IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 9TH JUNE 2010 / 19TH JYAISTHA 1932 AS.NO. 120 OF 1996() -------------------- {OS..293/1992 OF THE PRINCIPAL SUB COURT, NORTH PARAVUR} .................... APPELLANT(S)/PLAINTIFF: -------------------------------------------- POULOSE, S/O. KUNJU VAREED, THACHEPPILLY, NEDUVANOOR KARA, CHENGAMANADU VILAGE, ALUVA TALUK. BY ADV. SEI N.K.MOHANLAL RESPONDENT(S)/DEFENDANTS: --------------------------------------------------- 1. VARKEY, S/O.LONNPPAN, KOLENCHERRY, EDANAD DESOM,, CHOWARA VILLAGE, ALUVA TALUK. 2. KUTTY @ ELIA, DO. DO. 3. JOY DO. DO. 4. BABY, DO. DO. BY ADV. SRI.SIBY MATHEW & SRI.WILSON URMESE THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 07/06/2010, THE COURT ON 09/06/2010 DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. --------------------------------------- A.S.No.120 of 1996 --------------------------------------- Dated this the 9th day of June, 2010 JUDGMENT S.S.SATHEESACHANDRAN, J. Plaintiff is the appellant. His suit for specific performance of an agreement of sale, after trial, was dismissed by the learned Sub Judge, North Parur. The plaintiff alleged that Ext.A1 agreement of sale was executed by the defendants agreeing to convey the plaint property in his favour for a sale price of Rs.1,14,450/-. The entire sale price was paid on the date of execution of Ext.A1, but the registration of the sale deed was postponed for a period of four months, on the request of the defendants since they required such time to discharge the debts due to various creditors and, thus, to avoid attachment over their property. Since breach of the contract was committed by the defendants, after issuing a notice which was responded with A.S.No.120 of 1996 :: 2 :: a reply, according to the plaintiff, with untenable contentions, the suit was laid seeking the relief of specific performance of agreement and, in the alternative, for recovery of the amount paid with 18% interest from the defendants and their assets. 2. The defendants, all of them together, filed a joint written statement, resisting the suit claim setting forth a case that Ext.A1 agreement was obtained from them by force and fraudulent means. It was contended that the parties are close relatives. The plaintiff has married the sister of the 2nd defendant, the wife of the 1st defendant, and the others (defendants 3 and 4), are the children of defendants 1 and 2. According to the defendants, there was a joint business venture of operating a bus service by the 3rd defendant and the son of the plaintiff, which, however, was discontinued, as the venture had resulted in loss. After having caused the seizure of the bus by the police and while it was detained at the police station, the plaintiff, his son and their close relatives, exercising threat and A.S.No.120 of 1996 :: 3 :: coercion upon the defendants, got Ext.A1 deed from them and an agreement of sale was created imputing that the 3rd defendant owed substantial sum to the son of the plaintiff, in the joint business - the bus service - conducted by them. The defendants further contended that no sale consideration, as stated in the deed, was paid to them, and also that there was no agreement for sale of the property. Impeaching Ext.A1 agreement as an unconscionable transaction, the defendants urged for dismissal of the suit. 3. The court below, on the materials placed and after hearing the counsel on both sides, found credence in the defence taken by the defendants that Ext.A1 agreement, on which the suit claim was based, was the product of an unconscionable transaction and it had been so taken from the defendants to discharge the liability allegedly due from the 3rd defendant to the son of the plaintiff, arising out of the operation of the bus service jointly conducted by them. A.S.No.120 of 1996 :: 4 :: 4. After hearing the counsel on both sides in extenso and re-appreciating the materials on record, we find no reason to take a different conclusion than the one arrived at by the court below that the suit claim for enforcement of Ext.A1 agreement of sale is bereft of any bona fides and unworthy of any merit. 5. Plaintiff examined as PW.1 asserted in his chief examination that Ext.A1 was not executed for discharge of any liability. However, the son of the plaintiff, who was examined by the defendants as DW.2 and treated as hostile, unequivocally admitted that a sum of Rs.1,14,500/-, which, in fact, is shown as the sale price in Ext.A1, was due from the 1st defendant as a loan taken from him. That loan was taken by the 1st defendant in 1989 and towards discharge of that loan, according to DW.2, the 1st defendant transferred his property in favour of his father. When questioned further, DW.2 admitted that the discharge of the debt was by way of an agreement of sale. He also admitted A.S.No.120 of 1996 :: 5 :: that Ext.A1 agreement was taken from the defendants as the security for the amount of the loan, which was not discharged on demand. The definite case canvassed by the defendants that all of them had gone to the family house on the date on which Ext.A1 agreement was registered, since the father of the 2nd defendant was then laid up with illness and on their return from that house, the plaintiff, his son and also their close relatives forcefully took them to the registrar's office and got the deed registered, derive support even from the evidence of DW.2, who practically admitted that his uncles - Dws.3 and 4, the attesters to Ext.A1 agreement, had promised to assist them in securing the amount due from the 1st defendant and also that Ext.A1 agreement was registered at a time when his maternal grandfather was indisposed. Over and above the vitiating circumstances surrounding the execution of Ext.A1 agreement, as brought out in the evidence of DW.2, who is none other than the son of the plaintiff, it is interesting to note that the A.S.No.120 of 1996 :: 6 :: agreement speaks of payment of consideration of Rs.1,14,500/- on the date of its registration. However, the plaintiff as PW.1, in his evidence, has stated that a sum of Rs.50,000/- on the sale price was advanced 10/12 days before the date of agreement and Rs.64,400/- on the date of its execution. No documentary evidence whatsoever was produced to show any prior payment towards the sale price before the execution of Ext.A1 agreement of sale. Further more, even Ext.A1 agreement of sale clearly spells out, and it is also undisputed, that only the 1st defendant has right over the property covered by the agreement. But, still, other defendants were also made parties to that deed. In the agreement, a statement is seen incorporated that the others - defendants 2 to 4 are made parties for the reason that they are co-occupants of the building situate in the property. The defendants 2 to 4 having no proprietary title over the property covered by the agreement have also been made parties to the agreement with a statement as above, lends support to the case A.S.No.120 of 1996 :: 7 :: of the defendants that Ext.A1 agreement was not a creation of a voluntary act by such defendants. Dws.3 and 4, close relatives of the plaintiff, who too were examined by the defendants, who too, according to them, were involved along with the plaintiff and his son, in forcing them to execute Ext.A1 agreement of sale against their will. DW.3 is the brother of plaintiff's wife and thus the uncle of DW.2. In his evidence DW.3 would categorically admit that he had seized the bus, which was jointly operated by DW.2 and the 3rd defendant, and kept it in the house of one Joy on the complaint from DW.2 that the amount due to him was not paid by the 3rd defendant. He would further state that the bus was released, after execution of an agreement of sale. So far as the agreement of sale is concerned, his version was that the proprietary title over the property under the deed was to rest with the plaintiff, in case the amount due to DW.2 was not paid within the time stipulated. When that be the evidence of DW.3, it has come out from DW.4 viz., Joy, in whose house the bus, A.S.No.120 of 1996 :: 8 :: after being forcefully taken, was detained, that the seizure was done by DW.2, the son of the plaintiff, and not by DW.3, as claimed by that witness. DW.4 would further state, to his knowledge, the bus was seized for the amount due to the plaintiff. DW.4 is also an attester to Ext.A1 agreement. His evidence would also show that the bus was detained in his house for a period of more than one month. In the backdrop of the evidence of the above witnesses, especially DW.2, the son of the plaintiff and Dws.3 and 4, the attesters to Ext.A1 agreement, close relatives of the plaintiff, demonstrating that Ext.A1 agreement was executed as a security for the amount allegedly due from the 1st defendant or his son, 3rd defendant, leaving apart the defence canvassed by the defendants that the deed was taken forcefully from them, it has only to be stated that the plaintiff is not entitled to have the equitable relief of specific performance of Ext.A1 agreement, through the assistance of the court. A.S.No.120 of 1996 :: 9 :: The dismissal of the suit by the court below, on the proved facts and circumstances involved in the case, is unassailable, and deserves only to be approved. We do so. The appeal is devoid of any merit and it is dismissed directing both sides to suffer their respective costs. Sd/- (THOTTATHIL B.RADHAKRISHNAN) JUDGE Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/ //true copy// P.S. to Judge.