R. RADHAKRISHNA PRASADversusSWAMINATHAN & ANR.

                   [2024] 7 S.C.R. 22 : 2024 INSC 463

                         R. Radhakrishna Prasad
                                   v.
                           Swaminathan & Anr.
                        (Civil Appeal No. 910 of 2024)
                                   08 July 2024
           [Vikram Nath and Prashant Kumar Mishra,* JJ.]

                            Issue for Consideration
       Appellant-plaintiff filed suit for specific performance of the agreement
       of sale and in the alternative prayed for refund of the advance sale
       consideration of Rs.18,00,000/- (initial advance sale consideration
       of Rs. 3,00,000/- and additional sum of Rs. 15,00,000/), mesne
       profits etc. with interest. Trial Court denied specific performance
       however, directed the defendant no.1 to refund Rs.18,00,000/- to
       the plaintiff with interest. High Court modified the decree and
       allowed the plaintiff to recover only Rs.3,00,000/- with interest.
       Whether the plaintiff proved payment of Rs. 3,00,000/- initially
       and another sum of Rs.15,00,000/- totalling to Rs.18,00,000/- to
       the defendant no.1.

                                    Headnotes†
       Specific performance – Suit for specific performance of the
       agreement of sale – Alternative prayer for refund of the advance
       sale consideration of Rs.18,00,000/- by defendant no.1 was
       made which was allowed by Trial Court – High Court allowing
       the appeal filed by the defendant no.1 modified the decree
       and allowed the plaintiff to recover only Rs.3,00,000/- with
       interest – Correctness:
       Held: Both the Courts below found that payment of Rs.3,00,000/-
       on the date of agreement was duly proved in the evidence of PW-1
       and PW-3 – The bone of contention between the parties was the
       payment of additional advance consideration of Rs.15,00,000/-
       as evidenced by exhibit A-1(a) endorsement – Considering the
       entire evidence, the plaintiff has proved payment of advance
       sale consideration of Rs. 3,00,000/- at the time of execution
       of the agreement – However, the case of the plaintiff as to the
       subsequent payment of Rs.15,00,000/- was not established by
       positive evidence as rightly held by High Court – No substance
       in the appeal. [Paras 11-13]
* Author
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            R. Radhakrishna Prasad v. Swaminathan & Anr.


                                  List of Acts
     Specific Relief Act, 1963.

                             List of Keywords
     Specific performance; Suit for specific performance of the
     agreement of sale; Balance sale consideration; Ready and willing
     to pay; Advance sale consideration; Alternative prayer for refund of
     advance sale consideration; Specific relief of the agreement of sale
     declined;Specific performance denied; Decree for refund of money.

                            Case Arising From
     CIVIL APPELLATE JURISDICTION: Civil Appeal No.910 of 2024
     From the Judgment and Order dated 23.06.2011 of the High Court of
     Kerala at Ernakulam in RFA No.25 of 2010
                         Appearances for Parties
     V.Chitambaresh, Sr. Adv., K. Rajeev, Ms. Niveditha R. Menon, Bijo
     Mjoy, Advs. for the Appellant.
     Zulfiker Ali P. S, Adv. for the Respondents.
                Judgment / Order of the Supreme Court

                                  Judgment
     Prashant Kumar Mishra, J.
     This appeal would call in question the Judgment and decree of
     the High Court of Kerala by which the High Court has allowed the
     appeal preferred by the defendant no. 1 and modified the decree
     passed by the Trial Court whereby, in a suit for specific performance,
     the Trial Court had directed the defendant no. 1 to refund a sum
     of Rs. 18,00,000/- (Rs. Eighteen Lakhs only) to the plaintiff. Under
     the impugned Judgment, the High Court has allowed the plaintiff to
     recover only a sum of Rs. 3,00,000/- (Rs. Three Lakhs only) with
     12% interest per annum from the date of suit till realisation from the
     defendant no. 1.
2.   Briefly stated, the facts of the case are that the appellant/plaintiff
     preferred a suit for specific performance of the agreement dated
     26.03.1998 whereunder the parties entered into an agreement for
     sale of the suit property over which the defendant no. 1 had a right
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      by virtue of Partition Deed no. 2304/81 and Sale Deed nos. 759/93
      & 1586/93 of the S.R.O. Chengannur. The defendant no. 1 agreed
      to sell the said property to the plaintiff for a sale consideration of
      Rs. 30,00,000/- (Thirty Lakhs only) and to handover the vacant
      possession of the suit property to the plaintiff within 06 months from
      the date of agreement. He received an advance sale consideration of
      Rs. 3,00,000/- (Three Lakhs only) from the plaintiff and also handed
      over the title deeds and encumbrance certificate to the plaintiff. The
      defendant no. 1 had availed of a loan from the defendant no. 2 - Bank
      by way of creating an equitable mortgage on deposit of his title deeds.
      Therefore, to clear the said liabilities, the defendant no. 1 received
      an additional amount of Rs. 15,00,000/- (Fifteen Lakhs only) from
      the plaintiff between the period from 26.03.1998 and 12.09.1998 and
      extended the period of the agreement for one year from 12.09.1998.
      The plaintiff averred in the suit that he was always ready and willing
      to pay the balance sale consideration as per the agreement but
      due to the laches on the part of the defendant no. 1, the sale deed
      could not be executed in time. In spite of repeated requests, the
      defendant no. 1 did not execute the sale deed, therefore, the suit
      was preferred. The plaintiff claimed for specific performance of the
      agreement and in the alternative prayed for refund of the advance
      sale consideration of Rs. 18,00,000/- (Eighteen Lakhs only), mesne
      profits etc. together with interest and other incidental expenses. No
      relief was sought from the defendant no. 2.
3.    The defendant no. 1 contested the suit by denying the whole
      transaction. He denied having any acquaintance with the plaintiff
      as also the execution of the agreement. He also stated that he is
      only a co-owner of the suit property which would fetch value of more
      than Rs. 1,00,00,000/- (One Crore only). Thus, according to the
      defendant no. 1, the plaintiff has raised a false claim on the basis of
      a non-existing agreement. It is also stated in the written statement
      that there were financial transactions between one K.K. Vijayadharan
      Pillai and defendant no. 1 during which the said K.K. Vijayadharan
      Pillai obtained his signatures on blank papers and cheques from him
      and his wife. He has also initiated criminal prosecutions and instituted
      civil suit against defendant no. 1. The present suit is one of such
      instances. Thus, he denied any privity of contract between himself
      and the plaintiff. The suit has been instituted under the influence of
      K.K Vijayadharan Pillai on the strength of some forged and fabricated
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            R. Radhakrishna Prasad v. Swaminathan & Anr.


     documents. The defendant no. 2 - Bank did not appear despite
     receiving summons and was thus proceeded exparte.
4.   Before the Trial Court, the plaintiff examined three witnesses and
     exhibited documents A1 to A8 whereas, on his side, defendant no.
     1 examined two witnesses and exhibited two documents B1 and B2.
5.   Basing on the undisputed facts that the agreement bears the
     signatures of defendant no. 1, the Trial Court found that the agreement
     was executed by the defendant no. 1 and the two witnesses of the
     agreement namely, K.K. Vijayadharan Pillai (PW-2) and Jose P.
     George (PW-3) having supported the plaintiff’s case, the agreement
     is not forged or fabricated. The Trial Court also considered the
     documentary evidence as contained in exhibit A-1 to A-8 to conclude
     that the suit notice was duly served on the defendant no. 1 and that
     he was ready with the sale consideration amount for the execution
     of the sale deed as reflected in the document exhibit A-7. Therefore,
     the plaintiff is entitled to a decree for specific performance. This
     finding was also found supported by the evidence of PW-2 who
     was examined as a witness to the agreement and the endorsement
     exhibit A-1(a) and has proved that the documents were exhibited in
     his presence and the defendant no. 1 had put his signatures on the
     documents. Similar is the case with the other witness PW-3 – Jose
     P. George. The Trial Court also considered the evidence of DW-1, a
     practicing advocate who issued exhibit B-2 notice on the defendant
     no. 1. However, this witness has been disbelieved by the Trial Court.
     The defendant no. 1 examined himself as DW-2 who admitted his
     ownership in the suit property. He maintained his stand that K.K.
     Vijayadharan Pillai had obtained his signatures on blank papers and
     blank cheque leaves and the same has been misused to create
     forged agreement. However, the Trial Court upon consideration of
     the equitable principles on which a decree for specific performance
     is granted, was convinced with the case of defendant no. 1 that the
     suit property would fetch more value than the sale consideration
     mentioned in the agreement, therefore, considering the principles
     under Section 20 of the Specific Relief Act, 1963, the Trial Court
     denied specific performance and, in the alternative, directed the
     defendant no. 1 to repay the advance sale consideration of Rs.
     18,00,000/- (Eighteen Lakhs only) together with interest at the rate
     of 12% per annum to the plaintiff.
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6.    Feeling aggrieved by the decree for refund of money passed by
      the Trial Court, the defendant no. 1 preferred R.F.A. No. 25 of 2010
      in the High Court, and the another Ex. F.A. No. 6 of 2011 was
      preferred by a claimant who had set up a claim over the property
      of the defendant no. 1, which had been brought to sell in execution
      to satisfy the decree passed by the Trial Court. The claimant was
      the advocate who appeared for the defendant no. 1 in the execution
      proceedings, and his claim was dismissed. Aggrieved thereby, he
      preferred the said appeal i.e. Ex. F.A. 6 of 2011.
7.    Under the impugned judgement of the High Court, the appeal
      preferred by the defendant no. 1 has been allowed in part, modifying
      the decree and allowing the plaintiff to recover only a sum of Rs.
      3,00,000/- (Three Lakhs only) with 12% interest per annum from
      the date of suit till realisation from the defendant no. 1 and at the
      same time rejecting the claim petition of the claimant who was the
      appellant in Ex. F.A. No. 6 of 2011.
8.    In this Civil Appeal, we are concerned with the appeal preferred by
      the plaintiff who alone has approached this Court. The claimant in
      Ex. F.A. No. 6 of 2011 is not before us, therefore, the said part of
      the judgment has attained finality.
9.    It is also to notice that in so far as the declining of the specific relief
      of the agreement of sale, there is no further challenge from the
      plaintiff by preferring First Appeal before the High Court. Therefore,
      the same has become final and we are only concerned with the
      refund part of the relief allowed in favour of the plaintiff by the Trial
      Court and modified by the High Court.
10. We have heard the learned counsel for the parties and perused
    the material papers available on record of the Civil Appeal as also
    the copy of the agreement which was made part of the record in
    course of hearing.
11. Since the defendant no. 1 has not preferred any appeal before
    this Court challenging the findings of the First Appellate Court that
    the execution of the agreement is proved, we are not considering
    the said issue. The material issue to be decided in this appeal is
    whether the plaintiff has proved payment of Rs. 3,00,000/- (Three
    Lakhs only) initially and another sum of Rs. 15,00,000/- (Fifteen
    Lakhs only) totalling to Rs. 18,00,000/- (Eighteen Lakhs only) to the
[2024] 7 S.C.R.                                                          27

            R. Radhakrishna Prasad v. Swaminathan & Anr.


     defendant no. 1. Both the Courts below have found that payment
     of Rs. 3,00,000/- (Three Lakhs only) on the date of agreement has
     been duly proved in the evidence of PW-1 and PW-3. The bone of
     contention between the parties is the payment of additional advance
     consideration of Rs. 15,00,000/- (Fifteen Lakhs only) as evidenced
     by exhibit A-1(a) endorsement. On this aspect, the only evidence
     is that of the plaintiff himself without any corroboration from any
     other witness. The High Court has noted that PW-1 would state
     that stamp receipts had been collected whenever such subsequent
     payment were made but none of the stamp receipts were produced.
     We have perused the xerox copy of the document which was made
     available to us at the time of hearing. The document would show that
     the witness PW-2 had signed just below that endorsement and only
     thereafter, the signature of the defendant no. 1 is seen subscribed.
     Ordinarily, in any agreement witnessing payment of money, the
     party signs first and the witness(s) puts his signature(s) below that
     endorsement. However, in the case in hand, the witness has signed
     just below that endorsement and only thereafter, the defendant no.
     1 is seen subscribing to the endorsement. In the suit notice exhibit
     B-1 also, there is no mention of payment of a definite sum paid as
     advance sale consideration nor existence of any endorsement has
     been mentioned therein. The amount of Rs. 15,00,000/- (Fifteen Lakhs
     only) so received subsequent to exhibit A-1 agreement of sale, as
     stated in the second notice and also in the plaint and so reflected
     in exhibit A-1(a) endorsement is not stated in exhibit B-1 suit notice.
     There is no reason why payment of such substantial amount of Rs.
     15,00,000/- (Fifteen Lakhs only) would be missing in the suit notice.
     The only possible reason for this could be that the advocate who
     prepared the notice was not apprised of this fact. If such was the
     case, plaintiff’s statement in Court, without any further corroboration,
     is not believable and the High Court has rightly found that the case of
     the plaintiff as to the subsequent payment of Rs. 15,00,000/- (Fifteen
     Lakhs only) is not established by positive evidence.
12. We have considered the entire evidence to examine the correctness
    of the findings recorded by the High Court and we fail to persuade
    ourselves to reach to any other conclusion than the one reached
    by the High Court holding that the plaintiff has proved payment of
    advance sale consideration of Rs. 3,00,000/- (Three Lakhs only) at
    the time of execution of the agreement.
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13. In view of the foregoing, we find no substance in this appeal which
    deserves to be and is hereby dismissed.
14. The parties shall bear their own costs.

      Result of the case: Appeal dismissed.



      †
          Headnotes prepared by: Divya Pandey