Madras High Court
B.Chandran vs D.Jeyachandran on 7 March, 2022
A.S(MD).No.235 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 07.03.2022
CORAM
THE HONOURABLE MS. JUSTICE R.N.MANJULA
A.S(MD).No.235 of 2021
B.Chandran
S/o.Bojan .. Appellant/Plaintiff
Vs.
D.Jeyachandran
S/o.R.Deenadhayalan .. Respondent/Defendant
Prayer : This Appeal Suit is filed under Order 41 Rule 1 & 2 r/w Section
96 of Civil Procedure Code, against the judgment and decree passed in
O.S.No.23 of 2016 dated 15.11.20219 on the file of the learned
Additional District & Sessions Judge, Theni, dated 15.11.2019.
For Appellant : Mr.N.Sathish Babu
For Respondent : Mr.Suriyanarayanan
JUDGMENT
This Appeal Suit has been preferred challenging the judgment and
decree in O.S.No.23 of 2016 dated 15.11.2019 passed by the learned
Additional District and Sessions Judge, Theni.
https://www.mhc.tn.gov.in/judis
A.S(MD).No.235 of 2021
2. The appellant was the plaintiff before the trial Court. He has filed a
suit for specific performance. The case of the appellant/plaintiff is that on
06.02.2015, he entered into the sale agreement with the defendant for
selling the suit property for a valuable sale consideration of
Rs.13,50,000/- (Rupees Thirteen Lakhs and Fifty Thousand only) and
executed a registered sale agreement on the same day; on the date of the
sale agreement itself, a sum of Rs.10,00,000/- (Rupees Ten Lakhs only)
was paid by the plaintiff to the defendant as a part sale consideration; it
was agreed between the parties that the balance sale consideration of
Rs.3,50,000/- (Rupees Three Lakhs and Fifty Thousand only) should be
paid within three years and the sale deed be executed; though the
plaintiff was ready and willing to pay the balance sale consideration of
Rs.3,50,000/- (Rupees Three Lakhs and Fifty Thousand only) to the
defendant and called upon him to receive and execute the sale deed, the
defendant refused to execute the sale agreement. After issuing a legal
notice on 19.03.2016, the plaintiff has filed a suit for specific
performance.
3. The respondent/defendant contested the suit by stating that the sale
agreement is sham and nominal one and it was executed only as a
https://www.mhc.tn.gov.in/judis
A.S(MD).No.235 of 2021
security for the loan amount availed by the defendant from the plaintiff;
the plaintiff is a money lender; he used to charge usuarious interest for
the money lent by him. The defendant borrowed a sum of Rs.10,00,000/-
(Rupees Ten Lakhs only) from the plaintiff on 06.02.2015 with the
interest at the rate of Rs.3/- per 100 per month; since the plaintiff urged
the defendant to execute a sale agreement as a security, the suit sale
agreement was executed; on earlier few occasions also, the defendant had
availed loan from the plaintiff and executed similar such sale agreements;
the suit property is worth about Rs.60,00,000/- (Rupees Sixty Lakhs
only) and no one would agree to sell the same for a meagre sale price of
Rs.13,50,000/- (Rupees Thirteen Lakhs and Fifty Thousand only);
despite the defendant had repaid the loan on 24.03.2016, the plaintiff
evaded to cancel the sale agreement but filed the suit.
4. On the basis of the above pleadings, the learned trial Judge had framed
the following issues:-
“1/ 06/02/2015 k; njjpapl;l fpiua xg;ge;jk; gpujpthjp thjpaplk;
bgw;w fld; bjhif brf;a{hpl;oahf tH';fg;gl;ljh>
2/ thjpf;F gpuhjpy; nfhhpa[s;sgo Vw;wij Mw;Wf ghpfhuk;
fpilf;ff; Toajh>;”
https://www.mhc.tn.gov.in/judis
A.S(MD).No.235 of 2021
5. During the course of trial, on the side of the plaintiff, two witnesses
were examined as P.W.1 and P.W.2 and four documents were marked as
Exs.A1 to A4. On the side of the defendant, the defendant was examined
himself as D.W.1 and 10 documents were marked as Exs.B1 to B10. The
learned trial Judge, after examining the evidence available on record,
dismissed the suit. Aggrieved over that, the plaintiff has preferred this
appeal.
6. The learned counsel for the appellant submitted that despite the sale
agreement was registered one, the trial Judge disbelieved the same; since
the defendant admitted the execution of the sale deed, he has to abide by
the terms of contract; it was not proved by the defendant that he had
executed the sale agreement only as a security for the loan transaction;
the respondent/defendant has agreed that he had received a sum of
Rs.10,00,000/- (Rupees Ten Lakhs only) from the plaintiff on
16.02.2015; under such circumstances, the learned trial Judge ought to
have decreed the suit.
https://www.mhc.tn.gov.in/judis
A.S(MD).No.235 of 2021
7. The learned counsel for the respondent submitted that the evidence on
record would show that the plaintiff is a money lender and he was in the
habit of lending money and getting such kind of sale agreement by way
of security; the defendant has proved through Exs. B1 to B6 that the sale
agreement was executed only by way of security.
8. The point for consideration:
''Whether the finding of the trial Court that the sale
agreement was executed only by way of security and
dismissing the case is correct?''
9. The fact that the appellant/plaintiff and the respondents/defendants
had executed a sale agreement between themselves by Ex.A1 is not
disputed. The fact that the suit property belongs to the defendant is also
admitted. It is also admitted by the defendant that on the date of the sale
agreement, he received a sum of Rs.10,00,000/- (Rupees Ten Lakhs only)
from the plaintiff. While the appellant/defendant claims that the Ex.A1
sale agreement was executed only with an intention to sell the suit
property, the respondents/defendants have stated that the sale agreement
was sham and nominal one and it was executed by way of security for the
https://www.mhc.tn.gov.in/judis
A.S(MD).No.235 of 2021
loan amount availed by him on the same day from the plaintiff. Though
the defendant has admitted the receipt of sum of Rs.10,00,000/- (Rupees
Ten Lakhs only) from the appellant/plaintiff, he has stated that it was
only a loan and not as a partial sale consideration for selling suit
property.
10. It is pertinent to note that Ex.A1 is the registered sale agreement.
When the defendant did not disown the execution of Ex.A1, but claims
that it was executed with some other intention, the burden is on him to
prove the same.
11. In order to prove that the respondent/plaintiff is a money lender and
he was in a habit of getting such sale agreement and he would cancel
them after loan was paid, the defendant has produced Exs.B1 to B6.
These documents would show that the plaintiff had executed several sale
agreements with the defendant and he had cancelled them subsequently.
The learned trial Judge had elaborated on this and only in view of that he
had arrived at the conclusion that the suit the suit sale agreement was
also executed by way of security.
https://www.mhc.tn.gov.in/judis
A.S(MD).No.235 of 2021
12. The defendant was in the habit of availing loan from the plaintiff and
after he paid each loan, the respective sale agreements executed by him
was cancelled by the plaintiff. The defendant had also given a police
complaint and insisted the plaintiff to cancel the sale agreement after the
loan was discharged.
13. Even in the suit sale agreement, it is seen that after paying the major
amount of Rs.10,00,000/- (Rupees Ten Lakhs only), three years time was
agreed to settle the balance amount of Rs.3,50,000/- (Rupees Three
Lakhs and Fifty Thousand only). In three years time, the value of the
property would have escalated exponentially; Hence no seller like the
defendant would wait for three years to get the meager sum of
Rs.3,50,000/- (Rupees Three Lakhs and Fifty Thousand only) get the sale
deed executed. Though the claim by the appellant/plaintiff that he was
ready and willing to pay the balance sale price of Rs.3,50,000/-(Rupees
Three Lakhs and Fifty Thousand only), the fact remains that the time for
performance was agreed at three years. If the appellant/plaintiff was
enjoying sufficient financial capability, there is no need for him to
bargain and unusual period of three years to pay the balance. Since the
https://www.mhc.tn.gov.in/judis
A.S(MD).No.235 of 2021
intention for executing the sale agreement has been proved otherwise
and not with an intention to sell the suit property, it is correct for the trial
Judge to non-suit the plaintiff for the relief of specific performance. In
my considered view, the judgment of the trial Court does not suffer from
any factual or legal infirmity and it does not warrant any interference.
Thus, the point is answered against the appellant.
In the result, this Appeal Suit is dismissed and the judgment and
decree passed in O.S.No.23 of 2016 dated 15.11.2019 on the file of the
learned Additional District and Sessions Judge, Theni, is confirmed. No
Costs.
07.03.2022
Index : Yes/No
Internet : Yes/No
tta
https://www.mhc.tn.gov.in/judis
A.S(MD).No.235 of 2021
To
1. learned Additional District and Sessions Judge, Theni.
2.The Section Office,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
A.S(MD).No.235 of 2021
R.N.MANJULA, J.
tta
A.S(MD).No.235 of 2021
07.03.2022
https://www.mhc.tn.gov.in/judis
