Muraleedharan M. v. Jude Thadevus

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **THURSDAY, THE 17[TH] DAY OF AUGUST 2023 / 26TH SRAVANA, 1945** **RFA NO. 416 OF 2013** **AGAINST THE JUDGMENT IN OS 439/2011 OF II ADDITIONAL SUB COURT,ERNAKULAM** **-----** ## **APPELLANT/DEFENDANT:** MURALEEDHARAN M., S/O.A.V.VASUDEVAN NAIR, AGED 49 YEARS, ENGINEER, PERMANENTLY RESIDING AT MANGALASSERY HOUSE, VELAYANADU AMSOM DESOM, POOKUNNU P.O., PANNIYAMKARA VILLAGE, KOZHIKODE DISTRICT, NOW RESIDING AT TRINITY CREST 6D, EDAPPALLY P.O., KOCHI-24. BY ADVS. SRI.K.RAMAKUMAR (SR.) SMT.ASHA BABU SMT.G.ASHWINI SRI.S.M.PRASANTH SRI.T.RAMPRASAD UNNI SMT.SMITHA GEORGE ## **RESPONDENT/PLAINTIFF:** JUDE THADEVUS, S/O.T.R.THOMAS, BUSINESS, RESIDING AT THACHUTHARA HOUSE, VADUTHALA, KOCHI-682012. BY ADVS. SRI.PRAMOJ ABRAHAM SRI.S.SREEKUMAR SR. SRI.SHIJU VARGHEESE THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 17.08.2023, ALONG WITH RFA.582/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN THURSDAY, THE 17[TH] DAY OF AUGUST 2023 / 26TH SRAVANA, 1945** **RFA NO. 582 OF 2010** **AGAINST THE JUDGMENT IN OS 358/2007 OF PRINCIPAL SUB COURT, ERNAKULAM** **-----** ## **APPELLANT/PLAINTIFF:** NEVIL JOHN, AGED 35 YEARS, S/O. LATE.I.T.JOHNY, IKKARAPARAMBIL HOUSE, PIPELINE ROAD, PALARIVATTOM, EDAPALLY SOUTH, ERNAKULAM. BY ADV SMT.M.A.ZOHRA ## **RESPONDENTS/DEFENDANTS:** 1 LATHA, AGED 38 YEARS, D/O. RAMANKUTTY NAIR, KUNNATHUKANDATHIL HOUSE, NOW RESIDING AT AMRITHA HOUSE, ELOOR VILLAGE, ERNAKULAM DISTRICT. 2 MURALEEDHARAN.M., AGED 43 YEARS, S/O. A.V.VASUDEVAN NAIR, MANGALASSERRY HOUSE, MANKAVU, VALAYANADU AMSOM, VALAYANADU DESOM, PANNIYANKARA VILLAGE, PANNIYANKARA TALUK, KOZHIKODE. ## *** ADDL. RESPONDENT NO.3** 3 JUDA THADEVUS S/O.THOMAS THACHUTHARA,BUSINESS, AGED 47 YEARS, RESIDING AT THACHUTHARA HOUSE, VADUTHALA DESOM, CHERANELLOOR VILLAGE, ERNAKULAM. ## *** [ADDITIONAL R3 IS IMPLEADED VIDE ORDER DATED 01.09.20212 IN IA 144/2013]** BY ADVS. SRI.T.RAMPRASAD UNNI SRI.SHIJU VARGHESE SRI.S.M.PRASANTH SRI.PRAMOJ ABRAHAM SMT.SMITHA GEORGE THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 17.08.2023, ALONG WITH RFA.416/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.F.A. Nos.582 of 2010 and 416 of 2013 = = = = = = = = = = = = = = = = = = Dated this the 17[th] day of August, 2023** ## **J U D G M E N T** These appeals arise from two suits for specific performance in respect of the same property. 2. RFA 582/2010 arises from OS 358/2007. The plaintiff is in appeal being dissatisfied with the decree for return of advance sale consideration. 3. RFA 416/2013 arises from OS 439/2011. The defendant is in appeal challenging the decree for specific performance. The defendant is the husband of the defendant in OS 358/2007. The wife transferred the property to him prior to the filing of OS 358/2007. 4. While RFA 582/2010 was Pending, the husband entered into an agreement for sale with the plaintiff in OS 439/2011. The suit is based on such agreement. The plaintiff in OS 439/2011 has got himself impleaded in RFA 582/2010. **RFA 582/2010 & 416/2013** -: 2 :- 5. Since the property involved in both the suits are the same, these appeals were, as desired by the parties, heard and considered together. 6. Heard the learned counsel Smt.M.A.Zohra, the learned Senior counsel Sri.K.Ramakumar, and the learned Senior counsel Sri.S.Sreekumar for the respective parties. 7. First I proceed to consider RFA 582/2010. Ext.A1 agreement dated 30.09.2006 was entered into between the plaintiff and the defendant where under, 10 cents of property was agreed to be conveyed to the plaintiff at the rate of ` 2,10,000/- per cent. An amount of ` 2 lakhs was paid towards advance sale consideration. The period fixed for performance was three months. Subsequently a further amount of ` 8 lakhs was paid towards advance sale consideration, thus making the total advance at Rs.10,00,000/-. Alleging failure on the part of the defendant to perform the agreement, the suit **RFA 582/2010 & 416/2013** -: 3 :- is filed. 8. The defendant contended that, the plaintiff was not ready and willing to perform the contract and had committed breach of the contract. The defendant had sent a notice dated 27.12.2006(Ext.B10), expressing his readiness and willingness to execute the sale deed. However, the same was returned as unclaimed. Thereafter on 15.01.2007, the defendant sold the property to her husband as per Ext.A5 Sale Deed. Thus the defendant challenged the claim for specific performance. 9. The husband of the defendant was impleaded as additional second defendant. Thereafter the defendants filed an additional written statement, jointly. It was contended that the agreement for sale was entered into to tide over the financial stringency of the defendants; that on the execution of the agreement a loan was availed with a liability to pay 18% interest. Consequent on the non-performance of the agreement by the plaintiff **RFA 582/2010 & 416/2013** **==> picture [34 x 9] intentionally omitted <==** the defendant has sustained damages. Therefore the plaintiff is not entitled for specific performance or return of the advance sale consideration. 10. The trial court, though found that it was the defendant who committed breach of contract, exercised its discretion under Section 20 of the Specific Relief Act, not to grant a decree for specific performance. The suit was decreed for return of the advance sale consideration with interest, charged on the property. 11. The point that arises for consideration is :- “ _Is the plaintiff entitled for a decree for specific performance ?”_ 12. The execution of Ext.A1 agreement is admitted. That a total amount of ` 10 lakhs was received towards advance sale consideration in two instalments, is also admitted. The dispute between the parties is as to who was at fault. **RFA 582/2010 & 416/2013** -: 5 :- 13. Ext.A1 agreement stipulated the following obligations to be fulfilled by the defendant; the registered agreement subsisting over the property was to be got released, measure the property in the presence of the plaintiff, provide encumbrance certificates and documents of title, obtain registration copy of the title deed. The obligation cast on the purchaserplaintiff was to give a further advance of ` 8 lakhs towards consideration on 06.10.2006. The trial court held that the defendant failed to perform her obligations under the agreement. 14. The period fixed for performance of the agreement was three months, which expired on 30.12.2006. It appears that the original of the title deed of the defendant was lost and the defendant was required to do the necessary to convey absolute title. Ext.B2 is the registration copy of the title deed of the defendant. Perusal of the same shows that it was obtained in the **RFA 582/2010 & 416/2013** -: 6 :- year 2005. Ext.B3 is the possession certificate dated 20.12.2006, Ext.B4 is the tax receipt which is dated 01.04.2006. Exts.B5 and B7 are the encumbrance certificates dated 18.04.2002 and 13.12.2006 and 20.12.2006 respectively. Exts.B8 and B9 are the public notices published in Mathrubhumi daily on 14.01.2006 and 10.07.2006 with regard to loss of the original title deed. Ext.B1 is the sketch relating to the property issued from the village office, Thrikkakkara north village. All the documents as above would indicate that, but for any material evidencing release of the registered agreement that was subsisting over the property all other obligations cast on the defendant have been complied with. The plaintiff would contend that the documents were not made available to him. But, when the documents are available there is no reason why it should not be made available to the plaintiff. The defendant do not stand to any benefit by doing so. **RFA 582/2010 & 416/2013** -: 7 :- 15. The plaintiff would dispute that the joint measurement of the property, as was required under the agreement was not done and that Ext.B1 was not prepared based on joint measurement. The learned counsel for the plaintiff relied on the deposition of the Village Officer who was examined as PW5 along with Ext.X1, the copy of the movement register maintained at the village office, to contend that measurement of the property was not conducted. PW5 has deposed that no records evidencing measurement of the property at the instance of the defendant is available in the office and that it has not been noted in the movement register. However, in the cross-examination he said that Ext.B1 sketch is one issued from the village office and that it mentions the four boundaries in the property. Of course, as contended by the learned counsel for the plaintiff there is no material to show that a joint measurement was conducted. **RFA 582/2010 & 416/2013** -: 8 :- 16. Though no document with regard to release of the subsisting agreement was produced, it is to be noticed that the defendant had, on 27.12.2006, issued Ext.B10 notice to the plaintiff expressing willingness to go ahead with the agreement. In Annexure.B10 notice, it has been stated that the defendant has performed her part of the agreement and that she is ready to execute the sale deed on receipt of balance sale consideration. Ext.B10 notice was returned as ‘unclaimed’ as is evidenced by Ext.B11. PW1 has deposed that, during the relevant time he was not available at his residence. The plaintiff claims that, during the period stipulated in the agreement, the defendant was approached through the witnesses in Ext.A1 agreement for performance. However, the defendant evaded. The said witnesses were examined as PWs.2 and 3. The fact remains that, but for the oral testimony, there is no document evidencing that, within the period stipulated the plaintiff had expressed his **RFA 582/2010 & 416/2013** -: 9 :- readiness to go ahead with the transaction and required the defendant to perform the same. A notice was sent to him by the defendant within the period, seeking performance of the contract. 17. It is the contention of the plaintiff that, for purchasing the property in question the plaintiff had sufficient funds with her, obtained by sale of a property belonging to him through Ext.A2 Sale Deed dated 23.08.2006. 18. It is having due consideration of the afore stated facts that the trial court has chosen not to grant a decree for specific performance but directed refund of the advance amount with interest. On the evidence as above, the exercise of discretion by the trial court cannot be faulted and the decree warrants no interference. 19. Now coming to RFA 416/2013, the defendant challenges the decree for specific performance of the **RFA 582/2010 & 416/2013** -: 10 :- agreement dated 17.03.2010. The agreement was entered into by the husband of the defendant in the earlier suit, after the expiry of the period of agreement therein. The property was conveyed in his favour by his wife, who is the defendant in the other suit, as per Ext.A2 Sale Deed dated 15.01.2007. In this suit also the agreement sought to be enforced is marked as Ext.A1. The agreement is dated 17.03.2010. It is sought to be specifically enforced. Ext.A1 recites the sale consideration as ` 3 lakhs per cent and that an amount of ` 9,50,000/- was paid on the date of the agreement. The period fixed for performance was nine months. According to the plaintiff, on 17.12.2010 a further amount of ` 10,50,000/- was paid towards advance thus making the total advance sale consideration at ` 20 lakhs. Alleging failure on the part of the defendant to perform the agreement, the suit was filed. **RFA 582/2010 & 416/2013** -: 11 :- 20. The defendant contended that the plaintiff is a money lender and that he had borrowed an amount of ` 3 lakhs from the plaintiff. To secure the loan, the plaintiff had obtained signed papers of the defendant and his wife. He had also obtained copies of the title deeds and prior deed. Such signed papers have been fabricated into the agreement, is the contention. 21. The trial court held that the execution of the agreement has been proved through the evidence of PW2, one of the attestors. The court also took note of the signature on the reverse side of the first page of Ext.A1 agreement, acknowledging receipt of the further advance on 17.12.2010. The court noticed that there is no case that signature was affixed on the reverse side of blank paper. The court also took note of the fact that the notice issued to the defendant was not replied. 22. The point that arises for determination is, **RFA 582/2010 & 416/2013** -: 12 :- “ _Was the trial court right in having exercise of discretion_ _to grant a decree for specific performance ?”_ ## 23. In _**Thomas v. Merlin Construction Company (P) Ltd 2016 (3)**_ _**KLT 84**_ a Division Bench of this Court held that nonhanding over of possession of property under a purported agreement for sale even when substantial part of the sale consideration is paid, is a circumstance that the transaction between the parties could be a loan transaction. Here, though the total sale consideration is approximately ` 30 lakhs and an amount of ` 20 lakhs is claimed to have been paid, admittedly the plaintiff was not in possession of the property. 24. So also it is to be noticed that, the period fixed for performance of Ext.A1 agreement is nine months. The said period is claimed to have been extended for a further period of four months. The obligations cast on the defendant under Ext.A1 is only to make available the title deed, encumbrance certificate, tax **RFA 582/2010 & 416/2013** -: 13 :- receipt, possession certificate, measurement sketch and identity card. To make available the said documents, under ordinary circumstances, there is no reason to fix such a long period of nine months. No special explanation is given for providing such a long period. So also, as noticed, the period of the agreement is stated to have been extended for a further period of four months. Providing such long period without suggesting any specific reason also probabilises the defence case that the transaction between the parties was a money transaction. 25. It was observed by the trial court that the payment of the balance sale consideration has been acknowledged by the defendant and his wife on the reverse side of Ext.A1 and that the defendant never had a case that signatures were affixed on the reverse side of the page. Here it is to be noticed that, all that the defendant had contended was that, signed blank papers **RFA 582/2010 & 416/2013** -: 14 :- were given as security. It has been suggested to PW1 during cross-examination that, the positioning of the signatures on the reverse side of Ext.A1 and the typed matter acknowledging payment of further amount is suspicious and that the typing is a subsequent interpolation. On a perusal of the reverse side of Ext.A1, such suggestion cannot be totally brushed aside. There is an artificial gap between the writing and the signatures. Here I must pause to say that, I have not entering a finding that it was a subsequent interpolation but have only noticed that it does not inspire confidence. 26. The trial court observed that, the defendant as DW1 would contend that an amount of ` 3 lakhs was received by him in two instalments, when he never had such a case in the written statement. The trial court seems to have taken view that such a story is being built up to explain the signature on the reverse side of **RFA 582/2010 & 416/2013** -: 15 :- Ext.A1. However it is to be noticed that, the defendant did not have a case that on payment of the subsequent instalment, he signed on the reverse side of Ext.A1. Therefore, the said conclusion of the trial court is not justified. 27. The aspects as above, should have gone into the zone of consideration while exercising the discretion under Section 20 of the Specific Relief Act. It was not taken due cognizance of, by the trial court. On the facts and circumstances, a decree for return of the advance amount with interest is just and proper. Though the defendant would contend that only Rs.3 lakhs was paid to him, on the face of Ext.A1 such contention cannot be upheld. 28. On the discussions as above, the decree in OS 358/2007 is only to be confirmed but directing that the decree amount will be first charge over the plaint schedule property. OS 439/2011 is to be decreed for **RFA 582/2010 & 416/2013** -: 16 :- return of ` 20,00,000/- with interest as claimed in the plaint till the date of decree, and thereafter at 9%. 29. In the result, RFA 582/2010 is disposed of affirming the decree of the trial court with a clarification that, the plaintiff shall be entitled to realise the decree amount as a first charge on the plaint schedule property. RFA 416/2013 is allowed. The decree and judgment of the trial court is set aside. The suit OS 439/2011 is decreed allowing the plaintiff to recover an amount of ` 20 lakhs with interest at the rate of 12% p.a. (as claimed in the plaint) from the date of suit till date of decree, and thereafter at 9% p.a from the defendant and his assets. The decree amount shall be a second charge on the plaint schedule property. Sd/- **SATHISH NINAN** kns/- //True Copy// P.S. to Judge