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2016 DIGILAW 3033 (MAD)

P. Harikrishnan @ Harirajan v. M. Sethu

2016-08-30

A.SELVAM, P.KALAIYARASAN

body2016
JUDGMENT : A. SELVAM, J. 1. Challenge in this appeal suit is to the judgment and decree, dated 29.1.2016, passed in O.S.No.20 of 2012, by the First Additional District and Sessions Court, Vellore. 2. The appellant herein, as plaintiff, has instituted Original Suit No.20 of 2012, on the file of the trial Court, praying to pass a decree of Specific Performance in pursuance of sale agreement, dated 13.6.2001, entered into between the plaintiff and defendants. 3. In the plaint it is averred that the suit property is the absolute property of the defendants and both the plaintiff and defendants have entered into a sale agreement dated 13.6.2001, wherein, total sale consideration has been fixed at Rs.29 lakhs. On the date of its execution, the defendants had received a sum of Rs.7 lakhs and subsequently, on 1.9.2001, 9.2.2002, 10.09.2001, 13.02.2002 and 27.09.2003, the defendants had received a part of sale consideration from the plaintiff and to that effect one of the defendants has made endorsements on the back side of the sale agreement. Even though the defendants have accepted part payment of sale consideration, they refused to execute a sale deed in favour of the plaintiff. Under the said circumstances, a notice dated 9.4.2004 has been given and even after receipt of the same, the defendants failed to execute a sale deed in favour of the plaintiff and they have given a false reply notice. Under the said circumstances, the present suit has been instituted for the relief sought therein. 4. In the written statement filed on the side of the defendants it is averred that on 13.6.2001 both the plaintiff and defendants have executed the suit sale agreement and on the date of its execution, the defendants have received a sum of Rs.7 lakhs. It is false to aver that on 1.9.2001, 9.2.2002, 10.09.2001, 13.2.2002 and 27.09.2003, one of the defendants had received part of the sale consideration from the plaintiff. The alleged endorsements made in the suit sale agreement are false. Further, after execution of the sale agreement, dated 13.6.2001, the defendants had received Rs.1,30,000/- as part of the sale consideration from the plaintiff and since the plaintiff has not shown his readiness and willingness to perform his part of the contract, he is not entitled to get the relief sought in the suit and therefore, the same deserves to be dismissed. 5. 5. On the basis of the rival pleadings raised on either side, the trial Court has framed necessary issues and after per-pending both the oral and documentary evidence, has partly decreed the suit only in respect of Rs.8,30,000/-. Against the judgment and decree passed by the trial Court, the plaintiff, as appellant, has preferred the present Appeal Suit. 6. The learned counsel appearing for the appellant/plaintiff has sparingly contended that even though the endorsements alleged to have been made by one of the defendants have been marked as Exs.A2 to A6, on the side of the defendants, no rebuttal evidence is available. But the trial Court, without considering the evidence available on the side of the plaintiff, has erroneously decreed the suit only in respect of Rs.8,30,000/- and therefore, the judgment and decree passed by the trial Court are liable to be interfered with. 7. Per contra, the learned counsel appearing for the respondents/defendants has contended that the alleged endorsements have been marked as Exs.A2 to A6 and all those endorsements have been made only by one of the defendants and the same have been denied in the reply notice given by the defendants and only on the basis of denial made in the reply notice, the trial Court has rightly decreed the suit in respect of Rs.8,30,000/- and therefore, the judgment and decree passed by the trial Court do not require any interference. 8. It is an admitted fact that both the plaintiff and defendants have entered into suit sale agreement on 13.6.2001 and the same has been marked as Ex.A1 and on the date of its execution, the defendants have received a sum of Rs.7 lakhs. 9. The specific case of the plaintiff is that by virtue of Exs.A2 to A6, one of the defendants has received the amounts mentioned therein as part of sale consideration. In fact, on the side of the plaintiff, he has been examined as P.W.1. In the chief examination, he has clearly stated to the effect that by virtue of Exs.A2 to A6, one of the defendants has received the amounts mentioned therein. But on the side of the defendants, no cross-examination has been done with regard to the said aspect. 10. It is true that Ex. A8, reply notice, has been given by the defendants, wherein a specific denial is made with regard to Exs.A2 to A6. But on the side of the defendants, no cross-examination has been done with regard to the said aspect. 10. It is true that Ex. A8, reply notice, has been given by the defendants, wherein a specific denial is made with regard to Exs.A2 to A6. Further, the defendants have conceded to the effect that apart from Rs.7 lakhs received on the date of execution of Ex.A1, they received Rs.1,30,000/- from the plaintiff. The trial Court, by way of believing the averments made in Ex.A8, has simply calculated that the defendants have received a sum of Rs.8,30,000/-. Further, the trial Court, without assessing the evidence given by P.W.1 and also without considering the fact that no rebuttal evidence is available on the side of the defendants, has simply ignored/rejected Exs.A2 to A6. To put it in short, the trial Court has not properly assessed the available evidence on record and also failed to consider the lack of evidence on the side of the defendants. 11. It has already been pointed out that the trial Court has committed a stupendous mistake in assessing the available evidence and also in considering the fact that no rebuttal evidence is available on the side of the defendants. Since on the side of the defendants Ex.A8, reply notice, has alone been given and the same is not at all sufficient for coming to a conclusion that Exs.A2 to A6 are false endorsements, this Court is of the view that the judgment and decree passed by the trial Court are not sustainable even for granting money decree to the extent mentioned supra. As pointed out earlier, the trial Court, without getting sufficient/proper evidence, has partly decreed the suit. Under the said circumstances, the judgment and decree passed by the trial Court are liable to be set aside and the matter is liable to be remitted to the file of the trial Court for adducing requisite evidence. In fine, this Appeal Suit is allowed without cost. The judgment and decree passed in O.S.No.20 of 2012, by the trial Court, are set aside and O.S.No.20 of 2012 is remitted to the file of the trial Court. In the trial Court, both the parties are at liberty to adduce evidence/additional evidence. The trial Court is strictly directed to dispose of O.S.No.20 of 2012 before the end of November 2016 and report the same to the Registry without fail. In the trial Court, both the parties are at liberty to adduce evidence/additional evidence. The trial Court is strictly directed to dispose of O.S.No.20 of 2012 before the end of November 2016 and report the same to the Registry without fail. The Registry is also directed to send all the records forthwith. The appellant/plaintiff is entitled to get refund of Court fee. Connected miscellaneous petition is closed.