Madras High Court
H.Sobhanabai vs R.Manmadhan (Died) on 29 April, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
AS.(MD)No.139 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 17.02.2025
Pronounced On : 29.04.2025
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
AND
THE HON'BLE MR.JUSTICE M.JOTHIRAMAN
A.S.(MD)No.139 of 2024
and
C.M.P.(MD)No.7268 of 2024
C.Chellan Nadar (Died)
1.H.Sobhanabai
2.Dr.C.S.Sheepa
3.Dr.Peeceeyen Sheejith Hari
4.Dr.P.C.N.Sheen
5.T.G.Madhuri ... Appellants/Defendants 2 to 6
Vs.
R.Manmadhan (Died)
D.Leela Kumari (Died)
1.M.L.Bhamini
1/15
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AS.(MD)No.139 of 2024
2.M.L.Ramprasad ... Respondents/Plaintiffs 3 & 4
PRAYER : First Appeal filed under Section 96 of the Code of Civil
Procedure against the Judgment and Decree dated 01.02.2024 passed in
O.S.No.15 of 2007 on the file of the Additional District Court (Fast
Track), Nagercoil, Kanyakumari District.
For Appellants : Mr.V.Ragavachary,
Senior Counsel
for Mr.M.P.Senthil
For Respondents : Mr.V.Meenakshi Sundaram
JUDGMENT
(Judgment of this Court was delivered by M.JOTHIRAMAN J.)
Unsuccessful defendants 2 to 6 have preferred the appeal. The suit
in O.S.No.15 of 2007 has been filed for specific performance of contract
and the alternative prayer for recovery of advance amount. The suit for
specific performance is dismissed and the alternative relief of recovery of
an advance amount has been decreed. For the shake of convenience, the
parties are referred to as per their rank before the trial Court.
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2.Originally Thiru.Manmathan had filed the suit against the Chellan
Nadar. Pending suit, the said Manmathan died and his legal heirs were
impleaded as plaintiffs. Similarly, the defendant Chellam Nadar died and
his legal heirs were impleaded as defendants.
3.The brief Case of the plaintiff is as follows:-
The plaintiff is an agriculturalist and owner of so many acres of
agricultural land. The suit schedule property belonged to the defendants.
The defendants approached the plaintiff and offered to sell the suit
schedule property. Out of suit schedule property, they are having title over
9.75 acres of patta land and having B memo and possession over 60.10
acres of land. The defendants agreed to sell the entire land to the plaintiff
with an agreement for sale on 17.08.2004 at the rate of Rs.35,50,000/- and
received an advance amount of Rs.5,000/-. The first defendant executed
an agreement for and on behalf of other defendants as a power holder. The
defendants handed over the copy of the title deeds and other documents. It
was specifically provided in the agreement that the sale has to be
completed within 30.09.2004. Subsequently, they extended the period
10.11.2004, as per extension agreements 10.10.2004. While so, on
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19.10.2004, the plaintiff approached the defendants to execute the sale
deed, but the first defendant requested time and demanded additional
advance. As such, the plaintiff paid a sum of Rs.17,55,000/- by way of
Demand Drafts. With knowledge and permission of the defendants, he
had obtained agriculture loan and spent huge amount to the tune of
Rs.30,00,000/- in the suit schedule property. The plaintiff was and is
always ready and willing to perform his part of contract. The plaintiff also
sent an Advocate notice. But the defendants sent neither any reply nor
executed the sale deed. Hence, the suit.
3.1.As per the order passed in I.A.No.5 of 2023 dated 06.11.2023,
the plaint has been amended adding the alternative relief of refund of
advance amount.
4.The brief case of the first defendant is as follows:-
It was only the plaintiff who offered to purchase the suit schedule
property. The plaintiff executed the sale agreement on 17.08.2004 only
after being convinced with the defendants title and actual measurement of
the property. The averment that the parties to the agreement extended the
period to 10th November 2004 and mutually executed an extension
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agreement on 10.10.2004 is nothing but, blatant falsehood. On 30.10.2004
the plaintiff paid Rs.17,50,000/- by Demand Draft and Cheque and
obtained the original title deeds. On the request made by the plaintiff the
time limit for execution of the sale deed was fixed on 15.11.2004. but even
then, the plaintiff was not able to perform his part of contract, even though
the first defendant was ready and willing to perform his part of contract.
On the contrary, the plaintiff expressed his inability to conclude the sale by
paying the balance sale consideration and received back the amount of
Rs.17,55,000/- on 04.02.2005 and executed a consent deed and has waived
the agreement. The plaintiff sent an Advocate notice dated 30.01.2006
stating false and frivolous averments. The first defendant sent a detailed
reply and demanded written of his original title deeds through is Advocate
on 20.02.2006.
4.1.After amendment made in the plaint, the second defendant filed
additional written statement.
5.The brief case of the second defendant is as follows:-
The trial of the case commenced in the year 2011 and after
completion of the evidence, the plaintiff's side arguments completed on
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01.09.2023. Thereafter, the case was posted on 20.09.2023 for defendants'
side arguments. After their arguments, the Court orally directed the
plaintiffs to amend the plaint and only on that direction, they amended the
plaint and the same is time barred claim.
6.Based on the above pleadings, the trial Court framed the following the
issues:-
i)Whether the extension of time agreement dated
10.10.2004 is valid?
ii)Whether the plaintiff is always ready and willing to
perform his part of contract?
iii)Whether the plaintiff is entitled for the relief of
specific performance?
iv)What other the plaintiff is entitled?
On the side of the plaintiffs, first plaintiff Manmathan himself examined as
P.W.1, fourth plaintiff Ramaprasath himself examined as P.W.2, the third
plaintiff Bamini herself examined as P.W.3 and Branch Manager one
Ratheesh examined as P.W.4 and Ex.A1 to Ex.A10 were marked. On the
side of the defendants, the second defendant Harikesavan examined as
D.W.1 and Ex.B1 to Ex.B3 were marked.
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7.Findings of the trial Court:-
The plaintiff has failed to prove his case that he was and is always
ready and willing to perform his part of contract and he is not entitled for
the relief of specific performance. The plaintiff has proved that he has
paid a sum of Rs.17,55,000/- for an additional advance amount to the
defendants. The defendants failed to prove their case that they have been
repaid the additional advance amount of Rs.17,55,000/- to the plaintiff
under Ex.B3. The plaintiff is entitled to get the advance amount paid to
the defendants and decreed the suit in alternative relief.
8.Points for determination arises in this appeal are as follows:-
i)Whether the defendants repaid the additional advance amount of
Rs.17,55,000/- to the plaintiffs under Ex.B3?
9.The learned Senior Counsel appearing for the appearing for the
defendants 2 to 6 would submit that the repayment of advance amount
was disclosed even in the reply notice as early on 20.02.2006, which is
within 30 days from the date of Ex.A4. The trial Court committed an error
in granting alternative relief of refund of advance amount, without
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properly appreciating the oral and documentary evidences, which clearly
shows that the said advance amount has been repaid as early as on
04.02.2005 which is also been acknowledged by the deceased first
plaintiff by virtue of Ex.B3. The learned senior counsel further would
submit that there is no issue was framed with regard to granting an
alternative relief of refund of advance amount. Hence, there is no evidence
adduced in this regard. Therefore, this appeal may be remanded back to
the trial Court with a direction to frame a necessary issue with regard to
the granting an alternative relief and to adduce evidence.
10.Per contra, the learned counsel appearing for the plaintiffs would
submit that the issue with regard to readiness and willingness of the
plaintiff was framed and in which, both side evidences were adduced and
defendant side documents were also marked. He would submit that in the
written statement, the refund of advance amount has been pleaded and the
defendants have relied upon the consent letter of Ex.B3. There is no valid
grounds raised in the appeal to interfere with the decree and judgment of
the trial Court and there is no circumstances warranted to remand back the
matter to the trial Court.
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11.The defendants have admitted that they have entered into a sale
agreement dated 17.08.2004 with deceased first plaintiff and total sale
consideration was fixed at Rs.35,50,000/-. It is also admitted that they
have received an advance amount of Rs.5,000/- on the date of agreement
of sale and Rs.17,50,000/- received on 20.10.2004 through Bank Demand
Drafts. Admittedly, the plaintiffs have not preferred any appeal
challenging the dismissal of the suit to the relief of specific performance.
The only point for consideration arises in this appeal whether the
defendants have repaid the advance amount of Rs.17,55,000/- on
04.02.2005 under Ex.B3. The first plaintiff borrowed money from Bank
and he has paid the amount of Rs.17,50,000/- through Bank drafts directly
to the defendants.
12.As per proviso to Section 22(2) of Specific Relief Act, the
alternative relief of refund of advance amount can be incorporated in the
plaint by way of an amendment at any stage of the suit. It is stated in the
plaint that the suit schedule property belonged to the defendants and the
defendants are having title over 9 acres 75 cents of patta land and having
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B memo and possession over 60 acres 10 cents. The defendants have not
specifically denied the above said facts.
13.It is the specific case of the defendants in the written statement
that the plaintiff received back the amount of Rs.17,55,000/- on
04.02.2005 and executed a consent deed and has waived the agreement.
11.It is requisite to cite the sections 101 and 103 of the Indian Evidence
Act -
Section 101 – Burden of Proof – Whoever desires any
Court to give judgment as to any legal right or liability
dependent on the existence of facts which he asserts, must
prove that those facts exist. When a person is bound to prove
the existence of any fact, it is said that the burden of proof
lies on that person.
Section 103 – Burden of proof as to particular fact -
The burden of proof as to any particular fact lies on that
person who wishes the Court to believe in its existence,
unless it is provided by any law that the proof of that fact
shall lie on any particular person.
The decision of the Hon'ble Supreme Court reported in AIR 2011 SC 2344
– Ranammal v. Kuppuswami wherein it has been held that “when a
person is bound to prove the existence of any fact, it is said that burden of
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proof lies on that person. Thus, the burden of proving fact always lies
upon the person who asserts it. Unless such burden is discharged, the
other party is not required to be called upon to prove his case.”
14.Ex.B2 is the copy of reply notice sent by the first defendant
addressed to the first plaintiff's Advocate one Thiru.Kiurbakaran. Ex.B1 is
the copy of postal acknowledgement card. Ex.B3 is the unregistered
consent deed dated 04.02.2005. A reasonable doubt arises in this case that
if really the defendants have repaid the advance amount under Ex.B3, they
would have get back the original title deeds from the first plaintiff. On the
contrary, in Ex.B2 reply notice and their written statement and D.W.1 in
his evidence stated that the plaintiffs have not returned the original title
deed. It is not the case of the defendants that they have taken legal steps to
get back the title deed from the plaintiffs. D.W.1 in his cross examination,
states that the original deeds were not given to the plaintiff and the same
under the custody of D.W.1 and the same have been handed over to the
purchaser at the time of execution of sale deeds. D.W.1 in his cross
examination admits that the advance amount has not been repaid by way
of cheque and the same is not mentioned in Ex.B2 reply notice. D.W.1
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deposed that three persons who are mentioned as witnesses in Ex.B3 does
not know. D.W.1 admits that except Ex.B3 no other documents have been
filed to substantiate that the advance amount has been repaid. Admittedly
in this case, the deceased first defendant Chellanadar did not enter into
witness box to substantiate that Ex.B3 has been duly executed. Except the
evidence of D.W.1 (4th defendant) no other independent witnesses have
been examined. The attesting witnesses said to have been mentioned in
Ex.B3 have also been not examined. A perusal of Ex.B3 would go to
show that there are corrections made in the amount. D.W.1 admits that the
suit schedule property already been sold in the year 2007 and the same has
not been denied by the plaintiffs. More over, in the plaint, came to be
amended by the plaintiff in amended plaint in para No.9(d), it has been
stated that during the course of cross examination, D.W.1 deposed that the
plaint schedule property has been sold to the stranger by them. Further, it
has been stated that the plaintiffs reserved their right to seek an alternative
relief of recovery of advance of Rs.17,55,000/- with interest.
15.In view of the above, the burden heavily lies on the defendants
have not been discharged. With regard to repayment of advance amount
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though there is no specific issue has been framed by the trial Court,
however, sufficient evidence has been adduced on the side of the
defendants by placing Ex.B1 to Ex.B3 documents. Therefore, the question
of remanding matter back to the trial Court does not warranted. We are of
the view that there is no reasons to interfere with the impugned judgment
and decree. The point is answered, accordingly.
16.In the result, this first appeal is dismissed and the judgement and
decree dated 01.02.2024 passed in O.S.No.15 of 2007 on the file of the
Additional District Court (Fast Track), Nagercoil, Kanyakumari District is
hereby confirmed. No costs. Consequently, connected miscellaneous
petition is closed.
(G.R.S., J.) & (M.J.R., J.)
29.04.2025
NCC : Yes / No
Index : Yes / No
gns
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To
The Additional District Court (Fast Track),
Nagercoil, Kanyakumari District.
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G.R.SWAMINATHAN,J.
and
M.JOTHIRAMAN, J.
gns
Pre-Delivery Judgement made in
29.04.2025
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