G.GOPAKUMAR v. M.J.JOSEPH

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **FRIDAY, THE 22[ND] DAY OF MARCH 2024 / 2ND CHAITHRA, 1946 RFA NO. 240 OF 2016** **AGAINST THE JUDGMENT AND DECREE DATED 13.11.2015 IN O.S.NO.560 OF 2012 OF ADDITIONAL SUB COURT, KOTTAYAM APPELLANT/PLAINTIFF:** **G.GOPAKUMAR AGED 48 YEARS, S/O.PARAMESWARAN PILLAI, GAYATHRI MADAM, KILIROOR NORTH P.O., KOTTAYAM. BY ADVS. SRI.S.JAYAKRISHNAN (KARUNAGAPPALLY) SRI.K.B.SAJAN** ## **RESPONDENT/DEFENDANT:** **M.J.JOSEPH AGED 43 YEARS, S/O.OUSEPH, RESIDING AT ST.JUDE BHAVAN, MANGATTUPOIKAYIL, KURUMBANADAM P.O.., KURUMBANADA KARA, MADAPPALLY VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM,(SILSHA TEXTILE AND FANCY SHOP NOW PARUTHUMPARA JUNCTION, CHINGAVANAM).** **BY ADV SRI.MATHEW JOHN (K) ADV.DOMSON J. VATTAKUZHY** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 22.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.F.A.No.240 of 2016** **= = = = = = = = = = = = = = = = = = Dated this the 22[nd] day of March, 2024** ## **JUDGMENT** Challenging the dismissal of a suit for specific performance, the plaintiff is in appeal. 2. Ext.A1 is the agreement dated 24.09.2010, which is sought to be specifically enforced. Ext.A1 agreement relates to 15 cents of property. The sale consideration fixed is Rs.70,000/- per cent. The period fixed for performance is two years. Ext.A1 recites that the parties had earlier entered into an agreement dated 15.03.2010 with regard to sale of the property, on which date, an amount of Rs.8,00,000/- was paid towards advance sale consideration. It further recites that, thereafter an amount of Rs.45,000/- was paid on 18.03.2010, Rs.20,000/- on 13.08.2010, and Rs.35,000/on 23.09.2010 (ie:-Rs.1,00,000/-). Thus, the total advance sale consideration paid for Ext.A1 is stated to R.F.A.No.240 of 2016 -: 2 :- be Rs.9,00,000/-. Though, Ext.A5 notice dated 17.08.2012 was issued to the defendant seeking performance of the contract, the same was returned unserved. It is accordingly that the suit is filed. 3. The defendant, though admitted his signature in Ext.A1, denied execution of the agreement. According to him, the plaintiff is a money lender. The defendant had, on various occasions, borrowed amounts from him, thus totaling to Rs.6,80,000/-. During the course of the transactions the defendant was required to issue signed blank stamp papers, cheques, title deeds of immovable properties belonging to the defendant and his wife. Though the defendant was to repay the amount in installments with interest, there occurred default. He was also in need of further amounts. The plaintiff advanced a further amount of Rs.4,35,000/-. On calculating the interest, the total amount due to the plaintiff was fixed at Rs.14,35,000/-. The defendant was R.F.A.No.240 of 2016 -: 3 :- unable to pay off the debt. He had executed an agreement for sale in respect of 10.96 acres of property at Santhanpara with DW5. The defendant agreed that he will have the same conveyed to the plaintiff for a total sale consideration of Rs.42,00,000/-. Out of the said consideration, an amount of Rs.12,16,000/- was to be paid to DW5. From out of the balance amount, the debt payable by the defendant to the plaintiff was to be appropriated with interest. Though the transaction went through, the plaintiff failed to return the signed papers, cheques and the title deeds. The defendant filed complaint in the said regard. It is in the said background that the present suit has been filed, it was contended. 4. The trial court held against Ext.A1 and accordingly, dismissed the suit. 5. I have heard the learned counsel on either side. R.F.A.No.240 of 2016 -: 4 :- 6. The point that arises for determination is; _“Was the trial court right in having held that the plaintiff has failed to prove Ext.A1 agreement and the transaction as pleaded by him?”_ 7. The learned counsel for the appellantplaintiff would contend that, since the signature of the defendant on Ext.A1 is admitted, though the burden of proof is on the plaintiff to prove the agreement, only very little evidence is necessary to prove its due execution. Ext.A2 is a receipt dated 15.03.2010 with regard to receipt of Rs.8,00,000/- under the earlier agreement dated 15.03.2010. Though the document was produced along with the plaint, the defendant has not denied Ext.A2. The defendant has in his oral evidence, in fact admitted Ext.A2. This probabilises the genuineness of Ext.A1 agreement. The payment of amounts on 18.03.2010, 13.08.2010 and 23.09.2010 were made by Bank transfers, as is evidenced by Ext.A11 Bank account R.F.A.No.240 of 2016 -: 5 :- statements. So also, there is no contention for the defendant that, blank signed white papers were entrusted to the plaintiff. Pages 2 and 3 of Ext.A1 are plain white papers and not stamp papers. According to the learned counsel, for the above reasons it should be held that Ext.A1 is a genuine agreement for sale. 8. It is to be noticed that, Ext.A1 agreement dated 24.09.2010 has fixed the period for performance as two years. Out of the total consideration of Rs.10,50,000/-, an amount of Rs.9,00,000/- is claimed to have been paid. The balance consideration payable is only Rs.1,50,000/-. However, a long period of two years is fixed for the performance. There is hardly any explanation for the same. Though as PW1 the plaintiff would state that, since it is a family property and the ancestral house is situated in the adjacent plot, the defendant wanted to convince the family, it could only be termed as too lame an excuse. It is to be noticed R.F.A.No.240 of 2016 -: 6 :- that the defendant obtained title over the property under Ext.A3 partition which had taken place in the year 2001. It does not stand to a reason to contend that, for dealing with such property obtained nine years back, the defendant needed permission from the other members of the family to whom other properties were alloted. At any rate, fixing a period of two years for the said purpose, does not stand to reason. Here, it is also to be noticed that, going by the plaintiff's case, even the original title deed of the property was handed over to him. When the defendant proceeded thus far, the explanation offered for fixing two years for performance is not liable to be accepted. The above, on the face of it, casts doubt with regard to the true nature of the transaction between the parties. 9. As noticed, the plaintiff's case is that the original title deed of the property along with the tax receipts were handed over to him. The circumstances ## R.F.A.No.240 of 2016 ## -: 7 :- that, out of the total sale consideration of Rs.10,50,000/- an amount of Rs.9,00,000/- is claimed to have been paid as advance, and the period fixed for performance is two years, and the original title deed relating to the property is also handed over to the plaintiff, but still the plaintiff is not put in possession of the property probabilise a money transaction between the parties, as contended by the defendant. A division bench of this Court in _**Thomas v. Merlin Construction Company (P) Ltd [2016 (3) KLT 84]**_ , held that similar circumstances indicate that the transaction is in the nature of a money transaction and not an agreement for sale. Paragraph 5 of the said decision reads thus; _“5. There is no case for the plaintiff that it was short of funds to effect the payment of Rs.7,00,000/- in lump when a sum of Rs.5,75,000/- was allegedly paid as advance. Normally, the plaintiff would be put in possession in part performance of the contract if really a major portion of the sale consideration was_ R.F.A.No.240 of 2016 -: 8 :- _paid. There is no explanation as to why the plaintiff was not so put in possession of the property even after the payment of a major portion of the sale consideration to the defendants. That is a strong indication to show that Ext.A1 agreement even if genuine was not intended to be followed up by a sale deed between the parties. We take cue from the decision of the Supreme Court in Tejram v. Patirambhau [(1997) 9 SCC 634] wherein the agreement was construed as one evidencing loan transaction. It is unsafe to grant a decree either for specific performance or for return of the advance amount on the basis of Ext.A1 agreement and normally we would have dismissed the suit in toto. But the defendants fairly concede that a sum of Rs.75,000/- was availed as loan on the date of Ext.A1 agreement form Mr.V.L. Ittiachen.”_ 10. It is not in dispute that the initial burden is on the plaintiff to prove the due execution of Ext.A1. The appellant-defendant contends that the signed blank papers issued in the course of money transaction between the parties were fabricated into Ext.A1 agreement. Ext.A1 agreement contains two witnesses. The plaintiff did not chose to examine any of the attesting R.F.A.No.240 of 2016 -: 9 :- witnesses to prove its due execution. The plaintiff has admitted that, one of the witnesses in Ext.A1, named Byju, is a close friend of him. The learned counsel for the appellant would contend that since law does not require an agreement for sale to be attested, it is not necessary for the plaintiff to examine any witness in the document to prove execution. He relied on the judgment of the Madras High Court in _**Karuppiah Mooppanar v. Muthukaruppah Servai AIR 1975 Madras 221**_ . Further, the attestor need not know the contents of the document, it is argued. 11. The propositions, as urged by the learned counsel, are beyond cavil. However, on the facts of this case, when one of the witnesses was a very close friend of the plaintiff and the due execution of the document was denied by the defendant, and contended that signed blank papers were forged, the evidence of the witness to Ext.A1, would have been one of the best evidence to R.F.A.No.240 of 2016 -: 10 :- prove the genuineness of Ext.A1 agreement. The nonexamination of such witnesses has much significance. 12. The contention of the defendant that there was an agreement for sale between him and DW5 regarding a property at Santhanpara and that, it was ultimately conveyed in favour of the plaintiff is proved by the evidence of DW5 and Ext.B2 Sale Deed. DW5 has spoken about the agreement entered into with the defendant in respect of the property at Santhanpara. Ext.B2 Sale Deed evidences that the property was conveyed in favour of the plaintiff. Ext.B2 further shows that the defendant is a witness in the said sale deed. This further lends credence to the case of the defendant. 13. Ext.B1 is the complaint filed by the defendant before the District Police Chief, Kottayam on 23.06.2012, that is much before the date of filing of the suit on 01.10.2012. The complaint alleged that, inspite of settlement of the liability, the plaintiff R.F.A.No.240 of 2016 -: 11 :- has refused to handover his title deeds and the signed papers. Ext.B3 is the final report prepared on the complaint. The final report is in tune with the case as pleaded herein by the defendant. The contents of Ext.B3 has been proved by the Sub Inspector, who prepared the same. He was examined as DW6. Though Ext.B3 by itself is not conclusive and final, it is a circumstance or a piece of evidence, which fortifies the defence case. 14. Ext.A2 is dated 15.03.2010. It acknowledges the receipt of Rs.8,00,000/- in terms of an agreement dated 15.03.2010 executed between the parties. Noticeably, the receipt is also of the same date. It is quite strange that, on the very same date of entering into an agreement, a further receipt acknowledging the agreement and the payment thereunder is executed. The agreement dated 15.03.2010 is not produced. Plaintiff claimed that it was returned to the defendant. There is no such endorsement to the said effect in Ext.A2. Further, if R.F.A.No.240 of 2016 -: 12 :- the said agreement was returned, there is no reason why Ext.A2 receipt was retained by the plaintiff. The nature of transaction under the earlier agreement is not known. Such agreement is disputed. In the background of the contention that signed papers were misutilised by the plaintiff to create Ext.A1, the mere fact that Ext.A1 refers to the alleged agreement dated 15.03.2010 does not improve or fortify the plaintiff's case. With regard to the three payments made by the plaintiff through account transfer evidenced by Ext.A11 statements of Bank account, even according to the defendant he had received amounts from the plaintiff. Therefore, such proof will not advance the claim of genuineness of Ext.A1. Merely because the defendant did not mention about blank papers but only signed stamp papers, cheques and title deeds it doesn’t mean it did not contain plain papers. He has only broadly contended regarding the transaction. The pleading is not to be so narrowly construed in the R.F.A.No.240 of 2016 -: 13 :- manner as claimed by the plaintiff. At any rate, solely on that reason Ext.A1 cannot be upheld on the face of a host of circumstances to the contrary. 15. As contended by the appellant, Ext.A2 receipt was not denied by the defendant in the written statement. Ext.A2 was admitted by DW1. However I do not think that it by itself is conclusive about the genuineness of Ext.A1. As regards the contention that Ext.A2 was not denied in the written statement, it is pertinent to note that, though the plaintiff produced Ext.A2 along with the plaint, in the body of the plaint, there is no whisper with regard to Ext.A2. Therefore, there was no occasion for the defendant to advert to any particular plea in the plaint and to deny the same. Therefore, the said contention has no force. 16. The materials available justifies the conclusion of the trial court that the plaintiff has failed to prove the genuineness of Ext.A1 sale agreement R.F.A.No.240 of 2016 -: 14 :- and the transaction claimed thereunder. On a reappreciation of the entire evidence, I am in agreement with the findings of the trial court. The decree and judgment impugned warrants no interference. Resultantly, the appeal fails and is dismissed. No costs. Sd/- **SATHISH NINAN** **JUDGE** yd