Shaibu and Usha v. Subhakumar

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN THURSDAY, THE 19[TH] DAY OF MAY 2022 / 29TH VAISAKHA, 1944 RFA NO. 860 OF 2011 (H) AGAINST THE JUDGMENT & DECREE DATED 29.7.2011 IN OS 80/2010 OF SUB COURT, PALA ## APPELLANTS/DEFENDANTS: 1 SHAIBU, S/o DAMODARAN, THATTAMPARAMBIL HOUSE, KOORALI P.O., ELAMKULAM KARA, ELAMKULAM VILLAGE, KANJIRAPPALLY TALUK. 2 USHA, W/o SHAIBU, THATTAMPARAMBIL HOUSE, KOORALI P.O., ELAMKULAM KARA, ELAMKULAM VILLAGE, KANJIRAPPALLY TALUK. BY ADVS. SRI.V.C.JAMES SRI.C.HARINDRAMOHAN NAIR ## RESPONDENT/PLAINTIFF: SUBHAKUMAR, S/o SASIDHARAN NAIR, CHURAPPADIYIL, KOORALI P.O., ELAMKULAM KARA, ELAMKULAM VILLAGE, KANJIRAPPALLY TALUK. BY ADV M.NARENDRA KUMAR THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 19.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RFA No.860 of 2011 2 ## **JUDGMENT** A suit for specific performance was decreed by the trial court against which defendants 1 and 2, the husband and wife, came up in appeal. It is pertaining to 12.81 cents of property. Ext. A2 agreement was executed on 09.01.2010, according to the plaintiff. Ext.A1 is the title document of the property with the defendants. Just after the execution of Ext.A2 agreement for sale, a civil suit was instituted as early as on 27.01.2010, by which the plaintiff sought a relief of permanent prohibitory injunction against the alienation of the property. It was instituted before the expiry of agreed period up to 10.05.2010. After the expiry of the agreed period, the present suit for specific performance was instituted. Thereafter the earlier suit was not pressed into service and was ended in dismissal. Ext.A4 series and A5 are the written statements and copy of the judgment rendered therein. Ext.A6 is the demand notice issued by the defendants as early as on 11.03.2010 alleging that Ext.A2 RFA No.860 of 2011 3 agreement was not intended to be acted upon, but executed only as a security to the loan transaction of Rs.1,00,000/to which Ext.A7 reply was issued by the plaintiff rejecting the contention raised by the defendants. Thereon, a complaint was lodged before Ponkunnam police station by the second defendant, the wife, against the execution of the agreement. 2. Two contentions were raised before the trial court that the present suit is barred under Order 2 Rule 2 CPC in view of the earlier suit instituted for injunction simplicitor and also disputed the due execution of the agreement. Inter alia a contention of comparative hardship was also taken up. Repelling all these contentions, the trial court found the agreement genuine and duly executed and also found that the plaintiff is entitled to specific performance of the contract for sale. Accordingly, a decree was passed, against which the defendants came up. 3. On coming into the question of bar under Order 2 Rule 2 CPC, the earlier suit was instituted for injunction before the commencement of cause of action for the relief RFA No.860 of 2011 4 of specific performance and as such there will not be any application of Order 2 Rule 2 CPC and the present suit for specific performance will not stand hit by Order 2 Rule 2 CPC. As such, there is no reason for interference to the finding rendered by the trial court on that point. 4. On coming into the due execution and genuineness of Ext.A2 contract for sale, the plaintiff has given oral evidence and both the witnesses to the document were also examined, besides the scribe and nothing was brought out to discredit their evidence regarding the due execution. On the other hand, the second defendant in the box as DW1 had admitted that a board was installed over the property for the sale of the property and it was removed subsequently, presumably after the execution of the agreement for sale. It is also brought to the notice of this court that at that time the property was valued by the Government below Rs.25,000/- per cent and what is agreed by way of sale consideration comes to Rs.3,85,000/- which is more than the amount fixed by the State Government for the said property. But, I could not find any merit in the abovesaid RFA No.860 of 2011 5 contention simply on the reason that the valuation made by the Government is only for valuating the property for the purpose of effecting any transfer and payment of stamp fee and the required registration fee and cannot brought under the purview of market value of the property or the value of sale of interest over the property. But it is a fact to be taken into consideration while considering the genuineness of the document and due execution and if it is found that what is agreed into is more than the value fixed by the Government, it would be a positive aspect favouring the due execution of document, that is to say, Ext.A2 agreement for sale. This has to be read along with the oral evidence rendered by PW1 to PW3. Hence, it is safe to conclude that the document is duly executed, intended by both the parties, especially when there is an admission from the part of the defendants that a board was installed over the property for its sale. It is also not pleaded or brought up at any time for what purpose they borrowed such a huge amount of Rs.1,00,000/- from the plaintiff. That is also an indication of the due execution of the agreement for sale and their intention. Nothing else was brought to the RFA No.860 of 2011 6 notice of this court against the due execution of the agreement for sale. 5. By virtue of Section 20 of the Specific Relief Act the court has to exercise discretion not to decree specific performance, even if it is found to be lawful to do so. The legal position was settled by the Apex Court in **Her Highness Maharani Shantidevi P. Gaikwad v. Savjibhai Haribhai Patel and Others [2001 KHC 1100:AIR 2001 SC 1462:** **(2001) 5 SCC 101]** and in **A.C. Arulappan v. Smt. Ahalya Naik [2001 KHC 1145 : AIR 2001 SC 2783 : (2001) 6 SCC 600].** As such in exercise of discretion, I am of the view that it is a fit case wherein the relief of specific performance can be rejected by compensating the other parties under Section 20 of the Specific Relief Act in view of the legal position settled by this court in **Anappath Parakkattu Vasudevakurup and Others v. C. Haridasan [2021 (6) KHC** **656].** Hence, the additional amount to be paid is computed and calculated at the tune of Rs.15,00,000/- based on the admission made by the learned counsel for the appellants regarding the present value of the property, which, RFA No.860 of 2011 7 according to them, comes to Rs.2,00,000/- per cent. It is also submitted that the property is situated with road frontage, having a building over it. As such, I am of the view that the defendants can retain the property with the burden of paying an additional amount of Rs.15,00,000/-, besides the return of the advance amount with 6% interest from the date of suit till realization. Hence, the decree and judgment of the trial court can be modified by granting a decree directing the defendants to pay an amount of Rs.15,00,000/- without the liability of interest for a period of three months from today, besides the return of the advance amount which comes to Rs.1,00,000/- with interest at the rate of 6% per annum from the date of suit till the date of its realization. It is made clear that there will be a charge over the property for the abovesaid amount. 6. Hence, the decree and judgment of the trial court is hereby modified by directing the defendants to pay an amount of Rs.15,00,000/- (Rupees fifteen lakhs only) without the liability of interest for a period of three RFA No.860 of 2011 8 months from today, failing which it will carry interest at the rate of 6% per annum till the date of payment or recovery and also a decree for return of the advance amount which comes to Rs.1,00,000/- (Rupees one lakh only) with interest at the rate of 6% per annum from the date of suit till the date of its realization from the defendants and charging over the plaint schedule property. Appeal is allowed in part accordingly by modifying the decree and judgment of the trial court. No further cost. **Sd/-** ## **P.SOMARAJAN** ## **JUDGE** DMR/-