IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 18TH FEBRUARY 2009 / 29TH MAGHA 1930 AS.No. 195 of 1995() -------------------- OS.32/1986 of SUB COURT, CHERTHALA .................... APPELLANT(S):2ND DEFENDANT IN THE ORIGINAL SUIT./1ST DEFENDANT IN THE O.S./3RD DEFENDANT IN THE O.S. --------------------------------------------------------------------------------- 1. KUTTAPPAN YAJAMAN, SOODHRAKALAMBU KADU, CHERTHALA VADAKKU VILLAGE VADAKKUM MURI. 2. BHARGAVI, W/O.KUTTAPPAN SOODHRAKALAMBU KADU CHERTHALA VADAKKU VILLAGE VADAKKUM MURI. 3. SARALA DEVI, SOODHRAKALAMBU KADU, CHERTHALA VADAKKU VILLAGE VADAKKUM MURI. BY ADV. SRI.P.S.NANDANAN,P.P.JNANASEKHARAN RESPONDENT(S): ---------------------- 1. K.MURALEEDHARAN S/O.KESAVAKURUP CHALANGATTU, KADAKKARAPPALY MURI VAYALAR MAKKU VILLAGE. (HUSBAND OF 1ST PLAINTIFF IMPLEADED AS ADDITIONAL 2ND PLAINTIFF IN THE O.S.) (DIED. LRS RECORDED. IT IS RECORDED THAT THE 1ST RESPONDENT DIED AND THAT HIS LEGAL REPRESENTATIVES ARE ALREADY IN THE PARTY ARRAY AS RESPONDENTS 2 AND 3 VIDE ORDER DATED 19.3.2008 ON MEMO DATED 12.3.2008, C.F. NO.1452/08. 2. SREEKASH, S/O.MURALEEDHARAN CHALANGATTU, KADAKKARAPPALLY MURI, VAYALAR MAKKU VILLAGE. 3. PARVATHY M.KURUP, D/O.VIJAYALAKSHMI CHALANGATTU, KADAKKARAPPALLI MURI, VAYALAR, MAKKU VILLAGE. (ADDITIONAL 3rd AND 4TH PLAINTIFFS IMPLEADED AFTER THE DEATH OF FIRST PLAINTIFF THEIR MOTHER) 4. K.S.JOHN KALAMBU KATTUCHIRAYIL CHERTHALA NORTH MURI. (ADDL.5TH DEFENDANT IN THE O.S.IMPLEADED AFTER THE DEATH OF 4TH DEFENDANT HIS MOTHER) BY ADV. SRI.C.C.THOMAS. BY ADV.SRI.M.G.KARTHIKEYAN FOR R1 TO R3 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 18/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== A.S. NO.195 OF 1995 =========================== Dated this the 18th day of February,2009 JUDGMENT Defendants 1 to 3 in O.S.32/1986 on the file of Sub Court, Cherthala are the appellants. The legal heirs of the original plaintiff who were impleaded as additional plaintiffs 2 to 4 are respondents 1 to 3. On the death of first respondent, the other respondents were recorded as his legal heirs. Fourth respondent is the fifth defendant. Suit was filed for specific performance of Ext.A4 agreement for sale. Item No.1 of the plaint schedule property is 20¼ cents in survey No.241/14-1 belonging to the appellants and item No.2 and 3 are 31¼ cents in survey No.138/7 and 138/8 belonging to the respondents. Under Ext.A5 agreement dated 16.4.1985 appellants and deceased fourth A.S.195/ 1995 2 defendant as first party and the deceased plaintiff as second party agreed to purchase the respective properties of the opposite party. The consideration for item No.1 of the plaint schedule property belonging to the appellants was fixed at Rs.85,000/- and deceased plaintiff paid Rs.12,000/- towards the sale consideration and appellants agreed to execute a sale deed transferring item No.1 of the plaint schedule property in favour of the deceased plaintiff on or before 15.10.1985. Deceased plaintiff on her part fixing the consideration of item No.2 and 3 of plaint schedule properties at Rs.45,000/- and receiving an advance of Rs.2000/- towards the sale consideration, agreed to execute a sale deed in favour of the appellants within the said period. On 9.5.1985 Rs.1300/- and on 28.5.1985 Rs.1000/- were received by first appellant on behalf of the other appellants towards the sale consideration. No sale deed was executed as agreed in Ext.A5 A.S.195/ 1995 3 before 15.10.1985. Ext.A6 agreement was executed on 24.1.1986 reiterating the original agreement and treating part of the consideration received subsequent to the execution of Ext.A5, including the interest of Rs.700/- for the entire amount. Thus Rs.15,500/- was treated as the advance amount received by appellants for the sale of item No.1 of the plaint schedule property for Rs.85,000/- to the deceased plaintiff. But no interest was calculated for the advance of Rs.2000/- originally received by the deceased plaintiff, out of the sale consideration payable by the appellants in respect of item No. 2 and 3 over the plaint schedule property. Under Ext.A6 both sides agreed to execute the sale deed on or before 20.2.1986. On 20.2.1986 Ext.A4 agreement was executed reiterating the recitals in Ext.A6 agreement and agreeing to execute the respective sale deeds on or before 24.3.1986. On the failure of the defendants to execute the sale deed when sought for under Ext.A8 A.S.195/ 1995 4 notice, as the appellants expressed their willingness not to execute the sale deed under Ext.A9 reply notice, suit for specific performance of Ext.A4 agreement was instituted. Only first appellant filed a written statement contending that Rs.85,000/- was fixed as the consideration for item No.1 of the property excluding the residential building and the deceased plaintiff had agreed to construct a building in item No.2 of the plaint schedule property, though it was not mentioned in Ext.A4 and without a residential building to reside, they cannot sell item No.1 of the plaint schedule properties. It was also contended that though the agreement provide for satisfaction of the title and extent of item 2 and 3 of the plaint schedule properties deceased plaintiff did not satisfy the appellants about the title and extent on measurement of the property and they are not prepared to purchase item No.2 and 3 of the plaint schedule properties A.S.195/ 1995 5 and deceased plaintiff is not entitled to a decree for specific performance of Ext.A4 agreement. It was contended that it was with mala fide intention deceased plaintiff instituted O.S.283/1986 restraining them from executing the sale deed in respect of the property to others and plaintiff is not entitled to a decree for specific performance of the agreement and if at all she is only entitled to get back the advance amount. Deceased plaintiff filed a replication contending that she has always been ready and willing to pay the balance consideration and obtain the sale deed and she was prepared to satisfy the title and extent of item 2 and 3 of the plaint schedule properties and therefore she is entitled to the decree for specific performance of the agreement. 2. Learned Sub Judge on the evidence of the deceased plaintiff as PW1 and second defendant as DW1 and Exts.A1 to A16 on the side of the plaintiffs, granted a decree for specific A.S.195/ 1995 6 performance of Ext.A4 agreement for sale in respect of item No.1 of the plaint schedule properties directing the plaintiff to deposit the balance consideration of Rs.43,000/- in addition to Rs.26,500/- which was deposited by the plaintiff at the time of institution of the suit and directing defendants to execute the sale deed. It is challenged in the appeal. 3. Learned counsel appearing for appellants and learned counsel appearing for respondents 1 to 3 were heard. 4. Learned counsel appearing for appellants pointed out that appellants belonged to the weaker section of the society and as is clear from the evidence, they were compelled to execute Ext.A4 to A6 agreements to raise funds for the marriage of the third appellant and as is clear from Ext.A4 agreement the property belonging to the appellants is a very valuable household property where they are residing, in a building constructed after A.S.195/ 1995 7 obtaining a loan from Harijan Welfare Department and item No.2 and 3 of the plaint schedule properties belonging to the deceased plaintiff is a wet land and they would not have agreed to voluntarily sell their property for a wet land when they are residing in that property. It is pointed out that though Exts.A4 to A6 agreements do not show the said condition, deceased plaintiff had agreed to construct a building for the residence of the appellants in the property to be sold by her to the appellants and it is for that sole reason they unwillingly had agreed to sell the property in favour of the deceased plaintiff and when deceased plaintiff was not prepared for the same, a decree for specific performance of the agreement for sale cannot be granted. Learned counsel argued that as is seen from Exts.A4 to A6, plaintiff was in a dominant position having sufficient wealth and employment and appellants who belong to the downtrodden society were compelled to execute A.S.195/ 1995 8 agreements agreeing to sell the property and when it is not proved that the extent available with the plaintiff is not the one seen in Ext.A4 agreement, they cannot be compelled to purchase the said properties or to sell their properties to the plaintiff and if at all there could be a decree for return of the advance amount and to that extent the decree is to be modified. 5. Learned counsel appearing for respondents argued that appellants are not entitled to put up a condition, which is not there in Ext.A4 and the trial court rightly rejected the case. It is also argued that when a plaintiff establish that she has always been ready and willing to perform her part of the contract and in fact deposited the balance sale consideration along with the plaint learned Sub Judge was justified in granting a decree for specific performance of the agreement for sale and there is no reason to interfere with the decree. 6. When the appeal was heard, finding that it A.S.195/ 1995 9 is a matter which could have been amicably settled between the parties, parties were directed to try for a settlement. Though case was referred to the permanent Lok Adalat, it could not be settled therein. Learned counsel appearing for appellants submitted that appellants expressed their willingness to compensate respondents to a reasonable extent and still respondents demanded inexorbitant amount and therefore the matter could not be settled. Learned counsel appearing for respondents also agreed that appellants had offered a reasonable sum. But respondents are prepared to pay that amount to the appellants. In such circumstance there is no possibility of a settlement. Learned counsel appearing for appellants submitted that eventhough the advance amount received under Ext.A4 agreement is only Rs.15,500/-, which includes Rs.700/- which was computed as the interest calculated at the time of executing Ext.A6 agreement, considering the loss A.S.195/ 1995 10 if any sustained by the respondents, appellants are prepared to pay Rs.3,00,000/- as damages inclusive of the advance amount paid and its interest and damages and therefore the decree for specific performance of the agreement for sale may be modified. Learned counsel appearing for respondents submitted that when respondents are entitled to the decree for specific performance of Ext.A4 agreement, compensation will not suffice. 7. A decree for specific performance is a discretionary relief. The court is not bound to grant such relief merely because it is lawful to do so. But the discretion of the court cannot be exercised arbitrarily. The discretion must be sound and reasonable, guided by judicial principles as provided under section 20 of Specific Relief Act,1963. The question is whether on the facts and circumstance of the case, learned Sub Judge was justified in granting a decree for specific performance of Ext.A4 agreement and whether a A.S.195/ 1995 11 decree for return of the advance amount with interest and compensation would suffice. 8. Ext.A4 agreement does not show that it is a continuation of Ext.A5 and A6 agreements. It is clear that Ext.A4 agreement was executed pursuant to Ext.A5 and A6 agreements. Under Ext.A6 agreement, even the interest for the advance amount paid by the plaintiff to the defendants was estimated and treated as part of the advance amount paid by the plaintiff towards the sale consideration while executing Ext.A6 agreement. At the same time, though Rs.2000/- was received by the plaintiff from the defendants towards the sale consideration of two items of the properties agreed to be sold by the plaintiff to the appellants its interest was not estimated and added as advance in Ext.A6. Though learned counsel appearing for respondents argued that the reason for not calculating interest payable for the advance of Rs.2000/- is clear from the evidence of DW1, Ext.A6 A.S.195/ 1995 12 does not show that interest on Rs.2000/- was not calculated because the sale deed within the time could not be executed because of the fault of the appellants. Similarly Ext.A6 does not show that that agreement had to be executed because of the fault of appellants. In such circumstance, the fact that while executing Ext.A4 agreement interest payable for the advance amount originally received from the plaintiff by appellants was calculated as part of the consideration payable and the interest on the advance paid by the appellants to the plaintiff was not treated as part of the consideration establish that plaintiff was in a dominant position while executing the agreements. It strengthens the submission of the appellants that plaintiff was in an asserting position. While considering the question whether discretion is to be exercised in favour of the plaintiff or not, this aspect has to be appreciated. Moreover, evidence establish that appellants who belonged to A.S.195/ 1995 13 the weaker section of the Society had to execute Ext.A4 agreement agreeing to sell their residential property for raising money for the marriage of one among them. The opportunity was made use of by the plaintiff. Under the agreement the residential property of the appellants is to be sold to the plaintiff and the properties of the plaintiff is to be purchased by the appellants. If specific performance of the agreement is to be enforced, the result will be that the appellants would be thrown to the street with no shelter. In such circumstance, considering the entire aspects, it is not in the interest of justice to exercise the discretion in favour of the plaintiff and direct execution of sale deed as provided under Ext.A4. Instead interest of justice will be met if plaintiff is given a decree for return of the advance amount with the loss sustained. True, if the plaintiff could purchase the property at the time mentioned in the agreement, the value of the A.S.195/ 1995 14 property would have increased many a fold. If without entering into the agreement she had entered into another agreement or purchase the property she could have been in possession of a valuable property. When all these aspects are taken into consideration the suggestion made by the appellants that Rs.3,00,000/- be treated as sufficient compensation inclusive of the part of the consideration received as advance, is just and proper. Therefore the decree granted by the learned Sub Judge in O.S.32/1986 is set aside and instead a decree is to be passed for payment of Rs.3,00,000/- to the plaintiffs with interest from today. The appeal is allowed. The judgment in O.S.32/1986 on the file of Sub Court, Cherthala is set aside. A decree is passed as follows:- The suit is decreed. The defendants are directed to pay Rs.3,00,000/- to the plaintiffs as the advance amount received and also the compensation payable A.S.195/ 1995 15 under Ext.A4 agreement. It is to be paid within two months. Item No.1 of the property will be a charge for the said amount. Plaintiffs are entitled to withdraw the amount deposited before the trial court. No cost. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006