IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 20TH AUGUST 2009 / 29TH SRAVANA 1931 AS.No. 439 of 1998(D) --------------------- OS.408/1992 of ADDL.SUB COURT, NORTH PARAVUR .................... APPELLANT(S): PLAINTIFF -------------- GEORGE ALIAS JOHNY, S/O. VARGHESE KATHANAR, ARAYKKAPARAMBIL (NEDUMTHALIL), NADUVATTOM KARA, MANJAPRA VILLAGE. BY ADV. SRI.ELDHO PAUL SRI.M.P.RAMNATH, SRI GOPAKUMAR RESPONDENT(S): DEFENDANTS --------------- 1. JOHNY, S/O. PALAMATTOM ANTHONY, NADUVATTOM KUNNILANGADI KARA, NEELESWARAM VILLAGE, MALAYATTOOR. 2. LILLY, W/O. JOHNY, DO. DO. ADV. SRI.V.RAJENDRAN SRI.GEORGE VARGHESE KIZHAKKAMBALAM FOR THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 20/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q. BARKATH ALI, J. -------------------------------------- A.S. 439 of 1998 -------------------------------------- Dated: AUGUST 20, 2009 JUDGMENT The plaintiff in O.S.408/1992 of Addl. Sub Court, North Paravur, which is a suit for specific performance of an agreement for sale, challenges the decree and judgment of the lower court dated December 21, 1996 in so far as the lower court did not accept the receipt Ext.A3 and did not grant a decree for specific performance of the agreement for sale. 2. The case of the appellant/plaintiff as stated in the plaint and as testified by him as PW.1 before the lower court in brief is this:- The defendants have agreed to sell the plaint schedule property having an extent of 10 cents with a building therein for a consideration of Rs.59,000/- to the plaintiff and they executed an agreement for sale on December 16, 1991. An advance of Rs.12,000/- was paid on that day. The last date of the agreement was May 31, 1992. On March 3, 1992 the defendants approached the plaintiff and executed a renewed agreement extending the time to execute the sale deed till July 1, 1992. A further advance of Rs.15,500/- was paid on that day by A.S. 439 of 1998 2 the plaintiff to the defendants. On June 9, 1992 the defendants again approached the plaintiff and demanded a further amount of Rs.30,000/- which was also paid by the plaintiff to the defendants. But, in spite of the notice issued by the plaintiff, the defendants failed to execute the sale deed. 3. The respondents/defendants are husband and wife. The defendants before the lower court admitted the execution of the agreement Ext.A1 and receipt of the advance amount of Rs.12,000/- and extension of the agreement till July 1, 1992 but denied the receipt of further advance amount of Rs.15,500/- on 3.3.1992 and Rs.30,000/- on 9.6.1992. According to them, they were willing to execute the sale deed, but the plaintiff was not willing. 4. On the side of the plaintiff, Pws.1 to 4 were examined and Exts.A1 to A5 were marked. Dws.1 to 3 were examined on the side of the defendants before the lower court. The lower court on an appreciation of evidence granted a decree for recovery of the advance amount of Rs.27,500/- with interest. The lower court found that ExtA3 receipt is not proved and that therefore the plaintiff has failed to prove the payment of the A.S. 439 of 1998 3 advance amount of Rs.30,000/-. The plaintiff has now challenged the said decree and judgment so far as the lower court has not granted a decree for specific performance. The plaintiff has also challenged the finding of the lower court regarding Ext.A3 receipt. 5. When the appeal came up for hearing the learned counsel for the appellant/plaintiff submitted that the plaintiff will be satisfied with a decree for recovery of the entire advance amount including Rs.30,000/- covered by Ext.A3. Therefore the main question for consideration is whether the plaintiff has suceeded in proving Ext.A3 receipt. 6. The defendants have admitted the execution of Ext.A1 agreement dated December 16, 1992 and receipt of advance amount of Rs.12,000/-. The last date of the agreement was May 31, 1992. According to the plaintiff on March 3, 1992, the defendants approached the plaintiff and executed a renewed agreement Ext.A2 and obtained a further advance of Rs.15,500/-. It is the further case of the plaintiff that on 9.6.1992 the defendants obtained a further advance of Rs.30,000/- and issued Ext.A3 receipt. The execution of Exts.A2 and A3 and receipt of A.S. 439 of 1998 4 the amounts mentioned therein was denied by the defendants. To prove the execution of Exts.A2 and A3, Pws.2 to 4 were examined on the side of the plaintiff before the lower court. PW.2 is a witness to Exts.A1 and A2. PW.3 is a witness to Ext.A3. PW.4 is the scribe of Exts.A2 and A3. The lower court believed the evidence of Pws.2 and 4 regarding the execution of Ext.A2 but disbelieved their evidence regarding the execution of Ext.A3. The execution of Ext.A2 and receipt of further amount of Rs.15,500/- is not seriously challenged in this appeal. The challenge is only with regard to Ext.A3 receipt. The lower court has found some minor discrepancies in the writings in Ext.A3 and also in the evidence of Pws.1, 3 and 4 and disbelieved their evidence. But on going through the evidence of Pws.1, 3 and 4, I find that they gave a consistent version regarding the execution of Ext.A3 and the receipt of a further advance amount of Rs.30,000/- by the defendants. P.W.1 would say that Ext.A3 was executed from his house, that the same was written by P.W.4 Sri M.N.Gopalakrishnan Nair, that the first defendant after signing in Ext.A3 took it to his house and obtained the signature of 2nd defendant. Pws.3 and 4 gave a similar version. I have A.S. 439 of 1998 5 gone through their evidence. No material discrepancies were brought out in their cross-examination regarding the execution of Ext.A3. I find no special reason to disbelieve their evidence regarding the execution of Ext.A3 alone. Therefore I am inclined to accept the evidence of Pws.1 to 4 regarding the execution of Ext.A3 and payment of a further advance amount of Rs.30,000/- by the plaintiff to the defendants. Therefore the finding of the lower court on this point has to be set aside and the appeal has to be allowed. As regards future interest, as the present transaction is not a commercial transaction, the appellant is entitled to future interest only at 6% per annum. In the result, the appeal is allowed. The decree of the lower court is modified to the effect that the appellant/plaintiff is given a decree for recovery of Rs.57,500/- from the defendants and their assets with future interest at the rate of 6% per annum from the date of suit till realisation and with costs throughout. The amount is made as a charge on the plaint schedule property. P.Q. BARKATH ALI, JUDGE mt/-