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Kerala High Court
Karakunnath Mahamood vs Thovarayi Babu on 23 January, 2026
Author: Sathish Ninan
Bench: Sathish Ninan
2026:KER:5610
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
FRIDAY, THE 23RD DAY OF JANUARY 2026 / 3RD MAGHA, 1947
RFA NO. 428 OF 2019
AGAINST THE JUDGMENT DATED 30.03.2019 IN OS NO.177 OF 2010 OF
PRINCIPAL SUB COURT, THALASSERY
-----
APPELLANT/DEFENDANT:
KARAKUNNATH MAHAMOOD
S/O.ABDULLA HAJI, AGED 52 YEARS, RESIDING AT 'KOTTAMMAL
KAKKUNNATH HOUSE', EDAKKAD AMSOM, KANNUR KARAR DESOM,
P.O.KADALAYI, KANNUR DISTRICT.
BY ADV SHRI.SANTHEEP ANKARATH
RESPONDENTS/PLAINTIFFS & DEFENDANTS 1 TO 3:
1 THOVARAYI BABU
S/O.RAMAN, AGED 45 YEARS, PAZHASSI AMSOM, MATTANNUR
DESOM.P.O.MATTANNUR, KANNUR DISTRICT, PIN-670702.
2 THOVARAYI BALARAMAN,
S/O.RAMAN, AGED 63 YEARS, PAZHASSI AMSOM, MATTANNUR
DESOM.P.O, MATTANNUR, KANNUR DISTRICT, PIN-670702.
3 NHATTUTHALA RAVEENDRAN
S/O.GOVINDAN, AGED 63 YEARS, RESIDING AT 'LAKSHMI VILLA
@ KEEZHIKIDANCHIYIL HOUSE', P.O.KADAVATHUR, KANNUR
DISTRICT, PIN-670676.
2026:KER:5610
RFA NO. 428 OF 2019 -2-
4 KEEZHIKKIDANCHIYIL SANGEETHA,
W/O.RAVEENDRAN, AGED 55 YEARS, RESIDING AT'LAKSHMI
VILLA @ KEEZHIKIDANCHIYIL HOUSE', P.O.KADAVATHUR,
KANNUR DISTRICT, PIN-670676.
5 NHATTUTHALA JAYARAJAN
S/O.GOVINDAN, AGED 59 YEARS, VEKKALAM AMSOM DESOM,
P.O.NIDUMPOYIL, KANNUR DISTRICT, PIN-670650.
BY ADVS.
SRI.R.RAMADAS
SRI.C.A.ANOOP
SHRI.K.P.SUDHEER
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
23.01.2026, ALONG WITH RFA.220/2025, 219/2025, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
2026:KER:5610
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
FRIDAY, THE 23RD DAY OF JANUARY 2026 / 3RD MAGHA, 1947
RFA NO. 220 OF 2025
AGAINST THE JUDGMENT DATED 30.03.2019 IN OS NO.177 OF 2010 OF
PRINCIPAL SUB COURT, THALASSERY
-----
APPELLANTS/DEFENDANTS 1 & 2:
1 NHATTUTHALA RAVEENDRAN
S/O. GOVINDAN, AGED 69 YEARS, RESIDING AT 'LAKSHMI
VILLA @ KEEZHIKIDANCHIYIL HOUSE', P.O. KADAVATHUR,
KANNUR DISTRICT, PIN - 670676.
2 KEEZHIKKIDANCHIYIL SANGEETHA,
W/O. RAVEENDRAN, AGED 61 YEARS, RESIDING AT 'LAKSHMI
VILLA @ KEEZHIKIDANCHIYIL HOUSE', P.O. KADAVATHUR,
KANNUR DISTRICT, PIN - 670676.
BY ADV SRI.C.A.ANOOP
RESPONDENTS/PLAINTIFFS & DEFENDANTS 3 & 4:
1 THOVARAYI BABU
S/O. RAMAN, AGED 51 YEARS, PAZHASSI AMSOM, MATTANNUR
DESOM P.O. MATTANNUR, KANNUR DISTRICT, PIN - 670702.
2 THOVARAYI BALARAMAN,
S/O. RAMAN, AGED 69 YEARS, PAZHASSI AMSOM,
MATTANNUR DESOM P.O. MATTANNUR, KANNUR DISTRICT,
PIN - 670702.
2026:KER:5610
RFA NO. 220 OF 2025 -2-
3 NHATTUTHALA JAYARAJAN,
S/O. GOVINDAN, AGED 65 YEARS, VEKKALAM AMSOM DESOM,
P.O. NIDUMPOYIL, KANNUR DISTRICT, PIN - 670650.
4 KARAKUNNATH MAHAMOOD,
S/O. ABDULLA HAJI, AGED 58 YEARS, RESIDING AT
'KOTTAMMAL KAKKUNNATH HOUSE', EDAKKAD AMSOM,
KANNUR KARAR DESOM, P.O. KADALAYI, KANNUR DISTRICT,
PIN -670002.
BY ADVS.
SRI.R.RAMADAS
SHRI.K.P.SUDHEER
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
23.01.2026, ALONG WITH RFA.428/2019 AND CONNECTED CASES, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
2026:KER:5610
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
FRIDAY, THE 23RD DAY OF JANUARY 2026 / 3RD MAGHA, 1947
RFA NO. 219 OF 2025
AGAINST THE JUDGMENT DATED 30.03.2019 IN OS NO.177 OF 2010 OF
PRINCIPAL SUB COURT, THALASSERY
-----
APPELLANT/3RD DEFENDANT:
NHATTUTHALA JAYARAJAN,
S/O. GOVINDAN, AGED 65 YEARS, VEKKALAM AMSOM DESOM,
P.O. NIDUMPOYIL, KANNUR DISTRICT, PIN - 670650.
BY ADV SHRI.K.P.SUDHEER
RESPONDENTS/PLAINTIFFS & DEFENDANTS 1, 2, & 4:
1 THOVARAYI BABU,
S/O. RAMAN, PAZHASSI AMSOM, MATTANNUR DESOM P.O.
MATTANNUR, KANNUR DISTRICT, PIN - 670702.
2 THOVARAYI BALARAMAN,
S/O. RAMAN, PAZHASSI AMSOM, MATTANNUR DESOM P.O.
MATTANNUR, KANNUR DISTRICT, PIN - 670702.
3 NHATTUTHALA RAVEENDRAN,
S/O. GOVINDAN, RESIDING AT 'LAKSHMI VILLA @
KEEZHIKIDANCHIYIL HOUSE', P.O. KADAVATHUR,
KANNUR DISTRICT, PIN - 670676.
2026:KER:5610
RFA NO. 219 OF 2025 -2-
4 KEEZHIKKIDANCHIYIL SANGEETHA
W/O. RAVEENDRAN, RESIDING AT 'LAKSHMI VILLA @
KEEZHIKIDANCHIYIL HOUSE', P.O. KADAVATHUR,
KANNUR DISTRICT, PIN - 670676.
5 KARAKUNNATH MAHAMOOD,
S/O. ABDULLA HAJI, AGED 52 YEARS, RESIDING AT
'KOTTAMMAL KAKKUNNATH HOUSE', EDAKKAD AMSOM, KANNUR
KARAR DESOM, P.O. KADALAYI, KANNUR DISTRICT,
PIN -670002.
BY ADVS.
SRI.R.RAMADAS
SRI.C.A.ANOOP
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
23.01.2026, ALONG WITH RFA.428/2019 AND CONNECTED CASES, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
2026:KER:5610
SATHISH NINAN &
P. KRISHNA KUMAR, JJ.
= = = = = = = = = = = = = = = = = =
R.F.A. Nos.428 of 2019, 219 & 220 of 2025
= = = = = = = = = = = = = = = = = =
Dated this the 23rd day of January, 2026
J U D G M E N T
Sathish Ninan, J.
These appeals arise from the decree in a suit for specific
performance of an agreement for sale. The suit was decreed by the
trial court. RFA 428/2019 is filed by the 4 th defendant, RFA
219/2025 is filed by the third defendant, and RFA 220 of 2025 is
filed by defendants 1 and 2.
2. The plaintiffs are brothers. The second defendant is the
wife of the first defendant. The third defendant is the brother
of the first defendant. The fourth defendant is the alienee of
the plaint schedule properties.
3. On 27.04.2007, the first defendant, on his behalf and on
behalf of defendants 2 and 3, entered into Ext.A1 agreement for
sale with the first plaintiff. Under Ext.A1, the plaint schedule
properties, four in number, were agreed to be conveyed by
R.F.A. Nos.428 of 2019, 219 &
220 of 2025
2026:KER:5610
defendants 1 to 3 in favour of the first plaintiff. The period
fixed was two months. The total consideration fixed was ₹ 47.5
lakhs. On the date of Ext.A1 an amount of ₹ 4 lakhs was paid
towards advance sale consideration. Thereafter, on 07.05.2007, a
further amount of ₹ 2.5 lakhs was paid towards sale
consideration. Such payment is undisputed and is evidenced by
Ext.A2 receipt. According to the plaintiffs, subsequently, an
amount of ₹ 1.5 lakhs was also paid towards the sale
consideration.
4. As per the plaint averments the circumstance leading to
execution of Ext.A1 agreement is as follows:-
5. Plaint schedule item Nos.1 and 2 belong to the first
defendant. Plaint schedule item No.3 belongs to defendants 1 and
2. The wife of the second plaintiff viz. Reeja is a co-sharer
over item 3. Plaint schedule item No.4 belongs to defendants 1
and 3. There were suits pending between the second plaintiff and
defendants 1 and 2, before the Munsiff's Court, Koothuparmba.
6. O.S. No.363/2003 was filed by the first defendant as
plaintiff, against the second plaintiff herein and his wife-Reeja
as defendants, for prohibitory injunction against trespass into
R.F.A. Nos.428 of 2019, 219 &
220 of 2025
2026:KER:5610
the plaint schedule item No.3. OS 163/2004 was instituted by the
said Reeja, against defendants 1 and 2 for fixation of boundary
which again related to plaint schedule item No.3. In the said
suit, when the Advocate Commissioner visited the properties, an
agreement was entered into between the parties whereby defendants
1 to 3 agreed to convey the properties to the second plaintiff.
However, since the second plaintiff was a party to the
litigations, Ext.A1 agreement was executed with the first
plaintiff. The real purchaser is the second plaintiff. Ext.A1
agreement is entered into for the second plaintiff and the entire
funds for the transaction is provided by the second plaintiff.
7. The understanding was that, the Commissioner will measure
out the property and thereafter the sale deed could be executed.
Within the period fixed under Ext.A1, on 20.06.2007, the first
plaintiff issued Ext.A11 notice demanding performance of the
agreement. Later, the Commissioner visited the property. On
18.10.2009 the 4th defendant filed an impleading application in
the said suits claiming that he had purchased the plaint schedule
properties under Exts.A8 and A9 Sale Deeds dated 06.11.2008. The
4th defendant alleges that he is a bonafide purchaser without
R.F.A. Nos.428 of 2019, 219 &
220 of 2025
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notice of Ext.A1 agreement. It is also alleged that defendants 1
and 2 are partners in a business and that the proposed sale was
for their business purposes. Alleging failure on the part of the
defendants to perform the agreement, the suit was filed for
specific performance. There is an alternate prayer for refund of
advance sale consideration and for damages.
8. Defendants 1 and 2 filed a joint written statement. They
did not deny Ext.A1. But it was contended that there is no
privity of contract with the second plaintiff. It was also
contended that the first plaintiff did not have sufficient funds
to proceed with the transaction and that he was not ready and
willing to perform the agreement. The alleged payment of ₹ 1.5
lakhs towards advance sale consideration was also denied.
9. The third defendant denied Ext.A1 agreement. It was
contended that he had not authorised the first defendant to enter
into the agreement. He also contended that he did not receive any
amount under the agreement for sale.
10. The fourth defendant contended that he is a bonafide
purchaser for value and without notice of Ext.A1 agreement.
R.F.A. Nos.428 of 2019, 219 &
220 of 2025
2026:KER:5610
11. The trial court found that the plaintiffs were ready and
willing to perform Ext.A1 agreement, and that the fourth
defendant had notice of the agreement. Accordingly a decree for
specific performance was granted.
12. We have heard Sri.Santheep Ankarath and Sri.K.P.Sudheer,
on behalf of the respective appellants-defendants, and Sri.T.
Krishnanunni, the learned Senior Counsel for the respondent-
plaintiff.
13. The points that arise for determination in these appeals
are:-
(i) Are defendants 2 and 3 bound by Ext.A1 agreement?
(ii) Is there privity of contract between the second plaintiff and
defendants 1 to 3?
(iii) Has the first plaintiff established his readiness and willingness to
perform Ext.A1 agreement?
(iv) Was the trial court right in having exercised the discretion under
Section 20 of the Specific Relief Act in favour of the plaintiff to grant a decree
for specific performance?
14. The signatories to Ext.A1 agreement are the first
plaintiff and the first defendant. As narrated supra, the plaint
schedule properties belongs to defendants 1 to 3. Ext.A1
agreement narrates that the first defendant has executed the
R.F.A. Nos.428 of 2019, 219 &
220 of 2025
2026:KER:5610
agreement on behalf of defendants 2 and 3 also as duly authorised
by them. The plaint averment to the said effect is not denied in
the joint written statement filed by defendants 1 and 2. No
attempt is made even at the stage of evidence to deny such
authorisation. Though the third defendant filed a written
statement denying the alleged authorisation, he did not mount the
witness box to controvert the same. Therefore, it can only be
found that the first defendant had entered into Ext.A1 agreement
on behalf of defendants 2 and 3 also, as duly authorised by them.
Defendants 2 and 3 are, along with the first defendant, bound by
Ext.A1 agreement.
15. The second plaintiff is not a signatory to Ext.A1
agreement. It is the specific case of the plaintiffs that the
real, intended purchaser was the second plaintiff and that it was
the second plaintiff who was to pay the entire sale
consideration. However, a reading of Ext.A1 agreement reveals
that it is an agreement entered into by the first plaintiff on
his own behalf.
16. According to the plaintiffs though the real purchaser
was the second plaintiff Ext.A1 agreement was executed in the
R.F.A. Nos.428 of 2019, 219 &
220 of 2025
2026:KER:5610
name of the first plaintiff in view of the pendency of OS
363/2003 and OS 163/2004 between the second plaintiff and his
wife and defendants 1 and 2. The said explanation does not stand
to reason. The mere pendency of the suits did not prevent the
second plaintiff from entering into the agreement. The second
plaintiff has even signed Ext.A1 as a witness. Nothing prevented
him from entering into the agreement by himself. The fallacy of
the contention is that, the first plaintiff, as PW2, admitted
that he was also one of the parties in OS 363/2013 which was
later transferred to the Subordinate Judge's Court and was
renumbered as OS 107/2013. So also, the plaintiffs' case that the
parties wanted to await the commissioner's report and the decree
in the suits to convey the property, does not stand to logic.
17. Though it is claimed that the consideration for the
transaction was to be paid by the second plaintiff, there is no
evidence to find that the advance sale consideration was paid by
him. Going by the recitals in Ext.A1 agreement, the amount of ₹ 4
lakhs paid towards advance sale consideration on the date of
Ext.A1 was paid by the first plaintiff. Ext.A2 is the receipt
dated 07.05.2007 with regard to payment of a further amount of
R.F.A. Nos.428 of 2019, 219 &
220 of 2025
2026:KER:5610
₹ 2.5 lakhs towards advance sale consideration. The said receipt
is also in favour of the first plaintiff. There is no evidence to
find that the said amounts proceeded from the second plaintiff
and was accepted by the defendants acknowledging the same.
Suffice to notice that, there is no material to find that Ext.A1
agreement was entered into on behalf of the second plaintiff and
that there is privity of contract between the second plaintiff
and defendants 1 to 3.
18. Now, the question of readiness and willingness of the
first plaintiff to perform Ext.A1 agreement needs to be
considered. Pertinently, the entire case set up in the plaint and
also in the evidence of the first plaintiff as PW2 is, the
readiness of the second plaintiff or that of the plaintiffs. We
have already held that the second plaintiff is a stranger to
Ext.A1 agreement. Hence his readiness and willingness is
inconsequential.
19. It would be appropriate to refer to certain portions of
the plaint which mentions about the agreement and the readiness
and willingness. At paragraph 3 it is stated thus:-
R.F.A. Nos.428 of 2019, 219 &
220 of 2025
2026:KER:5610
"... a consensus to the effect that the defendants No.1 to 3 could sell the plaint schedule
items to the 2nd plaintiff and the 2nd plaintiff could purchase the same from them for the
price fixed by them. ....."
Further it is stated thus :-
"For the said reason of pendency of civil suit between the 2 nd plaintiff and D1 & D2 in
the court, the said sale agreement was happened to be executed in the name of the first
plaintiff even though the real promise is to sell the property to the 2 nd plaintiff and the
price was to be paid by him."...."Hence the 2nd plaintiff is also joined and the relief is
being sought for the 2nd plaintiff as well."
At paragraph 4 of the paint it is stated thus :-
"As per the agreement the plaintiffs were liable to pay Rs.2.5 Lakhs out of the sale price
to the D1 on 07.05.2007. The 2nd plaintiff had in fact paid the said amount to him in
time."......"Subsequently, the D1 had also received Rs.1.5 Lakhs from the 2nd plaintiff
towards the sale price."
At paragraph 6 of the plaint it is stated thus :-
"The plaintiffs have even been ready and willing to comply with the sale agreement and
to get the conveyance effected."......."At that time plaintiffs had also on 20.06.2007
caused a registered notice to be issued to the D1."
At paragraph 8 of the plaint it is stated thus :-
"The D1 to D3 are bound to execute and register necessary sale deed with respect to the
plaint schedule properties in favour of the 2nd plaintiff or in the alternative to the first
plaintiff in performance of the sale agreement. The plaintiffs are and have been ever
ready and willing to perform their part of the sale agreement and they will remain to be
so."
The reliefs claimed in the suit read thus :-
"1) Granting specific performance of the sale agreement by execution and registration of
the sale deed in respect of the plaint schedule properties by the D1 to D3 in favour of the
2nd plaintiff or alternatively in the name of the 1st plaintiff;
R.F.A. Nos.428 of 2019, 219 &
220 of 2025
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2) Allowing the plaintiffs to deposit the balance sale price due, after deducting the cost
of proceedings therefrom;
3) Allowing cost of proceeding to the plaintiffs from the defendants;
4) By way of ancillary relief to the main relief, setting aside the documents No.3402/08
and 3403/08 of the S.R.O. Mattennur;
5) By way of alternative relief, directing the D1 to D3 to refund Rs.10,24,000/- to the
plaintiffs by way of advance price with interest thereon @ 12% from the date of suit till
realisation and
6) Recovering Rs.10 lakhs to the plaintiffs from D1 to D3 by way of damages;
7) And granting all such other reliefs as may be just and necessary in the circumstances
of the case."
The reliefs claimed are all for "the plaintiffs" or "the second
plaintiff". Even the main relief claimed in the plaint is, for
execution of conveyance in favour of "the second plaintiff". It
is only the alternate prayer which seeks for conveyance in the
name of the first plaintiff. Evidently, the readiness and
willingness of the fist plaintiff has not been pleaded.
20. Now coming to the evidence of the first plaintiff, he
was examined as PW2. In his chief examination he has sworn to
thus :-
"ജജേഷഷഷഷ്ഠനന്റെഷ ജപേരരിൽഷ ജകേസഷഷ നടകക്കുന്നതരിനനാൽഷ എഴക്കുതക്കുകേനാരൻഷ പേറഞ്ഞതക്കുഷ പപേകേനാരര
എനന്റെഷ ജപേരരിലനാണഷഷ കേരനാർഷ എഴക്കുതരിഷ തന്നതഷ . ആഷ സമയരഷ പപേതരിഫലഷ സരഖഖ്യയരിൽ
അഡഡനാൻസനായരിഷ ജജേഷഷഷ്ഠൻഷ 4 ലകരഷ കേ. നകേനാടക്കുതരിരക്കുന്നക്കു. കേരനാർഷ എനന്റെഷ തനാൽപ്പരഖ്യ
പപേകേനാരരഷ ജജേഷഷഷ്ഠനന്റെഷ ജപേരരിൽഷ തനന്നഷ വസഷതക്കുഷ സരബന്ധമനായഷ തതീരനാധനാരരഷ പപേതരികേനള
നകേനാണഷഷ എഴക്കുതരിഷ രജേരിസഷടനാകരിഷ കേരിജട്ടേണതനാണഷ. പേരിന്നതീടഷഷ ജജേഷഷഷ്ഠൻഷ പേറഞ്ഞതക്കുഷ പപേകേനാരര
ഞനാൻഷ ആദഖ്യരഷ അഡഡ. ജേയനാനന്ദൻഷ മക്കുജഖനഷ രവതീപന്ദനഷഷ കേരനാർഷ പപേകേനാരരഷ ജരഖഷ നചെയഷതക്കു
R.F.A. Nos.428 of 2019, 219 &
220 of 2025
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തരനാനനാവശഖ്യനപ്പട്ടേഷഷ ജനനാട്ടേതീസഷഷ അയപ്പരിചരിരക്കുന്നക്കു. അതരിനന്റെഷപേകേർപ്പനാണഷഷ Ext.A11. എന്നനാൽ
യനാനതനാരക്കുഷ മറക്കുപേടരിഷ ജനനാട്ടേതീസക്കുരഷ അയചരിരക്കുന്നരില. പേരിന്നതീടഷഷ രവതീപന്ദനക്കുമനായരിഷ ബന്ധനപ്പട്ടേഷ
ആവശഖ്യമനായഷകേനാരഖ്യങ്ങൾഷനചെയഷതനതലനാരഷജജേഷഷഷ്ഠനനാണഷ. ഒടക്കുകരഷവസഷതക്കുഷ4--നാരഷപപേതരികഷ
കകേമനാറരിനയന്നഷഷ അറരിയനാനരിടവന്നജപ്പനാൾഷ ജജേഷഷഷ്ഠൻഷ പേറഞ്ഞതക്കുഷ പപേകേനാരരഷ ഞനാൻ
രവതീപന്ദനക്കുരഷ 4--നാരഷ പപേതരികക്കുരഷ വകതീൽഷ മക്കുജഖനഷ ജനനാട്ടേതീസഷഷ അയപ്പരിചരിരക്കുന്നക്കു . അവയക്കുനട
പേകേർപ്പനാണഷഷExt.A3. എന്നനാൽഷഅവകക്കുരഷമറക്കുപേടരിഷഉണനായരിരക്കുന്നരില. തക്കുടർന്നനാണഷഷഞനാനക്കുര
ജജേഷഷഷ്ഠനക്കുരഷജചെർന്നഷഷ ഈഷജകേസഷഷ നകേനാടക്കുജകണരിഷവന്നതഷ . അതരിനനാൽഷഅനഖ്യനായഷപപേകേനാരര
വരിധരിയക്കുണനാജകേണതനാണഷ. "
Evidently, the first plaintiff does not depose about his
readiness and willingness, independent of the second plaintiff,
to perform Ext.A1 agreement. Though the defendants had
specifically challenged the financial capacity, the first
plaintiff was unable to produce any material to show the source
or availability of funds with him, to proceed with the agreement.
21. The only evidence that has come on record with regard to
the source of money for performance of Ext.A1 are Exts.A10 and
A10(a) documents which evidence availing of loans for the second
plaintiff. Of course, it would be open for the first plaintiff to
raise funds through the second plaintiff. However, there is no
case that the first plaintiff was ready and willing to perform
the agreement and that the second plaintiff had agreed to provide
funds to the first plaintiff for the transaction. PW2 admitted
that apart from Exts.A10 and A10(a) there is no other material to
R.F.A. Nos.428 of 2019, 219 &
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prove the availability of funds. He deposed thus :-
"സരഖഖ്യഷ ഉണനായരിരക്കുന്നതനായരിഷ കേനാണരികനാൻഷ ഹനാജേരനാകരിയഷ നതളരിവഷഷ അലനാനതഷ മറഷ
നതളരിവക്കുകേൾഷഇല."
Exts.A10 and A10(a) reveal that the loans were availed on
03.04.2007. However Ext.A1 agreement was entered into only on
27.04.2007, ie. more than three weeks prior to the agreement.
There is no reason why the entire funds for the execution of the
sale deed was arranged even three weeks prior to the very
execution of the agreement itself. The second plaintiff as PW1
would depose that the loan amount of ₹40 lakhs availed by him on
03.04.2007 was kept with him till the filing of the suit in the
year 2010 after which it was invested for the purchase of another
property. Such claim is highly improbable. Before this Court the
4th defendant who is the appellant in RFA 428/2019 has filed IA
2/2025 seeking initiation of proceedings against the plaintiffs
and the witnesses PWs.3 and 4, for giving false evidence before
the court. In the affidavit filed in support thereof, referring
to Exts.P10 and P10(a) it is sworn to thus :-
"It is understood with all conviction that the loans availed as per Exhibits P10 and
P10(a) were not availed for the purpose of the present transaction in question. The same
was availed for payment of balance consideration in so far as yet another civil suit that
was pending in the very same court i.e. Principal Sub Court, Thalassery in which 2 nd
R.F.A. Nos.428 of 2019, 219 &
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plaintiff was the power attorney holder of the plaintiff in that suit. It is understood that in
the said suit during the course of trial the trial court had ordered the plaintiff in the suit
to deposit an amount of Rs. 38,22,351/-. The said amount is understood to have been
paid by drawing a banker's cheque drawn on Kannur District co-operative Bank,
Mattannur branch in favour of Sub Court, Thalassery and the date of the said cheque
was 4.4.2007."
The averments as above, that the loans availed under Exts.A10 and
A10(a) were deposited in another suit viz. OS 161/2006 on
04.04.2007, is not denied by plaintiffs 1 and 2 by filing a
counter affidavit. The loans were availed from the Kannur
District Co-operative Bank on 03.04.2007 and the deposit was made
on the next day. Though at the request of the appellants, RFA
542/2017 which arises from the decree and judgment in OS 161/2006
above referred to was listed along with these appeals, since the
said appeal is not connected to the present appeals, the same was
delinked. Order XIII Rule 10 empowers the court to inspect the
records in any other suit or proceedings. We have perused the
records in OS 161/06 from which RFA 542/2017 arises. I.A.No.1649
of 2007 in O.S.161/2006 is an application filed by the plaintiff
therein through the second plaintiff herein. In the affidavit
filed in support of the application is stated that an amount of
R.F.A. Nos.428 of 2019, 219 &
220 of 2025
2026:KER:5610
₹ 38,22,351/- has been deposited in the suit through cheque drawn
on Kannur District Co-operative Bank. It appears that the funds
raised under Exts.A10 and A10(a) were deposited in the said suit.
Be that as it may, it would be sufficient to notice that the
loans availed under Exts.A10 and A10(a) were much prior to the
entering into Ext.A1 agreement and there is no material to find
that the said amount was available at the disposal of the first
plaintiff.
22. It is trite that in a suit for specific performance the
plaintiff is not bound to jingle money in his pocket, he is bound
to prove his readiness and willingness to perform the agreement
from the date of execution of the agreement till the date of suit
and thereafter till execution. Thus, on the above discussions, it
is evident that the first plaintiff has failed to prove his
readiness and willingness to perform Ext.A1 agreement.
23. Even taking it to be that the first plaintiff has proved
his readiness and willingness to perform Ext.A1 agreement, that
by itself does not impel the court to grant a decree for specific
performance. The relief of specific performance has its roots in
equity. A person who approaches the court seeking such relief has
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to come with clean hands. Improper conduct in his part
disentitles him for the equitable relief of specific performance.
The law in that regard is too well settled and we do not think it
necessary to cite any decisions in that regard. The plaintiff's
case, as averred in the plaint, with regard to the circumstance
leading to execution of Ext.A1 agreement has been mentioned first
above: the pendency of the suits OS 363/2003 and OS 163/2004
between the 2nd plaintiff, his wife and the defendants 1 and 2,
and the settlement arrived therein. However, Exts.A11 and A3
notices sent by the first plaintiff prior to the suit reveal an
entirely different story. Its contents indicate that the
circumstances relied on in the plaint is a subsequently developed
story.
24. Ext.A11 notice was issued by the first plaintiff to the
first defendant. Under Ext.A11, the first plaintiff sought
performance of Ext.A1 agreement. The contents thereof are of
significance. Therein he has alleged that, material facts with
regard to pendency of the suits for fixation of boundary was
suppressed from him while entering into Ext.A1 agreement. The
assertion is that he was unaware of the suits and dispute
R.F.A. Nos.428 of 2019, 219 &
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regarding boundary. The relevant portion reads thus :-
"എന്നനാൽഷ ജമൽഷ എപഗരിനമന്റെന്റിനലഷ നരിശ്ചയങ്ങൾകക്കുരഷ തനാല്പരഖ്യങ്ങൾകക്കുരഷ വരിരക്കുദ്ധമനായരി
നരിങ്ങൾഷ എനന്റെഷ കേകരിനയഷ പേലഷ കേനാരഖ്യങ്ങളളരഷ അറരിയരികനാനതഷ എപഗരിനമന്റെഷ
വനാസഷതവവരിരക്കുദ്ധമനായരിഷഎഴക്കുതരിഷഒപ്പരിട്ടേളഷനൽകേക്കുകേയനാണഷഷ ഉണനായതഷഷഎന്നഷഷഎനന്റെഷകേകരി
പേറയക്കുന്നക്കു. ജമൽഷ എപഗരിനമന്റെഷ ഷ പപേകേനാരമക്കുള്ളഷ തനാനഴഷ പേട്ടേരികേയരിനലഷ വസഷതക്കുകൾഷ എലനാര
തനന്നഷ അതരിരക്കുകേൾഷ നരിശ്ചയരിചരിട്ടേരിലനാതതക്കുരഷ ആവകേഷ അതരിരക്കുകേൾ
നരിശ്ചയരിചളകേരിട്ടേളന്നതരിനഷഷ ജകേനാടതരികേൾഷ മക്കുമനാനകേഷ വഖ്യവഹനാരങ്ങൾഷ നരിലവരിലക്കുള്ളതക്കുര
ആയരിരരിനകഷ ഇപപേകേനാരരഷ കേനാരഖ്യങ്ങനളലനാരഷ തനന്നഷ മറചളനവചളരഷ ജമൽഷ വസഷതക്കുവരിൽ
നഗയരിറഷഷ സനാപേരികക്കുന്നതരിനനഷ സരബന്ധരിചളരഷ വഖ്യവഹനാരരഷ നരിലവരിലരിരരിനകഷ ആവകേ
വഖ്യവഹനാരങ്ങനളനാനകഷ തനന്നഷ തതീർപ്പനാവനാതഷ നരിലയരിൽഷ നരിങ്ങൾഷ ഇപപേകേനാരര
വസഷതക്കുവരിൽഷ വകേകഷഷ നരിശ്ചയരിചഷഷ ആയതരിനഷഷ തതീരനാധനാരരഷ തതീർകക്കുന്നതനായനാൽഷ എനന്റെ
കേകരികഷഷ കേനതഷ നഷഷടങ്ങൾഷ വന്നക്കുജചെരക്കുനമന്നരിരരിനകഷ ആയതരിനഷഷ മക്കുതരിരരക്കുതഷഷ എന്നഷ
ഇതരിനനാൽഷനരിങ്ങനളഷഅറരിയരികക്കുന്നക്കു. "
This is totally against the plaint case that Ext.A1 agreement was
entered into during the course of Commissioner's measurement in
OS 363/2003 and OS 163/2004 and that the agreement was executed
in favour of the first plaintiff since the second plaintiff was a
party to the said suits. So also, in Ext.A11 notice there was no
case that Ext.A1 agreement was entered into on behalf of the
second plaintiff. Similarly Ext.A3 notice has also been sent by
the first plaintiff to the first defendant on similar lines.
Therefore, it is evident that the plaintiff's case lacks
bonafides. Totally inconsistent and mutually destructive cases
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have been set up in Exts.A11 and A3 notices on the one hand and
in the plaint on the other.
25. So also, according to the plaintiffs, after the payment
of ₹ 4 lakhs as advance on the date of Ext.A1, a further amount
of ₹ 2.5 lakhs was paid on 07.5.2011 and an amount of ₹ 1.5 lakhs
was paid thereafter. The payment of ₹ 1.5 lakhs is categorically
denied by the defendants. The date of such payment is neither
pleaded nor the source proved. The plaintiffs have not attempted
to prove such payment. No endeavour is made before us to justify
the plaintiffs claim of payment of the said amount. It can only
be held that there has been no such payment of ₹ 1.5 lakhs as
claimed. Raising a false claim with regard to payment of such
amount towards advance sale consideration, is yet another factor
which needs to go into the zone of consideration of the court
while deciding whether the equitable jurisdiction is to be
invoked in their favour, to grant a decree for specific
performance.
R.F.A. Nos.428 of 2019, 219 &
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26. Even the plaintiffs admit that the first defendant was
in need of money which resulted in Ext.A1 agreement for sale.
Ext.A1 was entered into on 27.04.2007. The suit has been filed
only on 17.05.2010. The circumstance leading to entering of the
agreement for sale and the lapse of time after which specific
performance is sought, is yet another fact to decline the
discretionary relief for specific performance.
27. On the circumstances as noted above, we are of the
opinion that this is a fit case where the discretion is to be
exercised to decline grant of the equitable relief for specific
performance. The trial court has omitted to consider the above
aspects. The decree granting the relief of specific performance
is liable to be set aside and we do so.
28. The relief of specific performance having been
negatived, the plea of the 4 th defendant that he is a bona fide
purchaser for value and without notice of Ext.A1 agreement loses
significance. Anyhow, the first defendant as DW1 would in his
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cross examination admit that the 4 th defendant was informed about
Ext.A1 agreement. The 4 th defendant was unable to establish
otherwise. Hence the claim of the 4 th defendant that he purchased
the property without notice of Ext.A1 agreement, fails.
29. The plaint contains an alternate relief for refund of
the advance sale consideration with interest. The payment of ₹ 4
lakhs on the date of Exts.A1 and ₹ 2.5 lakhs on 7.5.2007 are not
in dispute. Defendants 1 to 3 are liable to repay the amount with
interest. Considering the prevailing rate of interest in banking
transactions we are of the opinion that grant of interest at the
rate of 9% per annum from 07.05.2007 till date of suit and
thereafter at the same rate till date of decree, and thereafter
at the rate of 6% per annum till date of realisation, is just and
reasonable.
30. Though a relief of damages of ₹ 10 lakhs is claimed, the
plaintiffs have not pleaded under what head the damages has
resulted nor has any evidence being adduced upon the same. Hence
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the said claim is only to be dismissed and we do so.
In the result, these appeals are allowed. The decree and
judgment of the trial court are set aside. The suit will stand
decreed allowing the first plaintiff to realise an amount of
₹ 6.5 lakhs with interest at the rate of 9% per annum from
07.05.2007 till date of decree (23.01.2026) and thereafter at the
rate of 6% per annum till realisation, from defendants 1 to 3.
The first plaintiff shall be entitled for proportionate costs
throughout.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
kns/-
//True Copy//
P.S. To Judge
