Alex Koshy v. Venugopal and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN MONDAY, THE 26[TH] DAY OF JUNE 2023 / 5TH ASHADHA, 1945 RFA NO. 638 OF 2009** **AGAINST THE JUDGMENT AND DECREE DATED 28.01.2009 IN OS 439/2007 OF ADDITIONAL SUB COURT, NORTH PARAVUR** **-----** ## **APPELLANT:** ALEX KOSHY, S/O. T.E.KOSHY, AGED 57 YEARS, THATTAVARA HOUSE, OMALLUR PO., OMALLUR, PATHANAMTHITTA DISTRICT DOING BUSINESS AT BOX NO.1029, AJMAN, UAE REPRESENTED BY HIS POWER OF ATTORNEY HOLDER **[*1] ANIL KUMAR, AGED 34 YEARS, S/O K. BHASURANGAN, RESIDING AT 3/848a, SARANYA, KUZHUVELIL TEMPLE ROAD, CHALIKKAVATTOM VENNALA PO., ERNAKULAM** . > ***1** [SRI ANILKUMAR, THE POWER OF ATTORNEY HOLDER FOR APPELLANT IS REPLACED BY NEW POWER OF ATTORNEY HOLDER **MRS.MARIAMMA** AS PER ORDER DATED 02/02/2023 IN IA 4/2022. **MRS.MARIAMMA ALEX, AGED 73 YEARS, W/O ALEX KOSHY, THATTAVARA HOUSE, OMALLUR PO., PATHANAMTHITTA, KERALA-689642,** IS RECORDED AS THE POWER OF ATTORNEY HOLDER OF APPELLANT AS PER ORDER DATED 02/02/2023 IN IA 3/2022] BY ADVS. R.SANJITH C.S.SINDHU KRISHNAH ## **RESPONDENTS/DEFENDANTS:** 1 VENUGOPAL, **[*2] [DIED; LRS IMPLEADED AS ADDL. R3 TO ADDL. R5]** S/O PADMANABHAN, AGED 43 YEARS, KULANGARA, CHENGAMANADU VILLAGE, ALUVA NOW RESIDING AT LLOYD'S VILLA, NO.K-7, KALAPAKA NAGAR, ATHANI PO., NEDUMBASSERRY. **RFA NO. 638 OF 2009 -2-** 2 K.J.MATHEW, **[*3] [DIED; LRS IMPLEADED AS ADDL. R6 TO ADDL. R9]** S/O.JOSEPH, AGED 61 YEARS, RETIRED POLICE OFFICER, KUTTUPARAMBIL, RESIDING AT PERIYAR GARDENS,GCDA ROAD, THOTTAKKATTUKARA, ALUVA. ## ***2 ADDL. R3 TO ADDL.R5 IMPLEADED** ADDL. R3 SALY, W/O.VENUGOPAL, KULANGARA HOUSE, KOTTIYATTUSSERY, CHENGAMANADU VILLAGE, ALUVA NOW RESIDING AT LLOYD'S VILLA,NO.K-7,KALAPAKA NAGAR,ATHANI P.O.,NEDUMBASSERRY. ADDL. R4 LIYA, D/O.VENUGOPAL, KULANGARA HOUSE, KOTTIYATTUSSERY, CHENGAMANADU VILLAGE ALUVA NOW RESIDING AT LLOYD'S VILLA,NO.K-7,KALAPAKA NAGAR,ATHANI P.O.,NEDUMBASSERRY. ADDL. R5 LINU, D/O.VENUGOPAL, KULANGARA HOUSE, KOTTIYATTUSSERY, CHENGAMANADU VILLAGE ALUVA NOW RESIDING AT LLOYD'S VILLA,NO.K-7,KALAPAKA NAGAR,ATHANI P.O.,NEDUMBASSERRY. ## ***2 [THE LRS OF THE DECEASED FIRST RESPONDENTS ARE IMPLEADED AS ADDL.R3 TO ADDL.R5 IN THE APPEAL VIDE ORDER DATED 2/2/2023 IN IA 5/2022]** ## ***3 ADDL. R6 TO ADDL. R9 IMPLEADED** ADDL. R6 MARY MATHEW W/O.LATE K.J.MATHEW, KATTUPARAMBIL HOUSE, PERIYAR GARDENS, THOTTAKKATUKARA POST, ALUVA, ERNAKULAM -683108. ADDL. R7 MANJU MATHEW D/O.LATE K.J.MATHEW, RESIDING AT 37/1094, KUMARANASAN ROAD, MM ENCLAVE, ELAMKULAM, KALOOR, KOCHI 682017. **RFA NO. 638 OF 2009 -3-** ADDL. R8 ANJU MATHEW D/O.LATE K.J.MATHEW, MALIEKAL MEKKAD P.O., KARIYAD, NEDUMBASSERY, ERNAKULAM -683589. ADDL. R9 JOE MATHEW S/O.LATE K.J.MATHEW, KATTUPARAMBIL HOUSE, PERIYAR GARDENS, THOTTAKKATUKARA POST, ALUVA, ERNAKULAM -683108. ## ***3 [THE LRS OF THE DECEASED SECOND RESPONDENT ARE IMPLEADED AS ADDL. R6 TO ADDL. R9 IN THE APPEAL AS PER ORDER DATED 02/02/2023 IN IA 6/2022]** BY ADVS. V.M.ALI - R1 K.M.JAMALUDHEEN – R2, R4 TO R9 LATHA PRABHAKARAN - R2, R4 TO R9 T.KRISHNANUNNI (SR.)- R2 P.A.ISMAIL KHAN - R2, R4 TO R7 P.M.KRISHNANKUTTY - R2, R4 TO R7 THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 26.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R. F. A. No.638 of 2009** **= = = = = = = = = = = = = = = = = = Dated this the 26[th] day of June, 2023** ## **J U D G M E N T** The suit for specific performance of Ext.A2 agreement for sale and for setting aside Ext.A9 Sale Deed was decreed by the trial Court for return of the advance sale consideration. The plaintiff is in appeal seeking a decree for specific performance. 2. Ext.A2 agreement dated 30.03.2006 is sought to be specifically enforced. As per Ext.A2, an extent of 13.19 Ares of property was agreed to be conveyed by the first defendant to the plaintiff. The total consideration fixed is ` 15 lakhs. An amount of ` 13 lakhs was paid towards advance sale consideration. The period fixed for performance was six months. The period was further extended by three months as endorsed on the reverse side of Ext.A2. In breach of the agreement the first defendant, on 27.02.2007, executed Ext.A9 Sale **R. F. A. No.638 of 2009** **==> picture [34 x 9] intentionally omitted <==** Deed in favour of the second defendant. It is on these allegations that the suit was filed. 3. The first defendant though did not specifically dispute the execution of Ext.A1 agreement contended that it was not intended to be acted upon. It was executed only as proof of amounts received by the first defendant from the power of attorney holder of the plaintiff in connection with certain purchases of land effected through the first defendant as mediator. It was also contended that the property was sold for valuable consideration to the second defendant. 4. The second defendant contended that he is a bona fide purchaser for value and without notice of the agreement for sale and entitled to protection under Section 19(b) of the Specific Relief Act. 5. The trial court found the due execution of Ext.A2 agreement, that the advance sale consideration of - ` 13 lakhs was paid, and also that Ext.A2 was executed intending it to be a sale agreement. However, it was **R. F. A. No.638 of 2009** **==> picture [34 x 9] intentionally omitted <==** held that the second defendant is a bona fide purchaser for value and without notice of the agreement and accordingly declined the relief of specific performance. The Court granted a decree for return of the advance sale consideration. 6. Heard learned counsel Sri.R.Sanjith on behalf of the appellant, Sri.V.M.Ali on behalf of the legal heirs of the first respondent and Sri.T.Krishnanunni, the learned Senior Counsel on behalf of the legal heirs of the second respondent. 7. Upon the rival contentions and arguments, the following points arise for determination:- _(i) Is the evidence of PW1 the power of attorney holder of the plaintiff sufficient enough to find the “readiness and willingness” of the plaintiff mandated under Section 16(c) of the Specific Relief Act?_ _(ii) Is the finding of the trial Court that the 2[nd] defendant is a bonafide purchaser for value based on evidence?_ _(iii) Is the plaintiff entitled for a decree for specific performance?_ **R. F. A. No.638 of 2009** -: 4 :- 8. Section 16(c) of the Specific Relief Act mandates the plaintiff to aver and prove his continued readiness and willingness to perform the agreement. Readiness and willingness involves a state of mind. Plaintiff has to prove it by deposing before the Court. The evidence of a power of attorney holder cannot replace/substitute the evidence of the plaintiff. In the case at hand, only the power of attorney holder of the plaintiff has entered the witness box. His evidence is not sufficient and cannot be relied upon to find the readiness and willingness of the plaintiff, is the main contention urged by the learned Senior Counsel. In support of the arguments, he relied on the judgments in _**Man Kaur (Dead) by Lrs. v. Hartar Singh Sangha (2010 (10) SCC 512)**_ , _**H.G.Krishna Reddy and Co. v. M.M.Thimmaiah and Anr. AIR 1983 Madras 169**_ , _**S.K.M. Mohammed Amanullah v. T.C.S. Ramasangu Pandian & Ors. (1993) 2 MLJ 464**_ . 9. In _**Man Kaur's**_ case supra, the Apex Court stated the law as to the competency and evidentiary value of **R. F. A. No.638 of 2009** -: 5 :- the power of attorney holder thus:- _“12. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge :_ _(a) An attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit._ _(b) If the attorney holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney holder alone has personal knowledge of such acts and transactions and not the principal,_ _the attorney holder shall be examined, if those acts and transactions have to be proved._ - _(c) The attorney holder cannot depose or give evidence in place_ _of his principal for the acts done by the principal or transactions_ _or dealings of the principal, of which principal alone has personal knowledge._ **R. F. A. No.638 of 2009** -: 6 :- _(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney holder, necessarily the attorney holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney holders or persons residing abroad managing their affairs through their attorney holders._ _(e) Where the entire transaction has been conducted through a particular attorney holder, the principal has to examine that attorney holder to prove the transaction, and not a different or subsequent attorney holder._ _(f) Where different attorney holders had dealt with the matter at different stages of the transaction, if evidence has to be led as to_ _what transpired at those different stages, all the attorney holders will have to be examined._ - _(g) Where the law requires or contemplated the plaintiff or other_ _party to a proceeding, to establish or prove something with_ **R. F. A. No.638 of 2009** -: 7 :- _reference to his 'state of mind' or 'conduct', normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his 'bona fide' need and a purchaser seeking specific performance who has to show his 'readiness and willingness' fall under this category. There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or 'readiness and willingness'. Examples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs_ _of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad. ”_ 10. In the case at hand, the very agreement Ext.A2, was executed by the plaintiff through his power of attorney holder, Anil Kumar. The plaintiff has instituted the present suit through the very same power **R. F. A. No.638 of 2009** -: 8 :- of attorney holder – Anil Kumar. The plaintiff was and is abroad and the entire transaction/dealings were made by the power of attorney holder – Anil Kumar. Therefore, right from the inception of Ext.A1, all that has transpired is within the personal knowledge of the power of attorney holder - Anil Kumar. On the facts of the case, it could only be held that he is, the competent and best witness to speak about Ext.A1 and the transaction. Incidentally, it is also to be noticed that, out of the total consideration of ` 15 lakhs, an amount of ` 13 lakhs has already been paid as advance sale consideration and practically what remained was the execution of the Sale Deed. On the facts of the present case it can only be held that the power of attorney holder of the plaintiff was competent to speak about the transaction including, the readiness and willingness of the plaintiff. The non-examination of the plaintiff is not fatal to the suit. **R. F. A. No.638 of 2009** -: 9 :- 11. As noticed, major portion of the sale consideration was paid by the plaintiff. There is no case for the defendant that the plaintiff did not have sufficient funds to go ahead with the sale or that the plaintiff was not ready and willing to get the sale deed executed. It is the plaintiff's case that the first defendant delayed the execution of the sale deed contending that there are certain disputes with his brother-in-law and required time to settle the same. The period of Ext.A1 was extended by the parties with due endorsement on the reverse side of the first page of Ext.A1. The relevant entry made on 25.09.2006 reads thus:- “Cu I-cm-dn-se hy-h-ØIÄ - documents icn-bm-¡póXn-\p-th-ïn D-`-bk-½-X {]-Im-cw aq-óp-am-kw Iq-Sn ” . \o-«n-bn-cn-¡p-óp The contention of the first defendant in paragraph 1 of his written statement reads thus:- **R. F. A. No.638 of 2009** -: 10 :- _“There is no agreement between the plaintiff and the first defendant. Agreement dated 30.03.2006 between the 1[st] defendant and Anil Kumar is not binding on the 1[st] defendant. The plaintiff does not have any right through the said agreement. There is no privity of contract. At the time of the agreement the said Anil Kumar was not the power of attorney holder of the plaintiff. The said agreement was made without any intention to act upon and it was made only as a proof of the amount received by the 1[st] defendant from the said Anil Kumar in connection with several purchases made in favour of the plaintiff through the 1[st] defendant as a mediator for the purchases. The said agreement is not executable in law as Anil Kumar has no authority to enter into an agreement with the 1[st] defendant for and on behalf of the plaintiff. ”_ A reading of the written statement of the first defendant in its entirety shows that he has not taken any definite stand with regard to Ext.A1. The circumstances sufficiently prove the readiness and willingness of the plaintiff to complete the **R. F. A. No.638 of 2009** -: 11 :- transaction. 12. The trial court found that Ext.A1 agreement for sale was executed intending the transaction of sale and that the advance sale consideration of ` 13 lakhs was received by him. The defendants have not filed any appeal against the decree and judgment. The trial court declined specific performance holding that the second defendant is a bona fide purchaser for value and without notice of Ext.A2 agreement. However, there are various materials and circumstances which have not been taken into consideration by the trial court while holding so. 13. It is for the second defendant to prove his contention that he is a bonafide purchaser for value and without notice of Ext.A1 agreement. Though as DW2 he deposed that the sale consideration for the sale in his favour (Ext.A9) was ` 15 lakhs, the consideration mentioned in Ext.A9 is only ` 6 lakhs. Here it is pertinent to refer to the pleading of the first defendant in paragraph 5 of the written statement; it **R. F. A. No.638 of 2009** **==> picture [40 x 9] intentionally omitted <==** reads, “ _There is no coercion or collusion in the matter can be seen from the fact that the consideration is_ ` _6 lakhs (Rupees Six Lakhs only)_ ”. Therefore, according to the first defendant the consideration is ` 6 lakhs. It is in the background of Ext.A2 agreement wherein the property is agreed to be sold for ` 15 lakhs and ` 13 lakhs has been received as advance sale consideration that Ext.A9 Sale Deed is executed for ` 6 lakhs. Apart from the issue regarding the bar under Sections 91 and 92 of the Evidence Act to contend that the actual sale consideration was something more than that mentioned in Ext.A9 Sale Deed, but for the mere assertion that the sale consideration was ` 15 lakhs, there is absolutely no evidence to substantiate the same. Even with regard to the passing of the consideration of ` 6 lakhs, the second defendant has not produced any details. When examined as DW2 he was specifically questioned on the same and he vouched that documents are available with him to prove the payment, but no documents were produced. Though he deposed that **R. F. A. No.638 of 2009** **==> picture [40 x 9] intentionally omitted <==** prior to the sale, the property was measured and sketch prepared, the same is not produced. He has not mentioned the name of the person who did the measurement and prepared the plan. Such person is not examined. Though he deposed that prior to Ext.A9 Sale Deed, an agreement was executed, he stated that it is the normal practice that after execution of the sale deed the agreement was destroyed. 14. Even assuming that ` 6 lakhs has transferred hands from the second defendant to the plaintiff, in the back ground of Ext.A2 sale agreement for the very same property at ` 15 lakhs, it could not be said that Ext.A9 for much less than half of such consideration was a bona fide and genuine transaction. At any rate, there is no material to show that the second defendant is a bona fide purchaser for value and without notice of Ext.A2 agreement. The finding of the trial court to the contrary is liable to be set aside and I do so. **R. F. A. No.638 of 2009** -: 14 :- 15. Having found that Ext.A1 agreement is genuine, that it was executed intending it to be an agreement for sale, that the plaintiff was ready and willing to perform his part of the contract, and that the second defendant cannot be held to be a bona fide purchaser for value and without notice of the agreement, a decree is liable to be granted for specific performance of Ext.A2 agreement. In the result, this appeal is allowed. A decree and judgment of the trial court in so far as it refused a decree for specific performance is set aside. The suit is decreed on the following terms :- (1) The plaintiff is entitled for specific performance of Ext.A2 agreement for sale. (2) The plaintiff shall deposit the balance sale consideration before the trial court within a period of one month from the date of this judgment. (3) On such deposit, defendants 1 and 2 shall execute a deed of sale in favour of the plaintiff in **R. F. A. No.638 of 2009** **==> picture [40 x 9] intentionally omitted <==** respect of the plaint schedule property and put him in possession. - (4) On the failure of the defendants to comply with - the directions as above, the plaintiff is entitled to get the same executed through the process of Court. - (5) Plaintiff shall be entitled for costs throughout. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge