IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 2ND DECEMBER 2008 / 11TH AGRAHAYANA 1930 RSA.No. 1233 of 2008() ---------------------- AS.66/2006 of ADDL.SUB COURT, IRINJALAKUDA OS.925/2003 of MUNSIFF COURT, KODUNGALLUR .................... APPELLANT/APPELLANT/DEFENDANT:- ------------------------------------------- MADHAVAN NAIR AGED 60 YEARS, S/O. KOCHAMMU AMMA, VALLATH HOUSE, PERUMBADAPPU, CHENTHRAPINNI, KODUNGALLUR. BY ADV. SRI.M.R.VENUGOPAL SMT.DHANYA P.ASHOKAN RESPONDENT/RESPONDENT/PLAINTIFF:- --------------------------------------------- MOHANAN MENON, AGED 55 YEARS, S/O. LAKSHMIKUTTY AMMA, KOTTEKAT HOUSE, PERUMBADAPPU DESOM, P.O. CHENTHRAPINNI, KODUNGALLUR TALUK. SRI.G.SREEKUMAR (CHELUR)CAVEATOR) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. ======================== R.S.A. No. 1233 of 2008 ======================== Dated this the 2nd day of December, 2008. JUDGMENT The defendant in O.S. No. 925 of 2003 on the file of the Munsiff's Court, Kodungallur is the appellant in this Second Appeal. The said suit was for specific performance of Ext.A1 agreement for sale dated 20.09.2002 as per which the appellant/defendant had agreed to sell a 5 feet wide pathway to the plaintiff for the purpose of the family temple of the plaintiff. A sum of Rs.25,000/- was paid as advance. The total consideration fixed was Rs.40,000/-. The balance amount was to be paid in six months i.e., on or before 20.03.2003. In spite of a notice issued by the plaintiff to the defendant to comply with the undertaking under Ext.A1, the defendant did not accede to the same. Hence the suit. 2. The suit was resisted by the defendant contending inter alia that since he was in need of money for the purpose of starting a vacation computer course for his son, he agreed to sell the property to the plaintiff for a total consideration of Rs.40,000/- after receiving an advance of Rs.25,000/-, that since the plaintiff did not pay the balance amount within the R.S.A No. 1233/2008 : 2: six months period agreed upon, the defendant approached the plaintiff in February, 2003 seeking performance of the agreement, but the plaintiff prolonged the matter and withdrew from the agreement, that the defendant had to borrow money on interest for buying a computer and the defendant sustained a loss of Rs.10,000/- towards interest, that the defendant is not liable to specifically perform his part of the contract and that he is ready and willing to return the advance amount of Rs.25,000/-. 3. The courts below concurrently rejected the defence set up by the appellant and decreed the suit as prayed for. Hence this Second Appeal. 4. The following questions of law have been formulated in the memorandum of Second Appeal:- A. Whether the courts below have committed a grave legal error in not taking into consideration the uncertainty of the property in the agreement, which was sufficient for dismissing the suit of the plaintiff for specific performance of the agreement for sale? B. Whether the courts below have committed a grave legal error in accepting Ext.A1 document as such without considering the circumstances under which it was executed by the appellant, which was sufficient to deny a prayer of specific performance to the plaintiff? C. Whether the courts below were wrong in passing a decree for specific performance of the agreement for sale in favour of the R.S.A No. 1233/2008 : 3: plaintiff as a matter of course, by ignoring the legal position that the grant of relief of specific performance is always discretionary and the courts are not bound to grant the same in all cases? D. Whether the courts below have committed a grave legal error in not considering the vital aspect that the agreement could be specifically enforceable at all, if the relief is granted? 5. The learned counsel appearing for the appellants made the following submissions before me in support of the appeal:- A reading of the description of the property agreed to be conveyed under Ext.A1 and the description of the plaint schedule property will show that there is a difference in the description. That apart, there is no proper identification of the property described in Ext. A1 which therefore suffers from vagueness. The courts below should not have granted specific performance of the contract in respect of a property which has not been properly described in Ext.A1 agreement for sale. The appellant had agreed to sell the property to tide over an urgent monetary requirement of Rs.40,000/-. It was the plaintiff who was delaying the payment of the balance amount necessitating the appellant to borrow money and thereby he had to incur a loss of Rs.10,000/- by way of interest. Moreover, Ext.A1 R.S.A No. 1233/2008 : 4: agreement is singed only by the defendant. The plaintiff, the proposed vendee is not a signatory to Ext.A1 agreement which is accordingly not enforcible in view of the decision in R. Chinnadurai v. S. Rajalakshmi (AIR 2004 Madras 313). 6. I am afraid that I cannot agree with the above submissions. The alleged vagueness of the description of the property in Ext.A1 was not urged before the courts below. As for the other contention that it was the defendant who sustained loss on account of the non-performance of his part of the contract by the plaintiff, both the courts did not accept the said contention. 7. The contention based on AIR 2004 Madras 313 is also equally misconceived. That was the case where the vendor who alone had singed the agreement for sale, had disputed his signature in the agreement. It was under these circumstances that the above decision was rendered by the Madras High Court. The ratio decided in the above decision has no application to the facts of the present case. The findings recorded by the courts below are pure findings of fact. No question of law, much less, any substantial question of law R.S.A No. 1233/2008 : 5: arises for consideration in this Second Appeal. The questions of law formulated in the memorandum of appeal also do not arise for determination in this Second Appeal which is accordingly dismissed in limine. Dated this the 2nd day of December, 2008. V. RAMKUMAR, JUDGE. rv R.S.A No. 1233/2008 : 6: