Dismissed

Thomas @ Thankachan v. Paulose

Kerala HC11 Jul 2018RSA/717/2005

Case brief

AI extract

What is this about?

A second appeal against a decree granting return of advance amount in lieu of specific performance. The court held that the consideration of Rs. 8,000 for 9 cents of land with a building is unconscionable and nominal, making the contract inequitable for enforcement under Section 20 of the Specific Relief Act, thus dismissing the appeal.

What did the court decide?

Second appeal dismissed; specific performance relief denied based on unconscionable consideration.

Thomas @ Thankachan Vs Paulose — Specific Performance | Kerala HC (2018)

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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 P.SOMARAJAN

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WEDNESDAY, THE 11TH DAY OF JULY 2018 / 20TH ASHADHA, 1940

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RSA.No. 717 of 2005 (B)

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AGAINST THE JUDGMENT IN AS 32/2004 of ADDL.DISTRICT COURT, KOTTAYAM

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DATED 19-11-2004

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AGAINST THE JUDGMENT IN OS 223/2001 of MUNSIFF COURT, ETTUMANOOR, DATED 10-12-2003

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APPELLANT/RESPONDENT/PLAINTIFF : -

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THOMAS @ THANKACHAN, S/O.DEVASSIA, KUDILILPARAMPIL KEEZHTHADIYOOR KARA, LALAM VILLAGE, MEENACHIL TALUK.

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BY ADVS.SRI.P.K.SURESH KUMAR SRI.K.P.SUDHEER

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RESPONDENT/APPELLANT/DEFENDANT : -

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PAULOSE, S/O.JOHN, POONTHOTTATHIL, KIZHAKKUMBHAGOM KARA, ETTUMANOOR VILLAGE, ETTUMANOOR P.O.

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BY ADV. SRI.P.K.MANOJKUMAR

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DMR/-

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P. SOMARAJAN, J.

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R.S.A. No. 717 of 2005

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Dated this the 11^th day of July, 2018

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JUDGMENT

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Appeal against the decree and judgment in A.S.No.32/2004

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of the Additional District Court, Kottayam. A suit for specific performance of contract for sale was filed by the plaintiff based on Exhibit A1 contract for sale, agreeing to sell 9 cents of property situated in Ettumanoor in Kottayam District for a consideration of Rs.8,000/-, i.e. below Rs.1,000/- per cent. The case is that an advance amount of Rs.5,000/- was given out of the sale consideration at the time of execution of contract for sale and balance amount comes to Rs.3,000/-. Since there is a default on the part of the defendant in executing the deed of sale in performance of the contract for sale, the suit was filed. The defendant contested the suit, disputing and denying the execution of the contract, but admitted that he had affixed signature on some stamped blank paper at the time of borrowal of an amount of Rs.5,000/- from the plaintiff as insisted by him and that it is only a loan transaction and he never intended to sell his immovable property and the house therein for an amount

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R.S.A. No. 717 of 2005

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of Rs.8,000/-. The Lower Court, on consideration of the oral evidence tendered by PWs 1 to 3 and the documentary evidence, found that the contract for sale is a genuine one, duly executed by the defendant and thereby decreed the suit granting specific performance. It was challenged in appeal before the District Court, wherein the decree granting specific performance was reversed, but granted the alternative relief sought for in the plaint for return of the advance amount which comes to Rs.5,000/- with interest, by its decree and judgment, against which this second appeal is preferred.

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The questions came up before this Court are (1) whether the finding rendered by the Trial Court and the First Appellate Court regarding the due execution of the contract for sale, being a factual finding, deserves any interference by this Court, (2) whether the jurisdiction vested under Section 20 of the Specific Relief Act (for short 'the Act') had been exercised in its correct perspective, (3) whether the contract is inequitable in nature by the attending circumstances under which the agreement was executed, and (4) whether the First Appellate

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R.S.A. No. 717 of 2005

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Court was justified in reversing the decree of specific performance by granting decree for return of advance amount. It was also brought to the notice of this Court that the said contract for sale was executed for the sale of 9 cents of property and the building therein for a meager amount of Rs.8,000/-. Admittedly, the property is having an extent of 9 cents. It is a garden land and a building thereon situated at Ettumanoor Village in Kottayam District. As per the agreement, the value of property comes to less than Rs.1,000/- per cent, that too in the year 2001.

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The consideration agreed, less than Rs.1,000/- per cent in the year 2001 for a property situated in Ettumanoor Village in Kottayam District and the residential building thereon, is seemed to be beyond the scope of all imaginations and would take away the very basis of the alleged contract for sale and its genuineness. A blind approach to the oral evidence tendered by the witness regarding the execution of contract for sale is not at all permissible. The Court can look into the genuineness of the document in relation to the attending circumstances under which

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R.S.A. No. 717 of 2005

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the agreement alleged to have been executed. The consideration agreed in the instant case is too low and only a nominal one. The market value of property prevailed in Ettumanoor Village in Kottayam District, per cent in the year 2001, is so crucial. It is beyond the scope of all imaginations that the parties have agreed to sell their landed property having an extent of 9 cents with building thereon for a paltry amount of Rs.8,000/-, i.e. less than Rs.1,000/- per cent. The above said shocking factor, an abnormality, which is writ large on its face escaped from the notice of both the Appellate Court and the Trial Court, especially when there is an allegation that it is only a loan transaction. Fraudulent creation of a document styled as an agreement for sale is well evident from the very factum of the above said abnormality, a shocking factor. The consideration offered is so unconscionable beyond the scope of all imaginations.

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A Division Bench of this Court in K.O.Antony & other v.

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M.K. Krishnankutty Menoki [2017 (1) KHC 479] had the

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occasion to consider the impact of Section 20 of the Specific Relief Act, 1963, and exercise of jurisdiction not to decree specific

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R.S.A. No. 717 of 2005

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performance. Since the consideration agreed is found to be highly unconscionable and only a nominal, it is neither permissible nor acceptable to exercise the jurisdiction to grant specific performance. Further, the contract would fall under Clause (c) of Section 20(2) of Specific Relief Act as the consideration being only a nominal and unconscionable one makes the contract inequitable for enforcement. Hence, appeal fails, deserves only dismissal and I do so.

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In the result, second appeal is dismissed.

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Sd/-

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P. SOMARAJAN, JUDGE

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DMR/-

Thomas @ Thankachan v. Paulose

Case brief

What is this about?

What did the court decide?

Thomas @ Thankachan v. Paulose

Case brief

What is this about?

What did the court decide?

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