IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 5TH JANUARY 2009 / 15TH POUSHA 1930 AS.No. 264 of 1999(A) ----------------------------------- OS.839/1995 of PRL.SUB COURT,IRINJALAKUDA .................... APPELLANT(S): PLAINTIFF --------------------- JOY CHALAMANA, S/O. KOCHUVARKEY, CHALAMANA HOUSE, THIRUMUKKULAM VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.THANKACHAN JOSE SRI.M.V.BOSE SRI.VINOD MADHAVAN SMT.NISHA BOSE RESPONDENT(S): DEFENDANT ------------------------- FR. VARGHESE CHALAMANA, PRINCIPAL & CUSTODIAN, ST.JOSEPH HIGH SCHOOL, PATANCHERU, PRAKASAM DISTRICT, ANDHRA PRADESH 502 319. ADV. SRI.BABU CHERUKARA THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 05/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J ----------------------- A.S.No. 264 OF 1999 & CROSS OBJECTION IN A.S. 264 OF 1999 --------------------------------- Dated this the 5th day of January, 2009 JUDGMENT This is an appeal preferred against the judgment and decree of the Subordinate Judge, Irinjalakuda in O.S.No. 839/95. The suit is one for specific performance of a contract. It is the case of the plaintiff that the subject matter of the suit along with its reminder of shares belonged to the father of the plaintiff and defendant and as there was need for money to do the business the plaintiff and others assigned 6/10 shares of the property in favour of the defendant. There was an understanding that when the amount is repaid, the said right will be re-conveyed. Therefore on 2.7.93, the defendant entered into an agreement with the plaintiff for re- transfer of the 6/10 shares of the property for a total consideration of Rs.1,00,000/- out of which Rs. 70,000/- was paid on the date of agreement namely 2.7.93 and the balance amount was paid on 11.5.94. In spite of the payment, the defendant did not execute the sale deed and therefore the plaintiff has filed the suit for specific performance. A.S. 264/99 & Cross Objection in A.S. 264/99 -2- 2. It is the contention of the defendant that he had not signed any document at all and the document relied upon by the plaintiff is a fraudulent creation and therefore the plaintiff is not entitled to any decree for specific performance. The defendant had denied about the receipt of any payment and according to him on the alleged date of execution of the agreement i.e on 2.7.93, he was not at Kandur but was employed at Metharametla in Andra Pradesh. 3. In the trial court Exts. A1 to A24, Exts. B1 to B4 and Ext. X1 were marked. Pws. 1 and 2 and Dws. 1 and 2 were examined. The trial court found that the defendant had executed agreement and received a consideration of Rs. 70,000/-. It also found that the plaintiff has failed to prove the payment of balance consideration of Rs. 30,000/- and also held that the plaintiff in spite of an opportunity did not amend the plaint to get back the amount paid as advance money and therefore dismissed the suit. 4. It is against that decision the plaintiff has come up in appeal. The defendant has also filed a cross objection challenging finding of the trial court with respect to the execution of Ext. A1 agreement and passing of consideration of Rs. 70,000/-. A.S. 264/99 & Cross Objection in A.S. 264/99 -3- 5. The points that arises for determination in appeal are: 1. Whether the plaintiff is entitled a decree for specific performance? 2. Whether the points raised in the cross objection regarding non execution of Ext.A1 is to be found in favour of the defendant? 3. Is there anything to interfere with the decision of the trial court? Points 1, 2 & 3: For the sake of convenience, all these points are answered together. It is the case of the plaintiff that 6/10 shares in the property which belonged to the father of the plaintiff was assigned in favour of the defendant who in turn agreed to sell the property to the plaintiff for a consideration of Rs. 1,00,000/- and for the same, the plaintiff and defendant entered into an agreement on 2.7.93 and that the defendant received a consideration of Rs. 70,000/-. The balance consideration of Rs. 30,000/- was paid on 11.5.94 and as the defendant did not execute the document, the suit is instituted for specific performance. On the contra, the case of the defendant is a total denial of the execution of Ext. A1 agreement. A.S. 264/99 & Cross Objection in A.S. 264/99 -4- In support of the agreement, PWs. 1 and 2 were examined. PW2 is cousin sister of the plaintiff and defendant. PW1 is the plaintiff. Relationship between plaintiff and defendant are that of brothers. Admittedly the right of the plaint schedule property was assigned in favour of the defendant by virtue of two documents. The case of the plaintiff is that there was an agreement to reconvey the said right on receipt of consideration of Rs. 1,00,000/-. The defendant raised the contention that he had not executed any agreement at all with respect to re-transfer of the property. According to him on the eventful day i.e. 2.7.93 he was working as a Headmaster in Andhra Pradesh School and therefore his presence in the town for execution of the agreement was totally not possible. In support of the same, he had produced the Attendance Register as Ext. X1 and had examined DW2. The trial court considered the evidence of PWs 1 and 2 and Dws. 1 and 2. The trial court found that there was a marriage of the plaintiff's brother on 4.7.93. The agreement was executed on 2.7.93. It is further found that the original of the documents namely the assignment deed in favour of the defendant was produced by the plaintiff. When the defendant was confronted with such a situation, he had raised a contention that the plaintiff A.S. 264/99 & Cross Objection in A.S. 264/99 -5- had stolen the original of the documents. The trial court found that the evidence of PW1 and that of the sister of PW2 appears to be convincing and the plea of alibi is not acceptable for the reason that the defendant himself was in custody and possession of the Attendance Register at the relevant point of time. So taking into consideration this broad probabilities and the materials, the trial court arrived at a decision regarding execution of agreement by Ext. A1 by plaintiff and defendant. The court also found that there was a signature in the Vakalath and written statement and it compared the signature in the disputed document with that of the admitted document. The court also found that when he was confronted with such a situation, the defendant would say that he is not sure whether the signature in Ext. A1 is of him. So on an analysis, the trial court correctly found that the defendant has entered in to an agreement with the plaintiff with respect to the sale of the property. Therefore there is no merit in the cross objection. 6. Next question is regarding the breach of contract. As per terms of the contract the plaintiff is bound to pay the balance consideration of Rs. 30,000/- and get the documents registered in his name. Except for the mere ipsi dixit of the plaintiff there is no A.S. 264/99 & Cross Objection in A.S. 264/99 -6- evidence to prove the payment of Rs. 30,000/-. The trial court held that at least he could have obtained a receipt and produced the same in support of the contention when the defendant has totally denied the execution of the document and the receipt of the consideration. The burden was on the plaintiff to establish the same. So far as the evidence of PW2 was concerned, the court below held that she does not speak specifically about the amount that has been handed over. Therefore the court was not prepared to accept the evidence of PWs. 1 and 2 so as to prove the payment of Rs. 30,000/-. When the plea with respect to payment of Rs. 30,000/- is not established, it has to be held that the plaintiff has committed the breach of contract that entitles him to specific performance decree. Therefore I cannot find fault with the court below for arriving at such a decision. 7. Lastly the learned counsel for the appellant very strongly contends before me that an opportunity should be given to amend the plaint so as to at least get the return of the amount paid as advance. The trial court has considered that aspect also. The trial court gave an opportunity to the plaintiff to amend the plaint to incorporate an alternative relief for recovery of the amount. It was A.S. 264/99 & Cross Objection in A.S. 264/99 -7- also not accepted by the plaintiff and he did not amend the plaint. So when the plaintiff himself does not want such a relief in spite of an opportunity being given, the court at this stage cannot grant such a relief also without a prayer. The decision reported in Ambunhi v. Sharada Amma [1974 KLT 471] , the learned judge of this court had considered about the return of the advance amount paid and in para 6, the court observed that “The plaintiff could have atleast claimed in the alternative that he should be entitled to recovery of any amount in excess of the reasonable compensation”. Here in spite of an opportunity, the plaintiff did not seek to avail that relief and therefore he has to curse himself for the same. Therefore from these discussions, I do not find any merit in this appeal as well as in cross objection. Therefore the appeal as well as the cross objection are dismissed but without costs. M.N. KRISHNAN,JUDGE vkm