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IN THE COURT OF THE II ADDITIONAL DISTRICT JUDGE AT
PUDUCHERRY
PRESENT: Tmt. G.T. AMBIKA, M.L., PGDCLCF.,
II ADDITIONAL DISTRICT JUDGE
Saturday, the 27th day of August 2022
O.S. No.24/2016
[CNR No.PYPY01-000050-2016]
P. Geetha ... Plaintiff
Vs.
K. Arunkumar @ Iyyanar ... Defendant
This suit coming on this day before me for final hearing, in the
presence of M/s. K. Parasuraman, A. Arokianathan, T. Thamizhselvi and
J.Vennila, Counsel for the plaintiff, M/s. S. Kathirvel, B. Sendhil and
P.Seetharaman, counsel for the defendant, upon hearing both sides, after
perusing the case records, and having stood over for consideration till this
day, this court delivered the following:
JUDGMENT
This is a suit filed for relief of specific performance, (i) directing the
defendant to execute the Sale Deed and convey the suit property in favour of
the plaintiff for consideration of Rs.15,00,000/- as per the terms of the
Agreement of Sale dated 03.12.2013 after receiving the balance amount of
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Sale consideration of Rs.6,00,000/- and to get the Sale Deed registered before
the Sub-Registrar, Thirukkanur; (ii) that in default by the defendant to execute
the Sale Deed as directed by this court, the Sale Deed may be executed by this
Court in favour of the plaintiff by depositing the balance Sale consideration of
Rs.6,00,000/- by the plaintiff in the credit of the above suit and to get the Sale
Deed registered before the Sub-Registrar, Thirukkanur; (iii) or, in the event of
impossibility to grant specific performance to execute the Sale Deed,
alternatively, the defendant may be directed to return the advance amount of
Rs.9,00,000/- to the plaintiff with interest at 18% p.a. from the date of
agreement i.e. 03.12.2013 till realization and for cost of the suit.
2. The averments in the plaint filed by the plaintiff is as follows:
The defendant had approached the plaintiff and offered to sell the
property mentioned in the Schedule of the plaint as absolute owner of the
same and by negotiation between the plaintiff and the defendant, it was
mutually agreed, the sale consideration at Rs.15,00,000/- for the property. On
03.12.2013, the defendant had received a sum of Rs.9,00,000/- from the
plaintiff as advance amount towards the sale consideration of Rs.15,00,000/-
and an Agreement of sale was executed on the same day between the plaintiff
and the defendant and the same was registered as Document No.2856/2013 at
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the office of the Sub-Registrar, Thirukanur and the original Title Deed relating
to the property namely the Sale Deed dated 10.02.1999 was also handed over
to the plaintiff by the defendant at the same time. As per the said agreement
of Sale, the defendant has to execute the sale deed in favour of the plaintiff
with in 24 months from the date of agreement and to receive the balance
amount of sale consideration of Rs.6 lakhs before the Sub-Registrar at the
time of registration of the same and if the defendant failed to perform his part
of contract to come forward to execute the sale deed, the plaintiff would
become entitle to seek specific performance of the agreement. The plaintiff is
always ready and willing to perform her part of contract to obtain the sale
deed by paying the balance amount of sale consideration of Rs.6 lakhs. The
plaintiff has repeatedly approached and demanded the defendant to execute
the sale deed in her favour in respect of the plaint schedule mentioned
property as per the said agreement of sale and to receive the balance sale
consideration, but he was postponing the same by giving some reasons or
other and so the plaintiff has issued legal notice dated 12.11.2015 to the
defendant and called upon him to come forward to perform his part of
contract to execute the sale deed in favour of the plaintiff by fixing a date so
as to enabling the plaintiff to come and present in the Sub-Registrar Office,
Thirukanur with balance amount of Rs.6 lakhs towards the sale consideration
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and even after the receipt of the said legal notice by the defendant, he never
came forward to execute the sale deed by fixing a date or cared to reply. So,
again the plaintiff has issued another legal notice dated 04.12.2015 to the
defendant and called upon him to come forward to perform his part of
contract to execute the sale deed in favour of the plaintiff and to receive the
balance sale consideration with in 7 days of the receipt of the said notice and
the same was received by the defendant on 05.12.2015 but he failed to
comply the same or issued any reply. Hence this suit is filed for specific
performance of the contract.
3. The averments in the written statement filed by the defendant is
as follows:
The suit is not maintainable and is filed without cause of action.
This suit is barred by limitation. This suit is bad for non-joinder of parties.
This suit is not properly valued and thereby the court fees has not been
properly paid. This suit is framed and filed without having jurisdiction, since
the subject matter of the suit property is pre-encumbered to this plaintiff's
transactions. The defendant denies the execution of registered sale agreement
dated 03.12.2013. The defendant handed over the original sale deed to the
plaintiff for purpose of the mortgaging the suit schedule property, by deposit
of title deed for a sum of Rs.5 lakh only and subsequently the plaintiff herein
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being the money lender demanded the defendant herein to execute a sale
agreement for security sake for Rs.9 lakh. The defendant herein signed on
condition and on undertaking given by the plaintiff that she will not use the
sale agreement deed for executing sale deed unless and until the defendant
returns the money. The plaintiff further denies that the plaintiff paid Rs.9 lakh
to the defendant. This agreement for sale is duly prepared for the mortgaged
consideration for a sum of Rs.5 lakh only. The defendant’s wife Mrs. A.
Santhi, was conducting an unregistered chit business in the residing village
and the plaintiff was also doing business as unregistered money lender and
conducting unregistered chit business in the same residing village. In fact the
plaintiff and the defendant herein are business friends for the past 20 years.
In the year 2012 the defendant's wife met with loss in the chit business for a
sum of Rs.40,00,000/- as most of the chit members did not repay the chit
amount. At that time, the defendant's wife decided to sell the land to one Mr.
Jayabalan, Puducherry, thereby the plaintiff herein executed a deed power of
attorney to and in favour of him on 06.6.2012. The sale consideration was
fixed for Rs.28,00,000/- and as advance for the sale agreement was
Rs.2,50,000/-. Before entering the sale agreement dated 06.6.2012, the
defendant herein obtained a loan for a sum of Rs.20,00,000/- from one
Mr.Balamurugan, S/o. Subramanian, No.49, Sugar Mill Road, Katterikuppam,
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Puducherry-605 502 for which the copy of title deed Document No.135 of
1999, dated 10.02.1999, Book No.1, Vol No.446, on the file of the Sub
Registrar, Thirukanur, Puducherry was secured. The defendant herein further
states that the plaintiff herein never ever shown the readiness and willingness
for the suit Schedule of property hereunder. Hence, it is prayed to dismiss the
suit with exemplary cost.
4. Based upon the above pleadings, the following issues have been re-
casted for trial :
1. Whether there is no cause of action in this suit?
2. Whether the suit is barred by limitation?
3. Whether the suit is bad for non-joinder of parties?
4. Whether the valuation of suit and court fees paid by the plaintiff
is incorrect?
5.Whether the sale agreement dated 03.12.2013 is valid and
enforceable one?
6. Whether the defendant received Rs.9,00,000/- as advance and
executed the sale agreement as alleged by the plaintiff?
7. Whether the plaintiff was ready and willing to perform the
contract of sale agreement?
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8. Whether the defendant executed the suit Sale agreement as
collateral security?
9. Whether the plaintiff is entitled to the decree as prayed?
10. To what other relief the plaintiff is entitled to?
5. ON THESE ISSUES:
In order to prove their respective cases, on the side of the plaintiff
P.W.1 and P.W.2 were examined and Exs.A1 to A9 were marked and on the
side of defendant D.W.1 to D.W.3 were examined and no exhibits were
marked.
6. On Issues No.1 to 8:
The case of the plaintiff is that the defendant offered to sell the suit
property to the plaintiff for a sale consideration of Rs.15,00,000/- and on
03.12.2013 the defendant and plaintiff have executed Ex.A1 registered Sale
Agreement and the defendant has received a sum of Rs.9,00,000/- from the
plaintiff as advance amount towards the sale consideration and further the
defendant has also handed over the original title deed pertaining to the suit
property to the plaintiff that is Ex.A2 original Sale deed dated 10/02/1999.
The further case of the plaintiff is that as per the Ex.A1 registered Sale
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agreement dated 3.12.2013 it was agreed to execute sale deed in favour of the
plaintiff within 24 months from the date of sale agreement and to pay the
balance sale consideration of Rs.6,00,000/- to the defendant at the time of
registration and thereafter, the plaintiff was always ready and willing to
perform her part of contract to pay the balance sale consideration of
Rs.6,00,000/- and to get the sale deed executed in her favour but whenever,
the plaintiff approached the defendant to receive the balance sale
consideration and to execute the sale deed, the defendant was prolonging by
saying one reason or the other and therefore, the plaintiff had issued legal
notices dated 12.11.2015 and 04.12.2015 but the defendant inspite of receipt
of the said notices has failed to execute the sale deed as per the Sale
Agreement.
7. Refuting the contentions of the plaintiff, it is contended by the
defendant that infact the defendant had borrowed a sum of Rs.5,00,000/- from
the plaintiff by mortgaging the suit property by way of deposit of title deeds
but subsequently the plaintiff being a money lender has demanded the
defendant to execute a sale agreement as security for a sum of Rs.9,00,000/-
and thereupon the defendant has signed in the sale agreement which was
given as security on condition and undertaking given by the plaintiff that the
same shall not be used as sale agreement for executing the sale deed. It is the
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further contention of the defendant that he never received Rs.9,00,000/- from
the plaintiff and in fact the sale agreement was prepared for the loan amount
of Rs.5,00,000/- received from the plaintiff. The defendant further contended
that the plaintiff and the wife of the defendant are business friends who were
running unregistered chit business and in the year 2012, the defendant’s wife
met with huge loss in the chit business to a tune of Rs.40,00,000/- as the chit
members failed to repay the chit amount and therefore, the defendant’s wife
decided to sell the suit property to one Jayabalan and had executed a power of
attorney in favour of the said Jayabalan on 06.06.2012 by fixing sale
consideration at Rs.28,00,000/- and advance amount as Rs.2,50,000/- and
similarly before execution of said Sale agreement the defendant has obtained
a loan of Rs.20,00,000/- from one Balamurugan by handing over a copy of
title deed to the said Balamurugan as security.
8. Thus from the contentions of both parties it could be inferred that
the case of the plaintiff is that the defendant had executed Ex.A1 sale
agreement dated 03.12.2013 by agreeing to sell the suit property for a sale
consideration of Rs.15,00,000/- and the plaintiff has paid Rs.9,00,000/- as sale
advance amount and the defendant has to execute sale deed in favour of
plaintiff on receiving the balance consideration of Rs.6,00,000/- from the
plaintiff within 24 months from the date of Sale Agreement but the defendant
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has failed to execute the sale deed in favour of the plaintiff even though the
plaintiff was ready and willing to perform her part of contract. Whereas it is
the specific case of the defendant that he never agreed to sell the suit property
to the plaintiff and Ex.A1 Sale agreement was not intended to be acted upon
and that it was only by way of a security for the borrowings made by the
defendant from the plaintiff.
9. This court on perusal of Ex.A1 finds that it is a registered Sale
Agreement dated 3/12/2013. As per the recitals contained in Ex.A1 Sale
Agreement it is stated that the defendant has agreed to sell the suit property to
the plaintiff and has received Rs.9,00,000/- from the plaintiff as advance and
further the defendant has agreed to execute the sale deed infavour of the
plaintiff on receipt of balance sale consideration of Rs.6,00,000/- and the time
for completion of the said contract has been fixed as 24 months from the date
of the sale agreement.
10. In this case the defendant in the written statement as well as in
his evidence has neither denied his signature as found in Ex.A1 Sale
Agreement dated 3/12/2013 nor has denied the execution of Ex.A1 Sale
Agreement infavour of plaintiff but however contends that Ex.A1 Sale
agreement was not intended to be acted upon and that it was only by way of a
security for the loan amount of Rs.5,00,000/- borrowed by him from the
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plaintiff. This court finds that when the defendant admits the execution of
Ex.A1 Sale Agreement infavour of the plaintiff then in such case the
defendant is precluded from raising a plea contrary to the terms of the
agreement because as per Section 92 of Indian Evidence Act, there is no scope
to permit the defendant to contradict, vary or subtract the terms contained in
Ex. A1 Sale Agreement. Furthermore, the defendant in Ex.A6 reply notice
dated 27/11/2015 issued to the plaintiff has specifically admitted that he had
executed a sale agreement to sell his property for a sum of Rs.15,00,000/- and
agreed to complete the sale deed within a period of 24 months from the date
of agreement.
11. The plaintiff to substantiate her case has examined the P.W.2. The
P.W.2 during his cross examination has clearly deposed that on the date of
registration of Ex.A1 Sale Agreement he had affixed his signature as a
witness to Ex.A1 and further deposed that on the date of registration of sale
Agreement, the plaintiff has paid Rs.9,00,000/- as advance to the defendant.
The defendant during his cross examination has deposed that prior to the
execution of Ex.A1 Sale Agreement he had also handed over the original title
deed of the suit property that is Ex.A2 to the plaintiff.
12. When it is the case of the defendant that in the written statement
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as well as in his evidence that he had borrowed only Rs.5,00,000/- from the
plaintiff and executed Ex.A1 sale agreement as security for the said amount
borrowed by him but in the Ex.A6 reply notice dated 27/11/2015 the
defendant has stated that on 3/12/2013 the defendant has borrowed a sum of
Rs.9,00,000/- from the plaintiff and executed a blank promissory note and
later the defendant has refunded the said amount to the plaintiff and
demanded to return the blank promissory note and to cancel the sale
agreement and the plaintiff also had agreed to return the blank promissory
note and cancel the sale agreement but has cunningly issued notice. Thus the
defendant is found to have taken contra stand in Ex.A6 reply notice stating he
had received Rs.9,00,000/- from the plaintiff but denied the same was
received towards the advance amount.
13. Likewise when the defendant in Ex.A6 reply notice contends that
he demanded the plaintiff to return the blank promissory note and to cancel
the Sale agreement and further if the case of the defendant had been true, then
in such case it is found that the defendant has not taken any legal course of
action as against the plaintiff till the issuance of Ex.A4 legal notice dated
4/12/2015 by the plaintiff. Similarly the defendant has failed to explain as to
how and why he had signed in Ex.A1 which contains a statement that the
defendant had received Rs.9,00,000/- from the plaintiff when more
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particularly the defendant in the written statement states that he had borrowed
only Rs.5,00,000/- from the plaintiff and had signed in Ex.A1 for the sake of
security for Rs.9,00,000/-.
14. The defendant has examined DW2 and DW3 to deny the case of
the plaintiff, it is found that the DW3 has deposed during his chief and cross
examination that the defendant had agreed to sell the suit property to DW3
and to his partner, namely, Jayabalan, by executing sale agreement dated
23.5.2013 but thereafter, as the defendant failed to execute the sale deed in
their favour, a civil suit for permanent injunction restraining the defendant
from executing the sale deed in favour of third party has been filed before I
Additional District Munsif, Puduchery in O.S.NO.1837/2019 and the same is
pending for trial.
15. Thus from the evidence of DW3, it can be inferred that the DW3
has filed a suit as against the defendant herein and when such being so, the
DW3 having adverse interest as against the defendant herein is found to have
appeared as witness for the defendant in this case. Hence in the said context
the credibility of evidence of DW3 is found to be suspicious and doubtful one.
Thereby the suggestion of the learned counsel for plaintiff during the cross
examination of D.W.3, that the plaintiff and D.W.3 have colluded together to
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defeat the interest of the plaintiff and have created a fake Sale Agreement
infavour of D.W.3 is found to be acceptable one. Thus from the above
discussions this court holds that the defendant for the purpose of his defence
is found to have taken a stand that Ex.A1 Sale Agreement was executed for
the purpose of security.
16. The defendant having admitted that he had executed Ex.A1 Sale
agreement in favour of the plaintiff and further having admitted at the earliest
point of time in his reply dated 27/11/2015 Ex.A6 that it was agreed by the
defendant to sell the suit property to the plaintiff for a sale consideration of
Rs.15,00,000/- with in 24 months from the date of agreement cannot be
permitted to retrench from his own stand by saying that Ex.A1 Sale
Agreement was not intended to be acted upon and that it was only by way of a
security for the borrowings made. Thus this court holds that the plaintiff
through the oral and documentary evidences has proved that the defendant
had agreed to sell the suit property to the plaintiff and had executed Ex.A1
Sale Agreement dated 3/12/2013 infavour of the plaintiff and further proved
that the plaintiff was ready and willing to pay the balance sale consideration
to the defendant and to get the sale deed executed from the defendant.
17. The contention of the defendant that the suit is barred by
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limitation and the suit is bad for non joinder of parties and no cause of action
is found to be an evasive one and stands unproved. Likewise, the contention
of the defendant that the valuation of suit and court fees paid by the plaintiff
is incorrect is also found to be unacceptable since the plaintiff is found to
have paid correct court fees for the reliefs prayed by her. Hence, this court
holds that the plaintiff has proved her case that the defendant had agreed to
sell the suit property and executed Ex.A1 Sale Agreement dated 3/12/2013 on
receiving advance amount of Rs.9,00,000/- from the plaintiff and as as such
the Ex.A1 Sale Agreement dated 3/12/2013 is found to be valid and
enforceable one. Thus, the issues are answered in favour of the plaintiff and
as against the defendant.
18. On Issues No.9 and 10:
In view of above discussions, this court holds that the plaintiff is entitled for
the relief of specific performance, directing the defendant to execute the sale
deed in respect of the suit property on receiving the balance sale consideration
of Rs.6,00,000/- from the plaintiff. Thus, the issues are answered in favour of
the plaintiff and as against the defendant.
In the result, the suit is decreed with cost by directing the defendant to
execute the sale deed and convey the suit property in favour of the plaintiff as
per the sale agreement dated 03.12.2013 within a period of two months on
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receiving the balance sale consideration of Rs.6,00,000/- failing which the
plaintiff is entitled to get the sale deed executed in her favour through court.
Dictated and typed directly in my laptop, corrected and pronounced by
me in the open court on this the 27th day of August 2022.
/Sd/-
(G.T. AMBIKA)
II ADDITIONAL DISTRICT JUDGE
PUDUCHERRY
LIST OF WITNESSES EXAMINED ON THE SIDE OF PLAINTIFF:
PW1 07.6.2018; 27.6.2018; 12.7.2018; 04.9.2018 Geetha, plaintiff
(Proof Affidavit filed)
PW2 08.11.2018 Dhanaboopathi, attesting witness
LIST OF EXHIBITS MARKED ON THE SIDE OF PLAINTIFF:
Ex.A1 03.12.2013 Agreement of sale executed between plaintiff and
defendant
Ex.A2 10.02.1999 Title Deed in the name of the Defendant
Ex.A3 12.11.2015 Copy of legal notice issued by plaintiff Advocate
(J.Vennila) on behalf of plaintiff to defendant
Ex.A4 04.12.2015 Copy of legal notice issued by plaintiff Advocate
(K.Parasuraman) on behalf of plaintiff to defendant
Ex.A5 05.12.2015 Acknowledgment card signed by the defendant
Ex.A6 27.11.2015 Reply notice issued by defendant's Advocate
(G.R.Thangarassou) to plaintiff's counsel (J. Vennila)
Ex.A7 15.3.2016 Reply notice issued by defendant's Advocate
(B.Karunakaran) to plaintiff's counsel (J. Vennila)
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Ex.A8 30.3.2016 Re-joinder issued by plaintiff's counsel
K.Parasuraman to defendant's counsel
Ex.A9 31.3.2016 Acknowledgment card signed by the defendant's
counsel B.Karunakaran, Advocate.
LIST OF WITNESSES EXAMINED ON THE SIDE OF DEFENDANT:
DW1 18.11.2019; 25.3.2019; 28.6.2019 Arun Kumar @ Iyyanar,
Defendant
DW2 13.11.2019; 25.9.2021 Santhi, attesting witness
DW3 30.11.2021; 24.02.2022 Balamurugan
LIST OF EXHIBITS MARKED ON THE SIDE OF DEFENDANT:
NIL
/Sd/-
(G.T. AMBIKA)
II ADDITIONAL DISTRICT JUDGE
PUDUCHERRY.
