THANDERI RADHAKRISHNAN NAIR Vs. SAVITHRI

JUDGEMENT

(1.) DEFENDANT in O.S.No.132 of 2004 of the court of learned II Additional Sub Judge, Kozhikode is aggrieved by the decree for recovery of money, confirmed by the learned III Additional District Judge, Kozhikode in A.S.No.204 of 2007.

(2.) RESPONDENTS are legal representatives of the original plaintiff. According to the original plaintiff, property mentioned in the plaint schedule belonged to the appellant as per partition deed No.2093 of 1996 and while so, the original plaintiff and the appellant entered into Ext.A1, agreement dated 06.05.2000 for sale of the said property and the building to the original plaintiff for a consideration of Rs.2,75,000/-. The entire sale consideration was paid to the appellant. Appellant executed Ext.A2, sale deed No.2977 of 2000 in favour of the original plaintiff on 10.11.2000. In Ext.A1, sale agreement and Ext.A2, sale deed original plaintiff was made to belief that there is no encumbrances over the suit property. Later, appellant issued Ext.A5, notice dated 26.02.2004 requiring the original plaintiff to discharge the liability outstanding on the property to the Kerala State Financial Enterprises Limited (for short, "the KSFE"). Original plaintiff was compelled under the circumstances to discharge that liability to the tune of Rs.1,06,390/-. He produced Ext.A7, receipt dated 16.03.2004 for payment to the KSFE. He demanded that amount from the appellant. Appellant refused. Hence the suit.

(3.) LEARNED counsel for appellant contends that the facts and circumstances of the case would show that there was a collateral agreement between the original plaintiff and appellant as per which the former was to discharge liability to the KSFE. Learned counsel contended that the evidence would show that even as on 19.09.1997 the KSFE had valued the suit property and building at Rs.4,08,750/- being the consideration it would fetch in a distress sale. It is contended by the learned counsel that even the adjoining property was sold for a higher price and in the circumstances it is quite unlikely that as stated in Ext.A1, agreement, appellant would agree to sell the property for Rs.2,75,000/- or as stated in Ext.A2, for Rs.60,000/- keeping himself liabile to discharge the liability to the KSFE. Learned counsel has also invited my attention to Annexures-A to C documents produced in the Second Appeal.