IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE MR.JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 3RD MARCH 2010 / 12TH PHALGUNA 1931 AS.No. 285 of 1999(A) --------------------- OS.463/1995 of PRINCIPAL SUB COURT,ERNAKULAM .................... APPELLANT/PLAINTIFF: ----------------- RAVEENDRAN ALIAS RAVI, SON OF KRISHNA PILLAI, AGED 35, PANAKKADU, VENNALA KARA, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK. BY ADV. SRI.K.C.CHARLES SRI.K.C.CHARLES RESPONDENT/DEFENDANT: ------------------ MRS. P.K. RAJAMMA, W/O.NARAYANAN, AGED42, KIZHAKKEVELIKKAKATHU, PALARIVATTOM, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUIK. ADV. SRI.JAIJI ITTEN THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 03/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.2081/99 IN A.S.NO.285/99 ----------------- Dismissed 3/3/2010 Sd/- Harun-Ul-Rashid, Judge. True Copy HARUN-UL-RASHID,J. -------------------------- A.S.NO.285 OF 1999 -------------------------- DATED THIS THE 3RD DAY OF MARCH, 2010 JUDGMENT Plaintiff in O.S.No.463/95 on the file of the sub Court, Ernakulam is the appellant. The suit was filed for specific performance. The court below declined to grant a decree for specific performance. A decree was passed allowing the plaintiff to realise the advance amount of Rs.10,000/- with interest thereon. Aggrieved by the said judgment and decree to the extent it denies the relief for specific performance, the plaintiff has preferred this appeal. The parties hereinafter are referred to as the plaintiff and the defendant as arrayed in the suit. 2. Ext.A1 is the agreement for sale executed between the plaintiff and the defendant. The defendant owns the plaint schedule property. The extent of the plaint schedule property is 3 cents. Ext.A1 is dated 26/5/1994. The price agreed to be paid is -2- A.S.No.285/99 Rs.60,000/-. An amount of Rs.10,000/- was received on the date of Ext.A1 agreement as advance. The period fixed for performance of the contract is one year from the date of Ext.A1 agreement. These facts are not disputed. It is the plaintiff's case that he is ready and willing to pay the balance consideration, that in spite of her repeated demands, the defendant did not care to execute the sale deed as per the terms and conditions stipulated in Ext.A1 agreement. Ext.A2 is the Lawyer notice issued on 24/3/1995 requesting the defendant to fulful her part of the agreement and to execute the sale deed. Ext.A6 is the reply notice dated 7/4/ 1995. Exts.A2 and A4 are issued by the respective parties within the period fixed for execution of the agreement. In Ext.A6 reply the defendant informed the plaintiff that she is unable to execute the sale deed in favour of the plaintiff for the reasons stated in her notice dated 24/3/1995, which is marked as Ext.A4. In Ext.A4 the defendant informed the plaintiff that some items of properties including the disputed property were mortgaged to the bank for availing a loan in the -3- A.S.No.285/99 name of her husband, that the bank will not release the original documents until the entire amounts due to the bank are paid and therefore it has become impossible to sell the property. It is further informed by the defendant that she wanted the agreement to be cancelled and expressed her willingness to return the advance amount. Ext.A6 reply notice issued by the defendant would show that the defendant was not prepared to execute the sale deed as demanded by the plaintiff. Exts.A4 and A6 referred supra are notices sent by the defendant before the expiry of the period fixed by the parties for execution of the sale deed. Ext.A7 is the Lawyer notice dated 13/4/95 issued by the plaintiff to the defendant in which it is stated that the conduct of the defendant in not willing to execute the sale deed is unfair, that the reasons stated are untrue and that the plaintiff is ready and willing to perform of the terms and conditions of the agreement and requested the defendant to execute the sale deed as agreed. 3. In Ext.A4 notice and Ext.A6 reply the only reason stated is that since the property is mortgaged to the a bank, she is unable -4- A.S.No.285/99 to execute the sale deed. In the written statement a contrary stand is taken. It is contended that page No.2 and the last page of Ext.A1 agreement are fabricated, that the plaintiff replaced page No.2 and that the signature of one of the witnesses seen in the last page of the agreement is not genuine. Velayudhan Pillai is one of the witnesses to Ext.A1 agreement. It is also alleged that in the 2nd page of the agreement the period is stated as one year, in fact the agreed period of six months. The defendant admitted the execution of Ext.A1 agreement and the receipt of Rs.10,000/- as advance. The only contention raised before the court below is that two pages of Ext.A1 agreement are not genuine and are fabricated. 4. In Ext.A1 the parties agreed to execute the sale deed within the time prescribed therein. It is stated that there is no liability outstanding in the property and further stipulated that if for any reason it is found that any liability is outstanding, that will be cleared by the defendant before the execution of the sale deed. -5- A.S.No.285/99 5. The evidence in the case consists of the oral evidence of PW1, DWs.1 and 2 and Exts.A1 to A11(a). No documentary evidence was adduced by the defendant. The court below examined the issues in the light of the contentions raised in the written statement. The court below specifically examined whether the period fixed in Ext.A1agreement is one year or six months and whether the signature of the witness, Velayudhan Pillai is a fabircated one as alleged in the written statement. The court below, after examining the oral evidence of the parties and the documents produced by the plaintiff held that there is no reason to disbelieve the evidence of PW1 and that the period fixed for execution of the sale deed is one year. The court below held that the contention of the defendant that the period fixed for execution of the sale deed is six months is false. The further question examined by the court below is whether the signature of Velayudhan Pillai in the last page of Ext.A1 is a fabricated one. After discussing the evidence and the attendant circumstances, the court below held that the evidence of Velayudhan Pillai, who -6- A.S.No.285/99 was examined as DW2, shows that the signature in Ext.A1 is not fabricated as contended in the written statement. Thus, the contentions raised by the defendant in the suit are found against. The court below thereafter examined the terms of Ext.A1 agreement, Ext.A2 letter, Ext.A4 lawyer notice, Ext.A6 and Ext.A7 reply notices. The court below on the basis of the pleadings of the parties and the oral and documentary evidence on record, found that the plaintiff was ready to pay the balance sale consideration; but the defendant was not ready to execute the sale deed in his favour. Following the decision reported in De- Smet (India) Private Ltd. v. B.P. Industrial Corporlation (P) Ltd. (AIR 1980 Allahabad 253, the court below, after finding that the breach of agreement is committed by the defendant, decreed the suit holding that the plaintiff is entitled to get back the advance amount with interest at the rate of 12% per annum and the costs of the suit. The court below did not go into the question whether the plaintiff is entitled to a decree for specific performance. In fact, the relief sought for in the plaint is to pass a -7- A.S.No.285/99 decree for specific performance of the contract. 6. The learned counsel for the appellant brought to this Court's attention the decision of the Apex Court in Boothalinga Agencies v. V.T.C. Poriaswami Nadar (AIR 1969 SC 110). Paragraph 10 of the said decision reads as follows: “The doctrine of frustration of contract is really an aspect or part of the law of discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done and hence comes within the purview of Section 56 of the Indian contract Act. It should be noticed that Section 56 lays down a rule of positive law and does not leave the matter to be determined according to the intention of the parties.” 7. The Apex Court further held that the principle of this case applies to the Indian law and that Section 56 of the Indian Contract Act cannot apply to a case of “self-induced frustration.” In other words, the doctrine of frustration of contract cannot apply where the event which is alleged to have frustrated the contract arises from the act or election of a party. -8- A.S.No.285/99 8. The learned counsel also relied on the decision reported in Prakash Chandra v. Angadlal and others (AIR 1979 SC 1241). The Apex Court laid down the the principles governing the grant of a decree for specific performance as an agreement for sale. The Apex Court held that the ordinary rule is that specific performance should be granted. It ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief. 9. The facts I have discussed above would point out that the plaintiff, after paying the part of the sale consideration, has repeatedly demanded the defendant to execute the sale deed. The defendant in Ext.A4 lawyer notice and Ext.A6 reply notice replied that she is not prepared to execute the sale deed. In the written statement strange contention was raised stating that some of the pages of Ext.A1 are fabricated. Even before expiry of the period of time fixed for execution of the sale deed, the defendant has determined not to execute the sale deed. The reasons stated -9- A.S.No.285/99 in Exts.A4 and A6 are not the reasons which can be put forward for defeating the rights of the plaintiff. In the circumstances, the court below ought to have decreed the suit as prayed for in the plaint. The relief prayed for in the plaint is for a decree for specific performance of the contract. I do not find any reason to reject the claim of the plaintiff for a decree for specific performance. The court below wrongly followed a decision reported in De-Smet (India) Pvt. Ltd's case (AIR 1980 Allahabad 253). The court below did not even frame necessary issue as to whether the plaintiff is entitled to a decree for specific performance. The denial of decree for specific performance is unjust and unfair in the facts and circumstances of the case. In the result, the decree and judgment passed by the court below are modified. A decree for specific performance of Ext.A1 agreement is passed directing the defendant to execute sale 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 on the date of execution of the sale deed, after receiving -10- A.S.No.285/99 the balance sale consideration, failing which the plaintiff shall approach the court below for execution of the sale deed through court. The time for payment of the balance sale consideration is fixed as three months from today. Appeal is allowed. The plaintiff is entitled to costs through out. HA RUN-UL-RASHID, JUDGE. kcv. -11- A.S.No.285/99 HARUN-UL-RASHID,J. -------------------------- A.S.NO.285 OF 1999 -------------------------- JUDGMENT 3rd March, 2010