Madras High Court
D.Palanichami vs M.Venkatachala Gounder (Deceased) on 24 March, 2021
Author: G.Jayachandran
Bench: G.Jayachandran
1 A.S.No.519 of 2006
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 16.03.2021
Pronounced on 24.03.2021
CORAM:
THE HONOURABLE DR. JUSTICE G.JAYACHANDRAN
A.S.No.519 of 2006
1.D.Palanichami
2.Govindammal
3.Savithiri ...Appellants/Defendants
Vs
1.M.Venkatachala Gounder (Deceased)
2.Samathal
3.Saradhambal
4.V.Sridhar
5.V.Senthilnathan
(RR2 to 5 impleaded as L.Rs. of the deceased respondent vide order
of court dated 07.10.2016 made in M.P.Nos.1 and 2 of
2015 in A.S.No.519 of 2006)
...Respondents/Plaintiff
PRAYER: Appeal filed under Section 96 of CPC to set aside the judgment
and decree dated 12.12.2005 in O.S.No.9 of 2005 on the file of the
Additional District Judge, Fast Track Court No.V, Coimbatore.
https://www.mhc.tn.gov.in/judis/
2 A.S.No.519 of 2006
For Appellants : Mr.S.Kingston Jerold
For Respondents : Mr.N.Manokaran
JUDGMENT
This appeal is filed by the defendants against the judgment and decree passed by the trial Court in the suit for specific performance. The parties are described as per the ranking and description found in the plaint.
2.The brief facts of the case leading to the appeal:
On 27.02.2003, the plaintiff viz., Venkatachala Gounder as purchaser and the defendants Duraisamy Gounder, his son Palanichamy Gounder, wife Govindammal and daughter Savithri, as vendors entered into a sale agreement in respect of the suit property. As per the terms of the agreement, the value of the suit property was fixed as Rs.10,00,000/- and consideration of Rs.8,00,000/- was paid to the vendors on the date of agreement. The balance Rs.2,00,000/- was agreed to be paid by the purchaser within a period of nine months. Parties agreed to execute the sale deed on payment of the balance sale consideration and in case of any fault, it was agreed to be enforced through Court of law. The said sale agreement was duly registered https://www.mhc.tn.gov.in/judis/ 3 A.S.No.519 of 2006 before the Sub Registrar Office, Palladam. Thereafter, when the purchaser/plaintiff expressed his ready and willingness to pay the balance sale consideration and requested the vendors/defendants to execute the sale deed, the vendors/defendants postponed to execute the deed under some protest or other. Hence, the purchaser/plaintiff issued a legal notice to the vendors/defendants on 21.11.2003. The vendors/defendants were called upon to be present at Sub Registrar Office, Palladam, to execute the sale deed on 24.11.2003 and they were informed that the purchaser/plaintiff will be ready with the balance sale consideration and the sale document at the Sub Registrar Office, Palladam. The vendors/defendants did not turn up. Hence, the suit for specific performance to execute the sale deed or in alternate, to repay the advance money of Rs.8,00,000/- with 24% interest.
3. The first defendant Duraisamy died pending suit leaving behind the other defendants 2 to 4 as his legal heirs. The second defendant filed written statement. According to his written statement, they never entered in an agreement with the intention to sell the suit property and the document was not executed to sell the property. The defendants 1 and 2 were indebted to State Bank of India, Pongalur Branch. To clear the debt, they approached https://www.mhc.tn.gov.in/judis/ 4 A.S.No.519 of 2006 the plaintiff for financial assistance. When the plaintiff insisted for a security to advance loan, the defendants came forward to mortgage the suit property. However, to avoid heavy stamp duty, a deed of agreement for sale came to be executed and registered with an understanding that the loan will be cleared within 11 months. The plaintiff, after deducting interest at the rate of 30% for four months, paid only a sum of Rs.6,15,000/- in installments on various dates between 27.02.2003 and 22.04.2003. He did not pay the advance money on a single day. From the money received from the plaintiff, the defendants settled the bank loan on 20.03.2003. The bank officials, though promised to sanction new loan for an higher amount after clearing the existing loan, did not advance fresh loan. Thereafter, the defendants repaid a sum of Rs.7,58,375/- by cash and also gave two bullocks. But the plaintiff informed the defendant that still a sum of Rs.41,625/- due and payable and only on payment of the said amount, he will return the document to the defendants. On 16.05.2003, when the defendant again met the plaintiff, the plaintiff gave a statement of accounts. As per this statement of account out of Rs.41,625/-, after Rs.20,000/- paid on 09.05.2003, the plaintiff claimed a further sum of Rs.21,625/-. The request of the defendant to waive the said amount was declined. Infuriated, https://www.mhc.tn.gov.in/judis/ 5 A.S.No.519 of 2006 the plaintiff with intention to pressurize the defendant to part away huge money, the suit has been laid by misusing the document executed with intention to be a security for the loan transaction.
4.The fourth defendant filed written statement, which was adopted by the third defendant, wherein they have stated that they have no right in the suit property and they signed the agreement believing to be the guarantors for the loan availed by the defendants 1 and 2. The first defendant is a deaf person and he cannot understand anything and the suit has been filed to pressurize the second defendant and make unlawful enrichment.
5.Based on the above pleadings, the trial court formulated the following substantial questions of law:-
a) Whether the plaintiff is entitled for the relief of specific performance against the defendants?
b) Whether the suit is maintainable?
c) What other reliefs?
https://www.mhc.tn.gov.in/judis/ 6 A.S.No.519 of 2006
6.Before the trial court, three witnesses were examined on behalf of the plaintiff. Six exhibits were marked as Exs.A1 to A6. On the side of the defendants, 6 witnesses were examined and 4 exhibits were marked.
7.The trial court, after appreciating the evidence held that the sale agreement Ex.A1 dated 27.02.2003 is valid and enforceable. The defendants shall receive the balance sale consideration of Rs.2,00,000/- and execute the sale deed in favour of his nominee failing which the court shall execute the sale deed on behalf of the defendant. The trial court fixed 19.12.2005 as the last date to deposit the remaining sale consideration of Rs.2,00,000/- failing which the defendant shall repay the advance amount of Rs.8,00,000/- with 9 % interest from 27.02.2003 till the date of decree and thereafter, with interest at 6%.
8.The said judgment is assailed by the defendants in this first appeal.
9.According to the learned counsel appearing for the defendants, who are the appellants herein, the trial court failed to properly appreciate the https://www.mhc.tn.gov.in/judis/ 7 A.S.No.519 of 2006 evidence let in by the defendants. Ex.A1 was executed by the defendants not with intention to sell the property. The appellants 2 and 3 are not the owners of the property. However, they were asked to sign the document, as it was executed only as a security for the loan availed to clear the bank debt. The trial court failed to note that after paying 80% of the sale consideration, there is no need to give 9 months time to pay the balance 20%. The relationship between the parties was only creditor and debtor and not that of the vendor and vendee. This fact has been clearly proved through Ex.B1 to Ex.B4 particularly, Ex.B4, statement of account given by the plaintiff indicates that the loan amount received from the plaintiff substantially repaid and there was a paltry sum of Rs.21,625/- alone is due, even according to the plaintiff. The inclusion of the appellants 2 and 3 who have no right in the suit property would only lead to the conclusion that the transaction is only a loan transaction and not an agreement of sale of the suit property.
10.Learned counsel appearing for the respondents/plaintiff submitted that the sale agreement is a duly registered document and after receiving substantial portion of the sale consideration, the defendants cleared their https://www.mhc.tn.gov.in/judis/ 8 A.S.No.519 of 2006 bank loan, which is evident from their own bank statement marked as Exs.B1 to B3. Ex.B4, the hand written statement of account has no evidentiary, value, since neither the author of the document nor authenticity of the document being proved by the defendants. The trial court rightly held that the defense taken by the defendants that the loan amount was repaid as per Ex.B4 not proved and there is no evidence to show that the defendants had enough resource to repay the loan amount. The bank loan was admittedly discharged from the money received from the plaintiff. While so, the oral evidence contrary to the documentary evidence is inadmissible as per Section 91 of the Indian Evidence Act. Though the defendants have pleaded that the property worth more than Rs.50 lakhs, there is no evidence to prove the same. Hence, the trial court has rightly held against the defendants and there is no merit in the appeal. In support of his argument, the learned counsel for the respondent relied on the following judgments:
i) 2009 (6) CTC 301, T.G.Pongiannan vs. K.M.Natarajan and another;
ii)2020(3) LW 693, Madhukar Nivrutti Jagtap and others vs. Pramilabai Chandulal.
11.The point for determination is that whether the trial court finding https://www.mhc.tn.gov.in/judis/ 9 A.S.No.519 of 2006 that Ex.A1 is a valid document and enforceable, is based on acceptable the evidence acceptable.
12.The perusal of Ex.A1, which is a registered deed indicates that the defendants have agreed to sell the property for consideration of Rs.10,00,000/. Receipt of Rs.8,00,000/- and 9 months time to pay the balance sale consideration of Rs.2,00,000/- is found in the recital of Ex.A1. While the registered deed describes the document as agreement for sale, the defendants had put forth the defense that it was executed only as a security for the loan availed and the loan was also substantially repaid by 09.05.2003. It was a short term loan to clear the state bank of India debt availed by the first defendant deceased Duraisamy and his son, the second defendant Palanichamy.
13.From Exs.B1 to B3, it is proved that the first defendant, Duraisamy Gounder and the second defendant, Palanichamy had borrowed agricultural loan on 27.10.1999 and as a collateral security, had created a equitable mortgage of suit property measuring an extent of 15.27 acres. They have defaulted to repay the loan. As on 11.02.2003, there was a due to https://www.mhc.tn.gov.in/judis/ 10 A.S.No.519 of 2006 the tune of Rs.2,04,751/-. Hence, notice was caused to them by the State Bank of India, Pongalur through their lawyer and admittedly to clear this loan, the defendants have received money from the plaintiff and had been utilised by them. From Ex.B3, we find that the loan amount was closed on 16.04.2003, after making payments in installments. If it was a loan transaction to clear the debt accrued in SBI, Pongalur, then the defendants should have borrowed only around 2 lakhs payable to SBI and not Rs.8 lakhs.
14. It is the case of the defendants that the plaintiff paid Rs.6,15,000/- in 7 installments from the month of February to April of the year 2003 and the same was utilised to clear the loan by April 2003. Thereafter, the loan amount was repaid to the plaintiff by May 2003. To prove the same, the statement of account alleged to have been given by the plaintiff is marked as Ex.B4. Learned counsel for the appellants/defendants heavily harp on this document to emphasize that after paying Rs.20,000/- on 09.05.2003, there was only Rs.20,625/- due and payable to the plaintiff. This document being an unsigned document and not the statement of account kept in the regular course of business has no evidentiary value. https://www.mhc.tn.gov.in/judis/ 11 A.S.No.519 of 2006 When there is a clear evidence that the defendants have received Rs.8,00,000/- and executed a registered document Ex.A1, neither Ex.B4 nor the oral evidence of the interested witness viz., D.W.1, D.W.3 and D.W.6 contrary to the written document is admissible.
15. The trial Court after cumulative assessment of the evidence has held that the defendants 1 and 2 had availed loan from the State Bank of India, Pongalur and were not able to discharge the loan. After receipt of the notice Ex.D1 dated 12.02.2003 from the Bank, the defendants had decided to sell the property to the plaintiff for consideration of Rs.10,00,000/- and had received Rs.8,00,000/-. After clearing loan and releasing the property which was subject to the equitable mortgage with the Bank, the defendants have turned back and denied the due execution of the sale agreement and want to deprive the plaintiff the benefit of the registered sale agreement. They have not come forward to repay the money but created the document Ex.B4 to show as if they substantially repaid the money received from the plaintiff. The trial court holding that Ex.A1 agreement duly proved through P.W.2 and P.W.3, who are the attesting witnesses for the sale agreement, allowed the suit.
https://www.mhc.tn.gov.in/judis/ 12 A.S.No.519 of 2006
16.The learned counsel for the appellants/defendants submitted that as per the direction of the trial court, the balance sale consideration of Rs.2,00,000/- was deposited by the defendants within the time prescribed by the trial court and therefore, they are entitled for execution of the sale deed. Pending appeal, the respondent/purchaser died leaving behind the respondents 2 to 5 as his legal representatives. They have entered into the shoes of the decree holder/plaintiff and therefore, this Court on considering the evidence holds that there is no merit in the appeal and liable to be dismissed.
17.Accordingly, the appeal is dismissed. The judgment and decree of the trial court is confirmed. No order as to costs.
24.03.2021 Index :Yes/No vri To https://www.mhc.tn.gov.in/judis/ 13 A.S.No.519 of 2006 The Additional District Judge, Fast Track Court No.V, Coimbatore.
https://www.mhc.tn.gov.in/judis/ 14 A.S.No.519 of 2006 DR.G.JAYACHANDRAN,J.
VRI PRE DELIVERY JUDGMENT IN A.S.NO.519 of 2006 24.03.2021 https://www.mhc.tn.gov.in/judis/