IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE MONDAY, THE 10TH NOVEMBER 2008 / 19TH KARTHIKA 1930 AS.No. 376 of 1996() -------------------- OS.298/1993 of SUB COURT, MUVATTUPUZHA .................... APPELLANT(S): PLAINTIFF -------------- T.E.BHASKARAN AGED 47 YEARS S/O EKKORAN, THRIKKEPARAMBIL NELLIMATTOM KARA MANIKKANAR P.O. KOTHAMANGALAM BY ADV. SRI.THOMAS V.JACOB SRI.SUJI MATHEW JOSE RESPONDENT(S): DEFENDANT --------------- V.S.PRABHAKARAN AGED ABOUT 33 YEARS S/O SREEDHARAN RESIDING AT VALIAPARMBIL NERIAMANGALAM ADV. SRI.S.ANANTHA SUBRAMANYAN,S.SHYAM SRI.T.P.MURALEEDHARAN, SRI.PHILIP M.VARGHESE SRI.G.SUBRAMANYAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 10/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE, J. - - - - - - - - - - - - - - - - - - - - - A.S.No. 376 OF 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of November , 2008 JUDGMENT The plaintiff in a suit for specific performance of a contract for sale of immovable property or in the alternative for recovery of money is the appellant. The case of the plaintiff as averred in the plaint is that the plaintiff and the defendant are relatives well known to each other. The defendant borrowed a sum of Rs. 50,000/- in October 1992 for his contract work. As there was no response from the defendant to the plaintiff's demand for repayment of the amount, the plaintiff approached the defendant several times and ultimately the defendant agreed to sell his property having an extent of 50 cents in Sy. No. 133/A 7 166/1 of Neriamangalam village for Rs. 50,000/- and executed an agreement under his own hand writing dated 2-12-1992 ( Ext.A1) and that as per that agreement the plaintiff is entitled to get the sale deed executed on 29-12-1992. The plaintiff was willing to get the sale deed executed from the defendant on 29-12-1992 and on subsequent dates. Defendant however was not ready to execute the sale AS.No. 376/96 2 deed. Defendant has not handed over the basic document for preparing the sale deed. The plaintiff therefore met the defendant several times and requested the defendant to execute the sale deed or to repay the advance amount with interest. The defendant was not prepared to perform his part of the agreement. The plaintiff therefore issued lawyer notice demanding settlement of the transaction either by executing the sale deed or by repaying the amount. The plaintiff on the above allegation filed the suit for a direction to the defendant for executing the sale deed and if the defendant fails to execute the sale deed, get the sale deed executed through court or in the alternative allowing recovery of a sum of Rs. 50,000/- with interest and cots. 2. In the written statement, the defendant admitted that Ext.A1 agreement is one written by him in his own hand writing. He contends that the amount of Rs. 50,000/- was not due from him to the plaintiff. His contention was that he was conducting business jointly with the plaintiff and when the business fell into loss, accounts were settled as on 31-03-1991. As security for the liability, amount of Rs. 50,000/- , 50 cents of property belonging to the defendant was decided to sold AS.No. 376/96 3 and it was under such circumstances that the agreement was executed. It was further contended that the agreement for sale was not intended to be acted upon. 3. The learned Subordinate Judge on the basis of the contentions of the parties, formulated the following issues for trial: 1) Whether the suit is maintainable ? 2) Whether the defendant executed the agreement for sale after accepting the consideration ? 3) Whether the plaintiff is entitled to get the specific performance of contract ? 4) Whether the plaintiff is entitled to get a decree for the return of the amount ? 5) Reliefs and costs 4. The evidence at trial consisted of Ext.A1 agreement, Ext.A2 copy of the suit notice sent to the the defendant and Ext.A3 postal acknowledgment card signed by the defendant on the side of the plaintiff. There was no documents on the side of the defendants. The oral testimonies on the side of the plaintiff consisted of plaintiff's own AS.No. 376/96 4 testimony as PW1. On the side of the defendant, it consisted of defendant's own testimony as DW1 and the testimonies of two witnesses - DW2 and DW3. 5. Considering issue No.1, the learned Subordinate Judge found that the suit is maintainable being a suit of civil nature. Issue Nos. 2 and 3 were considered together by the learned Subordinate Judge . It was found by the learned Judge on appreciating the evidence that Ext.A1 was executed by the defendant under his own hand writing, but under circumstances as contended by the defendant. Accordingly, it was found that the plaintiff is not entitled to get the agreement enforced. Coming to issue No. 4, the learned Subordinate Judge relied on his finding under issue No.2 that on the date of Ext.A1 no payment was made and on that basis answered issue No.4 also against the plaintiff. The result was that the suit stood dismissed without costs. 6. Sri.Mohan Jacob George, learned counsel for the appellant and Sri.S.Shyam, learned counsel for the respondent have addressed me in detail on behalf of their respective parties. Sri.Mohan Jacob referred to Exts.A1, A2, testimonies of PW1, DWs 1 to 3. Learned counsel AS.No. 376/96 5 referred also to Section 92 of the Evidence Act and submitted that having found that Ext.A1 is a document executed by the defendant in his own hand writing, the oral evidence adduced on the side of the defendant contrary to the terms of Ext.A1, was not admissible in view of Section 92 of the Evidence Act. Learned counsel highlighted that no reply notice was sent at all to the defendant to Ext.P2 lawyer notice. Sri.S.Shyam, learned counsel for the respondent would support the judgment of the court below on the basis of the reasons stated in the judgment. 7. I have anxiously considered the rival submissions addressed at the Bar. I have scanned the entire evidence in this case. I am in agreement with the learned counsel for the appellant who submits that the learned Subordinate Judge was not justified in blaming the plaintiff for not having adduced evidence to prove his case of payment of money to the defendant. Ext.A1 agreement is admitted in the written statement itself and is proved by PW1 through the evidence given. I do not find any cross-examination of the plaintiff challenging his version regarding execution of Ext.A1 by the defendant. That AS.No. 376/96 6 being the situation, there was no necessity for the plaintiff to have adduced further evidence to prove the recitals in Ext.A1. The admission of Ext.A1 and the formal proof given to Ext.A1 by PW1 shifts the onus completely to the defendant to prove that he is not liable to pay the amount mentioned in Ext.A1. Importantly, Ext.A1 was in the hand writing of defendant himself. On going through the testimonies of DWs 1 to 3 , I do not find any acceptable legal evidence to justify the contention of the defendant which appears to have found favour with the learned Subordinate Judge that the defendants have settled the account by making payment of whatever is due to the plaintiff. The above contention was capable of documentary evidence and in the absence of documentary evidence as against Ext.A1, the learned Subordinate Judge should have accepted the plaintiff's case that the liability mentioned in Ext.A1 has not been discharged. 8. The entitlement of the plaintiff to get decree for specific performance is a matter which rests on the discretion of the court. I feel that in this case where it is practically agreed to by both sides that the agreement to sell the property was entered into for securing the AS.No. 376/96 7 liability which the defendant owed to the plaintiff, it will not be equitable to decree specific performance. Under the above circumstances, I hold that the decree which could have been passed in favour of the plaintiff appellant was decree for money only. The result of the above discussion is that the judgment and decree under appeal will stand set aside and the appeal will stand allowed. The suit is decreed for recovery of a sum of Rs. 50,000/- together with interest thereon at the rate of 6% per annum from the date of suit till the date of realisation and also the costs of the plaintiff on the trial side. The parties will suffer their costs in this appeal. PIUS.C.KURIAKOSE JUDGE sv. AS.No. 376/96 8