IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 6TH SEPTEMBER 2010 / 15TH BHADRA 1932 RFA.No. 731 of 2008() --------------------- OS.160/2006 of I ADDL.SUB COURT,ERNAKULAM .................... APPELLANT/ (DEFENDANT IN THE COURT BELOW): ----------------------------------------------------------------------------- DAMSON, S/O.KUMARAN, AGED 48 YEARS, THURUTHIPILLIL HOUSE, MARADU.P.O, ERNAKULAM. BY ADVS. SRI.N.RATHEESH, SMT.SUMA RATHEESH. RESPONDENT(S): (PLAINTIFF IN THE COURT BELOW): --------------------------------------------------------------------------------- PRADEEP K.GEORGE, S/O.GEORGE, AGED 25 YEARS, CARPENTER, KANDAYIKODATHU HOUSE, KALOOR, KOCHI-682 017. BY ADVS. SRI.SAJI.P.JOSEPH, SMT.MINI.G., SMT.JAYANTHY T.T. THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 06/09/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss Thottathil B.Radhakrishnan & P.Bhavadasan, JJ. = = = = = = = = = = = = = = = = = = = = = = = = R.F.A.No.731 of 2008-B = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 6th day of September, 2010. Judgment Thottathil B.Radhakrishnan, J. 1.The defendant in a suit for specific performance of an agreement for sale is the appellant. The suit stands decreed ordering specific performance. Pursuant to that, the court below has passed further orders giving effect to the impugned decree. Thereby, the documentation has been effected in favour of the plaintiff and he has also taken delivery of the property. 2.As noted in our order dated 6.8.2010, the only issue that survived for consideration is as to RFA731/08 -: 2 :- whether the time was of the essence of the contract for sale. Following that order, the learned counsel for the plaintiff has made available to us a copy of Ext.A1 dated 7.11.2005. We have perused the said document. It contains all necessary terms constituting a contract for sale. The total consideration for the sale is around Rs.3,50,000/-. An amount of Rs.50,000/- was received as advance. The period fixed for sale was three months from the date of agreement. It contains a clause which states that the vendor will be eligible to appropriate the consideration, if the vendee fails to perform. It also contains a condition that if the vendor fails to perform, the vendee can sue for specific performance. With these averments alone in the contract for sale, we are not satisfied that the time was ever treated as of the essence of the contract for sale. The defendant did not mount the box to tender evidence. The suit was filed on 14.3.2006 based on the cause of action of the execution of Ext.A1 agreement on 7.11.2005. The RFA731/08 -: 3 :- suit was preceded by lawyer's notice Ext.A2 dated 7.2.2006 to which Ext.A9 reply was given. With the materials on record, the court below, in our view, quite rightly ordered specific performance. 3.During the pendency of the suit before the court below, the defendant vendor had represented to the court undertaking not to alienate the property pending suit. However, in violation of that undertaking, he alienated the property to a third party. This conduct clearly discloses that there were no circumstances demonstrated by the defendant to dissuade the court from exercising its discretionary jurisdiction in favour of the vendee, the plaintiff. With the aforesaid, we do not find any ground to interfere with the impugned decree. The appeal is accordingly dismissed. Taking into consideration the fact that the decree has already been enforced and that we are yet to answer an FAO filed by the vendor against an order issued by RFA731/08 -: 4 :- the court below under Order XXXIX Rule 2A, we direct that the parties will suffer their respective costs in this appeal. Thottathil B.Radhakrishnan, Judge. P.Bhavadasan, Judge. Sha/0609