IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 8TH JUNE 2010 / 18TH JYAISTHA 1932 AS.No. 331 of 1995(D) --------------------- OS.39/1992 of II ADDL.SUB COURT,ERNAKULAM .................... APPELLANT(S)/PLAINTIFF: -------------- V.K.SAHADEVAN,S/O.KARUPPAN, VELUTHEDATHUPARAMBIL, THRIKKANARVATTOM DESOM, ERNAKULAM VILLAGE, KALABHAVAN ROAD, COCHIN – 682 018. BY ADV. SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN SRI.ROBIN RESPONDENT(S)/DEFENDANTS: --------------- 1.SMT.BHARATHY,W/O.LATE M.P.ACHUTHAN, PONNAMBATH HOUSE, T.D.ROAD, COCHIN-682 011. 2.SHRI.M.P.LAKSHMANAN,S/O.LATE M.P.ACHUTHAN, BEST BAKERY, CHANGANASSERY. 3.SHRI.M.P.RADHAKRISHNAN,S/O.LATE M.P.ACHUTHAN, NEW COCHIN BAKERY, CANNON SHED ROAD, COCHIN-682 011. 4.SMT.M.P.REENA,D/O.LATE M.P.ACHUTHAN, ULLATHUTHODIYIL, CHERUVANNOOR (PO), FEROKE, KOZHIKODE DISTRICT. 5.SHRI.M.P.RAMESH,S/O.LATE M.P.ACHUTHAN, NEW COCHIN BAKERY, CSI SHOPPING COMPLEX, KOZHIKODE – 673 011. 6.MRS.AMBILY,W/O.LATE M.P.CHANDRAMOHAN, VHMR TOOLS (PVT) LIMITED, 41/356, KRISHNASWAMY CROSS ROAD, COCHIN-682 035. AS.331/95 7.HARISH (MINOR AGED 10 YEARS), S/O.LATE M.P.CHANDRAMOHAN, VHMR TOOLS (PVT) LIMITED, 41/356, KRISHNASWAMY CROSS ROAD, COCHIN-682 035. 8.SUMESH (MINOR AGED 8 YEARS), S/O.LATE M.P.CHANDRAMOHAN, VHMR TOOLS (PVT) LIMITED, 41/356, KRISHNASWAMY CROSS ROAD, COCHIN-682 035. MINOR RESPONDENTS 7 AND 8 REPRESENTED BY MOTHER AND GUARDIAN, THE 6TH RESPONDENT HEREIN AS IN THE COURT BELOW. ADV. SRI.T.G.RAJENDRAN FOR R2,4& 5 SRI.A.B.JALEEL FOR R1 & R3 SRI.M.V.JOHN FOR R6,7&8 THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 08/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B. RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------- A.S.NO.331 OF 1995 () ----------------------------------- Dated this the 8th day of June, 2010 J U D G M E N T THOTTATHIL B. RADHAKRISHNAN, J. Plaintiff in a suit for realisation of money is the appellant. 2. According to the plaintiff, the predecessor in interest of defendants 1 to 8, namely, late M.P.Achuthan entered into Ext.A1 agreement on 10.4.1987 to sell the plaint schedule property to the plaintiff and obtained an amount of Rs.50,000/- as advance. The suit is laid on 14.1.1992 for recovery of the advance on the allegation that the plaintiff is willing to perform his part of the agreement for sale but does not intend to press for that relief and would be satisfied by return of the advance. It was pleaded that in terms of the endorsement on Ext.A1 made on 25.4.1987 and 2.6.1987 respectively, further amounts at the rate of Rs.10,000/- each were also obtained towards sale A.S.331/95 2 consideration, thus, amounting to a total advance of Rs.70,000/-. The plaintiff also contended that after the demise of Achuthan, the 1st defendant had executed a power of attorney authorising Adv.Sri.Sathyanarayanan to act as her agent and that the said power of attorney document also amounts to an acknowledgment of the liability to return the advance. 3. The defendants contended, inter alia, that the suit is barred by limitation; that the so called power of attorney was drafted up at a time when the 1st defendant had not recovered from the shock of the demise of her husband and that the plaintiff had misutilised the close friendly relationship between the parties to create the power of attorney. 4. The court below noted, among other things, that the original or a certified copy of the power of attorney document, which is stated to be registered document, was not produced. It further noticed that when the photocopy of that document was placed before the court below, Adv.Sathyanarayanan, who was A.S.331/95 3 until then appearing for the 5th defendant relinquished his vakalathnama. He later tendered evidence as PW4 and deposed that no document was executed with his knowledge and he does not know whether any power of attorney document was executed for the purpose of selling the disputed property. At any rate, he disowned having the custody of the original of the power of attorney. 5. With the aforesaid, the court below, among other things, held that the suit is barred by limitation. 6. Ext.A1 agreement for sale is dated 10.4.1987. The suit is not one for return of advance as an alternative relief in a suit is for specific performance of that agreement for sale. It is not one for enforcement of a right on the basis of the alleged breach by the vendor. In the plaint, the plaintiff had categorically given up his right to sue for specific performance and pleads only for return of the advance. Taking the two endorsements on Ext.A1 made on 25.4.1997 and 2.6.1987 also into consideration, the suit A.S.331/95 4 ought have been filed on or before the expiry of three years from 2.6.1987. The suit in hand is filed only on 14.1.1992. 7. With the aforesaid, the learned counsel for the appellant very ably argued that the recitals in Ext.A7 power of attorney would constitute an acknowledgment for the purpose of Section 18 of the Limitation Act and this is the reason why the 1st defendant was trying to wriggle out of the fact that she had executed the power of attorney. We are cautioned ourselves from using Ext.A7 as legal evidence because it is only a photocopy of a document and there is no reason to show as to the non-availability of the original or the non-availability of a certified copy of the said power of attorney, which is stated to be a registered document. Therefore, we do not find any ground to accept Ext.A7 and act upon it as legal evidence. Be that as it may, the court below having adverting to Ext.A7, we have perused it for the purpose of ascertaining whether there is any legal flaw in the conclusions arrived even on the basis of that document. Ext.A7 does not refer to Ext.A1. It does not make any A.S.331/95 5 reference to the 1st defendant or other heirs of late Achuthan. It does not make any reference to any agreement for sale or of the identify of the contract for sale on the basis of which this suit is filed. Obviously, therefore, the term in clause (2) of Ext.A7 whereby the 1st defendant authorises the attorney to accept the balance sale consideration from the predecessor on behalf of the 1st defendant, cannot be considered as one made with specific reference to the identity of the transaction evidenced by Ext.A1. The learned counsel for the appellant very persuasively pointed out that there could not have been any other reason for making such a statement in clause (2) of Ext.A7. In the absence of any specific statement connecting Ext.A1, Ext.A7 cannot be treated as an acknowledgment in writing of any liability referable to Ext.A1 agreement for sale. We also endorse the finding of the court below that the transaction is not one that would create a charge over immovable property. This is explicit from the last limb of Section 54 of the Transfer of Property Act, which defines a contract for sale and states the insidence of such a contract. A.S.331/95 6 For the aforesaid reasons, we find no way to interfere with the impugned decree and judgment. In the result, this appeal is dismissed. Parties are directed to bear their respective costs. THOTTATHIL B. RADHAKRISHNAN JUDGE S.S.SATHEESACHANDRAN JUDGE prp THOTTATHIL B. RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------- A.S.NO.331 OF 1995 () ----------------------------------- J U D G M E N T 8th day of June, 2010 A.S.331/95 8