K. VELUSAMY Vs. C. EASWARAN

JUDGEMENT

(1.) The unsuccessful Defendant in the Suit for Specific Performance is the Appellant. The Respondent/Plaintiff filed a Suit for Specific Performance with prayer for alternative relief of return of advance amount. The Suit was decreed in respect of the main relief granting Specific Performance. The Appeal filed by the unsuccessful Defendant was also dismissed. Hence, the Appellant/Defendant has come up by way of this Second Appeal.

(2.) According to the Respondent/Plaintiff, he entered into a registered Sale Agreement on 30/1/2008 agreeing to purchase the property covered by the agreement from Appellant/Defendant for a Sale consideration of Rs.2,30,000..00The Respondent paid an advance amount of Rs.2,10,000.00 on the date of agreement itself and agreed to pay the balance amount of Rs.20,000.00 within a period of three years time (on or before 30/1/2011). It was also averred by the Respondent that Appellant also executed a General Power of Attorney on the very same date in favour of Respondent's wife authorising her to execute the Sale Deed in respect of the Suit property in favour of Respondent in furtherance of the Suit Sale Agreement. The Respondent also claimed that he was always ready and willing to perform his part of the contract as per the terms of agreement and requested the Appellant on several occasions about his intention to get the Sale Deed executed after tendering the balance Sale consideration. But the Appellant has been postponing the execution of the Sale Deed by giving lame excuses. It was further averred that as the Respondent found some unusual activity on the part of the Appellant, he verified with the records pertaining to the Suit property with the District Registrar Office at Erode and found that the Appellant had cancelled the General Power of Attorney executed in favour of the Respondent's-Wife on 13/1/2011. Hence, the Respondent issued a Telegram on 27/1/2011 expressing his readiness and willingness to complete the Sale transaction. The Respondent also issued a Legal Notice expressing his readiness and willingness on 27/1/2011 itself and calling upon the Appellant to execute the Sale Deed as per the Suit Sale Agreement within 24 hours from the date of receipt of the notice. However, Appellant caused a notice on 26/1/2011 with false and untenable allegations as if, the Suit Sale Agreement and General Power of Attorney were executed as a security for Loan transaction. Therefore, the Respondent/Plaintiff was constrained to file a Suit for above said relief.

(3.) The Appellant herein filed a Written Statement and raised a defence that the Suit Sale Agreement was not executed with intention to sell the Suit property. However, the same was executed as a security for the amount borrowed by the Appellant/Defendant from the Respondent/Plaintiff. It was specifically pleaded by the Appellant that he borrowed a sum of Rs.40,000.00from the Respondent during February - 2005 and as per the request of the Respondent, he executed a Sale Agreement in favour of Respondent's-Wife and also executed a General Power of Attorney in his favour on 10/3/2005. It was also averred by the Appellant that he had been paying interest for the said sum regularly and after sometime due to loss in his transport business, he requested the Respondent to pay a further sum of Rs.3,00,000.00 in addition to the amount already borrowed, agreeing to pay interest at the rate of 24% per annum. Since the agreed interest was very high, the Appellant requested the Respondent to reduce the rate of interest and accordingly, the Respondent agreed to receive monthly interest of Rs.6,500.00 per month and as per his request, a fresh Suit Sale Agreement was executed in his favour and a fresh General Power of Attorney was also executed in favour of Respondent's wife. In view of the execution of fresh Suit Sale Agreement and General Power of Attorney, the earlier Sale Agreement and General Power of Attorney, dtd. 10/3/2005 were cancelled on 30/1/2008. It was also averred by the Appellant that he paid the entire principal sum together with interest on 29/12/2010 and after payment of the same, he requested the Respondent to cancel the Suit Sale Agreement and General Power of Attorney and return the blank Cheques and blank Promissory Notes handed over to him. As the Respondent failed to accede for the said request and proclaimed that he would alienate the property by virtue of the power in favour of his wife, Appellant cancelled the General Power of Deed in favour of Respondent's wife on 11/1/2011 and issued a notice to Respondent mentioning the cancellation of power of attorney and other facts. On these pleadings, the Appellant sought for dismissal of the Suit.