Full Judgment
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26.03.2014 CORAM THE HONOURABLE MR.JUSTICE G.CHOCKALINGAM S.A.(MD)No.728 of 2007 and M.P.(MD)No.1 of 2007 Valantine Morris : Appellant/Defendant versus Ramalingam :Respondent/Plaintiff Prayer This second appeal filed under Section 100 of CPC against the judgment and decree passed in A.S.No.100 of 2005 on the file of the Principal District court, Kanyakumari at Nagercoil, dated 14.06.2007 confirming the judgment and decree passed in O.S.No.76 of 2004 on the file of the II Additional Sub Court, Nagercoil, dated 05.09.2005.
!For Appellant : Mr.M.P.Senthil for Mr.G.Prabhu Rajadurai ^For respondent : Mr.N.Sivakumar for Mr.D.Rajagopal - - - :JUDGMENT
Challenge in this second appeal is to the judgment and decree, dated 14.06.2007 passed in A.S.No.100 of 2005, by the Principal District Court, Kanyakumari at Nagercoil, confirming the judgment and decree passed in O.S.No.76 of 2004, dated 05.09.2005, on the file of the II Additional Sub Court, Nagercoil.
2.The respondent herein as plaintiff has instituted Original Suit No.76 of 2004 on the file of the trial Court seeking the relief of specific performance, wherein the present appellant has been shown as defendant.
3.It is averred in the plaint that the defendant is the owner of the suit property.
On 26.02.2004, the defendant entered into an agreement of the sale with the plaintiff agreeing to sell the property for a sale consideration of Rs.1,50,000/- and received Rs.1,00,000/- as advance and handed over the original title deed to the plaintiff.
As per the terms stipulated in the sale agreement, the defendant should executed the sale deed in respect of the property within a period of one year from the date of sale agreement, after receiving the balance sale consideration of Rs.50,000/-and the defendant should clear the encumbrance, if any in the property.
The plaintiff is ready and willing to get the sale deed executed by paying the balance sale consideration and subsequently, requested the defendant.
But the defendant has not come forward to execute the sale deed.
Therefore, on 01.07.2004, the plaintiff sent a notice to the defendant requesting him to execute sale deed after receiving the balance sale consideration of Rs.50,000/-.
But the defendant did not send any reply to the notice and he is attempted to alienate the suit property to otheRs.Hence, the plaintiff file the suit prior to the expiry of the agreement period seeking the relief as stated supra.
4.In the written statement filed on the side of the defendant, it is averred as follows:- The description of property mentioned in the suit is not correct and there is no separate meter connection H-7/92 pertains to entire complex consisting of shops and house.
The staircase leading to the upstairs portion of the complex and the house is situated in the building.
The transaction between the plaintiff and the defendant is nothing, but loan transaction by the plaintiff and his friend Mohandhas, who was one of the tenant in the complex belonging to the defendant and he paid Rs.50,000/- as advance and since, he did not pay the rent from August 2002, the defendant demanded the rent and Mohandhas agreed to vacate the portion and demanded advance amount.
The defendant immediately paid only Rs.5000/-.
In the month of January 2004, the said Mohandhas demanded the balance advance of Rs.45,000/-.
Since, the defendant is in financial crisis, the said Mohandhas himself had arranged loan for Rs.1,00,000/- from the plaintiff and the agreement is only a security for the loan.
On 26.02.2004, the plaintiff, Mohandhas and two others took the defendant to Nagercoil Registrar's Office and the defendant was compelled to execute a sale agreement.
But the balance amount of Rs.55,000/- was not paid and the defendant paid one month interest of Rs.4,000/-.
The defendant owned 10 shops in the complex and a house building and when the property is not definite in the sale agreement, the plaintiff cannot seek for any specific performance of contract.
The claim made by the plaintiff is entirely false.
Hence, the plaintiff has no cause of action to file the suit.
Therefore, the defendant prays for the dismissal of the suit.
5.The trial court after considering the rival evidence adduced on either side has decreed the suit as prayed for.
Against the judgment and decree passed by the trial court, the defendant as appellant has preferred the A.S.No.100 of 2005 on the file of the fiRs.appellate court.
The fiRs.appellate court after hearing both sides and upon reappraising the evidence available on record has dismissed the appeal and thereby confirmed the judgment and decree passed by the trial court.
Against the concurrent judgment and decree of the courts below, this second appeal has been preferred at the instance of the defendant as appellant.
6.At the time of admitting the present second appeal, the following substantial questions of law have been formulated for consideration:- 1.Whether the Courts below are right in granting a decree merely on the basis of the agreement of sale under Ex.A1 is a registered one without adverting to the nature of the transaction could only be a security for loan?.
2.Whether the findings of the Courts below are vitiated by its failure to consider the proved and admitted facts particularly with reference to the property and it differs from the title deed Exs.A2 and A3 and draw legal inference thereon?.
7.Before going into the merits of the case, it is relevant to narrate the admitted facts of this case.
8.It is admitted by both parties that the suit property belongs to the appellant/defendant and he executed an Agreement of Sale before the Sub Registrar office and the suit schedule property is part of the building and there is an Apartment belongs to the appellant/defendant and in the Agreement of Sale, related only to a small portion of the Apartment in the ground floor.
9.It is argued on the side of the appellant/defendant that the suit property cannot be saleable one and that the suit property cannot be identified one and the suit property is differed from Ex.A1 Agreement of Sale and therefore, the Agreement of Sale was executed as security for the loan borrowed from the respondent/plaintiff by the appellant/defendant on 26.02.2004 and hence, even though, the Agreement of Sale is not a true one and it is only executed for the purpose of security for the loan borrowed by the appellant/defendant, both the courts below were erred in coming to the conclusion that the Agreement of Sale is a true one and the respondent/plaintiff is entitled to specific performance relief as per Agreement, dated 26.02.2004 and therefore, the concurrent finds of the courts below are liable to be set aside and the second appeal has to be allowed.
10.On the other hand, the learned counsel for the respondent/plaintiff argued that the appellant/defendant agreed to sell the property on 26.02.2004 and for that, he received Rs.1,00,000/- towards advance sale consideration and executed Ex.A1 Agreement of Sale and he has also given Exs.A2 and A3, namely Sale deed, dated 20.05.1987 and the Encumbrance Certificate in respect of the suit property and even though, the plaintiff was ready and willing to get the sale deed and the readiness were intimated to the appellant/defendant by way of registered notice Ex.A3, the appellant/defendant received the same and he did not come forward to give any reply and therefore, respondent/plaintiff filed a suit to enforce the Agreement of Sale and subsequently, the suit was decreed and thereafter, he filed EP No.31 of 2006 and the sale deed was executed on 08.06.2007 through court.
Therefore, the second appeal filed by the appellant/defendant has to be dismissed with costs.
11.It is the case of the appellant/defendant that Ex.A1 is a Agreement of Sale and it is executed by the appellant/defendant only for security purpose for the loan borrowed from the respondent/plaintiff.
12.In this case, on the side of the respondent/plaintiff, the plaintiff was examined himself as PW1 and one another witness, by name Mr.R.Selvakumar was examined as PW2.
On perusal of the entire evidence of PW1 and PW2, it is made clear that the appellant/defendant had agreed to sell the property mentioned in Ex.A1 to the respondent/plaintiff for Rs.1,50,000/- and for that, he received Rs.1,00,000/- as advance, on that day itself and therefore, after the execution of the Agreement of Sale, the appellant/defendant cannot deny the Agreement of Sale by contending that it was not a Agreement of Sale and it has been executed only for security purpose for the amount borrowed by him.
13.Further, the appellant/defendant in his written statement has stated that he borrowed Rs.1,00,000/- as advance from the respondent/plaintiff mentioned in Ex.A1, Rs.45,000/- was returned to Mohandass, who is one of the attesting witnesses in Ex.A1 Agreement of Sale and the balance of Rs.55,000/- was not paid by the respondent/plaintiff and further stated that he paid one month interest of Rs.4,000/- to the respondent/plaintiff.
But the appellant/defendant in his deposition has admitted that he received Rs.1,00,000/- as advance as stated in Ex.A1 Agreement of Sale and paid Rs.4,000/- as one month interest to the respondent/plaintiff and further admitted that he received Rs.1,00,000/- as loan from the respondent/plaintiff before the Sub Registrar office and he read out the entire document on that date itself.
Therefore, the argument advanced on the side of the appellant/defendant is contrary to the stand stand in the written statement and deposition given by the appellant/ defendant.
Hence, the contention of the appellant/defendant that he received money of Rs.1,00,000/- as loan from the respondent/plaintiff and he has not executed Ex.A1 Agreement of Sale with a real intention to sell the suit property is not at all acceptable one.
14.(a) Further, even though the respondent/plaintiff demanded to execute the sale deed and issued notice demanding execution of sale deed in his favour, the appellant/defendant did not come forward to send any reply denying Ex.A1 Agreement of Sale.
Hence, both the courts below, after considering the entire materials available on record, have correctly come to the conclusion that A1 Agreement of Sale has been executed by the appellant/defendant with an intention to sell the suit property, as stated in Ex.A1.
14.(b) Further, even in Ex.A1 also, the property to be sold is clearly mentioned and even though, it is a small portion in the ground floor of the Apartment, the entire area and the survey number as well as the pathway to that property was cleared mentioned in Ex.A1 Agreement of Sale.
Hence, the suit property is a small portion in the Apartment, it can be saleable one and there is no prohibition to sell a small portion of the property.
Hence, in Ex.A1 also specific area in the Apartment and right of pathway has been cleared mentioned.
So the argument of the learned counsel for the appellant/defendant that the property mentioned in A1 Agreement of Sale is only a small portion in the Apartment and therefore, it is not saleable and no specific performance relief can be granted to the respondent/plaintiff, as per Ex.A1 is not hold good.
15.Further, it is argued on the side of the appellant/defendant that Ex.A2 Sale Deed, dated 20.05.1987 was given to the respondent/plaintiff and according to the appellant/defendant, Ex.A2 was a parent document, which was given to the respondent/plaintiff on the date of execution of Ex.A1 Agreement of Sale, but Ex.A2 Sale Deed has not tallied with Ex.A1.
So, the argument of the learned counsel for the appellant/defendant that there is a contradiction and Ex.A1 is contrary to Ex.A2 and therefore, no specific performance relief can be granted to the respondent/plaintiff.
16.Further, in Ex.A1 Sale Agreement, it is stated as follows:- jgrpy; Fwpg;gpLk; brhj;J ek;kpy; 2tJ egh; bgaUf;F ghwrhiy rg;bu$p!;jhpy; 1987k; tUlk; 1k; g[j;jfk; 873 y; thypak;.
1440 ek;guhf vGjp th';fpaJ.fpuag;gj;jpug;go 2tJ egUf;F mtfhrg;gl;L mjd;go 2tJ egh; g{uz chpiknahL iftrk; itj;J mDgtpj;J fuk; jPh;j;J tUtJk; vt;tpj tpy;y';fj;jpYk; cl;glhjJkhd ,jd; jgrpy; brhj;ij 2tJ egh; 1tJ egUf;F U:gha; 1,50,000/-f;F (xU byl;rj;jp Ik;gjhapuj;Jf;F) tpiyf;F jUtjhf xg;g[f;bfhz;L tpiyj; bjhifapy; tif itj;J ,d;W ml;thd;rhf 1tJ eghplk; 2tJ egh; bgw;Wf; bfhz;l U:gha; 1,00,000/- ,e;j U:gha; xU byl;rKk; 1tJ eghplk; 2tJ egh; buhf;fk; bgw;wpUg;gJkhFk;...........17.Further, the sale document No.1440 of 1987 as mentioned in Ex.A1 was handed over to the respondent/plaintiff by the appellant/defendant and Ex.A2 covers the entire property.
But as per Ex.A1 Agreement of Sale, a small portion alone has been agreed to sell by the appellant/defendant to the respondent/plaintiff.
Hence, there cannot be any difference with regard to the property and since, there is some contradiction with the above document, the respondent/plaintiff's right of specific performance relief as claimed by him cannot be denied and therefore, the argument of the learned counsel for the appellant/defendant cannot be acceptable on that ground also.
Therefore, this court is of the considered view that both the courts below, after considering the entire oral and documentary evidence available on record, have concurrently come to the conclusion that the appellant/defendant has executed Ex.A1, sale agreement agreeing to sell the property after receiving advance as stated therein and it do not require any interference by this court.
18.Further, the learned counsel appearing for the appellant/defendant has relied upon the following judgments in support of his contention:- 01.2012(5)CTC322in the case of Union Bank of India versus S.Liakat Ali, wherein it has been held as follows:- Suit for Recovery of money on Promissory Note - Execution of Promissory Note admitted by the FiRs.Defendant - Once execution is admitted, presumption would be that said Note was drawn for consideration, unless contrary is proved - Burden would be on Defendant to prove that Promissory Note is not supported by any consideration - However, issue framed by the Trial Court casting burden upon Plaintiff to prove passing of consideration - Held, said framing of erroneous issue leading to miscarriage of justice for 21 years - Order of Trial Court and the FiRs.Appellate Court ignoring presumption of law under section 118 of NI Act, patently erroneous, illegal and thus, set aside.
2.2012(3)MWN (Civil) 435 in the case of A.Annapoorani and two others versus K.R.Kaliammal and one another, wherein it is held that:- Discretion of Court - Suit for Specific Performance of Consent Agreement - Partition Deed between suit parties entered into after alleged Consent Agreement, acted upon - Intention of parties not to make any claim over other's property clear from recitals in Partition Deed - Thus, very foundation of Consent Decree lost - Enforcing of Consent Agreement, held, would amount to re- writing of Partition Deed - Moreover, clear doubts about validity of alleged Consent Decree - In such circumstances, grant of alternative relief of direction to Defendants to make payments to Plaintiffs under said Consent Decree, held, unwarranted - Decree of Trial Court, thus, set aside.
Partition Deed- Approach of Trial Court - Suit for Specific Performance of Consent Agreement - Partition Deed between parties an Exhibit in Suit - Finding of Trial Court that the partition effected between parties was not fair one - Held, when no specific prayer was made for reopening of partition, finding of Trial Court unwarranted and cannot be endorsed with.
3.AIR 2002 KERALA308 in the case of K.Bhaskaran Nair versus Habeeb Mohammed and otheRs.it is held that:- 'Oral evidence - Agreement of sale of property - Oral evidence cannot be given to show that actually transaction was intended as a loan transaction and not as agreement of sale.
Discretion of court - Original document of title deed to property handed over to purchaser - Showing that it was loan transaction and not sale deed because normally, title deed of the property is handed over when there is absolute assignment or when the property is given as security for loan - Delay in filing suit for specific performance - Non-enquiry regarding the property that was to be sold and the non-inspection of the same - Purchaser not entitled to specific performance.
4.2012(1)MWN (Civil) 642 in the case of Kadirvelu Pillai versus V.Arjunan, it is held that:- Opinion of Handwriting Expert will not become evidence unless he is examined before Court - Examination of Expert sine qua non for marking his report and treating it as evidence - In instant case, Expert Opinion was not marked by summoning Expert - Nonetheless, Report of Expert was relied upon while rendering judgment - Thus, matter remitted back to trial court for summoning Expert and proceeding thereon.
Suit for Specific Performance of Agreement to sell - Mere pleadings not sufficient to prove readiness and willingness on part of plaintiffs, there ought to be proof to that effect.
19.In this case, this court, after going through entire materials available on record, come to the conclusion that the respondent/plaintiff is entitled to specific performance relief.
the rulings cited by the learned counsel for the appellant/defendant are not applicable to the facts of this case.
20.In the result, the second appeal is dismissed and the concurrent judgment and decree of the courts below are confirmed.
Considering the facts and circumstances of the case, both the parties are directed to bear their own costs.
Consequently, connected Miscellaneous Petition is closed.
er/jrl To, 1.The Principal District Court, Kanyakumari at Nagercoil.
2.The II Additional Sub Court, Nagercoil.