The High Court of Kerala dismissed the appeal challenging the dismissal of a specific performance suit. The court held the suit was barred by Order II Rule 2 of CPC due to a prior withdrawn injunction suit on the same cause of action. Additionally, the appellant failed to prove the execution of the agreement for sale.
The appeal fails and is dismissed. No costs awarded.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
MONDAY, THE 05TH DAY OF OCTOBER 2020 / 13TH ASWINA, 1942
RFA.No.593 OF 2016
AGAINST THE JUDGMENT AND DECREE IN OS 43/2010 DATED 30-032016 OF SUB COURT, THODUPUZHA
APPELLANT/PLAINTIFF:
SURESH M., AGED 38 YEARS, S/O. T.MUKUNDAN, RESIDING AT KARTHIKA HOUSE, 32/732 B, PALLICHAMBAYIL ROAD, PIPE LINE JUNCTION, PALARIVATTOM, ERNAKULAM-25.
BY ADVS. SRI.A.T.ANILKUMAR SMT.V.SHYLAJA
RESPONDENTS/DEFENDANT & ADDL.DEFENDANTS 2 AND 3:
1 JIJO JACOB AGED 39 YEARS, S/O. LATE CHACKO, VELUTHEDATHUPARAMBIL HOUSE, EZHALOOR, KUMARAMANGALAM VILLAGE, THODUPUZHA TALUK AND NOW RESIDING AT 28/1927, K.P.VALOON ROAD, NEAR ST.SEBASTIAN CHURCH, KADAVANTHARA, ERNAKULAM-20.
2 THOMAS V.JOHN AGED 29 YEARS, S/O. IYPE JOHN, VELUTHEDATHUPARAMBIL HOUSE, EZHALLOOR,KUMARAMANGALAM VILLAGE, THODUPUZHA TALUK, PIN-685584.
3 SIJO V.JEROM AGED 36 YEARS, S/O. V.M.JEROM, VELUTHEDATHUPARAMBIL HOUSE, EZHALLOOR,KUMARAMANGALAM VILLAGE, THODUPUZHA TALUK.
R2 & R3 BY ADVS. SRI.K.S.HARIHARAPUTHRAN SRI.DIPU JAMES SRI.GEORGE MATHEW SRI.M.D.SASI KUMAR SRI.SUNIL KUMAR A.G
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 2909-2020, THE COURT ON 05-10-2020 DELIVERED THE FOLLOWING:
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Dated this the 5th day of October, 2020
J U D G M E N T
The plaintiff in O.S.No.43/2010 before the Sub
Judge, Thodupuzha, is the appellant. The suit for specific performance of agreement for sale and refund of advance money in the alternative was dismissed on 30.3.2016. This judgment and decree are challenged in this appeal.
were originally owned by the first defendant in the suit/first respondent herein. He sold the suit property to additional defendants 2 and 3 by executing Exts.B1 and B2 sale deeds registered on
the same date, i.e., 21.4.2010. The appellant's case is that the first respondent before executing
Exts.B1 and B2 sale deeds in the names of the subsequent purchasers had agreed to sell him the
suit property for a value of Rs.30,10,000/- and
executed Ext.A1 agreement for sale on 19.12.2008
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after receiving an advance amount of Rs.30,00,000/-. The period of agreement was initially fixed for one month. According to the appellant, since the plaint property was outstanding on mortgage with a service bank and further the first respondent had personal liabilities, huge advance amount was demanded and paid. But since the first respondent was not able to discharge the liabilities and execute the sale deed within time stipulated, the agreement was extended for another period of three months which expired on 5.4.2009.
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property. On 4.4.2009, he sent a suit notice demanding execution of sale deed, to which the first respondent did not respond at all. O.S.No.330/2009 was, however, withdrawn on 12.6.2009 and present suit was filed seeking
specific performance with alternative prayer for return of advance amount.
respondent sold the suit property to respondents 2 and 3 who purchased the property with notice of agreement for sale. According to the appellant, the subsequent purchasers are bound by the agreement for sale and all the respondents are liable to transfer the property in favour of the appellant
after receiving the balance sale consideration.
statement denying execution of Ext.A1 agreement for sale and contended that it was a fake and forged document cooked up by the appellant colluding with
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one Sudhir Kumar who is the first attesting witness in the agreement. The first respondent denied having received any amount nor having agreed to sell the property for any consideration. He contended that he approached Sri.Sudhir Kumar, a friend of him for loan and the latter agreed to arrange an amount of Rs.20 lakhs from a close friend of his and took a few signed blank papers from the first respondent which was later misused and forged as the agreement for sale. It was also contended that the present suit was hit by Order II Rule 2 of the CPC since the appellant failed to obtain leave for instituting the present suit while O.S.No.330/2009 was withdrawn from Munsiff's Court, Ernakulam.
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them. It was contended that after purchase of the property, they put up a building after availing huge loan received from financial institution and became absolute owners of the property. It is also contended that due care was taken at the time of purchase and the encumbrance certificate taken did not disclose existence of any charge or agreement for sale in respect of the property and thus
opposed the suit.
though he was willing to purchase the property, was, in fact not ready with sufficient funds. On
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these findings, the entire suit was dismissed.
examined as PW1. PW2 is a witness cited to prove execution of the agreement for sale and extension of time made in his handwriting, on the reverse side of Ext.A1. Exts.A1 to A6 were documents were tendered as evidence on his side. The first defendant was examined as DW1 and second additional defendant was examined as DW2. Exts.B1 to B11 were received as evidence on their side.
consideration in this appeal relate to the statutory bar under Order II Rule 2 of the CPC as well as execution of Ext.A1 agreement for sale. There are other subsidiary questions such as the alleged readiness and willingness of the appellant, the plea of bona fide purchase raised by additional respondents 2 and 3 and the alternative claim for charge over the property etc. under Section 55(6)
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(b) of the Transfer of Property Act, 1882, which need to be taken up for discussion only in the event the first two questions are answered in favour of the appellant.
Vigro Industries (Eng.) P.Ltd. (M/s.) v.
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M/s.Venturetech Solutions P.Ltd. (2012 KHC 4492)
was relied on.
submitted that suit for injunction and suit for specific performance stand entirely on two different footings and causes of action in both suits, having regard to the nature of issues arising for decision, are invariably different and therefore itself, a subsequent suit for specific performance without leave of the court is not barred under Order II Rule 2 of the CPC. He relied on in this respect two decisions of the Honourable Supreme Court in Rathnavathi & anr. v. Kavita Ganashamdas (2015(5) SCC 223) and in Sucha Singha Sodhi(D)Thr.Lrs. v. Baldev Raj Walia . He further contended that on 9.3.2009 when O.S.No.330/2009 was instituted, cause of action for specific performance was premature since the extended period of agreement was yet to expire and the vendor was
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entitled to have postponed his liability till the expiry of 5.4.2009.
on 19.12.2008 for one month, was further extended on 5.1.2009 for another three months and quite naturally, the outer limit of the period for execution of sale deed would have expired only by 5.4.2009. The learned counsel for respondents two
and three contended that having due regard to the facts pleaded in the plaint in O.S.NO.330/2009, it was palpable that cause of action for a suit for specific performance simultaneously arose within the extended period of time itself.
stipulating time for execution of sale deed are relevant in this context. What is recited in the
agreement is that the vendor shall be liable to
perform his part of the contract within the period of one month originally fixed and within the
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extended period of three months. It is significant
to note that though an outer time limit for performance was envisaged, the liability of the vendor was never postponed till the expiry of the last day of the agreement. It is clear that whenever he was called upon by the buyer to perform his part of the contract within the extended period of time, he was liable for executing the sale deed, provided, the buyer was ready and willing to perform his part of the contract. The sum total of contention in O.S.No.330/2009 raised by the appellant is to the effect that on 7.3.2009, he got reliable information that first respondent was taking hasty steps to alienate the property which, if not prevented, would frustrate the execution of the contract. He made it clear that he was ready and willing to perform his part of the contract and demanding execution of the deed all the time but the first respondent evaded with ulterior motive.
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When this is the factual position, it goes without
saying that having regard to the manner in which the time for performance of the contract was fixed, on the date of O.S.No.390/2009 itself the cause of action for specific performance also simultaneously arose.
contended that even accepting the interpretation as above, it was quite optional for the buyer to decide his course rather than to sue and therefore the bar under Order II Rule 2 of the CPC ought not to have been invoked against him. I have difficulty to accept this argument since the very underlying object behind Order II Rule 2 is to prevent a suitor from vexing a defendant with multiple litigations when it was open to the former to sue on a cause of action which actually arose on the date of the suit. The only legal excuse for postponing institution of the suit on identical
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cause of action is to seek leave of the court either implied or express. The appellant has no case that such a leave was either sought or granted in O.S.No.390/2009. The suit was dismissed as unconditionally withdrawn.
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which is the subject matter of the contract, it may
amount to breach of contract depending on the facts averred in the suit.
cause of action for a suit for perpetual injunction and specific performance is distinct and different, it could hardly be an inflexible rule applicable in all cases alike irrespective of facts and circumstances of each case. In Vigro Industries ' case relied on by the learned counsel for respondents 2 and 3, the Honourable Apex Court dealt with the question as to whether in a suit for injunction against alienation, cause of action for specific performance would also simultaneously arise. It was held on the facts of those cases,
that it was open to the plaintiff to have incorporated the relief for specific performance
along with the relief for permanent injunction in the same suit in as much as the foundation for
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relief of permanent injunction furnished a complete cause of action for the suit for specific performance also. In a later decision of the
Honourable Supreme Court in Inbasegaran & anr. v.
S.Natarajan (Dead) thr.Lrs (2014 KHC 4696) while dealing with the applicability of the bar under Order II Rule 2 of the CPC in the context of two separate suits for injunction as against forcible dispossession and specific performance being considered by the court, it was clarified that the view expressed in Vigro Industries ' case was still right and liable to be followed when the suit for injunction against alienation of the property agreed for sale is filed at one point of time and suit for specific performance is filed at a later date. Thus I am of the view that on 9.3.2009 when O.S.No.330/2009 was instituted, the cause of action
for the present suit for specific p erformance also emerged and without having obtained either express
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or implied leave from the court, the appellant was estopped from filing the present suit by virtue of the bar under Order II Rule 2. Therefore agreeing with the view taken by the court below, I hold that the suit is barred by Order II Rule 2 of the CPC.
the execution is proved, it follows that respondents 2 and 3 are bound by Ext.A1 agreement
for, they took the suit property during the pendency of the suit as assignees whether or not they were aware of the existence of the agreement. The principle that flows out of Section 19(2) of the Specific Relief Act, 1963, is that an agreement for sale cannot be enforced against a subsequent purchaser for value without notice of agreement. But this provision is subject to Section 52 of the
Transfer of Property Act, 1882, which provides that
a pendente lite transferee shall take the property
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subject only to the result of the suit. Since acquisition of suit property under Exts.B1 and B2 was during the pendency of this suit, respondents
2 and 3 cannot lawfully resist enforcement of Ext.A1 and that is how execution of Ext.A1 becomes relevant.
property for the unpaid purchase money of the buyer also is another question which may arise for consideration only upon proof of execution of the agreement even assuming that claim for specific performance was not liable to be honoured for any good reasons.
Ext.A1 though he admitted his signature. His contention is that the agreement was manipulated in one of signed blank documents which he had handed
over to Sri. Sudhir Kumar/the first attesting witness in Ext.A1 for the purpose of arranging loan
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from one of the close friends of the latter.
document will not by itself amount to admission of execution and the person suing on the disputed document has necessarily to prove the execution by convincing evidence. The only difference of such a document with the one in which signature is denied is that the burden of proof on the plaintiff is slightly lighter than the case in which signature is denied. The person contending that what was signed was in fact a blank document, has a duty to
explain the circumstances under which it came to be
executed as held in Premsankar K.G. v. Sunil Krishnan (2011(4) KHC 895) . That will not however relieve the plaintiff of his burden to prove the execution of document with satisfactory and convincing evidence as held in Choovatta
Vadakkekara Kunhi Veettil Janardhanan v.
Mottukkande (2011(3) KHC 710) .
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respondent signed Ext.A1 agreeing to sell the property within the period stipulated therein and received an advance amount of Rs.30 Lakhs. The
first respondent as DW1 denied the receipt of the amount as well as having agreed to sell the property contending that a blank paper was entrusted with his friend Sri.Sudhir Kumar for
securing a loan of Rs.20 lakhs from one of the closest friends of the latter. But it was misused by Sri.Sudhir Kumar joining with the appellant. Thus there are rival versions on oath against oath as to how Ext.A1 agreement came into existence.
submitted that in the absence of respondents 2 and 3 making specific denial of execution of Ext.A1,
the evidence of PW1 by itself is more than enough
to prove the execution of the disputed agreement for sale. I can hardly accept this argument since
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as the assignees of the original vendor, respondents 2 and 3 have every right to pursue all
the contentions raised in the written statement of their assigner, the first respondent. The appellant has therefore to necessarily establish that the transaction as contained in Ext.A1 existed, corroborated by reliable independent evidence also.
witness to the transaction as disclosed in Ext.A1.
He was also cited to prove that the endorsement
dated 5.1.2009 extending the original time fixed was made on the reverse side of the agreement in his own handwriting. The court below fully disbelieved this witness doubting his presence at the place. I also notice that there are material contradictions between the testimonies of Pws.1 and 2 in material aspects as pointed out in the impugned judgment.
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of his and he knew him since 2006. But appellant denied this stating that the witness was seen for the first time on Ext.A1 date and thereafter on 5.1.2009. There is a doubtful circumstance which is yet to be explained by the appellant as to why PW2 should have made an endorsement allegedly in his handwriting if parties to the agreement were available at the time of the transaction and willing for extension of the agreement. The presence of PW2 on the days claimed by him are open to serious doubt. The view taken by the court below that the presence of PW2 at the time of the transaction did not find a place in the plaint, cannot be dismissed as quite unreasonable. It escapes one's comprehension as to why PW2 was not named in Ext.A1 as a witness to the transaction if he was present on both occasions. On the other hand, curiously enough the two attesting witnesses in Ext.A1 were not examined, for no reasons
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assigned, before the court to prove the document even when execution was seriously challenged.
be kept aside as quite irrelevant in considering the dispute as to the execution of Ext.A1 document. The appellant stated that he had Rs.5 lakhs alone with him. He had no independent source of income or land and he admitted him to be not a tax payer also. According to him, he raised the amount from a few creditors to whom he had given documents evidencing receipt of loan. We do not know who those persons were. Anyway, appellant's father is stated to have discharged these liabilities. But the court below in this respect noticed a material contradiction in the evidence of appellant that his father paid out the whole Rs.30 lakhs to the creditors which cannot go hand in hand with his own previous statement that he had paid Rs.5 lakhs from
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his pocket. The court below, in my opinion, rightly doubted the availability of source of money with the appellant.
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proof of the execution of Ext.A1, I do not consider it necessary to discuss the other subsidiary questions. If at all it is assumed that Ext.A1 is proved also, there is nothing unreasonable in the view of lower court holding that the appellant though was willing to take the sale deed, was hardly in possession of cash and consequently was not ready for performing his part of the contract. On the whole, I am satisfied that none of the findings entered into by the court below is worthy of being interfered with in this appeal either on factual or legal grounds.
In the result, appeal fails and it is dismissed. No costs.
All pending interlocutory applications are
closed.
Sd/-
T.V.ANILKUMAR JUDGE
ami/
3 issues framed by the court
Whether a suit for specific performance filed after a previously withdrawn suit for permanent injunction regarding the same property is barred by Order II Rule 2 of the CPC.
Whether the execution of the agreement for sale was satisfactorily proved by the appellant given contradictions in witness evidence and lack of attesting witnesses.
Whether the appellant was ready and willing to perform his part of the contract considering the source of funds.
Colour shows how this judgement treated each authority
Vigro Industries (Eng.) P.Ltd. v. M/s. Venturetech Solutions P.Ltd.Distinguished¶66
Vigro Industries (Eng.) P.Ltd. (M/s.) v. M/s.Venturetech Solutions P.Ltd. (2012 KHC 4492)
Rathnavathi & anr. v. Kavita GanashamdasDistinguished¶70
Rathnavathi & anr. v. Kavita Ganashamdas (2015(5) SCC 223) · Who else cites this
Sucha Singha Sodhi (D) Thr. Lrs. v. Baldev Raj WaliaDistinguished¶70
Sucha Singha Sodhi(D)Thr.Lrs. v. Baldev Raj Walia
Premsankar K.G. v. Sunil KrishnanReferred¶130
Premsankar K.G. v. Sunil Krishnan (2011(4) KHC 895)
Choovatta Vadakkekara Kunhi Veettil Janardhanan. v. MottukkandeReferred¶132
Choovatta Vadakkekara Kunhi Veettil Janardhanan v. Mottukkande (2011(3) KHC 710)
Inbasegaran & anr. v. S. NatarajanFollowed¶105
Inbasegaran & anr. v. S.Natarajan (Dead) thr.Lrs (2014 KHC 4696)
3 provisions across 3 enactments
Suresh M.
Jijo Jacob
Thomas V. John
Sijo V. Jerom
T.V. Anilkumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
