C VENKATESAN Vs. K THIRUNAVUKKARASU

JUDGEMENT

(1.) Challenge in this Second Appeal is laid to the judgment and decree dated 25.08.2015 passed in A.S.No.274 of 2014 by the learned IV Additional City Civil Court, Chennai, modifying the judgement and decree dated 28.04.2014, passed in O.S.No.6730 of 2011 on the file of the V Assistant City Civil Court, Chennai.

(2.) One Thirunavukkarasu, who is the plaintiff in O.S.No.6730 of 2011, entered into an agreement to sell with the defendant one C.Venkatesan on 25.09.2007 in respect of the suit property, in and by which, the plaintiff agreed to purchase the property for a sale consideration of Rs.4,00,000/- and also paid a sum of Rs.1,50,000/- as advance. It is stated further that on 26.01.2009, the defendant came to the plaintiff and borrowed another sum of Rs.2,00,000/- for the purpose of discharging a mortgage deed, which is executed by the defendant in favour of one Mrs.Saraswathi. The defendant also executed an "On Demand Promissory Note" in favour of the plaintiff agreeing to repay the same with interest at the rate of 18% p.a. and the defendant also promised to execute the sale deed in favour of the plaintiff within a period of one year from the date of execution of the promissory note and agreed to deduct the amount from the sale price. As the defendant did not come forward to perform his part of the contract, as per the terms of the agreement dated 25.09.2007 and the consequent promissory note executed on 26.01.2009, the plaintiff issued a legal notice on 01.11.2010 demanding the defendant to execute the sale deed and repay the excess sum of Rs.13,000/- paid to the defendant as on the date of the notice. Later, the plaintiff also applied for encumbrance certificate and found that there were several mortgages executed by the defendant with respect to the property agreed to be sold, however, without any reference to the sale agreement. Since the property was encumbered, the plaintiff did not want to proceed with the sale and restricted his remedy only with reference to the recovery of the money paid. Hence, the plaintiff had filed a suit for recovery of Rs.3,50,000/- and another sum of Rs.1,00,000/- as compensation for breach of the contract.

(3.) The defendant denied the facts that led to the cause of action to the suit. The defendant contended that the suit is barred by limitation. The sale agreement and promissory note based on which, the suit is laid, were alleged to be fabricated documents created for the purpose of the suit. It is the specific case of the defendant that he had availed loan from the plaintiff for a sum of Rs.1,80,000/- and a deed of mortgage was executed in favour of the plaintiff on 05.04.2006. At the time of availing the said loan, the plaintiff had obtained his signatures on blank papers and blank stamp papers stating that it would be returned on redemption of mortgage. The mortgage was duly redeemed by the defendant on 15.02.2007. However, the blank papers on which the defendant had signed were not returned to him. The other allegation that the defendant agreed to execute a sale deed in favour of the plaintiff was also denied. Hence, he sought for dismissal of the suit.