Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE SATHISH NINAN FRIDAY, THE 28TH DAY OF OCTOBER 2022 / 6TH KARTHIKA, 1944 RSA NO. 160 OF 2007 AGAINST THE DECREE AND JUDGMENT IN AS 2/2002 OF III ADDITIONAL DISTRICT COURT (ADHOC), THRISSUR AGAINST THE DECREE AND JUDGMENT IN OS 2452/1998 OF II ADDITIONAL MUNSIFF COURT ,THRISSUR
APPELLANT/APPELLANT/DEFENDANT: VASU, AGED 64, S/O KARAYAMPARAMBIL KRISHNAN,PULLAZHI VILLAGE,PULLAZHI DESOM,THRISSUR TALUK. BY ADV SRI.A.BALAGOPALAN ADV. SRI.K.C.CHARLES ADV. SRI.SOJO J KALLIDUKKIL RESPONDENT/RESPONDENT/PLAINTIFF: MANOJ KUMAR, AGED 31, S/O KANNAPPASSERY ASHOKAN,PULLAZHI VILLAGE,PULLAZHI DESOM, THRISSUR TALUK. BY ADV. SRI.DILIP J AKKARA THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Sathish Ninan, J.
============================== ========================== Dated this the 28th day of October, 2022
JUDGMENT
The defendant in a suit for specific performance with an alternate prayer for refund of advance sale consideration, is the appellant. The suit was decreed by the courts, directing refund of advance sale consideration.
2. Ext A1 is the agreement for sale dated 28.07.1998. The plaint schedule property is 7 cents with a building thereon. As per the agreement, the property is to be conveyed for a total sale consideration of Rs.1
lakh. Out of the sale consideration, an amount of Rs.60,000/- is stated to have been paid as advance. The period fixed for performance was fixed till 10.11.1998. Alleging failure on the part of the defendant to honour the terms of the agreement, the suit was filed. -: 2 :-
3. The defendant disputed Ext A1 agreement. According to the defendant, his wife was a subscriber to the kuri conducted by the plaintiff. In connection with receipt of amounts thereunder, the plaintiff was required to sign blank papers as security. The same were misused and Ext A1 agreement was created, is the contention.
4. The trial court held Ext A1 to be genuine.
However, the relief of specific performance was declined. The suit was decreed for return of advance sale consideration with interest at the rate of 12% per annum. The first appellate court, though affirmed the finding on the genuineness of the agreement, reduced the rate of interest from the date of decree to 6% per annum.
5. Heard the learned counsel on either side on the following substantial question of law. “Does the evidence on record justify the finding regarding genuineness of Ext A1 agreement?” -: 3 :-
6. In the written statement filed by the defendant, though the execution of the agreement is disputed, the
signature in Ext A1 is not specifically denied. In paragraph 4 of the written statement he contends that, his wife was the subscriber to a chitty conducted by the plaintiff and that, on termination of the chitty, when amounts were received by his wife she was required to furnish security. Accordingly, signed blank papers of the plaintiff were given. The same were misutilised for fabrication of Ext A1. Though in the course of evidence as DW1 he would challenge the signature in Ext A1, in the light of the plea in the written statement as noted above, the same is only to be discarded.
7. The plea of the defendant as noted above,
suffers from an inherent flaw. The defendant does not have a case that his wife had prized the chitty and for receiving the amount the security had to be furnished. Even according to him, it is on the termination of the chitty that the amounts due to the his wife was paid. When a chitty is terminated and the amounts payable are
-: 4 :- paid, there is no occasion for furnishing any security for receipt of the amount. Therefore, the said contention evidently lacks substance in merit.
8. The plaintiff disputes that he was conducting
any chitty. There is no evidence to show that the plaintiff was conducting chitty business. Though the defendant produced a book claiming to be the details regarding chitty, that admittedly does not contain the signature of the plaintiff to connect him with the details stated therein. The wife of the defendant - Sumathi, is not examined to prove the contention. No materials are available to find that it relates to the chitty conducted by the plaintiff and that it evidences
transaction between plaintiff and the wife of the defendant.
9. One of the witnesses to Ext A1 agreement was examined. The courts appreciated the evidence - oral and
documentary and also the circumstances involved and held
Ext A1 agreement to be genuine. The findings are based on evidence. The appreciation cannot said to be -: 5 :- perverse. The view adopted by the court is possible on the materials. Substantial question of law is answered accordingly. Therefore, the appeal is bound to fail. Resultantly, the Regular Second Appeal is dismissed. Sd/- Sathish Ninan, Judge vdv -: 6 :-
The following sentence is added to the judgment
dated 28.10.2022 in RSA 160/2007(B) as per order dated 28.10.2022 in RSA 160/2007(B). “Court fee to be recovered from the appellant.” Sd/- Deputy Registrar