IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 27TH JUNE 2011 / 6TH ASHADHA 1933 RSA.No. 1100 of 2004(E) ----------------------- AS.412/2000 of ADDL.DISTRICT COURT, THRISSUR OS.1092/1997 of II ADDL.MUNSIFF COURT.,THRISSUR .................... APPELLANT/APPELLANT IN A.S.NO.412/2000/DEFENDANT IN O.S. NO.1092/1997 --------------------------------------------------------------------------------------------------- DEVAKI, HOUSE WIFE, AGED 52 YEARS, W/O. VELAMBATH VELAYUDHAN, MULLAKKARA DESOM, PARALAM VILLAGE, THRISSUR TALUK. BY ADV. SRI.P.GOPAKUMARAN NAIR SRI.C.S.DIAS RESPONDENT(S): 1ST RESPONDENT IN A.S.412/2000/PLAINTIFF IN O.S.NO.1092/1997 ---------------------------------------------------------------------------------------------------------------------- SIVADASAN, GOLDSMITH, AGED 34 YEARS, S/O. VELLIYATTIL VEETTIL GOPALAN, MULLAKKARA DESOM, PARALAM VILLAGE, THRISSUR TALUK. ADV. SRI.DILIP J. AKKARA THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27/ 6 / 2011 THE COURT ON 27/06/2011 PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 1100 OF 2004 =========================== Dated this the 27th day of June,2011 JUDGMENT Defendant in O.S.1092/1997 on the file of II Additional Munsiff Court, Thrissur is the appellant. Plaintiff is the respondent. Respondent instituted the suit for specific performance of the original of Ext.A5 agreement dated 20.4.1995. According to respondent, appellant agreed to sell 60 cents of paddy land belonging to her in Sy.No.712/2, 713/2 and 720/2 in favour of the respondent for a total consideration of Rs.22,500/- and executed the original of Ext.A5 agreement after receipt of Rs.15,000/- as advance towards the sale consideration undertaking to execute the sale deed within two months and before the expiry of the period respondent approached the appellant to get the sale deed executed. It was alleged R.S.A.1100/2004 2 that on 24.6.1995 respondent along with one Prakasan went to the house of the appellant and requested her to execute the sale deed. She was not prepared to execute the sale deed. Therefore respondent sent Ext.A1 lawyer notice demanding execution of the sale deed. She sent Ext.A4 reply notice denying the agreement and setting up false case that the agreement was got executed by threat and coercion and the allegation is not correct. In order to escape from the liability created under the agreement, husband of the appellant filed a complaint before Special Court, Thrissur alleging commission of offences under the SC/ST (Prevention of Atrocities) Act. In that complaint it was alleged that on 17.4.1995 respondent got the appellant signed some papers and forcibly received ornaments from the daughters and the case is pending before Judicial First Class Magistrate, Thrissur. As the appellant is not prepared to execute the sale deed, she is entitled to get the sale deed executed through court. It was also R.S.A.1100/2004 3 contended that in any case if it is found that respondent is not entitled to specific performance of the agreement for sale, he is entitled to get the advance amount returned along with damages of Rs.15,000/-. It is alleged that respondent lost Rs.2000/- being wages as he was compelled to go to the police station and thereafter had to spent Rs.5000/- for getting bail and again had to spent Rs.3000/- for the expenses and he also sustained mental agony and harassment. 2. Appellant resisted the suit contending that she never intended to sell the plaint schedule property and never agreed to sell the property and the property is worth Rs.60,000/- and she did not voluntarily execute any agreement on 20.4.1995 as alleged. It was contended that respondent is not entitled to the decree for specific performance of the agreement for sale. Appellant also contended that her son Subramaniam had worked with the respondent and alleging that he had misappropriated some gold ornaments belonging to the respondent, R.S.A.1100/2004 4 respondent came to her house and forcibly took the title deed of the property and took the appellant and her husband in a car to Cherpu and forced her to sign in some blank stamp papers and white papers and she did not execute any agreement and therefore she is not liable to execute the sale deed or pay any damages. 3. Learned Munsiff on the evidence of PWs. 1 to 6, DW1, Exts.A1 to A6 and Exts.X1 to X3 found that the original of Ext.A5 agreement was executed voluntarily by the appellant agreeing to assign the plaint schedule property for a total consideration of Rs.22,500/- and received an advance of Rs.15,000/- and agreed to execute the sale deed on payment of the balance consideration and the defence case that agreement was vitiated by coercion is not proved and as the respondent was always ready and willing to perform his part of the contract, he is entitled to the decree for specific performance of the agreement. The suit was decreed. Appellant challenged the judgment R.S.A.1100/2004 5 before District Court, Thrissur in A.S.412/2000. Learned District Judge on reappreciation of evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 4.Appeal was admitted formulating the following substantial questions of law. (i) Have not the Courts below committed a serious error in law in admitting in evidence, photostat copies of the documents especially Exhibit A5, purported to be the photostat copy of the alleged agreement for sale, on the facts of this case without sufficient ground for admitting secondary evidence and examining witnesses to prove the genuineness of the copy? (ii) Have not the Courts below committed a serious error of law R.S.A.1100/2004 6 in not properly considering the effect and consequence of the return of the original of the alleged agreement and also the title deed of the property, to the appellant by the respondent? (iii) Have not the Courts below erred, in not properly considering and appreciating, the circumstances revealed by unimpeachable evidence regarding the criminal complaint and prosecution against the respondent and his men? (iv) Have not the Courts below committed a mistake in casting the burden on the defence to disprove the agreement when the plaintiff ostensibly had relinquished his claim, under the agreement by surrendering R.S.A.1100/2004 7 the agreement to the purported executant of the agreement? (v) Have not the Courts below committed an error in not properly appreciating the scope and purport of Exhibit X1, submitted by the appellant. (vi) Have not the Courts below, committed a grave error, in granting a decree for specific performance, when the respondent has not produced or proved the alleged agreement for sale. 5. Learned counsel appearing for the appellant and respondent were heard. 6. Though learned counsel appearing for the appellant vehemently argued that courts below did not properly appreciate the evidence and on the evidence it should have been found that Ext.A1 agreement for sale was not executed by the appellant and instead was forcibly got signed by R.S.A.1100/2004 8 the appellant in a blank stamp paper, in the light of the evidence on record and the factual findings of the courts below, I cannot accept the argument. The case of the appellant was that respondent came to her house and forcibly took title deed of the property and also took the appellant and her husband in a car and brought them to Cherpu and forcibly got the signature of the appellant in a blank stamp paper on 17.4.1995. Courts below on the evidence found that even the stamp paper was purchased subsequently and the evidence establish that original of Ext.A5 agreement was voluntarily executed by the appellant. 7. Though the original of Ext.A5 agreement was not produced before the trial court, evidence of the appellant as DW1 establishes that based on her complaint respondent was made to produce the title deed of the plaint schedule property as well as the original of Ext.A5 agreement, before the Police Station. From the Police Station they were given to the appellant. Ext.X1 attested copy of petition R.S.A.1100/2004 9 register of Cherpu Police Station with Ext.X2 the report of the Sub Inspector of Police, Cherpu establish this fact. In such circumstances, for the non-production of the original of Ext.A5, it cannot be said that a decree cannot be granted based on the agreement. 8. But the crucial question is whether respondent is entitled to a decree for specific performance of the agreement for sale as found by the courts below. Learned counsel appearing for the respondent vehemently argued that the very baseless defence taken by the appellant, which is disproved is sufficient to hold that appellant has not come to the court with clean hands and hence she is not entitled to any premium on the basis that she is an illiterate lady belonging to lower strata of the society. Learned counsel argued that Ext.A5 agreement shows that out of Rs.22,500/- payable, Rs.15,000/- was paid and only Rs.7500/- remained to be paid and respondent has always been ready and willing to perform his part of the R.S.A.1100/2004 10 agreement and therefore he is entitled to get a decree for specific performance of the agreement. As rightly pointed out by the learned counsel appearing for the appellant, from the evidence of PW1, it is absolutely clear that the transaction was not a bona fide agreement to sell or purchase. The evidence of PW5, the scribe strengthens the case of the appellant that a promissory note for Rs.15,000/- was written by the scribe at the instance of the appellant and the respondent some months prior to the execution of the original of Ext.A5 agreement for sale. It is to be born in mind that the advance amount paid as shown in Ext.A5 is also Rs.15,000/-. If appellant intended to sell her property and the respondent was a bona fide purchaser who was willing to purchase it, there was no impediment for the respondent to get a sale deed executed, instead of an agreement for sale. Added to this, eventhough it is the case of the respondent himself that he was made to produce the original of Ext.A5 along with the title deed R.S.A.1100/2004 11 before the police on 20.7.1998, as evidenced by the entry in Ext.X1, respondent did not take any step for getting back the original of Ext.A5 agreement or the title deed. If respondent was forced to produce the same before the police so as to handover them to the appellant by threat or coercion, one would definitely expect a complaint to be filed against the concerned police officer before the superior authority, if not before the court. Even if it is taken that the agreement for sale was forcibly taken by the police at the instance of the appellant and it was actually executed as an agreement for sale and respondent was prepared to get the sale deed executed, it is not known why he waited for two years after it was produced in the police station to institute a suit for specific performance of the agreement. It undoubtedly discloses that the transaction was only on a monetary transaction whereunder Rs.15,000/- was received by the appellant and executed Ext.A1. Ext.A1 in such circumstances could only be R.S.A.1100/2004 12 executed as security though purported to be an agreement for sale, to enable the respondent to realise the amount. In such circumstances, on the evidence, the courts below erred in granting a decree for specific performance of the agreement for sale. 9. Learned counsel appearing for the respondent then submitted that in addition to the advance amount paid respondent is also entitled to get damages. Reliance was placed on the recitals in Ext.A1 about damages. As found earlier, agreement for sale was not actually executed to sell the property; but only as security. Therefore much importance cannot be given to the recital on the liability to pay damages. Moreover, the damages sought for by the respondent is the damages which he allegedly sustained due to the police complaint and the criminal case. Respondent is not entitled to the said damages in the suit and if at all he can claim damages for malicious prosecution, if he is otherwise entitled R.S.A.1100/2004 13 to. As the evidence establishes that appellant has received Rs.15,000/- on 20.4.1995, appellant is bound to pay the same with interest at 6% per annum. Therefore the decree is to be modified to that extent, setting aside the decree for specific performance granted by the courts below. Appeal is allowed in part. The concurrent judgment in O.S.1092/1997 on the file of II Additional Munsiff Court, Thrissur as confirmed by the District Judge in A.S.412/2000 is set aside. O.S.1092/1997 stands decreed as follows:- Plaintiff is entitled to realise Rs.15,000/- with interest at 6% per annum from 20.4.1995. The plaint schedule property will be a charge for that amount. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006