GURUSAMY Vs. KALIAPPAN

JUDGEMENT

(1.) THIS revision has been directed against the Judgment in A. S. No. 53 of 2006 on the file of the Court of Subordinate Judge, Bhavani which had arisen out of a decree and Judgment in O. S. No. 45 of 2005 on the file of the Court of Second Additional District Munsif, Bhavani. The above revision has been filed under Section 115 of CPC.

(2.) ACCORDING to the plaintiff in O. S. No. 45 of 2005, the defendant, after receiving a sum of Rs. 12,000/- had handed over the possession of his property scheduled to the Agreement dated 22. 6. 2002 and as per the terms of the agreement, the plaintiff is entitled to be in possession and enjoyment of the property scheduled to the agreement in lieu of interest for the hand loan of Rs. 12,000/- and that the plaintiff undertook to deliver the vacant possession of the properties, after lapse of three years on repayment of the said amount of Rs. 12,000/- by the defendant. After receiving the sum of Rs. 12,000/- from the plaintiff, the defendant delivered vacant possession of the property scheduled to the said agreement dated 22. 6. 2002. One Kurumbapalayam Pottareddiar had filed a suit in O. S. No. 211 of 2001 against the defendant and filed an execution petition by bringing the property for sale in execution of money decree obtained against the defendant in E. P. No. 123/2003. One Muthukumarasamy Raja was the successful Court Auction Purchaser and the sale was confirmed on 23. 11. 2004. The sale certificate is also issued to the auction purchaser. The auction purchaser had taken steps for delivery of possession of the suit property which was sold in Court auction. The above said execution proceeding is known to the defendant also. The defendant has lost his title to the property scheduled to the said agreement dated 22. 6. 2002. Inspite of repeated demands, the defendant has failed to return the amount to the plaintiff which resulted in issuance of the suit notice by the plaintiff to the defendant dated 27. 1. 2005 demanding the defendant to pay the said sum of Rs. 12,000/ -. Even after the receipt of the said notice, on 28. 1. 2005, the defendant issued a reply notice dated 4. 2. 2005 acknowledging the receipt of the amount but with false contentions. Hence the suit.

(3.) THE defendant in his written statement would contend that the allegations in the plaint that the defendant had borrowed a sum of Rs. 12,000/- from the plaintiff and entered into an agreement dated 22. 6. 2002 and also handed over the possession of the property scheduled to the said agreement in lieu of interest and further agreed to re pay the said loan amount of Rs. 12,000/- and to get possession of the said property are all false. There was no agreement as alleged in the plaint entered into between the plaintiff and defendant dated 22. 6. 2002. For the legal notice issued by the plaintiff, the defendant had sent a proper reply notice. On 22. 6. 2002, the defendant, after receiving the amount of Rs. 12,000/- from the plaintiff, had signed in a blank stamp papers and also in white papers. In the year 2004, in the month of Aani, the defendant had executed a sale deed in respect of his ancestral property and discharged the loan from the sale proceeds. On the confidence reposed on the plaintiff, the defendant had not insisted for the return of the said agreement dated 22. 6. 2002 from the plaintiff. In EP. No. 123 of 2003, about 1 acre 33 cents of property belonging to the defendant was sold in Court auction in favour of one Muthukumarasamy Raja. At the instance of the said Muthukumarasamy Raja in order to grab the entire extent of the said property, the plaintiff had issued the suit notice. In the reply notice, the defendant had demanded the plaintiff to return the alleged agreement dated 22. 6. 2002 to the defendant. Without heeding to the request made by the defendant in his reply notice, the plaintiff has rushed to the Court with the suit. The documents relied on by the plaintiff in the plaint are forged and concocted documents. After going through the alleged document of agreement dated 22. 6. 2002, the defendant came to know that signature contained in the said document dated 22. 6. 2002 does not tally with the signature of the defendant. The signature in the said document as"a. Gurusamy" in Tamil is a rank forgery. The said document is not a voucher as alleged by the plaintiff. The defendant is not bound to pay either Rs. 12,000/- or interest on the said amount at the rate of 9% p. a. Hence the suit is liable to be dismissed.