Kerala High Court
Xavier @ Francis Xavier vs Manikuttan on 11 July, 2025
RFA. No.354/2015
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
FRIDAY, THE 11TH DAY OF JULY 2025 / 20TH ASHADHA, 1947
RFA NO. 354 OF 2015
AGAINST THE JUDGMENT AND DECREE DATED 25.03.2015 IN OS
NO.120 OF 2013 OF SUB COURT, KOCHI
APPELLANT/DEFENDANT:
XAVIER @ FRANCIS XAVIER
AGED 52 YEARS, S/O. ASHIKUTTY @ JOB,
CONTRACTOR, ETTEZHATHU HOUSE,
KUMBALANGHI P.O., KUMBALANGHI,
KOCHI TALUK, KOCHI - 682 007.
BY ADVS.
SRI.R.RAMADAS
SRI.T.SIVADASAN
RESPONDENT/PLAINTIFF:
MANIKUTTAN,
AGED 48 YEARS, S/O. DHARMAN,
BUSINESS, KURIANVEETIL HOUSE,
PALLURUTHY, KOCHI - 682 006.
BY ADVS.
SRI.C.S.YESUDAS
SHRI.DILEEP VARGHESE
SMT.TESMY VARGHEESE
THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION
ON 02.07.2025, THE COURT ON 11.07.2025 DELIVERED THE
FOLLOWING:
RFA. No.354/2015
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JUDGMENT
Dated this the 11th day of July, 2025
The defendant in O.S. No.120 of 2013 on the file of the Sub
Court, Kochi, is the appellant (for the purpose of convenience, the
parties are hereafter referred to as per their rank before the trial court.)
2. The plaintiff filed the suit for specific performance of an
agreement for sale. As per the plaint averments, on 11.3.2013, he
entered into an agreement for sale with the defendant and thereby the
defendant agreed to sell the scheduled property for a total consideration
of Rs.20 Lakhs. On the date of the agreement itself, a sum of Rs.10
Lakhs was paid and the period of the contract was fixed as three months.
At the instance of the defendant, the period of the contract was extended
by three months on 10.6.2013 and on that day, another Rs.3,00,000/-
was also paid to the defendant. According to the plaintiff, he was
always ready and willing to perform his part of the contract, but due to
the default of the defendant, the contract could not be performed.
Therefore, he filed the suit for specific performance with an alternate
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prayer for return of advance amount with 18% interest.
3. The defendant filed written statement contending that he has
not entered into any sale agreement with the plaintiff. According to him,
he borrowed a sum of Rs.1,00,000/- from the plaintiff initially and
thereafter another Rs.5,00,000/- was also received. He used to pay
interest to the plaintiff at the rate of Rs.48,000/- per month. The plaintiff
obtained two other agreements for sale in relation to the above loan
transaction other than the agreement for sale relied on in the suit. It was
contended that the sale agreement produced is a document concocted by
the plaintiff without the will and consent of the defendant. In the light
of the above contentions, the defendant prayed for dismissing the suit.
4. The trial court framed five issues. The evidence in the case
consists of the oral testimonies of PW1 to PW3 and DWs 1 to 3 and
Exhibits A1 to A7, C1 and C2. After evaluating the evidence on record,
the trial court denied the prayer for specific performance, but allowed
the alternate prayer and directed the defendant to pay a sum of
Rs.13,00,000/- along with interest @6% per annum. Being aggrieved by
the above judgment and decree of the trial court, the defendant preferred
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this appeal.
5. Now, the points that arise for consideration are the following:
1) Whether Exhibit A1 agreement was executed by the
defendant?
2) Whether the plaintiff has paid a total sum of
Rs.13,00,000/- to the defendant in pursuance to Exhibit
A1?
3) Whether the impugned judgment and decree of the trial
court calls for any interference, in the light of the grounds
raised in the appeal?
6. Heard Sri. R. Ramadas, the learned counsel for the
appellant/defendant and Sri.C.S. Yesudas, the learned counsel for the
respondent/plaintiff.
7. The points: According to the plaintiff, Exhibit A1 sale
agreement was entered into with the defendant, for the purchase of
plaint schedule property for a total consideration of Rs.20 Lakhs.
According to the plaintiff, on the date of the agreement on 11.3.2013, a
sum of Rs.10 Lakhs was paid as advance and on 10.6.2013, the period of
the agreement was extended by three months and on that day, a further
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sum of Rs.3,00,000/- was paid towards balance sale consideration.
8. On the other hand, according to the defendant, there was
only a loan transaction and he has not executed Exhibit A1 as an
agreement for sale. According to the defendant, at first, he borrowed a
sum of Rs.1,00,000/- and thereafter a sum of Rs.5,00,000/- was
borrowed and the total sum due to the plaintiff is only Rs.6,00,000/-.
9. The trial court found that the plaintiff was not ready with
the balance amount to get the sale deed executed. On the basis of the
evidence of the plaintiff himself the trial court came to the conclusion
that the plaintiff was a real estate broker engaged in real estate business
and that he entered into agreement with the defendant for selling the
property to prospective purchasers for profit. Since he could not find
prospective purchasers, he was satisfied with return of the amount paid
and it was in the above context, the trial court denied specific
performance and ordered to pay the advance amount of Rs.13,00,000/-.
10. The trial court found that the defendant had no consistent
defence. Exhibit A1 is seen executed in stamp paper worth Rs.100/-. It
contains five pages including one stamp paper and four foolscap sheets.
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On the reverse side of the stamp paper also there is an endorsement
extending the period of agreement by three months from 10.6.2013. All
the five pages of Exhibit A1 contain the signatures of the plaintiff and
the defendant. While the first four pages contain one signature each, the
5th page and the rear side of the stamp paper contain two signatures each.
The defendant admits all those signatures in Exhibit A1.
11. The learned counsel for the appellant would argue that
admission of the signatures in Exhibit A1 does not amounts to admission
of its contents as well as admission of receipt of Rs.13,00,000/-. In
support of the argument that admission of signature in a stamp paper is
not admission of execution of documents, the learned counsel for the
appellant has relied upon the decision of this court in Choovatta
Vadakkekara Kunhi Veettil Janardhanan v. Mottukkande
Karunakaran [2011 (3) KHC 710], Santha v. Rajappan Pillai [1986
KHC 320], Seithammarakkath Mammad v. Koyommatath Mammad
[1957 KHC 65]. He would argue that in connection with the loan
transaction, signatures of the defendant was obtained by the plaintiff in
blank papers and then blank papers were misused for forging a sale
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agreement.
12. However, during the cross examination of the defendant as
DW1, he admitted that he was engaged in construction work and he
never used to sign any document without reading its contents. He would
swear that he affixed in the document, in which the matter was written in
Malayalam. Further according to him, he affixed his signature without
reading and understanding the contents of the document. PW2 and 3 are
the attestors to Exhibit A1. He also admitted the signatures in Exhibit
A1. It is true that PWs 2 and 3 have not seen the payment of the second
instalment of Rs.3,00,000/-, as it is revealed that at the time of the said
payment, they went out of the room. However, from the evidence of
PW1 itself it is revealed that he affixed his signatures not in blank
papers but in a document prepared in Malayalam. Ext. A1 is prepared in
Malayalam. On the reverse side of the stamp paper, there is an
endorsement stating that on 10.6.2013, a further sum of Rs.3,00,000/-
was received in addition to Rs.10 Lakh already received and the period
of the agreement is extended by three months from 10.6.2013. In the
above context, the averment in the written statement that the plaintiff
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has obtained two other agreement for sale in relation to the loan
transaction between the plaintiff and the defendant other than the
agreement for sale relied on in this suit assumes significance, as noted
by the trial court.
13. It is true that during the cross examination of the plaintiff as
PW1, he deposed that he was engaged in real estate business and about
60 sale agreements were executed at his instance. The above answer
given by the plaintiff was also highlighted by the learned counsel for
the defendant to disbelieve the case of the plaintiff. However, during the
re-examination he clarified that all those agreements were not executed
by himself but executed by him as a real estate broker. Therefore, for the
reason that the plaintiff is a real estate broker engaged in several similar
agreements, no adverse inference can be drawn against him.
14. Similarly, during the cross examination of PW1, he deposed
that for advancing the first instalment of Rs.10 Lakhs, Rs.6,00,000/- was
received by him by his brother-in-law Rajesh and that Rs.4,00,000/- was
there in his possession. However, when he was asked as to how he
arranged Rs.3,00,000/- involved in the second payment, he deposed that
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he could not recollect it. The above answer given by PW1 was relied
upon by the learned counsel for the appellant to disbelieve his testimony.
Relying upon the decision of this Court in Chanduveettil Sakkeer
Hussain v. Ayisha Beevi [2025 KHC 520], the learned counsel would
argue that, absence of proof of evidence regarding the source of the
amount paid to the defendant is to be taken as a ground to disbelieve the
plaintiff's case.
15. Even from the evidence of PW1, it is revealed that he was a
real estate broker involved in about 60 such transactions. In the above
circumstance, for the mere reason that he could not recollect as to how
he arranged Rs.3,00,000/- for paying the second instalment, his evidence
could not be disbelieved. It was further argued that, if the plaintiff has
actually paid Rs.13,00,000/- he would definitely have insisted for
specific performance and that the inability to pay the balance amount
probabilises the case of the defendant that it is only a loan transaction.
Even according to the plaintiff, he is a real estate broker and his idea
was to find out prospective purchaser and to sell the property on profit.
His version that he could not find prospective purchasers and that is why
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he could not arrange the balance amount cannot be disbelieved.
Therefore, on that ground also no inference could be drawn against the
plaintiff.
16. Exhibit A7 is the copy of the complaint given by the
defendant to the Circle Inspector of Police, Palluruthi, in which he stated
that he borrowed a sum of Rs.6,00,000/- from the defendant and the
plaintiff obtained a sale agreement in respect of the plaint schedule
property from him. In the said complaint, he stated that at first, he
borrowed Rs.6,00,000/- from the defendant and the plaintiff obtained a
sale agreement in respect of the plaint schedule property from him. In
the said complaint, he stated that at first he borrowed Rs.6,00,000/- from
the defendant and when he defaulted payment of interest, the plaintiff
obtained an acknowledgment signed by him to the effect that he paid
another Rs.7,00,000/- to the defendant. However, as per Exhibit A1, the
amount paid on the date of Exhibit A1 was Rs.10 Lakh and subsequently
payment was only Rs.3,00,000/- and not as stated in Exhibit A7. In
Exhibit A2 also he admits about execution of the sale agreement and the
subsequent endorsement thereon. From the contention taken in the
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written statement as well as from Exhibit A7 itself, it can be seen that
Ext. A1 was not forged in blank signed papers obtained by the plaintiff,
but the defendant affixed in those documents after it was prepared.
17. The defendant has no case that he happened to execute the
sale agreement as well as the endorsement thereon in any vitiating
circumstances. During the cross examination, DW1 further admits that
in addition to Rs.6,00,000/- received in two instalments, some other
small amounts were also received from the plaintiff. He has not
disclosed the details of those amounts borrowed from the plaintiff.
Though the defendant claims that he had paid interest at the rate of
Rs.48,000/- per month to the plaintiff, he could not produce any
documents to prove the same. Since from the evidence of PWs1 to 3,
execution of Exhibit A1 is proved and the defendant could not prove that
it is only a loan transaction as claimed, it is to be treated as a genuine
agreement for sale executed by the plaintiff and the defendant as per the
terms and conditions stated therein. From the contents of Exhibit A1, it
can be seen that on 10.3.2013, the defendant received Rs.10 lakhs and
thereafter on 10.6.2013, he received another Rs.3,00,000/- extending
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the period of agreement. In the above circumstances, the judgment and
decree of the trial court, directing the defendant to repay the advance
amount of Rs.13,00,000/- along with interest at the rate of 6% per
annum, does not call for any interference.
18. In the result, this appeal is dismissed. Considering the fact
that the agreement could not be performed due to the default of the
plaintiff, I direct both parties to bear their respective costs.
All pending interlocutory applications shall stand closed.
Sd/-
C. PRATHEEP KUMAR,
JUDGE
sou.
