T.AROKIADOSS Vs. P.JOHN PHILIP

JUDGEMENT

(1.) This Second Appeal is directed against the judgment and decree in A.S.No.63 of 2012 on the file of the learned Principal District Judge, Cuddalore, reversing the judgment and decree of the learned Principal Subordinate Judge, Cuddalore in O.S.No.118 of 2008.

(2.) The appellant/plaintiff filed the suit for specific performance on the basis of the sale agreement dtd. 21/4/2008, alternatively, refund of advance amount with subsequent interest from the date of plaint till the date of realization @ 12% p.a on Rs.4,00,000.00. Appellant filed the suit against the respondents 1 to 3 and one P.Pathianathan, father of the first respondent. They were defendants 1 to 4 in the suit. P.Pathianathan and respondents offered to sell the "A" schedule properties to the appellant at the rate of Rs.1,600.00 per cent. It was represented that they are entitled to Ac.3-18 acres in total and the sale price was arrived at Rs.5,10,000.00. A sale agreement was executed on 21/4/2008. At the time of execution of the agreement, deceased first defendant P.Pathianathan went out of village, first respondent promised to bring his father at the time of execution of the sale deed and the respondents received Rs.3,00,000.00 as advance. The sale should have to be completed within a period of one month. Appellant was always ready and willing to perform his part of the contract by paying balance sale consideration to execute the sale deed. He was demanding for the execution of the sale deed. First respondent could not bring P.Pathianathan and he further received a sum of Rs.50,000.00 on 20/5/2008 and extended the time by two months by making an endorsement in the sale agreement. Subsequently, P.Pathianathan received a sum of Rs.50,000.00 on 11/7/2008 and confirmed the sale agreement by making endorsement. It later came to the knowledge of the appellant that though the respondents claim that they are entitled to 0.56 cents in item No.10, first respondent purchased only 0.22 cents as per the sale deed dtd. 1/9/1998. As for item No.1, it was represented that the respondents are entitled to 0.17.0 ares through a partition deed dtd. 24/6/1982, but P.Pathianathan was entitled only to 0.06 cents and the remaining extent belong to his brother. The extents were mentioned in the sale agreement as represented by the respondents. A notice dtd. 17/7/2008 was issued to respondents and a reply on 28/7/2008 was sent with false and untenable allegations claiming a loan transaction and disputing the sale agreement. Survey Nos.44/6 and 44/7 had been repeated in the bottom portion of the sale agreement by mistake. After deducting 34+37+17 that is 88 cents, available extent which can be sold is only 2.30 acres. That is described in 'B' schedule. Total sale consideration comes Rs.3,68,000.00, but the appellant paid Rs.4,00,000.00. A sum of Rs.34,000.00 is paid in excess. The respondents are not ready and willing to execute the sale deed inspite of the request made by the appellant and therefore, the suit for the reliefs aforesaid.

(3.) The respondents denied the execution of sale deed and receipt of advance amount as claimed by the appellant. The case of the respondents is that deceased P.Pathianathan is no way connected with the alleged transaction. First respondent borrowed a sum of Rs.3,00,000.00 on 21/4/2008 and another sum of Rs.50,000.00 on 20/5/2008. At the time of borrowal, appellant took signatures of the respondents as security in five 20 rupees stamp papers, one blank promissory note, took xerox copies of the title deeds. He was demanding interest at 60% per annum. Appellant concocted and fabricated the sale agreement in blank 20 Rupees stamp papers taken by him at the time of lending money. Therefore, he mentioned wrong survey numbers in the description of property and included properties that the respondents do not possess. Properties originally belong to Pichamuthu, father of P.Pathianathan. Properties are the ancestral properties of the family. When, P.Pathianathan has got share in the properties. Sale agreement alleged to have been executed by the respondents is illegal, ultra vires and inexecutable. The entire transaction is only a loan transaction and respondents never willing to sell the suit properties at any point of time. The value of the suit properties worth more than Rs.10,00,000.00 per acre and respondents would not have executed sale agreement for meager sum of Rs.5,10,000.00. First respondent received a sum of Rs.3,50,000.00 as loan and he is ready to return the amount with reasonable interest. Therefore, the suit is liable to be dismissed.