KUMARAVEL Vs. A. SADIQ BATCHA

JUDGEMENT

(1.) This Appeal Suit is filed against the Judgment and Decree in O.S.No.59 of 2013, passed by the II-Additional District and Session Judge, Erode, in and by which, the suit filed by the plaintiff for specific performance of the suit agreement was decreed by refusing the prayer for specific performance and granting the alternative relief to repay the sum of Rs.14,96,267.00 with interest at the rate of 9% per annum from the date of suit, till the date of Decree, and thereafter, at the rate of 6% per annum, on the advance amount of Rs.12,00,000.00, until repayment.

(2.) The suit property absolutely belongs to the first defendant, having purchased the same through a registered Sale Deed, dtd. 21/1/2010. The defendant entered into an agreement of sale with the plaintiff on 27/2/2011, agreeing to sell the suit property to the plaintiff for a sum of Rs.15,00,000.00, and received a sum of Rs.7,00,000.00, as advance. At the time of agreement, the first defendant had represented that he has created a mortgage by depositing the original title deed with one S.C.Manickkam, by borrowing a sum of Rs.3,00,000.00. Again the first defendant, approached the plaintiff and persuaded him to pay another sum of Rs.5,00,000.00, so as to clear the existing mortgage. On 11/4/2011, the plaintiff paid a further sum of Rs,5,00,000/-, and the time for performance of the agreement was extended by 15 months from that date. A due endorsement was also made on the rear side of the agreement, dtd. 27/2/2011. Thereafter, even though the plaintiff was ready and willing to perform his part of the contract, colluding with the second defendant, the first defendant executed a Power of Attorney on 21/4/2011 in favour of the second defendant and in turn, the second defendant created a sham and nominal document purporting to be a Sale Deed on 29/11/2011, thereby, selling the property to the third defendant. The first defendant also had filed an Insolvency Petition in I.P.No.5 of 2012, and the plaintiff had also taken steps to implead himself as a party in the Insolvency proceedings before the IIAdditional Sub-Court, Erode. Therefore, the plaintiff passed a pre-suit notice on 14/6/2002, thereafter, the suit in O.S.No.59 of 2013, was filed for specific performance.

(3.) The suit was resisted by the second defendant by filing a written statement by denying all the allegations and submitting that the first defendant executed a registered Power of Attorney, in favour of the second defendant to sell the suit property, which was registered as Document No.657 of 2011, on the file of the Sub-Registrar, Erode, on 21/4/2011. Pursuant to the said lawful power, the property was sold to the third defendant for a sum of Rs.7,00,000.00. On 29/11/2011, the same was registered as Document No.7742 of 2011, thereafter, the possession was delivered to the third defendant.