IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 23RD NOVEMBER 2010 / 2ND AGRAHAYANA 1932 AS.No. 68 of 1998() --------------------------- OS.315/1994 of PRINCIPAL SUB COURT, N.PARAVUR .................... APPELLANT/PLAINTIFF IN O.S.315/1994: ----------------------------------------------------------- SHANMUGHAN, S/O.VELU, KADEPARAMBIL, CHIRAKKAKAM KARA, VARAPUZHA PAKUATHI. BY ADV. SRI.M.C.JOHN, SRI.JINO JOY PATHADAN. RESPONDENT/DEFENDANT IN O.S.315/1994: ----------------------------------------------------------------- OMANA, W/O.RAMACHANDRAN, MATTUMMEL, THEVARKADU MURI, VARAPUZHA PAKUTHI. BY ADV. SRI.C.K.ARAVINDAKSHA MENON, SRI.P.R.JAYAKRISHNAN, SRI.K.C.CHARLES. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 23/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AS.No. 68 of 1998 ORDER ON C.M.P.NO.567/1998 IN AS. NO.68/1998 DISMISSED 23/11/2010. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs M.N. KRISHNAN, J. ........................................... A.S.NO.68 OF 1998 ............................................. Dated this the 23rd day of November, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, North Paravur in O.S.No.315/1994. The suit is one for specific performance of a contract. It is the case of the plaintiff that the property belonged to the defendants and by virtue of an agreement dated 5.2.1994 it was decided to sell the property at the rate of Rs.475/= per cent on or before 5.2.1994. Rs.5,000/= was advanced on the date of the agreement and subsequently on 18.4.1994 another Rs.5,000/= was paid. Term of the karar was extended up to 10.6.1994. Total consideration of the property would come to Rs.63,650/=. The plaintiff was ever ready and willing to perform his part of the contract and therefore, he had sent a notice directing the 1st defendant to come to the Sub Registrar's office but she did not come. The defendants are attempting to get away from the contract, hence the suit for specific performance. 2. The defendants, on the other hand, would contend : 2 : A.S.NO.68 OF 1998 that the plaint schedule property along with the property of the husband of the 1st defendant was mortgaged with the Service Co-operative Bank, Varappuzha and an agreement was executed after perusing those documents made available from the Bank. The understanding was that amount, if paid, could be used for discharging the liability. The plaintiff could not raise the amount because his source of raising the fund was blocked by virtue of a suit filed against him in which an attachment was obtained against his personal property. Therefore the plaintiff has failed to perform his part of the contract. It is also submitted that there was difference of opinion with the plaintiff and the defendants on the same. 3. According to the defendants, they were ready and willing to perform their part of the contract but it was the plaintiff's inability to raise the fund and get the document registered, that resulted in culmination of the agreement. 4. The trial court on an appreciation of the materials which consisted of oral evidence of PW1 and DW1 to DW6, Exts.A1 to A6 and B1 to B5 dismissed the suit. It is against : 3 : A.S.NO.68 OF 1998 that judgment and decree, the plaintiff has come up in appeal. 5. Heard the learned counsel for the appellant as well as the respondent. There is no dispute between the parties with respect to the agreement for sale which was executed on 5.2.1994. The rate per cent was fixed at Rs.475/=. Advance was paid on the date of agreement as Rs.5,000/= and subsequently on 18.4.1994 also another amount of Rs.5,000/= was paid. According to the plaintiff, the defendants were never prepared to properly measure the property and they did not even divulge about the existence of mortgage in the property and that they did not have preparedness to execute the assignment within the stipulated period. It has to be stated that in a suit for specific performance of a contract, naturally it is the duty of the plaintiff to prove the readiness and willingness to perform his part of the contract of which one of the important ingredients is his capacity to pay the amount to get the property. 6. The defendants would contend that the plaintiff had entered into an agreement for sale of 1 acre and 89 cents : 4 : A.S.NO.68 OF 1998 of property and further had intended to raise a loan of Rs.30,000/= after the purchase of the property. But a suit was filed against the plaintiff by one Hariharan and he had obtained an order of interim attachment which resulted in failure of the plaintiff to get his property sold so as to raise the consideration. 7. On the other hand the plaintiff would contend that he had taken a loan from the society and therefore, he was having money and that he had taken that money on 10.6.1994 in order to pay the consideration. It has to be also stated that the plaintiff has got a case that Exts.A4 and A5 which are the two passbook accounts of his mother and wife and in April 1994, there is a balance of Rs.30,000/= each in both those passbooks. It is in this contest, the notice had also to be taken into consideration. The plaintiff has issued the notice expressing his readiness and willingness to perform his part of the contract and that he had written in the notice that he will come with the balance consideration on 10.6.1994 to execute the document. The defendants denied receipt of that notice and it is endorsed in the notice that it : 5 : A.S.NO.68 OF 1998 is returned as unclaimed. The plaintiff is very confident about the resources of the consideration. When the plaintiff was examined as PW1 he had deposed that he had taken the amount from the society and he was preserving that amount with him for purchase of the property. So it is a piece of evidence. If the plaintiff is able to establish regarding the loan taken somewhere near the vicinity of this period, certainly it will be a definite point in favour of the plaintiff. Similarly both the parties had stated that they had gone to the Registrar's office. What had transpired therein is not explained by any of the parties. Both would submit that they have witnessed some documents that were registered on that date to indicate their presence in the premises of the Sub Registrar's office. 8. Mere presence of persons in the premises of the Sub Registrar's office may not be a conclusive proof. What has transpired therein is more important. So I think first of all the parties have to satisfy the conscience of the court regarding their presence in the Sub Registrar's office premises on 10.6.1994 and also has to tell the court what has : 6 : A.S.NO.68 OF 1998 transpired at that point of time. Only when these materials are collected and adduced, the court will be able to arrive at a decision regarding readiness and willingness of the parties or refusal of one of the parties or both. It has also to be held that on that basis alone a case cannot be decided for the reason that time is not always the essence of a contract in a sale of immovable property and that the date becomes very relevant only when it is a repurchase of the property within the stipulated time. Here there is no repurchase. It is only an agreement for sale and therefore one cannot hold that time is the essence of a contract. The trial court had approached the subject regarding mortgage which may be only one of the incidents of the transaction and not the sole criteria for deciding the case. It is necessary to have the sum and substance of the pleadings and analyse it in order to arrive at a decision regarding readiness and willingness of the plaintiff and the factum that who has committed the breach of contract. 9. Therefore the matter requires consideration in that angle. I do not want to elaborate for the reason that it may : 7 : A.S.NO.68 OF 1998 affect one of the parties. So the judgment and decree under challenge are set aside and the matter is remitted back to the trial court for a fresh consideration after affording equal opportunities to both sides to produce both documentary as well as oral evidence in support of their respective contentions and let the matter be decided in accordance with law. I make it very clear that observations made here and there in the judgment shall not be taken as a basis to arrive at a decision. Since I am remanding the matter, refund of the court fee in favour of the appellant's counsel be issued. I also make it clear that the defendants in the suit shall not alienate the property till a final decision is taken in the matter. Parties are directed to appear before the trial court on 22.12.2010. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 8 : A.S.NO.68 OF 1998 M.N. KRISHNAN, J. ........................................... A.S.NO.68 OF 1998 ............................................. 23rd day of November, 2010. J U D G M E N T