IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 28TH OCTOBER 2011 / 6TH KARTHIKA 1933 AS.No. 674 of 2001(C) --------------------- OS.346/1995 of PRL.SUB COURT,THRISSUR .................... APPELLANT/PLAINTIFF: ----------------------------------- ELIAS, AGED 55 FRUIT BUSINESS S/O.MANITHOTTAM CHANDI HOUSE NO.XIII/297, CHIYYARAM VILLAGE DESOM, THRISSUR TALUK BY ADV. SRI.PIRAPPANCODE V.SREEDHARAN NAIR SRI.S.P.ARAVINDAKSHAN PILLAY SRI.PIRAPPANCODE V.S.SUDHIR SRI.V.VARGHESE RESPONDENTS/DEFENDANTS 1 & 2: ---------------------------------------------------- 1. SHANMUGHA RAJAN, S/O.PERULAMA NADARAJAN GURUVAYOOR AMSOM, DESOM CHAVAKKAD TALUK, REP BY HIS MUKTHIAR AGENT HIS SISTER, DHANALAKSHMI, AGED 30 W/O.KUNNATH PARAMBIL K SURENDRAN CHIYYARAM VILLAGE DESOM THRISSUR TALUK 2. SHANMUGHA RAJAN, AGED 32 WORKING IN GULT S/O.PERUMALA NADARAJAN, GURUVAYOOR AMSOM DESOM, CHAVAKKAD TALUK ADV. SRI.GEORGE THOMAS (MEVADA) FOR R1 & R2 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 28.10.2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- AS No.674 of 2001-C ------------------------------------- Dated this the 28th day of October 2011 Judgment The plaintiff, who was non-suited by the court below in OS No.346/95 is the appellant. 2. By Ext.A1 dated 11.12.1991, the plaintiff entered into an agreement for sale of 5 cents of property with a building thereon with the first defendant on behalf of the second defendant for a total consideration of Rs.65,000/-. Rs.15,000/- was paid on the date of agreement itself. The time fixed for the completion of the transaction was on or before 15.01.1992. The plaintiff would say that on 13.01.1992, when he enquired, it was found that power of attorney has not been received by the first defendant from the second defendant and therefore, time was extended till 15.03.1992. He claims to have paid Rs.35,000/- on 16.03.1992 and when he required the first defendant to execute the sale deed, he was given to AS 674/01 2 understand that that can be done only after the 2nd defendant returns from the Middle East and three years' more time was given to him for completion of the transaction. When the defendants issued Ext.A4 notice and it was received by him, he approached the first defendant and the first defendant expressed his inability to execute the deed since the second defendant had not yet returned from the Middle East. Ultimately, he sent Ext.A5 notice calling upon the defendants to execute the sale deed after receiving the balance sale consideration. That was not heeded to and that necessitated the suit. 3. The defendants resisted the suit. It was pointed out that the plaintiff was in breach of the agreement for sale and he was not entitled to get specific performance of the contract. The receipt of Rs.50,000/- was admitted i.e, Rs.15,000/- on 11.12.1991 and Rs.35,000/- on 10.05.1994. But the claim made by the plaintiff that there was extension of the period for completion of the transaction by three years was specifically denied by the AS 674/01 3 defendants. It is also pointed out that when the plaintiff did not respond after the request made by the first defendant to pay the balance sale consideration and have the sale deed executed, they issued Ext.A4 notice. The plaintiff did not respond to that notice though he received the same. It is pointed out by the defendants that they were always ready and willing to perform their part of the contract and had informed the same to the plaintiff. On several occasions, it was the plaintiff who was not willing to pay the balance amount due under Ext,A1 and that is the reason for non-performance of the contract. They also contended that when the plaintiff paid Rs.35,000/- on 16.03.1992, he prayed for a month's time to pay the balance amount and when he sought to reside in the property on that basis, permission was granted to him to reside there. That is how he came into possession of the property. According to the defendants, it was the plaintiff who had failed to honour his part of the contract and he is not entitled to any reliefs in the suit. AS 674/01 4 4. On the above pleadings, issues were raised by the trial court. Evidence consists of the testimony of PWs 1 to 3 and documents marked as Exts.A1 to A11 from the side of the plaintiff. The defendants had DW1 examined. 5. The trial court, on an analysis of the evidence in the case came to the conclusion that the story of extension by three years put forward by the plaintiff was not established and came to the conclusion that the plaintiff had committed breach of the agreement for sale and therefore, he is not entitled to the relief of specific performance of the contract. However, the court below found that the first defendant, who had received Rs.15,000/- from the plaintiff was bound to return the same and accordingly a decree was passed declining specific performance of the contract, but directing the defendants to return the amount of Rs.15,000/- received by him. It is the said judgment and decree that are assailed in this appeal. AS 674/01 5 6. The only question that arises for consideration in this appeal is whether the finding of the court below that it was the plaintiff who was in breach of the agreement for sale, is justified by the evidence on record. 7. The learned counsel for the appellant pointed out that the court below was not justified in coming to the conclusion that it was the plaintiff who had committed breach of the agreement for sale. The court below has omitted to notice that the plaintiff had paid a major portion of the sale consideration and he was put in possession of the property in pursuance of the agreement for sale and if that be so, he is entitled to protection under Section 53A of the Transfer of Property Act. It was also contended that having paid a major portion of the sale consideration, it is highly improbable that he would have kept evading the payment of the balance amount and take a sale deed from the defendants when the balance amount was only Rs.15,000/-. The evidence of PWs 2 and 3, according to the learned counsel, corroborates the evidence of the AS 674/01 6 plaintiff as PW1 which would show that the extension as alleged was, in fact, given by the defendants. According to the learned counsel, the lower court was carried away by the fact that there was no reply sent to Ext.A4 even though an explanation had been offered by the plaintiff with regard to the same. At any rate, the learned counsel pointed out that the court below ought not to have discarded the unimpeached evidence of PWs 1 to 3 and ought to have decreed the suit as prayed for. 8. The learned counsel for the respondents, on the other hand, contended that the court below has analysed the evidence meticulously and has found that the claim put forward by the plaintiff is untrue. Referring to the evidence of PWs 1 and 2, the learned counsel pointed out that the evidence of PW2 is of little help to the plaintiff regarding the extension of time since a reading of the evidence of PW2 shows that he has only hearsay knowledge about the same. The learned counsel also pointed out that the story put forward by the plaintiff that the AS 674/01 7 sale deed could not be executed because the second defendant was abroad also cannot be believed because in Ext.A1 itself, it is clearly stated that the sale deed would be executed by the first defendant on obtaining power of attorney from the second defendant. The power of attorney was obtained in 1992 itself, but thereafter also, the first defendant did not take any steps for execution of the sale deed. It was under these circumstances that Ext.A4 notice was issued and there was no response from the side of the plaintiff. He says that Ext.A5 notice was issued without any basis and then comes forward with the present suit. The learned counsel pointed out that the court below has come to a definite conclusion that it was due to the laches on the part of the plaintiff that the agreement had fallen through and therefore, the plaintiff is not entitled to any reliefs. 9. Certain facts are admitted. Ext.A1 is an admitted document. It is also admitted by the defendants that on 11.12.1991, an amount of Rs.15,000/- was received. The date of execution of the sale deed was on or AS 674/01 8 before 15.01.1992. It is admitted that by that time, the first defendant was unable to get the power of attorney from the second defendant and they negotiated for extension of the time for execution of the sale deed and accordingly, time was extended till 15.03.1992. Till 15.03.1992, the plaintiff did not approach the defendants at all for execution of the sale deed. On 16.03.1992, the plaintiff went over to the first defendant and paid Rs.35,000/- which was received by the first defendant. These are evidenced by the endorsements on Ext.A1 itself marked as Exts.A1(a) and A1(b). But, one significant factor has to be noticed here. While under Ext.A1(a), the period of extension is specifically mentioned whereas such an endorsement is conspicuously absent in Ext.A1(b). The plaintiff has a case that on that day, after receiving the amount of Rs.35,000/-, he was informed that till the second defendant comes from the Middle East, it will not be possible to execute the sale deed and had sought extension of the period by three years. In order to establish the said claim of extension, the plaintiff heavily relied on the AS 674/01 9 evidence of PW2. Of course, PW1, the plaintiff does say about the extension which can be considered only as a self interested testimony. PW2 says that he had witnessed the two payments made on two occasions, but he says that he was not present when the extension was granted and about that, he has only hearsay evidence. He is a witness to the payment made on 16.03.1992. But, his evidence is to the effect that on that day, he had no occasion to hear about the extension of time and he came to know about it later on. If that be so, the evidence of PW2 cannot come to the aid of the plaintiff and the story of extension of the period from 1992 onwards for three years is unsubstantiated. 10. It is significant to notice that the first defendant had caused to issue Ext.A4 notice dated 18.08.1992, calling upon the plaintiff to pay the balance sale consideration within ten days of receipt of notice even though time had already run out. Admittedly, no written reply is seen sent. The version given by the plaintiff is that AS 674/01 10 he had approached the first defendant on several occasions and he dragged on the execution of the sale deed under one pretext or the other. 11. Except for the self interested testimony of PW1, there is no evidence in this regard to show that what the plaintiff claims is true. Of course, for this, the plaintiff seeks to rely on the evidence of PW3. He only says about the difference of opinion between the parties and the mediation brought about. He is given to understand that there was an extension of the period for execution of the sale deed. His evidence is also of little aid to the plaintiff. 12. As rightly pointed out by the learned counsel for the appellant, it is difficult to believe that after paying an amount of Rs.35,000/-, an extension was sought for by three years for execution of the document. The reasoning given by the plaintiff for doing so is also not convincing and acceptable. The reason is that in Ext.A1 itself, it is very clearly stated that the sale deed is to be executed by the first defendant on obtaining a power of attorney from the AS 674/01 11 second defendant. There was no condition in Ext.A1 either that the sale deed had to be executed by the second defendant himself and that the plaintiff will not be satisfied with the sale deed executed by the power of attorney of the second defendant. It is an admitted fact that power of attorney was received in 1992 itself. If that be the position, as rightly noticed by the lower court, this explanation offered by the plaintiff for the extension obviously cannot be accepted. However, the fact remains that the plaintiff is in possession of the property. He would say that when Rs.35,000/- was paid on 16.03.1992, he was put in possession of the property in pursuance of the agreement. 13. The first defendant has another story to say. He would say that when the payment of Rs.35,000/- was made on 16.03.1992, the plaintiff wanted one month's time for payment of the balance amount and he sought permission to occupy the building and in all bona fides, he was allowed to occupy the premises. That is how he had come into possession of the property. It seems to be a AS 674/01 12 possible explanation. 14. The plaintiff has a case that after receiving Ext.A4 notice, when he went with the balance amount to the second defendant for executing the sale deed, he refused to receive the amount and wanted higher amount. In the plaint, what is stated is that he wanted Rs.15,000/- more i.e., Rs.30,000/- as the balance amount due. While at the time of giving evidence, his case is that the demand was for Rs.50,000/-. It could thus be seen that he has no consistent case at all. The court below has adverted to in detail and has found that the plaintiff is guilty of breach of the agreement for sale. The court below has considered the applicability of Section 53A also and has come to the conclusion that it cannot come to the aid of the plaintiff for the simple reason that the evidence clearly establishes that there was nothing to show that he was ready and willing to perform his part of the agreement. On going through the evidence on record, there is no reason to take a different view from the one taken by the lower court. The lower court AS 674/01 13 are fully justified in declining to grant a decree for specific performance and in directing return of advance amount received by the defendants. The appeal is without any merits and it is accordingly dismissed. However, this will not prejudice the plaintiff from raising his contentions in a suit said to have been filed by the defendants herein for recovery of possession on the strength of title, if it is permissible in law. No order as to costs. P.Bhavadasan, Judge sta AS 674/01 14