Judgment :- (This appeal is filed under Section 96 and under Order 41 Rule 1 of C.P.C. praying for the relief as stated therein.) This appeal has been preferred against the decree and Judgment in O.S.No.4695/1985 on the file of VII Assistant City Civil Court, Chennai. The plaintiff who was granted an alternative relief against her parents D1 and D2 by the trial Court, has preferred this appeal. 2. The short facts of the case of the plaintiff in the amended plaint are as follows: The plaintiff had advanced a sum of Rs.30,000/- to wipe off the debts borrowed by the deceased first defendant and the second defendant for purchasing the property NO.4-A, Thiruvengadam Street, Adyar, Madras-20 . The first defendant( since deceased) and the second defendant have executed a promissory note for Rs.30,000/- on 9.10.1982 agreed to repay the amount at the rate of 18% interest per annum. On 10.10.1982, the deceased first defendant and the second defendant also entered into an another agreement in which they agreed to repay the amount within two years and if the defendants fail to repay the amount within two years the option is given for the plaintiff to purchase the property at the prevailing sub registration value of the property within one year ie., before 10.10.1985. The deceased first defendant and the second defendant have borrowed some amount from Mr. Narayanan on heavy terms for purchasing the suit property and since they wanted to discharge the amount and since they could not pay the huge interest, they approached the plaintiff for the loan of Rs.30,000/- to discharge the loan borrowed from the said Narayanan. The plaintiff herself sold her jewels and also from her savings raised the funds and gave the same to the deceased first defendant and the second defendant. The plaintiff requested some amount to be paid to her since her husband has to meet his business requirements. However, the deceased first defendant and the second defendant have promised to pay the amount by the end of the second year ie., during the year 1984 October. Even after that also the money was not forthcoming from the defendants. The plaintiff requested some amount to be paid to her since her husband has to meet his business requirements. However, the deceased first defendant and the second defendant have promised to pay the amount by the end of the second year ie., during the year 1984 October. Even after that also the money was not forthcoming from the defendants. The plaintiff states that the defendants were heavily indebted to various persons and they could not repay the borrowed amount and during the month of March 1985 the plaintiff approached the defendants either to sell the house to them as agreed or to pay the money back. During the end of May 1985, it was agreed between the plaintiff and the defendants 1 and 2 that the plaintiff shall purchase the house at the rate of Rs.50,000/- undertook to pay Sub Registrar's valuation deducting the principal amount and interest whatever comes at the time of sale and the balance amount shall be paid to the defendants 1 and 2 during the month of Tamil Avani since the plaintiff requested some time to raise funds to execute the sale deed since they have got time till 10.10.1985 as per the agreement. While so, the plaintiff came to know that there was some suspicious movement were taken place in the first and second defendants' house ie., removing their movables to some other place on 20th June 1985. On enquiry, she came to know that the defendants 1 and 2 are trying to sell the property to some third party surreptitiously and the plaintiff went and enquired the defendants 1 and 2 about their move, the defendants 1 and 2 picked up quarrel with the plaintiff and refused to answer the question raised by the plaintiff nor did the defendants disclose the name of the prospective buyer. However, the plaintiff came to know through their counsel, as to who is dealing with the property. On 21.6.985, the plaintiff immediately gave a telegram to the counsel stating that the defendants 1 and 2 are heavily indebted to the plaintiff and not to enter in to the transaction and they have got right to purchase the property. However, defendants 1 and 2 are trying to alienate the property in order to defeat the just and right claim of the plaintiff. However, defendants 1 and 2 are trying to alienate the property in order to defeat the just and right claim of the plaintiff. Since there is no time for the plaintiff to issue the lawyer's notice, the plaintiff sent a telegram on 22.6.1985 to the defendants 1 and 2(1st defendant since deceased) not to enter in to the transaction to any third party to sell the property. It was agreed between the plaintiff and the defendants 1 and 2 that the plaintiff shall purchase the house during the month of Avani(Tamil) 1985 because Adi Tamil month is intervening. The plaintiff has got right to purchase the property till 10.10.1985 as per agreement entered in to between the plaintiff and the defendants. But contrary to the said agreement, the plaintiff came to know that the sale deed has been prepared and that at any moment they may execute the sale deed in favour of the third party. Further the plaintiff has got right by virtue of the contract entered in to between them on 10.10.1982. The plaintiff is always ready and willing to purchase the property and perform her part of contract since the defendants 1 and 2 who have deviated and dishonestly trying to dispose of the property to third parties. The plaintiff submits that on several occasions, the plaintiff approached the defendants 1 and 2 either to execute the sale or return back the money with interest. Even though, the defendants 1 and 2 have agreed to execute the sale deed, they have failed and neglected to perform their part of the contract nor did they return the amount of Rs.30,000/- with interest at 18% per annum in all the defendants 1 and 2 have to pay a sum of Rs.44,730/- if the contract is not performed and the sale deed is not executed. The interest of the plaintiff is protected since she is the earliest agreement holder. The plaintiff sent a telegram to the defendants 1 and 2 on 22.6.1985 calling upon the defendants 1 and 2 to refrain from selling the house since the plaintiff has got right to purchase the property and also without settling the plaintiff's claim they cannot sell the property to any third party. Hence the suit. 3. The plaintiff sent a telegram to the defendants 1 and 2 on 22.6.1985 calling upon the defendants 1 and 2 to refrain from selling the house since the plaintiff has got right to purchase the property and also without settling the plaintiff's claim they cannot sell the property to any third party. Hence the suit. 3. The first defendant and the second defendant have filed a joint written statement contending that the plaintiff who is the third daughter of the defendants 1 and 2 is not capable of advancing a sum of Rs.30,000/- as alleged by her. There was no need for these defendants to borrow any amount from the plaintiff who is their daughter. On the other hand, the plaintiff and the defendants borrowed an amount of Rs.40,000/- jointly from one Mr.S.Lakshminarayanan along with their sons P.N.Sudhakar and P.N.Muralidharan and the husband of the plaintiff Mr.Srinivasan for purchase of Flat No.4-A ,in favour of the first defendant and Flat NO.4-D in favour of the plaintiff(each borrowing a sum ofRs.20,000/- Subsequently, as these defendants could not repay the loan amount, they entered into an agreement of sale with their second son in law Mr.K Venkataraman who also wanted to purchase a Flat at Madras and entered into an agreement of sale on 27.8.1982 to convey the Flat NO.4-A at Thiruvengadam Street, at Adyar, either to him or to his nominee. Later, he could not immediately complete the transaction of sale and discharge the loan of Rs.20,000/- taken by these defendants. At that time,the husband of the plaintiff Srinivasan approached the defendants and informed them that he was in a position to discharge the loan of Rs.20,000/- borrowed by him from Lakshminarayanan, and as Mr.Lakshminarayanan will be insisting on the entire loan amount of Rs.40,000/- , he insisted the plaintiff's husband should have some security for the amount of Rs.20,000/- likely to be paid by him on behalf of the defendants also and so paying forcefully obtained signatures of these defendants in two blank three rupees Non-Judicial Stamp Papers in which there were already some thumb impression and one more Green blank bond paper. But when these defendants wanted a security in the event of their discharging the loan, the said Srinivasan informed the defendants that the sale was not likely to be held and stated that the Flat in the name of the plaintiff will be a security. But when these defendants wanted a security in the event of their discharging the loan, the said Srinivasan informed the defendants that the sale was not likely to be held and stated that the Flat in the name of the plaintiff will be a security. So, there was no agreement or financial arrangements by which these defendants are bound to pay any amount to the plaintiff. The plaintiff did not advance or was not capable of advancing any amount as alleged earlier. So the allegations to the contrary in paragraph 3 of the plaint are all untrue and untenable. The contents of the agreement should have been subsequently written or typed by the plaintiff who failed in her attempts to prevent these defendants from effecting the sale of the property situated at No.4-A, Thiruvengadam Street, Madras. So the allegations to the contrary in paragraphs 4 and 5 are also untrue and are nothing but false statement made deliberately just to evoke the sympathy of this Court. There is no agreement between the plaintiff and the defendants to convey the Flat situate at No.4-A, Thiruvengadam Street, at any point of time. There is no agreement at all between the plaintiff and the defendants to receive any amount from the plaintiff and to convey the property. In fact no amount was advanced by the plaintiff to the defendants. The plaintiff herself was not in an affluent circumstances to advance any amount. The property was sold on 19.9.1985 to one Kandadai Srinivasa Ramakrishna Iyenger alias Ramakrishnan, the nominee of K.N.Venkataraman, persuant to an earlier agreement of sale in his favour and coming to know that these defendants have discharged the entire loan amount with interest thereon, to S.Lakshminarayanan, including the amount due by the plaintiff and coming to know that she and her husband will be called upon to pay the amount of Rs.24,000/- due by way of principle and interest payable by them to S.Lakshminarayanan to these defendants who in turn discharged the same, taking advantage of the blank signatures obtained in the Non-Judicial Stamp Papers and a Green Bond Paper have approached this Court to obtain an order of temporary injunction on untenable grounds after a sale completed just to cause hardship to these defendants. So the present plaintiff has deliberately filed the present suit with the connivance of her husband just to cause irreparable loss and injury to these defendants. So the present plaintiff has deliberately filed the present suit with the connivance of her husband just to cause irreparable loss and injury to these defendants. There is no merit in the suit. These defendant have already filed the suit in O.S. No.5223 of 1985 on the file of this Court for the amount due to them by the plaintiff , representing the amount due and payable by the plaintiff for the loan amount due by her and her husband to Mr.S.Lakshminarayanan discharged by these defendants. Without any basis, the plaintiff has filed the suit against her parents. Hence the suit is liable to be dismissed with costs. 4. In the additional written statement filed by the defendants 1 and 2, they would contend that the present plaintiff will not be entitled to claim possession of the Flat bearing door No.4-A, Thiruvengadam Street, Adayar, Madras 20 as it is the sole and exclusive property of the third defendant who is a bonafide purchaser for value. 5. The third defendant in his written statement would contend that he is the nominee of Sri K.Venkataraman, who entered into an agreement of sale on 27.8.1982 and is a bonafide purchaser for value without notice. The allegations to the contra in the plaint are not true. This defendant adopts the written statement of defendants 1 and 2 in other respects. Any how, this defendant has purchased the property for a valuable consideration without notice on 19.6.1985 and as the suit has been filed by the plaintiff deliberately and want only subsequent to the purchase by the third defendant the present suit is to be dismissed with exemplary costs. 6. The other defendants remained exparte. 7. After going through the rival contentions of the parties and their pleadings, the learned trial Judge has framed four issues and on the basis of oral and documentary evidence let in by both plaintiff and the defendants, has granted an alternative relief under Ex A1 promissory note and dismissed the suit in respect of relief for Specific performance of contract under Ex A2 sale agreement. Aggrieved by the findings of the learned trial Judge, the plaintiff has preferred this appeal. 8. Now the point for determination in this appeal is "Whether the decree and Judgment in O.S.No.4695 of 1985 is liable to be set aside for the reasons stated in the memorandum of appeal? 9. Aggrieved by the findings of the learned trial Judge, the plaintiff has preferred this appeal. 8. Now the point for determination in this appeal is "Whether the decree and Judgment in O.S.No.4695 of 1985 is liable to be set aside for the reasons stated in the memorandum of appeal? 9. The Point : It is an unfortunate case in which the plaintiff, who is the daughter of defendants 1 and 2 has filed the suit on the basis of Ex A2, sale agreement in respect of Flat No.4-A. Thiruvengadam Street, Adayar, Madras-20 for specific performance of Contract. Alternatively the plaintiff has based her claim under Ex A1 promissory note for a decree to recover a sum of Rs.44,370/- with future interest being the amount due under Ex A1 promissory note from the defendants 1 and 2. Not satisfied with the relief regarding a decree for Rs.44,370/- with 18% interest on the basis of Ex A1 promissory note, the plaintiff has preferred this appeal for the relief asked for by her under Ex A2 for specific performance of contract. The learned trial Judge, on the basis of Ex B3 sale deed dated 19.6.1985, in favour of third defendant in respect of the above said suit property has rejected the claim of the plaintiff for specific performance of contract in respect of the suit property and had granted an alternative relief on the basis of Ex A1 promissory note. 10. The learned counsel appearing for the appellant would contend that Ex B3 sale deed is hit by lis pendens because the said sale deed was registered only on 3.7.1985 ie., subsequent to the filing of the suit on 22.6.1985. A perusal of Ex B3 registration copy of the sale deed executed by the first defendant in favour of the third defendant will go to show that the document was executed on 19.6.1985 itself and a sum of Rs.5,000/- has been paid on 11.6.1985 itself towards part of the total sale consideration of Rs.85,000/-. The recitals further reads that the balance of Rs.80.000/- is to be paid on the date of registration of the sale deed. The recitals further reads that the balance of Rs.80.000/- is to be paid on the date of registration of the sale deed. Section 52 of the Transfer of Property Act runs as follows: "During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceedings so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. (Explanation) For the purposes of this Section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force". 11. The learned counsel appearing for the appellant would contend that even the consideration passed under Ex B3 sale agreement was denied by the third defendant himself while he was examined before the trial Court as D.W.3 and hence would contend that Ex B3 sale deed was not taken by the third defendant for valuable consideration and that the third defendant is not a bonafide purchaser for value. D.W.3 was examined in chief on 19.11.1990 and he was cross examined on 12.12.1990. In the cross examination D.W.3 would depose that the recital in Ex B3 to the effect that a sum of Rs.80.000/- was paid before the Sub Registrar was a mistake. But he would say that he had purchased the property for Rs.85,000/- and towards consideration , he paid a sum of Rs.5,000/- as advance on 12.6.1984 and he had paid Rs.50,000/- and has paid the balance on 3.7.1984 before the Sub Registrar. But he would say that he had purchased the property for Rs.85,000/- and towards consideration , he paid a sum of Rs.5,000/- as advance on 12.6.1984 and he had paid Rs.50,000/- and has paid the balance on 3.7.1984 before the Sub Registrar. This evidence of D.W.3 is quite contrary to the recitals in Ex B3. But under Section 92 of the Evidence Act, if there is a discrepancy between the documentary evidence and the oral evidence, only the documentary evidence will prevail. Section 92 of the Evidence Act runs as follows: "When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms: Proviso (1): - Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law; Proviso (2): - The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document; Proviso (3): - The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved; Proviso (4): The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be provided except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents; Proviso (5): - Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved. Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract. Proviso (6): - Any fact may be proved which shows in what manner the language of a document is related to existing facts". So the contentions of the learned counsel appearing for the appellant that Ex B3 cannot be given due credit holds no water. 12. The learned counsel appearing for the appellant would raise another contention that the third defendant being a subsequent purchaser cannot be allowed to plead for the first and second defendants, the vendors of the suit property under Ex B3 in favour of the third defendant. This objection was controverted by the learned counsel appearing for the respondents by relying on Bhagwandas Fatechand Daswani and four others- vs- H.P.A. International, a partnership firm carrying on its business at No.8C, Old No.15/16 Casa Major Road, Egmore, Madras 8 rep. by its Managing Partner H.A.Md. Aleemuddin and two others (2001(3)CTC 86) wherein it has been held as follows: "A subsequent purchaser-even one who has purchased with knowledge of the agreement, is entitled to plead by way of defendant any ground available to him under the law relating to contract. Section 9 of the Specific Relief Act confers that right on the person against whom the relief is claimed. Relief having been claimed against the purchaser, plea regarding existence of an enforceable contract can be raised by the purchasers. It has been held by the Apex Court in the case of Ram Awdh v.Achhaibar Dubey, 200(2)SCC 428 that the lack of readiness and willingness on the part of the plaintiff can be raised by the subsequent purchaser, as that is an essential requirement that should be satisfied by anyone claiming specific performance. The subsistence of a legally enforceable contract being the very foundation for the grant of relief, it is the duty of the plaintiff to establish the same and a subsequent purchaser defendant is entitled to raise a plea in that regard. The conduct of the defendant during the trial has no bearing whatsoever on the determination of that question". 13. The subsistence of a legally enforceable contract being the very foundation for the grant of relief, it is the duty of the plaintiff to establish the same and a subsequent purchaser defendant is entitled to raise a plea in that regard. The conduct of the defendant during the trial has no bearing whatsoever on the determination of that question". 13. The learned counsel appearing for the appellant relying on the decision reported in Vasantha Viswanathan and others -vs- V.K.Elayalwar and others(2001)8 Supreme Court Cases 133) and contended that since the sale consideration was not passed in full on 19.6.1985 under Ex B3, the third defendant cannot acquire any title to the suit property and only after filing of the suit property, the said Ex B3 was registered on 3.7.1985 and so no title to the suit passed in favour of the third defendant. The above contention of the learned counsel appearing for the appellant cannot be sustainable because the above said dictum was rendered under Section 19 of the Sale of Goods Act 1930 wherein it has been held that when it was intended between the plaintiff-respondent and defendant 1 that the property in vehicles would pass to defendant 12 after the price of the vehicles in question is determined and paid subsequent to the completion of registration formalities, the same could not be held to have passed to defendant 1 in the absence of determination of value of vehicles in question and subsequent payment thereof and it has been held in the case, the plaintiff therefore was entitled to profits earned by defendant 1 and appellant-defendants 4 to 7 from plying of the vehicles forcibly taken under their possession after the transfer of permits in their name. In the case on hand, Section 19 of Sale of Goods Act has no application at all because the property involved in this case is an immovable property wherein only Transfer of Property Act will be applicable and not Sale of Goods Act 1930. So the facts of the above case will not be applicable to the present facts of the case. So the facts of the above case will not be applicable to the present facts of the case. The learned trial Judge, after meticulously going through the evidence both oral and documentary has come to a correct conclusion that a remedy open to the plaintiff is only under Ex A1 promissory note and not under Ex A2 sale agreement and consequently decreed the suit on the basis of Ex A1 promissory note. I do not find any illegality or infirmity in the findings of the learned trial Judge which does not warrant any interference from this Court. The point is answered accordingly. 14. In fine, this appeal is dismissed with costs confirming the decree and Judgment in O.S.No.4695 of 1983 on the file of VII Assistant City Civil Court, Chennai.