Kannadasan vs Vallyamma
2021 Latest Caselaw 17810 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR. JUSTICE P.SOMARAJAN
   WEDNESDAY, THE 1ST DAY OF SEPTEMBER 2021 / 10TH BHADRA, 1943
                          RFA NO. 827 OF 2011
   AGAINST THE JUDGMENT IN OS 454/2007 OF PRINCIPAL SUB COURT,
                          PALAKKAD, PALAKKAD
APPELLANT/PLAINTIFF:

          KANNADASAN, S/O.PAZHANIMALAKUTTY, RESIDING AT MAMBULLY
          VEEDU, CHULLIMADA, PUDUSSERY AMSOM, PALAKKAD TALUK.

          BY ADV SRI.B.KRISHNA MANI



RESPONDENTS/DEFENDANTS:

    1     VALLYAMMA, W/O.CHAMUNNI, RESIDING AT NADUKALATHIL,
          NATTUKAL POST, KOZHINJAMPARA VILLAGE, CHITTOOR TALUK.
          671533

    2     ANNAPOORNI,W/O.CHOKKALINGAM, NO.260,GIRI NAGAR, 15TH
          CROSS ROAD, KOCHI, ERNAKULAM 682035.

          BY ADV SRI.U.BALAGANGADHARAN




     THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON
01.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 RFA NO. 827 OF 2011                      2



                                JUDGMENT

Based on an agreement for sale dated 28.09.1994, a suit for

specific performance was filed in the year 2007, after the lapse of

more than 12 years, by advancing a case that the period of

agreement was subsequently extended four times by receiving

additional advance, out of the sale consideration by making

endorsement on the reverse side of the agreement. The trial court

found that the agreement is not genuine, but a creation in collusion

with the first defendant, intended to defeat the decree in

O.S.No.294/1997. The property was auctioned by the Debts

Recovery Tribunal and the second defendant is the successful

purchaser for a sale consideration of Rs.7,50,000/- (Rupees seven

lakhs and fifty thousand only). Delivery of property was also

effected after the issuance of sale certificate and its confirmation.

The said decree and judgment is assailed on the ground that the

finding rendered by the trial court on two issues regarding the relief

of specific performance and the protection granted under Section

53A of the Transfer of Property Act is legally not sustainable and

that the finding rendered by the court below that the agreement for

sale in favour of the plaintiff is not genuine, are wrong and cannot

be sustained.

2. Regarding the application of Section 53A of the Transfer of

Property Act, since delivery of possession was effected in

compliance of court auction in execution of a decree against the

owner, the first defendant, after the confirmation of sale and

issuance of sale certificate to the auction purchaser, the second

defendant, the plaintiff cannot seek protection under Section 53A of

the Transfer of Property Act. It can only be taken up during the

continuance of possession in furtherance of a contract for sale.

Once the possession is diverted, the party cannot seek protection

under the umbrella of Section 53A of Transfer of Property Act.

Further, this court in Mathew Varghese v. Krishnan [2020 (1)

KLT 643] held that Section 53A is inoperative and still born and the

legal fatigue suffered by the Section was not addressed, even at the

time of 2001 amendment.

3. Regarding the genuineness of agreement, even according to

the plaintiff, it is dated 28.09.1994. It is not a registered

agreement. The suit for specific performance was filed after the

lapse of more than 12 years, though the original period agreed into

by the parties is only 11 months, which would expire on

28.08.1995. No demand notice for performance of the agreement

was issued within the period stipulated in the agreement and no

extension was also agreed into within that period. Even according to

the plaintiff, the period was extended only after the expiry of the

agreed period of 11 months. It was extended for more or less three

years on 24.09.1997 and another more or less three years on

26.06.2000 and another three years on 20.05.2003 by extending

the period up to 10.04.2006. In short, altogether more than 12

years period was extended by making endorsement on the reverse

side of the agreement. This would make it unconscionable and self

serving. The collusion and fraud played writ large on its face. It is

really a creation so as to appear that even prior to the mortgage

dated 21.12.1994, there was a subsisting obligation over the

property by virtue of a contract for sale. The period was

subsequently extended for more than 12 years so as to maintain a

suit in the year 2007 and to wriggle out of the limitation. The oral

evidence tendered by PW1 to 3 was taken into consideration

altogether by the trial court and found that the contract for sale was

created for the purpose of defeating the decree and judgment in

O.S.No.294/1997. The high improbabilities writ large on its face

would show the extent of collusion with the first defendant so as to

appear that there exists a contract for sale even prior to the

creation of mortgage right over the property, for that purpose four

times' extension were given, each for a period of more or less three

years without assigning any reasons worth the name. It is not

explained and no plausible explanation was offered why the period

of contract was extended for a period of more than twelve years.

This would virtually make it unconscionable, unacceptable and even

it will go against the reasonableness and prudence of an ordinary

man. The extension of period for more than twelve years without

making any alteration in the agreed sale consideration and without

assigning any reason would itself show that it was created with the

intention to defraud the second defendant and to defeat the decree

in which he had obtained the property by court sale. It is so strange

enough that, even according to the plaintiff, 80% of the sale

consideration was paid and what remains only is 20% of the sale

consideration to be paid to the first defendant. If it is true, why the

plaintiff had waited for a long period of more than 12 years for

getting the sale deed executed, was not explained. The agreement

and the extension for a long period of more than 12 years by

making endorsement on the reverse side of the agreement would

abundantly make it clear that it is the worst form of manipulation

made by the plaintiff in collusion with the first defendant with the

same witnesses so as to delay and defeat the decree and its

execution in O.S.No.294/1997. As such, the compensatory cost

allowed by the lower court to the tune of Rs.3,000/- (Rupees three

thousand only) under Section 35A of the Code of Civil Procedure

deserves no interference. This appeal is yet another attempt on the

part of plaintiff to further delay and defeat the rights of second

defendant who obtained the property in a court auction. Hence, the

appeal fails, dismissed. No costs.

Sd/-

P.SOMARAJAN JUDGE ajt