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Judgment
B.R.Madhusudhan Rao, J
This appeal is filed by the appellant-defendant aggrieved by the judgment and decree passed in O.S.No.157 of 2015, dated 23.10.2019 by the I Additional District and Sessions Judge, Warangal.
The respondent-plaintiff has filed suit under Section 26 r/w Order 7 Rule 1 of Civil Procedure Code, 1908 and under Sections 36 and 38 of Specific Relief Act against the appellant-defendant with a prayer to direct the defendant to register the suit schedule property in his favour (respondent-plaintiff), in alternative the defendant (appellant herein) is directed to repay the amount of Rs.23,70,333/-(Rupees Twenty Three Lakhs Seventy Thousand and Three Hundred and Thirty Three only) and to award costs of the suit.
3.1. Respondent-plaintiff and the appellant-defendant are residing in Parkal Town and they are known to each other. Appellant-defendant approached the respondent-plaintiff on 09.04.2010 with a request to lend Rs.10,00,000/- stating that he wants to construct a house in the Plot purchased by him and he deposited his Deed of Agreement of Sale, dated 11.11.2009 with the respondent-plaintiff and promised to pay interest @ 2% per month on the loan amount and he will clear the same by 31.03.2013. Appellant-defendant undertook that in case of his inability in making the repayment of the loan amount of Rs.10,00,000/- before 31.03.2013 with interest @ 2% which will be treated as the value of the house constructed. As per the recitals of the agreement, dated 09.04.2010, the appellant-defendant has to register the house property in favour of the respondent-plaintiff. The respondent-plaintiff has paid the above said amount to the appellant-defendant in the presence of the witnesses. Appellant-defendant has obtained loan for construction of the house in the Plot purchased by him and got the Grampanchayath assessment number as 5-183/1/C.
3.2. Since more than 2 years and 8 months the appellant-defendant has not come forward to settle the issue and that the respondent-plaintiff is not a money lender, he made several requests to the appellant-defendant to repay his money back with interest but he did not care. Finally, the respondent-plaintiff got issued legal notice on 03.12.2015 calling the appellant-defendant to perform his part of contract either to pay the money or to get the house property and Plot register in his name within one week from the date of receipt of the notice. Appellant-defendant received the notice on 07.12.2015 and he got issued reply notice on 10.12.2015 with false allegations. The amount payable by the appellant-defendant to the respondent-plaintiff is as follows:
Agreement
note
date 09.04.2010
Rs.10,00,000/-
amount
Interest @ 2%
per month from
Rs.13,67,333/-
09.04.2010
to
31.03.2013
i.e.,
(68 months and 11 days)
Legal notice charges
Rs.3,000/-
Total
Rs.23,70,333/-
and prayed to decree the suit.
Appellant-defendant has filed his written statement and contended that he is the absolute owner, possessor of the suit property by virtue of Agreement of Sale executed in his favour by its erstwhile owner on 11.11.2009. Thereafter, he got the same mutated in the records of Nagar Panchayathi Parkal and the house stands in his name in the records, got constructed the house in the said Plot with his hard earned money and residing therein peacefully and enjoying the fruits of the property. Respondent-plaintiff is unauthroised money lender in Parkal and he is involving innocent people after developing relationship with them as money lender, obtaining their signatures of innocent people on the blank papers by lending petty sums and blackmailing them in many ways, appellant-defendant has become the prey of the respondent-plaintiff. Respondent-plaintiff with a malafide intention to grab the property of the appellant-defendant which is in prime locality has created the alleged agreement by forging his signature and the allegations leveled against him are false and defamatory and the suit is filed to grab the property of the appellant-defendant, prayed to dismiss the suit and direct the respondent-plaintiff to pay compensation to him for frivolous litigation.
The Trial Court has framed the following issues:
Whether the agreement, dated 09.04.2010 is Agreement of Sale?
Whether the agreement of Sale, dated 09.04.2010 is true, valid and binding on defendant?
Whether the plaintiff is entitled to seek for specific performance?
Whether the plaintiff is entitled for the refund of amount with interest as prayed for?
To what relief?
Respondent-plaintiff is examined as PW.1, got examined PW.2-Palleboina Ramanna, PW.3-Molguri Venkateshwarlu, got marked Exs.A1 to A4.
Appellant-defendant did not enter into witness box to substantiate his contention.
Learned Trial Court after going through the evidence led by the respondent-plaintiff and after going through the documents thereon has decreed the suit for an amount of Rs.17,14,667/- (Rupees Seventeen Lakhs Fourteen Thousand Six Hundred and Sixty Seven Only) with subsequent interest @ 6% per annum from the date of suit till realization on the principle amount of Rs.10,00,000/- and the relief of specific performance is rejected.
Respondent-plaintiff has refused the notice in the Appeal as per the Endorsement, dated 02.03.2020.
10.1. Learned counsel for the appellant-defendant submits that the Trial Court has discussed all the issues together which is in gross violation of settled principle of law as per Order 14 Rule 2 and that the Court shall pronounce judgment on all the issues, that a part according to Order 20 Rule 5 of CPC, 1908 and failed to follow the well settled principles of law. Appellant-defendant has denied the suit claim made by the respondent-plaintiff that he never executed Ex.A1 and the admissions made by PW.1 in his cross-examination goes to show that a person having a family from agricultural income cannot advance such a huge loan and also failed to say the denomination during the course of cross-examination.
10.2. The Trial Court failed to see that Ex.A1 is a compulsory registrable document under Section 17 of the Registration Act, the legal fiction was not considered by the trial Court and came to a wrong conclusion, decreed the suit in part. The alleged Ex.A1 is on 09.04.2010, suit is instituted on 22.12.2015, money transactions are covered under Articles 18, 19, 21 and 23, time prescribed in law is 3 years. Under Article 54 of Limitation Act, 3 years is fixed for the date of performance or if no such date is fixed when the plaintiff has notice that performance is refused, on that score, suit is barred by limitation. According to Section 194 of Tax Deduction at Source, interest on securities, interest on loans are covered under T.D.S. mechanism, which are to be deducted under Section 195 of the said Act and the suit filed by the respondent-plaintiff is not maintainable either on law or facts and impugned judgment is liable to be set aside.
Heard learned counsel for the appellant-defendant, perused the record.
Now the point for consideration is: whether the impugned judgment and decree, dated 23.10.2019 suffers from any perversity or illegality?
Ex.A1 is the Agreement, dated 09.04.2010. The recitals goes to show that “the appellant-defendant needs some amount to construct the house in the land admeasuring Ac.0-03 gts., equivalent to 363 Sq.yards in Sy.No.958, purchased from erstwhile owners and is in possession, and the land papers are deposited with you for obtaining hand loan of Rs.10,00,000/-, for the said amount you are charged Rs.2/-. The entire amount will be cleared by 31.03.2013, if the said amount is not returned to you, the agreement may be treated as sale agreement, you take over the possession of the above said property and house including open land and I will hand over the same to you, if any due amount is found to be paid to you, I will pay the said amount and I will execute the document as per your request, and the same will be registered”.
Witnesses: Sd/- Ahmed Baig
Sd/- S/o M.K.Baig
Sd/- M.Venkatesh Parkal
Sd/- D.Vidyasagar Rao
Sd/-
Ex.A3 is Legal Notice, dated 03.12.2015 got issued by the respondent-plaintiff to the appellant-defendant, which states about the borrowing of the amount by the appellant-defendant from him and executed Ex.A1 document, as he failed to pay the amount by 31.03.2013, vexed with his attitude got issued legal notice calling him to register the house in his name or else to settle the accounts.
Ex.A4 is the Reply Notice, dated 10.12.2015 got issued by the appellant-defendant to the respondent-plaintiff. The defense set up in the Reply notice is that he (appellant-defendant) used to borrow money from the respondent-plaintiff and repay the same, during such transactions of petty loans, respondent-plaintiff has obtained his signatures on blank papers, on clearing the amounts failed to return the same and denied the agreement, dated 09.04.2010 in toto.
The evidence of respondent-plaintiff as PW.1 is the same with that of the plaint averments. During his cross-examination, he stated that he paid the consideration under Ex.A1 by way of cash and on the date of execution of Ex.A1, himself (respondent-plaintiff) and the defendant (appellant herein) scribe-Ramanna, attestors-Venkat, Sadanandam, Vidyasagar and Buchi Rama Rao were present and he cannot say the boundaries of the schedule property. PW.1 denied the suggestion that Ex.A1 is forged document.
PW.2 is the scribe of Ex.A1. His evidence is that the respondent-plaintiff and appellant-defendant have approached him to draft the Agreement for Rs.10,00,000/- on 09.04.2010 and he scribed the same. As per Ex.A1, appellant-defendant agreed to pay interest @ 2% per month and on failure to pay the amount on or before 31.03.2013, he will register the house in the name of the respondent-plaintiff. In his cross-examination, he stated that in his presence, three attestors signed and that the appellant-defendant put his signature on right side bottom. He denied the suggestion that the signature on Ex.A1 is forged by the plaintiff.
PW.3 is one of the attestor. He supported the case of the plaintiff with that of the evidence of PW.2 and no incriminating material is elicited from his cross-examination.
Appellant’s counsel has taken the point of Limitation for the first time in the Appeal.
Section 3 of Limitation Act, 1963 is as under:
Bar of limitation:-
(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.
The Trial Court has discussed the evidence adduced by the respondent-plaintiff coupled with Exs.A1, A3 and A4, rejected the prayer i.e., for specific performance of agreement, dated 09.04.2010 with an observation that “Though the first relief prayed by the plaintiff (respondent herein) is to direct the defendant to register the schedule property in his name, the same cannot be considered for a simple reason even according to the plaintiff (respondent herein) the defendant (appellant herein) yet to obtain registered sale deed for the schedule property from his so called vendors namely Khasim Shareef and Yakub Shareef in terms of Agreement of Sale obtained by him dated 11.11.2009. Since the defendant (appellant herein) is yet to acquire title to the schedule property, this Court is of the opinion, it cannot direct him to execute registered sale deed in favour of the plaintiff (respondent herein) in terms of Ex.A1. In view of the same, the first relief sought for by the plaintiff (respondent herein) to direct the defendant (appellant herein) to execute registered sale deed in his favour for the schedule property cannot be ordered”.
In so far as the alternative relief of refund in the plaint is concerned, the Trial Court observed that the plaintiff (respondent herein) could prove that he advanced loan of Rs.10,00,000/- to the defendant (appellant herein) on 09.04.2010, this Court is of the
opinion that he is entitled to the alternative relief of refund of the amount with interest, accordingly, these issues are settled in favour of the plaintiff and against the defendant”.
The Trial Court has framed four issues basing on the pleadings of the parties and thought it fit that the issues are interlinked with each other and decided them at one stretch. I find no illegality on the said aspect.
It is worth mentioning that the Trial Court has decreed the suit for a sum of Rs.17,14,667/- with subsequent interest @ 6% per annum from the date of suit till realization on the principle amount of Rs.10,00,000/-. The amount claimed by the plaintiff as stated in the plaint is Rs.23,70,333/- which is shown at Para No.3.2 (supra). There is no reason given by the Trial Court how it has arrived at Rs.17,14,667/-.
Appellant’s counsel has taken the ground of Limitation in the Appeal that the suit is barred by limitation. The Legal maxim “VIGILANTIBUS NON DORMIENTIBUS JURA SUBVENIUNT” means that “the law helps those who are vigilant and not those who sleep on their rights”. This principle also supports the idea that while it’s best to raise limitation issue early, they can still be addressed later if the grounds are clear. The facts necessary to determine the limitation period are evident from the record of the case.
Appellant has taken a ground in the Appeal with regard to Tax Deduction Source, the said defence is not the defense in the written statement filed by him, hence, the ground taken by the appellant with regard to TDS mechanism is negatived.
Since the Trial Court has not discussed in detail with regard to arrival of Rs.17,14,667/-, this Court feels that it is a fit case to remand the matter on the above said point and with a direction to frame issue of limitation raised by the appellant, take evidence of the parties if required and hear the matter a fresh and dispose it off at the earliest.
In the result, appeal is allowed, the judgment and decree passed by the learned I Additional District and Sessions Judge at Warangal, dated 23.10.2019 in O.S.No.157 of 2015, is set aside and the matter is remanded back to the Trial Court as indicated in the preceding Paras of the judgment.
Consequently, Miscellaneous application/s if any, are closed.
There shall be no order as to costs.