IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 6TH SEPTEMBER 2010 / 15TH BHADRA 1932 AS.No. 414 of 2002(E) -------------------------- OS.337/1995 of PRL.SUB COURT,IRINJALAKUDA .................... APPELLANT(S): DEFENDANT NO.2 --------------------------------------- GANGADHARAN, S/O.KATTIL KUNJITHEYYAN, WEST VEMBALLUR DESOM, SREE NARAYANAPURAM VILLAGE, KODUNGALLUR TALUK. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE RESPONDENT(S): PLAINTIFF --------------------------------- JOSEPH, S/O. PADAMATTUMMAL BHAVA, EDAVILANGU VILLAGE, DESOM, KODUNGALLUR TALUK. BY ADV. SRI.N.P.SAMUEL THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 06/09/2010, THE COURT ON 06/09/2010 DELIVERED THE FOLLOWING: SVS/ M.N. KRISHNAN, J. ........................................... A.S.NO.414 OF 2002 ............................................. Dated this the 6th day of September, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Irinjalakuda in O.S.No.337/1995. The suit is one for specific performance of a contract and in the alternative one for realisation of amount. It is the case of the plaintiff that the defendants had entered into an agreement for sale of the property of 35 cents of land for a consideration at the rate of Rs.15,000/= per cent and had paid an advance of Rs.45,000/=. The plaintiff was always ready and willing to perform his part of the contract and as the defendants had failed, notice was issued and thereafter the suit for specific performance with the alternative relief is filed. 2. On the other hand, the defendants had a big story to tell. According to them, the second defendant wanted an amount of Rs.20,000/= and approached one of his nephew, Babu, who in turn took him one Babu Master and he had given him Rs.20,000/= for which he has to execute a : 2 : A.S.NO.414 OF 2002 document in favour of the plaintiff as directed by the said Babu Master. The property of his sister was given as security. As the second defendant could not pay the amount and by the time the sister wanted to get away from the liability and as his nephew Babu wanted another Rs.15,000/= they again approached the same Babu Master, obtained Rs.35,000/= and handed over the document relating to 15 ¼ cents. So, the total amount due from transactions 1 and 2 was Rs.35,000/=. Thereafter there was some notice etc., and the matter between Babu and father of the plaintiff was settled and at the insistence of the plaintiff's father, Ext.A1 document came into existence. Really the amount has been paid and no amount is due and there is no intention to perform to part with the property. So they prayed for disposal of the suit. 3. The trial court on an analysis of the materials granted a decree for return of the amount and refused to pass any decree regarding specific performance. The trial court did not grant the discretionary relief. On an appreciation of the materials, the trial court held that after referring to the Commissioner's report the other attendant : 3 : A.S.NO.414 OF 2002 circumstances just like attempt made by the second defendant to get loan from the bank for the purpose of renovating house etc., came to the conclusion that it might have been given as a security and therefore, refused to grant discretionary relief of specific performance of contract. 4. Now the short point that has to be determined in this case is whether the amount borrowed has been repaid, what was the amount borrowed and whether the plaintiff is entitled to the alternative relief. Execution of Ext.A1 document is admitted. When Ext.A1 is admitted, at least the consideration part of it having received Rs.45,000/= as advance goes with the document or receipt of Rs.45,000/= is admitted. 5. The case of the second defendant is to the effect that he had only borrowed Rs.20,000/= and thereafter had repaid the amount by agreeing to sell the property with one Viswambaran. The plaintiff refused to hand over only the agreement and bank cheque leaf but had handed over only the title deed. It can be seen with respect to the transaction with Babu that a notice was jointly issued as : 4 : A.S.NO.414 OF 2002 early as on 5.7.1993. The suit agreement is only on 21.12.1993. The defendants are categorizing the plaintiff and his father as money lenders who charged extra ordinary interest. This being the situation and confrontation having started earlier, a man of ordinary prudence would not again jump into the same well to complicate or eradicate himself. Therefore having admitted execution of Ext.A1 agreement, unless there is cogent and convincing evidence, the court cannot come to the conclusion that the amount stated in the agreement is not due to the plaintiff. Whenever the defendants put up a case even after the parties have fallen out, it has to be remembered that there was even a criminal case which went up to the highest court of the land. So such is the relationship between the parties. The attempted plea of oral discharge cannot be accepted. Therefore the sum and substance of the entire matter is that the plaintiff is entitled to the amount which he has paid to the defendants. 6. Now on the question of interest. The learned counsel for the appellant had cited before me a decision of the Supreme Court of India reported in Tejram v. : 5 : A.S.NO.414 OF 2002 Patirambhau (1997 (9) SCC 634). There the Court found that case of both the parties are not totally acceptable and therefore granted a decree for principal only and directed that amount to be returned. Here there had been cash transactions between the parties. The discretionary relief of specific performance has been negatived and the defendants are only asked to pay back the amount. He had not done it. But taking into consideration the large number of transactions between the parties, I feel that grant of interest can be restricted from the date of the suit and therefore interest need be paid from the date of suit i.e, 10.4.1995. In the result, the judgment and decree of the trial court is confirmed with the only modification that rate of interest at the rate of 6% commencing from 10.4.1995 in stead of 21.12.1993. Parties are directed to bear their respective costs in the appeal. M.N. KRISHNAN, JUDGE. cl : 6 : A.S.NO.414 OF 2002 M.N. KRISHNAN, J. ........................................... A.S.NO.414 OF 2002 ............................................. 6th day of September, 2010. J U D G M E N T