Abdulshukkoor @ Yousufjan vs V.Ramachandran Nair

C.S.Sudha, J

This appeal has been filed by the defendant against the judgment dated 28/10/2002 in O.S.No.399/1995 on the file of the Subordinate Judges' Court, Kollam. The respondent herein is the plaintiff in the suit. The parties and the documents will be referred to as described in the plaint.

Property having an extent of 4.760 cents comprised in Survey No. 8507 A, B and C of Andamukkam cherry, Kollam Village along with the building therein consisting of shop rooms belongs to the defendant as per partition deed No.1625/1977 of Sub Registry Office, Kollam. Out of the shop rooms in the building, the plaint schedule room was taken on lease by the plaintiff. While so, the defendant executed Ext.A1 agreeing to sell the plaint schedule shop room bearing QMC No.7070/XVII and property comprising one cent in which the room is situated for a total consideration of ₹2,55,000/-. As advance sale consideration, an amount of Rs.50,000/-was paid by the plaintiff on the date of Ext.A1, that is, on 29/11/1993. As per the terms of Ext.A1, the defendant agreed to execute the sale deed on or before 31/03/1994. It was agreed that a clear marketable title would be conveyed after satisfying the plaintiff regarding the actual extent, title and that the property was free from all encumbrances. The plaintiff was always willing and ready to perform his part of the agreement. However, the defendant failed to perform his part of the agreement. Hence the plaintiff on 26/03/1994 expressing his readiness and willingness to take the sale of the property on payment of the balance sale consideration, sent Ext.A2 lawyer notice dated 26/03/1994 to the defendant, which was accepted by the latter on 02/04/1994. The defendant coming to know of the issuance of the notice, approached the plaintiff and requested the latter to extend the period of the agreement till 30/04/1994 on the ground that he was unable to comply with the terms of the agreement before its expiry for reasons beyond his control. He also undertook that he would positively execute the sale deed on or before 30/04/1994. The defendant also made the necessary endorsement in his own handwriting on the reverse side of Ext.A1 agreement. Though the period of the agreement was extended, the defendant never took any steps to execute the sale deed within the extended period also. Hence, Ext.A5 lawyer notice dated 29/04/1994 was issued to the defendant calling upon him to perform his part of the agreement. The defendant accepted the notice on 11/05/1994. However, he never responded to the same or performed his part of the agreement. Hence the suit for a decree of specific performance or in the alternative return of the advance amount with interest and costs from the defendant and his assets.

The defendant denied the execution of Ext.A1 agreement. According to him, as per settlement deed No.1251/1995 dated 28/03/1995, he settled the property in favour of his wife and so he is no longer the owner of the property. The plaintiff, the tenant of the plaint schedule room, defaulted the payment of rent from 01/04/1994 onwards. The defendant had never executed Ext.A1 agreement in favour of the plaintiff. On the other hand, the defendant had borrowed an amount of ₹50,000/- from the plaintiff and at the time of the receipt of the amount, the defendant had handed over some signed blank papers to the plaintiff. The said papers had thereafter been fabricated into an agreement for sale. The allegation that the defendant had requested for extension of the period of the agreement is false. The defendant had several money transactions with the plaintiff and on all these occasions, the defendant had received money by entrusting signed blank papers to the plaintiff. Most of the said transactions have been settled by the defendant but even thereafter the plaintiff had not returned the blank signed cheques and papers that were handed over to the latter at the time of borrowal. The plaintiff has no cause of action and so he is not entitled to the reliefs prayed for.

PW1 was examined and Exts.A1 to A7 were marked on the side of the plaintiff. No oral or documentary evidence was adduced by the defendant. The trial Court on a consideration of the oral and documentary evidence and after hearing both sides decreed the suit granting a decree for specific performance as prayed for by the plaintiff. Aggrieved, the defendant has come up in appeal.

When the appeal was taken up for hearing, it was found that the trial court records were not available. The Registry brought to my notice a letter dated 01/02/2024 of the learned District Judge, Kollam, as per which it has been reported that the trial court records are missing and hence further time is necessary for tracing out the documents. Records reveal that time from 2013 is being sought to trace out the records. It was submitted by both sides that Ext.A1 is the suit document. A copy of Ext.A1 was handed over to me on the basis of which I proceed to dispose of the matter.

The only point that arises for consideration in this case is whether there is any infirmity in the findings of the trial court calling for an interference by this Court.

Heard both sides.

It was argued by the learned counsel for the defendant/appellant that the relief of specific performance is a discretionary remedy under the un-amended Section 20 of the Specific Relief Act, 1963 (the Act). This aspect was never considered by thee trial court. The conditions stipulated in Ext.A1 agreement had not been complied with by the plaintiff. As per the terms of Ext.A1, the plaintiff was bound to regularly pay the rent of the shop room to the defendant till the sale deed was executed. However, it was admitted by the plaintiff when examined as PW1, that he had not paid the rent after the execution of Ext.A1 agreement. In such circumstances, according to the learned counsel, the discretion under Section 20 of the Act ought not to have been exercised by the trial court. It was also pointed out that Ext.A1(a) endorsement alleged to have been made by the defendant on the reverse side of Ext.A1 is a new and distinct agreement. Hence as per Section 14 of the Kerala Stamp Act, 1959 (the Stamp Act), the same ought to have been executed in a separate stamp paper. As the same has not been done, Ext.A1(a) is inadmissible in evidence as contemplated under Section 34 of the Stamp Act. Moreover, Ext.A1 contains several corrections which was also pointed out to be another ground to suspect the execution of Ext.A1 agreement.

8.1. Per contra, it was submitted by the learned counsel for the plaintiff/respondent that the pleadings and evidence clearly establish the case of the plaintiff and hence the trial court rightly decreed the suit and so the judgment calls for no interference. The learned counsel also submitted that the attempt of the defendant is to protract the matter to the extent possible so as to prevent the plaintiff from enjoying the fruits of the decree.

Admittedly, the plaintiff was a tenant of the plaint schedule room, which is one of the shop rooms in a line building owned by the defendant. As per Ext.A1 dated 28/11/1993, the defendant is stated to have agreed to sell the plaint schedule property to the plaintiff. The execution of Ext.A1 was disputed by the defendant who contended that signed blank papers that had been handed over to the plaintiff when the former borrowed money from the latter have been fabricated into Ext.A1 agreement. From the pleadings in the written statement it is clear that the signature in Ext.A1 agreement is admitted. The defendant's case is that blank signed papers had been handed over to the plaintiff and not blank signed stamp papers. The defendant failed to explain how stamp papers containing his signature happened to come in the possession of the plaintiff. The plaintiff when examined as PW1, stands by his case in the plaint and nothing was brought out to discredit his testimony. The defendant on the other hand never entered the witness box to adduce oral evidence or subject himself for cross examination.

Further, Ext.A1 agreement is seen executed on 28/11/1993. Exts.A4 and A7 are notices dated 26/03/1994 and 29/04/1994 respectively. The defendant has no case that he had not received the said notices. It was pointed out by the learned counsel for the defendant that Ext.A4 notice dated 26/03/1994 is stated to have been served on the defendant on 02/04/1994, which is apparently after Ext.A1(a) endorsement dated 30/03/1994. Before receipt of notice, there was no occasion for the defendant to approach the plaintiff and seek extension of time. Therefore, in such circumstances, it cannot be believed that the defendant made Ext.A1(a) endorsement on 30/03/1994 seeking extension of time for execution of the sale deed till 30/04/1994, goes the argument. The case of the plaintiff on the other hand, is that the defendant coming to know of the issuance of Ext.A4 notice, approached him and requested extension of time, which request was acceded to and hence Ext.A1(a) endorsement came to be made by the defendant on the reverse side of Ext.A1 in his own handwriting. There is nothing to disbelieve the case of the plaintiff especially when the defendant had never even entered the witness box to depose in support of his case. Moreover the case of the plaintiff regarding Ext.A1(a) endorsement contained in paragraph 5 and 6 of the plaint is not denied in the written statement.

The defendant had also taken up a contention in the written statement that in consideration of utilising his wife's gold ornaments for his business, he had executed a release deed dated 28/03/1995 in respect of the plaint schedule property in her favour. After the execution of the release deed he had no further right in the plaint schedule property. Though the defendant had taken up such a contention, no evidence was adduced to substantiate the same. The release deed alleged to have been executed was also never produced. Moreover, it is clear that the alleged release deed was executed after the receipt of Exts.A4 and A5 notices dated 26/03/1994 and 29/04/1994 respectively. Therefore, as pointed out on behalf of the plaintiff, the release deed if at all executed, seems to have been done by the defendant to prejudice the right of the plaintiff over the property. It is true that Ext.A1 agreement did not confer or create any title in respect of the plaint schedule property in favour of the plaintiff. But the property covered by Ext.A1 was the subject matter of the suit and hence any document executed by the defendant in favour of a third party to the suit during the pendency of the suit would be subject to the result of the litigation.

It was further argued by the learned counsel for the defendant that the trial court ought not to have relied on Ext.A1(a) endorsement in the light of Section 14 and 34 of the Stamp Act. It was pointed out on behalf of the plaintiff that marking of Ext.A1(a) was never objected to and therefore such an argument cannot be advanced at this late stage. The learned counsel for the defendant replied that Ext.A1 in its entirety is disputed and therefore the defendant is entitled to raise all objections including the objections relying on Sections 14 and 34 of the Stamp Act.

As  noticed  earlier,  the  pleading  relating  to  Ext.A1(a) endorsement in the plaint is not seen specifically denied or for that matter denied in the written statement. Therefore as contemplated under Order VIII Rule 5 CPC, when any pleading in the plaint is not denied specifically, the same can only be taken to be admitted.

Now coming to the provisions of the Stamp Act referred to by the defendant. Section 14 says that no second instrument chargeable with duty shall be written upon a piece of stamped paper upon which an instrument chargeable with duty has already been written. Provided that nothing in this section shall prevent any endorsement which is duly stamped or is not chargeable with duty being made upon any instrument for the purpose of transferring any right created or evidenced thereby, or of acknowledging the receipt of any money or goods the payment or delivery of which is secured thereby. Section 34 says that, no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped. These provisions are obviously not attracted for the following reasons ; firstly, Ext.A1(a) is not a new or an agreement distinct from Ext.A1 agreement. It is only an endorsement made by which the period of the agreement was extended. Here I refer to the dictums in Saffia Khathoon v. Kunhambu, 1977 KLT 448 and 2004 KHC 718, which cases dealt with insufficiently stamped promissory note and the acknowledgements made therein. It was contended that the stamp affixed on the pronote was insufficient and such an insufficiently stamped pronote inadmissible in evidence, cannot be relied on to prove acknowledgment of liability to save limitation. It was held that although promissory note was inadmissible in evidence, the endorsements subsequently made in the document recording the factum of the payments made by the defendant towards the suit debt were admissible in evidence since they did not form an integral part of the promissory note proper and as such endorsements did not require to be stamped. In the light of the aforesaid dictums, the argument advanced by the defendant relying on Sections 14 and 34 is liable to be rejected.

It is true that as per the unamended Section 20 of the Act, the relief of specific performance is a discretionary one. It is also true that in Ext.A1 there is a recital to the effect that the plaintiff is to continue to pay rent for the plaint schedule room till the sale deed is executed by the defendant. The plaintiff when examined as PW1 admitted that after the execution of Ext.A1, he had not paid rent for the room. Default in payment of rent would not disentitle the plaintiff to the discretionary remedy of specific relief as that was not one of the conditions for execution of the sale deed agreed to by the parties. For the default in payment of rent committed by the plaintiff, the defendant had other legal remedies. But it is quite interesting to note that till date no such steps have been initiated by the defendant against the plaintiff for realisation of rent.

In the plaint it is alleged that the plaintiff was always ready and willing to perform his part of the agreement and that it was the defendant who committed breach of the terms of the agreement. This case of the plaintiff is not seen disputed in the written statement. The plaintiff when examined as PW1, stands by his case in the plaint which has not been discredited in any way. Defendant on the other hand, has not adduced any evidence to disprove the case of the plaintiff. Where a party to the suit does not appear in the witness box and state his own case on oath and does not offer himself to be cross examined by the opposite party, a presumption has to be drawn that the case set up by him is not correct. (Vidhyadhar v. Manikrao, AIR 1999 SC 1441 and Iqbal Basith v. N.Subbalakshmi, 2020 KHC 6709 SC)

It was further argued by the learned counsel for the defendant that the plaint schedule room is one of the rooms in the line building owned by the defendant. The room is situated in the middle of the building. The middle room alone under the title and possession of a stranger would cause great difficulties to the defendant in his possession and enjoyment of the remaining rooms and property. Therefore equity demanded that a decree for specific performance ought not to have been granted in favour of the plaintiff. Per contra, it was submitted by the learned counsel for the plaintiff that most of the rooms in the line building has already been sold by the defendant and they are in possession of strangers. In the absence of any evidence to prove hardship as claimed by the defendant, I find no reasons to disagree with the conclusion of the trial court that the plaintiff is entitled to a decree for specific performance.

Admittedly, the decree has been executed and delivery effected on 04/03/2008. It was pointed out by the counsel for the defendant that there was a stay by this Court. On going through the records, I find that on 31/10/2003 stay was granted in I.A.No.1854/2003 on condition that the defendant deposited an amount of ₹50,000/- within a period of 30 days from the date of the order. However, the said amount was not deposited within the time granted. Thereafter, I.A.No.1228/2008 was filed, that is, after 5 years seeking extension of time for depositing the amount. It is not discernible from the records as to whether the request was allowed or not. But it was submitted that the time had been extended and the amount deposited in March 2008. Notice is seen served on the plaintiff/respondent only in November 2011. Therefore, if at all there was a stay, it was without notice to the plaintiff. The learned counsel for the plaintiff also referred to the various petitions that were filed by the defendant before the trial court and the execution court to delay the proceedings to the extent possible. I am not referring to all those details in the light of the conclusion arrived at that there is no infirmity in the findings and conclusion of the trial court granting a decree in favour of the plaintiff. No grounds for interference are made out.

In the result, the appeal sans merit is dismissed.

Interlocutory applications, if any pending, shall stand closed.