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Kerala High Court

Thayyullathil Nazar vs Meetthale Marunnoli Abdulla on 16 March, 2022

Author: P.Somarajan

Bench: P.Somarajan

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                THE HONOURABLE MR. JUSTICE P.SOMARAJAN
     WEDNESDAY, THE 16th DAY OF MARCH 2022 / 25TH PHALGUNA, 1943
                         RFA NO. 481 OF 2019 (I)
AGAINST THE JUDGMENT AND DECREE DATED 12.01.2018 IN OS No.161/2012 OF
                           SUB COURT, VATAKARA
APPELLANT/DEFENDANT:

            THAYYULLATHIL NAZAR, AGED 45 YEARS,
            S/o AMMED, RESIDING AT THAYYULLATHIL HOUSE,
            PURAMERI VILLAGE, EDACHERI AMSOM DESOM, EDACHERI.P.O,
            VATAKARA TALUK, KOZHIKODE DISTRICT,
            REPRESENTED BY POWER OF ATTORNEY HOLDER MUMTHAZ, AGED 35,
            CHOYIMADAHTI HOUSE, PUTHUPPANAM AMSOM DESOM,
            PUTHUPPANAM POST, VATAKARA TALUK, KOZHIKODE DISTRICT

            BY ADVS. R.SUDHISH
                     M.MANJU



RESPONDENT/PLAINTIFF:

            MEETTHALE MARUNNOLI ABDULLA, AGED 48 YEARS,
            S/o MOOSA, RESIDING AT MEETHALE MARUNNOLI HOUSE,
            PARAMERI VILLAGE, MUTHUVADATHUR DESOM, MUTHUVADATHUR.P.O,
            VATAKARA TALUK, KOZHIKODE DISTRICT, PIN-673503

            BY ADVS SRI.U.K.DEVIDAS
                    SRI.K.K.ANILRAJ


     THIS   REGULAR    FIRST   APPEAL   HAVING   COME   UP   FOR   HEARING   ON
16.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 RFA No.481 of 2019                       2



                                     JUDGMENT

The execution of a contract for sale and the advance received are brought under challenge by the defendant in a suit for specific performance. Repelling the contention of the defendant, the trial court decreed the suit granting specific performance, against which the defendant came up. The agreed sale consideration comes to Rs.11,00,000/-. The advance amount received comes to Rs.4,00,000/-. Thereafter, two payments were made as on 28/04/2012 and 30/05/2012 for Rs.2,00,000/- and Rs.4,00,000/- respectively. So the total amount paid out of the sale consideration comes to Rs.10,00,000/- (Rupees Ten Lakhs), according to the plaintiff.

2. The defendant contested the suit disputing and denying the due execution of the contract for sale and receipt of Rs.4,00,000/- by way of advance, but advanced a case that there was only a loan transaction of Rs.2,00,000/- with the plaintiff and the abovesaid agreement was executed as insisted by the plaintiff only by RFA No.481 of 2019 3 way of security. In his written statement, nothing has been pleaded or mentioned with respect to two endorsements made in the agreement with the signature and thumb impression of the defendant showing receipt of Rs.2,00,000/- on 28/04/2012 and Rs.4,00,000/- on 30/05/2012. There is no specific denial, much less any dispute raised with respect to the abovesaid two endorsements showing the receipt of the respective amounts by the defendant and it would discharge the initial burden to prove the due execution of the contract for sale and receipt of various amounts thereunder. The registration of a criminal case against the plaintiff in connection with the possession of some signed stamp papers and cheques under Section 17 of the Kerala Money Lenders Act, though lends support to the case of the defendant, in the absence of dispute and specific denial regarding the execution of two endorsements made in the contract, this court has no other option, but to agree with the finding of the trial court that it is lawful to grant a decree of specific performance and hence it deserves no interference. RFA No.481 of 2019 4

3. The fact that the property comes to 20.50 cents and a new building constructed over the property was agreed to be sold for a mere amount of Rs.11,00,000/- would sufficiently show that the consideration agreed into is so unconscionable, especially when a new building was constructed over the property. For the purpose of exercising discretion under Section 20 of the Specific Relief Act and in view of the legal position settled in Anappath Parakkattu Vasudevakurup and Others v. C. Haridasan [2021 (6) KHC 656], a suggestion was made by the learned counsel for the appellant to pay an additional amount of Rs.12,00,000/- (Rupees Twelve Lakhs only) besides the advance amount to the plaintiff in order to compensate the plaintiff for not granting specific performance. It was fairly accepted by the counsel for the respondent/plaintiff. Hence, the decree and judgment of the trial court are hereby set aside by granting a decree for recovery of an amount of Rs.10,00,000/- (Rupees Ten Lakhs only) with interest @ 6% per annum from the date of suit till the date of realization and another amount of RFA No.481 of 2019 5 Rs.12,00,000/- (Rupees Twelve Lakhs only) without the liability to pay interest till the expiry of three months from today and thereafter with interest @ 6% per annum till the date of recovery from the defendant and charged upon the plaint schedule property. The plaintiff is at liberty to get back the balance sale consideration deposited in court.

The appeal is allowed in part accordingly. No costs.

Sd/-

P.SOMARAJAN JUDGE DMR/-

RFA No.481 of 2019 6

APPENDIX RESPONDENT'S ANNEXURE:

ANNEXURE R1(a) : TRUE COPY OF THE PLAINT IN O.S.No.161/2012 DATED 21.09.2012.

ANNEXURE R1(b) : TRUE COPY OF JUDGMENT DATED 06.03.2013 IN O.S. 161/2012.

ANNEXURE R1(c) : TRUE COPY OF THE DECREE DATED 10.1.2014 PASSED BY THE LEARNED SUBORDINATE JUDGES COURT, VATAKARA. ANNEXURE R1(d) : TRUE COPY OF THE EXECUTION PETITION AS E.P.No. 30/2014 DATED 27.05.2014.

ANNEXURE R1(e) : TRUE COPY OF ORDER OF INTERIM PROHIBITORY INJUNCTION PASSED BY THE SUBORDINATE JUDGES COURT, VATAKARA ON 10.10.2012.

ANNEXURE R1(f) : TRUE COPY OF E.A. 63/2015 IN E.P.30/2014 DATED 10.04.2015.

ANNEXURE R1(g) : TRUE COPY OF MEMORANDUM OF APPEAL FAO 42/2015 DATED 27.02.2015 FILED BY THE PETITIONER BEFORE THIS COURT.

ANNEXURE R1(h) : TRUE COPY OF JUDGMENT DATED 29.07.2016 IN FAO 42/2015.

ANNEXURE R1(i) : TRUE COPY OF JUDGMENT DATED 16.03.2016 IN FAO 43/2015.

ANNEXURE R1(j) : TRUE COPY OF APPLICATION DATED 30.05.2017 FILED BY WIFE OF PETITIONER AS POWER OF ATTORNEY HOLDER ANNEXURE R1(k) : TRUE COPY OF THE PETITION DATED 30.05.2017 TO SET ASIDE THE EX-PARTE DECREE.

ANNEXURE R1(l) : TRUE COPY OF WRITTEN STATEMENT DATED 30.05.2017. ANNEXURE R1(m) : TRUE COPY OF PETITION DATED 21.8.2014 TO SET ASIDE THE EX-PARTE DECREE.

RFA No.481 of 2019 7

ANNEXURE R1(n) : TRUE COPY OF COUNTER STATEMENT IN I.A.998/2014 IN O.S.No.161/2012 DATED 06.11.2014.

ANNEXURE R1(o) : TRUE COPY OF THE ORDER IN I.A.998/2014 IN O.S.No. 161/2012 DATED 22.11.2014.

ANNEXURE R1(p) : TRUE COPY OF THE EXECUTION PETITION No.21/2018 DATED 24.05.2018.

ANNEXURE R1(q) : TRUE COPY OF DEED No.257 OF 2019 DATED 16.02.2019 OF SRO EDACHERY.

ANNEXURE R1(r) : TRUE BASIC TAX RECEIPT DATED 19.03.2019. ANNEXURE R1(s) : TRUE COPY OF THE E.P 42/2019 DATED 28.03.2019 FILED BY THE RESPONDENT.

ANNEXURE R1(t) : TRUE COPY OF THE ORDER DATED 7.11.2019 IN E.A.No. 173 IN E.P.No.42 OF 2019. ANNEXURE R1(u) : TRUE COPY OF THE ORDER DATED 7.11.2019 IN 174 OF 2019 IN E.P.No.42 OF 2019.

ANNEXURE R1(v) : CERTIFIED COPY OF THE DEPOSITION DATED 30.01.2021 ANNEXRE R1(w) : CERTIFIED COPY OF ORDER DATED 30.03.2021 IN E.A. No.106 OF 2019 IN E.P.No.30/2014 IN O.S.No.161/12 OF THE SUB COURT, VADAKARA.

// TRUE COPY // P.A. TO JUDGE