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2023 DIGILAW 1293 (MAD)

K. Thamilselvi v. Lakshmi

2023-03-23

ABDUL QUDDHOSE

body2023
JUDGMENT (Prayer: Second Appeal is filed under Section 100 of Code of Civil Procedure, against the judgment and decree dated 18.07.2017 passed in A.S.No.42 of 2014 on the file of the Principal District Judge, Tiruchirappalli, reversing the judgment and decree dated 27.08.2014 passed in O.S.No.772 of 2010 on the file of the Principal Subordinate Judge, Tiruchirappalli.) This Second Appeal has been filed challenging the concurrent findings of the courts below. The first defendant in the suit in O.S.No.772 of 2010 on the file of the Principal Subordinate Court, Trichy is the appellant herein. The first respondent is the plaintiff in the suit. The second respondent is the bank where the first defendant/appellant was maintaining a bank account. 2. In the forthcoming paragraphs, the parties are described as per their litigative status in the suit. 3. The suit was filed by the plaintiff seeking specific performance of an agreement of sale dated 23.10.2006 and for permanent injunction restraining the first defendant from interfering with the peaceful possession and enjoyment of the suit schedule property. The first defendant had entered into an agreement of sale dated 23.10.2006 with the plaintiff. As per the agreement of sale, the plaintiff had paid an advance of Rs.4,64,360/- to the first defendant and the balance sale consideration of Rs.4,35,640/- shall be paid by the plaintiff by way of installments within two years from the date of the sale agreement. The plaintiff claims that the balance sale consideration of Rs.4,35,640/- was also paid by her to the first defendant''s bank account held with the second defendant bank and the entire loan was discharged only by the plaintiff. Having paid the entire sale consideration, the plaintiff has sought for specific performance of the agreement of sale by directing the first defendant to execute the sale deed in her favour for the suit schedule property. 4. However, the first defendant in her written statement disputed the sale agreement. She would state that only under threat and coercion, she was made to sign the alleged sale agreement. According to her, it was only her husband, who had borrowed money to the tune of Rs.40,000/- from the plaintiff, for which she is not responsible. By using threat and coercion, the plaintiff had obtained the signatures from her in the documents including promissory notes and had falsely claimed that she has entered into a sale agreement dated 23.10.2006 with the plaintiff. By using threat and coercion, the plaintiff had obtained the signatures from her in the documents including promissory notes and had falsely claimed that she has entered into a sale agreement dated 23.10.2006 with the plaintiff. The first defendant has also denied that the plaintiff has discharged the loan availed by the first defendant with the second defendant bank by paying the sale consideration as per the terms of the sale agreement dated 23.10.2006. 5. The trial court framed the issues based on the pleadings of the respective parties. 6. Before the trial court, the plaintiff filed 52 documents, which were marked as Ex.A.1 to Ex.A.52. On her side, two witnesses were examined namely, the plaintiff as P.W.1 and the Panchayat President R.Renganathan, one of the attesting witness to the sale agreement as P.W.2. On the side of the defendants, 2 documents were marked as exhibits namely Ex.B.1 and Ex.B.2. Three witnesses were examined namely, D.W.1, the first defendant, D.W.2 (Asirvatham, Bank Manager of the second defendant Bank), D.W.3 (Saravanakumar son of the first defendant who was also an attesting witness to the sale agreement). 7. The documents filed by the plaintiff included the payments made by the plaintiff into the bank account of the first defendant maintained with the second defendant bank. The payments included a pay order dated 13.08.2007 for a sum of Rs.75,000/-, another pay order for a sum of Rs.50,000/- dated 06.09.2007, which were marked as Ex.A.2 and Ex.A.3. Admittedly, the said payments were credited into the account of the first defendant maintained with the second defendant bank. According to the first defendant, only by using threat and coercion, the alleged sale agreement was executed. If the said statement is to be believed, the first defendant ought to have lodged a police complaint against the plaintiff. However, no such police complaint was lodged. The first defendant has also admitted his signature in the sale agreement. In fact, D.W.3, the son of the first defendant also only for the first time during the course of his cross-examination, has stated that the sale agreement (Ex.A.1) dated 23.10.2006 was obtained by threat and coercion. The Bank Manager (D.W.2) has also deposed that payments were credited by the plaintiff into the bank account to discharge a loan availed by the first defendant and the entire loan has been discharged. 8. The Bank Manager (D.W.2) has also deposed that payments were credited by the plaintiff into the bank account to discharge a loan availed by the first defendant and the entire loan has been discharged. 8. The first defendant in her written statement has contended that it was only her husband, who was having a contractual relationship with the plaintiff by having availed a loan to the tune of Rs.40,000/-, and only to recover the said loan, forcibly the plaintiff had obtained the signature in the alleged sale agreement dated 23.10.2006 (Ex.A.1). While that be so, the first defendant ought to have examined her husband as a witness before the trial court and she has chosen not to examine her husband as a witness to disprove the contentions of the plaintiff that the alleged sale agreement (Ex.A1) was executed in her favour. The first defendant has examined 3 witnesses namely herself as D.W.1, the Bank Manager as D.W.2 and her son Saravanakumar, the attesting witness to the sale agreement (Ex.A.1) as D.W.3. Excepting for deposing that the alleged sale agreement dated 23.10.2006 (Ex.A.1) was obtained through threat and coercion, the first defendant has not produced any independent oral and documentary evidence to support her contention that the sale agreement dated 23.10.2006 (Ex.A.1) was obtained through threat and coercion. The trial court, after giving due consideration to the oral and documentary evidence and after giving due consideration to the fact that the plaintiff has paid the entire sale consideration, has decreed the suit in her favour by directing the first defendant to execute the sale deed as per sale agreement (Ex.A.1) and has also granted the relief of permanent injunction as sought for in the plaint. 9. It is also brought to the notice of this Court by the learned counsel for the appellant that subsequent to the passing of the decree in favour of the plaintiff, a sale deed has also been executed by the executing court in her favour. A copy of the sale deed dated 24.11.2021 executed by the executing court in favour of the plaintiff as well as the closure of E.P.No.351 of 2017 by order of the executing court dated 21.02.2022 on account of the execution of the sale deed has also been placed on record before this Court. 10. A copy of the sale deed dated 24.11.2021 executed by the executing court in favour of the plaintiff as well as the closure of E.P.No.351 of 2017 by order of the executing court dated 21.02.2022 on account of the execution of the sale deed has also been placed on record before this Court. 10. This Court, after giving due consideration to the findings of the trial court and also by giving due consideration to the fact that the sale deed has already been executed in favour of the plaintiff pursuant to the decree of the trial court on 24.11.2021, is of the considered view that the findings of the trial court do not suffer from any perversity. The lower Appellate Court namely, the Principal District Court, Trichy in the appeal filed by the first defendant in A.S.No.42 of 2014 has also rightly confirmed the findings of the trial court by dismissing the appeal by its judgment and decree dated 18.07.2017. This Court does not find any perversity in the findings of the courts below as the plaintiff has proved beyond reasonable doubt based on the oral and documentary evidence that she is entitled for specific performance of the agreement of sale dated 23.10.2006 (Ex.A.1). The discretion exercised by the Courts below in granting the relief of specific performance to the plaintiff is sound and reasonable guided by judicial principles. The contentions raised by the appellant in this Second Appeal have been duly considered by the courts below in accordance with law and the findings of the courts below do not suffer from any perversity. There is no substantial question of law involved in this Second Appeal and the substantial questions of law raised by the appellant in the grounds of this Second Appeal are all factual issues, which have been correctly considered by the courts below. Accordingly, there is no merit in this Second Appeal. 11. In fine, this Second Appeal is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.