JUDGMENT

JOHNSON JOHN, J The defendant in a suit for specific performance filed this appeal challenging the decree for return of advance sale consideration. 2. The plaintiff filed the suit stating that he entered into an agreement for sale of the property of the defendant on 29.04.2015 for a total consideration of Rs.42,00,000/- by paying Rs.10,00,000/- as advance sale consideration. Thereafter, the defendant demanded more amount towards land value and advance sale consideration stating that some other person has offered a total consideration of Rs.55,00,000/- and 70% of the same as advance sale consideration. The defendant also informed the plaintiff that he had availed a loan from the Kerala Financial Corporation and that the defendant needs Rs.50,00,000/- to clear the loan arrears. Even though, the plaintiff was not interested with the new deal, considering the cordial relationship and the money which he had already invested, he agreed to pay Rs.50,00,000/- to the defendant as advance sale consideration and also agreed to purchase the property by paying Rs.5,00,000/- as balance sale consideration at the time of registration of the sale deed. Accordingly, they entered into a new agreement for sale on 02.05.2015. Since the defendant sought extension of time for clearing the debt due to the Kerala Financial Corporation, the time for performance of the agreements for sale dated 29.04.2015 and 02.05.2015 were extended till 25.04.2017 as per the endorsements made by the defendant on the said agreements. Thereafter, on 30.11.2016, the defendant approached the plaintiff with a new proposal for the construction of an apartment in the property as a joint venture and by availing a loan of Rs.2,50,00,000/- by mortgaging the property with Co-operative Bank, Kangarappady Branch. The defendant also offered to share the total profit from the sale of the apartments equally between the plaintiff and the defendant after deducting the price of the property. The plaintiff agreed for the proposal, subject to condition that if the defendant fails to arrange the bank loan, he will register a new agreement by stating and accepting all the terms and conditions mentioned in agreement dated 29.04.2015 and 02.05.2015 and also on condition that till the registration of the new agreement, both the agreements dated 29.04.2015 and 02.05.2015 will be valid. The defendant accepted the said conditions and made endorsements to that effect in the agreement dated 29.04.2015. Thereafter, a new agreement was executed on 01.12.2016 and the defendant also obtained a receipt dated 01.12.2016 from the plaintiff for submitting before the bank to avail the loan. It is stated that the original of the said documents were handed over to the defendant and the plaintiff kept notarised copies of the same. Even though, the plaintiff had paid Rs.50,86,000/- towards sale consideration, the defendant failed to perform his part of the agreement and hence, the suit was filed. 3. In the written statement, the defendant contended that the plaintiff is a money lender and the defendant borrowed Rs.25,00,000/- from the plaintiff to construct a house in the plaint schedule property during 2014 by executing a registered sale agreement. But, in fact, the same was not an agreement for sale of the property. It is stated that the defendant signed the agreement as he has no other option because of his financial liability towards the Kerala Financial Corporation. The defendant denied the execution of a subsequent sale agreement by re-fixing the sale consideration. It is stated that the plaintiff used to draw cheques through the defendant and the plaint averment regarding payment of sale consideration by various cheques to the defendant is false.

4. It is stated that the defendant repaid Rs.25,00,000/- with interest to the plaintiff before 01.12.2016 and on 01.12.2016 the original agreement was cancelled by executing a registered cancellation deed. It is stated that the defendant also destroyed