IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 26.02.2025 Coram:

THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR Appeal Suit No.91 of 2022 Rajkumar .. Appellant /versus/

Kasthuri Bai .. Respondents Appeal Suit has been filed under Section 96 of C.P.C., praying to set aside the judgment and decree dated 18.12.2019 made in O.S.No.200 of

2015 on the file of the Additional District Judge at Chengalpet.

For Appellant :Mr.B.Rajkumar Ashok Singh For Defendant :Mr.Ramesh Kumar G.Chopda

JUDGMENT

Aggrieved over the judgment and decree of the Trial Court decreeing the suit for a payment of a sum of Rs.10,49,699/- together with interest @ 6% p.a., on Rs.8,83,500/-from the date of plaint till the date of realisation, the present appeal is filed by the unsuccessful defendant.

2. The parties are arrayed to as per their own ranking before the Trial Court.

3. The case of the plaintiff is as follows:

3.a. The defendant is the husband of the plaintiff's sister Mrs.S.Unaicy Christhi Jothi. The plaintiff sold the property bearing Plot No.1, Govindarajapuram, Nandhivaram Guduvanchery to her sister Mrs.S.Unaicy Christhi Jothi, wife of the defendant as per the registered sale deed dated 21.06.2012. The defendant approached the plaintiff and requested the plaintiff to lend amount for his urgent family needs and sons education on undertaking to repay the same together with interest at 24% p.a., within a period of three months. Accordingly, on 26.06.2012, the plaintiff had transferred a sum of Rs.5 lakhs through RTGS and Rs.2 lakhs from her savings account at Canara Bank, Gudavancherry Branch to the defendant's account also demand draft of Rs.43,000/- in favour of Valliammai Polytechnic towards the educational fees of defendant's son Samuel was also drawn by the plaintiff. Further, a sum of Rs.1,40,500/- is also transferred to the defendant's account on 29.09.2012. In all, the plaintiff had let a sum of Rs.8,83,500/-.

3.b. The defendant had repaid a sum of Rs.1,50,000/- on 18.03.2013 to the plaintiff and the said amount is adjusted towards interest. Thought the defendant undertook to pay interest @ 24% pa., the plaintiff is restricting his claim for interest @ 12% pa., The plaintiff has issued a legal notice for repayment of the amount and it is also his case that while issuing legal notice by mistake, the plaintiff had omitted to mention about the transfer of Rs.5 lakhs to the defendants on 26.06.2012. Hence, the suit has been filed for recovery.

4. It is the case of the defendant in the written statement that sale consideration of the property is Rs.50 lakhs and a sum of Rs.35 lakhs has been paid in cash on various dates, that apart, Rs. 15 Lakhs was obtained from M/s.Shriram Housing Finance Limited is also paid to the plaintiff through demand draft. It is the contention of the defendant that the property was sold in the name of defendant's wife is not free from encumbrance, thus, the plaintiff herself voluntarily come forward to retain the sum of Rs.8,83,500/-, a part amount of the sale consideration as a security till the encumbrance cleared and the sale deed mentioned property free from encumbrance. In that said amount, the defendant has paid a sum of Rs.1,50,000/- to the plaintiff, therefore, the defendant is liable to pay only a sum of Rs.7,33,500/- towards the sale proceedings till the plaintiff clear the encumbrance over the property. Further, the defendant has also given a criminal complaint against the third parties in Cr.No.30 of 2013 and the plaintiff has pressurised the defendant for repayment of amount by giving police complaint for return of Rs.9,50,000/- at one stroke, therefore, the defendant has issued a legal notice dated 11.03.2015 calling upon the plaintiff to pay the sale amount of Rs.42,50,000/- with interest @ 24% p.a., Hence, according to the defendant, there was no loan borrowed from the plaintiff at any point of time and opposed the suit.

5. Based on the above pleadings, the Trial Court has framed the following issues:

1. Whether the plaint