Kerala High Court
Alukas Jewellery vs Anil on 16 July, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:52432
C. R.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
WEDNESDAY, THE 16TH DAY OF JULY 2025 / 25TH ASHADHA, 1947
RFA NO. 119 OF 2017
AGAINST THE JUDGMENT DATED 19.09.2015 IN OS NO.302 OF 2013 OF
SUB COURT, CHAVAKKAD
-----
APPELLANT/THE SUPPLEMENTAL 8TH DEFENDANT:
ALUKAS JEWELLERY,
THRISSUR CORPORATION,BUILDING NO 25/1 M.O ROAD,
THRISSUR VILLAGE & TALUK REPRESENTED BY
THE MANAGING PARTNER P.V ANTO,
AGED 51 YEARS,S/O.PUTHUSSERY ALUKAS VARGHESE,
AVENUE ROAD, HOUSE NO.18/2980,
THRISSUR CORPORATION,CHALAKKOTTUKARA DESOM,
CHIRAYAM VILLAGE,THRISSUR TALUK.
BY ADV SHRI.J.OM PRAKASH
RESPONDENTS/PLAINTIFF AND THE FIRST DEFENDANT:
1 ANIL,
AGED 48 YEARS, S/O. ALPPUZHA SEKHARAN, NATTIKA
VILLAGE,CHAVAKKAD TALUK,NATTIKA P.O, THRISSUR.
2 SUBRAHMANYAN,
AGED 70 YEARS, S/O. ALAPPUZHA RAMAN, NATTIKA VILLAGE,
CHAVAKKAD TALUK,
PRESENT ADDRESS. PROF ALAP SUBRAHMANIAN,
511.OE, WOOD GATE LANE TUSCON, AZ,85712-1343 USA,
THE PRESENT POWER OFATTORNEY HOLDER VENUGOPALAN,S/O.
GANGADHARAN, KUNNUPARAMPIL, EDAMUTTOM P.O,
VALAPPAD, THRISSUR.
2025:KER:52432
RFA NO. 119 OF 2017 -2-
BY ADVS.
SHRI.G.S.REGHUNATH
SRI.N.K.SUBRAMANIAN
SHRI.SHEEJO CHACKO
SHRI.ATHUL TOM
SMT.LALITHA E.
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
16.07.2025, ALONG WITH RFA.258/2016, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2025:KER:52432
C. R.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
WEDNESDAY, THE 16TH DAY OF JULY 2025 / 25TH ASHADHA, 1947
RFA NO. 258 OF 2016
AGAINST THE JUDGMENT DATED 19.09.2015 IN OS NO.302 OF 2013 OF
SUB COURT, CHAVAKKAD
-----
APPELLANTS/1ST & 2ND DEFENDANTS:
1 SUBRAHMANYAN
AGED 70 YEARS, S/O. ALAPPUZHA RAMAN,NATTIKA VILLAGE,
DESOM, CHAVAKKAD TALUK, PRESENT ADDRESS: PROF: ALAP
SUBRAHMANIAN, 511, OE, WOOD GATE LANE TUSCON, AZ,
85712-1343, USA, POWER OF ATTORNEY HOLDER, REPRESENTED
BY MR.VENUGOPALAN, AGED 49 YEARS, S/O. GANGADARAN,
KUNNUMPARAMBIL, VALAPPAD VILLAGE, EDAMUTTOM
DESOM,CHAVAKKAD TALUK, THRISSUR DIST, KERALA, INDIA.
2 RAMAKRISHNAN
AGED 77 YEARS (DIED), S/O.ALAPPUZHA RAMAN, NATTIKA
VILLAGE, CHAVAKKAD TALUK.
BY ADVS.
SRI.M.P.PRABHAKARAN (PALAKKAD)
SRI.N.K.SUBRAMANIAN
SHRI.ATHUL TOM
SMT.NITHYASREE SIVASANKAR
SMT.LALITHA E.
2025:KER:52432
RFA NO. 258 OF 2016 -2-
RESPONDENTS/PLAINTIFF & 8TH DEFENDANT:
1 ANIL,
AGED 48 YEARS, S/O. ALAPPUZHA SEKHARAN,
NATTIKA VILLAGE/DESOM, CHAVAKKAD TALUK,
PRESENT ADDRESS ANIL A.S., P.O.BOX 29036, DUBAI STREET,
NO.25, AOUFBIN MALIK STREET, ALKHASAMLA, SHARJA.
2 ALUKKAS JEWELLARY,
THRISSUR CORPORATION, BUILDING NO. 25/1, M.O.ROAD,
THRISSUR VILLAGE & TALUK, REPRESENTED BY THE MANAGING
PARTNER P.V.ANTO,AGED 51 YEARS, S/O. PUTHUSSERY ALUKKAS
VARGHESE, AVENUE ROAD, HOUSE NO. 18/2980, THRISSUR
CORPORATION, CHELAKKOTTUKARA DESOM,CHIYYARAM VILLAGE,
THRISSUR TALUK.
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
16.07.2025, ALONG WITH RFA.119/2017, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2025:KER:52432
SATHISH NINAN & C. R.
P. KRISHNA KUMAR, JJ.
= = = = = = = = = = = = = = = = = =
R. F. A. Nos.258 of 2016 &
119 of 2017
= = = = = = = = = = = = = = = = = =
Dated this the 16th day of July, 2025
J U D G M E N T
Sathish Ninan, J.
The decree for specific performance is under challenge in these appeals by defendants 1 and 8 respectively.
2. The first defendant is the plaintiff's uncle (father's brother). The second defendant is the power of attorney holder of the first defendant. The 8 th defendant is the transferee pendente lite. The second defendant died and his legal heirs were impleaded as defendants 3 to 7. They were subsequently deleted from the party array.
3. The first defendant is settled in the United States of America. The plaintiff is into business in U.A.E. The plaintiff, and the first defendant through R. F. A. Nos.258 of 2016 & 119 of 2017 2025:KER:52432 -: 2 :- his power of attorney holder the second defendant, entered into Ext.A1 agreement for sale dated 21.02.2009. Thereunder, 1 acre 20 cents of property belonging to the first defendant was agreed to be conveyed to the plaintiff. The sale consideration fixed was ₹ 1,50,000/- per cent. An amount of ₹ 10 lakhs was paid towards advance sale consideration. The period fixed for performance was 11 months. Subsequently, on 29.03.2010, the period was extended till 30.09.2010 and the sale consideration was reduced to ₹ 1,40,000/- per cent.
4. According to the plaintiff, in May 2009, the parties orally agreed that the sale consideration will stand re-fixed at ₹ 1,20,000/- per cent. On 06.09.2010 the plaintiff issued Ext.A4 notice demanding performance of the agreement. Ext.A6 is the reply, denying the alleged oral agreement fixing the consideration at ₹ 1,20,000/-. It is accordingly that the suit is filed.
5. The defendant admitted Ext.A1 agreement. It was also admitted that the sale consideration was later re- R. F. A. Nos.258 of 2016 & 119 of 2017 2025:KER:52432 -: 3 :- fixed at ₹ 1,40,000/- per cent. However, the alleged subsequent oral agreement bringing down the consideration at ₹ 1,20,000/- per cent was denied. It was contended that the plaintiff was not ready and willing to perform Ext. A1 agreement.
6. The trial court, relying upon certain e-mail communications between the parties, upheld the oral agreement whereby the consideration was fixed at ₹ 1,20,000/-. It was found that the plaintiff was ready and willing to perform the agreement. Taking note of the passage of time since the execution of Ext.A1 agreement, the court fixed the value at ₹ 1,50,000/- per cent, and granted a decree for specific performance for the said value.
7. We have heard Sri.J.Omprakash and Sri.N.K. Subramanian on behalf of the appellants-defendants and Sri.G.S.Reghunath, the learned counsel for the respondent-plaintiff.
R. F. A. Nos.258 of 2016 & 119 of 2017 2025:KER:52432 -: 4 :-
8. The points that arise for determination in these appeals are: -
(i) Is the alleged oral agreement re-fixing the consideration under Ext.A1 agreement at Rs.1,20,000/- proved by the available evidence?
(ii) Are the email communications inadmissible in evidence for want of certification in terms of Section 65B(4) of the Indian Evidence Act?
(iii) Does the evidence on record establish the continued readiness and willingness of the plaintiff?
(iv) Does the exercise of discretion by the trial court under Section 20 of the Specific Relief Act, to grant a decree for specific performance warrant any interference?
9. Ext.A1 agreement is admitted. The period fixed under Ext.A1 was 11 months, which was to expire in January, 2010. On 29.03.2010 the period was extended till 30.09.2010 and the sale consideration was reduced to ₹ 1,40,000/- per cent. The above is endorsed on the reverse of Ext.A1. The above is also not in dispute. According to the plaintiff, in May 2010 there was an oral agreement slashing down the sale consideration to ₹ 1,20,000/- per cent. This is disputed by the defendant. Therefore, the primary question is whether R. F. A. Nos.258 of 2016 & 119 of 2017 2025:KER:52432 -: 5 :- the claim of the plaintiff that the sale consideration under Ext.A1 agreement was re-fixed at ₹ 1,20,000/- per cent, proved or not.
10. For proof of re-fixation of the sale consideration at ₹ 1,20,000/- per cent the plaintiff relies on various e-mail communications between the parties; they are, Ext.A11, A13 and A23 series.
11. The learned counsel for the defendants contend that the e-mails are not admissible in evidence for lack of the necessary certification under Section 65B(4) of the Indian Evidence Act. The learned counsel placed reliance on the judgment of the Apex Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors. [2020 (7) SCC 1] in support of the contention. The learned counsel for the plaintiff would on the other hand contend that e-mail communications are not electronic records falling within the ambit of Section 65 A and 65 B of the Evidence Act and also under Section 2(1)(t) of the Information Technology Act. Therefore, it does not require any certification R. F. A. Nos.258 of 2016 & 119 of 2017 2025:KER:52432 -: 6 :- under Section 65B(4) of the Evidence Act. It is further contended that the e-mail communications were marked in evidence without any objection and even its genuineness remained undisputed. It is too late in the day to raise objection against its admissibility, it is argued.
12. The contention that an e-mail communication is not an electronic record within the purview of Section 65A and 65B of the Evidence Act is devoid of merit. Section 2(1)(t) of the Information Technology Act defines an "electronic record" thus :-
"2(1)(t) "electronic record" means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche."
Section 2(1)(o) defines "data" thus :-
"2(1)(o) "data" means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer."
R. F. A. Nos.258 of 2016 & 119 of 2017 2025:KER:52432 -: 7 :- The definitions admit of no doubt that the print out of an e-mail communication is an electronic record. In Jisal Rasak v. State of Kerala [2019 (4) KLT 159] this Court has acknowledged that an e-mail communication is an electronic record under Section 65B of the Evidence Act. The contention is negatived.
13. Section 65B of the Evidence Act mandates that the document mentioned therein shall contain the certification under Section 65B(4) of the Evidence Act. In Arjun Panditrao's (supra) the Apex Court, affirming the view expressed in Anvar P.V. v. P.K.Basheer [2014 (10) SCC 473] in categoric terms held that a certificate under Section 65(B)(4) is a sine qua non for the admissibility of evidence of information contained in electronic records. The earlier view to the contrary expressed in Tomaso Bruno & Anr. v. State of Uttar Pradesh [(2015) 7 SCC 178], State (NCT of Delhi) v. Navjot Sandhu [(2005) 11 SCC 600] and Shafhi Mohammad v. State of Himachal Pradesh [(2018) 2 SCC 801] were overruled. Therefore, for the admissibility of a document under Section 65B of the R. F. A. Nos.258 of 2016 & 119 of 2017 2025:KER:52432 -: 8 :- Evidence Act, the certification under Section 65B(4) is mandatory.
14. The e-mail communications relied on by the plaintiff do not contain the certification under Section 65B(4). The e-mail communications were produced by the plaintiff along with the plaint and were mentioned in the listed documents. Its genuineness was not disputed in the written statement. The first defendant, who is the owner of the property and with whom the e-mail communications took place was not examined. The second defendant, who was the power of attorney holder of the first defendant, died pending the suit. DW2 is the subsequent power of attorney holder. He deposed in his cross-examination that he is aware only about the facts which occurred after the death of the second defendant. He deposed, "രരാമകകൃഷഷഷ്ണൻ മരരിച്ചശശേഷമമുള്ള കരാരര്യശമ എനരിക്കറരിയമുകയമുള്ളള.". He admitted the e-mail address of the first defendant in the e-mail communications. Since the witness was examined through an Advocate Commissioner, the e-mail R. F. A. Nos.258 of 2016 & 119 of 2017 2025:KER:52432 -: 9 :- communications are seen marked in the following manner, "Document shown to the witness is provisionally marked as Ext.A23 series (12 numbers)". Upon Ext.A23 series, the court has recorded that such documents were admitted in evidence by consent. The relevant endorsement reads thus:- "Admitted in evidence by consent on 17.09.2011 and marked as Ext.A23". Therefore, it is evident that the e-mail communications were admitted in evidence without any objection and that even its genuineness remain undisputed. The question is whether even under such circumstances, the e-mail communications become inadmissible in evidence for lack of certification in terms of Section 65B(4) of the Evidence Act.
15. In Sonu Alias Amar v. State of Haryana [(2017) 8 SCC 570], the Apex Court was considering the admissibility of Call Detail Records (CDRs) which did not contain the certification under Section 65B(4) of the Evidence Act. In that case, at the time of admitting the CDRs in evidence, its admissibility, for lack of the R. F. A. Nos.258 of 2016 & 119 of 2017 2025:KER:52432 -: 10 :- certification, was not challenged. The Apex Court held that, the absence of certification is only a curable defect and if raised at the appropriate time, the said defect could have been cured. It was held that the objection relates only to the mode of proof, and such objections if not taken at the trial, cannot be permitted to be urged at the appellate stage. The Apex Court held, "..... The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the Court could have given the prosecution an opportunity to rectify the deficiency. It is also clear from the above judgments that objections regarding admissibility of documents which are per se inadmissible can be taken even at the appellate stage. Admissibility of a document which is inherently inadmissible is an issue which can be taken up at the appellate stage because it is a fundamental issue. The mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage. If the objections to the mode of proof are permitted to be taken at the appellate stage by a party, the other side does not have an opportunity of rectifying the deficiencies. The learned Senior Counsel for the State referred to statements under Section 161 CrPC, 1973 as an example of documents falling under the said category of inherently inadmissible evidence. CDRs do not fall in the said category of documents. We are satisfied that an R. F. A. Nos.258 of 2016 & 119 of 2017 2025:KER:52432 -: 11 :- objection that CDRs are unreliable due to violation of the procedure prescribed in Section 65-B(4) cannot be permitted to be raised at this stage as the objection relates to the mode or method of proof."
16. The decision in Sonu's case(supra) was referred to by the Apex Court in Union of India v. Ravindra V. Desai [(2018) 16 SCC 273] and State of Karnataka v. M.R.Hiremath [(2019) 7 SCC 515]. These judgments were referred to in Arjun Panditrao's case (supra). Recently, in Sundar @ Sundarajan v. State by Inspector of Police (2023) SCC OnLine SC 310 the Apex Court again acknowledged the ratio in Sonu (supra). It was held, "Therefore, we are inclined to agree with the ratio in Sonu by not allowing the objection which is raised at a belated stage that the CDRs are inadmissible in the absence of a Section 65B certificate, especially in cases, where the trial has been completed before 18 September 2014, i.e. before the pronouncement of the decision in Anvar P.V.."
17. Therefore, in the case at hand, the admissibility of the e-mail communications for want of certification under Section 65B of the Evidence Act having not been taken at the trial, and rather, such communications have been admitted in evidence by R. F. A. Nos.258 of 2016 & 119 of 2017 2025:KER:52432 -: 12 :- consent, it is not open for the defendant to challenge its admissibility at this stage on the ground of lack of certification under Section 65B. We negative the contention.
18. Now we proceed to discuss on the evidence regarding the oral agreement re-fixing the price. The oral agreement is claimed to have been struck during the month of May 2010. Exts.A11, A13 and A23 series are the email communications relied on by the plaintiff to prove the same. Ext.A11 is an e-mail communication dated 23.05.2010 by the first defendant to the plaintiff. In Ext.A11 it is stated, "I am quite satisfied with the new amount (142.8 lac) and glad it is advantageous to my dear nephew even at the higher stamp price. You may subtract the advance paid last year (10 lac) and so the final amount is 132.8 lac".
According to the plaintiff, on measurement, the extent of the property was found to be 1 acre 19 cents. Calculating the value for the said extent at ₹ 1,20,000/- per cent, the total sale consideration R. F. A. Nos.258 of 2016 & 119 of 2017 2025:KER:52432 -: 13 :- would be ₹ 142.8 lakhs. This is the figure acknowledged by the first defendant in Ext.A11 e-mail communication. This lends credence to the plaintiff's claim of parties having agreed to bring down the consideration to ₹ 1,20,000/- per cent. Ext.A13 is the e-mail communication dated 20.05.2010 by the plaintiff to the first defendant. Therein, the consideration has been specified as ₹ 1,20,000/- per cent. The relevant portion of the communication reads thus:-
"I am reconfirming the details given by pappan related to the land deal we are agreed up on:
1. Total area of the land per document and agreed after measurement = 119 cents - which belongs to survey nos. 197/5, 197/7 and 197/8.
2. Agreed price per cent : IRS 1,20,000.00 (One Lakh and Twenty Thousand - based on the latest land value by the government)
3. Total value for the land = 119 * 120,000.00 = IRs 1,42,80,000 (One Crore Forty Two lakhs and Eighty Thousand).
4. Stamp paper requirement for the registration as per the new legislation @ 9% - IRs. 12,85200 (12 Lakhs Eighty Five Thousand and Two Hundred Rupees)
- will confirm the same and purchase the required stamp paper."
R. F. A. Nos.258 of 2016 & 119 of 2017 2025:KER:52432 -: 14 :- Ext.A23(h) is the e-mail communication dated 23.05.2010 sent by the first defendant to the plaintiff in reply to Ext.A13. Therein it is stated thus :-
"I am quite satisfied with the new amount (142.8 ac) and glad it is advantageous to my dear nephew even at the higher stamp price."
Evidently, the consideration is accepted by the first defendant. Ext.A23 is an e-mail communication dated 08.08.2010 by the plaintiff to the first defendant. Therein the plaintiff expressed his gratefulness to the first defendant for having reduced the price of the property. Therein it is stated, "I can understand your mind. You like us very well. That is the reason you are ready to reduce the property price very much (i.e. about 66 lakhs from total amount, if the information you received is correct). I bow my head infront of your generosity and affection to me".
19. The plaintiff, in his proof affidavit, has sworn to that since the fair value of the property was re-fixed by the Government at ₹ 1,20,000/- from ₹ 12,000/- there occurred huge difference in the stamp duty payable, and taking note of the same the first R. F. A. Nos.258 of 2016 & 119 of 2017 2025:KER:52432 -: 15 :- defendant agreed to bring down the sale price to ₹ 1,20,000/- per cent and both the parties agreed to the same in May 2010. Pertinently, such statement of the plaintiff was not challenged in cross-examination. This is a vital circumstance corroborating the oral agreement. Therefore, we are inclined to uphold the plaintiff's contention that the parties had re-fixed the consideration at ₹ 1,20,000/- per cent.
20. The learned counsel for the appellant-defendant would contend that Ext.A1 agreement stood cancelled by defendants as per Ext.A6 notice dated 28.09.2010. Therefore, the plaintiff ought to have sought a prayer for declaration that the cancellation of Ext.A1 is bad in law. Without such relief, the mere suit for specific performance is not maintainable, it is argued. The learned counsel relied on the judgment of the Apex Court in Sangita Sinha v. Bhawana Bhardwaj & Ors. (2025 INSC 450 : 2025 AIAR Civil
15). Therein the Apex Court held that in a case where the agreement stood cancelled, the plaintiff ought to seek R. F. A. Nos.258 of 2016 & 119 of 2017 2025:KER:52432 -: 16 :- for a declaration against such cancellation and seek for specific performance.
21. Noticeably there is no plea in the written statement that the agreement for sale was cancelled. Ext.A6 reply notice is relied on to contend that the agreement was cancelled. The portions in Ext.A6 which the learned counsel relied on reads thus :-
"തരാങ്കളളുടടെ ശനരാടട്ടീസരിൽ പറയമുന്നതമുശപരാടല വഹകൾ തരാങ്കളളുടടെ കകരിക്കഷ തട്ടീറഷ നൽകമുവരാൻ എടന്റെ കകരി തയരാറല. ....... ടെരിയരാടന്റെ പപവകൃതരി മനനഃപപൂർവ്വമമുള്ള കരരാർ ലലംഘനമരാകമുന്നമു.. തരാങ്കളളുടടെ ശനരാടട്ടീസരിൽ പറയമുന്ന രട്ടീതരിയരിൽ വഹകളളുടടെ തട്ടീറഷ നടെതമുവരാനമുള്ള ബരാധര്യത എടന്റെ കകരിക്കഷ ഇലരാതതരാഷ്ണഷ . ..... കരരാർ പപകരാരലം അഡഡരാൻസരായരി നൽകരിയരിടളുള്ള 10 ലകലം രപൂപ തരാങ്കളളുടടെ കകരിക്കഷ മടെക്കരി നൽകമുവരാൻ എടന്റെ കകരി തയരാറമുള്ളതരാഷ്ണഷ." (underlining is ours) On a proper understanding of Ext.A6, we are unable to agree with the contention. Ext.A6 notice was preceded by Ext.A4 notice issued by the plaintiff calling upon the defendant to perform Ext.A1 agreement as modified by the oral agreement fixing the consideration at ₹ 1,20,000/-. R. F. A. Nos.258 of 2016 & 119 of 2017 2025:KER:52432 -: 17 :- In Ext.A6 reply, the defendant denied the subsequent modification in the consideration and stated that he is not willing to convey the property in the manner as claimed in Ext.A4 notice. He has also stated that he is not bound to execute the sale deed in the manner as claimed in Ext.A4. He has also expressed his willingness to return the advance sale consideration. In our opinion the above does not amount to a notice of cancellation of the agreement. All that is expressed in Ext.A6 is the refusal to perform the agreement in the manner as claimed in Ext.A4, that is, by fixing the consideration at ₹ 1,20,000/-. There is no cancellation of the contract as such, thereunder. Hence we negative the plea that the frame of the suit is bad for absence of a prayer for declaration.
22. What remains for consideration is regarding the readiness and willingness of the plaintiff and the exercise of discretion under Section 20 of the Specific Relief Act. Ext.A1 agreement was entered on 21.02.2009 R. F. A. Nos.258 of 2016 & 119 of 2017 2025:KER:52432 -: 18 :- fixing the period at 11 months and the sale consideration at ₹ 1,50,000/- per cent. One year later ie. on 29.03.2010 the period of the agreement was extended till 30.09.2010 and the sale consideration was brought down to ₹ 1,40,000/-. In May 2010, the sale consideration is again brought down to ₹ 1,20,000/-. By the passage of time the land value would only go up. The slashing of the consideration could only be as desired by the plaintiff; that it was so is evidenced by the e- mail communications referred to earlier.
23. The plaintiff had claimed that he was always having the balance sale consideration with him to go ahead with the transaction. In the plaint it was pleaded that he had arranged funds by availing loans from the National Bank of Dubai (NBD), MASHREQ Bank, RAK Bank. In his cross-examination (PW1) he would depose that he had rupees one crore and eighty lakhs with him and that it was retained in India and abroad. He deposed, R. F. A. Nos.258 of 2016 & 119 of 2017 2025:KER:52432 -: 19 :- "21-1-2010 തട്ടീയതരിക്കമുള്ളരിൽ ഒശരക്കർ ഇരമുപതഷ ടസന്റെഷസഷ എടെമുക്കരാനമുള്ള പഷ്ണലം എടന്റെ കകവശേലം ഉണരായരിരമുന്നമു. ഒരമു ശകരാടെരി എൺപതഷ ലകലം രപൂപ കകവശേലം ഉണരായരിരമുശന്നരാ (Q) ഉണരായരിരമുന്നമു. (A) ഇനര്യയരിലമുലം വരിശദേശേതമുലം ആയരിരമുന്നമു."
However he did not produce any documents evidencing the same. In further cross-examination he would depose that out of the total sale consideration he availed a loan of ₹ 1 crore and the remaining 70 lakhs was available in his accounts with the South Indian Bank and State Bank of India. The relevant deposition reads thus :-
"ആദേര്യ കരരാർ കരാലരാവധരിക്കമുള്ളരിൽ തടന്ന തട്ടീറഷ എടെമുക്കരാനമുള്ള സലംഖര്യ ഉണരായരിരമുന്നമു. അതരിൽ കമുറച്ചഷ വരായഷപ എടെമുതമു. ഒരമു ശകരാടെരി രപൂപ വരായഷപ എടെമുതമു. ശരഖ ടകരാണഷ കരാഷ്ണമുശമരാ (Q). (A) UAE Bank ൽ നരിന്നരാഷ്ണഷ. ശരഖ എടന്റെ കയരിൽ ഇല. ബരാക്കരി 80 ലകലം രപൂപ liquid money ഉള്ളതരായരി കരാഷ്ണമുശമരാ (A) ഏകശദേശേലം 70 ലകലം രപൂപ ഉള്ളതരായരി കരാഷ്ണരാലം. South Indian Bank, State Bank of India എന്നരിവരിടെങ്ങളരിൽ ഉള്ളതരായരി കരാഷ്ണരാലം. ആയതരിടന്റെ record ഹരാജരരാക്കരിയരിടരില."
However, in Ext.A12 e-mail communication by the first defendant to the plaintiff, the plaintiff had represented to the first defendant that an amount of ₹ 1 crore is available in two Banks in the NRI account of R. F. A. Nos.258 of 2016 & 119 of 2017 2025:KER:52432 -: 20 :- the plaintiff with the State Bank of India and the South Indian Bank and that the balance amount could be arranged from UAE. At the stage of evidence, the plaintiff relied upon Ext.A7 accounts statement with the HDFC Bank to show the availability of the funds with him. The total sale consideration for the 119 cents at the rate of ₹ 1,60,000/- would be 1,90,40,000/-. Out of the same an amount of ₹ 10 lakhs was paid on the date of Ext.A1. The balance sale consideration payable is ₹ 1,80,40,000/-. In addition to this the plaintiff was required to raise the stamp duty, registration fee, and other expenses. Even going by Ext.A7 bank statement, amount in excess of ₹ 1 crore was available in his account only since 08.07.2010. Prior to that the amount in the account was only 7 digits, which would be insufficient to take the transaction forward. Of course, it is not in dispute that the plaintiff is a businessman in UAE. Hence, the mere inconsistency as above and the fact that he did not show the availability of funds R. F. A. Nos.258 of 2016 & 119 of 2017 2025:KER:52432 -: 21 :- during the period, by itself, may not be sufficient enough to decide upon his readiness to go ahead with the transaction.
24. The evidence reveal that there were various hurdles in taking the transaction forward. Even going by the plaintiff's case, on one occasion when he came down to get the sale deed executed it was understood that the thumb impression of the first defendant is necessary on the original stamp papers. The stamp papers had to be sent to the first defendant at USA for the same. In the meanwhile, the Government had notified the fair value of the property at ₹ 1,20,000/- per cent burdening the plaintiff with the liability to pay huge amounts towards stamp value. There were issues with regard to the transferring of such large amounts either from India or from the plaintiff's business place at UAE to the first defendant's place in USA. There also cropped up the requirement of payment of capital gains by the first defendant, which the parties understood to be 20% of the R. F. A. Nos.258 of 2016 & 119 of 2017 2025:KER:52432 -: 22 :- sale consideration. To avoid such payment the parties were exploring the possibility of getting a certificate from the village office that the property is an agricultural land. The parties were indefinite regarding the course of action, and obtaining of such certificate was taking time. It could not be obtained even by August 2010.
25. Since even as in August 2010, the parties were unable to obtain certificate regarding the nature of the land, the plaintiff insisted that the deal be completed by proceeding to pay capital gain tax. As was noticed, such course would require the seller to pay tax at 20%, on the sale consideration. Hence the first defendant was not agreeable for the same. Though a further extension of time was suggested to the plaintiff to procure certificate from the village office, he, as per Ext.A23(k) e-mail, in categoric terms expressed that he is not interested in further extending the agreement period and that he will be unable to come down to the R. F. A. Nos.258 of 2016 & 119 of 2017 2025:KER:52432 -: 23 :- native place for the next four months. He required the deal to be done by payment of capital gain tax. The e- mail dated 17.08.2010 between the plaintiff and the first defendant are relevant in this regard. The first defendant wrote to the plaintiff:-
"Regarding land registration village agricultural land certificate is unclear and will take some more time to receive clarification. I am not in favour of executing the affidavit to seek exemption from income tax. Await development. In the circumstances your planned visit to Kerala on 27/8/'10 may be further postponed."
To this, the plaintiff sent a reply, the relevant portion of which reads, "If it is impossible to arrange this registration in this month, I am unable to visit Kerala within four months. Meanwhile, our agreement time will finish. Even if you are ready to extend the agreement period I do not wish to do like that. So I am not liking to change my schedule to Kerala. If not possible to arrange the required certificate, we can proceed on Option-I." The Option-I mentioned is by payment of 20% capital gain tax. This is evident from the e-mail communication dated 15.07.2010 by the first defendant to the plaintiff wherein it is stated, "Now to the matter on hand. There are two options as per your e-mails. (see below). They are :
R. F. A. Nos.258 of 2016 & 119 of 2017 2025:KER:52432 -: 24 :-
1) Pay a small 20% tax (capital gains) at the time of registration and
2) get a "agricultural land certificate" that allows no tax at registration but the danger of up to 50% total tax later."
To the insistence of the plaintiff to go ahead with the transaction on payment of 20% capital gains tax the first defendant answered in the negative and expressed his willingness to return the advance amount.
26. The first defendant had brought down the sale consideration from ₹ 1,50,000/- per cent to ₹ 1,20,000/- per cent. Obviously this was at the instance of the plaintiff and for his benefit. Thereafter, the plaintiff wanted the first defendant to go ahead with the transaction burdening the first defendant with 20% capital gains tax, when yet another option was available for the first defendant but, which appeared to take time. It was under such circumstances that the agreement failed.
27. Upon such intimation by the first defendant as above, the plaintiff had returned the title deeds and R. F. A. Nos.258 of 2016 & 119 of 2017 2025:KER:52432 -: 25 :- other documents relating to the property to the second defendant. PW1 admitted the same in his cross- examination thus:-
"ടസപഷതലംബർ 30-നഷ ആധരാരങ്ങളളുലം ശരഖകളളുലം രരാമകകൃഷഷഷ്ണൻ പറഞ പപകരാരലം തരിരരിച്ചഷ ടകരാടെമുതമു. "
Therefore, even the plaintiff appeared to have given up the intention to proceed further upon the agreement. This even tells upon his willingness to go ahead with the agreement.
28. Incidentally, there is yet another aspect. With regard to the extent of property, a reading of the email communications would indicate that the first defendant has gone by the statement of the plaintiff that on measurement the available extent was found to be 1 acre 19 cents. The sale price was to be on centage basis. In the written statement the defendants contended that the extent is 1 acre and 20 cents. Though there has been a measurement of the property, neither the plan is produced nor the surveyor who measured the property was R. F. A. Nos.258 of 2016 & 119 of 2017 2025:KER:52432 -: 26 :- examined. It is to be noticed that the plaintiff has scheduled only 1 acre and 19 cents and has sought for conveyance of the same. As per the title deed the extent is 1 acre 20 cents. Therefore, to obtain a decree for specific performance, the plaintiff ought to have convinced the court of the extent of the property available. However, it is not done.
29. Thus, on appreciating the entire evidence on record, we are of the opinion that this is not a fit case where the discretion is to be exercised to grant a decree for specific performance. The above aspects did not go into the zone of consideration of the trial court while considering the issue of exercise of discretion. The decree and judgment of the trial court are thus liable to be interfered with.
30. Having held that the plaintiff is not entitled for a decree for specific performance, necessarily the plaintiff is entitled to get the alternate relief of return of the advance sale consideration paid, with R. F. A. Nos.258 of 2016 & 119 of 2017 2025:KER:52432 -: 27 :- interest. The plaintiff is a businessman. He could have utilised the amount in his business. Having due regard to the same and the facts of the case, we are of the opinion that interest could be granted at the rate of 12% per annum from the date of payment till date of suit, and thereafter at the rate of 9% per annum till date of decree. Interest from the date of decree could be confined to 6%. In the light of the circumstances which prompted this Court to exercise its discretion not to grant specific performance but to grant decree for return of sale consideration, the plaintiff cannot be denied the statutory charge over the property available under Section 55(6)(b) of the Transfer of Property Act.
In the result, these appeals are allowed. The decree and judgment of the trial court are set aside. The plaintiff is granted a decree for recovery of ₹ 10 lakhs with interest at the rate of 12% per annum from 21.02.2009 till date of suit (05.10.2010) and thereafter at the rate of 9% per annum till date of decree, and R. F. A. Nos.258 of 2016 & 119 of 2017 2025:KER:52432 -: 28 :- thereafter at the rate of 6% per annum till realisation, from the plaint schedule property as a charge and by sale of it, and from the first defendant and his assets. The plaintiff shall be entitled for proportionate costs throughout.
Sd/-
SATHISH NINAN JUDGE Sd/-
P. KRISHNA KUMAR JUDGE kns/-
//True Copy// P.S. To Judge