Madras High Court
P.R.Subramaniya Raja vs K.Pandaram on 3 April, 2023
A.S(MD).Nos.75 of 2019 and 192 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.04.2023
CORAM
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
A.S(MD).Nos.75 of 2019 and 192 of 2021
and C.M.P(MD).No.3819 of 2023
A.S(MD).No.75 of 2019
P.R.Subramaniya Raja ...Appellant/1st Defendant
Vs.
1.K.Pandaram
2.P.Annamalai Ammal ...Respondents 1 and 2/Plaintiffs
3.The Branch Manager,
Life Insurance Corporation of India,
Tirunelveli Branch,
Palayamkottai,
Tirunelveli-2. ...3rd Respondent/2nd Defendant
Prayer:First Appeal filed under Section 96 of C.P.C, to set aside the
judgment and decree dated 23.11.2018 passed in O.S.No.22 of 2012 on the
file of the Additional District Court (Fast Track Court), Tenkasi.
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For Appellant : Mr.R.J.Karthick
For Respondents : Mr.A.Balaji
for R1 and R2
Mr.Shanmugaraja Sethupathi
for R3
A.S(MD).No.192 of 2021
The Branch Manager,
Life Insurance Corporation of India,
Tirunelveli Branch,
Palayamkottai,
Tirunelveli-2. ...Appellant/2nd Defendant
Vs.
1.K.Pandaram
2.P.Annamalai Ammal ...Respondents 1 and 2/Plaintiffs
3. P.R.Subramaniya Raja ...3rd Respondent/1st Defendant
Prayer:First Appeal filed under Section 96 of C.P.C, to set aside the
judgment and decree dated 23.11.2018 passed in O.S.No.22 of 2012 on the
file of the III Additional District Court (Fast Track Court), Tenkasi, so far as
imposing cost on the appellant/2nd defendant is concerned.
For Appellant : Mr.D.Shanmugaraja Sethupathi
For Respondents : Mr.A.Balaji
for R1 and R2
Mr.R.J.Karthick
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A.S(MD).Nos.75 of 2019 and 192 of 2021
for R3
******
COMMONJUDGMENT
These first appeals are filed challenging the judgment and decree
passed by the III Additional District Court (Fast Track Court), Tenkasi, in
O.S.No.22 of 2012.
2. A.S.No.75 of 2019 has been filed by the first defendant against
the judgment and decree of the trial Court in respect of declaration and
consequential direction to pay the arrears of rent by the second defendant.
3. A.S.No.192 of 2021 is filed by the second defendant
challenging the cost imposed by the trial Court in depositing the arrears in
time.
4. Brief facts leading to filing of these first appeals are as follows:
(i) The plaintiffs had purchased a property from the first defendant
for a sale consideration of Rs.37,00,000/- (Rupees Thirty Seven Lakhs
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A.S(MD).Nos.75 of 2019 and 192 of 2021
only). The consideration has been paid through the cheques of the Tamil
Nadu Mercantile Bank. The sale was registered on 22.12.2011 and the
possession was also handed over to the plaintiffs. However, the second
defendant, who was in possession of the property as tenant, despite notice,
has not paid the arrears of rent. Hence, the suit has been filed.
(ii) The first defendant took a stand that he never intended to sell
the property. He received a sum of Rs.37,00,000/- (Rupees Thirty Seven
Lakhs only) from the plaintiff only towards loan transaction and has also
started in making the payment, since he has not intended for selling the
property and it is only a loan transaction. The sale deed was executed
towards the said loan amount. The contention of the plaintiffs that the first
defendant has sold the property to them, has been disputed by the first
defendant. The further contention is that though signature of the first
defendant was found on the backside of the cheques, he has not received
any consideration. The second defendant filed a statement to the effect that
on 04.01.2011, he has received a communication from the first defendant
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A.S(MD).Nos.75 of 2019 and 192 of 2021
that he has pledged the said property to the plaintiffs as security for a period
of three months and within the said period, he will recover the property and
has directed the second defendant to pay the rent to the first defendant.
Based on the above pleadings, the following issues were framed by the trial
Court:
(i) whether the plaintiff are entitled for declaration that
the plaintiff's are the absolute owners of the suit schedule
property?
(ii) whether the plaintiff are entitled for a consequential
permanent injunction restraining the 1st defendant, his men,
agents etc., not to disturb the peaceful possession and enjoyment
of the plaintiff's over the plaint scheduled property in any
manner?
(iii) whether the plaintiff are entitled for mandatory
injunction directing the 2nd defendant to pay the rent to the
plaintiff's until the 2nd defendant deliver the possession of the
property to the plaintiff's?
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A.S(MD).Nos.75 of 2019 and 192 of 2021
(iv) to what other reliefs the plaintiffs are entitled?
5. On the side of the plaintiffs, P.W.1 and P.W.2 were examined
and Ex.A1 to Ex.A20 were marked. On the side of the defendants, D.W.1
and D.W.2 were examined and Ex.B1 to Ex.B17 were marked.
6. The learned counsel for the appellant in
A.S(MD).No.75 of 2019 would submit that though the sale deed was
executed in favour of the plaintiffs, the first defendant had never intended to
sell the property, deed has been executed for loan transaction. However, he
has not received any consideration and the consideration was also not
proved. The trial Court has not appreciated the evidence fully.
7. The learned counsel for the appellant in
A.S(MD).No.192 of 2021 would submit that the trial Court ought not to
have imposed costs on the second defendant without making any specific
reference or finding in the judgment as to how the appellant is responsible
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A.S(MD).Nos.75 of 2019 and 192 of 2021
for paying cost to the plaintiffs, especially, when there was no default
attributable on the appellant.
8. The learned counsel appearing for the respondents 1 and 2 in
both appeals would submit that except mere denial of sale, no material was
brought on record. Hence, the defendants cannot go against the contents of
the documents.
9. In the light of the above submissions, the following points arise
for consideration:
“(i) Whether the first defendant has
discharged his burden of proof in establishing the stand
of the loan transaction?
(ii) Whether the sale is not supported by any
consideration? and
(iii) Whether the cost imposed on the second
defendant is proper?”
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A.S(MD).Nos.75 of 2019 and 192 of 2021
10. It is the specific contention of the plaintiffs is that the first
defendant has sold the property on 22.12.2011 for a sale consideration of
Rs.37,00,000/- (Rupees Thirty Seven Lakhs only) and the payments were
made through the cheques which have been encashed. The execution of the
sale deed is not in dispute for a consideration of Rs.37,00,000/- (Rupees
Thirty Seven Lakhs only). Though it is stated that the signature of the first
defendant was found on the backside of the cheques, the sale consideration
has not been received by him. D.W.2, Branch Manager was examined and
his examination would clearly show that the cheques have been encashed
and the signature is found on the backside of the cheques. Further, the fact
remains that the first defendant has admitted the execution of the sale deed.
The contention of the first defendant is that though the sale deed is executed
by him, he had no intention to sell the property and it is only a loan
transaction. But, it is the specific contention of the second defendant that
the first defendant has informed the second defendant to pay the arrears of
rent for three months to the plaintiffs. If really there was no sale in favour of
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A.S(MD).Nos.75 of 2019 and 192 of 2021
the plaintiffs, there was no necessity for the first defendant to inform the
second defendant to pay the rent to the plaintiffs for a period of three
months. Having admitted the execution of the sale deed, now it cannot be
said that it is only a mere loan transaction. Even to establish the same, no
other evidence or material was brought on record. Therefore, once the
execution of a sale deed is admitted, the first defendant now cannot take
different stand that it is loan transaction. Once he has taken such plea, onus
lies on him to establish the said transaction. No contra evidence was also
brought on record except mere denial. Hence, the point Nos.1 and 2 are
answered against the first defendant.
11. As far as the cost imposed on the second defendant is
concerned, this Court is of the view that the Lower Court ought not to have
imposed the cost. Admittedly, there was some dispute between the plaintiffs
and the first defendant with regard to execution of document. Merely
because of delay in payment, the cost imposed by the trial Court on the
second defendant is not proper and hence, the cost imposed on the second
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A.S(MD).Nos.75 of 2019 and 192 of 2021
defendant, namely, the appellant in A.S.No.192 of 2021 is set aside.
12. Accordingly, A.S.(MD).No.192 of 2021 is allowed and
A.S.(MD).No.75 of 2019 is dismissed. No costs. Consequently, connected
civil miscellaneous petition is closed.
03.04.2023
ssb
Index:Yes/No
Internet:Yes/No
To
Additional District Court (Fast Track Court), Tenkasi.
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A.S(MD).Nos.75 of 2019 and 192 of 2021
N. SATHISH KUMAR, J.
ssb
A.S(MD).Nos.75 of 2019 and 192 of 2021
03.04.2023
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