VENGALATH VEETTIL APPU Vs. P KRISHNAKUMAR

JUDGEMENT

(1.) Basing on Ext. A3, a registered agreement for sale dated 27/03/1993 appellant sued the respondents for a decree for specific performance for sale of the suit property five (5) cents and a concrete building, with an alternative prayer for recovery of the sum of Rs.50,000/- said to be paid as advance with interest at the rate of 18% per annum. Learned Sub Judge granted the alternative relief. Appellant is aggrieved.

(2.) The case of the appellant in short is that he entered into an agreement (Ext. A3) with the respondents to purchase the suit property and the building thereon for a total consideration of Rs.1 lakh, paid Rs.50,000/- on the date of agreement itself as advance. The agreement provided that respondents shall execute the sale deed in his favour within six months from the date of Ext. A3. Appellant was always ready and willing to perform his part of the contract. Since respondents were not in a mood to execute the sale deed appellant issued notice dated 30/09/1993 demanding the respondents to receive the balance sale consideration and execute sale deed. Respondents replied by Ext. A2, dated 18/10/1993 wherein they claimed that there was no agreement for sale of the property, nor had they received any advance sale consideration but it is actually a loan transaction. In connection with the marriage of the sister of respondent No.1, he had to incur liability and to discharge that liability, he wanted a loan of Rs.50,000/-. Respondent No.1 approached the appellant who offered to lend Rs.50,000/- with liability to pay interest but on condition that an agreement like Ext. A3 was executed as security for repayment of the loan. Accordingly Ext. A3, agreement was executed by the respondents. Respondents also stated in Ext. A2, reply their willingness to repay the said sum of Rs.50,000/- with interest within three months from that day. Appellant was not satisfied with the reply and laid the suit. Respondents raised the very same contentions in their written statement. Appellant gave evidence as PW 1. Ext. A4 is the prior document of title of the respondents in respect of the suit property which, it is not disputed before me was given to the appellant at the time of Ext. A3. PW 2 is one of the attestors in Ext. A3. He claimed to have negotiated the sale of the property and fixed the consideration at Rs.1 lakh. Respondent No.1 gave contra evidence as DW 1. DW 2 is another attestor in Ext. A3. He claimed that there was no agreement for sale of the property but it was a loan transaction. Learned Sub Judge accepted the evidence of PWs 1 and 2. So far as evidence of DW 2 was concerned, learned Sub Judge observed that in so far as he has attested Ext. A3 as a witness, he cannot turn round and say that it was a loan transaction. There was however, no definite finding by the learned Sub Judge as to whether Ext. A3 was executed with the intention of sale of the suit property in favour of the appellant. Learned Sub Judge observed that appellant has asked for an alternative relief of recovery of advance amount with interest and hence Court is justified in granting that alternative relief. Relying on the decision of the Supreme Court in S. Rangaraju Naidu v. S. Thiruvarakkarasu, 1995 KHC 630 : AIR 1995 SC 1769 : 1995 Supp (2) SCC 680, learned Sub Judge granted decree for alternative relief.

(3.) Learned counsel for appellant contended that the Court has not stated any reason why the main relief sought for by the appellant was disallowed and instead, alternative relief was granted. According to the learned counsel, the mere fact that an alternative relief was claimed or, the agreement itself provided for payment of compensation for loss if any caused to the appellant are not sufficient to disallow the prayer for specific performance. Reliance is placed on the decisions in Kunjumohammed A. C. v. Goverdhan Hathibal Company, 1956 KHC 5 : 1956 KLT 20 : ILR 1955 TC 926 : AIR 1956 TC 93, Pirthi v. Jati Ram, 1996 KHC 913 : 1996 (5) SCC 457 : AIR 1997 SC 1598 and Ameena Ummal v. Narayana Pillai, 1989 (1) KLT SN 45 - Case No. 71