P. KALAIYARASAN, J.

These Appeal Suits are directed against the Judgment and Decree, dated 30.06.2011 passed by the Additional District and Sessions Judge (Fast Track Court No.5) in O.S.No.13663 of 2010.

2. The defendant filed two appeals, (1) A.S.No.176 of 2012 against the Judgment and Decree, dated 30.06.2011 made in O.S.No.13663 of 2010 and (2) A.S.No.27 of 2012 against the dismissal of the counter claim made by him in the said O.S.No.13663 of 2010.

3. The averments in the plaint and reply statement in nutshell are as follows:

(i) The suit schedule Item No.1 of the property belonged absolutely to the first plaintiff and the suit schedule Item No.2 belonged absolutely to the second and third plaintiffs.

(ii) The above owners executed power of attorney deed and sale agreement in favour of 4th and 5th plaintiffs for their respective properties and handed over vacant possession after receiving the consideration fully under 4 documents. Pursuant to that plaintiff 4 and 5, got building approval describing as one single plot.

(iii) The plaintiffs 4 and 5 entered into an agreement with defendant on 11.01.2004 for development of the property. As per the agreement, the defendant agreed to take 65% of the undivided share for himself and his nominees and in consideration for the same, agreed to give 35% super built area of the total constructed area in the proposed residential flats to be built up by the defendant, exclusively at his cost. The defendant pursuant to the agreement obtained planning permission afresh to put up residential flats in the suit schedule properties. The defendant handed over to the plaintiffs 4 and 5 fully completed six residential flats towards the entitlement of the plaintiffs in June 2006. The plaintiffs 4 and 5 paid a total sum of Rs.1,55,000/- to the defendant towards deposits for securing water, sewerage connection and Electricity connection and deposits for the same to the six flats allotted to the plaintiffs.

(iv) As the plaintiffs 4 and 5 decided to sell all the six flats, the plaintiffs 4 and 5 requested the defendant to join in execution of a tripartite agreement, showing the defendant as Builders and the plaintiffs as owners of the land and third party purchasers. This was done at the instance of the third party purchasers to facilitate them to avail loan from Financial Institutions, namely M/s. LIC Housing Finance Ltd., The said tripartite agreements came to be executed by the defendant and the plaintiffs 4 and 5 with the purchasers for sale of the flats, to which the plaintiffs 4 and 5 were entitled to, showing as if they were entitled to the sale consideration of undivided share in land alone and the balance amounts, as if to be paid to the defendant, for putting up construction, which amounts, the defendant agreed to receive cheques from proposed purchasers of land and repay the same in full to the plaintiffs.

(v) Out of six flats, four flats to which plaintiffs 4 and 5 were entitled were sold to four purchasers, who availed housing loans from LIC. M/s. LIC Housing Finance Ltd., issued six cheques to the defendant as Builders. Thus the defendant had received a total sum of Rs.69,15,000/- from M/s. LIC Housing Finance Ltd., towards cost of construction, which the defendant is bound to repay to the plaintiffs 4 and 5. The said amounts had been received by the defendant in trust and for the benefit of the plaintiffs 4 and 5, as per the oral understanding, since the defendant was not entitled to any amount towards the cost of construction as per agreement, dated 11.01.2004. Out of the said amount received by the defendant from M/s. LIC Housing Finance Ltd., the defendant had repaid the plaintiffs 4 and 5, a total sum of Rs.59,79,769/- alone and unlawfully retained the balance amount of Rs.9,35,231/-. There was no offer or any agreement made by the plaintiffs to the defendant towards any service charges/commission. The defendant has not rendered any service except to sign the Builders Agreement.

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