COMMON JUDGMENT

These two appeals arise out of a common judgment pronounced by the learned Principal District Judge, Villupuram, in A.S.No.50 of 2011 and A.S.No.17 of 2012 dated 28.09.2012. In and by way of the said judgment, the learned Principal District Judge, allowed the appeals and partly decreed the suit for specific performance. Insofar as it relates to return of advance amount, the learned Principal District Judge granted the same but denied the relief of specific performance of agreement of sale. Thereby, he set aside the decree in O.S.No.14 of 2008, dated 29.04.2011, on the file of the Subordinate Judge at Gingee.

2. For the sake of convenience, the parties will be referred to as plaintiff and defendants.

3. The plaintiff presented a suit for specific performance of an agreement of sale, dated 14.08.2006. The agreement is a registered one. As per the agreement, the defendants 1 to 3 agreed to alienate the suit schedule mentioned property for a sum of Rs.2,10,000/-. As per the agreement, a sum of Rs.2,00,000/- was paid on the date of agreement itself and for the remaining amount of Rs.10,000/- a period of 3 years time was granted. The plaintiff issued a suit notice on 08.12.2007. The notice was received on 11.12.2007 and the reply was sent on 14.12.2007.

4. In the reply notice, the defendants 1 to 3 admitted that they had entered into an agreement on 14.08.2006, after receiving a sum of Rs.2,00,000/- as advance amount. They further pleaded that the agreement dated 14.08.2006 as “sham and nominal” one. According to them, it was their intention to treat the transaction only as a loan transaction and they had paid interest month on month from 26.09.2006 to 19.11.2007. Therefore, they claimed that they had paid a sum of Rs.58,000/- towards interest and further, stated that they are willing to repay the entire balance and it was the plaintiff who refused to receive the same.

5. The 4th defendant claimed that he had purchased the property by way of a registered sale deed, dated 02.01.2008. He alleged that he is a bonafide purchaser for value, without notice of transaction dated 14.08.2006. He further pleaded that, in the year 2003 itself he had agreed to purchase the property for a sum of Rs1,54,000/- and had paid the entire amount on that date itself. According to him, in pursuance of the agreement dated 14.08.2006, they entered into a sale deed on 14.09.2007, but the same was registered only on 02.01.2008.

6. Before the learned trial Judge, the plaintiff examined himself as P.W1 and marked Ex.A1 to Ex.A7. The 1st and 4th defendants examined themselves and in addition they examined D.W2, D.W4 and D.W5. They marked Ex.B1 to Ex.B15 which included Ex.B1, the account book, in order to show that there were money lending transaction between the plaintiff and the defendants 1 to 3.

7. The learned Trial Judge, on the basis of this evidence, decreed the suit as prayed for, on 29.04.2011.

8. Aggrieved by the said judgment and decree, the subsequent purchaser namely, the 4th defendant, preferred A.S.No.50 of 2011. The original owners of the property namely, defendants 1 to 3 subsequently, preferred A.S.No.17 of 2012, both the appeals were clubbed and heard together. As stated above, the learned Appellate Judge allowed the appeals in part, denied the relief of specific performance to the plaintiff but granted the relief of return of advance amount.

9. As against the reversing judgment, the present second appeals have been presented.

10. When the matter came up for admission before this Court, on

29.04.2013, this Court ordered notice regarding admission but did not admit the second appeals. On notice, though all the defendants were served, only 4th defendant entered appearance. The original vendors namely defendants 1 to 3 had chosen not to appear before this Court either in person or through the counsel.

11. Mr.Rajarajan, the learned counsel appearing for the appellant very strongly contended that the circumstances of the case should have lead th