Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE SATHISH NINAN THURSDAY, THE 18TH DAY OF JULY 2019 / 27TH ASHADHA, 1941 RFA.No.31 of 2010 AGAINST THE JUDGMENT AND DECREE IN OS 9/2006 of SUB COURT, KOCHI DATED 28-06-2008 ------------- APPELLANT/DEFENDANT NO.1: 1 JOB [DIED] AGED 57 YEARS S/O. CHACKO,RESIDING AT ATTIPETTI HOUSE, VADAKKE BAJANAMADOM, KUMBALANGHI,KOCHI-7 * ADDL. APPELLANTS 2 TO 4 IMPLEADED 2 LILLY, W/O LATE JOB, AGED 58 YEARS, RESIDING AT ATTIPETTY HOUSE, NORTH BHAJANAMADOM,KUMBALANGY, ERNAKULAM-682007 3 LIJI A.J., D/O.LATE JOB, AGED 40 YEARS, KOODARPPILLY HOUSE, AYYAMPILLICHIRA LANE, EROOR P.O., TRIPUNITHURA NADAM, ERNAKULAM 6822306. 4 JISHA JOB, D/O.LATE JOB, AGED 36 YEARS, ATTIPETTY HOUSE, YUVAJYOTHI ROAD, KUMBALANGHI NORTH, KUMBALANGHI, ERNAKULAM 682007. * [LEGAL REPRESENTATIVES OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDITIONAL A2 TO A4, VIDE ORDER DATED 18/07/19 IN IA 1/19]. :- 2 :- BY ADVS. SRI.K.M.VARGHESE, SRI.SHAHUL HAMEED MOOPPAN SRI.K.M.VARGHESE RESPONDENTS/PLAINTIFFS & DEFENDANT NO.2: 1 SMT.LEELA D/O. VARKEY CHERIAN, THAHAKKANAL VEETTIL,VARIKOLI, PUTHENCRUIZ. 2 JOSEPH S/O MATHAI, PULIKKIL HOUSE, KUMBALANGHI,KOCHI-7 3 THE ERNAKULAM DISTRICT CO-OPERATIVE BANK LTD., REPRESENTED BY ITS MANAGER. BY ADVS. SRI.B.KRISHNA MANI - R1, R2 SRI. P .V SURENDRANATH,SHEELA DEVI - R3 SMT.S.SIBHA - R1, R2 THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 17.07.2019, THE COURT ON 18.07.2019, DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
================== ================== Dated this the 18th day of July, 2019
JUDGMENT
Challenging a decree for specific performance, the first defendant is in appeal.
2. Ext.A1 agreement dated 25.07.2004 is sought to be specifically enforced. The agreement is entered into between the first plaintiff and the first defendant. The second plaintiff is the brother-in-law of the first plaintiff. He is a witness to Ext.A1. The 1st defendant is a relative of the second plaintiff. An extent of 5 cents of
property with the residential house situated thereon is agreed to be conveyed to the first plaintiff for a total sale consideration of
`2,25,000/-. On the date of Ext.A1, an amount of `1 lakh was paid towards advance sale consideration. The period fixed for performance was one year. Alleging failure on the part of the first defendant to perform the agreement, the suit is filed. :- 2 :-
3. First defendant contended that Ext.A1
agreement was entered into for the purpose of raising funds for redeeming the mortgage that was subsisting over the property in question and also for his daughter's marriage. The plaintiff was not ready and willing to perform the contract, which resulted in its non-performance.
4. The trial court granted a decree in favour of the plaintiff. Aggrieved, the first defendant is in appeal.
5. Heard Sri.Shahul Hameed, learned counsel for the appellant-first defendant and Sri.B.Krishnamani, learned counsel for the respondent-plaintiffs.
6. Section 16(c) of the Specific Relief Act, 1963, (as it stood prior to 2018 amendment) reads thus:- “16. Personal bars to relief.-Specific performance of a contract cannot be enforced in favour of a person -
(a) xxxxx
(b) xxxxx
(c) who fails to aver and prove that he has
performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which :- 3 :- has been prevented or waived by the defendant.”
7. The plaintiff has to prove his readiness and
willingness to perform the contract since the execution of Ext.A1 agreement. As noticed, the first defendant has challenged the readiness and willingness of the plaintiff. It would be worthwhile to refer to certain statements in paragraph 2 of the plaint and they are extracted hereunder:-
“..... The period of the agreement is fixed as one year, only because immediately after execution of the agreement, the 1st plaintiff has to leave India in connection with her employment in Gulf countries. ..... ..... The 1st plaintiff left India arranging funds for execution of the sale deed in favour of the 1 st plaintiff or his nominee with the 2nd plaintiff and his wife and also with her father. .....”
8. Apparently the said two statements are contradictory. Initially though the plaintiff say that one year period is fixed since the first :- 4 :-
plaintiff had to go abroad, in the succeeding portion it is stated that when the first plaintiff went abroad necessary funds for execution of the sale deed in favour of the first plaintiff or his nominee was arranged with the second plaintiff. This contradiction assumes further significance in view of the deposition of the first plaintiff as PW1. During his cross examination it is stated that, the one year period was fixed not on the request of the plaintiffs. It is further stated that the plaintiffs were prepared to get the sale deed executed at any time. This contradiction in between the plaint averments and also the deposition of PW1 has not been taken note of by the trial court.
9. The period fixed for performance expired on 24.07.2005. There is no material to show that the plaintiff had, within the period stipulated, made
any demands to the first defendant seeking execution of the sale deed. The first plaintiff as PW1 has admitted that no notice was issued to the first defendant calling upon performance of Ext.A1. :- 5 :-
It is further admitted in the cross-examination of PW1 that the first defendant was not intimated that the balance sale consideration is available, for performance of the contract. To a specific question put to PW1 that for discussing about the execution of the sale deed and payment of the balance sale consideration, the first defendant had approached the second plaintiff on 06.06.2005, there is no
denial. Suffice to notice that going by the evidence of PW1, all is not well explained regarding the readiness and willingness of the
plaintiffs to perform Ext.A1 agreement. A suit for specific performance is decided more on the readiness and willingness and conduct of the purchaser than on the conduct or default of the defendant-vendor. On the admissions of PW1 as noticed supra, I am unable to find continued readiness and willingness of the plaintiff since the execution of Ext.A1. The evidence of PW1 and the contradictions in the plaint averments has been totally ignored by the trial court.
10. That apart, as noticed first above, the :- 6 :- parties are near relatives. The property in question is the residential house wherein the first defendant resides with his family. PW1 in cross-
examination has admitted that this is the only residential building for the first defendant. While exercising the discretion under Section 20 of the Specific Relief Act, it assumes some significance.
11. Considering the entire circumstances as
noticed above, apart from finding that the plaintiff has failed to prove the continued readiness and willingness to perform Ext.A1 agreement, I deem it proper to exercise jurisdiction under Section 20 of the Specific Relief Act to decline a decree for specific
performance.
12. Alternate relief has been claimed in the plaint, seeking a decree for realisation of the advance sale consideration with interest. There is no evidence regarding any damages having resulted
to the first defendant consequent on the non- performance of the contract. The first defendant is bound to return the advance sale consideration :- 7 :- received with interest thereon. Considering the prevalent rate of interest, the claim for interest at the rate of 12%, as made by the plaintiff, cannot be said to be unreasonable. In the result, this appeal is allowed. The
decree and judgment of the trial court are set aside. A decree is passed allowing the plaintiffs to realise `1,06,000/- with interest at the rate of 12% per annum on the principal amount of `1 lakh from the date of suit till realisation, from the first defendant and as a charge over the plaint schedule property. No costs.
Sd/- SATHISH NINAN JUDGE kns/- //True Copy// P.S. to Judge :- 8 :- Court fee is to be realised in terms of Order XXXIII Rule 11 CPC, vide order dated 18.7.2019 in RFA 31/2010. Sd/- Deputy Registrar