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2025 DIGILAW 1290 (MAD)

Chinna Thambi v. R. Anandaraj

2025-03-04

N.SATHISH KUMAR

body2025
JUDGMENT : 1. Challenging the decree and judgment of the trial Court decreeing the suit for recovery of a sum of Rs.10,08,942/- with further interest at the rate of 6% per annum from the date of filing of this suit till the date of realization and in addition, a charge is also created on the remaining unsold properties out of the suit properties till the realization of the above amount by the first defendant to the plaintiff, the present appeal has been filed. 2. The parties are arrayed as per their own ranking before the trial Court. 3. The case of the plaintiff is that the first defendant executed an agreement on 13.11.2007 for sale of 2.89 acres of the property for a total sale consideration of Rs.7,22,500/- and received an advance of Rs.one lakh on the date of agreement. Thereafter, on 16.03.2008, an additional advance of a sum of Rs.50,000/- has been received by the wife of the first defendant. Again on 20.04.2008, another sum of Rs.50,000/- has been paid and made an endorsement. Thereafter, a sum of Rs.1,50,000/- has also been paid on 05.08.2008 to the first defendant and totally a sum of Rs.3,50,000/- has been paid as a part of sale consideration to the first defendant. The first defendant agreed to receive the remaining sale consideration at the time of registration. The plaintiff is always ready and willing to perform his part of the contract. However, the first defendant has delayed the transaction. As the first defendant is prolonging the issue, the plaintiff issued a notice on 21.12.2014 for return of the amount. But the said notice has been returned with an endorsement of intimation delivered. According to the plaintiff, there are several alienations and the properties have been sold to various persons. Hence, the suit has been filed for return of the amount and for damages. 4. According to the first defendant, he had borrowed a sum of Rs.one lakh from the plaintiff and for the said loan, the plaintiff had obtained signature of the defendant in blank stamp papers. The first defendant had never executed any agreement for sale. The wife of the defendant has also not signed in any document. The alleged document dated 13.11.2007 is forged and fabricated. 5. On the basis of the above pleadings, the following issues have been framed by the trial Court : 1. The first defendant had never executed any agreement for sale. The wife of the defendant has also not signed in any document. The alleged document dated 13.11.2007 is forged and fabricated. 5. On the basis of the above pleadings, the following issues have been framed by the trial Court : 1. Whether the suit sale agreement is fabricated by the plaintiff? 2. Whether the suit claim is barred by limitation? 3. Whether the suit is bad for non-joinder of necessary parties? 4. Whether the time is essence of contract for the suit sale agreement? 5. Whether the plaintiff is entitled for return of advance amount with subsequent interest? 6. To what other relief the plaintiff is entitled? 6. On the side of the plaintiff, plaintiff examined himself as P.W.1 and marked Ex.A.1 to Ex.A.8. On the side of the defendants, the first defendant examined himself as D.W.1 and no document has been marked on his side. 7. The trial Court considering entire evidence decreed the suit in favour of the plaintiff. Challenging the same, the present Appeal Suit came to be filed. 8. The learned counsel appearing for the appellant would submit that a sum of Rs.3,50,000/- has been paid as an advance towards sale consideration for purchase of the property. Whereas, the suit has been decreed for a sum of Rs.10,08,942/- with subsequent interest at the rate of 6% per annum. According to the appellant, the interest claimed by the appellant in the suit is usurious. It is his further contention that the suit itself is barred by limitation. Hence, prayed for allowing the appeal. 9. Whereas, the learned counsel for the respondent would submit that though the agreement has been disputed, the signature in the agreement has not been denied. Once, the signature is admitted, the contention of the first defendant that there was fabrication, has no legs to stand. Further, it is his contention that as the suit has been filed for recovery of advance amount, which has been given towards, purchase of the property, there will be statutory charge over the property. Therefore, the suit has been filed within a period of 12 years. 10. In the light of the above submissions, the points that arise for consideration are as follows : 1. Whether the suit is barred by limitation? 2. Whether the trial Court is right in decreeing the suit for Rs.10,08,942/- with subsequent interest? Therefore, the suit has been filed within a period of 12 years. 10. In the light of the above submissions, the points that arise for consideration are as follows : 1. Whether the suit is barred by limitation? 2. Whether the trial Court is right in decreeing the suit for Rs.10,08,942/- with subsequent interest? 11. Point Nos. 1 & 2 : As far as the contention of the appellant that he never executed the sale agreement, the receipt of the advance amount by the first defendant has not been disputed. The signature of the first defendant in Ex.A.1 agreement has also not been disputed. When a plea of forgery has been taken by the defendant, it is for him to establish the same. Whereas, his evidence infact proves Ex.A.1 and endorsement made thereon. In his evidence he has admitted the execution of the document and the last payment made on 05.08.2008. The specific admission of the first defendant clearly indicate that he has signed the document in the presence of witnesses. Therefore, alleged forgery has no legs to stand. 12. The receipt of the advance amount has been established and therefore, statutory charge was there over the suit property. The pleadings of the plaintiff that he was always ready and willing to perform his part of the contract is not disputed and the plaintiff also proved the same. Hence, the contention of the appellant that the suit is barred by limitation cannot be countenanced for the simple reason that to enforce charge 12 years of limitation is there. Hence, this Court is of the view that the plaintiff is certainly entitled for a decree of the principal amount of Rs.3,50,000/- with interest at the rate of 7% per annum from the date of payment till the date of realization. Whereas, the trial Court has decreed the suit mainly on the basis of the request made by the plaintiff. Therefor, this Court is of the view that the decree of the trial Court has to be modified and the appellant has to pay a sum of Rs.3,50,000/- together with interest at the rate of 7% per annum, which would come to Rs.4,23,985/- and totally, the plaintiff is entitled to refund of Rs.7,73,985/- along with further interest at the rate of 6% per annum from today till the date of realization. The points are answered accordingly. 13. The points are answered accordingly. 13. In the result, this appeal suit is partly allowed and the judgment and decree of the trial Court in O.S.No.19 of 2015 dated 06.08.2019 is modified to the effect that the suit is decreed for a sum of Rs.7,73,985/- with subsequent interest at the rate of 6% per annum from today till the date of realization with costs. Consequently, connected miscellaneous petition is closed.