GIRIJA VALLABHAN NAIR Vs. S.S.BEENA

JUDGEMENT

(1.) The appellant is the plaintiff in O.S.No.682 of 2005 on the file of the Court of the Principal Subordinate Judge of Thiruvananthapuram. The respondents are the defendants therein. The suit instituted by the appellant for specific performance of Ext.A3 agreement was dismissed after trial by judgment delivered on 30.6.2011. The appellant has aggrieved thereby, filed this appeal. The brief facts of the case are as follows: -

(2.) The appellant had in the plaint averred that the first defendant had entered into Ext.A3 agreement with him on 5.6.2005 agreeing to sell the plaint schedule property for a total sale consideration of Rs.2,50,000/ -, that on the date of execution of the agreement he had paid the sum of Rs.10,000/ as advance and that in the agreement it was stipulated that the first defendant will execute the sale deed and deliver possession of the property on or before 5.9.2005 after receiving the balance sale consideration. He had also averred that though he was always ready and willing to perform his part of contract and he had on several occasions approached the first defendant to get the sale deed executed, the first defendant delayed the execution of the sale deed under one pretext or the other, that on 31.8.2005 he caused Ext.A4 notice to be issued calling upon the first defendant to be present in the Sub Registrar's Office, Malayinkeezh at 10.30 AM on 5.9.2005 to execute the sale deed after accepting the balance sale consideration, that the first defendant received the notice and was present in Sub Registrar's Office, but she was not willing to execute the sale deed and stated that the property is mortgaged with the bank and she is not in a position to execute the sale deed. In the plaint dated 23.12.2005 there is however no reference to Ext.A5 reply notice dated 22.9.2005 stated to have been sent on the first defendant's instructions in reply to Ext.A4 lawyer notice. The appellant had in the plaint prayed for the following reliefs: (A) To execute the sale deed and to deliver possession of plaint schedule property to the plaintiff through the Honourable Court. (B) To permit the plaintiff to deposit the balance of sale consideration before this Honourable Court. (C) To allow 12% interest on advance amount from the date of filing this suit and to deduct the same from the balance sale consideration and also allow 12% interest for the balance sale consideration from the date of deposit of the same. (D) To allow the cost of this suit from the defendant and her assets. (E) In case if it is found that the sale is not able to be done through the Honourable Court, to permit the plaintiff to recover the amount paid through advance with 18% interest per annum and other damages from the defendants and their assets. (F) To allow such other reliefs which the plaintiff may seek from time to time and this Honourable Court deem fit and necessary in the interest of justice.

(3.) Upon receipt of summons, the first defendant entered appearance and filed a written statement dated 23.6.2009. In paragraph 3 thereof she contended that she is not the absolute owner of the plaint schedule property and that it belongs to her husband who purchased it from her as per Ext.A7 sale deed dated 15.5.2002. In the succeeding paragraphs she contended that she had no intention to sell the plaint schedule property because she had no right to do so, that the plaintiff is her close relative, that in order to close a loan availed by her husband, she had approached the plaintiff, that the plaintiff was ready to advance the money but he demanded that she should sign some blank papers and should also get the signature of her husband as a witness, that as she was in dire need of money to close the loan she agreed to do so, that she signed on two stamp papers and two blank papers on 25.5.2005 and on that day, the plaintiff advanced her the sum of Rs.1,00,000/ -. The first defendant had also averred that though she thereafter returned the amount to the plaintiff and requested the plaintiff to give back the stamp papers and the blank papers signed by her, the stamp paper dated 25.5.2005 was returned to her. She has also averred that though the stamp paper dated 25.5.2005 was returned by the plaintiff, when she requested for the other stamp paper and blank signed papers, the plaintiff demanded Rs.10,000/ - as interest, but as she did not have the said amount with her, she requested for time, that the plaintiff was adamant and stated that he will return the other stamp paper and the plain papers only after he receives the sum of Rs.10,000/ - as interest. She contended that the agreement on which the suit is instituted was written on the stamp paper which was cancelled. She also averred in paragraph 9 thereof that the plaintiff who is her close relative is fully aware of the fact that the plaint schedule property stands in the name of her husband. In paragraph 10 she reiterated her contention that she had returned the sum of Rs.1,00,000/ - borrowed by her on 25.5.2005 and in the stamp paper which the plaintiff had retained he had fraudulently executed Ext.A3 agreement for sale dated 5.6.2005. She contended that the statement in the disputed agreement that the defendant had received the sum of Rs.10,000/ - as advance itself would reveal the fraud committed by the plaintiff. In paragraph 11 she reiterated the earlier contention that the plaintiff did not return the second stamp paper for the reason that she was not willing to pay the sum of Rs.10,000/ - as demanded by the plaintiff.