## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE SATHISH NINAN**
**FRIDAY, THE 13TH DAY OF MARCH 2020 / 23RD PHALGUNA, 1941**
## **RSA.No.1086 OF 2013**
**AGAINST THE JUDGMENT AND DECREE DATED 11.07.2013 IN AS NO.37/2012 OF DISTRICT COURT, THIRUVANANTHAPURAM, ARISING FROM THE JUDGMENT AND DECREE DATED 28.07.2011 IN OS NO.1032/2005 OF III ADDITIONAL MUNSIFF'S COURT, THIRUVANANTHAPURAM**
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**APPELLANTS/RESPONDENTS IN AS NO.37/2012/DEFENDANTS IN OS NO.1032/2005:**
**1 SUDARSANAN, S/O.APPUKUTTAN, AGED 52 YEARS, NEEROLI VEEDU, VAZHAMUTTAM, PACHALLOOR, THIRUVANANTHAPURAM, NOW RESIDING AT VIRAPPIL MULLANKUZHI VEEDU, KOLIYOOR, MUTTAKKADU P.O., THIRUVANANTHAPURAM - 695 523.**
**2 SUJATHA, W/O.SUDARSANAN, AGED 43 YEARS, NEEROLI VEEDU, VAZHAMUTTAM, PACHALLOOR, THIRUVANANTHAPURAM, NOW RESIDING AT VIRAPPIL MULLANKUZHI VEEDU, KOLIYOOR, MUTTAKKADU P.O., THIRUVANANTHAPURAM - 695 523.**
## **BY ADV. SRI.N.K.SUBRAMANIAN**
**RESPONDENT/APPELLANT IN AS NO.37/2012/PLAINTIFF IN OS NO.1032/2005:**
**SATHIKUMAR, S/O.THOMSON NADAR, AGED 51 YEARS, AJITH NIVAS, KOLIYOOR, MUTTACAUD P.O., THIRUVANANTHAPURAM - 695 523.**
**R1 BY ADV. SRI.K.JAJU BABU (Sr.) R1 BY ADV. SMT.M.U.VIJAYALAKSHMI**
**THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11-03-2020, THE COURT ON 13-03-2020 DELIVERED THE FOLLOWING:**
## **SATHISH NINAN, J.**
**= = = = = = = = = = = = = = = = = = RSA No.1086 of 2013**
**= = = = = = = = = = = = = = = = = = Dated this the 13[th] day of March, 2020**
## **JUDGMENT**
The suit for specific performance of an agreement for sale was decreed by the trial court for return of the advance sale consideration with interest. On appeal by the plaintiff, the appellate court modified the decree and granted the relief of specific performance. Aggrieved, the defendants are in second appeal.
2. Ext.A1 agreement dated 02.05.2005, is sought to be specifically enforced. As per Ext.A1, an extent of 4.5 cents of property is agreed to be sold for a total consideration of `75,000/-. The period fixed for performance is 2 months. An amount of `25,000/- is stated to have been paid towards advance sale consideration. Alleging failure on the
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part of the defendant to perform the agreement, the suit is filed.
3. The defendants, though admitted the signatures in Ext.A1, denied the agreement for sale. According to them, there was only a monetary transaction between the parties for an amount of `25,000/-, in the course of which they were required to hand over signed blank papers. The same have been misutilized and Ext.A1 created. The suit is filed on the strength of a fabricated document, is the contention.
4. The trial court held that defendant's case is more probable and exercised its discretion not to grant a decree for specific performance, and accordingly granted a decree for return of the advance sale consideration with interest. On appeal by the plaintiff, the first appellate court found that Ext.A1 was executed as an agreement for sale
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and that there are no circumstances disentitling the plaintiff for a decree for specific performance. Accordingly, a decree for specific performance was granted.
5. Heard learned counsel on either sides on the
following substantial questions of law:-
(i) Is the finding of the lower appellate court regarding the genuineness of Ext.A1 agreement for sale, based on evidence ?
(ii) Is the exercise of discretion by the lower appellate court, to grant a decree for specific performance, arbitrary and vitiated ?
6. As noticed, the signatures in Ext.A1 agreement is admitted to be that of the defendants. They allege that blank papers obtained in the course of money transaction was misutilised for fabrication of Ext.A1. PW2 is the witness to Ext.A1 and PW3 is the scribe. They spoke about the
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execution and the genuineness of Ext.A1. On appreciation of the evidence, the lower appellate court has found that there is nothing to discredit their version. The period fixed for performance of the agreement is only two months. The too short a period fixed, is an indication that the transaction would not have been a money transaction. Going by the plaintiff's evidence, the documents relating to the property which were handed over for the prior preparation of the agreement were returned to the defendants subsequently. If the transaction between the parties was a loan transaction, the documents would not have been returned to the defendants; the plaintiff would have retained the same till the discharge of the entire liability. According to the defendants they were in need of money and they approached the plaintiff on the instructions of one Raju to whom they disclosed their need.
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Pertinently, the said Raju is not examined. Ext.A2 notice, calling upon the defendants for performance of the agreement was issued on 27.06.2005. Within the period fixed for performance of Ext.A1. On the entire circumstances, I concur with the finding of the lower appellate court regarding the genuineness of Ext.A2 agreement for sale and that it was intended to be an agreement for sale.
7. Now coming to the question as to whether the exercise of discretion by the lower appellate court is perverse, on appreciation of the entire circumstances obtaining in this case, I do not think that the exercise of discretion by the lower appellate court cannot be in any manner found to be unjustified. One of the reasons projected by the learned counsel for the appellants-defendants to deny specific performance is that the plaint schedule property is the only residential property
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of the defendants. However, the evidence on record seem to indicate otherwise. Summons in the suit was issued to the defendants in another address where, according to the plaintiff, the defendant is residing. The summons was duly received. DW1 claimed that, that was his family house and that he had left the said address 36 years back. However the fact that the summons was received by him in the said address, indicates his residence there. That apart, DW1 the first defendant admitted that there is another property having an extent of 3.75 cents in the name of his wife-the second defendant. Though he deposed that the said property was sold in the year 2011, no material in the said regard is produced. Added to all these, no documents are produced to show that the defendants are residing in the plaint schedule property.
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8. The next circumstance urged by the defendants is that the property would fetch a much higher value than that mentioned in Ext.A1. The property is within the limits of the Trivandrum Corporation. To show the value of the property in the locality the defendants have produced Ext.B1 sale deed of the nearby property. Ext.B1 relates to 14.4 cents of property wherein the sale consideration was `7 lakhs. Noticeably Ext.B1 property contains a single storeyed building and its value was fixed at `2.75 lakhs. Therefore, the value of 14.4 cents of the property is only 4.25 lakhs, which comes to less than `30,000/- per cent. The said property has motor road access whereas the plaint schedule property can be accessed only through two wheeler. Comparing the value of the properties, as fixed in Ext.A1 and Ext.B1, it cannot be said that there is much of a disparity.
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9. Learned counsel for the appellants would, relying on Lalithambika v. Varghese [2004 3 KLT 892] submit that Ext.A1 agreement is signed only by the defendants and that indicates that the plaintiff was in a dominating position. Relying on the same judgment it was further contended that the handing over of the title deeds of the property indicates that the plaintiff was in a dominating position and that the transaction was only a money transaction. I am unable to agree with the said contention. In that case, the plaintiff was a money lender and it was in the said background, the aforesaid observations were made. At any rate, those are aspects which turn on the facts of each case. It cannot be said to be, a law laid.
10. Learned counsel for the appellants submits that there has been a steep rise in the market value of immovable properties and that Ext.A1
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agreement being of the year 2005, a grant of decree for specific performance at this distance of time would be inequitable. As noticed earlier, the period fixed for performance of Ext.A1 agreement was two months. The plaintiff issued lawyer notice calling upon the defendants for performance of the agreement within the period of two months. The suit for specific performance is also filed in the year 2005 itself. In the circumstances, no delay can be attributed on the part of the plaintiff in seeking for the relief of specific performance. That apart, this is not a case where the Court is exercising its discretion for the first time in this Second Appeal, to grant a decree for specific performance. The plaintiff is given a decree for specific performance by the first appellate court. If this Court was inclined to grant a decree for specific performance reversing the decree of the court
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below, then the distance of time between the agreement for sale and the passing of the judgment would have been of significance. On the facts obtaining in this case, I do not find that the passage of time is a ground to disentitle the plaintiff for a decree of specific performance. The decree for specific performance warrants no interference. The substantial questions of law are answered as above.
The decree and judgment of the lower appellate court warrants no interference. The appeal fails and is accordingly dismissed.
Sd/- **SATHISH NINAN JUDGE**
kns/-
//True Copy//
P.S. to Judge
