PARUTHIKKATTUPARAMBIL AYISHA Vs. PERMBRA ABDUL NASSAR AND ORS.

JUDGEMENT

(1.) The first defendant, aggrieved by the judgment and decree in O.S. No. 69/2008 of the Sub Court, Manjeri, has preferred this appeal. The plaint schedule property belonged to the first defendant, who by an agreement dated 14/12/2007 offered to sell it to the plaintiffs and the 2nd defendant together, for a total consideration of Rs. 11,85,000/-. An advance of Rs. 7,40,000/- was paid on the date of execution of the document. It was agreed that the sale would be completed within a period of five months. At the time of execution of the agreement for sale, the 2nd defendant was out of station and hence, he signed the sale agreement subsequently, after he returned. Since he was abroad, at the time of institution of the Suit, he was arrayed as the 2nd defendant, though he also sought the relief along with the plaintiffs. While so, Rs. 80,000/- was further paid to the first defendant by the plaintiffs on 14/1/2008 as part payment, thereby totaling to a sum of Rs. 8,20,000/-. Thereafter, the first defendant prolonged the assignment of the property and hence on 7/4/2008 a lawyer notice was issued directing the first defendant to execute the sale deed. Though it was received, she refused to reply or to comply with the terms of the agreement. The plaintiffs and the 2nd defendant were always ready and willing to perform their part of the contract. Hence, the suit was laid seeking a decree of specific performance of the agreement for sale.

(2.) Pursuant to the summons, first defendant appeared and filed an affidavit dated 23/5/2008 in reply to I.A. No. 673/2008, the application for attachment of the plaint schedule property. In the affidavit the first defendant undertook not to alienate the property. However, she thereafter assigned the property to the 3rd defendant by document No. 3476/2008 of Perinthalmanna SRO dated 18/6/2008. Hence, the plaintiffs filed I.A. No. 968/2008 to implead the 3rd defendant assignee and I.A. No. 969/2008 to amend the plaint, incorporating a prayer for setting aside the above sale deed.

(3.) The first defendant filed the written statement contending that she had not executed the agreement for sale dated 14/12/2007. The claim that the first defendant had agreed to assign the property for a total consideration of Rs. 11,85,000/- and had received an advance of Rs. 8,20,000/- and the execution of the document were denied. The alleged agreement for sale was a concocted document, misusing the blank signed papers obtained from her son by the 2nd plaintiff. According to her, in 2006 her son Muhammed Fahad had borrowed a sum of Rs. 35,000/- from the 2nd plaintiff who was a money lender and, as demanded by him, had executed one blank signed paper and blank signed cheques. A car belonging to the first defendant was also given to the 2nd plaintiff as additional security. Due to financial difficulties, the amount payable escalated and in December 2007, the 2nd plaintiff threatened to sell the car. She and her son were forced to deliver blank signed stamp papers and other documents. It was alleged that one blank signed paper was concocted into an agreement for sale and the suit was instituted. Though she had undertaken not to alienate the property, M/s. Sundaram Finance, with whom the property stood mortgaged, threatened to initiate legal proceedings for the recovery of the money due. Hence, as agreed upon with the plaintiffs, the property was sold with their consent through the intervention of mediators and the plaintiffs agreed to receive the balance consideration as agreed upon. However, after the sale, they demanded huge amount from the first defendant and subsequently initiated proceeding to set aside the sale.