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2018 DIGILAW 2822 (MAD)

K. Murali v. D. Anbarasi Packiaraj

2018-09-07

PUSHPA SATHYANARAYANA, T.KRISHNAVALLI

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JUDGMENT : Pushpa Sathyanarayana, J. The defendants 1 to 3 who suffered a decree for recovery of money preferred the above appeal. 2. The case of the respondent/plaintiff is that she entered into an agreement of sale with the first defendant on 24.10.1999. As per the agreement, 9 items of the properties mentioned were agreed to be sold at the rate of Rs.17,000/- per cent. The plaintiff/respondent claimed to have paid a sum of Rs.25 lakhs towards sale consideration as advance which was acknowledged under the said agreement itself. Though the respondent/plaintiff agreed to complete the sale by paying the balance sale consideration, the appellants/defendants were evading by not producing parent deeds. Despite the efforts of the respondent/plaintiff being ready and willing to perform her part of the contract, the appellants/defendants did not come forward to take the sale consideration and execute the sale deed. 3. It was further stated that the defendants were trying to alienate the agreement mentioned properties to third parties constraining the respondent/plaintiff to file the suit in O.S.No.414 of 2000 on the file of the I Additional Sub Judge, Madurai for injunction restraining the appellants/defendants from alienating the properties. Despite filing of the suit, the appellants/defendants had sold the properties covered under the sale agreement to third parties. As there is breach of contract, the respondent/plaintiff rescinded the contract and issued legal notice demanding a sum of Rs.25 lakhs with interest paid as sale advance. The second appellant/defendant received the notice but did not choose to reply. Hence, the suit was filed for recovery of Rs.28,66,660/-. 4. The suit was resisted by the second appellant/second defendant contending inter alia that the amount claimed in the suit is not refundable. The second appellant/second defendant admitted the execution of the agreement of sale and also the rate prescribed therein, however, denied the receipt of the amounts as mentioned in the sale agreement. The respondent/plaintiff got the sale deeds from the appellants/defendants in the names of Srinivasan, Chandra and one Krishnamoorthy and the sale consideration for the above three sale transactions were paid and adjusted with the amount paid as advance. Having adjusted the advance amount paid for sale consideration for executing the sale deeds in favour of the above said persons, it is the case of the second appellant/second defendant that no money is repayable to the respondent/plaintiff. 5. Having adjusted the advance amount paid for sale consideration for executing the sale deeds in favour of the above said persons, it is the case of the second appellant/second defendant that no money is repayable to the respondent/plaintiff. 5. The first appellant/first defendant also had filed additional written statement wherein it is stated that even as per the agreement, the sale has to be executed in favour of either the respondent/plaintiff or her nominees. Accordingly, one Srinivasan, who is the friend of the plaintiff's husband had taken the sale in his favour. It is also stated that the said Srinivasan was one of the partners of the plaintiff's husband in his business. As the purchase amount was huge and the respondent/plaintiff could not mobilise the said sum, hence, on her request, the properties were sold in favour of Srinivasan, Chandra and one Krishnamoorthi as her nominees. In fact, the sale consideration for the said sale exceeded Rs.25 lakhs and therefore, the respondent/plaintiff paid Rs.90,000/- by way of cheque. The respondent/plaintiff knowing all the above details had deliberately filed the suit for injunction. The suit claim having been adjusted for the sale consideration as referred above, the respondent/plaintiff was not entitled for decree as prayed for and hence, the appellants/defendants sought for dismissal of the suit. 6. Before the trial Court, only one witness was examined as PW1 and four documents were marked as Exs.A1 to A4 on the side of the plaintiff. On the side of the defendants 1 to 3, D.W.1 to D.W.5 were examined and fifteen documents were marked as Exs.B1 to B15. 7. After elaborate consideration of the above documents and evidence, the trial Court had decreed the suit as prayed for. Aggrieved by the same, the present appeal has been filed. 8. The questions that arise for determination are as follows :- “(i) Whether the respondent/plaintiff is entitled to the decree as prayed for? and (ii) Whether the suit claim/advance amount paid was adjusted towards sale consideration in favour of Krishnamoorthi, Srinivasan and Chandra is correct or not?” 9. The sale agreement dated 24.10.1999 is marked as Ex.A1. The execution of the said sale agreement and the terms therein are admitted by both the parties. and (ii) Whether the suit claim/advance amount paid was adjusted towards sale consideration in favour of Krishnamoorthi, Srinivasan and Chandra is correct or not?” 9. The sale agreement dated 24.10.1999 is marked as Ex.A1. The execution of the said sale agreement and the terms therein are admitted by both the parties. The perusal of the sale agreement would go to show that a sum of Rs.25 lakhs was received in cash from the respondent/plaintiff and the second and third entries are with respect to payment of Rs.1 lakh each paid in favour of the second defendant by way of cheque. The fourth and fifth entries are with respect to payment of Rs.1 lakh each by way of cheque in favour of the third defendant. Accordingly, the total amount of Rs.25 lakh was paid as per the agreement. As per the pleadings, though the respondent/plaintiff was ready and willing to perform her part of contract and take the sale, the appellants/ defendants were trying to alienate the properties in favour of the third parties. Hence, the respondent/plaintiff filed a suit in O.S.No.414 of 2000 for injunction, restraining the appellants/defendants from alienating the properties. Despite the suit being filed, it is stated that the appellants/defendants had sold the properties creating third party interest thereby committing breach of contract. As the appellants/defendants were not keen on executing the sale deed, the respondent/plaintiff rescinded the contract and issued a legal notice for the return of the advance amount. Though in the original written statement filed by the second appellant/second defendant, there is no mention about the partners of the plaintiff's husband and they were the nominees of the plaintiff, only in the additional written statement filed by the first defendant/first appellant, it has been stated so. It is the case of the second defendant that the plaintiff could not mobilise the huge sum of the sale consideration and hence, at his instance, the sale deeds were executed in favour of the three persons. As the receipt of Rs.25 lakhs as per the mode described in the sale agreement is admitted, the burden is now on the defendants to prove that the sale consideration of Rs.25 lakhs has been adjusted as sale price for the said sale deeds in favour of the plaintiff's nominees. 10. As the receipt of Rs.25 lakhs as per the mode described in the sale agreement is admitted, the burden is now on the defendants to prove that the sale consideration of Rs.25 lakhs has been adjusted as sale price for the said sale deeds in favour of the plaintiff's nominees. 10. Learned counsel for the appellants submitted that even in the agreement, the respondent/plaintiff had mobilized the money, from difference sources to pay the advance and therefore, it is contended that the respondent/plaintiff did not have wherewithal to purchase the properties. The sale deeds were also executed only to the nominees of the respondent/plaintiff as per Exs.B2 to B5. On the date of completion of these three sale deeds, there was an excess of Rs.90,000/- payable by the respondent/plaintiff and therefore, the same was paid by the respondent/plaintiff by way of cheque to the appellants/defendants. 11. Though the appellants/defendants had made certain allegations, the same could not corroborated by any acceptable evidence. The first appellant/first defendant was examined as D.W.1. In his cross examination, he has categorically admitted that he had received Rs.25 lakhs as per the sale agreement. He has also admitted that he had not produced any evidence to show that the respondent/plaintiff and others were partners in a partnership firm. In fact, the first appellant/first defendant had stated that he did not know what was stated in the written statement filed by the second appellant/second defendant which was filed after the commencement of the trial. 12. Though the consistent case of the appellants/defendants was that the suit amount paid as advance was adjusted towards sale consideration for the sale executed in favour of three persons, the first appellant/first defendant, in his evidence, has specifically admitted that they had separately received the sale consideration from those persons. It will be useful to extract the evidence of D.W.1 :- “xxx” 13. The above admission of D.W.1 would categorically go to prove that the suit amount was not adjusted for the sale consideration as he had separately received the sale consideration from the respective purchasers. Further, in the evidence of D.W.1, it is stated as follows :- “xxx” 14. The above deposition also would go to show that the appellants/defendants could not establish that the respondent/ plaintiff had requested the appellants/defendants to execute the sale deeds in favour of her nominees. Further, in the evidence of D.W.1, it is stated as follows :- “xxx” 14. The above deposition also would go to show that the appellants/defendants could not establish that the respondent/ plaintiff had requested the appellants/defendants to execute the sale deeds in favour of her nominees. Though it is stated that the sale deeds were executed at the instance of the respondent/plaintiff, nothing has been recorded either in the sale deeds or any other documents. When already there is an agreement existing between the respondent/plaintiff and the appellants/defendants and the same is in subsistence, any deviation from the same should be done with the written consent of the parties. Having failed to do so, the contention of the appellants/defendants that the sale deeds were executed only in good faith cannot be countenanced. 15. D.W.2 is one Seenivasan who is one of the purchasers from the appellants/defendants. He had purchased about 8 plots from the appellants/defendants and stated that he has paid Rs.2,05,000/-. In his evidence, he has stated that when he purchased the property, the sale consideration was paid at the time of registration in the presence of the Sub Registrar which has also been recorded in the sale deed. Even the said evidence of D.W.2 does not help the case of the appellants/defendants. Further, the said Seenivasan has specifically stated that the sum of Rs.2 lakhs which was paid under the sale agreement in the year 1999 is different and the said sum is not utilized for the purchase of the sale on 06.04.2000. Therefore, once again the case of the appellants/defendants that a sum of Rs.2 lakhs paid on behalf of the respondent/plaintiff to the appellants/defendants under the sale agreement by D.W.2 Seenivasan is also not believed. 16. Though it has been argued by the learned counsel for the appellants that the second appellant/second defendant, Manoharan, Seenivasan, Manoharan, Annadurai, Prabhakaran and Packiaraj who is the husband of the respondent/plaintiff were partners in the firm 'Amirtha Gardens', it is not pleaded in the written statement. 17. The next contention of the learned counsel for the appellants is that the respondent/plaintiff had not produced any account books, bank passbook or even income tax returns, to prove that the sum of Rs.25 lakhs was paid by her as per Ex.A.1. 18. 17. The next contention of the learned counsel for the appellants is that the respondent/plaintiff had not produced any account books, bank passbook or even income tax returns, to prove that the sum of Rs.25 lakhs was paid by her as per Ex.A.1. 18. As stated earlier, when execution and the receipt of agreement of money were specifically admitted and not denied by the appellants/defendants, while going by the cardinal principle that admitted facts need not be proved, the respondent/plaintiff has proved her case. It is also pointed out that the respondent/plaintiff did not get into the box and only her husband was examined on her behalf and that adverse inference had to be drawn against her. 19. As stated earlier, the suit is only for recovery of money and the receipt of money is admitted by the appellants/defendants and hence, the said argument also cannot be countenanced. 20. The attempt of the appellants/defendants to prove that the money received as advance was adjusted for the sale consideration for the sales executed by the appellants/defendants in favour of the respondent/plaintiff nominees is not proved in the manner known to law. Thus, the appellants/defendants having failed to discharge their burden have to fail in the appeal and thus, the appeal is dismissed confirming the judgment and decree of the trial Court, dated 31.07.2009 in O.S.No.264 of 2004. No costs. Consequently, M.P.(MD) No.1 of 2010 and C.M.P.(MD) No.9443 of 2016 are closed.