IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 17TH DECEMBER 2010 / 26TH AGRAHAYANA 1932 RFA.No. 286 of 2005() --------------------- OS.67/1995 of SUB COURT,KATTAPPANA .................... APPELLANT/PLAINTIFF: ----------------------------------- THOMAS MATHAI, S/O.THOMMAN, AGED 51 YEARS, PANTHENAL HOUSE, NARAKKANAM KARA, THANKAMONY VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. BY ADV. SRI.JOSE JOSEPH ARAYAKUNNEL RESPONDENT(S): DEFENDANT: ----------------------------------------------- AVIRA ULAHANNAN, S/O.AVIRA, AGED 66 YEARS, MULAMKOMBIL HOUSE,NARAKAKKANAM KARA, THANKAMONY VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. BY ADVS. SRI.MATHEW JOHN (K), SRI.SUJESH MENON V.B. THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 17/12/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N. KRISHNAN, J. ........................................... R.F.A.NO.286 OF 2005 ............................................. Dated this the 17th day of December, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Kattappana in O.S.No.67/1995. The suit is one for specific performance of the contract or in the alternative for realisation of the advance amount. 2. It is the case of the plaintiff that he had entered into an agreement for purchase of 1 acre and 5 cents of land comprised in Sy.No.1/1 of Thankamony village for a consideration of Rs.42,000/= and had paid a sum of Rs.40,000/= as advance. The stipulation was to execute the document on receipt of balance consideration on or before 30.10.1992. The plaintiff was always ready and willing to perform his part of the contract and he had directed the defendant to come to the Sub Registrar's office, Kattapana to receive the balance consideration and to register the document. It has not been done and therefore the suit. 3. On the other hand, the defendant would contend that : 2 : R.F.A.NO.286 OF 2005 there is no agreement to sell between the plaintiff and the defendant and the defendant would set up a case that in 1989 he had borrowed a sum of Rs.10,000/= from the plaintiff and the plaintiff demanded interest at the rate of 60% and in 1992 he had obtained some blank signed papers, created a false document and had filed a suit of this nature. Therefore the suit is liable to be dismissed. 4. On an appreciation of the materials, the trial court held that the plaintiff has not even bothered to mark the document and further relying on the conduct of the present plaintiff in O.S.No.44/1994 the court held against the plaintiff. It is against that decision, the plaintiff has come up in appeal. 5. Heard. The crux of the matter depends upon the question whether there had been a sale agreement between the plaintiff and the defendant and whether the plaintiff was ready and willing to perform his part of the contract and so he is entitled to get the decree for specific performance or at least in the alternative, return of the advance amount. 6. The defendant in the case has categorically stated : 3 : R.F.A.NO.286 OF 2005 that he had not executed the disputed agreement and the transaction was of a loan of Rs.10,000/= in the year 1989 and that the plaintiff had obtained some papers rather blank papers signed and when the defendant did not meet unreasonable demand of Rs.40,000/=, he had created a document and foisted a false case. When the plaintiff attempted to trespass into the property, moved a suit as O.S.No.44/1994 making all these averments in the plaint, for which the plaintiff did not appear before the court nor did file any written statement refuting the allegations in the plaint. 7. It is equally important to note that the plaintiff though paid stamp duty and penalty for the receipt of the agreement for the reasons best known to him, he did not get that document proved or marked before the court. When there is candid denial of execution of the agreement and as the suit is filed on the basis of the agreement and when that document is not marked or proved, it goes without saying that the plaintiff cannot succeed in such suits. 8. Now non marking of the document coupled with non : 4 : R.F.A.NO.286 OF 2005 proof of execution of the agreement and non denial of the case of the defendant in O.S.No.44/1994 all leads to the irresistible conclusion that the agreement for specific performance is not proved. When the suit is based on the agreement and when it is not proved, this court cannot grant any decree in favour of the plaintiff. Therefore I agree with the finding of the learned trial judge and hold that the appeal lacks merit. Therefore the appeal is dismissed but without costs. M.N. KRISHNAN, JUDGE. cl : 5 : R.F.A.NO.286 OF 2005 M.N. KRISHNAN, J. ........................................... A.S.NO.389 OF 2001 ............................................. 11th day of November, 2010. J U D G M E N T