Kerala High Court
Kalyani vs P.V. Selvaraj @ Babu on 23 August, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
WEDNESDAY, THE 23RD DAY OF AUGUST 2023 / 1ST BHADRA, 1945
RFA NO. 782 OF 2015
AGAINST THE DECREE AND JUDGMENT IN OS 100/2010 OF PRINCIPAL
SUB COURT, PALAKKAD
APPELLANTS/DEFENDANTS:
1 KALYANI, W/O.LATE PONNAN, AGED 82 YEARS, RESIDING
AT 16/78, NOTTAMPARA, PUDUPPARIYARAM P.O.,
PUDUPPARIYARAM AMSOM, PALAKKAD TALUK AND
DISTRICT.
2 R.REMA, AGED 43 YEARS, W/O.LATE P.MOHANAN,
RESIDING AT 16/78, NOTTAMPARA, PUDUPPARIYARAM
P.O., PUDUPPARIYARAM AMSOM, PALAKKAD TALUK AND
DISTRICT.
3 VINUP, AGED 24 YEARS,S/O.LATE P.MOHANAN, RESIDING
AT 16/78, NOTTAMPARA, PUDUPPARIYARAM P.O.,
PUDUPPARIYARAM AMSOM, PALAKKAD TALUK AND
DISTRICT.
4 VINEETHA, AGED 22 YEARS, D/O.LATE P.MOHANAN,
RESIDING AT 16/78, NOTTAMPARA, PUDUPPARIYARAM
P.O., PUDUPPARIYARAM AMSOM, PALAKKAD TALUK AND
DISTRICT.
BY ADV SRI.RAJESH SIVARAMANKUTTY
RESPONDENT/PLAINTIFF:
P.V. SELVARAJ @ BABU, AGED 57 YEARS,
S/O.ARUMUGHAN, SREE SELVAM, VAKKIL PARAMBIL,
PUDUPPARIYARAM P.O., PUDUPPARIYARAM AMSOM,
PALAKKAD TALUK AND DISTRICT.
BY ADV SRI.R.HARISHANKAR
THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON
23.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Sathish Ninan, J.
==============================
R.F.A No.782 of 2015
==========================
Dated this the 23rd day of August, 2023
JUDGMENT
The suit for specific performance of an agreement
with an alternate relief of return of advance sale
consideration, was decreed for the alternate relief.
Challenging the decree for return of advance sale
consideration under an agreement for sale, the
defendants are in appeal.
2. Ext A2 is the agreement dated 30.09.2009, upon
which the plaintiff has laid the suit. The agreement is
between the plaintiff and late Mohanan, the predecessor
of the defendants. The property which is the subject
matter of Ext A2 is, 4 cents with a building thereon.
The total sale consideration fixed is D 4.75 Lakhs. An
amount of D 50,000/- was paid on the date of agreement
towards advance sale consideration. The period fixed for
performance was three months. It is recited in Ext A1
RFA No.782/2015
that, on 15.10.2009 the plaintiff has to pay a further
advance of D 1,50,000/-. According to the plaintiff, as
required by Mohanan, he paid further amounts of
D 1,50,000/- on 10.10.2009, D 50,000/- on 14.10.2009 and
D 1,85,000/- on 12.12.2009. Mohanan met with an untimely
death on 28.12.2009. Alleging that the plaintiff came to
know of the attempts of the defendants to encumber the
property, the suit has been filed after issuance of Ext
A3 notice claiming performance of the agreement.
3. The defendants denied Ext A2 agreement including
the signature of Mohanan therein. It was contended that
Ext A2 is a fabricated document. It was also contended
that there were no transactions between the plaintiff
and Mohanan. The financial capacity of the plaintiff to
pay the amount as claimed, was also challenged.
4. The trial court upheld Ext A1 agreement.
However, exercising the discretion under Section 20 of
the Specific Relief Act, the Court declined specific
RFA No.782/2015
performance and decreed return of the advance sale
consideration with interest. The defendants are in
appeal. The plaintiff has not chosen to challenge the
refusal of the relief of specific performance.
5. Heard Sri.Rajesh Sivaramankutty on behalf of the
appellants - defendants and Sri.R.Harishankar, learned
counsel for the respondent - plaintiff.
6. The point that arises for determination is:
"Is the finding of the trial court with regard to the
genuineness of Ext A2 agreement supported by materials?"
7. In the written statement of the defendants,
there is a total denial of Ext A2 and the transaction.
PW3 is one of the witnesses to Ext A2 agreement. He has
deposed about the execution of the agreement by Mohanan.
The trial court noticed that, though PW3 was cross
examined at length, nothing could be brought out to
discredit the witness. The evidence of PW3 was read over
RFA No.782/2015
before this Court. Nothing could be brought out to
displace such finding of the trial court.
8. In the written statement the defendants have
denied the signature of the Mohanan. While PW3 was
cross-examined, it was suggested to him that:
"മമമഹന³ ഒര agent മ ഖമനര
ð ഒരമള
ന ന
5,000/- അയ മ യ ര ര പവമങ യത നഅമ
മ മദ ചതക
À ന അവര
മട കമത
കട ത കനത ട
യ ല ര നമരഖയ
sâ ഒപന
കലമമമഹന ര ച ളവമയ
ജന പ ചതമണഎന
(Q). അത
പറയ ന
ളവമണ
. ഞമ³
പറഞത മണസത*
(A)".
9. The suggestion is that the signature of Mohanan
was attempted to be imitated in Ext A1 agreement.
However, when the plaintiff(PW2) was cross examined, the
suggestion made to him was:
"മമമഹനsâ ഒപ മറ ലര കടആവശ*പപ മര
മ ന ര ക തഇട വമങ യ ടലമസ പമ
Ext.A2 ഉണ മ ക മറ
À കല മവണÄനഈ
ങ
RFA No.782/2015
മ സ നടത യമ5
(Q) ശര യ5, എsâ മ സ
സത*മമണ. ഞമ³ പറഞ മര*ങÄ സത*മമണ
(A)."
10. The case projected is that blank signed paper
of Mohanan was misused to fabricate Ext A2 agreement.
The case set up is evidently contradictory.
11. It is practically admitted that late Mohanan
was in debts. Ext X1 loan ledger from the Palghat
Co-Operative Urban Bank shows that Mohanan had paid an
amount of D 1,65,146/-, which includes principal and
interest, towards a loan availed by him from the Bank.
As per the endorsement on the reverse side of the first
page of Ext A2 agreement, the plaintiff had paid
D 1,50,000/- on 10.10.2009, D 50,000/- on 14.10.2009, and
D 1,85,000/- on 12.12.2009. It is the case of the
plaintiff that Mohanan had obtained the amounts to
discharge his debts.
RFA No.782/2015
12. The defendants dispute the financial capacity
of the plaintiff to pay the amounts. The plaintiff has
produced Ext A6 which is the certified copy of a Sale
Deed executed by him on 08.10.2009. Thereunder he had
sold his property for a sale consideration of
D 1,98,000/- as mentioned in Ext A6. Though plaintiff,
as PW2, would in chief examination has stated that he
had availed loan from KSFE on 07.02.2009 and it was one
of the sources for Ext.A2 purchase, in cross examination
he deposed that the said amount was invested in his
business. It is his case that during the relevant time
he was doing provision store business along with his
son-in-law. Any how, the sale of property under Ext.A6
supports the plaintiff's case regarding funds.
13. The learned counsel for the appellants would,
drawing the attention of this Court to the endorsements
at the reverse side of Ext A2 agreement, which are
marked as Ext A2(a), A2(b) and A2(c), contend that it is
RFA No.782/2015
shrouded by various suspicious factors. The total amount
of advance consideration received is mentioned therein
as D 47,50,000/-. The endorsement on 10.10.2009, marked
as Ext A2(a) and on 12.12.2009 marked as Ext.A2(c)
contain witnesses. However, the endorsement made on
14.10.2009 does not contain any witnesses. The learned
counsel would further contend that Ext A2(a), (A2(b) and
A2(c) are written not in a sequence but irregularly and
in an unnatural way; Ext A2(b) dated 14.10.2009 is
written above Ext.A2(a) dated 10.10.2009, and Ext A2(c)
dated 12.12.2009 is written below Ext A2(a). However, on
a perusal of the said endorsements, it does not in any
manner cause any apprehension regarding its genuineness.
The entries, on the face of it, appear to be natural.
Anyhow the finding on the genuineness shall not rest on
such opinion of the Court.
14. The defendant has produced Exts B1 to B14
documents which contain either the admitted signature or
RFA No.782/2015
the hand writing of Mohanan and that too almost
contemporaneous. The trial court noticed the signature
in the said documents and observed that there is
striking similarity with the signature of Mohanan seen
in Ext A2 agreement. This Court also perused the same
and is unable to hold that the opinion expressed by the
trial court is not correct. However, again, the decision
on the genuineness is not to be based solely on the
same. When the defendants had denied the signature of
Mohanan in Ext A2 agreement and they had with them the
admitted signatures of Mohanan and which were documents
of the relevant period, it was for the defendants to
take steps to have Ext.A2 forwarded for expert opinion
for comparison of the signatures. Curiously, the
defendants refrained from doing so.
15. PW2 (plaintiff) deposed that Ext A2(a) to A2(c)
endorsements were made by Mohanan in his own hand
writing and under his signature. As noticed, PW3 has
RFA No.782/2015
also vouched to the signatures of Mohanan. As noticed
earlier, Mohanan was, during the relevant time, heavily
indebted. DW1 admitted that the closure of loan as
evidenced by Ext X1 was made since Mohanan received
notice from two or three banks demanding repayment of
the loans availed by him therefrom. As evidenced by Ext
B13, Mohanan had sold away even his auto rickshaw.
Moreover, from the suggestion made to PW3 while he was
cross-examined, the portion of which have been extracted
earlier at paragraph 8, it is evident that the
defendants did not have any definite case as who was the
alleged private financier to whom amounts were
outstanding. Though it is definite case of the
defendants that after the death of Mohanan the private
financiers threatened the defendants that they would be
ousted from the property, there is no case for the
defendants that they had even lodged a complaint with
the police regarding the same. In the totality of the
RFA No.782/2015
above circumstances, the case of the plaintiff is
probable.
16. The learned counsel for the appellants-
defendants would point out various circumstances to
contend that the agreement for sale is not genuine. He
would point out that the plaintiff as PW2 has admitted
that he entered into the agreement without seeing the
title deed, without enquiring whether there is any
encumbrance over the property, that Mohanan had no other
residence in spite of which even the neighbours were not
made aware of the intended sale.
17. All the above would be matters for
consideration while exercising the discretion in
granting a decree for specific performance. As noticed,
the trial court has already exercised its discretion and
refused to grant a decree for specific performance. The
decree passed is only for return of advance sale
consideration with interest. The findings of the trial
RFA No.782/2015
court are based on proper appreciation of evidence and
circumstances. The same warrants no interference.
Resultantly, the appeal fails and is dismissed.
Sd/-
Sathish Ninan, Judge
vdv
