Anil Kumar v. Samsath Moideen and Sudarsanan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **FRIDAY, THE 25TH DAY OF SEPTEMBER 2020 / 3RD ASWINA, 1942** ## **FAO.No.57 OF 2019** **AGAINST THE ORDER IN IA 3408/2017 IN OS 159/2017 OF II ADDITIONAL SUB COURT,TRIVANDRUM** ## **APPELLANT/PETITIONER/PLAINTIFF:** ## **ANILKUMAR,** **S/O.SREEDHARAN, AGED 51 YEARS, KANNUVILAKATHU VEEDU, KONCHIRAVILA, ATTUKAR, MANACAUD P.O., THIRUVANANTHAPURAM, REPRESENTED BY THE POWER OF ATTORNEY HOLDER SALIM, AGED 51, S/O.ASAN BAVAN, RESIDING AT TC 19/1204, METHOTTUKUZHI VEEDU, KUNJALUMOODU, KARAMANA, THIRUVANANTHAPURAM.** **BY ADV. SRI.R.GOPAN** ## **RESPONDENTS/COUNTER PETITIONERS/DEFENDANTS:** **1 SAMSATH @ SAMSATH MOIDHEEN, AGED 53 YEARS W/O.MOHAMMED SHERIF, RESIDING AT TC 17/228 UNRA 157 PRASANTHAN, VIVEKANANDA NAGAR, THIRUMALA VILLAGE, THIRUVANANTHAPURAM DISTRICT-695001.** **2 SUDARSANAN, AGED 58 YEARS S/O.SLOVISHADAM PANICKER, RESIDING AT TC.43/226/3, SAUPARNIKA, SIVASANKARAN LANE, KAMALESWARAM, MANACAUD P.O., THIRUVANANTHAPURAM695001.** **R2 BY ADV. SMT.M.A.ZOHRA** **THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 25.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **F.A.O.No.57 of 2019** ## **:-2-:** ## **Dated this the 25[th] day of September, 2020** ## **J U D G M E N T** The attachment petition filed under Order 38 Rule 5 of the CPC was dismissed by the Second Additional Sub Judge, Thiruvananthapuram, by order dated 13.12.2018. The order is challenged by the plaintiff in O.S.No.159/2017. 2. The appellant filed the suit for recovery of advance amount paid for purchase of plaint schedule property as per agreement dated 8.1.2015 alleged to have been executed by the first respondent, the original owner of the property. It is alleged that during the currency of the agreement, the property was sold by first respondent to the second respondent suppressing the document with the intention of defeating his right to enforce sale of the property. It was alleged that the second respondent was making preparations to alienate the property to third parties and the ## **F.A.O.No.57 of 2019** ## **:-3-:** request of the appellant with the respondents for return of money was declined. With these allegations, I.A.No.3408/2017 seeking attachment before judgment was filed. 3. The first respondent did not respond to the notice served on him. The second respondent, the subsequent purchaser contested the attachment petition filing a detailed objection. 4. He contended that the agreement for sale was manipulated and was not in existence when he purchased the property on 12.10.2015. He is a bona fide purchaser for value without notice of the alleged transaction between the appellant and the first respondent. He completed the building under construction in the property after purchase and claimed to be in absolute possession and ownership. He rented out the building to a tenant and for these reasons, he contends that the order of attachment, if made absolute, would prejudice his rights. ## **F.A.O.No.57 of 2019** ## **:-4-:** 5. The court below after hearing both parties found that the appellant failed to make out a prima facie case. It also found that the second respondent is a bona fide purchaser who cannot be restrained from alienating the property if at all he was making preparations. 6. The court below after referring to Section 17(f) to the Indian Registration Act, 1908, held that the sale agreement required registration. It was also held that even if the sale agreement was true also, appellant was entitled to a charge over the property by virtue of Section 55(6)(b) of the Transfer of Property Act, 1882 (for short, 'the TP Act'). Ultimately I.A.No.3408/2017 was dismissed. 7. I heard the learned counsel for the appellant and the learned counsel for the second respondent. 8. Learned counsel for the appellant contended that the impugned order is vitiated by illegality and the court below exceeded its jurisdiction by ## **F.A.O.No.57 of 2019** ## **:-5-:** taking a preconceived view that he was not entitled to get any decree in the suit even though the trial of the suit was yet to begin. It was also submitted that a claim for return of advance amount based on an unregistered sale agreement cannot be legally denied at all. He relied on in this respect a decision in **Puthiya Purayil Ramakrishnan v. Pullani Prabhakaran** ( **2016(1) KLT 394).** It was further submitted that the finding that there was no prima facie case was not based on proper appreciation of facts and circumstances of the case. 9. The learned counsel for the second respondent on the other hand contended that there are circumstances which probabilise that the agreement for sale was concocted and by all means it was brought into existence to defeat the rights of the subsequent purchaser. The learned counsel further submitted that the suit being one for recovery of advance amount, no personal decree could be passed against a subsequent purchaser of ## **F.A.O.No.57 of 2019** ## **:-6-:** property and in such a situation, no order of attachment before judgment could also be lawfully issued against the second respondent. In my view also, it is not legitimate to order attachment of property of a person unless he is liable for a personal decree for payment of money. 10. Referring to paragraph 14 of the impugned order, the learned counsel for the second respondent submitted that the assumption of the court below was wrong and that the appellant was not entitled to charge over the plaint property in as much as an issue in that respect does not emerge in the suit for consideration having regard to lack of necessary pleadings in the plaint. It was submitted that under Section 55(6)(b) of the TP Act, charge could be claimed only when there is definite averment to the effect that he has not declined to accept delivery of the property and the breach of contract was on the other hand, on the part of the seller. ## **F.A.O.No.57 of 2019** ## **:-7-:** 11. The learned counsel for the appellant submitted that right of a buyer to refund of advance amount paid, operates as a charge in the property purchased by the subsequent transferee and the purchaser cannot defeat the charge claiming that he is a bona fide purchaser without notice of contract for sale of the property. The legal position canvassed appears to be sound. In this respect, he relied on the decisions reported in **Peter Cherian v. Abraham (2007(4) KLT 680)** , **Sebastian v. Bipin (2004(1)KLT 159)** , **Ayyakutty Chettiar v. Imbichiamina Bi (1962 KHC 178)** , **Lekshmi Powerloom Industrial Co-operative Society Ltd. v. State of Kerala (1965 KHC 876)** , **Molly Ajithkumar v.** **Vimala Sasidharan (2012(1) KLT 585)** and **Delhi Development Authority v. Skipper Construction Co.** ## **(P) Ltd & ors. AIR 2000 SC 573.** 12. On going through the copy of the plaint made available to me, I find that the appellant has not sought for a decree for money charged on the ## **F.A.O.No.57 of 2019** **:-8-:** plaint property. Nor is there any pleading to the effect that he was entitled to a statutory charge and further that he did not act in breach of the alleged agreement for sale. 13. It is quite natural that in the absence of necessary plea being made in the plaint, there will be no opportunity for the court below to frame an issue as to whether the appellant was entitled to get a charged decree under Section 55(6)(b) of the TP Act. If this is the position, the observation made in paragraph 14 of the impugned order as if the purported charge in the property would save the interest of the appellant cannot be said to be in tune with law. The learned counsel for the appellant realising the correct legal position submitted that the plaint will be duly amended in the appropriate stage. 14. After having heard both sides, I am of the view that the court below did not consider the true factual and legal aspects involved in the matter. ## **F.A.O.No.57 of 2019** ## **:-9-:** The finding that appellant is not entitled to a decree for realisation of advance amount was premature and was totally uncalled for at this stage. Equally uncalled for is the finding that the second respondent is a bona fide purchaser. In fact, no issue arises as to whether the second respondent is a bona fide purchaser since this is not a suit brought for a decree for specific performance of a contract but rather, the suit is for recovery of advance amount allegedly paid under an agreement for sale. The genuineness of the agreement appears to be a crucial issue that should engage the attention of the trial court. Without deciding that issue, the question as to whether the appellant is entitled to charge of the property cannot possibly arise. 15. In view of the foregoing discussion, I am inclined to set aside the impugned order and remit the matter back to the court below for fresh consideration. ## **F.A.O.No.57 of 2019** **:-10-:** In the result, this appeal is allowed and the case is remanded to the court below which may take up the matter for fresh consideration, if necessary. It is made clear that I have not expressed any view on merits of the claim of the parties. There will be a direction to the court below to dispose of the suit itself within a period of six months from the date of receipt of certified copy of this judgment. All pending interlocutory applications are closed. Sd/- **T.V.ANILKUMAR JUDGE** ami/