Madras High Court
Karanam Venkata Subbaiah vs P.Rl. Thangavel Chettiar (Died) on 18 August, 2004
A.S.No.385 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON 06.02.2023
DELIVERED ON 15.06.2023
C O R A M:
THE HONOURABLE MR. JUSTICE S.S. SUNDAR
AND
THE HONOURABLE MR. JUSTICE A.A.NAKKIRAN
A.S. No.385 of 2015
1. Karanam Venkata Subbaiah
2. Rupineni Ramaniah
3. Tumati Venkataiah ...Appellants
Versus
1. P.RL. Thangavel Chettiar (Died)
2.Chettiar 3. Srinivasan @ Ega Raghav Chettiar
3.Srinivasan @ Ega Raghav Chettiar
4. N.P.Moorthy
5. N.P.Mohan (Died) 6. Babu @ Jalappa Naidu
7. Anuradha
8. M.Padmavathi 9. K.Santhanalakshmi
10.M.Senthilkumar
11.M.Kavitha
12.P.Kamala ...Respondents
Prayer: This Appeal suit has been filed, under Section 96 of CPC read
with Order 41 and 41A of CPC and Order IV of the Original Side Rules,
https://www.mhc.tn.gov.in/judis
1
A.S.No.385 of 2015
against the Judgement and Decree, dated, 16.04.2015, made in OS.No.2 of
2011, by the II Additional District Sessions Court, Vellore at Ranipet.
For Appellants : Mr.E.Senthil Kumar
For RR 1 to 3, 6 to 10 : Mr.S.Hemalatha
JUDGMENT
A.A.NAKKIRAN, J (1)The unsuccessful Plaintiffs in O.S.No.2 of 2011, on the file of the II Additional District Sessions Court, Vellore at Ranipet, have filed this Appeal Suit, against the Judgement and Decree, dated, 16.04.2015, made therein.
(2)The facts in brief, which are leading to filing of this appeal and necessary for disposal of the same, are as follows:-
(a) The Plaintiffs are the Appellants. The suit in O.S.No.96 of 2009, was originally filed, before the District Court at Vellore, by the Appellants against the Respondents 1 to 6 herein/ Respondents 1 to 6, seeking a judgement and decree, directing the Respondents 1 to 3, to execute a registered sale deed, after receiving the balance sale consideration from the Plaintiffs, along with the Respondents 4 and 5 https://www.mhc.tn.gov.in/judis 2 A.S.No.385 of 2015 or in the alternative, directing the Respondents 1 to 3 and 6 to refund the amount of Rs.30,00,000/- with interest at 18% p.a. and for permanent injunction and costs. Later, it was renumbered as O.S.No.2 of 2011 and taken on the file of the II Additional and District Sessions Court, Vellore at Ranipet.
(b) During the pendency of the suit, since the 1st Defendant died on
02.08.2010, the 7th Respondent herein was impleaded as the 7th Defendant, as his legal heir in the said suit, on 10.09.2014. The 5th Defendant also died on 30.10.2014 and hence, the Respondents 8 to 12 herein were brought on record as the Respondents 8 to 12, as the legal heirs of the 5th Defendant, on 24.11.2014. Subsequently, the plaint was amended, seeking a judgement and decree, directing the Respondents 1 to 3 and 7, to execute a registered sale deed, after receiving the balance sale consideration from the Plaintiffs, along with the Respondents 4 and 8 to 12 and deliver possession of the suit property to the Plaintiffs or in the alternative, directing the Respondents 1 to 3 and 6 and 7 to refund the amount of Rs.30,00,000/- with interest at 18% p.a. and for permanent injunction and costs.
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(c) The Schedule of properties is consisting of two items, measuring each 4.17 acres in TS.No.12 and 3.80 acres in TS.No.13, situated at Walajah Village, Vellore District. The case of the Plaintiffs, as per the plaint, is that the Respondents 1 to 3, who are co-sharers of the suit property. leased out the same on 25.02.1999, in favour of the 6th Defendant for a period of 21 years on rental basis and the lease period was upto the year 2020. The Respondents 1 to 3, nominating the 6th Defendant as their agent, offered to sell the suit property to the Plaintiffs. The Plaintiffs along with one C.Nageswara Rao jointly entered into a sale agreement, dated 18.08.2004 with the Respondents 1 to 3, for purchase of the suit property for a sale consideration of Rs.51,80,500/- and an earnest money deposit of Rs.20,00,000/- was paid.
(d) The Plaintiffs further stated that there are other essential clauses of contract stipulated in the sale agreement, viz. (1) on receipt of the balance sale consideration of Rs.31,80,500/- within a period of four months, the vendors shall put the purchasers in possession of the suit property so as to allow them to develop the property or (ii) on receipt of 50% of sale price, i.e. Rs.25,90.250/- within four months, the vendors shall execute a Power of Attorney in favour of the https://www.mhc.tn.gov.in/judis 4 A.S.No.385 of 2015 purchasers for development of the suit properties, (iii) the vendors thereafter shall receive the balance of 50% sale price within five months and put them in possession of the property and execute a registered sale deed and (iv) failure on the part of the purchasers entails in forfeiture of EMD, etc.
(e) It is stated by the Plaintiffs that since one of the purchasers, C.Nageswara Rao relinquished his interest in the purchase of the suit property, they alone got interest in the sale agreement in respect of the suit property and that on 15.12.2004, the Plaintiffs paid a further sum of Rs.10,00,000/- to the 6th Defendant, authorised by the vendors and the same was endorsed by him, thereby meaning that alternative condition of more than 50% of the sale price was received by the vendors. It is further stated by the Plaintiffs that in spite of several demands, the Respondents 1 to 3 failed to perform their part of the contract and that the period of five months time for payment of balance 50% and execution of registered sale deed pursuant to the sale agreement did not arise for computation of limitation under the Limitation Act and that a legal notice dated 13.12.2007 was issued by the Plaintiffs, calling upon the Respondents 1 to 3 and 6 to perform their part of the contract and that the 1st Defendant issued a reply, https://www.mhc.tn.gov.in/judis 5 A.S.No.385 of 2015 denying the execution of the suit sale agreement. It is further stated by the Plaintiffs that the Respondents 1 to 3 and 6 also jointly sent a reply notice, dated 03.01.2008, demanding a copy of the suit sale agreement and that another legal notice dated 21.01.2008 was sent and a reply notice dated 06.02.2008 was received, limiting instructions only from the 6th Defendant, claiming to have refunded a sum of Rs.30,00,000/- to the Plaintiffs. When the Plaintiffs met the 6th Defendant, he promised to settle the matter early. However, the Respondents 1 to 3 fraudulently sold major portion of the suit property on 01.09.2008 in favour of the Respondents 4 and 5 and hence, the Respondents 4 and 5 are also liable to answer the suit claim. It is stated by the Plaintiffs that they have been always ready and willing to perform their part of the contract, by demanding the Respondents 1 to 3 to fulfil their part of the contract, after receipt of 50% of the sale consideration and that when the Respondents 1 to 3 and 6 postponed the date to fulfil their part of the contract, the date for performance of contract for sale was also extended. It is contended by the Plaintiffs that refusal on the part of the Respondents 1 to 3 came to light only on receipt of the reply notice, dated 21.12.2007 sent by the 1st Defendant and hence, the starting point of https://www.mhc.tn.gov.in/judis 6 A.S.No.385 of 2015 limitation is from 21.12.2007 and that since the suit was filed within 3 years, it is maintainable. The Respondents 1 to 3 for no reason terminated the agreement for sale, resulting in breach of the contract. In such circumstances, the suit is to be decreed in favour of the Plaintiffs.
(f) The suit was contested, by the 4th Defendant, by fling a separate written statement adopted by the Respondents 5, 7 and 8 to 12, denying the execution of the alleged suit sale agreement and also the receipt of the advance amount of Rs 20 lakhs. It is averred by the 4th Defendant that the suit agreement is a created one collusively, in order to grab the suit property illegally and that the 4th Defendant was not aware of the legal notice dated 13.12.2007, the reply notice dated 03.01.2008, also another legal notice dated 21.01.2008 and another reply notice, dated 06.02.2008, however, the 4th Defendant has nothing to do with the said notices. It is further stated that as per the permission granted by the concerned Court in O.P No.1 of 2007, by a registered sale deed dated 01.09.2008, the Respondents 4 and 5 purchased the property to an extent of 6.50 acres for a sale consideration of Rs.1,00,00,000/- from the Respondents 1 to 3, who are the trustees of Pachaiayammal Kuppu Chetty Trust, pursuant to https://www.mhc.tn.gov.in/judis 7 A.S.No.385 of 2015 the sale agreement dated 25.10.2007 entered into between them.
(g) It is further contended by the 4th Defendant that ever since the date of such purchase, the Respondents 4 and 5 are in possession and enjoyment of the property described in the written statement and that patta was also transferred in their name and that they are the absolute owners of the property. It is further stated that the 6th Defendant, Babu @ Jalappa Naidu, to whom the property was stated to have been leased out, had also cancelled the lease deed, by a registered lease cancellation deed, dated 09.07.2007, by receiving back the advance amount paid to him. It is further averred that they are the bona-fide purchasers of the property mentioned in the written statement for valuable consideration, however, without prejudice to their contentions, it is stated that the Plaintiffs were not ready and willing to perform their part of the suit agreement and they had abandoned their rights and in such circumstances, the suit is not maintainable.
(h) The suit was also contested by the 6th Defendant, who is allegedly stated to be the lessee in respect of the suit properties, by filing a separate written statement, stating that one of the purchasers, C.Nageswara Rao, had received a sum of Rs.15 lakhs from the 6th https://www.mhc.tn.gov.in/judis 8 A.S.No.385 of 2015 Defendant on 12.12.2006 and thereafter, the lease granted in his favour by the defendants was cancelled on 09.07.2007 and then, he had surrendered possession to the original owners. It is further stated that a sum of Rs.30 lakhs paid by the Plaintiffs had been repaid to them, by making payment to various persons on various dates, namely, Rs.3 lakhs to K.Venkata Subbaian on 01.12.2005, Rs.2 lakhs to Ramalu from Nagarajan, Cashier, Cream Rich Diary, Sulurpet and Rs.5 lakhs to K.Venkata Subbaian on 04.05.2006, Rs.3 lakhs to P.Jayaraman on 11.08.2006, Rs.2 lakhs to P.Venkatesalu on 15.11.2006 and Rs.15 lakhs to C.Nageswara Rao on 12.12.2006. It is further stated by the 6th Defendant that the above payments were made with the consent of the Plaintiffs and they also promised to cancel the suit sale agreement. It is further contended by the 6th Defendant that sale agreement is not subsisting so as to seek enforcement. The 6th defendant pleaded ignorance about the subsequent sale in favour of defendants 4 and 5.
(i) Before the Trial Court, on the pleadings of the parties, the following issues were framed on 13.06.2011:-
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(a) Are the Plaintiffs entitled to the relief of specific performance of the suit sale agreement as well as the prohibitory injunction?
(b) What's this Court's decree on the suit? What are its terms?
(j) On 09.10.2014, the Trial Court had framed further issues as under:-
(1) Whether the Plaintiffs are entitled for specific performance and possession as claimed?
(2) Whether the Plaintiffs are entitled to alternative relief of refund of the amount as claimed?
(3) Whether the Plaintiffs are entitled for permanent injunction as claimed?
(4) Whether the suit is barred by limitation?
(5) Whether the suit is bad for non-joinder of necessary parties?
(6) Whether the agreement, dated 18.08.2004 was already terminated?
(7) To what relief?
(k) Before the Trial Court, on the side of the Plaintiffs, Ex.A1 to Ex.A13 were marked and PW.1 and PW.2 were examined. On the side of the Respondents, Ex.B1 to Ex.B10 were marked and DW.1 to DW.3 were examined.
(l) The Trial Court held that the suit is neither barred by limitation nor bad for non joinder of necessary parties. The Trial Court, after considering the submissions of the learned counsel for both parties and perusing the oral and documentary evidence let in by both parties, dismissed the suit finding that the plaintiffs have received the https://www.mhc.tn.gov.in/judis 10 A.S.No.385 of 2015 entire amount paid by them as advance from the 6th defendant and respondents 4 and 5 who have purchased the property are bona fide purchasers for value and therefore, they are entitled to protection under Section 19-b of Specific Relief Act. Even otherwise, the Trial Court held that the plaintiffs have not proved that they were ready and willing to perform their part of the contract. Since the plaintiffs have received the amount paid by them as advance, the Trial Court held that the alternative relief of refund of advance amount of Rs.30,00,000/- cannot be granted. Aggrieved by the said judgment and decree, the above appeal is preferred.
(3)This Court heard the submissions of the learned counsel on either side. (4)The learned counsel for the appellants submits that the Trial Court having held that the suit is not barred by limitation and the suit is not bad for non-joinder of necessary parties, ought to have decreed the suit directing the respondents 1 to 3 & 7, 4 & 8 to 12 to execute and register a sale deed on receipt of the balance of sale consideration and deliver possession of the properties.
(5)He further states that, in the alternative, while dismissing the suit, the Trial Court ought to have held that the Appellants are entitled to the refund of the advance of Rs.30,00,000/- together with interest @ 18% per https://www.mhc.tn.gov.in/judis 11 A.S.No.385 of 2015 annum. The 6th respondent was in possession of the suit property as a lessee only. Through the 6th respondent, the respondents 1 to 3 entered into Ex.A1-Sale Agreement and received the advance sale consideration of Rs.20,00,000/-. Later, another sum of Rs.10,00,000/- was received through the 6th respondent on behalf of the respondents 1 to 3. The respondents 2, 3 and 7 were very much available to perform their part of the contract. But, they conveniently remained absent, did not file any written statement. The suit agreement was long before the sale in favour of 4th and 5th respondents and was subsisting at that time of sale. (6)The learned counsel further contended that the Trial Court committed error in holding that the suit agreement has got terminated impliedly on refund of the advance amount of Rs.30,00,000/-. It is the burden of the 6th respondent to prove the refund by letting the positive evidence. The appellants denied the receipt of money from the 6th respondent. It is stated that there is no satisfactory evidence for the discharge of the advance amount. It is further stated that the documents relied upon by the 6th respondent ie. Ex.B3 to Ex.B7 are not sufficiently stamped and are inchoate instruments and hence, not at all admissible in evidence. (7)In this regard, the learned counsel has relied upon under Section 35 of the Indian Stamp Act 1899 which says that the instruments not duly https://www.mhc.tn.gov.in/judis 12 A.S.No.385 of 2015 stamped are inadmissible in evidence. Further, in the Judgment in the case of "Avinash Kumar Chauhan Vs. Vijay Krishna Mishra, reported in (2009) 2 STC 532, the Hon'ble Supreme Court, approved the view of the High Court of Andhra Pradesh in the case of T.Bhaskar Rao Vs. T. Gabriel and others reported in AIR 1981 A.P.175 which held that "it is now well settled that there is no prohibition under Section 49 of the Registration Act, to receive an unregistered document in evidence for collateral purpose. But, the document so tendered should be duly stamped or should comply with the requirements of Section 35 of the Stamp Act, if not stamped, as a document cannot be received in evidence even for collateral purpose unless it is duly stamped or duty and penalty are paid under Section 35 of the Stamp Act". (8)The learned counsel submitted that appellants disputed the signatures in the documents and insisted for sending the same for scientific examination invoking Order XXVI Rule 10A of CPC by citing the Judgment of Calcutta High Court in the case of "Jiyarul Mondal & others Vs. Ainur Haque & Another, wherein it is held that the exercise under Order XXVI Rule 10A of CPC, is always subject to the discretion of Court, to be rationally and judicially exercised, depending upon the https://www.mhc.tn.gov.in/judis 13 A.S.No.385 of 2015 facts and circumstances of a particular case. Hence, he prays to allow this appeal.
(9)The learned counsel for respondents contended that the Trial Court has rightly dismissed the suit. The 6th respondent who was in possession as a lessee, was instrumental in execution of the sale agreement. But, at the instance and direction of the Appellants herein, the advance amount was repaid to the Appellants on various dates and the receipts were produced accordingly. It is clear that on such refund, the Sale agreement got terminated impliedly.
(10)The learned counsel for the respondents further contended that the suit property was a trust property. Prior to their sale, the respondents 1 to 3 have got permission from the competent District Court for the sale of the property. Thereafter, the respondents 4 & 5 have purchased the property.
They are the bona-fide purchasers for a valuable consideration without notice of sale agreement. They cannot be found fault, since there was no mistake on their part. Hence, this appeal is liable to be dismissed. (11)Having heard the rival submissions of the learned counsels appearing on either side, this Court finds it appropriate to decide the appeal by finding answer for the following points for determination:-
A) Whether the plaintiffs/appellants were ready and willing to perform https://www.mhc.tn.gov.in/judis 14 A.S.No.385 of 2015 their part of the contract and whether they are entitled to enforce the contract specific performance?
B) Whether respondents 4 and 5 are bona fide purchasers for value without notice of the suit Sale Agreement and whether the suit Agreement is enforceable against respondents 4 and 5? C) Whether the appellants are entitled to the alternative relief of recovery of money alleged to have been paid by them as advance pursuant to the suit Agreement?
D) Whether defendants 1 to 3 have proved their case that they have refunded the entire amount received by them as advance to the plaintiffs as pleaded by them?
POINT [A]:-
(12)Considering the submissions of the learned counsel on either side, it is admitted that the 6th respondent was in possession of the suit properties as a lessee. He was very instrumental in getting the sale agreement executed between the Appellants and the Respondents 1 to 3. The Respondents 1 to 3 remained exparte and the 1st respondent died during the pendency of the suit, his legal heir the 7th respondent was brought on record. He also did not file the written statement. The 6th respondent filed written statement, narrating the facts leading to the agreement, https://www.mhc.tn.gov.in/judis 15 A.S.No.385 of 2015 relinquishment of the right by some of parties to the agreement on receiving back the advance amount. At the direction and instructions of the Appellants it is stated that the amounts advanced for the sale were refunded. On such refund, the agreement got terminated. It is admitted even in the plaint that one of the prospective buyers relinquished his interest. It is also contended that after the refund, permission was obtained for the sale of the suit schedule property, as it was a trust property. The sale agreement was executed as it was the absolute property of the Respondents 1 to 3. After the execution of sale agreement one of the vendee relinquished his share on receipt of refund.
The Appellants never showed any willingness to get the sale deed after paying balance. They filed the suit after the sale of major portion of the property to the Respondents 4 & 5. The readiness and willingness of plaintiff throughout the sale transaction is not proved. The Appellants were never ready and willing to complete the sale, they have not come to court with clean hands. Hence, as rightly pointed out by the learned Trial judge, the Appellants are not entitled to the relief of specific performance. The return of the advance money to the tune of Rs.11 lakhs is established during the course of evidence. The plaintiffs have filed the suit suppressing the fact that substantial amount had been refunded to the https://www.mhc.tn.gov.in/judis 16 A.S.No.385 of 2015 parties to the Agreement. The suit itself is not filed by all the persons who have jointly entered into the Agreement. Therefore, this Court finds no merit in the contention of the learned counsel appearing for the appellants that the appellants are entitled to seek specific performance despite the fact that the appellants were never ready and willing to perform their part of the contract in terms of the Agreement and not kept the contract intact when the suit was filed. Hence, POINT [A] is answered in favour of respondents/defendants.
POINT [B]:-
(13)The Trial Court has not framed an issue, whether the subsequent purchasers namely, respondents 4 and 5, are bona fide purchasers for value so as to claim protection under section 19-b of the Specific Relief Act. However, the 4th defendant, in his written statement, has specifically raised a plea that defendants 1 to 3 have entered into a registered Sale Agreement dated 25.10.2007, agreeing to sell an extent of 6.50 acres for a sum of Rs.1 Crore in favour of defendants 4 and 5 and a sum of Rs.50 lakhs was paid as advance. It is further stated that before Agreement, defendants 1 to 3 filed a Trust Original Petition in Trust OP.No.10/2007 before the Principal District Court at Vellore, seeking permission to sell https://www.mhc.tn.gov.in/judis 17 A.S.No.385 of 2015 the Trust property in favour of defendants 4 and 5 and the District Court granted permission to sell the land in favour of defendants 4 and 5 by judgment and decree dated 20.09.2007. For the same price that was approved by the District Court, defendants 4 and 5 have purchased an extent of 6.50 acres for a sum of Rs.1 Crore. After the Agreement dated 25.10.2007, it is also admitted that defendants 4 and 5 have obtained a Sale Deed on 01.09.2008. It is to be noted that the suit property is an extent of 7.90 acres. It is stated that as per the Sale Agreement dated 18.08.2004, the suit property was agreed to be sold for a consideration of Rs.51,80,500/-. No permission was obtained. Though the Suit Agreement dated 18.08.2004 was for a consideration of Rs.51,80,500/-, no permission was sought before entering into the Agreement. It is admitted that the suit property is a property of Trust and permission is required to be obtained before selling the same. When Trust OP.No.10/2007 is filed before the Court below, the plaintiffs were not in the picture. Defendants 4 and 5 offered to purchase a lesser extent of property for a consideration of Rs.1 Crore and the Principal District District Court granted permission for the sale transaction between defendants 1 to 3 with defendants 4 and 5. As pointed out earlier, defendants 4 and 5 have specifically pleaded that they are bona fide https://www.mhc.tn.gov.in/judis 18 A.S.No.385 of 2015 purchasers for value in the written statement. Absolutely there is no evidence to show that defendants 4 and 5 had knowledge about the existence of suit Agreement. Assuming that there was an Agreement in favour of appellants, the fact that defendants 1 to 3 have approached the Principal District District Court for getting permission for selling the property and the subsequent events, this Court has no hesitation to hold that the suit Agreement was not in force as some of the persons who are party to the Agreement, had received the advance they have paid and the contract as such, became unenforceable by their own conduct. When there is no positive evidence to show that defendants 4 and 5 entered into sale Agreement and Sale Deed in respect of substantial portion of the suit property with the knowledge of suit sale agreement and the rights of the appellants and the legal obligations of defendants 1 to 3, this Court has no hesitation to hold that defendants 4 and 5 are bona fide purchasers for value and hence, they are entitled to protection under Section 19-b of Specific Relief Act. Hence, POINT [B] is answered accordingly.
POINTS [C] & [D]:-
(14)Though the plaintiffs/appellants prayed for refund of a sum of Rs.30 https://www.mhc.tn.gov.in/judis 19 A.S.No.385 of 2015 lakhs, in the course of evidence, defendants filed a receipt issued by the 1st plaintiff/1st appellant for receiving a sum of Rs.5 lakhs on 04.05.2006.
Ex.B4 is also another receipt dated 01.12.2005 for a sum of Rs.3 lakhs received by K.Venkata Subbaiah, the 1st appellant from Babu Naidu who is the 6th defendant. Ex.B5 is also a receipt issued by one P.Jayaramaiah. Ex.B6 dated 05.11.2006 is another receipt issued by one K.Venkatasalu in favour of Babu Naidu, the 6th defendant. Ex.B7 dated 12.12.2006 issued by one Nageswara Rao acknowledging receipt of a sum of Rs.15 lakhs from the 6th defendant.
(15)Appellants relied upon a letter [Ex.A9] dated 12.02.2008, alleged to have written by the said Nageswara Rao to the appellants herein. In the said letter, Mr.Nageswara Rao, who is one of the party to the Sale Agreement, but not one among the plaintiffs, mentioned that he had executed a Relinquishment Deed in favour of plaintiffs/appellants after receiving a consideration of Rs.4 lakhs only. In the said letter, he also stated that he did not receive a sum of Rs.15 lakhs from the 6 th defendant as alleged in the reply notice issued by defendants 1 to 3. It is mentioned in the said letter that Babu Naidu/6th defendant might have forged his signature and therefore, he is entitled to initiate criminal action against the defendants. It is contended by the defendants that the entire sum of https://www.mhc.tn.gov.in/judis 20 A.S.No.385 of 2015 Rs.30 lakhs had been refunded to the plaintiffs as instructed by them as evident from Exs.B3 to B7. Based on appreciation of evidence, the Trial Court held that the entire amount paid as advance, had been refunded as per Exs.B3 to B7. It is seen that the 6 th defendant was not examined to prove the payments under Exs.B3 to B7. The appellants/plaintiffs themselves have admitted receipt of the amount as per Exs.B3 and B4. However, it is contended by the appellants that those amounts were received towards discharge of Pronote and hand loan and therefore, they cannot be relied upon to prove refund. The Trial Court for valid reasons, accepted payments under Exs.B3 and B4 as proved mainly on the ground that the case of appellants/plaintiffs that receipts under Exs.B3 and B4 were given in connection with the hand loan, cannot be accepted as the appellants also admitted that the 6th defendant was known to PW1 only a month prior to the suit Agreement. Therefore, the plea of appellants/plaintiffs about a different transaction between the appellants and 6th defendant, cannot be believed. Ex.B5 is another receipt issued by one Jayaramaiah on 11.08.2006. In the receipt, it is clearly mentioned that the amount was received in relation to the suit property. It is true that Jayaramaiah is not a party to the suit or a party to the Agreement. However, the Trial Court found that the said Jayaramaiah is not a third https://www.mhc.tn.gov.in/judis 21 A.S.No.385 of 2015 party, but he was known to appellants/plaintiffs very closely. Therefore, the denial of receipt issued in the name of Jayaramaiah on the ground that PW1 did not know Jayaramaiah, is false. Therefore, the Trial Court accepted the payment of a sum of Rs.3 lakhs in favour of Jayaramaiah. This Court accept the case of defendants that a sum of Rs.11 lakhs had been refunded to the plaintiffs. However, the substantial payment of Rs.15 lakhs is accepted by Trial Court without a discussion on merits or the evidence. The receipt for Rs.15 lakhs was issued by one Nageswara Rao. The receipts alleged to have been signed by Nageswara Rao is specifically disputed and the specific case of the appellants is that there was no payment of Rs.15 lakhs or further amounts to two others as alleged in the written statement. The alleged payment of a sum of Rs.2 lakhs to Ramalu is not supported by any document whatsoever and hence, this Court is unable to sustain the plea of payment of Rs.2 lakhs to Ramalu. Ex.B6 is a receipt for a sum of rs.2 lakhs executed by one Venkatasalu. Merely because the receipt refers to the fact that the same is in respect of Walaja property, the Trial Court has come to the conclusion that payments as per receipts is proved. The findings of the Trial Court shows that there is total non-application of mind. (16)Defendants have produced Ex.B7, another receipt to prove that a sum https://www.mhc.tn.gov.in/judis 22 A.S.No.385 of 2015 of Rs.15 lakhs was paid to Nageswara Rao. Though the identity of Nageswara Rao is not in issue, the burden lies on the defendants to prove the payment of Rs.15 lakhs by postive evidence. The signature of the said Nageswara Rao in Ex.B7 is specifically an issue. Though appellants/plaintiffs have marked only the letter of Nageswara Rao denying the signature and the appellants/plaintiffs have not examined the said Nageswara Rao to deny the signature in Ex.B7, still the burden lies on the defendants to prove the substantial payment of Rs.15 lakhs. It is seen that before Trial Court, defendants 1 to 3 remained exparte. It is the specific case that the 6th defendant paid the sum of Rs.15 lakhs to Nageswara Rao on 12.12.2006. However, the 6th defendant is not examined as a witness to prove the case of defendants. In the absence of any positive evidence that a substantial amount of Rs.15 lakhs was paid to Nageswara Rao and that the said payment is towards refund of the advance amount received by them earlier in relation to the sale of Walaja property, this Court is unable to countenance the argument of the learned counsel for the respondents that the said amount was paid through the 6th defendant based on a receipt, which is not marked through the person who got it. Therefore, this Court is unable to sustain the findings of the Trial Court to hold that the plaintiffs are not entitled to a sum of Rs.15 https://www.mhc.tn.gov.in/judis 23 A.S.No.385 of 2015 lakhs on the basis of Ex.B7. We have already seen that there is no receipt or evidence for the payment of a sum of Rs.2 lakhs. Another sum of Rs.2 lakhs under Ex.B6 was paid by 6th defendant in favour of Venkatasalu. For the reasons given for Ex.B7, the payment of a sum of Rs.2 lakhs under Ex.B6 also cannot be accepted in the absence of any direct evidence to prove the same by 6th defendant who was not even examined as a witness.
(17)For the reasons stated above, the appellants are entitled to the refund of a sum of Rs.19 lakhs after the deduction of Rs.11 lakhs out of total advance amount of Rs.30 lakhs. Hence, defendants 1 to 5 / respondents are directed to pay a sum of Rs.19 lakhs to the appellants along with interest at the rate of 12% per annum from the date of plaint till the date of realisation.
(18)While confirming the judgment and decree of the Trial Court holding that the appellants/plaintiffs are not entitled to the relief of specific performance, this Court is inclined to modify the judgment and decree of the Trial Court, by directing refund of a sum of Rs.19 lakhs to the appellants/plaintiffs with interest @ 12% p.a. from the date of plaint till the date of realisation. Points [C] and [D] are answered accordingly. https://www.mhc.tn.gov.in/judis 24 A.S.No.385 of 2015 (19)Accordingly, the Appeal Suit is partly allowed. The suit is decreed in respect of alternative relief of refund of a sum of Rs.19 lakhs to the appellants/plaintiffs by directing defendants 1 to 5 or their legal heirs are liable to refund a sum of Rs.19 lakhs with interest @ 12% p.a. from the date of plaint till the date of realisation. No costs.
[S.S.R.,J] [A.A.N.,J]
15.06.2023
AP
Index:Yes/No
Internet: Yes
To
1.The II Additional District Sessions Court,
Vellore at Ranipet.
2.The Section Officer
VR Section, High Court
Chennai.
S.S. SUNDAR, J
AND
https://www.mhc.tn.gov.in/judis
25
A.S.No.385 of 2015
A.A.NAKKIRAN, J
AP
Judgment in
A.S. No.385 of 2015
15.06.2023
https://www.mhc.tn.gov.in/judis
26