2026:MHC:1376A.S. NO.882 OF 2020

IN THE HIGH COURT OF JUDICATURE AT MADRAS

JUDGMENT RESERVED ON : 29 / 08 / 2025

JUDGMENT PRONOUNCED ON : 07 / 04 / 2026

CORAM :

THE HONOURABLE MR. JUSTICE R.SAKTHIVEL

A.S. NO.882 OF 2020

AND

C.M.P. NO.10483 OF 2020

AND

C.M.P. NO.15927 OF 2021 IN C.M.P. NO.10483 OF 2020

IN A.S. NO.882 OF 2020

S.Nanthakumar

S/o.R.M.Subramanian

D.No.104/1-Vengamettu Thottam,

Sivanmalai Village, Ramapattinam,

Kangeyam Taluk, Tiruppur District. ... Appellant / Defendant

Vs.

Asokan

S/o. Palanisamy

D.No.166, Sivanmalai Village,

Ramapattinam, Kangeyam Taluk,

Tiruppur District. ...Respondent / Plaintiff

PRAYER: First Appeal filed under Section 96 read with Order XLI Rule 1

of the Code of Civil Procedure, 1908 praying to set aside the Judgment and

Decree dated June 17, 2020 passed in O.S. No.220 of 2014 by the III

Additional District and Sessions Court, Tiruppur @ Dharapuram.

For Appellant : Mr.S.Sriram

for M/s.K.Govi Ganesan

For Respondent: Mr.C.Prakasam

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J U D G M E N T

Feeling aggrieved by the Judgment and Decree dated June 17, 2020

passed in O.S. No.220 of 2014 by 'the III Additional District and Sessions

Court, Tiruppur @ Dharapuram' ['Trial Court' for brevity], the Defendant

therein has filed this Appeal Suit under Section 96 read with Order XLI

Rule 1 of 'the Code of Civil Procedure, 1908' ['CPC' for short].

2. For the sake of convenience, hereinafter, the parties will be

referred to as per their array in the Original Suit.

PLAINTIFF'S CASE

3. The Suit Property measuring an extent of hectares 0.85.0 in Re-

Survey No.8/1 absolutely belongs to the Defendant as per registered Sale

Deed dated January 20, 2011 on the file of Sub-Registrar's Office,

Kangeyam. The Defendant agreed to sell the suit property to the Plaintiff

for a sum of Rs.20,00,000/- and accordingly, they both entered into a Sale

Agreement on September 6, 2013 and the same was registered on the same

day at Sub-Registrar's Office Kangeyam. On the date of execution of the

Sale Agreement itself, the Plaintiff paid a sum of Rs.15,00,000/- (Rupees

Fifteen Lakhs Only) towards part sale consideration amount in advance to

the Defendant which was received by him in the presence of witnesses. It

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was agreed by them that the balance sale consideration amount of

Rs.5,00,000/- has to be paid by the Plaintiff to the Defendant in one year

span from the date of the Sale Agreement and in turn, the Defendant has to

execute Sale Deed in favour of the Plaintiff without any encumbrance,

after making necessary measurements, with the aid of original documents.

Right from the date of agreement the Plaintiff was always ready and

willing to perform the sale as agreed, but the Defendant refused and

evaded from receiving the balance sale consideration amount and

executing the Sale Deed.

3.1. The Plaintiff met the Defendant in person and requested the

Defendant to receive the balance sale consideration amount and execute

Sale Deed as agreed. But the Defendant evaded by giving lame reasons.

Therefore, the Plaintiff caused a legal notice on August 18, 2014 calling

upon the Defendant to receive the balance sale consideration amount and

execute Sale Deed as per agreement, which was received by him on August

22, 2014. The Defendant sent a reply notice dated August 30, 2014, which

was received by the Plaintiff on September 1, 2014, wherein the Defendant

framed a false story that the Sale Agreement executed by him in favour of

the Plaintiff was only a security for a loan amount of Rs.15,00,000/-

obtained by him from the Plaintiff. The Defendant is eagerly trying to sell

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the suit property to third person. Stumbled by this reply, the Plaintiff with

no other option for resolving the issue approached the Trial Court with the

present Suit seeking specific performance and delivery of possession of the

suit property and in the alternative, seeking a direction to the Defendant to

refund the advance sale consideration amount of Rs.15,00,000/- with 12%

interest from September 6, 2013 to October 6, 2014 totalling to a sum of

Rs.16,95,000/- along with subsequent interest and to create a charge over

the suit property until realization of the Suit amount.

DEFENDANT'S CASE

4. The Defendant filed a written statement and an additional written

statement by which the Defendant denied the plaint averments at its

entirety. The specific case of the Defendant is that the Sale Agreement was

executed only as a security to a loan borrowed by the Defendant from the

Plaintiff. The readiness and willingness of the Plaintiff to perfrom his part

of the contract was denied. Even though the defendant assured repayment

of the loan amount, the Plaintiff has filed the Suit with an intention to

usurp the suit property. Further, the Sale Agreement is not valid after the

time prescribed in it and the Suit is barred by limitation. The Plaintiff was

never ready, willing or capable of performing the sale. The Plaintiff has not

produced any evidence or documents to show that he had sufficient source

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of income to perform the sale. Since the value of the suit property had

increased, the Plaintiff has filed this Suit with the intention to grab the suit

property. Stating so, the Defendant sought to dismiss the Suit with costs.

TRIAL COURT

5. Based on the above pleadings, the Trial Court framed the

following issues:

'1)Is it correct to say that the Suit Sale Agreement dated

September 6, 2013 was entered between the plaintiff

and defendant with intend to sell the suit property?

2)Is it correct to say that the suit sale agreement was

executed for security purpose for the loan amount

which said to have been borrowed by the defendant

from the plaintiff?

3)Whether the plaintiff was readiness, willingness and

capable on his part to perform the sale as per

agreement?

4)Whether the plaintiff is entitled to get the decree of

specific performance as prayed for with costs?

5)Whether the plaintiff is entitled for the alternative

relief?

6)To what other reliefs the plaintiff entitled for'

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6. At trial, on the side of the Plaintiff, the Plaintiff was examined as

P.W.1; one Sendhilkumar was examined as P.W.2; one Sabapathy was

examined as P.W.3; and Ex-A.1 to Ex-A.5 were marked. On the side of the

Defendant, the Defendant was examined as D.W.1 and no document was

marked.

7. After full-fledged trial, the Trial Court concluded that the Sale

Agreement was executed with an intention to sell the Suit Property and the

Plaintiff proved his readiness, willingness and capability of executing the

Sale Deed whereas the Defendant miserably failed to prove his stand.

Accordingly, the Trial Court decreed the Suit as prayed for by granting the

relief of decree of specific performance and delivery of possession of the

suit property to the Plaintiff.

8. Feeling aggrieved, the Defendant preferred this Appeal Suit under

Section 96 read with Order XLI Rule 1 of the CPC.

ARGUMENTS

9. Mr.S.Sriram, learned Counsel appearing on behalf of Mr.K.Govi

Ganesan, Counsel on record for the Appellant/Defendant would submit

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that the Trial Court failed to consider the evidence available on record

properly. The Trial Court ought to have accepted the defense of the

Defendant that Ex-A.1 - Suit Sale Agreement was not executed with an

intention to sell the Suit Property; it was executed altogether for a different

transaction, i.e., to stand as a security for a money transaction. He would

further submit that the Trial Court failed to appreciate the fact that the

Defendant was ready and willing to return Rs.15,00,000/- with reasonable

interest. The Trial Court failed to appreciate the fact that the Plaintiff was

not ready and willing to perform his part of the contract and that the

Plaintiff was not capable of paying the balance sale consideration of

Rs.5,00,000/- during the subsistence of the agreement as well as at the end

of the period of performance. In short, his argument is that Section 16(c)

of the Specific Relief Act, 1963 was not satisfied. Accordingly, he would

pray to allow this Appeal Suit and set aside the Decree and Judgment of

the Trial Court. He would rely upon the following Judgments in support of

his contentions: (i). Vasantha -vs- M.Senguttuvan reported in 1997 SCC

OnLine Mad 449; (ii). Shanthi Kawarbai -vs- Sushila reported in 2009 (4)

CTC 842; (iii). Muthukrishna Gounder -vs- Gowri reported in 2014 SCC

OnLine Mad 138; (iv). Basavaraj -vs- Narayanappa, reported in

MANU/TN/1277/2023.

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10. Per contra, Mr.C.Prakasam, learned Counsel appearing for the

Respondent/Plaintiff would submit that Ex-A.1 - Sale Agreement is a

registered agreement. The Plaintiff proved the execution and passing of

part sale consideration by examining the attestors, namely, P.W.2 & P.W.3.

The evidence of P.W.2 & P.W.3 are trustworthy. There is no reason to

disbelieve the same. The Plaintiff paid a sum of Rs.15,00,000/- i.e., 75%

of the total sale consideration at the time of the Sale Agreement itself. The

Suit Property has to be measured; that is the reason one year time for

performance has been agreed between the parties under Ex-A.1 - Sale

Agreement. The Plaintiff issued a legal notice within the time period of

performance on August 18, 2014 and the same was received by the

Defendant. The Defendant changed his mind and sent a reply notice dated

August 30, 2014 with incorrect and false particulars. The Trial Court

rightly appreciated the facts and circumstances and granted the relief of

specific performance. There is no warrant to interfere with it. Accordingly,

he would pray to dismiss this Appeal Suit and sustain the Decree and

Judgment passed by the Trial Court.

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DISCUSSION

11. The Points that arise for consideration in this Appeal Suit are as

follows:

(i)Whether Ex-A.1 - Suit Sale Agreement is true and genuine ?

(ii)Whether Ex-A.1 - Suit Sale Agreement entered between the

Plaintiff and the Defendant was executed with an intention to sell

the Suit Property or to stand as a security to a loan transaction as

alleged by the Defendant?

(iii)Whether the Plaintiff was ready and willing to perform his part of

the contract?

(iv)Whether the Decree and Judgment of the Trial Court has to be

interfered with?

Point Nos.(i) & (ii):

12. Ex-A.1 - Suit Sale Agreement is a registered one, wherein it has

been stated that on the date of the Sale Agreement itself, the Defendant

received a sum of Rs.15,00,000/- from the Plaintiff and agreed to execute

the Sale Deed within a period of one year. The Defendant's case is that the

Defendant borrowed a sum of Rs.15,00,000/- and executed Ex-A.1 - Sale

Agreement only for the purpose of security to the aforesaid loan amount.

It is settled law that Sections 91 and 92 of the Indian Evidence Act, 1872

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do not act as a bar against taking a defence that Ex-A.1 - Sale Agreement

was executed altogether for a different transaction. But the said defence

has to be proved by the Defendant as per law. In this case, the Plaintiff

examined P.W.2 & P.W.3, who are the attesting witnesses to Ex-A.1 - Sale

Agreement. They clearly deposed that Ex-A.1 was executed with an

intention to sell the Suit Property and the Defendant received a sum of

Rs.15,00,000/- from the Plaintiff as an advance on the date of execution

itself. On the other hand, the Defendant did not file or produce any

document to show that Ex-A.1 - Sale Agreement was executed for

altogether a different transaction; that Ex-A.1 was executed to stand as a

security to the loan amount of Rs.15,00,000/- borrowed by him from the

Plaintiff. No oral or documentary evidence was adduced to establish his

defense. Hence, this Court concludes that the Ex-A.1 - Sale Agreement is

true and genuine and the same was executed with an intention to sell the

Suit Property by the Defendant to the Plaintiff. Point Nos.(i) & (ii) are

answered accordingly in favour of the Plaintiff and against the

Defendant.

Point No.(iii):

13. As answered under Point Nos.(i) and (ii), the execution and the

true intention of the parties have been proved. The date of the Sale

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Agreement is September 06, 2013. The sale price was fixed at

Rs.20,00,000/- and an advance of Rs.15,00,000/- was paid on the date of

Ex-A.1 - Sale Agreement itself. The balance sale consideration is

Rs.5,00,000/-. The Plaintiff issued Ex-A.2 - Legal Notice on August 18,

2014 calling upon the Defendant to come forward to measure out the suit

property, produce original Title Deeds and execute Sale Deed in favour of

the Plaintiff. The Defendant caused Ex-A.4 - Reply Notice on August 30,

2014 denying that Ex-A.1 was executed for the purpose of sale of suit

property; the Defendant averred that it was executed to stand as a security

for a loan of Rs.15,00,000/- and that he is ready to repay the same. The

Plaintiff examined himself as P.W.1 deposed that at the time of execution

of Ex-A.1, he had to arrange a considerable portion of the Rs.15,00,000/-

part payment from his father and that he did not have the balance sale

consideration of Rs.5,00,000/- with him and hence, the one year time

period for performance. In other words, he deposed that, only for the

purpose of mobilizing the balance sale consideration of Rs.5,00,000/-, one

year time period was agreed upon under Ex-A.1 - Sale Agreement. In such

a case, though the Plaintiff issued a legal notice on August 18, 2014 during

the currency of the agreement period, the Plaintiff did not produce any

document to show that he possessed a sum of Rs.5,00,000/- to perform his

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part of the contract. It is settled law that the Plaintiff need not jingle the

coin, but at the same time, the Plaintiff has to prove that he was ready and

willing to perform his part of the contract along with his financial

capability to pay the balance sale consideration by producing his bank

passbook containing statement of accounts or any other evidence. Further,

dehors the defence, the Plaintiff has to prove his readiness and willingness

under Section 16(c) of the Specific Relief Act, 1963 [See Judgment of

Hon'ble Supreme Court in J.P.Builders -vs- A.Ramadas Rao, reported in

(2011) 1 SCC 429]. In this case, the Plaintiff has miserably failed to

produce the bank passbook containing statement of accounts to show that

he possessed a sum of Rs.5,00,000/- to perform his part of the contract or

any other evidence to show that he had sufficient money at his hand to pay

the balance sale consideration and get the Sale Deed executed. Mere

pleadings are not sufficient to prove readiness and willingness of the

Plaintiff. The Trial Court without considering the said aspect, granted a

decree for specific performance. Though the Sale Agreement is true and

valid, in view of the Plaintiff not proving his readiness and willingness, the

Plaintiff is not entitled to get the main relief of specific performance; but

he is entitled to get the alternate relief of a refund of the advance amount.

Point No.(iii) is answered accordingly.

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Point No.(iv)

14. The Trial Court had decreed the Suit and granted the relief of

specific performance. This Court for the dis-positive reasoning alluded to

supra is inclined to set aside the relief of specific performance, and grant

the alternate relief of return of advance amount of Rs.15,00,000/- along

with 12% interest from the date of Suit till the date of realisation, with

proportionate costs. Charge is created over the suit property to enable the

Plaintiff to realise the aforesaid amount along with interest and costs.

Point No.(iv) is answered accordingly.

15. No quarrel with the case laws relied on by the learned Counsel

for the Appellant / Defendant.

CONCLUSION:

16. In the result, the Appeal Suit is allowed in part in the following

terms:

(i)The Decree and Judgment passed by the Trial Court is set aside and

the Plaintiff is not entitled to the relief of specific performance.

(ii)The Plaintiff is entitled to get refund of the advance amount in the

following manner:

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(a)The Defendant shall return to the Plaintiff the advance amount

of Rs.15,00,000/- (Rupees Fifteen Lakhs only) with interest at

the rate of 12% per annum from the date of Suit till the date of

realization, with proportionate costs incurred by the Plaintiff

before the Trial Court.

(b)Charge is created upon the Suit Property to enable the Plaintiff

to realize the aforesaid amount with interest and costs specified

as above. The charge shall be raised automatically on payment

of the aforesaid amount with interest and costs by the

Defendant to the Plaintiff without any reference to the Court.

(c)The Defendant shall pay the aforesaid amount to the Plaintiff

within a period of two months from the date of receipt of a copy

of this Judgment, failing which, the Plaintiff is entitled to

execute the aforesaid decree as per law.

(d)The Plaintiff is entitled to get a refund of the balance sale

consideration deposited in the Court with accrued interest, if

any.

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(iii)Considering the facts and circumstances of the case, there shall be

no order as to costs in Appeal Suit. Consequently, connected Civil

Miscellaneous Petitions are closed.

07 / 04 / 2026

Index : Yes

Speaking Order : Yes

Neutral Citation : Yes

TK/pam

To

The III Additional District and Sessions Court,

Tiruppur @ Dharapuram.

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R. SAKTHIVEL, J.

TK/pam

PRE-DELIVERY JUDGMENT IN

A.S.NO.882 OF 2020

07 / 04 / 2026

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