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Kerala High Court
C. K. Ravi Kumar vs John Franklin on 23 July, 2025
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CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
WEDNESDAY, THE 23RD DAY OF JULY 2025 / 1ST SRAVANA, 1947
FAO NO. 89 OF 2024
AGAINST THE ORDER DATED 04.07.2024 IN I A NO.1 OF 2023 IN OS NO.138
OF 2023 OF I ADDITIONAL SUB COURT, THIRUVANANTHAPURAM
APPELLANTS/COUNTER PETITIONES 1 & 2/DEFENDANTS 1 & 2:
1 C. K. RAVI KUMAR,
AGED 71 YEARS
S/O KUTTAN, ANAND VILLA, TC 19/1417(3), MUDAVANMUGAL,
POOJAPPURA P.O, ARAMADAMURI, THIRUMALA VILLAGE,
THIRUVANANTHAPURAM, NOW RESIDING AT DHARSHANA,
VELLAMKULATHALA, THELIBHAGAM, ARAMADA P O., PUNNAKKAMUGAL,
THIRUVANANTHAPURAM., PIN - 695032
2 S. ROSE MARY,
AGED 61 YEARS
W/O K RAVI KUMAR, ANANDVIHAR, TC 19/1417(3), MUDAVANMUGAL,
POOJAPPURA P.O, ARAMADAMURI, THIRUMALA VILLAGE,
THIRUVANANTHAPURAM, NOW RESIDING AT DHARSHANA,
VELLAMKULATHALA, THELIBHAGAM, ARAMADA P O., PUNNAKKAMUGAL,
THIRUVANANTHAPURAM., PIN - 695032
BY ADVS.
SHRI.GEORGE SEBASTIAN
SRI.K.RAJENDRAN CHETTIAR
RESPONDENTS/PETITIONER&COUNTER PETITIONER No.3/PLAINTIFF&DEFENDANT NO.3:
1 JOHN FRANKLIN,
S/O ISRAEL SATHYANESAN, MALAKKAL HOUSE, KUNDAMANBHAGAM,
PEYAD, VILAPPILVILLAGE, KATTAKKADATALUK,
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THIRUVANANTHAPURAM., PIN - 695573
2 ANIL KUMAR,
S/O BALAKRISHRLAN,KRISHNA VILASAM,
PULIYAAKONAM,PULIYARAKONAM P.O, VILAPPIL VILLAGE,
KATTAKKADATALUK, THIRUVANANTHAPURAM ., PIN - 695573
R2BY ADVS.
SHRI.ARUN V.G.
SMT.V.JAYA RAGI
SHRI.R.HARIKRISHNAN (KAMBISSERIL)
SRI.NEERAJ NARAYAN
SMT.A.S.SALMA
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON
17.07.2024, THE COURT ON 22.07.2025 DELIVERED THE FOLLOWING:
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C.R
JUDGMENT
1. The appellants are the defendants 1 and 2 in the suit. The 1st
respondent/plaintiff filed the suit for recovery of an amount of
Rs.35,62,500/- with future interest @ 6% per annum from the
date of suit till realisation from the defendants and their assets
charged on the plaint schedule property. The plaint schedule
property is having an extent of 29.78 Ares and the residential
buildings and shop rooms therein belonged to the defendant
No.1. The defendants Nos.1 and 2 entered into an Agreement
for sale dated 18.09.2014 with the defendant No.3 agreeing to
sell the plaint schedule property @ Rs.2,15,000/- per cent within
a period of three months after receiving an advance
consideration of Rs.35,00,000/- from the defendant No.3. The
said Agreement for sale contained an endorsement dated Nil
signed by the parties to the said agreement that a new
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Agreement is executed since the sale could not be completed
within three months from 18.06.2014. The defendant No.3
executed an Agreement for sale dated 28.04.2016 with the
plaintiff, agreeing to sell the plaint schedule property @
Rs.2,95,000/- per cent within a period of six months after
receiving an advance consideration of Rs.25,00,000/- from the
plaintiff. The said Agreement contains four endorsements
signed by the defendant No.3 extending the period of the
Agreement till 30.10.2017.
2. The contention of the plaintiff is that the defendants 1 & 2 have
personally acknowledged and ratified the fact that they had duly
authorised the defendant No.3 to enter into sub-agreements for
sale with respect to the plaint schedule property; that since the
plaint schedule property was entangled in litigation and the
plaintiff believed that the plaint schedule property would be sold
to him when litigation is over; that the plaintiff was always ready
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and willing to perform his part of the contract; that the plaintiff
came to know that the defendants are trying to sell the plaint
schedule property to strangers; that even though there is no
privity of contract between the plaintiff and the defendants 1 &
2, by the implication of the terms of the parent agreement for
sale and the sub-agreement for sale, there is an implied and
constructive contract between the plaintiff and the defendants 1
& 2; that since the plaintiff has not improperly declined to accept
delivery of property by tendering the balance consideration, the
plaintiff is having charge over the plaint schedule property; and
that since the relief for specific performance is barred by the law
of limitation, the plaintiff can only seek recovery of the advance
amount along with interest and future interest.
3. Along with the suit, the plaintiff filed I.A. No.1/2023 seeking
attachment before judgment of the plaint schedule property and
the conditional attachment was granted. The defendant Nos.1
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& 2 filed their objection to I.A. No.1/2023. The defendant No.3
did not file any objection to I.A. No.1/2023. The plaintiff filed an
additional affidavit. The defendant Nos.1 & 2 filed I.A. No.4/2024
to lift the attachment before judgment. The 3rd defendant filed
an objection contending that the plaintiff is entitled to
attachment.
4. The Trial Court passed a common order allowing I.A.
No.1/2023, ordering attachment of the plaint schedule property
and dismissed I.A. No.4/2024.
5. The Trial Court did not mark any document while considering
I.A.No. 1/2023. The impugned order refers to various
documents produced before the Trial Court. After consideration
of those documents, the Trial Court rendered the impugned
order. The Appendix of the impugned order shows ‘Nil’. Though
the Trial Court records were called for, the records do not
contain the various documents relied on by the Trial Court in the
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impugned order. The procedure adopted by the Trial Court is
quite unsatisfactory. Rule 42 of the Civil Rules of Practice
mandates that in an interlocutory proceedings, the evidence
shall be recorded and exhibits shall be marked in the same
manner as in a suit and the lists of the witnesses and the
exhibits shall be prepared and annexed to the order. Rule 42 is
to be mandatorily followed by the Courts in the matter of
recording evidence and marking documents while disposing of
the Interlocutory Applications. In the absence of marking the
documents and showing the same in the Appendix of the Order,
the Appellate Court will not be able to understand the materials
that were available before the Court while considering the
Interlocutory Applications. There would not be any clarity as to
the materials relied on by the Trial Court.
6. Counsel on both sides submitted that six documents were
produced by the plaintiff and two documents were produced by
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the Defendant No.3 before the Trial Court for consideration of
I.A. No.1/2023. The 2nd respondent produced those documents
in this appeal. Since the parties are not having any dispute with
respect to the documents produced before the Trial Court for
consideration of I.A. No.1/2023, I heard the arguments of the
counsel with reference to those documents. The copies of the
said documents are marked as follows for reference.
Marking Date Description
Ext.A1 18.09.2014 Agreement for Sale between the defendants Nos.1 & 2 and the
defendant 3
Ext.A2 28.04.2016 Agreement for Sale between the plaintiff and the defendant No.3
Ext.A3 16.07.1994 Sale Deed No.2465/1994 in favour of the defendant No.1
Ext.A4 26.06.2012 Sale Deed No.316/2012 in favour of the defendant No.1
Ext.A5 29.03.2023 Lawyer Notice sent by the plaintiff to the defendants
Ext.A6 03.04.2023 Reply Lawyer Notice to Ext.A5 sent by defendant Nos.1 & 2
Ext.B1 20.07.2022 Agreement for Sale between the defendants Nos.1 & 2 and the
defendant No.3
Ext.B2 19.06.2023 Agreement for Sale between the defendants Nos. 1 & 2 and the
defendant No.3
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7. Though notice was served on the respondent No.1/plaintiff, he
did not opt to appear and contest this appeal. The respondent
No.2/defendant No.3 appeared and hotly contested the appeal.
8. I heard the learned Counsel for the appellants, Sri. George
Sebastian and the learned Counsel for the 2nd respondent, Sri.
V.G. Arun.
9. The learned Counsel for the appellants contended that the Trial
Court acted illegally in granting attachment before judgment in
favour of the plaintiff. There is no privity of contract between the
plaintiff and the defendants 1 & 2. The suit is barred by
limitation. The plaintiff is not entitled to get charge over the plaint
schedule property, as the plaintiff is not the buyer to claim
charge as provided under Section 55(6)(b) of the Transfer of
Property Act, 1882. The buyer can only be the defendant No.3.
The defendant No.3 was not authorised to enter into any
agreement for sale with any third party and to receive advance
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consideration as per Ext.A1. The defendants 1 & 2 have not
received any part of the consideration from the plaintiff either
directly or through the defendant No.3. The only right of the
plaintiff is to institute a suit against the defendant No.3 and the
same is time-barred. Ext.A2 Agreement does not assign the
right derived by the defendant No.3 in favour of the plaintiff.
Learned Counsel concluded his arguments by submitting that
the plaintiff did not make out a prima facie case to obtain
attachment before judgment, and hence the impugned order is
liable to be set aside.
10. Per contra, the learned counsel for the respondent No.2
contended that the appeal against the impugned order is not
maintainable as the Trial Court granted attachment exercising
its discretion with reference to the materials placed before it.
Such an order could not be interfered with on appeal. Learned
counsel cited the decision of the Hon’ble Supreme Court in
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Seema Arshad Zaheer and Others v. Municipal Corpn. of Greater Mumbai
and Others [(2006) 5 SCC 282] in which the Hon’ble Supreme Court
followed its earlier decision in Wander Ltd. v. Antox India (P) Ltd.
(1990 Supp SCC 727) in which it is held that the appellate court will
not interfere with the exercise of discretion of the court of first
instance and substitute its own discretion except where the
discretion has been shown to have been exercised arbitrarily, or
capriciously or perversely or where the court had ignored the
settled principles of law regulating grant or refusal of
interlocutory injunctions; that an appeal against exercise of
discretion is said to be an appeal on principle; that Appellate
court will not reassess the material and seek to reach a
conclusion different from the one reached by the court below if
the one reached by that court was reasonably possible on the
material and that if the discretion has been exercised by the Trial
Court reasonably and in a judicial manner, the fact that the
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appellate court would have taken a different view may not justify
interference with the Trial Court’s exercise of discretion.
Learned counsel further contended that the plaintiff is a
representative in interest of the defendant No.3 within the
meaning of Section 15(b) of the Specific Relief Act, 1963, on the
basis of Ext.A2 executed by the defendant No.3 and he is
entitled to obtain specific performance from the defendant Nos.1
& 2. In such a case, the plaintiff will also come within the
meaning of the buyer occurring in Section 55(6)(b) of the
Transfer of Property Act, 1882. It is clear from the evidence that
the sale could not take place on account of the continued
litigation with respect to the plaint schedule property. The
plaintiff has not improperly declined to accept delivery of the
property after payment of the balance consideration. Learned
Counsel cited the decision of the Hon’ble Supreme Court in T.M.
Balakrishna Mudaliar v. M. Satyanarayana Rao and Others [(1993) 2 SCC
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740], in which it is held that the assignee falls within the meaning
of representative in interest as contemplated under Clause (b)
of Section 15 of the Specific Relief Act, 1963. Learned Counsel
cited the decision of the Hon’ble Supreme Court in Shyam Singh
v. Daryao Singh (Dead) by LRs. and Others [(2003) 12 SCC 160] to
substantiate the point that under Section 15(b) of the 0Specific
Relief Act, 1963, specific performance of the contract may be
obtained by ‘any party thereto’ or ‘their representative in interest’
and that these expressions clearly include the transferees and
assignees from the contracting party in whose favour the right
exists. Learned Counsel cited the decision of the Hon’ble
Supreme Court in Indira Devi v. Veena Gupta [(2023) 8 SCC 124], in
which the Hon’ble Supreme Court followed the principle laid
down in Shyam Singh (supra) that in the absence of any words or
expressions in the documents indicating prohibition on
assignment or transfer of right of repurchase and in the face of
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clear provisions of Section15(b) of the Specific Relief Act, 1963,
an implied prohibition cannot be read into the terms of the
documents. In this decision, the Hon’ble Supreme Court
approved the views of the Privy Council in Sakalaguna Nayudu and
Another v. Chinna Munuswami Nayakar [AIR 1928 PC 174], the Bombay
High Court in Vishweshwar Narsabhatta Gaddada v. Durgappa Irappa
Bhatkar and Another [AIR 1940 Bom 339] and the Madras High Court
in Sinnakaruppa Gounder v. M. Karuppuswami Gounder and Another
[AIR 1965 Mad 506] that the benefit of a contract of repurchase
would prima facie be assignable. The counsel cited the decision
of the Hon’ble Supreme Court in Kapilaben v. Ashok Kumar
Jayantilal Sheth [(2020) 20 SCC 648] pointing out the principle laid
down therein that the term ‘representative-in-interest’ under
Section 15(b) of the Specific Relief Act, 1963, includes the
assignee of a contractual interest; that Section 15(b) of the
Specific Relief Act does not specifically state that ‘obligations’
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may not be assigned except with the consent of the other party;
that the rule stated in Section 15(b) is that any interest in a
contract can be specifically enforced by the assignee thereof,
except where the ‘personal quality’ of the party is a material
ingredient in the contract; or where the contract, expressly or by
necessary implication, prohibits the beneficiary from
transferring their contractual interest to third parties; that
Section 15(b) does not contradict the general law on
assignability of contracts as laid down, but rather clarifies that
the same conditions will have to be satisfied if an assignee
seeks to secure specific performance of the assigned contract.
11. The Counsel cited the decision of this Court in Ahammedkutty
Bran v. Sukumaran [2024 (3) KHC 494], in which it is held that when
both the seller and buyer are at fault or were not eager in the
performance of the agreement, buyer is entitled for charge over
the property for the sale consideration paid. The learned
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Counsel concluded his arguments by praying not to interfere
with the well-considered order of the Trial Court which is
impugned in this appeal.
12. I have considered the rival contentions.
13. First of all, it is quite surprising to note that the Respondent
No.1/Plaintiff did not come forward to contest this appeal. The
Respondent No.2/Defendant No.3 is contesting this appeal to
see that the order of attachment before judgment obtained by
the plaintiff is confirmed. In the plaint, allegations are raised
against the defendant No.3 and reliefs are claimed against him
also. It is seen from the impugned order that the defendant No.3
alone filed objection to I.A. No.4/2024 filed by the defendants 1
& 2, praying to lift the attachment. The impugned order is not in
favour of the defendant No.3. Extensive contentions are made
by the counsel for the respondent No.2/defendant No.3 for the
respondent No.1/plaintiff. It would indicate the lack of bona fides
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on the part of the plaintiff. The failure on the part of the plaintiff
to contest the appeal reveals that the plaintiff is not serious to
see that the impugned order in his favour is sustained. The
interest of the defendant No.3 is well protected by Exts.B1 and
B2, the subsequent Agreements, executed with defendant
Nos.1 & 2. In the absence of any contest from the part of the
plaintiff who obtained the order of attachment, the defendant
No.3 has no right to contest this appeal since the impugned
order is not in any way beneficial to him.
14. In view of the contentions advanced before me, the only point
to be decided in this appeal is whether the plaintiff is entitled to
get a charge under Section 55(6)(b) of the Transfer of Property
Act over the plaint schedule property for the plaint claim. It is
admitted by the plaintiff himself in the plaint that the relief for
specific performance is barred by the law of limitation. In such a
case, the plaintiff’s claim for recovery of the advance
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consideration is also barred by limitation if there is no charge
under Section 55(6)(b) of the Transfer of Property Act in favour
of him.
15. The learned counsel for the respondent No.2 relies on Section
15(b) of the Specific Relief Act to contend that the plaintiff is a
buyer within the meaning of Section 55(6)(b) of the Transfer of
Property Act. Learned Counsel for the respondent No.2 claims
that Ext.A2 is an assignment of the rights derived by the
defendant No.3 in favour of the plaintiff and thus the plaintiff has
become the representative in interest of the defendant No.3. I
am unable to accept such a contention. Ext.A2 does not amount
to an Assignment Deed assigning the rights derived by the
defendant No.3 in favour of the plaintiff. It does not state any
assignment in praesenti. By Ext.A2, the defendant No.3 has
only agreed to assign to the plaintiff the rights that he may obtain
as per Ext.A1 Agreement for a higher consideration. The
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assignment is not complete. Obligations as per Ext.A1 still
remain to be fulfilled. Hence, the plaintiff will not become the
representative in interest of the defendant No.3. The Trial Court
has misconstrued and misunderstood Ext.A2 Agreement for
sale and entered a perverse finding. In such a case, this Court
can perfectly interfere with the impugned order in this appeal.
16. Another contention is that the defendant No.3 is entitled to
assign the rights that he derived as per Ext.A1 Agreement for
sale even without the consent of the defendants 1 & 2. A
Constitution Bench of the Hon’ble Supreme Court in Khardah
Company Ltd. v. Raymon & Co. (India) Private Ltd. [AIR 1962 SC 1810]
has laid down the principle that an assignment of a contract
might result by transfer either of the rights or of the obligations
thereunder; that there is a well-recognised distinction between
these two classes of assignments; that as a rule, obligations
under a contract cannot be assigned except with the consent of
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the promisee, and when such consent is given, it is really a
novation resulting in substitution of liabilities; that on the other
hand, rights under a contract are assignable unless the contract
is personal in its nature or the rights are incapable of assignment
either under the law or under an agreement between the parties.
The question that arose in the said case was whether an
obligation coupled with a benefit was assignable. Based on the
above-mentioned principle, it is held that the terms of the
contract strongly imply that the rights thereunder are non-
transferable. In Indu Kakkar v. Haryana State Industrial Development
Corporation Ltd. and Another [(1999) 2 SCC 37], the Hon’ble Supreme
Court held that as a rule, a party to a contract cannot transfer
his liabilities under the contract without consent of the other
party; that this rule applies both at the Common Law and in
Equity; that where a contract involves mutual rights and
obligations, an assignee of a right cannot enforce that right
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without fulfilling the correlative obligations. In Kapilaben (supra)
also, it is held that though the provisions of the Contract Act do
not particularly deal with the assignability of contracts, time and
again it has been opined that a party to a contract cannot assign
their obligations/liabilities without the consent of the other party;
that it further has to be seen whether conferment of benefits
under a contract is based upon the specific assurance that the
co-extensive obligations will be performed only by the parties to
the contract and no other persons and that it would be
inequitable for a promisor to contract out his responsibility to a
stranger if it is apparent that the promisee would not have
accepted performance of the contract had it been offered by a
third party. In the light of these principles, I am of the view that
since Ext.A1 contains mutual rights and obligations, the rights
of the defendant No.3 under Ext.A1 alone could not be
transferred by Ext.A2. An Agreement for sale confers rights as
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well as obligations to both parties to the Agreement. Rights and
obligations arising out of an Agreement could not be transferred
by one of the parties to the Agreement without the consent of
the other parties.
17. The above discussion would conclude that, prima facie, the
plaintiff will not attain the status of buyer under Section 55(6)(b)
of the Transfer of Property Act to claim a charge over the plaint
schedule property for the plaint claim. The impugned order is
unsustainable and is liable to be set aside.
18. Accordingly, this appeal is allowed without costs, setting aside
the impugned order and dismissing I.A. No.1/2023 in
O.S.No.138/2023 on the files of the First Additional Sub Court,
Thiruvananthapuram.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
jma
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APPENDIX OF FAO 89/2024
RESPONDENT EXHIBITS
Document No.1 True copy of plaint in OS No.138 of 2023 on the
files of Sub Court Thiruvananthapuram
Document No.2 True Copy of Attachment application I.A No.1 of
2023 in OS No.138 of 2023 on the files of Sub Court
Thiruvananthapuram
Document No.3 True copy of Objection filed by the Defendants No.1
and 2 in I.A No.1 of 2023 in OS No.138 of 2023
Document No.6 True Copy of sale deed No.2465 of 1994 registered
at Malayinkeezhu Sub register office
Document No.7 True Copy of sale deed No.316 of 2012executed by
Sub Court Thiruvananthapuram
Document No.9 True Copy of original reply notice dated
03.04.2023 issued by Adv.R.kunjukrishnan Potti
Document No.10 Affidavit filed by the Counsel for the plaintiff
in OS No.138 of 2023 on the files of Sub Court
Thiruvananthapuram
Document No.4 True Copy of agreement for sale dated 28.04.2016
executed between plaintiff and defendant.
Document No.8 True Copy of office Copy of Advocate notice dated
29.03.2023
Document No.5 True Copy of agreement for sale dated 18.09.2014
defendant No.3 and defendants No.1 and 2
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