IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON

DELIVERED ON

16.03.2022

06.06.2022

CORAM:

THE HONOURABLE MRS.JUSTICE S.KANNAMMAL

APPEAL SUIT NO.1084 OF 2009

AND

M.P.NO.1 OF 2009

1.Ratchagar (Died)

2.Jancy Rani

3.Paul Vibin

4.R.Monisha

(Appellants 2 to 4 brought on record as

LR's of the deceased sole appellant, vide

order of Court dated 01.03.2021 made in

C.M.P.Nos.3435, 3433 & 3009 of 2021

in A.S.No.1084 of 2009.)

... Appellants/Plaintiff

Versus

Anthoni Ammal

... Respondent/Defendant

Appeal Suit is filed under Section 96 of the Civil Procedure

Code against the Judgment and Decree dated 15.06.2009 in

O.S.No.108 of 2008 on the file of the Principal District Court,

Cuddalore.

For Appellants

: Mr.R.Gururaj

For Respondent : Mr.P.Dinesh Kumar

J U D G M E N T

This appeal suit arises out of the judgment and decree,

dated 15.06.2009, passed by the learned Principal District

Judge, Cuddalore, in Original Suit No.108 of 2008.

2.The sole plaintiff before the Court below is the appellant

herein. Pending this appeal, the sole plaintiff died on

01.07.2015 and therefore, his legal heirs were brought on record

as appellants 2 to 4.

3.The sole plaintiff filed the suit in O.S. No. 108 of 2008

for specific performance. The case of the plaintiff is that the

defendant borrowed a sum of Rs.25,000/- from him and executed a

simple mortgage deed dated 15.06.1993 in his favour in respect

of the suit property. In order to discharge the loans availed

from the plaintiff and several other persons, the defendant

offered to sell the suit property to the plaintiff and sale

price was fixed at Rs.7,00,000/-. On 10.05.2008, an agreement of

sale was entered into between the plaintiff and the defendant,

in which, the sale consideration was indicated as Rs.7,00,000/-.

The plaintiff agreed to discharge the loans availed by the

defendant to the tune of Rs.4,00,000/- and the same was adjusted

towards the sale consideration. On the date of agreement, the

plaintiff paid a sum of Rs.2,00,000/- in cash towards sale

advance and agreed to pay the balance within a period of three

months on which event, the sale has to be completed. Therefore,

the plaintiff has totally paid a sum of Rs.6,00,000/- to the

defendant as sale advance. Since only a small portion of

amount, i.e., Rs.1,00,000/- was remaining to be paid, the

defendant also handed over the possession of the suit property

to the plaintiff. According to the plaintiff, right from the

date of agreement of sale, the plaintiff has been ready and

willing to perform his part of contract. However, since the

defendant has been evading to perform her part of contract, the

plaintiff was constrained to file the suit.

4.Despite paper publication, the defendant had not chosen to

appear before the trial Court and contest the suit, she remained

absent and hence, was called absent and set ex parte before the

trial Court.

5.The trial Court framed the following issues :

i. Whether the plaintiff is entitled to a decree as

prayed for ?

ii.To what relief the plaintiff is entitled ?

6.Before the trial court, Mr. Ratchagar, sole plaintiff,

examined himself as P.W.1 and Exs.A1 and A2 were marked.

7.Though there was no contest by the defendant, the trial

Court observed that the agreement of sale Ex.A2 is an

unregistered document as contemplated under Section 17 (1-A) of

Registration Act, 1908, as such, the sale agreement shall have

no effect for the purpose of Section 53-A of the Transfer of

Property Act, 1882. Accordingly, the trial Court held that the

claim of the plaintiff as to part performance of contract under

Ex.A2 cannot be valid. Since Ex.A2 is an unregistered document,

the plaintiff is not entitled to the relief of specific

performance but entitled only for alternative relief. As such,

the Court below decreed the alternative relief, directing the

defendant to pay a sum of Rs.6,00,000