Madras High Court
Valarmathi vs Sugapriya on 16 October, 2024
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
S.A.(MD)No.439 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 16.10.2024
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A(MD)No.439 of 2017 & CROS.OBJ(MD)No.19 of 2018
and
C.M.P(MD)No.9118 of 2017
S.A(MD)No.439 of 2017:
Valarmathi ... Appellant /
Respondent /
Defendant
-Vs-
Sugapriya ... Respondent /
Appellant /
Plaintiff
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, to allow this Second Appeal by setting aside the judgment and decree
of the First Additional District Court at Madurai in A.S.No.14 of 2016,
dated 17.06.2017, reversing the judgment and decree of the III Additional
Subordinate Court, Madurai, camp at Usilampatti made in O.S.No.558 of
2012 dated 04.02.2016.
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1/8
S.A.(MD)No.439 of 2017
For Appellant : Mr.J.Senthil Keemaraiah
For Respondent : Mr.S.Ramsundar Vijayraj
CROS.OBJ(MD)No.19 of 2018:
Sugapriya ... Cross Objector /
Respondent
-Vs-
Valarmathy ... Respondent /
Appellant
PRAYER: Cross Objection filed under Order 41 Rule 22 of the Civil
Procedure Code, to set aside the finding of the lower appellate Court insofar
as in declining to grant relief of specific performance in its judgment and
decree dated 17.06.2017 in A.S.No.14 of 2016 by the I Additional District
Judge, Madurai confirming the judgment and decree of the III Additional
Sub Court, Madurai camp at Usilampatti in O.S.No.558 of 2012 dated
04.02.2016 and grant relief of specific performance.
For Cross Objector : Mr.S.Ramsundar Vijayraj
For Respondent : Mr.J.Senthil Keemaraiah
COMMON JUDGMENT
Heard both sides.
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2.Mrs.M.Sugapriya filed O.S.No.558 of 2012 on the file of III
Additional Sub Court, Usilampatti for specific performance. Alternative
relief for refund of the advance amount was also prayed in the event of
denial of specific performance.
3.The case of the plaintiff was that on 10.07.2011, she entered into
Ex.A1 sale agreement with the defendant Valarmathi. A sum of Rs.
4,00,000/- was paid as advance. Total sale consideration was Rs.4,50,000/-.
One year was the time limit for concluding the sale transaction. The sale
transaction was to be concluded on or before 10.07.2012. Since the
defendant did not come forward to execute the sale deed even though the
plaintiff was ready and willing to discharge her part of her obligation under
the agreement, she issued Ex.A3 legal notice dated 23.02.2012. Since the
defendant did not come forward to comply with the demand set out in the
notice, she filed the suit for specific performance on 05.06.2012. The
plaintiff examined herself as PW.1. Her brother-in-law Tamilkumaran who
was the attesting witness was examined as PW.2. Ex.A1 to Ex.A5 were
marked. The defendant examined herself as DW.1. Rajendran / husband of
the defendant was examined as DW.2. One Selvi who was also the attesting
witness was examined as DW.3. Ex.B1 and Ex.B2 were marked on the
defendant side. The trial Court after a detailed consideration on the
evidence on record came to the conclusion that the plaintiff did not
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approach the Court with clean hands. In that view of the matter, vide
judgment and decree dated 04.02.2016 not only the relief of specific
performance was denied but also the alternative prayer for refund the
advance amount was rejected.
4.Aggrieved by the same, the plaintiff filed A.S.No.14 of 2016 before
the First Additional District Judge, Madurai. The first appellate Court came
to the conclusion that the plaintiff had proved the due execution of Ex.A1
sale agreement. However there was inaction on the part of the plaintiff in
taking further steps. Therefore, on the ground of readiness and willingness,
the issue was found against the plaintiff. However, the defendant was
directed to refund the advance amount of Rs.4,00,000/- with interest at the
rate of 7½ % per annum from the date of suit till the date of realisation.
Challenging the same, the defendant filed this Second Appeal. The plaintiff
had also filed her cross objections.
5.The learned counsel on either side reiterated the contentions set out
in the respective memorandum of grounds and called upon this Court to
frame substantial questions of law and take up the matter for final disposal
later.
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6.After a careful consideration of the entire evidence on record, I
come to the conclusion that the trial Court as well as first appellate Court
were partly right in their reasoning. Even though I disagree with much of
the reasons of the first appellate Court, I agree with the eventual conclusion
arrived at by the first appellate Court. Since there is an agreement with the
decree passed by the first appellate Court, there is no need for me to
formally admit the Second Appeal.
7.It is beyond dispute that on 10.07.2011, the plaintiff and the
defendant entered into Ex.A1 agreement. The plaintiff would style Ex.A1
agreement as a sale agreement. As rightly observed by the trial Court, if
Ex.A1 was actually a sale agreement, there was absolutely no need or
necessity for the plaintiff to obtain power of attorney from the defendant in
favour of her father-in-law. Ex.B2 had been attested by the very same
witnesses who attested Ex.A1 sale agreement. What clinches the issue is
the time limit of one year provided for concluding the transaction. The
plaintiff concedes that the sale consideration was fixed at Rs.4,50,000/-. If
Ex.A1 reads that Rs.4,00,000/- was already paid by the plaintiff to the
defendant, then when the balance amount payable is hardly Rs.50,000/- no
prudent person would provide one year time limit to conclude the sale
transaction.
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8.I therefore conclude that the transaction between the parties was
more in the nature of financial transaction and it cannot be called as a sale
transaction. Therefore, the Courts below were justified in denying the relief
of specific performance.
9.Ex.A1 agreement as well as Ex.B1 power of attorney are registered
transactions. Rajendran / DW.2, husband of the defendant had attested both
the documents. Ex.A1 reads that a sum of Rs.4,00,000/- was received by
the defendant. The first appellate Court was therefore right in concluding
that a sum of Rs.4,00,000/- passed from the plaintiff to the defendant. One
can also apply common sense and conclude that since a substantial amount
of sale consideration was already received, the defendant executed the
power of attorney in favour of the father-in-law of the plaintiff. Since
passing of a sum of Rs.4,00,000/- has been established, it is only just and
proper that the same is ordered to be refunded to the plaintiff with interest.
The first appellate Court was therefore justified in ordering refund. I may
not agree with the reasons advanced by the first appellate Court but the
conclusion arrived at is perfectly fair and justified. For this reason, I
decline to interfere. If the defendant had not received Rs.4,00,000/- under
Ex.A1 agreement, she would have definitely lodged a Police complaint
immediately. The fact that Ex.B2 was lodged after the institution of the suit
indicates that the defendant is also not stating the truth before the Court.
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10.The Second appeal as well as the cross objection are dismissed
accordingly. There shall be no order as to costs. Consequently, connected
miscellaneous petition is closed.
16.10.2024
Internet : Yes/No
Index : Yes/No
NCC : Yes/No
MGA
To
1. I Additional District Court,
Madurai.
2. III Additional Subordinate Court,
Madurai camp at Usilampatti.
Copy To
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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G.R.SWAMINATHAN.J.,
MGA
Judgment made in
S.A(MD)No.439 of 2017 & CROS.OBJ(MD)No.19 of 2018
and
16.10.2024
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