IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 23RD JANUARY 2009 / 3RD MAGHA 1930 AS.No. 369 of 1997() ---------------------------- OS.365/1994 of PRINCIPAL SUB COURT,PARAVUR .................... APPELLANT(S): DEFENDANT ------------------------ * NARAYANAN, SON OF VELAYUDHAN, AMBATTUPARAMBIL, KURUMASSERY, PARAKKADAVU VILLAGE, ALUVA TALUK ADDL. APPELLANTS 2 TO 10 IMPLEADED 2. MEENAKSHY NARAYANAN, W/O. LATE NARAYANAN, KAITHAPARAMBIL HOUSE, PUTHENVELI P.O., PARAKADAVU VILLAGE, ALUVA TALUK. 3. SARASWATHY NARAYANAN D/O. LATE NARAYANAN, DO. DO. DO. 4. VILASINI SASIDHARAN, D/O. LATE NARAYANAN, KAITHAALAPPIL HOUSE, MEERICODE (PO) MEERICODE. 5. VALSALA SUKUMARAN, D/O. LATE NARAYANAN, THUMPAYIL HOUSE, PARAPARAM. 6. GEETHA SURESH, D/O. LATE NARAYANAN, PUTHELI HOUSE, KOTTAYAM. 7. A.RAMAKRISHNAN, S/O. LATE NARAYANAN AMBALLAPARAMBIL HOUSE, KARUMASSERY P.O. 8. A.M.RAJAN, S/O. LATE NARAYANAN, DO. DO. 9. A.N.CHANDRAN, S/O. LATE NARAYANAN DO. DO. A.S. NO.369/1997 10. A.M. VELAYUDHAN, S/O. LATE NARAYANAN, AMBATTUPARAMBIL HOUSE, CHENGAL, KALADY P.O. LEGAL REPRESENTATIVES OF THE DECEASED IST APPELLANT ARE IMPLEADED AS ADDL. APPELLANTS 2 TO 10 AS PER THE ORDER DT. 27.8.08 ON IA. 2637/08. BY ADV. SRI.S.VIDYASAGAR SRI.DINESH R.SHENOY RESPONDENT(S): PLAINTIFF ------------------------ UNNIKRISHNAN, SON OF GANGADHARAN PILLAI, KRISHNA VILAS, ALANGAD, N.PARAVUR TALUK. ADV. SRI.A.VIJAYAKUMAR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 23/01/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.S. NO.369/1997 JUDGMENT Appellants and counsel absent. Counsel for respondents present. Appeal dismissed for default, without costs. 23.01.2009 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.S. TO JUDGE tss P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - A.S.No.369 OF 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of November, 2009 JUDGMENT The defeated defendant in a suit for specific performance of an agreement for sale is the appellant and he challenges the judgment and decree of the lower court decreeing the suit. 2. The case of the respondent/plaintiff as testified by him as PW1 and as stated in the plaint in brief is this : The defendant agreed to sell and the plaintiff agreed to purchase two items of properties belonging to defendant described in the plaint schedule at the rate of Rs. 1,800/- per cent and executed the agreement for sale - Ext.A1 on January 31, 1994 and an advance of Rs. 10,000/- was paid by the plaintiff to the defendant. The agreement was to measure the properties on or before April 30, 1994 and to execute the sale deed before that date. Meanwhile, the brother of the defendant claimed right over 6 ¾ cents in Sy. No.38/5 which is item 2 in plaint schedule and obtained a temporary injunction by filing I.A.No.776/1994 in the vacation court on 29-04-1994 restraining the A.S.No.369/1997 Page numbers defendant from selling the said item of property. Though the plaintiff requested the defendant to execute the sale deed in respect of item 1 of plaint schedule , defendant refused. To the notice Ext.A3 dated May 20, 1994, the defendant sent a reply raising false contentions. Plaintiff prayed for the specific performance of the agreement for sale - Ext.A1. In the alternative, he claimed refund of advance amount with interest at the rate of 18% per annum. 3. The appellant/defendant in his written statement and as DW1 admitted the execution of Ext.A1 agreement for sale, but contended that he was willing to execute the sale deed, that the suit filed by his brother has been dismissed, that it was the plaintiff who committed breach of agreement and that therefore the suit is liable to be dismissed. 4. PW1 was examined and Exts.A1 to A4 were marked on the side of the respondent/plaintiff. DW1 was examined and Exts.B1 to B3 were marked by the appellant/defendant before the lower court. The lower court on an appreciation of evidence found that the plaintiff is entitled for a decree of specific performance and decreed the suit with A.S.No.369/1997 Page numbers cost. The defendant has now come up in appeal challenging the said decree and judgment. 5. The following points arise for consideration : 1) Who has committed breach of agreement - Ext.A1 ? 2) Whether the decree and judgment of the lower court can be sustained ? Point No.1 6. Execution of the agreement-Ext.A1 in respect of the plaint schedule item 1 and 2 by the defendant and receipt of an advance of Rs. 10,000/- by the defendant are admitted. The case of the plaintiff as testified by him as PW1 was that he was ready and willing to perform his part of the agreement, that the brother of the defendant, Prabhakaran filed O.S.No.207/1994 before the vacation court and obtained an injunction against the transfer of item 2 of plaint schedule having an extent of 6 ¾ cents and that in spite of his request, the defendant did not execute the sale deed in respect of item 1 of plaint schedule. The plaintiff further contended that after the execution of A.S.No.369/1997 Page numbers Ext.A1, he purchased the adjacent 10 cents belonging to Chithambaram which has no road access and that if plaint schedule property is obtained, it will form a compact block having road access. The defendant as DW1 would say that he was prepared to execute the sale deed, that plaintiff did not pay the balance sale consideration , that after sending the reply notice Ext.A4 dated May 20, 1994, he was present in the Sub Registrar Office on April 28, 1994 and on April 29, 1994 , but the plaintiff did not turn up and that therefore he is entitled to forfeit the advance amount received. 7. Therefore the main question for consideration is who has committed breach of agreement Ext.A1. As per the terms of Ext.A1, the sale deed has to be executed on April 30, 1994. Admittedly at that time, brother of defendant Prbhakaran filed a suit before vacation court ( District Court , Ernakulam) and obtained an injunction in I.A.No.776/1994 restraining the defendant from alienating item 2 of plaint schedule having an extent of 6 ¾ cents. Ext.A2 is the copy of that order . The said injunction order was vacated as seen from Ext.B1, certified copy of the order in I.A.NO.1059/1994 in O.S.NO.207/94 of A.S.No.369/1997 Page numbers Munsiff Court, Aluva. 8. For the following reasons, I am inclined to confirm the finding of the lower court that the defendant has committed breach of agreement Ext.A1. In Ext.A3 notice issued to defendant, the plaintiff has expressed his willingness to purchase item 1 of plaint schedule which the defendant was not agreeable. As over item 2 of plaint schedule, there was dispute between the plaintiff and defendant, plaintiff cannot be compelled to purchase that property also. Further admittedly, the property was not got measured by defendant and he did not take the encumbrance certificate. Even at the time of trial before the lower court, PW1 expressed his willingness to purchase item 1 of plaint schedule. But defendant as DW1 would say that he is not willing to give item 1 leaving item 2 of plaint schedule. It is clear from the above that defendant has committed breach of agreement Ext.A1 while the plaintiff was always ready and willing to perform his part of the agreement. 9. The next question is whether the plaintiff is entitled to a decree for specific performance. The counsel for plaintiff argued that A.S.No.369/1997 Page numbers as the defendant has committed breach of agreement Ext.A1 and as he has purchased the adjacent property of Chithambaram believing that he will get plaint schedule properties, he is entitled to a decree for specific performance. Counsel for defendant on the other hand would argue that Ext.A1 is dated January 31, 1994 and after about 16 years it will not be proper to grant a decree for specific performance, that if it is found that defendant had committed breach of agreement Ext.A1, the defendant is prepared to repay the advance amount received and that after execution of Ext.A1 , there was substantial escalation in price for the land in that area and that if specific performance of agreement Ext.A1 is granted, it will give the plaintiff an unfair advantage over the defendant. 10. Counsel for the respondent/plaintiff cited the following decisions in support of his contentions. 1. Aniglase Yohannan v. Ramlatha ( 2005(4) KLT 280 (SC) 2. Indian Financial Association of Seventh Day Adventists v. Unnerikutty ( 2006(4) KLT 520(SC) 3. P.S.Ranakrishna Reddy v. Bhagyalakshmi and another A.S.No.369/1997 Page numbers ( AIR 2007 Supreme Court 1256) 4. Hassankutty v. P.P.Rawther ( 2000(1) KLT Short Notes Case No.8) 5. Yohannan v. Harikrishnan Nair ( 1991(2) KLT Short Notes Case No.69) 11. In Aniglase Yohannan v. Ramlatha (2005(4 )KLT 280 (SC), the Apex court has held that if the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of plaint, he should not be denied the relief. The Apex court has reiterated the above principle in Indian Financial Association of Seventh Day Adventists v. Unnerikutty (2006(4) KLT 520 (SC). The Apex court has in P.S.Ranakrishna Reddy v. Bhagyalakshmi and another (AIR 2007(SC 1256) and S.V.R. Mudaliar (dead) by LRs. and others v. Mrs. Rajabu F. Buhari (dead) by LRs. and others (AIR 1995 Supreme Court 1607) has categorically held that the relief of specific performance cannot be denied on the ground that price of immovable property is on the rise. A Single Bench of this court in Hassankutty v. P.P.Rawther (2000(1) KLT Short Notes Case No. 8) has held that plaintiff shall not A.S.No.369/1997 Page numbers be denied of a decree of specific performance on account of rise in price of land due to delay if he has approached the court without delay and the delay was caused by the defendant. 12. After considering the rival contentions of the parties, I feel that it is not proper to grant a decree for specific performance after a lapse of 16 years. Sub Section 2 of Section 20 of Specific Relief Act provides that granting of specific performance is purely discretionary power of court. The granting of the relief of specific performance is dependent on the provisions of Section 20 of Specific Relief Act as held by the Apex Court in Abdul Khaer S. v. Abdul Wajid (D) by LRs. and others (2008(4) KHC 266). In my view, if specific performance of agreement for sale Ext.A1 is granted, it will give the plaintiff an unfair advantage over the defendant as described in Clause ( c) of Sub Section 2 of Section 20 of Specific Relief Act. Further the advance amount is only Rs. 10,000/-. While the plaint schedule property will now fetch a very high price. Therefore decree for specific performance of the agreement for sale Ext.A1 granted by the lower court has to be set aside and decree for recovery of the advance amount paid has to be granted. A.S.No.369/1997 Page numbers There is another aspect. Agreement Ext.A1 has been broken by the defendant. Therefore plaintiff is entitled to compensation as provided under Sub Section (2) of Section 21 of Specific Relief Act. The plaintiff claimed interest at the rate of 18% per annum from the date of agreement which in my view would be an adequate compensation. In the result, appeal is allowed in part. The decree for specific performance granted by the lower court is set aside. Instead, the suit is decreed for recovery of Rs10,000/- from the defendant with interest at the rate of 18% per Annum from the date of agreement - Ext.A1 i.e. from January 31, 1994 till realisation. The respondent/plaintiff is entitled to costs throughout. One month's time is granted for payment. P.Q.BARKATH ALI JUDGE sv. A.S.No.369/1997 Page numbers