S. Rani vs A. Gnanaprakasam

S. Palanivelu, J.—The following are the averments contained in the plaint filed in O.S. No.124 of 2007 :

1.(a) The defendant is absolute owner of the schedule mentioned property, that on 1.12.2004 he executed an agreement to sell the suit property to the plaintiff for a total value of Rs. 6 lakhs, that the said agreement was registered at the office of the Sub-Registrar, Panrutti and the plaintiff had paid the defendant, a sum of Rs.5 lakhs as advance and had to pay the remaining Rs. 1,00,000/- within three years from the date of the agreement i.e., on or before 30.11.2007, that the plaintiff was always ready and willing to perform his part of contract and having the balance consideration ready on hand, that the defendant on 11.9.2006 received a sum of Rs. 75,000/- as part payment of sale consideration and had executed a receipt, that the defendant had promised to receive the remaining Rs. 25,000/- and execute the sale deed in favour of the plaintiff, that the plaintiff on several occasions, approached the defendant and mentioned and that the defendant to honour the agreement dated 1.12.2004 and receive the remaining Rs. 25,000/- and execute a sale deed, but the defendant asked for some time citing personal reasons and postponing the sale.

1.(b) After waiting for a very long time, the plaintiff had on 8.10.2007 issued a legal notice to the defendant asking her to honour the agreement dated 1.12.2004 on or before 30.11.2007, that the said notice was received by the defendant on 11.10.2007, that the plaintiff on 30.11.2007, reminded the defendant by way of a telegram that he was waiting at the office of the Sub-Registrar, Panruti with the balance sale consideration of Rs. 25,000/- and requested the defendant to come forward and execute the sale deed, that in spite of the plaintiff waiting for the whole day at the office of the Sub-Registrar, Panruti, but the defendant did not come for execution of the sale deed, that the defendant has issued an evasive reply dated 1.12.2007, denying the execution of the agreement itself and also receiving the advance amount of Rs.5,00,000/- that she had falsely stated that she had borrowed Rs. 3,00,000/- from the plaintiff on 1.12.2004 as loan on interest at 120% on the said amount; that the defendant had also falsely stated that her husband Subramanian and son Rooban had paid interest till 30th September 2007, that it is also falsely stated that on 11.9.2006, her son Rooban on 11.9.2006 executed a pro-note for Rs. 1,75,000/- as a security for the loan amount of Rs. 3,00,000/- and the plaintiff had obtained a blank cheque and that the defendant had falsely claimed that she had repaid Rs. 10,50,000/-.

1.(c) The son of the defendant Roobanraj had borrowed a sum of Rs.1,75,000/- from the wife of the plaintiff Lourde Mary on 11.9.2006, that the said borrowal is not connected with neither the agreement to sell nor the suit property, that was an independent loan, that the said Roobanraj had not paid interest till date and that the plaintiff''s wife is taking steps to recover the money due from Roobanraj, that the defendant is trying to sell the suit property to some other third parties in order to defraud the plaintiff, that it is necessary to prevent the defendant by a permanent injunction from alienating the schedule mentioned property to some other third parties and to come forward to receive the remaining of the sale consideration and execute a sale deed in favour of the plaintiff. Hence this suit.

In the written statement filed by the defendant it is averred as follows :

2.(a). It is absolutely false to say that this defendant agreed to sell the suit property for Rs. 6 lakhs to the plaintiff and executed the suit sale agreement in favour of the plaintiff on 1.12.200r and received the sum of Rs. 5 lakhs as advance and balance was agreed to pay in three years, that the suit agreement is not true, valid and supported by consideration and it was never intended to be acted upon as sale agreement by both parties, that the suit property was purchased by the defendant on 27.8.2003 only for the purpose of putting up a residential building for his family, that spending more than Rs.15 lakhs and the Grahapravesam itself was done only in June 2004, that since there was difficulty in getting loan from bank, this defendant borrowed loand from various persons at heavy rate of interest and they pressurized for repayment, that the defendant and her husband approached the plaintiff who is money lender, for a loan of Rs.3 lakhs for which he stipualted 120% rate of interest, that in view of debt laws, the plaintiff insisted for execution of sale agreement as security for the loan and only under the pressure of creditors and the plaintiff, this defendant had to yield to the stipulations of plaintiff and for the loan of Rs.3 lakhs borrowed on 1.12.2004 and the suit sale agreement was exeucted for Rs.5,00,000/- as demanded by the plaintiff only as security for loan, that three years time has been stipulated in the agreement and the original sale deed was received by plaintiff will show the real intention between the parties and that it is only a loan transaction, that there was no necessity for this defendant to sell the suit property worth more than Rs.20 lakhs for Rs.6 lakhs.

2.(b) As undertaken, this defendant through her husband Subramanian and his son Ruban paid interest to the plaintiff at 120% p.a.till 30.9.2007, that the plaintiff also got a pro-note from this defendant''s son Ruban on 11.9.2006 for Rs.1,75,000/- of course in the name of his wife as security for the loan of Rs.3 lakhs besides obtaining a blank cheque, that it is absolutely false to state that this defendant received Rs.75,000/- towards sale agreement on 11.9.2006 and executed a receipt on the same day, that all the three documents viz., pro-note, blank cheque and receipt for Rs.75,000/- were obtained by the plaintiff only on 11.9.2006 without any consideration, as further security for the above said loan of Rs.3 lakhs, that if it is really part consideration of sale agreement nothing is prevented plaintiff from getting endorsement in the suit sale agreement itself.

2.(c) In December 2006 this defendant''s husband had a paralytic attack due to obstruction of blood in the vein leading to brain, that to meet the medical expenses this defendant could not re-pay the principal amount and hence the plaintiff has come forward with notice and suit with totally false allegations, that absolutely there is no intention to sell the suit property either to plaintiff or to anybody else, that it is absolutely false to state that plaintiff has always been ready and willing to pay the balance of sale consideration and he approached this defendant several times and requested to execute sale deed and the defendant was asking time, that there was no necessity for the same, but the sale agreement was executed only as security for the loan borrowed in view of debt laws, that the suit claim is also time barred and that it is therefore prayed that the suit may be dismissed with costs.

After analysing the pleadings, evidence on record and other materials, the learned Principal District Judge, Cuddalore, refused to grant relief of specific Performance. However, he has granted the relief of refund for the amount paid by the plaintiff to the defendant at the rate of interest at 12% p.a. The relief of refund has been granted by the trial Court in the absence of prayer in the plaint. For the same, the following are the causes found in the decree passed by the court below :

"24.1 The plaintiff is granted the alternate relief of receiving the advance amount paid by him to the defendant as is recorded in Ex.A1 and Ex.A2 together with interest at the rate of 12% p.a. In that line, a decree to the following effect shall issue.

24.2 The defendant shall pay to the plaintiff a sum of Rs.5,75,000/- together with interest at 12% p.a. on Rs.5,00,000/- from 01.12.2004 till the date of payment and on Rs.75,000/- from 12.09.2006 till the date of payment.

24.3 The defendant shall make such payment on or before 23.02.2009 to the plaintiff or to deposit the same to the credit of the suit in the name of the plaintiff.

24.4 In such an event, the plaintiff will have no further relief as to specific performance of the contract entered into between the plaintiff and the defendant in Ex.A1.

24.5 In the event of failure of the defendant to pay/deposit the amount as aforesaid, a decree for specific performance shall issue on the plaintiff depositing the balance of sale consideration to the credit of the suit in the name of the defendant within one week, i.e., on or before 02.03.2009.

24.6 The defendant in such a case shall come forward and execute the sale deed within 15 days therefrom, failing which, the plaintiff is at liberty to have the sale deed executed through the process of the court."

Aggrieved at the decree passed by the court below, the defendant is before this court with the appeal. Pending hearing of the appeal, the respondent filed an application in M.P. No.1 of 2012 to amend the plaint for refund of advance amount and the same has been allowed on 22.01.2013.

Following points have arisen for consideration in this appeal :

1.Whether the defendant has received money as pleaded by the plaintiff?

2.Whether the plaintiff is entitled for refund of money advanced by him to the defendant on the strength of Ex A1?

3.To what relief are the parties entitled to?

Point No.1:

Ex A1 is the registered sale agreement brought about between both parties by means of which the defendant agreed to sell her property to the plaintiff for a sum of Rs.6 lakhs, receiving an advance of Rs. 5 lakhs, on the date of agreement. The balance of Rs. 1,00,000/- was agreed to be paid on the date of sale. The time stipulated in the Ex A1 for execution of sale is 3 years. Ex A2 is receipt passed by the defendant on 11.09.2006 acknowledging the receipt of Rs. 75,000/- from the plaintiff. The Court below has refused to grant relief of specific performance, however, it has directed refund of advance amount paid by the plaintiff. Hence, the discussion in this appeal can be restricted to only with regard to payment of advance.

It is the contention of the defendant that the plaintiff is a money lender. To advance a loan of Rs. 3 lakhs to this defendant, Exs.A1 and A2 were obtained by the plaintiff for security to the said loan. The trial Court, after consideration of evidence on record, has reached a conclusion that the plaintiff is a money lender. However by means of evidence, the payments of Rs.5 lakhs, Rs.75,000/- paid to the defendant has been proved and hence there shall be a decree for refund. In his evidence the plaintiff has stated about the payment of advance on two occasions as pleaded by him in the plaint. It is in his cross examination that the witnesses in Ex A1 did not see when he was paying Rs.5 lakhs to the defendant. Likewise the witnesses in Ex.A2 receipt did not see the plaintiff paying Rs.75,000/- to the defendant.

Worthwhile it is to note that witnesses in Ex.A2 are the husband and son of the defendant. Name of the husband of defendant is Subramanian, who has examined as D.W.2 is the first witness to Ex A1. Naturally, both the husband and son of the defendant would support the case of the defendant. P.W.2 is the scribe who wrote Ex.A1 Sale agreement. He has stated in his chief examination that Ex.A1 was written by him and he has also signed it. In the cross examination he would say that he did not see when the plaintiff was paying the advance amount to the defendant. Another witness in Ex A1 is one Balaji who is son of P.W.2. But he has not been examined by the plaintiff to say about the payment of advance to the defendant. No reason is adduced by the plaintiff for his non-examination. There could be no impediment for him to examine him. Hence his non-examination is detrimental to the contention of the plaintiff. Even though Ex A1 is a registered document, as it is disputed by the other side, it is bounden duty of the plaintiff to prove with convincing and satisfactory evidence. But he has not done so. In these circumstances, the necessary point to note is that the advance of amount of Rs.5 lakhs was not paid to the defendant by the plaintiff but as pleaded by the defendant only a sum of Rs.3 lakhs was paid.

Insofar as payment of Rs.75,000/- under Ex.A2 is concerned, it is also not proved. When the plaintiff could secure other independent witnesses he has accepted the husband and son of defendant as attesting witnesses to Exs. A1 and A2. It is also be contemplated that since Ex A1 is for loan transaction, the plaintiff allowed husband and son of defendant to sign as attesting witnesses. In these circumstances it is to be seen that Ex.A2 has also not been proved. In the above backdrop of the circumstances, it is held that the defendant is liable to pay Rs.3 lakhs alone to the plaintiff. This point is answered accordingly.

Point Nos.2 and 3 :

Much was stated about the absence of alternate prayer for repayment of amount in the plaint. Even though the plaintiff prayed for the relief of specific performance of contract, has not prayed for refund of advance amount. In this context, the learned counsel for the Appellant Mr. S.K. Raghunathan would place reliance upon a decision of Honorable Supreme Court in (2003) 9 SCC 606 [Banarsi and others v. Ram Phal] wherein Their Lordship have laid down the principles as to the absence of cross objection by a party when he was not granted one of the reliefs by the trial court. The relevant portions in the Judgment are as follows :

"21. In the case before us, the trial court found the plaintiff (in his suit) not entitled to decree for specific performance and found him entitled only for money decree. In addition, a conditional decree was also passed directing execution of sale deed if only the defendant defaulted any paying or depositing the money within two months. Thus to the extent of specific performance, it was not a decree outright; it was a conditional decree. Rather, the latter part of the decree was a direction in terrorem so as to secure compliance by the appellant of the money part of the decree in the scheduled time-frame. In the event of the appellant having made the payment within a period of two months, the respondent would not be, and would never have been, entitled to the relief of specific performance. The latter decree is not inseparably connected with the former decree. The two reliefs are surely separable from each other and one can exist without the other. Nothing prevented the respondent from filing his own appeal or taking cross-objection against that part of the decree which refused straight away a decree for specific performance in his favour based on the finding of comparative hardship recorded earlier in the judgment. The dismissal of appeals filed by the appellant was not resulting in any inconsistent, iniquitous, contradictory or unworkable decree coming into existence so as to warrant exercise of power under Rule 33 of Order 41. It was not a case of interference with the decree having been so interfered with as to call for adjustment of equities between the respondents inter se. By his failure to prefer an appeal or to take cross-objection the respondent has allowed the part of the trial court''s decree to achieve a finality which was adverse to him.

For the foregoing reasons we are of the opinion that the first appellate court ought not to have, while dismissing the appeals filed by the defendant-appellants before it, modified the decree in favour of the respondent before it in the absence of cross-appeal or cross-objection. The interference by the first appellate court has reduced the appellants to a situation worse than in what they would have been if they had not appealed. The High Court ought to have noticed this position of law and should have interfered to correct the error of law committed by the first appellate court."

As per the above said decision whether the plaintiff in a suit sought two separate and independent reliefs and court refused one but granted the other, in appeal preferred by defendant against grant of the latter relief, the Appellate Court cannot grant former relief in favour of the plaintiff in exercise of power under Rule 33 Order 41 when no cross appeal or cross objection has also been filed. In this appeal, the plaintiff has not filed any Cross appeal praying to pass decree for Specific Performance of contract. Further he did not pray any alternate relief before the trial court. In these circumstances, no question of passing of decree for Specific Performance of contract arises.

The Learned Senior Counsel Mrs. Hema Sampath would contend that inasmuch as the appeal suit is the continuation of original suit, the parties are at liberty to pray whatever they can pray before the trial court may also be prayed before this court. In support of her contention she placed reliance upon a decision of the Apex Court in 2002(1) L.W.487 [Rachakonda Narayana v. Pontnala Parvathamona and another] wherein it is observed thus:

"When an appellate court hears an appeal, the whole matter is at large. The appellate court can go into any question relating to rights of the parties which a trial court was entitled to dispose of provided the plaintiff possesses that right on the date of filing of the suit and amendment of plaint could be permitted under the circumstances, as the plaintiff had deposited the entire contracted amount in trial Court and relinquished his claim in respect of ''B'' plot of landas well as for compensation."

The learned Senior Counsel for the respondent would also place much reliance upon a decision of P. Sadasivam. J [ as His Lordship then was ] reported in 2002(1) L.W. 415 [Viswanathan v. Ramakrishna Chettiar] wherein it is held as follows:

"12. I have already referred to the plaint averments and the relief claimed by the plaintiff. Except the decree for specific performance directing the defendant to execute the registered partnership deed with the plaintiff as per the agreement dated 19.11.1978 and an agreement letter dated 31.1.1980 in respect of A.V.S. Bus Service at Pondicherry, the plaintiff has not prayed for any other relief including the refund of amount received by the defendant. In such a circumstance, in the absence of specific claim in the plaint, as per Sub-section (2) of Section 22 of the Act, refund of the amount already paid cannot be granted. However, proviso to Sub-section (2) of Section 22 of the Act enables the aggrieved person to file appropriate petition for amendment of the plaint at any stage of the proceedings. Only on the above said provision, the respondent in the appeal has filed CMP.NO. 10995 of 2001 for amendment of the plaint in O.S. No.39 of 1983 on the file of the First Additional Subordinate Judge, Pondicherry for return of the sum of Rs. 60,000.00 to him (respondent herein) with interest at 12% per annum from the date of plaint till realisation.

Since the Court below has rejected the relief of decree for specific performance and in view of Exs. A.1 and A.2, the defendant having received a sum of Rs. 60, 000. 00, he is bound to return the same. Though the Court below has granted the relief of refund of the amount of Rs. 60, 000. 00 paid, even without specific claim by the plaintiff, in view of proviso to Sub-section (2) of Section 22 of the Act, this Court has ample power to permit the respondent herein to amend the plaint. It is worthwhile to refer the decision of the Supreme court in the case of Baby Lal v. Hazari Lal Kishori Lal [A.I.R. 1982 S.C.818 = 95 L.W.106 S.N.], wherein while considering Section 21, 22 of the Specific Relief Act, their Lordships have held that, proviso to Sub-section (2) of Section 22, where the plaintiff has not specifically claimed the appropriate relief apart from the decree for specific performance in his plaint in the initial stages of the suit, it would be open to him to seek for amendment of the plaint at any stage of the proceedings. The purpose of this newly enacted provision is to avoid multiplicity of suit is and that the plaintiff may get appropriate relied without being hampered by procedural complications. As referred to above, this Court has power to amend the plaint; CMP. No. 10995 of 2001 is ordered as prayed for. By ordering this application, the defect pointed out by the learned counsel for the appellant is cured and in such a circumstance, the decree of the trial Court directing the defendant for payment of Rs.60,000. 00 cannot be faulted with."

In view of the above law laid down by the Hon''ble Apex Court, it has to be held that even though, the alternate prayer was not incorporated in the plaint at the inception, the plaintiff has liberty to file amendment application in the plaint at any stage of the proceedings. In this regard, this court has ample power to permit him to amend the plaint.

Accordingly, before the final hearing of the Appeal, the respondent filed an application in M.P No.1 of 2012 to amend the plaint for refund of advance amount and the same has been allowed on 22.01.2013. Hence as per the above said proposition of law, the relief for alternative prayer should have been incorporated in the prayer. The Court can grant relief on the strength of the evidence on record.

As for the merits of the case, this court is of the view that the plaintiff is entitled for payment of Rs. 3,00,000/- (Rupees three lakhs only) and thereby the decree for refund of Rs. 3 lakhs with interest at the rate of 6% from the date of Ex.A1 till the date of realisation. In such view of the matter, the decree and judgment passed by the court below had to be modified and the appeal has to be allowed in part. These points are answered accordingly.

In fine, the appeal is partly allowed directing the defendant to refund a sum of Rs.3,00,000/- (Rupees three lakhs only) which is payable to the plaintiff along with interest at the rate of 6% from the date 01.12.2004 till the date of realisation. No Costs. M.P. No.1 of 2009 is closed.