R. Subramanian JUDGMENT
R. Subramanian, J.
1. The plaintiff whose suit for specific performance accompanied by an alternative prayer for refund of advance amount was decreed in part granting the prayer for refund of advance amount alone, that is for a sum of 2,00,000/- only as against the claim of Rs. 5,50,000/-, is the appellant.
2. According to the plaintiff, the defendant offered to sell his property for a sum of Rs. 3,50,000 and a registered agreement was entered into on 12.11.2001. On the date of agreement a sum of Rs. 3,00,000 was paid as advance and 15 months time was fixed for payment of the balance amount of Rs. 50,000/-. Just about the time from the period fixed under the agreement was to expire, at the instance of the defendant, a second agreement was entered into on 10.02.2003, wherein the sale price was increased to Rs. 5,50,000/- and the plaintiff paid further advance Rs. 2,00,000/-. Thus making advance Rs. 5,00,000/-, the balance sale consideration remained at Rs. 50,000/-. A period of 12 months was fixed for performance for the second agreement dated 10.02.2003. Again on 08.03.2004, according to the plaintiff, at the instance of the defendant, the sale price was increased to 6,00,000/- and further advance Rs. 50,000/- was paid. The period for performance was fixed as 11 months from 08.03.2004. Therefore, according to the plaintiff, the total advance paid is Rs. 5,50,000/- and the balance payable is Rs. 50,000/-. Contending that he has always been ready and willing to perform his part of contract to have the sale deed executed, the plaintiff has claimed specific performance or the alternative prayer for refund of advance amount. The suit was filed on 28.12.2004.
3. The defendant resisted the suit contending that under all the three agreements, so far, the plaintiff had advanced a sum of Rs. 2,00,000/- to him. The plaintiff charges interest at 60% per annum. The plaintiff had worked out the amount that would fall due on the last date fixed for performance under the agreement with interest at 60% per annum on Rs. 2,00,000/- and the same has been shown as advance paid under the agreement. It reflects the amount that will be due, if 60% is added to the principal sum of Rs. 2,00,000/-. It was further contended by the defendant that there is no question of the plaintiff being ready and willing to perform the part of his contract, as there was no agreement for sale of the property. All the three agreements were brought about only as security for the loan taken by the defendant from the plaintiff.
4. On a consideration of the above pleadings, the learned Principal District Judge, Cuddalore, who tried the suit, framed the following issues:
"1) Whether the plaintiff is entitled to the relief of specific performance?
2) Whether the plaintiff is entitled to the alternative relief of refund of amount as prayed for?
3) To what other reliefs, the plaintiff is entitled to?"
PW.1 to PW6 were examined on the side of the plaintiff and Exs. A1 to A3 were marked. The defendant examined himself as DW1 and marked Exs. B1 to B5.
5. On a consideration of oral and documentary evidence as well as the law relating to the plea of the defendant that the agreements were not intended to be acted upon as agreements of sale, but were executed only as a security for loan transaction. The learned Principal District Judge accepted the case of the defendant in toto and rejected the relief of specific performance. The learned Principal District Judge, Cuddalore however granted the decree for refund of a sum of Rs. 2,00,000/- with subsequent interest at 12% per annum from 12.11.2001 till date of realization.
6. Aggrieved by the said judgement and decree, the plaintiff has preferred the above appeal.
7. I have heard Mr. R. Gururaj, learned counsel appearing for the appellant and Mr. N. Suresh, the learned counsel appearing for the respondent. The following points emerge for determination in the appeal:
"1) Whether the plaintiff could be held to be entitled to a decree for specific performance?
2) Whether the plaintiff is entitled to a decree for refund of advance? If so what is the quantum?
3) To what other relief, the plai........