Kerala High Court
P. Babu vs Thomas Koshy on 2 August, 2024
RSA NO. 1095 OF 2013 1
2024:KER:60320
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
FRIDAY, THE 2ND DAY OF AUGUST 2024 / 11TH SRAVANA, 1946
RSA NO. 1095 OF 2013
AGAINST THE JUDGMENT DATED 07.01.2013 IN AS NO.93 OF 2011 OF DISTRICT
COURT,PATHANAMTHITTA
ARISING OUT OF THE JUDGMENT DATED 06.07.2011 IN OS NO.41 OF 2008 OF SUB COURT,
PATHANAMTHITTA
APPELLANT/APPELLANT/PLAINTIFF:
P. BABU
AGED 58 YEARS
S/O PHILIPOSE, PLAVILAYIL HOUSE, KALANJOOR MURI, KALANJOOR
VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT.
BY ADV SRI.V.PHILIP MATHEW
RESPONDENT/RESPONDENT/DEFENDANT:
THOMAS KOSHY
AGED 61 YEARS
S/O KOSHY, THOPPIL HOUSE, KALANJOOR MURI, KALANJOOR VILLAGE, ADOOR
TALUK, PATHANAMTHITTA DISTRICT-689 645.
BY ADVS.
SRI.C.S.DIAS
SRI.P.GOPAKUMARAN NAIR
SRI.N.K.SUBRAMANIAN
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02.08.2024, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA NO. 1095 OF 2013 2
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JUDGMENT
1. The plaintiff in a suit for specific performance is the appellant
herein. The plaintiff filed the suit, scheduling 19 cents of land
covered by Ext.A4 document, praying for a decree directing the
defendant for specific performance of the oral agreement dated
17.05.2001 for re-transfer of scheduled property in favour of the
plaintiff by executing the re-transfer deed after accepting
Rs.1,10,000/-, and, in case of failure on the part of the defendant,
praying the court to execute the Sale Deed.
2. The contention of the plaintiff is that on 17.05.2001, the plaintiff
borrowed an amount of Rs.1,00,000/- from the defendant
agreeing to repay the same with interest at 12% per annum. In
order to secure the said borrowal Ext.A4 Deed dated 17.05.2001
was executed as insisted by the defendant. The execution of
Ext.A4 Sale Deed was on the specific oral agreement that the
defendant will execute a re-transfer deed in respect of the said
property when the plaintiff repays Rs.1,00,000/- with interest.
The possession of the plaint schedule property was also given to
the defendant to take usufructs from the property by the
defendant towards the interest for the loan. The plaintiff on
03.10.2001 approached the defendant and offered Rs.1,00,000/-
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to him, demanding execution of a re-transfer deed in his favour.
But the defendant demanded an amount of Rs.1,60,510/- which is
against the oral agreement. He subsequently, several times with
mediators approached the defendant. But all the times he
demanded more amount for re-transfer of the property. The
plaintiff issued Ext.A5 legal notice dated 02.12.2004 to execute
re-transfer deed in respect of the scheduled property after
accepting Rs.1,00,000/- from the plaintiff within 7 days from the
date of receipt of the same. Though the defendant accepted the
notice, he failed to execute the re-transfer deed in compliance
with the oral agreement. There was a mediation convened on
10.12.2005 at the residence of PW3 in which a mediation
settlement was arrived at between the plaintiff and the defendant
and the defendant agreed to re-transfer the scheduled property
in favour of the plaintiff after accepting Rs.1,10,000/- within a
period of two years. Though the plaintiff approached the
defendant on 28.11.2007 with the agreed amount of
Rs.1,10,000/-, the plaintiff refused to accept it and re-transfer the
scheduled property in favour of the plaintiff, insisting on the
earlier demand of Rs.1,60,510/-. The cause of action for the suit
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is stated to have arisen on 17.05.2001, the date on which Ext.A4
Sale Deed was executed and an oral agreement was entered into
between the plaintiff and the defendant, on 10.12.2005, the day
on which the mediation took place and on 28.11.2007, the day on
which the defendant refused to accept Rs.1,10,000/- to execute
the transfer deed.
3. The defendant resisted the prayers in the suit, contending that
the suit is barred by limitation; that Ext.A4 is a pucca sale deed;
that there was no oral agreement for re-conveyance between the
plaintiff and the defendant.
4. On the side of the plaintiff, the plaintiff was examined as PW1.
The scribe of Ext.A4 document was examined as PW2. The
alleged mediator was examined as PW3 and marked Exts.A1 to
A13. On the side of the defendant, the defendant was examined
as DW1 and marked Ext.B1 to B6.
5. The Trial Court dismissed the suit holding that the plaintiff failed
to prove that Ext.A4 was executed only as a security for the loan;
that the plaintiff failed to prove the oral agreement for re-
conveyance claimed by him; and that the suit is barred by
limitation. Though the plaintiff filed an appeal before the First
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Appellate court, the same was also dismissed confirming the
judgment and decree of the Trial Court.
6. This Court admitted the Regular Second Appeal on the following
substantial questions of law on 12.09.2013:
i. Did the courts below go wrong in not adverting to
the contents of Ext.A13 letter and the recitals in
Ext.A4 with regard to the earlier money
transactions and so, were the courts below right
in non-suiting the plaintiff?
ii. Are not the circumstances brought out in
evidence sufficient to justify the claim for re-
conveyance?
iii. Whether the courts below went wrong in
interpreting the true nature of Ext.A4 document?
7. I heard the learned counsel for the appellant, Sri. V. Philip
Mathews and the learned counsel for the respondent,
Sri. N.K.Subramanian.
8. The learned counsel for the appellant argued that the plaintiff had
produced sufficient evidence to show that Ext.A4 Sale Deed was
executed only as a security. Though Ext.A13 proved that there
were earlier money transactions between the plaintiff and the
defendant, the same was not considered by the Trial Court as well
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as the Appellate Court. According to him, Ext.A13 would
substantiate the case of the plaintiff that the plaintiff had taken a
loan from the defendant and Ext.A4 Sale Deed was executed only
as a security. According to him, in view of Article 54 of the
Limitation Act, the period of three years for filing a suit for
specific performance of a contract is to be counted from the date
on which the plaintiff has noticed that performance is refused,
when no date is fixed for performance of the agreement for sale.
According to him, the plaintiff came to know about the refusal on
the part of the defendant only on 28.11.2007, the date on which
the defendant refused to accept the amount borrowed by the
plaintiff from him. The Trial Court as well as the Appellate Court
wrongly calculated the period of limitation from 03.10.2001, the
date on which the plaintiff approached the defendant and the
defendant refused to execute the sale deed. According to him, the
earlier acts on the part of the defendant do not amount to refusal,
but it is only postponement/ avoidance/forbearance and it would
not amount to refusal. He cited a decision of the Hon'ble Supreme
Court in Valliammal v. Murali [2023 KLT OnLine 1777 (SC)]
to substantiate that refusal and forbearance are opposite and
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hence forbearance does not amount to refusal. He also cited the
decision of this Court in Ummer v Kunhava [2007 (4) KLT 469]
to substantiate the proposition that an agreement of contract for
sale of immovable property need not be in writing.
9. On the other hand, the learned counsel for the respondent argued
that the decisions rendered by the Trial Court as well as the
Appellate Court are well considered, answering all the points on
issue and arriving at the right conclusion. He contended that even
counting from Ext.A5 lawyer notice, the period of limitation
expired much earlier than the date of filing the suit. He pointed
out that admittedly the possession of the property was given and
the prior title deeds, encumbrances certificate and land tax
receipts were delivered at the time of execution of Ext.A4
document, which would indicate that the transaction is a real sale
and not a security transaction as alleged by the plaintiff. He relied
on a decision of this Court in Bhasy v. Thoman [2022 (4) KLT
624] to substantiate the proposition that, as per Section 55(3) of
the Transfer of property Act, when prior title deeds were
transferred, it would not indicate the transaction was a money
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transaction but it would only indicate that it was an actual sale in
respect of the property covered by it.
10. On going through the pleadings in this case, I am of the view
that this is a case in which both the parties are not telling the
truth before the court. According to the plaintiff, the plaintiff
borrowed an amount of Rs.1,00,000/- on 17.05.2001, the date on
which Ext.A4 Sale Deed was executed. But Ext.A4 would indicate
that consideration is already received prior to the date of Ext.A4
document. As rightly pointed out by the learned counsel for the
appellant, Ext.A13 would prove the prior money transactions
between the parties. The contention of the learned counsel for the
respondent is that it relates to the transaction with respect to the
purchase of rubber sheets. At any rate, Ext.A13 would indicate
that there is prior liability from the plaintiff to the defendant. But
it does not in anyway indicate that Ext.A4 was executed as a
security for loan. If the intention of the parties was to execute
Ext.A4 as a security for loan, it would have been executed when
the first loan was availed. In this case, it is executed only on
17.05.2001. So the past liability may be a reason for execution of
Ext.A4 Sale Deed. As rightly contended by the learned counsel for
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the respondent, if Ext.A4 was intended only as a security for loan,
the delivery of the prior title deed, encumbrances certificate and
tax receipts were not required. That apart, admittedly possession
was also given to the defendant. All these would indicate that
Ext.A4 was executed, not as a security for the loan.
11. The contention of the learned counsel for the plaintiff is that the
oral agreement between the parties is sufficiently proved from
the circumstances of the case as well as the evidence of PWs 2
and 3. Here also, as rightly held by this Court in Ummer (supra),
when oral agreement is pleaded by the plaintiff, there is a heavy
burden on the plaintiff to discharge his burden. Here, from the
evidence of PW1, no explanation is given as to why a written
agreement was not executed for the alleged agreement for re-
conveyance. If the real intention between the parties was to re-
convey the property after receiving the loan amount from the
plaintiff by the defendant, nothing prevented the plaintiff from
insisting for a written agreement for the same. On that ground,
the contention of the plaintiff that there is an oral agreement
between the parties cannot be sustained.
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12. With regard to the question of limitation, also as per the plaint the
cause of action arose on 28.11.2007, the date on which the
plaintiff offered Rs.1,10,000/- to the defendant on the basis of the
mediation alleged to have taken place on 10.12.2005. The alleged
mediation is not proved. Even otherwise, Ext.A5 lawyer notice is
dated 02.12.2004, in which the plaintiff has made a demand to re-
convey the property within seven days from the date of receipt of
the said notice. In such a case also, the cause of action would arise
from the date of expiry of seven days from the date of receipt of
Ext.A5 notice by the defendant. If the limitation is calculated from
the said date also, it expired much before the date of the suit. The
contention of the learned counsel for the appellant that the earlier
acts on the part of the defendant are only a postponement,
forbearance/avoidance cannot be accepted in view of the specific
pleading in the plaint itself that on 03.10.2001 the plaintiff
approached the defendant and offered Rs.1,00,000/- to him
demanding execution of a re-transfer of the scheduled property
to him, but the defendant failed to accept the offered amount by
demanding more amount. From the said act of the defendant, the
plaintiff had come to know that the defendant is refusing the
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execution of reconveyance. Hence, even going by the pleadings in
the plaint, the cause of action arose on 3.10.2001 and the suit
should have been filed within three years from the said date.
13. In view of the aforesaid discussion, I do not find any merit in this
Regular Second Appeal and the questions of law framed by this
Court are answered in the negative. Accordingly, the Regular
Second Appeal is dismissed.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
Shgxx
