Madras High Court
S.J.Parameswari vs Pavunammal on 14 February, 2025
Author: N. Sathish Kumar
Bench: N. Sathish Kumar
A.S.No.30 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 14.02.2025
CORAM:
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
A.S.No.30 of 2022
and CMP.No.1512 of 2022
S.J.Parameswari ... Appellant
Versus
Pavunammal ... Respondent
Prayer: Appeal filed under Section 96 of Code of Civil Procedure read with Order
41 and 41-A of CPC, to set aside the judgment and decree dated 02.09.2021 made
in O.S.No.2253 of 2018 on the file of XVIII Additional Sessions Judge, City Civil
Court, Chennai.
For Appellant : Mr.M.Venkatesh
For Respondents : Mr.R.Vasudevan
JUDGMENT
Challenging has been made against the dismissal of the suit in entirety.
2. The suit has been filed for specific performance to enforce the agreement
dated 25.01.2016. It is the case of the plaintiff that the defendant has agreed to sell
https://www.mhc.tn.gov.in/judis
the property for a total sale consideration of Rs.19,30,500/- and after parting with
Rs.3 lakhs, original documents were handed over to the plaintiff for verification.
Thereafter, on the date of sale agreement, a sum of Rs.6,50,000/- was paid as
advance, wherein, it is agreed between the parties that sale shall be completed
within a period of three months and last payment was made on 31.07.2017 and
according to the plaintiff, the total sale consideration was paid to the defendant,
however, the defendants did not come for execution of the sale deed. Hence, the
suit was filed
3. It is the stand of the defendant in the written statement that in fact, the
plaintiff entered a sale agreement for purchase of the same property for a total
consideration of Rs.26 lakhs on 12.08.2015. According to them, the said sale
agreement has been suppressed. Only at the request of the plaintiff's husband,
subsequent agreement came to be executed for a sum of Rs.19,30,500/- and it is
the contention of the defendant is that they have received only a sum of
Rs.16,30,500/- and the other 3 lakhs was paid to the defendant's son is a different
transaction.
https://www.mhc.tn.gov.in/judis
4. Based on the above pleadings, the Trial Court framed the following
issues:
1) Whether the plaintiff is entitled to specific performance of contract of sale
agreement dated 25.01.2016 as prayed for ?
2) Whether the plaintiff is entitled to the relief of permanent injunction as prayed
for?
3)Whether the plaintiff has only paid a sum of Rs.1,50,000/-- and Rs. 5 lakhs
totalling Rs.6,50,000/- to the defendant and not Rs.9,50,000/- as alleged and
whether the balance sale consideration apart from Rs.3,70,000/- and Rs.6,10,500/-
has not been paid by the plaintiff?
4. To what other reliefs is the plaintiff entitled to?
5. On the side of the plaintiff, plaintiff herself was examined as PW1 and
marked Exs.A1 to A7. On the side of the defendant, defendant was examined as
DW1 and marked Exs.B1 and B2.
6. The Trial Court taking note of the fact that there was an unregistered
document of the year 2015 for higher value which has not been disclosed in the
https://www.mhc.tn.gov.in/judis
suit. Therefore, the person who has come for equitable remedy is not entitled for
specific performance. Having said that as an alternative relief is not sought for
dismissed the suit in entirety. Hence, the appeal.
7. The learned counsel for the appellant submitted that even assuming that
agreement is not enforceable that there was a previous agreement, the plaintiff is
certainly entitled to return of the sale consideration which is admittedly paid by
the plaintiff and received by the defendant. Whereas it is the contention of the
defendant is that as per the agreement, they received only a sum of Rs.16,30,500/-
not Rs.19,30,500/-. According to the defendant, a sum of Rs.3 lakhs was paid to
the defendant's son is a different transaction and for establishing that the payment,
the plaintiff has not taken any steps to examine the defendant's son. The defendant
is at the most is bound to repay only a sum of Rs.16,30,500/- with reasonable
interest.
8. In the light of the above submissions, now the following points arises for
consideration:
i) Whether the defendant has received a sum of Rs.19,30,500/- as per the
agreement, Ex.A2 dated 25.01.2016
https://www.mhc.tn.gov.in/judis
ii) Whether the plaintiff is entitled for recovery of amount?
Points (i) and (ii)
9. The execution of sale agreement/Ex.A2 is not disputed by the parties. It is
also not disputed that prior to Ex.A2, the parties have entered into an unregistered
agreement for the sale of same property for a total consideration of Rs.26 lakhs.
There are two different transactions, one is registered and another unregistered
document. Normally when there are two different documents, one is unregistered
and another registered document, Section 50(1) of the Registration Act, 1908
stipulates that a duly registered document takes precedence over any unregistered
document concerning the same property. Be that as it may, as the parties are not in
dispute with regard to the execution of Ex.A2 and the only dispute raised by the
parties is with regard to the payment. According to the defendant, she has received
only a sum of Rs.16,30,500/-, whereas, the plaintiff would contend that she has
paid the total sale consideration of Rs.19,30,500/- as per the agreement.
10. Be that as it may, as the execution of document has been admitted by the
parties, the contents also bind on the parties. Once the execution of contract has
been admitted, no oral evidence contrary to the terms of the contract is permissible
https://www.mhc.tn.gov.in/judis
as per Section 92 of the Indian Evidence Act, 1872 or Section 95 of the Bharatiya
Sakshya Adhiniyam, 2023. Be that as it may, the contention has been raised by the
defendant to the effect that amount of Rs.3 lakhs paid to the son of the defendant
is a different transaction, therefore, that amount cannot be included. Whereas, it is
the specific case of the plaintiff that the amount has been paid even at the time of
agreement for verifying the document. As the defendant did not have bank account
at the relevant point of time, the amount has been sent through the bank account of
the defendant's son. Be that as it may, though in the written statement a stand has
been taken by the defendant as if the plaintiff's husband has borrowed a sum of
Rs.5 lakhs has hand loan on 25.01.2015 from the defendant's son, in her evidence,
she has categorically admitted that his son is not in a position to advance any
amount, in fact, he is in the habit of borrowing money.
11. Though a decree of specific performance has not been granted by the
Trial Court taking note of the earlier contract, as the amount has been admittedly
received by the defendants, this Court is of the view that even though the plaintiff
has not asked for alternate relief for the return of advance sale amount, the Court
is empowered to mould the relief to render complete justice.
https://www.mhc.tn.gov.in/judis
12. It is relevant to point out that a Coordinate Bench of this Court in
N.Sekaran and another vs. C.Rajendran reported in AIR 2018 Mad 67 has granted
alternate relief for return of advance sale amount, even though the plaintiff has not
asked for alternate relief in order to render complete justice.
13. In view thereof, the appeal suit is partly decreed for alternate relief for
return of a sum of Rs.19,30,500/- by the defendant to the plaintiff, together with
simple interest @ 7.5% p.a., from the date of agreement, viz., 31.07.2017 till the
date of realisation. For the decretal amount, charge is also created over the suit
property and it is made clear that until the entire amount is paid, charge shall
continue. No costs. Consequently, connected miscellaneous petition stands closed.
14.02.2025
Index : Yes / No
Speaking/non speaking order
dhk
https://www.mhc.tn.gov.in/judis
N. SATHISH KUMAR, J.
dhk
To,
The XVIII Additional Sessions Judge,
City Civil Court, Chennai.
14.02.2025
https://www.mhc.tn.gov.in/judis
