JUDGMENT

This Appeal Suit has been preferred as against the decree and judgment passed in O.S.No.49 of 2004 on the file of the Principal District Judge, Tuticorin, dated 28.06.2012, wherein the first respondent herein has filed a suit for specific performance of contract and the same was decreed in favour of the plaintiff. As against the decree and judgment, the present Appeal Suit has been preferred by the defendants.

2. For the sake of convenience and brevity, the parties herein after will be referred to as per their status / ranking in the Trial Court.

3. The case of the plaintiff is that the first defendant is the husband of the second defendant and the suit properties originally belonged to the defendants 1 and 2 and they entered into agreement with the plaintiff on 16.08.1996 to sell the properties for Rs.11,00,000/- and on the date of agreement itself, the entire amount was paid and four months time was fixed for execution of sale. After completion of four months, the defendants evaded from executing the sale deed and thereby, the plaintiff issued notice, dated 18.03.1997 and the same was received by the defendants and after receipt of notice, the defendants issued reply by stating false averments and thereby, rejoinder was also issued to the plaintiff. Even after the notice issued by the plaintiff, defendants have not come forward to execute sale deed and thereby, he filed the suit for specific performance on contract.

4. The case of the defendant is that the agreement was not executed with intend to sell the suit property and the defendants borrowed loan for a sum of Rs.10,00,000/- and for that purpose the suit agreement was executed. As per the advice of the Panchayatars, One Lakh amount was mentioned as excess than what the amount received and they have not executed the agreement for sale. Therefore, for that reason only after payment of entire amount, the sale he was not executed on the date of agreement itself. Therefore, the sale agreement was not executed for sale of property and it is only executed as security for the loan obtained by the defendants. Therefore, the suit is liable to be dismissed.

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

1) Whether the agreement, dated 16.08.1996 allegedly executed by defendants 1 and 2 in favour of plaintiff is not a sale agreement as contended by the defendants?

2) Whether defendants 1 and 2 did not receive any consideration from the plaintiff for the said agreement as alleged by them?

3) Whether the plaintiff is entitled to the relief of specific performance of contract?

4) Whether the plaintiff is entitled to recovery of possession?

5) To what relief, if any, is the plaintiff entitled?

6. On the side of the plaintiff, they examined P.W.1 and P.W.2 and marked Exhibits A.1 to A.17. On the side of the defendants, they examined D.W.1 to D.W.4 and not marked any documents.

7. After considering the evidences and documents adduced by both the sides, the Trial Court has decreed the suit by granting decree for specific performance. As against the decree and judgment passed by the Trial Court, the present Appeal Suit has been preferred by the appellants on the following grounds:

"1) The judgment and decree of the Court below is against law, weight of evidence and probabilities of the case.

2) The Lower Court ought to have seen that the alleged agreement, dated 16.08.1996 in favour of the first respondent / plaintiff herein by the appellants is not at all a sale agreement and the same was executed for the amount received by the second appellant herein for his business transaction.

3) The Lower Court ought to have seen that the first respondent /

plaintiff is a money lender and he has not maintained any proper account for the said business.

4) The Lower Court failed to appreciate that if the entire sale consideration has been paid by the plaintiff to the appellants herein on the date of the alleged agreement, there is no necessity to enter a sale agreement a