J. BHUVANESWARI Vs. P. TAMIL SELVI AND OTHER

JUDGEMENT

(1.) The Second Appeal is filed against the judgment and decree dated 07.04.2017 made in A.S.No.38 of 2013 on the file of the II Additional District Court, Tiruppur, confirming the judgment and decree dated 11.01.2013 made in O.S.No.255 of 2006 on the file of the Subordinate Court, Tiruppur.

(2.) The appellant is the plaintiff, who lost in both the Courts below. The appellant filed O.S.No.255 of 2006 for declaration, recovery of possession and permanent injunction, alternatively, to grant a decree of specific performance of agreement of sale dated 12.12.2005 directing the first defendant to execute the sale deed. According to the appellant, the first respondent is the owner of the suit property. She appointed the second respondent as a Power Agent with power to sell the suit property. The second respondent entered into an agreement of sale with the appellant on 12.12.2005 agreeing to sell the property for total sale consideration of Rs. 2,25,000/- and received a sum of Rs. 10,000/- as advance. The second respondent on 15.09.2006 executed and registered sale deed in favour of the appellant. The first respondent issued notice dated 10.10.2006 stating that she has borrowed a sum of Rs. 25,000/- from the second respondent and at his instance, executed a Power of Attorney. She paid the amounts borrowed together with interest in May 2006 and she cancelled the Power of Attorney on 11.09.2006. The appellant contended that the contentions in the said notice are false. On the other hand, the first respondent received the entire sale consideration from the appellant and the second respondent and after receipt of sale consideration, fraudulently cancelled the Power of Attorney. The appellant and the second respondent came to know about the cancellation of Power of Attorney only after execution of the sale deed.

(3.) The first respondent filed a written statement denying all the averments made in the plaint. According to the first respondent, she borrowed a sum of Rs. 25,000/- from the second respondent, husband of the appellant, who is an unregistered money lender. At his instance, she executed a general Power of Attorney and handed over the original documents of title to him in respect of her property by giving power. She repaid the amounts borrowed in monthly instalments from January 2006 to May 2006 together with interest at the rate of 60% per annum. After discharging the loan, the first respondent requested the second respondent to return the documents of title. He was evading to return the document. The first respondent cancelled the Power of Attorney given to the second respondent and issued notice through her Advocate. The second respondent refused to receive the said notice. On verification of records, in the Sub Registrar office, the first respondent came to know that the second respondent, using the Power of Attorney dated 05.12.2005 as a security for loan, executed an agreement of sale dated 12.12.2005 in favour of the appellant, who is his wife. Subsequently, after the cancellation of the Power of Attorney, the first respondent executed a sale deed in favour of the appellant on 15.09.2006. The first respondent issued notice dated 16.09.2006 through her Advocate to the appellant and the appellant refused to receive the said notice. The appellant was trying to get patta in her name. The first respondent issued notice to the authorities and issued a warning notice in the news paper namely, Dina Malar on 02.10.2006.