IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 3RD FEBRUARY 2010 / 14TH MAGHA 1931 RSA.No. 1125 of 2009() ---------------------- AS.251/2004 of DISTRICT COURT,THIRUVANANTHAPURAM OS.56/2002 of SUB COURT,NEYYATTINKARA .................... APPELLANTS/APPELLANTS/DEFENDANTS: -------------------- 1. SURESH KUMAR, S/O.J.S.MONY, RESIDING AT THEZHANINNA THYKOOTAM, MEVARATHU VEEDU, ARUMANOOR DESOM, THIRUPURAM VILLAGE. 2. USHA, W/O.SURESH KUMAR, RESIDING AT -DO- -DO- -DO- BY ADV. SRI.VARGHESE PREM RESPONDENT(S)/RESPONDENT/PLAINTIFF: --------------- BINUKUMAR, S/O.SYLUS NADAR, RESIDING AT B.J.BHAVAN, POOVAR, THIRUPURAM VILLAGE, NEYYATTINKARA ADV. SRI.G.SUDHEER KARAKONAM THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.1125 of 2009 -------------------------------------- Dated this the 3rd day of February, 2010. JUDGMENT Second Appeal arises from concurrent findings entered by courts below and the verdict in favour of respondent/plaintiff for return of advance money of Rupees one lakh with interest at the rate of 12% per annum from the date of advance till date of decree and thereafter at the rate of 6% per annum till realisation. According to respondent/plaintiff, appellants - husband and wife entered into Ext.A1, agreement dated 27.01.2001 with him for sale of the suit property measuring ten cents and building to him for a total consideration of Rs.1,50,000/- and received Rupees one lakh by way of advance on the date of agreement. Agreement provided one year's time for performance of the contract. Since appellants did not perform their part of contract respondent issued notice dated 16.01.2002 demanding specific performance to which appellants sent a reply refuting the claim of respondent. Hence the suit for specific performance. Appellants contended that there is no such agreement nor had they executed Ext.A1. They had not received Rupees one lakh by way of advance. Suit property was valued about Rs.3,50,000/- at the relevant time. Appellants had borrowed Rs.10,000/- from respondent undertaking to repay the same with interest at the of 7% per annum. At the time of transaction respondent had obtained signed blank stamp papers from the appellants which has been misused. Appellants paid interest to the respondent till 05.09.2001. Learned RSA No.1125/2009 2 Munsiff found in favour of due execution of Ext.A1 but considering the circumstances brought out in evidence exercised discretion under Section 20 of the Specific Performance Act (for short, “the Act”) in favour of appellants and granted respondent decree for realisation of the advance sum of Rupees one lakh with interest as first above stated. Respondent did not challenge judgment and decree of the trial court. On appeal by appellants, first appellate court has confirmed the finding of the trial court. Hence Second Appeal urging by way of substantial questions of law whether courts below were justified in accepting Ext.A1 as a true and genuine document, granting relief based on that and whether Ext.A1 being an incomplete document satisfied requirement of Order 7 Rule 14 of the Code of Civil Procedure. It is contended by learned counsel that on the admitted facts courts below ought to have found that Ext.A1 is an incomplete and fraudulently created document. 2. So far as Ext.A1 is concerned, respondent has given evidence as PW1. PW2 is the scribe of Ext.A1 and PW3 who claimed to have negotiated the deal is an attestor in Ext.A1. PWs 1 to 3 have given evidence regarding due execution of Ext.A1. They claimed that at the time of execution of Ext.A1 respondent paid Rupees one lakh by way of advance to the appellants. It came out in the evidence that the schedule of property in Ext.A1 was written after the parties signed the last page. Learned counsel for appellants has given to me a RSA No.1125/2009 3 photocopy of Ext.A1 which justifies that statement of learned counsel as after the schedule, none has signed. But that alone is not sufficient to hold that Ext.A1 is either an incomplete document or fraudulently created. Reason is that details regarding property allegedly agreed to be sold is given in page Nos.1 and 2 of Ext.A1 itself and those pages admittedly have been signed by appellants. Therefore, mere fact that the schedule of property was incorporated in Ext.A1 after the parties signed it is not by itself fatal. 3. Yet another argument advanced by learned counsel is that it is admitted by PW1 that there is slight difference in the papers on which Ext.A1 is written. That also is no ground to reject Ext.A1 as fraudulently created since on those pages appellants have concededly signed. It is true that appellant No.1 has given evidence as DW1 and denied execution of Ext.A1. Courts below acting on the evidence of PWs 1 to 3 found in favour of its due execution and that being a finding of fact which rested on proper appreciation of evidence involved no substantial question of law. 4. It is then argued by learned counsel for appellants that though the property scheduled in Ext.A1 is ten cents courts below proceeded on the basis that it is three cents and accordingly held that advance of Rupees one lakh is justified. Learned counsel contends that PW1 has admitted that property is RSA No.1125/2009 4 valued at Rs.75,000/- per cent. Learned counsel invites my attention to Ext.B1, blue print for the building in the suit property and Ext.B3, valuation report submitted by the Assistant Executive Engineer. As per Ext.B3, building is valued at Rs.2,61,000/-. It was suggested to the respondent when examined as PW1 that the building in the suit property has six rooms as per the assessment register but he pleaded ignorance and claimed that there are four rooms in the building. These circumstances do not in any way affect the genuineness of Ext.A1. It is certainly taking into account those circumstances that trial court refused to order specific performance of the agreement and instead, granted relief of return of advance money with interest as aforesaid. Evidence of PWs 1 to 3 and Ext.A1 justify that finding. True, appellant No.1 has given contra evidence as DW1 but that is not supported by any corroborative material. Finding of the courts below is on an appreciation of evidence which do not present any substantial question of law requiring admission of the Second Appeal. 5. At this stage learned counsel for appellants requested that some time may be granted to the appellants for payment of the decree amount. Learned counsel highlighted the financial difficulties of the appellants to RSA No.1125/2009 5 discharge the liability forthwith. Considering the circumstances stated by learned counsel appellants are granted two months time from today to pay the amount due under the decree. With the above direction, Second Appeal is dismissed in limine. I.A.No.2566 of 2009 will stand closed. THOMAS P.JOSEPH, Judge. cks