IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.03.2024 CORAM:

THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI AS. No. 880 of 2020 & CMP No. 10461 of 2020

1 A.PALANISAMY (DIED)

S/O ARUMUGAM ASARIAR D.NO.45 PARIVALLAL STREET SURAMPATTI ERODE-638009 2 P.SARASWATHY W/O.LATE A.PAL ANISAMY D.NO.45 PARIVALLAL STREET SURAMPATTI ERODE-638 009

3 P.SATHEESHKUMAR S/O.LATE A.

PALANISAMY D.NO.45 PARIVALLAL STREET SURAMPATTI ERODE-638009

4 S.NIRMALA D/O.LATE A.PALANI SAMY W/O.SASIKUMAR D.NO.45 PARIVALLAL STREET SURAMPATTI ERODE-638009

5 P.SENTHILKUMAR S/O.LATE A.P ALANISAMY D.NO.45 PARIVALLAL STREET SURAMPATTI ERODE-638009 A1 DIED A2 TO A5 ARE BROUGHT ON RECORD AS LRS OF DECEASED [ PETITIONER ]

`` Vs

1 E.VENKATACHALAMOORTHY S/O ESWARA GOUNDER NO.25-B NEHRU STREET AYYAMPALAYAM POST KAVUNDAPADI VIA BHAVANI TK ERODE DISTRICT [ RESPONDENT ]

PRAYER : This first appeal is filed under section 96 read with Order XLI Rule 1 of the Civil Procedure Code, against the Judgment and Decree dt. 20/01/2020 made in OS NO. 167/2015 on the file of II Adl.District Court Erode.

For appellants : Mr.S.Kathamalai Kumaran For Respondents : Mr.Arun Anbumani

JUDGMENT

Challenging the impugned Judgment and Decree dated 20/01/2020 made in OS NO. 167/2015 on the file of II Adl.District Court, Erode, the appellants filed this appeal.

2. The respondent herein/plaintiff filed the suit against the appellant herein/defendant for the relief of specific performance seeking to execute the sale deed as per the sale agreement dated 25.06.2012 with alternative remedy to refund the advance amount of Rs.10,00,000/- with 12% interest interest before the Trial Court. The defendant who is the absolute owner of the suit property denied the plaintiff's claim contended that said agreement was executed for the security purpose for the loan transactions and he was not intended to sell the property. Considering the both side submissions and evidence available on records the Trial Court held that the agreement was admitted by the defendant but he has not proved that it was executed for the security purpose for loan transaction. On other hand, the plaintiff proved that he was ready and willing to perform his part of the agreement. Accordingly, the plaintiff was entitled for the relief of specific performance. Thereby suit was decreed directing the defendant to execute the sale deed as per the sale agreement. Aggrieved over the same the defendant preferred this appeal.

3. The learned counsel for the appellant/defendant submitted that the Trial Court failed to take note of the fact that the time was fixed for performance was two years for meagre amount but the same was not complied by the plaintiff within the stipulated period. Even after lapse of nine months the plaintiff issued notice without assigning reason for the said delay. In spite of the fact that the said suit was decreed by holding that plaintiff always ready and willing to performance his part of the contract as such is erroneous and liable to be set aside. Further, he submitted that the Trial Court has failed to take note of the fact that plaintiff has suppressed the earlier sale agreement dated 26.07.2011 exeucuted between them but the same was not mentioned in the plaint nor any reason was assignd for the non mentioning of the said fact in the plaint which itself proves that he was not approached the Court with clean hands but decree for specific performance was granted in his favour as such is totally unfair and liable to be set aside. Further submitted that the defendant proved the earlier loan transaction with the plaintiff by submitting documents which was marked as Ex.B2, Ex.B3 and Ex.B4 through which the defendant refute the claim of the plaintiff which also probablise his defence of loan transaction without appreciating those facts the decree was granted in favour of the plaintiff as such is totally unfair and liable to be set aside. Hence, he prays to allow this appeal.

4. By way of reply, the learned counsel for the respondent/plaintiff submi