V.GOVINDASAMY vs S.NATARAJAN
- Court
- Madras High Court
2026:MHC:3141
A.S. NO.839 OF 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 29 / 08 / 2025
JUDGMENT PRONOUNCED ON : 28 / 07 / 2026
CORAM :
THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
A.S. No.839 OF 2020
V.Govindasamy
S/o. Late Venkitapathy
Old No.1/108, New No.1/130,
Kaspa Mallai Gounder Palayam,
Palladam, Tiruppur – 641 658. ... Appellant /
st
1 Defendant
Versus
1.S.Natarajan
S/o.Subramanian
D.No.16/45A, Upathesi Thottam,
Ambrose Nagar, Susainallur,
Karumathampatti, Sulur Taluk,
st
Coimbatore – 641 018. ... 1 Respondent /
plaintiff
2.Varun Venkat
S/o. Govindasamy
Old No.1/108, New No.1/130,
Kaspa Mallai Gounder Palayam,
nd
Palladam, Tiruppur – 641 658. ... 2 Respondent /
nd
2 Defendant
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
Page No.1 of 29
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/07/2026 07:41:18 pm )
2026:MHC:3141
A.S. NO.839 OF 2020
Decree dated March 5, 2020 passed in O.S. No.314 of 2016 by the learned
Sessions Judge, Magalir Neethimandram (Fast Track Mahila Court),
Tiruppur.
For Appellant : Mr.T.Murugamanickam
Senior Counsel
Assisted by Mr.K.Myilsamy
For Respondent-1 : Mr.S.Saravanan
For Respondent-2 : Mr.K.Prabhakaran
Served - No appearance
*
J U D G M E N T
Feeling aggrieved by the Judgment and Decree dated March 5, 2020
passed in O.S. No.314 of 2016 by 'the Sessions Court, Magalir
Neethimandram (Fast Track Mahila Court), Tiruppur' ['Trial Court' for
brevity], the first 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.
Page No.2 of 29
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/07/2026 07:41:18 pm )
2026:MHC:3141
A.S. NO.839 OF 2020
PLAINTIFF'S CASE
3. The suit properties originally belonged to the defendants.
The second defendant is the son of the first defendant. The first defendant
acquired the suit properties by virtue of a Settlement Deed dated July 19,
2002 from his mother. The plaintiff and the first defendant entered into an
Agreement of Sale on September 9, 2015 registered as Document
No.1129/2015 on the file of Sub Registrar, Palladam in respect of the suit
properties, and the second defendant is also a party thereto. The sale price
was fixed at Rs.12,00,000/-. On the date of the Sale Agreement itself, the
plaintiff paid a sum of Rs.10,00,000/- as advance. Eleven months' time was
fixed for execution of the Sale Deed.
3.1. According to the plaintiff, he was always ready and
willing to perform his part of the contract. The plaintiff approached the
defendants within the stipulated time of eleven months, for execution of
the Sale Deed. But the defendants evaded execution of the Sale Deed. As
per the Sale Agreement, the defendants have to execute the Sale Deed in
favour of the plaintiff on or before August 9, 2016. However, the
defendants failed to do so. In the meantime, the plaintiff sent a legal notice
on April 15, 2016 to the defendants calling upon them to execute the Sale
Deed in his favour. The first defendant received the legal notice and the
Page No.3 of 29
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/07/2026 07:41:18 pm )
2026:MHC:3141
A.S. NO.839 OF 2020
notice issued to the second defendant was returned to the plaintiff with an
endorsement 'not claimed'. The defendants remained evasive. Hence, the
plaintiff filed the present Suit for specific performance.
FIRST DEFENDANT'S CASE
4. The first defendant filed a written statement denying the
allegations made by the plaintiff in the plaint. According to the first
defendant, he is the absolute owner of the suit properties vide Settlement
Deed dated July 19, 2002, and he never entered into any Sale Agreement
for the purpose of sale of suit properties with the plaintiff. In the month of
August 2015, he was in urgent need of money to discharge the loan for the
educational expenses of his son, the second defendant and to meet out
some family expenses. The first defendant along with his friend -
Palanisamy approached the plaintiff, a money lender, for a loan of
Rs.10,00,000/-. The plaintiff also agreed to advance the loan, and
demanded the first defendant to hand over the original Settlement Deed in
his favor and also execute a registered Sale Agreement as security for the
loan. He had also obtained signature of the first defendant along with his
son on several printed promissory notes and other stamp papers as security
for the loan. The plaintiff assured him that he will not misuse the registered
Page No.4 of 29
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/07/2026 07:41:18 pm )
2026:MHC:3141
A.S. NO.839 OF 2020
Sale Agreement and will cancel the same as and when first defendant
repays the entire loan amount. Since the first defendant was in urgent need
of money, without any alternative and believing the assurance given by the
plaintiff, executed a registered Sale Agreement as security. The alleged
Sale Agreement is not true, valid and genuine and the same was obtained
by fraud, misrepresentation, etc .
4.1. It is further averred that the first defendant was paying a
sum of Rs.25,000/- every month till the month of March 2016 to the
plaintiff. Since the first defendant was unable to pay the interest, the
plaintiff issued a legal notice on April 15, 2016. After receipt of the legal
notice, the first defendant approached the plaintiff through the said
Palanisamy and other panchayatdars , before whom, he had agreed to grant
one year time to the first defendant to repay the loan amount of
Rs.10,00,000/- with 24% interest per annum. The first defendant had not
issued any reply notice to the pre-suit notice issued by the plaintiff.
4.2. Further averred that, on the date of the alleged Sale
Agreement, the suit properties was worth more than Rs.5,00,000/- per
Acre. The total value of the suit properties was more than Rs.25,00,000/-.
As the alleged Sale Agreement was executed only as a security for the loan
Page No.5 of 29
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/07/2026 07:41:18 pm )
2026:MHC:3141
A.S. NO.839 OF 2020
transaction, the value of the suit properties was mentioned as
Rs.12,00,000/-. The fixation of the longer period for the minimum balance
sale consideration of Rs.2,00,000/- is an evidence that the alleged Sale
Agreement was executed only as a security for the loan transaction and the
same is not a true agreement for sale and is not intended to be acted upon.
4.3. According to the first defendant, the second defendant is a
college student and he had no right over the suit properties. Only because
the Sale Agreement was executed as security for a loan transaction, the
second defendant was made to sign the document. The alleged readiness
and willingness as pleaded in the plaint by the plaintiff was also denied.
The plaintiff has not come forward with clean hands. Stating so, the first
defendant sought to dismiss the Suit with cost.
SECOND DEFENDANT
5. The second defendant was called absent and set ex-parte .
TRIAL COURT
6. Based on the above pleadings, the Trial Court framed the
following issues:
Page No.6 of 29
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/07/2026 07:41:18 pm )
2026:MHC:3141
A.S. NO.839 OF 2020
"1) Whether the plaintiff is entitled for the relief of
Specific Performance as prayed for?
2) Whether the Suit Sale Agreement dated September 9,
2015 was intended for sale?
3) To what other relief, the plaintiff is entitled to?"
7. The Trial Court, on March 5, 2020 framed the following
additional issues:
"1) Whether the Suit Sale Agreement dated September 9,
2015 is true and valid?
2) Whether the plaintiff is always ready and willing to
perform his part of the contract?"
8. At trial, on the side of the plaintiff, the plaintiff was
examined as P.W.1 and one Saravanan was examined as P.W.2 and Ex-A.1
to Ex-A.9 were marked. On the side of the defendants, the first defendant
was examined as D.W.1 and one Kaliappan was examined as D.W.2 and no
document was marked, on the side of first defendant.
Page No.7 of 29
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/07/2026 07:41:18 pm )
2026:MHC:3141
A.S. NO.839 OF 2020
9. After full-fledged trial, the Trial Court held that the
documentary evidences viz., Ex-A.1 to Ex-A.9 marked on the side on the
side of the plaintiffs clearly proves that Ex-A.2 - Suit Sale Agreement is
true and valid and that the plaintiff has proved his readiness and
willingness to perform his part of the contract. Upon finding that the
plaintiff has proved his case, the Trial Court concluded that the plaintiff is
entitled to the relief of specific performance against the first defendant
with costs. The Trial Court directed the first defendant to execute the Sale
Deed in respect of the suit properties in favour of the plaintiff on receiving
the balance sale consideration and fixed two months' time for execution of
the Sale Deed. Consequently, the Trial Court dismissed the Suit qua second
defendant.
APPEAL SUIT
10. Feeling aggrieved by the Judgment and Decree passed by
the Trial Court, the first defendant has preferred this Appeal Suit under
Section 96 read with Order XLI Rule 1 of the CPC.
ARGUMENTS
11. Mr.T.Murugamanickam, learned Senior Counsel assisted
by Mr.K.Myilsamy, learned Counsel on record for the appellant / first
Page No.8 of 29
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/07/2026 07:41:18 pm )
2026:MHC:3141
A.S. NO.839 OF 2020
defendant would submit that there are two items of the suit properties. Suit
Item No.1 is 1 Acre 66 Cents and Suit Item No.2 is 3 Acre 44 Cents. The
suit properties totally measure 5 Acre 10 Cents and belonged to the first
defendant. At the time of Ex-A.2 - Sale Agreement, the second defendant
was studying in a college and hence, the first defendant was in urgent need
of money for their family expenses as well as second defendant's
educational expenses. Hence, the first defendant approached the plaintiff
for a loan and at the instance of the plaintiff, the first defendant executed
Ex-A.2 - Sale Agreement which was not intended to sell the suit properties
but only to serve as security to the loan transaction. That is why an eleven
months' time period has been prescribed under the Sale Agreement, though
majority of the sale consideration has already been paid and the balance
was only Rs.2,00,000/-. Hence, the Trial Court without appreciating the
facts and circumstances, erroneously decreed the Suit in favour of the
plaintiff. Accordingly, he would pray to allow this Appeal Suit and set
aside the Decree and Judgment passed by the Trial Court. He would rely
on the following Judgments in support of his contentions: (i). Bhagirath
-vs- Ram Ratan reported in (2017) 6 MLJ 237 (SC) ; (ii). Tejram -vs-
Patirambhau reported in AIR 1997 SC 2702 ; (iii). Kamireddi Sattiaraju
Page No.9 of 29
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/07/2026 07:41:18 pm )
2026:MHC:3141
A.S. NO.839 OF 2020
-vs- Kandamuri Boolaeswari reported in 2007-3-L.W.580 ; and (iv).
A.Shahul Hameed -vs- N.Malligarjuna reported in 2025-3-L.W.577.
12. Per contra, Mr.S.Saravanan, learned Counsel appearing for
the first respondent / plaintiff would submit that the defendants admitted
the execution of Ex-A.2 - Sale Agreement. Moreover, the plaintiff has
examined P.W.2 to prove the payment of consideration. Further, the
plaintiff sent Ex-A.3 - Notice dated March 29, 2016 and the same was
received by the defendants. Despite receiving notice, they did not send a
reply. Further, there is no iota of evidence available on record to show that
the plaintiff and the defendants had a money transaction and that Ex-A.2 -
Sale Agreement was executed to stand as a security thereto. There is no
evidence available on record to show that the market value of the suit
properties was Rs.25,00,000/- at that time as claimed by the first
defendant. The Trial Court after appreciating the entire facts and
circumstances, rightly dismissed the Suit. There is no warrant to interfere
with it. Accordingly, he would pray to dismiss the Appeal Suit. He would
rely on the following Judgments in support of his contentions:
(i). Madhukar Nivrutti Jagtap -vs- Pramilabai Chandulal Parandekar
reported in (2020) 15 SCC 731 ; (ii). Nanjammal -vs- Palaniammal in
Appeal No.205 of 1987 dated March 02, 1993 ; (iii). S.Shanmugham -vs-
Page No.10 of 29
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/07/2026 07:41:18 pm )
2026:MHC:3141
A.S. NO.839 OF 2020
R.Nallasamy reported in 2011 (2) MWN (Civil) 22 ; (iv). A.Raja -vs-
J.K.Madhu reported in 2013 (1) MWN (Civil) 825 ; (v). Valantine Morris
-vs- Ramalingam reported in 2014 (3) MWN (Civil) 730 ; (vi). George
Kavalam -vs- P.Vijayalakshmi reported in 2015 SCC OnLine Mad 4067 ;
and (vii). M.R.Subramaniam -vs- G.S.Abimunissa reported in 2017 SCC
OnLine Mad 6871 .
POINTS FOR CONSIDERATION
13. Heard on either side. Perused the entire evidence available
on record. The points that arise for consideration in this Appeal Suit are as
follows:
(i) Whether Ex-A.2 - Sale Agreement was executed with an
intention to sell the suit properties as contended by the plaintiff or was it
executed to stand as a security to loan transaction as contended by the
defendants?
(ii) Whether the plaintiff is entitled to the equitable relief of
specific performance?
(iii) To what other relief the plaintiff is entitled to?
Page No.11 of 29
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/07/2026 07:41:18 pm )
2026:MHC:3141
A.S. NO.839 OF 2020
DISCUSSION:
Point Nos.(i) and (ii):
14. Ex-A.2 - Suit Sale Agreement dated September 09, 2015 is
a registered document. On the date of the Sale Agreement, Rs.10,00,000/-
was given to the defendants. The remaining sale price that needed to be
paid was only Rs.2,00,000/-. Eleven months' time period was fixed for the
performance of contract . In other words, execution of Sale Deed in respect
of the suit properties was to be done on or before August 9, 2016. There is
no disputes with the above facts.
15. While the plaintiff contends that Ex-A.2 - Suit Sale
Agreement was executed with an intention to sell the suit properties and
not for any other purpose, the first defendant contends that it was executed
only to stand as a security to the loan he borrowed from the plaintiff,
primarily for the purpose of meeting out the educational expenses of his
son.
16. As the first defendant attacks the very nature of the
document by contending that it was executed for altogether a different
transaction, Sections 91 and 92 of the Indian Evidence Act, 1872 would
not stand as a bar and the first defendant is entitled to lead evidence in
Page No.12 of 29
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/07/2026 07:41:18 pm )
2026:MHC:3141
A.S. NO.839 OF 2020
support of his contention, although he cannot vary the terms of Ex-A.2 -
Suit Sale Agreement in other aspects. In this regard, reliance is placed on a
Division Bench Judgment of this Court in Kamireddi Sattiaraju -vs-
Kandamuri Boolaeswari , reported in 2007 3 L.W. 580 , wherein by
referring to Roop Kumar -vs- Mohan Thedani , reported in 2003 3 L.W.
261 : (2003) 6 SCC 59 and Parvinder Singh -vs- Renu Gautam , reported
in 2004 4 L.W. 53 : (2004) 4 SCC 794 , it was clarified thus:
" 14. … … … At the outset, it will have to be stated
that existence of Ex.A-1 agreement was never in dispute.
As far as application of Section 92 of the Indian Evidence
Act is concerned, by virtue of Section 91, and having
regard to the existence of Ex.A-1 agreement, the terms
contained in Ex.A-1 are to be considered without any
reference to any other oral evidence insofar as it related to
the terms contained therein. In that respect, Sections 91
and 92 of the Indian Evidence Act are inter-dependent. In
the light of the evidence available on record, both oral and
documentary, as well as the application of Section 92 of
the Indian Evidence Act, there is no scope to permit the
appellants to contradict, vary or subtract the terms
contained in Ex.A-1 agreement. Therefore, even taking
Ex.A-1 agreement on its face value, what has to be
considered is whether the contention put forward on behalf
of the appellants that it was never intended to be acted
upon, requires consideration. On this aspect, we find that
the decisions relied on by learned counsel for the
Page No.13 of 29
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/07/2026 07:41:18 pm )
2026:MHC:3141
A.S. NO.839 OF 2020
appellants Mr. R. Subramanian as reported in 2003 (6)
SCC 595 (supra) and 2004 (4) SCC 794 (supra) fully
support his contention.
15. In the judgment reported in 2003 (6) SCC 595, in
paragraph 22, the Supreme Court has stated the legal
position as regards the substantive part of Section 92 of
the Indian Evidence Act in the following words:
"22. This Court in Gangabai v. Chhabubai (1982
(1) SCC 4 : AIR 1982 SC 20) and Ishivar Dass
Jain v. Sohan Lal (2000 (1) SCC 434 : AIR 2000
SC 426) with reference to Section 92(1) held that
it is permissible to a party to a deed to contend
that the deed was not intended to be acted upon
but was only a sham document. The bar arises
only when the document is relied upon and its
terms are sought to be varied and contradicted.
Oral evidence is admissible to show that
document executed was never intended to operate
as an agreement but that some other agreement
altogether, not recorded in the document, was
entered into between the parties."
16. In the decision reported in 2004 (4) SCC 794, the
Supreme Court has held as under in paragraph 9:
"… An enquiry into reality of transaction is not
excluded merely by availability of writing reciting
the transaction. Tyagaraja Mudaliyar v.
Page No.14 of 29
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/07/2026 07:41:18 pm )
2026:MHC:3141
A.S. NO.839 OF 2020
Vedathanni (AIR 1936 PC 70 : 64 IA 126) is an
authority for the proposition that the oral
evidence in departure from the terms of a written
deed is admissible to show that what is mentioned
in the deed was not the real transaction between
the parties but it was something different."
17. From the above ratio laid down by the Supreme
Court, when we analyse the stand of the parties, according
to the appellants, irrespective of the fact that Ex.A-1 came
into being, it was contended that the deed was never
intended to be acted upon and that it was a sham
document. When the said stand is probed into further, as
held by the Supreme Court, the bar under Section 92 of the
Indian Evidence Act vis-a-vis Ex.A-1 would operate if only
the appellants attempt to rely upon Ex.A-1 agreement and
simultaneously sought to vary and contradict its terms.
Such is not the case of the appellants. The appellants are
not attempting to contend that the terms contained therein
are to be varied or that the evidence let in on their side
was to contradict the terms contained therein. According
to the appellants, the entire evidence let in both oral and
documentary, was only to demonstrate that inspite of
existence of Ex.A-1, it will have to be held that the parties
had a different contract altogether and Ex.A-1 was never
intended to be acted upon. At the risk of repetition, we
state that applying the ratio laid down by the Supreme
Court, such a stand of the appellants was certainly not
prohibited "
Page No.15 of 29
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/07/2026 07:41:18 pm )
2026:MHC:3141
A.S. NO.839 OF 2020
17. The learned Counsel for the respondent / plaintiff would
contend otherwise by drawing support from the Division Bench Judgment
of this Court in Nanjammal -vs- Palaniammal , reported in 1993 2 L.W.
505 , wherein in Paragraph No.5, it was held thus:
" 5.It was one of the contentions urged in the
Court below that the plaintiff had not even obtained
encumbrance certificate before the execution of
Exhibit A1 and she had not taken the title deed from
the defendant. The Court below has pointed out the
recital in Exhibit A1 under which the defendant had
undertaken to obtain an encumbrance certificate and
give it to the plaintiff. The fact that the plaintiff had
not taken the title deed in advance does not in any way
discredit the truth of the agreement in Exhibit A1. In
fact, the evidence of the defendant is that what was
written was really an agreement though it was only for
the purpose of securing the loan. She (defendant) has
admitted that the plaintiff wanted her to execute an
agreement for sale by way of security for the loan and
she did execute such an agreement. When that is the
fact, it is not open to the defendant to raise a plea that
the terms of the agreement should be ignored as the
Page No.16 of 29
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/07/2026 07:41:18 pm )
2026:MHC:3141
A.S. NO.839 OF 2020
real purpose was to secure the loan transaction. It is
conceded by learned counsel for the appellants that
the defendant is barred from raising such a plea by S.
92 of the Indian Evidence Act. "
18. This Court is not in consonance with the contention of the
learned Counsel for the respondent / plaintiff, for two reasons. Reason No.
(i), the Division Bench Judgment relied on by him does not draw any
support from any Apex Court Verdict, whereas that in Kamireddi
Sattiaraju's Case [cited supra ] relied on by this Court, is based on two
Apex Court Judgments. Reason No.(ii), in the Judgment relied by him, the
defendant's Counsel conceded that the bar under Section 92 of the Indian
Evidence Act, 1872 was applicable. It could be seen from the afore-
extracted portion, viz., Paragraph No.5, that the decision of the Court was
inter-alia based on that concession. For these two reasons, this Court is of
the view that Nanjammal's Case [cited supra ] would not come to the aid of
the plaintiff. This Court concludes that the first defendant is not barred
under Sections 91 and 92 of the Indian Evidence Act, 1872 to contend that
the Suit Sale Agreement in Ex-A.2 was executed for altogether a different
transaction and also to lead evidence to support the same.
Page No.17 of 29
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/07/2026 07:41:18 pm )
2026:MHC:3141
A.S. NO.839 OF 2020
19. Moving on, the plaintiff, as deposed in his evidence as
P.W.1, is a rice merchant. Out of the total sale consideration of
Rs.12,00,000/-, he paid upfront Rs.10,00,000/-, as advance. The remaining
amount to be paid is Rs.2,00,000/-. If the Suit Sale Agreement was really
executed for the purpose of sale of suit properties, this Court wonders why
a period of eleven months was fixed as a time period, when more than 80%
of the total sale consideration has already been paid by the plaintiff. The
plaintiff would contend that the eleven months period was to measure out
the suit properties. However, Ex-A.2 - Suit Sale Agreement, Ex-A.4 - Pre-
Suit Notice, the plaint as well as the plaintiff's chief-affidavit are silent on
this aspect; they do not mention anything about measuring the suit
properties. The said contention was raised by the plaintiff for the first time,
during his cross-examination as P.W.1 and hence, this Court is of the view
that it is an afterthought.
20. Further, if really the plaintiff intended to purchase the suit
properties, he would have naturally obtained encumbrance certificate for at
least past 12 years just like any common prudent buyer. However, the Ex-
A.7 - Encumbrance Certificate was obtained on August 8, 2016, just before
filing of the Suit, that too for a period of about two years alone. This Court
is not able to comprehend why the plaintiff failed to check the
Page No.18 of 29
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/07/2026 07:41:18 pm )
2026:MHC:3141
A.S. NO.839 OF 2020
encumbrances before entering into the Suit Sale Agreement and why it has
been submitted for two years alone. Anyhow, the Encumbrance Certificate
submitted as Ex-A.7 for about two years period reveals that there were two
Sale Agreements in respect of the suit properties with different persons,
namely One Sivalingam and One Innasimuthu, prior to the execution of
Ex-A.2 - Suit Sale Agreement. It could be seen that the first defendant had
entered into a registered Sale Agreement (Document No.2048 of 2014) in
respect of suit properties with said Innasimuthu for Rs.10,00,000/-, to be
performed within a span of eleven months, receiving Rs.6,00,000/- upfront
as advance. The same was cancelled on January 22, 2015 and on the same
day, the first defendant entered into another Sale Agreement (Document
No.2048 of 2014), in respect of a portion of suit properties and some more
properties, for a sale consideration of Rs.16,00,000/- with an advance
payment of Rs.10,00,000/-, to be performed within a period of two years
from the date of Sale Agreement. The aforesaid transactions show that the
first defendant was in the habit of obtaining loans by exeucting sale
agreements.
21. Further, the plaintiff examined P.W.2 - Saravanan, as an
attesting witness to Ex-A.2 - Suit Sale Agreement. He deposed that he
knew nothing about the transaction or terms between the parties and he
Page No.19 of 29
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/07/2026 07:41:18 pm )
2026:MHC:3141
A.S. NO.839 OF 2020
merely saw the plaintiff and the first defendant executing the Suit Sale
Agreement by affixing their signatures therein. He also deposed that he
does not know about the other attesting witness.
22. Further, the first defendant's case is that he borrowed
money and executed Ex-A.2 - Suit Sale Agreement as a security to the
same; that upto March 2016, he was paying interest duly and defaulted
thereafter; that consequently, the plaintiff immediately issued Ex-A.4 - Pre-
Suit Notice in April 2016. When there exist eleven months' time period for
performance of contract, i.e., till August 9, 2016, what was the reason for
the plaintiff to issue 4 months prior. There is no reason assigned in the
pleadings or evidence as to why the Pre-Suit Notice in Ex-A.4 was issued
early. Further, when the notice was issued in April 2015, the Suit was filed
only later in December 2016.
23. Further, as per the terms of the Suit Sale Agreement, in
case of failure on the part of the defendants, to perform their part of the
contract, the plaintiff shall deposit the balance sale consideration before
Court of law and obtain Sale Deed through Court. When so, the plaintiff
has not deposited the balance sale consideration until the Ex-parte Decree
was passed by the Trial Court [Defendants let the Suit be decreed ex-parte
Page No.20 of 29
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/07/2026 07:41:18 pm )
2026:MHC:3141
A.S. NO.839 OF 2020
and later first defendant set aside the same]. However, as per explanation
to Section 16 of the Specific Relief Act, 1963, the plaintiff need not jingle
his coins. Yet, he has to establish his readiness and willingness throughout
to perform his part of the contract by producing either his bank statement
or any other document. Mere averment is not sufficient to prove readiness
and willingness.
24. Further, on a lighter vein, the first defendant in his written
statement claimed that at the time of alleged loan transaction, he gave his
Original Title Deed namely the Settlement Deed dated July 19, 2002
executed by his mother in his favour in respect of the suit properties. Ex-
A.4 - Pre-Suit Notice, plaint as well as his chief-affidavit as P.W.1 has no
whisper about the custody of the Title Deed. On the other hand, in the
plaint, it has been stated that just before filing of the Suit, the plaintiff
applied for a registration copy of the said Settlement Deed which has been
filed along with the plaint. Only during his cross-examination, he admitted
the custody of the Original Title Deed with him. What was the need for the
plaintiff to suppress the factum of custody of the Title Deed ? One who
seeks the equitable relief of specific performance, must come to the Court
with clean hands. The plaintiff has not come to this Court with clean hands
Page No.21 of 29
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/07/2026 07:41:18 pm )
2026:MHC:3141
A.S. NO.839 OF 2020
and he is not bona fide. If really he is bona fide , he ought to have
mentioned it either in the plaint, or chief affidavit.
25. All the above factors, in one way or another, raises serious
doubt as to the intention of the parties and the true nature of transaction
under Ex-A.2 - Suit Sale Agreement. There is no valid reason assigned as
to why a eleven months' time period has been fixed when more than 80%
of the sale price has already been paid. The one reason assigned also
appears to be an afterthought as held above. Further, no common prudent
buyer would make a purchase of immovable properties without verifying
the encumbrance particulars. Further, while an attesting witness need not
necessarily be aware of contents, particulars of transaction, and the terms
agreed between the parties nor is he required to know about the other
attesting witness, in the facts and circumstances of this case, the attesting
witness - P.W.2 not knowing any of the above creates a suspicion. Further,
there is no explanation as to why the plaintiff rushed to issue Ex-A.4 - Pre-
Suit Notice in April 2016, when there is time left for execution of Sale
Deed till August 9, 2016. If really there was a hurry, why did he then have
to wait till December 2016 for filing of the Suit. These facts when read
together with the first defendant's case that the Pre-Suit Notice was issued
when he defaulted in payment of interest, makes the first defendant's case
Page No.22 of 29
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/07/2026 07:41:18 pm )
2026:MHC:3141
A.S. NO.839 OF 2020
probable. Time gap between the early issuance of notice and the filing of
Suit, appears to have been a waiting period spent by the plaintiff awaiting
return of money or payment of interest from the first defendant. Further,
the plaintiff has concealed the fact that the Title Deed of first defendant is
under his custody. While there is no valid explanation or reason assigned
for the same, it could be inferred from the facts and circumstances of the
case that the plaintiff retained the same without disclosure before Court, so
as to retain a strategic advantage where even if the Suit culminates into an
adverse decree against the plaintiff, the first defendant will be handicapped
as the Title Deed remained in actual possession of the plaintiff. Further, the
plaintiff has failed to establish his readiness and willingness though he
averred to that effect in Ex-A.4 - Pre-Suit Notice. Further, it could be seen
from Ex-A.7 - Encumbrance Certificate filed by the plaintiff, that the first
defendant had been obtaining loans from multiple persons by executing
Sale Agreement in respect of the suit properties, which fact also
probablizes his case that he was in need of money to meet out the
educational expenses of his son, the second defendant.
26. On a cumulative reading of all the above facts, this Court is
of the view that the plaintiff's contention that the Suit Sale Agreement was
executed for sale of suit properties is an afterthought. The Suit Sale
Page No.23 of 29
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/07/2026 07:41:18 pm )
2026:MHC:3141
A.S. NO.839 OF 2020
Agreement was originally executed to stand as a security to the loan
transaction, as alleged by the first defendant. And also keeping in mind the
fact that as per Section 20 of the Specific Relief Act, 1963 (as it stood
before the 2018 Amendment), the relief of specific performance is a
discretionary relief, meaning even if the nature of the document is proven
to be true, the Court has the powers to still deny specific performance in
appropriate cases, this Court is of the view that the plaintiff is not entitled
to the relief of specific performance. Needless to mention that the Suit
having been filed in 2016, the 2018 Amendment to the Specific Relief Act,
1963, whereby the erstwhile Section 20 was removed, is not applicable as
the amendment is prospective in nature [See Judgment of Hon'ble
Supreme Court in Annamalai -vs- Vasanthi , reported in (2026) 3 SCC
769 ]. Point Nos.(i) and (ii) are answered accordingly.
Point No.(iii):
27. The next point for determination is whether the plaintiff is
entitled to any other relief. The plaintiff did not seek for the alternate relief
of return of advance amount in the plaint. Unless the said alternate relief is
prayed for in the plaint, it cannot be granted [See Judgment of Hon'ble
Supreme Court in K.R. Suresh -vs- R. Poornima , reported in 2025
LiveLaw (SC) 522 ]. However, in this case, the first defendant in his written
Page No.24 of 29
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/07/2026 07:41:18 pm )
2026:MHC:3141
A.S. NO.839 OF 2020
statement, has agreed to return the advance amount of Rs.10,00,000/-
within a span of 1 year. The learned Senior Counsel appearing on behalf of
the appellant / first defendant, also specifically, submitted that the first
defendant is ready and willing to return Rs.10,00,000/-, with reasonable
interest. In view of the facts and circumstances and in view of the
submissions made by the learned Senior Counsel, to avoid multiplicity of
proceedings and in the interest of justice, this Court is inclined to pass
Money Decree for Rs.10,00,000/- with simple interest in favour of
plaintiff. Interest shall be at the rate of 15% per annum. The reason for the
higher rate of interest is that the plaintiff is a rice merchant; had he
invested the said amount of Rs.10,00,000/- in his business or lent the same
to others, he would have earned a high return on the same. Moreover, the
first defendant during his evidence as D.W.1, has deposed that he had
agreed to repay Rs.10,00,000/- along with 24% interest before the
Panchayatdhars . Taking all these factors into consideration, this Court is
of the view that simple interest at the rate of 15% per annum is justifiable.
Point No.(iii) is answered accordingly.
28. Upon giving due consideration to the case laws relied on
either side, this Court is of the view that there is either no quarrel with the
Page No.25 of 29
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/07/2026 07:41:18 pm )
2026:MHC:3141
A.S. NO.839 OF 2020
other Judgments relied on either side or they are not applicable to the facts
of the instant case.
CONCLUSION
29. In the result, the Appeal Suit is allowed in part with the
following terms:
(i) The Judgment and Decree passed by the Trial Court is set
aside and the plaintiff is not entitled to the equitable relief
of specific performance.
(ii) Plaintiff is entitled to a Money Decree. Accordingly, a Money
Decree is passed in favour of the plaintiff for
Rs.10,00,000/- with simple interest at the rate of 15% per
annum from the date of Suit till realisation.
(iii) The first defendant shall return a sum of Rs.10,00,000/-
(Rupees Ten Lakhs only) with interest at the rate of 15%
per annum from the date of Sale Agreement till the date of
realization to the plaintiff.
Page No.26 of 29
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/07/2026 07:41:18 pm )
2026:MHC:3141
A.S. NO.839 OF 2020
(iv) The plaintiff shall return the Original Settlement Deed dated
19.07.2002 (Doc.No.2865 of 2002, S.R.O.Palladam) to
the first defendant, immediately after realizing the above
decree amount with interest.
(v) The first defendant shall pay the cost incurred by the plaintiff
before the Trial Court.
(vi) A Charge is created upon the suit properties to enable the
plaintiff to realize the aforesaid amount with interest
specified as above. The charge shall be raised
automatically on payment of the aforesaid amount with
interest by the first defendant to the plaintiff.
(vii) Qua the second defendant, the Suit is dismissed, as
admittedly he is a minor at the time of Suit Sale
Agreement.
(viii) The first defendant shall pay cost throughout to the
plaintiff.
Page No.27 of 29
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/07/2026 07:41:18 pm )
2026:MHC:3141
A.S. NO.839 OF 2020
ix) Connected Civil Miscellaneous Petition / Civil Miscellaneous
Petition (Filing), if any, shall stand closed.
28 / 07 / 2026
Index : Yes
Speaking Order : Yes
Neutral Citation : Yes
TK/pam
To
The Sessions Judge,
Magalir Neethimandram (Fast Track Mahila Court),
Tiruppur.
Page No.28 of 29
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/07/2026 07:41:18 pm )
2026:MHC:3141
A.S. NO.839 OF 2020
R. SAKTHIVEL, J.
TK/pam
PRE-DELIVERY JUDGMENT MADE IN
A.S.NO.839 OF 2020
28 / 07 / 2026
Page No.29 of 29
https://www.mhc.tn.gov.in/judis ( Uploaded on: 29/07/2026 07:41:18 pm )