P. Babu v. Thomas Koshy

``` 2024:KER:60320 ``` **==> picture [58 x 58] intentionally omitted <==** RSA NO. 1095 OF 2013 **1** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM ``` ``` FRIDAY, THE 2[ND] DAY OF AUGUST 2024 / 11TH SRAVANA, 1946 ``` ## **`RSA NO. 1095 OF 2013`** ``` ARISING OUT OF THE JUDGMENT DATED IN OS NO.41 OF 2008 OF SUB COURT, ``` ``` PATHANAMTHITTA ``` ## **`APPELLANT/APPELLANT/PLAINTIFF:`** ``` P. BABU AGED 58 YEARS S/O PHILIPOSE, PLAVILAYIL HOUSE, KALANJOOR MURI, KALANJOOR VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT. ``` ## **`BY ADV SRI.V.PHILIP MATHEW`** ## **`RESPONDENT/RESPONDENT/DEFENDANT:`** ``` THOMAS KOSHY AGED 61 YEARS S/O KOSHY, THOPPIL HOUSE, KALANJOOR MURI, KALANJOOR VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT-689 645. ``` ``` BY ADVS. SRI.C.S.DIAS SRI.P.GOPAKUMARAN NAIR SRI.N.K.SUBRAMANIAN ``` ``` THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02.08.2024, THE ``` ``` COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` RSA NO. 1095 OF 2013 **2** **==> picture [58 x 58] intentionally omitted <==** ``` 2024:KER:60320 ``` ## **`JUDGMENT`** 1. The plaintiff in a suit for specific performance is the appellant herein. The plaintiff filed the suit, scheduling 19 cents of land covered by Ext.A4 document, praying for a decree directing the defendant for specific performance of the oral agreement dated 17.05.2001 for re-transfer of scheduled property in favour of the plaintiff by executing the re-transfer deed after accepting Rs.1,10,000/-, and, in case of failure on the part of the defendant, praying the court to execute the Sale Deed. 2. The contention of the plaintiff is that on 17.05.2001, the plaintiff borrowed an amount of Rs.1,00,000/- from the defendant agreeing to repay the same with interest at 12% per annum. In order to secure the said borrowal Ext.A4 Deed dated 17.05.2001 was executed as insisted by the defendant. The execution of Ext.A4 Sale Deed was on the specific oral agreement that the defendant will execute a re-transfer deed in respect of the said property when the plaintiff repays Rs.1,00,000/- with interest. The possession of the plaint schedule property was also given to the defendant to take usufructs from the property by the defendant towards the interest for the loan. The plaintiff on 03.10.2001 approached the defendant and offered Rs.1,00,000/- **==> picture [58 x 58] intentionally omitted <==** RSA NO. 1095 OF 2013 **3** `2024:KER:60320` to him, demanding execution of a re-transfer deed in his favour. But the defendant demanded an amount of Rs.1,60,510/- which is against the oral agreement. He subsequently, several times with mediators approached the defendant. But all the times he demanded more amount for re-transfer of the property. The plaintiff issued Ext.A5 legal notice dated 02.12.2004 to execute re-transfer deed in respect of the scheduled property after accepting Rs.1,00,000/- from the plaintiff within 7 days from the date of receipt of the same. Though the defendant accepted the notice, he failed to execute the re-transfer deed in compliance with the oral agreement. There was a mediation convened on 10.12.2005 at the residence of PW3 in which a mediation settlement was arrived at between the plaintiff and the defendant and the defendant agreed to re-transfer the scheduled property in favour of the plaintiff after accepting Rs.1,10,000/- within a period of two years. Though the plaintiff approached the defendant on 28.11.2007 with the agreed amount of Rs.1,10,000/- , the plaintiff refused to accept it and re-transfer the scheduled property in favour of the plaintiff, insisting on the earlier demand of Rs.1,60,510/-. The cause of action for the suit is stated to have **==> picture [58 x 58] intentionally omitted <==** RSA NO. 1095 OF 2013 **4** `2024:KER:60320` arisen on 17.05.2011, the date on which Ext.A4 Sale Deed was executed and an oral agreement was entered into between the plaintiff and the defendant, on 10.12.2005, the day on which the mediation took place and on 28.11.2007, the day on which the defendant refused to accept Rs.1,10,000/- to execute the transfer deed. 3. The defendant resisted the prayers in the suit, contending that the suit is barred by limitation; that Ext.A4 is a pucca sale deed; that there was no oral agreement for re-conveyance between the plaintiff and the defendant. 4. On the side of the plaintiff, the plaintiff was examined as PW1. The scribe of Ext.A4 document was examined as PW2. The alleged mediator was examined as PW3 and marked Exts.A1 to A13. On the side of the defendant, the defendant was examined as DW1 and marked Ext.B1 to B6. 5. The Trial Court dismissed the suit holding that the plaintiff failed to prove that Ext.A4 was executed only as a security for the loan; that the plaintiff failed to prove the oral agreement for reconveyance claimed by him; and that the suit is barred by limitation. Though the plaintiff filed an appeal before the First **==> picture [58 x 58] intentionally omitted <==** RSA NO. 1095 OF 2013 **5** ``` 2024:KER:60320 ``` Appellate court, the same was also dismissed confirming the judgment and decree of the Trial Court. 6. This Court admitted the Regular Second Appeal on the following substantial questions of law on 12.09.2013: - i. Did the courts below go wrong in not adverting to the contents of Ext.A13 letter and the recitals in Ext.A4 with regard to the earlier money transactions and so, were the courts below right in non-suiting the plaintiff? - ii. Are not the circumstances brought out in evidence sufficient to justify the claim for reconveyance? - iii. Whether the courts below went wrong in interpreting the true nature of Ext.A4 document? 7. I heard the learned counsel for the appellant, Sri. V. Philip Mathews and the learned counsel for the Sri. N.K.Subramanian. 8. The learned counsel for the appellant argued that the plaintiff had produced sufficient evidence to show that Ext.A4 Sale Deed was executed only as a security. Though Ext.A13 proved that there were earlier money transactions between the plaintiff and the defendant, the same was not considered by the Trial Court as well **==> picture [58 x 58] intentionally omitted <==** RSA NO. 1095 OF 2013 **6** ``` 2024:KER:60320 ``` as the Appellate Court. According to him, Ext.A13 would substantiate the case of the plaintiff that the plaintiff had taken a loan from the defendant and Ext.A4 Sale Deed was executed only as a security. According to him, in view of Article 54 of the Limitation Act, the period of three years for filing a suit for specific performance of a contract is to be counted from the date on which the plaintiff has noticed that performance is refused, when no date is fixed for performance of the agreement for sale. According to him, the plaintiff came to know about the refusal on the part of the defendant only on 28.11.2007, the date on which the defendant refused to accept the amount borrowed by the plaintiff from him. The Trial Court as well as the Appellate Court wrongly calculated the period of limitation from 03.10.2011, the date on which the plaintiff approached the defendant and the defendant refused to execute the sale deed. According to him, the earlier acts on the part of the defendant do not amount to refusal, but it is only postponement/ avoidance/forbearance and it would not amount to refusal. He cited a decision of the Hon'ble Supreme Court in **Valliammal v. Murali [2023 KLT OnLine 1777 (SC)]** to substantiate that refusal and forbearance are opposite and **==> picture [58 x 58] intentionally omitted <==** RSA NO. 1095 OF 2013 **7** `2024:KER:60320` hence forbearance does not amount to refusal. He also cited the decision of this Court in **Ummer v Kunhava [2007 (4) KLT 469]** to substantiate the proposition that an agreement of contract for sale of immovable property need not be in writing. 9. On the other hand, the learned counsel for the respondent argued that the decisions rendered by the Trial Court as well as the Appellate Court are well considered, answering all the points on issue and arriving at the right conclusion. He contended that even counting from Ext.A5 lawyer notice, the period of limitation expired much earlier than the date of filing the suit. He pointed out that admittedly the possession of the property was given and the prior title deeds, encumbrances certificate and land tax receipts were delivered at the time of execution of Ext.A4 document, which would indicate that the transaction is a real sale and not a security transaction as alleged by the plaintiff. He relied on a decision of this Court in **Bhasy v. Thoman [2022 (4) KLT 624]** to substantiate the proposition that, as per Section 55(3) of the Transfer of property Act, when prior title deeds were transferred, it would not indicate the transaction was a money **==> picture [58 x 58] intentionally omitted <==** RSA NO. 1095 OF 2013 **8** ``` 2024:KER:60320 ``` transaction but it would only indicate that it was an actual sale in respect of the property covered by it. 10. On going through the pleadings in this case, I am of the view that this is a case in which both the parties are not telling the truth before the court. According to the plaintiff, the plaintiff borrowed an amount of Rs.1,00,000/- on 17.05.2001, the date on which Ext.A4 Sale Deed was executed. But Ext.A4 would indicate that consideration is already received prior to the date of Ext.A4 document. As rightly pointed out by the learned counsel for the appellant, Ext.A13 would prove the prior money transactions between the parties. The contention of the learned counsel for the respondent is that it relates to the transaction with respect to the purchase of rubber sheets. At any rate, Ext.A13 would indicate that there is prior liability from the plaintiff to the defendant. But it does not in anyway indicate that Ext.A4 was executed as a security for loan. If the intention of the parties was to execute Ext.A4 as a security for loan, it would have been executed when the first loan was availed. In this case, it is executed only on 17.05.2001. So the past liability may be a reason for execution of Ext.A4 Sale Deed. As rightly contended by the learned counsel for **==> picture [58 x 58] intentionally omitted <==** RSA NO. 1095 OF 2013 **9** ``` 2024:KER:60320 ``` the respondent, if Ext.A4 was intended only as a security for loan, the delivery of the prior title deed, encumbrances certificate and tax receipts were not required. That apart, admittedly possession was also given to the defendant. All these would indicate that Ext.A4 was executed, not as a security for the loan. 11. The contention of the learned counsel for the plaintiff is that the oral agreement between the parties is sufficiently proved from the circumstances of the case as well as the evidence of Pws 2 and 3. Here also, as rightly held by this Court in **Ummer** (supra), when oral agreement is pleaded by the plaintiff, there is a heavy burden on the plaintiff to discharge his burden. Here, from the evidence of PW1, no explanation is given as to why a written agreement was not executed for the alleged agreement for reconveyance. If the real intention between the parties was to reconvey the property after receiving the loan amount from the plaintiff by the defendant, nothing prevented the plaintiff from insisting for a written agreement for the same. On that ground, the contention of the plaintiff that there is an oral agreement between the parties cannot be sustained. **==> picture [58 x 58] intentionally omitted <==** RSA NO. 1095 OF 2013 **10** `2024:KER:60320` 12. With regard to the question of limitation, also as per the plaint the cause of action arose on 28.11.2007, the date on which the plaintiff offered Rs.1,10,000/- to the defendant on the basis of the mediation alleged to have taken place on 10.12.2005. The alleged mediation is not proved. Even otherwise, Ext.A5 lawyer notice is dated 02.12.2004, in which the plaintiff has made a demand to reconvey the property within seven days from the date of receipt of the said notice. In such a case also, the cause of action would arise from the date of expiry of seven days from the date of receipt of Ext.A5 notice by the defendant. If the limitation is calculated from the said date also, it expired much before the date of the suit. The contention of the learned counsel for the appellant that the earlier acts on the part of the defendant are only a postponement, forbearance/avoidance cannot be accepted in view of the specific pleading in the plaint itself that on 03.10.2011 the plaintiff approached the defendant and offered Rs.1,00,000/- to him demanding execution of a re-transfer of the scheduled property to him, but the defendant failed to accept the offered amount by demanding more amount. From the said act of the defendant, the plaintiff had come to know that the defendant is refusing the **==> picture [58 x 58] intentionally omitted <==** RSA NO. 1095 OF 2013 **11** `2024:KER:60320` execution of reconveyance. Hence, even going by the pleadings in the plaint, the cause of action arose on 3.10.2011 and the suit should have been filed within three years from the said date. 13. In view of the aforesaid discussion, I do not find any merit in this Regular Second Appeal and the questions of law framed by this Court are answered in the negative. Accordingly, the Regular Second Appeal is dismissed. **Sd/-** **M.A.ABDUL HAKHIM JUDGE** Shgxx