Madras High Court
S.Nagapandi vs K.Palanisamy on 25 September, 2020
Author: N.Seshasayee
Bench: N.Seshasayee
S.A(MD).No.443 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date: 25.09.2020
CORAM
THE HONOURABLE MR.JUSTICE N.SESHASAYEE
S.A(MD)No.443 of 2015
and M.P(MD)Nos.1 & 2 of 2015
S.Nagapandi : Appellant/Respondent/Plaintiff
Vs.
K.Palanisamy : Respondent/Appellant/Defendant
PRAYER: Second Appeal is filed under Section 100 of C.P.C, against the Judgment and
Decree dated 28.02.2015 in A.S.No.33 of 2014 on the file of Principal District Court,
Dindigul reversing the Judgment and decree dated 04.04.2014 O.S.No.100/2008 on the
file of Additional Sub Court, Dindigul.
For Appellant : Mr.H.Lakshmi Shankar
For Respondent : Mr.J.Joseph Jayakumar
JUDGMENT
The plaintiff in a suit for specific performance in O.S.No.100 of 2008, having tasted success before the trial Court, but, suffered a reversal before the first Appellate Court, is the appellant herein. Parties would be referred to by their rank before the trial court.
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2. Facts necessary for the current purpose are that the plaintiff laid a suit for specific enforcement of a registered agreement to sell the suit property, dated 03-09-2007, and marked as Ext.A-1, under which he had agreed to pay a consideration of Rs.1.65 lakhs for the purchase of the suit property, and alleges he had paid Rs.1.60 lakhs as advance payment, and that when his notice (Ext.A-2) requiring the defendant to perform his part, did not bring in desired results. 3.1 The defence was an one-liner: The plaintiff is a money lender, that there has been continuous transactions between the plaintiff and the defendant, and that Ext.A-1 sale agreement was only intended to secure a loan transaction. 3.2 Expatiating his case, the defendant pleaded that on 15.07.2002, he borrowed Rs.50,000/- from the plaintiff, and that the latter forced him to execute Ext.A-1 sale agreement in his favour. This in due course triggered the execution of a series of such agreements, of which the last of the agreement is now sought to be enforced. The details of all the earlier agreements since the inception are: 2/14
http://www.judis.nic.in S.A(MD).No.443 of 2015 S.No. Date Amount (in Rs
1. 15.07.2002 50,000
2. 18.09.2002 70,000
3. 15.05.2003 1,00,000
4. 10.09.2003 1,00,000
5. 22.09.2003 1,05,000
6. 24.11.2004 1,60,000
7. 27.06.2006 1,52,000
8. 03.09.2007 1,65,000
4. The matter went to trial, and before the trial Court the defendant produced Ext.B-1 to Ext.B-8. Contrary to his pleadings that he had executed only registered sale agreements, the docuents which the defendant has produced show that only three documents are agreements to sell the suit property. Exts.B-1 to B-3 are promissory notes which the defendant had executed in favour of plaintiff's wife Thenila. Exts.B-4 and B-7 are another set of promissory notes executed by him in favour of the plaintiff, and only Exts.B.5, B.6, & .A.1, alone are sale agreements. Ext.B-8 is a cancellation deed, though which Ext.B-6 was cancelled. The details of the sale agreement are tabulated below:
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http://www.judis.nic.in S.A(MD).No.443 of 2015 Exhibit Date Nature of Document Value (in Rupees) Ext.B.5 22.09.2003 Sale Agreement 1,05,000 Ext.B.6 22.11.2004 Sale Agreement 1,25,000 Ext.B.8 03.09.2007 Ext.B-6 cancelled Ext.A.1 03.09.2007 Sale Agreement 1,65,000
5.1 The documents produced by the defendant display a pattern to the manner by which the parties have conducted their affairs in relation to the sale of the suit property. There are both promissiory notes and sale agreements earlier to Ext.A-1, but the trial court appeared to have pretermitted the pattern that provided the circumstances for the defendant to prove his case, and decreed the suit. 5.2 A document may be disputed for its execution, or for its character, or in a limited way as to the correctness of any recital or on a mistake concerning any terms thereof. Every attempt of a party to establish any circumstance that may impact the genuiness of a document, both as to its execution and character, or enable a party to avoid a document on grounds by which it can avoided under the Contract Act, fundamentally operates as an exception to Sec.91 of the Evidence Act. It may not then be an ideal option for the court to overleap those facts that 4/14 http://www.judis.nic.in S.A(MD).No.443 of 2015 provide the circumstances as rendering the genuiness, or the intent, purport and import of the document most probable or improbable.
5.3 The first appellate court however, touched the right evidentiary cord and rectified the error in the approach of the trial court, and non-suited the plaintiff. It held that the pattern which the parties have adopted in the conduct of their affairs, and the sequence it provided in creating the circumstance for the execution of Ext.A-1, preponderated a probability that it could have been executed only to support the loan.
6. Challenging the decree of the first appellate court, the plaintiff has preferred this appeal. Along with the appeal, he has filed M.P.2 of 2015 for amending the prayer to one for return of the loan amount of Rs.1.60 lakhs, which the defendant had admitted, by drawing strength to his plea from the ratio in Firm Sriniwas Ram Kumar Vs Mahabir Prasad and others [AIR 1951 SC 177].
7. The only substantial question of law now required to be framed in the change of strategy by the plaintiff is:
Is the plaintiff entitled to be repaid the loan amount as admitted by the defendant in terms of the ratio of the judgement reported in AIR 1951 SC 177?5/14
http://www.judis.nic.in S.A(MD).No.443 of 2015
8. The learned counsel for the appellant submitted that inasmuch as the defendant has admitted that Ext.A-1 represents a loan transaction, a decree be granted to the plaintiff for the return of the loan amount of Rs.1.60 lakhs. He added that the plaintiff though had an option to seek an alternative relief for the return of the loan amount based on defedendant's admission in his written statement, the fact that he did not seek it, does not disable the Courts from from moulding the relief based on the facts proved. Granting this alternative relief was well within the powers of the first appellate court the moment it held that Ext.A-1 represented a security-dcoument for a loan, and it is to avert a similar eventuality, the appellant had filed M.P.2 of 2015. And, as indicated earlier he relied on the judgement of the Hon'ble Supreme Court in Firm Sriniwas Ram Kumar Vs Mahabir Prasad and others [AIR 1951 SC 177].
9. The learned counsel for the respondent fiercely resisted it, and highlighted the attitude of the plaintiff in suppressing a loan transaction and projecting a case for specific performance. He also resisted the present prayer of the appellant for return of the loan amount and contended that the relief now sought is barred by limitation.
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10. In Firm Sriniwas Ram Kumar Vs Mahabir Prasad and others [AIR 1951 SC 177], the facts before the Hon'ble Supreme Court are identical, where in a suit for specific performance, the alleged sale consideration paid by the plaintiff was Rs. 30,000/-, but the defendant contended that the agreement was executed only to secure the repayment of a loan. The trial court dismissed the suit for specific performance, but granted a decree for return of the loan amount based on the admission of the defendant. This was reversed by the High Court. Set in this context, the three Judges Bench of the Hon'ble Supreme Court held:
“9. As regards the other point, however, we are of the opinion that the decision of the trial court was right and that the High Court took an undoubtedly rigid and technical view in reversing this part of the decree of the Subordinate Judge. It is true that it was no part of the plaintiff's case as made in the plaint that the sum of .......... was advanced by way of loan to the defendants second party. But it was certainly open to the plaintiff to make an alternative case to that effect and make a prayer in the alternative for a decree for money even if the allegations of the money being paid in pursuance of a contract of sale could not be established by evidence. The fact that such a prayer would have been inconsistent with the other prayer is not really material. A plaintiff may rely upon different rights alternatively and there is nothing in the Civil Procedure Code to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. The question, however, arises whether, in the absence of any such 7/14 http://www.judis.nic.in S.A(MD).No.443 of 2015 alternative case in the plaint it is open to the court to give him relief on that basis. The rule undoubtedly is that the court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the defendant's own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings. In such circumstances, when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff to a separate suit. As an illustration of this principle, reference may be made to the pronouncement of the Judicial Committee in Babu Raja Mohan Manucha v. Babu Manzoor (1) 70 I.A.1:(AIR (30) 1943 P.C.
29). This appeal arose out of a suit commenced by the plaintiff appellant to enforce a mortgage security. The plea of the defendant was that the mortgage was void. This plea was given effect to by both the lower 'courts as well as by the Privy Council. But the Privy Council held that it was open in such circumstances to the plaintiff to repudiate the transaction altogether and claim a relief outside it in the form of restitution under section 65 'of the Indian Contract Act.
Although no such alternative claim was made in the plaint, the Privy Council allowed it to be advanced and gave a decree on the ground 8/14 http://www.judis.nic.in S.A(MD).No.443 of 2015 that the respondent could not be prejudiced by such a claim at all and the matter ought not to be left to a separate suit. It may be noted that this relief was allowed to the appellant even though the appeal was heard ex parte in the absence of the respondent.”(emphasis supplied) 11.1 Court engages in moulding and fashioning a relief in every situation where it does not find evidentiary support to grant the relief sought. To state it differently, where the plaintiff establishes the entire facts constituting the cause for his action, granting the relief sought would be its most probable consequence and become an automated choice. Where however, the plaintiff's efforts fall short of establishing the entire cause of action, yet adequate enough to grant a relief of a lesser variety even of different nature, Courts need to display the sensitivity to mould it for him, since Courts are not pre-programmed automated machines sans any awareness of its existential objective – to do justice wherever possible unfettered by any self- imposed inhibitions.
11.2 A relief lies hidden in the proof of a cause of action, like the butter hides in the milk. And, in its process of decision-making, the Court necessarily has to skim the pleadings and evidence within the contours of law, and should let the relief emerge from it, for it to hand it over that piece of butter to the plaintiff which he 9/14 http://www.judis.nic.in S.A(MD).No.443 of 2015 has managed to produce with his efforts. This power, nay, the duty of the Court to do the kind of justice which the plaintiff deserves is inherent in it. Here lies its centre of gravity. This gyrating philosophy in justicing is exposited in the ratio developed by the Hon'ble Supreme Court in Firm Sriniwas Ram Kumar case. 11.3 In the instant case, the defendant has taken up an irreversible position in defending the cause of action, when he not only contended that Ext.A-1 sale agreement was intended to operate only as a security for a loan he had obtained from the plaintiff, but has also successfully established it. However, in this process he did admit that he owes the plaintiff a certain sum of moeny as evidenced by Ext.A-1 agreement. Why deny the plaintiff that which the defendant himself has admitted in his written statement while defending a cause of an action alleged against him? The ratio in Firm Sriniwas Ram Kumar case is instructive here.
12. Moulding the relief in the instant case may have to be distinguished from granting an alternative relief of repyament of earnest money within the meaning of Sec.22 of the Specific Relief Act. Sec.22 mandates that there cannot be a decree for payment of earnest money unless there is a pecific prayer to that effect, but this statutory restriction on Courts powers to grant it is available only in cases where 10/14 http://www.judis.nic.in S.A(MD).No.443 of 2015 the defendant admits the agreement and does not dispute its character as in the present case. When the character of the document is proved to be different from the one which its nomenclature suggests, the consideration paid thereunder should also change its character.
13. The appellant has filed M.P.2, seeking a lesser relief of repayment of loan amount instead of his substantial prayer for specific performance. When the law as declared by the Hon'ble Supreme Court holds the field, this Court considers that MP 2 of 2015 praying for moulding the relief of repayment of the loan amount by the defendant is unnecessary, for it now becomes the duty of the Court to mould the relief on the basis of facts proved, with or without the plaintiff seeking it. Hence, M.P.2 of 2015 is closed.
14. The defendant having admitted that Ext.A-1 is executed to secure a loan of Rs. 1.60 lakhs, (and he has not offered a different figure here), it is only appropriate that this Court moulds the relief and direct the defendant to pay this sum. However, since this strategy is evolved by this Court now, it may not be equitable to direct the defendant to pay interest from the date of suit. Secondly, these are pandemic Covid-19 days, with most parts of the world, over-wound by immesurable anxiety, affecting both the physical well-being, and as its concomitant 11/14 http://www.judis.nic.in S.A(MD).No.443 of 2015 fallout, the financial health of the entire society, this Court considers it appropriate to factor them in while fixing the time for payment and interest payable on it.
15. In conclusion this Court partially allows the appeal and direct the defendant/respondent to pay the plaintiff a sum of Rs.1.60 lakhs on or before 31-05-2021 with future interest at 4% p.a which is to run after expiry of 31-05-2021. To clarify,the defendant would not be liable to pay any interest till 31-05-2021. And till the entire money is paid, there will be a charge on the suit property. No costs.
16. Under Section 22(2) of the Specific Relief Act, 1963 no relief for return of any earnest money shall be granted unless it is specifically claimed and under Section 22(1)(b) of the Specific Relief Act, a decree for refund of earnest money cannot be granted where specific performance is refused.
25.09.2020 Index : Yes/No Internet : Yes/No Tsg-2 12/14 http://www.judis.nic.in S.A(MD).No.443 of 2015 To
1.The Principal District Court, Dindigul.
2.The Additional Sub Court, Dindigul
3.The Section Officer, V.R.Section, Madurai Bench of Madras High Court, Madurai.
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tsg-2 S.A(MD)No.443 of 2015 and M.P(MD)Nos.1 & 2 of 2015 25.09.2020 14/14 http://www.judis.nic.in