Francis @ Kuruvila vs N.T. Joseph

The defendant in a suit for specific performance, which was decreed, is the appellant.

The respondent/plaintiff contended that on 03.01.2007, the defendant had executed Ext.A1 agreement for sale, agreeing to convey 56.5 cents of property for a total consideration of Rs.23,00,000/-, fixing a period of 2 years for performance. An advance of Rs.5,00,000/- was paid on the date of the agreement, and later, on 30.03.2009, a further amount of Rs.15,00,000/- was paid, and the period for performance was extended up to 30.03.2010. The plaintiff issued a lawyer's notice on 27.04.2011 directing the defendant to execute the agreement, which did not happen, and that led to the filing of the suit for specific performance.

The defendant, in the written statement, denied the execution of Ext.A1 agreement and contended that he had borrowed an amount of Rs.5,00,000/- from the plaintiff on 14.03.2002, and at that time, blank stamp papers were taken by the plaintiff as security, and the same has been misused and fabricated to create Ext.A1 agreement.

The defendant further contended that he had executed Ext.B2 agreement with another person on 31.03.2011. The plaintiff and defendant being close relatives, the plaintiff was aware of the fact that the defendant had a liability over the property, which was cleared only in 2012, and thus, on coming to know about the same, the plaintiff created Ext.A1 and filed the above suit.

PW1 and PW2 were examined on the side of the plaintiff and Exts.A1 to A6 were marked. On the side of the defendant, DW1 to DW3 were examined and Exts.B1 to B3 were marked.

The trial court found that Ext.A1 was duly executed and granted a decree for specific performance. Challenging the same, this appeal is filed.

Learned counsel for the appellant/defendant, Shri G. Rajagopal, argued based on the plaint contentions that the amount of Rs.5,00,000/- lent to the defendant in 2002 itself was paid by the plaintiff after taking a loan from the same society where the defendant was working. It was also submitted that the loan transaction with the defendant was admitted by the plaintiff, and as such, his contention about the receipt of blank stamp papers also ought to have been accepted. It is further argued that though in Ext.A1, the plaintiff's wife and one Renoy Prakash, PW2, were shown as the witnesses, only Renoy Prakash was examined. Though the plaintiff would allege payment of Rs.15,00,000/- on 30.03.2009, there was nothing mentioned about the payment of Rs.15,00,000/-in PW2's evidence, and therefore, the payment of Rs.15,00,000/- was not proved at all and, under such circumstances, no decree could have been granted for specific performance.

The learned counsel for the respondent/plaintiff, Shri. Dinesh R. Shenoy, on the other hand, argues that though the defendant denied Ext.A1 agreement, the signature below the endorsement on the reverse side made on 30.03.2009, where payment of Rs.15,00,000/- was mentioned, was admitted and, as such, the burden was entirely on him to prove his case. The payment of Rs.15,00,000/- and the endorsement made on 30.03.2009 were specifically detailed in plaint paragraphs 2 to 4, to which there was no denial as such. It is also to be noticed that when a lawyer's notice was sent mentioning the agreement and the payments, the same was not replied to. The defendant would have replied at the earliest opportunity, and by not doing so, a presumption arises against the contentions of the defendant. It has also come out in evidence that though the loan was taken in the year 2002, Ext.A1 agreement was prepared on a stamp paper purchased only in the year 2007.

In the absence of a denial of the plaint averments and the admission of the signatures in Ext.A1, the trial court was right in coming to the finding regarding the due execution of Ext.A1 agreement, and also granting specific performance, as Rs.20,00,000/- out of the total consideration of Rs.23,00,000/- was already paid. It is also argued that the evidence of DW2 and DW3 would clearly show the hollowness of the case of the defendant, as those witnesses appeared to be more loyal than the king. The contradictions in the chief examination and the cross-examination of DW2 and DW3 clearly show that they cannot be believed at all.

Heard the learned counsel on both sides and perused the records.

The issue arising for consideration in this appeal is whether the finding of the trial court regarding due execution of Ext.A1 can be sustained, and also whether the trial court was right in granting a decree for specific performance.

The defendant did not dispute the signatures in Ext.A1 agreement, including on the reverse page below the endorsement made on 30.03.2009. It is also not in dispute that the stamp papers were purchased only in the year 2007. The specific case of the defendant was that he had a loan transaction, which was conceded by the plaintiff, in the year 2002. Except for the evidence of DW1, the evidence of DW2 and DW3 must be considered hearsay regarding the loan transaction between the defendant and the plaintiff. There is also a discrepancy regarding the place where the blank papers were allegedly handed over, as one witness said that it was handed over at the home of the plaintiff, whereas the other said it was in the office where the defendant worked.

Given the above, the evidence of DW2 and DW3 could not have been relied upon to prove any transaction after 2002 or even the handing over of any signed stamp papers. The signature at the bottom of the endorsement made on 30.03.2009 is crucial, as it was not likely for anyone to put a signature on both sides of the stamp paper, and that too, the endorsement also appears to be natural. True, the case of the plaintiff was that the endorsement was written by a friend of the defendant, and there was no evidence regarding the same. But in the absence of any denial to the pleading regarding the payment of Rs.15,00,000/- on 30.03.2009, the same cannot be taken as a reason to reject the case put forth by the plaintiff regarding payment of Rs.15,00,000/- on 30.03.2009.

It is also to be noticed that there was no cross-examination when PW1 was examined regarding the payment of Rs.15,00,000/-. Thus, apart from denying Ext.A1 in its entirety, not only was there no denial about the endorsement and the subsequent payment of Rs.15,00,000/-, but no explanation was also given as to how the signature of the defendant appeared in the endorsement on 30.03.2009.

The fact that there was no reply sent to Ext.A2 lawyer notice issued on 27.04.2011, wherein the plaintiff made specific allegations about the agreement and also payment of Rs.5,00,000/-as advance and the subsequent payment of Rs.15,00,000/- assumes considerable significance. It is pertinent to note that the defendant was an employee in a Co-operative bank, and therefore, the conduct of leaving signed stamp papers and also not replying to the lawyer's notice cannot be taken as normal human conduct in the circumstances of the case.

The trial court has given valid reasons for finding due execution of Ext.A1. None of the reasons given by the trial court for the due execution of the agreement and for exercising the discretion to grant specific performance call for any interference in this first appeal. Under such circumstances, I do not find any merit in the above appeal and the same will stand dismissed.