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2024 Supreme(Online)(MAD) 12385
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 01.03.2024 CORAM THE HONOURABLE Mr. JUSTICE G.ARUL MURUGAN S.A.No.444 of 2012 and MP.No.1 of 2012 1.Nachimuthu (Died) 2.Pappathi 3.Amsaveni 4.Mathesh ... Appellants (Appellants 2 to 4 brought on record as LRs of the deceased sole Appellant viz.,Nachimuthu vide Court order dated 15.11.2021 made in CMP.No.11930 to 11932 of 2018 in SA.No.444/2012 (TKRJ)) vs.
Marimuthu ...Respondents Prayer:~ Second Appeal filed under Section 100 of the Civil Procedure Code against the judgment and decree dated 28.03.2011 passed in A.S.No.49 of 2008 on the file of Additional District Court, (FTC No.I), Salem reversing the judgment and decree dated 29.01.2008 passed in OS.No.25 of 2006 on the file of Sub Court, Mettur. For Appellants : Mr.A.Sundara Vadhanan For Respondent : Mr.V.Sekar for Mr.D.Shivakumaran
The plaintiff must prove the passing of consideration and the genuineness of the sale agreement for specific performance.
Headnote:
specific performance - sale agreement - The plaintiff filed a suit for specific performance based on a sale agreement. The Trial Court decreed the suit, but the Lower Appellate Court set aside the decree, finding that the plaintiff failed to establish the passing of consideration and the genuineness of the agreement. The plaintiff appealed to the High Court, which confirmed the Lower Appellate Court's decision.
Fact of the Case:
The plaintiff entered into a sale agreement to purchase a property for Rs.2,70,000, paid an advance of Rs.2,50,000, and was to pay the balance within seven months. The defendant disputed the agreement, claiming it was not genuine and that he was not available in Tamil Nadu during its execution.
Finding of the Court:
The Trial Court decreed the suit, but the Lower Appellate Court set aside the decree, finding that the plaintiff failed to establish the passing of consideration and the genuineness of the agreement. The High Court confirmed the Lower Appellate Court's decision.
Issues: The issues revolved around the passing of consideration, genuineness of the sale agreement, and the availability of the defendant during its execution.
Ratio Decidendi: The plaintiff failed to prove the passing of consideration and the genuineness of the sale agreement, and the evidence presented raised doubts about the execution of the agreement and the intentions of the parties.
Final Decision: The High Court dismissed the Second Appeal, confirming the judgment and decree of the Lower Appellate Court.
J U D G M E N T
The plaintiff in the suit for specific performance is the appellant herein. The Second Appeal is filed challenging the judgment and decree dated 28.03.2011 passed in AS.No.49 of 2008 on the file of Additional District Court, Fast Track Court No.I, Salem, reversing the judgment and decree dated 29.01.2008 passed in O.S.No.25 of 2006 on the file of Sub Court, Mettur.
2. For the sake of convenience, the parties are referred to as per their rankings before the Trial Court.
The brief facts, which give rise to the second appeal, are as follows:
3. According to the plaintiff, the defendant offered to sell the suit property and he agreed to purchase the same for a sum of Rs.2,70,000/-, pursuant to the agreement dated 16.11.2005. The plaintiff entered into a sale agreement for purchasing the suit property for a total sale consideration of Rs.2,70,000/- and on that date itself, the plaintiff has paid an advance of Rs.2,50,000/-. It was further agreed that the defendant shall execute the sale deed in favour of the plaintiff after receiving the balance consideration of Rs.20,000/- within seven months from the date of agreement.
4. According to the plaintiff, he approached the defendant on many occasions and requested the defendant to execute the sale deed by tendering the balance sale consideration of Rs.20,000/-. Since the defendant did not show any interest, finally on 15.05.2006 the plaintiff met the defendant in person and requested to perform his part of the contract. Since it did not materialize, the plaintiff sent legal notice on 16.11.2005 calling upon the defendant to come to the Sub Registrar Office on 26.11.2005 to execute the sale deed, but the defendant have evaded the service of notice. According to the plaintiff, he was always ready and willing to perform his part of contract, since the defendant evaded, he has come with the suit for specific performance of the sale agreement dated
16.11.2005.
5. The defendant resisted the suit by filing the written statement disputing the sale agreement in Ex.A.1. According to the defendant, he borrowed a loan from M/s.Mettur, M/s.Mettur Chollan Finance & Investments, Mettur, M/s.Erode Cheran Corporation and Mettur Pandiyan Finance and Investments, Mettur and Seran Finance and Investments, Mettur. On 04.09.2000, the defendant borrowed a sum of Rs.1,50,000/- to purchase a tata vehicle from the above said financiers, for which, the financiers obtained unfilled signed cheques from the defendant along with signed unfilled 20 Rupees stamp papers, two unfilled signed conquer sheets and four unfilled signed pro notes, all for security purposes. According to the defendant, the plaintiff's son Madesh and plaintiff's wife Pappathi are partners in Mettur Seran Finance and in Erode Seran Corporation Finance. The defendant had also borrowed a sum of Rs.4,50,000/- for purchasing a rig vehicle from Erode Seran Corporation Finance, during the month of June 2004.
6. According to the defendant, he had closed the loan account.
However, while availing the loan, the financiers obtained the signatures from the defendant on two unfilled 20 rupees stamp papers, four unwritten green concur sheets and four unfilled stamped pronotes. Even after the completion of the loan amount, these documents were not returned. Further, according to the defendant, one Appu @ Perumal obtained loan from the finance and the defendant was compelled to give unfilled documents as a security. Even after settling all these accounts, the finances retained those documents and set up the plaintiff and created the sale agreement by utilising unfilled stamp papers and concur sheets. Therefore, according to the defendant, the sale agreement in Ex.A.1 is not true and genuine and it was never intended and executed by the parties for the sale of the suit property. The defendant also averred that he issued the lawyers notice on 19.07.2006 demanding the return of the documents and prayed for dismissal of the suit.
Evidence and Documents:
7. Du
