SABU THOMAS Vs. N.NARAYANAN NAMBOOTHIRI

JUDGEMENT

(1.) The 2nd defendant in OS No. 245 or 2004 on the file of the Principal Sub Court Kottayam, is the appellant. (For the purpose of convenience the parties are hereafter referred to as per their rank before the trial court.)

(2.) The plaintiff filed the suit for specific performance of an agreement for sale entered into with the 1st defendant agreeing to sell the plaint schedule property for a total consideration Rs.8,00,000.00. On the date of agreement for sale on 31/7/2003(Ext.A1), a sum of Rs.5,05,000.00 was paid to the 1st defendant as part of the sale consideration. As per the terms of the agreement, the sale deed was to be executed on or before 24/3/2004, after paying the balance sale consideration. According to the plaintiff, he was always ready and willing to perform his part of the sale agreement, but it could not be performed due to the default of the 1st defendant. Finally, on 24/3/2004, after informing the 1st defendant, the plaintiff reached the Sub Registrar's office with the balance sale consideration, expecting the 1st defendant to get the sale deed executed. However, the 1st defendant did not turn up. On enquiry, the plaintiff came to know that the 1st defendant had executed sale deed No.3142/2003 in respect of the scheduled property in favour of the 2nd defendant for a consideration of Rs.1,00,000.00. The 2nd defendant is a close friend of the 1st defendant and her family. The 2nd defendant was fully aware of the agreement executed by the 1st defendant in favour of the plaintiff. Therefore, it is contended that, the sale deed No. 3142/2003 (Ext.A2) is a fraudulent document created in collusion between defendants 1 and 2 to defeat the rights of the plaintiff and as such, it does not bind the plaintiff and the plaint schedule property. It was in the above context that the plaintiff preferred this suit for a decree for specific performance.

(3.) The 1st defendant remained ex parte. The 2nd defendant filed a written statement denying the averments in the plaint and denying the execution of any such sale agreement between the plaintiff and the 1st defendant. It is also denied that the 1st defendant received a sum of Rs.5,05,000.00 being part of the sale consideration from the plaintiff. Further, according to the 2nd defendant, the scheduled property was already mortgaged to Kottayam District Cooperative Bank, Kottayam for a sum of Rs.3,00,000.00. Further, the said property was under court attachments, in O.S. No. 273 of 2003 of the Munsiff's Court, Alapuzha and O.S. No. 458 of 2003 of the Sub Court, Kottayam. The 2nd defendant purchased the property subject to the above encumbrances. After purchasing the said property, the 2nd defendant is in possession and enjoyment of the said property. It was further contended that the 2nd defendant is a bona fide purchaser for valid consideration. He also denied the allegation in the plaint that he is a friend of the 1st defendant. Therefore, the 2nd defendant prayed for dismissing the suit.