Madras High Court
P.Subramanian vs P.Sundaram on 13 December, 2018
Author: P.T.Asha
Bench: P.T.Asha
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 13.12.2018
Coram
The Honourable Ms.Justice P.T.ASHA
S.A.No.801 of 2018
P.Subramanian
...Appellant
Versus
1.P.Sundaram
2.S.Gandhimathi
3.S.Eswaran
4.S.Sathishkumar
5.S.Vinodkumar
6.Lakshmi
7.S.Bakkiam
8.E.Boopathy
9.Sivakumar
...Respondents
This Second Appeal is filed under Section 100 of C.P.C
praying to set aside the judgment and decree in A.S.No.66 of
2014, dated 24.11.2015 on the file of I Additional District Court,
Salem, confirming the decree and judgment in O.S.No.66 of 2011
on the file of Sub Court, Sankari dated 23.07.2014.
For Appellant : Mr.A.Sivaji
http://www.judis.nic.in
2
JUDGMENT
The above Second Appeal arises against the judgment and decree passed by the learned I Additional District Judge, Salem in A.S.No.66 of 2014 dated 24.11.2015, in and by which the learned Judge had confirmed the judgment and decree passed by the learned Subordinate Judge, Sankari in O.S.No.66 of 2011 dated 23.07.2014.
2.1. The plaintiff is the appellant before this Court. The parties are referred to in the same array as in the suit. The brief facts which are essential for disposing of the above Second Appeal are narrated hereinbelow:
The case of the plaintiff is that the first defendant had executed an Agreement of Sale in favour of the plaintiff on 11.03.2009 and the total consideration was fixed at Rs.4,75,000/-. On the date of the agreement, the plaintiff had paid Rs.3,50,000/- as advance and the balance amount was payable within a period of 1 year. The plaintiff would submit that right from the date of the execution of the sale deed he has been ready and willing to pay the balance sale price in time, however, http://www.judis.nic.in 3 to his utter shock and surprise, on 14.09.2009, the first defendant had issued a notice to the plaintiff in which the first defendant had stated that he had borrowed a sum of Rs.3,50,000/- from the plaintiff and for security the plaintiff had obtained a mortgage deed. In the notice, the first defendant would also contend that he had sold his property to discharge the mortgage deed. The second defendant is the wife of the first defendant and defendants 3 to 5 are his children, defendants 6 & 7 are his sisters and the eighth defendant is his brother-in-law while the ninth defendant was his close friend. On 25.06.2009, defendants 3 to 5 had sold a vacant land of 1,200 Sq.ft to the eighth defendant and once again, by way of a Sale Deed dated 15.07.2009, they had sold a further extent of 0.20 cents to the eighth defendant. Likewise, on 26.06.2009, the first defendant had sold 0.25 cents to the ninth defendant.
2.2. On 18.02.2010, the plaintiff had issued an Advocate's Notice to the first defendant calling upon him to execute the sale deed. Further, on 15.03.2010, the first defendant had issued a Reply Notice to the plaintiff to which the plaintiff had issued a http://www.judis.nic.in 4 Rejoinder dated 16.07.2010. Therefore, left with no other alternative, the plaintiff was constrained to file the suit for following reliefs:
"(a) directing the defendants to execute the sale deed in favour of the plaintiff after receiving the balance sale price within the time to be fixed by the Court as per sale agreement;
(b) and if the defendants fail to do so the Court may be pleased to execute and register the sale deed in favour of the plaintiff at their cost on behalf of the defendants by the Court and deliver possession of the same relating to the suit property;
(c) Awarding the costs of the suit to the plaintiff."
3. The ninth defendant had filed a written statement which was adopted by the first defendant in which they had contended that the sum of Rs.3,50,000/- was borrowed by the first defendant and it would not towards advance of sale consideration since the first defendant did not intend to sell the property to the plaintiff. It is their further case that on 12.09.2009, when the first defendant met the plaintiff to discharge the loan borrowed together with interest, the plaintiff demanded a higher and usurious interest. Therefore, the first defendant had issued a http://www.judis.nic.in 5 Notice dated 14.09.2009. This was followed by another Notice dated 24.09.2009 issued by the first defendant to the plaintiff seeking redemption of mortgage deed. Though the two notices were received by the plaintiff, the plaintiff did not care to send a reply for the same and on the contrary, the plaintiff had issued a Notice dated 18.02.2010 seeking a specific performance of an alleged agreement of sale.
4. After a detailed enquiry, the trial Court (Sub Court, Sankari) had dismissed the suit. Challenging the said judgment and decree, the plaintiff had filed A.S.No.66 of 2014 on the file of the I Additional District Court, Salem. The learned Additional District Judge had also confirmed the finding of the trial Court and dismissed the Appeal. Challenging the same, the plaintiff is before this Court.
5. Mr.A.Sivaji, learned counsel appearing for the appellant would submit that the plaintiff had proved the execution of the agreement of Sale Deed dated 11.03.2009 and the fact that right from the date of the execution of the sale deed, the plaintiff was http://www.judis.nic.in 6 ready and willing to pay the balance sale price in time and both the Courts below have therefore fallen into error in dismissing the suit.
6. Heard the counsel for appellant and perused the records.
7. It is seen from the records, that on 14.09.2009, within a period of six months from the date of execution of the agreement of sale deed, the first defendant had issued a Notice to the plaintiff informing that he was ready to repay the amount borrowed by him for which according to him he had executed a mortgage deed. To this notice, there was a profound silence on the side of the plaintiff. On the contrary, the plaintiff issued a legal notice just before the close of the period given in the alleged agreement of sale calling upon the first defendant to execute the sale deed. This notice does not make any mention about the Notice dated 14.09.2009. This clearly shows the conduct of the plaintiff in poor light. It also highlights the fact that the plaintiff was not ready and willing to proceed with the contract and therefore, this Court is inclined to believe the case http://www.judis.nic.in 7 of the first defendant that the contract he had entered into with the plaintiff was only a loan transaction. This view is strengthened by the evidences of D.Ws.2 & 3 which would support the case of the first defendant and state that it was only the mortgage deed that the first defendant had executed with the plaintiff and not the sale deed.
8. The Courts below have rightly analyzed the evidence on record and no fault can be found in the same. Hence, this Second Appeal is dismissed as lacking any substantial question of law much less a substantial question of law and the judgment and decree passed by the Courts below is confirmed. However, there shall be no order as to costs.
13.12.2018 mrr Index : Yes/No http://www.judis.nic.in 8 P.T.ASHA, J., mrr To
1.The I Additional District Court, Salem.
2.The Sub Court, Sankari.
S.A.No.801 of 2018
13.12.2018 http://www.judis.nic.in 9 http://www.judis.nic.in