2023/MHC/766

A.S.No.567 of 2022

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 20.02.2023

CORAM

THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM

A.S.No.567 of 2022
and
C.M.P.No.21452 of 2022

Murugavel ..Appellant

Vs.

Nagarkani ..Respondent

Appeal filed under Order 41 Rule 1 read with Section 96 of

C.P.C., praying to set aside the Decree and Judgment of the learned
Principal District Judge, Villupuram, passed in O.S.No.133 of 2018 dated
14.06.2021.

For Appellant : Mr.J.Raja Kalifulla

Senior counsel
For Mr.S.V.Karthikeyan

For Respondent : Mr.V.Raghavachari

Senior counsel
For Mrs.V.Srimathi

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JUDGMENT

The Appeal Suit has been filed to set aside the Decree and Judgment

dated 14.06.2021 passed by the Principal District Judge, Villupuram made

in O.S.No.133 of 2018.

2. The appellant is the plaintiff, instituted a suit for Specific

Performance, which was partly decreed to the extent of refund of the

advance amount paid by the plaintiff to the defendant through the suit sale

agreement, Ex.A1 document. In respect of the relief of Specific Performance,

the suit was dismissed. Thus, the appellant has chosen to prefer the present

appeal suit.

3. The plaint averment states that the defendant is the owner of the

suit mentioned property and he agreed to sell the same for a consideration of

Rs.23,00,000/- in favour of the plaintiff. On 22.09.2016, a sale agreement

was executed between the plaintiff and the defendant and the defendant had

received the advance amount of Rs.21,00,000/- from the plaintiff. The suit

sale agreement deed was registered on the file of the Sub-Registrar,

Ulundurpet as Document No.2891 of 2016. The plaintiff had to pay the

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balance sale consideration of Rs.2,00,000/- within a period of two years

from the date of agreement and take the sale deed in his favour at his own

cost free from all encumbrance.

4. Pursuant to the sale agreement dated 22.09.2016, the plaintiff

states that he was always ready and willing to perform his part of contract

and demanded for execution of sale as per the terms of agreement by

receiving the balance sale consideration. But the defendant evaded

execution, which resulted in institution of the suit for Specific Performance

after issuing a legal notice on 01.09.2018.

5. The defendant denied the plaint averments in his written statement.

The defendant states that due to his financial crisis, he borrowed a loan of

Rs.9,00,000/- from one Mr.Rajaram for his family expenses and the said

Mr.Rajaram asked the defendant to execute the sale agreement in favour of

him for the loan transaction, by fixing the interest at the rate of 4% per

month and further, assured to cancel the sale agreement at the time of

settlement of the said loan amount.

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6. The defendant executed a sale agreement deed in favour of the said

Mr.Rajaram on 29.09.2014 and received a sum of Rs.9,00,000/- as a loan.

Later on, due to his family situation, he was not in a position to settle the

Principal amount with interest. The said Mr.Rajaram approached the

defendant to repay the Principal amount along with the interest or otherwise

demanded for the renewal of sale agreement. The defendant states that he

cancelled the earlier agreement dated 29.09.2014 and thereafter, executed

the suit sale agreement on 22.09.2016. Only based on the instructions given

by the said Mr.Rajaram, the defendant executed the suit sale agreement deed

in favour of the plaintiff, who is none other than the brother of his wife. The

defendant borrowed a sum of Rs.9,00,000/- and executed a sale agreement

deed in favour of the plaintiff. The defendant has no need to borrow a sum

of Rs..21,00,000/- from the plaintiff and contended that the plaintiff had no

financial capacity to pay a sum of Rs.21,00,000/- to the defendant at that

point of time.

7. The defendant states that Mr.Rajaram was doing money lending

business and he used to get sale agreement deeds at the time of lending

money to others. He filed several suits before various Courts for the loan

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 A.S.No.567 of 2022

amount given by him. The defendant executed the sale agreement only for

the loan transaction and therefore, the time limit was fixed as two years for

completion of sale as per the agreement. The plaintiff never called the

defendant in person or through phone for execution of sale agreement. The

defendant states that he was ready to repay the loan amount of

Rs.9,00,000/- along with interest and he on several occasions, promised the

plaintiff to repay the loan amount. But the plaintiff in order to grab the

property from the defendant instituted the suit with false allegations. The

defendant further stated that the value of the suit property was

approximately estimated at Rs.3 Crores. Thus, the suit is to be dismissed.

8. Based on the pleadings, the trial Court framed the following issues:

1. Whether the plaintiff is entitled for Specific

Performance as prayed for?
2. Whether the plaintiff is entitled for alternative
prayer as prayed for?
3. Whether the defendant got only loan from plaintiff
as alleged by defendant?
4. To what other relief?

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9. With reference to the issues regarding the relief of Specific

Performance at Issue No.1, the trial Court made a finding that the plaintiff

proved Ex.A1, suit sale agreement. It was not disputed by the defendant.

Sale agreement with the defendant was executed on 22.09.2016 and the sale

price was fixed at Rs.23,00,000/- and an advance amount of Rs.21,00,000/-

was received by the defendant, which was also admitted. Registered Sale

deed was executed. The plaintiff issued legal notice on 01.09.2018 and the

deposition of P.W.1 regarding the suit sale agreement, passing the advance

amount as stated in the suit sale agreement were reiterated in the deposition

of P.W.2 and P.W.3. As per the suit sale agreement, Ex.A1, the defendant

agreed to purchase the suit property for a sum of Rs.23,00,000/- and for the

same, the defendant had received an advance amount of Rs.21,00,000/-.

Balance Rs.2,00,000/- was agreed to be paid within a period of two years

and the time for completion of contract was two years.

10. In the above context, the trial Court considered the documents and

evidences and made a finding that the plaintiff in his pleadings, clearly

stated that he was ready and willing to perform his part of contract and he

proved that he was ready and willing to perform his part of contract.

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 A.S.No.567 of 2022

However, the defendant has stated in his written statement that the property

is worth about Rs.3 Crores, but the plaintiff has not stated or let in evidence

that the property is not worth about Rs.3 Crores. The date of agreement was

on 22.09.2016, but the suit was instituted on 20.09.2018.

11. The trial Court drew an inference that period of two years fixed for

completion of sale in respect of the payment of Rs.2,00,000/- balance sale

consideration is improbable and the time gap of two years pave way for

presumption that the amount of advance was received for the payment of

loan transaction and the defendant had not intended to sell the suit

mentioned property.

12. The trial Court found that the defendant has specifically stated in

his written statement that the suit property is worth about Rs.3 Crores, but

this part of statement was not denied by the plaintiff through any oral

evidences. There is a huge difference of market price coupled with the delay

in institution of the suit on the part of the plaintiff and reason for such a long

delay for fulfilling the balance sale consideration of Rs.2,00,000/- was also

not explained to the satisfaction of the trial Court.

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13. The trial Court further made a finding that the suit property is to

an extent of 2 acre 61 cents, situated on the National Highways and

therefore, the property would naturally fetch more value than that of the

agreed sale price of Rs.23,00,000/-. The trial Court drew factual inferences

in these aspects and declined the relief of specific performance of contract.

However, the trial Court considered the alternate relief for refund of the

advance amount of Rs.21,00,000/- to the plaintiff with interest at the rate of

9% per annum from the date of plaint till the date of realisation.

14. The learned Senior counsel appearing on behalf of the appellant

mainly contended that the suit sale agreement, Ex.A1 document was proved

by the plaintiff beyond any pale of doubt. The advance amount of

Rs.21,00,000/- passed on by the plaintiff to the defendant was also proved,

which was admitted by the defendant and fixation of time limit is the

prerogative of the parties. In the present case, the defendant orally informed

the plaintiff that he was doing a business in Bombay and therefore, two

years time limit is to be fixed for the purpose of execution of sale deed and

for payment of balance consideration of Rs.2,00,000/-. Thus, the two years

time limit was fixed at the instance of the defendant and the said time limit

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agreed between the parties cannot be a bar for grant of specific relief by the

Court and thus, the trial Court has committed an error in declining the relief

of specific performance in the present case.

15. The trial Court has further committed an error in recording that

the plaintiff was not ready and willing to pay the balance sale consideration

of Rs.2,00,000/-. In fact, the plaintiff deposited the said amount of

Rs.2,00,000/- and its receipt to prove the same had been filed along with the

appeal suit. The value of the property recorded by the trial Court is a

presumption and as per the market value, the property is about

Rs.6,00,000/- (Rupees Six Lakhs only) per acre and therefore, the

presumption by the trial Court cannot be a ground to reject the relief of

Specific Performance.

16. The learned Senior counsel for the appellant relied on Order VIII

Rule 1A of C.P.C., by stating that it is the duty of the defendant to produce

document to establish that the value of the suit property, which was about

Rs.3 Crores. In the present case, the defendant miserably failed to establish

his statement in the written statement that the property was worth about

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Rs.3 Crores. Thus, mere statement in the written statement that the property

during the relevant point of time was about Rs.3 Crores cannot be taken as a

shield against the plaintiff.

17. The learned Senior counsel for the appellant contended that there

was no delay in instituting the suit and on completion of two years as agreed

between the parties, the suit was instituted within the time limit prescribed

and thus, the finding in this regard by the trial Court is perverse.

18. The learned Senior counsel for the appellant relied on the

following judgments:

(a) In the case of N.B.Namazi Vs. Central Chinmaya Mission Trust,

by its Trustee, Mrs.Leela Nambiar, reported in AIR 1988 Madras 84,

wherein the Hon'ble High Court of Madras observed as follows:

“19. On a consideration of all the above we hold that the delay in

this case cannot be put against the plaintiff-respondent so as to deny
it the right of specific performance merely on the ground that such a
relief is discretionary.
21. In Satyanarayana v. Yelloji Rao1, it has been categorically
stated that mere delay is not sufficient to deny specific performance
unless there is a waiver or abandonment. But in this case, there was

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no waiver at all at any point of time : nor had the plaintiff-

respondent abandoned its right. On the contrary, it is the other way
about. If there was nothing to suggest in the conduct of the plaintiff-
respondent implying an abandonment, the contract will have to be
enforced. Therefore, we are unable to agree with the contention of
Mr. Habibullah Badsha that because of the failure to obtain
exemption in the first instance, the contract had fallen to the ground.
The plaintiff-respondent has been trying its level best to obtain the
exemption from payment of stamp duty notwithstanding its failure to
obtain it in the first instance which was because of the language of
Ex.P1 and P3, to which we have already made a eference.
24. Though a copy of the draft sale deed was agreed to be sent,
nothing was done in pursuance of the same. However, ultimately,
the exemption was obtained in 1981, but, by then, as we observed
above the defendant-appellant taking advantage of the increase in
prices wanted to resile from the contract. Therefore, it became
necessary on the part of the plaintiff respondent to file the suit. This
shows the readiness and willingness of the plaintiff to complete the
sale transaction. It is worthwhile to remember that out of the sale
consideration of Rs. 3,20,000, if the respondent-plaintiff had paid
Rs. 2,70,000, it cannot ever be contended that there was any lack of
readiness or willingness on the part of the respondent plaintiff.
Therefore, we should hold that the respondent-plaintiff was always
ready and willing to complete the sale transaction.”

(b) In the case of R.Lakshmikantham Vs. Devaraji, reported in

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(2019) 8 SCC 62, wherein the Apex Court held as follows:

“12. The High Court also went into error in stating that the
value of the property was Rs 10 lakhs at the time of the sale
agreement. PW 1 in his cross-examination admitted that it was Rs
10 lakhs on the date when PW 1 was cross-examined. The value
of the property on the date of the sale agreement was only Rs 6
lakhs, and it was open for the parties to negotiate the said price
upwards or downwards, which was what the parties did in the
facts of the present case. Nothing can, therefore, be derived from
the erroneous assumption that a valuable property had been sold
at a throwaway price.”

(c) The Hon'ble Supreme Court of India in the case of

P.Daivasigamani Vs. S.Sambandan, reported in 2022 SCC OnLine SC

1391, considered the scope of Section 20 of the Specific Relief Act (Pre-

amendment) and the same is extracted hereunder:

“19. Section 20 of the Specific Relief Act (Pre-amendment),

which confers discretion on the court to exercise jurisdiction to
decree of specific performance, states that this exercise should
not be arbitrary, but guided by sound and reasonable judicial
principles. Interpreting and elucidating on Section 20 of the
Specific Relief Act (Pre-amendment) and factors to be
considered, this Court in Kamal Kumar v. Premlata Joshi6 has
also referred to Sections 16(c), 22, 23 and 24 of the Specific

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Relief Act and forms 47/48 of Appendix A to C of the Civil

Procedure Code, 1908, to summarise:
“7. It is a settled principle of law that the grant of relief of
specific performance is a discretionary and equitable relief.
The material questions, which are required to be gone into for
grant of the relief of specific performance are:
7.1 First, whether there exists a valid and concluded
contract between the parties for sale/purchase of the suit
property;
7.2 Second, whether the plaintiff has been ready and willing
to perform his part of contract and whether he is still ready and
willing to perform his part as mentioned in the contract;
7.3 Third, whether the plaintiff has, in fact, performed his
part of the contract and, if so, how and to what extent and in
what manner he has performed and whether such
performance was in conformity with the terms of the contract;
7.4 Fourth, whether it will be equitable to grant the relief of
specific performance to the plaintiff against the defendant in
relation to suit property or it will cause any kind of hardship to
the defendant and, if so, how and in what manner and the
extent if such relief is eventually granted to the plaintiff;
7.5 Lastly, whether the plaintiff is entitled for grant of any
other alternative relief, namely, refund of earnest money etc.
and, if so, on what grounds.
8. In our opinion, the aforementioned questions are part of the
statutory requirements [See Sections 16(c), 20, 21, 22, 23 of the

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Specific Relief Act, 1963 and the Forms 47/48 of Appendix A

to C of the Code of Civil Procedure]. These requirements have
to be properly pleaded by the parties in their respective
pleadings and proved with the aid of evidence in accordance
with law. It is only then the Court is entitled to exercise its
discretion and accordingly grant or refuse the relief of specific
performance depending upon the case made out by the parties
on facts.”

20. Sub-section (2) to Section 20 of the Specific Relief Act

(Pre-amendment) lists some of the principles that the court
should take into consideration while exercising discretion. The
factors to be considered while exercising discretion include
hardship to the defendant/seller which he did not foresee,
hardship to the plaintiff/purchaser in case of non-performance,
or whether the contract, even when not void, was entered under
the circumstances that make the enforcement of specific
performance inequitable, or whether the plaintiff has done
substantial acts or suffered losses as a consequence of the
contract, and the conduct of the parties, including that of the
defendant/seller and other circumstances under which the
contract was entered are such that they give an unfair
advantage over the defendant/seller. The court should examine
whether the plaintiff/purchaser had, in fact, performed his part
of the contract, and if so, how and to what extent, and in what
manner he has performed, and whether such performance was

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in conformity with the terms of the contract. The status of the

parties, and whether the plaintiff/purchaser is a speculator in
the property, who buys and sells properties, and whether his
conduct reflects an attempt to gain on account of the rise in the
price of the property, hoping that the delay in payment of full
consideration would go to his advantage, will be a relevant
consideration7. Incapacity of the defendant/seller and whether
the plaintiff/purchaser is operating in property trade, or as a
financer or middleman and the defendant/seller is a typical
property owner, may also affect the exercise of discretion. In
cases where the defendant/seller claims that he was gullible and
nescient, who got caught by entering into the agreement to sell,
facts like whether the sale consideration is lower than the
market price and the terms and conditions settled are
unfavourable, should be given due weightage. Sometimes the
defendant/seller, post the agreement to sell, in consultation with
elders or family members, wishes to back out because the
decision to sell was a folly, unwise, or a result of trickery. In
such cases, the conduct of the defendant/seller would be of
consequence. The defendant/seller would be well advised to
immediately and without delay write to the plaintiff/purchaser
reneging the agreement to sell and enclose a cheque for the
amount received. His offer to pay or payment of interest or
damages would be an added factor as the intending purchaser
would then be entitled to look for another property.”

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(d) In the case of Gian Chand and brothers and another Vs.

Rattan Lal alias Rattan Singh, reported in (2013) 2 SCC 606, wherein the

Apex Court considered the principles as follows:

“18. It is well-settled principle of law that a person who

asserts a particular fact is required to affirmatively establish it.
In Anil Rishi v. Gurbaksh Singh [(2006) 5 SCC 558] (SCC p.
561, para 9), it has been held that the burden of proving the facts
rests on the party who substantially asserts the affirmative issues
and not the party who denies it and the said principle may not be
universal in its application and there may be an exception
thereto. The purpose of referring to the same is that if the
plaintiff asserts that the defendant had acknowledged the
signature, it is obligatory on his part to substantiate the same.
But the question would be what would be the consequence in a
situation where the signatures are proven and there is an evasive
reply in the written statement and what should be construed as
substantiating the assertion made by the plaintiff.
19. In Krishna Mohan Kul v. Pratima Maity [(2004) 9 SCC
468] it has been ruled thus : (SCC p. 474, para 12)
“12. … When fraud, misrepresentation or undue influence is
alleged by a party in a suit, normally, the burden is on him to
prove such fraud, undue influence or misrepresentation.”
20. In Shashi Kumar Banerjee v. Subodh Kumar
Banerjee [AIR 1964 SC 529] a Constitution Bench of this Court,
while dealing with a mode of proof of a will under the Succession
Act, 1925 observed that where the caveator alleges undue

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influence, fraud and coercion, the onus is on him to prove the

same.
21. In A. Raghavamma v. A. Chenchamma [AIR 1964 SC 136]
, while making a distinction between burden of proof and onus of
proof, a three-Judge Bench opined thus : (AIR p. 143, para 12)
“12. … There is an essential distinction between burden of proof
and onus of proof : burden of proof lies upon the person who has
to prove a fact and it never shifts, but the onus of proof shifts.
The burden of proof in the present case undoubtedly lies upon
the plaintiff to establish the factum of adoption and that of
partition. The said circumstances do not alter the incidence of
the burden of proof. Such considerations, having regard to the
circumstances of a particular case, may shift the onus of proof.
Such a shifting of onus is a continuous process in the evaluation
of evidence.”
22. The present case is not one such case where the plaintiffs
have chosen not to adduce any evidence. They have examined
witnesses, proven entries in the books of accounts and also
proven the acknowledgments duly signed by the defendant. The
defendant, on the contrary, except making a bald denial of the
averments, had not stated anything else. That apart, nothing was
put to the witnesses in the cross-examination when the documents
were exhibited. He only came with a specious plea in his
evidence which was not pleaded. Thus, we have no hesitation in
holding that the High Court has fallen into error in holding that
it was obligatory on the part of the plaintiffs to examine the
handwriting expert to prove the signatures. The finding that the
plaintiffs had failed to discharge the burden is absolutely
misconceived in the facts of the case.”

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(e) In the case of Mademsetty Satyanararyana Vs. G.Yelloji Rao and

others, reported in (1965) 2 SCR 221, wherein the Apex Court considered

the scope of the Limitation Act and held that mere delay cannot be a ground

for refusing the relief of specific performance.

19. The learned Senior counsel for the appellant contended that there

is no delay in instituting the suit for specific performance. When the parties

in the agreement agreed for the completion of sale within a period of two

years, there cannot be any delay as found by the trial Court and thus, the

point of delay considered by the trial Court is not in consonance with the

principles laid down by the Apex Court.

20. The learned Senior counsel appearing on behalf of the respondent

strenuously objected the said contentions by stating that the point of delay is

to be considered with reference to the factualities established between the

parties. The fact remains that 91% of the sale consideration as alleged by the

plaintiff had been paid by him to the defendant and Rs.2,00,000/- was to be

paid as per the terms of the suit sale agreement.

21. Question arises, why time limit of two years had been fixed for

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completion of sale, despite the fact that the plaintiff has stated that he had

already paid a sum of Rs.21,00,000/- to the defendant pursuant to the suit

sale agreement.

22. The factual aspects admitted between the parties establishes a

serious doubt and therefore, the trial Court has rightly drawn the factual

inference that the advance amount was paid towards loan transaction and

the plaintiff had not intended to purchase nor the defendant was willing to

sell the property. Thus, it was a loan transaction between the parties and the

factual inference drawn by the trial Court is the probable circumstance,

which was established by the defendant and which all are self-evident and

thus, the appeal is to be rejected. It is contended that the quality of evidence

was weighed by the trial Court in a right perspective and thus, the appeal is

devoid of merits. The defendant had handed over the documents pertaining

to the suit mentioned property, which would also reveal that the defendant

had not intended to sell the valuable property for a meagre amount of

Rs.23,00,000/- .

23. The learned Senior counsel for the respondent reiterated by stating

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that as per the valuation report of the approved Engineers, the property

would fetch for a sum of Rs.6 Crores as of now. Therefore, the statement of

the defendant in his written statement that the property was worth about

Rs.3 Crores at the time of entering into a suit sale agreement was believed

by the trial Court and thus, the appeal is to be rejected.

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24. It is contended that the defendant in his written statement has

specifically stated that the property was worth about Rs.3 Crores. However,

the appellant/plaintiff had not disputed the said statement specifically nor

any evidence has been produced for the purpose of rebutting the said

contentions.

25. That apart, the trial Court was very much aware of the market

price during the relevant point of time and taking all the mitigating factors in

a practical way, it formed an opinion that the suit sale agreement was not

intended for the sale of the property, but it was a loan transaction.

26. In support of the contentions, the judgment of the Madras High

Court in the case of Luisa @ Luvisa [Died] & another Vs. Prakasam

Ammal reported in 2022-5-L.W.274, wherein the Hon'ble High Court of

Madras made the following findings:

“(15)When it is specifically pleaded by the defendant that the

value of the suit property at the time of Sale Agreement is more
than Rs.5 lakhs, the respondent/plaintiff has not come forward
during her chief examination denying the value of the property
at the time of suit Agreement. Though the Sale Agreement is not
required to be registered when the Agreement was executed, the

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 A.S.No.567 of 2022

same has been registered. It is the usual practice of financiers

who obtain Sale Agreement as a security for loan transaction to
insist registration of the Sale Agreement at the cost of the owner.
The defendant in her written statement has given some more
information about the circumstances under which the
defendant's husband approached the plaintiff for loan and the
disbursement of the amount as stated in the Sale Agreement.
Though the respondent/plaintiff denied the suggestions put to
her, she has admitted that she has an independent house of her
own and her house is located just ten houses from the suit
property. She has spoken to the fact that the parties agreed for a
consideration of Rs.2 lakhs and a sum of Rs.1.5 lakhs was
handed over to the seller and that the Sale Agreement was
prepared by referring to the contents of a Release Deed dated
17.04.1996. During cross-examination, PW2 admits that he
knew about the payment of advance amount and the total sale
consideration only from the parties. He has also stated as
follows:
@jhth brhj;J v';Fs;sJ vd;W vdf;F bjhpahJ/
brhj;J tptuj;ij jhth brhj;jpw;F U:gha; 2.00.000-=
kjpg;g[ fhl;oaJ mth;fs; brhy;yp jhd; vGjg;gl;lJ/
mf;hpbkzl; njjpapy; brhj;jpd; kjpg;g[ U:/10 yl;rk;
vd;why; vdf;F bjhpahJ/ bghJthf mf;hpbkzl;
ghff;fpj;bjhif brYj;j bghJthf 2 khjk; my;yJ 6
khjk; vd;W nghLthh;fs;/ Mdhy; jhth mf;hpbkz;l;oy;;
ghf;fpj;;bjhif brYj;j 3 tUlk; fhy mtfhrk;
bfhLf;fg;gl;Ls;sJ/ ghf;fpj;bjhif U:gha; 50 Mapuk;
jhd;/ Vd; mt;tst[[ fhy mtfhrk;

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 A.S.No.567 of 2022

bfhLf;fg;gl;Ls;sbjd;W mjpy; vGjtpy;iy/@

(22)As pointed out earlier, 75% of the Sale Consideration was

paid under Ex.A1 and for the balance of Rs.50,000/- [25%], three
years period was given. This Court has already found that there
was no acceptable explanation as to why three years period was
specified in the Sale Agreement for paying just 25% of the total
sale consideration. It is stated by the respondent/plaintiff that
money was borrowed for the medical expenses of the defendant's
husband.”

27. Considering the arguments as advanced between the respective

learned Senior counsel appearing on behalf of the parties to the lis, it is not

in dispute between the parties that the suit sale agreement was entered into

between the plaintiff and the defendant, which was registered. The

defendant had not disputed the receipt of an advance amount of

Rs.21,00,000/- from the appellant/plaintiff. Further it is not in dispute that

the suit sale agreement was entered into between the parties on 22.09.2016

and time for completion of contract was fixed as two years. Since there is no

serious doubt between the parties regarding the execution of suit sale

agreement, Ex.A1 document and receipt of part consideration of

Rs.21,00,000/- and time limit of two years fixed, this Court has to examine

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the other part of the doubts raised between the parties to arrive a conclusion,

whether the suit sale agreement was executed with an intention to sell the

suit mentioned property or for the purpose of loan transaction.

28. The trial Court made a categorical finding that the delay of two

years for completion of contract raises a serious doubt, since the

appellant/plaintiff had paid a sum of Rs.21,00,000/-, which is 91% of the

agreed sale consideration. In respect of Rs.2,00,000/-, the parties fixed the

time limit of two years, which raises a serious doubt and taking into

consideration the probabilities and the other pleadings, the trial Court

formed an opinion that the suit sale agreement was intended for loan

transaction and not for the sale of property. The huge difference of market

price coupled with the delay in filing the suit was taken into consideration by

the trial Court. This Court is of an opinion that Rs.3 Crores as stated by the

defendant may not be an accurate price. However, certainly it cannot be

Rs.23,00,000/- as rightly pointed out by the trial Court. Extent of property is

2 acres and 61 cents in the National Highways between Villupuram and

Ulundurpet. Therefore, the findings in this regard by the trial Court cannot

be brushed aside merely on the ground that the actual value of the property

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is not Rs.3 Crores as contended by the appellant/plaintiff.

29. The learned Senior counsel for the respondent brought to the

notice of this Court that as of now, the value of the property is about Rs.6

Crores.

30. May that as it be. In either way, no prudent man will agree to sell

his property, extending 2 acres and 61 cents for Rs.23,00,000/-, more

specifically, when the property situates in the National Highways between

Villupuram and Ulundurpet. Therefore, the trial Court drew an inference

that the suit sale agreement was executed for a loan transaction and the

defendant had not intended to sell the property.

31. Regarding the judgments relied on by the appellant, no doubt, the

suit was instituted within the period of three years and not hit by the

limitation. However, the trial Court has raised a serious doubt regarding the

period of two years agreed between the parties for completion of sale, more

specifically, when the balance sale consideration of Rs.2,00,000/- alone was

to be paid. That being the doubt raised, this Court do not find any infirmity

or perversity in respect of the factual inferences drawn by the trial Court,

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which is undoubtedly based on the overall facts and circumstances

established between the parties.

32. As rightly found by the trial Court, the suit sale agreement was

proved and part sale consideration passed on to the defendant was also

proved beyond any doubt. However, the period of two years agreed between

the parties to pay the balance sale consideration of Rs.2,00,000/- coupled

with the huge difference of marked price, created a serious doubt in the

mind of the trial Court, which was raised by the defendant in his written

statement, but was not specifically rebutted by the plaintiff either through

the documents or through oral evidences.

33. This being the factum established, the trial Court has rightly

granted the alternate relief of refund of the advance amount of

Rs.21,00,000/- to the plaintiff with interest at the rate of 9% per annum from

the date of plaint till the date of realisation and this Court is not inclined to

interfere with the said findings in the judgment.

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34. The learned Senior counsel for the appellant made a submission

that excess Court fee has been paid.

35. In such an event, the appellant is at liberty to approach the trial

Court seeking refund of Court fee by establishing the fact that he paid

excess Court fee.

36. Accordingly, the Decree and Judgment dated 14.06.2021 passed

in O.S.No.133 of 2018 by the Principal District Judge, Villupuram stands

confirmed and the Appeal Suit in A.S.No.567 of 2022 stands dismissed. No

costs. Consequently, connected miscellaneous petition is closed.

20.02.2023
Index : Yes
Speaking order
Neutral Citation:Yes
kak

To

The Principal District Judge,

Villupuram.

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 A.S.No.567 of 2022

S.M.SUBRAMANIAM, J.

kak

A.S.No.567 of 2022

20.02.2023

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