IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 15TH JUNE 2010 / 25TH JYAISTHA 1932 AS.No. 328 of 2001() ----------------------------- OS.174/1994 of SUB COURT, OTTAPPALAM .................... APPELLANT/PLAINTIFF: ------------------------------------ AMMINI, W/O.ULLATTUKUNNATH KUMARAN, RESIDING AT KARAKKAD AMSOM AND ERUPPA DESOM IN OTTAPPALAM TALUK. BY SRI.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE ADV. SRI.SANTHEEP ANKARATH RESPONDENT/DEFENDANT: ----------------------------------------- HARIGOVINDAN, S/O.KUNNAMBIL RUGMINI, RESIDING AT KARAKKAD AMSOM AND ERUPPE DESOM IN OTTAPALAM TALUK. BY ADV. SRI.E.R.VENKATESWARAN, SRI.R.SREEHARI. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 15/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 328 OF 2001 = = = = = = = = = = = = = = = Dated this the 15th day of June, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Ottapalam in O.S.174/94. The suit is one for specific performance of a contract with damages. It is the case of the plaintiff that the defendant and plaintiff had entered into an agreement under Ext.A1 whereby the defendant has agreed to sell the property to the plaintiff for a consideration of Rs.5,000/- per cent and towards the purchase price had paid an amount of Rs.2,000/-. It is also stated that as usual the seller has to satisfy the buyer regarding his title etc. and to register the document. A.S. 328 OF 2001 -2- It is contended by the plaintiff that the property was measured and there was an agreement between the parties that on 27.4.94 the document can be registered. But to the utter dismay of the plaintiff the defendant had demolished the stone construction around the well and thereby had caused damages of Rs.15,000/-. It is submitted that the plaintiff is always ready and willing to perform his part of his contract and hence the suit. 2. On the other hand the defendant would contend it is true that there was an agreement to sell and the defendant was always ready and willing to perform his part of his contract provided the plaintiff was prepared to pay the amount for the actual A.S. 328 OF 2001 -3- extent available as agreed to between the parties. The plaintiff did not respond to the same and therefore he is not prepared to perform his part of his contract. 3. On a consideration of the entire materials the court below granted a decree for realisation of the amount and damages but refused to grant a decree for specific performance of the contract. It is against that decision the plaintiff has come up in appeal with a prayer to grant a decree for specific performance. 4. Under S.20 of the Specific Relief Act the jurisdiction to decree specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful to do so. There is also a A.S. 328 OF 2001 -4- caution that the discretion of the Court is not to be exercised arbitrarily but should be on sound and reasonable judicial principles. The Hon'ble Supreme Court in the decision reported in Bal Krishna v. Bhagwan Das 2008 (12) SCC page 145 in paragraph 14 has laid down the principles to be followed. “It is also settled by various decisions of this Court that by virtue of S.20 of the Act, the relief for specific performance lies in the discretion of the Court and the Court is not bound to grant such relief merely because it is lawful to do so. The exercise of the discretion to order specific performance would require the Court to satisfy itself that the circumstances are such that it A.S. 328 OF 2001 -5- is equitable to grant decree for specific performance of the contract. While exercising the discretion, the Court would take into consideration the circumstances of the case, the conduct of the parties, and their respective interests under the contract. No specific performance of a contract, though it is not vitiated by fraud or mis-representation, can be granted if it would give an unfair advantage to the plaintiff and where the performance of the contract would involve some hardship on the defendant, which he did not foresee.” 5. The intention of the parties and the conduct of the parties are absolutely A.S. 328 OF 2001 -6- relevant in deciding the question whether a discretionary relief has to be exercised in favour of the plaintiff. A reading of Ext.A1 agreement would convincingly establish that the parties have entered into an agreement whereby it is decided to purchase the property available at the rate of Rs.5,000/- per cent and it is towards the same an advance amount of Rs.2,000/- is paid. It is also stated in the agreement that if the defendant is committing the breach of the contract the plaintiff is entitled to get refund of the advance amount paid plus another Rs.2,000/- as damages. Really speaking there is no terms in the agreement regarding the enforceability of the contract. But S.20(4) of the Specific Relief Act A.S. 328 OF 2001 -7- specifically states that just because there is no such clause specific performance need not be declined. So the main criteria is regarding the other aspects mentioned. The non-inclusion of a clause may be of some relevance in determining the intention of the parties. The plaintiff has never been put into possession of the property. According to the plaintiff the parties went to measure the property and found the extent and it was decided on 27.4.94 to have the document registered. But according to him the defendant immediately had committed breach by demolishing the stone construction around the well and had also lowered the land. So he had sent a lawyer notice for the same also with the prayer for specific performance of A.S. 328 OF 2001 -8- the contract. The defendant had denied the demolition of the wall as well as the other allegations and had categorically stated in the reply notice that if the plaintiff is prepared to give the value of the land available he has no objection in executing the document. This reply was sent on 2.5.94 and it is produced by the plaintiff himself. But we do not know for the reasons best known to the plaintiff, instead of getting ready for the execution of the document on payment of balance consideration he institutes a suit for specific performance on 30.5.94 with a prayer for damages. So it has to be stated that the plaintiff was not totally ready and willing to perform his part of his contract but he wanted some thing more in the form of A.S. 328 OF 2001 -9- damages. It has been spoken to by the defendant that the intention to sell the property was to raise funds to treat his son who was seriously ailing and that child died on 6.7.94(proved by Ext.B1) and thereafter the necessity had vanished to sell the property. When a property is sought to be sold for a specific purpose and there was an explicit declaration to the effect that the defendant was prepared to execute the document in favour of the plaintiff as stipulated in the agreement it was the imperative duty of the plaintiff to comply with the same and not to rush to the Court for specific performance of the contract. Since the document was not executed, the balance consideration was not paid and the A.S. 328 OF 2001 -10- purpose for which the property was agreed to be sold vanished on the death of the son on 6.7.94. So it has to be stated that the plaintiff by his conduct wanted to have unfair advantage and had by his conduct put the defendant into hardship and his further conduct that he was no more serious about getting the document executed within the stipulated time etc. will show that the judicial discretion cannot be used in favour of the plaintiff for granting a decree for specific performance. The trial court has considered those aspects and had refused to grant a decree for specific performance but has ordered refund of the advance amount with damages of Rs.2,000/- as per the statement in Ext.A1. Therefore I do not find any merit in A.S. 328 OF 2001 -11- this appeal and therefore the same is dismissed but under the circumstances without any order as to costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 328 OF 2001 -12- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 328 OF 2001 = = = = = = = = = = = J U D G M E N T 15th June, 2010.