IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06-07-2010 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN S.A.No.183 of 2009 and M.P.No.1 of 2009 P.Thulasimani .. Appellant/Defendant Versus K.G.Chandran .. Respondent/Plaintiff PRAYER: Appeal filed under section 100 of Civil Procedure Code against the judgment and decree made in A.S.No.76 of 2007, dated 26.6.2008, on the file of the learned First Additional District Court, Erode, confirming the judgment and decree in O.S.No.68 of 2003, dated 25.1.2005, on the file of the First Additional Subordinate Court, Erode. For Appellant : Mr.A.K.Kumaraswamy For Respondent : Ms.P.T.Asha for M/s.Sarvabhauman Associates J U D G M E N T This second appeal has been filed against the judgment and decree, dated 26.6.2008, made in A.S.No.76 of 2007, on the file of the First Additional District Court, Erode, confirming the judgment and decree of the First Additional Subordinate Court, Erode, dated 25.1.2005, made in O.S.No.68 of 2003. 2. The defendant in the suit, in O.S.No.68 of 2003, is the appellant in the present second appeal. The respondent had filed the suit praying for a decree directing the defendant to execute a sale deed, in respect of the suit schedule property, in favour of the plaintiff or his nominees, on receipt of the balance sale consideration, within the time fixed by the Court and to put the plaintiff in the possession of the property. 3. It had also been prayed that in case the defendant fails to https://hcservices.ecourts.gov.in/hcservices/ execute the sale deed the Court concerned may be pleased to execute the sale deed on behalf of the defendant, in favour of the plaintiff or his nominees and in the alternative to direct the defendant to refund the sum of Rs.2,56,640/- to the plaintiff, with interest at the rate of 12% per annum, from the date of the suit, till the date of the realization of the said amount and to create a charge over the suit property towards due payment of the said amount and for costs. 4. The plaintiff had stated that the suit properties are agricultural lands and that the defendant is the absolute owner of the said properties, by virtue of registered sale deeds, dated 28.1.1993, and 7.4.1999, registered as Document Nos.95/99 and 761/99, on the file of the Sub Registrar, Avalpoondurai. 5. It had also been stated that the defendant had offered to sell the suit property to the plaintiff for a sum of Rs.2,50,000/- and he had insisted that an amount of Rs.2,40,000/- be paid as advance. The plaintiff, having accepted the offer made by the defendant agreed to purchase the property for a sum of Rs.2,50,00/- and on 21.6.2002, the plaintiff and the defendant had entered into a written agreement for sale. 6. Pursuant to the said agreement the defendant had received a sum of Rs.2,40,000/-, as advance, as part of the sale consideration, in the presence of the attestors. On receipt of the said amount the defendant had handed over the original sale deeds, dated 28.1.1993, 27.8.1981, 7.4.1999, and 25.2.1975, pertaining to the properties covered under the agreement. 7. The agreement for sale had been presented for registration, on 21.6.2002, and registered as Document No.1401 of 2002, on the file of the Sub Registrar, Avalpoondurai. The period fixed under the said agreement was three years for the execution of the sale deed and the agreement contains certain other conditions, as well. Time is not the essence of the said agreement. 8. It had also been stated that, from the date of the execution of the agreement of sale, the plaintiff has always been ready and willing to perform his part of the contract, by paying the balance of sale price and to register the sale deed, at his cost, as per the terms and conditions of the agreement. Thereafter, the plaintiff had tendered the balance amount to the defendant and he had also expressed his desire to register the sale deed. However, the defendant was not willing to perform his part of the contract by registering the sale deed. 9. In such circumstances, the plaintiff had issued a legal notice, dated 6.1.2003, calling upon the defendant to receive the balance of sale consideration and to execute the sale deed. Having acknowledged https://hcservices.ecourts.gov.in/hcservices/ the receipt of the notice, on 8.1.2003, the defendant had sent a reply notice, dated 9.1.2003, through his counsel. On receipt of the reply, the plaintiff had sent a rejoinder notice, dated 11.1.2003, along with a xerox copy of the said agreement. Even after the receipt of the rejoinder notice the defendant had not chosen to execute the sale deed, as per the terms of agreement. In such circumstances, the plaintiff had filed the suit, on the file of the First Additional Subordinate Court, Erode, in O.S.No.68 of 2003. 10. In the written statement filed on behalf of the defendant the averments and allegations made in the plaint had been denied. The defendant had denied the execution of the sale agreement and had also denied the claim of the plaintiff that time was not the essence of the agreement. Further, he had stated that the stamp paper had been purchased, on 11.6.2002, and the agreement had been prepared on 21.6.2002, under suspicious circumstances. 11. It had also been stated that, on 21.6.2002, the defendant had borrowed a sum of Rs.1,20,000/-, as loan, from one K.Palanivel, Son of Kolandasamy, Chinnamada Street, Pasur, Erode Taluk. The said loan had been borrowed by the defendant for discharging the loan obtained from No.598, Perundurai Co-operative Primary Agricultural and Rural Development Bank Limited. The amount borrowed from the Bank had also been cleared, on 21.6.2002, as seen from the endorsement in the said bank pass book. However, on the same day K.Palanivel had insisted on the defendant executing a registered power of attorney in his name, which had been registered as Document No.146 of 2002, on the file of the Sub Registrar, Avalpoondurai. 12. Further, K.Palanivel had insisted that the defendant should execute a registered agreement for sale in favour of the plaintiff, in respect of the suit properties. Thereafter, the defendant had executed the agreement for sale, dated 21.6.2002, in favour of the plaintiff, registered as Document No.1401 of 2002, on the file of the Sub Registrar, Avalpoondurai. On 14.8.2002, the defendant had paid the said amount and had discharged the debt by borrowing money from various third parties. Consequently, the power of attorney executed by the defendant had also been cancelled, on 14.8.2002, under the registered Document No.176 of 2002, on the file of the Sub Registrar, Avalpoondurai. Since, the amount had already been settled it had been suggested that the agreement for sale need not be cancelled. 13. It had also been stated that K.Palanivel had given Rs.30,000, as loan, to the defendant, to discharge the debts of the defendant, in respect of the amounts borrowed from third parties. The said K.Palanivel had insisted that the defendant should execute another power of attorney, in respect of the properties and therefore, the defendant had once again executed another power of https://hcservices.ecourts.gov.in/hcservices/ attorney, on 14.8.2002, in favour of K.Palanivel and it had been registered, as Document No.177 of 2002, on the file of the Sub Registrar, Avalpoondurai. Subsequently, the defendant had paid the amount of Rs.30,000/-, borrowed from K.Palanivel, on 25.11.2002. The power of attorney had been cancelled by the cancellation deed, dated 25.11.2002, registered as Document No.263 of 2002. However, there was some dispute with regard to the interest calculated on the borrowed amount. In such circumstances, the plaintiff, who is one of the colleagues of K.Palanivel had filed the suit, on the file of the First Additional Subordinate Court, Erode, in O.S.No.68 of 2003. 14. Based on the averments made on behalf of the plaintiff, as well as the defendant, the trial Court had framed the following issues for consideration. 1) Whether the agreement for sale, dated 21.6.2002, is true and valid. 2) Whether the plaintiff is entitled to the relief of specific performance, as prayed for in the suit? 3) Whether the plaintiff is entitled to the amount, as an alternative remedy, as prayed for by him? 15. Exs.A-1 to A-4 had been marked on behalf of the plaintiff. Exs.B-1 to B-4 had been marked on behalf of the defendant. The plaintiff had examined himself as P.W.1 and the defendant had examined himself as D.W.1. 16. The trial Court had found that the defendant had executed the sale agreement, dated 21.6.2002, in favour of the plaintiff, registered as Document No.1401/02, on the file of the Sub Registrar, Avalpoondurai, and had also executed a registered power of attorney, registered as Document No.146 of 2002, on the file of the Sub Registrar, Avalpoondurai. Further, the defendant had admitted, in the written statement filed in the suit, that the agreement for sale had been entered into between the plaintiff and the defendant. He had also admitted, during his cross examination, that the sale agreement, marked as Ex.A-1, had been entered into between the plaintiff and the defendant, on 21.6.2002. 17. Even though the defendant had claimed that the sale agreement had been executed due to the compulsion of one K.Palanivel, from whom the defendant had borrowed Rs.1,20,000/-, as a loan, it had been found that the defendant had not adduced any evidence to prove his claim. Further, the defendant had not taken any steps to examine K.Palanivel, as a witness. The claim of the defendant that he had discharged the entire liability, in respect of the loan taken from K.Palanivel and therefore, the need to cancel the agreement for sale did not arise, had not been accepted by the trial Court. 18. Further, the trial Court had found that there was no link https://hcservices.ecourts.gov.in/hcservices/ between the alleged loan taken by the defendant from K.Palanivel and the agreement for sale entered into by the defendant, with the plaintiff. Further, the claim of the plaintiff, that the defendant had repaid the loan amount of Rs.1,20,000/-, which he had borrowed from K.Palanivel, and the amount of Rs.30,000/-, which he had subsequently borrowed, had been discharged, had not been established by the defendants, by way of sufficient evidence. 19. The trial Court had also found that the claim of the defendant that the plaintiff had not examined any of the witnesses to the document, marked as Ex.A-1, was not acceptable, since, the defendant had already admitted the execution of the agreement for sale, marked as Ex.A-1, and that it had also been registered before the Sub Registrar, Avalpoondurai. In such circumstances, the trial Court had found that the defendant could not show by sufficient evidence that the agreement for sale, marked as Ex.A-1, had been executed by the defendant in favour of the plaintiff on the insistence of K.Palanivel. Further, it had also been found that the defendant had not raised the plea that the plaintiff was not ready and willing to perform his part of the contract. Further, from the notices issued to the defendant on behalf of the plaintiff, marked as Ex.A-6 and Ex.A-9, it was clear that the plaintiff was ready and willing to pay the balance amount, as per the agreement for sale, dated 21.6.2002. In such circumstances, the trial Court had decreed the suit in favour of the plaintiff, by its judgment and decree, dated 25.1.2005. 20. Aggrieved by the judgment and decree of the trial Court, dated 25.1.2005, made in O.S.No.68 of 2003, the defendant in the suit had filed an appeal, in A.S.No.76 of 2007, on the file of the First Additional District Court, Erode. 21. The First Appellate Court had framed the following points for consideration: 1) Whether Ex.A-1 sale agreement is true, genuine and valid. 2) Whether the plaintiff is entitled to the relief of specific performance of the contract? 22. The First Appellate Court had found that the defendant had admitted the execution of the agreement for sale, on 21.6.2002, for a sale consideration of Rs.2,50,000/- and had taken advance of Rs.2,40,000/-, on the same day. The sale agreement had been registered and the time for execution of the sale agreement was fixed as three years. Since, the defendant was not willing to execute the sale deed, as agreed by him, the plaintiff was compelled to file the suit for specific performance of the contract. https://hcservices.ecourts.gov.in/hcservices/ 23. The First Appellate Court had also found that the defendant had contested the suit stating that he had borrowed a sum of Rs.1,20,000/- from one K.Palanivel and that the said K.Palanivel had obtained a power of attorney executed in his favour. Further, it had also been stated that the said K.Palanivel had insisted on the defendant executing a registered sale agreement in favour of the plaintiff, on 21.6.2002, registered as Document No.1401 of 2002, on the file of the Sub Registrar, Avalpoondurai. 24. It had also been stated on behalf of the defendant that the sale agreement had not been cancelled in view of the fact that the debts had been settled in favour of third parties. The First Appellate Court had also found that Ex.B-1 is the power of attorney executed by the defendant in favour of one K.Palanivel, on 21.6.2002. Ex.B-2 is the cancellation deed canceling the said power of attorney and Ex.B-3 is another sale agreement between the plaintiff and the defendant, executed on 21.6.2002. 25. It had been specifically mentioned, in Ex.B-4 cancellation deed that Document No.1401 of 2002 alone had been cancelled by way of Ex.B-4. Therefore, the cancellation made by the defendant in Ex.B-4 will not affect the case of the plaintiff. Thus, the First Appellate Court had found that the property shown in the plaint schedule and in Ex.A-1 is not the property seen in Exs.B-3 and B-4. The First Appellate Court had also found that the plaintiff had produced the sale deeds handed over to him by the defendant and they had been marked as Exs.A-2 to A-5. It had not been explained by the defendant, as to how the said documents came to be in the possession of the plaintiff and that the defendant had also stated that the said documents would have been handed over to the plaintiff by K.Palanivel. 26. It had also not been made clear by the defendant as to how and for what purpose the sale deeds had been handed over to K.Palanivel. The duration of 3 ½ years fixed for the execution of the sale deed had been explained by the plaintiff stating that the defendant had borrowed money from various persons, incurring a number of debts and therefore, the period of 3 ½ years had been fixed for the execution of the sale deed. It had also been found from Ex.A-14, that the debt incurred by the defendant by borrowing a certain sum of of money from the Perunduai Co-operative Primary Agricultural and Rural Development Bank Limited, had been settled, on 21.6.2002, and that the said amount had been paid by the plaintiff on behalf of the defendant. Thus, it was clear that the defendant was in need of money to discharge the debts on the date of the execution of Ex.A-1. 27. The First Appellate Court had also found that, when one sale agreement in favour of the plaintiff had been cancelled, by way of Ex.B-4, there was no clear explanation as to why the other sale https://hcservices.ecourts.gov.in/hcservices/ agreement, marked as Ex.A-1, had not been cancelled on the discharge of the debts. The non-examination of the attesting witnesses, in respect of the said sale agreement, cannot be said to be a serious flaw. Since, the defendant had admitted the existence of the sale agreement, dated 21.6.2002, such non-examination of the witnesses cannot be taken to be a factor which could dilute the case of the plaintiff. In such circumstances, the First Appellate Court had confirmed the findings of the trial Court. 28. Aggrieved by the judgment and decree of the First Appellate Court, dated 26.6.2008, made in A.S.No.76 of 2007, the defendant in the suit, who was the appellant in the first appeal, had filed the present second appeal before this Court raising the following questions, as substantial questions of law: “a. Is the Lower Appellate Court justified in not considering the circumstances pointed out by the appellant to prove that Ex.A-1 agreement of sale was executed only as a collateral security for a loan transaction? b. Is not the judgment of the Lower Appellate Court vitiated in as much as the Lower Appellate Court did not consider the guideline contained in Section 20 of the Specific Relief Act? c. When the jurisdiction to decree specific performance being discretionary, a period of three years given under the agreement of sale for payment of Rs.10,000/- out of Rs.2,50,000/- would throw a reasonable doubt about the genuineness of the transaction, is the Courts below justified in exercising the discretion as adumbrated in Section 20 of the Specific Relief Act?” 29. The learned counsel appearing on behalf of the appellant had submitted that the judgment and decree of the Courts below are contrary to law and the facts and the circumstances of the case. Both the Courts below had failed to appreciate the evidence available on record in its proper perspective. The Courts below had failed to appreciate the fact that Ex.A-1 agreement of sale had been executed by the appellant, as a result of the money transaction between the parties and that there was no intention to treat it as an agreement for sale of the suit schedule property. The Courts below had failed to note the fact that when the respondent had paid Rs.2,40,000/-, as part of the consideration for the sale of the property concerned, at the time of the execution of the agreement and when a long period of three years had been fixed for the payment of the balance amount of Rs.10,000/-, Ex.A-1 was only a loan transaction, as claimed by the appellant. 30. The Courts below had failed to appreciate the fact that Ex.A- 1 sale agreement had been executed on the same date, as Ex.B-1, power https://hcservices.ecourts.gov.in/hcservices/ of attorney was executed in favour of one K.Palanivel, who is a close associate of the respondent and that it had been subsequently cancelled. The Courts below had also failed to note that the stamp papers had been purchased, on 11.6.2002, and that the sale agreement had been entered into on 21.6.2002 showing that the transaction was relating to a money transaction and that Ex.A-1 had been executed only as a collateral security for the said transaction. Further, the Courts below had erred in not appreciating, properly, the evidence of D.W.1, which was in favour of the claims made on behalf of the defendant. 31. The learned counsel appearing on behalf of the respondent had submitted that there was no document filed on behalf of the appellant to show that he had borrowed money from one K.Palanivel. Further, there was nothing to show that the sale agreement had been executed by the appellant in favour of the respondent only with regard to certain money transactions. Even though the appellant had claimed that he had discharged the debts, no proper reason had been shown for his failure to cancel the sale agreement, dated 21.6.2002, marked as Ex.A-1, when he had cancelled another such agreement. When the appellant had admitted the execution of the sale agreement, dated 21.6.2002, there was no necessity for the examination of the witnesses, who had attested the said document. In such circumstances, both the Courts below had rightly come to their conclusions while decreeing the suit in favour of the respondent, as prayed for by him, in the suit, in O.S.No.68 of 2003. 32. In view of the submissions made by the learned counsels appearing on behalf of the parties concerned and on a perusal of the records available, it is seen that the appellant has not shown sufficient cause or reason for this Court to interfere with the concurrent findings of the Courts below. The claim made by the appellant that the sale agreement, dated 21.6.2002, marked as Ex.A-1, had been entered into pursuant to the money transaction between the appellant and the respondent cannot be accepted. There is no evidence adduced on behalf of the appellant to sustain such a claim. Further, both the Courts below had found, based on evidence, that the claim of the appellant that he had executed the sale agreement in favour of the respondent, pursuant to the money transaction, which had taken place between the appellant and one K.Palanivel, cannot be accepted. The appellant has not been in a position to show the reason for not canceling the sale agreement, dated 21.6.2002, even though it has been stated that he had discharged the liability in respect of the money said to have been borrowed from K.Palanivel. 33. Once the appellant had admitted the execution of the sale agreement the onus would be on him to prove that the said sale agreement had been executed only with regard to some money transaction and that there was no intention of selling the property https://hcservices.ecourts.gov.in/hcservices/ in question, to the respondent. Further, the appellant had not been in a position to properly, explain as to how the respondent was in possession of Exhibits A-2 to A-5 which are original sale deeds relating to the property in question. In such circumstances, this Court is inclined to hold that the contentions raised on behalf of the appellant cannot be countenanced. It cannot be said that the conclusions arrived at by the Courts below are erroneous and invalid. As such, the appeal filed by the appellant is devoid of merits. Hence, it stands dismissed. No costs. Consequently, connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar csh To 1) The First Additional District Court, Erode. 2) The First Additional Subordinate Court, Erode. +1cc to M/s. Sarvabhauman Associates Sr 48514 BVN(CO) km/18.8. S.A.No.183 of 2009 and M.P.No.1 of 2009 https://hcservices.ecourts.gov.in/hcservices/