Dismissed

Senthilkumar v. Sabesh

Madras HC7 Sept 2021AS/738/2018

Case brief

AI extract

What is this about?

In this first appeal regarding a specific performance suit, the Madras High Court dismissed the appellant's challenge to the trial court's decree. The court held that the appellant failed to substantiate his claim that the sale agreement was security for a loan, as he did not appear to cross-examine witnesses or adduce evidence. Consequently, the agreement was deemed a valid sale contract, and the

What did the court decide?

The first appeal filed under Section 96 CPC was dismissed with costs. The judgment and decree of the II Additional District Judge, Chidambaram, in O.S.No.140 of 2015 were affirmed.

Senthilkumar Vs Sabesh — Specific Performance | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 07.09.2021

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CORAM

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THE HONOURABLE Ms. JUSTICE P.T. ASHA

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A.S.No.738 of 2018

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Senthil Kumar

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 ...Appellant / Defendant

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Vs.

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Sabesh

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...Respondent / Plaintiff

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Prayer : Appeal Suit filed under Section 96 of the Code of
Civil Procedure against the Judgment and Decree passed in
O.S.No.140 of 2015 dated 04.08.2018 on the file of the II
Additional District Judge, Chidambaram.

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JUDGMENT

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The above First Appeal is filed challenging the Judgement
and Decree in O.S.No.140 of 2015 of the II Additional District
Judge, Chidambaram. The suit was one for Specific performance
filed by the respondent herein. The brief facts necessary for
disposing of the above Appeal are herein below narrated.

¶14

2. The respondent herein had filed the suit in question
stating that he had entered into an agreement with the appellant
to purchase the suit property belonging to the appellant under
an agreement of sale dated 13.04.2009. The sale consideration
was fixed at a sum of Rs.11,00,000/-. The appellant had
undertaken to handover possession of the property at the time of
registration of the sale deed. However, the registration of the
sale deed could not be proceeded with since the appellant had
expressed that he was unable to handover the possession

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immediately and thereafter suggested that the sale agreement be
canceled and a fresh agreement of sale entered into later.
Accordingly, the earlier agreement was canceled by a registered
cancellation deed dated 29.09.2014.

¶17

3. In the beginning of the year 2015, the appellant once
again approached the respondent with an offer to sell the
property and the respondent agreed to the same and thereafter a
registered agreement of sale dated 29.01.2015 was entered into
between the appellant and the respondent. The price agreed was a
sum of Rs.15,00,000/- and on the date of the agreement a sum of
Rs.10,00,000/- was received by the appellant herein. The parties
have agreed that the sale deed would be executed within a period
of one year from the date of the agreement. According to the
respondent herein, he has been ready to proceed with the
purchase and in pursuance to this, he had been requesting the
appellant to come to execute the deed. However, the appellant
had not responded favorably.

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4. This prompted the respondent to issue a legal notice
dated 17.07.2015 calling upon the appellant to execute and
register the sale deed. Although the appellant had received the
said notice he did not come forward to either send a reply or
execute the sale deed. This compelled the respondent to file
the present suit.

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5. Although the appellant had received the summons in the
above matter he failed to appear before the Court and thereafter
an ex parte decree came to be passed on 15.02.2016. The
appellant had filed I.A.No.9 of 2017 to set aside the ex parte
decree. This petition was ordered on 23.03.2017 and on
20.06.2017 the appellant had filed his written statement. Even
prior to the order in I.A.No.9 of 2017 and immediately after the
ex parte Judgement and Decree the respondent herein had
deposited the entire balance sale consideration on 16.04.2016 to
the credit of the suit.

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6. After filing the written statement when the matter
came up for trial the respondent herein did not appear and
thereafter the second ex parte Judgement and Decree came to be
passed on 07.02.2018. Once again the appellant had filed
I.A.No.72 of 2018 for setting aside the ex parte decree. The
said application was allowed and the ex parte decree was set

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aside on 16.07.2018 and the matter was posted for evidence of
P.W.1.

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7. On 24.07.2018, the notes sheet would show that the
plaintiff's witness was present and the appellant was also
present. However, since the appellant's counsel did not appear
till 4 p.m the matter was adjourned to 31.07.2018. On
31.07.2018, there was no representation on behalf of the
appellant and neither did the appellant appear before the Court.
Therefore, he was called absent and set ex parte and the matter
posted for the evidence of the plaintiff. Since the chief
examination of the respondent was submitted in the form of proof
affidavit and the respondent had stated that they had no further
evidence the matter was posted for arguments on 01.08.2018. On
01.08.2018, it was only the respondent who had submitted their
arguments and even then it appears that the appellant herein had
not taken steps to set aside the ex parte.

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8.Ultimately, the Judgement and Decree came to be
delivered on 04.08.2018 decreeing the suit.

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9. The appellant had filed a written statement in which

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he had raised two defenses:

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(i) That the agreement of sale was not intended to be an
agreement of sale but was only executed as security for a loan
borrowed by the appellant from the respondent. It is his case
that he had borrowed a sum of Rs.15,00,000/- and since the
respondent had insisted upon a security the agreement of sale
had been executed.

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(ii) The second defense taken by the appellant was that
the property of value of Rs.1,00,00,000/- was sought to be
purchased at paltry sum of Rs.15,00,000/-.

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Apart from the above two defenses there was no other
major defenses that has been raised on the side of the
appellant.

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10.The Trial Court taking note of the pleadings on both

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sides had framed the following issues:

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1/ fpua xg;ge;jk; cz;ikahdjh. bry;yf;Toajh>

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2/ fpua xg;ge;jkhdJ fld; bjhiff;fhf Vw;gLj;jg;gl;ljh>

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3/ gpujpthjp jhth brhj;ij tpw;f jahuhf ,Ue;jhu; vd;gJk; jhth brhj;jpd; kjpg;g[ U:/xU nfho vd;gJ cz;ikah>

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4/ thjp nfhupago bjhif bgw mUfija[ilatuh> 5/ ntW vd;d gupfhuk;>

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11. Since the appellant had been set ex parte, the
respondent had examined himself as P.W.1 and one Guruvayurappan
as P.W.2 and had marked Ex.A.1 to Ex.A.3.

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12. The learned Judge taking into consideration the
agreement of sale and the fact that the appellant had not denied
the execution and also considering the fact that entire balance
sale consideration had been deposited, proceeded to decree the
suit. It is challenging this decree that the appellant is before
this Court.

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13. Mr.J.Antony Jesus, learned counsel appearing on
behalf of the appellant would put forward the argument that even
if the appellant had not participated in the proceedings since
his written statement is already on file the Trial Court ought
to have corroborated the evidence of the respondent to the
defense raised by the appellant. He would further submit that
the fact that two agreements have been executed with reference
to the same property and first of which had been canceled would
only go to show that the agreement was not intended to be an
agreement but was only as a security for the loan. He would
submit that a reading of the Judgement and Decree would indicate
that the learned Judge has proceeded to consider that the
appellant had not participated in the proceedings whereas the
defendant had filed their written statement and it was only
thereafter that they have not participated in the proceedings.

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14. Per contra, Mr.P.Valliappan, learned counsel
appearing on behalf of the respondent would submit that the
Judgement and Decree which is now appealed against is the third
Judgement and Decree that has been passed in the above suit. He
would submit that the first Judgement was passed on 15.02.2016,
which was an ex parte decree and thereafter the application to
set aside the ex parte decree was ordered on 23.03.2017, once
again the appellant allowed the matter to go ex parte though he
had filed a written statement on 20.06.2017. This ex parte
decree dated 07.02.2018 was once again sought to be set aside by
the appellant by filing I.A.No.72 of 2018. This application was
allowed and thereafter the matter posted for the evidence.
Since the appellant had once again failed to appear in the
matter he was set ex parte and ex parte decree has been passed.

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15. The learned counsel would submit that the conduct of
the appellant throughout was only to protract the proceedings
and not to defend the same. He would submit that the Trial
Court has considered the evidence on record and passed a
detailed order which has not been rebutted on merits by the
appellant herein.

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16. After hearing the arguments, the following points for
consideration arises in the instant appeal.

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(a)Whether the Judgement and Decree of the Court below
requires to be set aside since the learned Judge has not
addressed the defense of the appellant?

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(b)Whether Ex.A.1 was intended to be only a security for
the loan transaction or whether it was intended to be an
agreement of sale?

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17. The records would indicate that the respondent and
the appellant had entered into an agreement of sale dated
29.01.2015, whereunder, the appellant had agreed to sell the
suit property to the respondent for a total sale consideration
of Rs.15,00,000/-. Time frame of one year was provided for
paying the balance sale consideration of Rs.5,00,000/-. The
appellant has admitted the execution of this agreement but his
contention is that the agreement was intended as a security
alone. It is the case of the respondent that there was an
earlier agreement on 13.04.2009 which had to be canceled
ultimately by cancellation deed dated 29.02.2014 and the reasons
for the same has been set out in the plaint at paragraph no.2 as
follows:

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“Under this document the defendant agreed to hand over
possession to the plaintiff at the time of Registration of sale
deed. But the sale deed could not be executed within the period
as the defendant expressed that he wanted some more time for
handing over possession and suggested that the sale agreement
can be cancelled and suggested execution of a fresh agreement of
sale later. Accordingly the above said agreement of sale was
cancelled and a registered cancellation deed was executed on
29.09.2014.”

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This statement has not been refuted by the appellant in
the written statement filed by him.

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18. Further, on 17.07.2015, the respondent has issued a
notice to the appellant calling upon him to execute the

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agreement of sale. The notice has been received by the
appellant however he has not come forward to issue reply notice
rebutting the claim and stating that the parties had not entered
into agreement to sell the property but that the agreement of
sale was only intended as a security for the loan. In his
written statement the appellant has simply denied the notice
dated 17.07.2015. The records would also show that the balance
sale consideration of Rs.5,00,000/- has been deposited into the
Court by the respondent as soon as the first ex parte Judgement
and Decree came to be passed on 15.02.2016.

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19. The appellant who claims that the agreement of sale
has been executed only as a security did not choose to enter the
box and adduce evidence to substantiate the said statement. On
the contrary he has remained away from the witness box. He has
not even cross examined the respondent who had adduced evidence.
The original evidence of P.W.1 would show that after the Chief
examination of P.W.1 the matter was posted for the cross
examination. On 24.07.2018, the learned II Additional District
Judge, held that the appellant was not interested in cross
examining the witness and therefore exercising the rights under
Order XVII Rule 2 (e) of the Code of Civil Procedure the cross
examination was dispensed with.

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20. The records would clearly show that the appellant has
been given several opportunities to prove his case but he has
not chosen to enter the box to adduce evidence in this regard.
Therefore, the contention of the learned counsel appearing for
the appellant that the Trial Court has failed to address the
argument of the appellant is without any basis. In fact a
reading of the issues would clearly show that the Trial Court
has considered the pleadings on either side and framed the
issues. This is striking when the issue nos.2 and 3 are taken
into account.

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21. Therefore, it is clear that the Trial Court has
considered the pleadings while framing the issues but since the
appellant has not got into box to prove his case by filing
necessary documentary evidence the learned Judge could not have
addressed the defense of the appellant which remained
uncorroborated. Therefore, the first point for consideration is
held against the appellant.

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22. As regards the second point for consideration the
respondent / plaintiff has very clearly set out the transactions
that had been entered into between the appellant and the
respondent has narrated the earlier agreement of sale and the
reasons for its cancellation followed by the agreement of sale
which is now the subject matter of this First Appeal.

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23. The respondent has clearly set out that the agreement
between the parties was for the sale of the suit schedule
property and nothing else. This statement has not been denied
by the appellant in his written statement on the contrary the
appellant admits the execution of the agreement of sale but
tries to over come the same by contending that it was only
executed as security for a loan, which statement has not been
proved by the appellant. The appellant has not responded to the
legal notice dated 17.07.2015. If really the transaction
between the appellant and the respondent was only for a loan
transaction it would be logical for the appellant to immediately
respond to the legal notice dated 17.07.2015 and contend that
the parties had not entered into an agreement of sale but that
the document was only intended to be security. Considering the
fact that such a stand has not been taken at the very first
instance, I hold that the agreement of sale was only intended to
be so and never intended to be a security. The second point for
consideration is also answered against the appellant.

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24. Therefore, I do not find any reason for interfering
with the Judgement and Decree of the II Additional District
Judge, Chidambaram. The First Appeal is dismissed with costs.

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Sd/-

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Assistant Registrar
// True Copy //

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Sub Assistant Registrar

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kan

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To

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1.The II Additional District Judge,
 Chidambaram.

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2.The Section Officer,
 V.R.Section,
 High Court, Madras.

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+1cc to M/s.P.Valliappan, Advocate SR.No.45330

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A.S.No.738 of 2018

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RR(CO)
RVM(13/10/2021)

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Senthilkumar v. Sabesh

Case brief

What is this about?

What did the court decide?

Senthilkumar v. Sabesh

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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