IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 2ND AUGUST 2010 / 11TH SRAVANA 1932 AS.No. 589 of 1996() ------------------------------ OS.206/1993 of PRINCIPAL SUB COURT,ERNAKULAM .................... APPELLANT(S): DEFENDANT ----------------------------------------- NARAYANI, D/O. LATE KALI, POKKAMTHAZHATHE PARMBIL, THEKKUMBHAGOM VILLAGE, TRIPUNITHURA. BY ADV. SRI.S.SREEKUMAR RESPONDENT(S): PLAINTIFF -------------------------------------------- RAVI VARMA S/O. LATE THANKAMMA NAMBISHDATHIRI KANNEZHATHU PURATHEMADATHIL, KIZHAKKEKOTTA, VATHIKKAL, TRIPUNITHURA. ADV. SRI.M.RAVI KUMAR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 02/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.3550/1996 IN AS. NO.589/1996 DISMISSED 02/08/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. ........................................... A.S.NO.589 OF 1996 ............................................. Dated this the 2nd day of August, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Ernakulam in O.S.No.206/1993. The suit is one for specific performance and also for realisation of the amount. 2. It is the case of the plaintiff that son of the defendant had entered into an agreement with him for sale of 2.5 cents of property for a consideration of Rs.35,000/= and had received an advance of Rs.30,000/=. At the time of execution of the agreement, the son of the defendant had handed over the title deed, encumbrance certificate and basic tax receipt. Similarly on the very same day, as the purpose was to obtain a Visa, he rushed back to the plaintiff and requested him to give another sum of Rs.5,000/= for the purpose of procuring Visa. But the plaintiff got a promissory note executed and gave him Rs.3,650/=. After the death of Nithyan, mother of the defendant did not execute the document and repay the money and so, the suit for specific : 2 : A.S.NO.589 OF 1996 performance as well as realisation of the amount is filed. 3. On the other hand, the defendant would contend that her son Nithyan had never entered into an agreement for sale with the plaintiff and that the plaintiff is a money lender and in oder to take a loan of Rs.3,650/=, he obtained Ext.A1 document as security and at that time documents were also received and therefore there is no agreement to sell as contended by the plaintiff and therefore, prays for dismissal of the suit. 4. In the lower court, Exts.A1 to A7 were marked, PWs 1 and 2 and DW1 were examined. On an analysis of the materials, the trial court granted a decree for specific performance as well as a consolidated sum of Rs.5,000/= with permission to adjust that amount towards the sale consideration. It is against that decision, the defendant has come up in appeal. 5. Heard the learned counsel for the appellant as well as the respondent. It has to be stated that the present appellant, aged mother of deceased Nithyan, is facing a threat of losing a major chunk of her property which has been obtained as : 3 : A.S.NO.589 OF 1996 Kudikidappu. 6. It is the case of the plaintiff that Nithyan had approached him and had entered into an agreement for sale and Rs.30,000/= was paid as consideration. He had also examined PW2 to prove execution of the document. It is also submitted that deceased Nithyan was a graduate and not a layman. 7. On the other hand the defendant would contend that Nithyan had only borrowed a sum and for that purpose, he had executed a promissory note and that he had never agreed to sell the property. Execution of Ext.A1 is proved by the evidence of PWs 1 and 2. 8. I had perused those documents. The prior title deed as well as the encumbrance certificate up to 15.6.1992 had been obtained. The agreement for sale was executed on 23.6.1992. Therefore unless there was an intention to part with the property, there was no necessity to obtain an encumbrance certificate dated 15.6.1992. That is why it is often said that men may lie but the circumstances will never lie. For a paltry sum of Rs.3,650/= there was no : 4 : A.S.NO.589 OF 1996 necessity to hand over the encumbrance certificate. Therefore, it has to be stated that Ext.A1 has been entered into as well as a promissory note has also been executed. The important criteria to be looked into is whether the discretionary relief under Section 20 of the Specific Relief Act has to be exercised in favour of the plaintiff or not. I am conscious of the fact that it is not the arbitrary discretion that has to be exercised but judicial discretion that has to be made use of either granting or refusing a decree for specific performance. The change of circumstances, the miserable plight of the parties etc are also materials which have to be taken into consideration in these type of cases. A mother, who is forced to face a litigation, does not know what had really transpired. It is part and parcel of her Kudikidappu that is attempted to be taken away. She had lost her son in an accident. Therefore, if she is deprived of that property as well, it will be a great injustice to her. On the contra, it appears that the plaintiff is an affluent man and can afford to suffer a little loss at least when taken in a broad angle. : 5 : A.S.NO.589 OF 1996 9. So, I feel that it is a fit case where judicial discretion has to be exercised in favour of the defendant rather than on the plaintiff. But, it does not mean that the defendant can wash away or walk away without paying anything. Considering the prolonged period of litigation and other factors, I am inclined to grant a decree to the plaintiff for a sum of Rs.33,650/= with 8% interest on the said amount from the date of suit till realisation. Therefore the judgment and decree of the trial court are modified and the decree for specific performance is refused and a decree is passed as follows: 10. The plaintiff is given a decree for realisation of Rs.33,650/= with 8% interest on the said sum with proportionate cost from the date of suit till realisation from the defendant and her assets. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 6 : A.S.NO.589 OF 1996 M.N. KRISHNAN, J. ........................................... A.S.NO.589 OF 1996 ............................................. 2nd day of August, 2010. J U D G M E N T