The execution of a sale agreement is sufficient for establishing intent to sell unless proven otherwise by the defendant.

JUDGMENT

This appeal is preferred against the judgment and decree passed by the Principal District and Sessions Judge, Sivagangai, made in O.S.No.38 of 2013, dated 16.03.2020.

2. The Suit has been filed by the respondent/plaintiff for the relief of specific performance on the basis of sale agreement dated 22.07.2013 executed between the plaintiff and the defendant for selling the suit property for a sale consideration of Rs.10,50,000/-. The sale agreement was a registered one and on the date of sale agreement itself, a sum of Rs.6,00,000/- was paid as an advance amount and the time for performance is agreed at one year. Since the defendant refused to execute the sale deed as agreed, the plaintiff has filed the suit for specific performance.

3. The defendant filed the written statement by stating that there is no privity of contract between herself and the plaintiff; that the defendant did not receive any advance amount of Rs.6,00,000/- as alleged by the plaintiff; the husband of the defendant by name Periyasamy had financial transaction with the plaintiff; a few months back, the defendant's husband namely Periyasamy requested the plaintiff for a loan of Rs.6,00,000/-; the plaintiff has stated that he did not have such huge sum and he introduced one financier by name, Anbarasu known to him and he helped to make arrangements for getting the loan of Rs.6,00,000/- from Anbarasu for Periyasamy; when Periyasamy approached Anbarasu, he agreed to give the loan on the condition that Periasamy should execute some document as seciruty. in order to avoid income tax issues, Anbarasu wanted to execute a sale agreement in respect of the suit property in favour of the plaintiff; the husband of the defendant agreed to the above terms and made the defendant to execute the sale agreement in respect of the suit property in favour of the plaintiff on intimation to Anbarasu; so, the sale agreement has been executed only by way of security and not with any intention to sell the suit property; however at the advice of the plaintiff, Anbarasu did not give any loan to the husband of the defendant; so the sale agreement is not supported by any consideration as stated by the plaintiff.

4. On the basis of the above said pleadings, the learned trial judge has framed the following issues:-

(i)Whether the plaintiff is ready and willing to perform his part of contract?

(ii)Whether the sale agreement dated 22.07.2013 is true and valid?

(iii)Whether the plaintiff is entitled to the relief of Specific performance?

(iv) What relief the plaintiff is entitled to''

5. During the course of trial, on the side of the plaintiff, two witnesses were examined as P.W.1 and P.W.2 and three documents were marked as Ex.A1 to EX.A3. On the side of the defendant, three witnesses were examined as D.W.1 to D.W.3 and no document is produced. The registered sale agreement dated 22.07.2013 and the registered Inam settlement deed dated 05.08.2005 were marked as Ex.X1 and Ex.X2 through a third party witness.

6. The learned trial judge has dismissed the suit in respect of specific performance and decreed the suit for refund of an advance amount of Rs. 6,00,000/- along with interest at the rate of 8%. Aggrieved over that, the defendant has preferred this appeal.

7. During the course of argument, the learned counsel for the appellant submitted that the sale agreement dated 22.07.2022 was executed only as a security for the proposed loan agreed to be given by one Anbarasu to the husband of the defendant: the learned trial judge has overlooked the fact that the plaitiff has not produced the original sale agreement; since the appellant/defendant had preferred a complaint with regard to the cheating committed by the plaintiff and his friend A