Kerala High Court
Molly Abraham vs Samarias Finance on 23 July, 2025
RFA. No.215/2006
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 23RD DAY OF JULY 2025 / 1ST SRAVANA, 1947
RFA NO. 215 OF 2006
AGAINST THE JUDGMENT AND DECREE DATED 27.02.2006 IN OS
NO.906 OF 1994 OF I ADDITIONAL SUB COURT,ERNAKULAM
APPELLANT/PLAINTIFF:
MOLLY ABRAHAM
AGED 56 YEARS, D/O LATE P.T.THOMAS,
POOPALLIL HOUSE, PONGA P.O.,
ALAPPUZHA, DISTRICT,NOW RESIDING AT
9A, DR. SUBBARAYA NAGAR, 3RD STREET,
KODAMBAKKAM, CHENNAI - 24.
BY ADVS.
SHRI.P.B.KRISHNAN (SR.)
SHRI.N.AJITH
SRI.P.B.SUBRAMANYAN
SMT. GEETHA P. MENON
RESPONDENTS/DEFENDANTS & ADDL. DEFENDANTS:
1 SAMARIAS FINANCE, HAVING OFFICE AT
NO.29, LUZ AVENUE, MYLAPORE, MADRAS.
2 JACOB GEORGE S/O. LATE A.T.GEORGE
AGED ABOUT 48 YEARS, RESIDING AT
NO.E-100, ANNANAGAR, MADRAS-600 040.
3 SAMARIAS HOUSING FINANCE LTD., A PUBLIC
COMPANY INCORPORATED UNDER THE PROVISIONS OF,
COMPANIES ACT 1 OF 1956 HAVING ITS OFFICE AT,
NO.29, LAW AVENUE, MYLAPORE, MADRAS - 600 004.
RFA. No.215/2006
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4 K.T.DEVASSY, S/O. LATE THOMMAN, AGE
NOT KNOWN, RESIDING AT KALLUNGAL HOUSE,
THRIKKANARVATTOM, ERNAKULAM VILLAGE,
KANAYANNUR, TALUK, ERNAKULAM DISTRICT.
5 JOSEPH THOMAS CHRISTO, S/O. K.T.DEVASSY
KALLUNGAL HOUSE, AYYAPPANKAVU, COCHIN-18.
6 GEORGE ABRAHAM, S/O. LATE ABRAHAM A.G.,
16/53, LUZ AVENUE, 1ST STREET,
MYLAPORE, MADRAS - 4.
7 THOMAS ABRAHAM, S/O. LATE ABRAHAM A.G.,
16/53, LUZ AVENUE, 1ST STREET,
MYLAPORE, MADRAS - 4.
8 PRIZE ABRAHAM, S/O. LATE ABRAHAM A.G.,
16/53, LUZ AVENUE, 1ST STREET,
MYLAPORE, MADRAS - 4.
BY ADVS.
SHRI.V.S.CHANDRASEKHARAN
SMT.NIMMI FRANKLIN
SRI.M.V.DAS
SRI.S.JAYAKUMAR
SMT.LEKSHMI SWAMINATHAN
SHRI.C.SWAMINATHAN
SMT.R.RAJASREE (CHUTTIMATTATHIL)
SRI.AVM.SALAHUDEEN
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
15.07.2025, THE COURT ON 23.07.2025 DELIVERED THE FOLLOWING:
RFA. No.215/2006
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JUDGMENT
Dated this the 23rd day of July, 2025
The plaintiff in OS No.906/1994 on the file of the Sub Court,
Ernakulam, is the appellant. (For the purpose of convenience, the parties
are referred to as per their rank before the trial court).
2. The plaintiff filed the suit for specific performance of an
agreement for sale dated 21.9.1985 executed with defendants 1 and 2.
The 1st defendant is a firm and the 2 nd defendant is the managing partner
and also the husband of the plaintiff. Plaint A schedule property consists
of a total extent of 13.138 cents comprised in Sy. No.338/1 of
Ernakulam Village. Out of which, plaint B schedule having an extent of
6.481 cents belonged to the 1st defendant firm and C schedule having an
extent of 6.657 cents belonged to the 2nd defendant. According to the
plaintiff, on behalf of defendants 1 and 2, the 2 nd defendant executed the
agreement for sale agreeing to sell the A schedule property for a total
consideration Rs.4.5 lakhs. According to the plaintiff, on the date of
execution of Exhibit A1 itself, the entire sale consideration was paid and
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on the same day, delivery of possession of the property was also
transferred in favour of the plaintiff. In Exhibit A1 sale agreement, no
period was prescribed for the performance of the agreement. The
plaintiff filed the suit only on 31.8.1994, about 9 years after the
agreement. In the meantime, B schedule property having an extent of
6.481 cents was attached in execution of a decree in O.S.436/1986 filed
by the 5th defendant pending before the Sub Court, Ernakulam and
thereafter the said property was purchased by the 5 th defendant in court
auction. Later on, as per Exhibit B1 settlement deed No.4167/2002, the
5th defendant has settled the said property in favour of the 6 th defendant.
In the meantime, in IP. No.13/87 pending before the Sub Court,
Kottayam against the defendants 2 and 3 filed by their creditors,
defendants 2 and 3 were adjudged insolvent as per order dated
7.11.1989. In appeal A.S.No.27/90, before the District Court, Kottayam,
the dispute with the creditors was settled. It was in the above context,
the 5th defendant filed O.S. No.436/86, obtained a decree in his favour
and purchased B schedule property in a court auction.
3. According to the plaintiff, she came to know about the sale of
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the B schedule property to the 5 th defendant only on 3.9.1991 through a
family friend and thereafter filed the suit for specific performance. It
was contended that the 5th defendant purchased the scheduled property
for a meager sum of Rs.25,000/- while its actual value is much more. In
the suit, in addition to the prayer for specific performance, there is also a
prayer for declaration that Exhibit B1 gift deed executed by the 5 th
defendant in favour of the 6th defendant is not binding on the plaintiff
and the plaint schedule property and a further declaration that the said
property belonged to the plaintiff, in addition to a prayer for prohibitory
injunction.
4. The 1st defendant is a firm, defendants 2 and 3 are its
partners and 4th defendant is the company formed by the defendants 1 to
3. During the pendency of the suit, the 2nd defendant died and additional
defendants 7 to 9 were impleaded as his legal representatives.
Defendants 1 to 4 remained ex-parte. Defendants 5 and 6 filed a written
statement contending that the suit has been preferred by the plaintiff in
collusion with the 2nd defendant. According to them, the 2nd defendant
was doing money lending business at Ernakulam in the name of the 1 st
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defendant. The 5th defendant filed a suit as OS.No.436/1986 for realising
the money due from the 2nd defendant. The suit was decreed and in
execution of the decree, he purchased plaint B schedule property
(wrongly mentioned as C schedule in the written statement and trial
court judgment). It is also contended that the plaintiff has not paid any
consideration to the 2nd defendant as alleged. It is also contended that
the plaintiff has not produced the original agreement. According to
them, since the plaint B schedule property was the personal property of
the 2nd defendant, the other defendants were unnecessary parties in the
suit. A claim petition filed by the plaintiff before the execution court
was dismissed and hence the present suit is not maintainable. It is also
contended that the suit for specific performance is barred by limitation.
After the property was purchased in court auction, the 5 th defendant was
in possession and enjoyment of B schedule property and after the
execution of Exhibit B1 settlement deed, it is in the possession and
enjoyment of the 6th defendant. Therefore, they prayed for dismissing
the suit.
5. The trial court framed five issues. The evidence in the case
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consists of oral testimonies of PWs 1 and 2 and DW1, Exhibit A1 to A4,
B1 and B2. After evaluating the evidence on record, the trial court
dismissed the suit with costs to defendants 5 and 6. Being aggrieved by
the above judgment and decree of the trial court, the plaintiff preferred
this appeal.
6. Now, the point that arises for consideration is the following:
Whether the impugned judgment and decree of the trial
court calls for any interference in the light of the grounds
raised in the appeal?
7. Heard Sri. P.B. Krishnan, learned senior counsel, instructed by
Sri. P.B. Subramanian for the plaintiff and Sri. AVM Salahudeen, the
learned counsel for defendants 5 and 6.
8. Plaint B schedule consists of 6.481 cents and C schedule
consisting of 6.657 cents together is scheduled as A schedule having an
extent of 13.138 cents. Out of which, the plaint B schedule is the
personal property of the 2nd defendant, while C schedule is the property
of the 1st defendant firm, in which defendants 2 and 3 are partners.
Though the main prayer in the suit is specific performance of the entire
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13.138 cents, the actual dispute in this case is only with regard to plaint
B schedule property having an extent of 6.481 cents obtained by the 5 th
defendant in execution of decree in OS.No.436/1986 of Sub Court,
Ernakulam and subsequently settled by the 5 th defendant in favour of the
6th defendant as per Exhibit B1 settlement deed. Exhibit A1 is the sale
agreement dated 21.9.1985 relied upon by the plaintiff, which was
executed along with the 2nd defendant, who is none other than her
husband. Exhibit A1 was executed by the 2 nd defendant in his personal
capacity as well as in his capacity as the managing partner of the 1 st
defendant. The case of defendants 5 and 6 is that Exhibit A1 was
executed by the 2nd defendant in collusion with the plaintiff to defraud
his creditors.
9. In the plaint, it is admitted that the creditors of the 2nd
defendant filed IP. No.13/87 before the Sub Court, Kottayam and in the
above proceedings, the Sub Court Kottayam adjudged defendants 2 and
3 as insolvents. Thereafter, defendants 2 and 3 preferred AS.27/1990
before the District Court, Kottayam wherein the matter was settled with
the other creditors and adjudication of insolvency was set aside by the
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District Court as per order dated 3.8.1991. The 5 th defendant, another
creditor of the 2nd defendant, who was not a party to the insolvency
proceedings filed in O.S. No.436/1996 before the Sub Court,
Ernakulam, obtained a decree in his favour and purchased the plaint B
schedule property in court auction, obtained sale certificate on 21.1.1991
and subsequently settled the same in favour of the 6th defendant.
10. When plaintiff was examined as PW1, she admitted that at the
time of execution of Exhibit A1 agreement for sale on 21.9.1985, she
was residing along with the 2 nd defendant. The consideration shown in
Exhibit A1 is Rs.4.5 Lakhs. As per Exhibit A1, the above consideration
was paid by the plaintiff to the 2 nd defendant by way of a cheque.
Exhibit A1 was executed at Madras. In Exhibit A1, it is specifically
stated that on the date of execution of Exhibit A1 on 21.9.1985, the
possession of entire 13.138 cents was handed over to the plaintiff. The
specific case of the plaintiff is that she was settled in Chennai and that
she was not aware of the proceedings in OS. No.436/1986 and only on
3.9.1991 she came to know about the court sale and issuance of sale
certificate in favour of the 5th defendant. She preferred a claim petition
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before the execution court, which was dismissed and against which, an
Execution First Appeal was preferred by her, which is still pending
before this Court. Therefore, it was contended that the suit filed by the
plaintiff on 1.9.1994 is barred by limitation as well as hit by Section 47
of the CPC. The trial court found that the suit is barred by limitation and
also hit by Section 47 of the CPC.
11. Relying upon Article 54 of the Limitation Act, the learned
counsel would argue that since no time is fixed in Exhibit A1, the cause
of action arose only when specific performance is denied. According to
him, only on 1.9.1994, the 2nd defendant expressed his inability to
perform Exhibit A1, in the light of the sale certificate issued in favour
of the 5th defendant and therefore, the suit is not barred by limitation. It
is true that in Exhibit A1, no period is prescribed for performance. It is
also true that as per Article 54 of the Limitation Act, the cause of action
starts only when specific performance is denied. Therefore, technically
the suit filed on 1.9.1994 is not barred by limitation.
12. Similarly, the plaintiff filed a claim petition before the
execution court only for lifting the order of attachment. In the claim
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petition, the contention taken was that she entered into a sale agreement
with the 2nd defendant, paid the entire sale consideration to the 2 nd
defendant and possession of the property was handed over to her on the
date of execution of the sale agreement and hence plaint B schedule
property is not liable to be sold in execution of a decree obtained against
the 2nd defendant. It is also true that the above claim petition was
dismissed by the execution court and the appeal preferred by the
plaintiff challenging the same, is pending before this court. However,
since the present suit is for specific performance of Exhibit A1
agreement, such a relief could not have been granted by the execution
court in a claim petition filed under Section 47 of the CPC. Therefore,
the present suit filed for specific performance of Exhibit A1 agreement
for sale cannot be said to be hit by Section 47 of CPC.
13. Though in Exhibit A1, a consideration of Rs.4.5 lakhs is
mentioned, it is stated to be paid in the name of 1 st defendant, by way of
a cheque dated 21.9.1985, drawn on SBI, Mylapore branch Madras. The
plaintiff has no case that the 1 st defendant ever presented and encashed
the above cheque. On the other hand, during the cross examination of
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the plaintiff as PW1, she deposed that the cheque for Rs.4.5 Lakhs was
kept on the table and she does not even know as to who had taken it. At
the time of evidence also she has no case that the said cheque was
presented for collection and got encashed. According to defendants 5
and 6 this is a collusive suit between husband and wife to defraud the
creditors and no consideration passed from the plaintiff to 2 nd defendant.
Since as per Exhibit A1, the consideration was paid by way of cheque,
the plaintiff could have proved the passing of consideration easily by
producing the statement from the bank concerned. Failure of the plaintiff
to produce such a vital document available within her reach leads to the
presumption that no such consideration as mentioned in Exhibit A1, ever
passed from the plaintiff to the 1st defendant. The above crucial
circumstance casts serious doubt on the veracity of the plaintiff's case.
Out of the entire property, plaint B schedule was the personal property
of the 2nd defendant. In the above circumstance, the evidence of PW1
that the entire sale consideration of Rs.4,50,000/- was paid by cheque in
the name of the 1st defendant firm is also suspicious.
14. Even according to the plaintiff, she is settled in Madras and
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that is why Exhibit A1 was executed in Madras. Though in Exhibit A1,
it is stated that possession of scheduled property was handed over to the
plaintiff on the date of execution of Exhibit A1 itself, it appears that the
plaintiff has not taken possession of the scheduled property on
21.9.1985, as stated in Exhibit A1. She has no case that she had taken
possession of the scheduled property on any subsequent day. In this
context, it is also to be noted that the scheduled property is a vacant land
without any building therein. In this context, it is also to be noted that in
execution of the decree in OS. No.436/1986, the plaint B schedule
property was sold in favour of the 5 th defendant, delivery of the same
was also effected. Therefore, the claim of the plaintiff that in pursuance
to Exhibit A1 she obtained possession of the plaint schedule property on
21.9.1985, cannot be believed.
15. In the impugned judgment, the trial court specifically stated
that Exhibit A1 produced and marked before the trial court is only a
photocopy and its original was not produced. However, in the
memorandum of appeal, the appellant claimed that she has produced the
original of Exhibit A1 and it was missing from the trial court. From the
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trial court records, it is revealed that on 19.12.2005, the appellant filed
an affidavit stating that he had produced the original sale agreement
before the trial court on 13.12.1996 and that it was not received back.
16. In the B diary maintained by the trial court, it is stated that,
on 8.12.2005 the counsel for the plaintiff reported that the original
agreement was not seen in the case file, when he came to prepare the
chief affidavit. On 09.12.2005 the Trial Court recorded that "records
verified. Original is not seen produced". On 12.12.2005, the Trial Court
recorded that "for verification of the document to 13.12.2005". On
13.12.2005, the case was adjourned to 19.12.2005. On 19.12.2005 it is
recorded that "plaintiff filed affidavit stating that she had produced the
document with CF No.24018. Issue memo to the BC (Bench Clerk) asking
the explanation about the whereabouts of the document to 23.12.2005". On
23.12.2005 it is recorded that "address District Court about the missing of the
document alleged to have been produced to 4.1.2006". On 25.01.2006 it is
recorded that "District Judge has directed to proceed the trial with copy. For
evidence to 20.02.2006."
17. In the above circumstances, a report was called for from the
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trial court to ascertain whether the original of Exhibit A1 was produced
before that court and whether any further proceedings were initiated in
that respect? On 23.6.2025, it was reported by the trial court Judge that
from the documents available before the trial court, it is not clear
whether Exhibit A1 produced by the plaintiff is original or not. The
report further states that from the records available, the document
produced was only a copy. Missing of any such document was also not
seen reported to the High Court. In short, from the trial court records and
the report received from there, it is not clear whether the plaintiff
produced the original of Ext.A1 before the trial court or not.
18. From the copy of the agreement produced and marked as
Exhibit A1, it is revealed that the stamp paper worth Rs.3.5 used for
preparing the said document was purchased as early as on 9.4.1981 in
the name of the 1st defendant while Exhibit A1 was executed only on
21.9.1985, more than four years and five months after the date of
purchase of the stamp paper. It is interesting to note that during the
cross-examination of PW1, she claimed that the stamp paper was
purchased on the same day, in her own name. For the said inordinate
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delay in the date of purchase of the stamp paper and execution of the
agreement, no satisfactory explanation is forthcoming. The above
circumstances also probabilises the case of defendants 5 and 6 that
Exhibit A1 was a sham document. Moreover, stamp paper worth Rs.3.5
was insufficient for executing an agreement in 1985.
19. During the cross examination PW1 could not give the details
of the scheduled property and finally she was constrained to admit that
everything was done by her husband and that he alone knows the real
facts. The plaintiff also could not properly explain the inordinate delay
of about nine years in filing the suit for specific performance. As I have
already noted above, the plaintiff could not prove that she had paid any
amount to the 2nd defendant as consideration for Exhibit A1. She also
could not prove that she obtained possession of the scheduled property
on the date of execution of Exhibit A1, as claimed. The reason for
executing Exhibit in a stamp paper purchased on 9.4.1981 is also not
explained. The evidence of PW1 is not at all convincing and her
evidence only improbablises the case pleaded in the plaint. In the above
circumstances, the evidence of PW2 also does not help the plaintiff in
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any way.
20. In this case there is absolutely no evidence to prove that
Exhibit A1 is a valid and bona fide executed sale agreement. On an
overall appreciation of the entire evidence on record, the probability is
that it was executed in collusion with the 2nd defendant in anticipation of
the insolvency proceedings against the 2nd defendant. There is also no
pleading or evidence to prove that the plaintiff was ever ready and
willing to perform Exhibit A1. In the above circumstance, the trial court
was perfectly justified in dismissing the suit. I do not find any
irregularity or illegality in the impugned judgment and decree of the trial
court so as to call for any interference. Point answered accordingly.
21. In the result, this appeal is dismissed with costs of D5 and
D6.
All pending interlocutory applications shall stand dismissed.
Sd/-
C. PRATHEEP KUMAR,
JUDGE
sou.
