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2020 Supreme(Mad) 2193
IN THE HIGH COURT OF MADRAS (MADURAI BENCH)
N. Seshasayee, J.
S. Nagapandi - Appellant
Versus
K. Palanisamy - Respondent
S.A. (MD) No. 443 of 2015 and M.P. (MD) Nos. 1 and 2 of 2015
Decided On : 25-09-2020
For the Appellant : H. Lakshmi Shankar
For the Respondent: J. Joseph Jayakumar
Headnote:
Specific Relief Act, 1963 - Section 22(2) - Evidence Act. – Section 91 - Indian Contract Act - section 65 - Loan - Suit for specific enforcement of a registered agreement to sell suit property - Relief of repayment of loan amount - Plaintiff laid a suit for specific enforcement of a registered agreement to sell suit property, and marked under which he had agreed to pay a consideration of for purchase of suit property, and alleges he had paid as advance payment, and that when his notice A-2 requiring defendant to perform his part, did not bring in desired results - whether, in absence of any such alternative case in plaint it is open to court to give him relief on that basis - Rule undoubtedly is that court cannot grant relief to plaintiff on a case for which there was no foundation in pleadings and which other side was not called upon or had an opportunity to meet – Held, Court now, it may not be equitable to direct the defendant to pay interest from date of suit - Secondly, these are pandemic Covid-19 days, with most parts of world, over-wound by immeasurable anxiety, affecting both physical well-being, and as its concomitant fallout, financial health of entire society, Court considers it appropriate to factor them in while fixing time for payment and interest payable on it – Appeal partly Allow
JUDGMENT :
N. Seshasayee, J.
1. The plaintiff in a suit for specific performance in O.S. No. 100 of 2008, having tasted success before the trial Court, but, suffered a reversal before the first Appellate Court, is the appellant herein. Parties would be referred to by their rank before the trial court.
2. Facts necessary for the current purpose are that the plaintiff laid a suit for specific enforcement of a registered agreement to sell the suit property, dated 03-09-2007, and marked as Ext. A-1, under which he had agreed to pay a consideration of Rs. 1.65 lakhs for the purchase of the suit property, and alleges he had paid Rs. 1.60 lakhs as advance payment, and that when his notice (Ext. A-2) requiring the defendant to perform his part, did not bring in desired results.
3.1. The defence was an one-liner: The plaintiff is a money lender, that there has been continuous transactions between the plaintiff and the defendant, and that Ext. A-1 sale agreement was only intended to secure a loan transaction.
3.2. Expatiating his case, the defendant pleaded that on 15.07.2002, he borrowed Rs. 50,000/- from the plaintiff, and that the latter forced him to execute Ext. A-1 sale agreement in his favour. This in due course triggered the execution of a series of such agreements, of which the last of the agreement is now sought to be enforced. The details of all the earlier agreements since the inception are:
| S.No. | Date | Amount (in Rs.) |
| 1. | 15.07.2002 | 50,000 |
| 2. | 18.09.2002 | 70,000 |
| 3. | 15.05.2003 | 1,00,000 |
| 4. | 10.09.2003 | 1,00,000 |
| 5. | 22.09.2003 | 1,05,000 |
| 6. | 24.11.2004 | 1,60,000 |
| 7. | 27.06.2006 | 1,52,000 |
| 8. | 03.09.2007 | 1,65,000 |
4. The matter went to trial, and before the trial Court the defendant produced Ext. B-1 to Ext. B-8. Contrary to his pleadings that he had executed only registered sale agreements, the documents which the defendant has produced show that only three documents are agreements to sell the suit property. Exts. B-1 to B-3 are promissory notes which the defendant had executed in favour of plaintiff's wife Thenila. Exts. B-4 and B-7 are another set of promissory notes executed by him in favour of the plaintiff, and only Exts. B.5, B.6, & A.1, alone are sale agreements. Ext. B-8 is a cancellation deed, though which Ext. B-6 was cancelled. The details of the sale agreement are tabulated below:
| Exhibit | Date | Nature of Document | Value (in Rupees) |
| Ext.A5 | 22.09.2003 | Sale Agreement | 1,05,000 |
| Ext.A6 | 22.11.2004 | Sale Agreement | 1,25,000 |
| Ext.A8 | 03.09.2007 | Ext.B-6 cancelled |
|
| Ext.A1 | 03.09.2007 | Sale Agreement | 1,65,000 |
5.1. The documents produced by the defendant display a pattern to the manner by which the parties have conducted their affairs in relation to the sale of the suit property. There are both promissory notes and sale agreements earlier to Ext. A-1, but the trial court appeared to have pretermitted the pattern that provided the circumstances for the defendant to prove his case, and decreed the suit.
5.2. A document may be disputed for its execution, or for its character, or in a limited way as to the correctness of any recital or on a mistake concerning any terms thereof. Every attempt of a party to establish any circumstance that may impact the genuineness of a document, both as to its execution and character, or enable a party to avoid a document on grounds by which it can avoided under the Contract Act, fundamentally operates as an exception to Sec. 91 of the Evidence Act. It may not then be an ideal option for the court to overleap those facts that provide the circumstances as rendering the genuineness, or the intent, purport and import of the document most probable or improbable.
5.3. The first appellate court however, touched the right evidentiary cord and rectified the error in the approach of the trial court, and non-suited th
