of Rs.5000/-
which is less than 5% of the total sale consideration.
(12) The learned counsel for the appellant submitted that there was
some encumbrance at the time when the Agreement was executed
and therefore, two years period was stipulated to enable the
defendant to get the encumbrance cleared. This submission is
contrary to the admitted facts. Even according to the plaintiff, it is
seen that on the date of agreement, the title Deed was handed over
to the plaintiff. It is further stated by the plaintiff that she did not
know with whom the document was pledged by the defendant. It is
further stated that the document was taken from one Rani by
paying some money and handed over to the plaintiff. However, the
plaintiff was unable to say as to how much money was paid to the
said Rani. It is further admitted that the plaintiff did not
accompany the defendant and she did not know how much money
SA.No.128/2022
was paid and how the document was obtained and Agreement was
prepared within a short time. When the document of title was
handed over to plaintiff on the date of Agreement, the case of
appellant's counsel before this Court that there was encumbrance
cannot be countenanced particularly when there is no pleading.
(13) The evidence of the plaintiff's witness, namely, PW2, the attestor to
the document-Ex.A1 is relevant and hence, it is extracted below:-
''thjpapd; fzth; bgah; uhkrhkp/ bfsup
uhkrhkp Mfpnahh; epyj;jpd; bgaupy;
mlkhdk; itj;J Cupy; cs;sth;fSf;F
fld; bfhLg;ghh;fs; vd;why; rupjhd;/
bfhLj;jpUf;fpwhh;fs;/ b$akzp vd;gthplk;
epyj;jpd; bgaupy; mlkhdk; itj;J gzk;
bfhLj;jhh;fs; vd;why; rhpjhd;/
bkhj;jkhf xU yl;rk; U:gha; fld;
bfhLj;jhh;fs; vd;why; rupjhd;/ me;j xU
yl;rk; U:gha;ff
; hd mf;upbkz;l;
vGjpf;bfhz;lhh;fs;/ vf;!;gpl; V/2tpy; cs;s
rhl;rpf; ifbaGj;jpy; ,uz;lhtJ
vd;DilaJ jhd;/ vd;dplk; fhl;lg;gLk;
vf;!;gpl; V/2tpy; fpua mf;upbkz;l;
vd;whYk;. b$akzp thjpaplk; th';fg;gll;
flDf;F cupa fpua mf;upbkz;l; vd;why;
rupjhd;/ me;j mf;upbkz;l; epyj;ij
tpw;gjw;fhf Vw;gLj;jg;gl;lJ my;y
vd;whYk; gpujpthjp thjpaplk; th';fpa
flDf;fhf brf;a{upl;o ghJfhg;g[ Mtzk;
vd;why; rhpjhd;/''
(14) From the proof affidavit, it is seen that PW2 was examined not only
SA.No.128/2022
to prove the signature but also to prove the actual transaction
between the plaintiff and defendant. PW2 has also stated that he
was present at the time of execution of the Agreement. In such
circumstances, the evidence of PW2 assumes more importance and
the plaintiff has never come forward to explain as to how PW2 had
spoken against the case of the plaintiff. When a witness speaks
contrary to the case of the plaintiff, it is open to the plaintiff to
cross-examine him/her by treating the witness as a hostile witness.
However, no effort was taken by the plaintiff to prove her case that
the said witness had lied before Court. Therefore, this Court cannot
discard the evidence of PW2 who was examined by the plaintiff
herself.
(15) The Lower Appellate Court relied upon the evidence of PW2 to
hold that the suit Agreement was not intended to be acted upon as
an Agreement of Sale, but was executed at the compulsion of the
plaintiff at the time of advancing the loan to the defendant. The
findings of the Lower Appellate Court is supported by evidence and
this Court is unable to find any other evidence to disbelieve the
SA.No.128/2022
statement of PW2 or to contradict his version. Hence, this Court
finds no substance in any of the substantial questions of law framed
or raised by the learned counsel for the appellant during the course
of argument.
(16) Since the receipt of a sum of Rs.1 lakh from the appellant / plaintiff
is not disputed, the learned counsel for the appellant requested this
Court that liberty may be given to the appellant/plaintiff to file a
suit for recovery of the said sum.
(17) Considering the admitted facts, this Court is of the view that such
liberty can be given to the appellant / plaintiff. However, this Court
does not express any opinion on the merits of such claim after this
length of time.
(18) With the above observations, the Second Appeal stands dismissed.
Consequently, connected miscellaneous petition is closed.
01.03.2022
AP
Internet : Yes
To
SA.No.128/2022
1.The Principal District Judge
Krishnagiri.
2.The Additional Special Judge
Krishnagiri.
3.The Section Officer
VR Section, High Court
Chennai.
SA.No.128/2022
S.S.SUNDAR, J.,
AP
SA.No.128/2022
01.03.2022
https://www.mhc.tn.gov.in/judis 13
