(Prayer: Appeal Suit filed under Section 96 of Code of Civil Procedure, to set aside the judgment and decree dated 19.09.2025 made in O.S.No.125 of 2023 on the file of the learned Principal District Court, Dharmapuri.)

N. Sathish Kumar, J.

1. Challenging the decree and judgment of the Trial Court decreeing the suit for specific performance to execute sale deed in favour of the plaintiff in respect of the suit property, the present appeal has been filed by the defendants.

2. Brief facts in filing this appeal suit are as follows:-

               2.a. It is the case of the plaintiff that the first defendant has agreed to sell all the piece and parcel of land to an extent of 76 cents comprised in S.No.111/2 of No.84, Pudupatti Village, Pappireddipatti Taluk, Dharmapuri District together with customary right of way on the western side less the land if any, acquired in future by the Highways Department of Tamil Nadu for road widening. The sale consideration fixed in the agreement was computed at Rs.1,60,000/- per cent totalling Rs.1,23,20,000/- for the above land of an extent of 76 cents as per documents and 77 cent as per Patta No.274 comprised in S.No.111/2. An initial advance of Rs.11,50,000/- was paid by the plaintiff to the first defendant in cash and as per the agreement, the plaintiff agreed to pay a further advance of Rs.13,50,000/- within 40 days from the date of this agreement and further advance of Rs.25,00,000/- within three months from the date of this agreement. The plaintiff paid the sum of Rs.13,50,000/- in two instalments of Rs.10,00,000/- on 18.04.2020 and Rs.3,50,000/- on 05.05.2020 respectively and the same has been endorsed by the first defendant in the presence of other defendants and witnesses including the power agent of the plaintiff. The balance of Rs.98,20,000/- was payable within 1 year from the date of agreement against registration of the deed of sale and possession being handed over. Later at the request of the defendants on 10.08.2020, a further advance of Rs.21,00,000/- was paid by thy plaintiff. Accordingly, the plaintiff has paid a total sum of Rs.46,00,000/- out of total sale consideration of Rs.1,23,20,000/- as on 10.08.2020. In these circumstances, the defendants executed a similar agreement for sale dated 10.08.2020 in favour of the plaintiff under which the defendants confirmed that the sale consideration in the first agreement and agreed to execute the sale within 192 days from the date of agreement for sale dated 10.08.2020 (2nd agreement for sale). On 07.10.2020, the plaintiff also paid a sum of Rs.4,00,000/- which is also endorsed by the defendant. Accordingly, the plaintiff has paid totally paid a sum of Rs.50 lakhs in entirety towards the sale consideration out of total sale consideration of Rs.1,23,20,000/- as on 07.10.2020.

               2.b. The defendant once again on 17.02.2021 executed a further similar agreement for sale in favour of the plaintiff reiterating the terms and conditions of the earlier two agreements. On 15.02.2021, when the plaintiff informed that she was ready to pay the balance sale consideration and complete the purchase, the defendants informed the plaintiff that vide Order No.N.K.51/2021/B2, the Tahsildar inter-alia banned the registration of the sale of the above property and as such the defendant could not execute or register the sale of the property. Later with the intervention of local people known to them, it was agreed between the plaintiff and the defendant that they have to wait till the Tahsildar lifted the said ban and the defendant should execute the deed of sale in favour of the plaintiff, within the six months from the date of agreement dated 17.02.2021, i.e., on or before 16.08.2021. It was also agreed that in the event of ban not being lifted by the Government within the said period of 6 months, the defendant agreed to refund the said sum of Rs.50 lakhs paid by the plaintiff. Prior to expiry of the agreement of sale deed dated 17.02.2021, the defendants once again executed another Agreement for handing over the possession dated 14.08.2021 under which the defendant confirmed the receipt of the said sum of Rs.50 lakhs being part of sale consideration and they handed over possession of the land of an extent of 31 ¼ cents only instead of 40 cents in all that piece and parcel of a total land of an extent of 76 cents as per document and 77 cents as per Patta No.274. Under the said agreement, while handing over the possession of the land of an extent of 31 ¼ cents, the defendants confirmed and declared the sale and defendants have no right whatsoever in respect of the lands and the defendants were ready to sign the papers for registration of the same in favour of the plaintiff.

               2.c. After 37 cents of land comprised in S.No.111/2A was acquired by the Highways Department for road widening of Salem-Tirupattur 4 ways Road, the first defendant still owns land of an extent of 40 cents comprised in S.No.111/2(part) and as per the terms and conditions of the agreements, the plaintiff is willing to buy the remaining land of an extent of 40 cents though 31 ¼ cents was ultimately agreed to be sold. The said land of an extent of 31 ¼ cents comprised in S.No.111/2(part) in the suit property. Thus, a total sum of Rs.50 lakhs has been paid by the plaintiff to the defendants towards full payment of sale consideration of the entire suit property 31 ¼ cents. Despite repeated demands, the defendants have not come forward to execute the sale deed, therefore, the plaintiff's husband lodged a police complaint and on 15.09.2022, the first defendant gave a Letter of Undertaking dated 15.09.2022 agreeing to register the sale deed on receipt of NOC from the Government.

               2.d. Thereafter, the plaintiff sent a legal notice on 24.12.2022 calling upon the defendants to register the sale deed in respect of the suit property which was duly served on the defendants 1 and 2, however, with respect to the third defendant, notice was returned and subsequent notice was served duly to the defendants. Since there was no reply from the defendants, the suit has been filed by the plaintiff.

               2.e. It is the case of the first defendant in the written statement which is adopted by the defendants 2 and 3 that during the year 2012, defendants 2 and 3 were studying in Private Medical College and fees paid for the second defendant by the first defendant were more than 6 lakhs and for the third defendant, the first defendant was paying Rs.6.5 lakhs per annum. The first defendant was in severe financial crisis and to meet out the expenses by borrowing of the amount, the first defendant sought for availing of loan of Rs.25 lakhs from the plaintiff's husband. The plaintiff's husband agreed to provide loan of Rs.25 lakhs provided the defendant sign the agreement in respect of the land belonging to the first defendant. Due to financial crisis, the first defendant has signed several documents in blank paper and also availed loan. Later on 14.08.2021, again borrowed a loan of Rs.25 lakhs, at that time also, the plaintiff demanded signature of defendants in blank papers as security for the loan. Hence, it is the contention that there was no agreement for sale of the property, the plaintiff has no income to pay such huge amount for purchase of the property, there is no necessity for the defendants to execute four agreements for purchase of property and the entire agreements came into existence as loan transactions. According to the defendants, after payment of the earlier loans, three agreements have been returned to them, however, the suit has been filed as if the defendant has torn the agreement. The suit property is valued about more than Rs. 10 lakhs in the year 2021 itself. Hence, opposed the suit.

               2.f .On the basis of the above pleadings, the following issues were framed by the Trial Court:-

               1. Whether there was any agreement of sale between the plaintiff and defendants ?

               2. Whether the transaction between the plaintiff and defendants are loan transaction?

               3. Whether the defendants have discharged the loan borrowed from the plaintiff ?

               4. Whether the document agreement for handing over possession is a valid document ?

               5. Whether the plaintiff was always ready and willing to perform his part of the contract ?

               6. Whether the plaintiff is entitled for the relief of specific performance ?

               7. Whether the plea of defendants is hit U/s.95 of BSA ?

               8. To what relief ?

               2.g. On the side of plaintiff, the power agent of plaintiff was examined as PW1 and the plaintiff examined herself as PW2 and exhibited 25 documents which were marked as Ex.A1 to A26 and one Madhu PW3 was examined. On the side of defendants, 1st defendant was examined himself as DW1 and Ex.B1 to B3 were marked during cross of PW2 and One Apsara was examined as DW2 and through her Exs.C1 and C2 were marked.

3. On appreciation of evidences and material records, the Trial Court decreed the suit in favour of the plaintiff. Challenging the same, the present appeal suit has been filed by the defendants.

4. The main contention of the learned counsel for the appellant is that the Trial Court in fact has misdirected itself in decreeing the suit. If really, there was an agreement for sale of property, there was no necessity for executing four agreements in respect of the same property, viz., Exs.B1, B2, B3/Exs.A19, A20, A21 and A2. The manner in which these documents have been executed on various dates clearly shows that absolutely, there is no privity of contract between the plaintiff and the defendants. In fact, the evidence of PW2 probabalise the defence theory that there was only a loan transaction between the first defendant and the plaintiff and several signatures have been obtained in various stamps papers while borrowing the loan. It is the further contention that the loan of Rs.50 lakhs has been borrowed for payment of medical college fees of the defendants 2 and 3/first defendant's sons, if really, there was a sale transaction, having paid the entire amount of Rs.50 lakhs for 31 ¼ cents , there was no necessity to wait for two years to file suit, all these clearly show that it is only a loan transaction. The evidence of DW2 clearly show that the plaintiff was in fact, working as Nurse at the relevant point of time and her evidence clearly shows that on the date of agreement under Ex.B1/first agreement could not have been executed in her presence since she was working at the Hospital on that day. Similarly, on all the days of executing the agreements, she was present in the hospital and the especially on the day when the loan agreement based on which the suit has been filed, the plaintiff was in fact isolated in Quarantine ward and this has been clearly established by the evidence of DW2. The plaintiff has all along pleaded as if the original sale agreements of Ex.B1 to B3 were destroyed by the first defendant, when the fourth agreement namely the suit agreement, Ex.A2 came into existence, whereas, such contention has been found to be false, whereas, the defendants are in possession of the original of Exs.A19, A20 and 21. All these clearly show that it is nothing but a loan transaction and the sale agreement came into existence only at a later point of time. Further, adjusting Rs.50 lakhs to 31 ¼ cents after land acquisition by the Government itself clearly show that sale agreement has been created to knock out the property. At any event, the very conduct of the parties clearly show that the plaintiff is certainly not entitled to specific performance. Hence, seeks for dismissing the suit and allowing the appeal.

5. In support of his submissions, he placed reliance on the following judgments:-

               a. M. Jayaprakash Narayanan vs Santhammal& Ors [2018 (1) CTC 701] for the proposition that mere signatures of the parties were established on the basis of some interested witnesses of the parties, who want to enforce the socalled contract, in respect of the huge property; the execution cannot be inferred. Only when the plaintiff establishes that there was a consensus ad idem between the parties and a valuable consideration, then the above contract be termed as a valid contract capable of being enforced before the Court of law. When the two elements, namely, the free consent and lawful consideration, are absent in the document. Such a document cannot be considered for lawful consideration in the eyes of the law

               b. T.R. Murugesan vs S. Balakrishnan & others [2018 SCC OnLine Mad 14395 ] for the proposition that even assuming that time is not the essence of the contract, under Section 16(c) of the Specific Relief Act, the plaintiff must be shown to have been ready and willing to perform the contract right from the date of the agreement till date of the filing of the suit.

               c. Selvaraj vs Pappathi [(2025) 2 CTC 79] for the proposition that though the plaintiff has not asked for alternate relief for the return of the advance sale amount, the Court is empowered to mould the relief to render complete justice.It is relevant to point out that a Division Bench of this Court in N. Sekaran v. C. Rajendran, 2017 SCC OnLine Mad 27929: AIR 2018 Mad 67 has granted alternate relief for return of advance sale amount, even though the plaintiff has not asked for alternate relief in order to render complete justice.

6. Whereas, the learned counsel for the respondent submitted that though some discrepancies about the extent was found in the notice and the original plaint, the plaint was amended later. Admittedly, there were sale agreements under Exs.A19 to A21 originally in respect of 77 cents and the terms of contract clearly shows that the defendants intended to sell the properties less the property acquired by the Government for road widening, only on that understanding, rate per cent was fixed at Rs.1,60,000/-. The plaintiff has admittedly paid a sum of Rs.50 lakhs which is also established on record by way of admissions of the defendants. After acquisition of lands, though 40 cents are available, the plaintiff has filed the suit only in respect of 31 ¼ cents and towards that land, the entire sale consideration of Rs.50 lakhs is paid by the plaintiff, therefore, plaintiff is entitled to specific performance. With regard to the plea of coercion, no materials have come on record and the same is not established, that apart, the defendants also cannot go against the terms of the contract, they cannot plead contrary to the written agreement.

7. In support of his submissions, he placed reliance on the following judgments:-

               a. Bishundeo Narain And Another vs Seogeni Rai AndJagernath [1951 AIR 280] for the proposition that in cases of fraud, undue influence, and coercion, the parties pleading it must set forth full particulars, and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient to prove fraud and undue influence.

               b. Syed Dastagir Vs. T.R. Gopalakrishna Setty [1996 6 SCC 337] for the proposition that readiness andwillingness cannot be treated as a straitjacket formula. These have to be determined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned.

               c. Krishi Utpadan Mandi Samiti Sahaswan vs Bipin Kumar &Anr [AIR 2004 SUPREME COURT 2895] for the proposition that the bar imposed by Section 92(1) applies only when a party seeks to reply upon the document embodying the terms of the transaction and not when the case of a party is that the transaction recorded in the document was never intended:"to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in that document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the 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.

               d. K.ArumugamVs Gopalji Agrawal [C.R.P.(PD)Nos.2083 and 2084 of 2022] for the proposition that in view of the specific provision made under the Proviso to Section 49 of the Registration Act, 1980, allowing the unregistered document affecting immovable property to be received as evidence of a contract in a suit for Specific Performance.

               e. MuruganandamVs Muniyandi (Died) Through Lrs. [CIVIL APPEAL No(s). 6543 OF 2025] for the proposition that when an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received in evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of 1908 Act.

8. In light of the above submissions, now, the following points arise for consideration:-

               (i) Whether the agreements Exs.A19 to A21/Exs.B1 to B3 and Ex.A2 were intended to sale of property? or result of loan transactions between the parties?

               (ii) Whether the plaintiff is entitled to specific performance of part of contract?

               (iii) Whether the plaintiff was always ready and willing to perform his part of the contract ?

               (iv) To what other relief, parties are entitled to?

Points (i) to (iv)

9. It is the case of the plaintiff that the first defendant has agreed to sell the extent of 76 cents comprised in S.No.111/2 of No.84, Pudupatti Village, Pappireddipatti Taluk, Dharmapuri District for a total sale consideration of Rs.1,23,20,000/- by way of sale agreement which is marked as Ex.B1/Ex.A19. According to the plaintiff a sum of Rs.1,60,000/- was agreed as consideration per cent. According to the plaintiff, on the date of agreement, a sum of Rs.11,50,000/- was received by the plaintiff as advance and agreed to pay a further advance of Rs.13,50,000/- within 40 days from the date of Ex.B1 and further advance of Rs.25,00,000/- within three months from the date of Ex.B1. The plaintiff paid a sum of Rs.13,50,000/- in two installments of Rs.10,00,000/- on 18.04.2020 and Rs.3,50,000/- on 05.05.2020 respectively and on 10.08.2020, a further advance of Rs.21,00,000/- was paid by thy plaintiff. The plaintiff has paid a total sum of Rs.46,00,000/- as on 10.08.2020. Later, Ex.B2/Ex.A20, second sale agreement dated 10.08.2020 is also executed by the defendants agreeing to execute the sale within 192 days from the date of agreement for sale dated 10.08.2020, i.e., on or before 18.02.2021. Later, a further sum of Rs.4,00,000/- was received by the first defendant on 07.10.2020. Again on 17.02.2021, another agreement/Ex.21/Ex.B3 was signed by all the defendants confirming the receipt of Rs.50 lakhs and to execute the sale within a period of six months, if the ban is lifted by the Tahsildar. In the event the ban not lifted by the Government for sale of property, defendants agreed to return the the sum of Rs.50 lakhs received by them and later an agreement dated 14.08.2021/Ex.A2 came into existence. Accordingly, the plaintiff was put in possession and since the defendants did not execute the sale deed, the suit came to be filed by the plaintiff.

10. It is relevant to note that originally as per Ex.A19/Ex.B1, the plaintiff agreed to purchase an extent of 76 cents in entirety and further, it is also admitted that in the event of land acquisition for toll gate, the remaining lands are agreed for sale. Later, according to the plaintiff, an extent of 37 cents have been acquired in that survey number and the remaining 40 cents is still owned by the first defendant, however, the plaintiff has restricted her claim only in respect of 31 ¼ cents. Even assuming that the entire agreement was intended for sale, we are of the view that if the agreements are intended for sale of entire remaining extent after acquisition, the plaintiff ought to has sued for the remaining 40 cents, she cannot restrict claim only with respect of 31 ¼ cents. When a person seeks to enforce a part of contract, the plaintiff have to relinquish all claims to the performance of remaining part of the contract and all right to compensation, either for deficiency or for the loss or damage sustained by him through the default of the defendant as per 3(ii) of Section 12 of the Specific Relief Act, 1963. That apart, the plaintiff ought to have come forward to pay the entire sale consideration as agreed in the agreement, whereas, no such, pleadings or whatsoever available on record.

11. It is relevant to note that though Exs.A19 to A21 xerox copy of the original agreements were filed as secondary evidences on the ground that all the original documents have been torn by the defendants at the time of executing the fourth agreement/Ex.A2. The plaint proceeded as if all the original documents namely Exs.B1 to B3 were destroyed by the defendants and even while filing the xerox copies namely Exs.A19 to A21, it the contention of the plaintiff up-to filing of CRP.No.4739 of 2024 before this Court that the defendants have destroyed the original, therefore, they could not file the original agreements before this Court. Whereas, it is the case of the defendants that in the loan transaction, after they repaid the amounts, the original agreements were given to them, thereafter, the suit agreement/Ex.A2 was obtained towards the interest. It is relevant to note that originally, the power agent of the plaintiff was examined as PW1, however, he did not come for cross examination, therefore, his evidence is ignored. Thereafter, the plaintiff examined herself as PW2. In her cross examination, she has clearly admitted that the original agreements namely Exs.B1 to B3 were destroyed by the defendants in her presence. Whereas, Exs.B1 to B3 were produced by the defendants. It is the contention of the defendants that after repayment of the loan amounts, the original agreements were handed over by the plaintiff's husband to the defendants and therefore, they produced the documents before the Court. Producing the original agreements by the opposite parties namely the defendants probablises their case that the agreements are loan transactions. Though the execution and other aspects is not disputed, the fact remains that under Ex.B1/first agreement, only defendants 1 and 2 have signed the agreement, whereas, the third defendant has not signed. Similarly, under Ex.B2/second sale agreement, the defendants 1 and 2 have signed the agreement and the third defendant has not signed and the socalled endorsement evidencing the further amount is made only by the first defendant. Only the Exs.B3/Ex.A21 and A2/suit agreement alone are signed by all the parties.

12. If really, the plaintiff intended to purchase the property and having parted with such huge advance at the first instance under Ex.B1, she should have insisted the signatures of the other defendants also. Even while the second agreement was executed on 10.08.2020 under Ex.B2, one of the defendant had not signed. It is very hard to believe as to why for the same property to the same extent, several agreements have been executed one by one. Even assuming that since there was a proposal to acquire the said land, therefore, there was a delay, the normal conduct of the parties would be to make necessary endorsements in the first agreement, whereas, obtaining repeated agreements, going to the police station and lodging complaint against the defendants and thereafter getting some endorsements before the police clearly show that it is nothing but a loan transactions. That apart, the suit itself is filed by the power agent of the plaintiff and the plaintiff has not filed the suit personally. It is the case of the plaintiff that since the power agent could not withstand the cross examination and did not appear before the Court, the plaintiff herself came to the Court and examined herself as PW2 and it is her specific case that all the original agreement were torn by the defendants in her presence. This in our view is nothing but clear falsity pleaded before the Court. The plea of destruction was never pleaded in the plaint, for the first time only in the legal notice under Ex.A4, it is pleaded that after executing the Ex.A2/suit agreement dated 14.08.2021, the defendant has destroyed all the earlier agreements. Having pleaded in the legal notice, the same is conspicuously absent in the plaint, but, PW2 in her cross examination dated 20.02.2025, she has asserted that all the three original agreements/Exs.B1 to B3 were handed over to the defendants and the same were destroyed by the defendants in the presence of her husband and panchayatdars. The evidence of PW2 that the defendants have torn the three agreements, clearly establish the plea of falsity has been set up and pleaded before this Court upto Civil Revision Petition as referred above. Exs.B1 to B3 original agreements have been produced by the defendants. These facts clearly show that the documents were never intended for sale of the property and this in fact, probabilise the defence theory that the husband of the plaintiff had obtained the document from the first defendant and his children who are students and the amounts have been borrowed to meet out the Medical College fees of the defendants 2 and 3.

13. It is the specific case of the plaintiff that the plaintiff is a working as Nurse in Kumarangalam Government Hospital. When the first agreement came into existence under Ex.B1 dated 19.02.2020 said to have been executed by the defendants, the plaintiff's evidence clearly indicate that on the date of execution of Ex.B1, she was working in ICU ward in the Kumaramangalam Government hospital. Further, she has also admitted in her evidence that she was not aware when the B1/first agreement was executed on 19.02.2020. Further, she has also admitted that on 18.04.2020 and 05.05.2020, she was in the same hospital in the ICU ward, therefore, her admission clearly falsify her contention that she has paid the amount on 18.04.2020 and 05.05.2020 directly and endorsed by the first defendant in the presence of witnesses. It is also relevant to note that she has also admitted that she do not know what was the time when these agreements and endorsements were made.

14. DW2/Nursing Superintendent was summoned by the defendants from the Salem Mohanakumaramangalam Hospital. Her evidence clearly indicate that the distance between the place of the plaintiff and the hospital is around 40- 45 kilometers. On 19.02.2020, the plaintiff was working in the hospital. On 05.05.2020, she was in the Covid-19 duty and on 10.08.2020, she was in quarantine ward and similarly, on 07.10.2020, she was in Covid-19 duty and on 14.08.2021 she was on duty from 07.00 am to 01.00 pm. This evidence also indicate that the presence of PW1 while executing all the documents is highly doubtful. Though PW3 one of the attesting witness was examined to prove the execution of the agreement. PW3 is a real estate broker and he has signed all the document. His evidence itself clearly indicate that he himself admitted that to purchase the property, four agreements were not required. PW3 as a witness in all the documents and examining himself as witness before the Court, that itself clearly show that he was also interested in the land for some or other reasons.

15. Though the terms of a contract or disposition of property have been reduced to writing, no oral evidence would be admitted to contradict, vary, add to, or subtract from its terms as per Section 92 of Indian Evidence Act/95 of Bharatiya Sakshya Adhinayam. However, first proviso to Section 92/Section 95 provides that oral evidence is admissible to prove that the written contract or document is invalid on grounds such as fraud, intimidation, illegality, want of due execution, want of capacity, failure of consideration, mistake, or absence of consideration. Therefore, when the plaintiff has not established that there was a consensus ad idem between the parties and the parties were never intended to execute the document for sale and only the documents were obtained as loan transactions, it cannot be said that there was due execution of all the documents merely because one of the interested witness/PW3 who wants to enforce the so called contracts has signed all the document and testified before the Court. It cannot be said that all the agreements are executed voluntarily and no oral evidence is permissible.

16. If really, the documents were intended for agreement of sale, there was no necessity whatsoever for the plaintiff to file a suit by a power agent originally. Though it is the contention that on 14.08.2021, the suit agreement/Ex.A2 came into existence and she was given in possession of the property, however, the legal notice has been issued for the first time only on 24.12.2022 after a delay of one year and later, the suit came to be filed only on 19.06.2023 with much delay. These facts also clearly show that Exs.A19 to A21 were never intended to sale of the property. It is further to be noted that if really the plaintiff was intended to purchase the property and the defendant intended to sell the property, having agreed to execute the sale within a period of one year, the plaintiff could have completed the transaction even before the land acquisition proceedings commenced for the simple reason that the land acquisition commenced only from 18.11.2021 which has been clearly admitted by PW2. Notification is also marked as Ex.A22. If really the lands was intended for purchase by the plaintiff, she could have paid the entire sale consideration and got the sale deed registered in her name where there was no acquisition on the date of execution of Ex.B1 dated 19.02.2020, whereas, the acquisition proceedings commenced only on 18.11.2021. Therefore, the recitals in the agreement to the effect that in the event of acquisition by Government and the remaining lands alone are sought to be sold in view of this Court is an afterthought and introduced at a later point of time by anti-dating the agreement.

17. In fact, even in the plaint it is averred that plaintiff's husband went to the police station and it is also admitted by the plaintiff. These facts clearly indicate that the agreement relied upon by the plaintiff were never intended to sell the property, particularly, when the plaintiff is a government servant and she was on duty at the relevant point of time as admitted by herself as well as DW2. Besides, she was not aware of the time of agreement and executing four documents for the same transactions creates serious doubt about the genuineness of the transactions, particularly, with regard to the sale of the property. When the falsity is set up by the plaintiff as if the original agreements have been destroyed by the defendants which is found to be false and the plaintiff has approached the Court with unclean hands, even when the agreements are established and found to be true, the person who approached the Court with unclean hands is certainly not entitled to specific performance.

18. Further, having obtained the document under Ex.A2 on 14.08.2021, the suit has been filed only in June 2023 with a delay of almost 2 years, therefore, that conduct also shows that willingness has not been established. Though it can be said that the entire sale consideration for 31 ¼ cents has been paid, the fact remains that the delay in approaching the Court clearly indicate the fact that willingness has not been established. Therefore, readiness and willingness has not been proved and the plaintiff is not entitled to specific performance. It is relevant to note that Ex.A4, legal notice dated 24.12.2022, enforcement of contract for 37 cents comprised in S.No.111/2 (part) out of total land of an extent of 77 cents sought, whereas, in the plaint, it has been restricted to an extent of 31 ¼. Thus, the very difference in extent also creates doubt about the genuineness of the transaction. The plaintiff is not in a position to explain all these facts and these clearly shows that she is not entitled to specific performance. It is not the case of the plaintiff that Exs.B1 to B3 were taken over by the defendants themselves voluntarily without the consent of the plaintiff. It is the specific case of the plaintiff that when Ex.A2 came into existence, they had handed over the documents and the first defendant has destroyed the same, the same is found to be false whereas the original documents were produced from the custody of the defendant. Further, obtaining four agreements in respect of the same property, in fact, clearly probablise the defence theory that it is only a loan transactions.

19. The receipt of Rs.50 lakhs has not been denied by the defendants. Their only contention is that on repayment of loan amount, originals have been handed over to them, however, when a query was raised to the learned counsel for the appellant as to what is the proof of repayment, the learned counsel fairly submitted that there is no evidence to prove the repayment. As long as the repayment has not been established, we are of the view that the appellant is liable to return the amount of Rs.50 lakhs along with 6% interest from the date receipt of the amounts.

20. When the Court asked the learned counsel for the respondent that whether the respondent is willing to receive the advance amount of Rs.50 lakhs with reasonable interest, Mr.Prakash Gokalaney, learned counsel for the appellant submitted that the client is not willing to receive the money, since they have not filed for alternative remedy. This Court is of the view that even though the plaintiff has not asked for alternate relief for the return of advance sale amount, the Court is empowered to mould the relief to render complete justice since the amount has been received by the defendants to meet out college fees. It is relevant to point out that a Coordinate Bench of this Court in N.Sekaran and another vs. C.Rajendran reported in AIR 2018 Mad 67 has granted alternate relief for return of advance sale amount, even though the plaintiff has not asked for alternate relief in order to render complete justice. Therefore, we are inclined to grant the alternate relief for return of sum of Rs.50 lakhs along with 6% interest from the respective dates as follows to the plaintiff:-