Madras High Court
A.Shakeela vs T.Fiyaz Ahmed on 7 February, 2025
Author: N. Sathish Kumar
Bench: N. Sathish Kumar
A.S.No.349 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 07.02.2025
CORAM:
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
A.S.No.349 of 2022
and CMP.No.12610 of 2022
A.Shakeela ... Appellant
Versus
T.Fiyaz Ahmed ... Respondent
Prayer: Appeal filed under Section 96 read with Order 4 Rule 1 of Code of Civil
Procedure, to set aside the judgment and decree dated 03.06.2019 in O.S.No.37 of
2015 on the file of III Additional District Court, Vellore at Tirupattur.
For Appellant : Mr.G.Ilangovan
For respondents : Mr.L.Prabahar
JUDGMENT
Challenging the decree and judgment of the III Additional District Court,
Vellore at Tirupattur dated 03.06.2019 in O.S.No.37 of 2015, the present appeal
has been filed.
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2. It is the case of the plaintiff that the defendant has agreed to sell the
property to the plaintiff for a sum of Rs.13 lakhs and entered into an agreement of
sale on 28.10.2014. On the same day, the plaintiff paid Rs.9,60,000/- to the
defendant as advance and the balance sale consideration is Rs.3,40,000/-. It is
agreed between the parties that the sale shall be completed within a period of six
months, original sale deed was handed over to the plaintiff. The plaintiff is always
ready and willing to perform his part of contract, however, the defendant neglected
to execute the sale deed. Therefore, plaintiff issued legal notice dated 26.05.2015,
however, there was no reply. Hence, the suit.
3. The defendant disputed the agreement for sale. It is the specific contention
of the defendant that plaintiff and the husband of the defendant were into real
estate business. In the said business, the defendant's husband has agreed to sell the
vacant site at the rate of 830 per sq.ft., and entered into an agreement for sale on
03.02.2013. In the said agreement, the defendant's husband has received Rs.6 lakhs
as advance, however, the sale could not be effected. As the sale could not effected,
plaintiff insisted return of Rs.6 lakhs received by the defendant's husband. Since
the defendant's husband was in financial crisis at the relevant point of time, amount
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could not be paid, however, it is agreed that interest @ 5% will be paid on Rs.6
lakhs. Therefore, in order to secure that amount, the plaintiff insisted for an
agreement to be executed by the defendant. Accordingly, the defendant has
executed an agreement on 28.10.2014. Now, in order to knock out the property, the
suit has been filed.
4. Based on the above pleadings, the Trial Court framed the following
issues:
1. Whether the suit sale agreement dated 28.10.2014 is true, valid and binding on
the defendant?
2. Whether a sum of Rs.9,60.000/- is not received by the defendant towards the
sale agreement and a balance of Rs.3,40,000/- is not payable under the sale
agreement?
3. Whether the suit sale agreement was executed only as Security for the loan
transaction?
4. Whether the plaintiff has been ready and willing to Perform his part of contract?
5. Whether the suit is entitled to be decreed as prayed for?
6. To what other relief the plaintiff is entitled to ?
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5. The Trial Court vide judgment and decree dated 03.06.2019 decreed the
suit for specific performance. Challenging the judgment and decree, the present
appeal has been filed.
6. The learned counsel for the appellant submitted that the agreement came
to be executed only in a loan transaction, which has been clearly established, in
fact, plaintiff has also admitted the same in this regard. However, the Trial Court
without considering this aspect has decreed the suit for specific performance. The
Trial Court has not even considered the hardship that may be faced by the
defendant. He would further submit that since the agreement is arising out of loan
transaction, appellant is prepared to return the entire amount. Whereas, the learned
counsel for the respondent submitted that if amount is repaid, he is also entitled to
interest also. He would further submit that the suit agreement has been clearly
established, the Trial Court has clearly considered the entire aspect and granted the
decree.
7. In light of above submissions, now, the following points arises for
consideration:-
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(i) Whether the suit agreement/Ex.A2 is executed as a security for the amount
payable by the defendant's husband?
(ii) Whether the plaintiff was entitled for specific performance?
8. Heard both sides and perused the materials placed on record.
Points (i) and (ii)
9. The suit proceeded as if the defendant has agreed to sell the property for a
sum of Rs.13 lakhs and received a sum of Rs.9,60,000/- on the date of agreement,
i.e., 28.10.2014 and it is agreed between the parties that sale shall be completed
within a period of six months. As the defendant failed to execute the sale deed, the
plaintiff has filed a suit. Whereas, it is the specific stand of the defendant that her
husband and the plaintiff were friends. Her husband has earlier agreed to sell a
vacant site for a sum of Rs.30,51,287/- and received a sum of Rs.6 lakhs. As the
said sale could not be effected, the plaintiff insisted return of Rs.6 lakhs received
by the defendant's husband. Since the defendant's husband was in financial crisis at
the relevant point of time, amount could not be paid. Therefore, the plaintiff has
obtained the sale agreement for recovery of advance amount already received by
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her husband in different transaction.
10. Though no oral evidence contra to written contract is permissible.
However, first proviso to Section 92 of the Indian Evidence Act, 1872 or Section
95 of the Bharatiya Sakshya Adhiniyam, 2023 permits oral evidence to prove that
there was no due execution or there was no consideration in respect of such
contract. No doubt, the initial burden to contend that this was completely a
different transaction, agreement was not intended for sale of the property lies on
the defendant.
11. The evidence of PW1 when carefully perused, his evidence itself in fact
probabalise the case of the defendant. PW1 has clearly admitted that the defendant
is a pardanashin lady, therefore, he had all his dealing with her husband. It is also
admitted by the plaintiff that Rs.6 lakhs has been paid on 03.02.2013, this, in fact
is contrary to the very agreement/Ex.A2 and plaint. In fact, it is pleaded in the
plaint that on 28.10.2014 itself, a sum of Rs.9,60,000/- has been paid, whereas, the
plaintiff in his evidence has clearly admitted that on 03.02.2013 itself, Rs.6 lakhs
has been paid and another Rs.3,40,000/- paid 15 days prior to the agreement. His
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evidence, in fact, clearly indicate that the very agreement has been pressed into
service to secure the earlier loan. He also admitted that the defendant's husband
had entered into a sale agreement/Ex.B1.
12. Having entered the agreement, he has sold the property to the third party
and the advance amount was not returned to the plaintiff. Therefore, advance paid
under Ex.B1 agreement is shown as advance in Ex.A2. It is categorically admitted
that in Ex.A2, he has not given any separate advance. The very admission of PW1
proves the fact that only to secure the earlier amount paid to her husband under
Ex.B1, as her husband did not have any other property, the agreement came to be
executed by the defendant. Therefore, the very defence set up by the defendant is
clearly probabilised by the admission of PW1. When the very allegation in the
plaint that Rs.9.60 lakhs paid on the date of agreement itself is found to be false.
As per the admission of the PW1, this Court is of the view that plaintiff is certainly
not entitled for specific performance on the basis of such falsity. A person coming
to the Court for equitable relief has to come with clean hands. Further, the
evidence clearly indicate that as the defendant is a muslim pardanashin lady, entire
dealing was done with her husband. As the Ex.A2 has been executed only to secure
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the earlier advance paid to the husband of the defendant.
13. Such view of the matter, the Trial Court granting a decree for specific
performance is nothing but clear injustice. In fact, the Trial Court has not even
analysed the evidence of PW1 properly. Therefore, the judgment and decree of the
Trial Court granting specific performance is liable to be set aside. Accordingly,
these points are answered.
14. Further, considering the submission of the learned counsel for the
appellant that they are ready to pay the amount as written in Ex.A2 and the learned
counsel for the respondent submitted that they are ready to receive the amount, the
appeal suit is decreed for alternate relief for return of a sum of Rs.9,60,000/- by the
defendant to the plaintiff, together with simple interest @ 6% p.a., from the date of
agreement till the date of realisation. Though alternate prayer is not sought in this
appeal, as the parties are not in dispute with regard to the return of money, this
Court has passed the above decree.
15. Accordingly, the judgment and decree dated 03.06.2019 passed in
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O.S.No.37 of 2015 on the file of III Additional District Court, Vellore at Tirupattur
granting relief of specific performance is set aside and the appeal stands allowed
and suit is decreed for return of a sum of Rs.9,60,000/- with simple interest at 6%
p.a., from the date of agreement till the date of realisation, with costs.
Consequently, connected miscellaneous petition stands closed.
07.02.2025
Index : Yes / No
Speaking/non speaking order
dhk
To,
The III Additional District Judge,
III Additional District Court
Vellore at Tirupattur
N. SATHISH KUMAR, J.
https://www.mhc.tn.gov.in/judis
dhk
07.02.2025
https://www.mhc.tn.gov.in/judis
