S. Nagamuthu JUDGMENT
S. Nagamuthu, J.
1. The plaintiff in O.S. No. 384 of 2004 on the file of the learned District Munsif, Dhara-puram is the appellant herein. The respondent is the sole plaintiff in the suit. The said suit was filed by the plaintiff seeking a decree for specific performance and to direct the defendant to execute a sale deed in respect of the suit property in favour of the plaintiff in terms of the sale agreement dated 13.05.2002 executed bilaterally between the plaintiff and the defendant. The suit was decreed as prayed for by the trial Court by decree and judgment dated 17.10.2006. As against the same, the defendant filed an appeal in A.S. No. 56 of 2007 on the file of the learned Fast Track cum District Munsif, Dharapuram. By decree and judgment dated 24.10.2008, the first appellate Court allowed the appeal and set aside the decree and judgment of the trial Court and dismissed the suit. As against the same, the plaintiff has come up with this second appeal. During the pendency of the second appeal, the appellant has filed M.P. No. 1 of 2015 seeking to amend the prayer in the plaint to include the prayer for alternative relief of refund of advance of sale consideration paid under the sale agreement in question along with interest @ 18% per annum.
2. The case of the plaintiff is as follows:--Admittedly, the suit property belongs to the defendant. On 18.05.2000, the plaintiff and the defendant had entered into a sale agreement, by which, the defendant agreed to sell the suit property to the plaintiff for a total consideration of Rs. 60,000/-. A sum of Rs. 50,000/- was paid as advance. The balance of sale consideration was Rs. 10,000/-. According to the plaintiff, within the time stipulated, the plaintiff was not able to pay the balance sale consideration of Rs. 10,000/-, so as to get the sale completed in his favour. Therefore, on 13.05.2002, the earlier registered sale agreement dated 18.05.2000 was cancelled and instead, a fresh sale agreement was entered into between the defendant and the plaintiff, in respect of the very same suit property, by which, the defendant again agreed to sell the suit property to the plaintiff for a sale consideration of Rs. 60,000/-. This time, a sum of Rs. 35,000/- was paid by the plaintiff on 13.05.2002 towards advance. The balance sale consideration was Rs. 25,000/-. It was agreed that on payment of the said amount of Rs. 25,000/- by the plaintiff, the defendant should execute a sale deed in favour of the plaintiff, thereby conveying the suit property to him. But, though the plaintiff was all along ready and willing to perform his part of contract, the defendant did not come forward to execute the sale deed in favour of the plaintiff, after receiving the balance of sale consideration. Therefore, the plaintiff issued a legal notice on 30.04.2004, calling upon the defendant to receive the balance of sale consideration and to execute the sale deed in favour of the plaintiff. Though, the said notice was received by the defendant, as early as on 01.05.2004, the defendant did not come forward to perform his part of contract nor did he send any reply to the plaintiff. Therefore, the plaintiff filed the present suit for specific performance.
3. In the written statement, the defendant contended that there was no such agreement at all entered into between him and the plaintiff and the defendant never agreed to sell the suit property to the plaintiff. According to the specific case of the defendant, it was only a loan transaction. On 13.05.2002, the defendant approached the plaintiff to lend a sum of Rs. 35,000/- as loan. Accordingly, the plaintiff paid a sum of Rs. 35,000/- towards loan but, instead of getting a document executed ........