Madras High Court
Venkatesan vs Dhanasekar on 4 January, 2023
S.A.No.1061 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 04.01.2023
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
S.A.No.1061 of 2022
and
C.M.P.No.22739 of 2022
Venkatesan ...Appellant
Vs.
Dhanasekar ...Respondent
Prayer :-
This Second Appeal is filed under Section 100 of Civil Procedure
Code to set aside the judgment and decree made in AS.No.1 of 2021 on the
file of the III Additional District Court, Kallakurichi dated 24.11.2021
confirming the judgment and decree made in OS.No.204 of 2014 on the file
of the Additional Subordinate Judge's Court, Kallakurichi dated
27.11.2020.
For Appellant : Mr.A.E.Ravichandran
JUDGMENT
This second appeal is directed as against the judgment and
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S.A.No.1061 of 2022
decree made in AS.No.1 of 2021 on the file of the III Additional District
Court, Kallakurichi dated 24.11.2021 confirming the judgment and decree
made in OS.No.204 of 2014 on the file of the Additional Subordinate
Judge's Court, Kallakurichi dated 27.11.2020, thereby allowed the suit for
specific performance.
2. The respondent is the plaintiff and the appellant is the second
defendant. The respondent filed suit for specific performance. The case of
the respondent is that the defendants agreed to sell the suit property for total
consideration of Rs.4,00,000//- and received a sum of Rs.3,00,000/- as an
advance on 05.07.2013 and executed agreement for sale. As per the
agreement, within a period of one year, the respondent has to pay the
balance sale consideration and on receipt of the same, the appellant has to
execute the sale deed in his favour. However, the defendants failed to
execute the sale deed. Hence the suit.
3. The appellant and another resisted the same by way of filing
written statement and stated that the agreement for sale was executed only
on borrowal of loan amount. They had no intention to sell the suit property.
Only on compulsion, the agreement for sale was executed on borrowal of
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S.A.No.1061 of 2022
loan. In fact on receipt of the pre-suit notice, they had replied by way of
reply notice dated 04.07.2014.
4. On the side of the respondent, the respondent had examined
PW1 and PW2 and marked Ex.P1 to Ex.P4. On the side of the appellant, he
had examined DW1 and marked Ex.D1. On considering the oral and
documentary evidences adduced by the respective parties and the
submission made by the learned counsel, the trial Court decreed the suit.
Aggrieved over the judgment and decree of the trial Court, the second
defendant preferred an appeal suit in AS.No.1 of 2021 before the III
Additional District Court, Kallakurichi. The first appellate Court on
appreciating the materials placed on records, dismissed the appeal by
confirming the judgment and decree passed by the trial Court. Challenging
the same, the second defendant has come forward with the present second
appeal.
5. The learned counsel for the appellant has raised the following
substantial questions of law:
a) When the plaintiff has not proved the
readiness and willingness under Section 16(c )
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S.A.No.1061 of 2022
from the date of execution of sale agreement dated
05.07.2013, is he entitled for the discretionary
relief of specific performance?
b) Whether the appellant proved, during the
cross examination of PW's 1 & 2, that Ex.A1 sale
agreement is a sham and nominal document, not to
be acted upon and the same is not a bar under
Sections 91 & 92 of Evidence Act, were the courts
below right in granting the relief of specific
performance?
c) Whether the findings of the Courts below,
on facts, are perverse, vitiated by non-
consideration of relevant evidence and misleading
of evidence and the same is liable to be set aside
by this Hon'ble Court?
d) Where the sale agreement Ex.A1 is
disputed by the appellant and the attesting witness
PW2 does not know about the property details,
were the courts below right in relying on Ex.A1
and decreeing the suit, when the plaintiff has not
discharged his burden and proved Ex.A1?
6. The learned counsel for the appellant would submit that the
respondent failed to prove the essential elements as contemplated under
Section 16 (c ) of the Specific Relief Act. He failed to prove his readiness
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S.A.No.1061 of 2022
and willingness before the trial court by any means of evidence. Ex.A1 is a
sham and nominal document and not to be acted upon since it was executed
only for the purpose of security for the loan of Rs.1,50,000/- obtained from
the respondent. Therefore, the appellant had no intention to sell the suit
property since it is a dwelling house. No prudent man would execute
agreement for sale for total sale consideration of Rs.4,00,000/-, whereas the
value of the suit property was around Rs.20,00,000/- at the time of
agreement for sale. The respondent had examined PW2 who had signed as a
witness to Ex.A1. In fact PW1 and PW2 categorically admitted that they
were not aware of the description of the property and value of the property,
which clearly shows that Ex.A1 was not executed with intention to sell the
suit property.
7. Heard, Mr.A.E.Ravichandran, the learned counsel appearing
for the appellant and this Court considered the rival submission made by the
learned counsel for the appellant.
8. On perusal of records, revealed that the appellant and another
had executed agreement for sale which was marked as Ex.A1. Accordingly,
the total sale consideration was agreed by the parties to the tune of
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S.A.No.1061 of 2022
Rs.4,00,000/- and on the date of agreement, the appellant received a sum of
Rs.3,00,000/-. The period fixed under Ex.A1 was one year. Though the
respondent was willing to pay the balance sale consideration for execution
of sale deed, the appellant failed to come forward to receive the balance
sale consideration and to execute the sale deed. Therefore, the respondent
caused legal notice, which was marked as Ex.A2. It was returned and the
returned cover was marked as Ex.A4. Though it was returned, the appellant
issued reply notice, which was marked as Ex.D1 dated 04.07.2014.
Whereas on 04.07.2014, the respondent filed suit for specific performance.
Therefore, there was no chance to have knowledge about the reply notice by
the respondent at the time of filing of the suit. Admittedly, Ex.A1 was a
registered one. It is not the case of the appellant that they never executed
any agreement and denied the very execution of the agreement for sale.
Whereas, they had taken stand that it was executed only for the purpose of
security at the time of borrowal of loan to the tune of Rs.1,50,000/-. But the
appellant failed to substantiate the same by any oral or material evidence.
9. As such the Courts below have analyzed the evidences both the
documentary and oral in detail, adduced by the parties and by giving cogent
reasons, concluded rightly and decreed the suit. Accordingly, this Court is
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S.A.No.1061 of 2022
of the considered opinion that no substantial questions of law involved in
this appeal.
10. In view of above, this Second Appeal is dismissed and the
judgment and decree made in AS.No.1 of 2021 on the file of the III
Additional District Court, Kallakurichi dated 24.11.2021 confirming the
judgment and decree made in OS.No.204 of 2014 on the file of the
Additional Subordinate Judge's Court, Kallakurichi dated 27.11.2020 is
confirmed. Consequently, connected miscellaneous petition is closed. There
shall be no order as to costs.
04.01.2023
Index : Yes/No
Internet : Yes/No
Speaking order/Non-speaking order
lok
To
1.The III Additional District Court,
Kallakurichi
2.The Additional Subordinate Judge's Court,
Kallakurichi
3. The Section Officer,
V.R. Section,
Madras High Court,
Chennai.
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S.A.No.1061 of 2022
G.K.ILANTHIRAIYAN, J.
lok
S.A.No.1061 of 2022
04.01.2023
https://www.mhc.tn.gov.in/judis
