Kerala High Court
M.S.Suresh Kumar vs G.Satheesh Kumar on 25 March, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:25083
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
TUESDAY, THE 25TH DAY OF MARCH 2025 / 4TH CHAITHRA, 1947
RFA NO. 325 OF 2022
AGAINST THE JUDGMENT DATED 23.03.2022 IN OS NO.514 OF 2012 OF
II ADDITIONAL SUB COURT, THIRUVANANTHAPURAM
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APPELLANT/DEFENDANT:
M.S.SURESH KUMAR,
AGED 62 YEARS,
S/O. MADHAVAN NAIR, T.C. NO.7/919(2), MUDAVARAM MURI,
SASTHAMANGALAM P.O. THIRUVANANTHAPURAM-695010.
BY ADV R.S.KALKURA
RESPONDENT/PLAINTIFF:
G.SATHEESH KUMAR,
AGED 42 YEARS,
S/O. GOPALAKRISHNAN NAIR, RESIDING AT SURESH BHAVAN,
TC NO. 9/1939 SASTHAMANGALAM P.O.,
THIRUVANANTHAPURAM- 695010.
BY ADVS.
G.P.SHINOD
GOVIND PADMANAABHAN
AJIT G ANJARLEKAR
ATUL MATHEWS
GAYATHRI S.B.
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
25.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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SATHISH NINAN &
SHOBA ANNAMMA EAPEN, JJ.
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R.F.A. No.325 of 2022
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Dated this the 25th day of March, 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.
2. The property involved is 7.500 cents which as
per revenue records is 6.500 cents with a building
thereon. According to the plaintiff, as per Ext.A1
agreement dated 18.04.2011, the defendant agreed to sell
the property to the plaintiff for a total sale
consideration of ₹ 85 lakhs. The period fixed for
performance was up to 31.08.2011. On the date of Ext.A1
an amount of ₹ 35 lakhs was paid towards advance sale
consideration. Thereafter on 23.04.2011, a further
amount of ₹ 4 lakhs was paid towards advance, which was
endorsed on Ext.A1 agreement. Since the property
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involved is a residential property and the defendant
sought time to vacate the same, the period for
performance was extended up to 26.03.2012. This was
followed by payment of ₹ 36 lakhs on 10.10.2011 which
was also endorsed on Ext.A1 agreement. Since the
defendant failed to perform the agreement, the suit was
filed after issuing Ext.A2 notice calling upon the
defendant to perform the same. The plaint also contains
an alternate relief for return of the advance.
3. While the defendant does not dispute the
execution of Ext.A1 agreement, he has an entirely
different story. According to him, the plaintiff's
father is a money lender. Since 20.10.2010, he had money
transactions with the plaintiff's father. On 20.10.2010
an amount of ₹ 2.5 lakhs was borrowed from him, on which
date, as was required by him, a document styled as an
agreement for sale in respect of the property was
executed in favour of the plaintiff. Ext.B1 is claimed
to be a photostat copy of the said agreement. This was
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followed by the borrowal of further amount of ₹ 4.5
lakh. On 18.04.2011 when an amount of ₹ 25 lakhs was
borrowed, as was required by the plaintiff's father,
Ext.A1 agreement was executed. This was followed by
borrowal of ₹ 4 lakhs on 23.04.2011. Thereafter, on
10.10.2011, he acknowledged the receipt of a total
borrowed amount of ₹ 36 lakhs which was endorsed on
Ext.A1 agreement. The defendant claims that Ext.A1
agreement was executed under the circumstances as above,
and that it was not intended as an agreement for sale
between the plaintiff and the defendant. It was further
alleged that the plaintiff was not ready and willing to
perform the agreement.
4. The trial court, after referring to the rival
contentions, the evidence of the plaintiff as PW1 and
that of the defendant as DW1, upheld Ext.A1 agreement,
found the readiness and willingness of the plaintiff,
and granted a decree for specific performance.
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5. We have heard the learned counsel on either
side.
6. The points that arise for determination are :-
(i) Is the finding of the trial court with regard to the genuineness
of Ext.A1 agreement, supported by the materials on record ?
(ii) Does the finding of the trial court with regard to the readiness
and willingness of the plaintiff warrant any interference ?
(iii) Is the plaintiff entitled for the discretionary relief of specific
performance of Ext.A1 agreement ?
(iv) Does the decree and judgment of the trial court warrant any
interference ?
7. The execution of Ext.A1 agreement is not
disputed. The contention is that, it was executed in
connection with the money transaction which the
defendant had with the plaintiff's father. As DW1 he has
admitted the recital in Ext.A1 with regard to the
receipt of ₹ 35 lakhs on the date of agreement. As DW1
he has also admitted that within five days thereafter
ie. on 23.04.2011, he has purchased another item of
property for a sale consideration of ₹ 24,03,000/-. DW1
also admits the receipt of ₹ 4 lakhs on 23.04.2011 and
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of the endorsement on Ext.A1. He admits that the receipt
of such amount was from the plaintiff. The relevant
deposition reads thus :-
"23/04/2011-ൽ ആണണ് ഞഞാൻ വഞാദദിയദിൽ നദിനന 4 ലകന രൂപ
വഞാങദി A1 agreement നണ് പുറതണ് എഴുതദി ഒപദിട്ടതണ്."
The defendant admits receipt of a further amount of ₹ 36
lakhs thereafter and that too from the plaintiff. In the
written statement at paragraph 8 he admits that the
endorsement made on Ext.A1 with regard to the receipt of
₹ 36 lakhs was made in his own handwriting. Though he
would contend that the acknowledgment was regarding the
total amount borrowed till then as ₹ 36 lakhs, evidently
such contention is not correct. The endorsement reads
thus :-
"ഇനന്നേ ദദിവസന ടദി സതതീഷണ് കുമഞാറദിനന്റെ കയദിൽ നദിനന
36,00,000/-(മുപതദിആറണ് )ലകന കകപറദിയദിരദിക്കുന."
The recitals is unambiguous with regard to the receipt
of ₹ 36 lakhs on that date. Further, the defendant as
DW1 submitted that under Ext.A1 agreement a total amount
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of ₹ 75 lakhs was received from the plaintiff. The
deposition reads thus :-
"Ext.A1 കരഞാർ പ്രകഞാരന ഞഞാൻ വഞാദദിയദിൽ നദിനന നമഞാതന
75 ലകന രൂപ കകപറദി Ext.A1 ഒപദിട്ടു നൽകദി എന
പറഞഞാൽ ശരദിയഞാണണ്."
From the above it is evident that the defendant has
admitted receipt of amounts from the plaintiff, the
genuineness of Ext.A1, and the endorsements thereon, and
also the receipt of a total amount of ₹ 75 lakhs
thereunder. Therefore, the defence contention regarding
the monetary transactions with the plaintiff's father
and the execution of Ext.A1 in connection with the same,
falls.
8. Here it is to be noticed that, to substantiate
the defendant's contention that there were transactions
between the defendant and the plaintiff's father, he
produced Ext.B1 photostat copy of an agreement. The
genuineness of Ext.B1 is disputed by the plaintiff. As
noticed, Ext.B1 is only a photostat copy. None of the
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grounds for admission of the secondary evidence was made
out. Ext.B1 is executed by the defendant alone. It is
stated to be an agreement for sale in favour of the
plaintiff herein. The plaintiff is not a signatory to
Ext.B1. Ext.B1 is dated 20.10.2010. One of the witnesses
to Ext.B1 is mentioned as the plaintiff's father.
However, his signature as seen in Ext.A1, when compared
with that seen in Ext.B1, cast doubt on its genuineness.
None of the witnesses to Ext.B1 are examined. At any
rate, the plaintiff is not a signatory to Ext.B1. The
execution of Ext.B1 in favour of the plaintiff and the
receipt of amounts thereunder, having been admitted by
the defendant, as was noticed supra, the case set up on
Ext.B1 is liable to be rejected.
9. The learned counsel appearing for the appellant
would contend that the plaintiff has failed to prove his
readiness and willingness, including his financial
capacity to proceed with Ext.A1 agreement. Within the
originally stipulated period the plaintiff has failed to
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pay the balance sale consideration. The alleged
extension of period for specific performance is not
endorsed on Ext.A1. The plaintiff, as PW1, admitted that
he has received funds by sale of property and ornaments
of his wife. Hence it is evident that he do not have the
financial capacity to go ahead with the transaction, it
is contended.
10. We are afraid that none of the contentions
urged by the appellant has any force. Out of the total
sale consideration of ₹ 85 lakhs, the defendant had
admittedly received an amount of ₹ 75 lakhs. The
extension of period though not endorsed on Ext.A1, after
the original period fixed the defendant has admittedly
received an amount of ₹ 36 lakhs from the plaintiff,
thus indicating that the parties agreed for extension of
period. With regard to extension of period, it is the
case of the plaintiff that such extension was on the
request of the defendant to enable him to shift his
residence. On the totality of the circumstances involved
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in the case, it can only be found that such suggestion
is probable.
11. As noticed, out of the total sale consideration
of ₹ 85 lakhs, ₹ 75 lakhs has already been paid. It is
the plaintiff's case that he had raised the sale
consideration by sale of his property and ornaments of
his wife. The balance consideration payable was only
meagre, when compared to the total sale consideration.
Pertinently, while PW1 is cross-examined, his financial
capacity to pay the balance sale consideration is not
challenged.
12. The defendant has not issued any reply to
Ext.A2 suit notice. He would deny receipt of the same.
However, Ext.A2 notice and Ext.A2(a) postal receipt
evidence that it was sent by registered post in the same
address as given in the plaint and in the written
statement. The contention of the defendant with regard
to non-receipt of notice cannot, under the
circumstances, be accepted.
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13. Thus on the totality of the evidence it can
only be held that Ext.A1 is a genuine agreement for sale
entered into between the parties, that the plaintiff had
been ready and willing to perform the agreement and that
the breach occurred on the part of the defendant.
14. Now coming to the exercise of discretion under
Section 20 of the Specific Relief Act whether to grant a
decree for specific performance, no circumstances dis-
entitling the plaintiff for exercise of discretion in
his favour has been pointed out. Almost 90% of the sale
consideration was paid by the plaintiff. The defendant
purchased another property apparently utilising the
amounts received from the plaintiff. While appreciating
the conduct of the defendant, evidently he has set up a
false story before the Court. The document produced by
him as Ext.B1, does not appear to be a true and genuine
document. It can only be observed that the conduct of
the defendant is unsatisfactory. We do not find any
reason to exercise discretion to refuse a decree for
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specific performance. The Apex Court has in Zarina Siddiqui v.
A. Ramalingam [(2015) 1 SCC 705] held that the conduct of the
defendant is also relevant while exercising discretion
under Section 20 of the Specific Relief Act :-
"Such conduct of the defendants in our opinion, disentitles them to ask
the court for exercising discretion in their favour by refusing to grant a
decree for specific performance. Further, if a party to a lis does not
disclose all material facts truly and fairly but states them in distorted
manner and misleads the court, the court has inherent power to exercise
its discretionary jurisdiction in order to prevent abuse of process of law."
It was further held :-
"33. The equitable discretion to grant or not to grant a relief for specific
performance also depends upon the conduct of the parties. The necessary
ingredient has to be proved and established by the plaintiff so that
discretion would be exercised judiciously in favour of the plaintiff. At the
same time, if the defendant does not come with clean hands and
suppresses material facts and evidence and misleads the court then such
discretion should not be exercised by refusing to grant specific
performance."
The trial court has rightly exercised discretion in
favour of the plaintiff and granted a decree for
specific performance. We do not find any reason to
interfere with the same.
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Resultantly, the appeal fails and is dismissed.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
SHOBA ANNAMMA EAPEN
JUDGE
kns/-
//True Copy//
P.S. To Judge
