IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 18TH JANUARY 2010 / 28TH POUSHA 1931 AS.No. 690 of 1997(E) --------------------- OS.882/1994 of I ADDL.SUB COURT,ERNAKULAM .................... APPELLANT/DEFENDANT: --------------------------------------- ABDUL SAMAD, 35/778, SMRITHI, CITIZENS LANE, NORTH JANATHA ROAD, PALARIVATTOM, COCHIN - 24. BY ADV. DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR SRI.M.R.JAYAPRASAD SRI.K.K.RAJEEV SMT.C.V.RAJALAKSHMI RESPONDENT/PLAINTIFF: ------------------------------------- P.T. ANTONY, CHIEF EXECUTIVE COCHIN TRADE LINKS, RESIDING AT HOUSING COMPLEX, SMARTOOR ROAD, KADAVANTHRA WEST, COCHIN - 20. BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE ADV. SRI.P.K.SURESH KUMAR SRI.V.J.MATHEW THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 16/12/2009, THE COURT ON 18/01/2010 DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO. 5008/97 IN A.S. NO. 690 OF 1997 DISMISSED SD/- K.M.JOSEPH, JUDGE SD/- M.L.JOSEPH FRANCIS, JUDGE 18.1.2010 /TRUE COPY/ K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - A.S. No. 690 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of January, 2010 JUDGMENT Joseph Francis, J. This appeal is filed by the defendant in O.S.No. 882 of 1994 on the file of the Sub Court, Ernakulam. The respondent herein is the plaintiff in that suit, which was filed for specific performance of an agreement for sale. 2. The plaintiff and defendant had entered into an agreement for sale of the plaint schedule property on 17.5.1994, whereby the defendant agreed to sell the plaint schedule property for Rs.2,61,000/- and the plaintiff consented to purchase the property for the said amount. The plaintiff had paid Rs.1,30,000/- as advance. The period originally fixed for the performance of the A.S. No. 690 of 1997 2 agreement was one month from the date of the execution of the agreement, which was later extended upto 17.7.1994 and again to 5.9.1994 and finally to 15.9.1994 as per endorsements made by the defendant on the reverse side of the agreement. The defendant had agreed to cause the measurement of the plaint schedule property on 6.9.1994 and to execute the sale deed on 7.9.1994. The plaintiff had arranged the balance of the sale consideration to be paid at the time of assignment by way of demand draft for Rs.1,05,000/ and the balance in ready cash. The defendant had failed to perform his part of the contract despite the issuance of the registered letter dt.1.9.1994 and the lawyer notice dt. 10.9.1994. The plaintiff was prepared to take assignment of the property paying the balance sale consideration. Therefore, the suit was filed for specific performance of the contract for sale and for a direction to the defendant to execute A.S. No. 690 of 1997 3 the assignment deed in respect of the plaint schedule property, receiving the balance sale consideration of Rs.1,31,000/- 3. The defendant filed written statement contending that the suit is not maintainable. The time fixed for the performance of the contract was extended at the instance of the plaintiff, on account of his financial difficulties. The plaintiff approached the defendant requesting extension of the time and it was extended till 15.9.1994. The plaintiff approached the defendant with a demand draft for Rs.1,05,000/- saying that he would pay the balance amount of Rs.26,000/- within two months. The defendant was not agreeable. He was ready and willing to execute the sale deed till 15.9.1994. One Sanal Kumar has instituted O.S.No. 806 of 1994 before the Sub Court, Ernakulam, against the defendant from alienating the pathway to the plaint schedule property. So the defendant was restrained from alienating the plaint schedule property, it was contended. A.S. No. 690 of 1997 4 4. In the Sub Court, PW1 and DW1 were examined and Exts.A1 to A12 and B1 to B3 were marked. The learned Sub Judge, on considering the evidence, found that the defendant failed to perform his part of the contract and the suit was decreed directing the defendant to execute the Assignment Deed in respect of the plaint schedule property in favour of the plaintiff and to put the plaintiff in possession of the plaint schedule property. Against that judgment and decree, the defendant filed this appeal. 5. Heard the learned counsel for the appellant and the learned counsel for the respondent. 6. The learned counsel for the appellant submitted that the plaintiff was not ready and willing to perform his part of the contract and there is no averment in the plaint to the effect that the plaintiff was always ready and willing to perform his part of the contract. The learned counsel for the appellant further A.S. No. 690 of 1997 5 submitted that the time fixed for making payment of the balance consideration was extended on several occasions at the instance of the plaintiff and this fact itself shows that the plaintiff was not ready and willing to perform his part of the contract. 7. The learned counsel for the appellant further contended that the total balance of sale consideration was Rs.1,31,000/- as on 15.9.1994, but the plaintiff was willing to pay only Rs.1,05,000/- (going by the draft) and he was not willing to pay the balance of Rs.26,000/- The learned counsel for the appellant further submitted that the appellant was willing to perform his part of the contract, but due to the injunction order in O.S.No. 806 of 1994 he could not execute the Sale Deed. The learned counsel for the appellant submitted that the court below ought not to have exercised the discretionary jurisdiction of specific performance in favour of persons like the plaintiff. Whereas the learned counsel for the respondent/plaintiff A.S. No. 690 of 1997 6 supported the judgment and decree of the court below. 8. Under Section 16(c) of the Specific Relief Act, it is mandatory that the plaintiff must aver in the plaint that he was ready and willing to perform his part of the contract. In the absence of such pleadings, the suit will fail. On considering the averments in the plaint in the present suit as a whole, it would clearly indicate that there is sufficient pleadings regarding the readiness and willingness of the plaintiff to fulfill his part of the obligation. Therefore, it cannot be said that the plaint is bad for want of sufficient pleadings. 9. There is no dispute that the plaint schedule property, having a total extent of 7.25 cents, belonged to the defendant as per Sale Deed No. 2973 of 1986 and 3007 of 1986. Exts.A8 and A9 are the photocopies. Ext.A1 is the agreement for sale dt. 17.5.1994 executed between the plaintiff and the defendant, by which the plaintiff agreed to purchase and the defendant agreed A.S. No. 690 of 1997 7 to sell the plaint schedule property for a total sale consideration of Rs.2,61,000/- and the plaintiff gave Rs.1,30,000/- as advance. The plaintiff deposited the balance of sale consideration of Rs.1,31,000/- in Court when the suit was once decreed ex parte. The original period fixed for execution of the sale deed as per Ext.A1 was one month from the date of execution of that agreement. Subsequently the date of execution of the sale deed was extended upto 15.9.1994 as per Ext.A1(a), A1(b) and A1(c) endorsements made on the back of Ext.A1 agreement by the defendant. 10. According to the plaintiff, the period was extended at the request of the defendant, whereas the defendant contended that the period was extended at the request of the plaintiff. The balance of sale consideration payable as per Ext.A1 is Rs.1,31,000/- As per Ext.A1(c) endorsement, the property has to be measured out on 6.9.1994 and the Sale Deed has to be A.S. No. 690 of 1997 8 executed on 7.9.1994. As per the stipulations contained in Ext.A1 agreement, the defendant was required to hand over the encumbrance certificate, basic tax receipt, possession certificate, certificate from G.C.D.A. etc. in respect of the plaint schedule property within 14 days before the expiry of the period stipulated in the agreement. In addition to that, the defendant had to measure out the plaint schedule property by the Village Officer and to get the plan. 11. When the defendant was examined as DW1, he admits in cross examination that he has not complied with those requirements. Therefore, it is clear that the defendant failed to perform his part of the contract for sale. DW1 deposed that if the plaintiff was prepared to pay the entire balance of sale consideration within the extended period, he was ready to execute the sale deed in favour of the plaintiff. DW1 further deposed that after getting Ext.A2, registered notice dt. 1.9.1994 A.S. No. 690 of 1997 9 from the plaintiff, he contacted the plaintiff through phone and told him that he was prepared to execute the sale deed if the plaintiff is prepared to pay the balance of sale consideration of Rs.1,31,000/- 12. DW1 deposed that the plaintiff came to his office with a Pay Order for Rs.1,05,000/- and sought two months time for payment of the balance of Rs.26,000/- Ext.A12 is the photocopy of the Pay Order dt.3.9.1994 of Union Bank of India for Rs.1,05,000/- taken by the plaintiff in the name of the defendant. Ext.A6 is the copy of the letter dt.22.9.1994 issued by the plaintiff to the Branch Manager of the Union Bank of India requesting him to cancel the Pay Order and to credit that amount again in his S.B Account No.5089, as the defendant failed to fulfill his commitment. Ext.A7 is the pass book in the name of the plaintiff with regard to the S.B. Account 5089 with the Union Bank of India. Ext.A7 shows that after taking the Pay Order for A.S. No. 690 of 1997 10 Rs.1,05,000/- on 3.9.1994 the balance amount in the account of the plaintiff was only Rs.5,385.85. 13. When the plaintiff was examined as PW1, he deposed that he was ready with the Pay Order for Rs.1,05,000/- and the balance of Rs.26,000/- in ready cash for payment of the balance sale consideration of Rs.1,31,000/- to the defendant. But the plaintiff has not given any reason for not taking the Pay Order for Rs.1,31,000/- Ext.A7 pass book will not show that the plaintiff had sufficient amount to pay the entire balance of sale consideration. It is no doubt pointed out that the pass book would show that there was Rs.1,50,000/- as on June, 1994. 14. Ext.A2 is the copy of the letter dt. 1.9.1994 issued by the plaintiff to the defendant, in which it is stated that the plaintiff has deposited the entire balance of sale consideration in Bank. In Ext.A2 it is stated that the defendant postponed the execution of the sale deed and due to the intervention of A.S. No. 690 of 1997 11 mediators the defendant agreed to execute the sale deed on 5.9.1994. In that letter nothing is stated about the non- compliance of any of the other stipulations contained in Ext.A1 by the defendant. 15. Ext.A4 is the copy of the lawyer notice dt.10.9.1994 issued at the instance of the plaintiff to the defendant, in which it is stated that the plaintiff was ready with bank demand draft for the balance amount. The documents produced on the side of the plaintiff will not show that the plaintiff was ready with bank draft for the balance of sale consideration of Rs.1,31,000/- or with the amount of Rs.26,000/- in ready cash in addition to the demand draft for Rs.1,05,000/- Therefore, the case of the defendant that the plaintiff was not ready with the entire balance of sale consideration appears to be true. Since the plaintiff and the defendant committed breach of Ext.A1 agreement for sale, A.S. No. 690 of 1997 12 we are of the view that the learned Sub Judge is not justified in decreeing the suit for specific performance. 16. It is needless to say that the relief of specific performance is a discretionary relief and merely because it is lawful automatically in all cases such relief need not be granted. However, in the light of the fact that Ext.A1 sale agreement was executed, it can be taken that the defendant had received an amount of Rs.1,30,000/- as advance. In the written statement the defendant admits that he is prepared to pay back that amount. It is true that specifically the alternative relief of refund of the amount had not been prayed for in the plaint. But, however, in the plaint relief (b) had been specified to grant such other reliefs as the Court may deed fit and proper to grant in the circumstances of the case, in the interests of justice. Therefore, we are of the view that it is only just and proper to allow the plaintiff to realise an amount of Rs.1,30,000/- together with interest at the rate of A.S. No. 690 of 1997 13 6% p.a. from the date of the suit till the date of realisation from the defendant with cost. 17. Accordingly this appeal is allowed in part. The judgment and decree in O.S.No. 882 of 1994 on the file of the Sub Court, Ernakulam granting specific performance for sale is set aside and the plaintiff is allowed to realise Rs.1,30,000/- together with interest at the rate of 6% p.a. from the date of the suit till the date of realisation from the defendant and his assets. The parties are directed to suffer their respective cost in this appeal. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm