Kerala High Court
Soossan Johnson vs Manoj.S on 15 September, 2020
Author: Devan Ramachandran
Bench: Devan Ramachandran
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
TUESDAY, THE 15TH DAY OF SEPTEMBER 2020 / 24TH BHADRA, 1942
RFA.No.582 OF 2015
JUDGMENT IN OS 278/2010 DATED 13-07-2015 OF SUB COURT,
KOTTARAKKARA
APPELLANT/PLAINTIFF:
SOOSSAN JOHNSON, AGED 56, W/O. JOHNSON,
PULIYATHU VEEDU, KOMALAM KUNNU, PUNALUR MURI,
PATHANAPURAM TALUK.
BY ADV. SRI.RANJITH THAMPAN (SR.)
BY ADV. SMT.P.R.REENA
RESPONDENTS/DEFENDANTS:
1 MANOJ.S., S/O. SIVASANKARA PILLAI,
KRISHNAKRIPA, 27/205, GIRINAGAR,
KADAVANTHRA, ELAMKULAM, ERNAKULAM -682 001, MANAGER,
STONE HILL FOUNDATION PUBLISHING CO., 31/3352,
PALLIPARAMBIL LANE, NEAR SREE SANKARA AYURVEDA
HOSPITAL, ERNAKULAM - 682 001.
2 MOHAN G. NAIR, PROPRIETOR, STONE HILL FOUNDATION
PUBLISHING CO. 31/3352, PALLIPARAMBIL LANE, NEAR
SREE SANKARA AYURVEDA HOSPITAL, ERNAKULAM- 682 001.
3 RONI P. JOHNSON, AGED 35, PULIYATHU VEEDU, KOMALAM
KUNNU, PUNALUR MURI, PATHANAPURAM TALUK - 682 001.
4 THE FEDERAL BANK LIMITED, ATHANI BRANCH, ERNAKULAM,
REPRESENTED BY ITS CHIEF MANAGER - 682 001.
R4 BY ADV. SRI.A.ANTONY
R4 BY ADV. SMT.LEELAMMA ANTONY
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
26.08.2020, THE COURT ON 15.09.2020 DELIVERED THE FOLLOWING:
RFA 582/15 2
JUDGMENT
Dated this the 15th day of September 2020 The appellant, Smt.Soossan Johnson, is the plaintiff in O.S.No.278/2000 on the files of the Sub Court, Kottarakkara. She initially filed the said suit arraying respondents 1 to 3 herein as the defendants, praying that her title and possession over the plaint schedule property - comprised of 58.750 cents and a building thereon
- be declared; with an additional prayer that a Sale Deed, Document No.1123/2008 of the Punalur SRO, which she had been allegedly deceived by the defendants to execute in the name of the first defendant, be set aside. She also prayed that the defendants be restrained by a permanent prohibitory injunction from trespassing into the plaint schedule property.
2. For the sake of convenience, the parties will hereinafter be referred in the manner as they are arrayed in the suit.
3. The case of the plaintiff, as can be forgathered from the plaint filed by her, is that the second defendant - Sri.Mohan G.Nair, is the Proprietor of an entity by name 'Stone Hill Foundation Publishing RFA 582/15 3 Co.', of which the first defendant is the Manager. She alleged that on 12.09.2007, the third defendant, in his capacity as the Proprietor of 'Stone Hill Foundation Publishing Co.', issued an appointment letter to her son - the third defendant, offering to employ him as an Office Assistant at Ernakulam. She says that her son joined duty immediately as a Trainee for a period of six months and that defendants 1 and 2, thereafter, represented to him that if he completes the training successfully, he will be confirmed on a monthly salary of Rs.25,000/-, with a condition that he either furnishes cash security, in the nature of a Bond, for an amount to be fixed later, or that he hand over the title deed of a valuable property in order to have the Bond registered on its security. The plaintiff states that when her son informed of this and pleaded her to hand over the title deed of the plaint schedule property, which is her sole residential one, she relented in the hope that he will obtain a permanent employment. She says that she thus handed over the original title deed and a Tax Receipt to the third defendant, who, in turn, delivered it to the second defendant.
4. The plaintiff then avers in the plaint that, thereafter, the first defendant informed that he will reach her residence at Punalur RFA 582/15 4 on 15.03.2005 with a Bond he had prepared at Ernakulam and requested her to be present in the Sub Registrar Office for its execution. She says that the first defendant, along with her son - the third defendant and a document writer met her at the residence and read out the Bond, which she then signed. She says that, thereafter, she went with them to the Sub Registrar Office and executed the document believing it to be only a Security Bond.
5. The plaintiff alleges that after 'few months' she obtained reliable information that 'some manipulation happened in the Sub Registrar Office' and that the plaint schedule property had been managed to be 'pledged' with the Federal Bank, Angamaly Branch, as security for a loan of Rs.4 lakhs, availed of by defendants 1 and 2. She says that it is then that she realised the deceit employed on her and that she demanded defendants 1 and 2 to return the title documents and fraudulently created Sale Deed, but that they refused to do so, thus constraining her to initiate legal action against them.
6. The plaintiff states that she has studied only upto the IV Standard and that her naivety was taken advantage of by defendants 1 and 2. She asserts that no sale consideration was paid and further that after they were able to guile her in this fashion, defendants 1 and RFA 582/15 5 2 dismissed her son from service, along with a person by name Sri.K.G.Abhilash, who had 'leaked the information regarding pledging' of the plaint schedule property to her.
7. The plaintiff thus contended that the Sale Deed was a sham document and that this is manifest from the fact that she has never given possession of the plaint schedule property to defendants 1 and 2 at any point of time and that she continues to reside there.
8. In answer to the plaint averments, the first defendant filed a written statement, wherein he denied all the allegations of the plaintiff and asserted that she had sold the plaint schedule property to him with full volition and after receiving the sale consideration of Rs.2,50,000/-. He further denied that the plaintiff's son - the third defendant, had ever been employed by 'Stone Hill foundation Publishing Co.'; however, conceding that he was its Business Manager. He also averred that the afore mentioned entity was a 'private registered company' (sic), of which the second defendant was one of its Directors.
9. After saying as above, the first defendant further stated that since the third defendant was never employed by 'Stone Hill Foundation Publishing Co.', there was no question of asking him to RFA 582/15 6 execute any Bond and that these allegations have been made by the plaintiff with malafides.
10. The first defendant then admitted in his pleadings that he had gone to Punalur on 15.03.2008 for execution of the Sale Deed; but that 'before the draft of the Sale Deed was handed over to the plaintiff and it was not only read over to her, but also read personally by her before approving the draft' ( sic). He submits that after the draft of the Sale Deed was so approved by the plaintiff, he had prepared the original on a stamp paper, which was purchased from Ernakulam, where he is residing and took it to her on 15.03.2008, which she again approved and signed, after accepting the sale consideration. He says that the plaintiff, thereupon, handed over the key of the building in the plaint schedule property, thus giving him full possession of it; and then proceeded to the Sub Registrar Office for execution of the Sale Deed, in which her son - the third defendant - is a witness.
11. The first defendant further stated in his pleadings that the factum of the plaintiff having executed the Sale Deed voluntarily is evidenced by the fact that she had also, subsequently on 04.04.2008, executed a Rectification Deed - to correct the number of the building RFA 582/15 7
- on his request after he found the mistake in the Sale Deed and that her son - the third defendant is a witness in this deed also. He says that he, thereafter, effected change of registry of the property in his name and then obtained a loan from the Federal Bank, Angamaly Branch, on the strength of an equitable mortgage executed by him on it. He also alleged that the suit has been filed by the plaintiff in collusion with the third defendant when she knew that he had entered into an agreement for sale of the plaint schedule property with another person.
12. On the assertion of the plaintiff that she still continues to be in possession of the plaint schedule property, the first defendant averred that though she surrendered its possession to him on 15.03.2008, being the date of the Sale Deed, on the later request of the third defendant, he gave it to him on rent and that the plaintiff may be thus residing with him in such manner.
13. The first defendant prayed that the suit be dismissed, but after stating that there was no reason for 'Stone Hill Foundation Publishing Co.' to have terminated the services of the third defendant
- he having been never appointed by them; and that no person by name Abhilash had also been so dismissed, as alleged by the plaintiff. RFA 582/15 8
14. Pertinently, the second defendant did not file any written statement, but on 27.07.2012 his counsel informed the Trial Court that his client was adopting the written statement of the first defendant. This has been so recorded by the court in its proceedings of the said date and on 01.08.2013.
15. After the written statement of the first defendant had been filed, the plaintiff moved an application to implead the fourth defendant - Federal Bank, which was allowed by the Trial Court.
16. Thereupon, the fourth defendant filed their written statement averring that a loan of Rs.5 lakhs, under an Instalment Payment Scheme, had been availed of by the first defendant, 'who is doing his business of Gents Beauty Clinic and Duty Paid Shop under the name and style M/s.OLLIE' ( sic), on the strength of an equitable mortgage executed by him over the plaint schedule property, depositing the title deeds. They stated that Smt.Smitha Pillai, the wife of the first defendant was the co-obligant under the loan, but that when they defaulted payment, the Bank initiated action by issuing a notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI Act) to them, demanding an amount of Rs.5,84,260/-. They say that RFA 582/15 9 the first defendant, however, paid no heed to this notice, thus constraining them to seek assistance of the Court of the Chief Judicial Magistrate, Kollam, under the provisions of Section 14 of the SARFAESI Act, to take possession of the property. The Bank admits in their pleadings that when the Advocate Commissioner, appointed by the Court, went to take possession, the plaintiff was found residing there and that he did not take possession on that day, since she promised to pay off the loan liability through a written undertaking.
17. The fourth defendant - Bank further stated that, however, the plaintiff, thereafter, filed W.P.(C)No.12165/2013 before this Court and obtained stay of her dispossession from the property on condition that she deposits Rs.69,000/- on or before 01.06.2013, which they concede she did.
18. The fourth defendant thus contended that the plaintiff is a stranger to the loan transaction and that she is not entitled to a decree as prayed for.
19. Noticing the afore pleadings of the parties, the Trial Court framed the following issues:
1. Whether the sale deed No.1123/08 of Punalur SRO was got executed from plaintiff by misrepresentation and fraud as alleged in the plaint?RFA 582/15 10
2. Whether the sale deed No.1123/08 is liable to be set aside?
3. Whether the declaration sought is to be made?
4. Whether the injunction sought is issued?
5. Reliefs and costs.
20. The suit was, thereafter, taken to trial, in which Exhibits A1 to A4 were marked on the side of the plaintiff and Exhibits B1 to B11 were marked on the side of the defendants. Two witnesses, including the plaintiff as PW1, were examined from her side; while the first defendant as DW1 and the Scribe of the Sale Deed as DW2 were examined for the defendants.
21. After analysing the evidence and depositions on record, the Trial Court dismissed the suit, finding that the plaintiff has not been able to prove any of her allegations against defendants 1 and 2, thus holding the Sale Deed executed by her in favour of the first defendant to be valid.
22. It is this judgment and decree of the Sub Court, which are assailed in this appeal.
23. I have heard Sri.Ranjith Thampan, learned Senior Counsel, assisted by Smt.P.R.Reena, learned counsel for the plaintiff and Sri.A.Antony, learned Standing Counsel for the fourth defendant - RFA 582/15 11 Federal Bank. Even though validly served, defendants 1 to 3 are neither represented through counsel nor present in person.
24. When one examines the impugned judgment, it becomes evident that the Trial Court has been persuaded to find against the plaintiff for the following reasons:
(a) She did not mention anything regarding the Rectification Deed - a copy of which has been marked as Exhibit B2 - in the plaint and was 'reluctant' to speak about it in her testimony as PW1. The Court thus concluded that the plaintiff's allegations against the Sale Deed - originals of which have not been produced by either party, but copies are marked as Exhibit A2 on the side of the plaintiff and as Exhibit B1 on the side of the defendants - cannot be found to be true, since if the same had been got executed practicing deceit on her by the defendants, she would not have, thereafter, executed the Rectification Deed.
(b) The signature of the plaintiff in Exhibit B2 Rectification Deed is the same as appearing in her written statement and vakalath, thus establishing that she signed it.
(c) The burden of proving that Exhibit A2 Sale Deed is void is on the plaintiff, but her evidence has been 'inconsistent', since she RFA 582/15 12 virtually admitted Exhibit B2 Rectification Deed as having been executed by her.
(d) No reasonable person would offer a property having an extent of over 58 cents as security for a Bond of Rs.25,000/-, thus rendering the allegations of the plaintiff unworthy.
(e) The suit has been filed more than two years after Exhibit A2 Sale Deed had been executed and this delay is not cogently explained.
(f) It is 'probable' that the plaint schedule property had been given on lease to the son of the plaintiff, after Exhibit A2 Sale Deed had been executed, since it was deposed that she had no other house to reside in, she having sold another one at Punalur earlier.
(g) The change of Registry of the plaint schedule property and Exhibit B6 Tax Receipt and Exhibit B7 Tax Assessment Certificate in favour of the first defendant establish that the sale is complete.
25. That said, it is perhaps acceptable that the afore circumstances relied upon by the Trial Court may justify dismissal of the suit if they are taken in isolation. However, I am afraid that while doing so, the Trial Court omitted to notice certain very important pieces of evidence and proven factual factors, which would render the RFA 582/15 13 afore noticed aspects by itself being not sufficient to hold against the plaintiff. What I mean to say is that the circumstances enumerated above - even though may be sufficient in other cases - could not solely have been used by the Trial Court to find against the plaintiff, since the evidence on record, in its totality, surely compels a contrarian opinion.
26. I will presently explain why I say so in the following enumerated headings.
A. Appointment of the third defendant by the second defendant and demand for execution of the Bond
27. The specific testimony of the first defendant, as DW1, is that he knew the plaintiff's son - the third defendant, as a tourist taxi driver and that he used to drive on his official trips to Thiruvananthapuram. He then testified that on one such trips the third defendant informed him that his mother wanted to sell the plaint schedule property and that he thus visited it and agreed to buy the same. He then said that his acquaintance with the third defendant is only in such manner and vehemently opposed the statement of the plaintiff that her son had been employed by 'Stone Hill Foundation Publishing Co.', of which he expressly admitted to be the Business RFA 582/15 14 Manager.
28. But, what is pertinent is that the afore version of the first defendant regarding the acquaintance with the third defendant has not been stated in his pleadings and when asked, while he deposed, why he did not disclose it, his answer was that he felt it unnecessary.
29. Then, strangely, even though Exhibit A3 appointment letter, asserted to have been issued by the second defendant to the third defendant, had been produced by the plaintiff along with the plaint itself, nothing was stated by the first defendant in his written statement against its veracity. This is extremely crucial since the first defendant has asserted that he is pleading and deposing on behalf of the second defendant also; which, in fact, the latter so affirmed in Court, and as stated earlier, has been recorded by the Trial Court in its proceedings dated 27.07.2012 and 01.08.2013.
30. Hence, when Exhibit A3 appointment letter has been marked without any objection and since the first and second defendants lead no evidence against its veracity or validity, bald denial of the first defendant that the third defendant was not employed in 'Stone Hill Foundation Publishing Co.' can only be seen to be without truth.
RFA 582/15 15
31. At this time, it must also be noted that even when the Trial Court found the evidence of the plaintiff to be 'inconsistent', it omitted to see that the testimony of the first defendant was far worse. In his written statement, the first defendant stated that 'Stone Hill Foundation Publishing Co.' was a 'private registered company' ( sic), of which the second defendant was a Director; when he was testified as DW1, his unequivocal admission was that it is a proprietary concern, exclusively owned by the second defendant (see page 4 of cross- examination of DW1). Since the testimony was stated to be made on behalf of the second defendant also and because the latter adopted the written statement filed by the former, it becomes inevitable that they were acting in unison even to misdirect the court by making incorrect statements. This is more so because it is the case of the plaintiff - as disclosed from the plaint itself - that 'Stone Hill Foundation Publishing Co.' is a proprietary concern of the second defendant.
32. The fact that the third defendant was employed by the second defendant is also spoken to by PW2 - Abhilash, who stated that he worked along with him in 'Stone Hill Foundation Publishing Co.'. He testified that he so worked as a System Administrator from RFA 582/15 16 the year 2006 till 2012 and that the third defendant worked with him for two years. He also stated that when the third defendant questioned defendants 1 and 2 regarding the manipulation with respect to the plaint schedule property, he was suspended from service and that, later, he was also dismissed. Even though PW2 was cross-examined by the first defendant, the statements made by him in the deposition could not be shaken and it remains unimpeached.
33. These factors clearly point to and establish beyond preponderance of possibility that the third defendant was employed by the second defendant in his concern, in which the first defendant was the Manager. This also, therefore, strongly probabilises the case of the plaintiff that the third defendant had been asked by defendants 1 and 2 to execute a Bond on the strength of her title deeds, since, otherwise, there was no reason for defendants 1 and 2 to flagrantly make incorrect assertions in court denying the appointment of the third defendant.
B. Circumstances with respect to Exhibit A2 Sale Deed
34. The version of the first defendant in his oral evidence is that he was introduced to the plaintiff by her son, the third defendant. Though not stated in the written statement, when deposed as DW1, RFA 582/15 17 he said that he had met the plaintiff thrice at her residence - which is admittedly the plaint schedule property - and that each of such time, he was accompanied by the third defendant and the Scribe, a certain Sri.Manikantan, to discuss about the draft of the Sale Deed. When he was then asked in cross-examination why he had not stated all these in the written statement, his answer was that there was no reason for not doing so (see page 5 of cross-examination of DW1). However, the evidence of this Manikantan, as DW2, is that he met the plaintiff only once at her residence to read out the draft of the Sale Deed to her, when the third defendant was not present; and that, thereafter, he met her only at the Sub Registrar Office to show the original deed and to register the same (see pages 3 and 4 of cross-examination of DW1). Why the first defendant spoke otherwise is something that the Trial Court never examined.
C. Circumstances of execution of Exhibit B2 Rectification Deed
35. The first defendant's case is that after Exhibit A2 Sale Deed was executed, an error was found therein and hence he approached the plaintiff to correct it. He says that he prepared the draft of the same and went to Punalur to meet her on the day prior to its registration. He specifically said that the Scribe - DW2 was also RFA 582/15 18 with him. He then said that he brought the plaintiff to the plaint schedule building from 'Thatta', to where she had moved after signing Exhibit A2 Sale Deed and read it over to her (page 5 of cross- examination of DW1).
36. Pertinently, the evidence of DW2 - Scribe was totally to the contrary. He said he accompanied the first defendant to the plaint schedule property, where the plaintiff was residing and read out the draft of the Rectification Deed to her. He unambiguously averred that the draft of the Rectification Deed and that of the Sale Deed were read out to the plaintiff at the same place, namely the plaint schedule property (see page 4 of cross-examination of DW2). Again, the Trial Court never noticed these serious discrepancies. D. Sale Consideration
37. This is one of the most vital aspect that the Trial Court failed in evaluating correctly.
38. The consideration shown in Exhibit A2 Sale Deed is Rs.2,50,000/-. The first defendant is absolutely clear that he paid this money to the plaintiff in the morning of 15.03.2008 at her residence in the plaint schedule property, in the presence of the Scribe - DW2, simultaneous to her executing the Sale Deed. His testimony as DW1 is RFA 582/15 19 that he and the Scribe went to the plaintiff's house on 15.03.2008 and read out the original Sale Deed to her, which she approved; and that she, thereupon, executed it, after accepting the sale consideration of Rs.2,50,000/-. He also stated that thereafter she handed over the key of the building to him, thus giving vacant possession of the plaint schedule property. This is so stated by the first defendant in his written statement and chief examination.
39. However, the evidence of the Scribe - DW2 cuts all the afore statements of the first defendant. According to DW2, he never went to the residence of the plaintiff on 15.03.2008, but proceeded directly to the Sub Registrar Office, Punalur to meet the plaintiff. He says very clearly that he read out the contents of the Sale Deed to her in the said office and that she then signed it; leading it to be presented for registration a little later. He was without any doubt in then deposing that he did not see the sale consideration being paid and said that this might have been done by the first defendant in a car parked outside the compound of the Sub Registrar Office after the Sale Deed was signed by the plaintiff. He also added that the sale consideration was Rs.5 lakhs (page 3 of cross-examination of DW2 by the fourth defendant).
RFA 582/15 20
40. To make it far worse, the first defendant in his testimony stated that the sale consideration was, in fact, Rs.6,35,000/- and this was not based on centage value, but fixed as a consolidated figure (page 4 of cross-examination of DW1). He then went on to admit, when being confronted with a Bank Statement which was not marked in evidence, that he had remitted various amounts into the account of the third defendant, the son of the plaintiff, prior to the execution of the Sale Deed, which he said was the advance amount of sale consideration, adding that he had also paid some other sums in cash (pages 6 and 7 of cross-examination of DW1).
41. The irony of this is that DW1 was confronted with the afore mentioned Bank Statement to elicit a response from him that the payments mentioned therein were the salary paid by him and the second defendant to the third defendant; but the first defendant, presumably to be in line with the denial of employment of the third defendant, claimed that he had paid them as advance sale consideration.
42. Apart from the fact that neither in the pleadings in the written statement or his chief examination as DW1, the first defendant has a case that there was an earlier agreement for sale RFA 582/15 21 with the plaintiff under which alone, normally, such advance could have been paid; his firm stand therein is that the entire sale consideration was paid in one shot at the residence of the plaintiff in the morning of 15.03.2008, when Exhibit A2 Sale Deed had been executed by her.
43. It is rather unfortunate that the Trial Court never even adverted to these crucial aspects, because it certainly shows that the case of the first defendant with respect to the quantum of the sale consideration and its tender are thoroughly unworthy; and this, coupled with the evidence of DW2 - the Scribe, it is rendered irrefutable that no sale consideration had been paid by the first defendant to the plaintiff and therefore, that Exhibit A2 Sale Deed is void under the provisions of Section 25 of the Indian Contract Act, 1872.
44. Further, the Trial Court failed to appreciate that when the factual circumstances and evidence clearly give rise to a strong suspicion against tender of consideration, mere production of the document or the recitals therein are not sufficient. In the absence of cogent evidence regarding passing of consideration and its source, the Trial Court has erred in granting imprimatur to Exhibit A2 Sale RFA 582/15 22 Deed.
E. Possession of the plaintiff over plaint schedule property
45. As seen above, the first defendant claims that on execution of the Sale Deed by the plaintiff at her residence, she handed over the key of the building and vacant possession of the plaint schedule property to him. I have already found, from the deposition of DW2 - the Scribe, that the Sale Deed was executed by the plaintiff not at her residence but at the Sub Registrar Office, Punalur. Hence the next assertion of the first defendant that the key of the plaint schedule building was handed over by her at the residence, after accepting the sale consideration in the presence of DW2, can also not be found true, since DW2 admitted that he did not see the first defendant pay any amount and that it may have been done subsequent to the execution of the Sale Deed in a car parked outside the compound of the Sub Registrar Office (Interestingly he admitted so while cross-examined on behalf of the fourth defendant - the Bank).
46. Further, DW2 also admitted that the draft of the Rectification Deed was read out to the plaintiff, the day before it was registered, namely on 03.04.2008, at her residence in the plaint RFA 582/15 23 schedule property. Of course, the stand of the first defendant in his oral evidence is that after Exhibit A2 Sale Deed had been executed and registered, the plaintiff shifted to a place called 'Thatta' and that for reading out the draft of the Rectification Deed, he brought her on 03.04.2008 to the plaint schedule property. This statement cannot be even trusted for a moment because DW2 stated that he travelled from Ernakulam to Punalur along with the first defendant and that they went directly to the plaint schedule property, where the plaintiff was residing (see page 4 of cross-examination of DW2).
47. This surely establishes that the plaintiff had never given vacant possession of the plaint schedule property to the first defendant at any time and that the latter has deliberately made incorrect statements in court, knowing it to be so, solely to misdirect the processes of law.
F. Lease Agreement
48. When I conclude as above on the aspect of possession, I am fully cognizant that the first defendant has claimed that the plaintiff is presently in possession of the plaint schedule property on the strength of a lease agreement executed with him by the third defendant on 13.05.2008. This agreement has been marked as Exhibit RFA 582/15 24 B3 and shows that the third defendant had taken the building in the plaint schedule property on lease from the first defendant for eleven months on a monthly rent of Rs.2,000/-. This agreement is seen to have been witnessed by two persons, a certain Rubymon and 'Mettan' (name not clear from the document), but they were never summoned or examined by the first defendant. Since the third defendant remained ex parte in the Trial Court, no one can be sure if the signature in Exhibit B3 is indeed that of his, no evidence for such purpose having been led at all.
49. That said, Exhibit B3 is also extremely suspicious because it is allegedly executed only on 13.05.2008, more than a month after Exhibit B2 Rectification Deed had been executed. I have already found that at the time when Exhibit B2 was executed, the plaintiff was residing at the plaint schedule property. Therefore, unless the first defendant had established that the plaintiff had been evicted from the property after Exhibit B2 had been executed by her, Exhibit B3 lease agreement would be of no avail to him to contend that it is only on its strength that she is in possession of the said property.
50. Be that as it may, there is no reason stated by the first defendant as to why the lease under Exhibit B3 should have been RFA 582/15 25 given to the third defendant, when, admittedly, the plaintiff and her husband were alone residing there. This is without doubt because the address of the third defendant in Exhibit B3 is at Ernakulam. When we then read the deposition of the first defendant, as DW1, that the plaintiff had, after execution of the Sale Deed, shifted to a place called 'Thatta', it becomes incredulous why Exhibit B3 lease should have been given at all.
51. I can only, therefore, conclude that Exhibit B3 is a document created for the sake of explaining how the Advocate Commissioner - appointed by the Chief Judicial Magistrate Court, Kollam, in the Section 14 petition under the SARFAESI Act filed by the Bank - found the plaintiff to be in its possession, when he went to take physical possession of the plaint schedule property on 27.04.2013; and therefore, my afore view that the plaintiff never gave possession of the property to the first defendant, is without any error.
52. Another factor to be read along with this is that, in the written statement of the first defendant, he only casually mentions about a lease granted by him to the third defendant but without producing the agreement or copy along with it. This document was only later produced along with an application seeking permission for RFA 582/15 26 such production. There is, however, no explanation to why this document, or at least its copy had not been produced along with the written statement.
G. Settlement of Loan Liability of the first defendant with the fourth defendant - Bank
53. Though perhaps not the sole reason on which Exhibit A2 Sale Deed can be found to be sham or invalid, the admitted fact remains that the entire loan liability on the plaint schedule property was paid off by the plaintiff.
54. The written statement of the fourth defendant reveals that when the Advocate Commissioner, appointed under Section 14 of the SARFAESI Act, went to take physical possession of the property on 27.04.2013, he saw the plaintiff to be in its possession. They say that, thereupon, the plaintiff gave a written undertaking to pay off the liability; but that, instead of doing so, she filed W.P.(C)No. 12165/2013 before this Court, arraying the first defendant as the third respondent. They have averred that this Court granted her an interim order against dispossession on condition that she pays the Bank Rs.69,000/-, which they admit she did. They then say in the written statement that the said writ petition is pending. RFA 582/15 27
55. Sri.Ranjith Thampan, learned Senior Counsel for the plaintiff, submits that the afore writ petition was disposed of by this Court through judgment dated 24.01.2014, the certified copy of which is marked as Exhibit A4. He submits that even though the first defendant had undertaken before this Court, as is recorded in Exhibit A4 judgment, to clear off the entire liability, he refused to do so, thus constraining his client to approach this Court again by filing W.P. (C)No.39612/2015, arraying the first and second defendants as respondents 3 and 4, which was also disposed of by this Court permitting the plaintiff to pay off the loan liabilities in instalments, without prejudice to her contentions in the present suit. Sri.Ranjith Thampan says that his client thus paid off the said liability, which was over Rs.10.97 lakhs. He then submits that, in fact, the plaint schedule property had also been attached by the fourth defendant Bank with respect to another loan of the first defendant and that his client has also paid off the same recently.
56. I notice that the plaintiff has produced the receipts indicating payment by her as afore submitted by the learned Senior Counsel, which has been marked in this appeal as Exhibit A5 series, as per the order in I.A.No.1/2020, filed under Order XLI Rule 27 of RFA 582/15 28 the Code of Civil Procedure.
57. Sri.A.Antony, learned Standing Counsel for the Bank, affirms that apart from the loan mentioned in Exhibit A4 judgment and in the judgment in W.P.(C)No.39612/2015, the first defendant had availed of another, which was also defaulted by him, forcing the Bank to attach the plaint schedule property for its recovery. He admits that this loan has also been paid off by the plaintiff by remitting an amount of Rs.3,50,000/-, which figure was arrived at by the Bank as a One Time Settlement amount. He then submitted that, as required by this Court, the Bank has also produced the Valuation Report dated 17.05.2008, obtained by it before granting loan to the first defendant and that same has been marked as Exhibit B12, as per the order of this Court in I.A.No.2/2020.
58. The above submissions of the learned counsel show that when physical possession of the plaint schedule property was attempted to be taken by the Bank under the SARFAESI Act, the plaintiff obtained Exhibit A4 judgment from this Court, in which the undertaking of the first defendant that he will pay off the loan liability was recorded. However, the first defendant refused to do so, thus forcing the plaintiff to file W.P.(C)No.39612/2015 and to pay off the RFA 582/15 29 loan outstandings under the judgment therein. It is also clear that the plaintiff had to pay an additional amount of Rs.3.5 lakhs recently to clear off another loan of the first defendant, the liability of which also the property in question was burdened with, through an attachment over it.
59. This ineluctably establishes how the first defendant is not concerned about the property and how he indirectly derived maximum benefit out of it. The bonafides exhibited by the plaintiff in saving the property from a distress sale by the Bank and the total indifference shown by the first and second defendants can only lead me to hold that Exhibit A2 Sale Deed is a sham and null document, created by practicing deceit on the plaintiff and hence non est in the eye of law, under Sections 14 and 16 of the Indian Contract Act.
60. Before I part from this issue, the contents of Exhibit B12 Valuation Report also make crucial reading. This report, regarding the value of the plaint schedule property, was obtained by the Bank less than two months after Exhibit A2 Sale Deed had been registered. As has been seen above, the Sale Deed shows the consideration to be only Rs.2,50,000/-. However, the market value recorded in the Valuation Report obtained by the Bank is Rs.14.75 lakhs; while its RFA 582/15 30 distress value is Rs.11.80 lakhs.
61. Even being fully aware that inadequacy of sale price can never be the singular reason to set aside a Sale Deed, the fact that the value in Exhibit A2 is so grossly low - especially when the first defendant himself stated that the sale consideration was Rs.6,35,000/-
- persuades me to no other conclusion that the plaint allegations are fully true.
62. In such perspective and returning to the conclusions of the Trial Court in the impugned judgment, even if, for the sake of argument, some of the factors found by it against the plaintiff are accepted, Exhibit A2 Sale Deed can never pass muster from the touch stone of the imperative and statutory criterion applicable. However, the fact remains that the Trial Court has proceeded on mere assumptions, including that no person would offer a valuable property for a Bond of Rs.25,000/- and that it must be presumed that the plaintiff is in possession of the plaint schedule property on the basis of Exhibit B3 lease agreement. The fact that the suit was filed after two years of Exhibit A2 Sale Deed, which, in any case, is within the period of limitation or that change of registry over the property had been effected in favour of the first defendant are also totally RFA 582/15 31 irrelevant from the facts and evidence noticed above. I do, nevertheless, acknowledge that non-mentioning of the Rectification Deed by the plaintiff is a circumstance that can lead to a suspicion, but in the background of the factual scenario above seen, this by itself cannot cause the suit to be dismissed.
63. The discussions above reduce it to be irrefutable that neither was any consideration paid by the first defendant to the plaintiff, nor was possession of the plaint schedule property even given by her to the former. The deceit employed on the plaintiff in obtaining the execution and registration of Exhibit A2 Sale Deed and Exhibit B2 Rectification Deed being writ large, I have no hesitation, whatsoever, that these documents are null, void and non est in law, being hit by the rigor of Sections 17, 18 and 19 of the Indian Contract Act.
Resultantly:
(i) This appeal is allowed and the impugned judgment and decree of the Sub Court, Kottarakkara are set aside.
(ii) Consequently, O.S.No.278/2000 on the files of the Sub Court, Kottarakkara is decreed, declaring that Document Nos.
1123/2008 and 1534/2008 of the Sub Registrar Office, Punalur are RFA 582/15 32 vitiated by fraud and, therefore, set aside the same.
(iii) Defendants 1 and 2 are thus hereby restrained by a permanent prohibitory injunction from trespassing into the plaint schedule property or from causing any interference or hindrance to its peaceful ownership and possession by the plaintiff.
(iv) The fourth defendant Bank is directed to give back all the documents and papers in their possession or handed over to them by the first defendant, with respect to the plaint schedule property, to the plaintiff forthwith.
(v) The plaintiff is entitled to costs, both in this appeal and in the suit, from the first defendant.
Sd/-
Devan Ramachandran, Judge tkv RFA 582/15 33 APPENDIX IN RFA 582/2015 APPELLANT'S EXHIBITS:
ANNEXURE I: TRUE COPY OF THE RECEIPT SHOWING THE PAYMENT OF LOAN AMOUNT IN INSTALMENT ON 08.03.2016 ANNEXURE II: TRUE COPY OF THE RECEIPT SHOWING THE PAYMENT OF LOAN AMOUNT IN INSTALMENT ON 07.04.2016 ANNEXURE III: TRUE COPY OF THE RECEIPT SHOWING THE PAYMENT OF LOAN AMOUNT IN INSTALMENT ON 09.05.2016 ANNEXURE IV: TRUE COPY OF THE RECEIPT SHOWING THE PAYMENT OF LOAN AMOUNT IN INSTALMENT ON 09.06.2016 ANNEXURE V: TRUE COPY OF THE RECEIPT SHOWING THE PAYMENT OF LOAN AMOUNT IN INSTALMENT ON 09.08.2016 ANNEXURE VI: TRUE COPY OF THE RECEIPT SHOWING THE PAYMENT OF LOAN AMOUNT IN INSTALMENT ON 09.09.2016 ANNEXURE VII: TRUE COPY OF THE RECEIPT SHOWING THE PAYMENT OF LOAN AMOUNT IN INSTALMENT ON 07.10.2016 ANNEXURE VIII: TRUE COPY OF THE RECEIPT SHOWING THE PAYMENT OF LOAN AMOUNT IN INSTALMENT ON 07.11.2016 ANNEXURE IX: ORIGINAL OF THE RECEIPT ISSUED BY THE FEDERAL BANK DATED 08.03.2016 SHOWING PAYMENT OF LOAN INSTALMENT OF RS.2,00,000/-
ANNEXURE X: ORIGINAL OF THE RECEIPT ISSUED BY THE FEDERAL BANK DATED 07.04.2016 SHOWING PAYMENT OF LOAN INSTALMENT OF RS.89,681/-
ANNEXURE XI: ORIGINAL OF THE RECEIPT ISSUED BY THE FEDERAL BANK DATED 09.05.2016 SHOWING PAYMENT OF LOAN INSTALMENT OF RS.89,681/-
ANNEXURE XII: ORIGINAL OF THE RECEIPT ISSUED BY THE FEDERAL BANK DATED 09.06.2016 SHOWING PAYMENT OF LOAN INSTALMENT OF RS.89,681/-RFA 582/15 34
ANNEXURE XIII: ORIGINAL OF THE RECEIPT ISSUED BY THE FEDERAL BANK DATED 08.07.2016 SHOWING PAYMENT OF LOAN INSTALMENT OF RS.89,681/-
ANNEXURE XIV: ORIGINAL OF THE RECEIPT ISSUED BY THE FEDERAL BANK DATED 09.08.2016 SHOWING PAYMENT OF LOAN INSTALMENT OF RS.89,681/-
ANNEXURE XV: ORIGINAL OF THE RECEIPT ISSUED BY THE FEDERAL BANK DATED 09.09.2016 SHOWING PAYMENT OF LOAN INSTALMENT OF RS.89,681/-
ANNEXURE XVI: ORIGINAL OF THE RECEIPT ISSUED BY THE FEDERAL BANK DATED 07.10.2016 SHOWING PAYMENT OF LOAN INSTALMENT OF RS.89,681/-
ANNEXURE XVII: ORIGINAL OF THE RECEIPT ISSUED BY THE FEDERAL BANK DATED 07.11.2016 SHOWING PAYMENT OF LOAN INSTALMENT OF RS.89,681/-
ANNEXURE XVIII: ORIGINAL OF THE RECEIPT ISSUED BY THE FEDERAL BANK DATED 23.06.2017 SHOWING PAYMENT OF LOAN INSTALMENT OF RS.89,681/-
/TRUE COPY/ P.S. TO JUDGE