IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 23RD DECEMBER 2009 / 2ND POUSHA 1931 AS.No. 996 of 1998() -------------------------- OS.15/1990 of SUB COURT, HOSDRUG ............................... APPELLANT(S): PLAINTIFF ------------------------------------ MULLACHERRY KUNHIKANNAN NAIR, S/O. MUNDATH KRISHNAN NAIR, RESIDING AT KUYYANGAT IN BELHUR VILLAGE, HOSDURG TALUK. BY ADV. SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE SMT.PRABHA R.MENON SRI.KODOTH PUSHPARAJAN SRI.M.KRISHNAKUMAR(MOHANKUMAR ASSOCIATES RESPONDENT(S): DEFENDANT ------------------------------------------ PALOTTIL RAGHAVAN, S/O. MALINGAN AND VELLACHI AMMA, RESIDING AT KARUVALAM IN KANHANGAD VILLAGE, HOSDURG TALUK, P.O. PADNAKKAD. ADV. SRI.M.RAMESH CHANDER SRI.M.VIJAYAKUMAR THIS APPEAL SUIT HAVING COME UP FOR ADMISSION ON 23/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. HARUN-UL-RASHID, J. ----------------------------- A.S.No. 996 of 1998 ------------------------------- Dated this the 23st day of December, 2009. J U D G M E N T The plaintiff in O.S.No.15/1990 on the file of Sub Court, Hosdurg is the appellant. The suit is fled for specific performance of an agreement of sale. The trial court held that the plaintiff is not entitled to the relief of specific performance. The parties herein after referred to as plaintiff and defendant. 2. Ext.A1 is a registered agreement of sale dated 20.7.1989 whereby the defendant agreed to sell 1.05 acres of land. The last date fixed for execution of the sale deed is 20.10.1989. According to the plaintiff, the defendant received Rs.50,000/- on the date of agreement and agreed to execute the sale deed on receipt of the balance sale consideration of Rs.5,000/-. It is averred in the plaint that plaintiff is always ready and willing to perform his part of the contract by paying Rs.5,000/-, but the defendant is not agreeable in spite of Ext.A2 lawyer notice sent on 17.10.1989 ie. before the expiry of the time fixed in the agreement. A.S. No.996/1998 2 3. The defendant in his written statement interalia contended that plaintiff is a money lender, he has taken a loan of Rs.15,000/- and that he handed over several signed papers to the plaintiff. The defendant admitted the execution of the registered agreement of sale which was produced and marked as Ext.A1. It is contended by him that on the date of execution of Ext.A1 agreement of sale no money was paid by the plaintiff to the defendant. The defendant admits receipt of Ext.A2 notice. The evidence in this case consist of oral evidence of PW1, DW1, DW2, Ext.A1 to A3 and B1. 4. The defendant admitted execution of Ext.A1 agreement. The contents of Ext.A1 recites that Rs.50,000/- was paid on the date of Ext.A1 and the balance to be paid is Rs.5,000/-. The defendant has no case that Ext.A1 registered agreement was executed for the reason that the plaintiff has exerted coercion or undue influence. The contents of Ext.A1 has to be acted upon especially when no other intention can be attributed than what is stated in the agreement. Ext.B1 notice issued by the plaintiff to the defendant relates to an earlier agreement of sale of the very same property on an earlier occasion. In the said agreement, it is A.S. No.996/1998 3 stated that the price agreed is Rs.50,000/- and Rs.47,000/- was received by the defendant on the date of agreement. Ext.B1 notice shows that there was an earlier agreement of sale of the property. Since the defendant did not comply with the conditions in the agreement, the plaintiff issued Ext.B1 notice proposing to institute a suit. The present agreement, marked as Ext.A1, was executed within a period of one month from the date of receipt of Ext.B1 notice. A reading of Ext.B1 and A1 shows that the defendant executed Ext.A1 agreement after receiving Ext.B1 notice, fixing the value of the property at Rs.55,000/- . 5. The defendant did not adduce any independent evidence in support of the contention raised in the written statement. The conduct of the defendant is also very material. Ext.B1 shows that there was a prior agreement. Since the defendant didn't cared to execute the sale deed pursuant to the earlier agreement, Ext.B1 notice was sent by the plaintiff. In Ext.B1, it is recited that there was an agreement of sale, that the defendant received Rs.47,000/- on the date of the said agreement but failed to take steps to execute the sale deed as agreed. The defendant has no case that he has sent any reply to Ext.B1 notice. If the recitals in A.S. No.996/1998 4 Ext.B1 are totally false, the defendant should have issued a reply stating the true facts. Thereafter the defendant executed Ext.A1 agreement. He has no case that Ext.A1 agreement was executed due to undue influence or coercion exerted by the plaintiff. Since the defendant again failed to execute the sale deed as agreed, the plaintiff again sent notice, marked as Ext.A2, calling upon the defendant to execute the sale deed on or before the last date fixed in the agreement after receiving the balance sale consideration of Rs.5,000/-. For Ext.A2 notice also, the defendant didn't sent any reply. Thereafter also he remained silent. Ext.A2 notice is dated 17.10.1989. Ext.A1 agreement is dated 20.07.1989. Suit was filed on 31.3.1990. So many contentions were raised in the written statement. Conduct of the defendant in relation to the transaction does not inspire the confidence of the court. The appreciation of the proof adduced by the defendant is very material. If the transaction covered by Ext.A1 is entered into under vitiating circumstances, as alleged in the written statement, the pleadings shall be supported by sufficient proof regarding the alleged vitiating circumstances. In fact no proof was adduced by the defendant, except his interested testimony. Nothing has been brought out before the court in support of the contentions. None A.S. No.996/1998 5 of the identifying witnesses to Ext.A1 were examined to prove that no consideration was received by the defendant on the date of execution of Ext.A1. None of the identifying witnesses nor the scribe was examined to prove that the alleged transaction is false. At the same time the plaintiff testified before the court that the defendant himself had executed the agreement, got it registered before the Sub Registrar and that nobody compelled him or used any influence for the execution of Ext.A1 agreement. DW1 testified that the stamp paper used for execution of Ext.A1 was purchased by him. So long as he has not adduced any evidence in support of his case that there was no occasion for an agreement of sale of the property and that the transaction was intended only as security for loan received from the plaintiff, this court has to go by the terms of Ext.A1 agreement. The execution of earlier agreement also assumes importance. There is no proof before the court regarding the loan transaction of Rs.15,000/- as contended by the defendant. At the same time there is proof before the court that there was an earlier agreement, that the terms of the agreement are not fulfilled within the time and regarding the execution of the present agreement. This is not a case of denial of execution of Ext.A1 agreement. If it is a case of A.S. No.996/1998 6 denial of Ext.A1 agreement, the surrounding circumstances alleged in the written statement may have some bearing on the merits of the case. There is no proof regarding the handing over of signed stamp papers and other documents as contended by the defendant. Even if there is proof regarding the handing over of signed stamp papers and other documents, that may not improve the case of the defendant because he has no case that those documents are used for the purpose of creating an agreement of sale. 6. Ext.A1 document has to be accepted at its face value. I have already observed that there is no proof at all on the side of the defendant to substantiate his contentions. No independent proof has been adduced by the defendant to support the alleged circumstances. In these circumstances, the registered agreement of sale admittedly executed by the defendant can only be found to be a genuine document. 7. The defendant also contended before the Court that the market value of the property is much higher than the value fixed inExt.A1. Ext.A1 agreement between the vendor and vendee shows at what price the vendor is willing to sell the property and A.S. No.996/1998 7 the buyer is willing to purchase the same. The consideration agreed by the parties may or may not reflect the market value of the property. It all depends upon the agreement between the parties. Moreover, there is no proof to show that the value of the property fixed in Ext.A1 is inadequate . It is of course not open to the defendant to say that the agreement is not enforceable because the price fixed is low. 8. The learned counsel for the defendant also submitted that the relief of specific performance of a contract of sale is a discretionary relief and that this is not a fit case for extending the discretion and therefore the plaintiff is not entitled to the relief sought for in the plaint. I have examined the facts and circumstances, the conduct of the parties, the admission of execution of Ex.A1 agreement and all other attendant circumstances. I find no reason to desist from exercising the discretionary relief to which the plaintiff is entitled. The plaintiff is entitled for the reliefs prayed for in the suit. I am unable to agree with the reasonings and findings of the court, for non suiting the plaintiff. Reasons stated are not supported by the legal principles and the facts proved in this case. A.S. No.996/1998 8 In the result, The appeal stands allowed, judgment and decree passed by the trial court is set aside. The defendant is directed to execute and register the sale deed in respect of the plaint schedule property in favour of the plaintiff within a period of three months from today on receiving the balance sale consideration of Rs.5,000/-, failing which it is open to the plaintiff to apply for executing the sale deed through court after depositing the balance sale consideration of Rs.5,000/-. The appeal stands disposed of as allowed. There will be no order as to cost. HARUN-UL-RASHID, JUDGE. sou. A.S. No.996/1998 9 HARUN-UL-RASHID, JUDGE. A.S. No.996 of 1998. JUDGMENT 23.12.2009