IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 31ST MARCH 2010 / 10TH CHAITHRA 1932 WP(C).No. 10138 of 2010(O) --------------------------------------- [OS.NO.891/2007 OF SUB COURT,ERNAKULAM] .................... PETITIONER: ------------------- M/S. CAPVEST WEALTH MANAGEMENT SERVICES (P) LTD., 39/18/B, MAHAKAVI G. ROAD, KARIKKAMURI, ERNAKULAM - 682 011, REPRESENTED BY ITS DIRECTOR M.B. SREEKUMAR. BY ADV. MR. S.R.DAYANANDA PRABHU. RESPONDENT: ---------------------- MR.K.X. THOMMI, S/O. XAVIER, AGED 69 YEARS, KUTTEZHATH, VYTTILA DESOM, POONITHURA VILLAGE, ERNAKULAM. BY ADV. MR. P.B. ASOKAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.BHAVADASAN, J. ------------------------------------- WP(C) No.10138 of 2010-O ------------------------------------- Dated 31st March 2010 Judgment In this Writ Petition filed under Article 227 of the Constitution of India, the petitioner challenges Ext.P6 order passed by the Sub Court, Ernakulam, whereby the application filed by the petitioner for issuance of a commission was dismissed by the said Court. 2. The petitioner seems to have entered into an agreement for sale with the defendant, the terms of which were reduced into writing. The details of the agreements are given in the Petition. It is alleged that the defendant defaulted in performing his part of the agreement and the contract was breached. It is also pointed out that at the request of the defendant, the period of execution of the sale deed was extended from 01.06.2007 to 13.04.2007. Again, it was extended till 25.06.2007. It is alleged that the defendant had not executed a sale deed. It is admitted by WPC 10138/10 2 the petitioner that there was a measurement of the property, during the third week of July 2007 and the area measured was only 21.600 cents i.e., 9.600 cents in Survey No.504/03. 6 cents in Survey No.484 and 6 cents in Survey No.488/1. According to the petitioner, the respondent falsely represented that the measured portion of the property is water logged and therefore, it cannot be measured and sold. He would say that the measurement was done during rain. The further allegation is that the defendant did not furnish any of the documents such as the sketch prepared by the Village Officer, tax receipts, original title deeds etc. The petitioner claimed that he was ready and willing to perform his part of the agreement and it was due to the fault on the part of the defendant that the sale deed could not be executed. The entire sale consideration was ready with him for payment. 3. The petitioner wanted the properties to be measured and prayed for issuance of a commission. The Court below rejected the same holding that if the decree for WPC 10138/10 3 specific performance is granted, the petitioner can then file an application for measurement under the terms, if any agreed. 4. The learned counsel appearing for the petitioner pointed out that the order is clearly unsustainable both on facts and in law. The suit was one for specific performance and it is absolutely necessary that before a decree is passed, the property involved is properly identified. Even though there had been a measurement, it could not be accepted. The petitioner submitted that he was ready and willing to take the commission forthwith for measuring the property. 5. The learned counsel appearing for the respondent pointed out that the measurement of the property is necessary only after the decree is passed. Time is an essence of the contract. It is also pointed out that the property was measured and the attempt of the petitioner is to simply drag on the proceedings. It is further pointed out that on an earlier occasion, when the suit was listed for WPC 10138/10 4 trial, the petitioner moved an application for commission, which was dismissed. This clearly shows that the attempt of the petitioner is to drag on the proceedings under one pretext or the other. 6. Even going by the terms of the agreement, the property is to be measured. The petitioner has a case that even though the property was once measured, that was not properly done and that was done during a rainy season when the property was water logged. Therefore, it could not be said that the measurement is not necessary. Moreover, the finding of the Court below that if a decree for specific performance is granted, then the measurement can be made, is totally unsustainable. Identification and measurement of a property should be effected before a decree is passed. In other words, a decree can be granted only in respect of an identified property. The question as to who committed breach, is to be determined during trial. That has no bearing on the identity of the property. Going by the terms of the agreement, the price fixed is Rs.3 lakhs WPC 10138/10 5 per cent for the actual measured area. It is, therefore, very evident that even going by the agreement, the identity and extent of the property had to be established. It is in this context that the petition will have to be viewed. One fails to understand as to what objection the defendant can have in measuring the property so as to identify and ascertain the extent of property which is the subject matter of the suit. Objection is mainly taken regarding the merits of the case, which is to be determined at the time of trial. Going by the terms of the agreement, it is felt that the prayer made by the petitioner is only just and reasonable. In the result, this Petition is allowed. The impugned order is set aside and IA No.3390/05 is allowed. The lower Court shall issue a Commission with necessary directions. P.BHAVADASAN, JUDGE sta WPC 10138/10 6 WPC 10138/10 7