Thomas v. Jacob Joseph

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 11TH DAY OF FEBRUARY 2020 / 22ND MAGHA, 1941** ## **RFA.No.629 OF 2008** **AGAINST THE JUDGMENT IN OS 54/2007 DATED 15-02-2008 OF ADDITIONAL SUB COURT, ALAPPUZHA** ## **APPELLANT/DEFENDANT:** **THOMAS, S/O MATHAI, EZHUMANTHURUTHU HOUSE, CHERAMANKULANGARA WARD, ALAPPUZHA.** **BY ADV. SRI.R.AZAD BABU** ## **RESPONDENT/PLAINTIFF:** **JACOB JOSEPH, S/O JOSEPH, EZHUMANTHURUTHU HOUSE, CHERAMANKULANGARA WARD, AVALOOKKUNNU P.O., ALAPPUZHA - 688006.** **R1 BY ADVS. SRI.T.G.SUNIL (PRANAVAM) SRI.J.OM PRAKASH SRI.C.X.ANTONY BENEDICT** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 11.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RFA.No.629 OF 2008 2 ## **JUDGMENT** The defendant in O.S.No.54/2007, on the files of the Court of the Additional Sub Judge, Alappuzha is the appellant in this appeal. 2. The aforementioned suit was filed by the respondent herein alleging that the appellant has refused to execute a sale deed with respect to the plaint schedule property, even though he had received the advance amount of Rs.2,25,000/-, out of the sale consideration of Rs.5,50,000/-; and therefore, that he is entitled to seek specific performance of the said agreement. 3. According to the respondent/plaintiff, he had entered into Ext.A1 agreement with the appellant/defendant on 08.04.2006, as per which, 21 cents of land was agreed to be sold by the latter to him for a total amount of Rs.5,50,000/-. In the plaint, he asserted that out of the sale consideration, Rs.5,000/- was paid on the date of the agreement, namely on 08.04.2006 and that a further amount of Rs.20,000/- was paid on 08.06.2006. According to him, after he entered into this agreement, it was revealed to him through a source that the appellant/defendant had created an encumbrance over the plaint schedule property in favour of his own brother and RFA.No.629 OF 2008 3 therefore, that when he approached the appellant seeking an explanation, he sought for an extension of the agreement until 31.08.2006, after accepting an additional amount of Rs.50,000/- on that day, assuring that the said encumbrance will be cleared. 4. The respondent/plaintiff has further averred in the plaint that on 30.08.2006, the period of compliance of the agreement was further extended until 30.10.2006 and that he paid an additional amount of Rs.50,000/- on that day. He concedes that, as per the terms of the new extended agreement, he was to pay Rs.1,00,000/- on or before 30.09.2006 and asserts that this amount has also paid. He then goes on to say that the appellant/defendant still refused to abide by the conditions in the agreement, namely that he will measure the property and have the draft of the sale deed prepared, but that, instead, he issued Ext.A3 notice, dated 15.11.2006, to him making certain untenable claims. The respondent/plaintiff submits that he caused a reply to this notice on 23.11.2006, a copy of which is on record as Ext.A4, detailing the above facts and requesting him to clear off the encumbrance over the property, so as to enable him to pay the RFA.No.629 OF 2008 4 balance amount of Rs.3,25,000/- and have the sale deed executed. The respondent/plaintiff says that in spite of this, since the appellant/defendant did not execute the sale deed, he was constrained to file the suit. 5. In response to the above, a written statement was filed by the appellant/defendant asserting that the allegations made by the respondent/plaintiff are without basis, since he never had the balance sale consideration; that he was never ready and willing to pay the same; and that he did not even pay the amount of Rs.1,00,000/- on 30.09.2006, as was agreed by him in Ext.A2 extension agreement. He says that the counter - allegation, that he had created an encumbrance over the plaint schedule property in favour of his brother, who had been examined as PW2, is wholly untenable and merely a ruse employed by the respondent/plaintiff to avoid payment of the balance sale consideration and further contended that, in any event of the matter, since the respondent/appellant did not pay the amount of Rs.1,00,000/- on or before 30.09.2006, as per the terms of the extension recorded in Ext.A2 agreement, the entire transaction would fail, since it is specifically recorded in the said agreement that failure to make the said payment RFA.No.629 OF 2008 5 would render the extension agreement, as also the earlier agreement, incapable of performance. The appellant/defendant thus prayed that the suit be dismissed. 6. The suit was taken to trial by the Trial Court and the respondent/plaintiff was examined as PW1; while the brother of the appellant/defendant was examined as PW2 on the side of the plaintiff. The appellant/defendant offered himself as a witness and testified as DW1 while Exts.A1 to A5 were marked on the side of the plaintiff and Ext.X1 was marked as a court exhibit. 7. The Trial Court, after consideration of the evidence on record and the deposition of the witnesses, decreed the suit, finding that the appellant/defendant had not complied with the terms of the agreements and that he had not measured the property or kept the sale deed for execution ready; and thus that the respondent/plaintiff was entitled to a decree as prayed for. 8. It is this decree and judgment of the Trial Court which has been assailed in this appeal. 9. I have heard Sri.R.Azad Babu, learned counsel RFA.No.629 OF 2008 6 appearing for the appellant and Sri.J.Om Prakash, learned counsel appearing for the respondent. 10. For the sake of convenience, the parties will be referred hereafter as they are ranked in the Suit. 11. As I have already indicated above in the narration of facts, the specific case of the plaintiff is that he had paid Rs.5,000/- at the time of execution of the first agreement, namely Ext.A1, on 08.04.2006, followed by a further payment of Rs.20,000/- on 08.06.2006. It is also on evidence, as conceded by PW1, that out of the aforementioned Rs.20,000/-, Rs.10,000/- was tendered by way of a cheque which was, however, dishonoured for want of funds, but honoured thereafter, when presented again. 12. Further, it is also admitted that, on 22.07.2006, the parties entered into a separate agreement for the purpose of extending the period fixed in Ext.A1 agreement and a copy of this agreement has been placed on record as Ext.A2, on the date of which, an amount of Rs.50,000/- was paid by the plaintiff to the defendant, which is also conceded. It is also without dispute that on 30.08.2006, an amount of Rs.50,000/- RFA.No.629 OF 2008 7 was again paid by the plaintiff and that the parties incorporated a fresh clause for extension of the agreement until 30.10.2006; however, with a specific term incorporated therein that the plaintiff will pay Rs.1,00,000/- on or before 30.09.2006, making it clear that the failure in paying so will render the said agreement as well as Ext.A1 incapable of further performance. 13. Pertinently, the plaintiff asserts that the afore amount was paid and he has specifically averred so in the pleadings and has testified to such effect, while he was examined as PW1. 14. However, what is absolutely crucial in this case is that during his cross-examiantion, PW1 conceded that his averments in the plaint were wrong and that he had not been able to pay the amount of Rs.1,00,000/- on or before 30.09.2006. In fact, the Trial Court has found this conclusively, which finding has not been assailed by the plaintiff by filing a cross appeal even before this Court. 15. Therefore, as matters now stand, it is without doubt that an amount of Rs.1,25,000/- has been paid as advance by RFA.No.629 OF 2008 8 the plaintiff on various dates; but that his undertaking to pay Rs.1,00,000/- on or before 30.09.2006 has been violated. Obviously, therefore, when the specific understanding in Ext.A2 agreement, that the plaintiff will pay Rs.1,00,000/- on or before 30.09.2006, had been found violated by the Trial Court, it ought to have been much more circumspect in decreeing the suit, as has been done by it presently. 16. I notice that the reason that has led the Trial Court to decree the suit, in spite of the fact that the plaintiff's assertion - that he has paid an amount of Rs.1,00,000/- on 30.09.2016 - was found to be false, was because PW2, who is the brother of the defendant, testified that he had received Ext.X1 Gift Deed from his brother with respect to one cent of property, which is part of the plaint schedule property. The Trial Court appears to have been swayed by this and to have concluded that, since an encumbrance had been created on the property, the plaintiff was justified in not paying the amounts under the agreement and in seeking that the same be first cleared. However, what is vital in this case is that Ext.X1 is not a registered document and the evidence of DW2 clearly shows that the alleged Gift Deed was never acted upon nor RFA.No.629 OF 2008 9 that he had taken possession of any property under it nor had effected mutation in his name. 17. That apart, there is nothing on record to show, even in the evidence of DW1, as to when he became aware of Ext.X1 and therefore, the Trial Court could not have concluded that the reason why the plaintiff did not pay the balance sale consideration as per Ext.A2 agreement was on account of the creation of an encumbrance over the property by the appellant/defendant. These findings of the Trial Court are not supported by any evidence or by any document and at the best, is only a presumption, which this Court cannot grant favour. 18. As I have said above, when the Trial Court found that the plaintiff had indubitably made a false assertion - knowing it to be false - both in his pleadings as well as in his chief examination as PW1, to the effect that he had paid the amount of Rs.1,00,000/- on 30.09.2006 as per Ext.A2 agreement, the Trial Court ought to have found the entire case built up by him to be without credence, since it is perspicuous that the edifice of his claim - that he refused to make payment of the balance sale consideration only on account of his discovery of an encumbrance on the property - is merely an afterthought and RFA.No.629 OF 2008 10 not the real truth. 19. When the Trial Court found that the plaintiff has made a false assertion, certainly the suit could not have been decreed, even if it is assumed that through Ext.X1 there was an encumbrance of the plaint schedule property, particularly when Ext.A2 agreement stipulates without reservation that the failure to pay Rs.1,00,000/- on or before 30.09.2006 would render both Exts.A1 and A2 incapable of performance and would stand terminated. That said, it is also relevant that Ext.X1 created no encumbrance on the plaint schedule property since it is not a registered document; and could not have, therefore, been a reason why the suit should have been decreed. 20. I am, therefore, of the firm view that in the light of the conceded and established fact that the plaintiff had falsely stated before the Trial Court - which is evident from the fact that he has chosen not to assail such findings of the Trial Court - that he had paid Rs.1,00,000/- on or before 30.09.2006, as required under Ext.A2 agreement, the suit could not have been decreed, especially when the said agreement provides unequivocally that such failure would render the agreements RFA.No.629 OF 2008 11 and transaction terminated. 21. I am fortified in my afore opinion and I am guided conclusively to it by the judgment of the Hon'ble Supreme Court in **Lourdu Mari David and Ors. v. Louis Chinnaya Arogiaswamy and Ors.** [(1996 5 SCC 589)], wherein it has been declared affirmatively that a party who makes a false allegation is not entitled to the equitable relief for specific performance. Further, these findings of the Trial Court could have only led to an axiomatic inference that the plaintiff was not ready and willing to pay the balance sale consideration or to abide by the terms of the agreements; and consequently the suit could not have been decreed. 22. In any event of the matter, the reasoning of the Trial Court that the suit is liable to be decreed since the defendant had created an encumbrance on the plaint schedule property, is also not established by facts or evidence and Ext.X1 certainly would not prove any such encumbrance having been created. 23. In summation, I am firm in my mind that the Trial Court has wholly erred in decreeing the suit; and consequently, RFA.No.629 OF 2008 12 that the impugned judgment and decree deserves to be set aside. 24. That being so concluded, as is evident from the plaint, the plaintiff has not sought an alternate plea for return of advance sale consideration but I must commend Sri.Azad Babu, learned counsel for the appellant, who concedes that his client is willing to pay the said amount with reasonable interest as this Court may fix. 25. The evidence on record and the materials available show that an amount of Rs.1,25,000/- has been paid by the respondent/plaintiff to the appellant/defendant as advance sale consideration. I, therefore, deem it appropriate that the suit be decreed to such extent, granting reasonable interest. Resultantly, this appeal is allowed in part and the impugned judgment and decree of the Trial Court is set aside; however, decreeing the suit, allowing the plaintiff to recover the amount of Rs.1,25,000/-, from the defendant, along with 6% interest from 22.07.2006, being the date on which such amounts were finally paid, until the date of realisation; for which purpose, the plaint schedule property will stand charged RFA.No.629 OF 2008 13 under the provisions of Section 55(6)(b) of the Transfer of Property Act. In the nature of the peculiar facts and circumstances noticed in this case and since this appeal has been only partly allowed as afore, I do not deem it necessary to make any order as to costs and I, consequently, direct that the parties to suffer their respective costs in this appeal. **Sd/- DEVAN RAMACHANDRAN** Stu **JUDGE**