Kerala High Court
Xavier @ Francis Xavier vs Manikuttan on 11 July, 2025
RFA. No.354/2015
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2025:KER:51559
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
FRIDAY, THE 11TH DAY OF JULY 2025 / 20TH ASHADHA, 1947
RFA NO. 354 OF 2015
AGAINST THE JUDGMENT AND DECREE DATED 25.03.2015 IN OS
NO.120 OF 2013 OF SUB COURT, KOCHI
APPELLANT/DEFENDANT:
XAVIER @ FRANCIS XAVIER
AGED 52 YEARS, S/O. ASHIKUTTY @ JOB,
CONTRACTOR, ETTEZHATHU HOUSE,
KUMBALANGHI P.O., KUMBALANGHI,
KOCHI TALUK, KOCHI - 682 007.
BY ADVS.
SRI.R.RAMADAS
SRI.T.SIVADASAN
RESPONDENT/PLAINTIFF:
MANIKUTTAN,
AGED 48 YEARS, S/O. DHARMAN,
BUSINESS, KURIANVEETIL HOUSE,
PALLURUTHY, KOCHI - 682 006.
BY ADVS.
SRI.C.S.YESUDAS
SHRI.DILEEP VARGHESE
SMT.TESMY VARGHEESE
THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION
ON 02.07.2025, THE COURT ON 11.07.2025 DELIVERED THE
FOLLOWING:
RFA. No.354/2015
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2025:KER:51559
JUDGMENT
Dated this the 11th day of July, 2025 The defendant in O.S. No.120 of 2013 on the file of the Sub Court, Kochi, is the appellant (for the purpose of convenience, the parties are hereafter referred to as per their rank before the trial court.)
2. The plaintiff filed the suit for specific performance of an agreement for sale. As per the plaint averments, on 11.3.2013, he entered into an agreement for sale with the defendant and thereby the defendant agreed to sell the scheduled property for a total consideration of Rs.20 Lakhs. On the date of the agreement itself, a sum of Rs.10 Lakhs was paid and the period of the contract was fixed as three months. At the instance of the defendant, the period of the contract was extended by three months on 10.6.2013 and on that day, another Rs.3,00,000/- was also paid to the defendant. According to the plaintiff, he was always ready and willing to perform his part of the contract, but due to the default of the defendant, the contract could not be performed. Therefore, he filed the suit for specific performance with an alternate RFA. No.354/2015 3 2025:KER:51559 prayer for return of advance amount with 18% interest.
3. The defendant filed written statement contending that he has not entered into any sale agreement with the plaintiff. According to him, he borrowed a sum of Rs.1,00,000/- from the plaintiff initially and thereafter another Rs.5,00,000/- was also received. He used to pay interest to the plaintiff at the rate of Rs.48,000/- per month. The plaintiff obtained two other agreements for sale in relation to the above loan transaction other than the agreement for sale relied on in the suit. It was contended that the sale agreement produced is a document concocted by the plaintiff without the will and consent of the defendant. In the light of the above contentions, the defendant prayed for dismissing the suit.
4. The trial court framed five issues. The evidence in the case consists of the oral testimonies of PW1 to PW3 and DWs 1 to 3 and Exhibits A1 to A7, C1 and C2. After evaluating the evidence on record, the trial court denied the prayer for specific performance, but allowed the alternate prayer and directed the defendant to pay a sum of Rs.13,00,000/- along with interest @6% per annum. Being aggrieved by the above judgment and decree of the trial court, the defendant preferred RFA. No.354/2015 4 2025:KER:51559 this appeal.
5. Now, the points that arise for consideration are the following:
1) Whether Exhibit A1 agreement was executed by the defendant?
2) Whether the plaintiff has paid a total sum of Rs.13,00,000/- to the defendant in pursuance to Exhibit A1?
3) Whether the impugned judgment and decree of the trial court calls for any interference, in the light of the grounds raised in the appeal?
6. Heard Sri. R. Ramadas, the learned counsel for the appellant/defendant and Sri.C.S. Yesudas, the learned counsel for the respondent/plaintiff.
7. The points: According to the plaintiff, Exhibit A1 sale agreement was entered into with the defendant, for the purchase of plaint schedule property for a total consideration of Rs.20 Lakhs. According to the plaintiff, on the date of the agreement on 11.3.2013, a sum of Rs.10 Lakhs was paid as advance and on 10.6.2013, the period of the agreement was extended by three months and on that day, a further RFA. No.354/2015 5 2025:KER:51559 sum of Rs.3,00,000/- was paid towards balance sale consideration.
8. On the other hand, according to the defendant, there was only a loan transaction and he has not executed Exhibit A1 as an agreement for sale. According to the defendant, at first, he borrowed a sum of Rs.1,00,000/- and thereafter a sum of Rs.5,00,000/- was borrowed and the total sum due to the plaintiff is only Rs.6,00,000/-.
9. The trial court found that the plaintiff was not ready with the balance amount to get the sale deed executed. On the basis of the evidence of the plaintiff himself the trial court came to the conclusion that the plaintiff was a real estate broker engaged in real estate business and that he entered into agreement with the defendant for selling the property to prospective purchasers for profit. Since he could not find prospective purchasers, he was satisfied with return of the amount paid and it was in the above context, the trial court denied specific performance and ordered to pay the advance amount of Rs.13,00,000/-.
10. The trial court found that the defendant had no consistent defence. Exhibit A1 is seen executed in stamp paper worth Rs.100/-. It contains five pages including one stamp paper and four foolscap sheets. RFA. No.354/2015 6
2025:KER:51559 On the reverse side of the stamp paper also there is an endorsement extending the period of agreement by three months from 10.6.2013. All the five pages of Exhibit A1 contain the signatures of the plaintiff and the defendant. While the first four pages contain one signature each, the 5th page and the rear side of the stamp paper contain two signatures each. The defendant admits all those signatures in Exhibit A1.
11. The learned counsel for the appellant would argue that admission of the signatures in Exhibit A1 does not amounts to admission of its contents as well as admission of receipt of Rs.13,00,000/-. In support of the argument that admission of signature in a stamp paper is not admission of execution of documents, the learned counsel for the appellant has relied upon the decision of this court in Choovatta Vadakkekara Kunhi Veettil Janardhanan v. Mottukkande Karunakaran [2011 (3) KHC 710], Santha v. Rajappan Pillai [1986 KHC 320], Seithammarakkath Mammad v. Koyommatath Mammad [1957 KHC 65]. He would argue that in connection with the loan transaction, signatures of the defendant was obtained by the plaintiff in blank papers and then blank papers were misused for forging a sale RFA. No.354/2015 7 2025:KER:51559 agreement.
12. However, during the cross examination of the defendant as DW1, he admitted that he was engaged in construction work and he never used to sign any document without reading its contents. He would swear that he affixed in the document, in which the matter was written in Malayalam. Further according to him, he affixed his signature without reading and understanding the contents of the document. PW2 and 3 are the attestors to Exhibit A1. He also admitted the signatures in Exhibit A1. It is true that PWs 2 and 3 have not seen the payment of the second instalment of Rs.3,00,000/-, as it is revealed that at the time of the said payment, they went out of the room. However, from the evidence of PW1 itself it is revealed that he affixed his signatures not in blank papers but in a document prepared in Malayalam. Ext. A1 is prepared in Malayalam. On the reverse side of the stamp paper, there is an endorsement stating that on 10.6.2013, a further sum of Rs.3,00,000/- was received in addition to Rs.10 Lakh already received and the period of the agreement is extended by three months from 10.6.2013. In the above context, the averment in the written statement that the plaintiff RFA. No.354/2015 8 2025:KER:51559 has obtained two other agreement for sale in relation to the loan transaction between the plaintiff and the defendant other than the agreement for sale relied on in this suit assumes significance, as noted by the trial court.
13. It is true that during the cross examination of the plaintiff as PW1, he deposed that he was engaged in real estate business and about 60 sale agreements were executed at his instance. The above answer given by the plaintiff was also highlighted by the learned counsel for the defendant to disbelieve the case of the plaintiff. However, during the re-examination he clarified that all those agreements were not executed by himself but executed by him as a real estate broker. Therefore, for the reason that the plaintiff is a real estate broker engaged in several similar agreements, no adverse inference can be drawn against him.
14. Similarly, during the cross examination of PW1, he deposed that for advancing the first instalment of Rs.10 Lakhs, Rs.6,00,000/- was received by him by his brother-in-law Rajesh and that Rs.4,00,000/- was there in his possession. However, when he was asked as to how he arranged Rs.3,00,000/- involved in the second payment, he deposed that RFA. No.354/2015 9 2025:KER:51559 he could not recollect it. The above answer given by PW1 was relied upon by the learned counsel for the appellant to disbelieve his testimony. Relying upon the decision of this Court in Chanduveettil Sakkeer Hussain v. Ayisha Beevi [2025 KHC 520], the learned counsel would argue that, absence of proof of evidence regarding the source of the amount paid to the defendant is to be taken as a ground to disbelieve the plaintiff's case.
15. Even from the evidence of PW1, it is revealed that he was a real estate broker involved in about 60 such transactions. In the above circumstance, for the mere reason that he could not recollect as to how he arranged Rs.3,00,000/- for paying the second instalment, his evidence could not be disbelieved. It was further argued that, if the plaintiff has actually paid Rs.13,00,000/- he would definitely have insisted for specific performance and that the inability to pay the balance amount probabilises the case of the defendant that it is only a loan transaction. Even according to the plaintiff, he is a real estate broker and his idea was to find out prospective purchaser and to sell the property on profit. His version that he could not find prospective purchasers and that is why RFA. No.354/2015 10 2025:KER:51559 he could not arrange the balance amount cannot be disbelieved. Therefore, on that ground also no inference could be drawn against the plaintiff.
16. Exhibit A7 is the copy of the complaint given by the defendant to the Circle Inspector of Police, Palluruthi, in which he stated that he borrowed a sum of Rs.6,00,000/- from the defendant and the plaintiff obtained a sale agreement in respect of the plaint schedule property from him. In the said complaint, he stated that at first, he borrowed Rs.6,00,000/- from the defendant and the plaintiff obtained a sale agreement in respect of the plaint schedule property from him. In the said complaint, he stated that at first he borrowed Rs.6,00,000/- from the defendant and when he defaulted payment of interest, the plaintiff obtained an acknowledgment signed by him to the effect that he paid another Rs.7,00,000/- to the defendant. However, as per Exhibit A1, the amount paid on the date of Exhibit A1 was Rs.10 Lakh and subsequently payment was only Rs.3,00,000/- and not as stated in Exhibit A7. In Exhibit A2 also he admits about execution of the sale agreement and the subsequent endorsement thereon. From the contention taken in the RFA. No.354/2015 11 2025:KER:51559 written statement as well as from Exhibit A7 itself, it can be seen that Ext. A1 was not forged in blank signed papers obtained by the plaintiff, but the defendant affixed in those documents after it was prepared.
17. The defendant has no case that he happened to execute the sale agreement as well as the endorsement thereon in any vitiating circumstances. During the cross examination, DW1 further admits that in addition to Rs.6,00,000/- received in two instalments, some other small amounts were also received from the plaintiff. He has not disclosed the details of those amounts borrowed from the plaintiff. Though the defendant claims that he had paid interest at the rate of Rs.48,000/- per month to the plaintiff, he could not produce any documents to prove the same. Since from the evidence of PWs1 to 3, execution of Exhibit A1 is proved and the defendant could not prove that it is only a loan transaction as claimed, it is to be treated as a genuine agreement for sale executed by the plaintiff and the defendant as per the terms and conditions stated therein. From the contents of Exhibit A1, it can be seen that on 10.3.2013, the defendant received Rs.10 lakhs and thereafter on 10.6.2013, he received another Rs.3,00,000/- extending RFA. No.354/2015 12 2025:KER:51559 the period of agreement. In the above circumstances, the judgment and decree of the trial court, directing the defendant to repay the advance amount of Rs.13,00,000/- along with interest at the rate of 6% per annum, does not call for any interference.
18. In the result, this appeal is dismissed. Considering the fact that the agreement could not be performed due to the default of the plaintiff, I direct both parties to bear their respective costs.
All pending interlocutory applications shall stand closed.
Sd/-
C. PRATHEEP KUMAR, JUDGE sou.