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 2ND NOVEMBER 2009 / 11TH KARTHIKA 1931 RFA.No. 714 of 2008(F) --------------------- OS.258/2007 of II ADDL.SUB COURT,ERNAKULAM .................... APPELLANT: -------------------- K.K.MADHAVAN, S/O.KUNJAN, KUZHIKKATTIL HOUSE, PERUMBILLY DESOM MULANTHURUTHY. BY ADV. SRI.R.D.SHENOY, SENIOR ADVOCATE SRI.P.V.BABY SRI.A.N.SANTHOSH SRI.S.VINOD BHAT RESPONDENT: --------------- SABU VARGHESE, S/O.VARGHESE KUNNATHUKALAPURAYIL HOUSE NECHOOR PO., PIRAVOM BY ADV. SRI.S.SREEKUMAR FOR R1 THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 23/10/2009, THE COURT ON 02/11/2009 DELIVERED THE FOLLOWING: ORDER ON I.A. 4515 OF 2008 ON R.F.A. NO: 714 OF 2008 DISMISSED SD/- SD/- K.M.JOSEPH (J) M.L.JOSEPH FRANCIS (J) 2.11.2009 // TRUE COPY // PA TO JUDGE dl/ K. M. JOSEPH & JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - R.F.A. NO: 714 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd Day of November, 2009. JUDGMENT M L Joseph Francis J., This appeal is filed by the defendant in O.S. No. 258 of 2007 on the file of IInd Additional Sub Court Ernakulam. The respondent herein is the plaintiff in that suit, which was filed for specific performance of an agreement for sale. 2. The plaint averments are as follows: The appellant is the owner of 36.688 cents of property in Mulanthuruthy Village. The respondent/plaintiff and the appellant/defendant entered into an agreement for sale on 5.10.2006 whereby the appellant/defendant agreed to sell 24 cents of property on the northern side of the total property, lying on east-west direction and with a two storied terrace R.F.A. NO: 714 OF 2008 :2: building and the respondent/ plaintiff agreed to purchase the same for an amount of Rs.21,75,000/- (Rupees twenty one lakhs and seventy five thousand only). The above referred 24 cents of property in Sy.No.379/8 and 10 (old Survey No.464/2) of Mulanthuruthy Village with a two storied building therein has been described in the plaint schedule. 3. On the date of agreement, the respondent/plaintiff has given an amount of Rs.3 lakhs as advance sale consideration to the appellant/defendant and the same was accepted by the appellant/defendant. The payment of advance sale consideration was acknowledged in the agreement. The time fixed for performance of the condition in the agreement was six months from the date of the agreement. As per the agreement, the appellant agreed to hand over the original title deed, encumbrance certificate from 1992 onwards to the respondent/ plaintiff and the appellant/defendant also agreed to measure the property within the time agreed in the agreement and would satisfy the extent of the property to the respondent. In utter R.F.A. NO: 714 OF 2008 :3: violation of the terms in the agreement, appellant did not comply with any of the terms in the agreement. The respondent was always ready at any time with the balance sale consideration to comply his part of the agreement, but the appellant/defendant dragged the time by raising one or other grounds. 4. Quite surprisingly, on 26.3.2007 the respondent/ plaintiff received a lawyer notice stating that the property is schedule to be measured on 23.3.2007 at 10.30 a.m. and the respondent/plaintiff was required to be present on that day. It is further stated in the said notice that all the documents will be handed over on that day. Since the said letter was received on 26.3.2007, the respondent/plaintiff immediately contacted the appellant/defendant and informed him about the date of receipt of the letter. At that time, the appellant/defendant dragged on the matter by raising one or other reasons. Hence the respondent/plaintiff issued a reply notice to the appellant/ defendant and informed him that he will be present on 3.4.2007 at 9.30 p.m. in the property for measurement and also requested him to hand over all R.F.A. NO: 714 OF 2008 :4: the documents on that day. Accordingly,on 3.4.2007 the respondent/plaintiff reached the plaint schedule property, but the appellant was not ready to measure the property or to hand over the documents. On that day itself the respondent/plaintiff submitted a complaint before the Sub Inspector of Police, Mulanthuruty. 5. In pursuance to the complaint, appellant was summoned to the police station and there the appellant agreed to measure out the property and to hand over all the documents. The appellant also suggested the respondent to extent the period of agreement by 15 days for performing his part of the contract and the respondent also agreed to give Rs.2 lakhs to the appellant towards the balance sale consideration. Accordingly, on 5.4.2007 the respondent made necessary writing on the back side of the agreement and approached the appellant with Rs.2 lakhs, but at that time the appellant informed the respondent that he is not ready to measure the property and hand over the documents to the respondent. The appellant also informed that he will not extent the period of the agreement. It is only due to R.F.A. NO: 714 OF 2008 :5: the lethargic attitude on the part of the appellant, the sale could not be materialised. 6. The defendant has filed a written statement contending that the defendant and the plaintiff executed an agreement for sale of the property. The defendant had accepted Rs.3,00,000/- as advance sale consideration. The time fixed for performance of the contract was six months. The defendant had handed over photostat copies of documents. The defendant agreed to hand over the encumbrance certificate from June 1992 and sketch of the property. The plaintiff did not turn up on 7.3.2007, the date fixed for measurement of the property. Therefore, the defendant caused to issue a notice on 15.3.2007 fixing 23.3.2007 as the date for measurement of property and the plaintiff was requested to be present. However, the plaintiff purposely delayed acceptance of notice till 26.3.2007. On 28.3.2007, the plaintiff caused to send a notice to the defendant, in which it was intimated that the plaintiff will be present on 3.4.2007 at 9.30 am in the property for measurement. The defendant received the notice on R.F.A. NO: 714 OF 2008 :6: 30.3.2007. On the evening of 29.3.2007, the plaintiff came to the house of the defendant and it was decided that the property would be measured on 30.3.2007. The plaintiff was given a copy of tax receipt dt.29.3.2007 and encumbrance certificate. On 30.3.2007, the property was measured by the office staff of P.R. Lalitha, Retd. Village Officer, in the presence of the plaintiff and the defendant. A copy of the sketch was also given to the plaintiff. As the property was measured on 30.3.2007 it was not necessary to measure the property again as requested in the notice. However, on receipt of notice dt.28.3.2007 the defendant had prepared another notice on 30.3.2007 and sent to the plaintiff through his lawyer, in which it was mistakenly stated that the property was not measured on 30.3.2007. During measurement the plaintiff had asked for extension of time, for which the defendant did not agree. The fact that the plaintiff was not ready with money would indicate that he was not ready and willing to perform his part of the contract. On 3.4.2007 the plaintiff filed a petition before the police and the defendant was summoned to the R.F.A. NO: 714 OF 2008 :7: station. The defendant expressed his willingness to execute the sale deed and the petition was closed. The allegation that the defendant requested to extent the period of agreement by 15 days to perform his part of the contract and that the plaintiff agreed to pay Rupees Two lakhs more towards sale consideration and therefore the plaintiff made necessary writings on the back side of the agreement are untrue and made by the plaintiff for the purpose of this suit. The plaintiff was never ready and willing to perform his part of the contract as he is a broker and was in search of purchasers to execute the sale deed. The defendant was present at the sub registrar's office on 4.4.2007 and on 7.4.2007 and witnessed registration of two documents. Therefore the plaintiff is not entitled to get any of the reliefs prayed for including the alternative relief. 7. In the Sub Court PWs.1 to PW3 and DW1 to DW5 were examined and Ext.A1 to A6 series, Ext.B1 to B18 and Ext.X1 series to Ext.X2 series were marked. The learned Sub Judge, on considering the evidence, decreed the suit as follows: R.F.A. NO: 714 OF 2008 :8: (i) The plaintiff shall deposit the balance sale consideration within two months from the date of decree and issue notice to the defendant. (ii) The defendant shall, on receipt of notice of deposit, shall execute the sale deed in favour of plaintiff within a further period of one month, failing which the plaintiff can enforce the decree and recover expenses from the defendant. (iii) The plaintiff is entitled to get cost of suit from the defendant. Against that judgment and decree, the defendant filed this appeal. 8. Heard the learned senior counsel for the appellant and learned counsel for the respondent. 9. Learned counsel for the appellant submitted that the property was actually measured on 30.3.2007 in the presence of the plaintiff and the sketch was handed over to the plaintiff and that the plaintiff committed breach of contract. Learned counsel for the appellant R.F.A. NO: 714 OF 2008 :9: further submitted that the plaintiff was not ready and willing to perform his part of contract and that execution of sale did not take place as the plaintiff was not ready with the balance of sale consideration. He would point out that the case of the respondent is based on loan, which appears to be sanctioned on the same day of the application. Learned counsel for the respondent supported the judgment of the Lower Court and submitted that respondent has deposited the balance of sale consideration in the court after the decree. 10. The execution of Ext.A1 agreement for sale dated 5.10.06 agreeing to sell the plaint schedule property having an extent of 24 cents with two storied building for a total sale consideration of Rs.21,75,000/- and the receipt of Rs.3,00,000/- as advance is admitted by the defendant. As per the stipulations contained in Ext.A1 agreement, both sides have to perform their part of the contract within six months. As per the terms of Ext.A1, the defendant had to measure out the plaint schedule property and to give prior title deed with R.F.A. NO: 714 OF 2008 :10: encumbrance certificate. Ext.A2 is the lawyer notice dated 15.3.2007 issued by the defendant to the plaintiff asking the plaintiff to be present in the property for measurement on 23.3.2007. But that notice was received by the plaintiff only on 26.3.2007. The plaintiff sent lawyer notice asking the defendant to be present on 3.4.2007 to measure out the property and on that day the defendant did not turn up. The defendant contends that the property was measured on 30.3.2007 and the plaintiff was given a copy of the sketch and therefore there was no necessity to measure out the property on 3.4.2007. After that the plaintiff filed a complaint before the police and both the parties agreed to execute the sale deed. 11. PW1 deposed that the defendant wanted to extend the period of agreement for 15 days on payment of a sum of Rs.2,00,000/- and when the plaintiff made necessary endorsement in the agreement the defendant refused to sign it and refused to receive Rs.2,00,000/-. DW2 is the surveyor attached to the office of Smt.Lalitha, retired Village Officer. DW2 deposed that she measured R.F.A. NO: 714 OF 2008 :11: out the property and prepared Ext.B4 sketch in the presence of the defendant and the plaintiff on 30.3.2007. 12. DW4 is a neighbor of the defendant. DW4 also deposed that DW2 measured the property in the presence of both the parties on 30.3.2007 and sketch was prepared on the same day. But in Ext.B8 notice sent on 30.3.2007, the defendant has stated that the property could not be measured on 30.3.2007 due to the non co-operation of the defendant. In the written statement, it is stated by the defendant that the statement in Ext.B8 notice that the property could not be measured on 30.3.2007 is a mistake. Ext.A4 is the copy of the complaint dated 3.4.2007 given by the plaintiff before the police complaining that the property was not measured and that the defendant was not ready to execute the sale deed. If the defendant had measured out the property on 30.3.2007 the plaintiff would not have made such a complaint before the police. Therefore the case of the defendant that the property was measured on 30.3.2007 cannot be accepted as true. R.F.A. NO: 714 OF 2008 :12: 13. Ext.X1 and X2 are copies of the loan applications submitted by the plaintiff before Canara Bank, Mulanthuruthy branch for housing loan of Rs.3,00,000/- and agricultural loan of Rs.10,00,000/- which were sanctioned by the bank, which is evident from the testimony of PW3 who is the Branch Manager of that bank. The plaintiff has produced fixed deposit receipts for about Rs.6,00,000/- in the name of PW2, who is the brother in law of the plaintiff. PW2 deposed that he was prepared to pay that amount to the plaintiff for purchase of the plaint schedule property. The plaintiff has examined the Manager of the Bank and we cannot draw support of the contention of the appellant from the same. Therefore the evidence adduced from the side of the plaintiff would show that the plaintiff has the ability to pay the balance sale consideration as per Ext.A1 agreement for sale. Therefore it is evident that the plaintiff was ready and willing to perform his part of the contract and that the sale deed could not be executed due to the default of the defendant. 14. The grant of decree for specific performance is in the R.F.A. NO: 714 OF 2008 :13: discretion of the court. The relief of specific performance could not be denied in the appeal simply on the ground that there has been considerable rise in price of the property agreed to be sold due to passage of time since after the agreement. Since the learned Sub Judge has exercised discretion on sound principles of law, we find no reason to interfere with that discretion. Therefore, the learned sub Judge is perfectly justified in decreeing the suit for specific performance. Accordingly this appeal is dismissed. The judgment and decree in O.S. 258 of 2007 on the file of IInd Additional Sub Court Ernakulam is confirmed. The parties are directed to suffer their respective cost in this appeal. K. M. JOSEPH, JUDGE M. L. JOSEPH FRANCIS, JUDGE. dl/