Suresh M. v. Jijo Jacob, Thomas V. John and Sijo V. Jerom

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **MONDAY, THE 05TH DAY OF OCTOBER 2020 / 13TH ASWINA, 1942** ## **RFA.No.593 OF 2016** **AGAINST THE JUDGMENT AND DECREE IN OS 43/2010 DATED 30-032016 OF SUB COURT, THODUPUZHA** ## **APPELLANT/PLAINTIFF:** **SURESH M., AGED 38 YEARS, S/O. T.MUKUNDAN, RESIDING AT KARTHIKA HOUSE, 32/732 B, PALLICHAMBAYIL ROAD, PIPE LINE JUNCTION, PALARIVATTOM, ERNAKULAM-25.** **BY ADVS. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA** ## **RESPONDENTS/DEFENDANT & ADDL.DEFENDANTS 2 AND 3:** **1 JIJO JACOB AGED 39 YEARS, S/O. LATE CHACKO, VELUTHEDATHUPARAMBIL HOUSE, EZHALOOR, KUMARAMANGALAM VILLAGE, THODUPUZHA TALUK AND NOW RESIDING AT 28/1927, K.P.VALOON ROAD, NEAR ST.SEBASTIAN CHURCH, KADAVANTHARA, ERNAKULAM-20.** **2 THOMAS V.JOHN AGED 29 YEARS, S/O. IYPE JOHN, VELUTHEDATHUPARAMBIL HOUSE, EZHALLOOR,KUMARAMANGALAM VILLAGE, THODUPUZHA TALUK, PIN-685584. 3 SIJO V.JEROM AGED 36 YEARS, S/O. V.M.JEROM, VELUTHEDATHUPARAMBIL HOUSE, EZHALLOOR,KUMARAMANGALAM VILLAGE, THODUPUZHA TALUK.** **R2 & R3 BY ADVS. SRI.K.S.HARIHARAPUTHRAN** **SRI.DIPU JAMES SRI.GEORGE MATHEW SRI.M.D.SASI KUMAR SRI.SUNIL KUMAR A.G** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 2909-2020, THE COURT ON 05-10-2020 DELIVERED THE FOLLOWING:** ## **R.F.A.No.593 of 2016** ## **:-2-:** ## **Dated this the 5[th] day of October, 2020** ## **J U D G M E N T** The plaintiff in O.S.No.43/2010 before the Sub Judge, Thodupuzha, is the appellant. The suit for specific performance of agreement for sale and refund of advance money in the alternative was dismissed on 30.3.2016. This judgment and decree are challenged in this appeal. 2. The plaint schedule 2 acres and 25 cents were originally owned by the first defendant in the suit/first respondent herein. He sold the suit property to additional defendants 2 and 3 by executing Exts.B1 and B2 sale deeds registered on the same date, i.e., 21.4.2010. The appellant's case is that the first respondent before executing Exts.B1 and B2 sale deeds in the names of the subsequent purchasers had agreed to sell him the suit property for a value of Rs.30,10,000/- and executed Ext.A1 agreement for sale on 19.12.2008 ## **R.F.A.No.593 of 2016** ## **:-3-:** |after<br>receiving<br>an<br>advance<br>amount<br>of| |---| |Rs.30,00,000/-. The period of agreement was| |initially fixed for one month. According to the| |appellant, since the plaint property was| |outstanding on mortgage with a service bank and| |further the first respondent had personal| |liabilities, huge advance amount was demanded and| |paid. But since the first respondent was not able| |to discharge the liabilities and execute the sale| |deed within time stipulated, the agreement was| |extended for another period of three months which| |expired on 5.4.2009.| |3.<br>While the appellant was ready and willing| |to purchase the property, it is alleged that he got| |reliable information that first respondent was| |going to alienate the property in favour of third| |parties and therefore, he filed O.S.No.330/2009 on| |9.3.2009 before the Munsiff's Court, Ernakulam, for| |permanent injunction against alienation of suit| ## **R.F.A.No.593 of 2016** ## **:-4-:** property. On 4.4.2009, he sent a suit notice demanding execution of sale deed, to which the first respondent did not respond at all. O.S.No.330/2009 was, however, withdrawn on 12.6.2009 and present suit was filed seeking specific performance with alternative prayer for return of advance amount. 4. During the pendency of the suit, the first respondent sold the suit property to respondents 2 and 3 who purchased the property with notice of agreement for sale. According to the appellant, the subsequent purchasers are bound by the agreement for sale and all the respondents are liable to transfer the property in favour of the appellant after receiving the balance sale consideration. **==> picture [402 x 13] intentionally omitted <==** statement denying execution of Ext.A1 agreement for sale and contended that it was a fake and forged document cooked up by the appellant colluding with ## **R.F.A.No.593 of 2016** ## **:-5-:** one Sudhir Kumar who is the first attesting witness in the agreement. The first respondent denied having received any amount nor having agreed to sell the property for any consideration. He contended that he approached Sri.Sudhir Kumar, a friend of him for loan and the latter agreed to arrange an amount of Rs.20 lakhs from a close friend of his and took a few signed blank papers from the first respondent which was later misused and forged as the agreement for sale. It was also contended that the present suit was hit by Order II Rule 2 of the CPC since the appellant failed to obtain leave for instituting the present suit while O.S.No.330/2009 was withdrawn from Munsiff's Court, Ernakulam. 6. Respondents 2 and 3 filed written statement contending that they were bona fide purchasers for value without notice of the agreement for sale and therefore the agreement was not enforceable against ## **R.F.A.No.593 of 2016** ## **:-6-:** them. It was contended that after purchase of the property, they put up a building after availing huge loan received from financial institution and became absolute owners of the property. It is also contended that due care was taken at the time of purchase and the encumbrance certificate taken did not disclose existence of any charge or agreement for sale in respect of the property and thus opposed the suit. 7. The court below considered the question as to whether the suit was hit by Order II Rule 2 of the CPC and took the view that the suit was barred, accepting the plea of the respondents. The court below considered the issue as regards execution of agreement for sale and held that the appellant failed to prove the transaction. A negative finding was also entered against the appellant holding that though he was willing to purchase the property, was, in fact not ready with sufficient funds. On ## **R.F.A.No.593 of 2016** ## **:-7-:** these findings, the entire suit was dismissed. 8. On the side of the appellant, he was examined as PW1. PW2 is a witness cited to prove execution of the agreement for sale and extension of time made in his handwriting, on the reverse side of Ext.A1. Exts.A1 to A6 were documents were tendered as evidence on his side. The first defendant was examined as DW1 and second additional defendant was examined as DW2. Exts.B1 to B11 were received as evidence on their side. **==> picture [402 x 12] intentionally omitted <==** consideration in this appeal relate to the statutory bar under Order II Rule 2 of the CPC as well as execution of Ext.A1 agreement for sale. There are other subsidiary questions such as the alleged readiness and willingness of the appellant, the plea of bona fide purchase raised by additional respondents 2 and 3 and the alternative claim for charge over the property etc. under Section 55(6) ## **R.F.A.No.593 of 2016** **:-8-:** (b) of the Transfer of Property Act, 1882, which need to be taken up for discussion only in the event the first two questions are answered in favour of the appellant. 10. I shall first consider the question whether the finding of the court below that the suit is barred by Order II Rule 2 of the CPC is sustainable under law. 11. According to the court below, the pleadings in O.S.No.330/2009 which was instituted on 9.3.2009 by the appellant for injunction restraining first respondent from alienating the suit property, revealed that cause of action for specific performance had emerged on the date of the suit and therefore, without an implied or express leave granted by the court, a subsequent suit based on identical cause of action could not have been maintained. In this respect, a decision reported in **Vigro Industries (Eng.) P.Ltd. (M/s.) v.** ## **R.F.A.No.593 of 2016** ## **:-9-:** ## **M/s.Venturetech Solutions P.Ltd. (2012 KHC 4492)** was relied on. 12. The learned counsel for the appellant submitted that suit for injunction and suit for specific performance stand entirely on two different footings and causes of action in both suits, having regard to the nature of issues arising for decision, are invariably different and therefore itself, a subsequent suit for specific performance without leave of the court is not barred under Order II Rule 2 of the CPC. He relied on in this respect two decisions of the Honourable Supreme Court in **Rathnavathi & anr. v. Kavita Ganashamdas (2015(5) SCC 223)** and in **Sucha Singha Sodhi(D)Thr.Lrs. v. Baldev Raj Walia** . He further contended that on 9.3.2009 when O.S.No.330/2009 was instituted, cause of action for specific performance was premature since the extended period of agreement was yet to expire and the vendor was ## **R.F.A.No.593 of 2016** ## **:-10-:** entitled to have postponed his liability till the expiry of 5.4.2009. 13. It is an admitted fact that Ext.A1 executed on 19.12.2008 for one month, was further extended on 5.1.2009 for another three months and quite naturally, the outer limit of the period for execution of sale deed would have expired only by 5.4.2009. The learned counsel for respondents two and three contended that having due regard to the facts pleaded in the plaint in O.S.NO.330/2009, it was palpable that cause of action for a suit for specific performance simultaneously arose within the extended period of time itself. 14. The terms reduced in Ext.A1 sale agreement stipulating time for execution of sale deed are relevant in this context. What is recited in the agreement is that the vendor shall be liable to perform his part of the contract within the period of one month originally fixed and within the ## **R.F.A.No.593 of 2016** ## **:-11-:** extended period of three months. It is significant to note that though an outer time limit for performance was envisaged, the liability of the vendor was never postponed till the expiry of the last day of the agreement. It is clear that whenever he was called upon by the buyer to perform his part of the contract within the extended period of time, he was liable for executing the sale deed, provided, the buyer was ready and willing to perform his part of the contract. The sum total of contention in O.S.No.330/2009 raised by the appellant is to the effect that on 7.3.2009, he got reliable information that first respondent was taking hasty steps to alienate the property which, if not prevented, would frustrate the execution of the contract. He made it clear that he was ready and willing to perform his part of the contract and demanding execution of the deed all the time but the first respondent evaded with ulterior motive. ## **R.F.A.No.593 of 2016** ## **:-12-:** When this is the factual position, it goes without saying that having regard to the manner in which the time for performance of the contract was fixed, on the date of O.S.No.390/2009 itself the cause of action for specific performance also simultaneously arose. 15. The learned counsel for the appellant contended that even accepting the interpretation as above, it was quite optional for the buyer to decide his course rather than to sue and therefore the bar under Order II Rule 2 of the CPC ought not to have been invoked against him. I have difficulty to accept this argument since the very underlying object behind Order II Rule 2 is to prevent a suitor from vexing a defendant with multiple litigations when it was open to the former to sue on a cause of action which actually arose on the date of the suit. The only legal excuse for postponing institution of the suit on identical ## **R.F.A.No.593 of 2016** ## **:-13-:** cause of action is to seek leave of the court either implied or express. The appellant has no case that such a leave was either sought or granted in O.S.No.390/2009. The suit was dismissed as unconditionally withdrawn. 16. The two decisions relied on by the learned counsel for the appellant cited _supra_ are distinguishable from the facts of the case on hand. In those two cases, suit for injunction was brought against the seller from dispossessing the buyer forcibly from the property, whereas O.S.No.330/2009 deals with a case of injunction against alienation of the suit property. The right to injunction against forcible dispossession has ordinarily no bearing with breach of agreement for sale and therefore a cause of action for specific performance of agreement may not arise in such suit. On the other hand, when there is actual alienation or apprehended alienation of property ## **R.F.A.No.593 of 2016** ## **:-14-:** which is the subject matter of the contract, it may amount to breach of contract depending on the facts averred in the suit. 17. Though it could be generally said that the cause of action for a suit for perpetual injunction and specific performance is distinct and different, it could hardly be an inflexible rule applicable in all cases alike irrespective of facts and circumstances of each case. In **Vigro Industries** ' case relied on by the learned counsel for respondents 2 and 3, the Honourable Apex Court dealt with the question as to whether in a suit for injunction against alienation, cause of action for specific performance would also simultaneously arise. It was held on the facts of those cases, that it was open to the plaintiff to have incorporated the relief for specific performance along with the relief for permanent injunction in the same suit in as much as the foundation for ## **R.F.A.No.593 of 2016** ## **:-15-:** relief of permanent injunction furnished a complete cause of action for the suit for specific performance also. In a later decision of the Honourable Supreme Court in **Inbasegaran & anr. v. S.Natarajan (Dead) thr.Lrs (2014 KHC 4696)** while dealing with the applicability of the bar under Order II Rule 2 of the CPC in the context of two separate suits for injunction as against forcible dispossession and specific performance being considered by the court, it was clarified that the view expressed in **Vigro Industries** ' case was still right and liable to be followed when the suit for injunction against alienation of the property agreed for sale is filed at one point of time and suit for specific performance is filed at a later date. Thus I am of the view that on 9.3.2009 when O.S.No.330/2009 was instituted, the cause of action for the present suit for specific performance also emerged and without having obtained either express ## **R.F.A.No.593 of 2016** ## **:-16-:** or implied leave from the court, the appellant was estopped from filing the present suit by virtue of the bar under Order II Rule 2. Therefore agreeing with the view taken by the court below, I hold that the suit is barred by Order II Rule 2 of the CPC. **==> picture [402 x 13] intentionally omitted <==** the execution of Ext.A1 agreement for sale. Once the execution is proved, it follows that respondents 2 and 3 are bound by Ext.A1 agreement for, they took the suit property during the pendency of the suit as assignees whether or not they were aware of the existence of the agreement. The principle that flows out of Section 19(2) of the Specific Relief Act, 1963, is that an agreement for sale cannot be enforced against a subsequent purchaser for value without notice of agreement. But this provision is subject to Section 52 of the Transfer of Property Act, 1882, which provides that a _pendente lite_ transferee shall take the property ## **R.F.A.No.593 of 2016** ## **:-17-:** subject only to the result of the suit. Since acquisition of suit property under Exts.B1 and B2 was during the pendency of this suit, respondents 2 and 3 cannot lawfully resist enforcement of Ext.A1 and that is how execution of Ext.A1 becomes relevant. 19. The claim for the charge over the suit property for the unpaid purchase money of the buyer also is another question which may arise for consideration only upon proof of execution of the agreement even assuming that claim for specific performance was not liable to be honoured for any good reasons. 20. The first respondent denies execution of Ext.A1 though he admitted his signature. His contention is that the agreement was manipulated in one of signed blank documents which he had handed over to Sri. Sudhir Kumar/the first attesting witness in Ext.A1 for the purpose of arranging loan ## **R.F.A.No.593 of 2016** ## **:-18-:** from one of the close friends of the latter. 21. It is axiomatic that signature in a blank document will not by itself amount to admission of execution and the person suing on the disputed document has necessarily to prove the execution by convincing evidence. The only difference of such a document with the one in which signature is denied is that the burden of proof on the plaintiff is slightly lighter than the case in which signature is denied. The person contending that what was signed was in fact a blank document, has a duty to explain the circumstances under which it came to be executed as held in **Premsankar K.G. v. Sunil Krishnan (2011(4) KHC 895)** . That will not however relieve the plaintiff of his burden to prove the execution of document with satisfactory and convincing evidence as held in **Choovatta Vadakkekara Kunhi Veettil Janardhanan v. Mottukkande (2011(3) KHC 710)** . ## **R.F.A.No.593 of 2016** ## **:-19-:** 22. The appellant testified that the first respondent signed Ext.A1 agreeing to sell the property within the period stipulated therein and received an advance amount of Rs.30 Lakhs. The first respondent as DW1 denied the receipt of the amount as well as having agreed to sell the property contending that a blank paper was entrusted with his friend Sri.Sudhir Kumar for securing a loan of Rs.20 lakhs from one of the closest friends of the latter. But it was misused by Sri.Sudhir Kumar joining with the appellant. Thus there are rival versions on oath against oath as to how Ext.A1 agreement came into existence. 23. The learned counsel for the appellant submitted that in the absence of respondents 2 and 3 making specific denial of execution of Ext.A1, the evidence of PW1 by itself is more than enough to prove the execution of the disputed agreement for sale. I can hardly accept this argument since ## **R.F.A.No.593 of 2016** ## **:-20-:** as the assignees of the original vendor, respondents 2 and 3 have every right to pursue all the contentions raised in the written statement of their assigner, the first respondent. The appellant has therefore to necessarily establish that the transaction as contained in Ext.A1 existed, corroborated by reliable independent evidence also. 24. PW2 was examined to prove that he was a witness to the transaction as disclosed in Ext.A1. He was also cited to prove that the endorsement dated 5.1.2009 extending the original time fixed was made on the reverse side of the agreement in his own handwriting. The court below fully disbelieved this witness doubting his presence at the place. I also notice that there are material contradictions between the testimonies of Pws.1 and 2 in material aspects as pointed out in the impugned judgment. 25. PW2 said that appellant was a close friend ## **R.F.A.No.593 of 2016** ## **:-21-:** of his and he knew him since 2006. But appellant denied this stating that the witness was seen for the first time on Ext.A1 date and thereafter on 5.1.2009. There is a doubtful circumstance which is yet to be explained by the appellant as to why PW2 should have made an endorsement allegedly in his handwriting if parties to the agreement were available at the time of the transaction and willing for extension of the agreement. The presence of PW2 on the days claimed by him are open to serious doubt. The view taken by the court below that the presence of PW2 at the time of the transaction did not find a place in the plaint, cannot be dismissed as quite unreasonable. It escapes one's comprehension as to why PW2 was not named in Ext.A1 as a witness to the transaction if he was present on both occasions. On the other hand, curiously enough the two attesting witnesses in Ext.A1 were not examined, for no reasons ## **R.F.A.No.593 of 2016** ## **:-22-:** assigned, before the court to prove the document even when execution was seriously challenged. 26. The capacity of the appellant to raise the amount of Rs.30 Lakhs is also a matter which cannot be kept aside as quite irrelevant in considering the dispute as to the execution of Ext.A1 document. The appellant stated that he had Rs.5 lakhs alone with him. He had no independent source of income or land and he admitted him to be not a tax payer also. According to him, he raised the amount from a few creditors to whom he had given documents evidencing receipt of loan. We do not know who those persons were. Anyway, appellant's father is stated to have discharged these liabilities. But the court below in this respect noticed a material contradiction in the evidence of appellant that his father paid out the whole Rs.30 lakhs to the creditors which cannot go hand in hand with his own previous statement that he had paid Rs.5 lakhs from ## **R.F.A.No.593 of 2016** ## **:-23-:** his pocket. The court below, in my opinion, rightly doubted the availability of source of money with the appellant. 27. As rightly contended by the learned counsel for the appellant the source of money may not be much relevant if there is proof of execution of Ext.A1 by reliable evidence that the first respondent actually received the advance amount from the appellant. According to the court below, the best persons who could have spoken to this were the attesting witnesses in Ext.A1. None of them was summoned and examined for no reasons explained by the appellant. When non examination of attesting witnesses is taken along with the doubtful presence of PW2 at the time of the transaction, I am satisfied that the court below was right in its conclusion that appellant failed in proving execution of Ext.A1 agreement by satisfactory evidence. ## **R.F.A.No.593 of 2016** ## **:-24-:** 28. In the absence of satisfactory evidence in proof of the execution of Ext.A1, I do not consider it necessary to discuss the other subsidiary questions. If at all it is assumed that Ext.A1 is proved also, there is nothing unreasonable in the view of lower court holding that the appellant though was willing to take the sale deed, was hardly in possession of cash and consequently was not ready for performing his part of the contract. On the whole, I am satisfied that none of the findings entered into by the court below is worthy of being interfered with in this appeal either on factual or legal grounds. **==> picture [402 x 12] intentionally omitted <==** dismissed. No costs. All pending interlocutory applications are closed. Sd/- **T.V.ANILKUMAR JUDGE** ami/