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2022 DIGILAW 2229 (MAD)

S. Raj v. S. Gopalakrishnan (Died)

2022-07-20

R.THARANI

body2022
JUDGMENT : (Prayer: This Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree, passed in A.S.No.11 of 2015 on the file of the Principal District Court, Tirunelveli, dated 14.12.2015, modifying the judgment and decree passed in O.S.No.16 of 2012 on the file of the Additional Sub Court, Tirunelveli, dated 25.09.2014.) 1. This Second Appeal has been filed against the judgment and decree, passed in A.S.No.11 of 2015 on the file of the Principal District Court, Tirunelveli, dated 14.12.2015, modifying the judgment and decree passed in O.S.No.16 of 2012 on the file of the Additional Sub Court, Tirunelveli, dated 25.09.2014. The appellant herein is the defendant, the first respondent herein is the plaintiff in the original suit. The respondents 2 to 4 herein are the LRs of the first respondent / plaintiff. 2. Brief substance of the plaint, in O.S.No.16 of 2012 is as follows: The suit property belonged to the defendant through a sale deed, dated 12.02.2010. After the purchase, the defendant constructed a building in the suit property. On 24.01.2011, the plaintiff and the defendant entered into a sale agreement. The sale consideration was fixed as Rs.5,50,000/-. On the date of the sale agreement, a sum of Rs.4,00,000/- was paid to the defendant and the time for payment of the balance was fixed as one year. The plaintiff was always ready and willing to fulfill his part of the contract. On the date of sale agreement, the plaintiff handed over the documents 2 to 11. The defendant refused to execute the sale deed and he lodged a complaint before the Police and later, he filed a petition before the criminal Court to register a case against the petitioner. The sale agreement was not executed as a security for a loan transaction. Though in the enquiry before the police, the defendant has admitted to repay Rs.4,00,000/- with 24% interest from 24.01.2011 within a period of 7 days, the defendant failed to repay the amount and the defendant is trying to alienate the property. 3. Brief substance of the written statement filed by the defendant in O.S.No.16 of 2012 is as follows:- 3.1. It is true that the property belonged to the defendant and the defendant constructed a building in the suit property. But, the defendant did not enter into any sale agreement with the plaintiff. 3. Brief substance of the written statement filed by the defendant in O.S.No.16 of 2012 is as follows:- 3.1. It is true that the property belonged to the defendant and the defendant constructed a building in the suit property. But, the defendant did not enter into any sale agreement with the plaintiff. The defendant borrowed a sum of Rs.2,00,000/- from the plaintiff through one Sakthikumar and agreed to pay Rs.6/- per Rs.100/- as monthly interest. The plaintiff obtained the sale agreement as a security and he has obtained the original documents and he obtained the signature of the defendant in blank pronotes and promised to cancel the sale agreement after the payment is made. 3.2. On the promise of the plaintiff, the defendant borrowed a sum of Rs.2,00,000/- and handed over the original documents and executed a registered sale agreement. At the time of execution, the defendant handed over blank pronotes and 9 cheque leaves. On 02.02.2011, the plaintiff received an interest of Rs.12,000/-. The plaintiff utilized one of the blank cheque leaf to receive the interest. The plaintiff received Rs.90,000/- from March – 2011, till September – 2011. Subsequently, during September-2011, the plaintiff demanded interest at the rate of Rs.9/- for Rs.100/- per month. The defendant utilized two cheques and received Rs.18,000/- from each of the cheque leaves. The plaintiff threatened the defendant to execute a sale deed and tortured the defendant by demanding exorbitant interest. The plaintiff filed a case before the police Commissioner. The plaintiff influenced the police and they failed to take action. The defendant filed a petition before the Judicial Magistrate against the plaintiff and one Sakthikumar. On the orders of the Judicial Magistrate, a case in Crime No.20 of 2012 was registered against the plaintiff under Section 420 I.P.C and under the Exorbitant Interest Act. Only to escape from the criminal case, the plaintiff has filed this civil suit. 4. On the above said pleadings, the following issues were framed by the trial Court : “1. Whether there was a sale agreement between the plaintiff and the defendant on 24.01.2011'? 2. Whether the plaintiff is entitled for a prayer of specific performance? 3. Whether the plaintiff is entitled for a relief of alternative prayer, that is, for Rs.4,00,000/- with interest? 4. What are the other reliefs available to the plaintiff' ? 5. Whether there was a sale agreement between the plaintiff and the defendant on 24.01.2011'? 2. Whether the plaintiff is entitled for a prayer of specific performance? 3. Whether the plaintiff is entitled for a relief of alternative prayer, that is, for Rs.4,00,000/- with interest? 4. What are the other reliefs available to the plaintiff' ? 5. On the side of the plaintiff, 3 witnesses were examined and 4 documents were marked. On the side of the defendant, 4 witnesses were examined and 5 documents were marked. One document was marked as the Court document. After considering the pleadings and evidence, the trial Court dismissed the suit for a prayer of specific performance, but, decreed the suit for a prayer of alternative remedy and directed the defendants to pay Rs.2,00,000/- with interest at the rate of 9% from the date of suit till the date of judgment and with interest at the rate of 6% from the date of judgment till the date of realization. 6. Against the decree and judgment, the plaintiff filed an appeal in A.S.No.11 of 2015, on the file of the Principal District Judge, Tirunelveli, on the following grounds:- 6.1. The trial Court ought not to have clubbed issue Nos. 1 to 3 together and ought not to have given a common findings, which led to miscarriage of justice. The sale agreement dated 24.01.2011 was admitted by the defendant. The sale agreement is a registered document. In view of Sections 91 and 92 of the Indian Evidence Act, the defendant is prohibited to adduce any oral or documentary evidence against Ex.A1. The trial Court failed to consider that there is no evidence either oral or documentary to contradict the terms of Ex.A1. Ex.B1 to Ex.B5 cannot prove that Ex.A1 was executed as a security for a loan of Rs.2,00,000/-. The trial Court failed to consider that the value of the property is only Rs.5,50,000/- at the time of execution of the sale agreement. There was no evidence on the side of the defendant to prove that the property was worth Rs.20,00,000/- or Rs.25,00,000/-, at the time of execution of the sale agreement. Ex.X1 is insufficient to prove the value of the property. 6.2. The trial Court ought to have held issue No.2, in favour of the appellant and that there is no latches on the part of the appellant, to complete the sale as per Ex.A1. Ex.X1 is insufficient to prove the value of the property. 6.2. The trial Court ought to have held issue No.2, in favour of the appellant and that there is no latches on the part of the appellant, to complete the sale as per Ex.A1. It was the defendant, who failed to keep up his promise and filed a false complaint before the police. ExA1 was proved by the plaintiff by the examination of P.W.1 to P.W.3, the attestor and scribe of the document. After the execution of Ex.A1, the defendants never issued any notice, questioning the quantum of advance amount. The trial Court failed to consider that the payments given by the respondent are not towards Ex.A1. But, for different loan transaction covered by a promissory note, dated 11.02.2010, marked as Ex.A4. The transaction under Ex.A4 is entirely a different transaction and hence there was no necessity to mention the same in the pleadings. The defendant admitted Ex.A4 and the document was marked through the defendant during the cross examination. The trial Court failed to appreciate the payment properly. The first cheque leaf was encashed on 02.02.2011, but the date of Ex.A1 is 24.01.2011. Though payment for one of the cheque was stopped a subsequent cheque was honoured. The plaintiff is entitled to Rs.4,00,000/- with 24% interest from the date of Ex.A1 till the date payment. 7. Points for consideration in the appeal suit are as follows:- 1. Whether Ex.A1 agreement was entered into between the plaintiff and the defendant for the purpose of selling the suit schedule property? 2. Whether Ex.A1 was executed as security for the loan obtained from the plaintiff by the defendant? 3. Whether the plaintiff is entitled to the relief of specific performance of contract of sale? 4. Whether the plaintiff is entitled to the alternative relief in respect of disallowed portion of Rs.2,00,000/- with interest as claimed? 5. Whether the appeal is to be allowed? 8. After hearing both sides, the first appellate Court modified the judgment and decree of the trial Court. The defendant was directed to pay a sum of Rs.4,00,000/- to the plaintiff with interest at the rate of 9% from the date of plaint till the date of decree and with interest at the rate of 6% from the date of decree till the date of realization. 9. The defendant was directed to pay a sum of Rs.4,00,000/- to the plaintiff with interest at the rate of 9% from the date of plaint till the date of decree and with interest at the rate of 6% from the date of decree till the date of realization. 9. Against the order of the first appellate Court, the appellant has filed this second appeal on the following grounds:- The order of the first appellate Court is erroneous when holding that the agreement - Ex.A1 was not intended as a sale agreement, the alternative relief ought not to have been granted. The first appellate Court failed to consider that the specific plea of the respondent is that Ex.A1 is a sale agreement and a sum of Rs.4,00,000/- was paid as an advance. The contention of the respondent / plaintiff was disbelieved by the trial Court and that the first appellate Court confirmed the findings of the trial Court. In the above circumstances, granting a decree for returning the advance amount of Rs.4,00,000/- is not sustainable. The trial Court and the first appellate Court were erroneous in granting the alternative relief of remittance of advance amount. Only a sum of Rs.2,00,000/- was borrowed by the appellant and subsequently, payments have been made through Ex.B2 – Bank statement. Registration of the sale agreement - Ex.A1 is not creating any presumption as to the admission of the entire recitals of the document. The evidence of P.W. 1 is contrary to the evidence of the other witnesses, who are the attestor and the scribe of Ex.A1. P.W.2 and P.W.3 did not depose anything regarding the payment of Rs.4,00,000/-. 10. On the above grounds, the second appeal was admitted on 09.03.2022, on the following substantial questions of law:- “(i) Whether the judgment and decree of the Lower Appellate Court could not be sustained in law in granting the alternative relief of return of advance amount without adverting the oral testimony, the attestor as well as the scribe of Ex.A1, who have been examined as P.W.2 & P.W.3 and none of them have spoken about the payment of Rs.4 Lakhs under Ex.A1? (ii) Whether the Lower Appellate Court is right in exercising its discretionary relief under Section 22 of the Specific Relief Act, especially the very Court itself has disbelieved the entire plea of the respondent / plaintiff including Ex.A1?” Issue No. II. 11. (ii) Whether the Lower Appellate Court is right in exercising its discretionary relief under Section 22 of the Specific Relief Act, especially the very Court itself has disbelieved the entire plea of the respondent / plaintiff including Ex.A1?” Issue No. II. 11. On the side of the appellant, it is stated that the appellant borrowed a sum of Rs.2,00,000/- from the plaintiff through one Sakthikumar and that the defendant agreed to pay interest at the rate of Rs.6/- per Rs.100/- per month. On the side of the appellant, it is stated that the appellant handed over signed blank papers and signed blank cheques and by utilizing the cheque leaves, the plaintiff collected Rs.12,000/-, Rs.9,000/- and Rs.18,000/- towards interest and that the sale agreement was executed only as a security for the loan and that the evidence of P.W.1 to P.W.3 are contradictory. 12. On the side of the appellant, it is stated that when a document was obtained for security, there is no question of refunding an advance amount. To substantiate this claim, a judgment of this Court reported in 2015-3-MWN (Civil) 659 [Palani Vs. G. Subramaniam] is cited, wherein, it is stated as follows:- 26. Upon re-appreciation of evidence, for the reasons stated supra, this Court holds that findings of the Courts below cannot be sustained. The judgment and decree of the trial Court cannot withstand the scrutiny of this Court and the decree of the trial Court deserve to be interfered with and set aside. Since the respondent/plaintiff has not made any alternative prayer for the re-fund of the advance amount and since this Court has rendered a finding that the agreement itself had been obtained as a security for the loan advanced and to be advanced, the question of directing re-fund of the amount paid under the agreement shall not arise. However, considering the facts and circumstances of the case, there shall be no order as to costs. 13. On the side of the appellant, it is stated that when the agreement itself was denied and when the trial Court and the first appellate Court come to the conclusion that the plaintiff is not entitled for the relief of specific performance, the question of directing the defendant to refund the amount, alleged to have been paid as advance for an agreement, does not arise. A judgment of this Court reported in 2020-5-L.W.-280 [S. Nagapandi V. K. Palanisamy] is cited, wherein, it is stated as follows:- “16. Under Section 33(2) of the Specific Relief Act, 1963, no relief for return of any earnest money shall be granted unless it is specifically claimed and under Section 22(1)(b) of the Specific Relief Act, a decree for refund of earnest money cannot be granted where specific performance is refused.” 14. On the side of the appellant, it is stated that the respondent has not made out a case and he is not entitled for a relief of specific performance. A judgment of this Court in S.A.(MD) No.511 of 2011 [M. Sankar Nadar V. Deva Krishnan], dated 20.01.2017 is cited. 15. The execution of sale agreement was admitted by the defendant. The plaintiff examined P.W.2 and P.W.3 to prove Ex.A1. Ex.A1 is a registered document. It is the duty of the defendant to rebut the recitals. The defendant examined himself as D.W.1 and he examined D.W.3 and D.W.4, police officials. The evidence of D.W.3 and D.W.4 was regarding the registration of a complaint and the closure of the complaint. Their evidence is insufficient to disprove, Ex.A1. D.W.2 is an official from the registration office. The defendant has admitted that he received a sum of Rs.2,00,000/- as loan and he admitted his signature in Ex.A1. 16. On the side of the appellant, it is stated that a decree for recovery of money is maintainable only when specific performance relief is accepted and not otherwise. Contrary to its own decision, the courts below were erroneous in granting a relief of re-payment of advance amount. When no relief for specific performance is possible, there is no possibility of re-payment of any advance amount. 17. On the side of the appellant, it is stated that the lower Appellate Court is wrong in deciding that the appellant has to pay Rs.4,00,000/-, which is against its own finding. The trial Court as well as the first appellate Court has decided that the sale agreement is not valid. When the sale agreement is not valid, there is no question of return of advance amount. 18. The respondent failed to question the rejection of the prayer for specific performance. The relief for specific performance attain finality. The trial Court as well as the first appellate Court has decided that the sale agreement is not valid. When the sale agreement is not valid, there is no question of return of advance amount. 18. The respondent failed to question the rejection of the prayer for specific performance. The relief for specific performance attain finality. When the prayer for Specific performance is rejected, the sale agreement itself is a nullity and there is no possibility of an advance to be repaid. 19. On the side of the respondent, it is stated that both the Courts below have decided that the execution of the sale agreement was proved. The trial Court has ordered the defendant to pay a sum of Rs.2,00,000/-. The defendant did not file any cross objection and hence, the defendant has no right to question the alternative relief granted in favour of the plaintiff. 20. On the side of the appellant, it is stated that a relief for specific performance was not granted by the trial Court and by the lower appellate Court. The respondent has not filed an appeal against the dismissal of the relief of specific performance. The respondent has no right to question the same now. 21. On the side of the appellant, it is stated that the appellant has received only Rs.2,00,000/- as loan and he has executed the sale against only as a security. The defendant has issued 9 cheque leaves for payment of interest and he gave signed blank papers. The plaintiff collected the cheque amount, which proved the loan transaction. The contention of the appellant is that the plaintiff collected interest through cheque leaves. Ex.B2 is the statement of accounts. 22. On the side of the respondent, it is stated that the payment of interest through cheque leaves was with regard to some other loan transaction between the plaintiff and the defendant. To substantiate the claim, a pronote was marked as Ex.A4. 22. In the judgment reported in 2015-3-MWN (Civil)-659, cited by the appellant, no alternative remedy was sought for by the plaintiff, whereas, an alternative remedy was sought for by the plaintiff in this case, hence, the above citation is not applicable to the facts of the present case. To substantiate the claim, a pronote was marked as Ex.A4. 22. In the judgment reported in 2015-3-MWN (Civil)-659, cited by the appellant, no alternative remedy was sought for by the plaintiff, whereas, an alternative remedy was sought for by the plaintiff in this case, hence, the above citation is not applicable to the facts of the present case. In the case reported in 2020-5-L.W.-280 [S. Nagapandi V. K. Palanisamy] cited by the appellant, no relief was sought for refund of earnest money and the citation also not applicable to the facts of the present case. In the judgment of this Court in S.A.No.511 of 2011, dated 20.11.2017, cited by the appellant, granting of specific relief was questioned and not the refund of advance amount. The facts of the case cited is different and the citation is not applicable to the facts of the present case. 23. The defendant has examined 2 police officials and they have deposed only with regard to the lodging of the complaint and the closure of the complaint. The oral evidence of the defendant and the police complaints are not sufficient enough to deny the contents of a registered documents – Ex.A1. The defendant has admitted that the earlier loan amount was not completely discharged. He has admitted the receipt of Rs.2,00,000/-. The citations referred by the respondent, are not applicable to the facts of the present case. The Civil Court is having the right to grant the alternative relief sought for by the plaintiff. The lower Appellate Court after verifying the oral and documentary evidence have come to a conclusion that the plaintiff is entitled to a sum of Rs.4,00,000/- with interest. Hence, it is decided that the lower Appellate Court is right in exercising the discretionary relief under Section 22 of the Specific Relief Act. Issue No.I: 24. The trial Court has decided the case against the plaintiff only on the ground that the plaintiff has failed to prove the means. The defendant has admitted that he did not know whether the plaintiff is having the capacity. Only based on the chief examination of D.W.1, the trial Court has decided the case against the plaintiff. There was no pleadings regarding means in the written statement filed by the defendant. Only during the cross examination, the defendant has raised questions regarding the means, which is not sustainable. 25. Only based on the chief examination of D.W.1, the trial Court has decided the case against the plaintiff. There was no pleadings regarding means in the written statement filed by the defendant. Only during the cross examination, the defendant has raised questions regarding the means, which is not sustainable. 25. The defendant has admitted the signature in the document and the execution of the document, he has admitted the receipt of Rs.2,00,000/-. No document was filed to prove that he repaid the said amount. The defendant has claimed that after receipt of notice, he lodged a complaint. But, the FIR was registered prior to the date of the notice. 26. All this arguments are regarding the factual matrix and not regarding any question of law. The appellant has not raised any question of law in this second appeal. There is nothing sufficient enough to interfere in the orders of the lower Appellate Court. Hence, this Second Appeal is dismissed. The Judgment and decree of the lower appellate Court is confirmed. No costs.