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2014 DIGILAW 239 (MAD)

Go. Neelahram v. K. Sivaraman Alwa

2014-01-31

ARUNA JAGADEESAN

body2014
JUDGMENT 1. This suit has been filed to pass a Judgment and Decree against the Defendants, (1) directing the Defendants 1 and 2, jointly and severally, to pay the sum of Rs.1,72,99,300/- towards the balance sale consideration for the sale of the Schedule-A and B mentioned properties in favour of the 1st Defendant, (2) directing the 1st Defendant to pay a sum of Rs.40,00,000/- towards repayment of the hand loan availed by him with interest at the rate of 12% p.a. from the date of the plaint until realization (3) for costs. 2. The plaint averments are as follows:- a. The Plaintiff is engaged in the Real Estate Business and he had negotiated the purchase of two properties mentioned in the Schedule A and B from their owners M/s. Aditi Diamonds Private Limited and Manju Bonke, by paying the entire sale consideration and by obtaining two registered Power of Attorney deeds dated 9.8.2006 along with two separate Sale Agreements dated 9.8.2006 in order to avoid double registration. The Plaintiff paid a sale consideration of Rs.59,74,150/- for A-Schedule property and Rs.1,15,25,500/- for B-Schedule property and the total consideration paid by the Plaintiff is Rs.1,74,99,650/- and took physical possession of both the suit properties. The Plaintiff negotiated the sale of the said two properties with the 1st Defendant for Rs.700/- per sq.ft. in the capacity of the Power of Attorney Agent of the said erstwhile owners and entered into two separate sale agreements dated 15.11.2006 with the 1st Defendant for a total sale consideration of Rs.3,49,99,300/- for the said two properties. The 1st Defendant paid a sum of Rs.1,10,00,000/- for both the sale agreements viz. Rs.1 lakh for A-Schedule property and Rs.1,09,00,000/- for B-Schedule property by way of cash on 15.11.2006. Apart from the said payment, the 1st Defendant issued three cheques for a total sum of Rs.67,00,000/- towards further part payment of the sale consideration and thus, the Plaintiff received a total sum of Rs.1,77,00,000/- as part sale consideration out of the total consideration of Rs.3,49,99,300/-. b. As per the said two sale agreements dated 15.11.2006, the 1st Defendant had to pay the balance sale consideration of Rs.1,72,99,300/- on or before the date of registration of the sale deed in favour of the 1st Defendant in respect of the suit properties. b. As per the said two sale agreements dated 15.11.2006, the 1st Defendant had to pay the balance sale consideration of Rs.1,72,99,300/- on or before the date of registration of the sale deed in favour of the 1st Defendant in respect of the suit properties. In the meantime, on 19.5.2007, the 1st Defendant came to Chennai and requested him to give a hand loan of Rs.40,00,000/- for his business commitments and assured that he would repay the same along with the balance sale consideration. The Plaintiff granted the hand loan of Rs.40,00,000/- to the 1st Defendant by way of two cheques dated 19.5.2007 for Rs.20 lakhs each drawn on UCO Bank, Chennai-6. Thus, the total sum payable by the 1st Defendant was Rs.2,12,99,300/- as on 19.5.2007. Since the 1st Defendant was not able to pay the full payment of the sale consideration as well as the said hand loan of Rs.40 lakhs, he came with a proposal that after registering the sale deed in respect of the suit properties, by pledging the registered two sale deeds with the Bank, he would pay the balance sale consideration and the said hand loan. Though there was a great risk involved in the said proposal, the Plaintiff signed two unregistered sale deeds dated 27.3.2007 in favour of the 1st Defendant. But, the 1st Defendant could not convince the Bank with the said documents to raise funds. After much persuasion, finally, the Plaintiff signed two draft sale deeds for sale of both the properties on 31.3.2008 and the same were registered on 28.7.2008 in the name of the 2nd Defendant, who is the Benami of the 1st Defendant. Immediately, the 1st Defendant obtained a registered Power of Attorney in his favour from the 2nd Defendant on the same day dated 28.7.2008, registered on 29.7.2008. Thereafter, the 1st Defendant started evading the Plaintiff and giving excuses for the delay in arranging the funds. In spite of several demands made by the Plaintiff, the 1st Defendant not only evaded to meet the Plaintiff, but also his conduct created a serious doubt about his commitment to pay the amount. On 16.10.2008, the Plaintiff sent a SMS to the 1st Defendant, requesting him to pay the balance sale consideration, failing which he would initial legal proceedings, but however, there was no reply from the 1st Defendant. On 16.10.2008, the Plaintiff sent a SMS to the 1st Defendant, requesting him to pay the balance sale consideration, failing which he would initial legal proceedings, but however, there was no reply from the 1st Defendant. c. Therefore, the Plaintiff sent a legal notice dated 11.12.2008, calling upon the 1st Defendant to pay the total sum of Rs.2,12,99,300/- being the balance sale consideration and the hand loan of Rs.40,00,000/-. Even after receipt of the said legal notice, the 1st Defendant did not come forward to pay the amount, but sent a reply notice dated 29.1.2009, making false averments against the Plaintiff, as though he had nothing more to pay and the sale of the suit properties were complete in all respects and 2nd Defendant also sent a reply notice dated 27.1.2009 on the same lines as that of the 1st Defendant. After receipt of the legal notice, the Defendants were attempting to take possession of the suit properties through illegal means and to dispose of the same to third parties and hence, the Plaintiff issued a paper publication dated 29.1.2009. The Plaintiff also filed a suit in OS.No.441/2009 before the Principal District Munsif, Pondicherry, against the Defendants for permanent injunction restraining the Defendants 1 and 2 from interfering with the possession and enjoyment of the suit properties by the Plaintiff, which is pending. Since, the Plaintiff is in possession of the suit properties and the 1st Defendant has not paid the balance sale and the hand loan as stated above, the present suit has been filed for the reliefs as stated above. 3. In the Written Statement filed by 1st Defendant, it is averred as follows:- a. Two Power of Attorney Deeds vide Document Nos.678 and 679/2006 were executed and registered by the erstwhile owners of the suit properties, appointing the Plaintiff as their Agent, authorizing him to sell the suit properties to third parties on their behalf and the said two power of attorneys were not executed for any consideration and no interest in the suit properties was transferred to the Plaintiff. The 2nd Defendant has authorized the 1st Defendant to negotiate the sale with the Plaintiff. Subsequently, two sale agreements dated 15.11.2006 were entered into between them and the 1st Defendant paid a sum of Rs.1,77,00,000/-. At that time, Government of Pondicherry proposed for construction of an over bridge above the canal located west of the suit properties. The 2nd Defendant has authorized the 1st Defendant to negotiate the sale with the Plaintiff. Subsequently, two sale agreements dated 15.11.2006 were entered into between them and the 1st Defendant paid a sum of Rs.1,77,00,000/-. At that time, Government of Pondicherry proposed for construction of an over bridge above the canal located west of the suit properties. Without the bridge, the suit properties are accessible only through a small lane originating from Maramalaiadigal Salai. Only with the proposal for construction of over bridge, the Plaintiff could offer the properties for sale. Suddenly, the proposal for construction of the over bridge, which was partly implemented, was suspended and the project was abandoned. Therefore, the Defendants did not want to go ahead with the purchase. However, the Plaintiff wanted to forfeit the entire sum paid. However, the Plaintiff was willing to repay Rs.40,00,000/- if the 2nd Defendant agreed to purchase the property on paying the sum of Rs.1,40,50,000/- in one lump sum. Accordingly, refunding Rs.40,00,000/- to the 1st Defendant, the Plaintiff agreed to register the sale deed for the suit properties in favour of the 2nd Defendant, if the 2nd Defendant pays Rs.1,40,50,000/- by cash. Subsequently, after receiving the said sum, the Plaintiff sold the suit properties to the 2nd Defendant under sale deeds dated 31.3.2008 which were registered on 28.07.2008 as Doc.Nos.4106 and 4105/2008. b. The two sale deeds were executed by the Plaintiff in his capacity as the Power Agent of his Principals. Thus, the 2nd Defendant was put in possession and enjoyment of the suit properties and the Plaintiff delivered possession of all the title deeds relating to the suit properties to the 2nd Defendant on the same day. Thereafter, as there was increase in the price of the suit properties, the Plaintiff began to demand additional sum from the 2nd Defendant. While so, the Plaintiff issued a legal notice dated 11.12.2008, making false allegations, for which a reply was also sent. While so, the Plaintiff filed OS.NO.2/2009, in which there was no interim order granted by the court. While so, the Plaintiff filed the present civil suit before this court, which does not have territorial jurisdiction and no part of the alleged cause of action occurred within the jurisdiction of this court. While so, the Plaintiff filed OS.NO.2/2009, in which there was no interim order granted by the court. While so, the Plaintiff filed the present civil suit before this court, which does not have territorial jurisdiction and no part of the alleged cause of action occurred within the jurisdiction of this court. In any event, the Plaintiff having omitted to make the claim made in this suit in his earlier suit in OS.No.441/2009 on the same cause of action, the relief sought in this suit is barred by Order II Rule 2 of CPC. c. The alleged sale receipts and sale agreements dated 9.8.2006 are fabricated by the Plaintiff for the purpose of the suit. The allegation that the sale agreements in favour of the Plaintiff were in force is false and the alleged agreements referred to are fabricated. It is true that the 1st Defendant paid a sum of Rs.1,77,00,000/-. The sum of Rs.40,00,000/- received by the 1st Defendant is towards the partial refund of advance sum of Rs.1,77,00,000/- repayable by the Plaintiff to the 1st Defendant pursuant to the rescission of the sale agreements dated 15.11.2006. The sale executed in favour of the 2nd Defendant is an independent transaction superseding the earlier agreements between the Plaintiff and the 1st Defendant and it is false and baseless to state that the 2nd Defendant is benami of the 1st Defendant. The 1st Defendant has nothing to do with the sale of the suit properties effected in favour of the 2nd Defendant and the Plaintiff is attempting to take advantage of the pre-existing sale agreements entered into by the 1st Defendant independently without the knowledge and consent of the 2nd Defendant. d. The 2nd Defendant is within his legal rights to appoint any person including the 1st Defendant as his Power Agent and the Plaintiff is taking advantage of the appointment of the 1st Defendant as 2nd Defendant's agent to canvass a baseless claim against the Defendants. The Plaintiff sent false messages through cell phone in order to fabricate evidence against the Defendants. Neither the Plaintiff nor the 1st Defendant is in possession of the suit properties. The 2nd Defendant as the owner is in possession of the suit properties. In such circumstances, the plaint is liable to be rejected under Order VII Rule 11 of CPC. 4. Neither the Plaintiff nor the 1st Defendant is in possession of the suit properties. The 2nd Defendant as the owner is in possession of the suit properties. In such circumstances, the plaint is liable to be rejected under Order VII Rule 11 of CPC. 4. The 2nd Defendant also filed a separate the Written Statement, reiterating the averments as stated in the Written Statement filed by the 1st Defendant. . 5. The following issues were framed for determination:- 1. Whether this Court has territorial jurisdiction for deciding and trying the suit? 2. Whether the suit is not barred under the provisions of Order 2 Rule 2 of CPC, in view of the earlier suit in OS.No.441/2009 on the file of the learned Principal District Munsif, Pondicherry? 3. Whether the Plaintiff is entitled to recover the sum of Rs.1,72,99,300/- from the Defendants being the balance of sale consideration for A & B Schedule Properties? 4. Whether the Plaintiff is entitled to recover the sum of Rs.40,00,000/- received by the 1st Defendant as hand loan? 5. Whether the Defendants have repaid the entire amount of Rs.40,00,000/- received from the Plaintiff? 6. Whether the Plaintiff is a competent person to institute the suit under Section 230 of the Contract Act? 7. Whether the Plaintiff is entitled to let in evidence contravening the provisions of Section 91 of the Indian Evidence Act? 8. To What other reliefs, the Plaintiff is entitled to? 6. On the side of the Plaintiff, PW.1 to PW.3 were examined and Ex.P1 to Ex.P23 were marked. On the side of the Defendants, DW.1 was examined. 7. This court heard the learned counsel on either side and also perused materials on record. 8. Issue No. (1):- The reliefs sought in the Suit is in respect of immovable properties, which are situated in Pondicherry. Admittedly, Mrs.Manju Bonke and M/s.Aditi Diamonds Pvt. Limited are the erstwhile owners of the two items of the suit properties respectively. The Plaintiff, who is the Power Agent of Mrs.Manju Bonke and M/s.Aditi Diamonds Pvt. Limited, under the authority given by his Principals sold the properties to the 2nd Defendant. According to the Plaintiff, since a part of cause of action has arisen in Chennai, this Court has jurisdiction to entertain the suit. Ex.P3 and Ex.P4 are the sale agreements dated 15.11.2006 entered into between the Plaintiff and the 1st Defendant for Schedule A and B properties respectively. According to the Plaintiff, since a part of cause of action has arisen in Chennai, this Court has jurisdiction to entertain the suit. Ex.P3 and Ex.P4 are the sale agreements dated 15.11.2006 entered into between the Plaintiff and the 1st Defendant for Schedule A and B properties respectively. In Ex.P3 and Ex.P4, there is a mention about the agreement being executed at Chennai. Admittedly, the 1st Defendant resides at Pondicherry. The Principals also reside at Pondicherry. The stamp papers for Ex.P3 and Ex.P4 agreements had been purchased only in Pondicherry. Ex.P5 and Ex.P6 sale deeds in favour of the 2nd Defendant executed by the Plaintiff as Power Agent of Mrs.Manju Bonke and M/s.Aditi Diamonds Pvt. Limited are also executed at Pondicherry. The legal notice has been issued by the Plaintiff on 11.12.2008 and only in the said notice, it is stated by the Plaintiff that Ex.P3 and Ex.P4 agreements were executed at Chennai. Even in the earlier suit filed by the Plaintiff in OS.No.441/2009, it is not stated that those agreements were executed at Chennai. 9. Section 20 of CPC recognizes the territorial jurisdiction of courts, inter alias, wherever the cause of action wholly or in part arises. In suits, arising out of contract, the cause of action arises within the meaning of this section in any of the places namely, (i) the place where the contract was made, (ii) the place where the contract was to be performed or performance thereof completed and (iii) the place wherein performance of the contract any money to which the suit relates was expressly or impliedly payable. The making of the contract is part of the cause of action. A suit on a contract, therefore, can be filed at the place where it was made. 10. In the present case, it is the case of the Plaintiff that the sale agreements Ex.P3 and Ex.P4 were executed at Chennai. In his evidence, he admitted that the agreements Ex.P3 and Ex.P4 do not state that they were signed at Chennai. Quite contrary to his statement, PW.2 Perumal one of the attestors to the agreements Ex.P3 and Ex.P4 has admitted in his cross examination that Ex.P3 and Ex.P4 were executed in Pondicherry. In his evidence, he admitted that the agreements Ex.P3 and Ex.P4 do not state that they were signed at Chennai. Quite contrary to his statement, PW.2 Perumal one of the attestors to the agreements Ex.P3 and Ex.P4 has admitted in his cross examination that Ex.P3 and Ex.P4 were executed in Pondicherry. At this juncture, it has to be pointed out that the earlier suit filed by the Plaintiff in respect of the suit properties, on the basis of Ex.P3 and Ex.P4 was filed in Pondicherry Court. The Defendants neither resided nor carried on business nor did any part of the cause of action arise within the local limits of the jurisdiction of this Court. The Defendants have raised objection even at the first instance as to the place of suing and in spite of such objection, the Plaintiff proceeded with the suit. Therefore, in my considered view, the contention of the Defendants as to lack of territorial jurisdiction of this court has all merits and the findings of issue no.(1) has to be returned in favour of the Defendants and against the Plaintiff. Accordingly, issue no.(1) is answered against the Plaintiff. 11. Issue No.(6):- This issue pertains to the competency of the Plaintiff to institute this suit. Indisputably, Mrs.Manju Bonke and M/s.Aditi Diamonds Pvt. Limited are the owners of the suit property and the Plaintiff is their Power Agent. This suit has been instituted in his individual capacity. Ex.P3 and Ex.P4 sale agreements have been entered into by the Plaintiff only as Power Agent of the owners of the suit properties. The sale deeds dated 31.3.2008, Ex.P5 and Ex.P6, were executed in favour of 2nd Defendant by the Plaintiff only as Power Agent of the vendors/owners. It is stated by the Plaintiff in paragraph 28 of the Plaint that he is still in possession of the properties since the 1st Defendant has not paid the balance sale consideration of Rs.1,72,99,300/- and therefore, the sale of the said properties is incomplete and the Plaintiff is entitled to seek for a declaration that the two sale deeds executed in favour of the 2nd Defendant are null and void. However, he has sought for the relief of recovery of money towards the balance sale consideration of the suit properties. So, the Plaintiff has sought for the reliefs prayed by him only as Power Agent of the owners of the suit properties. However, he has sought for the relief of recovery of money towards the balance sale consideration of the suit properties. So, the Plaintiff has sought for the reliefs prayed by him only as Power Agent of the owners of the suit properties. Though the Plaintiff claims to have purchased the property from the owners after having paid the sale consideration as per Ex.P1 and Ex.P2, but those documents shows that the Plaintiff has entered into sale agreement with the owners on the same day and the owners have executed General Power of Attorney in favour of the Plaintiff. But, those documents are not filed in this court. 12. The Plaintiff has admitted in categorical terms that the sale deeds Ex.P5 and Ex.P6 and sale agreements Ex.P3 and Ex.P4 make it clear that he is only the power of attorney holder of Mrs.Manju Bonke and M/s.Aditi Diamonds Pvt. Limited. He has also admitted that he has filed the suit on the basis of Ex.P3 to Ex.P6. 13. The learned counsel for the Defendants contended that the claim being put forward by the Plaintiff as agent of his vendor, an agent cannot maintain a suit under Section 230 of the Contract Act. The learned counsel for the Defendants contended that an agent is entitled to maintain a suit personally for the recovery of the balance of sale consideration, if the contract is made by him for the sale of the property not as power of attorney agent of the vendors. Ex.P3 to Ex.P6 in this case was not executed by the Plaintiff in his personal capacity, but as power agent of the erstwhile owners. In fact, he has admitted in his evidence that he has signed the documents in his capacity as the power of attorney holder of Mrs.Manju Bonke and M/s.Aditi Diamonds Pvt. Limited. It is settled law that an agent is not entitled to personally enforce a contract entered into by him on behalf of his Principal nor is he personally bound by such contract. Under Section 230 of the Contract Act, if an agent acts on behalf of his Principal, the Principal being disclosed, he is not entitled to sue or can be sued on such contracts. Under Section 230 of the Contract Act, if an agent acts on behalf of his Principal, the Principal being disclosed, he is not entitled to sue or can be sued on such contracts. The form in which the sale agreements and sale deeds were drawn up showed that the Plaintiff was not personally treated as the vendor and the intention that could be drawn from those documents is that he acted only as power of attorney agent of Mrs.Manju Bonke and M/s.Aditi Diamonds Pvt. Limited. That apart, there is no authority empowering him to file a suit on the date of the suit. The Plaintiff has not produced the power of attorney deed executed by the principals. It is not known as to whether the Power of Attorney executed by the Principals is general power or special power of attorney. The terms and conditions governing the parties relationship with regard to the transaction in question between the Plaintiff and his principals are not expressly spelt out anywhere. The right of the Plaintiff to sue personally on the contract made on behalf of his principal cases on the intervention of the Principal on the sale deed being executed by the latter in favour of the 2nd Defendant. The two sale deeds Ex.P5 and Ex.P6 had been executed by the Plaintiff in his capacity as the Power Agent of his respective Principals and not in any other capacity. The sale deeds provide that the suit property is sold free from all encumbrances and the 2nd Defendant is allowed to enjoy the property with absolute rights without any hindrance whatsoever. Under the said circumstances, I hold that the Plaintiff cannot maintain the suit against the Defendants. Accordingly, issue no.(6) is answered against the Plaintiff. 14. Issue Nos.(3), (4), (5) and (7):- It is the case of the Plaintiff that the sale consideration was fixed at the rate of Rs.700/- per sq.ft. and the total consideration was fixed at Rs.3,49,99,300/- for both A and B schedule properties. Ex.P3 and Ex.P4 agreements of sale dated 15.11.2006 were executed between the Plaintiff and the 1st Defendant and pursuant to the said agreements, the Plaintiff received a total sum of Rs.1,77,00,000/- as part sale consideration out of the total sum of Rs.3,49,99,300/-. and the total consideration was fixed at Rs.3,49,99,300/- for both A and B schedule properties. Ex.P3 and Ex.P4 agreements of sale dated 15.11.2006 were executed between the Plaintiff and the 1st Defendant and pursuant to the said agreements, the Plaintiff received a total sum of Rs.1,77,00,000/- as part sale consideration out of the total sum of Rs.3,49,99,300/-. He has stated that the 1st Defendant was expected to pay the sale consideration of Rs.1,72,99,300/- on or before the date of Registration of the sale deeds in favour of the 1st Defendant. It is his case that on 19.5.2007, the 1st Defendant came to Chennai and requested to give a hand loan of Rs.40,00,000/- claiming that he was in dire need of funds to meet some personal business commitments, promising to repay the same along with the balance sale consideration. It is further stated by the Plaintiff that in order to raise the balance funds from other sources for completing the full payment of sale consideration together with the hand loan of Rs.40 lakhs, the 1st Defendant requested the Plaintiff to execute two sale deeds. It is stated that the Plaintiff obliged him and executed two unregistered sale deeds dated 27.3.2007 in favour of the 1st Defendant. Thereafter, at the request of the 1st Defendant, he also signed two draft sale deeds on 31.3.2008 and the same were registered on 28.7.2008 in the name of the 2nd Defendant, who is the benami of the 1st Defendant. However, the 1st Defendant failed to pay the money and as his conduct created a serious doubt, he issued a legal notice dated 11.12.2008 and subsequently, filed a suit for permanent injunction in the court of Pondicherry in OS.No.441/2009. It is the case of the Plaintiff that though he is entitled to seek for a declaration that the two sale deeds dated 31.3.2008 executed in favour of the 2nd Defendant is null and void, but he has filed the present suit for recovery of balance sale consideration of Rs.1,72,99,300/- and a sum of Rs.40 lakhs towards the repayment of hand loan from the Defendants together with interest thereon. 15. According to the Defendants, the Plaintiff offered to sell the property and the 1st Defendant negotiated the sale with the Plaintiff on behalf of the 1st Defendant and admitted the execution of two sale agreements Ex.P3 and Ex.P4. 15. According to the Defendants, the Plaintiff offered to sell the property and the 1st Defendant negotiated the sale with the Plaintiff on behalf of the 1st Defendant and admitted the execution of two sale agreements Ex.P3 and Ex.P4. The 2nd Defendant after coming to know about the sale price fixed at Rs.700/- per sq.ft. confronted both the Plaintiff and the 1st Defendant and expressed his unwillingness to go ahead with the sale transaction at the sale price fixed in terms of the sale agreement. Since the Plaintiff unreasonably wanted the 2nd Defendant to forfeit the entire sum paid, he agreed to purchase the property on paying a sum of Rs.1,40,50,000/- in one lump sum, thus squaring off the entire sum payable. Pursuant to the said arrangement, the 1st Defendant refunded Rs.40 lakhs to the Defendants. Subsequently, on receiving the sum as agreed above, two sale deeds were executed by the Plaintiff in his capacity as the Power Agent of his respective principals. The Defendants reiterated the statement made by them even when the 1st Defendant was in the box that the suit properties were sold in favour of the 2nd Defendant and he was put in exclusive possession and enjoyment of the suit properties. It is their defence that the sale executed in favour of the 2nd Defendant is an independent transaction superseding the earlier agreements between the Plaintiff and the 1st Defendant and the Defendants are not liable the pay any sum much less the sums claimed in the plaint. 16. The Plaintiff claims that the entire sale consideration had been paid to the owners and rely upon the sale receipts Ex.P1 and Ex.P2. He has not chosen to file the Power of Attorney executed by the owners in his favour. Ex.P1 and Ex.P2 are unregistered documents and therefore, no title could pass on the Plaintiff under these documents. The original owners, namely, M/s.Aditi Diamonds Private Limited and Manju Bonke had accepted the receipt of consideration in Ex.P5 and Ex.P6 sale deeds executed by them in favour of the 2nd Defendant and there is no reference to the sale agreement Ex.P3 and Ex.P4 in those sale deeds. The original owners, namely, M/s.Aditi Diamonds Private Limited and Manju Bonke had accepted the receipt of consideration in Ex.P5 and Ex.P6 sale deeds executed by them in favour of the 2nd Defendant and there is no reference to the sale agreement Ex.P3 and Ex.P4 in those sale deeds. The Plaintiff has admitted in his cross examination that there is no reference to the sale agreements purportedly executed in his favour by his principal either in the sale agreements dated 15.11.2008 or the sale deeds executed by his principal in favour of the 2nd Defendant on 27.8.2008. The Plaintiff has also admitted that no one other than M/s.Aditi Diamonds Private Limited and Manju Bonke have any interest in the suit properties. In fact, the Plaintiff has not denied any of the recitals in the sale deeds executed by his principal in favour of the 2nd Defendant and more importantly, the recitals that no balance sale consideration was payable to the owners of the suit property. It is pertinent to point that the original owners of the property were not made as parties in the suit. 17. It emerges from the pleadings that the Pondicherry Government had proposed to construct an over bridge above the canal located west of the suit properties and on its completion, the bridge would have give a direct wider road access to the property directly connecting Maramalaaidgal Salai and Kamaraj Salai, the two important major roads of Pondicherry. But for the said road, the said properties are accessible only through a smaller lane originating from Maraimalaiadigal Salai without any link to Kamaraj Salai. In view of the above, it is seen that there were no buyers prior to the Government proposal for construction of bridge. It appears that the said proposal for construction of the over bridge came to be suddenly suspended and the project was abandoned by the Government which led to the steep decrease in the price of lands situated along the canal. 18. According to the Defendants, because of the above said reason, the Defendants did not want to go ahead with the purchase. It is their case that the Plaintiff agreed to refund Rs.40 lakhs on the Defendants agreeing to purchase the property on paying a total sum of Rs.1,40,50,000/- in one lump sum. Whereas the Plaintiff's case is that the same was paid to the 1st Defendant as hand loan. It is their case that the Plaintiff agreed to refund Rs.40 lakhs on the Defendants agreeing to purchase the property on paying a total sum of Rs.1,40,50,000/- in one lump sum. Whereas the Plaintiff's case is that the same was paid to the 1st Defendant as hand loan. At this juncture, it is relevant to note that the Plaintiff has not stated the above said important fact of payment of hand loan to the 1st Defendant in his notice dated 11.12.2008 which is the earliest document that had come into existence after the dispute arisen between the parties. Even in the plaint in the suit in OS.No.441/2009, there is no mention about the payment of Rs.40 lakhs to the 1st Defendant as hand loan though it contains the other averments. It is for the first time made in the present suit. 19. On a scrutiny of the sale deeds executed by the owners, it is specifically recited that the suit property is sold free from all encumbrances. There is no reference to the prior agreements of sale namely Ex.P3 and Ex.P4. Therefore, the inference that could be drawn is that Rs.40 lakhs had been refunded by the Plaintiff to the 1st Defendant. The claim of the Plaintiff that he had paid the said sum as hand loan is unrealistic and far reaching. 20. The learned counsel for the Defendants contended that when there is a registered document, it is not for the Defendant to lead oral evidence regarding the sale consideration. The learned counsel contended that when the passing of consideration under Ex.P5 and Ex.P6 is admitted, it is not permissible for the Plaintiff to let in oral evidence to show that the consideration was either less or more than what was specified in the sale deed. The learned counsel placed reliance on the decision of the Division Bench of this court reported in AIR-1965-Madras-147 (K.S.Narasimhachari Vs. Indo Commercial Bank) and AIR-1998-Mad-336 (K.M.Rajendran Vs. Arul Prakasam and another). 21. Sections 91 and 92 of the Evidence Act are a complete bar for any party to set up a case that the consideration for sale is more than what is mentioned in the sale deed. Indo Commercial Bank) and AIR-1998-Mad-336 (K.M.Rajendran Vs. Arul Prakasam and another). 21. Sections 91 and 92 of the Evidence Act are a complete bar for any party to set up a case that the consideration for sale is more than what is mentioned in the sale deed. When it is not the case of the Plaintiff that the consideration mentioned in the document was not paid, or that there was any failure of consideration, but raising a contention that the real consideration for the sale was more than what was shown by the sale deed, he would not be entitled to adduce evidence in support of the same. The Plaintiff admits all other terms in the sale deed and not alleged any misrepresentation or fraud on the part of the Defendant and his oral evidence to the effect that the agreed consideration was more than what was stated in the documents cannot be relied upon. The contents of the sale deeds are clear and decisive. This court in the decision cited supra had reiterated the legal principle that even though under the proviso (1) to Section 92, it is open to the party to lead evidence, but he is precluded from varying the consideration amount either less or more than what is specified in the document. In the instant case, since the terms of the sale deeds are clear, the Plaintiff is not entitled to go behind it and to allege and prove that the consideration is more than what is specified in the document. The accordingly, issue nos.3, 4, 5, and 7 are answered accordingly. 22. Issue No.(2):- The merit of the contention of the Defendants that the present suit is hit by Order II Rule 2 of CPC in view of the fact that the Plaintiff omitted to claim relief for recovery of money in the earlier suit in OS.No.441/2009 filed for permanent injunction restraining the Defendant from disturbing the Plaintiff's possession and use of the suit property is not tenable. The cause of action for the earlier suit in OS.No.441/2009 is different and distinct and therefore, nor barred by Order II Rule 2 of CPC. The strength of second suit and conduct of the Plaintiff is not a relevant factor for deciding whether the second suit is barred by Order 2 Rule 2 of CPC. The cause of action for the earlier suit in OS.No.441/2009 is different and distinct and therefore, nor barred by Order II Rule 2 of CPC. The strength of second suit and conduct of the Plaintiff is not a relevant factor for deciding whether the second suit is barred by Order 2 Rule 2 of CPC. From the plaint of the earlier suit, especially paragraphs 4 to 7 thereof, it is seen that the Plaintiff had earlier sued for permanent injunction claiming to be in possession and enjoyment of the suit properties. In that suit, it has been alleged that the Defendants attempted to enter into the suit property. But, in the present suit, relief is claimed for recovery of money on the basis of sale agreement dated 15.11.2006 and sale deeds dated 31.3.2008. From the above, it is not possible to say that the present claim of the Plaintiff has arisen out of the same cause of action that was put forward in OS.No.441/2009 on the file of the Principal District Munsif, Pondicherry. What Order II, Rule 2 of CPC insists upon is the inclusion of the whole of the claim which the Plaintiff is entitled to make in respect of the cause of action put in the present suit. The two causes of action are different, though they might have been parts of the same cause of action. Therefore, I am unable to countenance the contention of the Defendant that the suit is barred in view of the provisions of Order II Rule 2 of CPC. The issue no.(2) is answered accordingly. 23. In view of the aforesaid findings to the issue nos.3, 4, 5, and 7, the Plaintiff is not entitled to recover the sum of Rs.1,72,99,300/- and Rs.40 lakhs from the Defendants and the suit fails and is liable to be dismissed. 24. In the result, this civil suit is dismissed. However, in the circumstances of the case, the parties shall bear their own costs.