K.T.Sankaran, J.
The defendant in O.S.No.5 of 2009 on the file of the Court of the Subordinate Judge, Kattappana is the appellant. The suit was filed by the respondent for specific performance of Ext.A1 agreement for sale in respect of an extent of one acre and one cent of land in Pooppara Village, which was planted with cardamom. The trial court decreed the suit for specific performance.
2. The case of the plaintiff is the following: On 25.2.2006 the defendant agreed to sell the plaint schedule property to the plaintiff for a total consideration of Rupees four lakhs fifty thousand and an advance of Rupees four lakhs forty thousand was paid to the defendant. The plaintiff was put in possession of the property. However, the defendant failed to execute the sale deed. The plaintiff instituted O.S.No.41 of 2008 on the file of the Munsiff's Court, Devikulam against the defendant for permanent prohibitory injunction. The dispute between the parties was settled at the intervention of mediators and Ext.A1 agreement dated 18.4.2008 was executed by the defendant. The defendant failed to execute the sale deed and therefore, the suit was filed.
3. The case of the defendant is that he did not execute either the agreement dated 25.2.2006 or the agreement dated 18.4.2008. The defendant had borrowed a sum of Rupees one lakh from one Antony, son of Sabarimuthu on 31.1.2002 agreeing to pay interest at 12% per annum and a promissory note was executed in favour of Antony. The plaintiff was an agent on behalf of Antony and he was a witness to the promissory note. Subsequently on 7.7.2002, another sum of Rupees thirty thousand was borrowed by the defendant from Antony in the presence of the plaintiff. At the time of receiving Rupees one lakh, in addition to the promissory note, the defendant was compelled to hand over blank signed papers and blank signed stamp papers as additional security. The defendant was paying interest at the rate of Rupees four thousand per month to the plaintiff, as an agent of Antony. Antony expired on 1.3.2004. The legal representatives of Antony, namely, Anthrose and Kumar, demanded the balance amount to be paid. Accordingly, the defendant discharged the entire liability and the promissory note dated 31.1.2002 was returned to the defendant. The plaintiff wanted to extract more money from the defendant and, for that purpose, he filed O.S.No.41 of 2008 against the defendant. That suit was dismissed as per Ext.B3 judgment dated 31.10.2008. Thereafter, the plaintiff and others took the defendant to the office of a political party and the defendant was forced to put his signature and thumb impression in an agreement dated 18.4.2008. Ext.A1 agreement dated 18.4.2008 was not executed at the will of the defendant and he was forced to execute the same under threat and coercion. The defendant had no intention to sell his property which was worth more than Rupees ten lakhs at the relevant time. He also stated that he had not received any advance amount as stated in Ext.A1 agreement. The defendant stated that he does not know to read or write Malayalam and he was not aware of the contents of Ext.A1 agreement which is in Malayalam.
4. Before the trial court, the plaintiff was examined as PW1 and the witness to Ext.A1 agreement was examined as PW2. The defendant was examined as DW1 and one Murugan was examined as DW2 to prove the transaction between the defendant and Antony.
5. In Ext.A1 agreement dated 18.4.2008, the total consideration for the property was shown as ₹4,10,000/- and the advance paid to the defendant was shown as ₹3,50,000/-. ₹50,000/- was reserved with the plaintiff for the purpose of clearing the encumbrance in favour of a co-operative bank in respect of the property in question. As per Ext.A1, the plaintiff was liable to pay only ₹10,000/- as balance sale consideration at the time of executing the sale deed. The time for performance of the contract was fixed as 31.12.2008.
6. The evidence of PW2 shows that Ext.A1 agreement was signed in the office of a political party. It has also come out in evidence that PW2 is the local secretary of that political party. To that extent, the case put forward by the defendant is true. However, the evidence available in the case would not show that Ext.A1 agreement was executed by the defendant under threat and coercion, as alleged by the defendant. On the other hand, it would appear that there was an earlier agreement for sale (Ext.B5 dated 25.2.2006), in which, the total consideration was shown as Rupees four lakhs and fifty thousand and the advance payment was shown as Rupees four lakhs and forty thousand. The case of the plaintiff is that as per the mediation the disputes were settled and Ext.A1 agreement was executed. There was some give and take between the parties and that was why the consideration was fixed at Rupees four lakhs ten thousand and the advance was shown as Rupees three lakhs fifty thousand in the agreement dated 18.4.2008. As rightly held by the trial court, it cannot be believed that the defendant was forced to sign Ext.A1 agreement under threat and coercion. It is true that Ext.A1 agreement was signed in the office of a political party of which PW2 was the Secretary. That by itself is not a sufficient ground to hold that Ext.A1 agreement was executed by the defendant under threat and coercion. But it is quite strange to note that the total consideration for the property was fixed at Rupees four lakhs fifty thousand in February, 2006 while the total consideration for the property was fixed at Rupees four lakhs ten thousand in April 2008. The extent of the property is one acre and one cent. The Commissioner's report would show that the property is planted with cardamom and the cardamom plants had started yielding. The Commissioner has stated in Ext.C1 report that a quantity of 200-225 Kgs. of dry cardamom would be available after harvest from the plaint schedule property. The Commissioner noted at the time of inspection that the wife of the defendant was watering the cardamom plants. The case put forward by the defendant that at the time of execution of the agreement, the property was worth Rupees ten lakhs must be true going by the details available in the Commissioner's report and the evidence adduced on the side of the defendant.
7. The evidence of DW2 would show that the defendant had borrowed Rupees one lakh from Antony. DW1 stated that the plaintiff was acting as an agent of Antony. Antony was a money lender. DW2 was a witness to the transaction between Antony and the defendant. He also proved Ext.B1 promissory note which was executed by the defendant in favour of Antony on 31.1.2002. DW2 also stated that apart from the promissory note, signatures of the defendant were obtained in blank papers and blank stamp papers.
Borrowal of Rupees one lakh thirty thousand by the defendant from Antony was proved by the evidence of DW2. DW2 stated that the defendant was paying Rupees four thousand per month as interest to the plaintiff, on behalf of Antony. He also stated that after the death of Antony, defendant discharged the liability and the legal representatives of Antony returned Ext.B1 promissory note to the defendant. Ext.B1 promissory note is in Tamil. The signature of the defendant in Ext.B1 is also in Tamil. The plaintiff in the present suit is admittedly a witness to Ext.B1 promissory note. All these facts would probabilise the case of the defendant that his mother tongue is Tamil, that he borrowed Rupees one lakh from Antony on executing Ext.B1 promissory note, that he had discharged the liability to Antony by paying off the amount due to his legal representatives and that Ext.B1 promissory note was returned to the defendant. The evidence of DW1 would show that the plaintiff was collecting interest from the defendant on behalf of Antony.
8. As regards Ext.A1 agreement and Ext.B5 agreement, though the defendant denied execution of the same, we are not inclined to accept the case of the defendant in that regard. At the same time, we do not think that the defendant had agreed to part with his property for a sum of Rupees four lakhs ten thousand. The case put forward by the plaintiff as well as the defendant as to what exactly was the transaction between them does not reveal the true story. Both sides have stated untrue facts. If the case of the plaintiff is true, how did it happen that the value of the property was fixed at Rupees four lakhs ten thousand in April 2008 while the value fixed for the same property in February 2006 was Rupees four lakhs and fifty thousand? There is also disparity between the amount shown as advance in Ext.A1 agreement and Ext.B5 agreement. The trial court erroneously thought that Ext.B6 notice was issued on behalf of the plaintiff to the defendant in respect of the present suit. That is not correct. Ext.B6 was issued on 9.1.2008 while Ext.A1 agreement is dated 18.4.2008. That itself would show that Ext.B6 notice is not in respect of Ext.A1 agreement. There is no case for the plaintiff that before filing the present suit any other notice was issued by him to the defendant. It is true that to Ext.B6 notice, the defendant did not send any reply. At the same time, it is also relevant to note that the plaintiff put forward a case that he was put in possession of the property as per Ext.B5 agreement dated 25.2.2006 and he prayed for injunction on that basis in O.S.No.41 of 2008. Ext.B5 does not show that the plaintiff was put in possession of the property. There is no case for the plaintiff in the present case that he was put in possession of the property by the defendant. That shows that the plaintiff was also not telling the truth. Truth is somewhere in between what the plaintiff stated and what the defendant stated.
9. In the facts and circumstances, though we uphold the finding of the trial court that Ext.A1 was executed by the defendant, we are of the view that this is not a fit case where discretion should be exercised in favour of the plaintiff for decreeing the suit for specific performance of Ext.A1 agreement for sale. The plaintiff having not pur forward the true story, it is probable that his attempt was to get at a property worth about Rupees ten lakhs for a song. At the same time, the case of the defendant is also not true. We are not inclined to believe the case of the defendant that he put the signature in Ext.A1 by threat and coercion. We are also not inclined to accept the case of the defendant that he did not receive Rupees three lakhs fifty thousand as advance under Ext.A1 agreement. The sum and substance of these findings would be that Ext.A1 agreement is genuine and that the defendant received a sum of Rupees three lakhs fifty thousand as shown in Ext.A1 agreement. At the same time, it is very clear that on 18.4.2008, the date of Ext.A1 agreement, no money was paid to the defendant as stated in the agreement. The advance of Rupees three lakhs fifty thousand shown in Ext.A1 agreement must have been the advance which form part of Ext.B5 agreement for sale. There were several transactions between the plaintiff and defendant and between defendant and Antony in which the plaintiff was interested and these agreements, pro note and other documents were executed in the course of complicated and complex money transaction. We are of the view that Ext.A1 agreement cannot be made a basis for granting a discretionary relief for specific performance. However, we are inclined to grant a decree in favour of the plaintiff for realisation of Rupees three lakhs fifty thousand from the defendant together with reasonable interest.
Accordingly, the judgment and decree passed by the court below are modified and the suit is partly decreed as follows:
(1) The prayer for specific performance of Ext.A1 agreement is rejected and the suit is dismissed, in so far as it relates to that prayer.
(2) The plaintiff is granted a decree for realisation of Rupees three lakhs fifty thousand from the defendant together with interest at 10% per annum on the principal sum of Rupees three lakhs fifty thousand from 18.4.2008 to the date of suit, with interest at the rate of 8% per annum from the date of suit till this date and with interest at 6% per annum from today till realisation.
(3) The plaint schedule property will be a charge for the decree amount as mentioned above.
(4) In the peculiar facts and circumstances of the case, there will be no order as to costs.
(K.T.SANKARAN) Judge (P.D. RAJAN) Judge ahz/