IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 11TH MARCH 2010 / 20TH PHALGUNA 1931 AS.No. 183 of 2002(A) -------------------- OS.343/1995 of PRINCIPAL SUB COURT, PALAKKAD .................... APPELLANT/1ST DEFENDANT: ------------------------------ BALAKRISHNAN, S/O.KUNJUMANI, MANIKAPADATH HOUSE, VADAKKENCHERRY AMSOM DESOM, ALATHUR TALUK. BY ADV. MR.N.SUKUMARAN MR.S.SHYAM MR.BOBBYMATHEW KOOTHATTUKULAM MR.LATHEESH SEBASTIAN RESPONDENTS/PLAINTIFF AND 2ND DEFENDANT: ------------------------------------------------------ 1. KUTTIKRISHNAN, S/O.KUNJUMANI, MANIKAPADATH HOUSE, VADAKKENCHERRY AMSOM DESOM, ALATHUR TALUK, PALAKKAD. 2. CHELLAPPAN, S/O.VELAN, KUNNUMKATTUKALAM, CHITTADI, VANDAZHI AMSOM, ALATHUR TALUK. ADV. MR.KKM.SHERIF FOR R1 MR.P.M.KUNJIMOIDEENKUTTY FOR R1 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 11/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AS.No. 183 of 2002(A) ORDER ON C.M.P.NO.2558/2002 IN A.S.NO.183/2002 DISMISSED. 11.3.2010 SD/- HARUN-UL-RASHID, JUDGE. // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ----------------------------------- A.S.No.183 of 2002 - A --------------------------------- Dated this the 11th day of March, 2010 J U D G M E N T The first defendant in O.S.No.343 of 1995 on the file of the Sub Court, Palakkad, is the appellant. The suit is for specific performance. The court below found that the plaintiff is not entitled to discretionary relief of specific performance and held that he is entitled to get back Rs.40,000/- with interest. Therefore, a decree allowing the plaintiff to realise Rs.40,000/- with interest at the rate of 12% from the date of suit till realisation with costs was passed. Aggrieved by the decree and judgment, the first defendant has preferred this appeal. The parties are hereinafter referred to as the plaintiff and defendant as arrayed in the suit. 2. It is the case of the plaintiff that the plaintiff and defendant executed an agreement for sale of the plaint schedule property on 3.8.1994; he paid the entire sale consideration of Rs.40,000/- on the date of execution of the agreement and he was put in possession of the plaint schedule property. The time fixed for execution of the document was within 9 months. The A.S.No.183 of 2002 - A 2 plaintiff demanded performance of the contract personally as well as through mediators and issued notice on 25.4.1995 calling upon the defendant to execute the registered sale deed. No reply was sent to the notice. Hence the plaintiff’s suit for specific performance of the contract for sale and alternatively prayed for recovery of Rs.40,000/- with interest. 3. The defendant denied the execution of the agreement. He also denied the receipt of Rs.40,000/- and contended that he is not liable to execute the sale deed in favour of the plaintiff nor liable to repay the amount claimed in the plaint. It is also contended that the plaintiff had misused the blank cheque leaves and stamp papers of the first defendant happened to be in the custody of the plaintiff and therefore the plaintiff is not entitled to any reliefs. 4. On the side of the plaintiff PWs 1 and 2 were examined and Exts.A1 to A3, are marked. The first defendant was examined as DW1 and Ext.B1, which is a copy of the reply notice, is marked on his side. A.S.No.183 of 2002 - A 3 5. PW1 tendered evidence in terms of the plaint. Ext.A1 is the agreement for sale dated 3.8.1994. PW1 testified before the court that Ext.A1 agreement was executed between the plaintiff and first defendant; that the first defendant received the total consideration on the date of agreement; that the time stipulated for execution of the sale deed was within 9 months from the date of agreement; that the first defendant did not turn up on any date fixed for execution of the sale deed or thereafter and the first defendant was not prepared to execute the sale deed in his favour. The defendant as DW1 has contended that he had borrowed a sum of Rs.10,000/- from the plaintiff and at that time he had handed over some blank signed cheques and blank stamp papers; that some cheques were got signed by the plaintiff and the same was utilized for the purpose of fabricating the agreement. PW1 is the power of attorney holder of the plaintiff. He also testified before the court that he was present all the time when the transaction took place. When DW1 was examined he had admitted that he sold the plaint schedule property to the second defendant pending suit. The court below examined the A.S.No.183 of 2002 - A 4 evidence adduced by the parties in support of their respective contentions and considered the documentary evidence. The court held that apart from the interested testimony of the first defendant no other supporting evidence is forthcoming to show that he had handed over the signed cheque leaves and stamp papers and there is no evidence to show that the signed cheque leaves and stamp papers were utilized by the plaintiff for creating Ext.A1 agreement. It has also come out in evidence that the first defendant alienated the property at a time when there was an order of injunction restraining him from alienating the property. The court below relied on the evidence of PWs 1 to 4 and held that Ext.A1 agreement was executed between the parties and that the first defendant received Rs.40,000/- towards sale consideration. The evidence of PW1 also indicates that the plaintiff was having sufficient funds and he was ready and willing to perform his part of contract. 6. The second defendant who is the purchaser during the pendency of the suit did not adduce any evidence to show that he is a bona fide purchaser and he was not aware of Ext.A1 A.S.No.183 of 2002 - A 5 agreement. The court below found that the loan transaction set up by the defendant is not supported by any evidence and is not true. 7. The court below did not grant a decree for specific performance of the contract. The reasons stated is that the first defendant is not in possession of the property at present, that the second defendant is in possession and that in case a decree for specific performance is granted the plaintiff may find difficult to execute the decree. 8. I am of the view that reasons stated for not granting a decree for specific performance does not stand to reason. Simply because the property changed hand during the pendency of the suit is not a reason for refusing a decree for specific performance of sale. Since the plaintiff did not challenge the refusal of grant of decree for specific performance, I do not think that the said question need not be considered in the appeal filed by the first defendant. The grant of alternative relief allowing the plaintiff to realise an amount of Rs.40,000/- with interest in the above circumstances cannot be interfered with. The first A.S.No.183 of 2002 - A 6 defendant appellant has not made out any sustainable ground to interfere with the decree and judgment passed by the court below. In the result, the appeal fails and it is accordingly, dismissed with costs. HARUN-UL-RASHID, JUDGE. bkn/-