An appeal against a suit for recovery of sale consideration. A power agent sold the respondent's property and denied liability. The High Court held the agent must account for proceeds. The appeal was dismissed as the appellant failed to prove payment.
The appeal suit is dismissed. No costs.
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A.S(MD)No.108 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.06.2022
CORAM :
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
A.S(MD)No.108 of 2010
A.Muthusamy
... Appellant
vs.
M.Saraswathy
... Respondent
Appeal Suit filed under Section 96 of the Code of Civil Procedure, against the judgment and decree of the District Court, Karur dated 13.10.2003 in O.S.No.7 of 2002.
For Appellant : Mr.Anand Chandrasekar for M/s.Sarvabhauman Associates
For Respondent : No appearance
JUDGMENT
The respondent in this appeal as a plaintiff filed a suit
against the appellant/defendant in O.S.No.7 of 2002 on the file of the District Court, Karur, for recovery of a sum of Rs.4,17,000/-. The said suit was decreed by judgment and decree dated
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A.S(MD)No.108 of 2010
13.10.2003. Challenging the said judgment and decree, the appellant/defendant has filed this appeal.
The respondent/plaintiff purchased a property in Survey Nos. 11/2 and 15 vide a sale deed dated 13.02.1984 by her own money and was in possession of the same. The appellant is the husband of the respondent and abandoning the respondent, the appellant contracted a second marriage with one Sampoornam and is living in Karnataka State. According to the respondent, as of now, there is no marital relationship between her and the appellant. Before that, on 29.05.1995, the respondent executed a general power of attorney in favour of the appellant for selling the abovesaid property. According to the respondent/plaintiff, the appellant sold the said property to one Mahendra Singh on 29.03.1996 by way of two sale deeds for a sale consideration of Rs.3,42,000/-, but despite the said sale, the appellant did not give the respondent sale amount. Hence, the respondent filed the above suit against the appellant for recovery of money at Rs.3,42,000/- with interest at Rs.75,000/- totally Rs.4,17,000/- with costs.
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3.
A.S(MD)No.108 of 2010
The appellant/defendant denied the allegations in the plaint and the respondent is not entitled to the relief claimed in the suit. According to the appellant, out of his own money only he purchased the abovesaid property in the name of the respondent. Since there was no male child born between the appellant and the respondent, with the permission of the respondent, the appellant contracted a second marriage with the said Sampoornam. The allegation of abandonment of the respondent by the appellant is denied. According to the appellant, both himself, respondent and Sampoornam were living jointly. The appellant has leased out the land in Karnataka. At the request of the respondent to give money, the appellant sold the abovesaid property to the said Mahendra Singh. The respondent received the sale consideration of Rs. 3,42,000/- on 04.04.1996 and issued a receipt, wherein, the respondent's brother has signed. However, with false allegations, the suit has been filed, as such it is not maintainable. The purchaser of the property namely, Mahendra Singh is a necessary party in this suit. Hence, the suit is liable to be dismissed.
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A.S(MD)No.108 of 2010
from the plaintiff for having paid Rs.3,42,000/-
7)To what relief, the plaintiff is entitled to?
plaintiff, the plaintiff examined herself as PW1 and 2 documents
were marked as Exs.A1 and A2. On the side of the defendant, two
witnesses were examined as DW1 and DW2 and 4 documents were marked as Exs.B1 to B4.
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A.S(MD)No.108 of 2010
documentary evidence, decreed the suit. Challenging the judgment and decree, the defendant has filed this appeal.
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A.S(MD)No.108 of 2010
Based on that power of attorney, the appellant sold the property to a third party and settled the entire sale amount to the respondent
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A.S(MD)No.108 of 2010
and the respondent also gave a receipt-ExB2 in favour of the appellant and the trial Court failed to appreciate the oral and documentary evidence. Therefore, the judgment and decree passed by the trial Court warrants interference. Though none appeared for the respondent, no arguments put forth, the respondent filed the suit for recovery of money stating that she is the owner of the property and she executed a general power of attorney-Ex.B1 dated 29.05.1995 in favour of the appellant. Based on the said general power of attorney, the appellant sold the property stands in the name of the respondent to a third party through two sale deeds Exs.A1 and A2 for Rs.3,42,000/-. According to the respondent, the said amount has not been settled to her by the appellant. According to the appellant, he paid the amount and also got a receipt-Ex.B2 from the respondent and therefore, the respondent has no claim, but the trial Court failed to appreciate the evidence in proper perspective.
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A.S(MD)No.108 of 2010
appellant and based on the same, the appellant sold property to a third party are not in dispute. The only dispute is as to whether the appellant/power agent has settled the sale amount to the respondent/principal. Though the appellant claimed there is no due and the respondent also issued a receipt-Ex.B2, the said document does not show what is the amount paid and what is the date on which the amount was paid. Ex.B2 says that there is no dues. When the plea of discharge is denied by the respondent, it is the duty of the appellant to discharge his burden. Though DW1 has stated that the respondent signed Ex.B2, the respondent denied the same. Though the appellant has stated that the respondent gave a signed receipt for the said payment of sale consideration, he has not produced any such receipt and marked the same and therefore, the case of the appellant cannot be believed.
documentary evidence, this Court finds that the appellant has not discharged his liability in the manner known to law. The receipt said to have been given by the respondent in favour of the appellant is against the normal course of conduct. This Court also finds that
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since the appellant sold the property of the respondent utilising the power of attorney, it is his duty to settle the entire sale consideration received from the third party purchaser after deducting expenses, if any, and as a power agent he is liable to settle the dues and give the accounts to the principal. In this case, once the appellant admitted that he was acting as power agent, he shall settle the entire sale consideration to the respondent. Ex.B2 is not a sufficient proof of discharge and therefore, under these circumstances, there is no perversity and illegality in the judgment of the trial Court. There is no merit in the appeal.
bala 29.06.2022 Index : Yes / No Internet : Yes To
The District Judge, Karur.
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A.S(MD)No.108 of 2010
P.VELMURUGAN, J.
bala
JUDGMENT MADE IN A.S(MD)No.108 of 2010 DATED : 29.06.2022
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3 issues framed by the court
Whether the appellant failed to discharge his burden of proving payment of sale consideration despite a general power of attorney relationship.
Whether the trial court committed illegality or perversity in disallowing the appellant's claim for discharge of dues.
Whether the appeal filed against the decree in the suit for recovery of sale consideration is liable to succeed.
A. Muthusamy
M. Saraswathy
P. VELMURUGAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
