JUDGMENT : (Prayer: Second Appeal has been filed under Section 100 of CPC against the Judgment and Decree dated 28.10.2015 passed in A.S.No.10 of 2010 on the file of the Principal District & Sessions Court, Tiruvarur, reversing the Judgment and Decree dated 28.02.2007 passed in O.S.No.73 of 2006 on the file of the Subordinate Court, Mannargudi.) 1. Challenge in this second appeal is made to the Judgment and Decree dated 28.10.2015 passed in A.S.No.10 of 2010 on the file of the Principal District & Sessions Court, Tiruvarur, reversing the Judgment and Decree dated 28.02.2007 passed in O.S.No.73 of 2006 on the file of the Subordinate Court, Mannargudi. 2. For the sake of convenience, the parties are referred to as per their rankings in the trial Court. 3. Suit for specific performance or in the alternative for the refund of the sale amount. 4. 2. For the sake of convenience, the parties are referred to as per their rankings in the trial Court. 3. Suit for specific performance or in the alternative for the refund of the sale amount. 4. The case of the plaintiff in brief is that the suit property belongs to the defendant and the defendant agreed to sell the suit property in favour of the plaintiff for a sale consideration of Rs.4,00,000/- and the plaintiff agreed to the abovesaid transaction and accordingly, the plaintiff and the defendant entered into a sale agreement on 27.11.2000 in respect of the sale of the suit property and the plaintiff had paid the entire sale consideration of Rs.4,00,000/- to the defendant on the date of the sale agreement and the sale agreement had been attested by the plaintiff's son as well as the other attestors and the defendant had also handed over the possession of the suit property in favour of the plaintiff on the date of the sale agreement and the defendant had agreed to execute the sale deed in favour of the plaintiff as and when demanded by the plaintiff and thereafter, though the plaintiff had been insisting the defendant to execute the sale deed in favour of the plaintiff in respect of the suit property on several occasions, the defendant had been postponing the same for one reason or the other and left with no other alternative, the plaintiff caused a legal notice dated 14.03.2002 calling upon the defendant to execute the sale deed in favour of the plaintiff in respect of the suit property within a particular point of time and despite the receipt of the same, the defendant had failed to come forward and execute the sale deed and hence, according to the plaintiff, he has been necessitated to lay the suit against the defendant for appropriate reliefs. 5. 5. The defendant resisted the plaintiff's suit contending that he had not agreed to sell the suit property in favour of the plaintiff for a sum of Rs.4,00,000/- as put forth in the plaint and also contended that no sale agreement had been entered into between the parties on 27.11.2000 for the sale of the suit property for a consideration of Rs.4,00,000/- as put forth in the plaint and the defendant had not parted with the possession of the suit property in favour of the plaintiff on the date of the sale agreement as claimed in the plaint. The defendant had not executed any sale agreement in favour of the plaintiff. The sale agreement projected by the plaintiff is false and imaginary and the defendant had not received the sum of Rs.4,00,000/- towards the consideration of the sale of the suit property. The suit property still continuous to be in the possession and enjoyment of the defendant and the defendant received a sum of Rs.1,00,000/- from the plaintiff on 27.11.2000 and as a security for the same, the plaintiff had obtained a General Power of Attorney deed from the defendant on the said date and at that time, the plaintiff had also obtained the signatures of the defendant in some stamp papers and blank papers and the defendant had discharged the abovesaid loan and demanded the return of the papers, in which, his signatures had been obtained and the plaintiff had assured to return the same, however, failed to return the said documents and the defendant had cancelled the power of attorney by a deed of cancellation on 16.06.2004 and also informed about the same by way of the legal notice dated 26.04.2004 and suppressing the same, the plaintiff has come forward with the suit. The defendant has not received the legal notice alleged to have been sent by the plaintiff dated 14.03.2002. In any event, the plaintiff has come forward with the suit, three years after the execution of the alleged sale agreement and the suit is, therefore, barred by limitation. The plaintiff is also not entitled to obtain the alternative relief claimed in the plaint. The plaintiff has no cause of action and therefore, the suit is liable to be dismissed. 6. In support of the plaintiff's case, PWs 1 to 3 were examined and Exs.A1 to A4 were marked. The plaintiff is also not entitled to obtain the alternative relief claimed in the plaint. The plaintiff has no cause of action and therefore, the suit is liable to be dismissed. 6. In support of the plaintiff's case, PWs 1 to 3 were examined and Exs.A1 to A4 were marked. On the side of the defendant, DWs1 to 4 were examined and Exs.B1 to B3 were marked. Ex.X1 was also marked. 7. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the trial Court was pleased to grant the relief of specific performance in favour of the plaintiff as prayed for. Impugning the same, the defendant had preferred the first appeal. In the first appellate Court, in support of the defendant's case, additional documents have been pressed into service and they have come to be marked as Exs.B4 & B5. The first appellate Court, on a consideration of the materials placed on record and the submissions made, was pleased to set aside the judgment and decree of the trial Court and by way of allowing the appeal, dismissed the suit laid by the plaintiff. Impugning the same, the present second appeal has been preferred. 8. At the time of admission of the second appeal, the following substantial questions of law were formulated for consideration: “(a). Whether the suit for specific performance filed by the plaintiff is maintainable based on Ex.A1 which according to the plaintiff is an agreement while the recitals of the same indicate as though it is a sale deed by itself, even though the same is not a registered one? (b). Whether the plaintiff is entitled to get an alternative relief of refund of the money if the document on which relief of specific performance is not an agreement of sale and on the other hand, it is an unregistered sale deed by itself?” 9. The suit has come to be laid by the plaintiff mainly for the relief of specific performance based on the agreement of sale dated 27.11.2000. The abovesaid sale agreement has been marked as Ex.A1. The defendant has disputed the execution of the sale agreement Ex.A1 in favour of the plaintiff as put forth by the plaintiff. The suit has come to be laid by the plaintiff mainly for the relief of specific performance based on the agreement of sale dated 27.11.2000. The abovesaid sale agreement has been marked as Ex.A1. The defendant has disputed the execution of the sale agreement Ex.A1 in favour of the plaintiff as put forth by the plaintiff. Per contra, according to the plaintiff, the defendant had agreed to sell the suit property in his favour for a sum of Rs.4,00,000/- and accordingly, the parties had entered into a sale agreement with reference to the same dated 27.11.2000 and further, the case of the plaintiff is that on the date of the sale agreement i.e. on 27.11.2000, he had paid the entire sale consideration of Rs.4,00,000/- to the defendant. It is also pleaded by the plaintiff that the defendant had handed over the possession of the suit property to the plaintiff on the date of the sale agreement. If the abovesaid case of the plaintiff is to be taken at face value as a true one, if really, the defendant had come forward to alienate the suit property in favour of the plaintiff for a sum of Rs.4,00,000/- and if really, the plaintiff had paid the entire sale consideration of Rs.4,00,000/- on 27.11.2000 and if really the defendant had handed over the possession of the suit property to the plaintiff on 27.11.2000, in such circumstances, considering the abovesaid factual matrix, as rightly found and determined by the first appellate Court, there is no need for the parties to enter into a sale agreement with reference to the same and on the other hand, the parties would have endeavoured to execute the sale deed in respect of the suit property on 27.11.2000 itself and accomplish the sale transaction one way or the other. When according to the plaintiff, everything has been done on his part for the completion of the sale transaction on 27.11.2000 itself and in particular, when according to the plaintiff, he has been handed over the possession of the suit property by the defendant, if the abovesaid case of the plaintiff has any semblance of truth, as found by the first appellate Court, as a prudent person, the plaintiff should have only endeavoured to take the sale deed from the defendant on the same date. Now, according to the plaintiff, for the completion of the sale transaction, he has done everything on his part. On the other hand, very strangely, the plaintiff would come forward with the case, as if despite all the abovesaid completion of performance on his part, his case that he had only taken the sale agreement from the defendant for the sale of the suit property, as such, cannot be believed and accepted. 10. According to the plaintiff, by way of Ex.A1 sale agreement, the defendant had agreed to execute the sale deed in favour of the plaintiff as and when demanded by the plaintiff. Further, according to the plaintiff, he had been continuously requesting the defendant to execute the sale deed in his favour and however, the defendant had been postponing the same for one reason or the other. If really the plaintiff and the defendant had entered into a sale agreement on 27.11.2000 and if really the plaintiff had parted with the entire sale consideration on the date of the sale agreement, even assuming for the sake of arguments that the defendant had executed a sale agreement in favour of the plaintiff as pleaded by the plaintiff, particularly, when according to the plaintiff, he had also been handed over the possession of the suit property by the defendant on 27.11.2000 itself, in such view of the matter, as found by the first appellate Court, the plaintiff would have at least after the execution of Ex.A1 sale agreement, insisted the defendant to come forward and execute the sale deed in his favour. However, he has only pleaded that he had been repeatedly requesting the defendant, however, the defendant had been evading to come forward and execute the sale deed deliberately. According to the plaintiff, therefore as a last resort, he had issued the legal notice on 14.03.2002 marked as Ex.A2. Even in Ex.A2, the plaintiff would claim that he had been continuously requesting the defendant to execute the sale deed right from the date of the execution of the sale agreement and it is only the defendant, who had been avoiding the same on false grounds. Even in Ex.A2, the plaintiff would claim that he had been continuously requesting the defendant to execute the sale deed right from the date of the execution of the sale agreement and it is only the defendant, who had been avoiding the same on false grounds. Therefore, if the abovesaid case of the plaintiff has got any element of truth, on the defendant evading to execute the sale deed, at the first request of the plaintiff, after the sale agreement immediately, at least thereafter, the plaintiff should have endeavoured to take appropriate legal action against the defendant. On the other hand, the case of the plaintiff that despite the refusal of the defendant to execute the sale deed in his favour, he had been continuously requesting him to execute the deed of sale in his favour, despite parting of the sale consideration of Rs.4,00,000/- on the date of the sale agreement, the abovesaid case of the plaintiff appears to be highly improbable and the inevitable conclusion that one could arrived at by way of considering the abovesaid facts and circumstances, would only be that, inasmuch as no agreement of sale had been executed by the defendant in favour of the plaintiff for a sum of Rs.4,00,000/- and as the plaintiff had also not paid the sum of Rs.4,00,000/- to the defendant towards the sale price of the suit property, it is found that the plaintiff had not taken appropriate further steps for completing the sale transaction after Ex.A1 transaction, despite the alleged stance of the defendant in not coming forward to execute the sale deed in his favour. On the other hand, it is found that for the first time, only on 14.03.2002, the plaintiff is found to have issued the legal notice calling upon the defendant to come forward and execute the sale deed. Even thereafter, the plaintiff has not been earnest in completing the sale transaction one way or the other. Now, according to the plaintiff, despite the receipt of the legal notice, the defendant had not come forward to execute the sale deed. If that be so, if Ex.A1 sale agreement is a genuine document as rightly determined by the first appellate Court, as a prudent person, at least immediately after the issuance of the legal notice, the plaintiff should have come forward with the relief of specific performance against the defendant. If that be so, if Ex.A1 sale agreement is a genuine document as rightly determined by the first appellate Court, as a prudent person, at least immediately after the issuance of the legal notice, the plaintiff should have come forward with the relief of specific performance against the defendant. On the other hand, it is found that the suit has come to be laid by the plaintiff only on 11.03.2006. Therefore, it is seen that inasmuch as no sale agreement, as such, had been entered into between the parties and the plaintiff had also not advanced the entire sale consideration of Rs.4,00,000/- to the defendant as claimed by him under the sale agreement, it is found that the plaintiff had not been serious and earnest in obtaining the sale deed from the defendant at the earliest point of time and the abovesaid factors had been rightly considered by the first appellate Court and accordingly, on that score, correctly disbelieved the genuineness of Ex.A1 sale agreement. 11. According to the defendant, he had not executed any sale agreement in favour of the plaintiff on 27.11.2000 for a sum of Rs.4,00,000/- as put forth in the plaint. On the other hand, according to the defendant, he had borrowed a sum of Rs.1,00,000/- from the plaintiff on 27.11.2000 and also pleaded that on the same date, as a security for the abovesaid loan, the plaintiff had obtained a General Power of Attorney from him in respect of the suit property and further, according to the defendant, the plaintiff had also obtained his signatures in blank papers and stamp papers. To establish that the defendant had executed the General Power of Attorney deed in favour of the plaintiff on 27.11.2000, the power deed has come to be marked as Ex.B4 on the side of the defendant in the first appellate Court. The plaintiff has not disputed the execution of General Power of Attorney deed by the defendant in his favour in respect of the suit property on 27.11.2000. However, as found by the first appellate Court, the plaintiff has suppressed the execution of the abovesaid power deed in his favour by the defendant on 27.11.2000 in the plaint. As to why the plaintiff had suppressed the same, there is no proper explanation on the part of the plaintiff. However, as found by the first appellate Court, the plaintiff has suppressed the execution of the abovesaid power deed in his favour by the defendant on 27.11.2000 in the plaint. As to why the plaintiff had suppressed the same, there is no proper explanation on the part of the plaintiff. However, the plaintiff, during the course of his evidence, has clearly admitted about the execution of the General Power of Attorney in his favour by the defendant on 27.11.2000. It is thus found that when the defendant has executed a General Power of Attorney in favour of the plaintiff empowering him to convey the suit property in favour of the others and particularly, when the abovesaid facts had not been controverted by the plaintiff, on the other hand, only been suppressed by the plaintiff, in such view of the matter, it does not stand to reason as to how come on the same date, the defendant would have executed the agreement of sale in favour of the plaintiff in respect of the suit property. If really the sale agreement had been executed in favour of the plaintiff and if really the plaintiff had parted with the entire sale consideration to the defendant on the date of the sale agreement, when for completing the sale transaction in respect of the suit property, everything has been performed and particularly, when according to the plaintiff, the possession of the suit property had also been handed over to him by the defendant on 27.11.2000 itself, in such view of the matter, as to why thereafter the plaintiff had obtained the General Power of Attorney deed from the defendant, there is no proper explanation. Particularly, when Ex.A1 sale agreement recites that the defendant should execute the sale deed either in favour of the plaintiff or to his nominee, there is no purpose at all to obtain the General Power of Attorney from the defendant on the same date. The execution of the sale agreement has been controverted and challenged by the defendant. The execution of the General Power of Attorney deed by the defendant in favour of the plaintiff has been admitted by the plaintiff during the course of his evidence and the same had also been established by the defendant by marking Ex.B4. The execution of the sale agreement has been controverted and challenged by the defendant. The execution of the General Power of Attorney deed by the defendant in favour of the plaintiff has been admitted by the plaintiff during the course of his evidence and the same had also been established by the defendant by marking Ex.B4. Therefore, when the abovesaid two transactions are found to be totally militating against each other and when the abovesaid documents are found to have come into existence only in respect of the suit property, in such view of the matter, as rightly found and determined by the first appellate Court, the factum of the execution of the General Power of Attorney deed by the defendant in favour of the plaintiff in respect of the suit property not having been controverted by the plaintiff in any manner, in such view of the matter, the abovesaid factor alone would only go to expose the falsity of the sale agreement projected by the plaintiff and in such view of the matter only, it is found that the plaintiff had also not evinced interest to go ahead by the sale agreement and take the sale deed from the defendant despite his plea of parting with the entire sale consideration on 27.11.2000. Conversely, the inevitable conclusion is that inasmuch as the plaintiff had not paid the entire sale consideration of Rs.4,00,000/- on the date of the sale agreement and on the other hand, he had only taken the General Power of Attorney from the defendant in respect of the suit property and accordingly, as put forth by the defendant, it is seen that the plaintiff had also obtained his signatures in blank papers. Taking advantage of the abovesaid position, it is found that thereafter, the plaintiff conveniently had chosen to fabricate the sale agreement in his name, as if the same had been executed by the defendant on 27.11.2000 for a sum of Rs.4,00,000/- after the receipt of the entire sale consideration. 12. Considering the materials placed on record, it is found that the defendant had not executed the sale agreement, as such, in favour of the plaintiff. 12. Considering the materials placed on record, it is found that the defendant had not executed the sale agreement, as such, in favour of the plaintiff. On the other hand, it is found that the defendant had executed only the General Power of attorney deed in favour of the plaintiff and accordingly, the case of the defendant seems probabilised and it is found that for the loan taken from the plaintiff, it is found that as a security, the defendant had executed the General Power of Attorney deed in favour of the plaintiff. Now, according to the defendant, he had repaid the loan amount i.e. a sum of Rs.1,00,000/- received from the plaintiff. However, to sustain the abovesaid case of the defendant, there is no material forthcoming. Be that as it may, according to the defendant, after the discharge of the loan amount, he had chosen to cancel the power of attorney deed executed in favour of the plaintiff by the deed of cancellation and the said deed of cancellation has come to be marked as Ex.B5 on the side of the defendant in the first appellate Court. Furthermore, according to the defendant, he had also conveyed the deed of cancellation of the power of attorney to the plaintiff by way of a notice. The plaintiff has admitted the knowledge about the cancellation of power of attorney deed by the defendant and also the issuance of notice with reference to the same. Therefore, it is found that the plaintiff has knowledge about the cancellation of the power of attorney deed by the defendant by way of Ex.B5 transaction and it is pertinent to note that Ex.B5 is dated 16.06.2004 and according to the defendant, enraged over the cancellation of the power of attorney, the plaintiff had misused the signature obtained from him in the blank papers and created the sale agreement and hence, according to the defendant, the plaintiff's case should fail. 13. Considering the facts and circumstances of the case in toto, as above discussed, when the plaintiff has not been earnest and ready in obtaining the sale deed from the defendant right from the inception, despite the alleged performance on his part for completing the sale transaction on the date of the sale agreement, all put together, would only lead to the conclusion that Ex.A1 sale agreement is not a genuine one. On the other hand, it is found that the defendant had executed only the General Power of Attorney deed in favour of the plaintiff on 27.11.2000 and taking advantage of the same, it is found that the plaintiff had created the sale agreement by misusing the signatures obtained from the defendant in the blank papers as determined by the first appellate Court. 14. The claim of the plaintiff that the defendant had handed over the possession of the suit property on the date of the sale agreement is not borne out by any acceptable and reliable materials and according to the defendant, the suit property continuous to be in his possession and enjoyment and that he had never parted with the possession of the same in favour of the plaintiff. Absolutely, there is no material placed by the plaintiff evidencing his claim of possession and enjoyment of the suit property from the date of the sale agreement. On the other hand, the evidence tendered by the plaintiff and his witness would go to show that the suit property is remaining only in the possession and enjoyment of the defendant till date. Therefore, it is found that inasmuch as no sale agreement had been entered into between the parties as put forth by the plaintiff and inasmuch as the plaintiff had not paid the sale consideration of Rs.4,00,000/- as pleaded by him, it is found that the defendant had also not entrusted the possession of the suit property to the plaintiff as claimed in the plaint. The above facts had been appreciated and considered by the first appellate Court in the right perspective and I do not find any valid reason to interfere with the same. 15. The plaintiff has come forward with the suit seeking the relief of specific performance, which is an equitable and discretionary remedy, the person, who seeks the equitable relief of specific performance, should come forward with the clean hands. 15. The plaintiff has come forward with the suit seeking the relief of specific performance, which is an equitable and discretionary remedy, the person, who seeks the equitable relief of specific performance, should come forward with the clean hands. Considering the discussions made above, it is found that the plaintiff has not come forward with the clean hands and on the other hand, had suppressed the material facts surrounding the execution of the alleged sale agreement, particularly, the plaintiff having suppressed the execution of the power of attorney deed by the defendant in favour of the plaintiff on 27.11.2000 and when the execution of the General Power of Attorney and the execution of the sale agreement as put forth by the plaintiff do not go hand in glove and on the other hand, militate against each other as determined by the first appellate Court, in such view of the matter, the plaintiff's case is found to be shrouded with complete mysteries and accordingly, it is seen that the plaintiff had also not been earnest and ready to obtain the relief of specific performance at the earliest point of time. 16. The plaintiff's counsel contended that the plaintiff has examined the attestor, the scribe of Ex.A1 sale agreement and they have spoken about the execution of the sale agreement by the defendant in favour of the plaintiff and the receipt of the sale consideration as put forth by the plaintiff and further also contended that the defendant's son examined as DW4 has also admitted the attestation of Ex.A1 sale agreement and therefore, according to him, on those factors, the first appellate Court should have upheld the plaintiff's case. However, considering the factual matrix involved in the matter, as above discussed, when the plaintiff's case is found to be totally unacceptable and furthermore, when the plaintiff has failed to establish that he is entitled to seek and obtain the equitable and discretionary relief of specific performance and when the relief of specific performance is not required to be granted automatically merely on the basis of the agreement of sale, in such view of the matter, considering the totality of the discussions made above, in my considered opinion, the first appellate Court had analysed the issues involved in the matter in the correct perspective and rightly set aside the judgment and decree of the trial Court by entertaining the appeal preferred by the defendant and resultantly, dismissed the plaintiff's suit. In the light of the abovesaid discussions, it is resultantly found that the plaintiff is also not entitled to secure the alternative relief as prayed for. 17. The plaintiff's counsel, in support of his contentions, placed reliance upon the decisions reported in (2000) 3 M.L.J. 685 (V.Ranganathan and another Vs. N.Ramalingam and another) and AIR 1965 MADRAS 147 (Vol.52,C.48) (1) (K.S.Narasimhachari Vs. The Indo Commercial Bank Ltd., G.T.Madras, represented by the Punjab National Bank Ltd and another). The principles of law outlined in the abovesaid decisions are taken into consideration and followed as applicable to the case at hand. 18. In the light of the abovesaid discussions, in my considered opinion, no substantial question of law is involved in the second appeal. Be that as it may, the substantial questions of law formulated in the second appeal are accordingly, answered against the plaintiff and in favour of the defendant. In conclusion, the second appeal fails and is, accordingly, dismissed. No costs. Consequently, connected miscellaneous petition, if any, is closed.