GOPALAKRISHNAN Vs. SURESH

JUDGEMENT

(1.) This is an appeal against the judgment and decree passed by the Subordinate Judge's Court, Mavelikara in OS No. 211/95. First defendant is the appellant. Plaintiff instituted the suit for specific performance of an agreement for sale. Ext. A2 is the agreement dated 30/07/1994 executed in favour of the plaintiffs. According to the plaintiffs, the plaint schedule property belonged to the 1st defendant (appellant herein). His father died and thus the 1st defendant has become the absolute owner of the property, which was agreed to be sold for a total consideration of Rs.4,06,000/- out of which Rs.1,50,000/- was paid on the date of the agreement. Agreement was signed by the 1st defendant on 30/07/1994. After evicting the tenants from the two rooms of the building and after shifting the residence of the 1st defendant from the other two rooms, the plaintiff requested the 1st defendant to execute the sale deed, after receiving the balance consideration. But the 1st defendant did not heed to the request. The agreement dated 30/07/1994 is stated to be in continuation of the previous agreement dated 03/05/1994. After issuing registered notice, the suit was instituted. It is stated that the plaintiff is always willing and ready to perform his obligation by paying the balance consideration. But the 1st defendant committed breach of the agreement. The plaintiff also sought for an amount of Rs.40,000/- per month as mesne profits from the date of deposit of the balance sale consideration. The 1st defendant in his written statement admitted the execution of the sale deed for a total consideration Rs.4,06,000/-. But he denied the receipt of an amount of Rs.1,50,000/-. According to him, only an amount of Rs.15,000/- was received by way of advance and the balance amount of Rs.1,35,000/- was promised to be paid within two months from 30/07/1994, the date of the agreement. But the same was never paid later. The two tenants in the shop rooms refused to vacate, in spite of efforts made by the 1st defendant. The calculation of the balance sale consideration as per the plaint is false and not acceptable to the 1st defendant. The plaintiffs were not willing to pay the balance consideration. Defendants 2 and 3 are not necessary parties.

(2.) The Court below framed necessary issues and one of the issues was as to whether the 1st defendant had received Rs.1,50,000/- as advance sale consideration from the plaintiffs. Besides whether the plaintiffs were willing to perform their part of the agreement and they are entitled to specific performance of the agreement were also raised for consideration.

(3.) PWs 1 to 3 were examined on the side of the plaintiffs. Exts. A1 to A4 were also marked on their side. No documentary evidence was adduced on the side of the defendants and the 1st defendant gave evidence as DW 1. The Court below considered all the issues together for the purpose of convenience. In the light of the clause contained in the agreement regarding the advance payment of Rs.1,50,000/- it was held that no oral evidence could substitute the recitals contained in the written document nor is it permissible under S.92 and 93 of the Evidence Act. The Court below did not give credence to the oral testimony of DW 1 holding that a literate person could not have acknowledged the receipt of Rs.1,50,000/-, if actually the consideration paid was only Rs.15,000/-. The burden to prove that only Rs.15,000/- was paid as against Rs.1,50,000/- recorded in the agreement itself, was on the defendant, since he is contradicting the terms contained in the agreement. The plaintiff examined PW 3 who is the licensee and scribe in Ext. A2. He identified the handwriting in Ext. A2. He also deposed that he had seen the passing of part consideration under Ext. A2. The Court below believed his deposition as true. The Court below therefore rejected the plea of the defendant in this regard. The discussions on the relevant issues are contained in paragraph 6 of the judgment. The Court below rejected the oral testimony of DW 1, but failed to see that the plaintiff did not even mount the box. But in spite of that, the Court below did not accept the testimony of DW 1 stating that it is an interested testimony and drew an inference that a literate person like the 1st defendant would not affix his signature in Ext. A2 to vouchsafe or acknowledge receipt of Rs.1,50,000/-, if as a matter of fact, what was paid was only Rs.15,000/-. The Court below found that the burden to show that only an amount of Rs.15,000/- was received by the 1st defendant is on him. At the same time, according to the Court below, it is difficult to establish the same. In the absence of any evidence on the part of the defendants to show that what was received is only Rs.15,000/-, the case as put forth by the defendants was not accepted. According to the Court below, the document having recited the receipt of consideration of Rs.1,50,000/- execution of which is not disputed, there is no further onus on the part of the plaintiffs to discharge. In these circumstances, the Court below rejected the contention as set up by the defendants.