IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 14TH AUGUST 2009 / 23RD SRAVANA 1931 AS.No. 644 of 1997() -------------------- OS.24/1989 of SUB COURT, CHERTHALA .................... APPELLANT(S):PLAINTIFF -------------- GIRIJA DEVI, D/O. KAMALAKSHY AMMA, SREE VIHAR, ULLALA, THALAYAZHAM VILLAGE, VAIKOM. BY ADV. SRI.V.SIVASWAMY SRI.V.V.ASOKAN SRI SAJI KUMAR. RESPONDENT(S): RESPONDENT --------------- V.K.PURUSHOTHAMAN, S/O. KRISHNAN, VELIYIL, CHARAMANGALAM MURI, THANNEERMUKKAM SOUTH VILLAGE, CHERTHALA. THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 14/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q. BARKATH ALI, J. -------------------------------------- A.S.644 of 1997 -------------------------------------- Dated: AUGUST 14, 2009 JUDGMENT The challenge in this appeal by the plaintiff is to the judgment and decree of the Sub Court, Cherthala in O.S.24/1989 granting a decree for repayment of the advance amount paid in a suit for specific performance of an agreement for sale in so far as the lower court did not grant a decree for specific performance . 2. Though notice was served on the respondent/defendant, he remained absent. 3. The case of the appellant/plaintiff as testified by PW.1 before the lower court was that the defendant agreed to sell his plaint schedule property to the plaintiff for a sale consideration of Rs.30,000/- and executed an agreement for sale Ext.A1 dated January 28, 1987 after receipt of the advance amount of Rs.20,000/-, that the initial period fixed under Ext.A1 was six months after payment of balance consideration and that at the request of the defendant, the time was extended up to March 31, 1988 which the defendant had endorsed on the agreement and that the period was further extended for a further period of six A.S.644 of 1997 2 months, that Exts.A1(a) and A1(b) are the said endorsements and that in spite of the issuance of notice Ext.A2 dated January 9, 1989 the defendant did not execute the sale deed. 4. The defendant in his written statement and as DW.1 contended that he did not execute the agreement for sale Ext.A1 in favour of the appellant/plaintiff, that the husband of the appellant/plaintiff was an Assistant Executive Engineer of the Kerala State Water Authority, that the brother of the respondent/defendant was a contractor, that the respondent/defendant and his brother approached the husband of the appellant/plaintiff and borrowed some amount for which he obtained some signed blank stamp papers from the defendant, his brother and mother, and that using the said stamp papers the appellant/plaintiff has created Ext.A1. 5. On the side of the appellant/plaintiff PW.1 was examined and Exts.A1 to A3 were marked before the lower court. The defendant examined Dws.1 and 2 and produced Exts.B1 to B3(b) and Ext.X1. The learned Sub Judge on an appreciation of evidence found that Ext.A1 was executed by the defendant and that he had received an advance of Rs.20,000/- from the A.S.644 of 1997 3 appellant/plaintiff, but found that the husband of the appellant/plaintiff is a Government employee, that Ext.A1 agreement is against the provisions of Government Servants' Conduct Rules and granted a decree for recovery of the advance amount of Rs.20,000/- without any interest or costs. The appellant/plaintiff has come up in appeal challenging the said judgment and decree. 6. Sri Saji Kumar, learned counsel appearing for the appellant, mainly argued that the defendant has not raised a contention before the lower court to the effect that Ext.A1 agreement was against the provisions of the Government Servants' Conduct Rules, and as the lower court has found the execution of Ext.A1 to be genuine, the lower court should have granted a decree for specific performance of the agreement for sale Ext.A1. 7. The main question which arises for consideration in this appeal is whether the lower court is justified in holding that Ext.A1 agreement for sale was against the provisions of the Government Servants' Conduct Rules and in granting a decree for recovery of the advance amount paid. A.S.644 of 1997 4 8. The first question which arises for consideration is whether Ext.A1 agreement for sale was executed by the respondent/defendant and whether he had received an advance of Rs.20,000/-. PW.1, the plaintiff, testified in terms of the plaint. I have gone through the evidence of PW.1 on this aspect. I find that no serious discrepancies were brought out during her cross-examination. Her evidence is fully supported by DW.2, her husband who was examined on the side of the respondent/defendant. The evidence of PW.1 and DW.2 clearly establish the execution of agreement for sale, Ext.A1, by the respondent/defendant and receipt of the advance amount of Rs.20,000/-. Therefore I confirm the finding of the lower court that Ext.A1 agreement for sale was executed by the respondent/defendant and that he had received an advance amount of Rs.20,000/-. 9. The lower court has discussed in detail regarding the Government Servants' Conduct Rules and found that the agreement Ext.A1 was executed against the provisions of the Government Servants' Conduct Rules. But no such contention was raised by the respondent/defendant before the lower court. A.S.644 of 1997 5 That apart, the appellant/plaintiff as well as the defendant are not Government servants. Therefore the provisions of the Government Servants' Conduct Rules do not apply to the transaction between the plaintiff and the defendant. That being so, the finding of the lower court that Ext.A1 was against the provisions of the Government Servants' Conduct Rules has to be set aside. It follows that the appellant/plaintiff is entitled to a decree for specific performance of the agreement for sale Ext.A1. But the suit is of the year 1989. After a lapse of more than twenty years I feel that it will not be proper to grant a decree for specific performance in this case. Further, I feel that a decree for specific performance would give the appellant/plaintiff an unfair advantage over the respondent/defendant. Therefore I feel that the decree for return of the advance amount will be proper in this case. The lower court has already granted a decree for return of the advance amount, but did not grant any interest or costs which appears to be unreasonable. In the result, the appeal is allowed with costs throughout. The decree granted by the lower court is modified to the effect that the appellant/plaintiff is granted a decree for recovery of A.S.644 of 1997 6 Rs.20,000/- from the respondent/defendant personally and out of his assets with interest at the rate of 12% per annum from the date of agreement till the date of decree and future interest at the rate of 9% per annum from the date of decree till realisation. The respondent/defendant shall either pay the amount direct to the plaintiff or deposit the same before the lower court within one month from this date, failing which the appellant/plaintiff is entitled to interest at the rate of 15% per annum from the date of decree till realisation. P.Q. BARKATH ALI, JUDGE mt/- A.S.644 of 1997 7