Kerala High Court
Jhoni James vs Abhilash G. Asad on 27 June, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
RFA No.151 of 2024
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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
FRIDAY, THE 27TH DAY OF JUNE 2025 / 6TH ASHADHA, 1947
RFA NO. 151 OF 2024
AGAINST THE JUDGMENT DATED 25.01.2024 IN OS NO.73 OF 2019
OF THE SUB COURT, OTTAPPALAM
APPELLANT(S)/DEFENDANT:
JHONI JAMES
AGED 55 YEARS
S/O. THEKKEDATH LATE. CHACKO,
THEKKEDATH HOUSE, PULAPPATTA AMSOM,
UMMANAZHI DESOM, OTTAPALAM TALUK,
PALAKKAD, PIN - 679101
BY ADVS.
SRI.M.P.MADHAVANKUTTY
SRI.MATHEW DEVASSI
SRI.ANANTHAKRISHNAN A. KARTHA
RESPONDENT(S)/PLAINTIFF:
ABHILASH G. ASAD
AGED 39 YEARS
RESIDING AT ASAD BHAVAN,
S/O ASAD BHAVANIL T.D. GEORGE,
KANJIRAPUZHA POST,
POTTASSERI VILLAGE,
MANNARKKAD TALUK,
PIN - 678582
RFA No.151 of 2024
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BY ADVS.
SHRI.SUNIL CYRIAC
SMT.DONA AUGUSTINE
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
20.06.2025, THE COURT ON 27.06.2025 DELIVERED THE FOLLOWING:
RFA No.151 of 2024
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SATHISH NINAN & P. KRISHNA KUMAR, JJ.
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R.F.A.No.151 of 2024
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Dated this the 27th day of June, 2025
JUDGMENT
P.Krishna Kumar, J.
The defendant in a suit for specific performance of a
contract for the sale of immovable property is the
appellant. By the impugned judgment, the suit was decreed,
directing the appellant to execute the sale deed upon
depositing the balance sale consideration.
2. The respondent stated that the parties had entered
into an agreement for sale dated 30.03.2019 in respect of
94.25 cents of land for a consideration of ₹43,000/- per
cent. On the date of execution of the agreement, the
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respondent paid an advance amount of ₹1,00,000/-.
Subsequently, he made further payments of ₹9,00,000/- on
07.05.2019, ₹4,00,000/- on 17.07.2019, and ₹25,000/- on
24.07.2019, thereby remitted a total sum of ₹14,25,000/-
towards the purchase price. These subsequent transactions
were duly endorsed on the reverse side of the sale
agreement. The agreement stipulated a period of six months
for the execution of the sale deed. However, the appellant
failed to execute the sale deed despite the respondent's
consistent readiness and willingness to pay the balance
consideration within the stipulated time, which compelled
the respondent to initiate the present suit, it is alleged.
3. The appellant denied the execution of any written
agreement for sale or the receipt of advance consideration
thereunder. According to him, the parties had entered into
an oral agreement for the sale of the property at the rate
of ₹60,000/- per cent. Pursuant thereto, the appellant
handed over to the respondent copies of the title deed, tax
receipts, and other relevant documents. The property, he
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contends, was also measured in the presence of both
parties. The appellant admitted to having received
₹4,00,000/- from the respondent by way of cheque, but
asserted that the said amount was solely for redeeming the
property from a mortgage with the bank. He further alleged
that at the time of remitting the said amount, the
respondent procured from him signed blank stamp papers and
other papers, and later fraudulently fabricated the
purported agreement for sale using those materials.
4. We have heard the learned counsel appearing for the
appellant and the respondent.
5. Sri M.P. Madhavankutty, the learned counsel
appearing for the appellant, contended that, apart from the
bare averment in the plaint that the respondent demanded
execution of the sale deed on 25.09.2019, there is no
material on record to substantiate such a demand. It was
pointed out that the respondent did not issue any notice to
the appellant asserting his readiness and willingness to
perform his part of the alleged agreement. The learned
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counsel further submitted that, notwithstanding the recent
amendments to the Specific Relief Act, 1963 (hereinafter,
"the Act"), Section 16(c) continues to mandate that a
plaintiff in a suit for specific performance must prove his
readiness and willingness to perform the essential terms of
the contract, but, in the present case, there is no
evidence to establish that the respondent possessed the
requisite balance sale consideration during the subsistence
of the contractual period. The learned counsel placed
reliance on the decision in Ritu Saxena v. J.S. Grover &
Another [(2019) KHC 6931] to contend that the plaintiff must
adduce convincing and credible evidence to establish his
readiness and willingness to perform the contract.
6. It was also argued that, in view of Section 269ST
of the Income Tax Act, 1961, which prohibits receipt of
amounts exceeding ₹2,00,000/- otherwise than through
banking channels, the alleged cash payments totalling
₹10.25 lakhs ought not to have been accepted by the trial
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court as valid proof of part payment. Further, referring to
Rule 18 of the Kerala Document Writers' Licence Rules,
1960, it was contended that the document writer who
purportedly prepared the agreement and made the
endorsements on Ext.A1 failed to comply with the procedural
prescription of the said Rule--namely, that he should have
signed beneath the writings, indicating his name and other
details. Hence, the agreement -- or at the very least, the
endorsements recording receipt of part sale consideration --
cannot be relied upon, it is argued.
7. Sri Sunil Cyriac, the learned counsel appearing for
the respondent, contended that the appellant did not even
specifically deny the respondent's pleadings regarding his
readiness and willingness to pay the balance sale price. In
that view of the matter, the respondent produced only those
bank statements that were relevant to the disputed aspects
of the case, but the respondent had enough funds in his
various other accounts, it is argued. It was further
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submitted that, during cross-examination, the appellant
(DW1) expressly admitted that the respondent is a wealthy
and influential businessman, which evidently signifies his
adequate financial capacity. The respondent deposited the
balance sale consideration before the trial court on
20.02.2024 -- i.e., within one month of the decree -- which
also reinforces his capacity and bona fides. With respect
to the stamp papers on which the agreement was executed, it
was highlighted that they bore a date three months prior to
the date of the admitted transaction of Rs.4 lakhs -- the
time at which blank stamp papers were allegedly obtained.
The appellant, however, has offered no plausible
explanation as to how such signed stamp papers came to be
in existence. The learned counsel placed reliance on
Narayanan v. Sajeev Antony [2025 KHC OnLine 10359] and
Daivasigamani P. v. S. Sambandan [2022 KHC 7078] to contend
that compliance with the requirement of "readiness and
willingness" has to be in spirit and substance, and not
letter and form.
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8. We have carefully examined the oral and documentary
evidence available on record. Although the appellant has
alleged that Ext.A1 is a fabricated document created by the
respondent using blank signed stamp papers obtained from
him, the evidence adduced clearly points to the contrary.
On the respondent's side, in addition to examining himself
as PW1, two attesting witnesses to the agreement, as well
as the document writer who allegedly prepared the agreement
and made the endorsements, were examined before the court.
All of them were subjected to thorough cross-examination,
yet their testimony as given in the chief examination
remained unshaken and consistent.
9. It is also significant that the appellant has not
denied the transaction in its entirety. He has admitted the
existence of an oral agreement for the sale of the very
same property and acknowledged that the land was admeasured
in the presence of the respondent. During cross-
examination, the appellant (DW1) further conceded that he
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had seen the written agreement for sale prepared by the
respondent, wherein the price was fixed at ₹43,000/- per
cent. He also admitted that he received ₹4,00,000/- from
the respondent for the purpose of releasing the title deed
from the bank. All these circumstances, when cumulatively
considered in conjunction with the evidence of PWs 1 to 4,
render the respondent's version not only plausible but
prima facie highly probable.
10. Let us now examine the contentions advanced by
Sri. M.P. Madhavankutty. At the outset, we find no merit in
the argument that the testimony of PW4, the document
writer, is unworthy of credence merely because he did not
inscribe his name beneath the endorsements made on the
reverse side of the agreement or beneath the agreement. A
perusal of the definition clauses under the Kerala Document
Writers' Licence Rules, 1960, especially the term "Document
Writer", indicates that the procedural requirements under
Rule 18 are intended primarily for documents presented for
registration. PW4, during cross-examination, explained
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consistent with that effect. In any event, the omission to
sign or state his name beneath the endorsements or the
agreement, by itself, does not render either his testimony
or the endorsements/agreement untrustworthy or
insignificant, particularly when there is no dispute that
the writings were, in fact, made by him .
11. The next contention is that the respondent failed
to prove that he was ready and willing to pay the balance
sale consideration within the period fixed in the
agreement. It is true that Section 16(c) of the Act, read
with the explanation provided thereunder, mandates that the
plaintiff must prove readiness and willingness to perform
the contract according to its true construction. Following
the 2018 amendment to the Act, the plaintiff is now
relieved of the burden to aver that he has always been ready
and willing to perform the essential terms of the contract
required to be performed by him. Nevertheless, Section
16(c) still requires the plaintiff to prove such readiness
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and willingness. Thus, even after the 2018 amendment to
section 20 of the Act, which took away the discretion
previously given to the courts in granting specific
performance of the contract, Section 16(c) still empowers
the courts to deny the relief of specific performance when
the plaintiff fails to prove his readiness and willingness
to perform the essential terms of the contract.
12. The mode of proving 'readiness and willingness' is
not addressed in the Act itself, but is governed by the
Indian Evidence Act. As per Section 58 of the Evidence Act,
no fact needs to be proved in any proceeding if, by any
rule of pleading in force, it is deemed to have been
admitted. Under Rule 5 of Order VIII of the Code of Civil
Procedure, every allegation of fact made in the plaint, if
not denied specifically or by necessary implication, shall
be deemed to be admitted. In the present case, the
respondent has specifically pleaded in paragraph 5 of the
plaint that he was always ready and willing to pay the
balance sale consideration. This statement remains
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unchallenged in the written statement. Therefore, by
reading Section 58 of the Indian Evidence Act together with
Rule 5 of Order VIII Code of Civil Procedure, it must be
held that the requirement under the provisions of Section
16(c) of the Act stands satisfied since the allegation
regarding readiness and willingness in the plaint is not
specifically denied in the written statement.
13. Although it was vehemently contended that the
respondent did not produce any bank statement to prove his
capacity to pay the entire balance sale consideration
within the stipulated time, the appellant, when examined as
DW1, admitted in cross-examination that he is a big
businessman owning four medical stores and three or four
godowns. In this circumstance, there is no reason to
disbelieve the version of PW1 (the respondent) regarding
his capacity to pay the balance sale consideration. The
fact that Exts. A3 to A5 do not show sufficient funds in
the respondent's account is, therefore, of no relevance. It
is also important to note the purpose for which those
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documents were produced -- merely to show withdrawals on the
dates corresponding to the payment of part of the advance
sale consideration.
14. We also find no merit in the contention raised
based on Section 269ST of the Income Tax Act. The
consequence of non-compliance with the said provision does
not vitiate the transaction in a suit for specific
performance, though it may invite penal actions under the
said Act.
15. Though the appellant asserted that the market rate
of the land was ₹60,000/- per cent, no credible evidence
was produced to support this. In contrast, the rate
mentioned in Ext.A1 is ₹43,000/- per cent, which the
respondent has already deposited before the trial court. As
discussed, the oral and documentary evidence, particularly
the consistent testimonies of PWs 1 to 4 and the
surrounding circumstances, establish the genuineness of the
sale agreement and payment of the advance. Upon
comprehensive evaluation of the evidence on record, we find
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no reason to interfere with the well-reasoned findings of
the trial court.
Resultantly, the appeal fails and is accordingly
dismissed. No order as to costs.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
sv
