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Kerala High Court
Subrahmanyan vs Anil on 16 July, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:52432
C. R.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
WEDNESDAY, THE 16TH DAY OF JULY 2025 / 25TH ASHADHA, 1947
RFA NO. 119 OF 2017
AGAINST THE JUDGMENT DATED 19.09.2015 IN OS NO.302 OF 2013 OF
SUB COURT, CHAVAKKAD
-----
APPELLANT/THE SUPPLEMENTAL 8TH DEFENDANT:
ALUKAS JEWELLERY,
THRISSUR CORPORATION,BUILDING NO 25/1 M.O ROAD,
THRISSUR VILLAGE & TALUK REPRESENTED BY
THE MANAGING PARTNER P.V ANTO,
AGED 51 YEARS,S/O.PUTHUSSERY ALUKAS VARGHESE,
AVENUE ROAD, HOUSE NO.18/2980,
THRISSUR CORPORATION,CHALAKKOTTUKARA DESOM,
CHIRAYAM VILLAGE,THRISSUR TALUK.
BY ADV SHRI.J.OM PRAKASH
RESPONDENTS/PLAINTIFF AND THE FIRST DEFENDANT:
1 ANIL,
AGED 48 YEARS, S/O. ALPPUZHA SEKHARAN, NATTIKA
VILLAGE,CHAVAKKAD TALUK,NATTIKA P.O, THRISSUR.
2 SUBRAHMANYAN,
AGED 70 YEARS, S/O. ALAPPUZHA RAMAN, NATTIKA VILLAGE,
CHAVAKKAD TALUK,
PRESENT ADDRESS. PROF ALAP SUBRAHMANIAN,
511.OE, WOOD GATE LANE TUSCON, AZ,85712-1343 USA,
THE PRESENT POWER OFATTORNEY HOLDER VENUGOPALAN,S/O.
GANGADHARAN, KUNNUPARAMPIL, EDAMUTTOM P.O,
VALAPPAD, THRISSUR.
2025:KER:52432
RFA NO. 119 OF 2017 -2-
BY ADVS.
SHRI.G.S.REGHUNATH
SRI.N.K.SUBRAMANIAN
SHRI.SHEEJO CHACKO
SHRI.ATHUL TOM
SMT.LALITHA E.
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
16.07.2025, ALONG WITH RFA.258/2016, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2025:KER:52432
C. R.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
WEDNESDAY, THE 16TH DAY OF JULY 2025 / 25TH ASHADHA, 1947
RFA NO. 258 OF 2016
AGAINST THE JUDGMENT DATED 19.09.2015 IN OS NO.302 OF 2013 OF
SUB COURT, CHAVAKKAD
-----
APPELLANTS/1ST & 2ND DEFENDANTS:
1 SUBRAHMANYAN
AGED 70 YEARS, S/O. ALAPPUZHA RAMAN,NATTIKA VILLAGE,
DESOM, CHAVAKKAD TALUK, PRESENT ADDRESS: PROF: ALAP
SUBRAHMANIAN, 511, OE, WOOD GATE LANE TUSCON, AZ,
85712-1343, USA, POWER OF ATTORNEY HOLDER, REPRESENTED
BY MR.VENUGOPALAN, AGED 49 YEARS, S/O. GANGADARAN,
KUNNUMPARAMBIL, VALAPPAD VILLAGE, EDAMUTTOM
DESOM,CHAVAKKAD TALUK, THRISSUR DIST, KERALA, INDIA.
2 RAMAKRISHNAN
AGED 77 YEARS (DIED), S/O.ALAPPUZHA RAMAN, NATTIKA
VILLAGE, CHAVAKKAD TALUK.
BY ADVS.
SRI.M.P.PRABHAKARAN (PALAKKAD)
SRI.N.K.SUBRAMANIAN
SHRI.ATHUL TOM
SMT.NITHYASREE SIVASANKAR
SMT.LALITHA E.
2025:KER:52432
RFA NO. 258 OF 2016 -2-
RESPONDENTS/PLAINTIFF & 8TH DEFENDANT:
1 ANIL,
AGED 48 YEARS, S/O. ALAPPUZHA SEKHARAN,
NATTIKA VILLAGE/DESOM, CHAVAKKAD TALUK,
PRESENT ADDRESS ANIL A.S., P.O.BOX 29036, DUBAI STREET,
NO.25, AOUFBIN MALIK STREET, ALKHASAMLA, SHARJA.
2 ALUKKAS JEWELLARY,
THRISSUR CORPORATION, BUILDING NO. 25/1, M.O.ROAD,
THRISSUR VILLAGE & TALUK, REPRESENTED BY THE MANAGING
PARTNER P.V.ANTO,AGED 51 YEARS, S/O. PUTHUSSERY ALUKKAS
VARGHESE, AVENUE ROAD, HOUSE NO. 18/2980, THRISSUR
CORPORATION, CHELAKKOTTUKARA DESOM,CHIYYARAM VILLAGE,
THRISSUR TALUK.
THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON
16.07.2025, ALONG WITH RFA.119/2017, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
2025:KER:52432
SATHISH NINAN & C. R.
P. KRISHNA KUMAR, JJ.
= = = = = = = = = = = = = = = = = =
R. F. A. Nos.258 of 2016 &
119 of 2017
= = = = = = = = = = = = = = = = = =
Dated this the 16th day of July, 2025
J U D G M E N T
Sathish Ninan, J.
The decree for specific performance is under
challenge in these appeals by defendants 1 and 8
respectively.
2. The first defendant is the plaintiff’s uncle
(father’s brother). The second defendant is the power of
attorney holder of the first defendant. The 8 th
defendant is the transferee pendente lite. The second
defendant died and his legal heirs were impleaded as
defendants 3 to 7. They were subsequently deleted from
the party array.
3. The first defendant is settled in the United
States of America. The plaintiff is into business in
U.A.E. The plaintiff, and the first defendant through
R. F. A. Nos.258 of 2016 &
119 of 2017
2025:KER:52432
-: 2 :-
his power of attorney holder the second defendant,
entered into Ext.A1 agreement for sale dated 21.02.2009.
Thereunder, 1 acre 20 cents of property belonging to the
first defendant was agreed to be conveyed to the
plaintiff. The sale consideration fixed was ₹ 1,50,000/-
per cent. An amount of ₹ 10 lakhs was paid towards
advance sale consideration. The period fixed for
performance was 11 months. Subsequently, on 29.03.2010,
the period was extended till 30.09.2010 and the sale
consideration was reduced to ₹ 1,40,000/- per cent.
4. According to the plaintiff, in May 2009, the
parties orally agreed that the sale consideration will
stand re-fixed at ₹ 1,20,000/- per cent. On 06.09.2010
the plaintiff issued Ext.A4 notice demanding performance
of the agreement. Ext.A6 is the reply, denying the
alleged oral agreement fixing the consideration at
₹ 1,20,000/-. It is accordingly that the suit is filed.
5. The defendant admitted Ext.A1 agreement. It was
also admitted that the sale consideration was later re-
R. F. A. Nos.258 of 2016 &
119 of 2017
2025:KER:52432
-: 3 :-
fixed at ₹ 1,40,000/- per cent. However, the alleged
subsequent oral agreement bringing down the
consideration at ₹ 1,20,000/- per cent was denied. It
was contended that the plaintiff was not ready and
willing to perform Ext. A1 agreement.
6. The trial court, relying upon certain e-mail
communications between the parties, upheld the oral
agreement whereby the consideration was fixed at
₹ 1,20,000/-. It was found that the plaintiff was ready
and willing to perform the agreement. Taking note of the
passage of time since the execution of Ext.A1 agreement,
the court fixed the value at ₹ 1,50,000/- per cent, and
granted a decree for specific performance for the said
value.
7. We have heard Sri.J.Omprakash and Sri.N.K.
Subramanian on behalf of the appellants-defendants and
Sri.G.S.Reghunath, the learned counsel for the
respondent-plaintiff.
R. F. A. Nos.258 of 2016 &
119 of 2017
2025:KER:52432
-: 4 :-
8. The points that arise for determination in these
appeals are: –
(i) Is the alleged oral agreement re-fixing the consideration under
Ext.A1 agreement at Rs.1,20,000/- proved by the available evidence?
(ii) Are the email communications inadmissible in evidence for
want of certification in terms of Section 65B(4) of the Indian Evidence
Act?
(iii) Does the evidence on record establish the continued readiness
and willingness of the plaintiff?
(iv) Does the exercise of discretion by the trial court under Section
20 of the Specific Relief Act, to grant a decree for specific performance
warrant any interference?
9. Ext.A1 agreement is admitted. The period fixed
under Ext.A1 was 11 months, which was to expire in
January, 2010. On 29.03.2010 the period was extended
till 30.09.2010 and the sale consideration was reduced
to ₹ 1,40,000/- per cent. The above is endorsed on the
reverse of Ext.A1. The above is also not in dispute.
According to the plaintiff, in May 2010 there was an
oral agreement slashing down the sale consideration to
₹ 1,20,000/- per cent. This is disputed by the
defendant. Therefore, the primary question is whether
R. F. A. Nos.258 of 2016 &
119 of 2017
2025:KER:52432
-: 5 :-
the claim of the plaintiff that the sale consideration
under Ext.A1 agreement was re-fixed at ₹ 1,20,000/- per
cent, proved or not.
10. For proof of re-fixation of the sale
consideration at ₹ 1,20,000/- per cent the plaintiff
relies on various e-mail communications between the
parties; they are, Ext.A11, A13 and A23 series.
11. The learned counsel for the defendants contend
that the e-mails are not admissible in evidence for lack
of the necessary certification under Section 65B(4) of
the Indian Evidence Act. The learned counsel placed
reliance on the judgment of the Apex Court in Arjun
Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors. [2020 (7) SCC 1] in
support of the contention. The learned counsel for the
plaintiff would on the other hand contend that e-mail
communications are not electronic records falling within
the ambit of Section 65 A and 65 B of the Evidence Act
and also under Section 2(1)(t) of the Information Technology
Act. Therefore, it does not require any certification
R. F. A. Nos.258 of 2016 &
119 of 2017
2025:KER:52432
-: 6 :-
under Section 65B(4) of the Evidence Act. It is further
contended that the e-mail communications were marked in
evidence without any objection and even its genuineness
remained undisputed. It is too late in the day to raise
objection against its admissibility, it is argued.
12. The contention that an e-mail communication is
not an electronic record within the purview of Section
65A and 65B of the Evidence Act is devoid of merit.
Section 2(1)(t) of the Information Technology Act
defines an “electronic record” thus :-
“2(1)(t) “electronic record” means data, record or data generated, image
or sound stored, received or sent in an electronic form or micro film or
computer generated micro fiche.”
Section 2(1)(o) defines “data” thus :-
“2(1)(o) “data” means a representation of information, knowledge, facts,
concepts or instructions which are being prepared or have been prepared
in a formalised manner, and is intended to be processed, is being
processed or has been processed in a computer system or computer
network, and may be in any form (including computer printouts magnetic
or optical storage media, punched cards, punched tapes) or stored
internally in the memory of the computer.”
R. F. A. Nos.258 of 2016 &
119 of 2017
2025:KER:52432
-: 7 :-
The definitions admit of no doubt that the print out of
an e-mail communication is an electronic record. In Jisal
Rasak v. State of Kerala [2019 (4) KLT 159] this Court has acknowledged
that an e-mail communication is an electronic record
under Section 65B of the Evidence Act. The contention is
negatived.
13. Section 65B of the Evidence Act mandates that
the document mentioned therein shall contain the
certification under Section 65B(4) of the Evidence Act.
In Arjun Panditrao‘s (supra) the Apex Court, affirming the
view expressed in Anvar P.V. v. P.K.Basheer [2014 (10) SCC 473] in
categoric terms held that a certificate under Section
65(B)(4) is a sine qua non for the admissibility of
evidence of information contained in electronic records.
The earlier view to the contrary expressed in Tomaso Bruno
& Anr. v. State of Uttar Pradesh [(2015) 7 SCC 178], State (NCT of Delhi) v. Navjot
Sandhu [(2005) 11 SCC 600] and Shafhi Mohammad v. State of Himachal Pradesh
[(2018) 2 SCC 801] were overruled. Therefore, for the
admissibility of a document under Section 65B of the
R. F. A. Nos.258 of 2016 &
119 of 2017
2025:KER:52432
-: 8 :-
Evidence Act, the certification under Section 65B(4) is
mandatory.
14. The e-mail communications relied on by the
plaintiff do not contain the certification under Section
65B(4). The e-mail communications were produced by the
plaintiff along with the plaint and were mentioned in
the listed documents. Its genuineness was not disputed
in the written statement. The first defendant, who is
the owner of the property and with whom the e-mail
communications took place was not examined. The second
defendant, who was the power of attorney holder of the
first defendant, died pending the suit. DW2 is the
subsequent power of attorney holder. He deposed in his
cross-examination that he is aware only about the facts
which occurred after the death of the second defendant.
He deposed, “രരാമകകൃഷഷഷ്ണൻ മരരിച്ചശശേഷമമുള്ള കരാരര്യശമ എനരിക്കറരിയമുകയമുള്ളള.”.
He admitted the e-mail address of the first defendant in
the e-mail communications. Since the witness was
examined through an Advocate Commissioner, the e-mail
R. F. A. Nos.258 of 2016 &
119 of 2017
2025:KER:52432
-: 9 :-
communications are seen marked in the following manner,
“Document shown to the witness is provisionally marked as Ext.A23 series (12
numbers)”. Upon Ext.A23 series, the court has recorded
that such documents were admitted in evidence by
consent. The relevant endorsement reads thus:- “Admitted in
evidence by consent on 17.09.2011 and marked as Ext.A23”. Therefore, it is
evident that the e-mail communications were admitted in
evidence without any objection and that even its
genuineness remain undisputed. The question is whether
even under such circumstances, the e-mail communications
become inadmissible in evidence for lack of
certification in terms of Section 65B(4) of the Evidence
Act.
15. In Sonu Alias Amar v. State of Haryana [(2017) 8 SCC 570], the
Apex Court was considering the admissibility of Call
Detail Records (CDRs) which did not contain the
certification under Section 65B(4) of the Evidence Act.
In that case, at the time of admitting the CDRs in
evidence, its admissibility, for lack of the
R. F. A. Nos.258 of 2016 &
119 of 2017
2025:KER:52432
-: 10 :-
certification, was not challenged. The Apex Court held
that, the absence of certification is only a curable
defect and if raised at the appropriate time, the said
defect could have been cured. It was held that the
objection relates only to the mode of proof, and such
objections if not taken at the trial, cannot be
permitted to be urged at the appellate stage. The Apex
Court held,
“….. The crucial test, as affirmed by this Court, is whether the defect
could have been cured at the stage of marking the document. Applying
this test to the present case, if an objection was taken to the CDRs being
marked without a certificate, the Court could have given the prosecution
an opportunity to rectify the deficiency. It is also clear from the above
judgments that objections regarding admissibility of documents which are
per se inadmissible can be taken even at the appellate stage.
Admissibility of a document which is inherently inadmissible is an issue
which can be taken up at the appellate stage because it is a fundamental
issue. The mode or method of proof is procedural and objections, if not
taken at the trial, cannot be permitted at the appellate stage. If the
objections to the mode of proof are permitted to be taken at the appellate
stage by a party, the other side does not have an opportunity of rectifying
the deficiencies. The learned Senior Counsel for the State referred to
statements under Section 161 CrPC, 1973 as an example of documents
falling under the said category of inherently inadmissible evidence. CDRs
do not fall in the said category of documents. We are satisfied that an
R. F. A. Nos.258 of 2016 &
119 of 2017
2025:KER:52432
-: 11 :-
objection that CDRs are unreliable due to violation of the procedure
prescribed in Section 65-B(4) cannot be permitted to be raised at this
stage as the objection relates to the mode or method of proof.”
16. The decision in Sonu‘s case(supra) was referred to
by the Apex Court in Union of India v. Ravindra V. Desai [(2018) 16 SCC
273] and State of Karnataka v. M.R.Hiremath [(2019) 7 SCC 515]. These
judgments were referred to in Arjun Panditrao‘s case (supra).
Recently, in Sundar @ Sundarajan v. State by Inspector of Police (2023) SCC
OnLine SC 310 the Apex Court again acknowledged the ratio
in Sonu (supra). It was held,
“Therefore, we are inclined to agree with the ratio in Sonu by not allowing
the objection which is raised at a belated stage that the CDRs are
inadmissible in the absence of a Section 65B certificate, especially in cases,
where the trial has been completed before 18 September 2014, i.e. before
the pronouncement of the decision in Anvar P.V..”
17. Therefore, in the case at hand, the
admissibility of the e-mail communications for want of
certification under Section 65B of the Evidence Act
having not been taken at the trial, and rather, such
communications have been admitted in evidence by
R. F. A. Nos.258 of 2016 &
119 of 2017
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-: 12 :-
consent, it is not open for the defendant to challenge
its admissibility at this stage on the ground of lack of
certification under Section 65B. We negative the
contention.
18. Now we proceed to discuss on the evidence
regarding the oral agreement re-fixing the price. The
oral agreement is claimed to have been struck during the
month of May 2010. Exts.A11, A13 and A23 series are the
email communications relied on by the plaintiff to prove
the same. Ext.A11 is an e-mail communication dated
23.05.2010 by the first defendant to the plaintiff. In
Ext.A11 it is stated,
“I am quite satisfied with the new amount (142.8 lac) and glad it is
advantageous to my dear nephew even at the higher stamp price. You may
subtract the advance paid last year (10 lac) and so the final amount is 132.8
lac”.
According to the plaintiff, on measurement, the extent
of the property was found to be 1 acre 19 cents.
Calculating the value for the said extent at
₹ 1,20,000/- per cent, the total sale consideration
R. F. A. Nos.258 of 2016 &
119 of 2017
2025:KER:52432
-: 13 :-
would be ₹ 142.8 lakhs. This is the figure acknowledged
by the first defendant in Ext.A11 e-mail communication.
This lends credence to the plaintiff’s claim of parties
having agreed to bring down the consideration to
₹ 1,20,000/- per cent. Ext.A13 is the e-mail
communication dated 20.05.2010 by the plaintiff to the
first defendant. Therein, the consideration has been
specified as ₹ 1,20,000/- per cent. The relevant portion
of the communication reads thus:-
“I am reconfirming the details given by pappan related to the land deal
we are agreed up on:
1. Total area of the land per document and agreed after measurement =
119 cents – which belongs to survey nos. 197/5, 197/7 and 197/8.
2. Agreed price per cent : IRS 1,20,000.00 (One Lakh and Twenty
Thousand – based on the latest land value by the government)
3. Total value for the land = 119 * 120,000.00 = IRs 1,42,80,000 (One
Crore Forty Two lakhs and Eighty Thousand).
4. Stamp paper requirement for the registration as per the new legislation
@ 9% – IRs. 12,85200 (12 Lakhs Eighty Five Thousand and Two Hundred
Rupees)
– will confirm the same and purchase the required stamp paper.”
R. F. A. Nos.258 of 2016 &
119 of 2017
2025:KER:52432
-: 14 :-
Ext.A23(h) is the e-mail communication dated 23.05.2010
sent by the first defendant to the plaintiff in reply to
Ext.A13. Therein it is stated thus :-
“I am quite satisfied with the new amount (142.8 ac) and glad it is
advantageous to my dear nephew even at the higher stamp price.”
Evidently, the consideration is accepted by the first
defendant. Ext.A23 is an e-mail communication dated
08.08.2010 by the plaintiff to the first defendant.
Therein the plaintiff expressed his gratefulness to the
first defendant for having reduced the price of the
property. Therein it is stated,
“I can understand your mind. You like us very well. That is the reason you are
ready to reduce the property price very much (i.e. about 66 lakhs from total
amount, if the information you received is correct). I bow my head infront of
your generosity and affection to me”.
19. The plaintiff, in his proof affidavit, has
sworn to that since the fair value of the property was
re-fixed by the Government at ₹ 1,20,000/- from
₹ 12,000/- there occurred huge difference in the stamp
duty payable, and taking note of the same the first
R. F. A. Nos.258 of 2016 &
119 of 2017
2025:KER:52432
-: 15 :-
defendant agreed to bring down the sale price to
₹ 1,20,000/- per cent and both the parties agreed to the
same in May 2010. Pertinently, such statement of the
plaintiff was not challenged in cross-examination. This
is a vital circumstance corroborating the oral
agreement. Therefore, we are inclined to uphold the
plaintiff’s contention that the parties had re-fixed the
consideration at ₹ 1,20,000/- per cent.
20. The learned counsel for the appellant-defendant
would contend that Ext.A1 agreement stood cancelled by
defendants as per Ext.A6 notice dated 28.09.2010.
Therefore, the plaintiff ought to have sought a prayer
for declaration that the cancellation of Ext.A1 is bad
in law. Without such relief, the mere suit for specific
performance is not maintainable, it is argued. The
learned counsel relied on the judgment of the Apex Court
in Sangita Sinha v. Bhawana Bhardwaj & Ors. (2025 INSC 450 : 2025 AIAR Civil
15). Therein the Apex Court held that in a case where the
agreement stood cancelled, the plaintiff ought to seek
R. F. A. Nos.258 of 2016 &
119 of 2017
2025:KER:52432
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for a declaration against such cancellation and seek for
specific performance.
21. Noticeably there is no plea in the written
statement that the agreement for sale was cancelled.
Ext.A6 reply notice is relied on to contend that the
agreement was cancelled. The portions in Ext.A6 which
the learned counsel relied on reads thus :-
“തരാങ്കളളുടടെ ശനരാടട്ടീസരിൽ പറയമുന്നതമുശപരാടല വഹകൾ തരാങ്കളളുടടെ
കകരിക്കഷ തട്ടീറഷ നൽകമുവരാൻ എടന്റെ കകരി തയരാറല. ……. ടെരിയരാടന്റെ
പപവകൃതരി മനനഃപപൂർവ്വമമുള്ള കരരാർ ലലംഘനമരാകമുന്നമു.. തരാങ്കളളുടടെ
ശനരാടട്ടീസരിൽ പറയമുന്ന രട്ടീതരിയരിൽ വഹകളളുടടെ തട്ടീറഷ നടെതമുവരാനമുള്ള
ബരാധര്യത എടന്റെ കകരിക്കഷ ഇലരാതതരാഷ്ണഷ . ….. കരരാർ പപകരാരലംഅഡഡരാൻസരായരി നൽകരിയരിടളുള്ള 10 ലകലം രപൂപ തരാങ്കളളുടടെ കകരിക്കഷ
മടെക്കരി നൽകമുവരാൻ എടന്റെ കകരി തയരാറമുള്ളതരാഷ്ണഷ.” (underlining
is ours)On a proper understanding of Ext.A6, we are unable to
agree with the contention. Ext.A6 notice was preceded by
Ext.A4 notice issued by the plaintiff calling upon the
defendant to perform Ext.A1 agreement as modified by the
oral agreement fixing the consideration at ₹ 1,20,000/-.
R. F. A. Nos.258 of 2016 &
119 of 20172025:KER:52432
-: 17 :-In Ext.A6 reply, the defendant denied the subsequent
modification in the consideration and stated that he is
not willing to convey the property in the manner as
claimed in Ext.A4 notice. He has also stated that he is
not bound to execute the sale deed in the manner as
claimed in Ext.A4. He has also expressed his willingness
to return the advance sale consideration. In our opinion
the above does not amount to a notice of cancellation of
the agreement. All that is expressed in Ext.A6 is the
refusal to perform the agreement in the manner as
claimed in Ext.A4, that is, by fixing the consideration
at ₹ 1,20,000/-. There is no cancellation of the
contract as such, thereunder. Hence we negative the plea
that the frame of the suit is bad for absence of a
prayer for declaration.
22. What remains for consideration is regarding the
readiness and willingness of the plaintiff and the
exercise of discretion under Section 20 of the Specific
Relief Act. Ext.A1 agreement was entered on 21.02.2009
R. F. A. Nos.258 of 2016 &
119 of 2017
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fixing the period at 11 months and the sale
consideration at ₹ 1,50,000/- per cent. One year later
ie. on 29.03.2010 the period of the agreement was
extended till 30.09.2010 and the sale consideration was
brought down to ₹ 1,40,000/-. In May 2010, the sale
consideration is again brought down to ₹ 1,20,000/-. By
the passage of time the land value would only go up. The
slashing of the consideration could only be as desired
by the plaintiff; that it was so is evidenced by the e-
mail communications referred to earlier.
23. The plaintiff had claimed that he was always
having the balance sale consideration with him to go
ahead with the transaction. In the plaint it was pleaded
that he had arranged funds by availing loans from the
National Bank of Dubai (NBD), MASHREQ Bank, RAK Bank. In
his cross-examination (PW1) he would depose that he had
rupees one crore and eighty lakhs with him and that it
was retained in India and abroad. He deposed,
R. F. A. Nos.258 of 2016 &
119 of 2017
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“21-1-2010 തട്ടീയതരിക്കമുള്ളരിൽ ഒശരക്കർ ഇരമുപതഷ ടസന്റെഷസഷ എടെമുക്കരാനമുള്ള
പഷ്ണലം എടന്റെ കകവശേലം ഉണരായരിരമുന്നമു. ഒരമു ശകരാടെരി എൺപതഷ ലകലം രപൂപ
കകവശേലം ഉണരായരിരമുശന്നരാ (Q) ഉണരായരിരമുന്നമു. (A) ഇനര്യയരിലമുലം വരിശദേശേതമുലം
ആയരിരമുന്നമു.”
However he did not produce any documents evidencing the
same. In further cross-examination he would depose that
out of the total sale consideration he availed a loan of
₹ 1 crore and the remaining 70 lakhs was available in
his accounts with the South Indian Bank and State Bank
of India. The relevant deposition reads thus :-
“ആദേര്യ കരരാർ കരാലരാവധരിക്കമുള്ളരിൽ തടന്ന തട്ടീറഷ എടെമുക്കരാനമുള്ള സലംഖര്യ
ഉണരായരിരമുന്നമു. അതരിൽ കമുറച്ചഷ വരായഷപ എടെമുതമു. ഒരമു ശകരാടെരി രപൂപ
വരായഷപ എടെമുതമു. ശരഖ ടകരാണഷ കരാഷ്ണമുശമരാ (Q). (A) UAE Bank ൽ
നരിന്നരാഷ്ണഷ. ശരഖ എടന്റെ കയരിൽ ഇല. ബരാക്കരി 80 ലകലം രപൂപ liquid
money ഉള്ളതരായരി കരാഷ്ണമുശമരാ (A) ഏകശദേശേലം 70 ലകലം രപൂപ ഉള്ളതരായരി
കരാഷ്ണരാലം. South Indian Bank, State Bank of India
എന്നരിവരിടെങ്ങളരിൽ ഉള്ളതരായരി കരാഷ്ണരാലം. ആയതരിടന്റെ record
ഹരാജരരാക്കരിയരിടരില.”
However, in Ext.A12 e-mail communication by the first
defendant to the plaintiff, the plaintiff had
represented to the first defendant that an amount of ₹ 1
crore is available in two Banks in the NRI account of
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the plaintiff with the State Bank of India and the South
Indian Bank and that the balance amount could be
arranged from UAE. At the stage of evidence, the
plaintiff relied upon Ext.A7 accounts statement with the
HDFC Bank to show the availability of the funds with
him. The total sale consideration for the 119 cents at
the rate of ₹ 1,60,000/- would be 1,90,40,000/-. Out of
the same an amount of ₹ 10 lakhs was paid on the date of
Ext.A1. The balance sale consideration payable is
₹ 1,80,40,000/-. In addition to this the plaintiff was
required to raise the stamp duty, registration fee, and
other expenses. Even going by Ext.A7 bank statement,
amount in excess of ₹ 1 crore was available in his
account only since 08.07.2010. Prior to that the amount
in the account was only 7 digits, which would be
insufficient to take the transaction forward. Of course,
it is not in dispute that the plaintiff is a businessman
in UAE. Hence, the mere inconsistency as above and the
fact that he did not show the availability of funds
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during the period, by itself, may not be sufficient
enough to decide upon his readiness to go ahead with the
transaction.
24. The evidence reveal that there were various
hurdles in taking the transaction forward. Even going by
the plaintiff’s case, on one occasion when he came down
to get the sale deed executed it was understood that the
thumb impression of the first defendant is necessary on
the original stamp papers. The stamp papers had to be
sent to the first defendant at USA for the same. In the
meanwhile, the Government had notified the fair value of
the property at ₹ 1,20,000/- per cent burdening the
plaintiff with the liability to pay huge amounts towards
stamp value. There were issues with regard to the
transferring of such large amounts either from India or
from the plaintiff’s business place at UAE to the first
defendant’s place in USA. There also cropped up the
requirement of payment of capital gains by the first
defendant, which the parties understood to be 20% of the
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sale consideration. To avoid such payment the parties
were exploring the possibility of getting a certificate
from the village office that the property is an
agricultural land. The parties were indefinite regarding
the course of action, and obtaining of such certificate
was taking time. It could not be obtained even by August
2010.
25. Since even as in August 2010, the parties were
unable to obtain certificate regarding the nature of the
land, the plaintiff insisted that the deal be completed
by proceeding to pay capital gain tax. As was noticed,
such course would require the seller to pay tax at 20%,
on the sale consideration. Hence the first defendant was
not agreeable for the same. Though a further extension
of time was suggested to the plaintiff to procure
certificate from the village office, he, as per
Ext.A23(k) e-mail, in categoric terms expressed that he
is not interested in further extending the agreement
period and that he will be unable to come down to the
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native place for the next four months. He required the
deal to be done by payment of capital gain tax. The e-
mail dated 17.08.2010 between the plaintiff and the
first defendant are relevant in this regard. The first
defendant wrote to the plaintiff:-
“Regarding land registration village agricultural land certificate is unclear and will
take some more time to receive clarification. I am not in favour of executing the
affidavit to seek exemption from income tax. Await development. In the circumstances
your planned visit to Kerala on 27/8/’10 may be further postponed.”
To this, the plaintiff sent a reply, the relevant
portion of which reads,
“If it is impossible to arrange this registration in this month, I am unable to visit
Kerala within four months. Meanwhile, our agreement time will finish. Even if you
are ready to extend the agreement period I do not wish to do like that. So I am not
liking to change my schedule to Kerala. If not possible to arrange the required
certificate, we can proceed on Option-I.”
The Option-I mentioned is by payment of 20% capital gain
tax. This is evident from the e-mail communication dated
15.07.2010 by the first defendant to the plaintiff
wherein it is stated,
“Now to the matter on hand. There are two options as per your e-mails. (see below).
They are :
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1) Pay a small 20% tax (capital gains) at the time of registration and
2) get a “agricultural land certificate” that allows no tax at registration but
the danger of up to 50% total tax later.”
To the insistence of the plaintiff to go ahead with the
transaction on payment of 20% capital gains tax the
first defendant answered in the negative and expressed
his willingness to return the advance amount.
26. The first defendant had brought down the sale
consideration from ₹ 1,50,000/- per cent to ₹ 1,20,000/-
per cent. Obviously this was at the instance of the
plaintiff and for his benefit. Thereafter, the plaintiff
wanted the first defendant to go ahead with the
transaction burdening the first defendant with 20%
capital gains tax, when yet another option was available
for the first defendant but, which appeared to take
time. It was under such circumstances that the agreement
failed.
27. Upon such intimation by the first defendant as
above, the plaintiff had returned the title deeds and
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other documents relating to the property to the second
defendant. PW1 admitted the same in his cross-
examination thus:-
“ടസപഷതലംബർ 30-നഷ ആധരാരങ്ങളളുലം ശരഖകളളുലം രരാമകകൃഷഷഷ്ണൻ പറഞ
പപകരാരലം തരിരരിച്ചഷ ടകരാടെമുതമു. ”
Therefore, even the plaintiff appeared to have given up
the intention to proceed further upon the agreement.
This even tells upon his willingness to go ahead with
the agreement.
28. Incidentally, there is yet another aspect. With
regard to the extent of property, a reading of the email
communications would indicate that the first defendant
has gone by the statement of the plaintiff that on
measurement the available extent was found to be 1 acre
19 cents. The sale price was to be on centage basis. In
the written statement the defendants contended that the
extent is 1 acre and 20 cents. Though there has been a
measurement of the property, neither the plan is
produced nor the surveyor who measured the property was
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examined. It is to be noticed that the plaintiff has
scheduled only 1 acre and 19 cents and has sought for
conveyance of the same. As per the title deed the extent
is 1 acre 20 cents. Therefore, to obtain a decree for
specific performance, the plaintiff ought to have
convinced the court of the extent of the property
available. However, it is not done.
29. Thus, on appreciating the entire evidence on
record, we are of the opinion that this is not a fit
case where the discretion is to be exercised to grant a
decree for specific performance. The above aspects did
not go into the zone of consideration of the trial court
while considering the issue of exercise of discretion.
The decree and judgment of the trial court are thus
liable to be interfered with.
30. Having held that the plaintiff is not entitled
for a decree for specific performance, necessarily the
plaintiff is entitled to get the alternate relief of
return of the advance sale consideration paid, with
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interest. The plaintiff is a businessman. He could have
utilised the amount in his business. Having due regard
to the same and the facts of the case, we are of the
opinion that interest could be granted at the rate of
12% per annum from the date of payment till date of
suit, and thereafter at the rate of 9% per annum till
date of decree. Interest from the date of decree could
be confined to 6%. In the light of the circumstances
which prompted this Court to exercise its discretion not
to grant specific performance but to grant decree for
return of sale consideration, the plaintiff cannot be
denied the statutory charge over the property available
under Section 55(6)(b) of the Transfer of Property Act.
In the result, these appeals are allowed. The
decree and judgment of the trial court are set aside.
The plaintiff is granted a decree for recovery of ₹ 10
lakhs with interest at the rate of 12% per annum from
21.02.2009 till date of suit (05.10.2010) and thereafter
at the rate of 9% per annum till date of decree, and
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thereafter at the rate of 6% per annum till realisation,
from the plaint schedule property as a charge and by
sale of it, and from the first defendant and his assets.
The plaintiff shall be entitled for proportionate costs
throughout.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
kns/-
//True Copy//
P.S. To Judge
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