JUDGMENT

The defendant in O.S.No.60 of 2015 has filed the Appeal suit challenging the Judgment and Decree dated 19.03.2020, granting a relief of refund of money with interest, without there being a claim in a suit for specific performance.

2. For the sake of convenience, the parties will be addressed with the same rank assigned in the suit.

3. The case of the plaintiff is under :

i) The plaintiff entered into an agreement of sale on 27.09.2012 with the defendant for the purchase of the suit property which belongs to the defendant for a sale consideration of Rs.11,14,000/- by paying an advance amount of Rs 5,00,000/- . The sale agreement was registered in document No.5401/2012 and time for performance of the contract was fixed as 11 months.

(ii) The defendant had also received an additional amount of Rs

1 lakh on 01.01.2013 and another 1 lakh on 16.05.2013, thereby extended the time for execution of sale deed orally and endorsed the same. However, the defendant has not executed the sale deed or provided necessary title deeds despite receiving advances.

(iii) The plaintiff issued a legal notice on 26.02.2015, and the defendant having acknowledged the same on 28.02.2015 has not come forward to execute the sale deed.

(iv) The plaintiff has therefore filed the suit to direct the defendant to execute and register the sale deed in favour of the plaintiff after receiving the balance sale consideration of Rs. Rs.4,14,000/-, along with a permanent injunction restraining the defendant from indulging in any actions that might encumber or alienate the property.

4. The defendant had filed a written statement wherein the defendant has stated that :-

(i) The defendant is a house wife and her husband is running a private concern in the name and style of Laksha Mobile Car Washing. The defendant and her husband had availed a loan of Rs.5 lakhs at an interest rate of 36% per annum to help meet the expenses of their elder daughter Saranya's marriage in September 2012. The defendant further availed an additional loan of Rs.2 lakhs on two separate occasions for which the defendant requested a reduction of interest rate from 36% to 30%, which the plaintiff agreed to.

(ii) In February 2014, the defendant and her husband paid Rs.2 lakhs towards their outstanding debt. Subsequently, due to financial difficulties they could not pay the monthly interest from December 2014 onwards.

(iii) The plaintiff, then issued a notice to the defendant and the defendant acknowledged the same and requested time until August 2015 to repay the outstanding amount.

(iv) The sale agreement, dated 27.09.2012, was not intended for selling the property but was executed as a security for the loan. It was the plaintiff who insisted on executing a sale agreement instead of a mortgage deed due to lower registration and stamp duty fees and the suit is liable to be dismissed.

5. On the above pleadings, the Trial court had framed the following issues :-

1. Whether plaintiff is entitled for a decree of specific performance as per sale agreement dated 27.09.2012?

2. Whether time is the essence of contract?

3. Whether the plaintiff is entitled for permanent injunction as prayed for?

4. Whether sale agreement is executed as security for borrowal of amount?

5. To what other relief plaintiff is entitled to?

6. Before the trial Court, the plaintiff examined himself as PW.1 and marked eight documents as Exs A1 to A8 i.e., Ex.A1 is the Sale agreement executed by the defendant in favor of the plaintiff dated 27.09.2012; Ex.A2 is the Legal notice dated 26.02.2015 issued by the plaintiff to the defendant; Ex.A3 is the Copy of the reply notice given by the defendant dated 07.03.2015; Ex.A4 is the Attested photocopy of the ration card of the plaintiff; Ex.A5 is the Attested photocopy of the election identity card of the plaintiff; Ex.A6 is the Attested photocopy of the Aadhar card of the plaintiff; Ex.A7 is the Acknowledgment card; Ex.A8 is the Sale deed in the name of the defendant dated 27.03.2006. On the defendan