Madras High Court
R. Kalaivani vs / on 4 June, 2024
A.S.No.553 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 27.03.2024
Pronounced on :04.06.2024
Coram:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
A.S.No.553 of 2016
and
C.M.P.No.13970 of 2016
R. Kalaivani ..Appellant/defendant
/versus/
D. Vijayalakshmi ..Respondent/plaintiff
Appeal Suit has been filed under Section 96 of C.P.C., to set aside
the judgment and decree passed in O.S.No.23 of 2014, dated 21.04.2016
on the file of the learned Principal District Judge, Puducherry and allow the
above appeal.
For Appellant :Mr. T.R. Rajaraman
for Mr. V.V. Sairam
For Respondent :Mr.G.Rajan
------
https://www.mhc.tn.gov.in/judis
1/18
A.S.No.553 of 2016
JUDGMENT
The defeated defendant is the appellant herein. The
respondent/plaintiff filed a suit for specific performance in respect of the
suit sale agreement [Ex.A1], dated 11.02.2015.
(i) The defendant is the absolute owner of the suit property by virtue
of a registered sale deed dated 16.03.2000. It is pleaded by the plaintiff
that, the defendant offered to sell the property and a written agreement for
sale (Ex.A1) was executed on 23.02.2011. Sale consideration was fixed at
Rs.5,10,000/-. On the same day, an amount of Rs.5,00,000/- was said to
have been paid by the plaintiff. The time for execution of the sale deed is
one year for payment of the balance amount of Rs.10,000/- and handing
over all antecedents title deeds with respect to the suit schedule property.
(ii) The plaint further proceeds that on 05.02.2014, the defendant
filed a complaint and the police have registered the case and subsequently,
directed them to approach the Civil Court. The plaintiff issued a legal
notice Ex.A3 calling upon the defendant to complete the sale transaction.
On his failure, the plaintiff filed the suit in O.S.No.23 of 2014.
https://www.mhc.tn.gov.in/judis
2. The substance of the written statement, in brief, is that the
defendant is doing real estate business and the plaintiff's husband
Danasekaran is doing finance business. The defendant had received a sum
of Rs.5,00,000/- from the plaintiff's husband on 26.09.2007 for his
business purpose agreeing to repay with interest. On the request of the
plaintiff's husband Danasekaran, the defendant's husband Manogar @
Ramamurthy executed the sale agreement on 26.09.2007 towards the
security for the loan amount received by the defendant. The plaintiff's
husband had also obtained blank stamp papers, promissory notes and
cheque leaves from the defendant. Further, it had been stated that on
02.09.2007, the defendant's husband paid the entire loan amount of
Rs.5,00,000/- along with interest at the rate of 72% (Rs.3,60,000/-) and
cancelled the sale agreement on 02.09.2008. Subsequently, the defendant's
husband approached the plaintiff's husband for the loan of Rs.5,00,000/-
towards business expenses and the defendant's husband agreed to pay with
interest at the rate of 72% per annum and at that time, the plaintiff's
husband required the defendant to execute the sale agreement as security
for the loan amount and accordingly, the defendant executed the sale
https://www.mhc.tn.gov.in/judis
agreement dated 08.12.2008. The plaintiff's husband received the entire
interest amount and cancelled the sale agreement dated 08.12.2008 and
obtained fresh sale agreement from the defendant on 08.12.2008,
08.02.2010 and 23.02.2011. Thereafter, the defendant's husband had
executed the agreement of sale, dated 27.04.2009 in favour of the plaintiff
on the insistence of the plaintiff towards the interest of the principal sum.
The plaintiff's husband also obtained two promissory notes, dated
14.02.2010 and two cheques bearing Nos.913550 and 913551 drawn on
UCO Bank, Puducherry Branch, from the defendant for a sum of
Rs.2,25,000/- each and also obtained two indemnity bonds towards the
interest amount due. It had been further stated that the defendant's husband
demanded a total sum of Rs.17,00,000/- to discharge the loan borrowed by
the defendant's husband for a sum of Rs.5,00,000/-. Therefore, the
defendant gave a police complaint before the Station House Officer,
Mudaliarpet Police Station, on 05.02.2014. The defendant went to the
police station along with her husband and explained the details of mode of
repayment of the loan amount borrowed by her husband. But, the police
dropped the defendant's complaint.
https://www.mhc.tn.gov.in/judis
3. It is further specific case of the defendant in the written
statement that the plaintiff's husband obtained two promissory notes dated
14.02.2010 and two cheques. In short, ExA1-agreement is never intended
to be an agreement of sale. It is only executed as security for the loan
transaction between the parties.
4. Before the trial Court, necessary issues have been framed and
evidence has been let in. On behalf of the plaintiff, PW1 to PW-3 were
examined and Ex.A1 to Ex.A5 were marked and on behalf of the
defendant, DW-1 and DW-2 were examined and Ex.B1 to Ex.B18 were
marked. On consideration of oral and documentary evidence, the learned
Principal District Judge, Puducherry, has come to the conclusion that
Ex.A1-sale agreement is enforceable in law and also held that, the plaintiff
is ready and willing to perform his part of the contract. Accordingly,
granted decree and hence, this appeal.
5. Challenging the rejection of the defence in the specific
performance suit, the defendant has preferred this appeal.
https://www.mhc.tn.gov.in/judis
6. Heard Mr. T.R. Rajaraman, learned counsel appearing for the
appellant/defendant and Mr. G. Rajan, learned counsel appearing for the
respondent/plaintiff and records and citations have been perused.
7. After hearing both the parties, the following issues are framed
for determination in this appeal.
(i)Whether Ex.A1-agreement of sale, dated 23.02.2011, is true and
valid as pleaded by the plaintiff (or) is it only intended as a security for the
loan as projected by the defendant?
(ii)Whether the respondent/plaintiff has proved passing of
consideration of Rs.5,00,000/-, on 23.02.2011, when it was specifically
denied by the defendant/appellant?
(iii)Whether the respondent/plaintiff is ready and willing to perform
his part of the contract?
8. The plaintiff examined herself as PW-1. Ex.A1 is the original
agreement of sale dated 23.02.2011. Ex.A2 is the report by the police dated
05.02.2014 to seek remedy before the Civil Court. Ex.A3 is the legal notice
dated 15.02.2014. Ex.A4 is the acknowledgement. At this juncture, it
https://www.mhc.tn.gov.in/judis
remains to be stated that pre-suit notice under Ex.A3 was issued only after
the complaint given by the defendant to the concerned police station
regarding the suit sale agreement and it assumes significance.
9. The learned counsel appearing for the appellant/defendant,
based upon Ex.B9 to Ex.B12, would contend that when the defendant has
come forward with specific case of earlier sale agreements for the purpose
of money advanced between the parties, the plaintiff has miserably failed to
explain, why the plaintiff has chosen to cancel all the previous agreements
for about five years namely, 2007 to 2011, which are being cancelled every
annual and all are the photo copy of the husband of the plaintiff and the
husband of the defendant.
10. On perusal of the chief and cross examination of PW-1
(Tmt.Vijayalakshmi) and DW-1(Tmt. Kalaivani), I find that the case of the
appellant/defendant is that the husband of the plaintiff and the husband of
the defendant are all close friends. While the husband of the defendant is
doing real estate business, the husband of the plaintiff is doing finance
business. Earlier, there were transactions between the parties and it is an
https://www.mhc.tn.gov.in/judis
usual practice between them to give security for the loan advanced and in
such circumstances, Ex.B9, Ex.B10, Ex.B11, Ex.B12, Ex.B13 and Ex.B14
were said to have been executed between the parties. PW-1 in the witness
box was confronted with Ex.B9 to Ex.B14 as well as Ex.B1 to Ex.B4.
11(a). Ex.B1 is the photo copy of the plaintiff's husband in the
agreement of sale dated 26.09.2007; Ex.B2 is the photo copy of the
defendant in the agreement of sale, dated 26.09.2007; Ex.B3 is the photo
copy of the husband of the plaintiff in cancelling the sale agreement dated
02.09.2008 and so also, Ex.B4 is the photo copy of the defendant in
cancelling the agreement of sale date 02.09.2008 and earlier four
agreements of sale deed dated 08.12.2008; 08.01.2010; 14.02.2010; and
14.02.2009 and two pro-notes dated 14.02.2008 and 14.02.2010, which
were placed before the Court with torn, re-fixed with the cellophane tape.
11(b). The evidence of DW-1 is that, after execution of the
subsequent sale agreements as a security for the loan exchanged between
the parties, the earlier sale agreement was torn and new sale agreement
came into force. In this connection, the answer elucidated from the cross
https://www.mhc.tn.gov.in/judis
examination of PW-1, assumes significance as discussed infra.
12(a). Ex.B8 is the notice issued to the defendant in respect of the
money borrowed on the promissory note from the plaintiff. In short, the
evidence of the defendant both in the written statements as well as during
examination as DW1 is that, there were earlier transactions and the
documents namely, Ex.B1 to Ex.B4 and Ex.B5 to Ex.B7 and Ex.B9 to
Ex.B14 relates to the earlier transactions and on termination of the date,
the same were torn.
12(b). The trial Court has observed that the husband of the
defendant did not enter into the witness box to speak about the earlier
transaction, is fatal. However, the admission of PW-1 is sufficient. While
PW-1 admitted the photocopy of the plaintiff's husband under Ex.B1 and
Ex.B2 and also identified the photocopy of her husband in another
cancellation deed, she denied her signatures in yet another sale agreement
dated 08.12.2008. The signatures in the previous sale agreement dated
08.12.2008 were marked as Ex.B5 (series) during the cross examination of
PW-1.
https://www.mhc.tn.gov.in/judis
12(c). The plaintiff, to substantiate her case, also examined PW-2
(Mr. Rajendiraen), the document writer, who prepared Ex.A1-agreement.
During his cross examination, he also identified the agreement of sale,
dated 08.12.200,8 in which he had also signed at the end and his signature
was marked as Ex.B9. Similarly, another signature in a document dated
08.02.2010 was marked as Ex.B10. In yet another document, dated
14.02.2010, his signature was marked as Ex.B11. In a further document,
dated 14.02.2009, his signature was marked as Ex.B12. In a promissory
note, dated 14.02.2009, his signature was marked as Ex.B13. In yet
another promissory note, dated 14.02.2010, his signature was marked as
Ex.B14, which goes to show that the plaintiff side evidence namely PW-2,
who is the document writer (Mr.Rajendiran) has admitted that Ex.B9 to
Ex.B14 were executed between the parties and hence, merely because PW-
1 has chosen to deny the same, the version of this independent witness
PW-2, who is the scribe of the sale agreement Ex.A1, and who admitted
the existence of Ex.B9, Ex.B10, Ex.B11, Ex.B12, which are the documents
relied on by the defendant that, they are all the earlier money transactions
between the parties and those documents are produced as defence
https://www.mhc.tn.gov.in/judis
evidence.
13. Hence, I find that the non-examination of the husband of the
defendant is not fatal to the case of the defendant, in view of the admission
made by PW-2, the independent witness, scribe of Ex.A1. Therefore, it is
sufficient to hold that the documents namely,Ex.B9, Ex.B10, Ex.B11,
Ex.B12, Ex.B13 and Ex.B14 are executed between the parties. Since PW-2
is not only an independent witness, but he is also the scribe of the
document, the reason assigned by the trial Court that the non-examination
of the defendant's husband in the witness box to speak about the
documents pales insignificance, in view of the admission made by the
scribe of those documents, who was examined on the side of the plaintiff.
14. Further more, it remains to be stated that with regard to
passing of consideration under Ex.A1, the defendant both in his pleadings
as well as in his evidence, has categorically deposed that, no amount has
been passed under Ex.A1 and the sale agreement [Ex.A1] was executed
only as a security for the loan transaction and on cancellation of the earlier
sale agreements Exs.B9 to Ex.B12, Ex.A1 came into force.
https://www.mhc.tn.gov.in/judis
15(a). For the reasons stated in the preceding paragraph, this Court
has rendered a categorical finding based upon the admission of PW-2 that
those exhibits were proved by the scribe himself. Hence, the plea of non-
passing of consideration having been raised in the written statement as well
as in the evidence, the burden of passing of consideration under Ex.A1
remains significant and consequently falls upon the plaintiff/ respondent.
15(b). During the cross examination of DW-1, her stand was that
she had withdrawn the money from Kombakkam Bank in Pondicherry and
paid the advance amount in bundles of Rs.500/- rupees notes. Admittedly,
she has not filed any document to show that the alleged withdrawal amount
of Rs.5 lakhs from the said bank in and around the date of the agreement
assumes significance and hence, when no document has been filed to show
that the alleged source of income and the alleged source of fund for
payment of advance amount of Rs.5 lakhs on the date of the agreement, on
the above-stated circumstances, this Court has no hesitation to hold that the
respondent/plaintiff failed to demonstrate passing of consideration under
Ex.A1, and the same has caused serious doubt regarding true and
https://www.mhc.tn.gov.in/judis
genuineness of the Ex.A1-suit sale agreement.
15(c). Hence, I find that the plaintiff has failed to show and
demonstrate passing of consideration under Ex.A1, in view of shifting of
burden and in view of the admission of PW-2 as stated supra.
16. Yet another point is that neither the husband of the plaintiff
nor the husband of the defendant entered into the witness box. The
relationship between the parties are admitted by the parties to the lis. The
plaintiff's husband photograph was admitted by PW-1 in respect of Ex.B1,
Ex.B3 and Ex.B6 so also admitted the photograph of the defendant in
Ex.B2, Ex.B4 and Ex.B6. This goes to demonstrate that the defendant has
successfully projected this case that there were earlier transactions between
the parties, right from the year 2007, 2008, 2009 and 2010 and also two
promissory notes (Exs.B13 and Ex.14) between the parties indicating that
the money transaction was between the parties and subsequent cancellation
of the registered agreement of sale, she has paid Rs.5 lakhs on the date of
registration. This Court again reiterates that the admission of the scribe of
those documents is the best piece of evidence who admitted his signature
https://www.mhc.tn.gov.in/judis
in those documents during his cross-examination.
17(a). Yet another point is that though the plaintiff states that he is
ready and willing to perform his contract in respect of the sale agreement
dated 23.02.2011, even after passing of three years, they have not issued
any legal notice and Ex.A3 pre-suit legal notice was issued only on
14.02.2014. Moreover, since the defendant has filed a complaint before
the Mudaliarpet Police Station and the police have closed the case, as it is a
civil in nature on 05.02.2014, only after the police complaint lodged by the
defendant on 05.02.2014, the said legal notice was issued.
17(b). The stand of the plaintiff is that she is always ready and
willing to pay the balance sale consideration. According to her case, the
sale consideration is Rs.5,10,000/- and she paid Rs.5,00,000/- on the date
of registration. For the reasons stated supra, this Court holds that the
evidence of PW-1 regarding the payment of the advance of Rs.5,00,000/- is
doubtful and unbelievable.
17(c). Hence, Rs.10,000/- is said to have been the balance of the
https://www.mhc.tn.gov.in/judis
sale consideration and his readiness and willingness have become pale
insignificance.
18. On comparison, the learned counsel for the appellant drew the
attention of this Court to Ex.B9-sale agreement dated 08.12.2008; Ex.B10
dated 08.01.2010; Ex.B12, dated 14.02.2009; and the sale agreement on
26.09.2007 and 02.09.2008. The sale price is fixed at Rs.5,10,000/- and
advance is Rs.5,00,000/-. Hence, though this is the singular fact, it may not
be sufficient enough to infer the earlier sale agreements. However,
considering the admission made by PW-2 in the cross examination,
coupled with non-filing of any document to substantiate the alleged
payment of Rs.5,00,000/- on the date of Ex.A1-agreement; and coupled
with the sale consideration being the same in all these documents, I find
that the contention of the appellant/defendant that Ex.A1 is only security
for the loan and there was no intention to sell the suit property, appears to
be just and fair and the plaintiff having failed to prove the nature of the
documents coming into existence of the suit sale agreement and other
circumstances, I hold that Ex.A1-the suit sale agreement is not legally
enforceable and it is circumscribed with suspicion coming into existence of
https://www.mhc.tn.gov.in/judis
the document, especially, in view of Ex.B9, Ex.B10, Ex.B11, Ex.B12,
Ex.P13 and Ex.B14 and hence, the relief of specific performance being
discretionary relief, I am not inclined to concur with the judgment of the
learned Principal District Judge, Puducherry and warrant interference with
the decision.
19. For the reasons stated supra, all the points are answered in
affirmative in favour of the appellant/defendant. Consequently, the decree
and judgment passed in O.S.No. 23 of 2014 is liable to be set aside.
20. In the result, this Appeal Suit is allowed. The judgment and
decree dated 21.04.2016 in O.S. No. 23 of 2014 passed by the learned
Principal District Judge, Puducherry is hereby set aside. No costs.
Consequently, connected Miscellaneous Petition is closed.
04.06.2024
Index:yes/no
Speaking order/non speaking order
Neutral Citation:yes/no
ari
https://www.mhc.tn.gov.in/judis
To
The Principal District Judge, Puducherry.
TMT.TEEKAA RAMAN,J.
https://www.mhc.tn.gov.in/judis
ari
delivery judgment made in
and
04.06.2024
https://www.mhc.tn.gov.in/judis
