IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO No. 275 of 2007()
1. SN.D.P. BRANCH NO.2697,
... Petitioner
Vs
1. VIJAYALAKSHMI PADMANABHAN,
... Respondent
For Petitioner :SRI.M.S.UNNIKRISHNAN
For Respondent : No Appearance
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice V.K.MOHANAN
Dated :26/09/2007
O R D E R
P.R.RAMAN & V.K.MOHANAN, JJ.
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F.A.O.NO.275 OF 2007
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Dated this the 26th day of September, 2007
JUDGMENT
Raman, J.
Appellant is the plaintiff and the petitioner in I.A.NO.3340/2007
in O.S.246/2007 on the file of the IInd Additional Sub Court,
Ernakulam. The said application was filed under Order XXXIX Rules
1 and 2 of the C.P.C. for a temporary injunction restraining the
respondent from disposing the plaint schedule property. The suit was
one for specific performance of the agreement dated 3/10/2006.
During the pendency of the suit the present I.A. was filed for an
injunction restraining the defendant from disposing the plaint schedule
property, till the disposal of the suit.
2. According to the appellant, the plaintiff and the defendant
entered into an agreement dated 3/10/2006 whereunder the defendant
agreed to sell the property mentioned therein to the appellant for a total
sale consideration of Rs.4 lakhs. An amount of Rs.1 lakh was given by
way of advance. Sale deed has to be executed within a period of six
months. According to the appellant, he was ready and willing to
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perform his part of the agreement; but the respondent was not prepared to
execute the sale deed within time and the appellant sent a telegram by
which the respondent was asked to execute the sale deed and they were
present in the Sub Registrar’s Office. Since there was no response, the
suit was filed.
3. As per I.A.No.2634/2007 filed by the appellant, the property
was attached. The respondent, after entering appearance, offered to
furnish security. The attachment was revoked after depositing the amount
by the respondent. Thereafter, the present application was filed for an
injunction.
4. It was contended by the respondent before the court below that
the property was agreed to be sold by her for raising money for the
marriage of her daughter. As agreed, the balance consideration was not
paid by the appellant, the marriage could not be conducted. It was
contended that the appellant had no sufficient funds to purchase the
property, as per the terms of the agreement. It was also contended that the
appellant had no idea to purchase the property; but the only idea is to
safeguard the amount advanced and prayed for dismissal of the suit and
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also opposed the injunction application. The court below by the impugned
order dismissed the injunction application, against which this appeal is
filed. Exts.A1 to A6 were produced by the appellant. Ext.A1 is the
original of the agreement, ExtA2 is the original of the location sketch of
the plaint schedule property, Ext.A3 is the photocopy of the ownership
certificate, Ext.A4 is the photocopy of the pattayam issued to the
defendant, Ext.A5 is the encumbrance certificate and A6 is the photocopy
of the D.D. issued in the name of the defendant. Either side adduced any
oral evidence. There was no document marked on the side of the
respondent. The court below based on Ext.A2 to A5, found that the
respondent convinced the plaintiff of the measurement of the property and
also convinced the documents of title, encumbrance etc. and entered a
prima facie finding. Ext.A6 D.D. is dated 3/5/2007. The suit was
instituted on 4/4/2007. As per Ext.A1 agreement, the period of
agreement, which was six months from 3/10/2006, expired on 2/4/2007.
According to the appellant, he was ready with the cash even before that
date, but no demand notice was issued to the plaintiff for specific
performance before 2/4/2007. According to the appellant, he sent a
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telegram. But no document evidencing thereof was produced. True that
the respondent admitted that she got a photocopy of the telegram from the
postal authorities recently; but there is no admission that she received the
telegram before the expiry of the period of agreement. Therefore, this is an
aspect where the appellant ought to have adduced a prima facie evidence
about the telegram having been received by the respondent. Admittedly no
notice was issued by the appellant asking the respondent to be present in
the Registrar’s Office and informed her that the balance consideration is
ready to be paid to her. The court has to form a prima facie opinion and
take into consideration the balance of convenience before any order is
passed in favour of the appellant. The court below, on an analysis of the
evidence on record, held that there is no prima facie case for the plaintiff
to prove the readiness and willingness for specific performance.
6. Though the learned counsel appearing for the appellant
challenged the above finding; no material was placed before us to come to
a different conclusion than one reached by the court below. In such
circumstances, we find no merit in this appeal.
However, we make it clear that the prima facie finding of the court
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below will not in any way influence the mind of the court while deciding
the issue in the suit and the same has to be adjudicated based on the
evidence adduced by the parties.
With the above observation the appeal is dismissed.
P.R.RAMAN,
Judge.
V.K.MOHANAN,
Judge.
kcv.
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