Dismissed

Thanderi Radhakrishnan Nair v. Savithri and Others

Kerala HC25 Jun 2012RSA/1211/2011

Case brief

AI extract

What is this about?

In a second appeal challenging a decree for money recovery based on a sale agreement, the High Court of Kerala dismissed the appeal. The court held that the sale deed barred claiming a different consideration and post-agreement documents failed to prove knowledge of encumbrances at the time of sale.

What did the court decide?

Second appeal dismissed; pending interlocutory applications dismissed.

Thanderi Radhakrishnan Nair Vs Savithri and… — Contract and Commercial Disputes | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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MONDAY, THE 25TH DAY OF JUNE 2012/4TH ASHADHA 1934

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RSA.No. 1211 of 2011 ( )

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AS.204/2007 of III ADDL.DISTRICT COURT, KOZHIKODE OS.132/2004 of II ADDL.SUB COURT,KOZHIKODE

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APPELLANT(S)/APPELLANT/DEFENDANT:

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THANDERI RADHAKRISHNAN NAIR, (WRONGLY DESCRIBED AS THANGERI RAMAKRISHNAN NAIR IN THE JUDGMENT AND DECREE) S/O.PALAKKUNNATH KOZHIKKAL SANKARAN NAIR @ KUTTAPPAN NAIR, MONAVALATH MEETHAL, KUTTIKKATTOOR AMSOM DESOM, KOZHIKKODE TALUK.

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BY ADV. SRI.M.KRISHNAKUMAR

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RESPONDENT(S)/NOT PARTIES/L.R'S OF DECEASED 1ST PLAINTIFF:

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SAVITHRI, AGED 60 YEARS, W/O.LATE VENUGOPALAN, P.O.KUTTIKKATTOOR -673 008.

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DIVYA, 32 YEARS, D/O.LATE VENUGOPALAN, -DO-.

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DEEPA, AGED 30 YEARS, D/O.LATE VENUGOPALAN, -DO-.

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DEEPAK, 26 YEARS, D/O.LATE VENUGOPALAN, -DO-.

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BY ADV. SRI.K.SANEESH KUMAR BY ADV. SMT.V.B.SANTHINI

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P. JOSEPH, J.

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-------------------------------------R.S.A. No.1211 of 2011 -------------------------------------Dated this the 25^th day of June, 2012. JUDGMENT

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Defendant in O.S.No.132 of 2004 of the court of learned II Additional Sub Judge, Kozhikode is aggrieved by the decree for recovery of money, confirmed by the learned III Additional District Judge, Kozhikode in A.S.No.204 of 2007.

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Respondents are legal representatives of the original plaintiff. According to the original plaintiff, property mentioned in the plaint schedule belonged to the appellant as per partition deed No.2093 of 1996 and while so, the original plaintiff and the appellant entered into Ext.A1, agreement dated 06.05.2000 for sale of the said property and the building to the original plaintiff for a consideration of 2,75,000/-. The entire sale consideration was paid to the appellant. Appellant executed Ext.A2, sale deed No.2977 of 2000 in favour of the original plaintiff on 10.11.2000. In Ext.A1, sale agreement and Ext.A2, sale deed original plaintiff was made to belief that there is no encumbrances over the suit property. Later, appellant issued Ext.A5, notice dated 26.02.2004 requiring the original plaintiff to discharge the liability outstanding on the property to the Kerala State Financial Enterprises Limited (for short, “the KSFE”). Original plaintiff was compelled under the circumstances to discharge that liability to the tune of 1,06,390/-. He produced Ext.A7, receipt dated 16.03.2004 for payment to the KSFE. He demanded that amount from the appellant. Appellant refused. Hence the suit.

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RSA No.1211 of 2011

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Appellant contended that the property was valued more than 2,75,000/- as referred to in Ext.A1, agreement for sale and that the original plaintiff had undertaken to discharge the liability outstanding with the KSFE. Original plaintiff was aware of the said liability and he was liable to pay the said amount to the KSFE. Original plaintiff paid only 1,00,000/- to the appellant. A further sum of 4,50,000/- was due to the appellant.

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Though there was an attempt to amend the written statement and incorporate a counter claim and set off, that attempt failed in the trial court. The request to amend the written statement as per I.A.No.1846 of 2005 was allowed by the trial court. Trial court on a consideration of the evidence accepted the case of the original plaintiff and granted a decree. That was confirmed by the first appellate court. Hence this Second Appeal.

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Learned counsel for appellant contends that the facts and circumstances of the case would show that there was a collateral agreement between the original plaintiff and appellant as per which the former was to discharge liability to the KSFE. Learned counsel contended that the evidence would show that even as on 19.09.1997 the KSFE had valued the suit property and building at `4,08,750/- being the consideration it would fetch in a distress sale. It is contended by the learned counsel that even the adjoining property was sold for a higher price and in the circumstances it is quite unlikely that as stated in Ext.A1, agreement, appellant would agree to sell the property for

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RSA No.1211 of 2011

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2,75,000/- or as stated in Ext.A2, for 60,000/- keeping himself liabile to discharge the liability to the KSFE. Learned counsel has also invited my attention to Annexures-A to C documents produced in the Second Appeal.

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Learned counsel for respondents, the legal heirs of deceased original plaintiff who appeared in the application to condone the delay contended that the claim of appellant cannot be sustained. It is further contended that even the additional documents sought to be pressed into service in the Second Appeal (Annexures-A to C) would not advance the case of appellant.

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It is not disputed that neither in Ext.A1, agreement for sale nor in Ext.A2, sale deed there is mention of the existence of the liability to the KSFE on the property. True that in Ext.A1, agreement for sale, the consideration is stated as 2,75,000/- of which the appellant is said to have received 1,00,000/- by way of advance on the date of Ext.A1. The endorsements on the reverse side of the first page of Ext.A1(I am given a copy of Ext.A1 for perusal) is to the effect that by three occasions appellant received the balance sale consideration of 1,75,000/- (in the way it is stated in Ext.A1, agreement for sale). In Ext.A2, the sale consideration stated is 60,000/-.

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RSA No.1211 of 2011

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Sec.92 of the Evidence Act (for short, “the Act”) creates a bar on the parties, when the grant is reduced to writing (Ext.A2, in this case) to contend that the sale consideration is different from what is stated in Ext.A2. That is the view taken by this Court in Ambikakumari v. Ramakrishnan (1991 (2) KLT728) .

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Assuming that Ext.A1 can be pressed into service, that also in my view will not advance the case of appellant. In Ext.A1, the sale consideration is stated as 2,75,000/- and receiving 1,00,000/- at the time of agreement, appellant received the entire balance sale consideration as referred to in Ext.A1. According to the learned counsel, the balance of `1,75,000/- was received by the appellant for discharge of liability of the KSFE. But, whatever be the manner in which the amount was utilized by the appellant, there is no mention in Ext.A1 or the endorsements therein that there was any liability outstanding with the KSFE so that the original plaintiff should have notice about that.

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It is not disputed that Ext.A5, notice was issued by the appellant on 26.02.2004 calling upon the original plaintiff to discharge liability of the KSFE. Admittedly that notice comes a few years after Ext.A2, sale deed dated 10.11.2000. Ext.A7 is the receipt issued by the KSFE and it is not disputed that the liability of the KSFE was discharged by the original plaintiff as the KSFE had

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RSA No.1211 of 2011

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initiated steps for recovery of the amount from the property which appellant had mortgaged with that institution and later sold to the respondent as per Ext.A2.

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The other documents now sought to be pressed into service are Annexures-A to C. Annexure-B is a letter said to be given by the original plaintiff to the KSFE on 06.01.2005 stating that the original plaintiff has no objection in returning the documents (pledged with the KSFE) to the appellant. Annexure-A is a letter dated 05.09.2011 from the KSFE to the appellant stating that the documents referred to therein, as requested by the appellant are being forwarded to him. Annexure-C is the valuation report the KSFE had obtained at the time mortgage over the property was created sometime in the year, 1997.

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In Annexure-C, value of the property is assessed as `4,08,750/-. Annexure-B as aforesaid is dated 06.01.2005 and much after the original plaintiff discharged liability of the KSFE on 16.03.2004 as evidenced by Ext.A7 and even after the original plaintiff had instituted the suit for recovery of the said amount from the appellant. Hence Annexure-B would not in any way advance the case of appellant and at any rate, it is not sufficient to show that either at the time of Ext.A1 or Ext.A2, the original plaintiff was aware of the liability outstanding with the KSFE. It is not disputed that by Ext.A5, notice dated 26.02.2004 the original plaintiff had been informed about the existence of liability to the KSFE. Therefore, letter dated 06.01.2005 (Annexure-B produced in the Second

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RSA No.1211 of 2011

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Appeal) coming after the original plaintiff discharged liability of the KSFE as per Ext.A7, receipt dated 16.03.2004 would not in any way advance the case of appellant. So too, Annexure-A, letter dated 05.09.2011 since it is only a continuation of Annexure-B, letter.

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That, the KSFE had valued the suit property and building at `4,08,750/- in the year, 1997 as seen from Annexure-C by itself is no consequence in view of Exts.A1 and A2 which are not disputed.

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In the above view I am satisfied that the finding entered by the courts below is based on the evidence and even the additional documents now pressed into service will not advance the case of appellant. I do not find any substantial question of law involved in the matter, in the circumstances.

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Second Appeal is dismissed.

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All pending interlocutory applications will stand dismissed.

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THOMAS P.JOSEPH, Judge.

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cks

Thanderi Radhakrishnan Nair v. Savithri and Others

Case brief

What is this about?

What did the court decide?

Thanderi Radhakrishnan Nair v. Savithri and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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