SUBRAMANI Vs. VENGITTU

JUDGEMENT

(1.) Second Appeal is filed against the judgment and decree dated 30.10.2017 made in A.S.No.10 of 2015 on the file of the Sub Court, Uthangarai, confirming the judgment and decree dated 22.12.2014 made in O.S.No.181 of 2011 on the file of the District Munsif cum Judicial Magistrate, Uthangarai.

(2.) The appellant is the plaintiff and respondent is the defendant in O.S.No.181 of 2010 on the file of the District Munsif cum Judicial Magistrate, Uthangarai. The appellant filed the said suit for specific performance of agreement of sale dated 26.08.2009, possession of the property and for permanent injunction restraining the respondent from creating any encumbrance or alienating the suit property in favour of the third party. According to the appellant, the appellant and the respondent entered into an agreement of sale dated 26.08.2009 for a total sale consideration of Rs.75,000/-. The appellant paid a sum of Rs.70,000/- as advance and agreement of sale was registered as Document No.3337/2009. One year time was granted for payment of the balance amount of Rs.5,000/-. The appellant was always ready and willing to pay the balance sale consideration. The respondent was evading from execution of sale deed inspite of repeated demands by the appellant. The appellant issued notice dated 20.09.2010 and filed suit for the relief stated above.

(3.) The respondent filed written statement and denied the fact that he agreed to sell the property for a sum of Rs.75,000/-. He contended that he borrowed a sum of Rs.50,000/- from appellant on 29.09.2008 and agreed to pay a same together with interest. At the insistence of appellant, the respondent entered into an agreement of sale with appellant on 29.08.2009, which was registered as Document No.3486/2008. The said agreement is only a security document for the loan transaction and the same is not an agreement of sale. Subsequently, the respondent borrowed another sum of Rs.20,000/- from the appellant and paid the said amount in two installments of Rs.10,000/-. In view of the borrowal of Rs.70,000/-, earlier agreement dated 29.09.2008 was canceled on 29.08.2009 and suit agreement of sale was executed on the day as security for the amount borrowed. The respondent is not the absolute owner of the suit property. The property originally belonged to his father Manickam, who died intestate, leaving the respondent and his five daughters as his legal heirs. The respondent is willing to repay the sum of Rs.70,000/- together with interest and prayed for dismissal of the suit.