IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 17TH FEBRUARY 2009 / 28TH MAGHA 1930 RSA.No. 286 of 2008(A) ------------------------------------- AS.53/2003 of ADDL. DISTRICT COURT, THALASSERY OS.97/1998 of SUB COURT, PAYYANNUR .................... APPELLANT/RESPONDENT/DEFENDANT KANDATHUMTHODUKAYIIL JOSEPH S/O.OUSEPH (LATE), PARIPPAYI AMSOM CHENGALAI DESOM, P.O.CHENGALAI, KANNUR DIST. PIN-670631. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT/APPELLANT/PLAINTIFF: PULLUVATTATH GEORGE, S/O.JOSEPH, AGRICULTURIST, SREEKANDAPURAM AMSOM KAITHAPRAM DESOM, TALIPARAMBA TALUK, KANNUR DIST. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- R.S.A.No.286 of 2008 -------------------------- JUDGMENT Heard submissions of counsel for the appellant. 2. The defendant in O.S.No.97/98 on the file of the Sub Court, Payyannur is the appellant and the plaintiff is the respondent in this Regular Second Appeal. 3. The respondent/plaintiff instituted O.S.No. 97/98 aforesaid for a decree for specific performance of Exhibit A1 agreement dated 10.4.1997 executed in his favour by the appellant/defendant, inter alia, on the allegations that the appellant/ defendant agreed to sell his property scheduled to the plaint to him for a sum of Rs.1,80,000/- and accepted Rs.1,50,000/- as advance to be adjusted against the sale consideration and agreeing to execute the sale deed in respect of the property within 21.3.1998 receiving the balance amount from him; that he approached the appellant/defendant RSA 286/08 2 with the balance amount, but the latter protracted execution and registration of the document and that finally, on 21.3.1998 and 13.4.1998 the appellant/ defendant was called upon to come over to the Sub Registry Office, Sreekandapuram to receive the balance consideration and to execute and register the document in his name, but the appellant/ defendant did not turn up. Hence the respondent/ plaintiff filed the suit for specific performance and in the alternative, he prayed for return of Rs.1,50,000/- paid as advance with 12% interest. 4. Appellant/defendant resisted the suit, inter alia, on the allegations that he never intended to sell the property and that no agreement was executed in that behalf. The facts of the case, according to him, are that during 1997, he started construction of a new house and when he was urgently in need of some amount, he approached one James Abraham (PW2), who had acquaintance with him and the said James Abraham secured an amount of RSA 286/08 3 Rs.50,000/- from the respondent/plaintiff and gave it to him on condition that he is to repay the same in six months with interest. For obtaining the said loan, as security, he entrusted a signed blank stamp paper of value of Rs.50/-, two signed blank papers, the original document of 90 cents of property owned by his son Varghese Joseph and also a signed blank cheuqe of Anandakkattu Joby (DW2) to James Abraham as demanded by the respondent/ plaintiff; that he believes that by misusing the said signed stamp paper the respondent/plaintiff concocted a sale agreement; that he has already discharged the loan liability, but the respondent/ plaintiff did not return the documents and that the suit is false and has to be dismissed with costs. 5. On the above pleadings the trial court raised necessary issues for trial and considering the evidence adduced at trial, which consisted of oral evidence of PWs 1 and 2 and DWs 1 and 2 and documentary evidence Exhibits A1 to A5, dismissed RSA 286/08 4 the suit. The respondent/plaintiff preferred appeal before the District Court, Thalassery as A.S.No. 53/03 and the District Judge, vide judgment dated 7.8.2007, allowed the appeal in reversal of the dismissal of the suit by the trial court and decreed the suit for return of the advance amount of Rs.1,50,000/- with 12% interest from the date of suit till date of decree and thereafter with 6% interest till realisation. It is against the said decree that the appellant/defendant has come up, filing this Regular Second Appeal. 6. To resist the suit for specific performance, the appellant/defendant has set up a case that when he was in need of money, he approached one James Abraham (PW2) and the said James Abraham obtained loan from the respondent/plaintiff and as per the directions of the respondent/plaintiff, a signed blank stamp paper of value of Rs.50/-, two signed blank papers and also a signed blank cheque of Jobi Eapen (DW2) were obtained by way of security and RSA 286/08 5 that Exhibit A1 agreement is brought into existence by the respondent/plaintiff fraudulently. In view of the contentions raised by the appellant/ defendant on the above lines, over and above tendering evidence as PW1, the respondent/plaintiff got examined the said James Abraham as PW2. It has come out in evidence that Exhibit A1 is written in the handwriting of PW2. The contention of the appellant/defendant that attestors to Exhibit A1 agreement were not examined is not a contention that can be urged as a grievance by the appellant/ defendant as the examination of the said witness sought for by the respondent/plaintiff, though at a later stage of trial by filing a petition in that behalf, was not allowed by the trial court as opposed by the appellant/defendant. 7. It is to be remembered that execution of a document can be proved even without examining an attesting witness when there are other telling circumstances in proof of execution of the RSA 286/08 6 agreement. PW2 James Abraham is a friend of the appellant/defendant, projected by him as one who enabled him to avail of loan from the respondent/ defendant. It is seen that PW2 has actually written the agreement and he has testified that the appellant/defendant is his neighbour. According to the witness, the respondent/plaintiff as also the appellant/defendant approached him along with other witnesses to Exhibit A1 for writing the agreement and the words of the agreement were being dictated by the appellant/defendant himself and he has deposed that the respondent/plaintiff advanced Rs.1,50,000/- to the appellant/defendant under the said agreement. The case of the appellant/defendant suggested to PW2 has been denied by him as untrue. 8. It is worthy to note that the appellant/ defendant, who has set up a case of discharge, has not raised a little finger against non return of signed blank stamp paper, signed blank papers, signed cheque of DW2 and the title deed of his son, RSA 286/08 7 which he contended, were delivered over when the loan was advanced. No complaint also is given before any authority regarding non return of the documents and the conduct of the appellant/ defendant, as observed by the first appellate court, is very curious and unnatural. DW2, who swears to have given the blank cheque, has also not taken any steps to get back the signed blank cheque delivered over to James Abraham at the instance of the appellant/defendant. It is also not established on evidence as to the special affinity DW2 had towards the defendant so as to issue a signed blank cheque for the purpose of availing a loan for the appellant/defendant, as issuing signed blank cheque is not within the normal course of conduct of an ordinary prudent man. The above circumstances tell against the truth of the defence contention. Further, Exhibit A2 notice calling upon the appellant/defendant to execute the sale deed in compliance with Exhibit A1 agreement, which was RSA 286/08 8 received by him under Exhibit A4 postal acknowledgment card, has not been replied by the appellant/defendant, even as admitted by him. It is highly unnatural and improbable for the appellant/ defendant to keep quiet even without issuing a reply to Exhibit A2 notice, if, as contended, he had discharged the loan and had not executed Exhibit A1 agreement and Exhibit A1 agreement was being brought into existence fraudulently by the respondent/plaintiff. The respondent/plaintiff has further produced Exhibit A5 to show that a portion of the scheduled property has been sold by the appellant/defendant after execution of Exhibit A1 agreement. It was considering the subsequent sale of a portion of the scheduled property under Exhibit A5 also that the first appellate court has avoided granting a decree for specific performance, but granted only a decree for return of the advance amount of Rs.1,50,000/- with 12% interest from the date of suit till date of decree and thereafter RSA 286/08 9 with 6% interest till realisation. There is absolutely no question of law and much less any substantial question of law that arises for consideration by this Court in this Regular Second Appeal. This Regular Second Appeal is, hence, devoid of merit. In the result, I dismiss this Regular Second Appeal. 17th February, 2009 (K.P.Balachandran, Judge) tkv