IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 3RD JUNE 2010 / 13TH JYAISTHA 1932 AS.No. 316 of 2000(S) -------------------------------- OS.893/1995 of I ADDL.SUB COURT, THRISSUR .................... APPELLANT(S): PLAINTIFF ----------------------- CHANDRAN, S/O. KUMMATH VELAYUDHAN, KANIPAYOOR VILLAGE AND DESOM, P.O.KANIPAYOOR, TALAPPILLY TALUK, TRICHUR DISTRICT. BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN RESPONDENT(S): DEFENDANT -------------------------- C.G.HARIDAS, S/O. CHERUPARAMBIL GOVINDAN, KANIPAYOOR VILLAGE AND DESOM, P.O.KANIPAYOOR, TALAPPILLY TALUK, TRICHUR DISTRICT. NOW RESIDING AT NO.11.M.G.R. PURM, THERUVARKKADU P.O., ATHIPED ROAD, TAMIL NADU, 600 058. R1 BY ADV. SRI.AVM.SALAHUDIN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 03/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.2559/2000 IN AS. NO.316/2000 DISMISSED 03/06/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 316 OF 2000 = = = = = = = = = = = = = = = Dated this the 3rd 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, Thrissur in O.S.893/95. The suit is one for specific performance of a contract and in the alternative one for recovery of the advance amount with damages. The trial judge did not find in favour for a decree for specific performance but granted a decree for the return of the amount with interest. It is against that decision the plaintiff has come up in appeal. 2. Heard the learned counsel for the appellant as well as the respondent. Ext.A1 and B1 are the agreements relied upon by the party. It has to be remembered that Ext.B1 is produced by the defendant which would indicate and A.S. 316 OF 2000 -2- conclusively prove regarding the execution of a karar between the parties. It is the case of the plaintiff that 14 cents of land belonging to the defendant was agreed to be sold for a consideration at the rate of Rs.3,000/- per cent and towards advance Rs.15,000/- was received and the stipulation was to execute a registered assignment deed on or before 10.5.95, i.e. within six months from the date of execution of the agreement. It is also stated in the agreement that the time is the essence of the contract. 3. According to the plaintiff in spite of request the defendant did not execute the document and therefore he had issued a notice whereby he has requested the defendant to execute the assignment deed as per Ext.A1. It is true that the said notice is send in the A.S. 316 OF 2000 -3- month of June, i.e. almost 25 days after the period of expiry of the agreement, i.e. 10.5.95. The law enables a person to sue for specific performance within a period of one year from the date of expiry of the agreement. Therefore there is nothing illegal in the short delay in sending the notice. 4. Now the attempted defence is that the defendant approached the plaintiff for some loan in order to treat his wife and the plaintiff insisted for an agreement for sale and therefore he had entered into such a document and really Ext.A1/B1 only evidences loan transaction and not an agreement to sell. Now it is this point that requires consideration. 5. So far as the execution of the agreement is concerned since the copy of Ext.A1 is produced by the defendant as Ext.B1 there cannot A.S. 316 OF 2000 -4- be any dispute regarding the same. Regarding the contents of the body of the document there is no change in Ext.A1 and B1 and the only change we find is the name of the witnesses and their signatures are not therein in Ext.A1 but it is therein in Ext.B1. Therefore execution of Ext.A1 is admitted. 6. If the intention of the parties is covered by the terms and conditions of Ext.A1 the document is only an agreement to sell and it never evidences a loan transaction. It has to be remembered that a notice was issued, a copy of which is produced as Ext.A2 before the Court on 8.6.95. In that document what the plaintiff wanted was to execute an assignment deed in his favour. To this the defendant in his personal capacity sent a reply on 22.6.95 which is marked as Ext.A3. A reading of Ext.A3 would clearly A.S. 316 OF 2000 -5- establish that the parties have understood the agreement as one for sale and not evidencing a loan transaction. The opening sentence in Ext.A3 would show that they had entered into a karar with respect to the sale of immovable property. But the defendant submits that he had lost his wife and she is buried there and the children are claiming kudikidappu right over that property and so he will not be in a position to sell the entire property but only the property excluding the kudikidappu claimed by the sons. So it is explicitly clear that the defendant had understood and had entered into Ext.A1/B1 with the definite understanding that the agreement is for the sale of the immovable property and not for a loan transaction. 7. PW1 and PW2 had been examined. Admittedly PW2 is an independent witness and he A.S. 316 OF 2000 -6- is a witness to Ext.B1. He had deposed before Court that he knows both the plaintiff and defendant and that an agreement was entered into and the amount was paid. Though he has been cross-examined nothing is forthcoming to discredit the evidence regarding the intention behind the execution of Ext.A1. An independent evidence available on the side of the defendant is DW2 who is one Girish and he is none other than a close relative of the defendant. He would depose that the document was executed evidencing advancement of Rs.15,000/-. So when Ext.A1/B1 clearly recites about the intention to sell the property and when the defendant himself by virtue of Ext.A3 admits that it is a karar entered into for the purpose of the sale of the property and even at that stage was prepared to transfer the property other than the property A.S. 316 OF 2000 -7- which is to be given to the sons, one need not go to any extraneous circumstances or evidence to find out the intention of the parties. The learned Subordinate Judge, I do not know, how he arrived at a decision that the evidence given by DW1 that is for the purpose of treating the wife he had taken the loan does not appear to be correct especially in the back drop of the clear categoric admission by the defendant in Ext.A3 which is made voluntarily of his own accord and he himself had written that letter. So it is very clear that Ext.A1/B1 is a sale agreement. 8. Now the learned counsel for the defendant would contend before me that the time for executing the document had expired by 10.5.95 and therefore the issuance of a notice on 8.6.95 will militate against the plaintiff. It is a well settled principle that time cannot A.S. 316 OF 2000 -8- be considered always as an essence of the contract unless there are peculiar circumstances which results in damages to the parties. Therefore the mere delay in sending the notice by few days does not show that the case spoken to by the plaintiff is false. 9. Now, lastly, regarding the discretionary jurisdiction to be exercised by the Court. U/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; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal. It has always to be borne in mind that this judicial discretion has to be exercised judicially and the rule is clearly to A.S. 316 OF 2000 -9- grant a relief and the exception is to use the discretion in not awarding the decree for specific performance. Now when the plaintiff has succeeded in proving that there was an agreement to sell and that he was ready and willing to perform his part of his contract necessarily he is entitled to get a decree for specific performance. The case spoken to by the defendant in the written statement that it was only a loan transaction cannot be accepted in view of my discussions in the previous paragraphs. But still I feel some indulgence has to be shown to the defendant in this case for the following reasons. The man has lost his wife and she had been buried in this compound. When the wife/mother is buried in a residential compound, the members of the family would have attachment to that property. Therefore I feel A.S. 316 OF 2000 -10- justice can be met by reducing the extent of the sale property to one of nine cents instead of 14 cents. The 5 cents in and around the place of burial as far as possible be not included and the sale to be effected and I feel that a Commission be taken out to measure out the area so that inconvenience is not caused to the parties whereby 9 cents can be assigned in favour of the plaintiff and the remaining 5 cents can be kept in tact by the defendants including the place where the wife of the defendant is buried. When there is a reduction of extent necessarily purchase price also has to go down and for the nine cents as per the rate of consideration it will be Rs.27,000/- out of which Rs.15,000/- is already paid and therefore the plaintiff will be liable to pay only Rs.12,000/- as his balance sale consideration A.S. 316 OF 2000 -11- for the 9 cents. Therefore the appeal is disposed of as follows. (1) The judgment and decree of the trial court are set aside. (2) The defendant is given a decree for specific performance of 9 cents of property and the defendant is directed to assign 9 cents of property on deposit of the balance consideration of Rs.12,000/-. (3) Further steps when taken for the purpose of getting assignment of property either on the execution side or u/s 28 of the Specific Relief Act, a Commissioner be appointed to demarcate the nine cents of property as stated in the body of the judgment so that future difficulties are avoided and the plots can be separated. Thereafter, the Court below in case of non- compliance by the defendant to execute the A.S. 316 OF 2000 -12- document in favour of the plaintiff, can execute the document and thereby conferring title on the plaintiff. Parties are directed to bear their respective costs. The Appeal is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/- A.S. 316 OF 2000 -13- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No.316 OF 2000 = = = = = = = = = = = J U D G M E N T 3rd June, 2010.