Madras High Court
R.Sankar vs B.Arunachalam on 17 April, 2023
2023/MHC/2006
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 17.04.2023
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
A.S(MD)NOs.139 and 140 of 2013
and
M.P(MD)No.2 and 2 of 2013
A.S(MD)Nos.139 and 140 of 2013
R.Sankar :Appellant/Defendant
in both appeal suits
.vs.
B.Arunachalam :Respondent/Plaintiff
in both appeal suits
COMMON PRAYER: Appeal Suits filed under Section 96 of the
Civil Procedure Code against the judgments and decrees made in
O.S.No.90 of 2009, dated 01.11.2011 and O.S.No.46 of 2011, on the
file of the Additional District Court, Fast Track Court No.I,
Tirunelveli.
For Appellant :Mr.V.Meenakshisundaram
in both appeals
For Respondent :Mr.H.Arumugam
in both appeals
COMMON JUDGMENT
************************
These two Appeal Suits are arising out of the common
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judgment made in O.S.No. 90 of 2009, and O.S.No.46 of 2011,
dated 01.11.2011 on the file of the Additional District Court, Fast
Track Court No.I, Tirunelveli.
2.A.S.No.139 of 2013 is filed against the judgment and
decree made in O.S.No.90 of 2009 filed by the plaintiff for the relief
of specific performance by receiving the balance sale
consideration of Rs.50,000/- and in alternative, to refund the total
sale consideration of Rs.13 lakhs with interest to the plaintiff,
wherein, A.S.No.140 of 2012 is filed against the judgment and
decree made in O.S.No.46 of 2011 for the relief of specific
performance by receiving the balance sale consideration of Rs.
25,000/- by the defendant or in the alternative to refund the
advance amount of Rs.1 lakh with interest to the plaintiff.
3.As both the appeal suits are arising out of a common
judgment, this Court is inclined to dispose of both these appeal
suits by way of this common judgment.
4.The brief facts leading to the filing of A.S(MD)No.139 of
2013 is as follows:
In respect of the house property, the defendant executed a
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registered sale agreement on 12.08.2008 to sell the property for a
total sale consideration of Rs.9 lakhs and received a sum of Rs.
8,50,000/- in abvance. It is agreed between the parties that the
sale shall be completed within a period of six months from the date
of sale agreement. After sale agreement, it came to light that there
is some discrepancy in the title of the defendant. Therefore,
subsequently negotiation carried on between the plaintiff and the
defendant and the defendant agreed to sell the property for a total
sale consideration of Rs.13,50,000/- and the amount already
received as advance to the tune of Rs.8,50,000/- on 12.08.2008 is
agreed to be adjusted towards the sale consideration and a sale
agreement was entered between the parties on 5.10.2008 and the
plaintiff has also paid another sum of Rs.4,50,000/- towards
advance amount on the same date. Accordingly, in the said sale
agreement, the sale consideration of Rs.13 lakhs is paid. One of
the condition in the agreement is that the property should be
delivered to the plaintiff by receiving the balance sale
consideration of Rs.50,000/-.The plaintiff is ready and willing to
perform his part of contract, however, the defendant has evaded to
perform his part of contract in respect of his obligations. Hence
the suit has been filed to enforce the contract executed between
the plaintiff and defendant.
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5.In the written statement, it is the contention of the
defendant that the defendant's brother one Nagarajan had
borrowed loans from usurious money lenders to the tune of Rs.6
lakhs and the said Nagarajan was in the clutches of the money
lenders and the whole family was in turmoil and they wanted to
bailhim out of that situation. In that context, the plaintiff, who is
the close friend of the defendant family, who is also dealing with
money lending business and real estate business, voluntarily came
forward to help the defendant family and he had agreed to give
Rs.6 lakhs for helping the family of the defendant. The plaintiff
was in a dominant position in that situation and the family
members have directed that the mother and Nagarajan to release
their rights over the entire family property in favour of the
defendant and the defendant also executed a power of attorney in
favour of one Murugan, besides an agreement of sale. It is the
contention that the document is a result of loan transaction and
the defendant has never intended to sell the property and
borrowed only Rs.6 lakhs and not Rs.13 lakhs as alleged by the
plaintiff. Hence he disputes the exeution of the sale agreement.
6.In O.S.No.46 of 2011 filed for specific performance of the
contract, dated 12.08.2008, it is the case of the plaintiff that the
defendant has agreed to sell the property to a total sale
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consideration of Rs.1,25,000/- and received a sum of Rs.1 lakh as
advance amount and executed a registered sale agreement, dated
12.08.2008 and it is agreed between the parties that the sale shall
be completed within a period of six months. The defendant has also
to deliver the origianl title deeds to the plaintiff in respect of the
suit schedule properties. The plaintiff is always ready and willing to
perform his part of contract but the defendant is not ready to
perform his part of obligations. Therefore, the plaintifff sent a
legal notice on 15.09.2009 calling upon the defendant to receive
the balance sale consideration of Rs.25,000/- and complete the sale
agreement and he has also informed that both the plaintiff and
defendant should present at the office of the Sub-Registrar at 10.00
a.m for registration. However, the defendant did not execute the
sale deed as agreed between them. The Plaintiff is always ready
and willing to perform his part of contract.
7.In the written statement, it is the contention of the
defendant that his brother Nagarajan had obtained loan from the
usurious money lendors and fall in the debt trap to the tune of Rs.6
lakhs. In order to release him from the clutches of money lenders,
the defendant's family came forward to help him. At that point of
time, the plaintiff, being a friend of the defendant family came
forward to help the defendant's family and he had agreed to give
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Rs.6 lakhs for helping the family of the defendant. The plaintiff
was in a dominant position in that situation and the family
members directed the mother and Nagarajan to release their
rights over the entire family property in favour of the defendant
also defendant executed a power of attorney in favour of one
Murugan besides an agreement of sale. It is the contention that
the document is a result of loan transaction and the defendant has
never intended to sell the property and borrowed only Rs.6 lakhs
and not Rs.13 lakhs as alleged by the plaintiff. Hence he disputes
the sale agreement.
8.Based on the pleadings of the above two suits, the trial
Court has framed the following issues:
In O.S.No.90 of 2009, the issues are:
1.Whether the sale agrement, dated 12.08.2008 is executed
with an intention to sell the property in question?
2.Whether the plaintiff has paid the further sale
consideration on 5.10.2008?
3.Whether the plaintiff was entitled to the relief of specific
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performance as sought for or in alternative, is entitled for the relief
of refund of advance amount of Rs.13 lakhs?
In O.S.No.46 of 2011, the issues are:
1.Whether the sale agrement, dated 12.08.2008 is
considered to be a valid one?
2.Whether the defendant who has received the sale
consideration is intended to sell the suit schedule properties?
3.Whether the Plaintiff has paid a sum of Rs.4,50,000/- to the
defendant on 5.10.2008?
4.Whether the plaintiff is entitled for the relief of specific
performance in both the suits or in the alternative for the return of
the advance amount?
5.To what other relief, the plaintiff is entitled to?
9.Both the suits are tried together by the trial Court and on
the side of the plaintiff, P.W.1 and P.W.2 and Ex.A1 to Ex.A16 were
marked. On the side of the defendants, D.W.1 to D.W.3 were
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examined and Ex.B1 to Ex.B6 were marked. Besides, that Ex.C1 to
Ex.C3 were also marked as Court documents.
10.Based on the evidence and materials available on record,
the trial Court has partly allowed the suit in O.S.No.90 Of 2010 in
respect of the relief of specific performance and by granting the
relief of refund of money of Rs.13 lakhs with interest at 12% pa
with costs and decreed the suit in O.S.No.46 of 2011 for the relief
of specific performance and directed the defendant to execute the
sale deed in respect of the suit schedule poperty to an extent of
0.22 ares within a period of two months. Aggrieved over the
judgments and decrees in both the suits, the present two appeal
suits came to be filed by the defendant.
11.It is the contention of the learned counsel for the appellant
that the property in question originally belonged to the father of
the appellant and after his lifetime, the same has been inherited by
all his legal heirs including the mother and brother of the
appellant. Since one of the brother of the appellant fell in debt trap
with one of the money lenders, in order to relieve him from the
clutches of the money lender, the family of the defendant wanted
to bail him out of the same and at that relevant point of time, the
plaintiff who is also doing money lending business and also real
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estate business under the pretext of helping the family advanced a
sum of Rs.6 lakhs as loan borrowed by Nagarajan, brother of the
appellant. Hence it is his contention that a registered sale
agreement came to be executed and the same is not intended to
sell the properties. On the same day, various other documents have
also been executed, one in respect of the release deed by all other
family members in favour of the appellant and other is two power
of attorney deeds executed in favour of the brother's son of the
defendant. Hence according to him, the cumulative effect of all the
above records clinchingly establish the fact that the entire
transaction is nothing but a loan transaction. According to him, if
really the purchaser namely, the respondent/plaintiff intends to
purchase the property having paid substantial amount of total sale
consideration on the day of sale agreement itself , there is no
necessity to grant a further time of six months to complete the
sale agreement. Further when all the family members were already
present in the Registration Office, there was no need to get
separate documents by them like release deeds and power of
attorney deeds separately. That itself clearly shows that these
documents are nothing but as a result of loan transaction between
them. Hence it is his contention that the respondent was in a
dominant position at the relevant point of time and the appellant
was in adversity and he has fell in debt trap thereby many
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documents came into existence on the same day. Hence all the
documents executed on 12.08.2008, at the same time, in two
different Registration Office clearly suggest the fact that these
documents are nothing but came into existence only in the loan
transaction. Hence the trial Court has considered all these aspects
and granted the relief of specific performance in O.S.No.46 of 2011
similarly, the trial court has decreed the suit for the alternative
relief of refund of advance amount of Rs.13 lakhs in O.S.No.90 of
2010 without appreciation of evidence. Hence it is his contention
that the judgment of the trial Court is not on proper appreciation
of evidence and law. Ex.A2 sale agreement, dated 5.10.2010 which
is an unregistered document said to have superceded the
registered document. All these facts clearly shows that all the
documents have been obtained in the same day and utilized for the
purpose of the case. Hence the alleged sale consideration and sale
agreement are hightly doubtful and improbable. Hence seeks to
set aside both the decrees and judgment.
12.On the contrary, the learned counsel for the respondent
would submit that only at the convenience of the parties, they have
executed the documents. The defendant has received the sale
consideration and only to relive the other family members, they
executed the release deed in favour of the defendant. The evidence
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of DW1 to D.W.3 clearly show that they are not illiterate and they
have consciously signed the documents.Therefore, it is his
contention that even before four months prior to the sale
agreement, dated 12.08.2008, the family members have decided to
release their share in favour of the defendant herein. These facts
clealry prove the fact that the defendant has intended to sell the
property and executed the registered agreement for sale and now
the defendant cannot be permitted to plead that they are not aware
of the terms of the registered documents and the evidence of the
defendant clealry admit the execution of the documents and they
are not illiterates and now they cannot take a different stand. It is
therefore submitted that the trial Court has infact considered the
entire aspect and granted the relief of specific performance in one
suit mainly on the ground that there is discrepancy in the door
number and only on that ground, the relief of specific performance
was rejected in that suit, however, the trial Court, after analyzing
the entire evidene on record, come to the conclusion that all the
documents have been executed only for the purpose of sale.
Therefore submitted that the judgment of the trial Court does not
require any interference and prays for dismissal of the appeals.
13.In the light of the above submission, now the point that
arose for consideration in these appeals are as follows:
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1.Whether the sale agreements, dated 12.08.2008 are not
intended for the sale of the property and were the result of a loan
transaction?
2.Whether the defendant having executed documents can
plead a different transaction other than the written transaction?
3.Whether the plaintiff is ready and willing to perform his
part of contract and hence, entitled for the relief of specific
performance?
4.To what other reliefs, the parties are entitled to?
14.I perused the entire materials on record including the
common judgment of the Court below.
15.As the two appeals are arising out ouf the common
judgment and though two suits have been filed for specific
performance on the basis of two different sale agreements
executed on 12.08.2008 and 5.10.2008. O.S.No.90 of 2009 is filed
only in respect of the house property and the trial Court has
rejected the relief of specific performance on the basis that there
is some discrepancy in the door number of the house property,
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however, granted the alternative relief. O.S.No.46 of 2009 is filed
for specific performance in respect of the agricultural land has
been decreed by the trial Court. Challenging both the decrees and
judgement of both the suits, the present appeal suits came to be
filed.Both the suits have been filed based on the sale agreement
dated 12.08.2008. There are two agreements in respect of two
different properties.
16.In respect of the sale agreement relating to the house
property, originally the sale agreement came into existence on
12.08.2008. It is agreed between the parties that the total sale
consideration is around Rs.9 lakhs. It is also stated in the
agreement that the substantial part of the total sale consideration
ie., 8.5 lakhs has already been paid and the remaining Rs.50,000/-
alone to be paid within a period of six months. Similarly Ex.A2 is
another unregistered document said to have been executed on
5.10.2009, wherein, the parties have agreed to enhance the sale
consideration to the tune of Rs.13.5 lakhs for the house property.
According to the plaintifff on the terms of the contract on the date
of sale agreement, considerable part of sale consideration was paid
as advance under Ex.A1 ie., a sum of Rs.13 lakhs has already been
paid towards sale consideration and the remaining sale
consideration to be paid is Rs.50,000/- in respect of the house
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property. Similarly, Ex.A13 is another sale consideration dated
12.08.2008 in respect of the agricultural properties, wherein also,
substantial part of sale consideration is said to have been paid on
the same day ie., R.1 lakh, out of Rs.1.25 lakhs and they have also
agreed for the completion of the sale in another six months. It is
relevant to note that when a purchaser if really intended to
purchase the property in question, no prudent man having paid
more than 95% of the total sale consideration on the date of sale
agreement itself, will not agree for another six months to complete
the entire formalities. These facts would clealry go against the
normal human conduct of the parties. Therefore this conduct itself
gives an inference that the agreements are not intended for sale of
properties. This fact is further fortified by various other factors. It
is relevant to note that on the date of sale agreement itself ie., on
12.08.2008 Ex.A1 and Ex.A13 and several other documents came
into existence and registered on the same day. Ex.A12 and Ex.A14
are the release deeds in respect of the house property as well as
the agricultural properties. Those documents are registered only
in the same Registration Office at about 1.00 to 2.00 p.m., and the
document number assigned in both the documents as Doc.Nos.
3814 and 3821 of 2018.Similarly, Ex.A1 and Ex.A13. Ex.A1 is
registered in the same Registration Office and at the same time,
Ex.A13 is the sale agreement in respect of the agricultural land
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was registered in a different Registration Office at about 4 to 5.00
p.m., and the document number assigned is Doc.No.3824. It is also
to be noted that in respect of both the properties, power of attorney
was also registered on the same day and the same is marked as
Ex.B5 and Ex.B6 and this will make it clear that the power of
attorneys have been executed by the parties in favour of one
Murugan, who is none other than the plaintiff's brother's son. It is
also to be noted that when all the family members of the
defendant is very much available to execute the power of attorney
in the Registration Office, if really the parties are intended to sell
the property, they could have very well executed the document
for sale itself on that day. The very sale deeds itself could have
been registered on the same day, whereas, getting separate release
deeds from the family members on the same day in favour of the
defendant and getting the sale agreements separately from the
plaintiff besides getting the power of attorneys in favour of the
plaintiff's brother's son on the same day clearly indicates that these
transactions and sale agreements are not intended for the sale of
the properties. Registering all the documents simultaneously at the
same time in two different Registration Office clealy probalise the
defense theory that those documents came into existence only in
respect of loan transaction and only in order to clear the family
debt of the defendant.Therefore, this Court is of the view that when
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the defendant was able to establish that though the documents are
executed by them and the same is not intended for sale and it is
intended only for different transaction. It cannot be said that
merely because of Section 92 of the Indian Evidence Act, they
cannot take a contrary view. Under the proviso to Section 92 of the
above Act permits the parties to show a different transaction
altogether. When the probabilities brought on record clearly
indicate that these transactions are not intended for sale and the
documents came into existence in a different transaction, proviso
to Section 92 will come into play and the defendant can very well
plead a different transaction other than the terms entered in the
contract. Such being the position, this Court after considering the
cumulative effect of all the above documents, particularly, the
release deeds executed by the family members of the defendant on
the same day and substantial part of total sale consideration ie,
more than 95% of the sale consideration said to have been paid on
the same day and the sale agreement executed on the same day
itself and giving another six months to complete the sale is against
the normal human conduct. Yet another fact is execution of power
of attorneys on the same day in favour of plaintiff's brother's son.
When the power of attorneys were registered in favour of the
plaintiff's brother's son, there is no need for the plaintiff to once
again wait for some time to send formal notice seeking for specific
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performance. In fact, if really he had intended to purchase the suit
property, he could have registered the sale deeds straight-away on
the strength of the power of attorney deeds. All these facts clealry
show that the plaintiff is not intended to purchase the suit schedule
proprrites and all the documents are emanating as a result of the
loan transaction. Therefore merely on the basis of Section 92 of
the Indian Evidence Act, it cannot be assumed that it is only a
transaction intended for sale of the properties. Accordingly, these
points are answered, as this Court finds that it is only a loan
transacion, the question of readiness and willingness assumes
insignificance. Therefore the plaintiff is not entitled to seek the
relief of specific performance and further, the suits have been filed
only after an year of the sale agreements. These facts clealry show
that the plaintiff is never intended to purchase the properties and
somehow or other filed the suits with delay.This Conduct also
exhibits the fact that he has not shown his readiness and
willingness. Accodingly, the plaintiff is not entitled for the relief of
specific performance. Accordingly, the judgement and decree
granted by the trial Court granting specific performance in
O.S.No.46 of 2011 is hereby set aside.
17.Now it has to be seen whether the decree of the trial
Court in O.S.No.90 of2009 is to be interfered with.
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18.It is the contention of the defendant that they have
borrowned only a sum of Rs.6 lakhs and not Rs.13 lakhs as alleged
by the plaintiff. Except mere submissions and pleadings, no
materials whatsoever in the name of documents have been brought
on record. On a perusal of the evidence brought by way of cross
examination this Court only suggest that these documents came
into existence only as a result of loan transaction and such
materials are not sufficient to hold that only a sum of Rs.6 lakhs
alone has been received. The defendant also admit in the evidence
that they have executed the documents. Such being the
position,when they admit the execution of the documents on the
terms of the specific receipt of certain amounts, now they cannot
go against the terms of the contract, partcularly, in receipt of the
amount. In such view of the matter, decree granting the alternative
relief of refund of advance amount is maintained with interest rate
reduced from12% to 8%p.a. With the above direction, A.S(MD)No.
139 of 2013 is dismissed.
19.As far as the advance amount relating to O.S.No.46 of
2011is concerned, the respondent Plaintiff is entitled to receive a
sum of Rs.1 lakh paid as advance amount with interest at the rate
of 8%p.a. Accordingly A.S(MD)No.140 of 2013 is partly allowed in
respect of the alternative relief of refund of advance amount to the
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tune of Rs.1 lakh.
No costs. Consequently, connected Miscellaneous Petitions are
closed.
17.04.2023
Index:Yes/No
Internet:Yes/No
NCC:Yes/No
vsn
To
1.The Additional District Judge,
Additional District Court/FTC NO.I,
Tirunelveli.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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N.SATHISH KUMAR, J.
vsn
COMMON JUDGMENT MADE IN
A.S(MD)NOs.139 and 140 of 2013
and
M.P(MD)No.2 and 2 of 2013
17.04.2023
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