S.A.No.43 of 2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 27.01.2023

CORAM

THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN

S.A.No.43 of 2023

and C.M.P.No.1397 of 2023

Ramasamy

..

Appellant

Vs.

Subramanian

..

Respondent

Prayer:- Second Appeal filed under Section 100 of CPC aggrieved by the

Judgment and Decree dated 05.01.2016 made in A.S.No.26 of 2015 on the file

of the Additional District Sessions Court and Chief Judicial Magistrate,

Ariyalur, confirming the Judgment and Decree dated 31.07.2012 made in

O.S.No.321 of 2009 on the file of the Principal District Munsif Court, Ariyalur.

For Appellant

: Mr.M.Kavikannan

JUDGMENT

This second appeal has been filed as against the Judgment and Decree

dated 05.01.2016 made in A.S.No.26 of 2015 on the file of the Additional

District Sessions Court and Chief Judicial Magistrate, Ariyalur, confirming the

Judgment and Decree dated 31.07.2012 made in O.S.No.321 of 2009 on the file

of the Principal District Munsif Court, Ariyalur, thereby partly decreed the suit.

2. The petitioner is the defendant in the suit filed by the respondent herein

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S.A.No.43 of 2023

for specific performance. The case of the respondent is that on 24.08.2008, they

had entered into an agreement for sale in respect of the suit property, in which

the appellant had agreed to sell the land for a total sale consideration of

Rs.90,000/-. On the date of agreement for sale, the appellant had received a sum

of Rs.83,000/- as advance. The agreement period was fixed as one year.

Accordingly, the remaining sale consideration of Rs.7,000/- has to be paid by

the respondent and on payment of the said amount to the appellant, he has to

perform his part of contract. The appellant failed to execute any sale deed and

as such the respondent caused legal notice on 14.08.2008 and filed a suit.

3. Resisting the same, the appellant herein filed his written statement

stating that on 10.03.2002, he had purchased a motor cycle from the respondent

for which he has to pay a sum of Rs.15,000/- . For the said payment, he had

executed a pro-note and however, he could not able pay the said amount and

thereafter he had executed another pro-note for a sum of Rs.30,000/-. Again, the

appellant could not return the amount and as such on 12.03.2005, he had

executed another pro-note for a sum of Rs.60,000/-. Thereafter, the entire loan

was settled at Rs.35,000/- and as such he had never executed any agreement for

sale and he had never intended to sell the suit property.

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S.A.No.43 of 2023

4. On the basis of the pleadings, the Trial Court framed the following

issues:-

“ 1/ thjp tHf;Fiuapy; nfhupa[s;sJ nghy; Vw;wij

Mw;Wf gupfhuk; fpilf;fj;jf;fjh>

2/ jhth brhj;J gpujpthjpf;F ghj;jpag;gl;ljy;y

fpua xg;ge;jk; nkhroahf jahupf;fg;gl;Ls;sjhff; TwtJ rupah>

3/ thjpf;Ff; fpilf;ff;Toa ,ju gupfhu';fs;

vd;d>”

5. On the side of the respondent he had examined P.Ws.1 and 2 and

marked Exs.A1 to 3. On the side of the appellant, he had examined D.Ws.1 and

2 and marked Exs.D1 to 4. On a perusal of oral and documentary evidences, the

Trial Court found that the respondent is not entitled for the relief of specific

performance and he is entitled for an advance amount which was paid by him

and partly decreed the suit. Aggrieved by the same, the appellant preferred

appeal and the same was also dismissed confirming the Judgment and Decree

passed by the Trial Court. Hence, this second appeal.

6. The appellants raised the following substantial questions of law,

“1. Whether the Lower Appellate Court is justified in

confirming the Judgment and decree of the Trial Court?

2. Whether Courts below are justified in applying the

principles of equity without considering the oral and

documentary evidences filed by appellant/defendant herein ?

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S.A.No.43 of 2023

3. Whethe