ASHA JOSEPH Vs. BABU C. GEORGE

JUDGEMENT

(1.) This appeal is against the judgment and decree dtd. 07/02/2012 in O.S.No.468/2006 on the file of the Subordinate Judge's Court, Kottayam. The suit for specific performance or in the alternative return of advance money has been decreed partly by allowing the prayer for return of advance money. Aggrieved, the sole plaintiff has come up in appeal. The respondents herein are the defendants in the suit. The parties in this appeal will be referred to as described in the suit.

(2.) According to the plaintiff, she had entered into Ex. A2 sale agreement dtd. 07/08/2006 by which defendants 1 to 3 agreed to sell their plaint schedule property having an extent of 12.32 acres for a total sale consideration of Rs.55,44,000.00. On the date of the agreement, an amount of Rs.10,00,000.00 was paid as advance. The agreement was to execute the sale deed within a period of three months from the date of agreement. The plaintiff was always ready and willing to perform her part of the contract. However, the defendants were never ready to perform their part of the contract. So, the plaintiff issued Ext.A3 lawyer notice dtd. 31/10/2006 calling upon the defendants to execute the deed, to which they sent Ext.A5 reply notice dtd. 16/11/2006, raising false and untenable contentions. Hence the suit.

(3.) Defendants on the other hand, filed written statement contending that there was never any sale agreement as alleged in the plaint. According to the defendants, Ext.A2 was executed as security when the first defendant borrowed an amount of Rs.10,00,000.00 from the plaintiff. Though styled as a sale agreement, parties never intended to act upon the same. When the defendants received Ext.A3 lawyer notice, along with Ext.A5 reply notice, they had also sent a cheque for Rs.10,00,000.00 returning the amount borrowed by the first defendant from the plaintiff. Ext.A2 is not a sale agreement as alleged in the plaint. The agreement was prepared and brought by the plaintiff incorporating the conditions therein and the signature of the first defendant obtained. The 1st defendant was forced to sign in the agreement in order to obtain the loan amount, failing which the amount was refused to be advanced. None of the terms in the agreement had been agreed to by the defendants. The plaintiff got the agreement executed by playing fraud, exercising undue influence and coercion. Thus Ext.A2 agreement is void ab initio and is not binding on the defendants.