The defendant in a suit for specific performance being aggrieved by the decree granted by the I Additional District Judge (PCR), Tiruchirapalli in A.S.No.88 of 2012 has filed the above appeal only for the alternative relief.
2. The case of the plaintiff is that the defendant agreed to sell the suit property to the plaintiff for a sum of Rs.2,00,000/- (Rupees two lakhs only) and accordingly, an agreement was entered into on 07.05.2003. An advance of Rs.1,50,000/- (Rupees one lakh fifty thousand only) was paid and three years time was fixed for completion of the sale. The plaintiff, later, came to know that the property was under hypothecation with the Primary Agricultural Co-operative Bank at Thalugai, which was not revealed by the defendant at the time of execution of the agreement . As the plaintiff was under the impression that there is no encumbrance over the property, he approached the defendant to execute the sale deed as agreed. When the plaintiff came to know about the above said mortgage, he paid a sum of Rs.10,000/- on 16.06.2003, another sum of Rs.10,000/- on 23.07.2003 and a further sum of Rs.40,000/- on 04.08.2003 to the bank and obtained necessary receipts for the same. Though as per the agreement, only Rs.50,000/- was the balance sale consideration to be paid, the plaintiff had paid an excess amount of Rs.10,000/- to the Bank on behalf of the defendant. While so, on 07.01.2006, the defendant, with an intention to defraud the plaintiff, sent a legal notice denying the payments and also alleging that the sale agreement itself is a forged one. The said notice was suitably replied by the plaintiff on 22.01.2006. Hence, the suit was filed for specific performance with an alternate relief of refund of amount paid by the plaintiff.
3. Denying the facts set out by the plaintiff, the defendant had contested the suit contending that the sale agreement itself was never executed and no amount was received from the plaintiff. It is stated by the defendant that he was running a meat stall and the plaintiff was doing brokerage business by supplying goat and chicken, and was getting commission for the same. As the plaintiff was familiar with the signature of the defendant, the agreement has been forged by him. The defendant further admitted the borrowal of money from the Primary Agricultural Cooperative Bank, Thalugai. The defendant has sent a legal notice on 07.01.2006. In the additional written statement, it is contended by the defendant that the payment of the plaintiff to the bank on behalf of the defendant was without his consent and the defendant cannot be held liable for the same. Raising the above said defence, the defendant sought for dismissal of the suit.
4. Based on the above pleadings, the trial court has framed appropriate issues. In order to prove the case, on the side of the plaintiff, 3 witnesses were examined as P.W.1, P.W.2 and P.W.3, and as many as 6 documents have been exhibited as Ex.A1 to Ex.A.6. On the side of the defendants, 3 witnesses were examined as D.W.1, D.W.2 and D.W.3 and as many as 9 documents have been exhibited as Ex.B.1 to Ex.B9.
5. The trial Court, upon considering oral and documentary evidence and upon hearing the arguments of both the counsels, had dismissed the suit, insofar as relief for the specific performance is concerned, however, granted the relief of refund of amount paid by the plaintiff to the defendant. Aggrieved by the judgment and decree passed by the Trial Court in O.S.No.55 of 2006 dated 11.08.2011, the defendant has filed an appeal in A.S.No.88 of 2012 dated 12.08.2013. The first appellate Court, upon considering the materials placed before the Court, confirmed the Judgment and Decree of the trial Court. Challenging the concurrent judgment passed by the Courts below, the present second appeal has been preferred by the defendant.
6. When the Second Appeal came up for admission, only notice was ordered. By consent, this second appeal itself is taken up for final disposal at the stage of admission.
7. Now, the question that arises for consideration is as to whether the plaintiff is entitled for the alternate relief of refund of amount paid to the defendant?.
8. As the only question that has to be decided in this Second Appeal is relating to refund of money paid by the plaintiff to the defendant, it has to be seen by this Court as to whether Ex.A1-Agreement is true and whether any consideration was paid on the date of agreement.
9. Though the defendant had raised the plea of forgery, he has not taken up any steps to prove the same. However, the plaintiff had examined P.W.2, who is the scribe of Ex.A1, who identified the signature of the appellant/defendant and stated that it was signed in his presence. There is no reason to discredit the evidence of P.W.2. So far as D.W.3 is concerned, he seems to be a close friend of the plaintiff's husband. Hence, the Courts below have ignored the evidence of D.W.3, she being an interested testimony. Though the appellant had contended that Ex.A1 was a forged document, the same was proved by the plaintiff by examining P.W.1 and P.W.2. P.W.2 who is the scribe, has also spoken about the payment of advance amount.
10. So far as the payment made by the plaintiff on behalf of the defendant to the Primary Agricultural Cooperative Bank, Thalugai on 16.06.2003, 23.07.2003 and 04.08.2003 are concerned, the plaintiff has produced the receipts issued by the Bank, which are marked as Ex.A2 to Ex.A4. P.W.3 is the Secretary of the Bank, who was examined on the side of the plaintiff as well as the defendant, as P.W.3 and D.W.2 respectively. As P.W.3, the Secretary of the Bank has deposed as follows:-
"gpujpthjp kw;Wk; gpujpthjp fzth; uhn$e;jpud; kw;Wk; thjp b$auh!; Mfpnahh; gzk; brYj;j t;ejhh;fs;/ gp[hjpthjpa[k;. gpujpthjp fztUk; thjpaplk; mlkhd brhj;ij mthplk; tpw;Wtpl;nlhk;/ mjdhy; v';fSf;F kPjp cs;s ghf;fp flid thjp b$auhn$ fl;Ltjhf brhy;yp fl;&apUf;fpwhh;"
11. Thus, P.W.3, the Secretary of the Bank, has categorically stated that both the defendant and her husband along with the plaintiff had come to the Bank and stated that the balance amount would be paid on behalf of the defendant by the plaintiff. Accordingly, it appears that the plaintiff has also paid the money on three occasions, as supported by the documents, which are marked as Exs.A.2 to A.4. In the written statement also, it is admitted by the defendant that the plaintiff had paid the amount on his behalf even in excess of what he has been agreed in the sale agreement. However, in the additional written statement, the same has been denied by the defendant. P.W.3 has also spoken that on payment of the entire amounts due, the mortgage has been discharged. The defendant waited for the plaintiff to discharge the mortgage amount on his behalf. However, after the mortgage was discharged, the defendant denied the payment made by the plaintiff. It is the usual practice that the Banks would accept the payment of amount by anybody else on behalf of the borrower. However, the Bank issued the receipt in the name of the borrower. The defendant / appellant, taking advantage of the said practice, denied the payment made by the plaintiff on his behalf.
12. The inconsistent pleas, though otherwise permissible to be taken by the defendant, are also against the defendant / appellant. The defendant / appellant has been taking only inconsistent pleas throughout the case. Having stated one in the written statement, for the first time in the oral evidence, D.W.1 pleaded that there was waiver of interest by the Bank and that the mortgage was already redeemed, but, these are all the pleadings introduced by the defendant in his evidence. In the absence of any pleadings in the written statement, they were introduced for the first time only in the oral evidence. Therefore, the Courts below have rightly disbelieved the same. Having established that Ex.A1-Agreement is true and consideration mentioned therein was paid to the defendant and the balance was also paid to the Bank on behalf of the defendant in discharge of the mortgage on the suit property, the plaintiff had proved his case. As there was no explanation for the delay in filing the suit, the Courts below have refused to grant the relief of specific performance, however, granted the alternative relief of refund of the amount. As the plaintiff has established the payment made by him, the decree granted by the Courts below is liable to be confirmed.
13. In the result, this second appeal fails and the same is, accordingly, dismissed. No costs. Consequently, connected Miscellaneous Petition is also dismissed.
To
1. The I Additional District Court(PCR), Trichirapalli
2. The I Additional Sub Court (Camp at Thuraiyur) Tiruchirapalli.
3.The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai..