Kerala High Court
Muhammedkutty M.C vs Sebastian Devassia on 6 October, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:73138
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
MONDAY, THE 6TH DAY OF OCTOBER 2025 / 14TH ASWINA, 1947
RFA NO. 345 OF 2017
AGAINST THE JUDGMENT AND DECREE DATED 24.11.2016 IN OS NO.15
OF 2015 OF SUB COURT, SULTHANBATHERY
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APPELLANT/PLAINTIFF:
MUHAMMEDKUTTY M.C., AGED 54, S/O LATE PAREEKUTTY,
MANNENKAL CHERIKKALLIMEL HOUSE, VILAYOOR WEST PO,
VILAYOOR VILLAGE, PATTAMBI TALUK, PALAKKAD DISTRICT.
BY ADV SHRI.G.SREEKUMAR (CHELUR)
RESPONDENT/DEFENDANT:
SEBASTIAN DEVASSIA, AGED 42, S/O DEVASSIA, KAITHAKKAL
VEEDU, VIMALA NAGAR P.O., THAVINJAL VILLAGE,
MANANTHAVADY TALUK-670645.
BY ADVS.
SRI.R.LAKSHMI NARAYAN (SR.)
SMT.R.RANJANIE
SRI.S.RENJITH
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
06.10.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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SATHISH NINAN &
P. KRISHNA KUMAR, JJ.
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R.F.A. No.345 of 2017
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Dated this the 6th day of October, 2025
J U D G M E N T
Sathish Ninan, J.
The suit for return of advance sale consideration, was
dismissed by the trial court. The plaintiff is in appeal.
2. Ext.A1 is the agreement dated 26.08.2014, upon which the
suit is founded. As per Ext.A1, two items of properties having an
extent of 68 cents and 25 cents were agreed to be conveyed by the
defendants to the plaintiff for a consideration of ₹ 1 lakh per
cent. Ext.A1 recites the payment of an amount of ₹ 80 lakhs as
advance sale consideration. The period of performance is up to
25.05.2015. Simultaneous to Ext.A1 agreement the defendant has
also executed Ext.A2 acknowledging the payment of ₹ 80 lakhs by
the plaintiff as advance consideration. It is alleged that though
the plaintiff was ready and willing to the sale deed executed,
the defendant failed to perform his obligations under the
agreement. The plaintiff also learnt that the residential house
which is situated in the property has been leased out by the
defendant. Accordingly he sought for return of the advance sale
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consideration and also damages.
3. The defendant denied Exts.A1 and A2. According to him, in
February 2014, when both the plaintiff and the defendant were
abroad in the Gulf country, the defendant had borrowed ₹ 4 lakhs,
undertaking that the amount will be repaid in the beginning of
March 2014. However, the defendant had to return to the native
place due to household requirements and he could not repay the
amount. While he was thus in the native place, as was required by
the plaintiff, the defendant, through the plaintiff's lawyer, had
affixed his signatures on two blank stamp papers and also two
blank papers. The same have been fabricated into Exts.A1 and A2,
it was alleged. The plaint claim was denied and the defendant
prayed for dismissal of the suit.
4. The trial court held that the plaintiff has failed to
prove the transaction under Exts.A1 and A2, and accordingly
dismissed the suit.
5. We have heard Sri.G.Sreekumar Chelur, learned counsel for
the appellant-plaintiff and Sri.R.Lakshmi Narayan, learned Senior
counsel on behalf of the respondent-defendant.
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6. The points that arise for determination in this appeal
are:-
(i) Has the plaintiff proved the genuineness of Exts.A1 and A2 and the
transaction thereunder ?
(ii) Does the decree and judgment of the trial court warrant any
interference ?
7. Though the execution of Exts.A1 and A2 and the receipt of
any amounts thereunder are denied by the defendant, the plaintiff
has not mounted the witness box. The power of attorney holder of
the plaintiff was examined as PW1. A reading of his evidence
reveal that he has no direct knowledge about the alleged
transaction. The evidence of PW1 indicates that the plaintiff
used to come frequently to the native place. It is in spite of
the same that he abstained from the witness box. When cross
examined, PW1 affirmed that the plaintiff does not intend to
mount the witness box.
8. Though the defendant denied of having received ₹ 80
lakhs, none of the plaintiff's witnesses were able to depose
about the source for the said amount.
9. PW1 is unaware as to who prepared Ext.A1. Ext.A1 does not
indicate as to who prepared the same. PW1 is also unaware as to
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from where the stamp papers were purchased.
10. The stamp papers for Ext.A1 are seen purchased on
25.03.2014. However, Ext.A1 agreement is dated 26.08.2014. There
is no explanation for the delay of five months in execution of
Ext.A1 after purchase of the stamp papers.
11. In the cross-examination of PW1, he has deposed that
himself, the plaintiff, one Moitheen and one Koyamu are partners
in a business and that ₹ 80 lakhs was pooled jointly by them. He
deposed that ₹ 80 lakhs was not withdrawn from any Bank. PW1
admitted that at the time of Ext.A1 he was not in India and that
his knowledge regarding the same was only hearsay. He also
deposed that he does not intend to examine the other two partners
Moitheen and Koyamu. He has also deposed that the source from
which the four of them raised ₹ 20 lakhs each cannot be proved by
any documents, though he claimed that with respect to their
business proper accounts are maintained. The partners who claim
to have contributed are not examined.
12. Ext.A2 receipt which is claimed to have been executed
simultaneously does not contain any witness though Ext.A1 does.
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13. Ext.A5 notice issued prior to the suit was returned
unserved. PW1 in cross-examination admitted that the address
therein was wrong.
14. Coupled with the above, Exts.B3 to B5 documents produced
by the defendants are of significance. They are photostat copies
of the blank signed stamp papers upon which Ext.A1 agreement is
prepared. Exts.B3 to B5 are produced to substantiate the defence
plea that the signatures of defendants were obtained on signed
blank stamp papers as contended by him. Though as to why and how
the defendant took photocopies of the blank signed papers
including the stamped ones is not explained, Exts.B3 to B5 lends
credence to the contention of the defendant that signed blank
papers were fabricated into Ext.A1 agreement.
15. While we are in agreement with the learned counsel for
the defendant that the contention of the defendant that signed
blank papers were obtained when ₹ 4 lakhs was borrowed by him
from the plaintiff and they were fabricated into Exts.A1 and A2,
does not appear to be correct, that cannot lead to a conclusion
that the plaint claim is true. It is so especially in the light
of the circumstances noted supra.
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16. We agree with the conclusions arrived at by the trial
court that the plaintiff has failed to prove the genuineness of
Ext.A1 and the transaction thereunder.
We do not find any merit in the appeal.
Resultantly, the appeal fails and is dismissed.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
kns/-
//True Copy//
P.S. To Judge
