Appeal against a decree for specific performance of a sale agreement. The High Court found, based on admissions by the plaintiff's scribe witness and absence of proof of payment of the advance, that the agreement was executed only as security for a loan and was not enforceable.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
A.S.No.553 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 27.03.2024 Pronounced on :04.06.2024
Coram:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
A.S.No.553 of 2016 and
C.M.P.No.13970 of 2016
R. Kalaivani
..Appellant/defendant
/versus/
D. Vijayalakshmi
..Respondent/plaintiff
Appeal Suit has been filed under Section 96 of C.P.C., to set aside
the judgment and decree passed in O.S.No.23 of 2014, dated 21.04.2016
on the file of the learned Principal District Judge, Puducherry and allow the above appeal.
For Appellant :Mr. T.R. Rajaraman for Mr. V.V. Sairam
For Respondent :Mr.G.Rajan
1/18
JUDGMENT
A.S.No.553 of 2016
The defeated defendant is the appellant herein. The
respondent/plaintiff filed a suit for specific performance in respect of the suit sale agreement [Ex.A1], dated 11.02.2015.
(i) The defendant is the absolute owner of the suit property by virtue
of a registered sale deed dated 16.03.2000. It is pleaded by the plaintiff that, the defendant offered to sell the property and a written agreement for sale (Ex.A1) was executed on 23.02.2011. Sale consideration was fixed at Rs.5,10,000/-. On the same day, an amount of Rs.5,00,000/- was said to
have been paid by the plaintiff. The time for execution of the sale deed is one year for payment of the balance amount of Rs.10,000/- and handing over all antecedents title deeds with respect to the suit schedule property.
(ii) The plaint further proceeds that on 05.02.2014, the defendant filed a complaint and the police have registered the case and subsequently, directed them to approach the Civil Court. The plaintiff issued a legal notice Ex.A3 calling upon the defendant to complete the sale transaction. On his failure, the plaintiff filed the suit in O.S.No.23 of 2014.
2/18
A.S.No.553 of 2016
3/18
A.S.No.553 of 2016
agreement dated 08.12.2008. The plaintiff's husband received the entire interest amount and cancelled the sale agreement dated 08.12.2008 and obtained fresh sale agreement from the defendant on 08.12.2008, 08.02.2010 and 23.02.2011. Thereafter, the defendant's husband had executed the agreement of sale, dated 27.04.2009 in favour of the plaintiff on the insistence of the plaintiff towards the interest of the principal sum. The plaintiff's husband also obtained two promissory notes, dated 14.02.2010 and two cheques bearing Nos.913550 and 913551 drawn on UCO Bank, Puducherry Branch, from the defendant for a sum of Rs.2,25,000/- each and also obtained two indemnity bonds towards the interest amount due. It had been further stated that the defendant's husband demanded a total sum of Rs.17,00,000/- to discharge the loan borrowed by the defendant's husband for a sum of Rs.5,00,000/-. Therefore, the defendant gave a police complaint before the Station House Officer, Mudaliarpet Police Station, on 05.02.2014. The defendant went to the police station along with her husband and explained the details of mode of repayment of the loan amount borrowed by her husband. But, the police dropped the defendant's complaint.
4/18
A.S.No.553 of 2016
performance suit, the defendant has preferred this appeal.
5/18
A.S.No.553 of 2016
(i)Whether Ex.A1-agreement of sale, dated 23.02.2011, is true and valid as pleaded by the plaintiff (or) is it only intended as a security for the loan as projected by the defendant?
(ii)Whether the respondent/plaintiff has proved passing of consideration of Rs.5,00,000/-, on 23.02.2011, when it was specifically denied by the defendant/appellant?
(iii)Whether the respondent/plaintiff is ready and willing to perform his part of the contract?
6/18
A.S.No.553 of 2016
remains to be stated that pre-suit notice under Ex.A3 was issued only after the complaint given by the defendant to the concerned police station regarding the suit sale agreement and it assumes significance.
7/18
A.S.No.553 of 2016
usual practice between them to give security for the loan advanced and in such circumstances, Ex.B9, Ex.B10, Ex.B11, Ex.B12, Ex.B13 and Ex.B14 were said to have been executed between the parties. PW-1 in the witness box was confronted with Ex.B9 to Ex.B14 as well as Ex.B1 to Ex.B4.
11(a). Ex.B1 is the photo copy of the plaintiff's husband in the
agreement of sale dated 26.09.2007; Ex.B2 is the photo copy of the defendant in the agreement of sale, dated 26.09.2007; Ex.B3 is the photo copy of the husband of the plaintiff in cancelling the sale agreement dated 02.09.2008 and so also, Ex.B4 is the photo copy of the defendant in cancelling the agreement of sale date 02.09.2008 and earlier four agreements of sale deed dated 08.12.2008; 08.01.2010; 14.02.2010; and 14.02.2009 and two pro-notes dated 14.02.2008 and 14.02.2010, which were placed before the Court with torn, re-fixed with the cellophane tape.
11(b). The evidence of DW-1 is that, after execution of the subsequent sale agreements as a security for the loan exchanged between the parties, the earlier sale agreement was torn and new sale agreement came into force. In this connection, the answer elucidated from the cross
8/18
A.S.No.553 of 2016
examination of PW-1, assumes significance as discussed infra.
12(a). Ex.B8 is the notice issued to the defendant in respect of the money borrowed on the promissory note from the plaintiff. In short, the evidence of the defendant both in the written statements as well as during examination as DW1 is that, there were earlier transactions and the documents namely, Ex.B1 to Ex.B4 and Ex.B5 to Ex.B7 and Ex.B9 to Ex.B14 relates to the earlier transactions and on termination of the date, the same were torn.
12(b). The trial Court has observed that the husband of the defendant did not enter into the witness box to speak about the earlier transaction, is fatal. However, the admission of PW-1 is sufficient. While PW-1 admitted the photocopy of the plaintiff's husband under Ex.B1 and Ex.B2 and also identified the photocopy of her husband in another cancellation deed, she denied her signatures in yet another sale agreement dated 08.12.2008. The signatures in the previous sale agreement dated 08.12.2008 were marked as Ex.B5 (series) during the cross examination of PW-1.
9/18
A.S.No.553 of 2016
12(c). The plaintiff, to substantiate her case, also examined PW-2 (Mr. Rajendiraen), the document writer, who prepared Ex.A1-agreement. During his cross examination, he also identified the agreement of sale, dated 08.12.200,8 in which he had also signed at the end and his signature was marked as Ex.B9. Similarly, another signature in a document dated 08.02.2010 was marked as Ex.B10. In yet another document, dated 14.02.2010, his signature was marked as Ex.B11. In a further document, dated 14.02.2009, his signature was marked as Ex.B12. In a promissory note, dated 14.02.2009, his signature was marked as Ex.B13. In yet another promissory note, dated 14.02.2010, his signature was marked as Ex.B14, which goes to show that the plaintiff side evidence namely PW-2, who is the document writer (Mr.Rajendiran) has admitted that Ex.B9 to Ex.B14 were executed between the parties and hence, merely because PW1 has chosen to deny the same, the version of this independent witness PW-2, who is the scribe of the sale agreement Ex.A1, and who admitted the existence of Ex.B9, Ex.B10, Ex.B11, Ex.B12, which are the documents relied on by the defendant that, they are all the earlier money transactions between the parties and those documents are produced as defence
10/18
A.S.No.553 of 2016
evidence.
defendant is not fatal to the case of the defendant, in view of the admission made by PW-2, the independent witness, scribe of Ex.A1. Therefore, it is sufficient to hold that the documents namely,Ex.B9, Ex.B10, Ex.B11, Ex.B12, Ex.B13 and Ex.B14 are executed between the parties. Since PW-2 is not only an independent witness, but he is also the scribe of the document, the reason assigned by the trial Court that the non-examination of the defendant's husband in the witness box to speak about the documents pales insignificance, in view of the admission made by the scribe of those documents, who was examined on the side of the plaintiff.
11/18
A.S.No.553 of 2016
15(a). For the reasons stated in the preceding paragraph, this Court has rendered a categorical finding based upon the admission of PW-2 that those exhibits were proved by the scribe himself. Hence, the plea of nonpassing of consideration having been raised in the written statement as well as in the evidence, the burden of passing of consideration under Ex.A1 remains significant and consequently falls upon the plaintiff/ respondent.
15(b). During the cross examination of DW-1, her stand was that she had withdrawn the money from Kombakkam Bank in Pondicherry and paid the advance amount in bundles of Rs.500/- rupees notes. Admittedly, she has not filed any document to show that the alleged withdrawal amount of Rs.5 lakhs from the said bank in and around the date of the agreement assumes significance and hence, when no document has been filed to show that the alleged source of income and the alleged source of fund for payment of advance amount of Rs.5 lakhs on the date of the agreement, on the above-stated circumstances, this Court has no hesitation to hold that the respondent/plaintiff failed to demonstrate passing of consideration under Ex.A1, and the same has caused serious doubt regarding true and
12/18
A.S.No.553 of 2016
genuineness of the Ex.A1-suit sale agreement.
15(c). Hence, I find that the plaintiff has failed to show and demonstrate passing of consideration under Ex.A1, in view of shifting of burden and in view of the admission of PW-2 as stated supra.
13/18
A.S.No.553 of 2016
in those documents during his cross-examination.
17(a). Yet another point is that though the plaintiff states that he is ready and willing to perform his contract in respect of the sale agreement dated 23.02.2011, even after passing of three years, they have not issued any legal notice and Ex.A3 pre-suit legal notice was issued only on 14.02.2014. Moreover, since the defendant has filed a complaint before the Mudaliarpet Police Station and the police have closed the case, as it is a civil in nature on 05.02.2014, only after the police complaint lodged by the defendant on 05.02.2014, the said legal notice was issued.
17(b). The stand of the plaintiff is that she is always ready and willing to pay the balance sale consideration. According to her case, the sale consideration is Rs.5,10,000/- and she paid Rs.5,00,000/- on the date of registration. For the reasons stated supra, this Court holds that the evidence of PW-1 regarding the payment of the advance of Rs.5,00,000/- is doubtful and unbelievable.
17(c). Hence, Rs.10,000/- is said to have been the balance of the
14/18
A.S.No.553 of 2016
sale consideration and his readiness and willingness have become pale insignificance.
15/18
A.S.No.553 of 2016
the document, especially, in view of Ex.B9, Ex.B10, Ex.B11, Ex.B12, Ex.P13 and Ex.B14 and hence, the relief of specific performance being discretionary relief, I am not inclined to concur with the judgment of the learned Principal District Judge, Puducherry and warrant interference with the decision.
04.06.2024
Index:yes/no Speaking order/non speaking order Neutral Citation:yes/no ari
16/18
A.S.No.553 of 2016
To
The Principal District Judge, Puducherry.
TMT.TEEKAA RAMAN,J.
17/18
A.S.No.553 of 2016
ari
delivery judgment made in A.S.No.553 of 2016 and C.M.P.No.13970 of 2016
04.06.2024
18/18
3 issues framed by the court
Whether Ex.A1 sale agreement dated 23.02.2011 was a true sale agreement or only security for a loan?
Whether the plaintiff proved payment of Rs.5,00,000 advance under Ex.A1?
Whether the plaintiff was ready and willing to perform the contract?
1 provisions across 1 enactments
R. Kalaivani
D. Vijayalakshmi
RMT.TEEKAA RAMAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
