IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 1ST JULY 2011 / 10TH ASHADHA 1933 RFA.No. 10 of 2009() -------------------- OS.21/2007 of SUB COURT, PALA .................... APPELLANTS/DEFENDANTS ----------------------------------------- 1. JOSEPH.G.VAIPANA, AGED 43, S/O.JOY RESIDING AT VAIPANA HOUSE, ARUNAPURAM.PO, ARUNAPURAM KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK. 2. JAISAMMA JOSEPH, AGED 38,W/O.JOSEPH.G, VAIPANA HOUSE, ARUNAPURAM KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK. BY ADV. SRI.TOM JOSE (PADINJAREKARA) RESPONDENT / DEFENDANT ----------------------------------------- M.S.PAREETH, AGED 39,S/O.SETHI RESIDING AT MADATHIL HOUSE,NADACKAL.P.O,NADACKAL KARA, ERATTUPETTA VILLAGE, MEENACHIL TALUK. ADV. SRI.MATHEW JOHN (K) FOR R1 SRI.AJEESH K.SASI FOR R1 THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 01/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: dmb RFA.No. 10 of 2009 I.A.NOS.92 /2009 & 1509/2011 DISMISSED Sd/- THOTTATHIL B.RADHAKRISHNAN JUDGE Sd/- 01.07.2011 S.S.SATHEESACHANDRAN JUDGE //TRUE COPY// P.A TO JUDGE dmb THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. -------------------------------------------------- R.F.A.No. 10 OF 2009 ----------------------------------------- Dated this the 1st day of July, 2011. J U D G M E N T THOTTATHIL B.RADHAKRISHNAN, J. This appeal is by the defendants in a suit for specific performance of a contract for sale. Ext.A1 dated 27.11.2006, is the alleged agreement for sale. 2. The court below overruled the defendants' contentions that Ext.A1 is a fabricated document and it is one, concocted using blank paper signed and obtained from the defendants in connection with the loan availed by them. Accordingly, the suit was decreed directing performance of the contract. 3. The learned counsel for the appellants argued that Ext.A1 is a fabricated document and be the defendants reside in a building which is constructed in the suit property and that the transaction is essentially one of lending and not a contract for sale. R.F.A.No. 10 OF 2009 2 4. The learned counsel for the respondent argued that even subsequent to the decree, there were transactions touching the property and therefore, the defendants cannot hold out any equity in their favour as against the decree for specific performance. He pointed out that the plea that the agreement is only a security arrangement for the loan transaction can never be sustained having regard to the fact that the reverse of the first page of the agreement shows that there is an endorsement regarding further receipt of money. He pointed out that a bare perusal of Ext.A1 would be sufficient to reject the appellants' case that Ext.A1 is a fabricated document. 5. PW2 and PW3 are witnesses to Ext.A1 agreement. Their versions corroborate the testimony of PW1, the plaintiff. Ext.A1 document is one prepared on a computer. The first sheet printed out on a stamp paper and subsequent sheets otherwise. The reverse of the first sheet also contains an endorsement of further payment. With these materials, there is no reason at all to hold that Ext.A1 is a fabricated document. The court below therefore rightly held that Ext.A1 is proved. R.F.A.No. 10 OF 2009 3 6. We will now examine the question whether on the facts and circumstances, the plea of the defendants that the transaction is one of lending and not a contract of sale, can be sustained. Simultaneously, we will also consider the question whether in the event of the transaction being a contract for sale, how is the discretion to be exercised having regard to Section 20 of the Specific Relief Act. 7. A reading of Ext.A1 will show that the agreement was in relation to 20 cents. The said 20 cents is agreed to be transferred from out of a total extent of 74 cents. This is how the schedule to Ext.A1 is described. The identity of the 20 cents to be carved out of 74 cents is not reflected, on the plain reading of Ext.A1. Accordingly, the plaintiff had not seen the original prior title deed of the defendants. Even according to him, it was with some banker. The suit was instituted on 19.02.2007. Ext.A1 is dated 27.11.2006 and the Ext.A2 encumbrance certificate produced by the plaintiff himself shows that between Ext.A1 and the institution of the suit, there were different transactions touching the property and third party interests had intervened. Having regard to a quality of contract for sale in terms of Section R.F.A.No. 10 OF 2009 4 54 of the T.P. Act, such a contract does not, by itself, create any interest or charge on the property. Therefore, without subsequent title holder of the suit property being on the array, no decree for specific performance could be granted, particularly because, the production of Ext.A2 is itself a material to hold that the plaintiff, as on the date of institution of the suit was aware of such transferees. Even if we look at the rights available to a vendee under Section 55 (6) (b) of the T.P.Act, we could grant a decree only for recovery of money charged on the property covered by the contract for sale. Here, the confusion that arises is regarding the identity of the property. As already noted, Ext.A1 does not give the identity of 20 cents which is agreed to be conveyed out of the 74 cents. Looking at the cross examination of PW1, the plaintiff, we find from his stand is that whatever was agreed to be sold is 20 cents out of 74 cents and that it would have to be measured out and sold to the plaintiff and that this was what the defendants represented to him. In this state of affairs, having particularly regard to the availability of subsequent vendees to the notice of the plaintiff as on suit date, we are unable to grant any decree with charge over the property dealt with in Ext.A1. R.F.A.No. 10 OF 2009 5 8. Even if the case of the defendants is accepted, they cannot avoid a decree for return of the advance covered by Ext.A1, treating it as advance under a failed contract for sale. We are also of the view that the alternative relief sought for by the plaintiff, including interest at 12% per annum, however without any charge on the suit property, would do complete justice between the parties. 9. In the result:- i) This appeal is allowed in part. ii) Impugned decree is set aside. iii) The plaintiff is granted a decree for recovery of Rs.1,75,000/- with interest at the rate of 12% per annum from the date of suit till recovery. iv) The debt under this decree is not a charge on the plaint schedule property. v) The respondent is also granted an order of costs both in the suit and in this appeal. THOTTATHIL B.RADHAKRISHNAN JUDGE. S.S.SATHEESACHANDRAN JUDGE. dmb