IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 19TH OCTOBER 2011 / 27TH ASWINA 1933 RSA.No. 778 of 2011() --------------------- AS.237/2007 of II ADDL. DISTRICT COURT, TRIVANDRUM OS.449/2003 of I ADDL.SUB COURT,TRIVANDRUM .................... APPELLANTS/DEFENDANTS ----------------------------------------- 1. SASIDHARAN NAIR,S/O.RAMAN PILLAI, VP8/408,KARTHIKA,PANGODE,PEYAD PO, VILAVOORKKAL VILLAGE,THIRUVANANTHAPURAM. 2. PRASANNAKUMARI,W/O.SASIDHARAN NAIR, VP8/408,KARTHIKA,PANGODE,PEYAD PO, VILAVOORKKAL VILLAGE,THIRUVANANTHAPURAM. 3. AJITHKUMAR,S/O.SASIDHARAN NAIR, VP8/408,KARTHIKA,PANGODE,PEYAD PO, VILAVOORKKAL VILLAGE,THIRUVANANTHAPURAM. 4. ANIL KUMAR,S/O.SASIDHARAN NAIR, VP8/408,KARTHIKA,PANGODE,PEYAD PO, VILAVOORKKAL VILLAGE,THIRUVANANTHAPURAM. 5. REKHALEKSHMI THANKACHI,W/O.ANILKUMAR, VP8/408,KARTHIKA,PANGODE,PEYAD PO, VILAVOORKKAL VILLAGE,THIRUVANANTHAPURAM. BY ADV. SRI.M.SREEKUMAR RESPONDENT(S): PLAINTIFF ------------------------ K.KRISHNAN NAIR,S/O.RAMACHANDRAN PILLAI, KRISHNAKRIPA,PATHIRAPALLY,KUDAPPANAKUNNU, THIRUVANANTHAPURAM 695005. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.778 of 2011 ............................................ DATED THIS THE 19th DAY OF OCTOBER, 2011 JUDGMENT Defendants in O.S.No.449 of 2003 on the file of First Additional Sub Court, Thiruvananthapuram are the appellants. Respondent is the plaintiff. First appellant is the husband, second appellant, the wife and appellants 3 to 5, the children. Respondent instituted the suit for specific performance of Ext.A1 agreement for sale entered into by the appellants, whereunder they agreed to assign the plaint schedule property in favour of the respondent for a total consideration of Rs.1,75,000/-. Ext.A1 shows that out of the sale consideration on the date of its execution, Rs.1,10,000/- was paid as advance to appellants 1 and 2 and Rs.40,000/- to the third appellant and appellants handed over the original title deeds, encumbrance certificate, tax receipt and the relevant records to the respondent and agreed to execute the sale deed within three months after receiving the balance consideration of Rs.25,000/- and also to measure and specify the extent of the property. It was contended by the RSA 778/2011 2 respondent that on 5.1.2001, though respondent approached the appellants for measurement of the property and for execution of the sale deed, they evaded it and therefore Ext.A2 notice was issued calling upon the appellants to execute the sale deed. Appellants 1 and 2 received notice and third appellant returned the notice unclaimed and did not care to execute the sale deed. Hence a decree for specific performance of the agreement was sought for. On behalf of all the appellants, first appellant filed a written statement admitting the execution of the agreement. It was contended that it was not voluntarily executed and was obtained by the respondent by playing fraud and threatening the appellants and therefore it is vitiated. It was contended that appellants never agreed to sell the property to the respondent and they also did not receive any advance towards part of the sale consideration. It was contended that third appellant borrowed Rs.50,000/- from the respondent and when the respondent approached the appellants to give back the amount, he demanded Rs.1,00,000/- and third appellant was also threatened that respondent would file a cheque case using the blank signed cheque, showing an amount of Rs.10,00,000/- and RSA 778/2011 3 compelled the appellants to execute an agreement for sale. It is contended that Ext.A1 agreement was executed under such threat and therefore it is not valid. It was also contended that respondent had taken the original title and other records from the appellants and they have not agreed to sell the property and the agreement is vitiated by fraud and respondent is not entitled to the decree for specific performance of the agreeement for sale. 2. Respondent was examined as PW1 and the second attesting witness to the agreement who is also the scribe was examined as PW2. Third appellant was not examined. First appellant was examined as DW1 and the witness was examined as DW2. 3. Learned Sub Judge on the evidence found that having admitted the execution of Ext.A1 agreement, burden is on the appellants to establish that it is vitiated by fraud and coercion. Though PW2 was examined, he did not corroborate the evidence of PW1 and on the evidence, appellants did not succeed in establishing that Ext.A1 agreement was vitiated. Learned Sub Judge, accepting the evidence of PW2 which corroborates the evidence of PW1, held that Ext.A1 agreement for sale was RSA 778/2011 4 executed by the appellants agreeing to sell the plaint schedule property for a consideration of Rs.1,75,000/- and receiving the advance amount, and Rs.25,000/- is balance to be paid and therefore granted a decree for specific performance of the agreement for sale. Appellants challenged the decree before District Court, Thiruvananthapuram in A.S.237 of 2007. Learned District Judge on re-appreciation of the evidence confirmed the findings of the learned Sub Judge and dismissed the appeal. It is challenged in the second appeal. 4. Learned counsel appearing for the appellants was heard. The argument of the learned counsel is that courts below did not properly appreciate the evidence. It was pointed out that evidence of the respondent as PW1 establishes that he had instituted more than ten cases in respect of money advanced and it establishes that he is a money lender. Learned counsel pointed out that evidence of PW1 establishes that he is not in a position to name the locality where the property is standing or its boundaries and argued that if Ext.A1 is a genuine agreement for sale, respondent would have definitely disclosed these details. Learned counsel also argued that though Ext.A1 shows that all RSA 778/2011 5 appellants executed the agreement, first appellant has allegedly signed as Power of Attorney holder of appellants 4 and 5 and it was pointed out that first appellant had only affixed one signature and did not affix separate signatures for appellants 4 and 5 and therefore Ext.A1 agreement is not binding on appellants 4 and 5. Learned counsel also argued that evidence of PW1 establishes that the consideration shown in Ext.A1 is less than the prevailing market value and in such circumstances, even if it is found that the agreeement is genuine, courts below should not have exercised the discretion in favour of the respondents, as it is inequitable to grant specific performance of agreement as provided under sub-section 2(c) of Section 20 of the Specific Relief Act. Learned counsel finally argued that when respondent has not signed in Ext.A1 and it is only a unilateral agreement, a decree for specific performance should not have been granted. 5. Ext.A1 is a registered agreement for sale. Appellants are admitting its execution. It was contended that it was got executed by the respondent by threat and coercion. As rightly found by the courts below, in the light of the contentions, having admitted the execution and contending that it is vitiated by fraud RSA 778/2011 6 and coercion, burden is on the appellants to establish that Ext.A1 agreement is vitiated on the grounds set up in the written statement. As rightly found by the courts below, case of the appellants is that third respondent borrowed Rs.50,000/- from the appellants and when the amount was demanded, respondent threatened to institute a cheque case by entering Rs.10,00,000/- in the blank cheque furnished by the third appellant, unless all the appellants together execute an agreement for sale and in such circumstances, Ext.A1 agreement was executed. As rightly pointed out by the courts below, when the respondent is denying the monetary transaction alleged by the appellants, it is for them to prove the same. DW1 has no case that he has any personal knowledge with regard to the alleged borrowal of money by the third appellant. Third appellant was not examined to prove that he borrowed Rs.50,000/- and respondent asked for Rs.1,00,000/- and threatened that a cheque case will be instituted unless the appellants execute an agreement for sale. In such circumstances, based on the evidence of DW1, it cannot be found that third respondent borrowed money and for that money, respondent compelled the appellants to execute Ext.A1 RSA 778/2011 7 agreement. Though DW2 was examined to prove the alleged threat and coercion, as rightly appreciated by the courts below, evidence of DW2 is not believable as he is not aware whether Krishnan Nair, who allegedly threatened the third appellant was the respondent or somebody else. Evidence of DW1 even if believed is insufficient to prove the alleged fraud or coercion. As against this, evidence of PW2 who is the scribe and one of the attesting witnesses to Ext.A1, establishes the voluntary execution. If the case of appellants is true and they were compelled to execute the registered sale agreement, one would definitely expect them to file a complaint either before the police or other appropriate authority. But they did not do so. In such circumstances, on the appreciation of the evidence, courts below rightly found that Ext.A1 agreement is not vitiated by fraud or coercion. 6. Though learned counsel argued that as Ext.A1 was not signed by the respondent and so, it is a unilateral agreement and therefore cannot be enforced, I find that such a contention was not raised either before trial court or first appellate court. Ext.A1 agreement though not signed by the respondent, provides the RSA 778/2011 8 consequences as against the respondent also, if the agreement was not performed. In such circumstances, for the reason that respondent did not affix his signature in Ext.A1, it cannot be said that the agreement cannot be enforced as against the appellants who are the signatories to him. Appellants have no case that first appellant father was not the power of attorney holder of appellants 4 and 5 or first appellant did not affix his signature in Ext.A1 for appellants 4 and 5. Hence the said contentions cannot be accepted. 7. Then the question is whether courts below exercised the discretion to grant the decree for specific performance, legally. The argument of the learned counsel is that when the value agreed under Ext.A1 is far less than the prevailing land value, even though Ext.A1 agreement is not voidable, its performance would make it inequitable and therefore a decree for specific performance should not have been granted. To accept the submission, there should be evidence to establish that the market value prevailing in the locality, on the date of execution of Ext.A1 agreement, was far more than what was shown in the agreement. True, DW1 claimed that the value shown in Ext.A1 RSA 778/2011 9 agreement is far less, which was denied by the respondent. There was only oath against oath and no evidence to prove the actual value. In such circumstances, for the reason that value shown in Ext.A1 was allegedly less than the prevailing value, which is not proved, it cannot be said that enforcing specific performance of the agreement would be inequitable. In such circumstances, I find no substantial question of law involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk