Madras High Court
T.P.Kandasamy vs Vemba Gounder on 7 December, 2016
Author: T.Ravindran
Bench: T.Ravindran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 24.10.2016
PRONOUNCED ON : 07 .12.2016
CORAM
THE HONOURABLE MR. JUSTICE T.RAVINDRAN
S. A.Nos.209 & 210 of 2011
and 285 of 2013
S.A.Nos.209 of 2011 & 285 of 2013
1. T.P.Kandasamy
2. Jayaprakash
3.Silambarasan ... Appellants
Vs.
1.Vemba Gounder
2.Ammasi ... Respondents 1 & 2
in both second appeals
3.The Commissioner,
Kumarapalayam Township,
Thiruchengode Taluk,
Namakkal District.
4. The Assistant Engineer (O& M)
Tamil Nadu Electricity Board,
Kumarapalayam (North)
Thiruchengode Taluk,
Namakkal District.
5. The Superintending Engineer (O&M)
Tamil Nadu Electricity Board,
Mettur Dam 2. .. Respondents 3 to 5
in S.A.No.209 of 2011
S.A.No.210 of 2011
T.P.Kandasamy ... Appellant
Vs.
Ammasi ... Respondent
Prayer in S.A.No.209 of 2011 : Second Appeal is filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 30.04.2009 passed in A.S.No.85 of 2008 by the Subordinate Judge at Thiruchengode, (A.S.No.106 of 2006 on the file of Sub Court, Namakkal) by setting aside the judgment and decree dated 30.11.2005 passed in O.S.No.245 of 1997 on the file of the District Munsif at Thiruchengode.
Prayer in S.A.No.285 of 2011 : Second Appeal is filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 21.04.2011 passed in A.S.No.41 of 2009 by the Additional District Judge, Fast Track Court, Namakkal in confirming the judgment and decree dated 30.04.2009 in O.S.No.549 of 2008 on the file of Sub Court, Thiruchengode.
Prayer in S.A.No.210 of 2011 : Second Appeal is filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 30.04.2009 passed in A.S.No.93 of 2008 by the Subordinate Judge at Thiruchengode (A.S.No.142 of 2006 on the file of Sub Court, Namakkal) by setting aside the judment and decree dated 30.11.2005 passed in O.S.No.126 of 2004 on the file of the District Munsif at Thiruchengode (O.S.No.268 of 2000 Sub Court, Sangagiri).
For Appellants in : Mr.N.Jayabalan
all the second appeals
For Respondents Nos.1 & 2 : Mr.M.R.Sivakumar
in S.A.Nos.209/11 &
285/2013
For Respondent No.3 : Mr.P.P.Shanmugasundaram
in S.A.Nos.209/11
For Respondent No.4 & 5 : No appearance
COMMON JUDGMENT
S.A.No.210 of 2011 Challenge in this second appeal is made by the plaintiff against the judgment and decree dated 30.04.2009 passed in A.S.No.93 of 2008 on the file of the Subordinate Court, Thiruchengodu (A.S.No.142 of 2006 on the file of Sub Court, Namakkal) by setting aside the judgment and decree dated 30.11.2005 passed in O.S.No.126 of 2004 on the file of the District Munsif, Thiruchengodu (O.S.No.268 of 2000 on the file of the Sub Court, Sangagiri).
2. The suit has been laid for specific performance or in alternative for refund of advance amount.
3. The case of the plaintiff, in brief, is as follows:
The defendant is the owner of the suit property. On 27.09.1995, both the plaintiff and the defendant entered into an agreement of sale in respect of the suit property, whereby, the defendant agreed to sell the suit property to the plaintiff for Rs.55,000/- and pursuant to the sale agreement, the defendant received a sum of Rs.50,000/- from the plaintiff as advance towards the sale price on the date of the sale agreement. The balance amount of sale was agreed to be paid within a period of two years from the date of the sale agreement. The said sale agreement was registered before the Sub Registrar Office, Komarapalayam. From the inception of the sale agreement, the plaintiff has always been ready and willing to perform his part of contract and the plaintiff is also having sound financial capacity to perform his part of contract. However, despite the requests of the plaintiff to the defendant to receive the balance amount and execute the sale deed in favour of the plaintiff, the defendant had been avoiding the same by giving false excuses.
4. On 23.09.1997, the plaintiff requested the defendant to come to the Sub Registrar Office, Komarapalayam and execute the sale deed after receiving the balance amount of sale. However, the defendant did not turn up. On 23.09.1997, though the plaintiff was waiting in the Sub Registrar Office, Komarapalayam, the defendant did not turn up to complete the sale agreement. On 29.09.1997, the plaintiff sent a lawyer's notice calling upon the defendant to fix a date for the execution of the sale deed, after receiving the balance amount of sale. The defendant sent a reply on 07.10.1997 containing false allegations. Time is the essence of the contract. Hence, the suit.
5. The averments contained in the written statement, in brief, is as follows:
The suit is not maintainable either in law or on facts. After denying all the averments contained in the plaint, the defendant has pleaded that she and her husband Vemba Gounder have borrowed a sum of Rs.27,000/- from one Ramasamy and executed a mortgage deed in his favour. Pursuant to the mortgage deed, in order to discharge the above said amount, they had approached the plaintiff and the plaintiff promised to give a sum of Rs.30,000/- to the defendant and her husband and accordingly, borrowed the said sum from the plaintiff on 10.01.1994 and discharged the mortgage debt of Ramasamy. At that time, the plaintiff compelled and insisted the defendant and her husband to execute a security deed for the due repayment of loan amount and on the assurance of the plaintiff, that he will execute necessary deed cancelling the same on the discharge of the loan, they have signed the document represented to be a security deed in favour of the plaintiff.
6. The defendant and her husband wanted to purchase a Tempo and again, therefore, they approached the plaintiff for loan and accordingly, the defendant and her husband borrowed a sum of Rs.50,000/- in the year 1995, September, from the plaintiff and again the plaintiff insisted and compelled the defendant and her husband, to execute another security deed and they signed the document represented to be a security deed and further, the defendant and her husband also affixed LTI in two blank pronote forms, two white papers and four non-judicial stamp papers and the plaintiff had also taken the original sale deeds from the defendant and her husband. The defendant had executed the above said deeds believing them as security deeds for the above said loan amount.
7. While so, on 07.11.1996, the plaintiff issued a false notice, as if, the defendant and her husband had executed an agreement of sale and inasmuch as the transaction between the defendant and her husband and the plaintiff was not an agreement of sale and it was only a loan transaction, the plaintiff, having misused the illiteracy of the defendant and her husband, had taken their signature and LTI in various deeds promising them to be security deeds for repayment of the loan amounts, in such circumstances, the sale agreement is void and unenforceable in law. The plaintiff has obtained the deeds from the defendant and her husband on false representation, compulsion and thereby committed breach of trust.
8. On verification of the records, the defendant found that the plaintiff had obtained an agreement of sale on 10.01.1994 and a power of attorney alleged to have been executed by the defendant and her husband on 23.11.1994 and also, another agreement of sale alleged to have been executed by the defendant on 27.09.1995 in respect of the suit property. Immediately, the defendant and her husband issued a notice to the plaintiff cancelling the power of attorney dated 23.11.1994 and again, issued another notice on 20.12.1996 calling upon the plaintiff to hand over the original sale deeds, blank pronote forms, white papers and four non-judicial stamp papers, on which, the plaintiff had obtained the signature of the defendant and her husband. The plaintiff, taking advantage of the above said deeds, seems to have created the sale agreement and further, it is also found that the plaintiff has created a document in the name of his wife Chandira Gandhi on 06.12.1996, as if he has conveyed the property to his wife based upon the alleged power of attorney said to have been executed by the defendant and her husband. The above said sale deed alleged to have been executed by the plaintiff in favour of his wife is not binding upon the defendant.
9. The defendant sent a reply notice dated 28.11.1996 to the notice sent by the plaintiff repudiating the case of the plaintiff, based on the power of attorney and the invalid sale deed created by the plaintiff. The plaintiff also attempted to interfere with the possession and enjoyment of the property of the defendant and her husband by disconnecting water supply and electricity connection and therefore, the defendant and her husband have filed a suit in O.S.No.245 of 1997 against the plaintiff and his wife, Komarapalayam Municipality and Electricity Board for various reliefs. The sale agreement is invalid in law and there has been no consensus ad idem between the plaintiff and the defendant to convey the suit property under the sale agreement. The plaintiff, in order to grab the property of the defendant has illegally, without any cause of action, filed the suit and hence, the suit is liable to be dismissed.
10. In support of the plaintiff's case, PWs 1 to 3 were examined and Exs.A1 to 4 were marked. On the side of the defendants, DWs 1 to 5 were examined and Exs.D1 to 12 were marked. Exs.X1 and 3 were marked.
11. On a consideration of the oral and documentary evidence adduced by the respective parties, the trial Court was pleased to decline the relief of specific performance sought for by the plaintiff. However in the alternative granted the relief of refund of advance amount as prayed for by the plaintiff. Aggrieved by the judgement and decree of the trial court on the above aspects, the defendant preferred the first appeal and the first appellate court, on a reappraisal of the evidence, allowed the appeal and set aside the judgement and decree of the trial court, even as regards the relief of refund of advance amount granted in favour of the plaintiff. As against the same, the plaintiff has come forward with the present appeal.
S.A.No.209 of 2011The defendants 1, 6 and 7 have impugned the judgment and decree dated 30.04.2009 made in A.S.No.85 of 2008 on the file of the Subordinate court, Thiruchengode (A.S.No.106 of 2006 on the file of the Sub Court, Namakkal) by setting aside the judgment and decree dated 30.11.2005 made in O.S.No.245 of 1997 on the file of the District Munsif, Thiruchengodu.
12. The suit has been laid by the plaintiffs for permanent injunction.
13.The avernments contained in the plaint are briefly stated as follows:
The suit properties belonged to the plaintiffs. The plaintiffs have borrowed a sum of Rs.27,000/- from one Ramasamy under a mortgage and to discharge the said mortgage, they approached the first defendant for a loan of Rs.30,000/- on 10.01.1994 and accordingly, received the said amount from the first defendant and at that time, on the insistence and compulsion of the first defendant, they had executed a security deed in favour of the first defendant for due repayment of the loan amount. Again, the plaintiffs had wanted to purchase a Tempo, they therefore approached the first defendant and borrowed a sum of Rs.50,000/- from the first defendant and on his insistence and compulsion, they had executed security deed in favour of the first defendant and that apart, the first defendant had also obtained the LTI of the plaintiff in two blank promissory notes, two white papers and four non-judicial stamp papers and had also taken the original sale deeds of the plaintiffs. The first defendant had issued a notice alleging that the plaintiffs have executed an agreement of sale and calling upon them to execute the sale, after receiving the balance sale consideration. After the same, on verification, it was found that there was no agreement of sale between the plaintiffs and the first defendant and only a loan transaction was entered into between the plaintiffs and the first defendant. The plaintiffs are illiterate and innocent and the sale deed alleged in the notice of the first defendant is invalid in law and unenforceable. The first defendant had obtained the deeds from the plaintiffs by playing fraud and on misrepresentation and compulsion. Further, the first defendant issued a notice on 07.11.2006 and to the same, the plaintiffs sent a suitable legal notice on 28.11.1996 and also, issued another notice on 01.12.1996 calling upon the first defendant to hand over the alleged documents claiming that the first defendant had obtained deeds from the plaintiffs by playing fraud and misrepresentation. The first defendant, thereafter, seems to have executed a sale deed in favour of his wife viz., the second defendant and the plaintiffs, on verification of the records in the Sub Registrar Office, Komarapalayam, came to know that based upon the alleged agreement of sale and alleged power of attorney said to have been executed by the plaintiffs and other documents, on which, the plaintiffs LTI were obtained, the first defendant seems to have created sale deed in favour of his wife in respect of the properties belonging to the plaintiffs and also, attempting to change the property tax, house tax register in the name of his wife. The defendants are not entitled to do so. The alleged sale deed is not valid in law and not binding on the plaintiffs. During the pendency of the suit, the second defendant died leaving behind the defendants 1, 6 and 7 as her legal heirs. Hence, the plaintiffs have been necessitated to file the suit against the defendants for necessary reliefs.
14. The averments contained in the written statement are briefly stated as follows:
The suit is not maintainable either in law or on facts. The defendants have denied all the allegations contained in the plaint. The defendants 1 and 2 contended that the second defendant has become absolute owner of the suit property as per the registered sale deed dated 06.12.1996 executed by the first defendant based upon the power of attorney dated 23.11.1994 executed by the plaintiffs in favour of the first defendant giving right to deal with the suit property in all manner. Accordingly, after the execution of the above said sale deed, the plaintiffs have no title to the suit property. The plaintiffs have also filed another suit seeking for the relief of declaration. The second suit is barred under Order 2 Rule 3 C.P.C. The second defendant is entitled to change the electricity service connection and property tax in her name in respect of the suit property. There is no cause of action for the suit and the suit is liable to be dismissed.
15. In support of the plaintiffs case, PWs 1 to 3 were examined and Exs.A1 to 37 were marked. On the side of the defendants, DWs1 and 2 were examined and Exs.1 and 2 were marked.
16. On a consideration of the oral and documentary evidence adduced by the respective parties, the trial Court, considering the fact that the plaintiffs have sought for the relief of declaration and permanent injunction in O.S.No.758 of 2002 on the file of the Sub Court, Namakkal and filed the said suit in forma pauperis, dismissed the suit filed by the plaintiffs. The plaintiffs preferred the first appeal and the first appellate court was pleased to reverse the judgement and decree of the trial Court and decreed the suit in favour of the plaintiffs. As against which, the present second appeal preferred by the appellants.
S.A.No.285 of 2013The defendants have impugned the judgment and decree dated 21.04.2011 passed in A.S.No.41 of 2009 on the file of the Additional District Court, Fast Track Court, Namakkal, confirming the judgment and decree dated 30.04.2009 passed in O.S.No.549 of 2008 on the file of the Sub Court, Thiruchengodu, in this second appeal.
17. The suit has been laid by the plaintiffs as in forma pauperis for declaration and permanent injunction.
18.The avernments contained in the plaint are briefly stated as follows:
The suit properties belonged to the plaintiffs. The plaintiffs have borrowed a sum of Rs.27,000/- from one Ramasamy under a mortgage and to discharge the said mortgage, they approached the first defendant for a loan of Rs.30,000/- on 10.01.1994 and accordingly, received the said amount from the first defendant and at that time, on the insistence and compulsion of the first defendant, they had executed a security deed in favour of the first defendant for due repayment of the loan amount. Again, the plaintiffs had wanted to purchase a Tempo, they therefore approached the first defendant and borrowed a sum of Rs.50,000/- from the first defendant and on his insistence and compulsion, they had executed security deed in favour of the first defendant and that apart, the first defendant had also obtained the LTI of the plaintiff in two blank promissory notes, two white papers and four non-judicial stamp papers and had also taken the original sale deeds of the plaintiffs. The first defendant had issued a notice alleging that the plaintiffs have executed an agreement of sale and calling upon them to execute the sale, after receiving the balance sale consideration. After the same, on verification, it was found that there was no agreement of sale between the plaintiffs and the first defendant and only a loan transaction was entered into between the plaintiffs and the first defendant. The plaintiffs are illiterate and innocent and the sale deed alleged in the notice of the first defendant is invalid in law and unenforceable. The first defendant had obtained the deeds from the plaintiffs by playing fraud and on misrepresentation and compulsion. Further, the first defendant issued a notice on 07.11.2006 and to the same, the plaintiffs sent a suitable legal notice on 28.11.1996 and also, issued another notice on 01.12.1996 calling upon the first defendant to hand over the alleged documents claiming that the first defendant had obtained deeds from the plaintiffs by playing fraud and misrepresentation. The first defendant, thereafter, seems to have executed a sale deed in favour of his wife viz., the second defendant and the plaintiffs, on verification of the records in the Sub Registrar Office, Komarapalayam, came to know that based upon the alleged agreement of sale and alleged power of attorney said to have been executed by the plaintiffs and other documents, on which, the plaintiffs LTI were obtained, the first defendant seems to have created sale deed in favour of his wife in respect of the properties belonging to the plaintiffs and also, attempting to change the property tax, house tax register in the name of his wife. The defendants are not entitled to do so. The alleged sale deed is not valid in law and not binding on the plaintiffs. During the pendency of the suit, the second defendant died leaving behind the defendants 1, 6 and 7 as her legal heirs. Hence, the plaintiffs have been necessitated to file the suit against the defendants for necessary reliefs.
19. The averments contained in the written statement are briefly stated as follows:
The suit is not maintainable either in law or on facts. The defendants have denied all the allegations contained in the plaint. The defendants 1 and 2 contended that the second defendant has become absolute owner of the suit property as per the registered sale deed dated 06.12.1996 executed by the first defendant based upon the power of attorney dated 23.11.1994 executed by the plaintiffs in favour of the first defendant giving right to deal with the suit property in all manner. Accordingly, after the execution of the above said sale deed, the plaintiffs have no title to the suit property. The plaintiffs have also filed another suit seeking for the relief of declaration. The second defendant is entitled to change the electricity service connection and property tax in her name in respect of the suit property. There is no cause of action for the suit and the suit is liable to be dismissed.
20. In support of the plaintiffs' case PWs1 to 5 were examined and Exs.A1 to 48 were marked. On the side of the defendants, DWs1 and 2 were examined and Exs.B1 has been marked. Exs.X1 to 4 were also marked.
21. On the basis of the oral and documentary evidence adduced by the respective parties, the trial Court was pleased to decree the suit as prayed for. Aggrieved over the same, the defendants preferred the first appeal and the first appellate court was also pleased to confirm the judgement and decree of the trial Court and dismissed the first appeal, as against which, the defendants have come forward with the present second appeal.
22. The parties are referred to in these three second appeals as per their ranking in the trial Court, for the sake of convenience.
S.A.No.210 of 2011The suit has been laid for specific performance and also, for refund of the advance amount as an alternative relief.
23. The trial Court, on a consideration of the oral and documentary evidence adduced by the respective parties, has found that the plaintiff is not entitled to seek the relief of specific performance. However, granted the relief of return of the advance amount as prayed for by the plaintiff as an alternative relief. Challenging the same, the defendant preferred the first appeal. The first appellate court has reversed the above findings of the trial court and dismissed the suit of the plaintiff in its entirety. Challenging the same, the second appeal No.210 of 2011 has been preferred by the plaintiff.
24. As regards the findings of the courts below, rejecting the claim of the plaintiff for the relief of specific performance, the counsel for the appellant put forth no submission. Even the substantial question of law suggested in the second appeal pertain only to the question of the refund of advance amount.
25. It is vehemently argued by the appellant's counsel that inasmuch as the defendant has admitted the receipt of Rs.50,000/- from the plaintiff under a loan transaction and inasmuch as the plaintiff has also paid separate court fees for the alternative plea namely the refund of the advance amount, in equity at least, the first appellate court should not have reversed the findings of the trial court in granting the relief of refund of the advance amount and hence, the above findings of the first appellate court requires reversal and hence, he prayed for suitable orders.
26. The plaintiff has filed the suit for specific performance on the premise that the parties had consensus ad idem with reference to the sale agreement and accordingly, under the sale agreement, it is pleaded that the plaintiff has advanced Rs.50,000/- as advance of the sale price fixed by the parties and on that footing, the plaintiff has sought for the refund of the advance amount in case the main relief of specific performance is not accepted by the court.
27. Resisting the case of the plaintiff, the defence put forth by the defendant is that no sale agreement was entered into between the plaintiff and the defendant in respect of the suit property as put forth in the plaint and that the sale agreement pleaded is invalid and unenforceable in law and the further case of the defendant is that to discharge the mortgage debt and also for purchase of tempo, she and her husband had approached the plaintiff for loan and when the loan amount was given by the plainitff to them, the plaintiff insisted them to sign various documents alleging to be security documents for due discharge of the loan amount and believing his representation according to the defendant, she and her husband had executed various security documents and also, it is her case that the plaintiff had obtained their LTI in various papers viz., pronote, white papers and non judicial stamp papers etc., and it is further pleaded that the plaintiff has taken advantage of the illiteracy of the defendant and her husband and therefore, according to the defendant, the parties have no consensus ad idem with reference to the sale agreement in question and in such circumstances, the defendant has pleaded for the dismissal of the suit laid by the plaintiff in entirety.
28. As found below, on the basis of the evidence adduced by the parties concerned, the courts below have come to the conclusion that the plaintiff is not entitled to seek the main relief of the specific performance pleaded. However, as adverted to earlier, the trial court has granted the plaintiff the alternative relief. That decision of the trial court has been reversed by the first appellate court.
29. On a perusal of the evidence adduced by the respective parties in this matter, it could be seen that the courts below have correctly come to the conclusion that the parties had no meeting of minds in the execution of the sale agreement in question and therefore, it could be seen that the courts below on holding that the sale agreement pleaded by the plaintiff is invalid in law, rightly rejected the main relief of specific performance. That apart, it could also be seen that the courts below, on a proper appreciation of the evidence adduced by the respective parties have also come to the conclusion that the plaintiff has misused the alleged security deeds obtained by him from the defendant and her husband and making use of the same, they have found that the sale agreement, in question, had been fraudulently created by the plaintiff and therefore, it was found by the courts below that the defendant cannot maintain the suit on the basis of the suit sale agreement.
30. When it has been clearly found by the courts below that the sale agreement has not been entered into between the parties concerned in respect of the suit property and when they also found that only in respect of the loan transaction between the plaintiff and the defendant, the defendant and her husband have been made to execute certain documents on the footing that they are required for the due discharge of the loan amount, it could be seen that making use of the same, the plaintiff has created the sale agreement in question and also, it could be seen that the advance amount alleged to have been paid by the plaintiff to the defendant is not in pursuance of the sale agreement in question. However, it is under a separate transaction viz., the loan transaction entered into between the plaintiff and the defendant and her husband. Therefore, as found by the lower appellate court, there is nexus whatsoever between thealleged transaction pertaining to the suit sale agreement put fourth by the plaintiff and the loan transaction put forth by the defendant between her and her husband on the one hand and the plaintiff on the other hand. Therefore, it could be seen that those two transactions are entirely different and not connected with one another.
31. In the light of the above position, now it has to be seen whether in such circumstances, the plaintiff would also be entitled to seek the alternative relief of the return of the advance amount. The lower appellate court has rejected his plea. Now, the plaintiff has preferred this second appeal. As found earlier, the counsel for the appellant pleaded that on the basis of equity, the trial court should not have rejected the plaintiff's claim for the return of the advance amount as he had paid the court fees in respect of the same.
32. Per contra, it is argued by the respondent's counsel that without prejudice, he would contend that even assuming that the defendant and her husband are liable to pay any amount under the loan transaction, at the outset, the plaintiff should have instituted a separate suit against the defendant and her husband for the same and the plaintiff has erred in clubbing the cause of action for the loan transaction with this false suit for specific performance and therefore, he would state that as regards the cause of action for the loan transaction, the plaintiff's claim would be barred by limitation and viewed in that angle, according to him, no exception could be taken to the finding of the lower appellate court in rejecting the plea of the plaintiff for the alternative relief.
33. The argument put forth by the defendants counsel seems acceptable. Without adverting much on the above aspect, inasmuch as the above controversy has been set at rest by an authoritative pronouncement of this Court reported in 2015 (6) CTC 810 (V.P.Murugesan V. P.Shiek Mideen) it could be seen that the plaintiff would not be entitled to seek the return of the advance amount once it is found that the transaction pertains to a separate loan transaction and not connected with the alleged sale agreement transaction and it has been held that in such circumstances, no relief for refund could be given and for getting back the loan amount, the plaintiff should institute only separate proceedings against the defendants subject to the limitation period. With reference to the above aspect, it will be useful to refer to the following observation of the judge on the above aspect, which is reproduced below;
Specific Relief Act, 1963 (47 of 1963), Section 22 - Refund of Advance Money.
Finding of Court is that transaction was one of Loan and not Agreement to Sell No relief for refund in such can be given Separate proceedings to be instituted.
I do agree that this Court has got suo motu power to order for repayment of advance money paid under the Sale Agreement to the plaintiff even in the absence of any specific relief sought for in this respect. In my considered view that course is possible only in a case where the Court finds that there was a validly executed Sale Agreement, but, this Court declines to grant a decree for Specific Performance of contract. It is only in such event, instead of granting a Decree for Specific Performance, the Court could direct the Defendant to repay the advance money paid under the Sale Agreement. But, here in the instant case, as I have already pointed out there was no such Sale Agreement at all entered into between the parties. Ex.A1 was never intended to be performed. Therefore, the prayer for directing the Defendant to repay Rs.35,000/- that too with interest to the plaintiff is out of consideration. Since this Court concurs with the First Appellate Court that a sum of Rs.35,000/- was paid only as loan, it is always open for the plaintiff to recover the same by instituting appropriate proceedings, if he is so legally entitled to do, subject to the limitation period.
34. The above decision would squarely apply to the facts of the case at hand and in the light of the same, it could be seen that the plaintiff would not be entitled to recover the alleged advance amount based upon the impugned sale agreement and at the most, he could, if he is entitled to, get back the loan amount by instituting appropriate proceedings against the defendants subject to the question of the limitation.
35. The counsel for the respondent relied upon the decision reported in 2016 (5) CTC 862 (Syeda Rahimunnisa Vs.Malan Bi by L.Rs. And ors.). The principles of law outlined in the above said decisions are taken into consideration and followed as applicable to the facts and circumstances of the case at hand.
36. In view of the above reasons, it could be seen that no interference is called for with regard to the findings of the first appellate court on the question of refund of the advance amount.
S.A.Nos.209 of 2011 & 285 of 2013
37. The plaintiffs have instituted one suit against the contesting defendants as well as the Tamil Nadu Electricity Board and the Commissioner, Komarapalayam Township, Thiruchengodu Taluk seeking the relief of permanent injunction in O.S.No.245 of 1997. Similarly, the plaintiffs have also laid the suit against the contesting defendants seeking the relief of declaration with reference to the sale deed dated 06.12.1996 and consequential permanent injunction.
38. As adverted to earlier in the second appeal No.210 of 2011 when the plaintiffs approached the defendant T.P.Kandasamy for loan, he had obtained various security deeds on insistence and compulsion on the footing that they required for the due discharge of the loan amount and according to the plaintiffs making used of them, the defendant had created the sale agreement in question and also had created general power of attorney alleged to have been executed by the plaintiffs in his favour and based upon the alleged general power of attorney, he has also executed the sale deed in favour of his wife dated 6.12.1996 and inasmuch as based upon the above said fraudulent documents, the contesting defendants had attempted to interfere with the plaintiffs possession and enjoyment of the suit property, they had been necessitated to file the above suits against the contesting defendants and others.
39. Per contra, the contesting defendants have resisted the plaintiffs case on the footing that the plaintiffs have executed a general power of attorney in favour of T.P.Kandasamy, which is a true and valid document and based upon the same, T.P.kandasamy had alienated the suit property in favour of his wife and therefore, inasmuch as the sale deed dated 06.12.1996 is a true and valid document, the same cannot be challenged and it is binding on the plaintiffs and it is only the purchaser under the sale deed dated 06.12.1996, who is the owner of the suit property and therefore, the plaintiffs claim should be rejected.
40. On an appreciation of the evidence adduced by the parties concerned in this matter, both the courts below have found that the contesting defendants in particular T.P.Kandasamy had misused his position as money lender and based upon the security deeds obtained by him from the plaintiffs, he had created the alleged general power and based upon the same, had also created the sale deed in favour of his wife and further, he had created the agreement of sale alleged to have been executed in his favour by the plaintiff Ammasi. Accordingly, the courts below have also found that on coming to know of the above illegal and fraudulent documents created by the defendant T.P.Kandasamy, it could be seen that the plaintiffs have revoked the alleged general power by giving due notice to him and based upon the appreciation of the evidence adduced the courts below have found that the sale deed dated 6.12.1986 is in valid and no legal consequence would flow from the said document in favour of the contesting defendants and accordingly, granted the suitable reliefs to the plaintiff in the above suits. Challenging the same, the above two appeals have been preferred by the contesting defendants.
41. In so far as the above said contentious issues pertaining to the parties are concerned, it could be seen that the courts below, on a proper appreciation of the evidence adduced in the matter have correctly come to the conclusion that the contesting defendants have created various documents based upon the alleged security deeds obtained by the defendant T.P.Kandasamy from the plaintiffs and inasmuch as the general power of attorney alleged to have been executed in favour of T.P.Kandasamy had been revoked by the plaintiffs in accordance with law, it could be seen that they have held that the sale deed dated 06.12.1986 is an invalid document and the contesting defendants could not claim any title on the basis of the same in respect of the suit property. The counsel for the appellant did not point out any aspect to hold that the judgement and decree of the courts below are perverse on any aspect with reference to the findings arrived at by them while granting the suitable reliefs to the plaintiffs in the above suits.
42. Therefore, it is concluded that no substantial question of law is involved in these three second appeals.
In conclusion, I hold that sans any substantial question of law being involved in the above three appeals, I hold that all the second appeals are devoid of merits and accordingly, these second appeals are dismissed. No costs.
07.12.2016 Index : Yes/No Internet: Yes/No sms To
1. The Subordinate Court, Thiruchengode.
2. The District Munsif Court, Thiruchengode.
3.The Additional District Court, Fast Track Court, Namakkal.
T.RAVINDRAN,J.
sms Pre-delivery order in S. A.Nos.209 & 210 of 2011 and 285 of 2013 07.12.2016 http://www.judis.nic.in