IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 23RD JUNE 2011 / 2ND ASHADHA 1933 RFA.No. 25 of 2010() -------------------- {OS.68/2006 OF THE PRINCIPAL SUB COURT,ALAPPUZHA} .................... APPELLANT (S)/1ST DEFENDANT: ------------------------------------- SWAMINATHAN, S/O. KESAVAN, KARINGATTIL, ROHINI SADANAM, PARISSERI MURI, PULIYOOR VILLAGE, CHENGANNUR. BY ADV. SRI.K.K.SATHEESH RESPONDENT(S)/PLAINTIFF & 1ST DEFENDANT: ------------------------------------------------------ 1. R.RADHAKRISHNA PRASAD, S/O.K.R.RAMAKRISHNAN NAIR, HARISREE (28/2577), PONNETH TEMPLE ROAD, KADAVANTHARA DESAM, ELAMKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. 2. LORD KRISHNA BANK LTD., REPRESENTED BY THE MANAGER, CHENGANNUR BRANCH. R1 BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE & SRI.M.HARISHARMA THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ALONG WITH EX FA NO.6 OF 2011 ON 23/05/2011, THE COURT ON 23/06/2011 DELIVERED THE FOLLOWING: THOTTATHIL B. RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------- R.F.A.NO.25 OF 2010 & Ex.F.A.NO.6 OF 2011 ----------------------------------- Dated this the 23rd day of June, 2011 J U D G M E N T S.S.SATHEESACHANDRAN, J. The 1st defendant in a suit for specific performance, who suffered a decree, to refund the advance of sale price as claimed by the plaintiff, has filed the appeal R.F.A.No.25 of 2010. The other appeal Ex.F.A.No.6 of 2011 is by the claimant, who had set up a claim over the property of the 1st defendant, which had been brought to sale in execution to satisfy the decree debt. The claimant was the advocate who appeared for the 1st defendant in the execution proceedings, and his claim was dismissed. Aggrieved thereby he has preferred the aforesaid appeal, Ex.F.A.No.6 of 2011. R.F.A.No.25 of 2010 & 2 Ex.F.A.No.6 of 2011 2. Since the questions involved for consideration in both the appeals, R.F.A.No.25 of 2010 and Ex.F.A.No.6 of 2011 are closely linked, though they have arisen from two stages of the lis, one on the trial side and the other in execution, as agreed to by the counsel on both sides, they are disposed under this common judgment. 3. Plaintiff laid the suit alleging that the 1st defendant executed Ext.A1 agreement of sale agreeing to sell his property described in the plaint, for a sale price of Rs.30 lakhs, and collected an advance of Rs.3 lakhs on the sale price. Later on, to discharge the liabilities outstanding on the property to the 2nd defendant Bank and also to vacate the tenants in occupation of the rooms in the buildings covered by the sale, 1st defendant collected a further sum of Rs.15 lakhs, was his further case. Demand for completing the sale in terms of Ext.A1 agreement of sale not being responded to, the suit was laid for specific performance of Ext.A1 agreement and in the alternative for refund of the sum of Rs.18 lakhs with interests on such sum from R.F.A.No.25 of 2010 & 3 Ex.F.A.No.6 of 2011 the 1st defendant. 4. The 1st defendant resisted the suit contending that he had no transaction whatsoever with the plaintiff and the alleged sale agreement (Ext.A1) was a forged document making use of blank signed stamped papers which had been collected earlier from him by one Vijayadharan Pillai (PW2) in connection with a loan transaction. He also contended that the property was worth nearly Rs.1 crore, and the plaintiff had instituted the suit under the influence of PW2 on the strength of the fabricated document. 5. The 2nd defendant, a Bank, against whom no relief was claimed, chose to remain absent. 6. On the pleadings of the parties as aforesaid, the court below had framed issues as to whether the agreement for sale (Ext.A1) was fabricated, whether the plaintiff was entitled to a specific performance of that agreement and, if not, for refund of the sale price, and, mesne profits, which was also canvassed for in his suit. R.F.A.No.25 of 2010 & 4 Ex.F.A.No.6 of 2011 7. Over such issues, both sides let in evidence, with the plaintiff examining PWs.1 to 3 and Exts.A1 to A8, and the 1st defendant, DWs.1 and 2 and Exts.B1 and B2. The learned Sub Judge, after considering the materials placed found that Ext.A1 agreement is genuine, however, specific performance of that agreement was declined in view of the lapse of time that had occurred after its execution. Such delay might have caused considerable escalation in the price of the property was the view taken to decline specific performance. The alternative relief canvassed by the plaintiff for refund of the amount paid towards sale price under Ext.A1, that is, a sum of Rs.18 lakhs, as claimed by him, was directed to be paid by the 1st defendant with 12% interest on such sum from the date of suit, granting a decree in favour of the plaintiff as indicated above, charging such sum on the properties of that defendant, including the property covered by the agreement. So far as the declining of the specific relief of Ext.A1 agreement of sale, there is no further challenge from the plaintiff, and it has become final. R.F.A.No.25 of 2010 & 5 Ex.F.A.No.6 of 2011 8. Whether Ext.A1 agreement was the outcome of a genuine contract of sale between the plaintiff and the 1st defendant, or was it a fraudulent creation at the instance of PW2 making use of blank signed stamp papers alleged to have been obtained by him from the 1st defendant in respect of a loan transaction with him, is the most pertinent question involved in the lis. In case, Ext.A1 agreement of sale is found to be a contract of sale entered by the plaintiff and the 1st defendant whether there was further payment towards the sale price by the plaintiff to the tune of Rs.15 lakhs to the 1st defendant and also the genuineness of the endorsement thereof in Ext.A1 agreement, which has been separately exhibited as Ext.A1(a), would also emerge for consideration. 9. The learned counsel appearing for the appellant (1st defendant) adverting to the evidence of PW1 (plaintiff) contended that he did not know from where the stamp papers for writing Ext.A1 were purchased nor even the scribe, who prepared the instrument, and all of which, according to the counsel, indicated the falsity of the plaintiff's case and there was R.F.A.No.25 of 2010 & 6 Ex.F.A.No.6 of 2011 no contract of sale between the parties as alleged. Relying on Ext.B2 and the evidence of DW2, who is stated to have issued Ext.B2 notice on behalf of the plaintiff, the counsel assailed the findings of the court below accepting the claim of the plaintiff under Ext.A1 agreement and Ext.A1(a) endorsement as to subsequent payments made in the sale price. Apart from Ext.B2, even in Ext.B1 advocate notice, the issue of which was not disputed by the plaintiff, other than stating that there was subsequent payments and an agreement to adjust such payments in the sale price, there was no specification of the amount paid and also reference to any endorsement made thereof in Ext.A1 agreement, is highlighted by the counsel to contend that the case canvassed as to subsequent payment of Rs.15 lakhs on the sale price, is totally false. The endorsement, Ext.A1(a), regarding subsequent payment of Rs.15 lakhs is also impeached as a forged entry, fraudulently incorporated above the signature of the 1st defendant, which had been obtained on the reverse side of the stamp paper, while it remained blank, by DW2 in connection with the loan transaction between them, according to the counsel. Non-examination of the scribe who prepared R.F.A.No.25 of 2010 & 7 Ex.F.A.No.6 of 2011 Ext.A1 is also emphasized by the counsel to urge that Ext.A1 agreement and also Ext.A1(a) endorsement thereunder are fraudulent creations at the instance of DW2 by making use of the blank signed stamp papers, which had been obtained earlier from the 1st defendant when a loan was provided to that defendant by him. The evidence of DW2 that he had filed complaints against the 1st defendant and his wife before the Magistrate Court on the bouncing of the cheques collected from them in respect of the loan transaction with him, but such complaints were not prosecuted, rather, he remained absent when such complaints were taken by the court, is also banked upon by the counsel to contend that the defence canvassed impeaching the creditworthiness of the plaintiff’s case and also genuineness of Ext.A1 agreement was shown to be more probable, but, the court below failed to appreciate such defence in the totality of the circumstances presented in the case. On the other hand, the learned senior counsel appearing for the plaintiff urging that the finding formed by the court below that Ext.A1 agreement was duly executed by the 1st defendant is based on the evidence of PWs.1 to 3 and no circumstance R.F.A.No.25 of 2010 & 8 Ex.F.A.No.6 of 2011 whatsoever had been brought out by the 1st defendant to discredit their evidence other than casting some aspersions over the evidence of PW2, which too, according to the counsel, was not worthy of any value, contended that the conclusion formed by the court below, as above, does not suffer from any infirmity warranting interference. The 1st defendant did not respond to the two advocate notices issued before institution of the suit, in both of which subsequent payments made towards the sale price had been made mention of, with the latter one specifically stating the amounts and endorsements made thereof in Ext.A1 agreement, is also emphasized by the counsel that the challenge against Ext.A1(a) as a forged entry and also denial of the collection of further amounts, by way of subsequent payments on the sale price, by the 1st defendant are false. The learned counsel further urged that the court below had rightly and correctly found that the evidence of DW2 with respect to his claim of issuing Ext.B2 notice on behalf of the plaintiff, under the instructions of PW2, as contended by the 1st defendant, is totally unreliable. Ext.B2 notice and also the evidence of DW2, which have been found false by the court below, spell out that the 1st R.F.A.No.25 of 2010 & 9 Ex.F.A.No.6 of 2011 defendant has no regard for truth and the plea set up by him in the suit disputing Ext.A1 agreement and also Ext.A1(a) endorsement thereunder regarding subsequent payments received, are totally false and unworthy of any consideration as rightly found by the court below, and as such no interference with the decree is called for, is the further submission of the counsel. 10. Ext.A1 agreement of sale was disputed as not genuine by the 1st defendant contending that the blank signed stamp papers collected from him by PW2 had been made use of forging such an instrument. He had no transaction whatsoever with the plaintiff was his further case. True, the 1st defendant had shown from the materials placed that he had some loan transaction with PW2, Vijayadharan Pillai, and also that the aforesaid witness had filed complaints against him and his wife before the Magistrate Court. That circumstance, of course, has to be taken note of in appreciating the genuineness of Ext.A1 agreement of sale, which is impeached by the 1st defendant as fraudulent. The court below, after appreciating the evidence of the plaintiff as PW1 R.F.A.No.25 of 2010 & 10 Ex.F.A.No.6 of 2011 and his witnesses, PWs.2 and 3, found that Ext.A1 agreement was in fact executed by the 1st defendant. Even when a note of caution and scrutiny with care was warranted in appreciating the evidence of PW2 over the execution of Ext.A1 agreement of sale by the 1st defendant, in the light of the defence taken by him and also the circumstances presented that there was some previous loan transaction between PW2 and the 1st defendant, we find that the evidence tendered through PW3, who is shown as a witness in that instrument, amply corroborates and supports the claim of plaintiff that Ext.A1 agreement was duly executed by the 1st defendant. PW3 candidly admitted before court that the value of the property covered by Ext.A1 agreement of sale at the time of his examination was about Rs.50 lakhs, which was much more than the price shown in the agreement. Going through the evidence of PW1 and also PW3, even excluding that of PW2, the execution of Ext.A1 agreement of sale, it is seen, is satisfactorily established. Suggestive questions put to the plaintiff (PW1) and his witness (PW3) by the 1st defendant impeaching the instrument as forged, it is seen, do not shake the worth of their testimonies. Coupled with the evidence of PWs.1 and 3, there is R.F.A.No.25 of 2010 & 11 Ex.F.A.No.6 of 2011 also a material circumstance that the defendant had not responded to two advocate notices issued, one after the other, over a span of three months, by the plaintiff demanding completion of the sale making specific mention of Ext.A1 agreement and the terms thereunder. In fact, the 1st defendant had not only admitted the receipt of those notices, but canvassed a case that he had received one more notice also from DW1, another advocate. Whatever be the worth of that notice, and the evidence of DW1, admittedly, he did not respond to that notice also. Failure of the 1st defendant to respond to an advocate notice, of course, cannot be treated as decisive in appreciating his defence resisting the suit claim. However, where there is positive evidence supporting the plaint claim and negativing the defence set up impeaching the genuineness of the agreement of sale, advocate notice/notices had been issued making specific mention of the written agreement of sale and the terms thereunder, but such notices remained not responded to with any reply and further, no explanation was offered for non-sending the reply, neither in the written statement nor in evidence, that circumstance cannot at all be ignored in R.F.A.No.25 of 2010 & 12 Ex.F.A.No.6 of 2011 evaluating the merit of the rival case presented by the parties touching upon the genuineness of Ext.A1 agreement of sale. In this context, it is appropriate to take note that the defence raised impeaching Ext.A1 and Ext.A1(a) was sought to be established banking upon Ext.B2 and evidence of DW2, but, even, that notice was also not responded by the 1st defendant. The evidence of DW2 and also Ext.B2 was tendered by the 1st defendant to contend that Ext.A1 was a forged document at the instance of PW2 and also to impeach Ext.A1(a) endorsement as regards the subsequent payments claimed by the plaintiff is false. Whatever be the merit of his defence on that score, where the primary question related to the execution of Ext.A1 agreement of sale by the 1st defendant and positive proof thereof is adduced by the plaintiff the non-sending of reply to the advocate notice and no explanation why reply was not sent was offered, it adds credence to the case of the plaintiff that Ext.A1 agreement is genuine. The evidence of PW1 that a sum of Rs.3 lakhs was collected as advance on the sale price of Rs.30 lakhs agreed upon is corroborated by the evidence of PW3, which has been accepted as reliable by the court below. We are not impressed by the R.F.A.No.25 of 2010 & 13 Ex.F.A.No.6 of 2011 submissions made by the counsel for the 1st defendant to disturb the conclusion so found by the court below, which is found to be free from any infirmity. 11. Ext.A1 agreement was found to be genuine, upholding the case of the plaintiff that there was an agreement of sale with the 1st defendant and receipt of Rs.3 lakhs out of the sale price of Rs.30 lakhs by that defendant, does not postulate nor support the case of the plaintiff in any manner that there was subsequent payment of Rs.15 lakhs on the sale price as evidenced by Ext.A1(a) endorsement. So far as the subsequent payments as covered by Ext.A1(a), there is only the evidence of the plaintiff, and nothing more. In fact, the evidence of the plaintiff and also a reading of Ext.A1(a) endorsement would indicate that such payments were made at different points of time. In evidence, PW1 would state stamp receipts had been collected whenever such subsequent payments were made, but none of the stamp receipts were produced. Perusal of Ext.A1(a) endorsement would also show that the witness PW2 had signed just below that endorsement and only thereafter, the signature of the 1st R.F.A.No.25 of 2010 & 14 Ex.F.A.No.6 of 2011 defendant is seen subscribed. It was evidently, therefore, not a case of PW2 witnessing the subscribing of the signature by the 1st defendant and then attesting that endorsement as a witness. In Ext.B1 advocate notice, which was earlier in point of time issued by the plaintiff other than stating that the 1st defendant had received substantial amount after entering into Ext.A1 agreement of sale, towards the sale price, there is no case for the plaintiff that any endorsement was made by him in Ext.A1 agreement acknowledging the receipt of such payments. The amount so received subsequent to Ext.A1 agreement of sale, which is stated in the second notice and also in the plaint as Rs.15 lakhs, and so reflected in Ext.A1(a) endorsement, is also not stated in Ext.B1 notice. The sum that was stated to have been paid and collected towards sale price being substantial, that is, Rs.15 lakhs, it would not stand to reason to hold that the plaintiff had not properly instructed the counsel when Ext.B1 notice was issued as to such payments and also the counsel did not look into Ext.A1 agreement when such notice was issued. If there was such an endorsement as Ext.A1(a) at the point of time when Ext.B1 notice was issued, it would have, in all probabilities, R.F.A.No.25 of 2010 & 15 Ex.F.A.No.6 of 2011 found expression with clarity and specification in that notice. Looking into Ext.A1(a) endorsement also, it is seen, a vague expression is made that subsequent payments at different points of time totalling Rs.15 lakhs were given towards the sale price and it was collected by the 1st defendant. In the absence of better evidence, which is totally lacking in the case, on the self serving assertion of the plaintiff, that alone, Ext.A1(a) endorsement cannot be accepted as genuine. Signature of the 1st defendant appears on the reverse side of the stamp paper over which Ext.A1(a) endorsement is made, that too much below the signature subscribed by PW2, the witness, that alone, would no way sustain the case of the plaintiff that there was subsequent payment of Rs.15 lakhs in the sale price to the 1st defendant. The case of the plaintiff as to subsequent payment to the tune of Rs.15 lakhs out of the sale price to the 1st defendant, in fact, remains not established by positive evidence and the court below has gone wrong in accepting that claim of the plaintiff and granting him a decree thereof. Resultantly, it follows that the decree impugned in R.F.A.No.25 of 2010 to the extent of granting the plaintiff refund of the sum claimed R.F.A.No.25 of 2010 & 16 Ex.F.A.No.6 of 2011 towards subsequent payments allegedly made after Ext.A1 has to be vacated; and, the decree is to be sustained only for the refund of advance paid at the execution of Ext.A1, that is, Rs.3 lakhs. 12. So far as the other appeal Ex.F.A.No.6 of 2011 arising from the dismissal of the claim petition presented and prosecuted in the execution proceedings of the decree passed in the suit, in the light of the discussions as above made in R.F.A.No.25 of 2010, it goes without saying that the order passed on the claim petition cannot survive as the decree executed warrants interference. All the same, it has to be noted that the observations made by the court below in considering the merit of the claim petition with respect to the assignment of the property, subject to the lis, by the advocate from his client were not at all called for. The claim petition was mooted, it is seen, after the property attached to satisfy the decree debt was sold, and a petition moved under Order XXI Rule 90 of the Code of Civil Procedure by the judgment debtor, to set aside such sale, had been dismissed. Once the sale of the property was over, in execution of a decree, no claim under Order XXI Rule 58 of the R.F.A.No.25 of 2010 & 17 Ex.F.A.No.6 of 2011 CPC is entertainable, appears to have been not taken note of by the execution court. At best, an application setting forth right, title or interest, if any, over the property sold, provided it is moved prior to the confirmation of the sale, by a third party, other than the judgment debtor or those claiming under him, before the execution court, that claim can be adjudicated as one of resistance or obstruction to possession of immovable property, anticipatory to the delivery, treating such application as one under Order XXI Rule 97 of the CPC. At any rate, there is no question of considering and treating any such application, after sale, as one falling under Order XXI Rule 58 of the CPC. Whatever that be, the appellant in Ex.F.A.No.6 of 2011, who was the applicant before the court below, claimed right over the property as an assignee of the judgment debtor, and that too, under transfer of the property after commencement of the lis, and when that be so, his application, whether it be under Order XXI Rule 58 or Rule 97 of the CPC was, prima facie, not entertainable. Be that as it may, in the light of the conclusion reached that the decree passed by the court below in the suit is liable to be interfered with, and also that the application moved R.F.A.No.25 of 2010 & 18 Ex.F.A.No.6 of 2011 by the appellant in Ex.F.A.No.6 of 2011 was after sale, the decision rendered dismissing the claim petition has to be annulled and the application of the assignee, to be rejected as not entertainable. 13. In the result, the decree of the court below shall stand modified, as allowing the plaintiff to recover only a sum of Rs.3 lakhs with 12% interest per annum from the date of suit till realisation from the 1st defendant, charging such sum on the property covered by Ext.A1 agreement of sale, with proportionate costs before this Court and also the court below. Claim made for subsequent payments on the sale price by the plaintiff is disallowed, and decree passed thereof by the court below shall stand set aside. R.F.A.No.25 of 2010 is partly allowed. Ex.F.A.No.6 of 2011 is disposed of annulling the impugned order passed in the claim petition and also rejecting the claim petition of the appellant as not maintainable. Parties are R.F.A.No.25 of 2010 & 19 Ex.F.A.No.6 of 2011 directed to suffer their respective costs in the appeal, Ex.F.A.No.6 of 2011. THOTTATHIL B. RADHAKRISHNAN JUDGE S.S.SATHEESACHANDRAN JUDGE prp R.F.A.No.25 of 2010 & 20 Ex.F.A.No.6 of 2011