IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 732 of 1998(C)
1. V.P.ABOOBACKER
... Petitioner
Vs
1. NAUSHAD.K.P.
... Respondent
For Petitioner :SRI.A.P.CHANDRASEKHARAN (SR.)
For Respondent :SRI.JACOB ABRAHAM
The Hon'ble MR. Justice M.N.KRISHNAN
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :14/01/2011
O R D E R
M.N.KRISHNAN & P.S.GOPINATHAN, JJ.
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A.S.No.732 OF 1998
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Dated this the 14th day of January, 2010
J U D G M E N T
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P.S.Gopinathan, J.
The plaintiff, in O.S.No.560/1994 on the file of the
Subordinate Judge, Kozhikode, is the appellant. He instituted
the above suit seeking a decree for specific performance with an
allegation that the respondent/defendant and the appellant/
plaintiff entered into an agreement for sale of the plaint
schedule properties belonging to the respondent for a
consideration at the rate of Rs.18,250/- per cent and a sum of
Rs.30,000/- was given as advance on 14.6.1994. To witness the
transaction, Ext.A1 agreement for sale was executed. As per the
terms of Ext.A1, the sale should have been materialised on or
before 11.7.1994. Alleging that the respondent/defendant didn’t
perform his part of the contract, Ext.A2 notice was caused on
16.7.1994. But, the respondent/defendant didn’t care to
execute the sale deed. With these pleadings, the appellant
instituted the suit.
A.S.No.732/1998 2
2. The respondent originally remained ex parte and the
suit was decreed ex parte on 29.6.1995. Thereafter, the
respondent filed a petition on 25.5.1996 seeking an order to set
aside the ex parte decree and that petition was allowed on
8.1.1997. Thereupon, the respondent filed a written statement
admitting the execution of Ext.A1 and stating that the
respondent was willing to execute the sale deed. But, the
appellant was not prepared as he was devoid of balance
consideration. Ext.A2 notice was caused after the date
stipulated in Ext.A1 for the execution of the sale deed. Inspite of
that, the respondent intimated the appellant about his
willingness to execute the sale deed. But the appellant was not
ready with the balance consideration and he sought for return of
the advance amount. Heeding the request of the appellant to
return the advance amount, the same was returned by two
demand drafts and a cheque dated 6.1.1995, 3.121994 and
5.1.1995 and that the amount was collected by the appellant and
thus the entire advance sale consideration was returned to the
appellant and that he is not entitled to a decree for specific
performance.
A.S.No.732/1998 3
3. After raising the issues, the parties were sent for trial.
The appellant and another were examined as PWs 1 and 2. The
respondent was examined as DW1. On the side of appellant,
Exts.A1 to A9 series were marked. On the side of the
respondent, Exts.B1 to B4 were marked. The lower court on
appraisal of the evidence, though disbelieved the case of the
defendant that he returned the advance sale consideration,
arrived at a conclusion that the appellant was not ready with the
balance sale consideration. The encashment of the demand
drafts and the cheque were found relating to some other
transaction. Consequently, the prayer for decree of specific
performance was declined. In the alternative, a decree for
realisation of the advance consideration with future interest at
the rate of 6% per annum was granted. Assailing the decree
declining the prayer for specific performance, this appeal was
preferred.
4. The appellant has now produced a copy of document
No. 802/97 of SRO, Kakodi along with I.ANo.4113/2010, seeking
an order to receive the said document as additional evidence
A.S.No.732/1998 4
under Order 41 Rule 27 read with Section 151 of the CPC. As
per the averments in the affidavit accompanying the petition, the
plaint schedule property was assigned in favour of one Musthafa
and 2 others on 10.3.1997 even before the filing of the written
statement and that the appellant was not aware of the said
document and he came to know about the same only recently
and obtained the copy. With these explanation, the copy of the
document was sought to be marked in evidence. For further
reference, the document is marked as Ext.A10. Relevancy of the
same would be considered at appropriate time.
5. Heard and perused the evidence on record as well as
the judgment impugned. As stated earlier, Ext.A1 is admitted.
The main reason stated by the trial court to decline the prayer
for specific performance is that the appellant was not ready with
the balance sale consideration. That alone is the dispute before
us. The trial court had specifically stated in paragraph 9 of the
judgment impugned that the appellant as PW1 had stated during
cross examination that he had documents to show that he had
sufficient funds to pay the balance consideration. But no bit of
A.S.No.732/1998 5
document was produced. As against the said finding, the learned
counsel for the appellant would submit that the appellant need
not be ready with the cash and it would suffice if he could
convince that he had sufficient source to procure the balance
sale consideration. As regards the source also, absolutely there
is no evidence on record. Other than the assertion of the source
to raise the balance consideration, no evidence is produced.
When a party says that he has got documents to prove the
disputed fact and fails to produce the same, it is legitimate to
answer the dispute against the party who fails to produce the
document. In this view of the matter, we find no reason to
disturb the finding of the trial court.
6. The lower court also had found fault with the
appellant for not taking steps for the execution of the ex parte
decree though it was set aside only after more than one year. As
regards that, according to the learned counsel for the appellant,
since he didn’t get the copy of the decree, he was not in a
position to take any steps for the execution of the sale. It was
also alleged that neither in the judgment nor in the decree any
A.S.No.732/1998 6
specific date was mentioned by the trial court for deposit of the
amount. In the event there was such omission in the judgment
and the appellant was in confusion, he could have sought for
clarification or review of the judgment. But not chosen to. So,
finding fault with the lower court for not specifying a date for
deposit is a lame exercise. Lack of bonafides is apparent. Having
gone through the judgment impugned and the evidence on
record, we find that the finding of the trial court that the
appellant was devoid of balance sale consideration is based upon
the evidence on record. Ext.A10 now produced in appeal being
only a document regarding the transfer of the property by
defendant, it wouldn’t enure to the benefit of the appellant to
prove his source for balance sale consideration. We find little
reason to arrive at a conclusion that the trial court erred
anywhere in appreciating the evidence to come to a conclusion
that the appellant was devoid of funds to pay the balance consideration. In
this view of the matter, we find no reason to disturb the conclusion arrived
at by the trial court.
7. Adding to the above, Ext.A10 dated 10.3.1997 would
show that more than 13 years ago the plaint schedule property
was sold to Musthafa and two others. The appellant
A.S.No.732/1998 7
had not cared to bring them on record till now. To a question
put to the learned counsel for the appellant as to whether the
appellant is aware whether the purchasers as per Ext.A10 had
effected any valuable improvements or whether a decree for
specific performance would cause hardship to the purchasers,
who had been put in possession of the properties more than 13
years back, the learned counsel has no answer. It is also not
disputed that the land value is shooting up. Even going by the
averments in the affidavit accompanying the petition
I.A.No.4113/2010 and the document produced thereon, there is
little material to come to a conclusion that the purchasers as per
the document are not bonafide purchasers. It is not disputed that
Ext.A1 agreement was not registered. So, even if the purchasers
obtain encumbrance certificate in respect of the plaint schedule
properties Ext.A1 agreement would not find a place. There is
also no whisper in the affidavit accompanying the petition that
the purchasers as per Ext.A10 were aware of Ext.A1 agreement
or the pendency of the suit at the time of the purchase or at any
time thereafter. So, it has to be presumed that the purchasers as
per Ext.A10 are bonafide purchasers. They are holding the
A.S.No.732/1998 8
properties for more than 13 years. At this long distance of time,
the dispossession of the 3rd parties would cause very hardship.
In the event they had effected valuable improvements they have
also to forgo the same for no good reason. If the appellant had
made them party array we could have heard them also. So, by
not impleading them as party array inspite of the knowledge
about the assignment in their favour about 13 years back, the
opportunity to the purchasers to defend the appeal as well as
the suit was also denied. In addition to that since the land value
is shooting up and the money value is going down in the event of
reversing the judgment and decree appealed; and a decree for
specific performance is granted, the appellant would be put to
unlawful benefit. On the other hand, the respondent as well as
the bonafide purchasers as per Ext.A10 would be put to
irreparable hardship and loss. In such circumstances, equity
also dissuades us to interfere with the judgment and decree
under challenge.
We find no reason to interfere with the judgment and
decree under challenge. The trial court was correct in granting
A.S.No.732/1998 9
a decree for realisation of the advance amount with interest.
The appeal is devoid of merit and accordingly it is dismissed.
There will be no order as to costs.
(M.N.KRISHNAN, JUDGE)
(P.S.GOPINATHAN, JUDGE)
ps