IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 19TH OCTOBER 2010 / 27TH ASWINA 1932 AS.No. 689 of 2001(F) -------------------------- OS.416/1994 of SUB COURT, MAVELIKKARA .................... APPELLANT(S)/PLAINTIFF ------------------------------ JAYAPRAKASH NARAYANAN, S/O. RAGHAVAN NAIR, KALEECKAL HOUSE, KOTTARKAVU MURI, MAVELIKKARA. BY ADV. SRI.K.SASIKUMAR RESPONDENT(S)/DEFENDANTS ------------------------------------ 1. SUDHADEVI, D/O. VIJAYAMMA, KALEECKAL HOUSE, KOTTARKAVU MURI, MAVELIKKARA, NOW RESIDING AT KAVARATTU PUTHEN VEEDU, KIZHAKEENADA, (OPPO. PRASAD SOUNDS), MAVELIKKARA(P.O.). 2. GIRI, S/O. VISWANATHAN NAIR, NOW RESIDING AT ANASWARA (THARAMEL) NEAR SAI SEVA SAMITHY, COURT ROAD, MAVELIKKARA - 1. 3. MANOJKUMAR, S/O. VISWANATHAN NAIR, -DO- -DO- 4. VIJAYAMMA, W/O. VISWANATHAN NAIR, - DO - -DO- 5. RAVEENDRAN NAIR, S/O. RAGHAVAN NAIR, KALEECKAL HOUSE, KOTTARKAVU, MAVELIKARA-3., NOW RESIDING AT SECTOR 3, TYPE 3, ORDANCE FACTORY, CHANDA, CHANDRAPUR, NAGPUR, MAHARASHTRA. 6. LETHA NAIR OF -DO-, NOW AT HOUSE NO.43, SMAMRTH NAGAR, AJANI ROAD, NAGPUR, MAHARASHTRA. R1 TO R4 BY ADV. SRI.K.HARILAL R5 & R6 BY ADV. SRI.K.S.MOHAMED HASHIM THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 19/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SVS/ ORDER ON C.M.P. NO. 2604/02 & C.M.P. NO. 5088/2001 IN AS.NO.689/2001. DISMISSED 19/10/2010 SD/- M.N. KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE SVS/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 689 OF 2001 = = = = = = = = = = = = = = = Dated this the 19th day of October, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Mavelikkara in O.S.416/94. The suit was one for specific performance of a contract which had been dismissed by the Court. It is against that decision the appeal is preferred by the plaintiff. It is the case of the plaintiff that as per Ext.A1 agreement dated 3.7.94 defendants 1 to 4 have agreed to assign the plaint schedule property in their favour for a consideration of Rs.1,00,000/- of which Rs.20,000/- was paid as advance. The balance amount was to be paid and the document was to be registered within a stipulated period of 4 months. On 24.10.94 the plaintiff has issued a A.S. 689 OF 2001 -2- lawyer notice making defendants 1 to 4 to make themselves available before the Registrar's office for registration of the document on receipt of balance consideration. As the property has to be measured it was not possible to register on that date of 3.11.94, the mother and one of the parties made an endorsement for extension of time and even on 5.11.94 defendant did not come and therefore the document could not be registered hence the suit. 2. On the other hand the contesting defendants 1 to 4 would contend that time is the essence of contract. There was no agreement to measure the property. The plaintiff was not having liquid cash with him and therefore the plaintiff has committed breach of contract. There is a clause in the document itself that by operation of the lapse of time the agreement A.S. 689 OF 2001 -3- itself will become a nullity and therefore specific performance could not be enforced. On a consideration of the entire materials the trial court found in favour of the defendants and dismissed the suit. It is against that decision the plaintiff has come up in appeal. 3. Heard the counsel for both the sides. The learned counsel for the appellant would contend that the following circumstances will reveal that his client is entitled to specific performance of the contract. It is submitted that by Ext.A2 notice the plaintiff has expressed his willingness to perform the contract and he had directed defendants 1 to 4 to be available in the sub-registrar's office at Mavelikkara to execute the document. Then as the measurement could not be finished within the stipulated time the document could not be A.S. 689 OF 2001 -4- registered on that date and therefore 2nd being a holiday it was decided to register the document on 3.11.94. Though the plaintiff went to the registrar's office on 3.11.94 defendants did not come and therefore the document could not be registered. So also till 5.11.94 this could not be done. On the other hand the defendants would contend there was no agreement to measure the property and there was no breach committed by the defendants and time was the essence of the contract and by virtue of the operative clause in Ext.A2 agreement, the agreement has become void for lapse of time and therefore specific performance could not be enforced. 4. At the out set I may point out that the parties are behaving very peculiar in this case. The parties are relatives still what the plaintiffs had done is to send a notice to the A.S. 689 OF 2001 -5- defendants to come to the registrar's office to register the document. It is a strange conduct. Similarly, there is no stipulation in the agreement to measure the property but it was decided to measure the property according to the plaintiff. Since the centage value of the property is not relevant at all and as the property is sold for a consolidated consideration of Rs.1,00,000/-, the question of measurement really does not arise. Ext.A2 agreement also does not stipulate anything about the measurement of the property. So a oral contract to the contrary though possible cannot be accepted in evidence. Therefore the only attempt of the plaintiff is to see that if it is a reduced extent he should get proportionate reduction for the same. Now on 3.1.94 it is submitted that 3rd and 4th defendants make an A.S. 689 OF 2001 -6- endorsement for extension of the period. Admittedly defendants 1 and 2 had not done the same. Now the trial court felt that since there is a operative clause in the agreement fixing the time as the essence of contract the Court shall not grant a decree for specific performance. It is a well settled principle of law that in a sale of immovable property time ordinarily shall not be a governing factor or the essence of the contract. The Hon'ble Supreme Court in the decision reported in Balasaheb Dayandeo Naik v. Appasaheb Dattatraya Pawar (2008 (4) SCC 464) held that “General presumption according to Constitution Bench decision in Chand Rani case, 1953 I SCC 519 that time is not the essence unless contrary intention is expressed in unequivocal language.” So unless and until one is able to substantiate A.S. 689 OF 2001 -7- that on account of the peculiar circumstances with specific reasons a contract is entered into fixing the time as essence, in all other cases time shall not be the essence in respect of the sale of immovable property. So I cannot agree with the trial court on that point. From the circumstances in this case it can be seen that materials are not forthcoming to the effect that the plaintiff was having liquid cash for payment to the defendants on 1.11.94. He would say that he has collected that amount from two or three persons. But it does not appear to be very convincing. There was no necessity for him to insist for measurement of the property when there is no stipulation for measurement and therefore that there was no fund as alleged appears to be probable. The defendants were also some how or other attempting to get away A.S. 689 OF 2001 -8- from the transaction. The defendants' intention to proceed with the contract is proved at least in one sense that they had demolished the structure in the building so as to give way for the transfer of the property. So here is a case where both the parties to a great extend have contributed to the breach of the contract. In such a situation it is not desirable to grant a decree for specific performance of the contract. It is also to be stated that no special loss is proved to have been sustained by the defendants in this case and the delay is not inordinate at all and therefore I feel this is a fit case where the money which the defendants 1 to 4 have received will have to be paid back to the plaintiff with an interest of 6%. Therefore I decline to interfere with the non granting of a decree for specific performance but I am A.S. 689 OF 2001 -9- persuaded to grant a decree whereby the plaintiff is granted a decree for realisation of Rs.20,000/- with 6% interest on the said sum from the date of suit till realisation from the defendants 1 to 3 jointly and by proceeding against the plaint schedule property in case of default. I direct the parties to bear their respective costs in the appeal. M.N. KRISHNAN, JUDGE. ul/- A.S. 689 OF 2001 -10- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No.689 OF 2001 = = = = = = = = = = = J U D G M E N T 19th October, 2010.