IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 2ND JUNE 2010 / 12TH JYAISTHA 1932 AS.No. 318 of 1997() -------------------- OS.33/1990 of SUB COURT, PAYYANNUR .................... APPELLANT(S): PLAINTIFF NO.1: ------------------------------------------------- MELILLOM THEKKE VEETTIL KUNHIKANNAN NAMBIAR, S/O.SANKARAN NAMBIAR, MILITARY PENSIONER, MALAPPATTAM AMSOM CHOOLIYAD DESOM, TALIPARAMBA, KANNUR DT. BY ADV. SRI.K.V.SOHAN RESPONDENT(S): DEFENDANTS AND PLAINTIFFS 2 TO 5: ------------------------------------------------------------------------------------- 1. ALOORKKARAN JOSE, S/O. PALLI, AGRICULTURIST, SREEKANDAPURAM AMSOM KOTTOOR DESOM, TALIPARAMBA TALUK, CANNANORE DT. 2. KANHIRATHUNKAL MARYKUTTY, S/O.GEORGE, ..DO.... 3. KANHIRATHUNKAL OMANA BALARMIN, ..DO... 4. AYANAMKOTTY THEKKE VEETTIL AUGUSTIN BALARMIN,..DO.... 5. MANJERI OTHAYOTH VEETTIL SUMITHRA AMMA, MANAGER, KOTTOOR A.U.P.SCHOOL, MALAPPATTAM AMSOM, CHOOLIYAD DESOM, THALIPARAMBA TALUK, KANNUR DT. 6. BABY SUNITHA (MINOR), 17 YEARS, 7. SUNILKUMAR (MINOR), 11 YEARS, 8. SUCHITHA (MINOR) 7 YEARS, (MINORS 6 TO 8 BY GUARDIAN RESPONDENT NO.5/PLAINTIFF NO.2 MANJERI OTHAYOTH VEETTIL SUMITHRA AMMA) R1 & R2 BY ADV. ABRAHAM MATHEW THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 02/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss HARUN-UL-RASHID,J. ========================= A.S.No.318 OF 1997 ====================== Dated this the 2nd day of June, 2010. JUDGMENT Plaintiff No.1 in O.S.No.33/1990 on the file of the Subordinate Judge's Court, Payyannur is the appellant. The suit was filed for specific performance of the contract entered into between plaintiffs and defendants 1 and 2. The trial court held that the plaintiffs are not entitled to a decree of specific performance of the contract. The suit was decreed in part, plaintiffs are granted a decree for realisation of Rs.25,000/- with interest at the rate of 6% per annum against defendants 1 and 2. Aggrieved by that part of the decree and judgment declining a decree for specific performance of the contract for sale, the first plaintiff preferred the appeal. The parties are hereinafter referred to as the plaintiffs and defendants as arrayed in the suit. 2. The agreement entered into between the parties is dated 11.12.1987 and is marked as Ext.A1. It is not disputed A.S.No.318 OF 1997 2 by the parties that the defendants 1 and 2 agreed to assign the plaint schedule property to the plaintiffs on a consideration of Rs.857.85 per cent and received Rs.25,000/- as advance consideration. The last date fixed for execution of the sale deed was 30.1.1988. After the expiry of the time fixed in Ext.A1, on 5.2.1988, it is alleged that the first defendant received Rs.8,101/- and second defendant received Rs.10,000/- from the plaintiffs and acknowledged the same by endorsing on the reverse side of the agreement. The suit was filed on the allegation that the defendants denied execution of the document and failed to measure the property for the purpose of fixing total consideration for the extent of land. Ext.A2 lawyer notice dated 17.10.1988 was sent to the defendants 1 and 2 requesting to execute the sale deed on receipt of the balance consideration. 3. The defendants 1 and 2 resisted the suit, denied the material plaint averments and prayed for dismissal of the suit. According to the defendants, the plaintiff did not comply with the terms and conditions agreed by the parties, A.S.No.318 OF 1997 3 that since the balance amount was required urgently, the defendants 1 and 2 requested the plaintiff again and again to pay the balance amount and to execute the sale deed, but the plaintiffs were not able to raise the balance sale consideration. In the said circumstances, the defendants were constrained to sell the property to the third parties for lesser consideration and they have assigned the property to the suplementary defendants 3 and 4 and they are in possession of the property. The receipt of Rs.18,101/- and on the endorsement from the reverse side of Ext.A1 are denied by the defendants. The defendants contended that the plaintiffs are not entitled to a decree for specific performance. 4. The first plaintiff was examined as PW1 and another witness as PW2. The first defendant was examined as DW1. Plaintiffs produced Exts.A1 to A5 and defendants produced Ext.B1. Exts.C1 and C2 were marked as court exhibits. 5. The trial court considered the question as to whether the payment of Rs.18,101/- in addition to the advance amount as alleged in the plaint is true. The endorsement A.S.No.318 OF 1997 4 and signature on the reverse side of Ext.A1 regarding receipt of Rs.18,101/- are disputed by the defendants. At the instance of the plaintiffs, the document was sent for expert openion. The disputed signatures in Ext.A1 were marked as Q1 (a) and Q2(a). The disputed signatures were compared with other admitted signatures. The standard signature of the defendants were obtained and sent for comparison. The written statement and vakkalath of the defendants were also sent for comparison. The trial court elaborately discussed the evidence on record including the expert's opinion. The trial court also examined other circumstances which probablise the case of the defendants that the endorsement regarding the receipt of Rs.18,101/- in the agreement was not made by the defendants as alleged by the plaintiffs. The trial court also examined the circumstances under which Ext.A2 notice was signed by the plaintiff. Ext.A2 is dated 17.10.88. The definite case of the defendants is that the plaintiffs failed to pay the balance consideration and to get the document executed in their favour, inspite of repeated requests, defendants, who were A.S.No.318 OF 1997 5 in need of money, were constrained to sell the property to third parties. They also pleaded that they requested the plaintiffs to pay the balance consideration and get the document executed in their favour, but the plaintiffs failed to do so. The trial court examined the facts and circumstances, which were discussed in detail in the judgment, and held that the plaintiffs were defaulted and failed to perform their part of the contract. The trial court also examined the circumstances under which Ext.A2 notice was issued and the subsequent conduct of the plaintiffs. Ext.A1 agreement is dated 11.12.87. The last date fixed for execution of the sale deed expired on 30.1.1988. Ext.A2 lawyer notice was sent only on 17.10.1988. Ext.B1 is a copy of reply notice sent by defendants 1 and 2. It is stated in Ext.B1 that defendants wanted money to construct a house urgently and they sold the property for the purpose. It is also mentioned in Ext.B1 that they have approached the first plaintiff and requested him to pay the balance consideration and get the documents executed. The trial court rightly observed that if the plaintiffs were very much A.S.No.318 OF 1997 6 keen on getting the document executed in their favour they would have taken steps immediately after the expiry of the date fixed in Ext.A1, when defendants 1 and 2 had failed to execute the sale deed in their favour by receiving balance sale consideration. The trial court also observed that Ext.B1 reply clearly shows that defendants had accused the plaintiffs of failure of performance of their part of contract. Inspite of that the plaintiffs did not file a suit for specific performance immediately. The suit was filed after one year and four months i.e., on 3.2.1990. The trial court also found that the plaintiffs were dishonest in their dealings with the defendants. The endorsement made in Ext.A1 that the defendants received Rs.18,000/- subsequesntly was also found to be false. The findings are arrived at on the basis of the evidence on record. The trial court rightly held that the plaintiffs are not entitled to get a decree for specific performance of contract. The trial court decreed the suit in part allowing the pllaintiffs to realise Rs.25,000/- with 6% interest paid by them as advance sale consideration. I have considered elaborately the contentions raised by the A.S.No.318 OF 1997 7 appellant/first plaintiff. I find that the plaintiffs have failed to substantiate their contentions. I have examined the findings and conclusions recorded by the trial court. The findings and conclusions arrived at, are based on the evidence on record and on proper appreciation of facts. I do not find any reason to interefere with the findings entered by the trial court. In the result, appeal fails and accordingly dismissed. No order as to costs. HARUN-UL-RASHID, JUDGE. mns