R.Subbu v. B.S.Kolandaisamy

defendant on 12.10.1987 and the defendant has chosen to make falseallegation in the reply notice dated 15.10.1987. Hence, the suit filedfor specific performance of the agreement of sale dated 28.02.1986. 3. The defence raised by the defendant was that in January 1986 heapproached the plaintiff for a loan of Rs.1,50,000/-. The plaintiff hasgiven an amount of Rs.50,000/- initially and obtained a promissory notefrom the defendant. Thereafter, on 28.02.1986 the plaintiff has advancedanother amount of Rs.1,00,000/- and gave a discharge for earlierpromissory note for Rs.50,000/- by treating the total amount ofRs.1,50,000/- as a loan. It is also the further case of the defendantthat the interest for the said amount of Rs.1,50,000/- at the rate ofRs.1.60 per hundred per month was calculated, which was Rs.2,400/- and theplaintiff has permitted the defendant to repay the amount in 36installments at the rate of Rs.4,166.75 towards principle and Rs.2,400/-as interest. In fact the said interest was arrived at 36 percent perannum. Not satisfied with the same he has also obtained documentsrelating to the suit property from the defendant as a further security andit was for that purpose the agreement was obtained. According to thedefendant, even though an agreement was obtained by the plaintiff on28.02.1986 which was not intended for the purpose of sale of the property,it was only a security for the purpose of repayment of loan ofRs.1,50,000/- and the defendant has never intended to sell his property atall. 4. It is also the case of the defendant that in accordance with loantransaction he has paid 10 installments towards the principle as well asinterest, even though the plaintiff has passed on receipts only in respectof principle amount in the form of account. It is the case of thedefendant that when there were arrears of two installments in respect ofrepayment as well as loan transaction the plaintiff with the malafideintention, has got back his receipts stating that he would return it afterconsulting his lawyer, which has not been returned so far. It is the caseof the defendant that even in the reply notice dated 15.10.1987 thedefendant has only requested time for repayment of the amount in one lumpsum. According to the defendant, in respect of the loan amount ofRs.1,50,000/- he has paid so far 65,677.50 to the plaintiff. Therefore,it is the case of the defendant that the agreement is not intended for thepurpose of sale of the property and it was only given towards security forthe repayment of loan of Rs.1,50,000/-. 5. The learned Trial Judge has framed various issues including, as towhether the plaintiff was entitled for relief of the specific performance,as to whether the plaintiff was always ready and willing to perform hispart of obligation and as to whether the defendant has only executed theagreement as a security for repayment of loan. On examination of theplaintiff as a witness on his side and considering Ex.A.1 to A.6 andconsidering the evidence of three witnesses examined on the side of thedefendant including the defendant and on appreciation of Exs.B.1 to B.25, https://hcservices.ecourts.gov.in/hcservices/ the Trial Court has decreed the suit on finding that the plaintiff isentitled for the relief of specific performance and Ex.A.1 agreement ofsale dated 28.02.1986 stood proved and also holding that Xerox copies ofthe receipts Exs.B.3 to B.10 are not admissible evidence under Section 65(a) of the Indian Evidence Act, and also holding that when once thedefendant witnesses have admitted that only after knowing the contents ofEx.A.1 it was signed, no oral evidence can be produced against the writtenagreement marked as Ex.A.1 as per Section 92 of the Indian Evidence Act,it was held that Ex.A.1 was not given as a security for the loantransaction and on that basis the suit was decreed. 6. It was as against the said judgement of the Trial Court, thedefendant has filed the present appeal in A.S.No.195 of 1993. Earlier whenthe appeal was heard a learned Single Judge of this Court after hearingthe arguments of both the counsels for appellant as well as the respondentand also appreciating the evidence apart from considering every aspect ofthe judgement of the Trial Court and having come to the conclusion thatEx.A.1 has been proved to be an agreement of sale, however, holding thateven though Section 92 of the Indian Evidence Act is not a bar for thedefendant in disproving the real nature of Ex.A.1, has however relied uponSection 92 and held that the defendant has not successfully discharged theburden of disproving Ex.A.1 and in that view of the matter decided thatthe defendant has not proved that the plaintiff is a money lender andEx.A.1 was taken as a part of money lending business and therefore,confirmed the judgement of the Trial Court by dismissing the appeal filedby the defendant. 7. Aggrieved by the said judgement in the said appeal dated07.02.1997 the defendant has filed a Letters Patent Appeal in L.P.A.No.56of 1997. The Division Bench of this Court while disposing of the saidLetters Patent Appeal, by a judgement dated 11.07.2001 allowed the appealby setting aside the judgement and decree in A.S.No.195 of 1993 passed bythis Court dated 07.02.1997 on the basis that pending First Appeal thedefendant / appellant has filed an application under Order 41 Rule 27 Codeof Civil Procedure in C.M.P.No.515 of 1997 to receive five additionaldocuments to substantiate his contention that the plaintiff in the suitwas a financier and even though that C.M.P. was stated to have beendismissed by a separate order by a learned Single Judge, the DivisionBench having found,"when the appellant has filed number of documents it has to befound out whether they are necessary and relevant to decidethe controversy between the parties. Once it is found if theyare relevant and necessary then necessarily the parties shouldbe given an opportunity to let in evidence for the purpose ofmarking the documents and opportunity also should be given tothe other side for cross examination. This has not beenconsidered by the Appellate Court" and having come to the conclusion that additional documents filed onbehalf of the defendant will have bearing on the case, has remanded thematter back to this Court with a direction to send the additional https://hcservices.ecourts.gov.in/hcservices/ documents to the Trial Court and to forward its finding after givingopportunity to the parties to let in evidence relating to additionaldocuments and then decide the First Appeal afresh. The operative portionof the judgement of the Division in L.P.A.No.56 of 1997 is as follows: "12. For the reasons stated above the Letters Patent Appealis allowed and the judgement and decree of the Appellate Courtare set aside and the matter is remitted back to the AppellateCourt for disposal according to law in the light of theobservations. The learned Appellate Judge is requested tosend the additional documents to the Trial Court andopportunity is also given to both sides to let in evidencerelating to the additional documents and finding has to besent to the Appellate Court in a period of two months. Afterreceiving the finding from the trial court, we request thelearned judge to dispose of the appeal as early as possible.Consequently, C.M.Ps. 5696/97, 1273, 1274, 10639, 14260 and19605 of 2000 and 3974 of 2001 are closed."8. It is pursuant to the direction given by the Division Bench, thematter was sent to the Trial Court which has given opportunity to both theplaintiff and defendant and marked the additional documents as Exs.B26 toB.31 and permitted the examination of P.W.1 and P.W.2 on the side of theplaintiff and D.W.1 and D.W.5 one Kuruvammal and after appreciation ofevidence, sent the report stating that in spite of the filing of theadditional documents the defendant has not proved that the plaintiff iseither a money lender or financier and the report has been sent. It is tothis report, the appellant in this appeal who is the defendant in the suithas filed objections stating that the cumulative effect of Exs.B.26 toB.31 should have been considered in the light of Ex.B.1 to B.11 and B.12to B.24 already marked before the Trial Court to arrived at a conclusionthat Ex.A.1 was given as a security for the loan transaction. 9. Mr.S.V.Jayaraman, learned Senior Counsel appearing for theappellant would submit that the contents of Ex.A.1 stating that in respectof the balance amount of Rs.50,000/- the same shall be paid in a threeyears period is an unusual stipulation and if Ex.A.1 was really intendedfor the purpose of sale of property such a long period should not havebeen given and therefore, it should be presumed that it is only a moneytransaction. According to the learned Senior Counsel, the plaintiff whorelied upon Ex.A.1 has not chosen to explain the reason for three years.Even though it is true that the plaintiff while giving evidence as P.W.1has stated that the three years period was given to enable the defendantto vacate the premises and hand over possession by shifting his residenceto some other place, Ex.A.1 does not state anything about the said factand therefore, it is only a subsequent development by the plaintiff duringexamining as a witness, which cannot be permitted. He would furthersubmit that if really the contention of the plaintiff is accepted thatthree years period is given to enable the defendant to shift the placefrom the suit property, the three years period which should commence from https://hcservices.ecourts.gov.in/hcservices/

28.02.1986, which is the date of Ex.A.1 should be extended upto27.02.1989, while so what is the necessity for the plaintiff to give thelegal notice even before the expiry of three years, namely, on 08.10.1987itself which is marked as Ex.A.2. Therefore, according to him the threeyears period is not for the purpose of shifting the place by the defendantbut it is to enable the defendant to pay the 36 installments from28.02.1986 and the purpose of notice Ex.A.2 itself is due to the reasonthat there was a default committed by the defendant for certain period inrespect of repayment of interest and principal and it was due to thatreason Ex.A.2 notice was given. 10. He would further submit that the finding of the Trial Court byrejecting the Xerox copies of the receipts for payment of variousinstallments marked as Ex.B.3 to B.10 on the basis that the admissibilityof secondary evidence has not been proved is not correct especially in thecircumstance that the additional documents marked on remand as Ex.B.26 toB.31 would prove that the plaintiff is in the habit of advancing loan andtherefore, it should be taken that the defendant has proved the reason fornot producing the originals of Ex.B.3 to B.10, which was explained by thedefendant in the written statement as well as the in the evidence that theplaintiff has taken the receipts which are in the form of note bookentries promising to return after consulting his lawyer which he hasevaded. Therefore, according to the learned Senior Counsel, theexplanation offered should have been accepted for the purpose ofconsidering Ex.B.3 to B.10 in the light of Exs.B.26 to B.31. 11. The learned Senior Counsel would also submit that the three yearsperiod mentioned under Ex.A.1 which stood not explained, was notconsidered by the Division Bench while disposing of the L.P.A. since theappeal was disposed on the sole ground that the additional documents werenot considered. He would also state that when Ex.A.1 contains thesignature of nine attestors, according to him if really the defendant hasintended to sell the property and he was in dire need money, he would havegot entire money from the plaintiff and not chosen to wait for three yearsby stipulating the same as under Ex.A.1. He would further submit thatthree persons who have signed as witnesses in Ex.A.1 have deposed infavour of the defendant as D.W.2 to D.W.4. He would further submit thatthe Trial Court has not properly appreciated Ex.B.11 to B.35 which areeither the ledgers for various years 1985, 1986 and 1987 etc. wherein theamount of Rs.1,50,000/- received by the defendant from the plaintiff hasbeen consistently entered as a loan apart from the various amounts ofprinciple as well as interest paid from April 1986 till January 1987 for10 months at the rate of Rs.4,166.75 towards the principle and Rs.2,400towards interest paid by the defendant to the plaintiff and these entriesin the ledgers have been made much before the filing of the suit which wasfiled on 10.03.1988 and therefore, there is no reason to disbelieve thesaid documents. https://hcservices.ecourts.gov.in/hcservices/

12. Per contra, Mr.T.V.Ramanujun, learned Senior Counsel appearingfor the respondent / plaintiff would submit that the defendant himself hasadmitted that it was knowing the contents of Ex.A.1 only he has signed.He would submit that even earlier before the remand this Court hasconsidered in detail about Ex.A.1, which is a registered agreement forsale and has found that the defendant/appellant has failed to prove thatthe plaintiff was a money lender and based on the finding given by theTrial Court on remand on appreciation of additional documents Ex.B.26 toB.31 clearly arriving at a conclusion that they are not sufficient toconclude that the plaintiff was a money lender there is no necessity tore-adjudicate the issue. 13. I have considered the submissions made by the learned SeniorCounsel for the appellant as also the learned Senior Counsel for therespondent and perused the entire documents including the additionaldocuments marked after remand. 14. At the out set the Division Bench in L.P.A.No.56 of 1997 dated11.07.2001, even though has remanded the matter to this Court for thepurpose of referring to the Trial Court for marking additional documentsby giving opportunity to both the parties, it remains the fact thatearlier judgement passed by this Court in this Appeal dated 07.02.1997 wasset aside and directed this Court to dispose of the appeal after receivingthe finding from the Trial Court on remand. Now that the finding by theTrial Court has been received it is for this Court to independentlyconsider the appeal on merits by considering the findings of the TrialCourt on various issues and therefore, it is not correct as submitted bythe learned Senior Counsel for the respondent that even after receivingthe findings of the additional documents, it is not possible for thisCourt to readjudicate on the issue. 15. In the light of the above said reason and on the basis of thedictum laid down about the extent of powers of the First Appellate Courtas pointed out in the judgement of the English Court in Steponey BoroughCouncil Vs. Joffee and others 1949(1) All English Reports 256 at PageNo.258, stating that it is to interfere when the judgement of the Courtbelow is wrong not merely when it is found that the said judgement was notright, I proceed to analyse. The wordings of the Court in the abovejudgement are:"it is constantly said that the function of the court ofappeal is to exercise its powers were it is satisfied that thejudgement below is wrong not merely because it is notsatisfied that the judgement was right ....."16. In the judgement rendered in the The Dollar Company, Madras Vs.Collector of Madras reported in 1975(II) SCC 730 it was held by the ApexCourt that it is not merely because wherein it is possible to reach adifferent conclusion but in cases where the judgement of the Court belowis not with reason or arrived at by a wrong application of the principle https://hcservices.ecourts.gov.in/hcservices/ and ultimately finding that the decision is wrong the Appellate Court caninterfere. The operative portion are as follows: "4. At the outset, we must warn ourselves of the broadguideline that in an appeal from an award grantingcompensation this Court will not interfere unless there issomething to show not merely that on the balance of evidenceit is possible to reach a different conclusion but that thejudgement cannot be supported by reason of a wrong applicationof principle or because some important point affectingvaluation has been overlooked or misapplied. Moreover, thereis a prudent condition to which the appellate power, generallyspeaking, is subject. A court of appeal interferes not whenthe judgment under attack is not right but only when it isshown to be wrong. These twin principles serve as backdrop toour approach to the rival contentions in the case."17. In yet another judgement as referred to by Mr.S.V.Jayaraman,rendered in S.V.R.Mudaliar (dead) by LRs. and others Vs. Rajabu F.Buhari(Mrs) (dead) By LRs. and others reported in 1995(4) SCC 15, the SupremeCourt has held that the Appellate Court while considering the reasoninggiven by the court below must come close quarters with the judgement whenit refuse and reverses the finding, in the following words: "15. There is no need to pursue the legal principle, as wehave no doubt in our mind that before reversing a finding offact, the appellate court has to bear in mind the reasonsascribed by the trial court. This view of ours finds supportfrom what was stated by the Privy Council in Rani HemantaKumari Debi Vs. Maharaja Jagadindra Nath Roy Bahadur wherein,while regarding the appellate judgement of the High Court ofjudicature at Fort William as "careful and able", it wasstated that it did not "come to close quarters with thejudgement which it reviews, and indeed never discusses or evenalludes to the reasoning of the Subordinate Judge"."18. The Code of Civil Procedure also contemplates that a decree ofthe Court below can be reversed or modified for any error or irregularityonly if it affects the merits and jurisdiction as it is seen under Section99 which runs as follows: "99. No decree to be reversed or modified for error orirregularity not affecting merits or jurisdiction.- No decreeshall be reversed or substantially varied, nor shall any casebe remanded, in appeal on account of any misjoinder (or non-joinder) of parties or causes of action or any error, defector irregularity in any proceedings in the suit, not affectingthe merits of the case or the jurisdiction of the Court:Provided that nothing in this section shall apply to non- https://hcservices.ecourts.gov.in/hcservices/ joinder of a necessary party."19. Therefore, it is clear that when the finding of fact has beenarrived at by the court below with reasons and appreciation of evidencewhich are not wrong and not affecting the merit of the case, to thatextent the finding of the court below is final and the power of review bythe Appellate Court is restricted. But if it decides to review or reverseit has to come to close quarters with the judgement which it seeks toreview. It is on the basis of the said legal background and on goingthrough the judgement of the Trial Court the following points arise fordetermination in this appeal 1) Whether the defendant is entitled to disprove the contents of thewritten registered agreement of sale Ex.A.1 to say that it was notintended as an agreement of sale but only a loan transaction and whethersuch contention by oral evidence is barred by Section 91 and 92 of theIndian Evidence Act. 2) Whether the defendant has proved that Ex.A.1 is really a loantransaction3) Whether the judgement of the Trial Court is correct and there are nogrounds to interfere. 20. As far as the first point about the Section 92 of the IndianEvidence Act, the Trial Court in the judgement impugned has held thatEx.A.1 is not only a registered agreement of sale but the defendant asD.W.1 has admittedly the execution of Ex.A.1 knowing the contents.Further the Trial Court has referred to a release deed dated 19.02.1986under which the defendant’s sister Palaniammal has executed a registereddeed of release in favour of the defendant based on a compromise enteredin E.P.No.3 of 1984 in O.S.No.530 of 1980 on the file of Sub Court Erodebased on which the defendant and his sister Palaniammal have jointlyobtained a deed of sale from the said Court on 24.04.1985 marked as Ex.A.6and both the documents have been handed over by the defendant to theplaintiff at the time of execution of Ex.A.1 and held that Ex.A.1 was notexecuted by the defendant as a security towards the loan transaction. Itis on that basis the Trial Court has relied upon Section 92 of the IndianEvidence Act, and rejected the contention of the defendant on the basisthat, when Ex.A.1 is a written and registered document no oral evidencecontrary to that can be adduced to show that the terms of the contractbetween the parties was entered with a different intention. It is in thiscontext relevant to point out Section 92 of the Indian Evidence Act: "92. Exclusion of evidence of oral agreement- When the termsof any such contract, grant or other disposition of property,or any matter required by law to be reduced to the form of adocument, have been proved according to the last section, noevidence of any oral agreement or statement shall be admitted,as between the parties to any such instrument or theirrepresentatives in interest, for the purpose of contradicting,varying, adding to, or subtracting from, its terms:" https://hcservices.ecourts.gov.in/hcservices/

21. In the written statement filed by the defendant, the defendanthas clearly stated that he never executed the suit agreement intending itto be an agreement of sale and after advancing a total loan amount ofRs.1,50,000/- in two installments out of which the second installment wason 28.02.1986 the interest for the said amount per hundred per month atthe rate of 1.60 paise was arrived at Rs.2,400/- and the repayment of thesaid amount of Rs.1,50,000/- in 36 monthly installments at 36 percent perannum, the repayment was arrived at Rs.4,166.75 per month towardsprinciple and total towards principle and interest an amount ofRs.6,566.75 towards the repayment of the said amount Rs.1,50,000/-. Itwas only on that basis three years time for repayment was mentioned inEx.A.1. By narrating all the said facts the defendant has specificallystated in paragraph 7 of the written statement that it was only a loantransaction, as follows: "7. The defendant, therefore, submits that there is only therelationship of creditor and debtor between the parties, andthe suit transaction is only a loan. The defendant has thusso far paid a total sum of Rs.65,677.50 to the plaintiff.Even today he is making hectic attempts that the suit propertywas worth about 5 lakhs as on January 1986. Hence it couldnot be imagined that the defendant came forward to sell thesuit property for a sum of Rs.2 Lakhs. The defendant humblysubmits that taking into consideration of the Debt Relief Act,the financiers generally go for taking agreements of sale,empty pronotes etc., from the debtors. It is in consonancewith the existing circumstances that the plaintiff took theimpugned sale agreement from the defendant to enforce therepayment of debt as stipulated. The agreement of sale cannotbe treated as one contracting to sell, and as such can not beenforced under law."22. Therefore, even assuming that the defendant has admitted inevidence that only by knowing the contents of Ex.A.1 he has signed, it hasbeen the defendant’s contention in the pleading that the intention was notfor the purpose of execution agreement for sale of the suit property butonly for repayment of loan amount in a period of three years at 36installments and it was with that idea the original document Ex.A.5 andA.6 were handed over by the defendant to the plaintiff. Therefore, it isclear that for the purpose of establishing his defense of loan transactionthe defendant is not placing reliance on Ex.A.1 and his categoric case inthe pleading is that Ex.A.1 is invalid. Inasmuch as the defendant is notplacing reliance on Ex.A.1 he cannot be prevented from disproving thecontents. That was the decision by the Supreme Court in Smt.Gangabai Vs.Smt.Chhabubai reported in 1982(1) SCC 4 as pointed out by this Courtearlier when the appeal was disposed by relying upon the followingparagraph: https://hcservices.ecourts.gov.in/hcservices/ "The bar imposed by Section 92(1) applies only when a partyseeks to reply upon the document embodying the terms of thetransaction and not when the case of a party is that thetransaction recorded in the document was never intended:"to be acted upon at all between the parties and that thedocument is a sham. Such a question arises when the partyasserts that there was a different transaction altogether andwhat is recorded in that document was intended to be of noconsequence whatever. For that purpose oral evidence isadmissible to show that the document executed was neverintended to operate as an agreement but that some otheragreement, altogether not recorded in the document was enteredinto between the parties."23. Therefore, it is clear that there is no bar on the part of thedefendant while disproving the document Ex.A.1 under Section 92 of theIndian Evidence Act. The question that is to be decided is as to whether,while taking such steps to disprove the contents of Ex.A.1 as that of loantransaction instead of the agreement of sale has contained in the saidEx.A.1 to what extent he has succeeded and that is the crux of the issueinvolved in this case. 24. A reference to the written statement filed by the defendant showsthat the plaintiff is the moneylender and when he requested the plaintiffin January 1986 to take a loan of Rs.1,50,000/- initially he has paidRs.50,000/- on a promissory note and thereafter on 28.02.1986 anotheramount of Rs.1,00,000/- was paid in discharge of the promissory notetotally constituting a loan amount of Rs.1,50,000/-. However, whilegiving evidence the defendant as D.W.1 has deposed that 10 days before theexecution of Ex.A.10 he has purchased his sister’s share in the suitproperty on 19.02.1986 and in that regard when he approached the brokersfor a loan of Rs.1,50,000/- broker Ganesan and Kandasamy have told himthat the plaintiff will lend money and it was based on that the plaintiffhas paid Rs.40,000/- on 19.02.1986 based on which he has obtained the samefrom his sister on 28.02.1986 at the same time he has receivedRs.1,10,000/- from the plaintiff and it was also decided that interest atthe rate of Rs.1.60 shall be paid at Rs.100 per month and the total amountshall be repaid in 36 monthly installments at the rate of Rs.4,166.75towards principle and Rs.2,400 towards interest. 25. To substantiate his contention the defendant has examined threewitnesses, namely, D.2, D.3 and D.4 who have admittedly signed aswitnesses under Ex.A.1. All the said three witnesses have alsoconsistently spoken that the said amount of Rs.1,50,000/- was paid by theplaintiff to the defendant in two installments, namely, Rs.40,000/- paidfirst and then balance amount of Rs.1,10,000/- subsequently and that wasonly a loan transaction, agreed to be returned in 36 monthly installments.Even though the learned Trial Judge has rejected the evidence of D.W.2 toD.W.4 as not reliable witnesses, the reasons given by the learned Trial https://hcservices.ecourts.gov.in/hcservices/ Judge for not accepting their evidence are not based on the real fact,which will be evidenced by referring to the deposition of the saidwitnesses. In respect of the veracity of the evidence of D.W.2 the TrialCourt has not chosen to rely upon his evidence on the basis that it wasthe defendant's stand that the said D.W.2 is related to the defendant. 26. On the other hand, it remains the fact that it is not in theevidence of D.W.2 that he is related to the defendant. Likewise in respectof the next witness examined on the side of the defendant as D.W.3 who wasalso a witness in Ex.A.1 the Trial Court has simply omitted the evidenceon the ground that it is the plaintiff's case that D.W.3 is a close friendand he wanted to given his daughter in marriage. On the other hand, areference to the evidence D.W.2 shows that even though it is admitted thathe knows the defendant, there is nothing else, which can be taken from hisevidence against the defendant. On the other hand, in respect of theborrowal of loan amount he has also categorically deposed. Likewise, inrespect of the evidence of D.W.4, the Trial Court has rejected hisevidence. But a reference to the evidence of D.W.4 also shows that whatwas received by the defendant from the plaintiff was by way of loan in twoinstallments, namely, Rs.40,000/- in the first installment andRs.1,10,000/- in the second installments. Therefore, it is clear that theTrial Court has not taken the evidence of the witnesses examined on theside of the defendant who are not merely witnesses who have spoken tosubstantiate the case of the defendant that what was received by him fromthe plaintiff was by way of a loan transaction but they also admittedlystood as witnesses under Ex.A.1 which was the basis on which the plaintiffhas filed his suit. 27. The Trial Court has taken the inconsistency from the writtenstatement wherein he has stated that in the first instance he has receivedRs.50,000/- and in the second instance Rs.1,00,000/- from the plaintiffwhile in the evidence all the four witnesses have stated that it wasRs.40,000/- and Rs.1,10,000/- and therefore, there is a contradiction. Itis also relevant to point out at this juncture that when the plaintiff hasgiven notice on 08.10.1987 marked as Ex.A.2. The defendant in his replynotice dated 15.10.1987 marked Ex.A.4. At the earliest point of time hehas stated that the receipt of amount of Rs.1,50,000/- was towardsborrowal and not with an intention to sell his property. In the saidnotice the defendant has stated as follows: "My client therefore state that he never executed anyagreement of sale as such, and the impugned document if provedto be an agreement of sale could be only a transaction tosecure due payment of instalment by my client. The impugnedagreement being a contract interovom it is void under law andcould not be enforced."28. When that was the categoric stand except producing Ex.A.1 andexamining himself as P.W.1, the plaintiff has not taken any steps to prove https://hcservices.ecourts.gov.in/hcservices/ that there was an agreement to sell. Merely relying upon the possessionof original document Ex.A.5 and A.6 which is in fact admitted by D.W.1himself that he has handed over to the plaintiff as a security for therepayment of loan, is itself not sufficient to prove the contents ofEx.A.1 as an agreement of sale especially when the same has beenconsistently denied by the defendant. In respect of Ex.B.3 to B.10 whichare the Xerox copies of the receipts stated to have been signed by theplaintiff for receiving installments, it has been the case of thedefendant even at the earliest point of time when a reply notice was givenunder Ex.A.4 dated 15.10.1987 that the originals of those receipts havebeen taken away by the plaintiff in a cunning manner and failed to returnthe same and it was in those circumstances the Xerox copies came to befiled. It was also the contents in the written statement in paragraph 6as follows: "6. During the month of March 1986, when the defendant wasalready in arrears for two instalments, requested theplaintiff further time for payment, he cunningly got back thereceipt book stating that he would consult his lawyer andreturn the same while making further payment."29. A reference to the signatures found in Ex.B.3 to B.10 certainlyshows the resemblance of the signature of the plaintiff, as available inthe affidavit filed in these appeals, even though the plaintiff as P.W.1would simply deny having singed such receipts marked as Ex.B.3 to B.10.In such circumstances the learned Trial Judge by considering that thedefendant has not chosen to state in the written statement that he washaving the Xerox copies of the receipts with him, and rejected thosedocuments on basis that the Xerox copy cannot be taken into consideration.It is also held that it is not proved by the defendant that the originalof those Ex.B.3 to B.10 are available with the plaintiff. When thedefendant in order to substantiate the said payments stated to have beenmade by him to the plaintiff, has produced the extract of his accountbooks marked as Ex.B.11 to B.24, the Trial Court has rejected the same onthe basis that the contents therein have not been proved, to have beenmaintained in usual course which is a clear finding of fact with properreasons. It is in these circumstances, the additional evidence producedby the parties after the remand by the Division Bench, are relevant to beconsidered to find out as to whether the defendant has successfully provedhis defense that the suit transaction was only a money transaction. Theadditional documents marked as Ex.B.26 to B.29 of course, as found by theTrial Court on remand has not shown any support to the contention of thedefendant. If at all there are some relevancy it relates to Ex.B.30 andB.31 both of which are Xerox copies and the originals have not beensummoned from the person who is admittedly having possession. 30. A reference to Ex.A.30 which was sought to be substantiated bythe evidence of one of the parties to the said documents, namely,Kuruvammal examined as an additional witness on the side of the defendant https://hcservices.ecourts.gov.in/hcservices/ as D.W.5 after remand, shows that Kuruvammal and the plaintiff in the suithave entered an agreement like that of Ex.A.1 for sale of her property.That was on 20.07.1984 in which having received Rs.10,000/- there was asale agreement entered under which D.W.5 Kuruvamal has agreed to sell herproperty in favour of the plaintiff. Ex.B.31 which is also a Xerox copyreceipt which contains the signature of the plaintiff shows that inasmuchas D.W.5 Kuruvammal has returned back the amount of Rs.10,000/- the saidreceipt has been given in full quit of the entire amount as per theagreement of sale. Even though the said Ex.B.30 and B.31 show somesupport in favour of the defendant regarding his contention that Ex.A.1was not an agreement but it was only a loan transaction, unfortunately,D.W.5 is not able to produce the original or taken steps to procure thesame and in view of the same as correctly found by the Trial Court by wayof report after remand, I am not able to be convinced that the additionalevidence is in support of the defendant. 31. In view of the above said facts, even though this Court is ableto find out that due to the above said clouds which I have narrated above,the judgement of the Trial Court is not correct but the same cannot bebranded as a wrong judgement without any reason. As found out by theTrial Court even in respect of Ex.B.3 to B.10 nothing prevented thedefendant who has chosen to state in the written statement that theoriginals of the said receipts were taken away by the plaintiff, fromgiving notice to the plaintiff to produce the originals, which has notbeen done. As far as Ex.B.11 to B.25 are concerned since differentamounts have been credited in the account of plaintiff at different pointof time, which does not correspond tot he claim of the defendant, onecannot safely come to the conclusion that the said documents aresufficient to through out the genuiness of Ex.A.1 especially in thecircumstance that the Trial Court has considered each and every one of thedocument filed on the side of the defendant and given reason for thepurpose of rejecting the same which I do not think can be termed as eitherperverse or unreasonable. 32. Now turning to the next contention raised by Mr.S.V.Jayaraman,the learned Senior Counsel appearing for the appellant that in anagreement for sale giving of three years time for performance is unusual,I am of the considered view that there is no bar for the parties to fixsuch a long time. As it is seen on the facts and circumstances of thiscase that in spite of the fact that three years time was given, theplaintiff has chosen to give a legal notice on 08.10.1987 itself and thatcannot be a safe ground to come to the conclusion again to declare thatEx.A.1 document is invalid, for, as correctly found by the Trial Court thedefendant has not taken any steps to prove that Ex.A.1 document as notintended to be executed as a sale transaction and there are no credibleevidence on the side of the defendant to come to a safe conclusion thatEx.A.1 is only a money transaction, especially in the circumstance that itis not only writing but is a registered document which is certainly morecreditable than any other document. https://hcservices.ecourts.gov.in/hcservices/

33. In view of the above said facts and circumstances of the casestated above, the evaluation of reasoning given by the Trial Court is notunreasonable and there is no reason to interfere with the judgement of theTrial Court. In the result the appeal is dismissed and considering thefacts and circumstances there will be no order as to cost. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.nbjTo1. The Additional Sub Court, Erode.2. The Record Keeper, VR Section, High Court, Madras.+ 1 CC To Mr. V.Pichiya, Advocate SR NO.28593+ 1 CC To Mr. V.G.Suresh Kumar, Advocate SR NO.29393Appeal Suit No.195 of 1993ssk[co]Gp/15.5.