The enforceability of a sale agreement hinges on credible evidence of its execution and the parties' conduct, particularly in disputes over advance payments.

JUDGMENT

JOHNSON JOHN, J The appellants are the defendants in O.S. No. 159 of 2014 on the file of the Principal Sub Court, North Paravur and they are challenging the decree for return of advance sale consideration in a suit for specific performance of an agreement for sale.

2. As per the plaint averments, the plaintiffs entered into an agreement for purchasing the plaint schedule property owned by the defendants on 11.11.2011. The total extent of the plaint schedule property is 79.400 cents and the sale consideration was Rs.80,000 per cent. The time fixed for performance was one month and the defendants agreed to sell the property as a single plot or dividing it into various plots with means of access.

3. On the date of the agreement, the plaintiffs paid Rs.45,00,000/- as advance sale consideration. It is stated that the property was under attachment as per order in I.A. No. 492 of 2011 in O.S. No. 645 of 2011 of Sub Court, Ernakulam and the defendants approached the plaintiffs to sell the property subject to attachment.

4. The defendants agreed to transfer the property free of encumbrances, except the attachment. Subsequently, on the request of the defendants, the plaintiffs paid Rs. 27,00,000/- on 28.11.2011, and out of that, Rs.7,00,000/- was towards balance sale consideration and Rs.20,00,000/- was given as loan by the second plaintiff and her son, Sunny Elanjickal, to the defendants to lift the attachment over the property. The defendants made endorsement on the reverse of the first page of the agreement regarding the receipt of Rs.7,00,000/- towards balance sale consideration on 28.11.2011 and they also issued 2 cheques of Rs.10,00,000/- each as security for Rs.20,00,000/- received by them as loan.

5. The plaintiffs were ready and willing to pay the balance sale consideration to get the sale deed executed. But, even after receiving Rs.52,00,000/- as advance sale consideration, the defendants were not ready to perform their part of the agreement.

6. Subsequently, the defendants agreed to execute sale deed in respect of 8.25 cents out of the plaint schedule property in the name of the first plaintiff and to execute the sale deed in respect of the remaining portion of the plaint schedule property after lifting the attachment. Thereupon, the first plaintiff purchased stamp paper worth Rs.46,200/-

and the original sale deed was prepared on 03.01.2012 and the same was handed over to the defendants for execution and registration. The plaintiffs also paid Rs.6,60,000/- towards sale consideration for the said 8.25 cents to the defendants.

7. When the parties presented the sale deed in respect of 8.25 cents for registration, the Sub Registrar refused to register the deed on the ground that the property is under attachment by a court order. The defendants represented that they will be filing appeal against the refusal of the Sub Registrar to register the document. But, subsequently, the defendants turned unfriendly and evasive and hence, the plaintiffs issued lawyer’s notice dated 17.10.2014 demanding execution of the sale deed in respect of the plaint schedule property.

8. The defendants issued a reply notice with false allegations. The defendants are bound to execute the sale deed as per the terms in the agreement for sale. Hence, the suit.

9. In the written statement, the defendants contended that they have not executed any agreement for sale on 11.11.2011 or received any amount towards advance sale consideration. The first and second plaintiffs were conducting ‘Goodwill Chits’ for the last 20 years and the defendants were subscribers of several chits conducted by the plaintiffs and the plaintiffs obtained several undated cheques from the defendants as security for the bid amount in the chits. It is stated that during the first week of November, 2011, the defendants approached the first plaintiff for a loan of Rs.27,00,000/- and the plaintiff agreed to pay the amount on the security of undated signed cheques, blank signed stamp papers, pr