IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE. M.N.KRISHNAN & THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN FRIDAY, THE 14TH DAY OF JANUARY 2011/24TH PAUSHA 1932 AS.No. 732 of 1998 (C) ---------------------- OS.560/1994 of II ADDL.SUB COURT,KOZHIKODE APPELLANT(PLAINTIFF): ------------ V.P.ABOOBACKER, S/O.MUHAMMED, AGED 46 YEARS, RESIDING AT “SRUTHI”, NAGARAM, KOZHIKODE BY ADVS.SRI.A.P.CHANDRASEKHARAN (SR.) SMT.PRABHA R.MENON RESPONDENT: -------------- NAUSHAD K.P, S/O.BHAWA, AGED 34 YEARS, KALIYATTUPARAMBIL HOUSE, NADUVATTOM, KOZHIKODE BY ADVS. SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 14-01-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AS.No. 732 of 1998 PETITIONER'S EXTS: EXT.A10: CERTIFIED COPY OF SALE DEED NO.802/1997 DTD.10.3.1997 OF SUB REGISTRY OFFICE, KAKKODI. RESPONDENT'S EXTS: NIL /TRUE COPY/ P.A.TO JUDGE M.N.KRISHNAN & P.S.GOPINATHAN, JJ. --------------------------- A.S.No.732 OF 1998 --------------------------- Dated this the 14th day of January, 2011 J U D G M E N T ~~~~~~~~~~~ P.S.Gopinathan, J. The plaintiff, in O.S.No.560/1994 on the file of the Subordinate Judge, Kozhikode, is the appellant. He instituted the above suit seeking a decree for specific performance with an allegation that the respondent/defendant and the appellant/ plaintiff entered into an agreement for sale of the plaint schedule properties belonging to the respondent for a consideration at the rate of Rs.18,250/- per cent and a sum of Rs.30,000/- was given as advance on 14.6.1994. To witness the transaction, Ext.A1 agreement for sale was executed. As per the terms of Ext.A1, the sale should have been materialised on or before 11.7.1994. Alleging that the respondent/defendant didn't perform his part of the contract, Ext.A2 notice was caused on 16.7.1994. But, the respondent/defendant didn't care to execute the sale deed. With these pleadings, the appellant instituted the suit. A.S.No.732/1998 2 2. The respondent originally remained ex parte and the suit was decreed ex parte on 29.6.1995. Thereafter, the respondent filed a petition on 25.5.1996 seeking an order to set aside the ex parte decree and that petition was allowed on 8.1.1997. Thereupon, the respondent filed a written statement admitting the execution of Ext.A1 and stating that the respondent was willing to execute the sale deed. But, the appellant was not prepared as he was devoid of balance consideration. Ext.A2 notice was caused after the date stipulated in Ext.A1 for the execution of the sale deed. Inspite of that, the respondent intimated the appellant about his willingness to execute the sale deed. But the appellant was not ready with the balance consideration and he sought for return of the advance amount. Heeding the request of the appellant to return the advance amount, the same was returned by two demand drafts and a cheque dated 6.1.1995, 3.121994 and 5.1.1995 and that the amount was collected by the appellant and thus the entire advance sale consideration was returned to the appellant and that he is not entitled to a decree for specific performance. A.S.No.732/1998 3 3. After raising the issues, the parties were sent for trial. The appellant and another were examined as PWs 1 and 2. The respondent was examined as DW1. On the side of appellant, Exts.A1 to A9 series were marked. On the side of the respondent, Exts.B1 to B4 were marked. The lower court on appraisal of the evidence, though disbelieved the case of the defendant that he returned the advance sale consideration, arrived at a conclusion that the appellant was not ready with the balance sale consideration. The encashment of the demand drafts and the cheque were found relating to some other transaction. Consequently, the prayer for decree of specific performance was declined. In the alternative, a decree for realisation of the advance consideration with future interest at the rate of 6% per annum was granted. Assailing the decree declining the prayer for specific performance, this appeal was preferred. 4. The appellant has now produced a copy of document No. 802/97 of SRO, Kakodi along with I.ANo.4113/2010, seeking an order to receive the said document as additional evidence A.S.No.732/1998 4 under Order 41 Rule 27 read with Section 151 of the CPC. As per the averments in the affidavit accompanying the petition, the plaint schedule property was assigned in favour of one Musthafa and 2 others on 10.3.1997 even before the filing of the written statement and that the appellant was not aware of the said document and he came to know about the same only recently and obtained the copy. With these explanation, the copy of the document was sought to be marked in evidence. For further reference, the document is marked as Ext.A10. Relevancy of the same would be considered at appropriate time. 5. Heard and perused the evidence on record as well as the judgment impugned. As stated earlier, Ext.A1 is admitted. The main reason stated by the trial court to decline the prayer for specific performance is that the appellant was not ready with the balance sale consideration. That alone is the dispute before us. The trial court had specifically stated in paragraph 9 of the judgment impugned that the appellant as PW1 had stated during cross examination that he had documents to show that he had sufficient funds to pay the balance consideration. But no bit of A.S.No.732/1998 5 document was produced. As against the said finding, the learned counsel for the appellant would submit that the appellant need not be ready with the cash and it would suffice if he could convince that he had sufficient source to procure the balance sale consideration. As regards the source also, absolutely there is no evidence on record. Other than the assertion of the source to raise the balance consideration, no evidence is produced. When a party says that he has got documents to prove the disputed fact and fails to produce the same, it is legitimate to answer the dispute against the party who fails to produce the document. In this view of the matter, we find no reason to disturb the finding of the trial court. 6. The lower court also had found fault with the appellant for not taking steps for the execution of the ex parte decree though it was set aside only after more than one year. As regards that, according to the learned counsel for the appellant, since he didn't get the copy of the decree, he was not in a position to take any steps for the execution of the sale. It was also alleged that neither in the judgment nor in the decree any A.S.No.732/1998 6 specific date was mentioned by the trial court for deposit of the amount. In the event there was such omission in the judgment and the appellant was in confusion, he could have sought for clarification or review of the judgment. But not chosen to. So, finding fault with the lower court for not specifying a date for deposit is a lame exercise. Lack of bonafides is apparent. Having gone through the judgment impugned and the evidence on record, we find that the finding of the trial court that the appellant was devoid of balance sale consideration is based upon the evidence on record. Ext.A10 now produced in appeal being only a document regarding the transfer of the property by defendant, it wouldn't enure to the benefit of the appellant to prove his source for balance sale consideration. We find little reason to arrive at a conclusion that the trial court erred anywhere in appreciating the evidence to come to a conclusion that the appellant was devoid of funds to pay the balance consideration. In this view of the matter, we find no reason to disturb the conclusion arrived at by the trial court. 7. Adding to the above, Ext.A10 dated 10.3.1997 would show that more than 13 years ago the plaint schedule property was sold to Musthafa and two others. The appellant A.S.No.732/1998 7 had not cared to bring them on record till now. To a question put to the learned counsel for the appellant as to whether the appellant is aware whether the purchasers as per Ext.A10 had effected any valuable improvements or whether a decree for specific performance would cause hardship to the purchasers, who had been put in possession of the properties more than 13 years back, the learned counsel has no answer. It is also not disputed that the land value is shooting up. Even going by the averments in the affidavit accompanying the petition I.A.No.4113/2010 and the document produced thereon, there is little material to come to a conclusion that the purchasers as per the document are not bonafide purchasers. It is not disputed that Ext.A1 agreement was not registered. So, even if the purchasers obtain encumbrance certificate in respect of the plaint schedule properties Ext.A1 agreement would not find a place. There is also no whisper in the affidavit accompanying the petition that the purchasers as per Ext.A10 were aware of Ext.A1 agreement or the pendency of the suit at the time of the purchase or at any time thereafter. So, it has to be presumed that the purchasers as per Ext.A10 are bonafide purchasers. They are holding the A.S.No.732/1998 8 properties for more than 13 years. At this long distance of time, the dispossession of the 3rd parties would cause very hardship. In the event they had effected valuable improvements they have also to forgo the same for no good reason. If the appellant had made them party array we could have heard them also. So, by not impleading them as party array inspite of the knowledge about the assignment in their favour about 13 years back, the opportunity to the purchasers to defend the appeal as well as the suit was also denied. In addition to that since the land value is shooting up and the money value is going down in the event of reversing the judgment and decree appealed; and a decree for specific performance is granted, the appellant would be put to unlawful benefit. On the other hand, the respondent as well as the bonafide purchasers as per Ext.A10 would be put to irreparable hardship and loss. In such circumstances, equity also dissuades us to interfere with the judgment and decree under challenge. We find no reason to interfere with the judgment and decree under challenge. The trial court was correct in granting A.S.No.732/1998 9 a decree for realisation of the advance amount with interest. The appeal is devoid of merit and accordingly it is dismissed. There will be no order as to costs. (M.N.KRISHNAN, JUDGE) (P.S.GOPINATHAN, JUDGE) ps A.S.No.732/1998 10 M.N.KRISHNAN, JUDGE & P.S.GOPINATHAN, JUDGE A.S.No.732 OF 1998 J U D G M E N T 14.1.2011