Kerala High Court
Dr. George Koshy vs N.A. Siyad on 4 June, 2025
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. KRISHNA KUMAR
WEDNESDAY, THE 4TH DAY OF JUNE 2025 / 14TH JYAISHTA, 1947
RFA NO. 476 OF 2016
AGAINST THE JUDGMENT DATED 29.02.2016 IN OS NO.309 OF 2012 OF
SUB COURT, ALAPPUZHA
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APPELLANT/DEFENDANT:
1 DR. GEORGE KOSHY
S/O. K.K.GEORGE, RESIDING AT JYOTHIS, KUNNUMPURAM,
KAYAMKULAM P.O., ALAPPUZHA DISTRICT-690 502. [DIED]
* ADDL. APPELLANTS 2 AND 3
ADDL. A2 GRACE PENTALIA JOSEPH,
W/O DR.GEORGE KOSHY, RESIDING AT KUNNUMPURATHU JYOTHIS,
K.P ROAD, KAYAMKULAM P.O., ALAPPUZHA DISTRICT,
PIN-690502.
ADDL. A3 VEDA SUSAN GEORGE KOSHY,
(MINOR) AGED 14 YEARS, D/O DR.GEORGE KOSHY, RESIDING AT
KUNNUMPURATHU JYOTHIS, K.P ROAD, KAYAMKULAM P.O.,
ALAPPUZHA DISTRICT, PIN-690502, REP. BY GUARDIAN MOTHER
GRACE PENTALIA JOSEPH.
*[LEGAL HEIRS OF THE DECEASED SOLE APPELLANT ARE IMPLEADED IN THE
PARTY ARRAY AS ADDL. APPELLANTS 2 AND 3 VIDE ORDER DATED
18.06.2018 IN IA 885/2018]
BY ADV SRI.ROY CHACKO
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RFA NO. 476 OF 2016 -2-
RESPONDENT/PLAINTIFF:
N.A. SIYAD,
S/O. N.A.ABDUL KHADER, RESIDING AT XIV/3B, 'SOJAS',
THOPPUMPADY, RAMESWARAM WEST,
ERNAKULAM DISTRICT-682 005.
BY ADVS.
SMT.NISHA GEORGE
SRI.GEORGE POONTHOTTAM (SR.)
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
04.06.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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SATHISH NINAN &
P. KRISHNA KUMAR, JJ.
= = = = = = = = = = = = = = = = = =
R.F.A. No.476 of 2016
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Dated this the 4th day of June, 2025
J U D G M E N T
Sathish Ninan, J.
The suit for specific performance of an agreement
for sale was decreed by the trial court. The defendant
is in appeal. He died pending the appeal, and his legal
heirs have been impleaded as additional appellants.
2. Ext.A1 is the agreement dated 28.03.2012, which
is sought to be specifically enforced. The agreement
relates to a total extent of 35.775 cents, comprised of
12.74 ares in Block number 3 in Re. Sy. No. 627/9 and
1.57 Ares in Block number 3 in Re. Sy. No.1/7, both of
Komalapuram Village. The properties lie together as a
single plot. As per Ext.A1, the sale consideration fixed
is ₹ 1.5 lakhs per cent. Ext.A1 recites that on the date
of its execution, an amount of ₹ 36 lakhs was paid as
advance sale consideration. The period fixed for
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performance was up to 30.06.2012. Alleging failure on
the part of the defendant to perform the agreement, the
suit was filed.
3. The defendant, though admitted the signature in
Ext.A1, denied the agreement. It was alleged that there
was a sale transaction in respect of a property situated
at Kannamaly, which belonged to the plaintiff, in favour
of the defendant's cousin brother Rohit (DW2), at the
intervention of the defendant. Though the sale deed was
executed, amounts remained outstanding thereunder to the
plaintiff. To secure such amounts, blank signed papers
of the defendant were handed over to the plaintiff. The
said papers were fabricated into Ext.A1 agreement.
Accordingly, he prayed for dismissal of the suit.
4. The trial court held Ext.A1 to be genuine, and
granted a decree for specific performance.
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5. We have heard Sri.Roy Chacko, the learned
counsel appearing on behalf of the appellants and the
learned Senior Counsel Sri.George Poonthottam, on behalf
of the respondents.
6. The points that arise for determination are:-
(i) Is Ext.A1 a genuine agreement for sale?
(ii) Is the plaintiff entitled to a decree for specific
performance?
(iii) Does the decree and judgment of the trial court warrant
any interference?
7. The defendant, though admitted his signatures on
Ext.A1, contended that blank signed papers entrusted to
the plaintiff in connection with another land deal for
his cousin brother Rohit (DW2) were fabricated into
Ext.A1 agreement. Though Ext.A1 agreement recited
payment of an amount of ₹ 36 lakhs towards advance sale
consideration on the date of Ext.A1 (28.03.2012), the
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defendant denied having received such amount. To prove
Ext.A1 agreement, the plaintiff got himself examined as
PW1. Though there are two witnesses to Ext.A1, the
plaintiff did not venture to examine either of them. He
did not make any attempt to prove the payment and even
the source of ₹ 36 lakhs allegedly paid on the date of
Ext.A1.
8. According to the defendant, the plaintiff owned
a property at Kannamaly. On the intervention of the
defendant, the property was agreed to be sold by the
plaintiff to the defendant's cousin brother Rohit, for a
total consideration of ₹ 75 lakhs. The said Rohit was
examined as DW2. According to the defendant and as
vouched by DW2, the sale deed was to reflect the
consideration as ₹ 40 lakhs only. The balance amount of
₹ 35 lakhs was to be paid by the defendant, since the
purchase was for a joint business venture of the
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defendant and DW2. The amount of ₹ 40 lakhs was paid by
DW2 through the IDBI bank, and the sale deed was
executed. The defendant was short of funds and wanted
time for payment of the ₹ 35 lakhs. As security for the
liability, signed blank papers and also the original
title deeds relating to the plaint schedule properties
were handed over to the plaintiff. DW2 was also required
to sign in one such paper. Such blank papers have been
fabricated into Ext.A1, and the suit has been filed is
the defendant's case.
9. The plaintiff, as PW1, admitted that there was a
sale in respect of his property at Kannamaly, in favour
of DW2. In cross-examination, he deposed:-
"കണ്ണമമാലലിയലിലല എലന്റെ property വലിൽക്കുന്നത
സസംബനലിചച്ച് രണ്ടു brokers മുഖഖേനയമാണച്ച് പ്രതലിലയ
പരലിചയലപ്പെടുന്നതച്ച്. ആ property ഞമാൻ പ്രതലിയുലട
cousin brother Rohit എന്നയമാൾകമാണച്ച് വലിറ്റതച്ച്."
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He also admitted that the sale was for an amount of₹ 75
lakhs;
"Rohit തലിനച്ച് 75,00,000/-ക കമാണച്ച് ആ വസ്തു വലിറ്റതച്ച്."
It is not in dispute that the sale deed had recited only
an amount of ₹ 40 lakhs as the consideration. The
plaintiff as PW1 claimed that ₹ 40 lakhs was paid
through IDBI bank and ₹ 35 lakhs was paid by cash. For
such cash payment, there is no evidence. As noted,
according to the defendant, it is towards security for
the payment of the said 35 lakhs that blank signed
papers and the original title deeds relating to the
plaint schedule property were entrusted to the
plaintiff.
10. The plaintiff, as PW1, admitted receipt of an
amount of ₹ 2.5 lakhs from the defendant's bank account.
It is relevant to note that the payment of ₹ 2.5 lakhs
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is after the execution of the sale deed relating to the
Kannamaly property. If the transaction relating to the
Kannamaly property was exclusively with DW2, there was
no reason why the defendant needed to pay any amount to
the plaintiff. The explanation attempted to be offered
by PW1 is that there were some "works" to be done in the
Kannamaly property, for which ₹ 2.5 lakhs was incurred
by him; it was such amount that was paid to him by the
defendant.
11. First of all, the plaintiff has not given any
details of the alleged "works". No material is produced
to show that he expended any amount at the Kannamaly
property after the property was sold to DW2. There is no
reason why, after sale, the plaintiff-vendor would/need
to do any further works in the property. Therefore, the
said explanation is far from satisfactory. The relevant
deposition reads thus:-
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"പ്രതലിയുലട account ൽ നലിനസം നലിങ്ങൾകച്ച് എഖപ്പെമാലഴെങലിലസം
പണസം അതലിനച്ച് ഖശേഷസം കലിടലിയലിട്ടുഖണമാ? ഉണച്ച്. Witness
explains:-കണ്ണമമാലലി property യുലട ഏതമാനസം work
എലന്ന ഏൽപ്പെലിചലിരുന. അതലിനച്ച് 2-2 ½ ലകസം രൂപ
ചലിലവമായലിരുന. ആ പണമമാണച്ച് transfer ലചയച്ച്
തന്നതച്ച്."
Incidentally it is also relevant to note that,
admittedly the sale of the Kannamaly property was
towards the end of March 2012; PW1 says "ആ document
നടതലിയതച്ച് 2012 March അവസമാനമമാണച്ച്". Ext.A1 sale
agreement is dated 28.03.2012, that is, almost at the
same time.
12. Coupled with the above is a vital admission by
the plaintiff in his plaint that the defendant owed him
a debt. In the plaint at paragraph 7, it is stated:-
"Surprisingly, instead of performing his part of agreement, he
came with invented baseless claim and sent a reply stuffing
distorted facts even clubbing his other liability towards the
plaintiff in order to escape from performing his part of agreement
in most brutal, dishonest deceitful manner."
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It does not end there. In the proof affidavit filed by
the plaintiff, the said statement in the plaint, which
refers to the liability, has been conspicuously
omitted.
"Surprisingly, instead of performing his part of agreement, he
came with invented baseless claim and sent a reply stuffing
distorted facts even ......(omitted)......in order to escape from
performing his part of agreement in most brutal, dishonest and
deceitful manner."
It is obvious that the plaintiff later realised the
folly of having made an admission in the plaint
regarding the liability of the defendant to him, and the
same was omitted in the proof affidavit. Here, it is
relevant to note that, even as admitted by PW1, his
acquaintance with the defendant is only in the course of
the sale of the Kannamaly property. Suffice it to notice
that the above indicates that though the sale relating
to the Kannamaly property was between the plaintiff and
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DW2, it is quite probable that the defendant was also
involved in the transaction and that some amounts were
payable by the defendant to the plaintiff under the said
transaction.
13. There is yet another circumstance suggesting
that the transaction was only to secure a debt due from
the defendant. Admittedly, the original title deeds
relating to the property covered under Ext.A1 were
handed over to the plaintiff by the defendant. According
to the plaintiff, the title deeds were handed over when
Ext.A1 agreement was executed. It is highly improbable
that while executing an agreement for sale, the original
title deeds relating to the property would be handed
over to the proposed purchaser. No special reason is
even suggested as to why the original title deeds were
handed over, when there was only a mere agreement for
sale. That itself would suggest that the transaction was
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not, as such, intended as an agreement for sale, but it
represented an arrangement to secure some financial
transaction between the parties. Such view was taken by
this Court in K.Bhaskaran Nair v. Habeeb Mohammed & Others (2002
(1) KLT 864) and Sarada v. Divakara Kurup (2012 (4) KHC 623).
14. The totality of the above discussions indicates
that the defence version that the arrangement was only
to secure the payment of the agreed balance
consideration of ₹ 35 lakhs in relation to the sale of
the Kannamaly property is probable.
15. Thus, we find that the plaintiff has failed to
prove that Ext.A1 is a genuine agreement for sale. The
evidence and circumstances indicate that the
transaction, even if Ext.A1 was executed by the
defendant, was only to secure a monetary liability due
from the defendant to the plaintiff with regard to the
sale of the Kannamaly property. Incidentally we also
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consider it appropriate to notice the plaint averment
that both the plaintiff and the defendant are engaged in
real estate business. At paragraph (1) of the plaint
referring to the avocation of the plaintiff and the
defendant, it is stated thus, "As part of his business, he develops
lands, engaged in real estate, and connected businesses. Though the defendant is
a doctor, he is also engaged in real estate business.". This further
fortifies the conclusion arrived at by us. The above
aspects have not been given due consideration by the
trial court. We find that a decree for specific
performance is not liable to be granted upon Ext.A1
agreement. The finding of the trial court to the
contrary is liable to be set aside, and we do so.
16. Even as admitted by the defendant, the amount
of ₹ 35 lakhs payable by him to the plaintiff remains
unpaid. Ext.A4 is the reply notice issued by the
defendant to the plaintiff. Therein it is stated: -
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"My client reiterates that the property of my client is worth crores
of rupees and my client have no intention to effect sale deed of the
said property and my client have only genuine and honest
intention to pay balance amount to your client in the matter of
sale of Kannamaly property and my client will be transferring the
entire amount shortly in favour of you client and allegations
contrary to the same contained in your notice are false and are
rather cooked up tales for which no reply is required at this stage."
The defendant paid an amount of ₹ 2.5 lakhs to the
plaintiff after the execution of the sale deed in
respect of the Kannamaly property. It is not in dispute
that expenses relating to the said transaction,
amounting to approximately ₹ 2 lakhs, were also agreed
to be paid by him.
17. During the course of the arguments, a query was
put to the learned counsel appearing for the defendant-
appellant, pointing out the liability and whether the
defendant is willing to pay the said amount to the
plaintiff, for which he readily agreed. The suit
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contains a prayer for money. A decree can be granted
even on the defence plea, if no prejudice is caused to
him.[See: Srinivas Ram Kumar v. Mahabir Prasad And Others (AIR 1951 SC
177), Padakalingam v. Yesudasan (1953 KLT 587), V. Kamalaksha Pai v.
Keshava Bhatta (AIR 1972 Ker. 110)]. The defendant having
admitted his liability of ₹ 35 lakhs, and the
willingness to pay it off having been conceded, we are
of the opinion that a decree can be granted in favour of
the plaintiff for realisation of the said ₹ 35 lakhs,
with interest. Since the defendant is no more, the
decree can be executed only against his assets which has
devolved on his legal heirs.
18. Considering the prevailing rate of interest in
banking transactions, grant of interest at the rate of
9% per annum from the date of suit till date of decree
and thereafter at the rate of 6% per annum will be just
and reasonable.
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Resultantly, the appeal is allowed. The decree and
judgment of the trial court will stand set aside. The
plaintiff is granted a decree for realisation of an
amount of ₹ 35 lakhs with interest at the rate of 9% per
annum from the date of suit till date of decree and
thereafter at the rate of 6% per annum till realisation,
from the assets of the original defendant which has
devolved on the additional appellants as his legal
heirs. The plaintiff shall be entitled for proportionate
costs throughout.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
kns/-
//True Copy//
P.S. To Judge
PETITIONER ANNEXURES
Annexure A1 THE PHOTO COPY OF THE AGREEMENT DATED
15.03.2012.
Annexure A2 TRUE PHOTO COPY OF THE SALE DEED DATED
07.04.2012 EXECUTED BY ORIGINAL PLAINTIFF AND
HIS WIFE IN FAVOUR OF DW2
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