Kerala High Court

Varkey Cheriyan @ Sooraj vs Elsy Ouseph on 2 November, 2024

Author: Sathish Ninan

Bench: Sathish Ninan

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              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

              THE HONOURABLE MR. JUSTICE SATHISH NINAN

                                       &

            THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN

   SATURDAY, THE 2ND DAY OF NOVEMBER 2024 / 11TH KARTHIKA, 1946

                          RFA NO. 48 OF 2017

     AGAINST THE JUDGMENT DATED 22.07.2016 IN OS NO.110 OF 2015 OF

                 PRINCIPAL SUB COURT, NORTH PARAVUR

                                  -----

APPELLANT/PLAINTIFF:

            VARKEY CHERIYAN @ SOORAJ,
            AGED 39 YEARS, S/O. LATE CHERIYAN VARKEY, MANJOORAN
            VEETTIL, ALUVA POST, ALUVA KARA, ALUVA WEST VILLAGE,
            ALUVA TALUK, ERNAKULAM.


            BY ADVS.
            SRI.N.MANOJ KUMAR
            SMT.JAYASREE MANOJ




RESPONDENT/DEFENDANT:

            ELSY OUSEPH,
            W/O. LATE OUSEPH, MELEDATH VEETIL, ALUVA POST, ALUVA
            KARA, ALUVA WEST VILLAGE, ALUVA TALUK, ERNAKULAM.


            BY ADV SRI.G.SREEKUMAR CHELUR


     THIS   REGULAR   FIRST   APPEAL       HAVING   COME   UP   FOR   HEARING    ON
02.11.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                        2024:KER:81369
                        SATHISH NINAN &
                    P.V.BALAKRISHNAN, JJ.
             = = = = = = = = = = = = = = = = = =
                     R.F.A. No.48 of 2017
             = = = = = = = = = = = = = = = = = =
           Dated this the 2nd day of November, 2024

                       J U D G M E N T

Sathish Ninan, J.

The plaintiff in a suit for specific performance of

an agreement for sale is the appellant. The trial court

declined the relief of specific performance but,

directed return of the advance amount paid.

2. Ext.A1 is the agreement dated 07.09.2012 which

is sought to be specifically enforced. As per Ext.A1,

the defendant agreed to sell an extent of 1.61 ares of

property with the residential building situated thereon

to the plaintiff for a total consideration of ₹ 50

lakhs. On the date of Ext.A1 an amount of ₹ 7 lakhs was

paid towards advance sale consideration. The period

fixed for performance was up to 07.09.2015. Alleging

failure on the part of the defendant to perform the

agreement, the suit has been filed.

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3. The defendant contended that Ext.A1 evidences

only a loan transaction. While availing a loan of ₹ 7

lakhs from the plaintiff in connection with her

daughter's marriage, Ext.A1 document was got executed by

the plaintiff. She had not read the contents of the

document nor was aware of the same. Ext.A1 was executed

without intending it to be an agreement for sale but

only as a security for the transaction.

4. The trial court held that the evidence on record

indicates that the defendant had executed Ext.A1 without

knowing it to be an agreement for sale. The contract was

held to be void and the amounts paid thereunder was

directed to be returned.

5. We have heard learned counsel on both sides.

6. The points that arises for determination are :-

(i) Is the finding of the trial court that Ext.A1 agreement is void, sustainable on the evidence?

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(ii) Is the plaintiff entitled for a decree for specific performance?

(iii) On the facts and circumstances of the case, is the discretion under Section 20 of the Specific Relief Act to be exercised in favour of the plaintiff, to grant a decree for specific performance?

(iv) Does the decree and judgment of the trial court warrants any interference?

7. Ext.A1 is a registered agreement for sale. The

defendant does not dispute that she had signed Ext.A1.

It is her contention that Ext.A1 was executed as a

security for the loan transaction with the plaintiff and

that she was unaware that it was an agreement for sale.

According to her, she did not read the contents of

Ext.A1.

8. The defendant does not have a case that she is

illiterate. She having not chosen to read the contents

of the document, in the circumstances as noticed, the

plea that she did not read the contents is hardly of any

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avail. The evidence of the Sub Registrar as DW3 that the

contents of Ext.A1 was not read over to the defendant

does not enable this Court to enter a finding that the

defendant was unaware of the contents of the document.

There is no specific plea that the defendant was

defrauded into execution of Ext.A1 under the guise of

making her execute some other document. Even going by

the defendant's case, she intend to execute some form of

security to secure the loan availed by her from the

plaintiff. The trial court held that going by the

evidence of DW3 the defendant had not affixed the two

signatures seen in Ext.A1 before him. However, the said

finding is contrary to what was deposed by DW3.

Referring to the signatures of the defendant in Ext.A1

he deposed thus :-

"Cu c-ïv H-¸p-I-fpw F-sâ ap-ónð h-¨v H-¸n-«-XmWv."

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Therefore, on the evidence on record, the finding of the

trial court that the defendant had not executed Ext.A1

agreement knowing it to be an agreement cannot be

sustained. The said finding is accordingly set aside. It

is held that the defendant was aware of the nature of

Ext.A1.

9. The mere finding that Ext.A1 agreement was

executed with the knowledge about its character does not

entail a decree for specific performance of Ext.A1. It

needs to be considered whether on the facts and

circumstances of the case, a decree for specific

performance is liable to be granted.

10. The learned counsel for the appellant would

argue that the defendant having disowned Ext.A1 as an

agreement for sale, the question of exercise of

discretion does not arise. We are unable to agree with

the contention. As the Section itself says, exercise of

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discretion is a matter which falls within the

jurisdiction of the Court trying a suit for specific

performance. The relief of specific performance has its

roots in equity. The defendant has, at paragraph 7 of

the written statement specifically claimed equitable

consideration under Section 20 of the Specific Relief

Act(as it existed). The grant of a decree for specific

performance is discretionary depending on the facts of

each case.

11. It is the contention of the defendant that

Ext.A1 was executed only to secure a loan availed under

compelling circumstances in the wake of her daughter's

marriage. We proceed to note certain circumstances which

probabilise such contention.

12. Though Ext.A1 is for sale of a residential

house, the period fixed for performance is a very long

period of three years. No reason is stated in Ext.A1 as

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to why such a long period is fixed. During evidence PW1

has brought in a new case that there was a litigation in

respect of the property consequent to which such a long

period was fixed. If the pendency of the litigation was

the reason, then that would have definitely been stated

in Ext.A1.

13. It is the contention of the defendant that

during the relevant period he was suffering from various

ailments; that she is a widow, and to meet the marriage

expenses of her daughter she had availed loan of ₹ 7

lakhs from the plaintiff, towards security for which

Ext.A1 was executed. That she is a widow is not under

dispute. Ext.A1 is dated 07.09.2012. Ext.B1 is the

discharge summary from the hospital evidencing that the

defendant suffered a stroke on 16.05.2012. It is not in

dispute that the betrothal in connection with the

marriage of the defendant's daughter was held on

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01.09.2012. Ext.B2 is the marriage invitation with

regard to the marriage of the defendant's daughter. The

marriage was scheduled to 15.09.2012. Ext.B3 is the

estimate regarding purchase of gold ornaments. Ext.B4 is

the original marriage certificate evidencing the

marriage held on 15.09.2012. The circumstances as above

probabilise the case of the defendant that a loan was

availed under Ext.A1 for the purpose of the marriage of

her daughter.

14. That the plaint schedule property is the only

asset of the defendant is not in dispute. It is her

residential house. As noticed above, the defendant

suffered a stroke. She is a widow. Going by the proof

affidavit sworn to by the defendant she was aged 71

years in the year 2016. Hence she is of 80 years of age

now. The plaintiff is a businessman. There is wide

disparity in their financial status. Considering all the

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circumstances as above, we are of the opinion that this

is a fit case where the discretion is to be exercised to

decline the relief of specific performance. The

declining of such relief by the trial court warrants no

interference.

15. The trial court has granted a decree for return

of the advance amount paid under Ext.A1 agreement. The

trial court held that Ext.A1 agreement is void and

accordingly ordered refund. However, we have upheld

Ext.A1 agreement but has declined the relief of specific

performance in exercise of discretion under Section 20

of the Specific Relief Act. Though the plaintiff has not

sought for return of the advance sale consideration, at

paragraph 16 of the written statement the defendant has

expressed her willingness to return the advance sale

consideration with interest. The said paragraph reads

thus :-

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"16. ta-ð \{¼v A-\ym-b-¯nð Sn. I-cm-dnð ]-d-bp-ó G-gv e-£w cq-]bpw ]-en-ibpw aS-¡n e-`n-¡p-hm³ A-t]£ (Alternative Prayer) Cñm-¯-Xm-Ipóp. F-¦n-epw 7.09.2012 \v hm-Zn-bnð \n-ópw Cu {]-Xn I-Sw hm§n-b G-gv e-£w cq-]-bpw, Sn. kw-Jy-bv-¡v {]-Xn, hm-Zn- ¡v \ðIm-sa-óv k-½-Xn-¨n-cp-ó 18% ]-en-ibpw-IqSn Cu {]Xn, hm-Zn- ¡v \ð-Ip-hm³ C-t¸mgpw X-¿m-dp-Å-Xm-Ipóp. h-kv-Xp Xo-sd-Sp¡-Ww F-óp-Å A-t]-£ D-t]-£n¨p-sImïv, Hcp Joint Compromise lc-Pn ^-b-em-¡n hn-[n-bm-Ip-ó-Xn\v Cu {]-Xn-¡v k-½-X-am-Ipóp. Joint

Compromise Petition Cð 7,00,000/þ (G-gv e£w) cq-]-bpw; Sn. kw-Jy- bv¡v 7.09.2012 ap-Xð 18% \n-c-¡n-ep-Å ]-en-ibpw Iq-Sn-b-Xp-I-IÄ hm- Zn-¡v \ð-Ip-hm³ Cu {]-Xn _m-²y-Ø-bm-sWóv tc-J-s¸-Sp-¯p- hm\pw; Sn. kw-Jy-IÄ-¡v A-\ym-b-]«n-I h-l-IÄ NmÀ-Öm-¡p-hm\pw Cu {]-Xn-¡v k-½-X-am-Ipóp."

16. Even during the course of the hearing, the

learned counsel reiterated the above stand of the

defendant. In the circumstances, we do not find any

reason to interfere with the decree of the trial court

for return of the advance amount of ₹ 7 lakhs with

interest.

17. The trial court has granted only a simple money

decree. Even as conceded by the defendant, the plaintiff

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is entitled for a charged decree. The decree and

judgment of the trial court are liable to be modified to

the above extent.