(Prayer: Second Appeal is filed under Section 100 of the Code of Civil Procedure, against the Judgement and Decree dated 29.10.2014 passed in A.S.No.20 of 2013, on the file of the Principal District Court, Dharmapuri in confirming the judgment and decree dated 17.04.2013 passed in O.S.No.21 of 2009 on the file of the Principal Subordinate Court, Dharmapuri.)

1. This Second Appeal has been preferred as against the Decree and Judgment passed by the Principal District Court, Dharmapuri, in A.S.No.20 of 2013 dated 29.10.2014. The appellant is the defendant in the main suit. The respondent herein being the plaintiff has filed a suit for specific performance of the contract as against the defendant in O.S.No.21 of 2009, on the file of the Principal Subordinate Court, Krishnagiri. The said suit was decreed in favour of the plaintiff by granting relief for specific performance through the decree and judgment dated 17.04.2013. Aggrieved by the said Decree and Judgment, the defendant has preferred first appeal in A.S.No.20 of 2013, on the file of the Principal District Court, Dharmapuri. The First Appellate Court also confirmed the decree and judgment passed by the trial Court and dismissed the appeal through the decree and judgment dated 29.10.2014. Aggrieved by the said decree and judgment, the defendant has preferred the second appeal.

2. The case of the plaintiff before the trial court is that originally the suit properties belong to the defendant. The plaintiff and the defendant entered into sale agreement in respect of the suit property and sale price was fixed Rs.3,15,980/- (Rs.305/- per sq.ft), to that effect, also rendered the agreement dated 14.10.2008. On the date of agreement itself, a sum of Rs.1,00,000/- was paid towards advance of sale price. The remaining amount has to be paid at the time of sale. The defendant also handed over the original document of the title deed dated 15.10.1982. Since the defendant is not in a position to measure the property, the said agreement was extended on 11.10.2008 till 14.12.2008 again the said agreement was extended till 15.02.2009 on 12.12.2008. While so, when the plaintiff was always ready and willing to perform his part of contract, the defendant was evading from executing the sale deed. Therefore, the plaintiff issued notice dated 29.01.2009 and the same was received by the defendant. Even after that the defendant failed to perform his part of contract. Therefore, the plaintiff filed the suit for specific performance of contract.

3. The case of the defendant before the trial Court is that the averments made in the plaint in respect of the agreement, the sale price fixed, the execution of the agreement, the receipt of advance amount are all denied. The defendant never executed any agreement and agreed to sell the properties and never received the money from the plaintiff based on the agreement. The alleged extension of time also denied. In fact it is the defendant who was working in the bank borrowed money through his friend Devaraj and he asked to execute deed for security, thereby, he executed a said agreement. The two minor sons have also share over the suit property. Therefore, the plaintiff cannot sell the property and thereby, he only executed documents for the loan purpose. Since he was unable to repay the money within three months again extended the date and even now the defendant is ready to repay the money. Therefore, the suit is liable to be dismissed.

4. Based on the above said pleadings and on hearing both sides, the trial court has framed the following issues for trial:

                   “1. whether the suit agreement was executed as security for the loan obtained by the defendant?

                   2. Where the plaintiff is entitled to relief of specific performance of contract?

                   3.To what other reliefs, the parties are entitled to?

5. Before the trial court, on the side of the plaintiffs, P.W.1 and PW.2 were examined and marked Exhibits A.1 to A.10. On the side of the defendant, D.W.1 and D.W.2 were examined and marked Exhibit B.1 to B.5. After evaluating the oral and documentary evidence, the trial Court decreed the suit by granting specific performance of contract. Aggrieved by the said Decree and Judgment, the unsuccessful defendant has preferred the Appeal Suit before the Principal District Court, Dharmapuri, in A.S.No.20 of 2013. The First Appellate Court framed the following points for determination:-

                   “1. Whether the respondent/plaintiff is entitled to decree for specific performance of contract?

                   2. Whether the decree and judgment passed by the trial Court are liable to be set aside?

                   3. To what other reliefs.”

The first Appellate Court after considering evidence of both sides, dismissed the appeal by confirming the decree and judgment passed by the trial Court. Aggrieved by the said judgment and decree, the present second appeal has been filed by the defendant.

6. At the time of admission, this Court formulated the following substantial questions of law, by order dated 01.02.2016:

                   “ 1. Whether the plaintiff is entitled to the equitable relief of specific performance of the sale agreement under Section 20 of the Specific Relief Act 1963, when the defendant strenuously contended that he did not agree to sell the suit property and that the sale agreement was executed only as a security for the repayment of the loan amount borrowed by him from the plaintiff?

                   2. Whether the defendant is entitled to contend that the transaction between the plaintiff and the defendant is only a loan transaction as per the first proviso to Section 92 of the Evidence Act, even though he admitted the execution of Ex.A1 sale agreement?.”

7. The learned counsel appearing for the appellant would submit that the appellant is the defendant and the respondent is the plaintiff who filed the suit for specific performance of contract alleging that the defendant agreed to sell the properties and entered into an agreement with the plaintiff for the sale price of Rs.3,15,980/- and also received advance amount of Rs.1,00,000/- on the date of agreement. In fact, the plaintiff approached the defendant through his friend Devaraj and borrowed money as hand loan. At that time, the plaintiff asked to execute the documents and thereby, he executed the suit document for security. Since he was unable to pay money within three months, two times extended the time. Therefore, the said agreement was not entered to sell the property, whereas it was executed for the purpose of security for the loan and the defendant is even now ready to repay the said money and the conduct of the plaintiff in accepting the extension of two times shows that the agreement was not intended to sell the property. The plaintiff was not always ready and willing to perform his part of the contract. Even according to the agreement, the time fixed is only three months and thereafter, it was extended twice. Within the said period of three months, the plaintiff has not issued any notice but he extended the time. The plaintiff has not issued notice immediately and after the lapse of three months of time only issued notice on 04.02.2009. Handing over the original document itself shows that the said document was executed for the purpose of security for the loan. Therefore, the defendant has probabilised his defence whereas the plaintiff failed to prove his case. However, the Courts below failed to consider that the plaintiff was not ready and willing to perform his part of the contract and erroneously decreed the suit. Therefore, the decree and judgment passed by the Courts below are liable to be set aside.

8. The learned counsel appearing for the respondent would submit that the defendant is the owner of the suit property and he offered to sell the suit property to the plaintiff, thereby, the entered into sale agreement dated 14.10.2008 by fixing the sale price of (Rs.305/- per sq.ft) to the tune of Rs.3,15,980/-. The time was fixed for three months and on the date of agreement itself, the plaintiff paid a sum of Rs.1,00,000/- as advance of sale price and the defendant also handed over the original document to the plaintiff. Thereafter, the defendant requested the plaintiff to extend the time and the same was also extended twice.

9. Despite that the plaintiff was ready and willing to perform his part of the contract, the defendant failed to execute the sale deed, thereby, the plaintiff filed a suit. Prior to that he also received the notice and the same was replied with false averments. In order to prove the case of the plaintiff, P.Ws.1 and 2 were examined and marked Exs.A1 to A10. Through oral and documentary evidence, the plaintiff has categorically proved the case. Once the defendant admitted the execution of documents and denied the character of the documents then it is his duty to prove the same. But in order to prove the same, the defendant has not produce further evidence. He has not even examined the said Devaraj as one of the witness and thereby he failed to prove his contention, whereas, the plaintiff proved his case, thereby the Courts below rightly decreed the suit and both Courts have rendered concurrent findings and there is no perversity or illegality in the findings of the Courts below. Further, there is no substantial questions of law involved in this case. Therefore, the second appeal is liable to be dismissed.

10. This Court heard both sides and perused the records. In this case, the plaintiff has filed the suit for specific performance of the contract based on the agreement executed by the defendant dated 14.10.2008, the sale price is fixed at Rs.3,15,980/-, the time was fixed three months and thereafter, the time was extended on 14.12.2008 and again on 12.12.2008 and the same was extended till 15.02.2009. Thereafter, the plaintiff issued notice on 28.01.2009. The defendant has also admitted the execution of the document and extension of time. However, according to the defendant, the said document was not executed for the purpose of sale of property and only for security purpose of the loan obtained by him, the same was executed. He borrowed money as a hand loan to repay in three months. He was unable to repay the money within three months, thereby, he extended the time for two months. However, the plaintiff filed the suit before expiry of the time extended by the parties. Since the defendant admitted the receipt of money and the execution of documents and extension of time, it is for the defendant to prove his contention. In order to prove the case of the defendant has examined as DW.1 and DW.2 was also marked and Exs.B1 to B5 also marked. The defendant's evidence and the documents shows that the document was executed for the purpose of loan obtained by him. The plaintiff also examined PW.1 and marked Exs.A1 to A10. The defendant’s side witnesses revealed that the plaintiff executed the agreement. Now the Court has to see whether the agreement was executed for the purpose of sale of property or executed for the loan obtained by the defendant.

11. It is well settled law that even in the absence of defendant side evidence, the case of the plaintiff can be demolished through the evidence of plaintiff witnesses. The plaintiff himself admitted that the time for completion of contract is three months, the date of agreement is 14.07.2008, so within 14.10.2008, the plaintiff ought to have obtained a sale deed. However, it was extended on 11.10.2008 till 14.12.2008, then again it was extended on 12.12.2008 till 15.02.2009. There is no proper explanation by the plaintiff as to why the time was extended twice. The explanation offered by the plaintiff was that he was unable to measure the property, thereby, the time was extended . There are no records to show that the plaintiff had taken steps to measure the property. Therefore, the above said conduct of the plaintiff in extending the time twice shows that the sale agreement was not intended to execute for the purpose of sale of property and it is for the money transaction. Further, the handing over the original documents to the plaintiff even without paying the entire money also creates doubt over the genuineness of the agreement. The plaintiff has not filed any documents to show that he obtained encumbrance certificate in respect of the suit property. Therefore, the above said conduct of the party shows that the suit agreement was executed only for the purpose of the loan and thereby, the defence of the defendant was made probabalised through proper evidences. Moreover, the plaintiff has not taken any steps to get sale deed immediately after the extension of time fixed in the agreement and only issued notice on 29.01.2009. The said conduct of the plaintiff would show that he was not ready and willing to perform his part of contract.

12. The above said aspects have not been considered by the Courts below. The trial Court in the judgment came to the conclusion that Ex.A1 was admitted by the defendant, but failed to consider that the defence of the defendant has been probabilised through the conduct of the parties in extending the time twice and handing over the original sale deed to the plaintiff. The First Appellate Court also failed to consider that the plaintiff failed to prove his case and the defendant probabilised the defence. Further the Courts below failed to consider that the property belong to the joint family and the defendant also ready to pay the money borrowed by him. Therefore, the Courts below failed to appreciate the facts and evidences in a proper perspective and came to an erroneous conclusion that the plaintiff has proved his case and the defendant failed to prove his case.

13. As far as the substantial questions of law are concerned, the defendant stoutly denied the execution for the purpose of sale and according to him, he borrowed money and for that purpose he executed the said document and failed to repay the money within the time and thereby he extended the time twice. Thereafter, he was unable to pay the money. The plaintiff also admitted the extension of time twice and there is no proper explanation offered by the plaintiff for the extension of time, according to the plaintiff to measure the property, the time was extended but there are no documents to show that the property was measured or not and any steps have been taken to measure the property and thereby the defendant probabilised the defence. As far as the suit for specific performance is concerned, it is equitable relief and it is not automatic. The plaintiff has not filed the suit immediately, after the lapse of period of agreement, the notice was issued after one year i.e 29.01.2009. Therefore, the above said conduct shows that the plaintiff was not ready and willing to perform his part of the contract as the agreement is executed for the money transaction. Therefore, the plaintiff is not entitled to equitable relief and the Courts below failed to consider the same. The finding rendered by the Courts below, in respect of proving of agreement was perverse. Though the agreement is admitted, the plaintiff denied the nature and character of the document and thereby the defence of the defendant is permissible under first proviso to Section 92 of the Indian Evidence Act, as the denied the nature and character of the document. Therefore, the Courts below have rendered erroneous findings as if the plaintiff proved his case and the suit agreement was executed for the purpose of sale of property and the same is not for the purpose of seeking for the loan. The Courts below have not framed proper issues in respect of readiness and willingness, which are very essential to grant decree of specific performance of contract. Without framing proper issues, the Courts below have rendered findings, thereby the findings of the Courts below are perverse. Therefore, the substantial questions of law are answered in favour of the appellant. The judgment and decree passed by the Courts below are liable to be set aside. However, the defendant admitted the borrowal of money from the plaintiff and thereby, the defendant is liable to pay the money borrowed from the plaintiff. Thereby, the plaintiff is entitled to money decree as per the law laid down by the Hon’ble Supreme Court in Srinivas Ram Kumar Firm Vs. Mahabir Prasad and others reported in 1951 SCC 136. Therefore, this Court is inclined to pass money decree in favour of the plaintiff as against the defendant.

14. Accordingly, the second appeal is allowed, the judgment and decree passed by the trial Court in O.S.No.21 of 2009, on the file of the Principal Subordinate Court, Krishnagiri, as confirmed by the First Appellate Court in A.S.No.20 of 2013, on the file of the Principal District Court, Dharmapuri are set aside and the suit is dismissed in respect of specific performance of contract. However, money decree is granted by directing the defendant to pay a sum of Rs.1,00,000/- to the plaintiff with interest at the rate of 6% per annum from the date of agreement till the date of realisation. Consequently, connected miscellaneous petition is closed. No costs.