IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 20TH OCTOBER 2011 / 28TH ASWINA 1933 FAO.No. 243 of 2011() --------------------- AGAINST THE ORDER DATED 01/08/2011 IN IA 736/2011 IN OS.22/2011 of ADDL.SUB COURT, PALAKKAD .................... APPELLANT/PETITIONER/PLAINTIFF -------------------------------------------------- AUSTIN BENNAN(WRONGLY SHOWN AS AUSTIN BENNA IN THE ORDER UNDER CHALLENGE)SON OF LATE BENNAN,AGED 47,AYYATHU BUNGLOW,VADAKKUMBHAGOM, KOLLAM PO,KOLLAM DISTRICT. BY ADV. SRI.K.GOPALAKRISHNA KURUP, SENIOR ADVOCATE SRI.PRAKASH P.GEORGE RESPONDENT(S): --------------- 1. MANIKANDAN,AMMANCHERY HOUSE, KUDAPPUZHA DESOM,EAST CHALAKKUDY VILLAGE,MUKUNDAPURAM PO, TRICHUR DISTRICT. 687 633. 2. ANIL KUMAR, S/O. MANI, MAZHUVANPILLY HOUSE,KUDAPPUZHA DESOM, MUKUNDAPURAM PO,EAST CHALAKUDY VILLAGE, THRISSUR DISTRICT. 687 633. 3. D.UNNIKRISHNAN,S/O.LATE DEVENDRAN, VEDIKKARAN HOUSE,CHATHAMPULLY,VENGODI PO, PALAKKAD DISTRICT. 684 643. 4. ABDUL KISHORE,S/O.MUTHALIF, CHUTTIPPARA HOUSE, VENGODI PO,PALAKKAD DISTRICT. 684 643. ADV. SRI.RAJESH SIVARAMANKUTTY THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 20/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- F.A.O. No.243 of 2011 ----------------------------------------------- Dated 20th October, 2011. J U D G M E N T K.M.Joseph, J. The appellant is the plaintiff in a suit for specific performance of Ext.A1 agreement. According to him, an agreement was entered into allegedly between the plaintiff and the defendants 1 and 2 on 5.3.2010 for an amount of Rs.69,00,000/-. He filed an application for injunction to restrain the defendants from alienating the property. Subsequently, defendants 3 and 4 were impleaded. Apparently, on the basis that defendants 1 and 2 entered into sale deeds in respect of the plaint schedule property in favour of defendants 3 and 4, the court below has rejected the application for injunction sought by the appellant to restrain the defendants from alienating the property. The court below inter alia has given the following reasons : Even though the appellant would contend that Ext.B9 agreement dated 20.5.2008 between defendants 1 and 2 and defendants 3 an 4 is a concocted document, there is substantial resemblance in signature with Ext.A1. It is also stated that the extended period in Ext.A1 is 45 FAO 243/11 2 days more from 5.9.2010. But, the suit is preferred more than 45 days from the expiry of the extended period. Specific performance is a discretionary remedy. The appellant has come forward with the suit for enforcing specific performance about 1½ months after the extended period. The sale in favour of defendants 3 and 4 on 5.1.2010 before the suit cannot be stated to be a collusive affair. The sale in favour of respondents 3 and 4 after expiry of the extended period is to be accepted and hence they cannot be injuncted. There is a remedy under Section 19 of the Specific Relief Act. 2. We heard learned senior counsel for the appellant and the learned counsel appearing for respondents 1 to 4. 3. Learned senior counsel for the appellant would contend that actually, there was no agreement entered into between defendants 1 and 2 and defendants 3 and 4 as contended by them, in the year 2008. For probabilising that, he refers to Ext.A2. This is an application given for the purpose of registration. He points out that against the column whether there is any agreement and what is the amount received as FAO 243/11 3 advance, 'Nil' is given. He contends that amounts have been received by defendants 1 and 2 under the agreement from the appellant and further alienation will lead to multiplicity of proceedings. 4. Per contra, learned counsel for the respondents would point out that there is no merit in this application. He supports the order of the court below and contends as follows : He points out that on 5.1.2011, sale deeds have been executed in favour of defendants 3 and 4 by the defendants 1 and 2. There was indeed agreement in 2008. The mere fact that there was no mention about the agreement before the authorities will not at all in any way help the plaintiff as other circumstances will show that there was agreement. He points out the various dates on which the amounts were received. It is pointed out that defendants 1 and 2 had received Rs.5,00,000/- on 20.5.2010, another Rs.5,00,000/- on 19.8.2010, Rs.3,00,000/- on 13.3.2011 and by four cheques dated 3.1.2011, Rs.20,00,000/- was received and further on 5.1.2011, Rs.2,00,000/- was received and the sale deed was executed on FAO 243/11 4 5.1.2011. According to him, the amount for which the sale deed is executed is Rs.35,00,000/-. Thereafter, it is pointed out that defendants 3 and 4 have spent Rs.15,00,000/- for levelling the property into house plots. He further contended that sale deeds have been executed by defendants 3 and 4 in favour of various persons and agreement is also entered with various persons in respect of 1.50 acres and in respect of that 1.50 acres only, the conveyance remains to be executed. He would submit that 1.50 acres is developed into roads and no order should be passed since it will also affect third parties. 5. After having heard learned counsel, we are of the view that in respect of the remaining 1.50 acres which is subject matter of undertaking given by the learned counsel before this court, the undertaking is to be directed to be continued. In fact, learned counsel for the respondents would, after getting instructions, submit that he undertakes that defendants 3 and 4 will not alienate the remaining 1.50 acres which is the subject matter of the written undertaking already filed, till the disposal of the suit. (We record this undertaking). FAO 243/11 5 We direct that the Additional Sub Court, Palakkad will dispose of the suit itself finally on or before the closure of the court for summer vacation, 2012, untrammelled by any observations which are made in the impugned order. The appeal is disposed of as above. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.