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Kerala High Court
A.F.Varghese vs M/S.Aleema Developers And Properties ... on 11 December, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
RFA No.302/2014
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2025:KER:95129
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
THURSDAY, THE 11TH DAY OF DECEMBER 2025 / 20TH AGRAHAYANA, 1947
RFA NO. 302 OF 2014
AGAINST THE JUDGMENT DATED 31.01.2014 IN OS NO.214 OF 2012 OF
IIIrd ADDITIONAL SUB COURT, ERNAKULAM
APPELLANTS/DEFENDANTS 1 AND 2:
1 A.F.VARGHESE
AGED 48 YEARS
S/O.GEORGE ARUKANDATHIL, ARUKANDATHIL HOUSE, HOUSE
NO.48/2498, CORPORATION OF COCHIN, COTTAGE NO.6, CHOICE
PARK, ELAMAKKARA KARA, EDAPPALLY SOUTH VILLAGE,
KANAYANNOOR TALUK, ELAMAKKARA PO ERNAKULAM DISTRICT,
PIN.682 026
2 USHA VARGHESE, AGED 43 YEARS, W/O A.F. VARGHESE
ARUKANDATHIL HOUSE, HOUSE NO.48/2498, CORPORATION OF
COCHIN, COTTAGE NO.6, CHOICE PARK, ELAMAKKARA KARA,
EDAPPALLY SOUTH VILLAGE, KANAYANNOOR TALUK,
ELAMAKKARA PO, ERNAKULAM DISTRICT, PIN - 682 026.
BY ADVS.
SHRI.JOHNSON ABRAHAM
SHRI.NELSON ABRAHAM
SHRI.EMIL JOHNSON
RESPONDENTS/PLAINTIFF AND DEFENDANTS 3 TO 5:
1 M/S.ALEEMA DEVELOPERS AND PROPERTIES PVT.LTD
RFA No.302/2014
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2025:KER:95129
APARTMENT NO.2A, DOOR NO.41/3032C2, CORPORATION OF
COCHIN, RDS RETREAT, KACHERRYPADY, ERNAKULAM VILLAGE,
KANAYANNOOR TALUK, COCHIN-682 018 REPRESENTED BY THE
POWER OF ATTORNEY, BENNY MATHEW S/O.MATHEW, AGED 48
YEARS, EXECUTIVE DIRECTOR, M/S.ALEEMA DEVELOPERS AND
PROPERTIES PVT.LTD, RESIDING AT THONAKKARA HOUSE, HOUSE
NO.70A, MOSQUE LANE, PATTOM PALACE P.O,
KESAVADASAPURAM, THIRUVANANTHAPURAM-695 004
2 THE DISTRICT REGISTRAR (GENERAL)
ERNAKULAM, COCHIN-682 016
3 THE SUB REGISTRAR
PUTHENCRUZ, ERNAKULAM DISTRICT 682308
4 THE STATE OF KERALA
REPRESENTED BY DISTRICT COLLECTOR, ERNAKULAM 682 030
BY ADVS.
SHRI.P.CHANDRASEKHAR
SRI.S.SANAL KUMAR (SR.)
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
15.12.2025, THE COURT ON 11.12.2025 DELIVERED THE FOLLOWING:
RFA No.302/2014
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2025:KER:95129
SATHISH NINAN & P. KRISHNA KUMAR, JJ.
= = = = = = = = = = = = = = = = = =
R.F.A.No.302 OF 2014
= = = = = = = = = = = = = = = = = =
Dated this the 11th day of December, 2025
JUDGMENT
P.Krishna Kumar, J.
A suit filed by the first respondent seeking a
direction to the appellants herein to execute a sale deed in
respect of the plaint schedule property was decreed by the Sub
Court, Ernakulam. The present appeal is preferred against the
said judgment by defendant Nos. 1 and 2 in the suit.
2. The parties will be hereinafter referred to as they
were arrayed in the suit. Defendant Nos. 1 and 2 signed a sale
deed dated 07.11.2009 on 09.11.2009 in favour of the plaintiff
company. They received a total sale consideration of
₹1,75,00,000/- in four installments. According to the
plaintiff, the defendants agreed to appear before the Sub-
Registrar, Puthencruz on 09.11.2009, to register the sale
deed. However, when the sale deed signed by them was presented
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for registration before the Sub-Registrar, they failed to co-
operate in completing the registration. The plaintiff
thereafter issued a lawyer notice to the defendants on
14.01.2010 requesting them to appear before the Sub-Registrar.
In reply, the defendants contended that the agreed sale
consideration was ₹3,87,40,200/-, whereas the plaintiff had
paid only ₹1,75,00,000/-, and that the plaintiff obtained
their signatures by misrepresentation. The plaintiff then
requested the Sub-Registrar to issue notice to defendant Nos.
1 and 2 to appear before him, as they had already signed Form
No.1A and Form 58 required for registration. The Sub-Registrar
refused to entertain the request, and the plaintiff approached
the District Registrar before whom the defendants reiterated
their stand. As the District Registrar deferred the matter for
adjudication by a civil court, the plaintiff filed the suit
seeking a decree directing the third defendant, the District
Registrar, to consider the plaintiff's application and
register the sale deed in accordance with law or, in the
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alternative, a decree for specific performance directing
defendant Nos. 1 and 2 to execute a registered sale deed.
3. According to defendant Nos. 1 and 2, they signed the
sale deed on account of the misrepresentation and fraud played
upon them by the plaintiff. They assert that the sale deed
does not mention the agreed sale consideration of
₹3,87,40,200/- but only ₹1,75,00,000/-. They rely on an
agreement for sale (Ext.B12) executed between themselves and
P.D. Mathew, the Managing Director of the plaintiff company,
for a consideration of ₹3,87,40,200/-. They contend that they
signed the documents believing the representation of P.D.
Mathew that the entire sale consideration would be paid at the
time of execution. After obtaining their signatures, the
plaintiff allegedly refused to pay the balance amount through
bank instruments and instead offered to pay ₹2,12,40,200/- in
cash as unaccounted money. Faced with the adverse legal
consequences of accepting such a huge amount from unknown
sources, they declined to proceed with the registration, it is
contended.
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4. During the trial, the plaintiff examined PW1 and PW2
and marked Exts.A1 and A2. The defendants examined DW1 to DW4
and marked Exts.B1 to B12. After a detailed evaluation of the
oral and documentary evidence, the trial court concluded that
the defence case regarding a higher sale consideration and
misrepresentation in obtaining signatures is improbable. The
court found that defendant Nos. 1 and 2 are bound to execute
the sale deed and accordingly granted the alternative relief.
5. We have heard Sri. Johnson Abraham, learned counsel
appearing for defendant Nos. 1 and 2/appellants, and
Sri. S. Sanal Kumar, learned senior counsel instructed by Smt.
Bhavana Sanal for the plaintiff/respondent No. 1, as well as
the learned Government Pleader for respondent Nos. 2 to 4.
6. Having considered the rival submissions and the
pleadings, the following points arise for consideration:
(i) Whether defendant Nos. 1 and 2 executed the sale deed
on account of misrepresentation by the plaintiff?
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(ii) If not, whether the plaintiff is entitled to a
decree directing defendant Nos. 1 and 2 to execute and
register the sale deed?
7. As the defendants admit that they signed the sale
deed and the connected registration forms, the crucial
question is whether such execution was induced by
misrepresentation. According to them, Ext.B12 reflects the
actual sale consideration but the plaintiff paid only
₹1,75,00,000/-. They claim that they did not read the sale
deed and signed it assuming that the full consideration was
reflected therein, and believing the plaintiff's assurance
that the balance would be paid at the time of execution
through bank instruments. They assert that, instead of
honouring such assurance, the plaintiff offered to pay the
balance as black money, which they declined.
8. Sri. Johnson Abraham, learned counsel for defendant
Nos. 1 and 2, contended that Ext.B12 is the crucial document
substantiating the defence. Though the agreement was between
defendant Nos. 1 and 2 and P.D. Mathew, the plaintiff company
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became a party to the transaction through clause 4 of Ext.B12,
which enabled execution of the sale deed in favour of P.D.
Mathew or his nominee. Based on that clause, the plaintiff
company secured execution of the deed in its name as nominee
of P.D. Mathew. It is further argued that out of the advance
sale consideration of ₹1,75,00,000/-, only ₹45,00,000/- was
paid through a cheque issued by the company, and the rest was
allegedly paid in three installments from the funds of P.D.
Mathew.
9. Refuting the said contentions, Sri. S. Sanal Kumar,
learned senior counsel for the plaintiff, submitted that
Ext.B12 is a fabricated document and that the sale deed was
executed in pursuance of an oral agreement between the
defendants and the plaintiff company.
10. The plaintiff sought to substantiate its case
through PW1, the Power of Attorney holder and one of the
Executive Directors of the company, and PW2, the Advocate who
prepared the sale deed and witnessed its execution. PW2
deposed that defendant Nos. 1 and 2 signed the sale deed on
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07.11.2009 at the office of the plaintiff at Ernakulam, and at
that time a cheque for ₹45,00,000/- was handed over to them by
PW1 towards the entire balance sale consideration. According
to PW2, the accused signed the document at about 9 p.m. on
07.11.2009, and agreed to register it on 09.11.2009. PW2 was
authorised by PW1 to oversee the transaction and he further
deposed that there was no promise or agreement to pay any
further amount. He had earlier executed four sale deeds on
behalf of the plaintiff.
11. On analysing the oral evidence of DW1 to DW4, it is
evident that none of them witnessed the execution of Ext.B12
by P.D. Mathew, the Managing Director of the plaintiff
company. Their case is that DW4 obtained the signatures of
defendant Nos. 1 and 2 and thereafter sent the document for
the signature of P.D. Mathew. Proving the genuineness of
Ext.B12 is crucial for defendant Nos. 1 and 2, as their entire
defence rests upon that document. It is the only material
relied on to show that the actual sale consideration was
₹3,87,40,200/-, and not ₹1,75,00,000/-. On a scrutiny of
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Ext.B12, we find difficulties in accepting the defendants'
contention for several reasons. Ext.B12 is dated 06.10.2009.
However, the defendants admittedly received ₹85,00,000/- from
the plaintiff on 15.06.2009, and ₹45,00,000/- on 19.08.2009
through two cheques -- one for ₹25,00,000/- and another for
₹20,00,000/-. If there was indeed a written agreement for sale
between the parties, it ought to have been executed prior to
such substantial payments made as advance sale consideration.
After making such payments through bank instruments, there
appears no necessity to execute an agreement for sale, and
that too just before execution of the final sale deed, which
occurred within one month. Above all, the trial court has
rejected the defendants' version regarding Ext.B12 upon
noticing several other shortcomings in the document. The
relevant observations are extracted below:
"13. Regarding the allegation of the learned
counsel for the plaintiff with respect to Ext.B12
agreement I have perused the said document. It is
seen that the font size in page No.6 and 7 are
smaller when compared to the letters in the other
pages of the document. If the print out of the
entire document was taken out from a system there
was no possibility of having two font size. As the
letters in page No.6 and 7 of the disputed document
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were not smaller in size compared to the other
pages. It is for the defendants to explain the
circumstance under which two types of letters
happened to be in the said document-, but the
defendant could not make any explanation. Further
the defendant could not produce any evidence to see
that the original of Ext.B12 was sent to P.D.Mathew
and more so it has been found that there was no
probability of sending the original of the disputed
document to P.D.Mathew by DW4 since according to
the defendants, it was PW2, who made all efforts to
get the disputed document prepared and also to
prepare the sale deed by purchasing stamp paper by
using funds obtained from P.D.Mathew. On
considering all these facts and circumstances of
the case, I find that there is no probability or
possibility in executing the disputed document
dated 6.10.2009 and the defendants failed to prove
the execution of such an agreement by P.D.Mathew."
12. The defendants further contended in their written
statement that prior to Ext.B12, there existed an earlier
agreement with P.D. Mathew involving the plaint schedule
property and also the property of DW2, and that ₹1,30,00,000/-
was received pursuant to that agreement. The date of such
agreement is not mentioned in the pleading. From the oral
evidence, it appears that the alleged agreement was dated
15.05.2009. However, the defendants failed to prove its
existence by producing any document. The contention that the
major portion of the advance sale consideration was received
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from P.D. Mathew and not from the plaintiff company is also
unacceptable, as P.D. Mathew was the Managing Director of the
plaintiff company.
13. Coming to the crucial question as to whether
defendant Nos. 1 and 2 signed the sale deed dated 07.11.2009
as a result of fraud and misrepresentation, the burden lies
upon them to establish such a plea or to demonstrate
circumstances giving rise to a reasonable probability of such
fraud. It is an admitted fact that both defendants are
experienced real estate businessmen. They are neither
illiterate nor incapable of understanding commercial and legal
documents. In their written statement, they assert that:
"These Defendants were made to sign the Sale Deed
dated 7.11.2009 by committing fraud on them. The
plaintiff represented that the entire sale
consideration will be paid as accounted money, but
failed to do so and thus made misrepresentation."
14. The alleged mode of misrepresentation is that, the
plaintiff assured them that the entire sale price would be
paid at the time of execution of the deed, but after obtaining
their signatures, the plaintiff stated that the balance amount
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would be paid in unaccounted cash. Such a contention is wholly
insufficient to explain the defendants' conduct in signing a
document wherein the total consideration is expressly recorded
as ₹1,75,00,000/-. Being educated and experienced persons,
they cannot now contend that they signed the deed without
reading its recitals. Signature on the document amounts to
acceptance of its terms. It is settled law that, a person who
executes a document is ordinarily bound by its terms,
irrespective of whether he read or understood it, and it
operates as a conclusive bar against him -- the liability
arising not from reading it, but from signing it [Mathu v.
Cherchi, 1990 (1) KLT 416].
15. Here, the plea of fraudulent misrepresentation is
wholly inconsistent with the admitted fact that the sale deed
they signed recorded the consideration as ₹1,75,00,000/-.
Defendant Nos. 1 and 2 failed to establish any vitiating
factor which would bring the case under any exception to
Section 92 of the Evidence Act (or Section 95 of the Bharatiya
Sakshya Adhiniyam). On the contrary, the evidence of PW1 and
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PW2 is consistent and credible, making the plaintiff's case
more probable. Further, their conduct is highly unnatural:
they claim to have discovered the alleged fraud on the date of
execution itself, yet they remained silent until they received
Ext.A1 notice dated 14.01.2010, and even then took no legal
action against the plaintiff. Their inaction, despite being
seasoned businessmen, clearly undermines the genuineness of
their allegation. Therefore, we conclude that they did not
sign the sale deed due to any fraud or misrepresentation and
are bound by its terms.
17. Sri. Johnson Abraham, learned counsel, further
argued that a nominee cannot maintain a suit, though he may be
entitled to obtain execution of the deed under Ext.B12. It was
also submitted that the suit is not maintainable since the
plaintiff has no case of any oral agreement, and therefore,
the relief of specific performance is not legally sustainable.
18. As the defendants have failed to prove Ext.B12, the
first contention is meritless. The plea regarding
maintainability is also unacceptable. The plaintiff has
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specifically pleaded an oral agreement in the very first
paragraph of the plaint. This plea stands supported by the
testimony of PW1 and PW2 and the circumstances arising from
the payments made prior to execution of the sale deed. In such
circumstances, the law is well settled that the plaintiff can
maintain a suit for specific performance, as behind every
agreement for sale, either oral or in writing, there is an
implicit agreement that the vendor is bound to do all
necessary steps for completing the sale by effecting
registration of the sale deed and other required ancillary
matters. [Kalavakurti Venkata Subbaiah v. Bala Gurappagari
Guruvi Reddy, (1999) 7 SCC 114].
19. In the facts and circumstances discussed above,
unless the sale deed is registered and the transaction
completed, the plaintiff, who has already paid the
consideration, would suffer undue hardship. The balance of
convenience and equitable considerations also support the
plaintiff's case. We therefore find no reason to interfere
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with the findings of the trial court or the decree passed in
favour of the plaintiff.
In the result, the appeal is dismissed affirming the
impugned judgment.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
sv
