IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 13TH JANUARY 2011 / 23RD POUSHA 1932 RSA.No. 282 of 2005(A) ---------------------- AS.4/1999 of III ADDL. DISTRICT COURT, KOLLAM OS.187/1994 of SUB COURT, KOTTARAKKARA .................... APPELLANT/APPELLANT/DEFENDANT: -------------------------------------------------- K.RADHAMONY, W/O. RAJENDRAN, RAJEEV BHAVAN, MATHIRAPPA, ARACKAL, THADIKKAD, KOLLAM. BY ADV. SRI.GEORGE VARGHESE (PERUMPALLIKUTTIYIL) SMT.SREELEKHA PUTHALATH SRI.A.R.DILEEP RESPONDENT(S)/RESPONDENT/PLAINTIFF: ------------------------------------ M.SURESH KUMAR, S/O. MADHAVAN PILLA, KAVADIYIL VEEDU, AEROM, ANCHAL. ADV. SRI.ANCHAL C.VIJAYAN FOR R1 SMT.MINI.S.DAS FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03/01/2011, THE COURT ON 13/01/2011 DELIVERED THE FOLLOWING: ORDER ON I.A.NO.1694/2008 IN R.S.A.NO.282/2005 DISMISSED. 13.01.2011 SD/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- R.S.A.NO.282 OF 2005 ----------------------------------- Dated this the 13th day of January, 2011 J U D G M E N T The defendant is the appellant. Concurrent decision rendered by the two courts below decreeing a suit for specific performance of an agreement of sale in favour of the respondent/plaintiff and a perpetual prohibitory injunction restraining the defendant from alienating the plaint property, or causing any encumbrances thereon or from committing any waste, is challenged in this appeal. 2. Suit property covered by Ext.A2 agreement of sale has an extent of four cents of land comprising a residential building under the occupation of the appellant/defendant. Sale price of Rs.50,000/- was mutually agreed upon by the parties for sale of the above property in favour of the plaintiff and Ext.A2 agreement of sale was executed, by which, a sum of Rs.40,000/- R.S.A.NO.282/2005 2 by way of a cheque was paid as part of the purchase price to the defendant with the balance amount of Rs.10,000/- agreed to be paid within a period of 45 days on registration of the sale deed in his favour, was the case of the plaintiff. Alleging breach of contract and also of evading the registered notice issued demanding registration of the deed by the defendant, the plaintiff laid the suit for specific performance of the agreement. The defendant denied the execution of Ext.A2 agreement contending that she had no dealings whatsoever with the plaintiff. No amount was received by way of cheque or otherwise from the plaintiff and the suit had been filed at the instance of the tenant in occupation of the shop building in the property, against whom she had moved for eviction, after fabricating and forging an agreement of sale, was the defence canvassed by the defendant to resist the suit claim. On the materials placed, which consisted the evidence of PWs.1 to 4 and Exts.A1 to A5 for the plaintiff, DWs.1 to 4 and Exts.B1 to B4 for the defendant and Exts.X1 cheque summoned from the bank, the trial court found the case of the plaintiff true with respect to the genuineness of Ext.A2 agreement of sale, receipt of part consideration R.S.A.NO.282/2005 3 thereunder and also the entitlement of the plaintiff for the discretionary relief for specific performance of that agreement. Negativing the challenges raised by the defendant, the suit was decreed directing the plaintiff to deposit the balance sale consideration of Rs.10,000/- within one month, and on such deposit, for registration of the sale deed by the defendant. A decree of injunction was also passed restraining the defendant from alienating the plaint property or causing any encumbrances or committing any waste. Appeal preferred by the defendant impeaching the correctness of the decree passed by the trial court as aforesaid, after re-appreciating the materials tendered in the case, was turned down by the lower appellate court. Finding entered by the trial court as to the genuineness of Ext.A2 agreement, receipt of consideration and also the entitlement of the plaintiff for the equitable relief canvassed in the suit was confirmed by that court after re-appreciating the materials on record. Feeling aggrieved, the defendant has preferred this second appeal. 3. Substantial questions of law formulated for hearing the R.S.A.NO.282/2005 4 appeal are (i) Whether the courts below have wrongly cast the burden on the defendant with respect to the genuineness of Ext.A2 agreement of sale and also encashment of Ext.X1 cheque, both of which had been denied by her and also (ii) Whether the conclusion formed on the materials placed upholding the claim of the plaintiff for the reliefs canvassed had been made by the courts below without sufficient proof establishing the genuineness of Ext.A2 agreement but merely forming an opinion as to such genuineness only on comparison made by such courts with the signature of the defendant appearing on other materials produced in the case ? 4. The evidence on behalf of the plaintiff to prove execution of Ext.A2 agreement was let in by his power of attorney, who is not shown as a witness in the above agreement is highlighted by the learned counsel for the appellant to contend that the power of attorney so examined as PW1 was incompetent to speak on the acts done by his principal and also what transpired with respect to the transaction covered by the agreement of sale. Relying on Janaki Vashdeo v. Indusind R.S.A.NO.282/2005 5 Bank (2005 (2) KLT 265 (SC)), it is contended by the counsel that the power of attorney holder cannot depose for his principal in respect of matters which the principal alone had personal knowledge and in respect of which an opportunity was required to be extended to the opposite party for cross examination of the principal. Non-examination of the plaintiff as a witness in the case to sustain the claim of the decree of specific performance is vital when very execution of Ext.A2 agreement and receipt of consideration thereunder by way of a cheque had been denied by the defendant is the submission of the counsel. It is further pointed out that even according to PW1, the power of attorney of the plaintiff, the execution of Ext.A2 agreement at the document writer's office was at 4 p.m., and thereafter, the cheque handed over to the defendant was encashed at the bank on the same day. There was no possibility of the cheque being transacted through bank on the date of execution of Ext.A2 agreement, which was completed only at 4 p.m. in the evening, and that is a material circumstance discrediting the version of PW1, indicating that Ext.A2 agreement is a forged document as contended by the defendant, according to the counsel. The R.S.A.NO.282/2005 6 evidence let in through PW2, the bank manager, and PWs.3 and 4, the former a witness to Ext.A2 agreement and the latter scribe of that document, it is submitted by the counsel, does not satisfactorily prove that Ext.A2 agreement had been executed by the defendant. When there was inadequate evidence to prove the genuineness of Ext.A2 agreement, both the courts went wrong in comparing the signatures in Ext.A2 with those of the defendant in her vakalath, written statement and on the reverse side of Ext.X1 cheque to form a conclusion that she had executed such agreement and received Ext.X1 cheque, is the further submissin of the counsel. Finding entered by the courts below on the genuineness of Ext.A2 agreement suffered from serious legal infirmity, which has caused grave prejudice to the defendant, and, her defence challenging the document as forged has not been properly appreciated, is the submission of the counsel to impeach the correctness of the decree passed in favour of the respondent. There was also failure on the part of both the courts, according to the counsel, in exercising the discretion over the grant of equitable relief for specific performance of the agreement. Pointing out that the courts can R.S.A.NO.282/2005 7 exercise the discretion not to grant specific performance of the contract even if it is found lawful, it is submitted that the defendant is having only four cents of property with the building, the subject matter covered by the agreement, and she would be thrown out to the street if a decree granted in favour of the respondent is retained. The learned counsel contended that the circumstance as aforesaid though highlighted was not taken note of and there was failure of jurisdiction by the courts below as they had improperly exercised the discretion in decreeing the suit flouting the mandate under Section 20 of the Specific Relief Act, 1963. 5. Per contra, the learned counsel for the respondent/plaintiff contended that there is absolutely no merit in any of the challenges canvassed by the appellant/defendant, and the findings entered concurrently by the courts below based on the materials produced to grant the decree in favour of the plaintiff are unassailable. PW1, the power of attorney holder was present when Ext.A2 agreement of sale was executed and Exts.X1 cheque was handed over to the defendant, is proved by R.S.A.NO.282/2005 8 his evidence, which has been accepted as trustworthy by both the courts, and so much so, the non-examination of the plaintiff but only his power of attorney as PW1, is immaterial and has no consequence is the submission of the counsel. Defendant had even denied her signature in her vakalath and written statement filed in the case when she had been confronted with such documents during her cross examination as DW1, is a telling circumstance indicating that her denial of Ext.A2 agreement was unworthy of any merit, submits the counsel. It is further submitted that the time factor stated by PW1 as to when Ext.A2 agreement was completed at the document writer's office has no material value since a cheque could be transacted even in evening hours if the collecting bank had an evening counter. As nothing more had been shown that there could not have been such a transaction enabling the encashment of cheque on the same day, according to the counsel, the circumstance pointed out with reference to the time of completion of Ext.A2 agreement does not cast any doubt over its genuineness. Ext.A2 agreement had been proved by the evidence of the witnesses to the document, PW3 and also PW4, the scribe to the document. The R.S.A.NO.282/2005 9 conduct of the defendant in denying Ext.A2 agreement after encashing Ext.X1 cheque received towards part of the sale price and also setting forth false and untenable contentions to evade from performing the contract entered into, according to the counsel, disentitle her in seeking the exercise of discretion for any equitable relief from the court to avoid the specific performance of the agreement. The decree granted in favour of the plaintiff directing specific performance of Ext.A2 agreement, which is fully supported by the materials tendered in the case, according to the counsel, deserves only to be upheld, dismissing the appeal. 6. There is no merit in the challenge raised by the appellant's counsel that the power of attorney of the plaintiff, PW1, was incompetent to speak on the genuineness of Ext.A2 agreement of sale, execution of which had been denied. The assertion of that witness that he was present when the defendant executed Ext.A2 agreement was found credible and convincing to the trial court, which itself is sufficient to hold not only that he had witnessed the execution, but he had direct knowledge of the R.S.A.NO.282/2005 10 whole transaction as well. Reliance placed on Janaki Vashdeo's case (cited supra) to impeach the competency of PW1, the power of attorney of the plaintiff, to assail his evidence and also the merit of the plaintiff's claim for specific performance has no basis or value at all. Similarly, nothing turns out from the statement of PW1 that execution of Ext.A2 agreement was at 4 p.m., the date on which Ext.X1 cheque was encashed. Whether Ext.X1 cheque had been encashed by the defendant and Ext.A2 agreement was executed by her, no doubt, required to be examined with reference to the materials tendered in the case as a whole and not on a solitary circumstance over the time of completion of Ext.A2 agreement as stated by PW1, where the execution of the agreement itself had been denied by the defendant. She had denied even her signature in her vakalath and written statement when confronted with such documents during the course of her examination before the court is a telltale circumstance indicating that she has no regard for truth. Both the courts below, after having a comparison of the signatures appearing in Ext.A2 agreement and Ext.X1 cheque with the admitted signatures of the defendant, on the materials R.S.A.NO.282/2005 11 placed before the court, have come to the conclusion that the denial of execution of Ext.A2 agreement by the defendant is unacceptable. In the context, it is also to be noted that PW3, who is a witness to Ext.A2 agreement was then working as a Village officer. True, there is some discrepancy in his evidence as to whether he had witnessed the execution of Ext.A2 agreement, the defendant subscribing her signature in that instrument. However, his version that when he signed as a witness in the instrument, the plaintiff and defendant were present with him in the document writer's office remained unimpeached, and in fact, nothing has been brought out from the witness to show that a witness, a public servant, had any animus or ill will against the defendant to perjure against her in a court of law. PW4, the scribe, who was also a witness to the document, has spoken to the presence of the plaintiff though not of witnessing the execution of the document by the defendant. PWs.3 and 4 have not witnessed the subscribing of the signature in Ext.A2 agreement by the defendant, is not a circumstance to disbelieve the rest of their evidence, which would indicate the presence of the plaintiff with the defendant at the document R.S.A.NO.282/2005 12 writer's office and also the execution of Ext.A2 agreement of sale. Notice issued to the plaintiff before filing of the suit, it is seen, was returned unclaimed with no explanation whatsoever from the defendant for its return when it had been sent in her correct address. The defence canvassed by her that a tenant in occupation of the shop room, one Thankappan, who was directed to surrender vacant possession of the premises, was instrumental in fabricating the agreement of sale and filing of the present suit by the plaintiff evidently was a story invented to wriggle out of the agreement and avoid the performance of the contract. The courts below went wrong in upholding the genuineness of Ext.A2 agreement after comparison of the signatures of the defendant with the materials on record and it should have sought for the opinion of an expert to reach a conclusion thereof, which had been canvassed to assail the finding entered to negative the challenge of the defendant disputing Ext.A2 agreement, is devoid of any merit. Nothing prevents the court from forming an opinion after comparing the writings and signatures over a disputed document with the admitted writings and signatures of the party R.S.A.NO.282/2005 13 concerned. On that basis alone, true, it may not be proper to conclude that the document is genuine. But if other circumstances established in the case enable the court to hold that the challenge put up against the genuineness of the agreement is meritless it can rely upon the opinion formed after comparing of the signatures in the disputed documents with other admitted signatures if they are found to be similar, as an added factor to conclude that the instrument is genuine. It cannot express any opinion thereof without the assistance of an expert is incorrect as the law does not insist for expert opinion to enable the court to enter a finding on such a disputed question. Last of all, the submission of the counsel for the appellant that both the courts below have gone wrong in exercising the discretion in granting a decree of specific performance where the defendant has only the property covered by the suit, in the given facts of the case, is unappealing. In examining the exercise of discretion in favour of one or the other party in a suit for specific performance, who was at fault for the breach of contract, and what, if any, is the extenuating circumstance for such fault, and even if that is absent, what are the equitable R.S.A.NO.282/2005 14 considerations to be followed in the proved facts, all play a decisive role. The defendant had denied even the execution of Ext.A2 agreement and also encashment of Ext.X1 cheque to resist the claim for specific performance and that plea has been shown to be false in the proved facts of the case, is a material circumstance which cannot be ignored in examining whether any discretion has to be exercised in her favour to avoid the performance of the contract. As indicated earlier, she has even denied her signature in the written statement and also her vakalath to sustain her false plea that Ext.A2 agreement was not executed and Ext.X1 cheque was not encashed by her. When such be the case, this was not a fit case where exercise of any discretion in favour of the defendant relieving her from performing the contract covered by Ext.A2 agreement of sale arose for consideration. The above aspect had not been considered specifically by the lower appellate court, in the given facts of the case, does not assume any significance. At any rate, defendant is not entitled to seek any discretion in her favour under Section 20 of the Specific Performance Act to evade from performance of the contract under Ext.A2 agreement. R.S.A.NO.282/2005 15 There is no merit in the appeal, and the appeal is dismissed directing both sides to suffer their respective costs. S.S.SATHEESACHANDRAN JUDGE prp R.S.A.NO.282/2005 16