IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 11TH JULY 2011 / 20TH ASHADHA 1933 RSA.No. 475 of 2011() --------------------- AS.11/2002 of SUB COURT, PAYYANNUR OS.42/1999 of MUNSIFF COURT, PAYYANNUR .................... APPELLANT/RESPONDENT/PLAINTIFF -------------------------------------------------- MATHRADAN PUTHIRAKKAL PREMKUMAR, S/O. KALLYANI AMMA, AGED 48 YEARS, KUNHIMANGALAM AMSOM, EDANAD DESOM, KANNUR DISTRICT-670141, TALIPARAMBA.P.O. BY ADV. SRI.M.SASINDRAN SRI.A.ARUNKUMAR RESPONDENT(S): APPELLANT/DEFENDANT -------------------------------------------------------------- KURIA RAMACHANDRAN, S/O. PAITHAL, AGED 42 YEARS, T. RAMAN COMPANY, PAYYANNUR, RESIDING AT PAYYANNUR AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 475 OF 2011 =========================== Dated this the 11th day of July,2011 JUDGMENT Plaintiff in O.S.42/1999 on the file of Munsiff Court, Payyannur filed this appeal challenging the judgment of Sub Court, Payyannur in A.S.11/2002 whereunder the learned Sub Judge set aside the decree passed by the trial court to the extent of granting specific performance of Ext.A1 agreement for sale and modified the decree directing the respondent defendant to return the advance amount with interest. 2. Learned counsel appearing for the appellant was heard. 3. The argument of the learned counsel is that in spite of the contention raised by the respondent that he did not execute Ext.A1 agreement, courts below on proper appreciation R.S.A.475/2011 2 of evidence found that Ext.A1 agreement for sale was executed by the respondent and though learned Munsiff granted specific performance of the agreement for sale, first appellate court set aside the decree for specific performance of the agreement holding that granting the decree would give an undue advantage to the appellant. The argument of the learned counsel is that, fact that value of the property has increased from the value fixed in the agreement is not a ground to hold that execution of the sale deed pursuant to the agreement for sale, would give undue advantage to the appellant as found by the first appellate court and when the respondent agreed to sell 9.25 cents of land for a total consideration of Rs.1,00,000/- and received Rs.50,000/- and agreed to execute the sale deed after receiving the balance consideration, first appellate court was not justified in reversing the decree. 4. As rightly found by the first appellate court the fact that an agreement for sale was R.S.A.475/2011 3 executed, though execution was denied by the respondent, was proved and upheld by the courts below by itself is not a valid reason for holding that appellant is entitled to a decree for specific performance of agreement for sale. As provided under sub section (1) of Section 20 of the Specific Relief Act, the jurisdiction to grant a decree for specific performance of the agreement is discretionary. The court is not bound to grant such relief merely because it is lawful to do so. The first appellate court on proper appreciation of evidence found that evidence of PW1 establishes that he has no knowledge about the details of the property sought to be purchased under Ext.A1 agreement and he expressed ignorance about the distance to the property and also disclosed that he has no business near to the property agreed to be sold under Ext.A1. This will not be the conduct of an ordinary prudent man who enters into an agreement for sale for the purchase of the property. It is clear that the intention is not to R.S.A.475/2011 4 purchase the property but to get security for the amount advanced. In such circumstances, I find no substantial question of law involved in the appeal as the first appellate court has granted a decree for the return of the advance amount received under Ext.A1, with interest from the date of execution of the agreement. Appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006