A money decree cannot be granted when a sale agreement is found non-genuine; it changes the nature of the claim to a loan recovery without proper pleadings.

JUDGMENT :

A.D.MARIA CLETE, J.

This appeal is directed by the defendant against the judgment and decree dated 05.12.2017 passed in O.S. No. 24 of 2017 on the file of the II Additional District Court, Salem, insofar as the trial Court granted a money decree directing the defendant to pay Rs. 13,00,000/- with interest at 7.5% p.a. from the date of suit till realization, while rejecting the suit for specific performance and refund.

2. For the sake of convenience, the parties are referred to as they were arrayed before the Trial Court.

3. The case of the Plaintiff: The plaintiff filed the suit for specific performance in respect of the scheduled house-site properties, pleading that the defendant had acquired title under the registered sale deed dated 11.03.1992 and later agreed to sell the same to him for Rs.15,00,000/-. According to the plaintiff, the defendant received Rs.13,00,000/- as advance on 21.01.2016 and executed a registered sale agreement, under which the balance of Rs.2,00,000/- was payable within twelve months, whereupon the defendant was to execute a sale deed free from encumbrances. The plaintiff asserted that he was always ready and willing to perform his part, but that the defendant evaded execution of the sale deed despite repeated demands, including a legal notice dated 25.10.2016 calling upon him to appear before the Sub-Registrar Office, Valappady, on 02.11.2016, which was returned unserved. Apprehending alienation to third parties, the plaintiff sought specific performance, or in the alternative refund of Rs.13,00,000/- with interest, together with a charge over the suit properties, costs and other appropriate reliefs.

4. The case of the Defendant:The defendant contested the suit as false and not maintainable, and denied the alleged sale agreement, receipt of Rs.13,00,000/- as advance, and the plaintiff’s readiness and willingness. Her specific case was that the transaction was not one of sale, but only a loan transaction, under which she had borrowed Rs.3,00,000/- from the plaintiff and was repeatedly made to execute sale agreements as security for the said loan. According to her, the earlier agreements were cancelled and fresh documents were obtained under coercion, culminating in the agreement dated 21.01.2016, falsely reciting a sale consideration of Rs.15,00,000/- and advance of Rs.13,00,000/-, though no such amount was in fact paid. She further denied any deliberate evasion of notice or intention to alienate the suit properties, and maintained that, apart from the initial borrowing of Rs.3,00,000/-, she had received no amount from the plaintiff and had never intended to sell the property. On that basis, she sought dismissal of the suit with costs.

5. On the pleadings, the trial Court framed issues as to whether the sale agreement dated 24.08.2011 was executed only as security for a loan transaction, as contended by the defendant; whether the plaintiff was entitled to specific performance; whether he was entitled to refund of the advance amount; whether a charge could be created over the suit properties; and to what other reliefs he was entitled.

6. At trial, on the plaintiff’s side, P.W.1 and P.W.2 were examined, and Ex.A.1 to Ex.A.9 were marked. On the defendant’s side, D.W.1 was examined, and no documents were marked on her behalf.

7. On an appreciation of the evidence, the Trial Court placed decisive reliance on the admissions of P.W.1 in cross-examination, wherein he admitted that Exs.A2, A6 and A8 had been executed only as security for amounts borr