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2014 DIGILAW 3434 (MAD)

Sornarajan v. Chellapandi

2014-09-18

V.M.VELUMANI

body2014
Judgment : These Civil Revision Petitions are filed to set aside the fair and decretal orders passed in I.A.Nos.147 and 148 of 2014 in O.S.No.20 of 2007 dated 08.04.2014 on the file of the Sub Court, Ambasamudram. 2. The petitioners are the defendants, whereas the respondent is the plaintiff in the suit in O.S.No.20 of 2007 on the file of Sub Court, Ambasamudram. The respondent/plaintiff filed a suit for specific performance of agreement of sale dated 20.11.2006. According to the respondent, after negotiation, the petitioners agreed to sell the suit property for Rs.4,90,000/-. The respondent paid a sum of Rs.4 lakhs on 20.11.2006 and the petitioners executed an agreement of sale. As per the agreement of sale, the respondent has to pay the balance sum of Rs.90,000/- within six months from the date of agreement of sale and get the sale executed in his favour at his cost. The respondent was always ready and willing to comply with his part of contract. The petitioners were evading the receipt of balance sale consideration and executing the sale deed. Therefore, the respondent filed the above said suit for specific performance. 3. The petitioners in the written statement denied the averments made in the plaint. According to the petitioners, they borrowed a sum of Rs.2 laks from the respondent, who is a money lender for construction of their house. The petitioners were unable to pay the exorbitant interest charged by the respondent. Under these circumstances, the respondent forced the petitioners to execute the agreement of sale as a security and promised to cancel the said agreement, if the petitioners pay the amounts due within six months. Therefore, agreement of sale executed by the petitioners is only as a security for repayment of loan and the petitioners never agreed to sell the suit property worth Rs.15 lakhs to the respondent for Rs.4,90,000/-. Further, the property is mortgaged to LIC Housing Finance Limited. 4. Based on these pleadings, the trial was commenced and evidence on behalf of the petitioners and respondent were closed. At that stage, the respondent filed an application for reopening and recalling the respondent for further cross-examination. The said application was allowed and the respondent was recalled and cross-examined by the petitioners. 4. Based on these pleadings, the trial was commenced and evidence on behalf of the petitioners and respondent were closed. At that stage, the respondent filed an application for reopening and recalling the respondent for further cross-examination. The said application was allowed and the respondent was recalled and cross-examined by the petitioners. In the cross-examination, the documents relating to the case filed by the respondent against the third parties for recovery of money was shown to him and the questions were put to him. The respondent answered that he does not remember about the said case. After such cross-examination, the evidence was closed and the suit was posted for arguments. Again, the petitioners filed two applications in I.A.Nos.147 and 148 of 2014 for reopening and for issuing summons to the parties against whom the respondent has initiated legal proceedings for recovery of money. The respondent opposed the same on the ground that whether he has lent money to the third parties is not the issue in the suit and the said applications have been filed only with a view to drag on the proceedings. The learned Judge after considering the materials on record, dismissed both the applications. Against which, the petitioners have preferred these Civil Revision Petitions before this Court. 5. Heard the learned counsel for the petitioners and the leaned counsel for the respondent. 6. Both the Civil Revision Petitions can be decided by this common order as the issues involved are interlinked. 7. The learned counsel for the petitioners argued that the petitioners have specifically stated that the respondent is a professional money lender lending monies to the third parties at exorbitant interest. The petitioners borrowed only Rs.2 lakhs for construction of their house and they could not pay the interest regularly and they could not pay the principal amount. Under these circumstances only, the respondent forced the petitioners to execute an agreement of sale. The said agreement of sale is only given as a security and not supported by any conciliation to prove that he is a professional money lender. When the documents relating to legal proceedings initiated by the respondent against third parties were put to him, the respondent did not agree the said document. Therefore, it is just and necessary the parties involved in the suit must be examined to prove the case of petitioner. When the documents relating to legal proceedings initiated by the respondent against third parties were put to him, the respondent did not agree the said document. Therefore, it is just and necessary the parties involved in the suit must be examined to prove the case of petitioner. The learned Judge committed an irregularity in dismissing the applications on the ground that the examination of third parties with regard to suit filed against them is not necessary in the suit for specific performance. Therefore, he prayed for setting aside the order of the learned Judge. The learned counsel for the petitioners relied on a judgment reported in 2006 (5) CTC 394 and 2011 (11) SCC 275 to substantiate his case and at any stage of trial, the case can be reopened and fresh evidence can be let in. 8. Per contra, the learned counsel for the respondent argued that the suit is for specific performance of agreement of sale and the respondent has to prove the execution of agreement of sale, payment of part of sale consideration and his readiness and willingness to perform his part of contract. Whether the respondent is a professional money lender is not the issue in the suit and that will not be necessary to decide the issue as to whether the respondent is entitled to specific performance of the agreement of sale. He also contended that the persons against whom the respondent has filed cases will definitely depose against the respondent. He contended that there is no irregularity in the impugned order of the learned Judge and prayed for dismissal of the Civil Revision Petitions. 9. I have considered the materials on record and judgments relied on by the learned counsel for the petitioners and the arguments of the learned counsel for the petitioners and the respondent. 10. From the pleadings, it is seen that it is a specific case of the petitioners that the respondent is a professional money lender, they borrowed a sum of Rs.2 lakhs for completion of construction of their residential house which is the suit property. The said property is already mortgaged to LIC Finance Housing Limited. To prove that the respondent is a professional money lender, the petitioners confronted the respondent with documents relating to the cases filed by him against the third parties. The respondent did not admit the said documents. The said property is already mortgaged to LIC Finance Housing Limited. To prove that the respondent is a professional money lender, the petitioners confronted the respondent with documents relating to the cases filed by him against the third parties. The respondent did not admit the said documents. On the other hand, answered that he did not remember about the said case. The petitioners have filed these applications for issue of summons to the persons against whom the respondent has lent money and initiated legal proceedings. The evidence of those persons will assist the Court in deciding the issue whether the contention of petitioners are true or not that they did not agree to sell the property and the respondent only forced them to execute the agreement of sale are acceptable or not. The learned Judge committed an irregularity in concluding that examination of third parties is not necessary to decide the issue of specific performance of the suit against the agreement of sale. As per the judgment relied on by the learned counsel for the petitioners, the evidence can be reopened at any stage in the interest of justice. In the present case, in view of contention of petitioners in the written statement it is just and necessary that the evidence must be reopened and the petitioners must be given an opportunity to substantiate their stand that the respondent is a professional money lender and agreement of sale is only a security document. 11. For the above reasons, both the orders of the learned Judge is set aside and the Civil Revision Petitions are allowed. No costs. Consequently, the connected Miscellaneous Petition is closed.