Madras High Court
Rajakantham vs Subbiah (Died) on 9 March, 2023
A.S.No.584 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.03.2023
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
AND
THE HONOURABLE MR.JUSTICE P.B.BALAJI
A.S.No.584 of 2013
&
C.M.P.No.1398 and 2165 of 2023
Rajakantham .. Appellant
Vs.
1.Subbiah (died)
2.Murugesan
3.S.Chandravathi @ Chandra @ Sandira
4.Sivagamy
5.Souganthy
6.S.Mourouguessin
7.S.Arounassalam
8.S.Vairamany Dit Djeapregassam
https://www.mhc.tn.gov.in/judis 1
A.S.No.584 of 2013
9.Mandjoula @ Manjula .. Respondents
R1 died, R3 to R9 are
brought on record as LR's of deceased
1st respondent viz., Subbiah,
vide order of Court dated 02.01.2023
made in C.M.P.No.14157 of 2022
in A.S.No.584 of 2013
Prayer:- Appeal Suit filed under Section 96 of Code of Civil Procedure
against the judgment and decree dated 29.07.2013 made in O.S.No.10 of
2009 on the file of the II Additional District Court, Tindivanam.
For Appellant : Mr.Elephant G Rajendran
For Respondents : Mr.T.Saikrishnan, for R2 to 5, R7 to 9
JUDGMENT
(Judgment of the Court was made by S.S.SUNDAR,J.)
The plaintiff in the suit in OS.No.10/2009 on the file of the II
Additional District Court, Tindivanam, is the appellant in this appeal.
2. The appellant filed the suit in OS.No.10/2009 on the file of the II
Additional District Court, Tindivanam [Originally OS.No.93/2008 on the
file of the District Court, Villupuram] for specific performance of an
Agreement of Sale dated 31.10.2007 executed by the respondents in favour
A.S.No.584 of 2013
of the appellant herein.
3. Brief facts that are set out in the plaint in O.S.No.10 of 2009 are as
follows:-
The suit properties belonged to the 1st defendant, who entered into an
agreement with the plaintiff to sell the same for a total sale consideration
of Rs.37,50,000/-. An amount of Rs.1,10,000/- was paid as advance on the
date of agreement viz., 31.10.2007 and the 1st defendant has agreed to
execute the sale deed within three months, in favour of plaintiff'. After the
agreement, the defendants 1 and 2 requested the plaintiff to exclude an
extent of 1 acre and 48 cents situated at Pettai and another item measuring
an extent of 33 cents in Enangadu village from the agreement and the 1st
defendant promised that he would execute the sale deed for the remaining
properties at the rate of Rs.3,75,000/- per acre within the stipulated time.
The 2nd defendant also wrote in his own handwriting as to the exclusion of
1 acre and 81 cents out of the total extent of lands agreed to be sold. The
2nd defendant also attested the agreement at the time of execution of
agreement. Though first defendant informed the plaintiff that he would
execute the sale deed in the first week of January 2008 he did not kept up
A.S.No.584 of 2013
his word. The plaintiff issued a legal notice on 24.01.2008 calling upon the
defendants to come and execute the sale deed and again issued two notices
on 30.01.2008 and 01.02.2008 calling upon the defendants to come to the
Registrar's office and execute the sale deed. The plaintiff was waiting in
the Sub Registrar's office on all occasions expecting the defendants to
come and execute the sale deed. In the legal notice dated 01.02.2008, the
plaintiff informed the Sub Registrar not to register any document if
presented by 1st defendant. Thereafter another notice was issued on
01.03.2008 along with a cheque dated 01.03.2008. However, the
defendants sent a reply on 23.02.2008 stating that the sale agreement is
fabricated by utilizing the signature of the defendant, obtained in blank
stamp papers at the time of borrowing money to the tune of Rs.1,25,000/-.
The first defendant repudiated the sale agreement by stating that he never
intended to sell his property. Since the 1st defendant did not respond to any
request of the plaintiff and the defendant came forward with a reply
repudiating the contract, the plaintiff came forward with a suit for specific
performance alleging that the plaintiff was willing to pay the balance in
terms of the suit agreement.
A.S.No.584 of 2013
4. The 1st defendant filed a written statement specifically denying all
the averments made in the plaint. It is the specific case of the 1st defendant
that he required funds for settling a dispute with third parties and that the
plaintiff agreed to help and only in that context the signatures of the
defendants were obtained by the plaintiff in blank stamp papers and blank
promissory notes. Since the defendants requested the plaintiff to advance a
loan amount of Rs.1,25,000/-, it is stated that the plaintiff paid a sum of
Rs.1,10,000/- after deducting a sum of Rs.15,000/- towards interest. It is
stated by the 1st defendant that the suit agreement has been fabricated by
utilising the blank stamp papers and other papers obtained from the
defendant at the time of borrowing the said sum of Rs.1,25,000/-. The 1 st
defendant specifically stated that he is not a signatory in the type written
version of the description of the property column. The 2nd defendant also
filed an independent written statement denying the allegation in the plaint
that he had written a portion of the suit agreement with regard to exclusion
of certain lands in his own handwriting. It is also stated by the 2nd
defendant that signature of the 2nd defendant was obtained when the
plaintiff advanced the loan amount of Rs.1,10,000/- to his father and that
the 2nd defendant also signed only in blank paper.
A.S.No.584 of 2013
5. The Trial Court framed the following issues:
1. Whether the 1st defendant executed the sale agreement dated
31.10.2007 with regard to the suit property and received an advance
amount of Rs.1,10,000/- from the plaintiff?
2. Whether the plaintiff was ready and willing to perform his part
of contract after paying the balance sale consideration?
3. Whether the plaintiff is entitled to get the sale deed executed
from the 1st defendant after payment of balance sale consideration?
4. If the 1st defendant is not coming forward to execute the sale
deed whether plaintiff is entitled to execute the deed through Court?
5. To what other relief the plaintiff is entitled to?
6. Before the Trial Court, plaintiff examined himself as P.W.1 and
one, Mr.Kumaran was examined as P.W.2. On the side of the plaintiff,
Exs.A1 to 28 were marked. The defendants examined themselves as D.W.1
and D.W.2 and no documents were marked.
7. On the first issue whether the 1st defendant executed the sale
agreement dated 31.10.2007 and received the amount of Rs.1,10,000/- as
A.S.No.584 of 2013
advance from the plaintiff, the Trial Court elaborately considered the
evidence in the light of a judgment of this Court in 1989 L.W. Page 119.
After considering the evidence of P.W.1 during cross examination that he
did not verify the title documents or encumbrance before entering into the
sale agreement, that he did not enquire about the market price and the
revenue documents to confirm that the suit property is standing in the
name of 1st defendant and that the description of the property is found with
discrepancies held that the suit agreement is not a bonafide sale
transaction. Strangely, referring to the notice and reply notice, the Trial
Court also held that the plaintiff was ready and willing to perform his part
of contract.
8. However, while considering the other three issues of the case, the
Trial Court held that the plaintiff is not entitled to specific performance
and answered the issues against the plaintiff. The suit was dismissed by the
Trial Court. Aggrieved by the same, the above Appeal is preferred by the
plaintiff. During pendency of this Appeal, the 1st respondent died and
respondents 3 to 9 were brought on record as legal representatives of 1st
respondent.
A.S.No.584 of 2013
9. After getting several adjournments, the appellant filed an
application in C.M.P.No.2165 of 2023 U/s. 45 of the Indian Evidence Act
for sending the sale agreement dated 31.10.2007 marked as Ex.A1 in the
suit in O.S.No.10 of 2009 along with the vakalat and written statement
filed by the defendant for expert opinion to verify the handwriting and
signature of the 2nd respondent/2nd defendant in this agreement. After going
through the entire evidence, this Court examined this petition. From the
counter affidavit filed by the respondents, it is seen that the appellant had
filed I.A.Nos.13 and 14 of 2012 and the said applications were allowed on
28.06.2012 before the Trial Court. It is further stated that the 2nd
respondent also gave his handwriting for expert opinion for comparison.
However, it appears that the appellant has not even taken further steps to
send the admitted handwriting of the 2nd respondent for comparison.
Therefore, the appellant failed to get any expert opinion on account of his
wilful negligence before Trial Court . It is the case of the plaintiff that the
2nd respondent has signed the document as attestator. However, the 2nd
respondent denied his signature under the handwritten portion. He has not
disputed the signature as an attesting witness as his evidence is specific
that he and his father signed only in blank paper. From the document
A.S.No.584 of 2013
Ex.A1, this Court is unable to find any signature of the 2 nd defendant under
the subsequent endorsement in the fourth page of the Ex.A1. However, it is
pleaded in the plaint that the hand written portion in the suit agreement is
in the hand writing of 2nd defendant. Having been permitted to send the
document for expert opinion after getting the specimen writings of 2nd
defendant before the Lower Court, the appellant has not taken proper
further steps to get the expert opinion. Without an explanation as to how
and why this could not be done before the Trial Court this application is
filed nearly 10 years after the Appeal is filed. This Court is unable to find
any valid reasons for accepting this application at this length of time after
filing of Appeal, especially when the bonafides of this application is not
even established. Even for getting expert's opinion, the appellant has to
satisfy the requirements of Or.41 R.27 of C.P.C. In the absence of specific
averments to satisfy the requirement of Or.41 R.27 of C.P.C, this Court is
inclined to dismiss this application and accordingly C.M.P.No.2165 of
2023 is dismissed.
10. The petitioner has also filed another application in
C.M.P.No.1398 of 2023, for reception of additional documents under
A.S.No.584 of 2013
OR.41.R.27 C.P.C. By this application the appellant wants to adduce the
following documents as additional evidence:
Date Description of Documents Nature of
Document
15.09.2008 Legal notice issued by one Office copy
Manjula, daughter of the 1st
respondent, sister of the 2nd
respondent
09.10.2008 Reply notice issued by the Office copy
petitioner to the said Manjula
09.10.2008 Postal receipt Copy
10.10.2008 Postal acknowledgement card copy
received from the said Manjula
It is stated by the petitioner that the first document is a legal notice
issued by one Manjula, daughter of the 1st respondent/1st defendant and
who is also the sister of the 2nd respondent. Referring to the document that
the daughter of the 1st respondent issued notice admitting the execution of
sale agreement by her father, learned counsel submitted that the document
would prove the existence of a valid sale agreement between parties. The
second document is a reply notice issued by the appellant to the daughter
of the 1st respondent. Third document is a postal receipt and fourth
document is the postal acknowledgement received from the said Manjula
to prove that the reply sent by the appellant has been acknowledged by the
daughter of the 1st respondent. It is to be seen that the said document is
A.S.No.584 of 2013
dated 15.09.2008. The said legal notice was admitted by the 2nd respondent
before the Lower Court during cross examination who was examined as
D.W.2. When a suggestion was put to D.W.1, he pleaded ignorance and
therefore the existence of the document viz., the legal notice issued by
Manjula is admitted. From the contents of the document, this Court may
infer that the 1st respondent's daughter claimed right in respect of her share
by treating the suit property as joint family property. By the notice issued
on behalf of the daughter of the 1st respondent, we cannot presume that the
said notice was issued on behalf of 1st respondent. As the 1st respondent's
daughter disputed the father's exclusive right over the property, we cannot
treat the contents of the document to imply admission by 1st defendant as to
the genuineness of the sale agreement pleaded. The legal notice issued by
1st defendant's daughter questioning the validity of sale agreement cannot
be accepted in evidence as a statement by the 1st respondent himself
admitting the true character of transaction. In other words, the contents of
the document cannot be put against the 1st respondent to show that his
version about the sale agreement cannot be accepted. This document which
is sought to be marked as additional evidence was available with the
plaintiff immediately after filing of the suit. The suit was filed in April
A.S.No.584 of 2013
2008 and the notice of 1st respondent's daughter was also received by the
plaintiff in October 2008. The written statement was filed only in January
2009. The Trial commenced some time in September 2010. The plaintiff
had ample opportunity to produce these documents if he really intended to
rely upon the document to support his stand.
11. Learned counsel appearing for the appellant tried to persuade this
Court that these documents were filed along with proof of affidavit, but not
marked in the course of evidence. It is seen that these documents which are
now sought to be marked as additional evidence have been shown as
documents along with proof affidavit. For the reasons, best known to the
plaintiff, these documents were not marked. Since the existence of notice
and its contents are not specifically denied by the defendants, probably
plaintiff's counsel did not mark these documents as evidence during trial.
Having omitted to mark these documents before the Trial Court at the time
of trial, the appellant cannot seek to mark these documents as additional
documents without an explanation as to why these documents were not
marked before the Trial Court. Merely because legal advice is given to the
appellant now he cannot be permitted to mark additional evidence at the
A.S.No.584 of 2013
time of Appeal without satisfying the requirements of Or.41 R.27 of C.P.C.
Accordingly, this application viz., C.M.P.No.1398 of 2023 is also
dismissed.
12. Considering the lengthy arguments of the learned counsel for the
appellant as well as the learned counsel for the respondents, this Court
finds it necessary to frame the following points for determination:
A) Whether the suit agreement Ex.A1 is proved to be a genuine sale
transaction or one fabricated by plaintiff using the signatures of defendants
1 and 2 in blank papers obtained in connection with the loan transaction as
stated by the 1st defendant.
B) Whether the plaintiff has proved the readiness and willingness to
perform his part of the contract in terms of the agreement of sale Ex.A1.
C) Whether the plaintiff is entitled to the equitable relief of specific
performance.
Point No(A)
13. The suit is based on the alleged agreement of sale dated
31.10.2007 marked as Ex.A1. As per the recitals of Ex.A1, the plaintiff
A.S.No.584 of 2013
agreed to purchase the property measuring 10.32 acres comprised in
several survey numbers in Royapudupakkam Panchayat and Village in
Dindivanam Taluk. The agreement consist of four pages out of which the
first two pages are typewritten in stamp papers with the value of ten rupees
each. In the fourth page, the agreement contains the following hand written
endorsement below the signature of plaintiff alone after typed portion of
schedule of properties.
“ ,e;j cld;gof;if gj;jpuj;jhy;
ngl;ilapYs;s fhyp kid 1 Vf;fh; 48 brz;l;
kw;Wk; ,w';fhL cs;s epyk; 33 brz;l;
eP';fyhf/ nkYk; ,e;j cld;gof;if nkny
Twpa ,uz;L epyj;ij fl;Lg;gLj;jhJ/
md;iwa jpdk; Vf;fh; 3/75 yl;rk; vd;fpw
tifapy; vt;tst[ ,lk; cs;snjh mjw;F
igry; bra;athj egh; 1 rk;kjpf;fpwhh; egh; 2k;
xj;Jf;bfhs;fpwhh;/”
14. Though, it is stated that the endorsement was written by the 2nd
defendant, the 2nd defendant specifically denied the endorsement alleged to
be in his handwriting. The 2nd defendant of course admits that he signed
the document in a blank paper along with his father. It is seen that from the
agreement that the signature of the plaintiff is found above the 1st
A.S.No.584 of 2013
defendant in the first 3 pages and at the bottom of fourth page. The
signature of the plaintiff and the number '2' before the signatures of 1st
defendant appears to in the same ink and the signature of the 1 st defendant
is in a different ink. The signature of 1st defendant is not found below the
schedule of property even though the plaintiff has signed below the
schedule. However a space is specifically provided for the 1st defendant's
signature. The exclusion of lands measuring an extent of 1.48 acres in
Pettai and another extent of 33 cents in Enangadu does not give any
meaning because the properties in Pettai or Enangadu are not included in
the schedule of properties described in the agreement. In the plaint, it is the
specific case of plaintiff that just after execution of the agreement of sale
dated 31.10.2007, the 2nd defendant himself wrote in his handwriting
regarding the exclusion of 1 Acre and 81 cents in the total area. However
the agreement before the hand written portion is not complete as the
signature of 1st defendant before the hand written portion is not available.
This is contrary to the pleading that after the execution of sale agreement
by parties, the hand written portion excluding certain lands was inserted.
The counsel for the appellant filed a typed set on 9th April, 2019 containing
a few documents and oral evidence of all the witnesses. The first document
A.S.No.584 of 2013
is the agreement of sale dated 31.10.2007. At the fourth page the signature
of document writer which is found in the original document Ex.A1 is
missing. This is possible only if the xerox of the agreement is taken before
it is signed by the document writer. The signatures of the two witnesses are
available at the bottom of the fourth page. The hand written portion is
inserted in the places earmarked in the typing for witnesses. P.W.1 states
that the document was written by one Velmurugan. However the signatures
found in the place to be signed by the scribe was not the signature of
Velmurugan who prepared the document. P.W.2 admits this in cross. He
further admits that he did not know the person who signed as the scribe. It
is the specific case of 1st defendant that Velmurugan is only a stamp vendor
and he is not a licensed document writer. The signature of stamp vendor
Velmurugan is seen in the first page of the agreement while issuing the
stamp paper to plaintiff. Contrary to the evidence of P.W.2, P.W.1 states
that the suit agreement was prepared by 1st defendant. However in the
plaint, the plaintiff in Para III (A) admits that one Mr.Velmurugan who is
a document writer having his office at Vanom has prepared the agreement
of sale. The scrutiny of document and the evidence as a whole would only
probabalise the case of the defendants that the plaintiff has come to Court
A.S.No.584 of 2013
with a fabricated agreement created with fraudulent intentions to grab the
property of 1st defendant.
15. In the course of evidence, plaintiff has stated as follows:
“ /////xg;ge;jj;ij Rg;igaht[k;
mth; KUnfrDk; goj;J ghh;j;jhh;fs;/ goj;J
ghh;j;J brhj;J tptu';fs; rhpahf cs;sd
vd;W Twpdhh;/ ngl;ilapy; cs;s brhj;ija[k;.
,w';fhl;oy; cs;s brhj;ija[k; tpw;f KoahJ
vd;W mJ vdf;Fj; njit vd KUnfrd;
Twp tpl;lhh;/ 1/48 kw;Wk; 33 brz;Lfs; nghf
kPjp brhj;Jf;fSf;fhd fpiua bjhifia
ngrpndhk;/ kPjKs;s brhj;Jf;fis xU
Vf;fUf;F U:/3.75.000-=k; vd ngrp Koj;njhk;/
,jd;go kPz;Lk; xg;ge;jk; vGjtpy;iy/ 1.49
brz;L kw;Wk; 33 brz;Lf;fSf;fhd rh;nt
vz; vdf;F bjhpahJ/ xg;ge;jj;jpy; me;j
brhj;Jf;fspd; tpguKk; nrh;f;fg;gl;Ls;sd
vd;why; rhpjhd;/ me;j brhj;Jf;fs; rh;nt
vz;iz ,e;j tHf;fpypUe;J ehd; ePf;ftpy;iy
vd;why; rhpjhd;/ ”
16. The plaintiff further stated as follows:
“goj;J fhl;oa gpwFjhd; ngl;il
,U';fhL Mfpa ,l';fspy; cs;s
brhj;Jf;fis xg;ge;jj;jpy; nrh;f;ff;TlhJ vd
KUnfrd; Twpdhh; vd;why; rhpjhd;/
mjd;gpwF me;j brhj;jf;fis kPz;Lk;
fk;g;a[{l;lhpy; itj;J ePf;ftpy;iy/ ehndh
A.S.No.584 of 2013
KUnfrd; Rg;igahnth ePf;Fk;go
brhy;ytpy;iy vd;why; rhpjhd;///////”
17. The plaintiff also admits that there are corrections in the
agreement pertaining to recitals originally agreed and the subsequent
insertion by way of endorsement. The changes in the agreement regarding
the actual property to be conveyed as per endorsement made in the
agreement for exclusion of certain lands is not properly reflected in the suit
schedule. In the plaint Survey number is given for the lands to be
excluded. This Court is unable to find which portion of 1.48 acres and 32
cents in S.No.240 was agreed to be excluded especially when the total
extent of S.No.240/1.3A,3B,4,6,7,11 corresponding to new Survey number
99/1B is only given as 0.06.5 hectares. Exclusion of certain lands in
S.No.243/1,2 and 3 is referred to in the plaint description. However, this
Court is unable to find to any reference to S.No.243/1 in the agreement.
Therefore, the exclusion of property in S.Nos.243/1,2,3 conveys no
meaning. These features only indicate that description of property in the
agreement is not properly given and the exclusion of 1.48 acres and 32
cents in the agreement is without proper identity of properties to be
A.S.No.584 of 2013
excluded. The plaintiff has not given any valid explanation as to the real
understanding between parties regarding the property to be excluded. The
admission of plaintiff as P.W.1 during cross is contrary to the sequence of
events and terms of the agreement. Considering the discrepancies in the
property description in the agreement and the plaint schedule regarding
exclusion of lands, this Court is unable to find the actual property agreed
to be conveyed. All the above put together would only prompt this Court to
believe the version of defendants that the signature was obtained only in
blank papers.
18. The plaintiff during the course of evidence has also admitted as
follows:
“ ///tHf;F brhj;Jf;fspd; mUfpy;
cs;s brhj;Jf;fspd; tpiy gw;wpa mwpa
tHf;fpd; brhj;jpd; tpiy eph;zapf;f me;j
gj;jpu';fis th';fp ghh;f;ftpy;iy/ Mdhy;
ntW gj;jpu';fis mnj ,lj;jpy;
th';fpa[s;nsd;/ jhth brhj;Jf;fs;
Rg;igaht[f;Fjhd; brhe;jkhdit vd;gij
bjhpe;Jf; bfhs; gj;jpu';fisnah.
tpy;y';fj;ijnah ehd; th';fp
ghh;f;ftpy;iy//////
///brhj;Jf;fspd; mUfpy; ,Ug;gitfsplk;
A.S.No.584 of 2013
tHf;F brhj;jpy; tpiy tpguk; gw;wp ehd;
tprhhpf;ftpy;iy/ tHf;F brhj;Jf;fspd;
tp!;jPuz';fis gw;wpa[k; ehd; ghhf;ftpy;iy/
tHf;F brhj;Jf;fspd; gl;lh ahh; bgahpy;
cs;sJ vd;gija[k; ehd; ghh;f;ftpy;iy/////
......ehd; jw;nghJ tHf;fpy; 8 Vf;fh;fSf;F
fpiuak; nfl;fpnwd;/////”
The above evidence indicate that the plaintiff has not seen title deeds
nor verified the title. He did not see whether there is encumbrance. In the
plaint the total extent for which the suit is laid is stated as 9 Acres. Where
as P.W.1 states that the seeks execution of sale deed for 8 Acres.
19. This Court is unable to reconcile the evidence as regards the
statement of P.W.1 regarding the extent to which the suit is laid and the
balance of sale consideration payable. The original agreement as per
schedule is 10 acres and 32 cents. After excluding an extent of 1 acre and
48 cents and 33 cents, it is seen that total extent remaining is 8.51
acres.Suit is laid for 9 acres and P.W.1 says that the suit is for 8 acres.
When the plaintiff himself admit that he did not verify the documents of
title and the extent available, the bonafides of the transaction cannot be
A.S.No.584 of 2013
readily accepted, especially when the suit agreement is disputed by the
defendants. The plaintiff admits that he has not applied for encumbrance
nor ascertained the title of plaintiff by getting the documents of title. The
plaintiff has not even enquired about the value of the property before
entering into the sale agreement. The admissions of the plaintiff during
cross examination in this regard raises a bonafide doubt as to the
genuineness of the transaction. No prudent person would finalise the sale
agreement without verification of title deeds and seeing the encumbrance
or inquiring the value of property in the same locality. The plaintiff has not
even looked into the revenue records so as to ascertain the lawful
possession as per the revenue records. All these facts would only justify
the findings of the Trial Court that the suit agreement is not a bonafide sale
transaction but only fabricated by utilising the signature of defendants
obtained in relation to a loan transaction.
20. The suit property is a vast extent of 10.32 acres. The plaintiff,
even in the plaint, has excluded the portion as found in the endorsement
under Ex.A1- Sale agreement. The plaintiff has not even bothered to
reduce the balance of sale consideration corresponding to the portion
A.S.No.584 of 2013
which was excluded under the Ex.A1-Sale agreement. This would also
indicate that the transaction Ex.A1-Sale agreement is not a bonafide sale
transaction, especially, when the defendants specifically pleaded that the
value of the property as on the date of agreement was Rs.10,00,000/- per
acre and that the plaintiff seeks unjust enrichment by filing the suit for
specific performance. There is the cross examination regarding the
statements of D.W.1 regarding the market value of suit property. Plaintiff
admits during cross examination that the family of 1st defendant is rich and
the 1st defendant and his children are getting very good income and that he
is not in need of money. Therefore, the agreement to sell for a
consideration which is very low when compared to the market value is not
probable. Considering the entire evidence on record, this issue is answered
in favour of defendants 1 and 2, holding that the suit agreement under
Ex.A1 is a fabricated document using the signatures obtained in blank
papers.
Point (B)
21. Though the issue of readiness and willingness is answered in
favour of the plaintiff by the Trial Court, it goes against the findings of the
A.S.No.584 of 2013
Trial Court as regards the genuineness of the sale agreement Ex.A1.
Having held that the suit agreement is fabricated by the plaintiff by
obtaining the signature of the defendants in blank stamp papers, the Trial
did not consider the issue regarding the readiness and willingness in a
proper perspective.
22. This Court, with regard to the specific finding rendered by the
Trial Court and this Court herein above, finds it unnecessary to deal with
the issue of readiness and willingness of the plaintiff. It is seen that the
plaintiff has pleaded that he has paid a sum of Rs.1,10,000/- as advance
under the agreement. However, the 1st defendant has agreed that he
received the said sum which is part of a sum of Rs.1,25,000/- stated to
have been the amount borrowed from the plaintiff. It is the case of the 1 st
defendant that after deducting a sum of Rs.15,000/- towards interest the
balance amount of Rs.1,10,000/- was paid to the plaintiff as loan.
Point (C)
23. This Court has accepted the case of the defendants that the suit
agreement is not a bonafide sale agreement and it was created by using the
A.S.No.584 of 2013
signature of 1st defendant in blank papers obtained in connection with the
loan transaction. By paying a meagre sum of Rs.1,10,000/- the plaintiff
promptly filed a suit for specific performance after issuing three notices
consecutively demanding the defendants to execute the sale deed. The suit
was filed immediately after the reply was sent by the 1st defendant
repudiating the agreement. The entire evidence of plaintiff and P.W.2 are
contradictory to each other and they are unable to explain the discrepancies
because of the false case pleaded by them.
24. We have seen in several cases that money lenders who are
affluent, advance loans on the security of property by getting sale
agreement. When innocent people seek financial assistance due to
emergencies, they may be compelled to execute documents or blank papers
as security for loan transactions and hence Court has to be more vigilant,
while considering the entire evidence. In this case, this Court is fully
convinced that the sale agreement is a fabricated document and there is no
consensus for any sale agreement. Therefore, the plaintiff is not entitled to
the relief of specific performance.
A.S.No.584 of 2013
25. We find no reason to interfere with the judgment and decree of the
Trial Court. Accordingly, the Appeal Suit is dismissed with costs
confirming the judgment and decree dated 29.07.2013 made in O.S.No.10
of 2009 on the file of the II Additional District Court, Tindivanam.
(S.S.S.R.J) & (P.B.B.J)
09.03.2023
Internet : Yes
Index:Yes/No
Speaking/Non-speaking order
Neutral Citation:Yes/No
To
1. The II Additional District Judge,
Tindivanam
2.The Section Officer
VR Section,
High Court, Madras
A.S.No.584 of 2013
S.S.SUNDAR, J.,
and
P.B.BALAJI,J
kpr
A.S.No.584 of 2013
09.03.2023
https://www.mhc.tn.gov.in/judis 26
