J U D G M E N T

The plaintiff in O.S.No.24 of 2008 on the file of the Subordinate Judge, Gudiyatham whose suit for specific performance was dismissed by the trial Court, upon its affirmation by the appellate Court, has come up with this Second appeal.

2. The plaintiff is the appellant herein. According to the plaintiff, he entered into an agreement of sale with the 1st and 2nd defendants through their power agent, the 3rd defendant herein. The total sale consideration was fixed at Rs.1,10,000/-, out of which the plaintiff paid a sum of Rs. 1 lakh towards part of sale consideration and got a registered sale agreement to that effect on 04.10.2006. A period of 18 months was fixed for payment of balance sale consideration and execution of sale deed i.e. on or before 03.04.2008. The plaintiff was always ready and willing to perform his part of the contract. But the defendants were postponing to perform their part of contract under some pretext or the other. Hence, the plaintiff had issued a legal notice on 24.03.2008, requiring the defendants to be present at the Sub-Registrar Office, Gudiyatham for receiving the balance sale consideration and to execute the Sale deed. But, there was no reply from the defendants to the said legal notice.

Since the defendants did not come forward to execute the Sale Deed, the plaintiff sued them for specific performance. During the pendency of the suit, on 28.05.2008, the 3rd defendant, Power of Attorney got the sale deed executed in his favour and therefore he was impleaded as a party respondent to the suit in his individual capacity.

3. The suit was resisted by the defendants contending that they did not enter into an agreement of sale with the plaintiff and the alleged transaction was a loan transaction. The value of the property was more than 5 lakhs and there was no need to sell the property for a meager price of Rs.1,10,000/-. The mountain of difference between the sale price stated in the agreement and the actual price of the property at the time of agreement, would clearly falsify the case of the plaintiff. The plaintiff is a money lender and he is famous for Kanthu vaddi business and that it is only a transaction between the plaintiff and the Power Agent. There is no intention for the defendants to sell the property. It is the custom prevailing among money lenders to obtain sale agreement as security for the loan given by them. Similarly, the plaintiff has obtained the suit document through their power agent. On the above contentions, the defendants sought for dismissal of the suit.

4. During trial, the plaintiff examined himself as P.W.1 and one K.Palani was examined as P.W.2. On the side of the defendants, the 3rd defendant has examined himself as D.W.1 and two other witnesses were examined as D.W.2 and D.W.3. The plaintiff marked Exs.A1 to A5, the defendants marked Exs.B1 and B2.

5. The trial Court after framing appropriate issues and upon consideration of the evidence on record, came to a conclusion that the suit agreement was not intended to be acted upon as a agreement of sale and dismissed the suit. Aggrieved, the plaintiff preferred an appeal in A.S.No.16 of 2016. The lower Appellate Court on re-consideration of the evidence on record, agreed with the finding of the trial Court and dismissed the appeal.

6. Aggrieved over the concurrent findings of the Courts below, the plaintiff has come forward with the second appeal. The following substantial questions of law were framed by this Court at the time of admission on

06.03.2017:

i. Whether the Courts below are correct in law in having failed to appreciate the settled legal proposition that no oral evidence could be relied upon so as to vary or deny the recitals of the document which was reduced in writing by the parties to such document as envisaged under Sections 91 and 92 of the Indian Evidence Act?

ii. Whether the Courts below are correct in law in having failed to consider the legal position that the defendants 1 and 2 who were originally p