The court upheld the existence of a sale transaction based on evidenced payments, clarifying that absence of a written agreement does not invalidate the plaintiff's claim under surrounding circumstances.

JUDGMENT :

A.D. MARIA CLETE, J.

1. This First Appeal, filed by the appellant/defendant under Section 96 of the Code of Civil Procedure, is directed against the judgment and decree passed in O.S. No.149 of 2014 by the III Additional District Court, Salem, whereby the suit filed by the respondent/plaintiff for recovery of money was decreed and the counter-claim of the defendant was dismissed.

2. For the sake of convenience, the parties shall be referred to in the same rank as they stood before the Trial Court.

3. The Plaintiff’s case in brief: The plaintiff is a partnership concern carrying on business under the name “M/s. Jay Computer & Communications”. The plaintiff asserted that the defendant had earlier sold Plot Nos.63, 64, 65 and 66, situated in Salem West Registration District, Omalur Sub-Registration District, Omalur Taluk, Karuppur Village, in favour of the partners of the plaintiff. Thereafter, the plaintiff’s concern itself agreed to purchase Plot Nos.61 and 62.

4. The plaintiff, towards the sale transaction of Plot Nos.61 and 62, paid a total sum of Rs.17,17,250/- through cheques to the defendant. The defendant failed to complete the sale in favour of the plaintiff and instead sold Plot Nos.61 and 62 to third parties.

5. The plaintiff issued notices dated 24.01.2014 and a reminder dated 08.02.2014 to the defendant demanding refund of the advance amount. The defendant did not respond to the said notices. Thereafter, the plaintiff sent a legal notice dated 11.03.2014 demanding repayment with interest. The defendant sent a false reply through his advocate on 28.03.2014, wherein the land referred to in the reply notice was in no way connected with Plot Nos. 61 and 62.

6. The defendant paid a sum of Rs.50,000/- towards the purchase of materials from the plaintiff’s concern, and the said transaction is in no way connected with the amount paid by the plaintiff towards the plots.

7. The Defendant’s case in brief: The defendant admitted ownership and development of lands into house sites and also admitted the sale of Plot Nos.63, 64, 65 and 66 to the partners of plaintiff. The plaintiff denied that the amount of Rs.17,17,250/- was received as sale consideration for Plot Nos.61 and 62.

8. According to the defendant, the said amount of Rs.17,17,250/- was received towards the sale of another property owned by him measuring 10,000 sq.ft. at Saral Village, Alagapuram, Nagarmalai Adivaram, as per an agreement dated 26.04.2012, under which the sale was to be completed on or before 26.10.2012. It was further stated that if the sale was not completed, the advance amount would stand forfeited. As per the said arrangement, since the sale was not completed, the amount was forfeited.

9. After receiving the notices, the defendant contacted the plaintiff and enquired about the same, to which the plaintiff allegedly replied that the notices were sent only to show the bank and asked the defendant not to take them seriously. Believing the said version, the defendant did not send any reply. The defendant further stated that at the request of the plaintiff he paid a sum of Rs.50,000/-, which amount is still due.

10. Brief facts of the additional written statement-cum-counter-claim: The defendant stated that the plaintiff had agreed to purchase 10,000 sq.ft. of land at Saral Village, Alagapuram, Nagarmalai Adivaram, and the price was fixed at Rs.1,600 per sq.ft. Due to the failure of the plaintiff, the defendant sustained a loss of nearly Rs.50,00,000/-. The plaintiff failed to adhere to the oral terms and conditions, where time was the essence of the contract, thereby committing breach of contract. The defendant claimed that he suffere