IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 14TH JANUARY 2010 / 24TH POUSHA 1931 AS.No. 174 of 2001(E) --------------------- OS.658/1995 of ADDL.SUB COURT,PARAVUR .................... APPELLANT(S): -------------- K.P. SREENARAYANAN, 'KARUVADIYIL HOUSE', VIA. KALADI, ERNAKULAM DISTRICT BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SRI.V.VARGHESE RESPONDENT(S): --------------- HUSSAIN, S/O MUHAMMED, KOLLAMKUDY VEETTIL, CHOWARA, DESOM, ALUVA. ADV. SRI.PAUL K.VARGHESE FOR R1 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 14/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- A.S.No.174 of 2001 ---------------------------------------- Dated this the 14th day of January, 2010 JUDGMENT The defendant is the appellant in O.S.No.658 of 1995 on the file of the Sub Court, Paravur. The suit was filed for specific performance of contract and for perpetual injunction. The Court below decreed the suit, the defendant is directed to execute the sale deed in the name of the plaintiff on deposit of balance sale consideration or Rs.4,000/- by the plaintiff within one month in the court. A decree of injunction was also passed restraining the defendant from assigning the plaint schedule property to any other person except the plaintiff and from committing acts of waste in the plaint schedule property. Agreed by the decree and judgment dated 17.1.2000, the defendant has preferred the appeal. Parties hereinafter referred to as plaintiff and defendant as arrayed in the suit. 2. The suit property is 8.5 cents of land comprised in Sy.No.116/1 in Malayatoor Village. The property belonged to the defendant. The agreement for the sale of the property is dated 31.8.1995. The agreement is marked as Ext.A1. The plaintiff agreed to exchange his vehicle Tempo Tracks bearing Registration No. KDE-4581 for the plaint schedule property. The value of the A.S.No.174 of 2001 -2- property had been fixed as 1.35 lakhs. The value of the vehicle had been fixed as Rs.1.25 lakhs. The parties agreed that the defendant has to pay the financier the dues of the vehicle, CC amount of Rs.75,000/-. The defendant has to pay Rs.50,000/- to the plaintiff as the value of the vehicle. The said amount was credited to the sale consideration. After crediting the said amount, the plaintiff is liable to pay Rs.10,000/- towards the balance sale consideration. On the date of agreement, the plaintiff paid Rs.6,000/-. The plaintiff need to pay the balance sale consideration of Rs.4,000/-. The time for the execution of the sale deed was fixed on or before 1.9.1995. The period was subsequently extended till 15.10.1995. It is the plaintiff's case that though he was ready and willing to pay the balance sale consideration, the defendant was not willing to execute the sale deed. Hence the suit was filed. In the written statement filed by the defendant, it is contended that the plaintiff had failed to perform his part of the contract, that he was not ready to take necessary steps to transfer the vehicle in the name of the defendant etc. 3. The trial court after framing necessary issues examined the contentions of the parties. The question muted by the respective sides is that the other side failed to perform his part of A.S.No.174 of 2001 -3- the contract. The court below had examined the question as to who is at fault and as to whether the plaintiff is entitled to a decree for specific performance. The plaintiff and defendant were examined as PW1 and DW1; Ext.A1 is the agreement and A1(a) is the endorsement. 4. The terms of the agreement recorded in Ext.A1 is clear. The trial court noticed the fact that the plaintiff was present on the Sub Registry Office on 13.10.1995 and 16.12.1995. The said fact was admitted by the defendant while he was examined as DW1. The court below examined the contentions raised by the defendant in detail. It is contented by the defendant that the amount due to the financier was Rs.84,560/- and that only 75,000/- has been recorded in Ext.A1 agreement. In the written statement the defendant has stated that he had gone to Madras on 1.9.1995 to make enquiry as to what is the correct amount to be paid to the financier for the vehicle in question. The amount due to the financier according to the parties as recorded in Ext.A1 agreement is Rs.75,000/-. In his own statement the defendant stated that he had gone to Madras to make enquiry as to what is the each amount payable to the financier would go to show that the amount recorded in Ext.A1 is correct. If the amount payable is Rs.84,560/- A.S.No.174 of 2001 -4- as claimed by him then he would have raised the said demand to the plaintiff at least before the endorsement made in Ext.A1. Apart from the interested testimony of the defendant no evidence is adduced by the defendant in support of his contentions, that the amount payable to the financier is more than Rs.75,000/-. In fact it is easy for him to produce the statement of account or a certificate from the financier showing the amount due to the financier as on the date of agreement. Having failed to adduce any evidence in support of the said contentions, I do not find any reason to interfere with the findings recorded by the trial court. 5. When the defendant was examined as DW1, he admitted that he is not ready to assign the plaint schedule property even though the plaintiff is ready to tender the balance sale consideration. It is further contented by the defendant that he had sustained loss in the vehicle transaction and therefore he was not ready to assign the plaint schedule property. Such a contention is not available to the defendant after the execution of Ext.A1 and is not available to him because he had taken possession of the vehicle on the date of Ext.A1 dated 31.8.1995 and continued to use the vehicle thereafter. The recitals in Ext.A1 agreement shows that the vehicle was on running condition at the time of the exchange. The A.S.No.174 of 2001 -5- written statement was filed on 30.07.1998. Ext.A1 is dated 31.8.1995. So at the time when such a contention is taken, the defendant was keeping the vehicle and using the same for more than three years. Further it is not a ground for non suiting the plaintiff. Even if it is assumed that he had sustained some loss in the transaction, that is not a reason for non suiting the plaintiff. The court below appreciated the contentions of the defendant and concluded that the defendant was trying to protract the assignment of the property even though the plaintiff was ready to take assignment. On the basis of the evidence on record, the court below held that the plaintiff is entitled to a decree of specific performance of the contract of sale and also for consequential injunction. In the light of the materials on record which I have discussed above, this court is of the view that the plaintiff is entitled to the relief sought for. This court did not find any reason to interfere with the findings recorded by the court below. In the result, the appeal fails and accordingly dismissed. (HARUN-UL-RASHID, JUDGE) jma. A.S.No.174 of 2001 -6- HARUN-UL-RASHID, J. --------------------------- A.S.No.174 of 2001 ---------------------------- JUDGMENT 14th January, 2010