Madras High Court
G.Siddharaju vs H.Shaheen on 12 November, 2024
Author: R.Subramanian
Bench: R.Subramanian
A.S.No.699 of 2018
THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.11.2024
CORAM:
THE HONOURABLE MR JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE MR JUSTICE C.KUMARAPPAN
A.S.No.699 of 2018
and
C.M.P.No.3469 of 2024
G.Siddharaju ...Appellant
Vs.
1.H.Shaheen
2.H.Sartaj ...Respondents
Prayer: Appeal filed under Section 96 read with Order 41 Rule 1 of the
Code of Civil Procedure, 1908, against the judgment and decree in
O.S.no.30 of 2014 on the file of the Additional District Court, Krishnagiri
dated 07.08.2018.
For Appellant : Mr.V.Raghavachari,
Senior Counsel
For Respondents : Mr.G.Ethirajulu,
for Mr.K.Balu
*******
1/20
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A.S.No.699 of 2018
JUDGMENT
(Judgment of the Court was delivered by R.SUBRAMANIAN, J.)
The defendant, in O.S.No.30 of 2014, a suit for specific performance,
is on appeal, aggrieved by the decree directing him to execute the sale deed,
in respect of entirety of the suit properties.
2. The plaintiffs sued for specific performance of the agreement dated
09.04.2013, in and by which, according to the plaintiffs, the defendant
agreed to sell six residential plots for a total consideration of
Rs.30,00,000/-. An advance of Rs.5,00,000/- was paid on the date of the
agreement and time of nine months was fixed for performance. The time
fixed expired on 08.01.2014. The plaintiffs would further aver that there
were certain negotiations between the parties and it was agreed that the sale
deeds would be executed for three of the plots at the first instance and the
remaining two plots will be sold later. Accordingly, on 27.01.2014, three
sale deeds were prepared in respect of plot Nos.5, 22 and 26. It was agreed
that the sale deeds in respect of plot Nos.9 and 44 will be taken later.
Immediately after the sale deeds were prepared, the plaintiffs paid a sum of
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Rs.20,80,000/- being consideration under the three sale deeds to the
defendant. When the parties went to the Registrar’s Office at Soolagiri for
registration of the said instrument, the defendant did not attend the
Registrar’s Office and escaped midway. Therefore, the plaintiffs issued a
notice on 18.02.2014 requiring the defendant to receive the balance sale
consideration of Rs.4,20,000/- and execute the sale deed in respect of all the
five plots. Though the said notice was received by the defendant on
22.02.2014, there was no reply. The plaintiffs, therefore, came forward with
the above suit.
3. The defendant resisted the suit raising all defences that were open
to the defendant in a suit for specific performance. The usual plea that the
agreement was not intended to be acted upon and it was only a loan
transaction was also made. Apart from the said plea, the defendant also
contended that the sale agreement was only nominal and it was agreed that
the said agreement should be cancelled and the defendant would sell three
plots for a total consideration of Rs.30,00,000/- to the plaintiffs. On
execution of the sale deeds dated 27.01.2014, the defendant would contend
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that though he had signed the document, the sale consideration under the
document totalling a sum of Rs.20,80,000/- was not paid. The defendant
also pleaded that the plaintiffs were not ready and willing to perform their
part of the contract. On the above pleadings, the defendant sought for
dismissal of the suit.
4. On the above pleadings the learned trial Judge framed the
following issues:-
1) Whether the plaintiffs are entitled to specific
performance of the contract?
2) Whether the plaintiffs were ready and willing to
perform their part of the contract?
3) Whether the plea that the suit agreement amount to
loan transaction is correct?
4) To what other relief is the plaintiffs entitled to?
5. At trial, on the side of the plaintiffs, the 2nd plaintiff was examined
as PW1 and the attestor to the agreement, as well as the sale deeds one
Mr.Siraj was examined as PW2. Exs.A1 to A9 were marked. On the side of
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the defendant, the defendant was examined as DW1 and three other
witnesses were examined as DW2 to DW4. Exs.B1 and B2 were marked.
6. The trial Court upon consideration of the evidence on record
concluded that the agreement is true and valid. It also rejected the
contention of the defendant that the agreement was executed as security for
loan transaction. On the plea of the defendant that he had not received any
money at the time of execution of three sale deeds on 27.01.2014, the trial
Court accepted the evidence of PW1 and PW2, apart from relying upon the
fact that the defendant did not choose to send a reply to the legal notice
dated 18.02.2014, to come to the conclusion that the payment of sum of
Rs.20,80,000/- on 27.01.2014 stood proved. The learned trial Judge also
concluded that the plaintiffs were ready and willing to perform their part of
the contract. On the above findings, the learned trial Judge decreed the suit
for specific performance as prayed for. Aggrieved, the defendant is on
appeal.
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7. We have heard Mr.V.Raghavachari, learned Senior Counsel
appearing for Mrs.V.Srimathi, learned counsel for the appellant and
Mr.G.Ethirajulu, learned counsel for Mr.K.Balu, learned counsel appearing
for the respondents.
8. Mr.V.Raghavachari, learned Senior Counsel appearing for the
appellant would vehemently contend that the entire conduct of the plaintiffs
and the facts that have been established would demonstrate that the
agreement cannot be true. Heavily relying upon the fact that the defendent
had purchased the property (5 plots) for a consideration of Rs.30,00,000/-
on 02.04.2013 only, the Senior Counsel would contend that it is improbable
that the defendant would have agreed to sell the property within a week for
the same consideration.
9. The learned Senior Counsel would also point out that the specific
plea of the defence is that the agreement was entered into for money
transaction. He would further argue that though three sale deeds dated
27.01.2014 have been signed by the defendant, the defendant has
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specifically denied passing of consideration under those documents and
therefore, it was incumbent upon the plaintiffs to prove that they paid a sum
of Rs.20,80,000/- on the date of execution of those sale deeds. In the
absence of any other evidence, except the oral evidence of PW1 and PW2,
the trial Court had wrongly assumed that the defendant had received a sum
of Rs.20,80,000/- on 27.01.2014.
10. The learned Senior Counsel would further contend that the
arrangement pleaded by the defendant to the effect that the parties agreed to
cancel the sale agreement and instead convey three plots for the same
consideration of Rs.30,00,000/- is probabilised by the evidence of PW2,
who had admitted that there was such arrangement. Therefore, according to
the learned Senior Counsel, the trial Court was not justified in granting a
decree for specific performance in respect of entirety of the property.
11. Contending contra Mr.G.Ethirajulu, learned counsel appearing for
the respondents would submit that the execution of the agreement and
receipt of advance of Rs.5,00,000/- had been admitted. The fact that the
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agreement is for Rs.30,00,000/- and an advance of Rs.5,00,000/- was paid
and the period of nine months was fixed for performance by itself would
show that the transaction in question cannot be a loan transaction. The
learned counsel would also point out that the defendant had purchased the
very same property for Rs.30,00,000/- on 02.04.2013, just a week prior to
the agreement, hence, the claim that he was in need of money and agreed to
execute the agreement as security for borrowing a sum of Rs.5,00,000/- is
most unbelievable and artificial.
12. The learned counsel appearing for the respondents would also
point out that each of the sale deeds dated 27.01.2014 contain a specific
recital regarding receipt of the sale consideration by the defendant.
Therefore, according to the learned counsel, the claim that the money was
not paid is highly artificial and unbelievable. The learned counsel would
also point out that the defendant had not chosen to reply to the notice dated
18.02.2014 and such conduct on the part of the defendant is fatal to his
claim.
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13. We have considered the rival contentions.
14. On the above contentions of the learned counsel for the parties,
the following points emerge for consideration:
1) Whether there was an understanding
between the parties as claimed by the defendant
to convey only three plots and have the agreement
for five plots cancelled?
2) Whether the payment of Rs.20,80,000/-
on 27.01.2014 by the plaintiffs to the defendant
has been established?
3) Whether the plaintiffs would be entitled
to a decree for specific performance in the given
circumstances?
Point No.1:-
15. Though the defendant has taken all possible defences, we have no
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hesitation in rejecting the defence that the agreement was entered into as a
security for a loan transaction, that too, for a sum of Rs.5,00,000/-. A
perusal of Ex.A1 sale deed dated 02.04.2013 under which the defendant had
purchased the property subject matter of the suit would show that the
defendant has paid a sum of Rs.30,00,000/- in cash on the date of execution
of the said document. Therefore, it is highly improbable for the defendant
to seek financial assistance to the tune of Rs.5,00,000/- and execute a sale
agreement for Rs.30,00,000/- and have it registered as security for the
borrowing. We are therefore unable to fault the trial Court for having
rejected the said plea.
16. As regards the arrangement that resulted in execution of the three
sale deeds on 27.01.2014, the plaintiffs would plead that there were several
negotiations and at last on 27.01.2014 there was an amicable settlement by
which, the parties agreed to have five separate sale deeds executed in
respect of five plots. He would further claim that the defendant received a
consideration of Rs.20,80,000/- and had executed three sale deeds for plot
Nos.5, 22 and 26. Remaining two plots were agreed to be conveyed a little
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later. On the contrary, the defence in respect of this plea is that it was
agreed that the three plots will be sold for Rs.30,00,000/- and the agreement
will be cancelled in respect of the remaining two plots.
17. PW2, who is the attestor to the sale agreement and sale deeds
dated 27.01.2014, in his proof affidavit would affirm the plea of the
plaintiffs to the effect that the plaintiffs had paid a sum of Rs.20,80,000/-
and it was agreed that three plots will be sold at the first instance and the
remaining two plots will be sold at a later date. However, in cross-
examination PW2 has almost accepted the defence set up by the defendant
with reference to the understanding that was reached between the parties
except the payment of consideration. The proof affidavit of PW2 with
reference to this arrangement reads as follows:-
kPzL
; k; 27/01/2024y; thjpfSk;. Gpujpthjpa[k; Kjypy; 3
g;shl;Lfis fpuag;gj;jpuk; vGjpf; bfhs;tJ vd;Wk; kPjp 2
g;shl;Lfis ntbwhU ehspy; fpuag;gj;jpuk; bra;Jf; bfhs;sKot[
bra;jdu;/ mjd;go KobtLj;jg;go thjpfSk;. gpujpthjpak[ ; Xnupy;
cs;s tHf;fwp"u; jpU/D.M.rptr';fu; tf;fPy; MgP!pw;F brd;W 3
jdpj;jdp fpuag;gj;jpu';fs; vGjp ilg; bra;ag;gl;L. Mg;nghnj 3
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g;shl;Lfspd; kjpg;ghf U:/20.80.000-?I gpujpthjp buhf;fkha; bgw;Wf;
bfhz;L vd; Kd;ghf 3 fpuag;gj;jpu';fspYk; gpujpthjp gf;fj;Jf;F
gf;fk; ifbaGj;jpll; hu;/ ehd; ghu;j;njd;/ mtUf;fLj;J thjpfSk;
xt;bthU gf;fj;jpYk; ifbaGj;jpll; du;/ ehd; ghu;j;njd;/ 3
gj;jpu';fspYk; ehd; Kjy; rhl;rpahf ifbaGj;jpl;nld;/ mjid
thjp. gpujpthjpfs; ghu;jj; du;/ vdf;fLj;J gpujpthjpapd; cwtpduhd
rpdd; g;gh vd;gtu; 3 gj;jpu';fspy; ifbaGj;jpl;lhu;/ mjd;gpd;
gj;jpu';fs; jahupj;j tf;fPy; ifbaGj;jpl;L rPy; itj;jhu;/ mjd;go 3
gj;jpu';fSf;fhd U:/20.80.000-?Kk; gpujpthjp ghjpfsplk; buhf;fkha;
bgw;Wf; bfhz;L vy;yh gf;f';fspYk; ifbaGj;jpll; hu;/
18. However, in cross-examination, PW2 has deposed as follows:-
5 gpshl;Lf;fhf nghlg;gl;L 3 gpshl;f;F fpuak; bra;tjhf
Vw;ghL/ mf;hpbkz;oy; 5 gpshl; nfd;ry; bra;ahjjhy; rhh;gjpthsh;
mYtyfj;jpy; gpujpthjp rpj;juh$; ifbaGj;J nghltpy;iy/ thjp
j';fSila cwtpdh; vd;gjhy; bgha; rhl;rpak; brhy;y te;njd;
vd;why; vdf;F thjpiaa[k;. gpujpthjpiaa[k; bjhpak[ ;/
19. This evidence of PW2 definitely points out that the parties had
reached an arrangement, which is not in tune with Ex.A3 agreement. There
was an agreement between the parties to have three plots conveyed and to
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have the agreement dated 09.04.2013 cancelled. Since the plaintiffs were
not willing to have the agreement cancelled, the defendant refused to sign in
the sub-Registrar Office and staged a walk out. This evidence of PW2 runs
counter to the contention of the plaintiffs with reference to the execution of
three sale deeds.
20. We find that the evidence of PW2 to a certain extent dis-lodges
the plaint claim that there was an agreement for execution of sale deeds in
respect of three plots on 27.01.2014 and execution of sale deeds in respect
of the other plots was deferred for some time. The conduct of the defendant
in signing the document, acknowledging the receipt of consideration and
thereafter walking out of the transaction also lends credence to the claim of
PW2 that the defendant did not sign because the plaintiffs did not accept
cancellation. Even if we are eschewing the evidence of PW1 and DW1 as
interested testimonies, the evidence of PW2 who asserts that he knew both
the parties will have to be given some credence. We therefore conclude that
there was an arrangement to the effect that the sale deed for three plots will
be executed on 27.01.2014 and the suit agreement dated 09.04.2013 will be
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cancelled and the failure to cancel led to the defendant walking out of the
transaction without appearing before the Sub-Registrar and affirming the
execution of the sale deeds.
Point No.2:-
21. The plaintiffs would assert that they have paid a sum of
Rs.20,80,000/- being the consideration payable under the three sale deeds
dated 27.01.2014 at the time of execution of the sale deeds. The defendant
would deny receipt of consideration. The trial Court has rendered a finding
that the consideration has in fact been paid. The evidence that is available
for proof of payment of consideration is the recitals in the documents
themselves and the oral evidence, as it is stated that the money was paid in
cash. PW1 and PW2 have deposed that the money was paid. The 1 st
defendant has denied receipt of the money. DW2 is more loyal than a King
where he deposed in chief examination (proof affidavit) that three plots
were agreed to be sold for Rs.55,00,000/-, whereas the defendant himself
has admitted that three plots were agreed to be sold for Rs.30,00,000/- and
not for Rs.55,00,000/- and DW2 has also stated that the plaintiffs did not
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pay Rs.20,80,000/- on the said date. But, DW2 in his chief-examination
would also say that because the plaintiffs did not come forward to cancel the
agreement of sale, the defendant refused to register the document. We
therefore find that the evidence of DW2 has to be taken with a pinch of salt.
The trial Court has also observed that DW2 has argued with the counsel and
reacted harshly for certain questions put to him. Therefore, we do not
propose to rely on his evidence.
22. The conduct of the defendant in not issuing a reply notice to the
notice dated 18.02.2014 also assumes significance. No doubt, there is a
delay on the part of the plaintiffs in issuing the said notice, but, the
defendant having received the notice on 22.02.2014 has not chosen to send
a reply, denying the assertion therein that the defendant has received
Rs.20,80,000/- on 27.01.2014. The preponderance of probability lead to a
conclusion that the defendant had received a sum of Rs.20,80,000/-.
23. Mr.V.Raghavachari, learned Senior Counsel appearing for the
appellant would vehemently contend that there is nothing on record to show
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the payment of Rs.20,80,000/-. No document has been produced to show
that the plaintiffs had the money on that date. We do not think we can
venture in such hypothesis. The three sale deeds have been signed by the
defendant, all of them contain a recital that the consideration had been paid.
PW1 and PW2 very clearly deposed that the money was paid. The silence
on the part of the defendant after receipt of the legal notice on 22.02.2014
also lead us to firmly believe that the claim of the plaintiffs that they paid a
sum of Rs.20,80,000/- on 27.01.2014 is true.
Point No.3:-
24. The next question to be decided is what would be the decree that
the plaintiffs are entitled to. We find that the plaintiffs themselves have
pleaded that there was alternate arrangement between the parties and the
version of the plaintiffs regarding the actual alternate arrangement has been
given a go by, by PW2. PW2 has specifically deposed that there was an
alternate arrangement and because the plaintiffs did not agree for
cancellation as agreed to, the defendant walked out of the sub-Registrar
Office without signing the sale deeds.
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25. We have already concluded that the alternate arrangement was to
the effect that the defendant would convey three plots and agreement in
respect of two plots will stand cancelled. We therefore find that the
plaintiffs would be entitled to a decree for specific performance in respect of
three plots viz., plot Nos.5, 22 and 26. We have found that the sale
consideration with reference to those plots have been paid on 27.01.2014.
Therefore, the defendant would be obliged to execute sale deeds in respect
of those three plots only. The suit will stand dismissed in respect of other
two plots viz., plot Nos.9 and 44.
26. Mr.G.Ethirajulu, learned counsel would contend that in that event
the plaintiffs would be entitled to refund of Rs.5,00,000/- which he has paid
as advance on 09.04.2013, when the agreement was executed.
27. The Hon'ble Supreme Court has held that refund of advance
cannot be granted, unless there is a specific prayer. We do not find any such
prayer in the plaint. We therefore do not think that we can grant a decree for
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refund of a sum of Rs.5,00,000/-. In other respects the suit will stand
dismissed.
28. In fine, the appeal is partly allowed and there will be a decree for
specific performance in respect of three plots viz., plot Nos.5, 22 and 26.
The suit in respect of plot Nos.9 and 44 will stand dismissed. It is stated
that the plaintiffs have deposited a sum of Rs.4,20,000/- pursuant to the
decree. He would be entitled to refund of the said sum with all accrued
interest. The parties shall bear their own costs in the appeal.
Consequently, the connected miscellaneous petition is closed.
(R.S.M., J.) (C.K., J.)
12.11.2024
dsa
Index : No
Neutral Citation : No
Speaking order
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To
The Additional District Judge,
Krishnagiri.
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R.SUBRAMANIAN, J.
and
C.KUMARAPPAN, J.
dsa
12.11.2024
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