P.J. Jacob v. Jijo Placid

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH & THE HONOURABLE MR. JUSTICE SATHISH NINAN** **THURSDAY, THE 31ST DAY OF AUGUST 2017/9TH BHADRA, 1939** **RFA.No. 118 of 2004 ( ) ------------------------** **AGAINST THE JUDGMENT AND DECREE IN OS.45/1999 OF SUB COURT, KOTTAYAM DATED 11-12-2003** **APPELLANT/DEFENDANT:** **-------------------** **P.J.JACOB, S/O JOSEPH, RESIDING AT PALAMPURACKAL HOUSE, KANAKKARY KARA, KANAKKARY VILLAGE.** **BY ADV. MARTIN JOSE** **RESPONDENT/PLAINTIFF: ---------------------** **JIJO PLACID, S/O PLACID RESIDING AT KUDILIL HOUSE, PADINJATTUMBHAGOM KARA, ATHIRAMPUZHA VILLAGE.** ## **K.S. HARIHARAPUTHRAN** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 25-08-2017, THE COURT ON 31.08.2017 DELIVERED THE FOLLOWING:** **vdv** ## **V.Chitambaresh & Sathish Ninan, JJ. ============================== R.F.A No.118 of 2004 ========================== Dated this the 31[st] day of August, 2017** ## **JUDGMENT** ## Sathish Ninan, J A decree for specific performance of an agreement for sale is under challenge by the defendant in the suit. 2. Ext. A1, the agreement for sale dated 23.6.1998 relates to 47.83 cents of property situated by the side of Ernakulam - Kottayam main road. As per Ext.A1, the property is agreed to be conveyed at the rate of Rs.15,000/- per cent, thus totaling to Rs.7,70,550/-. The period fixed under Ext A1 for performance of the agreement is six months. Going by Ext A1, an amount of Rs.5 lakhs is paid as advance sale consideration. Alleging default on the part of the defendant to execute the conveyance in pursuance to Ext.A1, the suit is filed for specific performance of Ext A1 agreement. There is also an alternate prayer A.S No.118/2004 2 for refund of the advance amount of Rs. 5 lakhs with interest. 3. The defendant contended that Ext A1 was executed as security for a loan transaction and not as an agreement for sale. It is contended that the brother of the defendant borrowed amounts from the plaintiff totalling to Rs.3,50,000/- on various occasions. He did not have any assets to furnish as security for the borrowed amount and accordingly, as security for the said loan transaction, Ext A1 agreement was executed believing that it is a mortgage deed. The receipt of the alleged advance amount of Rs. 5 lakhs under Ext A1 was also denied. The court below upheld Ext A1 and granted a decree for specific performance. The same is under challenge. 4. Heard Sri. Martin Jose learned counsel for the appellant/defendant and Sri. K.S Hariharaputhran learned counsel for the respondent/plaintiff. A.S No.118/2004 3 5. Though the learned counsel for the appellant/ defendant strenuously argued that Ext A1 was executed by the defendant believing it to be a mortgage deed and that he never intended to execute an agreement for sale, on the evidence we find it difficult to uphold the said contention. The evidence of PWs 1 and 2 namely the plaintiff and the attestor in Ext A1, read along with the evidence of the defendant as DW1 would only lead to a conclusion against the appellant/defendant. The defendant and his brother (Pws 1 and 2) both are literate and have education sufficent enough to understand the nature of Ext.A1. On the evidence, the finding of the court below in the said regard is not liable to be interfered with. 6. Now the question is whether the plaintiff is entitled for a decree of specific performance. Merely on the finding that Ext A1 is an agreement for sale executed by the defendant, the plaintiff is not A.S No.118/2004 4 entitled to a decree for specific performance. Under Ext A1 agreement, the property covered under Ext A2 title deed is agreed to be conveyed. Pertinently, the boundary descriptions in Ext A1 does not tally with the boundary descriptions in Ext A2. Though the learned counsel for the respondent/ plaintiff would contend that there has been change in the boundary by passage of time, no such explanation is seen put forward by the parties. As held by the Apex Court, to grant a decree for specific performance, certainty regarding the terms of the contract is essential **Ganesh Shet v Dr.C.S.G.K.Setty and others AIR 1998 SCC 2216)** . The difference in the boundaries available in Exts A1 and A2 assume significance in the background of yet another contention. Learned counsel for the appellant/ defendant points out that going by Ext A1 agreement for sale, the property includes a building, however, the building does not find a place in the A.S No.118/2004 5 title deed Ext A2. The learned counsel contends that Ext A2 was executed in favour of the defendant by his father regarding a portion of the property owned by him and that the building is situated in the remaining property retained by the father. A specific contention to the said effect has been raised in the written statement. Ext.B1 is a certificate issued by the village officer Kanakary wherein it is stated that there is no building in the property covered under Ext.A2 document. But Ext.A1 agreement includes a building though it is executed in respect of the property covered under Ext.A2. It is also pertinent to note that in Ext.A1, while fixing the value of the property, no valuation is seen made for the building stated to be situated in the property. Suffice to note that there is a cloud regarding the exact identity of the property in respect of which the alleged agreement for sale is entered into. The learned counsel for the A.S No.118/2004 6 respondent/plaintiff would contend that whether there is a building in the property or not could be identified in execution while the property is delivered over. We do not agree with the submission. To grant a decree for specific performance, it is necessary that the subject matter must be specific and certain. So also the fact that the original title deed relating to the property Ext A2 is stated to have been handed over to the plaintiff by the defendant at the time of entering into the agreement for sale casts doubt relating to the true nature of the transaction since in the normal course of events the original title deed of the property is not handed over to the proposed purchaser while entering into a mere agreement for sale. So also is the fact that though it is contended that out of the total sale consideration which would amount to Rs.7,70,550/- an amount of Rs. 5 lakhs has been paid as advance sale consideration, the A.S No.118/2004 7 plaintiff has not been put in possession of the property. As held by this Court in 2016(3) KLT 84 when a sizeable portion of the total sale consideration has been paid but the person referred to as the intending purchaser has not been put in possession and no explanation is forth coming as to why possession has not been transferred, it is only probable that the transaction does not represent a sale agreement in its true sense. Added to all these is the fact that Ext X1 demand draft drawn by the brother of the plaintiff (DW2) for Rs.10,500/- has been encashed by the plaintiff as revealed by Ext A12(a). The defendant and his brother as DW2 claim that the said DD represents payment of monthly interest for the sum of Rs.3.50 lakhs borrowed by DW2. Though a case is sought to be put forward to the effect that there were some business dealings between the brother of the defendant and the plaintiff regarding the sale of Amway A.S No.118/2004 8 products, neither the plaintiff as PW1 nor in the cross examination of DW1 such a case is put forward. Suffice to conclude that the circumstances as brought out in the case dissuade us from exercising the discretion under Section 20 of the Specific Relief Act in favour of the plaintiff. The plaintiff is not entitled for a decree for specific performance. The decree passed by the trial court is liable to be interfered with. 7. Since the genuiness of Ext.A1 has been found, there is no reason to disbelieve the recital therein regarding the payment of Rs. 5 lakhs. Necessarily the plaintiff is entitled for a decree for refund of the advance amount paid under Ext A1. In the result, the Appeal is allowed. The decree and judgment of the court below is set aside. The plaintiff is granted a decree for realisation of an amount of Rs. 5 lakhs with interest at the rate of 9% A.S No.118/2004 9 per annum from the date of Ext A1 (23.06.1998) till realisation, as a charge from the plaint schedule property and also from the defendant personally and from his assets. No costs. ## **V.Chitambaresh, Judge** **Sathish Ninan, Judge** vdv //TRUE COPY// P.A TO JUDGE