Madras High Court
T.Yesudoss vs M.Banumathi on 25 August, 2023
S.A No.456 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.08.2023
CORAM:
THE HON'BLE MRS. JUSTICE T.V.THAMILSELVI
S.A No.456 of 2018
&CMP No. 12407 of 2018
T.Yesudoss ...Appellant/Defendant
Vs
M.Banumathi ...Respondent/Plaintiff
PRAYER: This Second appeal filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree dated 06.04.2018 made in
A.S No. 35 of 2016 on the file of the Principal District Judge, Vellore
confirming the judgment and decree dated 29.02.2016 made in O.S No. 96
of 2012 on the file of the Subordinate Judge, Gudiyatham.
For Appellant : Mr.S.Mukunth, Senior counsel,
for M.S.Swathish Kumar
For Respondent: Mr.P.Sathishkumar
JUDGMENT
The appellant herein is the defendant in suit O.S No. 96 of
2012 on the file of the Subordinate Judge, Gudiyatham, filed by the
respondent herein/plaintiff for the relief of specific performance to
executed the sale deed as per the sale agreement dated 08.11.2010 on
receiving balance sale consideration of Rs.2 Lakhs as per the sale
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S.A No.456 of 2018
agreement. The said suit was contested by the defendant stating that he has
not entered into any sale agreement with the plaintiff only he borrowed the
amount from the plaintiff's husband. After considering the oral and
documentary evidence the Trial Court decreed the suit in favour the
plaintiff. Aggrieved over the same, the defendant preferred an appeal before
the Principal District Judge, Vellore, wherein, the lower appellate Court
independently analysed the facts and evidence of the case and confirmed the
findings of the Trial Court. Challenging the concurrent findings the
defendant preferred this second appeal. For the sake of convenience parties
are denoted as per the suit.
2. The learned counsel for the defendant submitted that both
the Court below failed to take note of the fact that on the date of disputed
sale agreement the value of the property was more than 40 lakhs but in the
disputed sale agreement was only for Rs.5 lakhs which itself shows that
there was no sale agreement between the parties but the Court below failed
to appreciate those facts. Further he submitted that the defendant is a teacher
who borrowed a loan from the husband of the plaintiff and as a security he
executed a suit agreement with the plaintiff's husband. Ex.A1 came to note
existence as security for due payment of the loan. Further, the plaintiff was
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S.A No.456 of 2018
not aware of any of the said transaction and the same was admitted by her
during cross examination which was not appreciated by the Court below.
Hence he prays to allow this petition.
3. This court admitted the second appeal with the following
substantial questions of law:
1. Whether it is open to the defendant to alleged and prove that Ex.A1
agreement of sale was executed as security document for the
repayment and not as an agreement of sale?
2. Whether the non examination of the attestors of Ex.A1 agreement of
sale and the husband of the plaintiff is fatal to the case of the plaintiff
to prove that EX.A1 was agreement of sale?
4. The learned counsel for the respondent submits that the
defendant offered to sale the property to the plaintiff for value
consideration of Rs. 5 lakhs accordingly sale agreement was executed on
08.11.2010 on that date itself advance amount a sum of Rs.3 Lakhs was
paid and for the remaining amount one year time was fixed i.e., on or before
07.10.2011. As per the sale agreement the plaintiff was ready and willing to
pay a balance amount but the defendant failed to executed the sale deed as
per the sale agreement. Hence the plaintiff filed a suit for specific
performance and in order to prove his claim she adduced the sale agreement
as well as other relevant documents. After considering the same the Trial
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S.A No.456 of 2018
Court rightly decreed the suit which needs no interference.
5. Considering the submissions on either side and also on
perusal of records, it reveals that the suit was filed by the plaintiff for the
relief of specific performance to execute the sale deed by receiving balance
sale consideration of Rs.2 lakhs as per the sale agreement dated 08.11.2010
as entered between the plaintiff's husband and the defendants. On the other
side, the objection of the defendant is that he borrowed the loan from the
plaintiff's husband as a security sale agreement/Ex.A1 came into existence
for due repayment of the loan. Further the defendant contended that the suit
property situated at Gudiyatham Taluk, Pernampet Village and its value is
more than Rs.40 lakhs at that time of sale agreement no prudent can execute
sale agreement for the suit property for meagre amount of Rs. 5 lakhs but
the same was not properly appreciated by the Courts below.
6. On perusal of records, it reveals that property is situated at
Gudiyatham Taluk, Pernampet village with an extent of 780 square feet.
There is no dispute with regard to existence of the property. According to
the defendant, he borrowed a loan from the husband of the plaintiff. The
learned counsel for the appellant submits that during the cross examination
the plaintiff stated that she was not aware of the transaction between the
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S.A No.456 of 2018
defendant and her husband and she deposed as follows:
''jhth rkge;jkhf midj;J eltof;if vd; fztUf;F jhd bjhpa[k; vd;why; rhpjhd;/
7. Therefore evidence of P.W.1 itself shows that she was not
aware of the transaction between her husband and the defendant which
probablise the defence taken by the defendant that he borrowed a loan only
from the husband of the plaintiff. If really she entered into a sale agreement
as a bonafide purchaser she should have known about the particulars of the
property as well as transaction but her own evidence reveals that she was
not aware of the facts of the transaction which itself shows that transaction
was only between the husband of the plaintiff and the defendant. But the
Court below failed to appreciate the above facts which is misconception of
law and facts. Further, it is the suit for specific performance and it is
equitable remedy so the burden is heavily upon the plaintiff to prove her
claim. As observed above, the plaintiff is failed to prove the sale agreement
entered between her husband and the defendant. Therefore, the findings of
the Trial Court with regard to execution of sale agreement is set aside.
Accordingly questions of law are answered.
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S.A No.456 of 2018
8. Further the defendant itself admits the loan transaction with
the plaintiff's husband and admits that he borrowed a sum of Rs.3 lakhs
from the plaintiff's husband. Accordingly, in order to avoid multiplicity of
proceedings this Court directed the defendant to pay a advance amount a
sum of Rs.3,00,000/- with the interest at the rate of 24% per annum from the
year 2011 till date. Accordingly, the defendant is directed to pay a sum of
Rs.3,00,000/- + 9,36,000/-= 12,36,000/- to the plaintiff.
9. Further, it is brought to the notice of this Court that in spite
of injunction granted by the Court below the defendant put up construction
in the suit property. Hence on seeing the contact of the defendant this Court
award a sum of Rs. 8,00,000/- as damages to the plaintiff. Accordingly, the
defendant is directed to pay a sum of Rs.20,36,000/-(Advance amount+
Interest= Rs.12,36,000/-+Damages=Rs.8,00,000/-) within a period of three
months from the date of receipt of a copy of this order, if the defendant
failed to pay the said amount the plaintiff is entitle to execute E.P
proceedings. Furthermore, the plaintiff is entitle to withdraw a sum of
Rs.2,00,000/- as deposited by her before the Court below with accrued
interest. Accordingly, findings of the Trial Court is set aside with regard to
specific performance. With regard to alternative remedy the defendant is
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S.A No.456 of 2018
directed to Pay a sum of Rs.20,36,000/- within a period of three months
from the date of receipt of a copy of this order and the plaintiff is permitted
to withdraw a sum of Rs.2 lakhs with accrued interest as already deposited
before the Trial court.
10. As discussed above, this second appeal is disposed of. No
cost. Consequentially, connected miscellaneous petitions are closed.
25.08.2023
pbl
Note: Issue order copy on or before 21.09.2023.
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S.A No.456 of 2018
T.V.THAMILSELVI,J.
Pbl
To
1. The Principal District Judge, Vellore.
2.The Subordinate Judge, Gudiyatham.
3.The Section Officer,
V.R Section.
SA.No.456 of 2018
25.08.2023
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