Madras High Court
P.A. Ponnusamy vs R.V. Rajalakshmi
Author: R. Subbiah
Bench: R. Subbiah, M.S. Ramesh
IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON: 07.04.2017 DELIVERED ON: 27.04.2017 CORAM: THE HON'BLE MR. JUSTICE R. SUBBIAH and THE HON'BLE MR. JUSTICE M.S. RAMESH A.S. No.646 of 2016 & C.M.P. No.18899 of 2016 1 P.A. Ponnusamy 2 N. Pachagounder 3 Latha Appellants vs. R.V. Rajalakshmi Respondent Appeal Suit filed under Section 96 read with Order 41 Rule 1 of C.P.C. seeking to set aside the judgment and decree dated 15.04.2016 made in O.S. No.66 of 2014 on the file of the III Additional District and Sessions Court, Gobichettipalayam, Erode District. For appellants Mr. N. Manokaran For respondent Ms. P.T. Asha for M/s. Sarvabhauman Associates - - - - - JUDGMENT
R. SUBBIAH, J.
This appeal suit is directed against the judgment and decree dated 15.04.2016 passed in O.S. No.66 of 2014 on the file of the III Additional District and Sessions Court, Gobichettipalayam (for short the Trial Court), whereby and whereunder, the suit filed by the respondent herein was decreed.
2 The defendants are the appellants herein and the plaintiff is the respondent herein. To avoid verbosity and for the sake of clarity and convenience, the parties will be referred as per their litigative status before the Trial Court.
3 The case of the plaintiff, in brief, is as under:
3.1 The plaintiff is the owner of the property referred to in the suit schedule. She purchased the said property by a sale deed dated 23.02.2006 as a tiled building. Thereafter, she raised a construction consisting of ground floor and first floor. The market value of the land and building is more than Rs.50 lakhs.
3.2 While so, the first defendant advanced a loan of Rs.5 lakhs to the plaintiff and as a security for the due repayment of the said loan, the first defendant also secured a registered power of attorney in his own name on 13.02.2012. For the property having worth more than Rs.50 lakhs, the first defendant, securing a power of attorney on 13.02.2012 in his favour, on the very same day, executed a sale agreement in respect of the property in favour of his daughter and son-in-law, who are defendants 3 and 2 respectively. In the said sale agreement, all the defendants claimed the value of the property as Rs.16 lakhs. Further, as per the agreement, the defendants 2 and 3 claimed to have paid a sum of Rs.15 lakhs to the first defendant as the Power Agent of the plaintiff.
3.3 After a period of two years, on 28.01.2014, the first defendant created a sale deed in the name of the defendants 2 and 3, which is nothing but a fabricated document. The possession of the property still remains with the plaintiff. Within a few minutes after the execution of the Power of Attorney on 13.02.2012 by the plaintiff in favour of the first defendant, the sale agreement in the name of the defendants 2 and 3 was executed by the first defendant alleging receipt of Rs.15 lakhs from them. When the property which is situated in a prime locality is worth more than Rs.50 lakhs, clandestinely, the sale deed dated 28.01.2014 has been executed by the first defendant in favour of the defendants 2 and 3 for a paltry value of Rs.16 lakhs.
3.4 On 10.02.2014, when the plaintiff came to know about the execution of the sale deed dated 28.01.2014 by the first defendant in the name of defendants 2 and 3, she applied for a certified copy of the said document, following which, she issued notice to the defendants on 22.02.2014 and filed the suit for cancellation of the sale deed dated 28.01.2004 executed by the first defendant in the name of defendants 2 and 3.
4 The third defendant, resisting the claim of the plaintiff, filed a written statement, which is adopted by defendants 1 and 2, the sum and substance of which is as under:
4.1 Originally, the suit property belonged to one S.V.Duraisamy. The said Duraisamy executed a sale deed in favour of the plaintiff on 23.02.2006. Thereafter, on 06.10.2008, the plaintiff executed a Power of Attorney in favour of one Pathirasamy, S/o Subbian, in respect of the suit property which was registered as Document No.613 of 2008, who, in turn, as Power Agent of the plaintiff, entered into a sale agreement with one R. Subbian, S/o Ramasamy on 09.06.2010 to sell the said property for a sum of Rs.17 lakhs. Out of the said sum of Rs.17 lakhs, the said Pathirasamy received a sum of Rs.15 lakhs. It was agreed that the balance sum of Rs.2 lakhs would be paid on or before 08.06.2012. The said sale agreement dated 09.06.2010, which was witnessed by the plaintiff's husband K.L. Thomasraj and one Prabakar, was registered as document no.3129 of 2010. Subsequently, the said R. Subbian, S/o Ramasamy, expressed his inability to buy the said property. Therefore, the Power of Attorney dated 06.10.2008 and sale agreement executed on 09.06.2010 were cancelled on 13.02.2012.
4.2 Since the plaintiff's husband pressurised the first defendant to purchase the said property, on the very same day, i.e., 13.02.2012, a Power of Attorney was executed by the plaintiff in favour of the first defendant. Since the first defendant did not have sufficient funds, on the very same day, a sale agreement was executed by the first defendant, in his capacity as Power Agent of the plaintiff, in favour of defendants 2 and 3. In fact, the first defendant did not have sufficient funds and he got the sale consideration from defendants 2 and 3 and paid the same to the plaintiff and even obtained a receipt from the plaintiff on 13.02.2012. But, suppressing all these facts, the plaintiff has laid the suit.
4.3 Though the sale agreement was entered into between the first defendant and defendants 2 and 3 on 13.02.2012, considering the convenience of the latter, the sale deed was executed only on 28.01.2014. Further, it was only the third defendant who paid property tax on 05.05.2014 and even the water tax and electricity consumption charges are being paid by defendants 2 and 3. It is also incorrect to state that the suit property is worth more than Rs.50 lakhs. The plaintiff, with the intention of ousting the defendants from the property, has filed the present suit with false averments.
5 The Trial Court, based on the above pleadings, framed six issues. Before the Trial Court, the plaintiff, in order to prove her case that the Power of Attorney dated 13.02.2012 was executed in favour of the first defendant only as a security for the loan of Rs.5 lakhs availed by her from the first defendant, whereas, by misusing the said Power of Attorney, the first defendant has created a sale agreement of even date followed by sale deed dated 28.01.2014 in favour of defendants 2 and 3, the plaintiff examined herself as P.W.1, besides examining one Kandasamy as P.W.2 and marked 13 documents as Exs.A.1 to A.13. Likewise, the first defendant, in order to prove that the Power of Attorney dated 13.02.2012 was executed in his favour by the plaintiff only with an intention to sell the property in question by receiving a sale consideration of Rs.16 lakhs, examined himself as D.W.1, besides examining one Latha, the third defendant and one Murugesan as D.Ws.2 and 3 respectively and marked 12 documents as Exs. B.1 to B.12.
6 The Trial Court, after analysing the evidence on record, rejected the case projected by the defendants and decreed the suit as prayed for, primarily on the following findings:
Had the sale price been paid to the plaintiff on 13.02.2012 itself, there was no need for the first defendant to wait till 28.01.2014 to execute the sale deed in favour of defendants 2 and 3, especially when he claims that the entire sale consideration was paid to the plaintiff on 13.02.2012 itself.
The first defendant admits in his evidence as D.W.1 that the Power of Attorney dated 13.02.2012 was executed by the plaintiff to him only as a security for the amount borrowed by her from him.
7 Aggrieved by the said findings based on which, the Trial Court has decreed the suit, the defendants have preferred this appeal suit.
8 It is the submission of the learned counsel for the appellants/defendants that the plaintiff has filed the suit by suppressing the earlier transaction she had with one Pathirasamy, S/o Subbian; originally, the plaintiff had executed a Power of Attorney on 06.10.2008 in favour of the said Pathirasamy, S/o Subbian; the said Pathirasamy entered into a sale agreement dated 09.06.2010 with one R. Subbian, S/o Ramasamy; in the said sale agreement, the sale consideration was fixed at Rs.17 lakhs; Pathirasamy, as the Power Agent of the plaintiff, received a sum of Rs.15 lakhs and for the payment of balance sum of Rs.2 lakhs, time limit was fixed as 08.06.2012; but, subsequently, the said Subbian, S/o Ramasamy, was not in a position to complete the sale; hence, the sale agreement dated 09.06.2010 executed by Pathirasamy in favour of Subbian, S/o Ramasamy as well as the Power of Attorney dated 06.10.2008 executed by the plaintiff in favour of the said Pathirasamy was cancelled on 13.02.2012; on cancellation of the said Power of Attorney and sale agreement, in order to wipe off the earlier loan, the plaintiff executed a Power of Attorney dated 13.02.2012 to the first defendant with an intention to sell the property; since the first defendant did not have sufficient funds to pay the plaintiff, he received a part of the amount from defendants 2 and 3, who are his son-in-law and daughter respectively and he paid the amount to the plaintiff and thereafter, on the very same day, the first defendant, executed a sale agreement in favour of defendants 2 and 3 for a consideration of Rs.16 lakhs and the plaintiff has also issued a receipt towards receiving Rs.16 lakhs as sale consideration, which is marked as Ex.B.7; but, suppressing all these facts, the plaintiff has laid the suit.
9 By placing reliance upon Ex.B.7, receipt given by the plaintiff, the learned counsel for the appellants/defendants advanced arguments in detail. According to him, in order to prove that the amount was paid to the plaintiff on 13.02.2012, one Murugesan, was examined as D.W.3; in his chief-examination, he has stated that he saw the plaintiff receiving the amount and issuing a receipt for the same, viz., Ex.B.7 and therefore, the defendants have established their defence by examining D.W.s 1 to 3 and also marking Ex.B.7; however, the Trial Court has decreed the suit on an erroneous finding that there was a delay in executing the sale deed 28.01.2014 by the first defendant in favour of defendants 2 and 3; but, mere delay in execution of sale deed by the first defendant in favour of defendants 2 and 3 cannot be a ground for brushing aside the case of the defendants. In this regard, the learned counsel for the appellants/defendants has placed reliance upon a judgment of this Court in M. Abdul Muthalip vs. M. Samsudeen [2009-4-L.W.650], wherein, it has been held that even an Agent can become a purchaser when he pays the price to the principal on his own responsibility. When that being the legal position, according to the learned counsel for the appellants/defendants, the sale made by the first defendant to defendants 2 and 3, that too, after receipt of sale consideration, cannot be said to be suffering from any infirmity.
10 The learned counsel for the appellants/defendants further contended that the Trial Court has rendered a finding as if the first defendant has admitted in his cross-examination that the Power of Attorney dated 13.02.2012 was executed by the plaintiff as a security for the loan availed by her from the first defendant; but, if the evidence of the first defendant, i.e., D.W.1, is read in its entirety, a clear inference could be drawn to the effect that only with the intention to sell the property, the plaintiff had executed the Power of Attorney dated 13.02.2012 in favour of the first defendant. The learned counsel further submitted that albeit the plaintiff has projected as if the Power of Attorney was executed only as a security for the loan availed by her from the first defendant, she has miserably failed to examine the two witnesses to the said document and she has projected the case as if the first defendant had concocted the sale deed dated 28.01.2004 for the purpose of this case. In this regard, the learned counsel, by inviting the attention of this Court to Order VI Rule 4, CPC, submitted that when a party pleads any misrepresentation, fraud, breach of trust, wilful default or undue influence in the pleadings, all the necessary particulars should be given in the plaint, but, in the instant case, no such particulars have been given in the plaint. In support of this contention, the learned counsel has garnered support from a Division Bench judgment of this Court in Cambridge Solutions Limited, Bangalore vs. Global Software Ltd., Chennai 18 and 4 others [2017 (1) CTC 497, wherein, it has been held that the plaintiff must set forth the material particulars of fraud in the pleadings.
11 Further, in order to prove that the plaintiff is no longer in possession of the suit property as contended by her and that the possession of the suit property has been handed over to defendants 2 and 3, the learned counsel for the appellants/defendants drew the attention of this Court to Exs.B.10 and B.11, property tax receipts and also Ex.B.12, receipt for payment in respect of transfer of electricity connection in the name of the third defendant. Based on these submissions, the learned counsel for the appellants/defendants sought setting aside of the judgment and decree of the Trial Court.
12 Per contra, the learned counsel for the respondent/plaintiff submitted that it is the case of the plaintiff that she borrowed a sum of Rs.5 lakhs and only as a security for the said loan, she had executed the Power of Attorney dated 13.02.2012 in favour of defendants 2 and 3 which was registered on the same day and the witnesses to the same are none other than the wife of the first defendant, viz., Vijayalakshmi and one Nagendran; but, on the very same day, without the knowledge of the plaintiff, the first defendant had executed a sale agreement in favour of defendants 2 and 3 and thereafter, with a delay of two years, the first defendant had executed the sale deed dated 28.01.2014, for which, there has been no explanation on the side of the first defendant.
13 Further, according to the learned counsel for the respondent/plaintiff, though the learned counsel for the appellants/defendants projected a case that the plaintiff had obtained loan from the first defendant to wipe off her earlier loan amount to Subbian, that is not pleaded in the written statement; in the written statement, it is the specific case of the third defendant, which was adopted by defendants 1 and 2, that since the plaintiff's husband pressurised the first defendant to purchase the property, he paid the amount to the plaintiff and the plaintiff executed the Power of Attorney; this contradiction will go to show that the case of the first defendant is totally unbelievable.
14 Further, the learned counsel for the respondent/plaintiff, by inviting the attention of this Court to Ex.B.7, receipt issued by the plaintiff, submitted that though it is the case of the defendants that the entire sum of Rs.16 lakhs was paid as sale consideration on 13.02.2012 under the said exhibit, i.e., in the so called receipt, no amount has been mentioned therein; moreover, the plaintiff has also denied the execution of Ex.B.7 in her evidence; thus, since Ex.B.7 is surrounded by suspicion, the Trial Court, by wishing away the said exhibit, has correctly decreed the suit.
15 The learned counsel for the respondent/plaintiff, by inviting the attention of this Court to Ex.A.3/Ex.B.8, sale agreement executed by the first defendant in favour of defendants 2 and 3 submitted that the very nomenclature of the said agreement would show that the possession of the suit property was not handed over to the defendants 2 and 3; that apart, in the last line of the document, it has been clearly stated that the possession of the property was not handed over to the defendants 2 and 3; contrary to the averment found in the said document, the defendants have projected a case as if possession was handed over to defendants 2 and 3.
16 By drawing further attention of this Court to Ex.A.3/B.8, the learned counsel for the respondent/plaintiff submitted that in the sale agreement, it has been stated that the amount was received by the first defendant from defendants 2 and 3, who are his son-in-law and daughter respectively; but, it has not been stated that the said amount was paid to the plaintiff. Further, the learned counsel for the respondent/plaintiff, by placing reliance on the evidence of D.W.3, submitted that D.W.3 has admitted in his cross-examination that he was only asked to sign Ex.B.7 and the said piece of evidence would show that he might not have witnessed the passing of consideration from the first defendant to the plaintiff.
17 Thus, according to the learned counsel for the respondent/plaintiff, a cumulative analysis of all these aspects would go to show that by committing fraud, the first defendant has executed the sale deed dated 28.01.2014 in favour of defendants 2 and 3; in the plaint, it has been clearly stated that the first defendant has concocted the fraudulent document, viz., sale deed dated 28.01.2014 by misusing the Power of Attorney dated 13.02.2012 executed by the plaintiff in favour of the first defendant and therefore, the defendants cannot be heard to say that the plaint is bereft of any averment of fraud. In this connection, the learned counsel for the respondent/plaintiff has relied upon the judgment in Ramesh B.Desai and others vs. Bipin Vadilal Mehta and Others [(2006) 5 SCC 638], wherein, it has been held that particulars of the alleged fraud, which are required to be stated in the plaint, will depend upon the facts of each particular case and no abstract principle can be laid down in this regard.
18 Based on the aforesaid submissions, the learned counsel for the respondent/plaintiff sought dismissal of the appeal.
19 We have given our anxious consideration to the rival submissions and have also perused the materials available on record.
20 It is the specific case of the plaintiff that she received a sum of Rs.5 lakhs as loan from the first defendant and as security to the said loan, she executed the Power of Attorney dated 13.02.2012 in respect of the suit schedule property in favour of the first defendant and that on the very same day, without her knowledge, the first defendant had executed a sale agreement in favour of defendants 2 and 3, who are his son-in-law and daughter respectively and thereafter, after the lapse of two years, the first defendant clandestinely executed the sale deed dated 28.01.2014 in favour of defendants 2 and 3, which is marked as Ex.A.4.
21 Per contra, it is the case of the appellants/defendants that originally, the plaintiff executed a Power of Attorney dated 06.10.2008 in favour of one Pathirasamy, S/o Subbian, on the strength of which, Pathirasamy entered into a sale agreement dated 09.06.2010 with one Subbian, S/o Ramasamy for a consideration of Rs.17 lakhs; the said Subbian paid Rs.15 lakhs to Pathirasamy and it was agreed that the balance sum of Rs.2 lakhs could be paid on or before 08.06.2012; since the said amount of Rs.2 lakhs could not be paid by Subbian, on 13.02.2012, the Power of Attorney dated 06.10.2008 and the sale agreement dated 09.06.2010 were cancelled and another Power of Attorney dated 13.02.2012 was executed by the plaintiff in favour of the first defendant with the intention to sell the property and the plaintiff received the amount from the first defendant and paid the same to Pathirasamy; thus, the intention of execution of Power of Attorney dated 13.02.2012 in favour of the first defendant was only to sell the property to the first defendant and not as a security for the loan availed by the plaintiff, as pleaded by her; under such circumstances, no significance could be attached to the delay of 2 years in execution of sale deed by the first defendant in favour of defendants 2 and 3.
22 Though it is submitted by the learned counsel for the appellants/defendants that in order to show that the sale consideration was paid to the plaintiff, the appellants/defendants have placed heavy reliance upon Ex.B.7, receipt dated 13.02.2012 which is said to have been issued by the plaintiff, from a perusal of the said exhibit, we find that the same is silent qua the amount that was said to be paid to the plaintiff on 13.02.2012. The relevant portion from the said exhibit is usefully extracted hereunder:
vdf;F fle;j 23/02/2006?k; njjpapy; Vw;gl;lJk; rj;jpak';fyk; rhh;gjptfj;jpy; 1 g[j;jfk; 728-2006?be vz;zhf gjpt[ bra;ag;gl;l fpiua rhrdg;go ghj;jpag;gl;lJk; vd;Dila mDnghf RthjPdj;jpy; ,Uf;fpwJkhd ,jdoapw;fz;l brhj;ij rj;jpak';fyk; rhh;gjptfk; ckf;F ehd; vGjpf;bfhLj;j bghJ mjpfhu Mtz vz;/-2012d;?go jh';fs; vd;Dila gth; Vb$z;lhf ,Ue;J tpw;gid bra;jpUg;gjpy; vdf;F tuntz;oa fpiua bjhif KGtija[k; ehsJ njjpapnyna fPH;f;fz;l rhl;rpfs; Kd;dpiyapy; j';fsplk; ,Ue;J buhf;fkhf bgw;Wf; bfhz;oUf;fpnwd;/ ,dp j';fsplk; ,Ue;J vdf;F tuntz;oa bjhif VJk; ghf;fp ,y;iy/ i& bjhif KGtJk; vdf;F bry;yhdjw;F ,Jnt ,urPJ/ 23 From a bare reading of the above extracted portion, it is limpid that the amount which the first defendant claims that he has paid to the plaintiff is not mentioned therein. Though it is the specific case of the first defendant that on 13.02.2012, a sum of Rs.16 lakhs was paid to the plaintiff towards sale consideration, the contents of the sale deed would show as if only Rs.15 lakhs was paid to the plaintiff on 13.02.2012 and balance sum of Rs.1 lakh was paid on the date of execution of the sale deed, which is contrary to the pleadings made in the written statement. It is worth pointing out that D.W.1 also has stated in his evidence as if he has paid the entire sum of Rs.16 lakhs to the plaintiff on 13.02.2012 by receiving a portion of the amount from defendants 2 and 3. Thus, we can material contradiction amongst the pleadings, evidence and the document marked, viz., Ex.B.7 marked on the side of the defendants. Whereas, the plaintiff has made assertive statement that the signature found in Ex.B.7, receipt, is not hers. This material contradiction clearly supports the case of the plaintiff that the sale agreement dated 13.02.2012 and the sale deed dated 28.01.2014 executed by the first defendant in favour of defendants 2 and 3 are concocted documents created with a fraudulent intention. Above all, we find that the first defendant had himself admitted in his evidence that at the time of executing Ex.B.8, sale agreement dated 13.02.2012, he had no intention to purchase the property and that is the reason why the value of the property was not mentioned in the sale agreement. The relevant portion of the deposition of the first defendant reads thus:
mtUf;F gzk; bfhLj;J uj;J bra;a ntz;Lk; vd;gjw;fhf mtrukhf uh$yl;Rkp nfl;Lf; bfhz;ljd; nghpy; ehd; gzk; bfhLj;njd;/ vd;id nkhro bra;Jtplf;TlhJ vd;gjw;fhf ehd; cldoahf vd; kfSf;Fk; kUkfDf;Fk; fpua xg;ge;jk; nghl;nld/ vd; kfs; bgahpYk;. kUkfd; bgahpYk; fpua xg;ge;jk; nghLk;nghJ brhj;jpd; kjpg;iga[k;. fl;olj;jpd; kjpg;ig[ak; vd;d vd;W bjhpahky; mij fUj;jpy; bfhs;shky; ehd; fpua xg;ge;jk; nghl;nld; vd;why; rhpjhd;/ ehd; bfhLj;j gzj;jpw;F vt;tpj rpf;fYk; te;J tplf;TlhJ vd;gjw;fhfj;jhd; nghl;nld; vd;why; rhpjhd;/ 24 From a cursory reading of the above extracted portion of the deposition of D.W.1, it is clear that D.W.1 has admitted that in order to avoid any dispute with regard to the amount advanced by him to the plaintiff, he has executed a sale agreement in favour of defendants 2 and 3. Thus, even as per the evidence of D.W.1, it is crystal clear that the Power of Attorney dated 13.02.2012 was executed by the plaintiff in the name of the first defendant only as a security for the loan advanced by the latter to the former and there was no reason whatsoever for the plaintiff to execute the said Power of Attorney in favour of the first defendant with an intention to sell the suit property.
25 Next, it is to be seen that D.W.3, Murugesan, was examined to speak about the receipt of sale consideration by the plaintiff on 13.02.2012 vide Ex.B.7, receipt. D.W.3, in his cross-examination, has admitted that he had signed only in the prepared document and since he was asked to sign the said document, he signed as a witness and that he does not know about the non mentioning of the amount paid to the plaintiff in Ex.B.7. Therefore, we are of the considered opinion that the evidence of D.W.3 will not be helpful to advance the case of the defendants. On the other hand, the plaintiff has proved her case by examining herself as P.W.1 that Ex.B.2, viz., Power of Attorney dated 13.02.2012 was executed only as a security for the loan availed by her from the first defendant. Moreover, we find substance in the argument advanced by the learned counsel for the respondent/plaintiff that had there been any intention on the part of the first defendant to sell the property to defendants 2 and 3 on the very same day itself, i.e., on 13.02.2012, the plaintiff would have directly executed the sale agreement in favour of defendants 2 and 3 instead of executing a Power of Attorney in favour of the first defendant, especially when it is the specific case of the first defendant that on 13.02.2012, the entire sale consideration was paid to the plaintiff.
26 In view of the foregoing analysis, we have no hesitation in holding that the sale deed dated 28.01.2004 is a fraudulent one created for the purpose of this case and we could find no infirmity in the judgment of the Trial Court warranting inference by this Court.
In the result, the judgment and decree dated 15.04.2016 passed by the Trial Court in O.S. No.66 of 2014 are confirmed and as a sequitur, this appeal suit stands dismissed. Costs made easy. Connected C.M.P. is closed.
(R.P.S.J.) (M.S.R.J.) 27.04.2017 cad Index:Yes/No To 1 The III Additional District and Sessions Judge Gobichettipalayam Erode District 2 The Record Keeper V.R. Section Madras High Court R. SUBBIAH, J.
and M.S. RAMESH, J.
cad A.S. No.646 of 2016 27.04.2017 http://www.judis.nic.in