Dissatisfied plaintiff in O.S.731/1988 on the file of the Additional Munsiff Court, Palakkad is the appellant herein. The suit was one filed by the plaintiff for specific performance of the contract of agreement to sale entered into between the plaintiff and one Raman Nair, the predecessor in the interest of defendants.
2. The case of the plaintiff in the plaint was that, the plaint schedule property belonged to Raman Nair who is the father of defendants 1 to 3 and husband of 4th respondent. He agreed to sell the plaint schedule property for a total consideration of 12,000/- and Ext.A1 agreement was executed between them. On 28.10.1985 an amount of 10,000/- was paid as advance on the date of execution of the agreement. The original agreement was handed over to the plaintiff and he had execute the assignment deed within two months, after receiving the balance consideration. But he did not execute the assignment deed till his death. The title deed of the plaint schedule property was also entrusted to the plaintiff while executing the S.A.No.788/1999 2 agreement. Though he requested Raman Nair to execute the assignment, he evaded the execution on one ground or other. Later he sent Ext.A4 registered notice dated 05.07.1988 to the first defendant asking them to come and execute the document. The first defendant sent a reply notice with false allegations, so the suit was filed. He had also contended that he was always ready and willing to perform his part of the contract and time was not the essence of the contract. So he prayed for specific performance and the in the alternate for return of advance amount with interest and cost.
3. The defendants entered appearance and filed written statement contending as follows: The same is not maintainable. Raman Nair, who is the father of defendants 1 to 3 and husband of 4th defendant had not executed any agreement as alleged in the plaint. He never received any amount. He had not agreed to sell the property to the plaintiff and the documents were not entrusted. Plaintiff never demanded execution of document while Raman Nair was alive. The plaintiff is a money lender. One K.M.Sekharan had borrowed 5,000/- from the plaintiff and when he defaulted payment, Raman Nair and the 1st defendant stood as surety at the request of the plaintiff and K.M.Sekharan S.A.No.788/1999 3 and Raman Nair had put signature on papers given by the plaintiff. At that time, plaintiff also secured the title deeds on the plaint schedule property. The property is worth more than 1,00,000/- and there was no necessity to sell the property for 12,000/-. The agreement is a concocted one. The plaintiff is not entitled to get a decree for specific performance or return of advance amount. They prayed for disposal of the suit.
4. On the basis of the pleadings, following issues were framed by the court below:
"1. Whether there is any agreement between plaintiff and deceased Raman Nair regarding plaint schedule property?
2. Whether the alleged agreement is supported by consideration?
3. Whether plaintiff is entitled to get the agreement specifically enforced?
4. What order as to cost?"
5. In order to prove the case of the plaintiff, Pws 1 to 3 were examined and Ext.A1 to A5 were marked on his side. On the side of the defendants, 1st defendant was examined as DW1 and one witness was examined as DW2. Exts.B1 and B2 were marked. After considering the evidence on record, the trial court found that Ext.A1 is a genuine document and deceased S.A.No.788/1999 4 Raman Nair had agreed to sell the property and granted a decree for specific performance, directing the plaintiff to deposit the balance consideration of 2,000/- within one month from the date of judgment and directed the defendants to execute the registered assignment deed within one month from the date of deposit and in case of failure to execute the document, permitted the plaintiff to approach the court to get the document executed through court.
6. Dissatisfied with the same, the defendants filed A.S.No.156/1992 before the District Court, Palakkad which was made over to first Addl.District Court for disposal. During the pendency of the appeal, the appellants filed I.A.No.1378/1998 to receive additional documents and the same has been received by the law applicable and after re-appreciating the evidence came to the conclusion that though Raman Nair had executed Ext.A1 agreement, there was no intention on the part of Raman Nair or the plaintiff to get the agreement enforced through court and it was not intended for sale of the property but for the money transaction and on that ground denied specific performance and granted a decree for return of advance amount of 10,000/- with 10% interest from the date of agreement namely 28.10.1985 till S.A.No.788/1999 5 realization, making the plaint schedule property charge for that amount. Dissatisfied with the same the present seem appeal has been filed by the appellant/plaintiff before the court below.
7. During the pendency of the appeal, the respondents 1 and 4 died. Additional respondents 5 to 8 were impleaded as legal heirs of deceased 1st respondent as per order in I.A.Nos.1610 of 2017 and 1611 of 2017 and C.M.Appl..No.482 of 2017 and the respondents 2 and 3 and supplemental respondents impleaded were recorded as legal heirs of 4th respondent. Though notice was served on them, there was no appearance for them.
8. When admitting the appeal, this Court has accepted the question of law formulated in the appeal memorandum which reads as follows:
"a) In the light of the admission in Ext.A5 regarding the nature of transaction under Ext.A1 did not the court below err in finding that Ext.A1 was executed as a security for loan transaction?
b) Did not the lower appellate court act illegally in allowing I.A.No.1378/98, the application filed under Order 41 Rule 27 of the Code of Civil Procedure?
c) Can the relief of specific performance be denied to a plaintiff on the ground of delay when S.A.No.788/1999 6 the suit is filed within the period of limitation?"
9. Heard Sri.P.R.Venkatesh, counsel appearing for the appellant. Learned counsel appearing for the appellant argued that the lower appellate court was not justified in reversing the finding of the trial court which had the occasion to see the witnesses and also considering the question as to whether the case of the defendants is probable or not. Further in the reply notice, they have no case that it was as a security for money transaction that the document has been executed. That was raised only at the time of filing of the written statement. No acceptable evidence was also adduced on this aspect. On considering the sum and substance of the case, the lower appellate court was not justified in reversing the decree for specific performance and restricting the decree for return of money alone.
10. The case of the plaintiff in the plaint was that as per Ext.A1 agreement dated 28.10.1985 the plaintiff and the predecessor of the respondent, late Raman Nair entered into an agreement to sell in respect of the plaint schedule property for total consideration of 12,000/- and 10,000/- was paid as advance and it was agreed between the parties that the balance S.A.No.788/1999 7 amount will have to be paid within two months and document will have to be executed. The defendants denied execution of agreement by late Raman Nair and also had taken up a contention that there was some money transaction between K.M.Sekharan and the plaintiff and as a security for the same, as insisted by the plaintiff, late Raman Nair had to hand over the title deeds of the property and also put some signature in some papers, which had later been converted into sale agreement and the present suit was filed. It is also contended that late Raman Nair never intended to execute the document. It is true that both the courts, on appreciation of evidence believing evidence of Pws 1 to 3 came to the conclusion that Ext.A1 agreement was executed by late Raman Nair and an amount of 10,000/- was obtained from the date of execution of Ext.A1 agreement.
11. But it is settled law that in the case of specific performance, court has to exercise its discretion and even if court found that it is a lawful agreement entered between the parties, it is not always necessary to grant a decree for specific performance if the court is satisfied that on account of granting a decree for specific performance, there is an undue advantage is going to be obtained by the plaintiff and the defendant will be S.A.No.788/1999 8 put to inequitable portion if the decree has been granted. However, in the lower appellate court the defendants have produced certain documents and PW1 had admitted that he was a partner of the finance company and he was in the habit of lending money and filing suits. DW2 was examined on the side of defendants to prove that Sekharan has some money transactions with the plaintiff and on the basis of that Raman Nair had to hand over title deeds.
12. However, it is seen from the discussions of the first appellate court that Raman Nair purchased property in 1984 evidenced by Ext.A2 and the alleged Ext.A1 agreement was executed in the year 1985. There is no necessity for late Raman Nair to execute such document at that time. Though plaintiff had a case that late Raman Nair had some financial necessity at that time and that prompted him to sell the property, there was no acceptable evidence adduced on that aspect. Further, having paid a major portion of the consideration and retained only a small portion and not taking steps to execute the documents for nearly 2 = years also would go to show that the real intention was not to enforce the agreement of selling the property but that was intended for some other purpose. So under such S.A.No.788/1999 9 circumstances, and also considering the over all circumstances brought out into evidence and the conduct of the plaintiff, the lower appellate court was perfectly justified in coming to the conclusion that there was no intention on the part of late Raman Nair to sell the property and even the plaintiff had no intention to purchase the property but it was intended as a security for some money transaction and on that basis rightly denied the decree for specific performance reversing the finding of the court below on that aspect and rightly granted decree for return of advance amount with interest @ 12% from the date of agreement namely 28.10.1985 till payment and making the property as the charge for the same. The lower appellate court had rightly exercised the discretion under Section 20 of the Specific Performance Act and denied specific performance and restricted the claim for return of money alone which this Court do not find any reason to interfere. There is no substantial question of law arises for consideration as raised in the appeal memorandum and the appeal lacks merits and the same is hereby dismissed confirming the decree and judgment passed by the lower appellate court in A.S.No.156 of 1992, setting aside the decree passed in O.S.No.731 of 1988 by the Additional S.A.No.788/1999 10 Munsiff Court, Palakkad. Considering the circumstances, parties are directed to bear the respective costs in the second appeal.
Registry is directed to communicate the judgment of the court below and sent back the records to the court below.
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(K.RAMAKRISHNAN, JUDGE) TRUE COPY P.A TO JUDGE DG