SUDARSANAN v. MRS.AJITHA, ANITHA BHAVAN

THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 01-08- 2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.F.A.NO.575/2005 ORDER ON I.A.NOS.3601/05 & 4106/06 IN R.F.A.NO.575/2005 DISMISSED -------- 1/8/2012 Sd/- HARUN-UL-RASHID,JUDGE. True Copy P.S. TO JUDGE HARUN-UL-RASHID,J. ----------------------------- R.F.A.NO. 575 OF 2005 ----------------------------- DATED THIS THE 1ST DAY OF AUGUST, 2012 JUDGMENT Additional defendants 2 and 3 are the appellants. The appeal is directed against the judgment and decree dated 30/6/2005 in O.S.No.1207/1995 on the file of the Principal Sub Court, Thiruvananthapuram. The suit was filed for specific performance and other consequential reliefs. The court below decreed the suit allowing specific performance as prayed for. The parties are hereinafter referred to as the plaintiff and defendants as arrayed in the suit.

2. The case of the plaintiff in brief is as follows: Defendant is the owner of the plaint schedule property having an extent of 10 cents. On 19/4/1995 the defendant agreed to sell the plaint schedule property to the plaintiff and received an amount of `25,000/- as advance on the date of agreement. The total consideration is `50,000/-. The defendant agreed that the sale deed will be executed within a period of 30 days from 19/4/1995. The R.F.A.No.575/2005 -2- plaintiff approached the defendant and the defendant agreed that the sale deed will be executed within two months, but the defendant failed to execute the sale deed on the extended date. It is alleged that the plaintiff was ready and willing to perform her part of the contract with the balance sale consideration, but the defendant was not amenable. Hence, the suit for specific performance.

3. Pending the suit, the original defendant died and her legal heirs were impleaded as additional defendants 2 and 3. In the written statement filed it is inter alia contended that there was no agreement for sale of the plaint schedule property in favour of the plaintiff, that the defendant borrowed a sum of `25,000/- as loan and interest was paid to the plaintiff, that the plaintiff obtained a blank stamp paper signed by the defendant as security for the said amount, that the plaintiff converted that stamp paper into an agreement by fraud and misuse and that since there was no agreement for sale, the defendants are not liable to execute the sale R.F.A.No.575/2005 -3- deed. It is also contended that the paint schedule property is having a market value of more than `5 lakhs.

4. Plaintiff was examined as PW1 and Exts.A1 to A3 were marked on her side. The 2nd defendant was examined as DW1. No documents were produced by the defendants. Plaintiff tendered evidence in tune with the plaint averments. According to her, an agreement for sale was executed by the original defendant on 19/4/1995. Ext.A1 is the original agreement. She deposed before the court that she paid `25,000/- as advance on the date of agreement and that the said amount was received by the defendant for clearing the liability of the plaint schedule property to the Kerala State Housing Board. She also testified that the defendant agreed to execute the sale deed within thirty days, that when she approached the defendant, the defendant agreed that sale deed will be executed within two months, but the defendant did not execute the same. She further testified that she was ready and willing to perform her part of the contract and she was ready to pay the R.F.A.No.575/2005 -4- balance sale consideration, but the defendant was not amenable. On her behalf Advocate notice dated 6/7/1995 was sent to the defendant requesting to execute the sale deed.

5. Additional 2nd defendant was examined as DW1, who testified before the court below that there was no agreement for sale, that the original defendant received `25,000/- as loan and that his mother had issued a blank stamp paper, when she received the amount. She also deposed that the property would have fetched `5 lakhs and at present the value is `10 lakhs. As DW1, the additional 2nd defendant admitted that his mother put her signature in Ext.A1. He also admitted that he put his signature as attesting witness in Ext.A1. The relevant extract in Ext.A3 reply notice is as follows: “On 19-6-1995 she paid the second months interest `1,000/- then your client refused the same. Your client forced to my client to execute a sale deed.”

6. From the deposition of DW1 and from the extract in R.F.A.No.575/2005 -5- Ext.A3 reply notice, it is seen that the original defendant herself put her signature in Ext.A1 and the additional 2nd defendant was one of the attesting witness to Ext.A1. The contention raised by the defendants is that a blank stamp paper was given to the plaintiff and `25,000/- was received as loan. Apart from the statement in the written statement, the defendants did not adduce any evidence to substantiate such a contention. On a reading of Ext.A1 it can be seen that Ext.A1 was executed on 19/4/1995 as an agreement for sale. The original defendant put her signature in Ext.A1. Ext.A1 also indicates that the sale was in respect of 10 cents out of 23 cents in the ownership and possession of the original defendant. The court below, after appreciating the oral evidence of PW1, DW1 and Ext.A3 reply notice, took the view that Ext.A1 was executed by the original defendant as an agreement for sale and there is no reason to disbelieve the version of the plaintiff. The court below found that the plaintiff was ready and willing to R.F.A.No.575/2005 -6- perform her part of the contract, that the original defendant was not willing to execute the sale deed and that no evidence has been adduced by the defendants to prove that the transaction entered into between the parties on 19/4/1995 was a loan transaction. No evidence was adduced by the defendants to substantiate such a contention. The court below, after evaluating the evidence on record, found that the plaintiff is entitled to a decree for specific performance. This Court also examined the question as to whether in the exercise of the discretion under Section 20 of the Specific Relief Act, 1963, the plaintiff is entitled to decree for specific peroformance. The circumstances that existed at the time of the contract, the cause of action, the point of time at which the plaintiff sued the defendants etc. are relevant considerations for exercise of discretion. On an evaluation of the evidence on record, the contentions raised by the parties and the conduct of the parties, it is proved that that the original defendant had committed breach of the contract for sale. There is no conduct of the plaintiff that could be R.F.A.No.575/2005 -7- treated as having created any hardship to the defendants setting the balance of discretion against the plaintiff. It is settled law that escalation of price of land during the pendency of the suit and appeal cannot, by itself, be a ground for denying the relief of specific performance. In the facts and circumstances of the case, the contention raised by the defendants/appellants that the agreement was fictitious and fabricated and that their mother had neither executed the sale deed nor received the advance amount, is wholly untenable. I agree with the findings recorded by the trial court. I find that the appeal is devoid of any merit.

7. Considering the fact that there is escalation of price of the land during the pendency of the suit and appeal and the price of the land has gone very high, this Court proposes to modify the judgment and decree. The balance sale consideration payable is `25,000/-. The plaintiff is directed to pay `1.5 lakhs, in stead of `25,000/-, within a period of three months from today. In all other respects, the judgment and decree passed by the court below shall R.F.A.No.575/2005 stand. -8- In the result, the appeal is partly allowed. The judgment and decree passed by the court below are modified. No order as to costs. kcv. Sd/- HARUN-UL-RASHID, JUDGE.