Madras High Court
S.Narayanan vs G.Balaji on 5 October, 2023
A.S.No. 299 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.10.2023
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
A.S.No. 299 of 2021
S.Narayanan
Prop. Guru Foundation .. Appellant
Vs
1. G.Balaji
2. Devi
3. The Federal Bank Limited,
Vadapalani Branch,
Chennai-600 026.
4. State Bank of Mysore,
Whites Road Branch,
Chennai-600 014. ... Respondents
PRAYER : Appeal Suit filed under Sec. 96 r/w Order 41 Rule 1 of Civil
Procedure Code, praying to set aside the judgment and decree dated
14.10.2019 passed by the learned XVI Addl. City Civil Court, Chennai in
O.S.No.1963 of 2014 (C.S.No.880 of 2007).
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A.S.No. 299 of 2021
For Appellant : Mr.L.Chandrakumar
JUDGEMENT
The appellant herein is the plaintiff in the suit in C.S.No.880 of
2007 in O.S.No.1963 of 2014, on the file of XVI Addl. City Civil Court
at Chennai, who filed the said suit for the relief of declaration to declare
the sale deed dated 31.01.2005 executed by him in favour of 1st
defendant vide registered document No.293 of 2005 at S.R.O., Anna
Nagar as sham and nominal and the same was not acted upon along with
other consequential relief of injunction against the defendants 1 to
4/respondents 1 to 4. The defendants 1 and 2 remain exparte before the
trial court as well as 4th respondent bank also remain exparte. The 3rd
respondent alone contested the suit as well as the appeal.
2. For the sake of convenience, parties are referred as per the
ranking in the suit.
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A.S.No. 299 of 2021
3. The learned counsel for plaintiff would submit that as a
promoter of residential Flats, he was approached by the 1st defendant to
purchase the said flat that was being build in Plot No.221, Door No.1, 6th
Main Road, Sri Ayyappa Nagar, Chennai and the 1st defendant
represented that in order to avail a loan, he is in need of sale deed.
Accordingly, the plaintiff executed a sale deed of undivided share 522
sq.ft. with valid consideration of Rs.1,67,040/- on 31.01.2005 and also
executed a construction agreement of 1065 sq.ft. value of Rs.13,22,085/-.
For that, a sum of Rs.5000/- was paid as token advance and there was a
balance of Rs.13,17,085/-. Since the sale of undivided share is only a
sham and nominal document, the payment will be adjusted after
construction of the flat, but the cheque issued by the 1st defendant was
returned on account of “insufficient funds”. On enquiry, the plaintiff
found that the 1st defendant cheated him. The plaintiff after due
deliberation, he agreed to hand over the title deed as well as balance
payment, but possession was not handed over to him by the plaintiff.
Subsequently, the plaintiff came to know that defendants 1 and 2 forged
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A.S.No. 299 of 2021
his signature and created a document in the name of plaintiff and
mortgaged the property with the Federal Bank, 3rd defendant herein and
obtained loan of Rs.11,56,916/-. Thereafter, 1st defendant created another
set of mortgage loan with different bank and obtained another loan of
Rs.10,00,000/-. Thus, as on date, two mortgage deeds were created based
on the fabricated document and the same would not bind the plaintiff. To
safeguard his interest in the suit property, the plaintiff approached the
court to declare the sale deed executed in favour of 1st defendant on
31.01.2005 as sham and nominal and also consequential relief not to
cause interference with the possession and enjoyment of property as
described in the plaint schedule.
4. Before the trial court, except the 3rd defendant bank, all the three
defendants remain exparte. Both plaintiff and 3rd defendant adduced their
oral and documentary evidence. Based on that, the trial court framed
issues and finally held that the plaintiff failed to prove that the sale deed
stands in the name of 1st defendant is sham and nominal document nor he
is entitled to give possession of the property. As per the evidence
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A.S.No. 299 of 2021
rendered by 3rd defendant bank, payment also made by 1st defendant on
various dates. Therefore, the trial court declined to declare the sale deed
as null and void, as such sham an nominal and also not granted interim
injunction stating that the plaintiff is not entitled to possession of the
property after receipt of entire sale consideration, thereby the suit was
dismissed. Aggrieved over the findings, the plaintiff preferred this
appeal.
5. The learned counsel for plaintiff would submit that the trial
judge failed to take note of the fact that the 1st defendant, against whom
the sale deed executed and as on date, 1st defendant has not raised any
objection for the relief claimed by the plaintiff even after receipt of
notice in the suit, without which, the trial court erroneously concludes
that the plaintiff not proved his case as such is unjust and liable to be set
aside. Further, the trial court failed to accept that even assuming that sale
deed is true, till date, possession is with the plaintiff, which itself clearly
denotes that the said sale deed was not acted upon, inspite of that, the
relief of injunction not granted in favour of plaintiff by considering his
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A.S.No. 299 of 2021
possession as such is totally unfair and liable to be set aside. The learned
counsel for plaintiff would also submit that already based on a complaint
given by plaintiff, F.I.R. was registered against the 1st defendant and his
wife in Crime No. 286 of 2007 under Sec.420 I.P.C. itself sufficient to
conclude that the 1st defendant fabricated the document and obtained a
loan from the bank without his consent. But those facts have not been
properly appreciated by the trial judge. Hence, he prayed to set aside the
findings of trial judge by allowing this appeal.
6. The 3rd defendant/3rd respondent herein contested the Suit
stating that there might have collusion between the plaintiff and 1st
defendant, thereby fabricated a fake document in order to avail loan from
the bank by depositing some title deed, for which the bank already gave a
complaint against the 1st defendant. After that, the plaintiff gave a
complaint as if he was not aware of any of the facts, but in fact the 1 st
defendant obtained loan from this bank and paid the same to the plaintiff
on various dates, for which, receipts also issued towards the sale
consideration of suit property from 12.01.2005 to 11.03.2005 for around
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A.S.No. 299 of 2021
Rs.14,90,000/- and all the transactions are made through federal bank
and ICICI bank. To that effect, the dates and events was made by them in
the written statement. Now, in order to escape from the clutches of law as
well as with regard to cheating the bank, the plaintiff and the 1st
defendant colluded and filed the suit, which was rightly appreciated by
the trial judge by dismissing the suit. Hence, he prayed to dismiss the
appeal as no merit.
7. Considering both side submissions and on perusal of records, it
would reveals that the plaintiff filed a suit to declare the sale deed stands
in the name of 1st defendant dated 31.01.2005 as sham and nominal
document. The 1st defendant remain exparte. The 3rd defendant bank
alone contested the suit. The plaintiff was examined as P.W.1. Senior
Manager of Federal Bank was examined as D.W.1. Now, the point is to
be decided whether the sale deed stands in the name of 1st defendant
executed by the plaintiff is sham and nominal document or is there any
collusion between the parties to defraud the bank?
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A.S.No. 299 of 2021
8. Admittedly, the plaintiff Narayanan is a promoter and running
the business under the name and style of Guru Foundation. The
defendants 1 and 2 are husband and wife, who approached the plaintiff to
purchase a flat. Accordingly, the plaintiff executed the sale deed of
undivided share measuring an extent of 522 sq.ft. in favour of 1 st
defendant and in respect of construction, measuring an extent of 1650
sq.ft., for the value of Rs.13,22,085/-, a construction agreement was
executed between them. Both agreement and sale deed are admitted by
the plaintiff while he was examined as P.W.1. But, with regard to
payment of balance sale consideration for the construction of flats, the
plaintiff submits that he was not aware of bank loan particulars, which
was filed by the 1st defendant with the 3rd defendant bank. While filing
written statement, in para 5 of that statement, 3rd defendant mentioned the
date of payments made by him on various occasions to the plaintiff
through demand drafts and cheque as well as cash payment, which comes
around Rs.14,90,000/-. If at all, the plaintiff not received those amounts,
he ought to have denied those payments by filing reply statement, but the
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A.S.No. 299 of 2021
plaintiff not filed any such statement. While the Senior Manager of the
3rd defendant bank was examined as D.W.1, he deposed that while
obtaining the loan, he gave a fake sale deed. Hence, he gave a complaint,
however, the complaint given by plaintiff was registered in Crime
No.286 of 2007 against 1st defendant. Considering the evidence of
D.W.1, the plaintiff totally denied that he was not aware of the particulars
found in the written statement and he was not aware of the complaint
given by the 3rd defendant bank against the 1st defendant. After that, he
also gave a complaint against the 1st defendant. Both the criminal cases
are pending as on date.
9. As discussed above, payments were received by the plaintiff
from the 1st defendant for the sale consideration and the same was not
disputed by the plaintiff by adducing any contra evidence, which itself
clearly shows that the sale deed is supported with the consideration.
Hence, the claim of plaintiff stating that the sale deed is sham and
nominal document and not acted upon is totally false and the same was
rightly appreciated by the trial judge while deciding the issue Nos.1
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and 2. However, the plaintiff himself admits that after receipt of sale
consideration, flat was completely constructed, but he has not handed
over the possession, which would show that with an ulterior motive, he
approached this court. Having admitted the execution of Ex.A2, now the
plaintiff has no locus standi to contend that it is sham and nominal
document. Ex.A2 is a registered document, against which, the plaintiff is
not entitled to give oral evidence as per Sec.92 of Evidence Act, which
was rightly appreciated by the trial judge, which needs no interference.
Thus, the conduct of both plaintiff as well as 1st defendant clearly
probablise that both of them colluded in filing the said suit in order to
defraud the bank claim. Accordingly, both issues are answered, thus
Appeal Suit is dismissed as no merit. No costs.
05.10.2023
Index : Yes / No
Internet : Yes / No
Speaking/Non-speaking order
rpp
To
XVI Addl. Judge, City Civil Court,
Chennai.
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A.S.No. 299 of 2021
T.V.THAMILSELVI, J.
rpp
A.S.No. 299 of 2021
05.10.2023
https://www.mhc.tn.gov.in/judis
