Kesavan and others v. Mini Thomas

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **FRIDAY, THE 30TH DAY OF AUGUST 2019 / 8TH BHADRA, 1941** ## **RFA.No.295 OF 2013** **AGAINST THE JUDGMENT & DECREE IN OS 39/2008 DATED 13-06-2012 OF SUB COURT, MAVELIKKARA** ## **APPELLANTS/DEFENDANTS:** - **1 KESAVAN, AGED 73, S/O.KANNAN, KULATHINTE MELATHIL, SUBASH BHAVANAM, ERUMAKUZHY MURI, PALAMEL VILLAGE, ALAPPUZHA.** - **2 CHELLAMMA, AGED 62, W/O.KESAVAN, KULATHINTE MELATHIL, SUBASH BHAVANAM, ERUMAKUZHY MURI, PALAMEL VILLAGE, ALAPPUZHA.** - **3 SATHEESHKUMAR, AGED 40, S/O.KESAVAN, KULATHINTE MELATHIL, SUBASH BHAVANAM, ERUMAKUZHY MURI, PALAMEL VILLAGE, ALAPPUZHA.** - **4 SANTHOSHKUMAR, AGED 41, S/O.KESAVAN, KULATHINTE MELATHIL, SUBASH BHAVANAM, ERUMAKUZHY MURI, PALAMEL VILLAGE, ALAPPUZHA.** - **5 SUBASHKUMAR, AGED 36, S/O.KESAVAN, KULATHINTE MELATHIL, SUBASH BHAVANAM, ERUMAKUZHY MURI, PALAMEL VILLAGE, ALAPPUZHA.** ## **BY ADV. SRI.MANU ROY** ## **RESPONDENT/PLAINTIFF:** **MINI THOMAS, AGED 47, D/O.CHINNAMMA, MUDACKENIKKAL, KURAMBALAMURI, KURAMBALA VILLAGE, PATHANAMTHITTA DISTRICT-689501.** **R1 BY ADV. SMT.ASHA ELIZABETH MATHEW R1 BY ADV. SRI.RINNY STEPHEN CHAMAPARAMPIL** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 30.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RFA.295/2013 2 ## **JUDGMENT** **Dated this the 30th day of August 2019** The defendants in O.S. No.39 of 2008 on the file of the Sub Court, Mavelikkara have come up with this appeal challenging the judgment and decree dated 13.6.2012 wherein a decree for specific performance of contract was granted in favour of the respondent/plaintiff. 2. The parties are referred to as the plaintiff and defendants as per their ranking before the trial court. 3. Shorn off the unnecessary details, the facts of the case are as follows: The plaintiff was in need of a residential plot and her budget was Rs.10,00,000/-. When she came to know that the RFA.295/2013 3 defendants are intending to sell the plaint schedule property, she negotiated with them and fixed the value of the plaint schedule property as Rs.9,75,000/-. An agreement to sell was executed between them on 7.10.2007 by advancing an amount of Rs.50,000/-. Later another agreement was executed on 29.10.2007 thereby paying an amount of Rs.1,00,000/-. Thus, in total a sum of Rs.1,50,000/- was paid towards the total sale consideration. Though the defendants agreed to execute the sale deed by receiving the balance sale consideration within a period of four months, the defendants evaded the same when the plaintiff approached them with the balance sale consideration. Hence, the suit for specific performance of the contract. 4. The defendants filed a written statement denying the alleged transaction. But it was contended that in fact they RFA.295/2013 4 were in urgent need of money to meet some personal needs and hence they approached one Anandan for a loan of Rs.1,50,000/-. Thereafter, Sri. Anandan and his friend one Abdul Salam came to the house of the defendants and offered to advance the money, provided that an amount of Rs.10,000/- would be paid as Commission, as they have to arrange money from another person. The defendants agreed for the same, and thus an amount of Rs.45,000/- was paid on 7.10.2007 and also Rs.95,000/- on 29.10.2007. They got an agreement in favour of the plaintiff but, the plaintiff was a total stranger to the defendants. Since they were in urgent need of money, they executed the agreement in favour of the plaintiff as if an amount of Rs.50,000/- was received as advance on 7.10.2007 and that another agreement was executed on 29.10.2007 for a further amount of RFA.295/2013 5 Rs.1,00,000/-. They paid interest for the said amount for a period of two months. But, thereafter due to financial constraints they could not pay the interest as agreed. But no sale agreement with the intention to alienate the property was executed as alleged by the plaintiff. Infact two residential buildings are there in the plaint schedule property and the defendants 1 to 3 and the 5[th] defendant, with his family is residing in one such building and the 4[th] defendant and his family are occupying the other house. The total property would fetch more than Rs.15,00,000/- and such being the case, the allegation that they decided to alienate the property for a sum of Rs.10,00,000/- is absolutely false and baseless. 5. Before the court below the plaintiff was examined as PW 1 and had marked Exts. A1 to A5. For the defendants, DWs 1 to 3 were examined and Exts. B1 to B6 were marked. The RFA.295/2013 6 court below on an appreciation of the evidence, decreed the suit for specific performance as prayed for by the plaintiff. Feeling aggrieved by the judgment and decree for specific performance of the contract, the defendants have approached this court with this appeal. 6. Heard Adv. Manu Roy, the learned counsel for the appellants/defendants and Sri. Rinny Stephen, the learned counsel for the respondent/plaintiff. 7. The suit for specific performance of contract was filed based on Ext. A1 sale agreement dated 7.10.2007 and Ext. A2 sale agreement dated 29.10.2007. The plaint schedule property is described as having 3.02 Ares of land in Re.Sy. Nos. 73/22 and 73/23 of Mavelikkara Taluk. A residential building and another partially constructed residential building are situated in the plaint schedule property. The plaintiff RFA.295/2013 7 before the court below had reiterated the averments in the plaint and contended that the total value of the plaint schedule property was fixed as Rs.9,75,000/- and out of the total sale consideration Rs.50,000/- was paid at the time of execution of Ext.A1 sale agreement and Rs.1,00,000/- on 29.10.2007 at the time of execution of Ext.A2 agreement. The definite case of the plaintiff is that her intention was to purchase the property for her residential purpose and nothing else. 8. At the outset, it is to be noted that, the time fixed for execution of the agreement was four months from 7.10.2007. The plaintiff had given evidence to the effect that she was always ready with the balance sale consideration to purchase the property as her intention was to set up a residence in the plaint schedule property. According to her, even now she is ready and willing to perform her part of the contract. The RFA.295/2013 8 defendants, though admitted execution of Exts. A1 and A2 agreements, had a case that they never had the intention to alienate the property, but they were compelled to execute Exts.A1 and A2 as they were in dire need of money. They have also admitted that Rs.1,50,000/- was received from one Anandan and Abdul Salam who approached them with the money. But it was told that the money actually belonged to a third party, i.e., the plaintiff, and they require Rs.10,000/- as commission for the said adjustment and Rs.1,40,000/- was received by them after deducting the commission for the said transaction. Since execution of Exts.A1 and A2 sale agreements were admitted by the defendants, the burden is upon them to prove that the documents were executed not for execution of sale deed, but it was executed, only for the amount borrowed by them from Anandan and Abdul Salam, RFA.295/2013 9 and adjusted from a third party, i.e. the plaintiff. Though there was an attempt on the side of the defendants by examining DWs. 2 and 3 to substantiate the contention that Exts.A1 and A2 were not executed to transfer their property, DW3, their own witness, has supported the case of the plaintiff that the plaintiff has approached him to purchase the property and thus sale agreements were executed and the case pertains to the said transaction. Ext. B3 is a copy of the complaint filed by DW 3 before the Judicial First Class Magistrate II, Mavelikkara as CMP No.3354 of 2011. The said complaint was lodged by him against the plaintiff and Anandan. In the complaint, he has stated that the parties are conducting real estate business and a property worth Rs.2,00,000/- was purchased in the name of the respondent therein (the plaintiff in this suit) but they deviated from the transaction causing RFA.295/2013 10 loss to him and hence the transaction is vitiated by dishonest intention. He lodged the complaint to register a case against the plaintiff and another under Section 420 read with Section 34 of Indian Penal Code. He had deposed before the court that he had actually entered into an agreement for sale with defendants 1 and 2 along with Anandan, but the plaintiff entered into the agreement to purchase the property from them. So his evidence before the court is that the plaintiff had entered into sale agreements with defendants 1 and 2 for purchase of their property. Therefore, in effect DW3 is supporting the plaintiff, that he entered into an agreement with DWs.1 and 2 to purchase the plaint schedule property. Of course, the 4[th] defendant as DW1 had deposed before the court that the execution of the documents were only in connection with the loan transaction availed by them RFA.295/2013 11 and that the plaintiff, Anadan and Abdul Salam are real estate brokers dealing with property transaction. But he could not adduce convincing evidence to show that in fact he received Rs.1,50,000/- through Anandan and Abdul Salam from the plaintiff after giving a commission of Rs.10,000/- and the transaction is purely a loan transaction and not intended for sale of the property. It is well settled that when a person signs and executes a document and later allege fraud against the other party relying on the document, the burden is upon him to adduce reliable evidence to substantiate their plea of fraud. In the absence of reliable evidence, a presumption cannot be drawn in favour of such a person however strong is the presumption. Here, the plaintiff's case that her intention was to purchase a property for construction of a residential house and she was always ready and willing to perform the RFA.295/2013 12 contract was supported by the evidence of DW3, the witness of the defendants. The plaintiff has pleaded and proved that she is always ready and willing to perform her part of the contract by paying the balance sale consideration. The defendants have no case that she is not having sufficient funds with her to pay the balance sale consideration. So, in short the evidence available on record would show that Exts.A1 and A2 are sale agreements, executed with the intention for transfer of the plaint schedule property in favour of the plaintiff on receipt of balance sale consideration. It is evident that she was having sufficient funds with her to pay the balance sale consideration which would come to Rs.8,25,000/-. So, in short readiness and willingness on the side of the plaintiff also stands proved. Ext. A3 is the copy of the lawyer notice issued by the plaintiff dated 5.2.2008 expressing her willingness to get the RFA.295/2013 13 document executed in her favour. Therein, it has been specifically stated that the defendants have to be present before the SRO concerned for registration of the deed at 10 a.m. on 7.2.2008 with the original title deed to register the sale deed in favour of the plaintiff and if there is any inconvenience for the defendants on that particular date, the document has to be executed within a period of 7 days convenient for them. To Ext.A3, Ext. B5 reply notice was sent by the defendants denying the sale agreement. But, as discussed earlier, it has been proved by the plaintiff that the defendants entered into Exts. A1 and A2 agreements for sale of the plaint schedule property and signed the documents fully knowing the contents of the same and there was no fraud or force/coercion on the side of the plaintiff in getting the documents executed in her favour. In fact, on failure of the RFA.295/2013 **==> picture [13 x 7] intentionally omitted <==** defendants to execute the document, the plaintiff had approached the police station concerned with a complaint and also lodged Ext.A5 complaint before her Community Head seeking their intervention in the matter. All these facts would indicate that the intention of the plaintiff was to get the document executed in her favour with respect to the plaint schedule property. 9. It is well settled that, even if the plaintiff is ready with the balance sale consideration to be paid and had performed her part of the obligation, the court is not bound to grant a decree for specific performance as the decree for specific performance is purely a discretionary one in view of Section 20 of the Specific Relief Act, 1963. It is well settled that, if by the execution of the sale deed any hardship would be caused to the owner of the property, a decree for specific performance RFA.295/2013 15 cannot be granted as per the provisions of section 20(2)(b) of the Specific Relief Act. It is also well settled that the discretion of the court cannot be arbitrarily exercised and it should be exercised reasonably and guided with judicial principles. But here, it is to be noted that the defendants have not even raised a contention that by execution of the sale deed, any kind of hardship would be caused to them. Such a plea was not raised and no evidence was adduced in that line. It has been held by the Apex Court in Sarita Rani v. Deepak Raj (LAWS (SC) 2000 766) that when there is neither a plea nor proof that the defendant suffered hardship as a result of the sale being asked to be specifically performed, it is not necessary to examine whether the provisions of Section 20 (2) (b) of the Specific Relief Act would arise. Here, it is to be noted that the plaintiff was intending to purchase the property RFA.295/2013 16 to set up a residential house for her accommodation. There is no evidence to show that she had any other residential building to accommodate her family. It has come out in evidence that she was abandoned by her husband and she was residing with her children pursuing studies. When the defendants have not taken a good defence to deny the execution of a sale deed in favour of the plaintiff, it is not proper to hold that the discretion should be exercised in favour of the defendants. On the other hand, the plaintiff is relying on the decisions of the Apex Court in Laxman Tatyaba Kankate v. Taramati Harishchandra Dhatrak (2010 KHC 4453) and Ramathal v. Maruthatthal (2018 KHC 2470) to buttress her argument that equitable relief under the provisions of Section 20 of the Act has to be exercised in her favour as she was always ready and willing to perform her part RFA.295/2013 17 of the agreement and the default was committed solely by the defendants. In short, there is absolutely no evidence to conclude that Exts. A1 and A2 are concocted documents and the plaintiff had approached the court with false claims and unclean hands so as to get a decree in her favour. In fact, it is clear from the records that she had arranged the balance sale consideration to be paid to the defendants and informed them to be present before the Sub Registrar Office for registration of the document and on their failure, she had approached even the police and their Association to get the document executed in her favour. Considering the entire aspects, the court below has rightly found that the plaintiff had pleaded and proved that she was always ready and willing to perform her part of the contract and also that the discretion has to be exercised in favour of the plaintiff due to the peculiar circumstances RFA.295/2013 18 available on record. When the defendant has failed to substantiate that hardship will be caused in executing the document pursuant to Exts.A1 and A2 contracts, I find absolutely no reason to exercise the discretion available under Section 20 of the Act in favour of the defendants. I too find that no circumstances are available to observe that the hardship that will be caused to the defendants by executing the document to transfer title of the property will be graver than the non-execution of the document in favour of the plaintiff. Hence, I find that there is no ground to interfere with the decree for specific performance of the contract pursuant to Exts.A1 and A2 in favour of the plaintiff. Therefore, the appeal filed by the defendants are without any merits and it is only to be dismissed. RFA.295/2013 19 Accordingly, the appeal is dismissed. The judgment and decree are hereby confirmed. However, the parties are directed to bear their respective costs in the appeal. Sd/- **SHIRCY V.** **JUDGE** sb