IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 26TH OCTOBER 2009 / 4TH KARTHIKA 1931 RFA.No. 11 of 2004() -------------------- OS.206/1994 of SUB COURT,KOTTARAKKARA .................... APPELLANT/PLAINTIFF: ---------------------------------------- KRISHNASWAMY PILLAI CHUDALAMUTHU PILLAI ALIAS K.C. MUTHU, G.R. BHAVAN, SASTHAMKONAM PUNALUR, PATHANAPURAM. BY ADV. SRI.T.R.RAMAN PILLAI (SR) SRI. T. R. RAMACHANDRAN NAIR SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S): --------------- 1. VELAYUDHAN VAIDYAN SREEDHARA PANICKER, PENGOTTU VEEDU, PUNALUR, PATHANAPURAM. - DIED 2. MUHAMMED KUNJU ABDUL WAHAB, SAYED COTTAGE, BHARANICAUV, PUNALUR, PATHANAPURAM. ADDITIONAL RESPONDENTS 3. JAGADAMMA, WIFE OF DECEASED SREEDHARA PANICKER, RESIDING AT PENGOTTU VEEDU, NEDUNKAYAM, PATHANAPURAM, PUNALUR. 4. PRADEEP, SON OF -DO- ADDL. RESPONDENTS 3 & 4 WERE IMPLEADED AS PER ORDER ON I.A. NO. 929/2005 DATED 26.10.2009. BY ADV. SRI.B.KRISHNA MANI FOR R2 SRI.RAHUL VENUGOPAL FOR R2 SRI.PEARLY JOSE FOR R1 SRI.S.SREEKUMAR FOR ADDL.R3 & 4 THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 26/10/2009, THE COURT ON SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - R.F.A. NO: 11 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 26th Day of October, 2009. JUDGMENT K. M. Joseph J., The plaintiff in a suit filed for specific performance of an agreement for sale, is the appellant. 2. Briefly put the case of the appellant is as follows: The plaint schedule property is described as having an extent of 3.137 cents in Sy.No. 480/3 of Punalur Village belongs to 1st defendant. The building having three rooms situated on the south- eastern portion of that 16 cents, its site and the pathway leading to it from the road on the southern side of that 16 cents constitute the plaint property. In July 1984, the plaintiff leased out the western two rooms of the building on a monthly rent of Rs.400/- per mensem and also paid a sum of Rs.6000/- to the 1st defendant as advance and he is carrying on business as printer in the schedule room. R. F.A. NO: 11 OF 2004 :2: 3. On 11.11.93 an agreement was executed as per which 1st defendant covenanted to sell the plaint property to the plaintiff for a price of Rs.2,00,000/-. The plaintiff paid a sum of Rs.50,000/- to the 1st defendant as part payment of the price. The period of agreement was six months from the date of agreement for payment of the balance price and for executing the sale deed. the 1st Defendant covenanted to survey the plaint property in the presence of the plaintiff before executing the sale deed. The survey was necessary for ascertaining the actual extent of the land to be conveyed and also undertook the discharge to the encumbrance if any before completing the conveyance and further agreed to evict the tenant in occupation of the eastern most 10cm before executing the sale deed. In order to put the plaintiff in possession of that portion he also undertook to hand over the title deeds and tax receipt in respect of the plaint property before executing the sale deed. The performance of the said obligation by 1st defendant was a R. F.A. NO: 11 OF 2004 :3: condition precedent for completing the conveyance. The period referred to in the deed of agreement was the period of estimated to be necessary for 1st defendant to perform those obligation. The plaintiff was always ready and willing to perform those obligations before the expiry of the period referred to in the agreement. On 8.4.94 1st defendant sent a notice to the plaintiff stating that he proposed to sell the plaint property for raising funds for investing in the business being conducted by his son Pradeep and also extending the period for executing the sale deed upto 12.8.94. On 10.8.1994 the plaintiff sent reply expressing his willingness to pay the price before the expiry of the period. The plaintiff was ready and willing to complete the conveyance immediately. On 22.9.94 the plaintiff sent notice to defendant demanding the 1st defendant to execute the sale deed on 5.10.94. On 3.10.94 the 1st defendant sent a reply stating that there was no subsisting agreement. 4. Along with the suit, the plaintiff filed I.A. No:1305/94 R. F.A. NO: 11 OF 2004 :4: from issuing a temporary injunction restraining 1st defendant from alienating the plaint property and by order dated 18.10.94 temporary injunction was granted and in violation of the Order, 1st defendant executed in favour of 2nd defendant a sale deed on 23.3.95 violating the injunction order to defeat the right of the plaintiff. The plaint was amended for recovery of possession of eastern room of plaint building from the defendants with mesne profits at the rate of Rs.300/- per mensem. The cause of action for the suit has risen at Punalur village within the jurisdiction of this court. Hence the suit. 5. The first defendant filed written statement. He denied the case that the appellant has paid Rs.6,000/- as advance. It is further stated that the appellant has failed to perform his part of the contract. The appellant did not pay Rs.5,000/- to the respondents. An additional written statement was filed contending that the first respondent and his son were in urgent need of money to complete R. F.A. NO: 11 OF 2004 :5: the construction of the workshop of the first defendant's son and the appellant could not raise any advance to get the sale deed executed and they entered into an agreement for sale with respect to 16 cents on 14.9.94. The said agreement was executed after excluding the portion in which the appellant is running his press. 6. The Trial court considered the evidence of PW1, PW2 and DW1 and Exts.A1 to A11, C1 to C3. The Trial Court found the case of appellant that he has paid a sum of Rs.5,000/- cannot be accepted. The Trial court did not find the testimony of PW2 as credible. 7. The Trial Court further found that the first respondent has issued Ext. A2 notice on 1.8.94 calling upon the appellant to perform the contract on or before 12.8.94. The period of contract was six months from 11.11.93. The said period expired on 10.4.94. Ext.A3 is reply notice issued by the appellant. He set up a case that there was an agreement to extend the period for one year. It is R. F.A. NO: 11 OF 2004 :6: further stated in Ext.A3 that the appellant is ready to perform the contract within the agreed period. The Trial court found, on perusal of evidence, that the appellant was not ready to perform his obligations. However, the Trial court decreed the suit directing to return Rs.50,000/-, which was paid as per Ext.A1 agreement for sale by the appellant with 6% interest. 8. We heard the learned counsel for the appellant and the learned counsel for the first respondent. 9. The second respondent is the person with whom the first respondent agreed to transfer the property, as already noted, excluding the plaint scheduled property. 10. The learned counsel for the appellant took us through the deposition of the parties. He would contend that the trial court has erred in not granting a decree for a specific relief. According to him, the first respondent did not measure the properties, nor did he make available the encumbrance certificate. There is breach on the R. F.A. NO: 11 OF 2004 :7: part of the first respondent, he submits. 11. Under Ext.A1 agreement the first respondent agreed to sell three rooms which are situated at south end and to the direction of east- west and the pathway to these rooms, way from second room to western side, in the eastern side way to the third room to the possession of the appellant. The passage showing the agreement of sale reads as follows: R. F.A. NO: 11 OF 2004 :8: 12. The learned counsel for the first respondent would firstly contend that a perusal of the Ext.A1 Agreement sale would show that it is vague and the property cannot be identified. Secondly he would contend that the conduct of the first respondent in evicting the tenant's in possession of the room in terms of Ext.A1, the agreement would show that the first respondent was ready and willing to sell the property. He would submit clearly that the appellant was not ready and willing to perform his part of the contract. He would further contend that what is contemplated in Ext.A1 agreement is if there is encumbrance, it should be discharged by the first respondent and there is no encumbrance in the facts of this case. He would further point out that this is a case where the appellant was not ready to co-operate in the matter, as he was not apparently seized of funds to carry out the contract. 13. The suit is filed by the appellant claiming specific relief on the basis of Ext.A1 agreement. The consideration fixed in R. F.A. NO: 11 OF 2004 :9: Ext.A1 agreement is Rs.2,00,000/- . Admittedly the appellant has paid Rs.50,000/- as advance. The suit is laid after issuance of Ext.A6 suit notice, on the purported basis of the obligation on the part of the appellant to deposit a sum of Rs.1,45,000/-. In other words, the plaintiff has come to the court setting up a case that he has paid a further sum of Rs.5,000/- after having paid an advance of Rs.50,000/-. It is found against by the Trial Court. Therefore, if we confirm the finding that the appellant has not paid Rs.5,000/-, what the appellant is seeking is a decree for specific relief of a contract which would involve violation of the contract. The reasoning of the Trial court in not agreeing with the payment of Rs.5,000/- is as follows: “PW2 was cited to prove the said transaction. The evidence of PW2 is found to be not credit worthy. The date of the transaction is not mentioned by PW1 or PW2 and not receipt produced to prove the transaction and it is found that the plaintiff has not paid Rs.5,000/- R. F.A. NO: 11 OF 2004 :10: to the defendant.” 14. The case of the parties in this regard is based on oral evidence. The Trial court, which has the opportunity to watch the demeanour of the witnesses has come to the conclusion that the case of the appellant is unacceptable. In such circumstance, we accept the finding of the Trial court. If that is so, it is clearly a circumstance which would be in favour of rejecting the claim for specific relief. Consequently, the question arises is as to whether the appellant was ready or willing. 15. In the reply sent as Ext.A3 by the appellant, the appellant does not state any case as to lack of any measurement or not providing the encumbrance certificate as the reason for non- fulfillment of contract. On the other hand, the case set up by the appellant, is that he is prepared to perform the contract within the fixed period. There is no acceptable evidence to accept that there was an extension of the agreement by one year. He does not agree R. F.A. NO: 11 OF 2004 :11: to have the contract performed by the period fixed vide Ext.A2 i.e., by 12.8.94. On a perusal of the deposition of DW1, who is the son of the first respondent, no doubt, it is clear that the date fixed in Ext.A2 as 12.8.94 is one which is fixed unilaterally. It is clear that the appellant was not willing to perform the contract by 12.8.94. No doubt, the suit was instituted on 17.10.94. 16. We notice further that in the deposition of the appellant as PW2, he stated that he is not prepared to deposit the amount. This means that the appellant was not prepared to comply with the obligation even as on the date of the trial of the matter. This is due to the fact according to him that he has already paid Rs.5,000/- and further that the first respondent did not measure the properties. DW1 on the other hand in his evidence would contend that the plaintiff was not willing to co-operate in the matter of enforcing the contract as he was not with funds. Coming to the issue of non availability of fund, even the amount of Rs.1,45,000/- is not R. F.A. NO: 11 OF 2004 :12: deposited as such by the appellant. He has produced Ext.A11 dated 19.2.2001, in which it is stated as follows “This is to certify that Shri.K.C.Muthu, S/o. Shri. Krishnaswamy Pillai, Proprietor of M/s. Sree Bhagavathy Printers, Market Road, Punalur, has been availed a loan of Rs.1,50,000/- on 4.10.1994 for working capital purposes from The Repco Bank Ltd., Punalur Branch.” 17. Learned counsel for the first respondent would point out that this would only show that it is available for use as working capital. He pointed out that it is possible that it may have been used by the appellant for his business. In this regard, it is pertinent to note that the appellant has not produced the pass book. He would contend that there is no plea in the plaint that he had obtained any loan mentioned in Ext.A11. The trial court has refused to exercise the discretion. In this circumstance of the case, we find it difficult to over turn the verdict of the court below in R. F.A. NO: 11 OF 2004 :13: regard to exercise of discretion in refusing the specific relief. Accordingly we are inclined to confirm the exercise of discretion of the Trial Court in this regard. We feel that the appellant can be granted appropriate interest on the advance amount of Rs.50,000/- for the period from date of suit till today at 12% and thereafter at 6% from today till date of realisation. Accordingly, we allow the appeal in part and modify the judgment and decree as aforesaid. The parties are directed to suffer their respective costs in this appeal. K. M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE. dl/