Objection to Admissibility of Uncertified Emails U/S 65B Evidence Act Cannot Be Raised at Appellate Stage If Not Taken at Trial: Kerala High Court - 2025-07-17

Kerala High Court Overturns Specific Performance Decree, Cites Plaintiff's Conduct and Practical Hurdles

Kochi: The Kerala High Court, in a significant judgment, has overturned a trial court's decree for specific performance of a land sale agreement, emphasizing that discretionary relief should not be granted where the plaintiff's conduct and unresolved practicalities burden the seller unfairly. The Division Bench of Justice Sathish Ninan and Justice P. Krishna Kumar also held that an objection to the admissibility of uncertified e-mails under Section 65B of the Evidence Act cannot be raised at the appellate stage if it was not taken during the trial.

Background of the Dispute

The case involved a property sale agreement from 2009 between a nephew, Anil (plaintiff), and his uncle, Subrahmanyan (defendant), who resides in the USA. The agreement for 1.20 acres of land initially set the price at ₹1,50,000 per cent. This was later reduced to ₹1,40,000 per cent. The plaintiff claimed a subsequent oral agreement further reduced the price to ₹1,20,000 per cent, a claim the defendant denied.

The Sub Court, Chavakkad, had accepted the plaintiff's version based on e-mail evidence and granted a decree for specific performance, fixing the price at the original ₹1,50,000 per cent. The defendant and a subsequent purchaser, Alukas Jewellery , challenged this decision in the High Court.

Key Arguments and Court's Findings

The appellants argued that the e-mails, lacking the mandatory certificate under Section 65B of the Evidence Act, were inadmissible. They also contended that the suit was flawed as the plaintiff did not seek a declaration against the alleged cancellation of the agreement.

The respondent-plaintiff maintained that the e-mails were admitted by consent during the trial and their genuineness was never disputed, making the objection on admissibility a belated one.

On Admissibility of E-mails (Section 65B)

The High Court decisively ruled on the admissibility of the e-mail communications. It held that the requirement of a certificate under Section 65B(4) is a matter of mode of proof . Citing the Supreme Court's ruling in Sonu Alias Amar v. State of Haryana , the bench noted that such an objection is a curable defect and must be raised at the trial stage.

"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 consent, it is not open for the defendant to challenge its admissibility at this stage," the Court stated.

Based on the admitted e-mails, the Court found evidence that the parties had indeed agreed to lower the price to ₹1,20,000 per cent.

On Exercise of Discretion for Specific Performance

Despite upholding the plaintiff's claim on the revised price, the Court declined to grant the discretionary relief of specific performance under Section 20 of the Specific Relief Act. The bench identified several factors that made granting the relief inequitable:

1. Unfair Burden on Seller: The evidence revealed that the parties faced a significant hurdle regarding the payment of capital gains tax (20%) by the seller. While an alternative to avoid this tax by obtaining an 'agricultural land' certificate was being explored, the plaintiff insisted on concluding the deal immediately, which would have forced the seller to bear a substantial tax liability. The Court noted, "The first defendant had brought down the sale consideration from ₹ 1,50,000/- per cent to ₹ 1,20,000/- per cent... Thereafter, the plaintiff wanted the first defendant to go ahead with the transaction burdening the first defendant with 20% capital gains tax."

2. Plaintiff's Conduct: The Court observed that the plaintiff himself appeared to have given up on the agreement by returning the property's title deeds to the defendant's representative. The judgment quoted the plaintiff's admission in cross-examination, "On September 30, the documents and deeds were returned as told by Ramakrishnan ," which "tells upon his willingness to go ahead with the agreement."

3. Uncertainty of Property Extent: There was ambiguity regarding the exact extent of the property (1.19 acres vs. 1.20 acres), which the plaintiff failed to clarify before the court.

Final Decision

Concluding that it was not a fit case for specific performance, the High Court set aside the trial court's order. It instead granted the alternate relief sought by the plaintiff: the return of the advance payment of ₹10 lakhs with interest.

The Court ordered the recovery of the advance with interest at 12% per annum from the date of payment to the date of suit, 9% till the date of the High Court's decree, and 6% thereafter until realization. A statutory charge on the property under Section 55(6)(b) of the Transfer of Property Act was also granted in favour of the plaintiff.