The court upheld the trial court's discretion in granting specific performance of a sale agreement, emphasizing the necessity of proving execution and the bona fide intention of the plaintiff.

JUDGMENT :

A. BADHARUDEEN, J.

1. Defendant in O.S. No. 38/2008 on the files of the Subordinate Judges Court, Ottapalam, who is aggrieved by the decree and judgment in the above case dated 9.12.2011, has filed this appeal under Section 96 r/w Order XLI Rule 1 of the Code of Civil Procedure, 1908. The sole respondent herein is the plaintiff.

2. Heard the learned counsel for the appellant/defendant and the respondent/plaintiff. Perused the case records including the pleadings and evidence.

3. I shall refer the parties in this appeal as ‘plaintiff’ and ‘defendant’ hereafter, for convenience.

4. The plaintiff’s case is that, the defendant agreed to sell the plaint schedule property for a total consideration of Rs.2,30,000/- (Rupees Two Lakh Thirty Thousand only) and accordingly, an agreement was executed in this regard on 3.10.2007. According to the plaintiff, Rs.1 Lakh was paid as advance sale consideration and it was agreed to execute the sale deed on or before 3.4.2008 on payment of the balance consideration of Rs.1,30,000/- (Rupees One Lakh Thirty Thousand only), by the plaintiff. According to the plaintiff, though the plaintiff has been ready and willing to execute the sale deed, the defendant denied the execution even after receipt of notice issued by the plaintiff demanding the performance of contract. Thus the suit.

5. Defendant resisted the suit contending that there was no agreement to sell the plaint schedule property and the defendant did not receive Rs.1 Lakh, as contended by the plaintiff. The case of the defendant is that the defendant received Rs.25,000/- (Rupees Twenty Five Thousand only) as loan from the plaintiff on 3.10.2007 and during this period, as insisted by the plaintiff, the defendant had handed over signed blank stamp paper as security. Thereafter, the said paper was misused and a sale agreement was created by the plaintiff. The defendant agreed to return Rs.25,000/- (Rupees Twenty Five Thousand only) along with interest.

6. Adverting to the above pleadings, the trial court recorded evidence, after framing necessary issues. PW-1 and PW-2 were examined and Exts.A1 to A3 were marked on the side of the plaintiff. DW-1, son of the defendant was examined on the side of the defendant. On appreciation of evidence and after hearing both sides, the trial court found that the plaintiff proved execution of Ext.A1 and the plaintiff was granted decree as under:

“In the result, the suit is decreed with costs and the defendant is hereby directed to execute the sale deed with respect to the plaint schedule property in favour of the plaintiff within a period of one month. She is also directed to hand over all the basic documents with respect to the plaint schedule property which are available with her. The plaintiff shall deposit the balance consideration of Rs.1,30,000/- within this time. If the defendant fails to execute the sale deed as directed, the plaintiff can resort to the process of the court for getting the sale deed executed.”

7. The learned counsel for the defendant argued that there was no agreement as Ext.A1 executed by the defendant, as alleged by the plaintiff and in fact, Ext.A1 was created in a stamp paper worth Rs.50/- and blank signed papers which were given by the defendant at the time when she borrowed Rs.25,000/- (Rupees Twenty Five Thousand only) from the plaintiff on 3.10.2007 in connection with the marriage of her daughter. According to the learned counsel for the defendant, the evidence available, in no way, would establish the execution of Ext.A1 and the court below went wrong in granting decree for specific performance of Ext.A1 and therefore, the same requires interference. Apart from the above contention, the learned counsel for the defendant argued that in the instant case, the trial court granted discretionary relief of specific performance and the reason stated by the trial court to grant the discretionary relief is relying on the evidence of PW-1 to the effect that he was a poor coolie and he th