Madras High Court
S.Gopal vs Gem Avenue Association on 25 June, 2025
S.A.No.391 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.06.2025
CORAM:
THE HONOURABLE MR.JUSTICE K.KUMARESH BABU
S.A.No.391 of 2016
S.Gopal
...Appellant
Vs.
Gem Avenue Association, Kanchipuram
represented by its office bearers
1.D.Sundaramoorthy
2.S.P.Kalyanasundaram
3.N.Jayaraman
4.Selvam Ammal
5.G.Latha
...Respondents
Second Appeal filed under Section 100 of Civil Procedure Code, to set
aside the Judgment and Decree dated 25.01.2010 made in A.S.No.32 of 2007
on the file of the Hon'ble Sub-Court, Kanchipuram, confirming the
judgement and decree dated 05.07.2005 made in O.S.No.832 of 1999 on the
file of the Hon'ble Additional District Munsif Court, Kanchipuram.
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S.A.No.391 of 2016
For Appellant : Mr.T.Sathiyamoorthy
For Respondents : For R1 to R3 – No such person
For R4 – Served – No appearance
For R5 – Not Ready in Notice
JUDGMENT
The Second Appeal has been filed to set aside the Judgment and
Decree dated 25.01.2010 made in A.S.No.32 of 2007 on the file of the
Hon'ble Sub-Court, Kanchipuram, confirming the judgement and decree
dated 05.07.2005 made in O.S.No.832 of 1999 on the file of the Hon'ble
Additional District Munsif Court, Kanchipuram.
2. Heard Mr.T.Sathiyamoorthy, learned counsel appearing for the
appellant.
3. When the matter is taken up for hearing, there is no representation
on the side of the respondents. As per the records, notice to respondents 1 to
3 had been returned with the endorsement “No Such Person”. Notice to R5
has not yet been served and is shown as either served or unserved. Though
4th respondent's name is printed in the cause list, there is no representation on
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her behalf.
4. Mr.T.Sathiyamoorthy, learned counsel appearing for the appellant
would submit that the appellant being a Member of an Association, which is
represented by the defendants 1 to 3, have agreed to sell a residential plot in
the land developed by them, for which, the appellant had paid a sum of
Rs.7,000/-, which is evidenced under Ex.A1. Without honouring this, the
property had been sold in favour of the 4th defendant, who had already settled
the property in favour of the 5th defendant. He would submit that the
Association had not executed any sale agreement. However, on receipt of the
sale consideration they would execute a sale deed in favour of the person
making such payment. To substantiate the claim, P.W.2 was examined and
he had also deposited the amount under Ex.A8, for which he had been sold
Plot No.10. This evidence had not been rebutted by the defendants and the
respondents 1 to 3 had remained exparte. Therefore, the claim of the
appellants stood established.
5. The learned counsel for the appellant would submit that the Courts
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below had erroneously held that Ex.A1 does not substantiate the case of the
appellant nor the evidence of P.W.2 would come to his assistance. According
to him, such findings given by the Courts below are contrary to the materials
available on record, that too without appreciating the evidence placed by the
appellant. Hence, he seeks indulgence of this Court.
6. I have considered the submissions made on behalf of the learned
counsel appearing for the appellant and have perused the materials available
on record.
7. The appellant had placed reliance upon Ex.A1, which is a Bank
Challan issued to take a Demand Draft to be paid to the respondents 1 to 3.
The appellant had not produced the details of the Demand Draft nor the
details on which date he had paid the sale consideration to respondents 1 to
3. He had also not produced any receipt issued by the defendants 1 to 3,
evidencing receipt of sale consideration from the appellant. Similarly, even
though P.W.2 had deposed that under Ex.A8, he had made payment and had
been benefited with the sale of Plot No.10, no such sale deed had been
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produced by P.W.2 to substantiate his evidence. The Courts below have
rightly held that Ex.A1 cannot be taken into consideration to substantiate the
proof of payment of sale consideration by the appellant for purchase of plots.
8. This Court is of the view that there has been no error had been
committed by the Courts below in rejecting the claim of the appellant and the
appellant has also not raised any substantial questions of law for this Court
to interfere with the well considered judgment and decree of the Courts
below.
9. In fine, the Second Appeal stands dismissed. No costs.
25.06.2025
kak
Index : Yes/No
Speaking Order/Non-Speaking order
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To
1. The Sub-Court,
Kanchipuram.
2.The Additional District Munsif Court,
Kanchipuram.
3.The Section Officer,
V.R.Section,
High Court, Madras.
K.KUMARESH BABU, J.
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kak
25.06.2025
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